Sierra Club North Star Chapter v. Pena, 4-96-547 (ADM/JGL).
| Decision Date | 13 April 1998 |
| Docket Number | No. 4-96-547 (ADM/JGL).,4-96-547 (ADM/JGL). |
| Citation | 1 F.Supp.2d 971 |
| Parties | SIERRA CLUB NORTH STAR CHAPTER and Voyageurs Region National Park Association, Plaintiffs, and City of Oak Park Heights, Plaintiff-Intervenor, v. Federico PENA, Secretary of the United States Department of Transportation; Rodney Slater, Administrator of the Federal Highway Administration; Bruce Babbitt, Secretary of the United States Department of the Interior; and Roger Kennedy, Director of the National Park Service, Defendants, and James Denn, Commissioner, Minnesota Department of Transportation; State of Wisconsin Department of Transportation; City of Stillwater, Defendant-Intervenors. |
| Court | U.S. District Court — District of Minnesota |
Richard A. Duncan, Brian B. O'Neill, Elizabeth H. Schmiesing, Faegre & Benson LLP, Minneapolis, MN, appeared on behalf of Sierra Club North Star Chapter and Voyageurs Region National Park Association.
Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., Stillwater, MN, appeared on behalf of the City of Oak Park Heights.
Paul F. Holleman, Assistant Attorney General, United States Department of Justice, appeared on behalf of the United States.
Sherry A. Enzler, Assistant Attorney General, State of Minnesota, appeared on behalf of the Minnesota Department of Transportation.
David T. Magnuson, City Attorney, Stillwater, Minnesota, argued on behalf of the City of Stillwater.
The above-entitled matter came on for hearing before the undersigned United States District Judge on January 16, 1998, pursuant to the Minnesota Department of Transportation's ("MDOT") Motion for Partial Summary Judgment. MDOT, in conjunction with the Wisconsin Department of Transportation ("WDOT"), seeks to build a four-lane bridge across the Lower St. Croix River, a river that is part of the National Wild and Scenic Rivers System ("WSRS" or "System"). The United States Secretary of the Interior, however, through the National Park Service ("NPS"), has prevented the United States Army Corps of Engineers ("COE") and the United States Coast Guard ("Coast Guard") from issuing the necessary permits required for construction of the bridge. Issuance of the permits was blocked in the fall of 1996 by a NPS determination that the proposed bridge constitutes a "water resources project" under Section 7 of the Wild and Scenic Rivers Act ("WSRA" or "Act"), and a further determination in December 1996 that if the project were allowed to go forward it would have a direct and adverse impact on the specific values which entitled the Lower St. Croix to be included in the WSRS.
MDOT now moves for an order vacating the NPS determinations. MDOT and the City of Stillwater (hereinafter collectively referred to as "MDOT") filed memoranda in support of the motion. The Sierra Club North Star Chapter ("Sierra Club") and Voyageurs Region National Park Association ("Voyageurs"), the United States, and the City of Oak Park Heights (hereinafter collectively referred to as "Plaintiffs") filed memoranda in opposition. America Rivers, Inc., a non-profit corporation devoted to the protection and restoration of America's rivers and watersheds, also filed a memorandum in opposition as an amicus curiae. For the reasons set forth below, MDOT's motion will be denied.
The WSRA was passed in 1968 to preserve selected rivers of the United States in their free-flowing condition for the benefit and enjoyment of present and future generations. 16 U.S.C. § 1271. In order to qualify for inclusion in the System a river must possess an "outstandingly remarkable" value in at least one of the following categories: scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar attributes. Id. The short and relatively simple Act identifies the rivers in the WSRS, sets forth a procedure by which additional rivers may be added, and provides guidance on how the designated rivers should be managed. 16 U.S.C. §§ 1274-1284.
One of the rivers included in the System is the Saint Croix River ("St.Croix"). 16 U.S.C. §§ 1274(a)(6) and (8). The St. Croix, which extends from Solon Springs in northwest Wisconsin to its confluence with the Mississippi River in Prescott, Wisconsin, is 164 miles long and serves as the border between the States of Minnesota and Wisconsin for a significant portion of its length. Benson Aff. ¶ 5. The upper segment of the St. Croix between the dam near Taylors Falls, Minnesota, and the dam near Gordon, Wisconsin, was designated for inclusion in the WSRS in 1968. 16 U.S.C. § 1274(a)(6). At that time, the lower segment of the St. Croix between the dam near Taylors Falls and its confluence with the Mississippi River ("Lower St. Croix") was designated as a study river for potential later addition to the System. 16 U.S.C. 1276(a)(21).
Four years later, Congress passed the Lower St. Croix River Act of 1972 ("LSCRA"). Pub.L. No. 92-560 (codified at 16 U.S.C. § 1274(a)(9)). The LSCRA designated the northern 27 miles of the Lower St. Croix for immediate inclusion in the WSRS and provided for designation of the southern twenty-five miles upon application by the Governors of Minnesota and Wisconsin. Id. In early 1976, the Governors of both states wrote to the Secretary of the Interior requesting that the southern 25 miles be included in the system. Shortly thereafter, the Secretary designated this final segment of the Lower St. Croix a federally protected Wild and Scenic River.
Ten bridges traverse the St. Croix linking the transportation systems of Wisconsin and Minnesota. Josephson Aff. ¶ 3. One of the bridges across the Lower St. Croix is a twolane lift bridge ("Stillwater Bridge") between Stillwater, Minnesota and Houlton, Wisconsin. The Stillwater Bridge connects Minnesota Trunk Highway 36 ("T.H.36") to Wisconsin State Trunk Highway 64 ("T.H.64"). Benson Aff. ¶ 6. In 1967, MDOT and WDOT began studying alternatives for replacement of the Stillwater Bridge due to problems associated with traffic congestion and safety. Id. at ¶ 16. In June 1974, however, the project had to be set aside because of funding issues and other planning priorities. Josephson Aff. Ex. G.
The project was eventually rejuvenated in February 1985 when WDOT and MDOT entered into a Cooperative Agreement for the preparation of various studies regarding a replacement for the Stillwater Bridge. Benson Aff. ¶ 17. Among the studies was a Draft Environmental Impact Study ("DEIS") required by the National Environmental Policy Act and a Section 4(f) Statement required by the Federal Transportation Act. The NPS participated in the environmental review process as a cooperating agency. Josephson Aff. ¶ 19. In March 1990, MDOT and WDOT, in conjunction with the Federal Highway Administration ("FHA"), issued a DEIS/Section 4(f) Statement for the Project. Benson Aff. ¶ 19. Following an extensive public comment period, public hearings, and the preparation of a draft Final Environmental Impact Statement ("FEIS"), an FEIS/Section 4(f) Statement was issued in April 1995. Id. at ¶ 21.
The FEIS identified a preferred alternative which required upgrading T.H. 36 for a new bridge approach; the construction of a new four-lane bridge over the Lower St. Croix south of Stillwater between Oak Park Heights, Minnesota and Houlton, Wisconsin; and the construction of a new bridge approach in Wisconsin ("Proposed Bridge" or "Project"). The Project would be a massive undertaking and would significantly impact the bed and banks of the river:
Eight of the 25 bridge piers would be constructed in the bed of the St. Croix River and five would be located in an adjacent wetland on the Minnesota side. Most of the piers would be located in deep water, where the bottom substrate is soft and flocculent, however, some would be located in shallow areas with sand and gravel substrates. To construct river piers, cofferdams would be built to dewater construction areas and either sheet piling would be driven into the river bed or caisson tubes would be inserted into drilled shafts ... Each pier, along with the cofferdams needed to construct the piers, would impact 5,145 square feet.
NPS Administrative Record ("A.R.") at 64. Additionally, construction activities would require extensive dredge and fill activity in the waterway:
Access to the river bank and water's edge would be required to build bridge piers on the bank and in the St. Croix River.... Therefore, two temporary barge docking areas are proposed to be constructed on the bed of the St. Croix River. Both would require localized dredging and filling; dredging to deepen the water sufficiently for barge access and filling to construct barge docks. One barge docking area would be adjacent to the work area on the Minnesota side of the river. Construction of this docking facility would impact a total of 2.1 acres of riverbed. About 1.5 acres of riverbed would be deepened by dredging and about 0.6 acres of riverbed would be converted to upland by filling. The filled area would be contained by a sheetpile bulkhead. A second barge docking area would be constructed under the proposed bridge on the Wisconsin side of the river. This docking area would impact about 1.5 acres of riverbed. About 0.75 acre of riverbed would be deepened by dredging, and about 0.75 acre of riverbed would be converted to upland. This filled area would also be contained by a sheetpile bulkhead.... The barge docks would be removed after bridge construction is completed.
Id. at 64-65 (internal citation omitted). Before the eight large piers may be placed directly in the river, MDOT must secure a "dredge and fill" permit from the COE pursuant to 33 U.S.C. § 1344. In November 1995, the FHA approved the preliminary plan for the Project, and the three primary construction contracts were scheduled to be let between November 1996 and November 1997. Benson Aff. ¶¶ 22, 25.
On June 25, 1996, Plain...
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