NATIONAL TRUST FOR HISTORIC PRESERVATION IN THE UNITED STATES et al v. FEDERAL HIGHWAY ADMINISTRATION et al

Filing 162

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 11/7/12 denying 135 Motion for Preliminary Injunctioncc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10CV-7-H

NATIONAL TRUST FOR HISTORIC
PRESERVATION IN THE U.S., et al.

PLAINTIFFS

V.
FEDERAL HIGHWAY ADMINISTRATION, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This litigation arises following final approval by the Federal Highway Administration
(“FHWA”), in consultation with the Indiana Department of Transportation (“INDOT”), and the
Kentucky Transportation Cabinet (“KYTC”),1 of a selected proposal (the “Modified Selected
Alternative”) for the Louisville-Southern Indiana Ohio River Bridges Project (the “Project”).
The Project includes a Louisville downtown river crossing, an east-end river crossing, tolling
facilities to assist in financing, transportation management, and certain mitigation commitments.
Several parties have aligned themselves in opposition to the Project. One of them, the
Coalition for the Advancement of Reasonable Transportation, Inc. (“CART”), has moved for a
preliminary injunction to prohibit the Defendants commencing certain pre-construction tree
clearance and other preconstruction activities. Defendants have each opposed the motion.
The activity precipitating the current motion apparently arose after September 13, 2012,
when INDOT filed a Notice of Feature Construction Activity, informing the Court and the
parties that it intended to award contracts and commence work on planned tree clearing activities

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The Court will sometimes refer to FHWA, INDOT and KYTC collectively as the “Defendants.”

essential for the commencement of construction of the east-end crossing. Apparently, due to
seasonal cutting restrictions, such tree clearing could only occur between August 16, 2012, and
March 31, 2013. INDOT intended to award a contract for this work on October 25, 2012, and to
begin the work on or about January 15, 2013.
INDOT’s action was not a surprise to anyone. At a previous hearing, all parties to the
case discussed INDOT’s proposed contracting and construction schedule, as well as the briefing
schedule on Plaintiffs’ anticipated motions for a permanent injunction against the Project. The
Court anticipates that final adjudication of all issues in the case could be resolved prior to the
commencement of any substantial construction activity. Such briefing would also involve full
availability and reliance upon the final administrative record in the case.
I.
As a general matter, the standard for addressing a motion for preliminary injunction is
well known. Plaintiffs must show that (1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable injury in the absence of relief; (3) the balance of the equities favor
injunction; and (4) an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20
(2008); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542
(6th Cir. 2007). No one factor is dispositive in a court’s inquiry, because “the weakness of the
showing regarding one factor may be overborne by the strength of the others.” FMC Corp. v.
United States, 3 F.3d 424, 427 (Fed. Cir. 1993). A preliminary injunction is an extraordinary
remedy designed to preserve the relative status quo of the parties. Tenn. Scrap Recyclers Ass’n
v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009).
Consideration of injunctive relief is complicated here because CART’s motion raises

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questions about the FHWA’s agency approval of the Modified Selected Alternative for the
Project. The Administrative Procedures Act (“APA”), 5 U.S.C. § 706 likely governs any review
of agency decisions in connection with that approval. Under the APA, the scope of any judicial
review is limited to the administrative record. Fla. Power & Light Co. v. Lorion, 470 U.S. 729,
743 (1985). The standard of any review is ordinarily highly deferential. Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
As a general matter, this means that the reviewing court should affirm the agency
decision unless that action is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Overton Park, 401 U.S. at 414; Northeast Ohio Reg’l Sewer Dist. v. U.S.
E.P.A., 411 F.3d 726, 731 (6th Cir. 2005). The Court must apply these general rules to particular
circumstances, especially those which may be argued at a later time. For the moment, however,
these rules place a particularly high burden on CART to make convincing arguments why the
Project should stop now.
II.
At this preliminary stage, CART argues that it is entitled to injunction because (1) the
Project violates the Endangered Species Act (“ESA”); (2) the Project violates the Federal
Highway Act (“FHA”) prohibition on federal participation in toll facilities; (3) the Project will
intentionally discriminate against racial minorities in violation of Title VI of the Civil Rights
Act; (4) the Project threatens water quality in the Louisville area; and (5) the Project threatens air
quality in the Louisville area. The Court will consider each claim in turn.
A.
Preliminarily, the Court will address several old arching themes which tend to undermine

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CART’s arguments on all issues. First, the work which CART seeks to enjoin now involves a
minuscule segment of the overall Project. Work on substantial elements of the Project are
unlikely to commence until after the Court has issued a final and permanent ruling on all issues,
as opposed to a preliminary one. Consequently, consideration of those issues concerning a
potential overall affect of the Project are somewhat premature. As a general matter, the work
INDOT contemplates now will not constitute irreparable action or injury as to most of the issues
raised. And, all the parties and the public are better served by a final and permanent resolution
of these issues.
Second, Plaintiffs’ motion is handicapped by the lack of opportunity to review a final and
complete administrative record. Certainly, all parties and the public are better served by the
Court making final decisions based on a thorough review of the complete record, rather than
preliminary decisions from a non-existent record. This is particularly true where CART
questions an agency judgment based on the final administrative record.
Third, to the extent that CART argues that they or others are irreparably damaged by
Defendants’ expenditure of taxpayer funds prior to a final judicial resolution, this is simply not a
valid consideration at this time. Any governmental entity must bear the risk that taxpayer funds
might be misspent or wasted on a project which is either ill-conceived or which may ultimately
be halted by court order. However, these possibilities are very seldom reason enough to halt
work on a preliminary basis to, in effect, protect public officials from their alleged own bad
judgment.
Those reasons alone could be sufficient to deny the pending motion.

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B.
CART’s first substantive argument is that these preliminary construction activities will
irreparably damage the summer maternity habitat of the Indiana Bat and the habitat of the Gray
Bat, both of which are each listed as an endangered species of the ESA. In response to its ESA
obligations, Defendants and the United States Fish and Wildlife Service (“USFWS”) have issued
an “incidental take statement” which describes the Project’s potential impact on these species.
CART has not made any creditable arguments that the Project’s impact on these species is more
than incidental or that the USFWS has violated any of its obligations in describing it. The Court
will have an opportunity to revisit this issue, if necessary. For now, however, the Court finds no
actual evidence that these preliminary construction activities will irreparably or unlawfully affect
the Indiana Bat and the Gray Bat.
C.
Next, CART argues that the Project’s finance plan, which anticipates the use of tolling
agreements, violates the “freedom from tolls” provision of 23 U.S.C. § 301. CART says that the
Defendants’ plans for tolls are also unlawful, because the tolls would tax citizens twice for the
Project and the length of the tolls and their positions will burden “two generations of citizens.”
Defendants have made a strong argument to the contrary. They argue that the Federal
Aid Highway Program (“FAHP”) permits federal participation in some toll roads, bridges,
tunnels and ferries. See 23 U.S.C. § 129. Under the provisions of § 129(a), the Secretary of
Transportation is authorized to participate in toll projects involving the initial construction of
non-interstate toll highways, bridges and tunnels and in toll projects involving reconstruction or
replacement of existing free interstate and non-interstate bridges and tunnels. They argue that

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the I-65 downtown bridges qualify as a project to reconstruct and expand the capacity of an
existing interstate toll free facility under 23 U.S.C. § 129(a)(1)(C) . Further, the east-end bridge
qualifies as a project for the initial construction of a non-interstate bridge under 23 U.S.C. §
129(a)(1)(A).
Although the Court’s view at this time is necessarily preliminary, it cannot yet conclude
that CART is likely to succeed on its arguments. Moreover, the Court will have plenty of
opportunity to consider these arguments in more depth before the Project commences in full.
Therefore, the current activity does not amount to an irreparable injury to any of the parties in
this lawsuit.
D.
Plaintiffs’ final three arguments concerning intentional discrimination, danger to area
water quality and danger to area air quality fail for similar reasons addressed at the outset of this
discussion. INDOT’s preliminary work does not injure irreparably in the way CART claims.
There is no reason for the Court to halt preliminary work when it will have an opportunity to
address these issues based on a full record before any substantial construction commences.
Moreover, Defendants have strong enough arguments on the facts and law to pre-close any
preliminary consideration against them. To address these issues now would be premature where
CART has not demonstrated a stronger likelihood of success.
III.
The essence of a motion for preliminary injunction is that court action is necessary to
avoid irreparable injury to a party or the public and to preserve the status quo.
Here, the Court concludes that immediate court action is unnecessary for any of these

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reasons. INDOT’s preliminary construction activities do not substantially alter the Project’s
status; they do not irreparably damage the property or legal rights of any party, particularly
CART’s.
CART’s motion and Defendants’ responses raised many issues in their combined some
200 pages of briefing. The Court has mentioned only a few in summary fashion, while many
issues are not addressed at all in this seven page memorandum. No one should draw conclusions
from this opinion concerning the importance of issues not mentioned or concerning any final
conclusions the Court may draw. The analysis set forth here is sufficient to decide the pending
motion and nothing more is required.
In sum, the parties and the public will be best served by a final considered decision on all
issues based upon a full administrative record. Such a result will occur in due course.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that CART’s motion for a preliminary injunction is
DENIED.

November 7, 2012

cc:

Counsel of Record

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