SIERRA CLUB NORTH STAR CHAPTER v. LaHood

• Decision Date: 11 March 2010
• Docket Number: Civil No. 07-2593 (MJD/SRN).
• Citation: 693 F. Supp.2d 958
• Parties: SIERRA CLUB NORTH STAR CHAPTER, Plaintiff, v. Ray LaHOOD, Secretary of Transportation; Victor Mendez, Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis, Director of the National Park Service, Defendants, and Minnesota Department of Transportation and Wisconsin Department of Transportation, Intervenors.
• Court: U.S. District Court — District of Minnesota

693 F. Supp.2d 958

SIERRA CLUB NORTH STAR CHAPTER, Plaintiff, v. Ray LaHOOD, Secretary of Transportation; Victor Mendez, Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis, Director of the National Park Service, Defendants, and Minnesota Department of Transportation and Wisconsin Department of Transportation, Intervenors.

Civil No. 07-2593 (MJD/SRN).

United States District Court, D. Minnesota.

March 11, 2010.

Brian B. O'Neill, Elizabeth H. Schmiesing, Michelle E. Weinberg, and Richard A. Duncan, Faegre & Benson, LLP; and Michael C. Soules, Environmental Law & Policy Center, for Plaintiff.

Friedrich A.P. Siekert, Assistant United States Attorney, for Defendants Ray LaHood, Secretary of Transportation; Victor Mendez¹, Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis², Director of the National Park Service.

Patrick Whiting, Minnesota Attorney General's Office, for Defendant Minnesota Department of Transportation.

Richard Briles Moriarty, Wisconsin Department of Justice, for Wisconsin Department of Transportation.

MEMORANDUM OF LAW & ORDER

MICHAEL J. DAVIS, Chief District Judge.

I. INTRODUCTION

This matter is before the Court on Federal Defendants' Motion for Summary Judgment Docket No. 70, Motion for Summary Judgment of Intervenor Wisconsin Department of Transportation Docket No. 73, Plaintiff's Motion for Summary Judgment Docket No. 78, and Intervenor State of Minnesota Department of Transportation's Motion for Summary Judgment Docket No. 87. The Court heard oral argument on September 14, 2009.

II. SUMMARY OF THE COURT'S OPINION

The Court concludes that the National Park Service's 2005 Section 7 Evaluation was arbitrary and capricious because the National Park Service ignored its contrary position in the 1996 Section 7 Evaluation. The 2005 Section 7 Evaluation is vacated.

In 1996, the National Park Service concluded that a "massive" proposed four-lane bridge connecting TH 36 and STH 64 across the Lower St. Croix approximately one mile south of the Stillwater Lift Bridge would directly and adversely affect the Lower St. Croix's outstandingly remarkable scenic and recreational values with its "dramatic and disruptive" visual impact. This Section 7 Evaluation prevented federal authorization for the 1995 proposed bridge.

In 2005, the National Park Service performed a Section 7 Evaluation for a longer and taller proposed four-lane bridge connecting TH 36 and STH 64 across the Lower St. Croix approximately one mile south of the Stillwater Lift Bridge and again characterized the bridge's visual effect as "dramatic and disruptive." The National Park Service then inexplicably concluded that the new bridge would not directly and adversely affect the Lower St. Croix's outstandingly remarkable scenic and recreational values. In the 2005 Section 7 Evaluation, the National Park Service wholly failed to mention, let alone distinguish, the 1995 proposed bridge or the contrary 1996 Section 7 Evaluation.

While there are some differences between the two bridges, common sense provides that they are generally similar—in purpose, location, and physical characteristics. The new proposed bridge includes minimization measures, which the National Park Service concluded could not reduce the visual impact of the proposed bridge to an acceptable level. It also includes a handful of new mitigation measures aimed at offsetting the bridge's visual impact. However, the National Park Service fails to explain how combining a group of apparently ineffective measures, all of which relate to shoreline actions, can create an effective mitigation package, when, in 1996, it concluded that no available mitigation measures could significantly reduce the negative visual impact of a similar bridge. In 1996, the National Park Service concluded that the visual impacts of shoreline development were simply "not comparable" to the visual impacts of the bridge. Yet, in 2005, the National Park Service abruptly changed course and concluded that visual mitigation based solely on shoreline actions, when combined with minimization measures, could adequately offset the bridge's negative visual impact.

In the 1996 Section 7 Evaluation, the National Park Service's main concern for visual impact was based on the massiveness of a bridge spanning the Lower St. Croix in that basic location—a concern it concluded could not be effectively mitigated or minimized. In the 2005 Section 7 Evaluation, the National Park Service failed to explain why that concern has evaporated.

A federal agency may reevaluate previous determinations and change its mind, but the agency must explain its reasons for changing its position. Because the 2005 Section 7 Evaluation completely omitted reference to the 1995 proposed bridge and the 1996 Section 7 Evaluation, the Court must conclude that the National Park Service gave no thought to its change in position. The National Park Service's failure to acknowledge its previous contrary position, let alone explain why, in its opinion, a change is justified, is the hallmark of an arbitrary and capricious decision.

III. BACKGROUND

A. Statutory Framework

1. National Environmental Policy Act ("NEPA")

The NEPA is a procedural statute that requires federal agencies to prepare a detailed environmental impact statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An agency's EIS should "rigorously explore and objectively evaluate all reasonable alternatives," but need only "briefly discuss" the reasons why other alternatives were eliminated from more detailed study. 40 C.F.R. § 1502.14. Additionally, an EIS should identify the direct, indirect, and cumulative impacts of each alternative that is studied and consider mitigation measures to reduce any impacts on the environment. 40 C.F.R. §§ 1502.14, 1502.16, 1508.7.

"NEPA mandates that a federal agency take a hard look at the environmental consequences of a major federal action before taking that action." Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 533 (8th Cir. 2003) (citation and internal quotations omitted).

2. Section 4(f) of the Department of Transportation Act of 1966

Generally, under Section 4(f),

the Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance... only if—

(1) there is no prudent and feasible alternative to using that land;

and

(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

49 U.S.C. § 303(c).

Federal Highway Administration ("FHWA") regulations require that, for projects subject to the section 4(f) requirement, the 4(f) evaluation shall document why there is no "feasible and prudent" alternative and the planning measures taken to "minimize harm" to the property resulting from the use. 49 C.F.R. § 266.19(b)(4). Additionally, a final EIS or Finding of No Significant Impact ("FONSI") should document compliance with applicable requirements, including section 4(f). 23 C.F.R. § 771.133.

3. Wild and Scenic Rivers Act ("WSRA")

The WSRA was enacted in 1968 to preserve the free-flowing condition of certain rivers. 16 U.S.C. § 1271. The WSRA created a national Wild and Scenic Rivers System and developed a process so that other rivers with "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values, shall be preserved in free-flowing condition." Id. The WSRA identifies the rivers in the System, 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. §§ 1271-87.

Under Section 10(a), the administering agency must manage each designated river segment "in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values." 16 U.S.C. § 1281(a).

The upper stretch of the St. Croix River was one of the rivers originally included in the Wild and Scenic River System. 16 U.S.C. § 1274(a)(6). The Lower St. Croix was later added. 16 U.S.C. § 1274(a)(9).

Under the WSRA, rivers are classified as "wild," "scenic," or "recreational." 16 U.S.C. § 1273(b). Recreational rivers are the most developed category and are "those rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past." § 1273(b)(3). The uppermost 10.3 miles of the Lower St. Croix are scenic, while the downstream 42 miles of the Lower St. Croix, including the portion at issue here, are classified as recreational. (2005 Section 7 Evaluation, National Park Service Administrative Record ("NPS") 467.)

Section 7 of the WSRA provides that "no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration." 16 U.S.C. § 1278(a). Thus, Section 7 requires the National Park Service ("NPS") to evaluate whether a "water resources project ... would have a direct and adverse effect" on a river's values. When a water resources project is found to have a "direct and adverse effect" on a wild and scenic river, the project cannot be authorized or funded absent congressional intervention. Id.

4. Organic Act an...