Ross v. Federal Highway Admin.
| Decision Date | 17 July 1997 |
| Docket Number | Civil Action No. 97-2132-GTV. |
| Citation | 972 F.Supp. 552 |
| Parties | Thomasine ROSS, Stanley Ross, Anjanette Bitsie, Pamina Yellowbird, Jason Daniels, Wetlands Preservation Organization, and Kansas University Environs, Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION; David Geiger, Division Administrator, Federal Highway Administration; Mark Buhler, Tom Taul, Dean Neider, Douglas County, Kansas Commissioners; and E. Dean Carlson, Secretary of the Kansas Department of Transportation, Defendants. |
| Court | U.S. District Court — District of Kansas |
Robert V. Eye, Irigonegaray & Associates, Topeka, KS, Bruce M. Plenk, Lawrence, KS, for plaintiffs.
Helen Mountford, Federal Highway Administration, Kansas City, MO, Jackie A. Rapstine, Office of U.S. Attorney, Topeka, KS, for Federal Highway Administration, Division Administrator of Federal Highway Administration.
Timothy P. Orrick, Mark Parkinson, Parkinson, Foth & Reynolds, Lenexa, KS, for Commissioners of Douglas County, Kansas.
Daniel D. Crabtree, Stinson, Mag & Fizzell, P.C., Overland Park, KS, Vicky S. Johnson, Michael B. Rees, Office of Chief Counsel, Gelene D. Savage, Kansas Dept. of Transp., Topeka, KS, Stephen P. Chinn, Patricia A. Konopka, Stinson, Mag & Fizzell, P.C., Kansas City, MO, for Secretary of Kansas Dept. of Transp.
In this case, plaintiffs allege that defendants are violating the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331-4335, by continuing construction of the South Lawrence Trafficway in Douglas County, Kansas prior to completing a supplemental environmental impact statement (SEIS). In their amended complaint, plaintiffs seek judicial review pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., mandamus relief pursuant to 28 U.S.C. § 1361,1 declaratory relief pursuant to 28 U.S.C. § 2201, and injunctive relief pursuant to 28 U.S.C. § 2202. For the reasons set forth below, the court finds that it has subject matter jurisdiction and is, therefore, prepared to rule upon the merits of the case. Accordingly, the court issues an injunction prohibiting defendants from taking any action or expending any funds to complete the eastern leg of the Trafficway before completing the SEIS process, issuing a final SEIS, and entering a new Record of Decision.
Plaintiffs filed their complaint and motion for preliminary injunction on March 12, 1997.2 At a March 28, 1997 hearing, the court focused upon plaintiffs' claims against the Federal Highway Administration and Division Administrator David Geiger (federal defendants) to determine if the court has subject matter jurisdiction. NEPA applies to federal agencies undertaking "major federal actions significantly affecting the quality of the human environment". 42 U.S.C. § 4332(2)(C); see Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1480 (10th Cir.1990) (). The court, therefore, observed that its subject matter jurisdiction is contingent upon a finding of "major federal action" in the Trafficway not yet constructed.
At the March 28 hearing, the court also commented that plaintiffs seeking to enforce the procedural requirements of NEPA, which contains no private cause of action, are subject to the APA's judicial review provisions. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990); Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir.1996); Catron County Bd. of Comm'rs v. United States Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir.1996); Southern Utah Wilderness Alliance v. United States Forest Serv., 897 F.Supp. 1394, 1397 n. 1 (D.Utah 1995). The court concluded that federal defendants' actions at issue would be reviewed under the APA and modified the briefing schedule outlined in D.Kan.R. 83.7 to accommodate the final hearing scheduled for early May. (Doc. 14.) The court then authorized a preliminary injunction (Doc. 12), which was memorialized in an order filed April 15, 1997 (Doc. 21).
The court conducted a final hearing on May 2, 1997, during which the court noted that its subject matter jurisdiction is intertwined with the merits of the action. Accordingly, both the merits of plaintiffs' claims against federal defendants as well as the court's subject matter jurisdiction over plaintiffs' claims revolve around federal defendants' conclusion that the unconstructed Trafficway involved no "major federal action."3 If jurisdiction is lacking, the court noted that it would dismiss federal defendants and that it lacked authority to exercise supplemental jurisdiction over the state and local defendants. See Tatum v. Everhart, 954 F.Supp. 225, 230 (D.Kan.1997). At the conclusion of the May 2 hearing, the court continued the preliminary injunction pending submission of additional briefing by the parties and the court's resolution of the issues contained therein. (Doc. 33.)
The case is now before the court to determine subject matter jurisdiction and, upon a finding of jurisdiction, the merits of issuing an injunction. The court has considered the arguments of counsel and the evidentiary submissions. Judicial review under the APA is limited to the administrative record with limited exceptions. The exception pertinent here is the necessity for background information. See Northern Crawfish Frog (Rana Areolata Circulosa) v. Federal Highway Admin., 858 F.Supp. 1503, 1508 n. 6 (D.Kan.1994) (citations omitted). Accordingly, the court bases its factual findings upon the administrative record in this case as well as uncontroverted findings from Northern Crawfish Frog, a previous case involving the Trafficway.
Pursuant to Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law.
1. Interest in a southern bypass trafficway around Lawrence began in 1964, and numerous studies were conducted by consultants as well as local, state, and federal agencies.
2. In April 1986, the Federal Highway Administration (FHWA) became involved in the Trafficway project and informed Douglas County and the Kansas Department of Transportation (KDOT) that eligibility for federal funding necessitated preparation of an environmental impact statement (EIS). On June 23, 1986, the FHWA published a Notice of Intent to Prepare an EIS for the Trafficway in the Federal Register.
3. The Trafficway was conceived as a federal-aid highway project jointly funded by local, state, and federal monies. In a federal-aid highway project, state and local officials contract for the actual planning and construction work, subject to the FHWA's oversight. The FHWA reimburses the state for eligible costs expended on contracts into which state and local officials have entered.
4. On January 4, 1990, the FHWA approved and released to the public a final EIS. On June 5, 1990, the FHWA issued a Record of Decision, selecting the route for the eastern leg of the Trafficway along the existing 31st Street in the City of Lawrence. On April 22, 1993, the United States Army Corps of Engineers (Corps) issued a section 404 permit pursuant to the Clean Water Act for the 31st Street route.4
5. In July and October 1993, representatives of Haskell Indian Nations University expressed concern about the 31st Street alignment that is adjacent to the Haskell campus. Following a Haskell Board of Regents' resolution opposing the 31st Street alignment, the FHWA, KDOT, and Douglas County determined that a SEIS was needed to address Haskell's spiritual, academic, and development concerns.
6. In April 1994, to facilitate construction phasing and available funding limits, KDOT requested that FHWA allow segmentation of the Trafficway. In May 1994, the FHWA approved KDOT's request to divide the Trafficway into four segments with three segments on the western leg (Kansas Turnpike south to U.S. 40, U.S. 40 south to Clinton Parkway, and Clinton Parkway south and west to U.S. 59) and the remaining segment being the eastern leg, east of U.S. 59. Citing 23 C.F.R. § 771.111(f), the FHWA determined that segmentation provided logical termini, that each segment had independent utility, and that construction of the western segments would not foreclose alternatives for the eastern segment. The three segments of the western leg of the Trafficway have been constructed and are carrying traffic.
7. On October 17, 1994, the FHWA published a Notice of Intent to Prepare a SEIS to address Haskell's concerns. Department of Transportation Notice, 59 Fed.Reg. 52,360 (1994). Approximately one year later, on October 2, 1995, a draft SEIS addressing the eastern leg of the Trafficway was released for public comment. On November 8, 1995, a public hearing was held, at which over 633 people attended. There were 280 written comments, 180 oral comments, and 5 petitions submitted.
8. Cooperating agencies never reached agreement on a preferred alignment to 31st Street. On October 29, 1996, FHWA, Corps, KDOT, and Douglas County discussed defederalizing the project.
9. On December 9, 1996, Douglas County wrote the FHWA, commenting that the SEIS process was "deadlocked" and that the FHWA had yet "to take a stand in writing on any of the three alignments." (Administrative Record Ex. 16.) Douglas County asked that the "FHWA give [its] position in writing and recommend a method to conclude the SEIS process." (AR Ex. 16.)
10. On January 10, 1997, KDOT and Douglas County entered into an agreement to construct the eastern leg of the Trafficway without federal funds. On February 10, 1997, KDOT informed the FHWA of KDOT and Douglas County's agreement, stating that KDOT hoped this information resolved "the question of any further involvement by the [FHWA]." (AR Ex. 19.)
11. On February 4, 1997, plaintiffs' counsel...
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