Valley Community Preservation Com'n v. Mineta
| Decision Date | 26 September 2002 |
| Docket Number | No. Civ.A. 02-1511 RBW.,Civ.A. 02-1511 RBW. |
| Citation | 231 F.Supp.2d 23 |
| Parties | VALLEY COMMUNITY PRESERVATION COMMISSION, et al., Plaintiffs, v. Norman MINETA, Secretary U.S. Department of Transportation, Defendants. |
| Court | U.S. District Court — District of Columbia |
Andrea Carol Ferster, Washington, DC, for plaintiffs.
Gail Orendorff, U.S. Department of Justice, Washington, DC, for defendants.
Plaintiffs, Valley Community Preservation Commission ("VCPC") and several named individuals,1 have instituted this action for declaratory and injunctive relief against defendants Norman Mineta, in his official capacity as the Secretary of the United States Department of Transportation, Mary Peters, in her official capacity as the Administrator of the Federal Highway Administration ("FHWA"), and Reuben Thomas, in his official capacity as the Division Administrator of the FHWA's New Mexico Division. This matter is before the Court on Plaintiffs' Application for a Temporary Restraining Order and Motion for Preliminary Injunction ( ) [# 2]. Defendants have also filed a Motion for Transfer of Venue ( ) [# 3], seeking to have this matter transferred to New Mexico. For the reasons set forth below, the plaintiffs' motion for injunctive relief is denied in part and deferred in part, and the defendants' motion to transfer this action to New Mexico is granted.
Plaintiff VCPC is "a nonprofit membership organization incorporated under the laws of New Mexico, for the purpose of encouraging the conservation and protection of land, water, historic and cultural resources within the Hondo River valley and Lincoln County, New Mexico ..." Compl. ¶ 10.2 Plaintiffs allege that the FHWA has failed to comply with Section 4(f) of the Department of Transportation Act ("Section 4(f)"), 23 U.S.C. § 138 (2000), 49 U.S.C. § 303 (2000) ("DTA"), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(c) (2000), prior to approving a major 37.5 mile highway project to reconstruct U.S. 70 from "a two-lane highway, [to] a continuous four-lane highway through the Hondo valley in Lincoln County, New Mexico, between [the communities of] Ruidoso Downs and Riverside ..." Compl. ¶ 1.3
When assessing whether to proceed with the current project, which is needed to address transportation problems in the larger area of the U.S. 70 corridor that is located between Roswell and Ruidoso Downs, New Mexico, three alternatives were considered, id. ¶ 27, one being a "no build" alternative. Id. ¶ 30. A document prepared by the New Mexico State Highway and Transportation Department ("NMSHTD") in September 1999, entitled "U.S. 70: Initial Corridor Study Report" (the "Corridor Report") determined that two of the bypass alternatives — one using U.S. 54, U.S. 380 and U.S. 246, and the second using U.S. 54, U.S. 349, and U.S. 246, "would partially achieve the need for the Project by providing an alternative route for commercial trucks and through traffic but" were not feasible because (1) trucks would continue to use U.S. 70, which travels through the Hondo River valley, as a short cut; (2) additional improvements would still be needed to address safety issues on U.S. 70, which would increase the project's costs; and (3) businesses located along U.S. 70 would be adversely affected if the traffic flow was reduced. Id. The Corridor Report recommended that decision-making concerning the transportation options for the corridor be separated into two segments: (1) a 17 mile segment between Riverside and Roswell ("the Plateau Project") and (2) a 37.5 mile segment between Ruidoso Downs and Riverside ("the Hondo Valley Project"). The Plateau Project was approved by FHWA in February 2001.4 Id. ¶ 28.
On May 4, 2001, the FHWA issued a Draft Environment Impact Statement ("DEIS") regarding the Hondo Valley project. This DEIS indicated that the project would be implemented through a "design-build" process, "whereby the design phase and the construction phase of the [p]roject are integrated under a single contract."5 Id. ¶ 29. The DEIS evaluated the two build alternatives, in addition to the "no build" alternative. Id. ¶ 30. The second alternative ("Alternative 2") proposed reconstruction of U.S. 70 as "an enhanced two-lane highway" and the third alternative ("Alternative 3") proposed "reconstruction of the existing highway as a continuous four-lane highway." Id. The DEIS indicated that Parsons Brinckerhoff ("PB"), an engineering firm, was its principal preparer. Id. ¶ 29. Plaintiffs allege that the DEIS did not evaluate any alternatives that would bypass the Hondo Valley on the basis that they had been rejected by the Corridor Report, and that it contained a "cursory" statement identifying the historic properties and archaeological sites, but deferred final determination of the project's effects, as well as mitigation procedures to address any such effects, as these determinations would be made by State Historic Preservation Officer ("SHPO") "in consultation with the public and other stakeholders pursuant to Section 106 of the National Historic Preservation Act (`NHPA'), 16 U.S.C. § 470f, which would be made part of the Final EIS." Id. ¶¶ 29, 31.
In September 2001, a Cultural Resource Report was prepared. Id. ¶ 32. This report was prepared following "a preliminary cultural resource investigation [that] was conducted to identify and assess historic properties and properties of traditional cultural importance that are located within the limits of the proposed project." Id. The Area of Potential Effect ("APE") of the project was identified as being "150 feet beyond the existing [highway's] right of way." Id. ¶ 32. On October 31, 2001, the FHWA forwarded the Cultural Resource Report to the New Mexico SHPO for review and comment. Id. ¶ 33. On November 15, 2001, the New Mexico SHPO reviewed and commented on the Cultural Resource Report, in which he provided a qualified concurrence with the report's recommendations. Id. ¶ 35.6
On January 29, 2002, the FHWA issued the Final Environmental Impact Statement ("FEIS"). Id. ¶ 39. "The [FEIS] reiterated and adopted the statements in the [Supplemental Draft Environmental Impact Statement] SDEIS." Id. ¶ 40. It concluded that the two build alternatives would not utilize Section 4(f) protected historic properties (citing the New Mexico's SHPO's qualified concurrence in the letter dated October 31, 2001). Id. ¶ 41.7 Then, on March 15, 2002, just four days after the comment deadline regarding the FEIS, the FHWA issued its Record of Decision ("ROD") for the project, which, although acknowledging that Alternative 2's enhanced two lane proposal was the "environmentally preferred alternative," selected Alternative 3 that will reconstruct the existing highway into a continuous four-lane highway, because of its "greater safety benefits." Id. ¶ 43. Plaintiffs contend that neither the DEIS, SDEIS, FEIS, or ROD "explain, quantify, or substantiate the purported greater safety benefit of Alternative [3]." Id. ¶ 44. Although identifying the Section 4(f) properties located within the project area, the ROD concluded that the project would not involve the use of any Section 4(f) properties. Id. ¶ 45. In addition, according to plaintiffs, although the ROD stated that the FHWA would develop a "programmatic agreement ... with groups interested in being a consulting party for Section 106 consultation" this consultation was limited to "determinations of effect on previously unidentified cultural resources and potential impacts to identified resources that are affected by design changes and construction activities." Id.8
On July 15, 2002, the Advisory Council, the New Mexico SHPO, FHWA and NMSHTD executed a Programmatic Agreement ("PA"), which invited several of the plaintiffs to participate as "consulting parties." Id. ¶ 48. The PA concedes that the design-build process that would be utilized for the project might result in "as-yet-unassessed" effects to historic properties during the final design development because aspects of the design had not been finalized. Id. The PA, which divides the project into six segments for purposes of design and construction, also establishes a process under which a "Cultural Resource Task Force," which will be composed of representatives of the signatories and concurring parties to the PA, will "consider the effects on identified National-Register-eligible and undetermined historic properties and develop mitigation plans for any adversely affected historic properties within the Project's Area of Potential Effect." Id. The PA also establishes a mechanism by which disagreements between the consulting parties concerning determinations made previously regarding the ineligibility of properties for listing in the National Register of Historic Places ("National Register") would be submitted to the Keeper of the National Register. Id. ¶ 49. Plaintiffs argue that the project will utilize the J. and P. Analla Ranches, and the Montano Ranches, which are owned by plaintiff Gerald Ford, and have origins dating back to the 1800's. Pls.' Mem. at 16. Thus, despite defendants' conclusion that modern construction and alterations to these ranches preclude their eligibility for the National Register, the Keeper of the National Register must review this determination.9 Id. In addition, plaintiffs challenge defendants' conclusion that the Rio Ruidoso Acequia and W.P.A. Schoolhouse do not qualify for the National Register. Defs.' Opp'n at 23.
On July 19, 2002, a design-build contract was awarded and executed for the project by the NMSHTD, authorizing the commencement of the final design and construction of the Project. Id. ¶ 50. Defendants were scheduled to commence work on the project's draining structures on September 23, 2002, and to install fencing within the project's right of way.10 Pls.' Memorandum of Points and Authorities in Support of...
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