Neighborhood Assoc v. Federal Transit Adm

Filing 920060914

Opinion

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var WPFootnote1 = 'Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = '                   The regulations promulgated under section 106 provide\
that "[i]f the agency official proposes a finding of no adverse\
effect, the agency official shall notify all consulting parties\
[here including the MHC] . . . [and] the [MHC] shall have 30 days\
from receipt to review the finding." 36 C.F.R. § 800.5(c). If the\
MHC disagrees, further consultation is required. Id. at §\
800(c)(2).\
'

var WPFootnote3 = '                   NEPA requires federal agencies to consider the\
environmental impacts of agency decisions. 42 U.S.C. §§\
4321-4370(e); 40 C.F.R. § 1500-1518 (2004). Federal agencies are\
required to prepare an Environmental Impact Statement (“EIS”) for\
any action that could significantly affect the quality of the human\
environment. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.27. Agencies\
file an Environmental Assessment (“EA”) in order to determine\
whether an EIS is required. 40 C.F.R. § 1501.4. If on the basis\
of the EA the agency determines an EIS is not required, the agency\
publishes a “Finding of No Significant Impact,” or “FONSI.” 40\
C.F.R. § 1501.4(e). Here, the FTA prepared an EA and a FONSI. The\
FONSI found that “the proposed project will have no significant\
adverse impacts on the environment,” and thus that an EIS was not\
required.\
'

var WPFootnote4 = '                   In particular, the EA stated that option F (placing the\
inbound elevator 150 feet away from the existing entrance) was not\
"appropriate or feasible" because it created a segregated entrance\
for handicapped individuals, and would require the construction of\
a tunnel linking the passengers to the fare collection area, or the\
implementation of a "caged gate" system, which would require an\
MBTA station operator to periodically release batches of\
individuals from a caged area at the base of the elevator. The EA\
noted that eliminating the matching headhouse from option E\
increased the impact of the headhouse, but explained that retaining\
the headhouse was "infeasible from an engineering perspective." \
'

var WPFootnote5 = '                   See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S.\
633, 655-56 (1990) (holding that the APA does not specifically\
require the agency to explain its decision when an informal\
adjudication is involved); Camp v. Pitts, 411 U.S. 138, 142 n. 3\
(1973) (holding that the APA’s requirement of a written explanation\
on the record applies only to adjudications required to be made on\
the record or to formal rulemaking).\
'

var WPFootnote6 = '                   Plaintiffs’ argument that they should have been deemed\
consulting parties because they were interested in the project and\
that interest was well-known is also without merit. The\
regulations expressly require parties to make a written request to\
become consulting parties, and gives the agency and SHPO (here the\
MHC) the discretion to decide whether to grant the request. 36\
C.F.R. § 800.3(c)(5).\
'

var WPFootnote7 = '                   Plaintiffs also point to various inaccurate statements in\
the 1995 Report. For example, the Report erroneously states that\
“the exi[s]ting steps will not be disturbed,” and that “option F\
locat[ed] the elevator in front of the Old Library.” Plaintiffs\
have not established that the FTA relied on these erroneous\
statements (which are contradicted elsewhere in the 1995 Report) in\
making its no adverse effect finding.\
'

var WPFootnote8 = '                   A recent amendment to section 4(f), dealing with projects\
whose “uses” of historic sites have only a de minimis impact on\
those sites, is not at issue in this case, because the 4(f) process\
in this case was concluded before the amendment’s adoption. See\
P.L. 109-59 (Aug. 10, 2005).\
'

var WPFootnote9 = '                   See also Valley Community Preservation Com\'n v. Mineta,\
373 F.3d 1078, 1084 (10th Cir. 2004).\
'

var WPFootnote10 = '                   In one respect, there is a feasibility issue. Plaintiffs\
maintain that if the inbound elevator were to be placed on the\
library steps, creating a matching headhouse was a feasible and\
prudent alternative. The FTA’s determination that the matching\
headhouse was not “feasible” because of engineering difficulties\
was not arbitrary and capricious.\
'

var WPFootnote11 = '                   City of Bridgeton v. FAA, 212 F.3d 448, 461 (8th Cir.\
2000) (an alternative "that does not effectuate the project\'s\
purposes is, by definition, unreasonable, and need not be evaluated\
in detail under 4(f)"); Citizens against Burlington, Inc. v.\
Busey, 938 F.2d 190, 203 (D.C. Cir. 1991); Hickory Neighborhood\
Defense League v. Skinner, 910 F.2d 159, 164 (4th Cir. 1990) (in\
approving highway project, Secretary may reject as imprudent\
alternatives that will not solve or reduce existing traffic\
problems); Druid Hills, 772 F.2d at 715; Arizona Past & Future \
Found. v. Dole, 722 F.2d 1423, 1428-29 (9th Cir. 1983). \
'

var WPFootnote12 = '                   The FONSI explained that the "FTA did not consider this\
alternative to be prudent and feasible since it would not coincide\
with the circulation path of the general public [and thus would not\
comply with the ADA]." The attached Environmental Assessment, and\
the 1995 Report reached the same conclusion. \
'

var WPFootnote13 = '                   They also require that handicap entrances be situated to\
"minimize the distance which wheelchair users and other persons who\
cannot negotiate steps may have to travel compared to the general\
public." 49 C.F.R. pt. 37, app. A, 10.3.1(1).\
'

var WPFootnote14 = '                   49 C.F.R. pt. 37, app. A 4.3.2(1) ("accessible route[s]\
shall, to the maximum extent feasible, coincide with the route for\
the general public.") (emphasis added); 49 C.F.R. pt. 37, app. A\
10.3.1(1), 10.3.2(2) ("[t]he circulation path, including an\
accessible entrance and an accessible route, for persons with\
disabilities shall, to the maximum extent practicable, coincide\
with the circulation path for the general public.") (emphasis\
added).\
'

var WPFootnote15 = '                   Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d\
686, 702 (3d Cir. 1999) (holding that a “‘feasible and prudent’\
determination [should be applied] to the world of alternatives that\
must be considered under 4(f)(2),” and that “the Secretary must\
consider every ‘feasible and prudent alternative’ that uses\
historically significant land when deciding which alternative will\
minimize harm, but that the Secretary has slightly greater\
leeway–compared to a 4(f)(1) inquiry–in using its expertise as a\
federal agency to decide what the world of feasible and prudent\
alternatives should be under 4(f)(2)”); Hickory Neighborhood\
Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir. 1990)\
(acknowledging that 4(f)(2) contains an implied “feasible and\
prudent” test); Druid Hills, 772 F.2d at 716 (same); Louisiana\
Envtl. Soc’y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976)\
(same); see also City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th\
Cir. 2000) (“In reviewing an agency\'s choice among feasible and\
prudent alternatives [in its 4(f)(2) analysis], we again apply the\
arbitrary and capricious standard of review.”).\
'

var WPFootnote16 = '                   Plaintiffs also argue that the FTA should have considered\
the MBTA’s implementation of Charlie Fare cards, which resulted in\
the elimination of automatic fare booths and, plaintiffs claim,\
could have allowed the elevator to deliver passengers directly onto\
the platform if option F had been implemented. We see no error in\
the FTA’s failure to reopen proceedings to consider an alternative\
first suggested months after the review process was completed.\
'

var WPFootnote17 = '                   Plaintiffs’ Motion for Injunction Pending Appeal is\
denied. FTA’s Motion to Modify the Record, MBTA’s Motion to\
Supplement the Record, and related motions are denied.\
'

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