Federal Defendants Response To Sierra Mot SJ

Case 0:07-cv-02593-MJD-SRN Document 91 Filed 05/29/09 Page 1 of 55
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Civil No. 07-2593 (MJD/SRN)
Sierra Club North Star Chapter, )

)
Plaintiff, )
) FEDERAL DEFENDANTS’
v. ) MEMORANDUM OF LAW
) IN SUPPORT OF MOTION
) FOR SUMMARY JUDGMENT
1
Ray LaHood, Secretary of )
Transportation, et al., )
)
Defendants. )
INTRODUCTION
Sierra Club Northstar Chapter (“Sierra Club”) challenges actions by the Federal
Highway Administration (“FHWA”) and the National Park Service (“NPS”)(collectively
“Defendants”) related to a proposed bridge that would cross the St. Croix River, a federally
designated Wild and Scenic River, near Oak Park Heights, Minnesota (“the Project”).2 Sierra
Club seeks judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701-
706, and asserts violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4332; Section 4(f) of the Department of Transportation Act of 1966 (“Section 4(f)”), 49
U.S.C. § 303(c); the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271-1284; the
1
Pursuant to Fed. R. Civ. P. 25(d), Ray LaHood is automatically substituted for
former Secretary Peters.
2
The Court granted leave to intervene as defendants to the transportation departments
from Minnesota (“MnDOT”) and Wisconsin (“WisDOT”).
1
National Park Service Organic Act of 1916 (the “Organic Act”), 16 U.S.C. §§ 1-18f-3; and
General Authorities Act, 16 U.S.C. §§ 1a-1 et seq.
The comprehensive administrative record demonstrates Defendants did not undertake
the Project lightly. Defendants developed and approved the Project in an open and
transparent manner after years of planning, consideration of numerous alternatives and expert
analyses of likely environmental consequences, and extensive input from and careful
consultation and coordination with numerous federal agencies, state agencies, local agencies,
the public, and other stakeholders, including the Sierra Club. The FHWA took the requisite
“hard look” at the Project under NEPA and determined under Section 4(f) there were no
feasible and prudent alternatives to using properties protected by that statute. The NPS
reasonably determined the Project, given the extensive mitigation package developed to
avoid and minimize the impacts of the Project, would not have a direct and adverse effect on
the St. Croix River. Because the Defendants did not act in an arbitrary, capricious, or illegal
manner, the Court should uphold the Project decisions.
BACKGROUND
A. STATUTORY AND REGULATORY FRAMEWORK.
1. National Environmental Policy Act.
NEPA focuses the attention of federal agencies and the public on a proposed action
so any environmental consequences of the action can be studied before a decision is made.
42 U.S.C. § 4321; 40 C.F.R. § 1500.1. NEPA imposes procedural requirements, not
2
substantive ones: “NEPA does not work by mandating that agencies achieve particular
substantive environmental results.” Marsh v. Oregon Natural Resources Council, 490 U.S.
360, 371 (1989). NEPA prescribes a set of “action-forcing” measures requiring federal
agencies to take a “hard look” at the environmental consequences of major federal actions
before they are taken. Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808, 815 (8 th
Cir. 2006). Both NEPA and the Council on Environmental Quality (“CEQ”) regulations
implementing NEPA, 40 C.F.R. §§ 1500-1517, require an agency to consider environmental
impacts of proposed federal actions that may significantly affect the quality of the human
environment. 42 U.S.C. § 4332; 40 C.F.R. § 1501. An agency’s environmental impact
statement (“EIS”) should “[r]igorously explore and objectively evaluate” all reasonable
alternatives, but need only “briefly discuss” the reasons why other alternatives were
eliminated from more detailed study. 40 C.F.R. § 1502.14. An EIS also should identify the
direct, indirect, and cumulative impacts of each alternative studied and consider mitigation
measures to reduce any impacts to the environment. 40 C.F.R. §§ 1502.14, 1502.16, 1508.7.
FHWA regulations related to NEPA, which supplement the CEQ regulations, are at 23
C.F.R. Part 771.
2. Section 4(f) .
Section 4(f) prohibits the Secretary of Transportation from approving a transportation
project or program “requiring the use of publicly owned land of a public park, recreation
area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an
3
historic site of national, State, or local significance,” unless “(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 park, recreation area, wildlife and waterfowl refuge, or
historic site resulting from the use.” 49 U.S.C. § 303(c). FHWA regulations 3 require that,
“[w]hen adequate support exists for a section 4(f) determination,” the discussion in the final
EIS, FONSI, or “separate section 4(f) evaluation shall specifically address: (1) The reasons
why the alternatives to avoid a section 4(f) property are not feasible and prudent; and (2) All
measures which will be taken to minimize harm to the section 4(f) property.” 23 C.F.R. §
771.135(j) (2006). FHWA regulations also provide a final EIS or FONSI should document
compliance with applicable requirements including Section 4(f). 23 C.F.R. § 771.133 (2006).
3. Wild and Scenic Rivers Act.
Congress passed the WSRA to preserve selected rivers of the United States in their
free-flowing condition for the benefit and enjoyment of present and future generations. 16
U.S.C. § 1271. To qualify for inclusion in the National Wild and Scenic Rivers System
(“System”), a river must possess an “outstandingly remarkable” value in at least one of the
following categories: scenic, recreational, geologic, fish and wildlife, historic, cultural, or
3
FHWA’s Section 4(f) regulations have been revised since the Final Section 4(f)
Evaluation for the Project was completed in 2006. See Parks, Recreation Areas, Wildlife and
Waterfowl Refuges, and Historic Sites, 73 Fed. Reg. 13368 (March 12, 2008) (to be codified
in 23 C.F.R. Parts 771 and 774). Because the Section 4(f) Evaluation for the Project was
required to comply with the Section 4(f) regulations in effect at the time the evaluation was
finalized, this memorandum of law cites to FHWA’s previous Section 4(f) regulations.
4
other similar attributes. Id. The WSRA identifies the rivers in the System, sets forth a
procedure by which additional rivers may be added, and provides guidance on how the
designated rivers should be managed. 16 U.S.C. §§ 1274-1284.
The System includes the St. Croix River. 16 U.S.C. §§ 1274(a)(6), (8). The St. Croix
extends from Solon Springs, Wisconsin to its confluence with the Mississippi River in
Prescott, Wisconsin, and serves as the border between Minnesota and Wisconsin for a
significant portion of its length. Congress designated the Upper St. Croix as a Wild and
Scenic River in 1968. 16 U.S.C. § 1274(a)(6). The Lower St. Croix was added in stages
subsequently. 16 U.S.C. § 1274(a)(9).
The NPS administers the Lower St. Croix, in conjunction with the States of Minnesota
and Wisconsin, under joint guidelines issued by the Secretaries of Agriculture and Interior
at 47 Fed. Reg. 39,454 (Sept. 7, 1982). See also 36 C.F.R. § 297.1 et seq. The administering
agency must manage each designated river segment “in such manner as to protect and
enhance the values which caused it to be included in said system without, insofar as is
consistent therewith, limiting other uses that do not substantially interfere with public use and
enjoyment of these values.” 16 U.S.C. § 1281(a). Management plans for any such
component may establish varying degrees of intensity for its protection and development,
based on the special attributes of the area. Id.
The NPS manages the upper 27 miles of lands and waters within the scenic riverway
corridor, while Minnesota and Wisconsin administer the lower 25 miles. 66 Fed. Reg. at
5
56,848-56,849; see 16 U.S.C. § 1274(a)(9). The Project will be situated in the southern
segment of the Lower St. Croix which is administered by the states on a day-to-day basis and
over which the NPS exercises no control other than management planning and to discharge
its WSRA Section 7 obligations.
WSRA Section 7 provides for the protection of the free-flowing, scenic, and natural
values of designated rivers by prohibiting federal agencies from assisting in the construction
of “water resources projects” that would have a “direct and adverse effect on the values” for
which any such river was included in the System. 16 U.S.C. § 1278(a). Section 7 directs the
appropriate Secretary, here the Secretary of the Interior, to determine whether a proposed
water resources project will “have a direct and adverse effect on the values for which such
river was established.” Id. This Court upheld the NPS’s determination that an earlier bridge
proposal over the St. Croix was a “water resources project.” Sierra Club North Star
Chapter v. Pena, 1 F. Supp.2d 971, 979-80 (D. Minn. 1998)(“Pena”). While the application
for or issuance of dredge and fill permits by the Corps of Engineers pursuant to the Rivers
and Harbors Act of 1899 (33 U.S.C. § 401, et seq.) or Section 404 of the Clean Water Act
(33 U.S.C. § 1344) traditionally has triggered WSRA Section 7 determinations when the
permits pertain to water resources projects on designated rivers, this Court determined the
NPS’s Section 7(a) evaluation challenged by the Sierra Club in this action is ripe for judicial
6
review.4
4. The Organic Act and General Authorities Act.
The Organic Act (“OA”) established the NPS and created its authority over the
maintenance of national parks. It grants broad discretion to the NPS to balance the often
competing policy goals of conservation, access, and safety, and provides the NPS is to
"regulate the use" of national parks by means that conform to their "fundamental purpose":
“to conserve the scenery and natural historic objects and the wildlife therein and to provide
for the enjoyment of the same in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations.” 16 U.S.C. §1; see NPS Management
Policies § 1.4 (2006).
The General Authorities Act (“GAA”), a 1970 amendment to the OA, confirmed the
mandate of the OA: “The authorization of activities shall be construed and the protection,
management, and administration of these areas shall be conducted in light of the high public
value and integrity of the National Park System and shall not be exercised in derogation of
the values and purposes for which these various areas have been established,” except as
otherwise provided by Congress. 16 U.S.C. §§ 1a-1. The NPS construes the “derogation”
standard in the GAA as a reiteration of the non-impairment standard set forth in the OA–that
is, a duty to prohibit the impairment of the integrity of park resources and values. See NPS
4
The Government disagrees with that determination and reserves that issue for any
appeal.
7
Management Policies § 1.4.2 (2006).
B. FACTUAL BACKGROUND.
1. Saint Croix River Crossing Project.
The Project includes a crossing of the St. Croix River (the “Proposed Bridge”)
between Trunk Highway (“TH”) 36 in Oak Park Heights, Minnesota, and State Trunk
Highway (“STH”) 64 in St. Joseph, Wisconsin. FHWA_AR_7826. Both highways are on
the National Highway System (“NHS”), a system of roadways important to the economy,
defense, and mobility of the United States. FHWA_AR_7841. The Project includes
reconstruction of the Minnesota and Wisconsin approach roadways to the Proposed Bridge
and construction in Stillwater and Bayport, Minnesota. FHWA_AR_7826.
2. Purpose and Need.
Ten bridges already traverse the St. Croix River to link the transportation systems of
Wisconsin and Minnesota, one of which is a two-lane lift bridge (“Lift Bridge”) between
Stillwater, Minnesota, and Houlton, Wisconsin, that is listed on the National Register of
Historic Places. FHWA_AR_7827. The Lift Bridge is a critical crossing over the St. Croix
River. FHWA_AR_7783. Built in 1931, the Lift Bridge is also a source of traffic congestion
in Stillwater and Houlton, because vehicles must wait for the bridge to be raised and lowered
to allow boats to travel under the bridge. Id. Traffic on the Lift Bridge has grown with
increased tourism in the Saint Croix River valley and a growing population on both sides of
the river. Id. The Lift Bridge has aged and has structural, operational, and maintenance
8
issues. Id. The limitations of a two-lane Lift Bridge, the demands of raising and lowering
the bridge, and ongoing maintenance and operations have raised concerns about safety on the
Lift Bridge as well as on the roadways approaching it. FHWA_AR_7787. Additionally,
insufficient roadway/intersection capacity in downtown Stillwater causes poor traffic
operations on TH 36, delays responses by emergency vehicles, and impedes access to
properties. Id.
The Project seeks to improve Minnesota TH 36 and Wisconsin STH 64 between TH
5/County State Aid Highway (“CSAH”) 5 in Oak Park Heights, Minnesota and 150th Avenue
in St. Joseph, Wisconsin, to provide a safe, reliable, and efficient transportation corridor by
reducing congestion, improving roadway safety, and providing an adequate level of service
for forecasted year 2030 traffic volumes. FHWA_AR_7840. Transportation needs for the
Project fall in two primary categories: (1) transportation mobility on a safe and efficient
facility;5 and (2) a reliable crossing of the St. Croix River.6 Id.
3. Development and Evaluation of Alternatives and Public Input.
a. The 1995 Proposal.
A replacement bridge crossing near Stillwater has been discussed for many years.
For a detailed discussion of the mobility and safety issues this Project is intended
5
to address, see Final Supplemental Environmental Impact Statement (“FSEIS”),

FHWA_AR_7843 – 7848.
For a detailed discussion of the purpose and need for this Project, see FSEIS,
6
FHWA_AR_7848 – 7849.
9
FHWA_AR_7830. Formal assessment of the alternatives to address growing transportation
problems in the area began in 1985. Id. Alternatives assessed in 1985 led to an analysis of
three river crossing alternatives and two tunnel alternatives in the 1990 Draft EIS. Id. A
Preferred Alternative was identified in the 1995 Final EIS (“1995 Preferred Alternative”).
Pena, 1 F.Supp.2d at 974. The 1995 Preferred Alternative included (1) upgrading TH 36 for
a new bridge approach, (2) construction of a new four-lane bridge over the St. Croix south
of Stillwater between Oak Park Heights and Houlton, and (3) construction of a new bridge
approach in Wisconsin (“1995 Project”). Id. The 1995 Project called for construction of
eight piers in the bed of the St. Croix River and adjacent wetlands on the Minnesota side.
Id. Construction activities would have required dredge and fill in the waterway and thus,
pursuant to the Clean Water Act, a permit from the Corps of Engineers. Id.; see 33 U.S.C.
§ 1344.
On December 27, 1996, the NPS issued a WSRA Section 7 determination concluding
the 1995 Project would have a direct and adverse effect on the St. Croix River. This
determination prohibited other federal agencies from issuing any further permits, approvals,
or authorizations for the 1995 Project. 16 U.S.C. § 1278(a). This Court upheld the NPS’s
determination. Pena, 1 F.Supp.2d at 983.
b. Revised planning.
After Pena, MnDOT retained Richard P. Braun to determine whether present and
future traffic could be accommodated on the Lift Bridge or whether a replacement crossing
10
was needed and to investigate potential bridge alignment alternatives between the 1995
Preferred Alternative on the south and the Lift Bridge on the north. FHWA_AR_7831. The
Braun facilitation process concluded a new four-lane bridge was required to satisfy present
and future traffic demand and recommended further study of a bridge alignment 3,600 feet
south of the Lift Bridge. Id.
Meanwhile, on March 5, 1998, the Midwest Region of the NPS issued a memorandum
entitled “Policy for integrating National Park Service Section 7 evaluations with the National
Environmental Policy Act compliance process of the project sponsor.” Hanson Declaration,
Exhibit A (Docket No. 19). The NPS prepared this directive to facilitate coordination among
project sponsors earlier in a project process concerning the issues likely to be raised during
a Section 7 evaluation process. This policy allows for preparation of a draft Section 7
evaluation to be included, if possible, in the Draft EIS and/or in the Final EIS prepared by
the project sponsor: “To the extent practicable, impacts on Wild and Scenic River values will
be considered in the context of other review procedures provided by law.” 36 C.F.R. §
297.6.
In 1999, work began on a Supplemental Draft EIS (“SDEIS”), but was suspended for
various reasons. FHWA_AR_7831-32. FHWA_AR_7832. In Fall 2001, while work on the
project was suspended, FHWA requested assistance from the United States Institute for
Environmental Conflict Resolution (“IECR”). Id. The IECR met with the adjacent
communities, potential permitting agencies, and other interested parties and concluded a
11
consensus decision regarding the project was possible. FHWA_AR_992 – 1044.
In September 2002, the facilitation firm RESOLVE was selected to mediate a process
that centered on a “Stakeholders Group” composed of representatives of diverse interests,
including the Sierra Club.7 FHWA_AR_7832. This “Stakeholder Resolution Process”
responded to the need for a new approach to address the environmental, historical, and
transportation issues related to the Project. Id. Formal stakeholder meetings began in June
2003, and a total of 18 stakeholder meetings were held. FHWA_AR_4688-4689;
FHWA_AR_8249. Members of the Stakeholders Group also met separately as subgroups
to analyze various aspects of the Project related to: (1) cumulative impacts, (2) cultural
resources impacts/Section 106/Section 4(f), (3) water resources/standards, (4) public
information meetings, (5) traffic forecasting, and (6) bridge design. FHWA_AR_4689-4690.
The Stakeholder Resolution Process analyzed all alternatives previously studied, as
well as new alternatives. FHWA_AR_9156; FHWA_AR_4161 – 4164. The Stakeholders
7
The Saint Croix River Crossing Stakeholders Group included MnDOT, WisDOT,
FHWA, NPS, U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Environmental
Protection Agency, U.S. Fish and Wildlife Service, Advisory Council on Historic
Preservation, National Trust for Historic Preservation, Minnesota and Wisconsin State
Historic Preservation Offices, Minnesota Department of Natural Resources, Wisconsin
Department of Natural Resources, City of Stillwater, City of Oak Park Heights, Town of St.
Joseph, Preservation Alliance of Minnesota, Stillwater Heritage Preservation Commission,
St. Croix River Association, Friends of the St. Croix, Stillwater Area Chamber of Commerce,
Sierra Club, St. Croix Alliance for an Interstate Bridge, St. Croix County Transportation
Committee, Stillwater Lift Bridge Association, Western Wisconsin Realtors Association,
New St. Croix Bridge Coalition, and the Minnesota Center for Environmental Advocacy.
FHWA_AR_8248.
12
Group reevaluated four corridors identified in the 1987 Scoping Decision Document, five
corridors identified in the 1990 Draft EIS, the 1995 Preferred Alternative, and two
alternatives identified in the 1999 Amended Scoping Decision Document.8
FHWA_AR_4162. The Stakeholders Group selected five build alternatives (Alternatives
A, B, C, D, and E) and a No-Build Alternative as potentially meeting the Project’s
transportation needs, and those alternatives and potential issues/impacts associated with them
were discussed in the 2003 Amended Scoping Document/2003 Amended Draft Scoping
Decision Document.9 FHWA_AR_9156 – 9200. In December 2003, MnDOT and WisDOT
held two public scoping meetings for the Project, which presented information gathered
during the Stakeholder Resolution Process to the public and solicited input from the public
regarding the alternatives evaluated during the Stakeholder Resolution Process.
FHWA_AR_30627 – 30717.
After considering additional comments from the Stakeholders Group and the public,
including the Sierra Club, see e.g., FHWA_AR_30733 – 30797 and 31561 – 31585,
8
Scoping, as the term is used in the NEPA process, means “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
9
A draft of this document was provided to members of the Stakeholders Group for
comment, and their comments were considered before this document was finalized in
November 2003. FHWA_AR_30375 – 30458.
13
Alternative A was dismissed from further study the Supplemental Draft EIS.10 As explained
in the 2004 Amended Final Scoping Decision Document, Alternative A was eliminated as
a candidate for further study in the SDEIS because it did not meet the purpose and need for
the project. Travel demand modeling results revealed only minor improvement in vehicle
hours traveled, vehicle miles traveled, and vehicle miles traveled under congested conditions
under Alternative A. Analyses of travel demand forecasting results revealed that Alternative
A did not resolve the congestion problem in the project area, but shifted it to the I-94
corridor. FHWA_AR_2966 – 2967.
Alternative B evolved into Alternative B-1, which was developed to reduce
Alternative B’s impacts on the Wisconsin bluff and provide a more perpendicular crossing
of the St. Croix River. FHWA_AR_2952. Alternative B-1 was also divided into two sub-
alternatives: (1) Alternative B-1a where the Lift Bridge would be converted to a pedestrian
and bicycle facility and (2) Alternative B-1b where the Lift Bridge would remain open to
traffic. Id.
On June 15 and June 21, 2004, the Stakeholders Group, MnDOT, and WisDOT held
10
The Sierra Club proposed Alternative A, FHWA_AR_8377 – 8411, to address
transportation needs in the project area through use of transit and emergency vehicle
advantages (transit and emergency vehicle lanes, park-and-ride facilities), new transit travel
options (water transit service, express bus service, circulator shuttle, commuter rail lines),
use of advanced technologies to enhance mobility (opticon emitters), widening STH 65 in
Wisconsin from two lanes to four lanes for the purpose of redirecting more traffic to the I-94
river crossing, and use of other regional policy changes. FHWA_AR_4111. Alternative A
was refined, based on recommendations by a panel of national travel demand experts, so that
the alternative better meet future travel demands. FHWA_AR_4112.
14
public meetings regarding potential alternatives for the Project. FHWA_AR_4694.
Approximately 450 people attended the two meetings, which included a presentation by a
panel made up of representatives from MnDOT, WisDOT, and FHWA. Id. An Open House,
featuring plans, drawings, and maps of the various alternatives, preceded each meeting. In
June 2004, FHWA, MnDOT, and WisDOT, after considering comments from the
Stakeholders Group and the public, circulated a preliminary version of the Supplemental
Draft EIS (“SDEIS”) and the Section 4(f) Evaluation to all members of the Stakeholders
Group for further comment. FHWA_AR_30802 – 31436 and 31442-31560.
In August 2004, the SDEIS was published and released to the public.
FHWA_AR_4016 – 5255. The rationale for not studying Alternative A further in the SDEIS
was documented in the SDEIS and in the 2004 Amended Final Scoping Decision Document.
FHWA_AR_4110 – 4113; FHWA_AR_2966 – 2967. The SDEIS evaluated the potential
direct, indirect, and cumulative impacts of four Build Alternatives (Alternatives B-1, C, D,
and E) and the No-Build Alternative 11 and analyzed in detail (1) social, relocation, and
economic impacts, (2) land use impacts, (3) visual impacts, (4) air quality, traffic noise, and
contaminated sites related impacts, (5) natural resource impacts, (6) water resources impacts,
(7) archaeological and historic resources impacts, (8) construction impacts, and (9)
cumulative impacts associated with the four Build and the No-Build Alternatives.
FHWA_AR_4222 – 4664.
11
For a detailed discussion of each alternative, see FHWA_AR_4117 – 4164.
15
After the SDEIS was published, the transportation agencies accepted public comment.
On September 21 and 22, 2004, MnDOT, WisDOT, and FHWA held two public hearings to
present information on the SDEIS and gather public input on the SDEIS. FHWA_AR_32748
– 32766, 32723 – 32747. Approximately 400 people attended both meetings, which featured
numerous plans, drawings, maps and video animations of the various alignments and the
impact analyses. Over 600 comments on the SDEIS were received, including comments
from the Sierra Club. FHWA_AR_8257–8491, 32958–33204.
In July 2005, FHWA, MnDOT, and WiscDOT circulated to the Stakeholders Group
a preliminary version of the Supplemental Final EIS (“SFEIS”) and the Section 4(f)
Evaluation. FHWA_AR_33920 –34618, 34690-34739.
After another year of evaluation, which included more Stakeholders Group meetings
and further consideration of public, federal, state, and local agency comments, MnDOT,
WisDOT, and FHWA issued the Supplemental Final EIS (“SFEIS”) for the Project in June
2006. FHWA_AR_7751 – 8870. The SFEIS documented the rationale for not studying
Alternative A further in the SDEIS. FHWA_AR_7852, 7858. FHWA’s Final Section 4(f)
Evaluation was included in the SFEIS as Appendix E. FHWA_AR_9274 – 9335. The NPS’s
Draft Section 7(a) Evaluation of the Project was included in the SFEIS as Appendix F
(“Section 7(a) Evaluation”). FHWA_AR_8580 – 8649.
4. The 2006 Preferred Alternative.
The 2006 SFEIS identified a Preferred Alternative, Alternative B-1a (“2006 Preferred
16
Alternative”), FHWA_AR_7864 – 7876. The 2006 Preferred Alternative includes a roadway
from the Highway 5/Highway 36 interchange in Minnesota, crossing the St. Croix River
along the B-1 alignment, and ending at the 150th Avenue overpass in Wisconsin. The
Proposed Bridge would be an extra dosed bridge consisting of towers with cables connecting
the towers to the bridge deck. The bridge deck will be 113 to 159 feet above the river surface
and the towers would extend approximately 60 feet above the bridge deck.
Under the 2006 Preferred Alternative, the Lift Bridge will be converted to a
pedestrian/bicycle facility and be a component of a loop trail connecting Minnesota and
Wisconsin via the Lift Bridge and the new bridge.
The 2006 Preferred Alternative contains significant new mitigation measures not
present in the 1995 proposal. FHWA, MnDOT and WisDOT, in consultation with the
Stakeholders Group, developed the mitigation package, funded at over $16.5 million, to
address natural, social, and cultural impacts. Key elements of the mitigation package include
wetland replacement, relocation of threatened and endangered species, bluff land restoration
and preservation activities, removal of visual intrusions from the riverway, and funding for
the long-term preservation of the Lift Bridge. The Riverway Memorandum of Understanding
(“MOU”) documents the process to implement the mitigation package.
FHWA_AR_00008691 – 00008710. An Amended Section 106 Memorandum of Agreement
(“MOA”) was also developed to mitigate the impacts to historic resources, including the Lift
Bridge. FHWA_AR_00008650 – 00008690. A MOU was also executed to establish a water
17
quality management advisory committee. FHWA_AR_00008720 – 00008724. Finally, to
address the potential negative impacts to area resources from accelerated growth in St. Croix
County, mitigation measures were identified to provide support to local governments in
managing growth through local plans, ordinances, and other related tools. The Growth
Management MOU documents the administrative process to implement these mitigation
measures. FHWA_AR_00008711 – 00008719.
The SFEIS also analyzed in detail (1) social, relocation, and economic impacts, (2)
land use impacts, (3) visual impacts, (4) air quality, traffic noise, and contaminated sites
related impacts, (5) natural resource impacts, (6) water resources impacts, (7) archaeological
and historic resources impacts, (8) construction impacts, (9) indirect effects, and (10)
cumulative impacts associated with the Preferred Alternative. FHWA_AR_7921 – 8194.
After the SFEIS was published, the transportation agencies accepted public comment.
5. Differences between 1995 and 2006 Preferred Alternatives.
The 2006 Preferred Alternative differs substantially from the 1995 Preferred
Alternative. FHWA_AR_00007877. The extra dosed design of the 2006 Proposed Bridge
reduces the apparent mass of the structure by reducing the number of piers in the water and
the height of structures above the bridge deck. The 2006 Proposed Bridge alignment is more
perpendicular to the riverway than was the 1995 proposed bridge, resulting in less bridge
structure over the St. Croix and fewer piers in the riverway (4 to 6 piers in the river as
opposed to the 8 piers in the 1995 plan). Fewer piers in the river results in less obstruction
18
for recreational boaters on the St. Croix and less disturbance to the riverway. The extra
dosed bridge design will allow for a 200-foot mussel shelf along the Wisconsin shoreline to
be spanned by the bridge structure thereby avoiding impacts to this aquatic habitat. As
opposed to the 1995 plan, the Xcel Energy barge facility will be used for barge docking and
staging for construction of the river crossing prior to its eventual removal from the riverway.
The re-use of this existing facility for the Project avoids the placement of a temporary barge
docking facility that would otherwise be constructed in the river were the Xcel facility not
present. Unlike the 1995 plan, the Lift Bridge will be closed to vehicular traffic and will be
converted to a pedestrian/bicycle facility under the 2006 Preferred Alternative. Finally, as
stated, the 2006 Preferred Alternative mitigation package includes a number of items to
offset the impacts of a new bridge on the values of the Lower St. Croix Riverway. See
SFEIS, Table 15-2, FHWA_AR_8211. See also FHWA_AR_57 – 59, 155-159,
FHWA_AR_7864 – 7877, 8209 – 8247.
6. The Section 7(a) evaluation.
The NPS prepared the Section 7(a) Evaluation in October 2005 to evaluate the impact
of Alternative B-1 for the Project on the values for which the Riverway was established.
Section 7(a) Evaluation at 1, NPS_AR_1758 et seq. See Hanson Declaration, Exhibit B
(Docket 19). The NPS confirmed the Project is a water resources project subject to WSRA
Section 7(a) that will require Federal assistance in the form of funding from the FHWA and
permits from the Corps of Engineers. Id. at 2, NPS_AR_1759.
19
The Section 7(a) Evaluation described the impacts of the Project on the free-flowing
character of the St. Croix and its water quality, including hydrology, sedimentation, and
erosion. Id. at 15-26, NPS_AR_1773-84. The Section 7(a) Evaluation also analyzed the
Project’s effects both temporary impacts during bridge construction and long-term impacts
on the river’s outstandingly remarkable scenic, recreational, and geologic values, including
impacts to landforms, vegetation, wildlife, scenic views, and land- and water-based
recreational activities.12 Id. at 27-47, NPS_AR_1785-1805.
The NPS examined the effect of the proposed mitigation measures on Project impacts
in the Section 7(a) Evaluation. It included a table summarizing the mitigation items and a
detailed description of each item. Id. at 8-15, NPS_AR_1766-73. The NPS concluded the
Preferred Alternative, when taken along with the proposed mitigation package, would not
have a direct and adverse effect on the Riverway’s scenic and recreational values, provided
certain identified measures are ultimately incorporated into the Project to ensure mitigation
success. Id. at 49, NPS_AR_1807.
7. The Record of Decision.
On November 13, 2006, FHWA issued a Record of Decision (“ROD”) for the Project.
FHWA_AR_9019 – 9130.
12
The outstandingly remarkable geologic values for which the Rvierway was
designated refer to the Dalles, located approximately 25 miles upstream of the proposed
project location. These geologic values will not be affected by the bridge project. Id. at 49,
NPS AR 1807.
20
On December 5, 2006, the FHWA published a notice in the Federal Register that
announced that a number of federal agency actions related to the Project were final.
FHWA_AR_9138 – 9139.
Sierra Club filed its complaint on June 5, 2007.
ARGUMENT
I. STANDARD AND SCOPE OF REVIEW.
NEPA, Section 4(f), the WSRA, the OA, and the GAA do not provide waivers of
sovereign immunity; thus, Sierra Club seeks judicial review under the APA. Under the APA,
this Court may set aside the decisions to approve the Project only if it finds that Defendants’
decisions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). Sierra Club bears the burden of demonstrating Defendants’ decisions fail
under the APA. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995).
The role of a court in reviewing agency decision-making is limited. Friends of
Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1127 (8 th Cir. 1999), citing
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.
519, 555 (1978). In upholding an agency’s decision, it is not necessary that all the evidence
in the administrative record or, indeed, even the weight of that evidence, support the agency
decision. The fact that conflicting views are expressed, particularly where, as here, there is
opposition to the project, does not thereby render the agency decision invalid. A reviewing
21
court “must consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.” Volpe, 401 U.S. at 416. In
other words, a court’s role is only to assess whether the agency’s decision is “within the
bounds of reasoned decision making,” Baltimore Gas & Electric Co. v. Natural Res. Def.
Council, 462 U.S. 87, 105 (1983), and whether the agency in question took a ‘hard look’ at
the environmental consequences of the proposed action. Arkansas Wildlife Federation v.
U.S. Army Corps of Engineers, 431 F.3d 1096, 1101 (8 th Cir. 2005). A reviewing court may
not substitute its own judgment for that of the agency. Vermont Yankee, 435 U.S. at 555.
The scope of the court’s review is limited to the administrative record before the agency
when it made its decision. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985).
II. NO VIOLATION OF THE COOPERATIVE MANAGEMENT PLAN.
Count I of the complaint alleges a violation of the WSRA based on alleged violations
of the Cooperative Management Plan (“CMP”) for the Lower St. Croix. NPS_AR_001-78.
This claim fails for several reasons.
The WSRA charges the NPS with developing and administering the comprehensive
management plan for the St. Croix River. The CMP is a joint planning document for the
riverway prepared by the NPS, MnDOT and WisDOT. 66 Fed. Reg. 56,848 (Nov. 13, 2001).
The Project lies within the southernmost portion of the Lower St. Croix over which the NPS
exercises no control other than its Section 7 responsibilities.
The WSRA provides for considerable flexibility and agency discretion regarding
22
creation and implementation of river management plans. “Management plans for any such
component may establish varying degrees of intensity for its protection and development,
based on the special attributes of the area.” 16 U.S.C. § 1281(a). Furthermore, the
“Secretary of the Interior, in his administration of any component of the national wild and
scenic rivers system, may utilize such general statutory authorities relating to areas of the
national park system and such general statutory authorities otherwise available to him for
recreation and preservation purposes and for the conservation and management of natural
resources as he deems appropriate to carry out the purposes of this Act.” 16 U.S.C. §
1281(c). The CMP provides “a policy-level management framework for the riverway.” 66
Fed. Reg. at 56,851.
Management plan provisions and general management policies are not enforceable
absent some clear and mandatory duty imposed on the agency. Riverhawks v. Zepeda, 228
F. Supp.2d 1173, 1186 (D. Or. 2002). Nothing in the CMP imposes any clear and mandatory
duty on the NPS with respect to their actions on the Project; therefore, this claim fails.
The NPS has complied with the CMP. Under the 2006 Preferred Alternative, the NPS
insisted the Lift Bridge be closed to vehicular traffic and converted to a recreational facility
for pedestrian/bicycle use to enhance the recreational value of the Riverway.
FHWA_AR_7875, 8629, 8696-8698. Thus, consistent with the CMP, the Lift Bridge will
no longer be a transportation crossing. The NPS had the discretion to determine this
alternative complies with the goals of the CMP and fulfills the NPS’s role in balancing
23
competing river values. Riverhawks, 228 F. Supp.2d at 1184.
FHWA has no statutory or regulatory responsibilities related to the comprehensive
management plan for the St. Croix River. See 16 USC 1274(d).
The Court should grant summary judgment to Defendants on Count I.
III. THE NPS IS NOT LIABLE UNDER COUNTS II, IV, OR V.
A. THE SECTION 7(A) DETERMINATION IS NOT REVIEWABLE
The Court lacks subject matter jurisdiction over the WSRA claim, because, while
generally judicial review of agency actions is available under the APA, 5 U.S.C. § 702,
Congress provided that no judicial review was permitted of “agency action...committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). The exemption applies where the subject
statute, WSRA here, is “drawn in such broad terms that there is no law to apply.” Volpe, 401
U.S. at 410. There must be law to apply in the particular case, not just law in the abstract
which could possibly be applied. Id.; see generally, Heckler v. Chaney, 470 U.S. 821, 831-32
(1985); Greer v. Chao, 492 F.3d 962, 964-67 (8th Cir. 2007). In the absence of legislated
standards stating how an agency is to exercise its discretion, its decision not to enforce in a
particular situation is nonreviewable. Heckler, 470 U.S. at 832-33. This exemption
precludes review of the WSRA claim.
The only court that appears to have addressed this issue held a Section 7(a)
determination was not reviewable, because “[n]either the WSRA nor the implementing
regulations provide any legal standard by which to review their decision to base the Section
24
7(a) determination on the [selected] alternative [dam] operating mode. Likewise, no legal
standard in the statute or the regulations governs how the determination is to be made, what
experts are to be consulted, or how the opinions of those consulted are to be evaluated,
weighed, accepted, or rejected.” Oregon Natural Resources Council v. Marsh, 845 F. Supp.
758, 770 (D. Ore. 1994), aff’d in part, rev’d in part on other grounds, 52 F.3d 1485 (9 th Cir.
1995). Similarly, here, Sierra Club asks the Court to second guess the NPS, but offers the
Court no law from WSRA to apply in support of its claims. In the absence of such
substantive law, the Court lacks jurisdiction to review the Section 7(a) determination.
In the event the Court finds jurisdiction, its standard of review is highly deferential
to the NPS. Substantial weight must be given to the NPS’s application of Section 7(a) which
Congress has entrusted it to administer. Id., citing inter alia Chevron United States, Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 843 (1984). Accord Mausolf v. Babbitt,
125 F.3d 661, 667 (8 th Cir. 1997); Pena, 1 F. Supp. 2d at 981. The issue is whether the NPS
rationally concluded the Project will not have a direct and adverse effect on the values for
which the Lower St. Croix was designated as a Wild and Scenic River. Assuming a Section
7(a) determination may be reviewed, Pena, 1 F. Supp. 2d at 983 (upholding the NPS’s
Section 7 determination of adverse effect), the NPS’s Section (a) Evaluation in this case was
likewise “a rational one.” Id. at 983.
B. THE SECTION 7 DETERMINATION SATISFIES THE APA.
1. The NPS is not bound by its Section 7 determination on the 1995 Proposal.
25
The NPS is not bound by its Section 7 determination on the 1995 proposal. In
High Country Resources v. Federal Energy Regulatory Comm’n (FERC), 255 F.3d
741, 747 (9 th Cir. 2001), the Ninth Circuit held a regional forester was not barred from
making a later, contrary Section 7 determination on a proposed FERC-licensed project.
The Ninth Circuit held there was no res judicata effect of the first Section 7(a)
determination, although that final decision of the agency was made on appeal to the
Chief of the Forest Service. Id. Rather, the Ninth Circuit held the earlier
determination was not binding where the case involved “consecutive decisions reached
within a single agency after new information” became available. Id. Similarly, here
the 2006 Preferred Alternative contains significant differences from the 1995 Proposal.
Consequently, the NPS was not bound by its prior evaluation of a different project.
2. The NPS’S Section 7(a) Evaluation is worthy of deference.
The WSRA set forth a national policy:
that certain selected rivers of the Nation which, with their immediate
environments, possess outstandingly remarkable scenic, recreational, geologic,
fish and wildlife, historic, cultural, or other similar values, shall be preserved
in free-flowing condition, and that they and their immediate environments shall
be protected for the benefit and enjoyment of present and future generations.
16 U.S.C. § 1271. Such protected rivers were also to be managed to protect water quality and
to fulfill other national conservation purposes. Id. The 1973 study that recommended the
Lower St. Croix River for addition to the Wild and Scenic Rivers System found that this lower
52-mile stretch of the river possessed outstandingly remarkable scenic, recreational, and
26
geologic values. Section 7(a) Evaluation at 2-3, NPS_AR_1760. The original Master Plan
for management of the Riverway and the updated CMP also identify the river’s outstandingly
remarkable values as scenic, recreational, and geologic.13 Id. at 3, NPS_AR_1760.
As described in the Section 7(a) Evaluation, the four to six piers located in the river
would serve as a minor obstruction to its free-flowing character. Section 7(a) Evaluation at
15-20, 49, NPS_AR_1778. While that impact would be negligible, there would be a
measurable alteration of the bed and banks of the river. Id. at 49, NPS_AR_1778. However,
the proposed bridge would have no measurable influence on flood elevations, the velocity of
the river, and water depth upstream. Id.
The Section 7(a) Evaluation analyzed effects on water quality, finding the Proposed
Bridge may have temporary negative impacts on the Riverway’s outstanding water quality,
particularly during construction of the bridge and piers. Section 7(a) Eval. at 20-28, 49-50,
NPS_AR_1784. Other negative impacts could occur after bridge construction is complete if
storm water run-off systems fail or retention/detention basins are flushed during flood events.
Id. Sedimentation from erosion of the Wisconsin bluff caused by construction activities could
also result in longer-lasting temporary impacts. Id. at 25, NPS_AR_1784.
However, various types of potential water quality impacts were thoroughly analyzed.
The NPS considered the mitigation solutions associated with installation of coffer dams and
13
The outstandingly remarkable geologic values for which the Riverway was
designated refer to the Dalles, located approximately 25 miles upstream of the proposed
project location. These geologic values will not be affected by the bridge project. Id. at 51,
NPS AR 1807.
27
construction of pier supports, coffer dam dewatering, bridge deck construction, and removal
of Xcel Energy barge mooring cells and the Terra Terminal shoreline restoration. Id. at 23-26,
NPS_AR_1783. The NPS concluded most of the water quality impacts would be temporary
or could be avoided if precautions are taken to protect the basins from floods and the planned
safeguards (such as the storm water run-off system) do not fail. Id. at 50, NPS_AR_1784.
Longer-term sedimentation impacts from the Wisconsin bluff will require effective erosion
control measures, including best management practices, constant maintenance, and frequent
assessment. Id. at 27-28, NPS_AR_1784.
The Section 7(a) Evaluation concluded the Project would alter the scenic qualities of
this segment of the river. Id. at 50, NPS_AR_1806. However, significant new mitigation
measures included in the 2006 Preferred Alternative provided the basis for the NPS’s
determination that the Project will not have a “direct and adverse impact” on the Lower St.
Croix’s scenic and recreational values.
Removal of the 18 mooring cells and the barge off-loading facility at the Xcel Energy
Allan S. King Plant would have a positive influence on the river’s free-flowing condition.
This action would remove a large mass of material that currently serves as an unnatural
modification of the Riverway. Id. at 49, NPS_AR_1778; see Photos, NPS_AR_1810.
In the context of analysis of impacts to scenic qualities, the NPS considered impacts
to landforms and terrain, vegetation, wildlife, and views upstream and downstream from the
water and the banks. Id. at 29-38, NPS_AR_1785-1794; see Photo Simulations,
28
NPS_AR_1817-24. Various mitigation strategies would be implemented to minimize the
visual impact of the Proposed Bridge, beginning with bridge location, siting, and design. The
Proposed Bridge uses an alignment that is mostly perpendicular to the river and located in
existing bluff cuts in an effort to minimize bridge length and bluff impacts. Id. at 39,
NPS_AR_1795. The location of the crossing minimizes impacts to the historic scene of
Stillwater, Minnesota. Id. The extra dosed bridge design and materials reduce the apparent
mass of the structure by minimizing the number of piers and overall height. Id. The aesthetic
design and the use of context sensitive materials further minimize impacts to the scene, as
determined by the Visual Quality Planning Process, in which NPS was a participant.14 Id. at
39-40, NPS_AR_1795. Other measures that will minimize visual impacts include treatments
on the piers and abutments to provide an obvious connection to the historic materials found
in structures in nearby downtown Stillwater and the natural materials that compose the river
bluffs. Id. at 40, NPS_AR_1796.
The NPS acknowledged minimization strategies alone cannot reduce the impact of a
bridge this size on the scenic values of the Riverway to an acceptable level. Id. However, the
NPS concluded that “the minimization strategies that have been incorporated into the project
may reduce its impact to the level that remaining impacts could be adequately offset by
mitigation measures that restore the affected environment and/or compensate for the impacts
14
The mission of the Visual Quality Planning Process is to “articulate community
values to ensure sensitive visual quality and aesthetic design results while at the same time
satisfying transportation needs and avoiding adverse impacts to the area’s social, economic,
cultural, and environmental needs.” Section 7(a) Evaluation at 38, NPS AR_1796.
29
by replacing or providing substitute resources or environments.” Id. Mitigation measures
identified to repair, rehabilitate, or restore the affected views by removing visual intrusions
in the same viewshed—and to be comparable to the proposed construction project in terms
of scope and scale—include removal of the Xcel barge unloading facility and mooring cells,
removal of the large “Hollywood”-style “Buckhorn” sign on the Wisconsin bluff, removal of
the Terra Terminal Building, and removal of vehicular traffic from the Lift Bridge. Id. at 40-
41, NPS_AR_1797 and photos at NPS_AR_1810, 1812, 1814.
Offsite restorative measures to mitigate impacts to vegetation and wildlife include
funding for archaeological surveys necessary to facilitate offsite restoration of native
vegetation, habitat, and views, as well as development of new recreational facilities, such as
primitive campsites. Id. at 41, 47, NPS_AR_1797. Compensatory mitigation measures that
provide substitute resources or environments include the purchase of offsetting blufflands
within one-quarter mile of the project and restrictive covenants on any excess property in the
area sold by WisDOT. These will restore views along the Riverway and protect them from
development. Id.; see also, Comparison Chart of Proposed Bridge and Direct Offsets for
corresponding scope and scale, id. at 42-43, NPS_AR 1797. Effectiveness of these measures
is also positively evaluated. Id. at 43-44, NPS_AR_1796-1801.
According to the eligibility study, the characteristics that make the Lower St. Croix an
outstanding recreational resource are its high water quality suitable for many outdoor
recreation pursuits, including whole body contact activities; its highly scenic course; and,
30
because of its proximity to the Twin Cities area, its capacity to provide outdoor recreation
opportunities to an urban population. Id. at 45, NPS_AR_1801. The NPS determined the
Proposed Bridge would degrade the recreational experience by creating a visual intrusion on
the natural and historic scene, by generating noise, and by placing obstructions in the river
channel. Id. at 46-47, NPS_AR 1804. But, in addition to the measures described above,
additional mitigation for impacts to recreation compensates for the impact by providing
substitute resources or environments. The removal of vehicular traffic from the Lift Bridge
would reduce the noise level in the vicinity and make the area more pleasant for recreational
activities. Id. at 47, NPS_AR_1804. The proposed pedestrian/bicycle loop trail provides a
new recreational activity in the affected area. See photo simulations, NPS_AR_1813, 1815.
The Project provides kiosks for interpretation of the natural and cultural resources of the
Riverway and restroom facilities would provide recreationists with new opportunities to learn
about the significance of the Riverway and enhance their experience. Id. The plan calls for
a new public boat launch and restroom facilities on the affected stretch of river, which would
satisfy a need identified by the MnDNR for additional public boat access in the area. Id. All
recreational facilities are to be designed in such a way so they do not adversely affect the
scenic values of the Riverway. Id. at 48-49, NPS_AR_1804.
The removal of vehicular traffic from the Lift Bridge also will improve water quality
and fisheries near the Lift Bridge by eliminating emissions and depositions from traffic in the
area. Removal of the Xcel barge facilities also will have a positive impact on fish and the
31
aquatic community by restoring and enhancing habitat in the river along the Minnesota shore.
Id. at 48, NPS_AR_1804.
In rendering its overall Section 7 determination, the NPS concluded that, although there
is no single mitigation measure that completely offsets the impact of the Proposed Bridge on
the scenic and recreational resources, “the total package” was adequate “provided that the
Visual Quality Planning Process results in a context sensitive design and assurances are built
in to each mitigation measure to secure their long-term success.” Id. at 49-50, NPS_AR_
1806. The NPS reached its Section 7(a) determination the Proposed Bridge, “when taken
along with its mitigation package would not have a direct and adverse effect on the scenic and
recreational values for which the Riverway was included in the System provided that the
measures as identified [sic] Section VII and IIX [sic] of this document are incorporated into
the project to insure that the mitigation package remains intact in perpetuity.” Id. at 51,
NPS_AR_1807. Finally, as described, the 2006 Preferred Alternative mitigation package is
implemented through various MOUs and MOAs among the appropriate parties with respect
to particular resources and responsibilities to ensure mitigation success. Id. at 52, NPS_AR_
1808.
A similar approach to an NPS Section 7 determination was accorded deference by the
court in Coalition for Canyon Preservation v. Hazen, 788 F. Supp. 1522, 1524-29 (D. Mont.
1990). Safety and access concerns were weighed by the NPS in reaching its decision to
authorize construction of a new bridge, and the ultimate design of the bridge was based on
32
consideration of historic, cultural, and scenic values associated with the entire area, including
the wild and scenic river corridor. Id. at 1524-28. The court concluded that “it is clear from
the record that the Park Service was cognizant of these [wild and scenic river] values and took
steps to protect the historic, scenic, aesthetic, archaeologic, and scientific features of the
river.” Id. at 1529. This Court should likewise defer here to the expertise of the NPS where
the record is “clear” that “the Park Service was cognizant of [the wild and scenic river] values
and took steps to protect the historic, scenic, aesthetic, archaeologic, and scientific features
of the [lower St. Croix]” and surrounding area. Id. This Court should uphold the NPS’s
Section 7(a) determination on the Project and grant summary judgment to the NPS on Count
II.
C. THE ORGANIC ACT AND GENERAL AUTHORITIES ACT CLAIMS.
Count IV alleges violations of the WSRA, the OA, and the GAA, allegedly because
the Project allows “impairment” of riverway resources.
The Proposed bridge would be located in the state administered portion of the Lower
St. Croix, so the OA and the GAA would not apply.
Morever, as explained in the ROD for the St. Croix River CMP, the “[i]mpairment that
is prohibited by the NPS Organic Act and the General Authorities Act is an impact that, in the
professional judgment of the responsible NPS manager, would harm the integrity of riverway
resources or values, including the opportunities that otherwise would be present for the
33
enjoyment of those resources or values.” 66 Fed. Reg. at 56,850 (emphasis added); see also,
NPS Management Policies §§ 1.4.2, 1.4.5 (2006).
Similarly, the 1982 Department of Agriculture and Interior Guidelines interpret the
management principles of Section 1281(a) of the WSRA as stating a “nondegradation and
enhancement policy for all designated river areas, regardless of classification.” 47 Fed. Reg.
at 39,458. The Guidelines further explain the WSRA requires the NPS to manage each
riverway so as to protect and enhance the values for which it was designated, “while providing
for public recreation and resource uses which do not adversely impact or degrade those
values.” Id. at 39,458-39,459. The Guidelines envision the use of varying strategies and
implementations, depending on the river segment’s classification and ownership. Id. at
39,459.
The “nondegradation” and “nonimpairment” mandates of these Acts afford NPS
managers broad discretion in achieving the statutes’ general mandates and do not prohibit all
impacts. See Fire Island N.Y. Coastal P’Ship, Inc. v. United States Dept. of the Interior, 341
F.3d 112, 117-18 (2nd Cir. 2003); Fund for Animals v. Norton, 512 F. Supp.2d 49, 54-55
(D.D.C. 2007); International Snowmobile Mfrs. Ass’n v. Norton, 340 F. Supp.2d 1249, 1266
(D. Wyo. 2004); Greater Yellowstone Coalition v. Babbitt, 952 F. Supp. 1435, 1441 (D. Mont.
1996). The NPS has authority to balance the potential harms of development or other projects
with its responsibilities for conservation, preservation, and public service, and to take into
34
account mitigation measures to offset impacts. City of Sausalito v. O’Neill, 386 F.3d 1186,
1226-1227 (9 th Cir. 2004).
Much like the Project at issue here, impacts of the construction project at issue in City
of Sausalito were to be offset by removal of existing structures, enhancement or restoration
of deteriorated landscape features, landscape and building changes in keeping with the historic
character of the site, and intensive uses to remain in areas where they currently occur. Id. at
1226. The court recognized that, like the Project in this case, “the Proposed Action would
provide for maximum protection of the site's cultural and natural resources to protect the
intangible qualities that contribute to its special character” and “[p]reservation of the character
of [the site] is considered a beneficial impact.” As in City of Sausalito, “[o]n this record, [this
Court] cannot conclude that the development contemplated by the [Project] is fundamentally
at odds with the directives of the Organic Act.”
Moreover, the St. Croix River CMP ROD specifically recognizes the nonimpairment
policy “does not prohibit all impacts to riverway resources and values,” but rather gives the
NPS the discretion to allow impacts to riverway resources and values “when necessary and
appropriate to fulfill the purposes of a riverway” and in such a manner that “[o]verall…would
protect and enhance the riverway’s natural, cultural, and scenic resources and the diverse
recreational uses found there.” 66 Fed. Reg. at 56,850-56,851.
The NPS acted within its discretion and expertise in determining the Project, including
the changes from the 1995 Proposal and the extensive mitigation package, would not have a
35
direct and adverse impact on the St. Croix River. This court should grant summary judgment
to the NPS on plaintiff’s WSRA, OA, and GAA claims.
D. THE NPS HAS NOT GRANTED A RIGHT OF WAY.
The Project is located in the State-administered portion of the Riverway. Because the
NPS does not own land in the Project area, Sierra Club’s allegations in Count V that the NPS
has granted a “new right-of-way” over the Lower St. Croix are factually and legally incorrect.
The Project required a Section 7 determination by NPS, because the Project involves a “water
resources project” under the WSRA. The NPS is entitled to summary judgment on Count V.
IV. THE FHWA COMPLIED WITH NEPA AND SECTION 4(f).
A. FHWA COMPLIED WITH NEPA.
1. FHWA Properly Evaluated the Alternatives.
Despite overwhelming evidence to the contrary, Sierra Club asserts FHWA failed to
consider adequately the alternatives for the Project. Sierra Club criticizes FHWA’s decision
not to study Alternative A in detail in the SDEIS (Complaint, ¶ 85), FHWA’s alleged failure
to consider a bridge with reversible lanes adjacent to the Lift Bridge (Id.), and FHWA’s
alleged failure to consider other alternatives, “like the construction of a smaller, two-lane
bridge south of Stillwater, expansion of the preexisting I-94 crossing at Hudson, or other
options.” Complaint, ¶ 86. Under the CEQ regulations, agencies shall “[r]igorouly explore
and objectively evaluate all reasonable alternatives, and for alternatives which were
36
eliminated from detail study, briefly discuss the reasons for their having been eliminated.”
40 C.F.R. § 1502.14(a). Sierra Club’s contentions lack merit under this standard.
First, contrary to Sierra Club’s suggestion, the FHWA considered numerous
alternatives throughout two decades of study as described above in detail; starting in
September 2002, through the Stakeholder Resolution Process, all alternatives previously
studied as well as new alternatives were reconsidered. FHWA_AR_9156. The Stakeholders
Group reevaluated twelve alternatives (four corridors identified in the 1987 Scoping Decision
Document, five corridors identified in the 1990 Draft EIS, the 1995 Preferred Alternative, and
two alternatives identified in the 1999 Amended Scoping Decision Document).
FHWA_AR_4162. The Stakeholders Group selected five build alternatives (Alternatives A,
B, C, D, and E) and a No-Build Alternative as potentially meeting the project’s transportation
needs; but Alternative A was eliminated as a candidate for further study in the SDEIS because
it did not meet the purpose and need for the project. FHWA_AR_2966 – 2967. In August
2004, after considering comments from the Stakeholders Group and the public, a SDEIS was
published, which evaluated the potential direct, indirect, and cumulative impacts of four Build
Alternatives (Alternative B-1, C, D, and E) as well as the No-Build Alternative. The rationale
for not studying Alternative A in the SDEIS was explained in the SDEIS. FHWA_AR_4111
– 4113. The SDEIS also analyzed in detail all the relevant impacts (direct, indirect,
cumulative, and otherwise) associated with the Build Alternatives and the No-Build
Alternative. FHWA_AR_4222 – 4664. After another year of evaluation, MnDOT, WisDOT,
37
and FHWA issued the SFEIS for the Project in June 2006. FHWA_AR_7751 – 8870. The
rationale for not studying Alternative A in the SDEIS was explained in the SFEIS. See
FHWA_AR_7852, 7858. The 2006 SFEIS identified a Preferred Alternative, Alternative B-
1a (“2006 Preferred Alternative”). FHWA_AR_7864 – 7876. The SFEIS also analyzed in
detail all the relevant impacts (direct, indirect, cumulative, and otherwise) associated with the
Preferred Alternative. FHWA_AR_7921 – 8194. FHWA’s Final Section 4(f) Evaluation and
the Section 7(a) Evaluations were appended to the SFEIS. This history demonstrates FHWA,
with input from MnDOT, WisDOT, the Stakeholders Group, and others, in fact considered
virtually every conceivable reasonable alternative.
FHWA carefully considered Alternative A and correctly discarded it because it did not
satisfy the Project’s purpose and need. Sierra Club proposed Alternative A to address
transportation needs in the project area through use of various means as described above. See
footnote 10 supra. FHWA_AR_8377–8411. Alternative A was refined, based on
recommendations by a panel of national travel demand experts, so it would meet future travel
demands better. FHWA_AR_4112. FHWA determined Alternative A, as modified, did not
meet the purpose and need of the Project. FHWA_AR_4111 – 4113 and FHWA_AR_7858.
Analyses of travel demand forecasting results indicated that Alternative A did not resolve the
congestion problem in the project area, but shifted it to the I-94 corridor. FHWA_AR_2928
– 2937; FHWA_AR_4112. Continued use of the Lift Bridge, which was a part of Alternative
A, did not address concerns associated with the reliability of the bridge, which has been
38
susceptible to closures due to flooding, repairs, and maintenance. FHWA_AR_4112. Since
Alternative A did not meet the purpose and need for the project, it did not require further
study in the EIS. “An alternative that does not accomplish the purpose of the project in
question is unreasonable and does not require detailed attention in the FEIS.” City of
Bridgeton v. FAA, 212 F.3d 448, 456 (8 th Cir. 2000). Accord Associations Working for
Aurora’s Residential Environment v. Colorado DOT and FHWA, 153 F.3d 1122 (10 th Cir.
1998) (mass transit alternative did not meet the purpose and need for the project; thus
alternative properly rejected under NEPA and Section 4(f)); Audubon Naturalist Society of
the Central Atlantic States, Inc. v. U.S. DOT, 524 F.Supp.2d 642, 670-671 (D. Md. 2007)
(same). FHWA’s decision not to study Alternative A in detail in the SDEIS was not arbitrary,
capricious, or illegal.
Similarly, the Court should reject as without merit Sierra Club’s assertion that FHWA
was required to consider a bridge adjacent to the Lift Bridge, which would have had reversible
lanes instead of one-way lanes. Although Sierra Club opines a second bridge in Stillwater
with reversible lanes “would have better met the stated purposes of the project,” (Complaint,
¶ 85), “[i]t is not the Court's role to get involved in what some may label as a ‘tug of war
game’ between Sierra Clubs and Defendants to determine which alternatives are actually
better [at meeting a project’s purpose] . . . .” Audubon Naturalist Society, 524 F.Supp.2d at
670.
Second, FHWA did consider a bridge adjacent to the Lift Bridge and also considered
39
a bridge adjacent to the Lift Bridge with reversible lanes.15 As explained in the SFEIS, the
original proposal to build a bridge adjacent to the Lift Bridge was referred to as the “3
Architects” proposal. FHWA_AR_8348. The original “3 Architects” proposal, later renamed
the “Twin Bridge Proposal,” was evaluated prior to the Stakeholder Resolution Process, see
e.g., FHWA_AR_30247–30258, and considered during the Stakeholder Resolution Process,
see e.g., FHWA_AR_33109 – 33115. During the evaluation of this proposal, a number of
design considerations were analyzed, including reversible lanes on the bridge adjacent to the
Lift Bridge. FHWA_AR_8348. The “3 Architects” proposal eventually developed into
Alternative E, which was designed to meet or exceed minimum federal and state design
standards and was studied in detail in the SDEIS. See FHWA_AR_4153–4160, 3061 – 3065.
Ultimately, Alternative E was not identified as the Preferred Alternative in the SFEIS for a
number of reasons including the likelihood of not receiving a positive Section 7(a) Evaluation
from the NPS. FHWA_AR_7864. For this and other reasons identified in the SFEIS, FHWA
concluded Alternative E should not be identified as the Preferred Alternative.
FHWA_AR_7862 – 7864. This conclusion would have been the same whether or not
Alternative E included reversible lanes, because the environmental, cultural, and social
considerations and issues associated with continued use of the Lift Bridge that led to
15
Alternative D included a four-lane river crossing located approximately 1,900 feet
south of the Lift Bridge along the Minnesota shoreline and approximately 160 feet south of
the Lift Bridge along the Wisconsin shoreline. FHWA_AR_7861. Alternative E included
a two-lane river crossing located approximately 2,000 feet south of the Lift Bridge along the
Minnesota shoreline and approximately 200 feet south of the Lift Bridge along the Wisconsin
shoreline. FHWA_AR_7862.
40
Alternative E not being identified as the preferred alternative would remain the same in any
event. Id. Thus, FHWA’s decision was not arbitrary or capricious, nor was FHWA’s decision
not to include reversible lanes as a part of Alternative E. NEPA does not require a “separate
analysis of alternatives which are not significantly distinguishable from alternatives actually
considered or which have substantially similar consequences.” Audubon Naturalist Society,
524 F.Supp.2d at 670, citing Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853,
868 (9th Cir.2004).
Sierra Club asserts that FHWA was required to consider other alternatives, “like the
construction of a smaller, two-lane bridge south of Stillwater, expansion of the preexisting I-
94 crossing at Hudson, or other options.” Complaint, ¶ 86. The court should reject these
claims.
Initially, Sierra Club forfeited the two lane bridge and “other options” claims by not
raising them administratively. See Department of Transportation v. Public Citizen, 541 U.S.
752, 764-65 (2004).
In any event, Sierra Club’s assertions are patently unreasonable. NEPA and its
implementing regulations only require the following with respect to the number of alternatives
that must be considered by a federal agency: (1) an EIS must “[r]igorously explore and
objectively evaluate all reasonable alternatives” and must “briefly” explain why it has
eliminated an alternative from detailed study, 40 C.F.R. 1502.14(a) (emphasis added); and (2)
the agency must consider a “no action” alternative, id. § 1502.14(d). Thus, under NEPA,
41
FHWA “need not consider all of the possible alternative actions in the EIS; it is only required
to look at those that are reasonable in light of the project's stated purpose.” Audubon
Naturalist Society, 524 F.Supp.2d at 667. Moreover, the existence of an unexamined
alternative does not render an environmental impact statement inadequate. Dombeck, 164 F.3d
at 1128. Courts review an agency’s selection of alternatives to be analyzed in an EIS under
a “rule of reason.” City of Bridgeton, 212 F.3d at 455.
Sierra Club’s post-NEPA process contention that FHWA was required to consider
“construction of a smaller, two lane bridge south of Stillwater,” Complaint ¶ 85, is
inconsistent with its position during the NEPA process. See FHWA_AR_8377 (“We support
No Build.”). Sierra Club’s assertion that FHWA was required to consider the “expansion of
the preexisting I-94 crossing at Hudson” is a veiled attempt to have the Court rewrite the
purpose and need statement for this project. The Court should decline to do so. The purpose
of the Project was not to expand capacity along the I-94 corridor, as the Sierra Club implies.
Rather, the purpose of the Project was to improve the Minnesota TH 36/Wisconsin STH 64
corridor some 10 miles north of I-94. FHWA_AR_7840. The SFEIS identified a number of
transportation issues this project was intended to address, including improving mobility and
safety in the project area. Id. Given this project purpose and the transportation needs the
Project is intended to address, FHWA, along with the Stakeholders Group that included the
Sierra Club, considered a broad range of alternatives, including the no build alternative and
all alternatives previously studied as well as new alternatives. See e.g., FHWA_AR_2906 –
42
2986, FHWA_AR_4117 – 4164, and FHWA_AR_9140 -- 9273. FHWA also held two public
meetings to solicit input on the alternatives to be considered, and FHWA documented and
explained the reasons why some alternatives were not studied in detail in the SDEIS.
FHWA_AR_2966 – 2967; FHWA_AR_4110 – 4113. The SDEIS evaluated the potential
impacts of four Build Alternatives (Alternative B-1, C, D, and E) and the No-Build
Alternative. As mentioned, one of the alternatives studied in detail in the SDEIS was
Alternative E, a two-lane bridge next to the Lift Bridge. Alternative E was not identified as
the preferred alternative for a number of reasons, including the fact that it would not satisfy
future traffic needs in the project area as well as Alternative B-1. FHWA_AR_7862 – 7864.
This fact would presumably be true whether a new two-lane bridge was built in downtown
Stillwater or south of Stillwater. In any event, after extensive analysis and consideration of
comments from federal, state, and local agencies, non-governmental organizations, and the
public, a preferred alternative that is south of downtown Stillwater was identified in the
SFEIS. FHWA_AR_7865. The record clearly demonstrates that FHWA adequately
considered alternatives, engaged in a very thorough and collaborative process when deciding
which alternatives would be eliminated, and specifically analyzed the alternative proposed by
Sierra Club during the environmental process. Accordingly, FHWA’s analysis of alternatives
for the Project was not arbitrary or capricious and should be upheld by this Court. See
Vermont Yankee, 435 U.S. at 551-52; City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir.
1999).
43
2. FHWA Properly Addressed the Indirect Effects of the Project.
Sierra Club asserts FHWA failed to address properly the project’s indirect effects.
Complaint, ¶ 87. The record belies Sierra Club’s claim. The SFEIS’s indirect effects section,
is not “conclusory” but instead contains a methodical assessment of induced (indirect) growth,
easily satisfying the requirements of NEPA. An EIS’s discussion of indirect impacts should
be “reasonably thorough.” Laguna Greenbelt, Inc. v. U.S. DOT, 42 F.3d 517, 526 (9 th Cir.
1994). The indirect effects analysis for the Project far surpasses that standard.
The CEQ regulations define “indirect effects” as follows: “Indirect effects are caused
by the action and are later in time or farther removed in distance, but are still reasonably
foreseeable. Indirect effects may include growth inducing effects and other effects related to
induced changes in the pattern of land use, population density or growth rate, and related
effects on air and water and other natural systems, including ecosystems.” 40 C.F.R. §
1508.7. The indirect effects analysis for the Project was discussed concurrently with direct
effects in the SDEIS. FHWA_AR_8141. In response to comments on the SDEIS, FHWA
wrote a new chapter to aggregate in one section the indirect effects analysis for the project in
the SFEIS, including the Wisconsin-related indirect effects of the project. FHWA_AR_8151
– 8156.
The indirect effects analysis for the Project--written with input from the Stakeholders
Group including the Sierra Club--satisfies NEPA. The indirect effects analysis for this Project
is more detailed than the analysis upheld in Hunt v. North Carolina Dept. of Transp., 299
44
F.Supp.2d 529 (E.D.N.C. 2004). Hunt involved a project to replace a single lane, floating
bridge in Sunset Beach, North Carolina, with a new high-level, fixed-span bridge. The FEIS
in Hunt contained a discussion of the indirect effects of the project, including the effects of
“(1) a full build out of the island, (2) the installation of [a] sewer system, (3) population
growth, and (4) increased day visitors [to the island].” Hunt, 299 F.Supp.2d at 536. The
Court found the defendants had taken a “hard look” at the effects of the proposed bridge. Id.
Similarly, here, the Project analysis contained a methodical assessment of indirect
impacts and satisfies NEPA. See SFEIS, Chapter 13, FHWA_AR_8141-8163. In evaluating
indirect impacts of the project, FHWA analyzed numerous questions related to the project,
including, for example: “Would the project influence the types of development (residential,
commercial, industrial) anticipated within the area of influence? Would the project influence
the amount of development anticipated in the area of influence? Would the project influence
the location of development anticipated in the area of influence? Would the project influence
the timing of development anticipated in the area of influence? How does the type, amount,
and timing of development affect natural, cultural, social, and economic resources in the area
of influence? What are the factors that influence the beneficial and adverse qualities of these
effects?” FHWA_AR_8142. FHWA also collected data on (1) existing and future land use,
(2) existing population and employment, (3) future population and employment estimates, (4)
growth management strategies from local plans, and (5) land use regulation and ordinances
such as zoning. Id. FHWA also held a series of discussions with local government and
45
planning officials related to land use trends. FHWA_AR_8146. The indirect effects analysis
found: (1) substantial growth trends are already apparent in western Wisconsin despite
uncertainty regarding the construction of a new river crossing; (2) the influence of improved
mobility provided by the Preferred Alternative on the amount of growth anticipated is
uncertain; (3) potential negative impacts resulting from land development are not within the
control of FHWA and the DOTs but rather are within local government control; and (4) local
planning efforts have anticipated the bridge crossing and have adopted policies to protect area
resources. FHWA_AR_8158. FHWA concluded the Project could accelerate growth in St.
Croix County and identified, with input from the Stakeholders Group and local government
agencies, measures to mitigate possible effects associated with that potential accelerated
growth. FHWA described those measures in the SFEIS, FHWA_AR_8158 – 8163, and they
were made elements of the Growth Management MOU, FHWA_AR_8711 – 8719. NEPA
requires no more. FHWA’s analysis of the indirect effects of the Project was not arbitrary or
capricious and should be upheld by this Court.
3. FHWA Properly Addressed the Cumulative Impacts of the Project.
The court should reject Sierra Club’s assertion that FHWA failed to address the
Project’s cumulative impacts properly. First, despite being a member of the Indirect and
Cumulative Impacts Subgroup, Sierra Club failed to raise specific concerns during the public
comment period about FHWA’s analysis of cumulative impacts. FHWA_AR_8377 – 8413.
Therefore, Sierra Club waived this claim. Dep’t of Transp., 541 U.S. at 764.
46
FHWA’s cumulative impacts analysis meets the requirements of NEPA. Federal
agencies have substantial discretion as to the extent of the cumulative impacts assessment and
appropriate level of explanation, Marsh, 490 U.S. at 376-77, and may properly limit the scope
of their cumulative effects analysis based on practical considerations, Kleppe v. Sierra Club,
427 U.S. 390, 414 (1976), so long as the administrative record contains “a reasonably
thorough discussion of the significant aspects of the probable environmental consequences.”
Swanson v. U.S. Forest Service, 87 F.3d 339, 343 (9th Cir. 1996) quoting Oregon
Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987). Accord, Sierra Club
v. Bosworth, 352 F.Supp.2d 909, 925-926 (D. Minn. 2005).
The CEQ regulations define a cumulative impact as “the impact on the environment
which results from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions. Cumulative impacts can result from individually minor
but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7.
A cumulative impact analysis “must identify (1) the area in which the effects of the proposed
project will be felt; (2) the impacts that are expected in that area from the proposed project;
(3) other actions-past, present, and proposed, and reasonably foreseeable-that have had or are
expected to have impacts in the same area; (4) the impacts or expected impacts from these
other actions; and (5) the overall impact that can be expected if the individual impacts are
47
allowed to accumulate.” Grand Canyon Trust v. F.A.A., 290 F.3d 339, 345 (D.C.Cir.2002).
The cumulative impact analysis for the Project meets each of these criteria.
Sierra Club claims the cumulative impacts assessment lacks “quantified or detailed
information” citing Habitat Educ. Ctr., Inc. v. Bosworth, 363 F.Supp.2d 1070 (E.D. Wis.
2005). Such reliance is misplaced. In Habitat, the court held the Forest Service’s
cumulative impact analysis concerning the red-shouldered hawk, goshawk, and certain rare
plants was deficient because it lacked sufficient detail about those resources. Id. at 1080-
83. Here, the Project cumulative impacts analysis contains abundant and quantifiable detail
and is a careful and reasonable assessment that considered the relevant factors and
constitutes a “hard look” under NEPA.
The cumulative impacts analysis for the Project is contained in Chapter of 13 of the
SDEIS and Chapter 14 of the SFEIS. FHWA_AR_8164 – 8194. The analysis first sets the
geographic boundaries of the cumulative impacts assessment and the time period of the
assessment. FHWA_AR_8165. Next, FHWA’s cumulative impacts analysis (1)
summarized the existing condition of each potentially affected resource and how it has
been affected by other actions (public or private); (2) summarized impacts from the
Preferred Alternative on each potentially affected resource; (3) identified other present
actions and reasonably foreseeable future actions and their possible impacts on those
resources; and (4) discussed the potential for cumulative impacts on those resources and
measures that could avoid or minimize negative effects on those resources. Id. This
48
analysis was performed for the following areas: (1) land development, (2) prime
agricultural land, (3) social (neighborhoods, communities, etc), (4) regional economy, (5)
air quality, (6) noise, (7) wetlands, (8) water quality and quantity, (9) aquatic resources,
(10) vegetation, (11) wildlife, (12) parks and recreational lands, (13) aesthetics, and (14)
archaeological and historic resources. FHWA_AR_8171 – 8193. Based on this analysis,
FHWA concluded that potential impacts were greater in the areas of (1) land use, (2) prime
agricultural land, (3) water quality and quantity, (4) vegetation, (5) wildlife, (6) aesthetics,
and (7) historic resources and that these impacts could be avoided through land use
controls, other development controls, and roadway access restrictions. FHWA_AR_8194.
FHWA’s analysis of the cumulative impacts for the Project was not arbitrary or capricious
and should be upheld by this Court.
The administrative record demonstrates FHWA complied fully with NEPA. FHWA
considered a full range of alternatives before reaching the preferred alternative; and having
properly identified the preferred alternative, FHWA provided an objective, detailed, and
thorough presentation of the project’s direct, indirect, and cumulative impacts. FHWA’s
actions were not arbitrary and capricious and should be upheld by this Court.
B. THE FHWA COMPLIED WITH SECTION 4(f).
Section 4(f) prohibits the use of land from a publicly owned park, wildlife refuge,
or recreation area, or a historic site for a transportation project unless: (1) there is no
prudent and feasible alternative to using the land, and (2) all possible planning is taken to
49
minimize harm to the park, wildlife refuge, recreation area, or historic site. 49 U.S.C. §
303(c).
The Final Section 4(f) Evaluation included in the SFEIS demonstrates that FHWA
fully complied with Section 4(f). FHWA_AR_9274 – 9335. First, FHWA identified the
resources in the study area subject to protection under Section 4(f) (“Section 4(f)
resources”). FHWA_AR_9286 – 9290. Next, FHWA determined whether the project, as
proposed, would result in the "use" of Section 4(f) resources. This analysis was conducted
for all build alternatives studied in the Draft SEIS, FHWA_AR_4742 – 4746, and for the
Preferred Alternative, FHWA_AR_9278 – 9282. FHWA then considered whether there
were any feasible and prudent “avoidance alternatives,” i.e., alternatives that would avoid
all Section 4(f) resources, and concluded that there were none. FHWA_AR_9285. The
only alternatives that might altogether avoid Section 4(f) resources were the No Build
Alternative and those which entailed no new road construction--these alternatives were
determined to be not “prudent” since they would not meet the project’s purpose and need.
Id. Having determined there were no feasible and prudent avoidance alternatives, FHWA
evaluated measures to avoid and minimize impacts to individual Section 4(f) resources.
FHWA concluded the Preferred Alternative would result in the least impacts to Section 4(f)
resources. FHWA_AR_9320. This process was consistent with FHWA regulations and
guidance, and the resulting conclusions were not arbitrary or capricious. See 23 C.F.R. §
771.135 (2006) and FHWA Section 4(f) Policy Paper, FHWA_AR_35952 – 35990.
50
Sierra Club criticizes the Section 4(f) Evaluation for the Project in two respects.
First, Sierra Club claims FHWA failed to consider alternatives that would have avoided use
of the Riverway, specifically Alternative A and expansion of the I-94 corridor. Complaint,
¶ 91. Second, Sierra Club alleges the FHWA failed to minimize harm to the Riverway by
not picking a less intrusive option such as a two lane bridge. Complaint, ¶ 92. These
claims are a rehash of the failed NEPA claims and are otherwise without merit.
1. FHWA Correctly Dismissed Alternative A.
FHWA properly eliminated Alternative A. Alternative A was eliminated from
consideration as an alternative because it did not meet the project’s purpose and need.
FHWA_AR_4111 – 4113 and FHWA_AR_7858. As in the case of NEPA analysis,
alternatives which do not meet a project’s purpose and need are not feasible and prudent
under Section 4(f). Indeed, this view has been adopted by the Eighth Circuit and is shared
by many other circuits. City of Bridgeton, 212 F.3d at 461; Ringsred v. Dole, 828 F.2d
1300, 1304 (8 th Cir. 1987); Committee to Preserve Boomer Lake Park v. Skinner, 4 F.3d
1543, 1550 (10th Cir. 1993); Arizona Past & Future Found., Inc. v. Lewis, 722 F.2d 1423,
1425-1426 (9 th Cir. 1983); Hickory Neighborhood Def. League v. Skinner, 910 F.2d 159,
164 (4th Cir. 1990); Louisiana Envtl. Soc’y v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976);
Druid Hills Civic Ass’n. Inc. v. FHWA, 772 F.2d 700, 715 (11th Cir. 1985). Sierra Club’s
assertion the FHWA erred in eliminating Alternative A, because it did not meet the
project’s purpose and need, should be rejected.
51
Sierra Club’s assertion that FHWA did not “consider other possibilities that would
have avoided degradation of the Riverway,” Complaint, ¶ 91 is similarly unavailing. As
FHWA explained in the Final Section 4(f) Evaluation, “[t]he only alternative that could
avoid use of the Lower St. Croix National Scenic Riverway is the No-Build Alternative;
however, the No-Build Alternative is not a feasible and prudent alternative as it would not
address the project’s purpose and need (refer to Chapter 2 and 3 of this SFEIS).”
FHWA_AR_9285. To reiterate, an alternative that does not meet a project’s purpose and
need is properly eliminated under Section 4(f). The I-94 claim is patently untenable. It
would not address the problem of the traffic corridor ten miles north. Expansion of
existing roads or building new roads on both sides of the Riverway would engender as
many problems as has this Project with the end result being that traffic would be diverted
20 miles more per crossing. FHWA properly concluded that Alternative A and the No-
Build Alternative were not “prudent” alternatives and did not require further evaluation
under Section 4(f). This conclusion was not arbitrary or capricious and should be upheld
by this Court.
2. FHWA’s Planning Minimized Impacts to 4(f) Properties.
FHWA’s Section 4(f) Policy Paper provides that “[m]inimization of harm entails
both alternative design modifications that lessen the impact on 4(f) resources and
mitigation measures that compensate for residual impacts. Minimization and mitigation
measures should be determined through consultation with the official of the agency owning
52
or administering the resource.” FHWA_AR_35962. To minimize impacts to 4(f)
resources, including the St. Croix River, FHWA consulted and coordinated with numerous
federal, state, and local government agencies and NGOs. After years of consultation and
coordination, a number of minimization measures were adopted for this project including:
(1) a river crossing more perpendicular to the centerline of the St. Croix River, thereby
minimizing the bridge length over the St. Croix River; (2) design considerations to avoid
and minimize impacts to endangered mussel species in the riverway; and (3) incorporating
elements into the final bridge design (e.g., measures to transition from higher speed in
Wisconsin to lower speed in Minnesota; bridge deck design and construction to minimize
noise transmission to the riverway; minimal use of roadway signage; shielded roadway
lighting fixtures; use of Xcel barge unloading facility for construction staging prior to
removal) that would minimize other impacts to the St. Croix River. FHWA_AR_8209 –
8247 and FHWA_9317 -- 9319. In addition, non-bridge design related actions were
adopted to specifically mitigate impacts to the riverway. Those steps include: (1)
mitigation for damages to blufflands; (2) bluffland restoration; (3) removal of the Terra
Terminal building, solid waste disposal, and restoration of the Minnesota shoreline near
the building; (4) removal of non-historic, man-made items from Kolliner Park; (5)
completion of a loop trail system including grading of the Stillwater Municipal Barge
Facility property and conversion of the Lift Bridge to a pedestrian/bicycle facility; (6)
covenants on excess property owned by WisDOT within the riverway (west of STH 35)
53
and between STH 35 and the Preferred Alternative STH 64/35/CTH E interchange; and (7)
a spill response plan. Id. Finally, Defendants completed a MOU to minimize and mitigate
impacts to the riverway. FHWA_AR_8691 – 8710. The mitigation and minimization
measures adopted for this Project easily satisfies Section 4(f)’s requirement that FHWA
engage in all possible planning to minimize harm to Section 4(f) resources.
FHWA’s Final Section 4(f) evaluation was not arbitrary and capricious. FHWA
correctly identified impacts to Section 4(f) resources, concluded that there was no
avoidance alternative that was feasible and prudent, and determined that all alternatives to
the proposed action would have greater impacts to Section 4(f) resources than the Preferred
Alternative. FHWA engaged in all possible planning to minimize harm to Section 4(f)
resources and selected the alternative that would cause least harm to Section 4(f) resources.
54
CONCLUSION
The Court should enter summary judgment for the FHWA and the NPS.
Dated: May 29, 2009 FRANK J. MAGILL, JR.

United States Attorney
s/ Friedrich A.P. Siekert
BY: FRIEDRICH A. P. SIEKERT

Assistant U.S. Attorney
Attorney ID No. 142013
fred.siekert@usdoj.gov
United States Attorney’s Office
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55419
Telephone: (612) 664-5600
Fax: (612) 664-5788
55

Federal Defendants Response To Sierra Mot SJ

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Federal Defendants Response To Sierra Mot SJ

Uploaded by

Copyright:

Available Formats

Case 0:07-cv-02593-MJD-SRN Document 91 Filed 05/29/09 Page 1 of 55

UNITED STATES DISTRICT COURT

Sierra Club North Star Chapter, )

Highway Administration (“FHWA”) and the National Park Service (“NPS”)(collectively

General Authorities Act, 16 U.S.C. §§ 1a-1 et seq.

The comprehensive administrative record demonstrates Defendants did not undertake

manner, the Court should uphold the Project decisions.

A. STATUTORY AND REGULATORY FRAMEWORK.

1. National Environmental Policy Act.

42 U.S.C. § 4321; 40 C.F.R. § 1500.1. NEPA imposes procedural requirements, not

implementing NEPA, 40 C.F.R. §§ 1500-1517, require an agency to consider environmental

environment. 42 U.S.C. § 4332; 40 C.F.R. § 1501. An agency’s environmental impact

C.F.R. Part 771.

Section 4(f) prohibits the Secretary of Transportation from approving a transportation

3. Wild and Scenic Rivers Act.

designated rivers should be managed. 16 U.S.C. §§ 1274-1284.

subsequently. 16 U.S.C. § 1274(a)(9).

based on the special attributes of the area. Id.

its WSRA Section 7 obligations.

4. The Organic Act and General Authorities Act.

Policies § 1.4 (2006).

Management Policies § 1.4.2 (2006).

1. Saint Croix River Crossing Project.

Highway (“STH”) 64 in St. Joseph, Wisconsin. FHWA_AR_7826. Both highways are on

and construction in Stillwater and Bayport, Minnesota. FHWA_AR_7826.

2. Purpose and Need.

Lift Bridge as well as on the roadways approaching it. FHWA_AR_7787. Additionally,

insufficient roadway/intersection capacity in downtown Stillwater causes poor traffic

operations on TH 36, delays responses by emergency vehicles, and impedes access to

The Project seeks to improve Minnesota TH 36 and Wisconsin STH 64 between TH

3. Development and Evaluation of Alternatives and Public Input.

a. The 1995 Proposal.

to address, see Final Supplemental Environmental Impact Statement (“FSEIS”),

FHWA_AR_7830. Formal assessment of the alternatives to address growing transportation

determination. Pena, 1 F.Supp.2d at 983.

south of the Lift Bridge. Id.

be considered in the context of other review procedures provided by law.” 36 C.F.R. §

various reasons. FHWA_AR_7831-32. FHWA_AR_7832. In Fall 2001, while work on the

consensus decision regarding the project was possible. FHWA_AR_992 – 1044.

that centered on a “Stakeholders Group” composed of representatives of diverse interests,

including the Sierra Club.7 FHWA_AR_7832. This “Stakeholder Resolution Process”

2003, and a total of 18 stakeholder meetings were held. FHWA_AR_4688-4689;

FHWA_AR_8249. Members of the Stakeholders Group also met separately as subgroups

resources impacts/Section 106/Section 4(f), (3) water resources/standards, (4) public

The Stakeholder Resolution Process analyzed all alternatives previously studied, as

well as new alternatives. FHWA_AR_9156; FHWA_AR_4161 – 4164. The Stakeholders

alternatives identified in the 1999 Amended Scoping Decision Document.8

FHWA_AR_4162. The Stakeholders Group selected five build alternatives (Alternatives

A, B, C, D, and E) and a No-Build Alternative as potentially meeting the Project’s

Decision Document.9 FHWA_AR_9156 – 9200. In December 2003, MnDOT and WisDOT

regarding the alternatives evaluated during the Stakeholder Resolution Process.

corridor. FHWA_AR_2966 – 2967.

Alternative B evolved into Alternative B-1, which was developed to reduce

public meetings regarding potential alternatives for the Project. FHWA_AR_4694.

Group for further comment. FHWA_AR_30802 – 31436 and 31442-31560.

FHWA_AR_4110 – 4113; FHWA_AR_2966 – 2967. The SDEIS evaluated the potential

from the Sierra Club. FHWA_AR_8257–8491, 32958–33204.

Evaluation. FHWA_AR_33920 –34618, 34690-34739.

(“Section 7(a) Evaluation”). FHWA_AR_8580 – 8649.

4. The 2006 Preferred Alternative.

Alternative”), FHWA_AR_7864 – 7876. The 2006 Preferred Alternative includes a roadway

pedestrian/bicycle facility and be a component of a loop trail connecting Minnesota and