Valley Community Preservation v. Mineta

• Decision Date: 23 June 2004
• Docket Number: No. 03-2016.,03-2016.
• Citation: 373 F.3d 1078
• Parties: VALLEY COMMUNITY PRESERVATION COMMISSION, a New Mexico non-profit corporation; Gerald Joe Ford; Royce Griggs; and Troy Omness, Plaintiffs-Appellants, v. Norman MINETA, Secretary, U.S. Department of Transportation; Mary Peters, Administrator, Federal Highway Administration; and Reuben Thomas, Division Administrator, Federal Highway Administration, New Mexico Division, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1078

373 F.3d 1078

VALLEY COMMUNITY PRESERVATION COMMISSION, a New Mexico non-profit corporation; Gerald Joe Ford; Royce Griggs; and Troy Omness, Plaintiffs-Appellants, v. Norman MINETA, Secretary, U.S. Department of Transportation; Mary Peters, Administrator, Federal Highway Administration; and Reuben Thomas, Division Administrator, Federal Highway Administration, New Mexico Division, Defendants-Appellees.

No. 03-2016.

United States Court of Appeals, Tenth Circuit.

June 23, 2004.

COPYRIGHT MATERIAL OMITTED

Andrea Carol Ferster (Heather Anderson, Steven Sugarman, and Kelly

Mack Cassels with her on the briefs), for Plaintiffs-Appellants.

Matthew J. Sanders (Thomas L. Sansonetti, David Sett, and Robert H. Oakley with him on the brief), for Defendants-Appellees.

Before TACHA, HENRY, and ANDERSON, Circuit Judges.

HENRY, Circuit Judge.

The Valley Community Preservation Commission and three individual plaintiffs ("Plaintiffs") appeal the district court's denial of their motion for preliminary injunction and injunction pending appeal challenging the Federal Highway Administration ("FHWA")'s approval of plans to reconstruct a 37.5 mile segment of Highway U.S. 70 in southeast New Mexico. The Plaintiffs argue that the FHWA violated Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), by failing to conduct the necessary reviews and investigations to determine whether the project will entail a "use" of historic properties protected under Section 4(f) prior to approving the project for construction. We exercise jurisdiction pursuant to 18 U.S.C. § 1292(a)(1) and affirm.

As plaintiffs seek an injunction, we review the district court's denial of relief for abuse of discretion, considering the well-established four-part standard for injunctive relief. We begin by summarizing the rather distended factual situation in this case. Next, we provide some background on the relevant statutes and regulations and the standard of review. Finally, we address the four preliminary injunction factors, giving particular emphasis to the likelihood of success on the merits.

I. FACTUAL BACKGROUND

Highway U.S. 70 runs though New Mexico from the southern portion of the Arizona/New Mexico state line to the near east-central New Mexico/Texas state line. The 37.5 mile segment of U.S. 70 at the center of this litigation connects Ruidoso Downs and Riverside in the Hondo River Valley. This stretch of highway has been designated the "Billy the Kid National Scenic Byway" by the FHWA and is known for its "rich historic associations and its exceptionally striking scenery, including historic homesteads, rural landscapes, roadside fruit stands, and a network of `acequias' (historic irrigation ditches) that are an integral part of the area's history and culture." Aplts' Br. at 1. Unfortunately, this stretch of U.S. 70 is also known for its alarmingly high accident rate: prior to the current expansion project, the New Mexico State Highway and Transportation Department ("NMSHTD") reported that this portion of highway had an accident rate "twice the state average for rural undivided highways" and a fatality rate "more than double the national average." Aples' Supl.App. vol. II, at 172 (Final Environmental Impact Statement).

In 1999, the NMSHTD prepared a report entitled "U.S. 70: Initial Corridor Study Report," which considered a number of alternatives to alleviate traffic problems and improve highway safety on U.S. 70. The NMSHTD's recommendations included a proposal to expand the 37.5 mile segment of U.S. 70 between Ruidoso Downs and Riverside, known as the "Hondo Valley Project."

The FHWA first addressed the potential impact of the Hondo Valley Project on historic and cultural resources in a Draft Environmental Impact Statement ("EIS"), published on May 4, 2001. The Draft EIS considered three alternatives to improve highway safety on U.S. 70: 1) a no-build alternative; 2) an enhanced two-lane alternative with "the addition of passing lanes ..., the addition of acceleration and deceleration lanes at major driveways ..., the addition of center turn lanes ..., and the addition of continuous, consistent-width shoulders," Aples' Supl.App. vol. I, at 36; and 3) a four-lane alternative in which the existing two-lane highway would be reconstructed as a continuous four-lane highway. Proposals to by-pass U.S. 70 through the creation of alternative routes were eliminated from further consideration after the FHWA determined that "the development of alternative routes would not substantially reduce the safety problems with the existing alignment of U.S. 70." Id. at 33.

Initial investigations established that the project would impact portions of eighteen acequias, seventeen archeological sites, and fifteen buildings. The Draft EIS recommended additional investigations for six of the archeological sites, but did not recommend further investigations of any of the buildings or acequias, concluding that the identified buildings "are either not sufficiently old to be considered eligible for the National Register of Historic Places, or they do not maintain sufficient integrity to convey their historic significance and are therefore not eligible." Id. at 100. The Draft EIS also concluded that "individual functioning acequias are not eligible for inclusion on the National Register as historic properties," id. at 99, and that "the project will retain the integrity of the Rio Hondo system," id. at 100, thus alleviating any Section 4(f) concerns related to the acequias.

Following the publication of the Draft EIS, the Parsons Brinckerhoff Archeology Group prepared a Cultural Resources Survey of the U.S. 70 corridor between Ruidoso Downs and Riverside at the request of the FHWA. The survey included an account of the properties in the corridor, whether each was potentially eligible for the National Register, and whether each would be affected by the Hondo Valley Project. The survey did not uncover any potentially eligible properties that would be affected by the project. The FHWA sought comments from the New Mexico State Historic Preservation Office ("SHPO") regarding the determinations in the Cultural Resources Survey. Based on the survey and consultations with the SHPO, the FHWA issued a Supplemental Draft EIS on November 15, 2001. The Supplemental Draft EIS evaluated seventeen buildings, structures, and landscapes that either are or may be eligible for the National Register and concluded that none would be affected by the project. The FHWA solicited additional comments from the SHPO and other agencies following the publication of the Supplemental Draft EIS, and Parsons Brinckerhoff prepared a Supplemental Cultural Resources Survey. The findings of that survey were included in the Final EIS, issued by the FHWA on January 29, 2002.

The Final EIS concluded that the Hondo Valley Project would not affect any Section 4(f)-protected properties or resources. The FHWA published this final determination in a Record of Decision ("ROD") on March 15, 2002, and the SHPO concurred in the FHWA's finding that no 4(f)-protected properties would be used by the construction project. The ROD approved Alternative 3, the four-lane alternative, for construction, despite acknowledging that the enhanced two-lane alternative was the environmentally-preferred option, "[b]ecause of the greater safety benefits of Alternative 3 and consistency with adopted State policy to provide four lanes on U.S. 70." Aplts' App. vol. II, at 532(ROD).

The FHWA also voluntarily committed in the ROD "to develop[ing] a programmatic agreement with SHPO, the National Trust, and other groups interested in being a consulting party with respect to implementation of the project." Id. at 538. The FHWA, the NMSHTD, the Advisory Council on Historic Preservation,¹ and the New Mexico SHPO signed a Programmatic Agreement on July 12, 2002; concurring parties included the National Trust for Historic Preservation, the New Mexico Heritage Preservation Alliance, the Mescalero Apache Tribe, and St. Anne's Episcopal Church. The Valley Community Preservation Commission and Gerald Ford, both plaintiffs in this case, were given the opportunity to participate in the Programmatic Agreement as concurring parties, but declined to do so.

On September 4, 2002, Plaintiffs applied for a temporary restraining order and preliminary injunction in the United States District Court for the District of Columbia to halt construction on the Hondo Valley Project. They argued that the widening of the highway will "require massive cuts into the slopes and huge fill slopes supported by retaining walls" and that "[a]s a result, the Project will have unavoidable adverse impacts on historic properties." Aplts' Br. at 2. Furthermore, Plaintiffs alleged that the FHWA violated Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, by "failing to undertake investigations necessary to identify the Project's foreseeable impacts to historic properties prior to the issuance of the Record of Decision approving the Project for construction." Id. at 3. The District Court for the District of Columbia refused to enter a TRO and granted the FHWA's motion to transfer the case to the District of New Mexico. See Valley Cmty. Pres. Comm'n v. Mineta, 231 F.Supp.2d 23 (D.D.C.2002) (Valley Cmty. I). The District Court for the District of New Mexico denied the Plaintiffs' motion for preliminary injunction and injunction pending appeal, adopting and supplementing the opinion of the D.C. District Court and finding that Plaintiffs did not have a likelihood of success on the merits. See Valley Cmty. Pres. Comm'n v. Mineta, 246 F.Supp.2d 1163 (D.N.M.2002) (Valley Cmty. II). Construction on the Hondo Valley Project has been ongoing since September 26, 2002.

II. LEGAL BACKGROUND

A. Standard of Review

1. Preliminary Injunction

The standard of review in this case is somewhat bifurcated. First, we review district court's denial of a motion...