Prairie Band Pottawatomie Nation v. Fed. Highway Admin.

Decision Date10 July 2012
Docket NumberNo. 11–3000.,11–3000.
PartiesPRAIRIE BAND POTTAWATOMIE NATION, Sierra Club, Wetlands Preservation Organization, Jayhawk Audubon Society, Save The Wakarusa Wetlands, Inc., Kansas University Environs, and Ecojustice, Plaintiffs–Appellants, v. FEDERAL HIGHWAY ADMINISTRATION, J. Michael Bower, in his official capacity as Division Administrator, Federal Highway Administration; Kansas Department of Transportation, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

David Prager III (Robert V. Eye with him on the briefs) Kauffman & Eye, Topeka, KS, for Appellants.

Eldon Shields, Gates, Shields & Ferguson, P.A., Overland Park, KS, for Appellee Kansas Department of Transportation.

Ellen J. Durkee, Environmental & Natural Resources Division (Ignacia S. Moreno, Assistant Attorney General, and Maureen Rudolph, Attorney, Environmental & Natural Resources Division, and Barry R. Grisson, United States Attorney, and Jackie A. Rapstine, Assistant United States Attorney, District of Kansas) United States Department of Justice, Washington, DC, for Appellees J. Michael Bower and Federal Highway Administration.

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The PlaintiffsAppellants challenge the Federal Highway Administration's selection of a route for the South Lawrence Trafficway, a proposed highway project in the city of Lawrence, Kansas. Appellants claim two aspects of the Highway Administration's decision render it arbitrary and capricious under the Administrative Procedure Act. First, Appellants claim the environmental impact statement supporting the decision runs afoul of the National Environmental Policy Act and Department of Transportation noise analysis regulations. Second, Appellants claim the Highway Administration's analysis under the section of the Department of Transportation Act that protects historic sites, including property associated with Haskell Indian Nations University, improperly concluded there was no “feasible and prudent alternative” to the selected route.

Finding no fatal flaws in the environmental impact statement or the prudence analysis, we AFFIRM the judgment of the district court.

I. Background

For over two decades, the citizens of Lawrence, Kansas and other interested parties have debated the merits of the South Lawrence Trafficway (SLT), a highway project designed to link state highway K–10 and Interstate 70 around the southern periphery of Lawrence. The SLT would allow traffic to bypass surface streets running through busy south Lawrence, thereby relieving traffic congestion and improving motorist safety. A western segment of the SLT was built many years ago, but the remaining portion has been stalled.

The Appellants are a diverse collection of interested entities including the Prairie Band Pottawatomie Nation, the Sierra Club, the Wetlands Preservation Organization, the Jayhawk Audubon Society, Save the Wakarusa Wetlands, Inc., the Kansas University Environs, and Ecojustice. They seek to prevent injury to environmental, cultural, and historical values that may be affected by the SLT.

The DefendantsAppellees include the Federal Highway Administration (FHWA), the Kansas Department of Transportation (KDOT), and the official heads of those agencies. Another government entity, the United States Army Corps of Engineers, was involved in several aspects of the approval but was not a named defendant. Because the specific identities of these government bodies are not significant for the purposes of the legal challenges brought here, we will refer to them collectively as “the government.”

The route of the SLT is near several historical and environmental features. The Wakarusa River floodplain lies directly south of Lawrence. One potential route for the highway skirts the northern edge of the floodplain. This route would pass directly through the Haskell Agricultural Farm Property, a historic site eligible for listing on the National Register of Historic Places. The Haskell Farm was historically used for agricultural-education purposes by the Haskell Indian Nations University. The northern portion of the Haskell Farm, called the Upper Fields, contains several historic and cultural features, while the southern portion, called the Baker Wetlands, is an environmentally-sensitive area within the floodplain supporting various plant and animal life. The Upper Fields and Baker Wetlands are currently separated by a surface street, 31st Street.

A less direct route for the SLT along the southern edge of the Wakarusa floodplain, further away from Lawrence, would avoid directly affecting the Haskell Farm. It would, however, cost more to build due to increased length and the need to bridge the floodplain and river. It would also require motorists to drive a more circuitous route.

In selecting a route for the SLT, the government engaged in a multi-step evaluation process. Starting with an initial list of 27 identified options, the government selected 12 for detailed analysis. The government considered several factors, including encroachment on wetlands, increased noise on the Haskell Farm, cost, and the extent to which each alternative achieved the project's goals of traffic congestion relief and increased safety.

After additional analysis, the government selected two finalists—the 32nd Street Alignment B Alternative (32B), and the 42nd Street Alignment A Alternative (42A)—plus a required “no action” alternative as a point of comparison. Alternative 32B took a direct route through the Haskell Farm, but incorporated mitigation measures to lessen the impact on the Farm, which included sound barriers and the relocation of 31st Street and other nearby surface roads. Alternative 42A took a longer route south of the floodplain, avoiding the Farm.

The government ultimately selected alternative 32B, and issued its preliminary decision in a draft environmental impact statement (EIS). After a public notice-and-comment period, the government issued a final EIS and record of decision formally adopting Alternative 32B. The government determined that 42A was not a prudent alternative due to several factors that cumulatively amounted to a problem of extraordinary magnitude.

After the government issued its final decision, Appellants proposed an additional alternative, which they dubbed “42C.” Alternative 42C resembled a route along the 42nd Street alignment that the government had eliminated at a relatively early stage in the evaluation process. Appellants presented their own analysis showing that 42C would achieve a significant cost benefit over 42A, and urged the government to reconsider its decision. Despite having already issued a final EIS, the government considered and rejected 42C, explaining that sharp curves in the route rendered it unacceptable from a safety standpoint.

Appellants then challenged the government's decision in the court below, bringing claims under the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and section4(f) of the Department of Transportation Act. The district court rejected all of Appellants' claims, and Appellants appealed.

II. Environmental Impact Statement Challenge

Appellants first claim the government's adoption of the EIS did not comply with NEPA, and therefore was arbitrary and capricious. Appellants identify four flaws in the EIS: (1) the noise analysis failed to adhere to United States Department of Transportation regulations; (2) the government should not have rejected Alternative 42C; (3) the cost analysis underestimated the costs for 32B; and (4) the safety analysis used incorrect safety criteria.

Our review of the statutory and administrative claims is de novo:

We review NEPA claims under the APA independently, giving no particular deference to the district court's review of an agency action. As with other challenges arising under the APA, we review an agency's NEPA compliance to see whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In the context of a NEPA challenge, an agency's decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 710–11 (10th Cir.2010).

“Deficiencies in an EIS that are mere ‘flyspecks' and do not defeat NEPA's goals of informed decisionmaking and informed public comment will not lead to reversal.” New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir.2009). Furthermore, even if an agency violates the APA, its error does not require reversal unless a plaintiff demonstrates prejudice resulting from the error. APA § 706 ([D]ue account shall be taken of the rule of prejudicial error.”); see New Mexico ex rel. Richardson, 565 F.3d at 708. Importantly, [a] presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action.” New Mexico ex rel. Richardson, 565 F.3d at 704.

With this standard of review in mind, we turn to the four EIS deficiencies claimed by the Appellants.

A. Noise Analysis
1. Legal Framework

Federal law requires the Secretary of Transportation to “develop and promulgate standards for highway noise levels compatible with different land uses.” 23 U.S.C. § 109(i). This requirement is implemented by federal regulations establishing a three-stage noise analysis process that FHWA must follow for new highway projects. See 23 C.F.R. § 772.

First, FHWA must determine whether a proposed project will result in “traffic noise impacts.” § 772.11(a). “Traffic noise impacts” are defined as noise...

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