Utahns for Better Transp. v. U.S. Dept. of Transp.
| Decision Date | 04 February 2003 |
| Docket Number | No. 01-4216.,No. 01-4220.,No. 01-4217.,01-4216.,01-4217.,01-4220. |
| Citation | 319 F.3d 1207 |
| Parties | UTAHNS FOR BETTER TRANSPORTATION; Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah; Paul C. Hunter; Rosemarie M. Hunter, Plaintiffs, and Sierra Club, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees. State of Utah; Utah Department of Transportation, Intervenors. Utahns for Better Transportation, Plaintiff-Appellant, and Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah; Sierra Club; Paul C. Hunter; Rosemarie M. Hunter, Plaintiffs, v. United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Norman Mineta, Secretary of the United States Department of Transportation; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees. State of Utah; Utah Department of Transportation Intervenor. Utahns for Better Transportation; Sierra Club; Paul C. Hunter; Rosemarie M. Hunter, Plaintiffs, and Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah, Plaintiff-Appellant, v. United States Department of Transportation; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees, State of Utah; Utah Department of Transportation, Intervenors. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Craig D. Galli, Michael J. Malmquist, and H. Douglas Owens of Parsons Behle & Latimer, Salt Lake City, Utah, and Robert W. Adler, Professor of Law, University of Utah College of Law, for Plaintiff-Appellant Utahns for Better Transportation; Steven W. Dougherty of Anderson & Karrenberg, Salt Lake City, Utah, for Plaintiff-Appellant Ross C. "Rocky" Anderson; Patrick Gallagher, Alex Levinson and Joanne Spalding, San Francisco, California, and Joro Walker of Land and Water Fund of the Rockies, Salt Lake City, Utah, for Plaintiff-Appellant Sierra Club.
Thomas A. Mitchell, Assistant Attorney General, State of Utah, and Margaret N. Strand of Venable, Baetjer, Howard & Civiletti, LLP, Washington, D. C., for Appellee State of Utah.
Stephanie Tai, Attorney, Department of Justice, Washington D.C., April Marchese and Edward Kussy, Federal Highway Administration, Washington D.C.; and Dinah Bear, Council on Environmental Quality, Washington, D.C., Of Counsel, for the Federal Appellees.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.
ORDER ON PETITION OF THE UNITED STATES FOR LIMITED PANEL REHEARING 305 F.3d 1152
The Federal Appellees have petitioned for limited panel rehearing in Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir.2002). In particular, they urge the court to revise part I.P of the opinion, 305 F.3d at 1184-85, holding "that the COE and the FHWA erred to the extent they allowed UDOT or contractors hired by UDOT to prepare the FEIS." 305 F.3d at 1186. Upon consideration thereof,
1. Although the Legacy Parkway is not federally funded, the Federal Appellees argue that the FHWA (in its own right) may rely upon the UDOT or its contractors to prepare the FEIS pursuant to the exception in 42 U.S.C. § 4332(2)(D). They argue that (1) with respect to the FHWA, the federal action requiring NEPA compliance is FHWA approval of interstate access for the Legacy Parkway, 23 U.S.C. § 111(a), and that approval relates back to federally funded interstate projects, and (2) the approval process for interstate access is funded under a program of grants to the states, 23 U.S.C. § 104(a). They submit that the regulations recognize that a state applicant may prepare an EIS, 23 C.F.R. § 771.109(c)(1), and may select a consultant to assist, 23 C.F.R. § 771.123(d). Even if the exception did not apply, they further argue that nothing prevents the UDOT from being a "joint lead agency" with the FHWA under applicable CEQ and FHWA regulations. 40 C.F.R. § 1501.5(b). Finally, the Federal Agencies argue that Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir.1983) and AWARE v. Colo. Dep't of Transp., 153 F.3d 1122 (10th Cir.1998), should not have been relied upon by the court.
2. Briefly, the Appellants contend that the COE as a permitting agency (rather than the FHWA) cannot rely upon an EIS prepared by UDOT because the exception does not apply given the rationale of Sierra Club and because the EIS is a product of inadequate federal oversight. They point out that the federal action of primary importance for NEPA purposes is the COE decision on the § 404 permit, not the FHWA approval of interstate access, or the process resulting in such...
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