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Prairie Band Pottawatomie v. Federal Highway

July 10, 2012

PRAIRIE BAND POTTAWATOMIE NATION, SIERRA CLUB, WETLANDS PRESERVATION ORGANIZATION, JAYHAWK AUDUBON SOCIETY, SAVE THE WAKARUSA WETLANDS, INC., KANSAS UNIVERSITY ENVIRONS, AND ECOJUSTICE, PLAINTIFFS - APPELLANTS,
v.
FEDERAL HIGHWAY ADMINISTRATION, J. MICHAEL BOWER, IN HIS OFFICIAL CAPACITY AS DIVISION ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; KANSAS DEPARTMENT OF TRANSPORTATION, DEFENDANTS - APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO.08-CV-02534-KHV-DJW)

The opinion of the court was delivered by: Tymkovich, Circuit Judge.

United States Court of Appeals Tenth Circuit

PUBLISH

Elisabeth A. Shumaker Clerk of Court

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.

The Plaintiffs-Appellants challenge the Federal Highway Administration's selection of a route for the South Lawrence Trafficway, a proposed highway project in the city of Lawrence, Kansas. Appellants claim two aspects of the Highway Administration's decision render it arbitrary and capricious under the Administrative Procedure Act. First, Appellants claim the environmental impact statement supporting the decision runs afoul of the National Environmental Policy Act and Department of Transportation noise analysis regulations. Second, Appellants claim the Highway Administration's analysis under the section of the Department of Transportation Act that protects historic sites, including property associated with Haskell Indian Nations University, improperly concluded there was no "feasible and prudent alternative" to the selected route. Finding no fatal flaws in the environmental impact statement or the prudence analysis, we AFFIRM the judgment of the district court.

I. Background

For over two decades, the citizens of Lawrence, Kansas and other interested parties have debated the merits of the South Lawrence Trafficway (SLT), a highway project designed to link state highway K-10 and Interstate 70 around the southern periphery of Lawrence. The SLT would allow traffic to bypass surface streets running through busy south Lawrence, thereby relieving traffic congestion and improving motorist safety. A western segment of the SLT was built many years ago, but the remaining portion has been stalled.

The Appellants are a diverse collection of interested entities including the Prairie Band Pottawatomie Nation, the Sierra Club, the Wetlands Preservation Organization, the Jayhawk Audubon Society, Save the Wakarusa Wetlands, Inc., the Kansas University Environs, and Ecojustice. They seek to prevent injury to environmental, cultural, and historical values that may be affected by the SLT.

The Defendants-Appellees include the Federal Highway Administration (FHWA), the Kansas Department of Transportation (KDOT), and the official heads of those agencies. Another government entity, the United States Army Corps of Engineers, was involved in several aspects of the approval but was not a named defendant. Because the specific identities of these government bodies are not significant for the purposes of the legal challenges brought here, we will refer to them collectively as "the government."

The route of the SLT is near several historical and environmental features. The Wakarusa River floodplain lies directly south of Lawrence. One potential route for the highway skirts the northern edge of the floodplain. This route would pass directly through the Haskell Agricultural Farm Property, a historic site eligible for listing on the National Register of Historic Places. The Haskell Farm was historically used for agricultural-education purposes by the Haskell Indian Nations University. The northern portion of the Haskell Farm, called the Upper Fields, contains several historic and cultural features, while the southern portion, called the Baker Wetlands, is an environmentally-sensitive area within the floodplain supporting various plant and animal life. The Upper Fields and Baker Wetlands are currently separated by a surface street, 31st Street. A less direct route for the SLT along the southern edge of the Wakarusa floodplain, further away from Lawrence, would avoid directly affecting the Haskell Farm. It would, however, cost more to build due to increased length and the need to bridge the floodplain and river. It would also require motorists to drive a more circuitous route.

In selecting a route for the SLT, the government engaged in a multi-step evaluation process. Starting with an initial list of 27 identified options, the government selected 12 for detailed analysis. The government considered several factors, including encroachment on wetlands, increased noise on the Haskell Farm, cost, and the extent to which each alternative achieved the project's goals of traffic congestion relief and increased safety.

After additional analysis, the government selected two finalists--the 32nd Street Alignment B Alternative (32B), and the 42nd Street Alignment A Alternative (42A)--plus a required "no action" alternative as a point of comparison. Alternative 32B took a direct route through the Haskell Farm, but incorporated mitigation measures to lessen the impact on the Farm, which included sound barriers and the relocation of 31st Street and other nearby surface roads. Alternative 42A took a longer route south of the floodplain, avoiding the Farm.

The government ultimately selected alternative 32B, and issued its preliminary decision in a draft environmental impact statement (EIS). After a public notice-and-comment period, the government issued a final EIS and record of decision formally adopting Alternative 32B. The government determined that 42A was not a prudent alternative due to several factors that cumulatively amounted to a problem of extraordinary magnitude.

After the government issued its final decision, Appellants proposed an additional alternative, which they dubbed "42C." Alternative 42C resembled a route along the 42nd Street alignment that the government had eliminated at a relatively early stage in the evaluation process. Appellants presented their own analysis showing that 42C would achieve a significant cost benefit over 42A, and urged the government to reconsider its decision. Despite having already issued a final EIS, the government considered and rejected 42C, explaining that sharp curves in the route rendered it unacceptable from a safety standpoint. Appellants then challenged the government's decision in the court below, bringing claims under the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and section 4(f) of the Department of Transportation Act. The district court rejected all of Appellants' claims, and Appellants appealed.

II. Environmental Impact Statement Challenge

Appellants first claim the government's adoption of the EIS did not comply with NEPA, and therefore was arbitrary and capricious. Appellants identify four flaws in the EIS: (1) the noise analysis failed to adhere to United States Department of Transportation regulations; (2) the government should not have rejected Alternative 42C; (3) the cost analysis underestimated the costs for 32B; and (4) the safety analysis used incorrect safety criteria.

Our review of the statutory and administrative claims is de novo:

We review NEPA claims under the APA independently, giving no particular deference to the district court's review of an agency action. As with other challenges arising under the APA, we review an agency's NEPA compliance to see whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In the context of a NEPA challenge, an agency's decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 710-11 (10th Cir. 2010).

"Deficiencies in an EIS that are mere 'flyspecks' and do not defeat NEPA's goals of informed decisionmaking and informed public comment will not lead to reversal." New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir. 2009). Furthermore, even if an agency violates the APA, its error does not require reversal unless a plaintiff demonstrates prejudice resulting from the error. APA § 706 ("[D]ue account shall be taken of the rule of prejudicial error."); see New Mexico ex rel. Richardson, 565 F.3d at 708. Importantly, "[a] presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action." New Mexico ex rel. Richardson, 565 F.3d at 704.

With this standard of review in mind, we turn to the four EIS deficiencies claimed by the Appellants.

A. Noise Analysis

1. Legal Framework

Federal law requires the Secretary of Transportation to "develop and promulgate standards for highway noise levels compatible with different land uses." 23 U.S.C. § 109(i). This requirement is implemented by federal regulations establishing a three-stage noise analysis process that FHWA must follow for new highway projects. See 23 C.F.R. § 772.

First, FHWA must determine whether a proposed project will result in "traffic noise impacts." § 772.11(a). "Traffic noise impacts" are defined as noise levels that approach or exceed a defined limit listed in the regulations, or that create a substantial noise increase over existing noise levels. See § 772.5; tbl. 1. The defined limit varies depending on the land use; for example, hotels and offices have higher limits than residential areas. See id. To determine whether traffic noise impacts will occur requires FHWA to determine existing noise levels, predict future noise levels for each alternative under consideration, and compare the existing and predicted noise levels.*fn1 See § 772.11. Second, if FHWA determines that a project will create traffic noise impacts, "noise abatement shall be considered and evaluated for feasibility and reasonableness." § 772.13(a). Before adopting a record of decision, FHWA must identify and document "(1) Noise abatement measures which are feasible and reasonable, and which are likely to be incorporated in the project; and (2) Noise impacts for which no noise abatement measures are feasible and reasonable." § 772.13(g).

Third, FHWA may not "approve project plans and specifications unless feasible and reasonable noise abatement measures are incorporated into the plans and specifications." § 772.13(h). The final approval of plans and specifications is a separate decision from the adoption of a record of decision and, in this case, has not yet occurred.

2. Relevant Facts

The EIS includes the results of a noise impact analysis conducted by a government contractor. The contractor first measured existing noise levels at various points on the Haskell Farm and surrounding areas. The contractor then used computer modeling to forecast what noise levels would be in the year 2025 for each alternative with and without mitigating sound barriers, using 2025 vehicle traffic projections provided by KDOT. The results showed that Alternative 32B had a very significant impact on noise levels on the Haskell Farm without mitigation measures. But when sound barriers were included in the modeling, 32B had less noise impact than the "no action" and 42A alternatives, because those alternatives involved increased traffic on existing surface streets.

The parties dispute whether the EIS adequately compared future noise levels to existing levels. Appellants point to a sentence in the government's Traffic Noise Analysis Summary that suggests a comparison was not made, and a direct comparison of existing and predicted noise levels does not appear in the body of that document, in the EIS, or in the 4(f) analysis. The government, however, points to some data tables in the record that it claims include the relevant comparison. The record is somewhat unclear as to whether these data constitute a full or only partial comparison of existing and predicted noise levels, and whether the government actually "validate[d] predicted noise level [sic] through comparison between measured and predicted levels" as required. § 772.11(d).

3. Discussion

Even assuming the government's analysis did not adequately compare existing and predicted noise levels, any error was harmless. The effect of the first stage of a § 772 analysis is only to determine whether there will be noise impacts. If there will be noise impacts, then the government is required to proceed to stage two and consider noise abatement measures. Here, the government in fact found there would be noise impacts, and continued to stage two. At stage two, the government conducted the correct analysis; that is, it identified "[n]oise abatement measures which are feasible and reasonable, and which are likely to be incorporated in the project." § 772.13(g). Because any error at stage one did not actually prevent the government from proceeding to stage two, and because the analysis at stage two was conducted correctly, we see no possible harm. The Appellants argue unpersuasively that we should not engage in a harmlessness analysis where the claim of error is procedural. Appellants are correct that, in some instances, a harmlessness analysis can be inappropriate. For example, when an agency fails "substantively to consider the environmental ramifications of its actions in accordance with NEPA," Catron County Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996), we will not uphold the agency's decision on the grounds that it might have made the same decision even without the error; otherwise, NEPA would be a near-toothless environmental safeguard.

Here, however, we know for a certainty that additional noise analysis could not have altered the outcome because, despite the potential flaw, the government determined there would be noise impacts and correctly proceeded to identify likely noise abatement measures. That is all the government was required to do at that point in the decisionmaking process, as it had not yet approved the project's final "plans and specifications" at the third stage of the § 772 analysis. Thus, the Appellants cannot "show they were prejudiced" as required by APA § 706. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993).

Appellants also argue the error was material because the noise analysis was used not only for purposes of the § 772 analysis, but also played a role in selecting 32B over the other alternatives. But, in weighing the relative merits of each alternative, the government did compare the predicted noise levels against each other. The error Appellants identify--failure to compare predicted noise levels to existing noise levels--would not have affected this relative comparison of the alternatives. Thus, any error was harmless.

Separately, Appellants claim the noise analysis was deficient in its geographic scope. Appellants briefly make this argument in very general terms in their opening brief, but only develop it in detail in their reply brief. Even there, Appellants cite no specific legal authority for the proposition that the government was required to consider a larger geographic area than it actually did.

"Setting the boundaries of the region to be analyzed involved technical and scientific judgments within the [government's] area of expertise." San Juan Citizens Alliance v. Stiles, 654 F.3d 1038, 1057 (10th Cir. 2011). The applicable regulations, quite apart from requiring a noise analysis along the entire length of the proposed project, specifically state that "a highway agency shall give primary consideration to exterior areas where frequent human use occurs." 23 C.F.R. § 772.11. Additionally, the regulations specifically exempt "developed lands that are not sensitive to highway traffic noise," § 772.11(c)(vi), and "undeveloped lands," § 772.11(c)(vii), from noise impact analyses under most circumstances. Here, the noise analysis focused on the sensitive areas in and around the Haskell Farm. As the government points out, most of the remaining land along routes 32B and 42A is undeveloped. Appellants allege for the first time in their reply brief that the government "failed to consider 32B's noise impacts on the nearby noise-sensitive Prairie Park and Nature Center and city homes east of the Haskell Farm." Aplt. Reply Br. at 8. Appellants, however, have not laid a sufficient factual basis on the record for us to conclude that the government's decision to restrict the noise analysis to the Haskell Farm was arbitrary and capricious. To the contrary, as far as the record shows, that decision, made pursuant to public comment on the project, was entirely reasonable. To find otherwise would be to engage in "flyspeck[ing]" the noise analysis based on factual allegations outside the record. New Mexico ex rel. Richardson, 565 F.3d at 704. This we may not do.

Accordingly, we find the government's noise analysis did not violate the APA.

B. Alternative 42C

Next, Appellants claim the government erred by eliminating alternative 42C from consideration during the evaluation process and failing to reconsider this alternative at the Appellants' request.

1. Legal Standards

Before commencing in-depth analyses of EIS alternatives, agencies engage in scoping--"an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action."

40 C.F.R. § 1501.7. An agency need not "analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or . . . impractical or ineffective." Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999) (quoting All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992)).

In reviewing an agency's choice of which alternatives to eliminate at the scoping stage, we apply "[t]he rule of reason." Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001) (quoting Am. Rivers v. Fed. Energy Reg. Comm'n, 201 F.3d 1186, 1200 (9th Cir. 2000)). We also bear in mind that "an agency need not consider an alternative unless it is significantly ...


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