KATHRYN H. VRATIL, District Judge.
The Prairie Band Pottawatomie Nation, Sierra Club, Wetlands Preservation Organization, Jayhawk Audubon Society, Save the Wakarusa Wetlands, Inc., Kansas University Environs and EcoJustice bring suit against the Federal Highway Administration ("FHWA") and the Kansas Department of Transportation ("KDOT"). Plaintiffs challenge the Record of Decision in which the FHWA selected a particular route—the 32B Alternative—for the South Lawrence Trafficway, a proposed highway project in Lawrence, Kansas. Plaintiffs seek judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06 ("APA"), and ask the Court to reverse and remand the FHWA decision based on alleged violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321-47 ("NEPA"), Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303 ("Section 4(f)") and the National Historic Preservation Act, 16 U.S.C. § 470 ("NHPA"). The Court previously dismissed plaintiffs' claims under the Clean Water Act, 33 U.S.C. §§ 1251-1387, and the American Indian Religious Freedom Act, 42 U.S.C. § 1996. See Memorandum And Order (Doc. # 32) filed November 18, 2009, 2009 WL 4016106. This matter is before the Court on Plaintiffs' Amended Opening Brief (Doc. # 48) filed March 23, 2010, which the Court construes as a motion for judicial review, and the Federal Defendant's Motion To Strike Exhibits With Memorandum In Support Included (Doc. #53) filed May 28, 2010. For the reasons set forth below, albeit with misgivings, the Court affirms the FHWA Record of Decision.
Federally funded highway projects, such as the South Lawrence Trafficway ("SLT"), must comply with a number of federal environmental protection and historic preservation laws. These include NEPA, the NHPA and Section 4(f) of the Department of Transportation Act. Plaintiffs bring claims under each of these three statutes. The relevant statutory provisions,
Among other things, Congress enacted NEPA to "encourage productive and enjoyable harmony between man and his environment" and "to promote efforts which will prevent or eliminate damage to the environment." 42 U.S.C. § 4321. Accordingly, NEPA requires federal agencies to assess potential environmental consequences of proposed federal action. Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 690 (10th Cir.2010). NEPA does not mandate that agencies achieve particular substantive environmental results. Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Instead it focuses the attention of the government and the public on the environmental effects of proposed agency action. It does so by imposing "action-forcing" procedural requirements that require agencies to take a "hard look" at the environmental impact of certain agency actions. Morris, 598 F.3d at 690; see also 40 C.F.R. §§ 1500.3, 1502.1. NEPA and its implementing regulations require agencies to produce a detailed environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i); see also 40 C.F.R. Part 1502.
NEPA regulations also require the FHWA to "determine and analyze expected traffic noise impacts and alternative noise abatement measures to mitigate these impacts." 23 C.F.R. § 772.9(a). The traffic noise analysis must (1) identify existing activities and lands that may be affected by noise from the highway; (2) predict traffic noise levels; (3) determine existing noise levels; (4) determine traffic noise impacts (i.e., impacts that occur when predicted traffic noise levels approach or exceed the noise abatement criteria or substantially exceed the existing noise levels); and (5) examine and evaluate alternative noise abatement measures for reducing or eliminating noise impacts. Id. NEPA regulations set noise abatement criteria ("NAC") for five types of land and land use activities, each of which is assigned a noise level which, if approached or exceeded, requires the FHWA to consider noise mitigation measures such as constructing noise barriers or acquiring property to create a "buffer zone." Id. §§ 772.5(g), 772.11(c), 772.13(c); 23 C.F.R. Part 772, Table 1.
Section 106 of the NHPA and its implementing regulations require the head
Unlike NEPA and the NHPA, Section 4(f) of the Department of Transportation Act imposes substantive limits on the discretion of the Secretary of Transportation to approve a federally-funded transportation project that uses "publicly owned land of ... an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site)." 49 U.S.C. § 303(c).
The Court reviews the FHWA's Record of Decision as a final agency action under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 702, 704; see Valley Cmty. Pres. Comm'n, 373 F.3d at 1084-85; Davis, 302 F.3d at 1111.
The following facts are taken from the administrative record, which consists of nearly 8,000 pages and is summarized in the parties' briefs. The FHWA brief, Doc. # 55 at 5-19, contains an excellent summary of the facts leading up to this dispute. The Court incorporates it by reference and assumes that the reader is familiar with its contents.
A highway bypass around the City of Lawrence, Kansas has been debated since the 1960s. Final Environmental Impact Statement ("FEIS"), Admin. Record ("AR"), Vol. 2 at 551. A western segment was completed in the 1990s, but for a variety of reasons, the eastern segment has remained in limbo. See FEIS, AR, Vol. 2 at 552. The current proposal for the SLT has a long and contentious history. 2025 Roadway System Plan, AR, Vol. 1 at 400; see also Ross v. Fed. Highway Admin., 162 F.3d 1046 (10th Cir.1998). It generally calls for a seven-mile, four-lane divided freeway along the southern edge of the City on an alignment now known as the 32nd Street Alignment B Alternative. Id. at 553. The SLT would connect the existing K-10 Highway/US-59 Highway (Iowa Street) interchange in southwest Lawrence to K-10 Highway on the eastern edge of Lawrence in eastern Douglas County, Kansas. Id.
At present, K-10 Highway is routed through Lawrence on heavily congested city streets. See id. at 554-55. This route creates unacceptable and unsafe driving conditions. See id. at 553-55. These conditions are predicted to worsen because the streets cannot handle the traffic volume and have poor point-of-access control. See id. The SLT is therefore necessary "to provide a safe, efficient, environmentally sound and cost-effective transportation facility for users of K-10 Highway and the surrounding state highway system and, to the extent possible, to alleviate congestion on Lawrence city streets." FEIS, AR, Vol. 2 at 553-54.
Construction of the proposed SLT would involve dredging and placing fill material in U.S. waters. KDOT was therefore required to obtain a permit from the Corps of Engineers ("Corps") under Section 404 of the Clean Water Act. See FEIS, AR, Vol. 2 at 525; see also 33 U.S.C. § 1344.
In May of 2001, KDOT provided the Corps of Engineers with written notification that it was evaluating an SLT proposal. FEIS, AR, Vol. 2 at 552. The letter noted that KDOT would need a Section 404 permit for the project and asked that the Corps' Kansas City District become the lead agency for purposes of ensuring compliance with NEPA and the NHPA and determining whether to grant the KDOT application. Id. at 552-53.
The Corps identified 27 alternatives. It then narrowed the alternatives to 12, each of which it discussed in detail in its DEIS and FEIS. FEIS, AR, Vol. 2 at 2538. The 12 reasonable alternatives included two "no-build" alternatives: (1) a "no-action" alternative and (2) an enhanced public transit alternative. They also included ten "build" alternatives: (1) an upgrade to the existing K-10 highway link; (2) the 31st Street Alternative; (3) the 32nd Street Alternative; (4) the 35th Street Alternative; (5) the 38th Street Alternative; (6) the 42nd Street Alternative; (7) a far east and south corridor; (8) a far south corridor; (9) an eastern bypass; and (10) a tunnel. See FEIS, AR, Vol. 2 at 567-69. Using a five-step screening process, the Corps developed and evaluated the 12 alternatives. Id. In step one, the Corps developed 13 reasonable alternative alignments from six of the ten alternatives—the no-build alternative and the 31st Street, 32nd Street, 35th Street, 38th Street and 42nd Street corridors. The Corps selected each alternative based on its ability to meet the purpose and need of the project and attract sufficient traffic from the existing K-10 Highway city route, the cost of construction, and maintenance and the associated environmental impacts. Id. at 569.
The Corps commissioned URS, a contractor, to complete a traffic noise study, as required by NEPA regulations. See FEIS, AR, Vol. 2 at 893. URS performed the noise study in accordance with federal regulations, and the Corps included it in its FEIS. See id. 662, 890, 892. Using FHWA Traffic Noise Model software, URS measured existing noise levels in the affected area and estimated future noise levels for the no-build, 32B and 42A alternatives. Id. at 893, 895. The traffic noise study did not compare existing noise levels to predicted noise levels, id. at 894, but did include "increase over existing" noise-level data in tables which it attached to the report. Id. at 902-05. URS tentatively concluded that noise barriers would successfully mitigate the noise impacts of the 32B Alternative. Id. at 896. Based on the study data, the Corps concluded that the 42A Alternative would have greater noise impacts on the Haskell Agricultural Farm Property, which is at the center of this litigation, than the 32B Alternative after mitigation. Id. at 536-37, 602.
In June of 2003, after the Corps had issued the FEIS, the Prairie Band Pottawatomie Nation ("PBPN") proposed an additional alternative alignment for the 42nd Street corridor which it called the 42nd Street Alignment C Alternative ("42C Alternative"). The PBPN proposed the 42C Alternative because it thought that 42A required an unnecessarily long eastern bridge across the Wakarusa River. ROD, AR, Vol. 3 at 1846, 2511. It asserted that the 42C Alignment would reduce by $19 million the bridge costs of the 42A Alternative by replacing the one long eastern bridge with three shorter bridges. Id.
In December of 2003, the Corps issued a Record of Decision ("Corps ROD") that identified the 32B Alternative as the "selected alternative." Corps ROD, AR, Vol. 3 at 1794, 1799. The Corps selected 32B over 42A based on six factors: (1) safety, (2) efficiency, (3) land use impact, (4) direct wetland impact, (5) impact on cultural and historic sites and (6) cost. Id. at 1803; FEIS, AR, Vol. 2 at 593-98. After considering the cumulative direct and indirect impacts of each alternative, it concluded that the 32B Alternative was a better alternative than the 42A Alternative on four of the six factors: safety, efficiency, land use impact and cost. FEIS, AR, Vol. 2 at 598. With respect to each of these factors the Corps considered the mitigation measures included in each alternative. FEIS, AR, Vol. 2 at 600-01, 606. It noted that the 32B Alternative included significant mitigation measures to offset the natural, social and cultural impacts of the plan, id.,
Pursuant to Section 106 of the NHPA, the Corps was required to take into account the effects of the SLT on historic properties.
The Haskell Institute Historic District ("HIHD" or "District"), which is the site of the former Haskell Institute, is at the center of this litigation. It consists of the southern half of the present-day Haskell Indian Nations University ("HINU") campus, twelve discontiguous structures on the northern half of the HINU campus that constitute a National Historic Landmark, and all of the Baker Wetlands. FEIS, AR, Vol. 2 at 659. In its EIS, the Corps concluded that the HIHD was eligible for listing as a Historic District on the National Register. Id. At least in part, it reached this conclusion because it misinterpreted the Keeper's determination of whether the District was National Register-eligible. See id. At 659-60. After the Corps issued its FEIS the Keeper clarified its position and the Corps' ROD corrected its National Register eligibility determination. ROD, AR, Vol. 3 at 1813. Consistent with the Keeper's finding, the Corps' ROD concluded that the HIHD as a whole was not National Register-eligible, but that portions of it were individually eligible: the Haskell Agricultural Farm Property ("Haskell Farm" or "HAFP"), which includes the Upper Fields portion of the HINU campus (located north of 31st Street),
In 2005, Congress appropriated federal funds for the SLT project, which required the FHWA to oversee the project and ensure that it complied with federal law. See AR Vol. 3 at 3368. Pursuant to Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, the FHWA published in the Federal Register a Notice of Intent to adopt the Corps' FEIS, to prepare a draft and final Section 4(f) evaluation for the project and to issue a Record of Decision ("FHWA ROD"). Id. at 386-87.
The FHWA adopted the Corps of Engineers' screening process and focused its analysis on three finalist alternatives: 32B and two avoidance alternatives, no-action and 42A. Final Section 4(f) Evaluation, AR, Vol. 10 at 6855-58. The FHWA evaluated the 32B and 42A alternatives based on three general criteria: (1) direct impacts to Section 4(f) properties, (2) cumulative and indirect impacts to Section 4(f) properties and (3) other environmental impacts. Id. at 6863-69. It also considered the mitigation measures associated with the 32B and 42A Alternatives. Id. at 6870-78.
The FHWA concluded that the no-action alternative would have no direct impact on Section 4(f)-protected properties. Id. at 6866. Leaving the K-10 highway connection to Lawrence city streets would worsen traffic conditions on K-10 Highway and continue to degrade the human environment by increasing traffic congestion, high accident rates, noise and other issues. Id. The FHWA therefore eliminated the no-action alternative, which included a comprehensive regional public transit system, because it did not meet the purpose and need for the project. Id.
The FHWA concluded that the 32B Alternative would have a direct adverse impact on the Haskell Farm because it would cross farm property in the general vicinity of various historic structures, including dikes, canals, roads, bridges and water control gates, and would disrupt the farm's open landscape, id. at 6863, and fill material from the construction would be placed on roughly 48 acres of farm fields (now wetlands). The FHWA also concluded that the 32B Alternative would have minor cumulative and indirect impacts to the Haskell Farm by diminishing historic open views, though these views are already diminished by second growth trees on the southern half of the HINU campus and a line of trees along the east-west dike at the northern edge of the Baker Wetlands. Id. at 6863. It determined that the 32B Alternative would have additional environmental impacts because four residences and four business would have to be relocated; 11 farms would have to be severed; 53 acres of wetlands would be destroyed; six streams would be crossed; 1.2 acres of riparian woodlands and 9.6 acres of upland woods would be affected; and minimal visual
The FHWA concluded that the 42A Alternative would have no direct adverse impact on the Haskell Farm and would have no direct adverse impact on the William Meairs Farmstead Property after vegetative screening mitigation. Id. at 6866-67. Therefore, the FHWA considered 42A an avoidance alternative. Id. at 6867. It did, however, find that the 42A Alternative would have greater long-term cumulative adverse impacts to the Haskell Farm than the 32B Alternative as a result of increased traffic along roads adjacent to the Farm (Louisiana Street, Haskell Avenue and 31st Street), reasonably foreseeable development immediately adjacent to the Haskell Farm and uncertain future financial stability of a portion of the Baker Wetlands if the 32B Alternative were not selected. Id. In addition, the 42A Alternative would cause three residential and one business relocation, twelve farm severances, a 1.7-mile-long footprint in the Wakarusa River floodplain, two Wakarusa River crossings, impacts on 5.2 acres of riparian woodland, roughly three acres of wetland impacts outside the Baker Wetlands, eight river crossings and significant noise impacts. Id. at 6867-69. Though 31st Street would remain (with its associated visual impact), and the 42A bridge would be visible from the Baker Wetlands, the 42A Alternative would have no visual impact on the HINU campus. Id. at 6869. It would have a significant visual impact on the rural landscape south of the Wakarusa River. Id. The FHWA considered certain mitigation elements with respect to the 42A Alternative. These included a vegetative screen in front of the William Meairs Farmstead property and creating 80 acres of new wetlands to offset the destruction of 4.45 acres of wetlands. Id. at 6866, 6869.
The FHWA selected the 32B Alternative over the 42A Alternative based on seven considerations: (1) 32B would better meet the purpose and need of the project, (2) 42A would cost more than 32B, (3) 42A would have greater impact on the Wakarusa floodplain and floodway, (4) 42A would accelerate planned and unplanned development south of the Wakarusa River, (5) 42A would have greater secondary and cumulative impact than 32B, (6) 42A would have greater environmental impact than 32B, and (7) 32B would provide a net benefit to the Section 4(f) properties through its mitigation package. Id. at 6891-99.
The purpose and need of the SLT project is to provide a safe, efficient, environmentally sound and cost-effective transportation facility for K-10 Highway users, and, to the extent possible, to alleviate congestion on Lawrence streets. The FHWA concluded that the 32B Alternative meets this purpose and need better than the 42A Alternative because it diverts more traffic from Lawrence city streets, improves safety on those streets and is nearly one mile shorter than 42A. The 32B Alternative would divert as many as 3,634 more cars per day from city streets and result in 12 fewer accidents per year by 2025.
The FHWA estimated that the 42A Alternative would cost roughly $19 million more than the 32B Alternative due to higher roadway and bridge construction costs. Id. at 6892. This estimate includes mitigation costs of $22.1 million, road construction, bridge construction, utility relocation, preliminary engineering, construction engineering and right of way and displacement costs. Id. Although the 32B Alternative has higher mitigation and road construction costs, bridge construction for the 42A Alternative would cost nearly $50 million more than for 32B. Id. It is unclear how the FHWA determined the $22.1 million cost for the 32B mitigation plan. Its individual mitigation cost tables show that 32B mitigation would cost roughly $200,000 more than its general estimate, and these tables do not account for costs associated with acquiring and converting the 317 acres of new wetlands, moving 31st Street, building the 10,000 square foot Wetland Center, constructing hiking and biking trails, and creating parking and camping areas. See Doc. #48 at 20, 21 n. 80, 55-56; FHWA ROD, AR, Vol. 11 at 8023, 8027-35.
Both the 32B and the 42A alternative affect the Wakarusa floodplain, but the FHWA found that 32B would impact the floodplain less. Id. The 32B Alternative would be located on the northern edge of the floodplain with two miles of the roadway located in the floodplain; the 42A Alternative would pass through more than two miles of floodplain and cross the Wakarusa River in three places. Id. The FHWA relied on the Corps of Engineers' conclusion that the 42 Alternative would "have a significantly greater impact on the river and its riparian corridor," id., and disagreed with Department of Interior Comments that the 42A Alternative would have "less impacts to wetlands, less floodplain impacts, and less total stream involvement (greater number of crossings but fewer total linear feet of involvement)," Draft Section 4(f) Evaluation, AR, Vol. 9 at 6544.
The FHWA determined that the 42A Alternative would accelerate planned and unplanned development south of the Wakarusa River, including increased demand for street, sewer, water and other public utility infrastructure, and a new "commercial node" that would attract "a more mixed and dense urban population" than currently planned for that area. Final Section 4(f) Evaluation, AR, Vol. 10 at 6893, 6895. It also determined that the 32B Alternative is more consistent with the city's plans for long-term growth (Horizon 2020) and transportation (Transportation 2025). Id. at 6895. The FHWA projected that accelerated growth south of
The FHWA concluded that although the 42A Alternative would have no direct impact on the Haskell Farm, it would cause greater long-term secondary and cumulative adverse effects than the 32B Alternative. Specifically, the 42A Alternative would lead to a greater increase in traffic on the streets surrounding the Haskell Farm. See id. at 6895-96. The FHWA determined that by 2025, 700 additional vehicles per day would travel on the roads surrounding the Haskell Farm. See Table 6, Final Section 4(f) Evaluation, AR, Vol. 10 at 6896. In addition, even though the land adjacent to the Baker Wetlands is located in a 100-year floodplain, it could be developed under 42A. Final Section 4(f) Evaluation, AR, Vol. 10 at 6896. According to the FHWA, this development would diminish or eliminate the rural character of the land surrounding the Haskell Farm and bring with it increased traffic, noise, light, urban debris and visual disturbances. Id. The FHWA also concluded that in 2025, taking into consideration the 32B mitigation plan, noise levels under the 32B Alternative would be less than under the 42A Alternative (though the noise walls may create a visual disturbance until the vegetative screen grows to a height sufficient to block the view of the walls). Id. at 6896-97.
The FHWA's Final Section 4(f) Evaluation stated that the 42A Alternative would impact 5.2 acres of riparian woodlands and 18.2 acres of upland woods, whereas the 32B Alternative would impact 1.2 acres of riparian woodlands and 9.6 acres of upland woods. Id. In addition, it found that the 42A Alternative would be situated along the area where the Oregon and California National Historic Trail was located, along with Blanton's Crossing. Id. The National Park Service has identified Blanton's Crossing as a "High Potential Site" for its importance as a trail resource and its role in western migration and "Bleeding Kansas." Id. The 32B Alternative, the FHWA found, would avoid the William Meairs Farmstead and the area south of the Wakarusa River. Id.
The FHWA determined that the mitigation measures associated with the 32B Alternative would provide a net benefit to the Haskell Farm that the 42A Alternative would not provide. Id. at 6898. Based on this analysis, the FHWA's Final Section 4(f) Evaluation concluded that when all factors are taken together, rather than individually, the 42A Alternative would create adverse impacts that present unique problems, and that it therefore is not a feasible and prudent alternative to 32B. Id. at 6899. The FHWA further concluded that its analysis included all possible planning to minimize harm to the Haskell Farm. Id. In its ROD issued May 2, 2008, based on the Corps' FEIS, the FHWA's Section 4(f) Evaluation and careful consideration of all social, economic and environmental factors, as well as public input, the FHWA adopted 32B as the selected alternative for the SLT project. FHWA ROD, AR, Vol. 10 at 7758.
Plaintiffs advance several challenges to the FHWA's ROD: (1) the FHWA violated NEPA by eliminating an early version of the 42C Alternative during the scoping process, without explanation, by refusing
Plaintiffs assert that the FHWA violated NEPA by eliminating an early version of the 42C Alternative during the scoping process, without explanation, by refusing to prepare an SEIS that included the 42C Alternative and by failing to measure existing noise levels and traffic noise impacts in its noise study. Doc. #48 at 56-60; Doc. #62 at 7-9, 17. NEPA requires that federal agencies assess potential environmental consequences of proposed federal action by imposing various "action-forcing" procedural requirements, including the preparation of draft, final and, in some cases, supplemental environmental impact statements. 42 U.S.C. §§ 4321, 4332(2)(C); 40 C.F.R. §§ 1500.3, 1502.1. NEPA does not "mandat[e] that agencies achieve particular substantive environmental results," Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), but simply imposes procedural requirements that force agencies to take a "hard look" at the environmental impact of certain agency actions, Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 690 (10th Cir.2010). See also 40 C.F.R. §§ 1500.3, 1502.1. Accordingly, an agency must prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i); see also 40 C.F.R. Part 1502. The EIS must "[r]igorously explore and objectively evaluate all reasonable alternatives," including "the alternative of no action," and must "briefly discuss" alternatives that were eliminated from detailed study. 40 C.F.R. § 1502.14(a)-(c). Moreover, an FEIS must be supplemented if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Id. § 1502.10; 23 C.F.R. § 771.130.
In addition, NEPA regulations require that the FHWA "determine and analyze expected traffic noise impacts and alternative noise abatement measures to mitigate these impacts." 23 C.F.R. § 772.9(a). The traffic noise analysis must (1) identify existing activities and lands that may be affected by noise from the highway; (2) predict traffic noise levels; (3) determine existing noise levels; (4) determine traffic noise impacts defined as impacts that occur when predicted traffic noise levels approach or exceed the noise abatement criteria or substantially exceed the existing noise levels; (5) examine and evaluate alternative noise abatement measures for reducing or eliminating noise impacts. Id. § 772.9(b). NEPA regulations also set noise abatement criteria ("NAC") for five types of land and land use activities. 23 C.F.R. Part 772, Table 1. Each land use or activity is assigned a noise level, which if approached or exceeded, requires the FHWA to consider noise mitigation measures such as constructing noise barriers or acquiring property to create a "buffer zone." 23 C.F.R. § § 772.5, 772.9, 772.13.
Plaintiffs assert that the FHWA violated 40 C.F.R. § 1502.14(a), a Council on Environmental Quality ("CEQ") regulation, which requires an agency to briefly discuss its reasons for eliminating an alternative from detailed study in an EIS. Doc. #48 at 56. Plaintiffs specifically allege that the FHWA violated the regulation by adopting the Corps' FEIS, which did not explain why the Corps eliminated a conceptual 42nd Street alignment that was similar to plaintiffs' proposed 42C Alternative. Id. The Corps admitted that it considered a conceptual 42nd Street alignment similar to plaintiffs' 42C Alternative, Corps ROD, AR, Vol. 3 at 2541, and that it did not discuss the alignment in its FEIS, Doc. #55 at 23. The Corps stated, however, that it rejected the alignment early in the process because other 42nd Street alignments provided less curvature and were safer, more desirable alternatives. Id. Essentially, the FHWA argues that the conceptual 42nd Street alignment was not a reasonable alternative, and therefore had no duty to discuss it in the EIS before eliminating it. See Doc. #55 at 23.
The "heart of the environmental impact statement" is an agency's consideration, rigorous exploration and objective evaluation of "all reasonable alternatives." 40 C.F.R. § 1502.14(a). This requires the agency to "briefly discuss" its reasons for eliminating alternatives from detailed study. Id. NEPA does not, however, "require agencies to analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or . . . impractical or ineffective." Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1040 (10th Cir.2001) (quoting Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999)) (internal quotation marks and citations omitted). The Court applies a "rule of reason" to determine whether claimed deficiencies in an FEIS are significant enough to undermine NEPA's purpose of informed decision making. See Fuel Safe Wash. v. Fed. Energy Regulatory Comm'n, 389 F.3d 1313, 1323 (10th Cir.2004); Ass'ns Working for Aurora's Residential Env't v. Colo. Dep't of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998). In other words, if the FHWA reasonably and in good faith concluded that the conceptual 42nd Street alignment was too impractical or ineffective with respect to the project's purpose and need, it did not violate NEPA by eliminating the alignment without explanation. The Court may not substitute its judgment for that of the agency, but may only determine whether the agency has followed the necessary procedures. Ass'ns Working for Aurora's Residential Env't, 153 F.3d at 1130.
The Corps considered the conceptual 42nd Street alignment, and 26 others, during its initial review phase. FEIS, AR, Vol. 2 at 2538. During the scoping process, the Corps whittled down the number of alternative alignments from 27 to 12. Id. The Corps' DEIS and FEIS subjected the 12 alignments to additional scrutiny. Id. The Corps initially evaluated the 27 alignments based on KDOT's requirements for a 75-mile-per-hour design speed, impacts to existing roads, safety concerns, route efficiency, construction and maintenance costs, home displacements, floodway
Plaintiffs assert that the FHWA abused its discretion under NEPA by refusing to prepare an SEIS that included the PBPN's proposed 42C Alternative because the substantially lower costs associated with 42C constituted "significant new circumstances or information relevant to environmental concerns and bearing upon the proposed action or its impacts" under 40 C.F.R. § 1502.9(c)(1)(ii). Doc. #48 at 56-57; Doc. #62 at 17. Defendants assert that the FHWA's decision not to supplement the Corps' FEIS to address the PBPN's proposed 42C Alternative was the result of a thorough evaluation of the 42C Alternative and therefore was not arbitrary or capricious. Doc. #55 at 26-29.
An agency is required to prepare an SEIS if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 23 C.F.R. § 771.130(a)(2); 40 C.F.R. § 1502.9(c)(1)(ii). An SEIS is not required "every time new information comes to light." Marsh, 490 U.S. at 373, 109 S.Ct. 1851. The Court reviews the FHWA's decision under the arbitrary and capricious standard. Marsh, 490 U.S. at 377, 109 S.Ct. 1851; Friends of Marolt Park v. U.S. Dep't of Transp., 382 F.3d 1088, 1096 (10th Cir.2004). The Court must uphold the FHWA's decision not to prepare an SEIS
The record clearly demonstrates that the Corps, KDOT and the FHWA reviewed the PBPN's proposed 42C Alternative, evaluated its significance and gave the PBPN an explanation of their decision not to supplement the FEIS analysis. Corps ROD, AR, Vol. 3 at 2538-46; FHWA ROD, AR, Vol. 10 at 7441-46. Plaintiffs assert that the 42C Alternative, which the PBPN proposed after the Corps issued its FEIS, constitutes "new circumstances or information" which required an SEIS because 42C would be $10 to $20 million cheaper than the 42A Alignment. Doc. #48 at 58; FEIS, AR, Vol. 3 at 2530.
Plaintiffs assert that the FHWA violated NEPA noise study regulations by not measuring existing noise levels and determining the impact of traffic noise increases (i.e., not comparing predicted noise levels to existing levels). Doc. #48 at 42-43; Doc. #62 at 5-9.
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Activity
Category Leq(h) Lm(h) Description of activity category
_____________________________________________________________________________________________________________________
A....... 57 (Exterior)..... 60 (Exterior)..... Lands on which serenity and quiet are of extraordinary
significance and serve an important public need
and where the preservation of those qualities is
essential if the area is to continue to serve its
intended purpose.
_____________________________________________________________________________________________________________________
B....... 67 (Exterior)..... 70 (Exterior)..... Picnic areas, recreation areas, playgrounds, active
sports areas, parks, residences, motels, hotels,
schools, churches, libraries, and hospitals.
_____________________________________________________________________________________________________________________
C....... 72 (Exterior)..... 75 (Exterior)..... Developed lands, properties, or activities not included
in Categories A or B above.
_____________________________________________________________________________________________________________________
D....... ................. .............. Undeveloped lands.
_____________________________________________________________________________________________________________________
E....... 52 (Interior)..... 55 (Interior)..... Residences, motels, hotels, public meeting rooms,
schools, churches, libraries, hospitals, and
auditoriums.]
_____________________________________________________________________________________________________________________
Plaintiffs base their argument primarily on a statement in the Revised Preliminary South Lawrence Trafficway Traffic Noise Analysis Summary that reads as follows:
FEIS, AR, Vol. 2 at 894; Doc. #48 at 42-43. The FHWA asserts that, notwithstanding this statement, the study included existing noise levels and that it properly analyzed those measurements to conclude that the 42A Alternative would have greater noise impacts on the Haskell Farm than the 32B Alternative. The document on which plaintiffs rely is a traffic noise analysis prepared by URS, a Corps of Engineers contractor. See FEIS, AR, Vol. 2 at 890. Contrary to plaintiffs' assertion, the noise study contains existing noise level measurements. FEIS, AR, Vol. 2 at 894, 904-05; Final Section 4(f) Evaluation, AR, Vol. 10 at 6864.
The FHWA's Final Section 4(f) Evaluation stated that under the NAC, acceptable noise levels for the 32B project area range from 67 dBA (Category B) to 72 dBA (Category C) and that existing noise levels ranged from 51.1 dBA to 64.1 dBA. Final Section 4(f) Evaluation, AR, Vol. 10 at 6864.
Judicial review under the APA requires the Court to take "due account . . . of the rule of prejudicial error." 5 U.S.C. § 706. In other words, FHWA errors require reversal only if plaintiffs can show prejudice from the errors. New Mexico ex rel. Richardson, 565 F.3d at 708 (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993)). The Court applies a "rule of reason" to determine whether the FHWA's failure to determine traffic noise impacts for the 32B and 42A alternatives is merely a "flyspeck" or whether it is significant enough to defeat the goals of informed decision-making and informed public comment. New Mexico ex rel. Richardson, 565 F.3d at 704. NEPA's action-forcing procedural requirements were not intended "to generate paperwork—even excellent paperwork—but to foster excellent action" by ensuring that "officials make decisions that are based on understanding of environmental consequences," enabling them to "take actions that protect, restore, and enhance the environment." 40 C.F.R. § 1500.1(c); see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768-69, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). The noise study regulations, in particular, were intended to "provide procedures for noise studies and noise abatement measures to help protect the public health and welfare" and to "supply noise abatement criteria." 23 C.F.R. § 772.1. Here, plaintiffs can show prejudice only if the FHWA would have rejected the 32B Alternative but for this error. The procedural error which plaintiffs cite does not rise to this level.
NEPA's central purpose is to ensure that informed decisions are made with respect to the environmental impacts of major federal actions. 40 C.F.R. § 1500.1(c); Pub. Citizen, 541 U.S. at 768-69, 124 S.Ct. 2204; Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 717 (10th Cir.2010). Consistent with NEPA's purpose, the relevant question for the FHWA was the future noise level each alternative would generate. After comparing
Section 4(f) of the Department of Transportation Act limits the authority of the Secretary of Transportation to approve federally-funded transportation projects that use land of historic significance. 49 U.S.C. § 303(c). Through the FHWA, the Secretary may only approve a project that affects Section 4(f)-protected land 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 ... historic site resulting from the use." 49 U.S.C. § 303(c); 23 C.F.R. §§ 774.17, 774.3.
The United States Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), laid out a three-part inquiry that guides the Court's analysis of plaintiffs' Section 4(f) claims. See Comm. to Pres. Boomer Lake Park v. Dep't of Transp., 4 F.3d 1543, 1549 (10th Cir.1993). First, the Court must consider whether the FHWA properly construed its duty to avoid the Haskell Farm property unless feasible and prudent alternatives do not exist, or feasible alternatives involve uniquely difficult problems. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. To affirm the FHWA decision, this Court must find that the FHWA could have reasonably believed that no feasible and prudent avoidance alternative alternatives exist or that the alternatives involve unique problems of extraordinary magnitude. Id.; 23 C.F.R. § 774.17. Second, the Court must determine that the FHWA decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Id.; 5 U.S.C. § 706(2)(A). In other words, the FHWA decision must be based on a "consideration of the relevant factors" and not on "a clear error of judgment." Id. Although this inquiry into the facts is to be searching and
Plaintiffs' challenges to the FHWA factual findings fall into the first and second steps of the Overton Park inquiry. See Boomer Lake, 4 F.3d at 1553. Plaintiffs' claim that the FHWA should have considered the 42C Alternative falls under Overton Park step two. Plaintiffs' contention that the FHWA's Final Section 4(f) Evaluation is undermined by its reliance on a legally deficient noise study falls into step three. The Court will address each in turn.
In selecting the 32B Alternative, the FHWA concluded that the 42A Alternative was imprudent because it presented "unique problems." Final Section 4(f) Evaluation, Vol. 10 at 6899. Plaintiffs assert that, in doing so, the FHWA applied the wrong legal standard to the 42nd Street Alternative. Doc. # 48 at 34. The FHWA argues that by considering the cumulative weight of the strengths and weaknesses of the two alternatives, it properly determined that the 42A Alternative was imprudent. Doc. # 55 at 37-38. Under Overton Park, the question is whether the FHWA could have reasonably believed that the 42A Alternative involved unique problems of extraordinary magnitude that made it imprudent. Overton Park, 401 U.S. at 412, 416, 91 S.Ct. 814; Boomer Lake, 4 F.3d at 1549-50; see also 23 C.F.R. § 774.17.
The facts and arguments in this case are very similar to those which the Tenth Circuit considered in Boomer Lake. In that case, plaintiffs challenged the FHWA's decision to provide federal funds to build a four-lane highway through a city park. Boomer Lake, 4 F.3d at 1547. Plaintiffs asserted that the FHWA erred in selecting
Here, plaintiffs dispute the degree of certain impacts which the FHWA relied upon in reaching its conclusion that the 42A Alternative is imprudent. Plaintiffs assert that, even when taken together, the problems posed by 42A do not reach "extraordinary magnitudes." Doc. # 48 at 34.
The Court reviews the challenged findings to determine whether they are arbitrary, capricious, an abuse of discretion, contrary to law or constitute clear error of judgment. The Court must then determine whether the FHWA could have reasonably concluded that the 42A Alternative was imprudent based on findings that survive plaintiffs' challenge.
The FHWA concedes that both the 32B and 42A alternatives meet the purpose and need of the SLT, but concluded that the 32B Alternative better met the purpose and need by diverting more traffic from local streets and improving safety on the local street network. Final Section 4(f) Evaluation, AR, Vol. 10 at 6891. Specifically, the FHWA concluded that by the year 2025 the 32B Alternative could carry as many as 3,634 more cars per day and result in twelve less accidents per year than the 42A Alternative. Id.; see also Doc. # 55 at 39-41. Plaintiffs assert that the traffic diversion projection is flawed and offer an alternative traffic forecast which shows 42A diverting 9,300 more cars
Plaintiffs also assert that the FHWA did not properly apply its freeway safety standard, but instead "considered minor differences in accident rates for which there is no support in the record." Doc. # 48 at 38. Unsubstantiated determinations can be fatal for a Section 4(f) evaluation, Boomer Lake, 4 F.3d at 1553, but the Final Section 4(f) Evaluation's traffic accident estimates are not unsubstantiated. They are based on the Corps' FEIS, AR, Vol. 10 at 6891, which based its findings on KDOT's traffic study, AR, Vol. 2 at 594.
Plaintiffs argue that the FHWA improperly disfavored the 42A Alternative for being nearly one mile longer than the 32B Alternative because the difference is relatively minor and is necessary to avoid the Section 4(f)-protected properties. Doc. # 48 at 36. Although the availability of a shorter, more direct route is not alone sufficient to overcome the paramount importance of protecting Section 4(f) property, it may, with other factors, render the avoidance alternative imprudent. See Overton Park, 401 U.S. at 411-12, 91 S.Ct. 814; Boomer Lake, 4 F.3d at 1550. Because the FHWA's conclusions with respect to each of these factors were neither arbitrary nor capricious nor a clear error of judgment, it properly considered greater city traffic reductions, higher vehicle-per-day capacity, lower accident rates and the availability of a shorter route under the 32B Alternative as factors in determining whether the 42A Alternative was imprudent.
The FHWA concluded that the 32B Alternative would cost approximately $19 million less than the 42A Alternative. Final Section 4(f) Evaluation, AR, Vol. 10 at 6892.
The FHWA's Final Section 4(f) Evaluation conceded that both alternatives would affect the Wakarusa floodplain, but concluded that 32B would affect the floodplain and floodway less than 42A. Final Section 4(f) Evaluation, AR, Vol. 10 at 6892. Plaintiffs assert that the FHWA's own regulations, comments by FHWA headquarters and Department of the Interior ("DOI") opinions undermine the FHWA conclusion. Doc. #48 at 52-53. FHWA headquarters' comments on the Draft Section 4(f) Evaluation and the Corps' FEIS stated that under FHWA regulations "longitudinal encroachments" like the 32B Alternative should be avoided when practicable and that the Section 4(f) ROD should contain a statement regarding floodplain encroachment. Draft Section 4(f) Evaluation, AR, Vol. 8 at 5856. Neither the regulation nor the FHWA headquarters' comments undermine the FHWA's conclusion that the Section 32B Alternative has fewer floodplain and floodway impacts.
The DOI commented that the 42A Alternative "has less impacts to wetlands, less floodplain impacts, and less total stream involvement (greater number of crossings but fewer total linear feet of involvement)." Draft Section 4(f) Evaluation, AR, Vol. 9 at 6544. A reviewing court "may properly be skeptical" that agency conclusions are reliable if the agency
The FHWA concluded that the 42A Alternative would accelerate planned and unplanned development south of the Wakarusa River (including increased demand for street, sewer, water and other public utility infrastructure) and a new "commercial node" that would attract "a more mixed and dense urban population" than currently planned for that area. Final Section 4(f) Evaluation, AR, Vol. 10 at 6893, 6895. It also determined that the 32B Alternative was more consistent with the city's long-term plans for growth (Horizon 2020) and transportation (Transportation 2025). Id. at 6895. The FHWA projected that accelerated growth south of the Wakarusa River would increase traffic and attract more dense urban development around the Haskell Farm than presently exists or would exist under the 32B Alternative (see infra Part II.B.5 for detailed discussion). Id. at 6895. Plaintiffs assert that because development would be constrained by local zoning laws, the FHWA forecast for development south of the Wakarusa River is "sheer speculation." Doc. # 48 at 51. Plaintiffs cite DOI comments on the FHWA's Draft Section 4(f) Evaluation in which the DOI notes that the area south of the Haskell campus and north of the Wakarusa River (the area around the 32B Alternative) is subject to the same development pressure as areas south of the river. Draft Section 4(f) Evaluation, AR, Vol. 9 at 6543. In its Final Section 4(f) Evaluation, the FHWA acknowledges that development could occur around the 32B Alternative, but states that such development would be more limited than the south-of-the-river development associated with the 42A Alternative because the land north of the river is located in a 100-year floodplain. Id. at 6895. The FHWA noted that although development in the floodplain is permissible if it complies with the local floodplain regulations, it is not recommended for urban development. Id. In addition, the FHWA concluded that the new wetlands created by the 32B mitigation plan would create a buffer between the Haskell Farm and any new development. Final Section 4(f) Evaluation, AR, Vol. 10 at 6868.
The FHWA's conclusion that the 42A Alternative would accelerate planned and
The FHWA's Final Section 4(f) Evaluation concluded that even though the 42A Alternative would have no direct impact on the Haskell Farm, it would cause greater long-term secondary and cumulative adverse impacts than the 32B Alternative. Final Section 4(f) Evaluation, AR, Vol. 10 at 6895. This conclusion is primarily rooted in the FHWA's determination that 42A would increase traffic on the streets surrounding the Haskell Farm, which in turn would increase noise, light, urban debris and visual disturbances. Id. at 6895-96. The FHWA also predicted that the 42A Alternative would cause increased development in the floodplain adjacent to the Haskell Farm and require one or more of the streets to be expanded. Id. at 6896. It acknowledged that "urban development in the floodplain is not recommended," but noted that such "development may be approved it if complies with the local floodplain regulations." Final Section 4(f) Evaluation, AR, Vol. 10 at 6896-97.
Plaintiffs assert that the FHWA's traffic increase projection and noise study are flawed and that new development in the floodplain is purely speculative. Doc. #48 at 49-51.
With respect to noise, plaintiffs assert that the FHWA grossly overstated the noise the 42A Alternative would generate on streets surrounding Haskell Farm. Doc. #48 at 44-45. Plaintiffs argue that the noise maps overstate the 42A noise impact and understate the 32B noise impact. They show that the 42A noise map includes noise impacts that do not reach the Haskell Farm and are not considered in the 32B study, namely noise impacts east of Haskell Avenue and west of Louisiana Street. See id. The FHWA, however, does not rely on noise impact data taken
Contrary to plaintiffs' claim, the FHWA does not overstate the possibility that development could occur in the floodplain adjacent to the Haskell Farm. Rather, it acknowledges that "urban development in the floodplain is not recommended" but "may be approved if it complies with the local floodplain regulations." Id. at 6896. It further notes that a "portion of the land located immediately west of Baker Wetlands was platted for multi-family development." Id. KDOT currently owns this land and plans to convert the land to wetlands as part of the 32B mitigation plan; if the 32B Alternative is not selected, however, the land will return to private hands to be developed. Id. According to the FHWA, this development would "diminish or eliminate the rural character of the land." Id.
Under the 32B Alternative, a four-lane highway with 12-foot noise walls would bisect the Haskell Farm and Baker Wetlands. Id. It would directly impact the Haskell Farm, but the FHWA concluded that it would nonetheless have fewer cumulative secondary impacts than 42A. Id. The FHWA's Final Section 4(f) Evaluation acknowledges that "visual impacts may occur as a result of walls being constructed for the purpose of noise mitigation," but concludes that the visual obstruction would be minimal because the walls would be located behind second-growth trees and, eventually, an evergreen tree screen. Id. Furthermore, because the 32B Alternative mitigation package expands the Baker Wetlands surrounding the Haskell Farm, no development would be allowed on or around farm property. See id. The FHWA reached its conclusions regarding the cumulative and secondary impacts on the Haskell Farm through reasoned—not arbitrary or capricious—analysis. The Court therefore concludes that the FHWA properly considered these impacts in reaching its determinating that the 42A Alternative is imprudent.
The FHWA determined that the 42A Alternative would impact four more acres of riparian woodlands and 8.6 more acres of upland woodlands than the 32B Alternative. Final Section 4(f) Evaluation, AR, Vol. 10 at 6897. It also concluded that the 42A Alternative would be situated near the Oregon and California National Historic Trail, including Blanton's Crossing, a bridge which the National Park Service has identified as a "High Potential Site" for its importance as a trail resource and its role in western migration and "Bleeding Kansas." Id.
Plaintiffs point out that Blanton's Crossing is not eligible for listing on the National Register of Historic Places and that it therefore should not be considered. Doc. # 48 at 53. The FHWA does not contend that Blanton's Crossing is register-eligible, but notes that it is a National Park Service "High Potential Site" and that it would be indirectly impacted by 42A. These effects are relevant to the FHWA's determination. Final Section 4(f) Evaluation, AR, Vol. 10 at 6897. The FHWA admits that the 42A Alternative "would avoid direct impacts to Blanton's Crossing." Id. at 6881-82. Even though these environmental effects might be minimal, they are nevertheless relevant. Therefore the FHWA did not act arbitrarily or capriciously in considering them.
The FHWA determined that the 32B Alternative mitigation plan would provide a net benefit to the Haskell Farm and Baker Wetlands which the 42A Alternative does not provide. Id. at 6897-98. The 32B mitigation plan would include 12-foot noise walls to minimize roadway disturbances on the HINU campus and the Baker Wetlands, a 10,000 square-foot Wetland and Cultural Education Center, creation of 317 acres of wetlands to replace the 53 acres of wetlands that would be destroyed by the project, relocating 31st Street 500 feet south of its present alignment between Haskell Avenue (which will be moved 1,000 feet to the east) and Louisiana Avenue (which will be moved 1,000 feet to the west), and hiking and biking trails, camp sites and parking. FEIS, AR, Vol. 2 at 605-12. Plaintiffs do not dispute the benefits of the 32B Alternative mitigation plan, but take issue with the FHWA's conclusion that the benefits provided by the mitigation plan outweigh the impact of a four-lane highway severing the Haskell Farm from the Baker Wetlands. See Doc. #48 at 60-61.
Bearing in mind that Section 4(f) gives paramount importance to the preservation of protected properties, the question is whether the FHWA could have reasonably believed that the 42A Alternative posed unique problems of extraordinary magnitude based on (1) purpose and need (traffic and safety), (2) Wakarusa floodplain and floodway impacts, (3) accelerated planned and unplanned development south of the Wakarusa River, (4) secondary and cumulative impacts on Haskell Farm, (5) additional adverse environmental impacts, and (6) 32B net benefit. Overton Park, 401 U.S. at 412, 416, 91 S.Ct. 814; Boomer Lake, 4 F.3d at 1549-50 (10th Cir.1993); see also 23 C.F.R. § 771.135. Even though the FHWA's cost estimate was clearly erroneous, and it admitted inadvertently omitting 38,000 cars from its traffic increase projections, the Court may reverse and remand only if there is a significant chance that but for these errors, the FHWA might have reached a different result. Nat'l Parks & Conservation Ass'n, 998 F.2d at 1533 (quoting Salt River Project Agric. Improvement & Power Dist., 762 F.2d at 1060-61 n. 8).
On this record, the Court concludes that the FHWA acted within the scope of its authority and could have reasonably believed that the 42A Alternative involved unique problems of extraordinary magnitude that rendered it imprudent. In Boomer Lake, the Tenth Circuit held that an avoidance alternative was imprudent because it could not accommodate future traffic volumes, did not satisfactorily fulfill the purposes of the project and posed safety and cost concerns. Boomer Lake, 4 F.3d at 1550. The same is true here. An alternative that does not adequately accommodate future traffic volume may be rejected as imprudent. Ass'ns Working for Aurora's Residential Env't, 153 F.3d at 1131 (alternative that does not solve existing or future traffic problems, such as congestion, may properly be rejected as imprudent); Boomer Lake, 4 F.3d at 1550 (inability of alternative to accommodate future traffic volumes is justification for rejecting that alternative); Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 947 (10th Cir.1989) (rejecting no-build alternative because existing streets would not be able to accommodate future traffic volumes). Here, the 42A Alternative would handle 3,634 fewer cars per day and divert less traffic from congested local streets. Final Section 4(f) Evaluation, AR, Vol. 10 at 6891. Safety concerns are also valid considerations in rejecting an alternative. Boomer Lake, 4 F.3d at 1550. Selecting the 42A Alternative would result in 12 more accidents per year by 2025. Final Section 4(f) Evaluation, AR, Vol. 10 at 6891. Moreover, the FHWA found that although the 42A Alternative had no direct impact on Section 4(f)-protected properties, it would ultimately have greater long-term secondary cumulative effects due to increased traffic and development in the vicinity of the Haskell Farm. Final Section 4(f) Evaluation, AR, Vol. 10 at 6895-97. In light of the purpose of Section 4(f) to protect properties like the Haskell Farm, these long-term adverse effects rise to "extraordinary magnitudes."
Plaintiffs assert that the FHWA violated Section 4(f) because it arbitrarily refused to consider the PBPN's proposed 42C Alternative. Doc. #60 at 59-60. Section 4(f) requires that the FHWA base its decision on a "consideration of the relevant factors" and not on "a clear error of judgment." See Overton Park, 401 U.S. at 416, 91 S.Ct. 814. In other words, the FHWA must examine enough alternatives to reasonably conclude that the study of additional alternative routes is not worthwhile. Boomer Lake, 4 F.3d at 1551; Eagle Found., 813 F.2d at 807. Although the Court may reverse the FHWA decision if it finds that the FHWA did not examine a viable alternative route that would avoid the Haskell Farm, "the decision concerning which alternatives to consider is necessarily bounded by a rule of reason and practicality." Boomer Lake, 4 F.3d at 1551. The Court's inquiry into the facts is to be searching and careful, but "the ultimate standard of review is a narrow one." Id. Once the Court is satisfied that the
Plaintiffs argue that the FHWA should have considered the 42C Alternative because, according to the PBPN estimate, it would cost $22.9 million less than the 42A Alternative. Doc. # 62 at 16.
Plaintiffs do not suggest, except for cost, that the 42C Alternative would eliminate any of the problems associated with the other 42nd Street alternatives. Because cost was not the single determining factor in the FHWA's Section 4(f) Evaluation, and because the FHWA decision to select 32B was proper even without considering costs, studying the 42C Alternative in further detail would not have augmented the FHWA evaluation or changed the outcome. Moreover, the FHWA did not blindly dismiss the PBPN's 42C Alternative; it decided not to include 42C in its Section 4(f) Evaluation only after the Corps and KDOT reviewed the proposal and determined that it would increase traffic accident risks, and after the FHWA reviewed the Corps' FEIS in light of the proposal. See FHWA ROD, AR, Vol. 10 at 7441-46. Thus the FHWA did not act arbitrarily or capriciously in not considering the 42C Alternative in its Section 4(f) Evaluation.
Plaintiffs assert that the FHWA violated the procedural requirements for conducting noise studies by not measuring existing noise levels or determining the impact of traffic noise increases. Doc. # 48 at 42-43. The FHWA argues that neither the Section 4(f) statute (49 U.S.C. § 303) nor the regulations (23 C.F.R. Part 774) require the FHWA to perform a noise study; therefore, even if the noise study was defective, it cannot be the basis for reversing the FHWA decision. Whether Section 4(f) requires the FHWA to perform a noise increase impact study that complies with 23 C.F.R. Part 772 is unclear. Even if it does, the FHWA's failure to comply with the noise study regulations did not prejudice plaintiffs and is not grounds for reversal. See supra Part I.C; New Mexico ex rel. Richardson, 565 F.3d at 708.
For the foregoing reasons, the Court affirms the FHWA's ROD.
An alternative is not prudent if:
23 C.F.R. § 774.17.
FEIS, AR, Vol. 2 at 894-95.
Final Section 4(f) Evaluation, AR, Vol. 10 at 6864.
Table 5-2007 Cost Estimate
--------------------------------------------------------------------
Cost Item Preferred Avoidance
(Dollars in Alternative Alternative
Millions) (32B) (42A)
--------------------------------------------------------------------
Mitigation 22.1 2.0
--------------------------------------------------------------------
Road
Construction 56.2 43.4
--------------------------------------------------------------------
Bridge
Construction 35.9 82.6
--------------------------------------------------------------------
Utility
Relocation 0.8 0.6
--------------------------------------------------------------------
Preliminary
Engineering 11.4 12.8
--------------------------------------------------------------------
Construction
Engineering 9.1 10.2
--------------------------------------------------------------------
Right of Way &
Displacement 12.4 15.3
____________________________________________________________________
Total Project 147.9 166.9
--------------------------------------------------------------------
Operation and
Maintenance 0.213 0.246
--------------------------------------------------------------------
Plaintiffs also argue that the FHWA erred by not evaluating the 32B Alternative against the 42C Alternative, which would be cheaper than the 42A Alternative. This argument is moot because the FHWA cost estimate will not be considered in the Court's review of whether the FHWA reasonably concluded that the 42A Alternative was imprudent.
When an agency relies on a number of findings, one or more of which are erroneous, the Court must reverse and remand only when there is a significant chance that but for the errors the agency might have reached a different result. Nat'l Parks & Conservation Ass'n v. Fed. Aviation Admin., 998 F.2d 1523, 1533 (10th Cir.1993) (quoting Salt River Project Agric. Improvement & Power Dist. v. United States, 762 F.2d 1053, 1060-61 n. 8 (D.C.Cir.1985)). Whether the FHWA's reliance on its erroneous cost estimate constitutes prejudicial error that would require reversal and remand its decision is discussed below.
The Court sustains the FHWA motion to strike Plaintiffs' Exhibit 14 because the map of Blanton's Crossing in Exhibit 14 is not in the administrative record and it does not fall into one of the limited exceptions. Moreover, plaintiffs' argument with respect to the location of Blanton's Crossing has no bearing on the Court's decision. Although the FHWA considered the fact that the 42A Alternative "would be aligned along the area where the Oregon and California National Historic Trail was located, including Blanton's (Bridge) Crossing located at the Wakarusa River and Louisiana Street, east of the Meair's Farmstead," Final Section 4(f) Evaluation, AR, Vol. 10 at 6897, it stated (in response to comments) that 42A "would avoid direct impacts to Blanton's Crossing." Id. at 6881. Moreover, the FHWA focused on 42A's impact on the area where the Oregon and California trails existed, "and the historic importance of this area in the history of western migration and of `Bleeding Kansas,'" which the FHWA determined were "essential factors to be considered in determining which alternative is feasible and prudent, and best serves the overall public interest." Id. The FHWA did not consider, as plaintiffs suggest, direct impacts on Blanton's Crossing, so plaintiffs' argument is misplaced and Exhibit 14 is not relevant to the Court's decision.
Plaintiffs assert that the 32B Alternative would jeopardize the Haskell Farm's eligibility for listing on the National Register of Historic places. Doc. # 58 at 7. Plaintiffs in part rely on Exhibit 15 attached to Plaintiffs' Opening Brief (Doc. # 48), which is a National Register bulletin titled "How to Apply the National Register Criteria for Evaluation." The FHWA moves to strike Exhibit 15 because it is not contained in the administrative record to which the Court (with few exceptions) is limited. Doc. # 53 at 5. Forest Guardians, 579 F.3d at 1131 (quoting Camp, 411 U.S. at 142, 93 S.Ct. 1241); see also Fla. Power & Light, 470 U.S. at 743-44, 105 S.Ct. 1598 (listing limited exceptions); Citizens for Alts. to Radioactive Dumping, 485 F.3d at 1096. Plaintiffs ask the Court to take judicial notice of the Bulletin because it is an official National Park Service publication. Doc. # 58 at 5. The Court sustains defendants' motion to strike. Plaintiffs assert that the Bulletin is relevant because the Court should use it to second-guess the FHWA's judgment regarding the impact which 32B would have on the Haskell Farm. See Doc. #58 at 6-7. The FHWA concluded that the 32B Alternative would have minor sound and visual impacts on the Haskell Farm and considered these impacts in its analysis. See Final Section 4(f) Evaluation, AR, Vol. 10 at 6896-97. The Court is in no position to substitute its judgment for that of the FHWA, particularly with respect to the technical question of National Register eligibility. Therefore, the Court sustains the FHWA's motion to strike Exhibit 15.
Throughout their briefs, plaintiffs accuse defendants of improperly favoring the 32B Alternative and arbitrarily and capriciously skewing the Section 4(f) Evaluation against the 42A Alternative. The record contains no evidence, however, of such nefarious conduct.
