Little Traverse Lake Property Owners Association et al v. National Park Service

Filing 45

OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LITTLE TRAVERSE LAKE PROPERTY
OWNERS ASSOCIATION, DOUGLAS
JONES, L. GENE MORSE and LINDA
MORSE, in their capacities as COTRUSTEES of THE LEROY AN LINDA
MORSE TRUST, MARY ANN SHUTZ, in
her capacity as TRUSTEE OF THE MARY
ANN SHUTZ TRUST, and MARCIA
SKAJAERLUND,

Case No. 1:15-CV-789

HON. GORDON J. QUIST

Plaintiffs,
v.
NATIONAL PARK SERVICE,
Defendant.
/

OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT
This case presents a challenge under the Administrative Procedure Act, 5 U.S.C. §§ 551706, to Defendant National Park Service’s adoption of a finding of no significant impact as to
one segment, Segment 9, of the Leelanau Scenic Heritage Route Trailway Plan. The trail will be
a non-motorized pathway that links southern Leelanau County with the Sleeping Bear Dunes
National Lake shore at the North end of County Road 651. The entire trail will be built on Park
Service property or existing public road rights-of-way. The challenged proposed portion of the
trail, Segment 9, would run along the north side of Traverse Lake Road. Plaintiffs own property
on the south side of Traverse Lake Road.
Plaintiffs allege that the Park Service violated the National Environmental Policy Act, 42
U.S.C. §§ 4321-4370, because it (1) failed to sufficiently disclose and analyze environmental

impacts in the environmental assessment, (2) failed to prepare a full environmental impact
statement, (3) failed to analyze an adequate range of alternatives, and (4) relied on incomplete,
misleading, or inaccurate data. Plaintiffs moved for summary judgment on all counts. (ECF No.
31.) The Park Service cross-moved for summary judgment on the grounds that Plaintiffs waived
their arguments by failing to exhaust their administrative remedies and because the Park Service
otherwise complied with the National Environmental Policy Act in preparing the environmental
assessments and adopting the finding of no significant impact. (ECF No. 35.)
I. BACKGROUND
Federal agencies must prepare an environmental impact statement for all “major federal
actions significantly affecting the quality of the human environment.” Sherwood v. Tenn. Valley
Auth., 590 F. App'x 451, 457–58 (6th Cir. 2014) (citing Sierra Club v. Slater, 120 F.3d 623, 628
(6th Cir.1997)). “Major Federal action includes actions with effects that may be major and
which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. The
significance of an action’s effects is determined by evaluating both the context of the action and
the intensity of the impact. 40 C.F.R. § 1508.27.
Agencies prepare an environmental assessment if it is unclear whether or not a proposed
action significantly will affect the environment. Sherwood, 590 F. App’x at 457 (citing 40
C.F.R. §§ 1501.4(c) and 1508.9). The environmental assessment is a preliminary document in
which the agency must evaluate “the environmental impacts of the proposed action and
alternatives.” Kentucky Coal Ass'n, Inc. v. Tennessee Valley Auth., 804 F.3d 799, 804 (6th Cir.
2015) (citing 40 C.F.R. §§ 1508.9, 1501.4(b)).

The agency may issue a “finding of no

significant impact” and proceed with the proposed actions if the agency determines that an
environmental impact statement is not required. Id. (citing 40 C.F.R. §§ 1501.4(e), 1508.13).
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The finding of no significant impact must “briefly present[] the reasons why proposed agency
action will not have a significant impact on the human environment.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 758, 124 S. Ct. 2204, 2210 (2004) (citing 40 C.F.R. §§ 1501.4(e),
1508.13.)
In October 2008, the Park Service published an environmental assessment of the trail that
included analysis of various environmental impacts. The environmental assessment analyzed
three alternatives: Alternative A was a trail “constructed in the M-22/M-109 rights-of-way to the
extent possible, only deviating where necessary due to physical or environmental constraints.”
(PageID.1229); Alternative B, was a trail “in the M-22/M-109 rights-of-way, in many areas, but
deviating from the highway corridor where possible to avoid physical or environmental
constraints, provide access to natural, cultural, or recreation resources, and to promote a broader
variety of experiences for the Trailway user” (PageID.1246); the environmental assessment also
included a “no action” alternative, under which no Trailway would be constructed.

Most

importantly for the purposes of this case, Alternative A included a segment which tracked M-22,
while Alternative B contained a segment that ran along Traverse Lake Road.
The Park Service held a 30-day comment period and an open house, ultimately receiving
about 50 comments. The residents on Little Traverse Lake Road objected to various aspects of
the proposed route, largely on the basis that it would increase traffic along Traverse Lake Road;
that increased traffic would generate safety risks for hikers and bikers; that the trail would
disrupt driveways, mailboxes, and utilities; that M-22 is a preferable route for the trail because it
would channel trail users towards businesses along M-22; and that the trail would disrupt
wildlife, habitat, and topography. (ECF No. 16-6 at PageID.1170-83, comments numbered 2, 8,
9, 11, 12, 13, 14, 16 -31, 37.) One comment proposed an alternative route. (ECF No. 16-6 at
PageID.1177.)
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The Park Service considered these comments and issued a second environmental
assessment in March 2009 in which it changed the proposed Segment 9 from a path directly
adjacent to Traverse Lake Road to one separated from the road by some distance. The Park
Service again made the environmental assessment available for 30 days for public review and
comment.

No Plaintiff objected to the 2009 environmental assessment, and there was no

comment on the 2009 environmental assessment regarding Segment 9.

(ECF No. 16-3 at

PageID.690; ECF No. 32-1 at 3795-97.) The Park Service issued a finding of no significant
impact for the trailway project in August 2009 and selected Alternative B.
II. DISCUSSION
A. Waiver
“Persons challenging an agency’s compliance with NEPA must ‘structure their
participation so that it ... alerts the agency to the [parties’] position and contentions,’ in order to
allow the agency to give the issue meaningful consideration.” Pub. Citizen, 541 U.S. 752, 764,
124 S. Ct. 2204, 2213 (2004) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Defense
Council, Inc., 435 U.S. 519, 553, 98 S. Ct. 1197, 1216 (1978)). An objection must also be
detailed enough to “allow the agency to rectify the alleged violation.” Karst Envtl. Educ. &
Prot., Inc. v. Fed. Highway Admin., 559 F. App'x 421, 424 (6th Cir. 2014) (internal quotation
marks omitted). “The question … is whether the claim raised in the administrative process was
similar enough to that raised in the federal complaint that the agency was on notice that it must
consider and decide the same claim now raised.” Id. at 427. Failure to properly object at the
administrative stage generally “forfeit[s] any objection” to the environmental analysis on that
ground, but “an EA’s or an EIS’[s] flaws might be so obvious that there is no need for a
commentator to point them out specifically in order to preserve its ability to challenge a
proposed action.” Pub. Citizen, 541 U.S. at 764-65, 124 S. Ct. at 2214.
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The Park Service argues that Plaintiffs forfeited their objections when they failed to
comment on the 2009 environmental assessment. (ECF No. 35 at PageID.3820.) Plaintiffs argue
that the comments on the October 2008 environmental assessment sufficiently alerted the Park
Service to the issues now before the Court, or that the environmental assessment’s flaws are so
obvious that comments were unnecessary to preserve the challenge.

(ECF No. 42 at

PageID.3939-42.)
1. Failure to Comment on the March 2009 Environmental Assessment
The Park Service argues that the comments on the 2008 environmental assessment do not
satisfy Plaintiffs’ duty to object to the 2009 environmental assessment because “the proposed
route for segment 9 changed between the October 2008 EA and the March 2009 EA.” (ECF No.
44 at PageID.3965.) The Park Service changed the proposed layout of the trail in response to
many comments on the 2008 environmental assessment that expressed concern for safety of
hikers and bikers. The 2008 environmental assessment proposed a path that directly bordered
the road, while the 2009 environmental assessment included a separation between the road and
the path. (See Id.) The Park Service contends that this change was significant enough that the
comments on the 2008 environmental assessment did not put it “on notice that it must consider
and decide” the same issues a second time, and it “had every reason to believe that Plaintiffs’
silence during the time for comment on the revised March 2009 EA conveyed tacit approval of
the revised route, not continued objection.” (Id. at PageID.3966.)
Although the Sixth Circuit has yet to directly address whether comments on one
environmental assessment will preserve those issues as to a second or revised environmental

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assessment,1 the principles underlying the exhaustion requirement favor the Park Service. The
Park Service issued a revised plan that addressed many of the concerns initially raised about
Segment 9 and held another comment period.

Plaintiffs knew how to “structure their

participation” to allow the Park Service to consider these objections before issuing the finding
of no significant impact, but failed to do so.2 Instead of being able to respond to Plaintiffs’
concerns, the Park Service is required to defend its analysis in court, which is precisely why
“[t]he time to complain is at the comment stage, not after the agency has completed its decision
making process.” Karst, 559 F. App'x at 424 (6th Cir. 2014). Thus, this Court holds that
Plaintiffs have waived their objections unless the comments on the 2008 environmental
assessment sufficiently alerted the Park Service to the alleged deficiencies in the 2009
environmental assessment.
2. October 2008 Comments Raising Issues
a. Failure to Disclose and Analyze Environmental Impacts
Count I alleges that the Park Service violated National Environmental Policy Act because
it failed to disclose and analyze environmental impacts. (ECF No. 1 at PageID.16-17.) More
specifically, Plaintiffs complain that the environmental assessment “fails to sufficiently consider
the fact that… Segment 9 will be built in heavily wooded areas, wetlands, critical dune areas,
and wildlife habitat.” (ECF No. 31 at PageID.3778.) Some of the comments note that the area is
heavily forested and that the construction would require the removal of trees. (See, e.g., ECF
No. 16-6 at PageID.1176-1179.) One comment goes so far as to say that Segment 9 would be

1

The court in Sierra Club v. United States Forest Serv., 878 F. Supp. 1295 (D.S.D. 1993), aff'd, 46 F.3d 835 (8th Cir.
1995) concluded that the plaintiffs failed to exhaust their administrative remedies. This case is not binding in the
Western District of Michigan.
2

According to Plaintiffs, they are seasonal residents and, it is suggested, did not receive actual notice of the 2009
Park Service proposed plans.

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“environmentally dreadful.” (Id.) But the Park Service points out that no comment challenges
the sufficiency of the environmental assessment’s analysis.

Instead, the comments express

general displeasure with the segment. Plaintiffs have waived this objection.
b. Failure to Prepare Environmental Impact Statement
No comment on the October 2008 environmental assessment requested that the Park
Service prepare an environmental impact statement.

A comment from Jerry Leanderson

complains that “[g]reat care, expense and environmental impact studies would be required to
route a new path” along Traverse Lake Road, presumably because Mr. Leanderson thought “the
area at the west end of Little Traverse Lake, where the stream passes under the road, is very low
and should be considered wetlands.” (ECF No. 16-6 at PageID.1172.) This comment does not
object to the any particular part of the Park Service’s analysis, and is not even objecting to the
lack of an environmental impact statement. Plaintiffs have waived this objection.
c. Failure to Analyze Alternatives
Count III alleges that the Park Service failed to consider an adequate range of alternative
routes, specifically that it failed to consider “an alternative that would route Segment 9 of the
Trail north off M-22 on Bohemian Road (a/k/a County Road 669).”

(ECF No. 31 at

PageID.3791.) Assuming, arguendo, that comments on the 2008 environmental assessment are
capable of raising issues, this comment preserves this issue for review insofar as it makes a
discrete, identifiable objection which is essentially identical to the issue now before this Court.
The merits of this comment are addressed below. See Part B.
d. Reliance on Incomplete, Misleading, and Inaccurate Data
No comment in the October 2008 environmental assessment raised any issue with the
accuracy or completeness of the Park Service’s data. Plaintiffs’ motion for summary judgment

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details that the Park Service improperly analyzed environmental effects in Table 17 of Appendix
G (see PageID.1376). No comment on the 2008 environmental assessment takes issue with
Table 17 or the other data used. Plaintiffs have thus waived this objection.
3. Obvious Errors
Plaintiffs argue that flaws in the environmental assessment were “so obvious” that
objections are preserved despite the lack of comments, but they make no attempt to support this
position with case law or anything more than conclusory statements. “Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016) (quoting McPherson v.
Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (internal quotation marks omitted). Accordingly,
Plaintiffs have waived this argument.
B. Failure to Analyze Alternatives
Agencies must evaluate reasonable alternatives to the proposed action. 42 U.S.C. §
4332(2)(C)(iii). “As a general matter, ‘the range of alternatives that must be discussed’ under
the National Environmental Policy Act ‘is a matter within an agency's discretion.’” Save Our
Cumberland Mountains v. Kempthorne, 453 F.3d 334, 342 (6th Cir. 2006) (quoting Friends of
Ompompanoosuc v. Fed. Energy Regulatory Comm'n, 968 F.2d 1549, 1558 (2d Cir.1992)).
Agencies must consider the objective and environmental consequences of the project in
exercising this discretion. Id. (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
195 (D.C. Cir. 1991)). The “duty to consider environment-friendly alternatives is less pressing”
when an agency properly issues an environmental assessment as opposed to an environmental
impact statement. Id. (citing, among others, Native Ecosystems Council v. United States Forest
Serv., 428 F.3d 1233, 1246 (9th Cir.2005)).

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The stated purpose of the action was to create a “nonmotorized trailway that will provide
a continuous scenic pathway from M-22 and Manning Road at the south boundary of Leelanau
County to the north boundary of the Lakeshore at Good Harbor Bay, County Road 651, all
within Leelanau County.” (ECF No. 16-3 at PageID.771.)
1. Definition of Objective
Plaintiffs first argue that the stated purpose of ending the pathway at Good Harbor Bay
was so “rigid and inflexible” that it forecloses reasonable consideration of alternatives. (ECF
No. 31 at PageID.3792.) Courts reject an agency’s definition of purpose as unreasonably narrow
when it “compels the selection of a particular alternative.” Theodore Roosevelt Conservation
P’ship v. Salazar, 661 F.3d 66, 73 (D.C. Cir. 2011) (citing Citizens Against Burlington, 938 F.2d
at 195). The stated purpose in the instant case allowed for the selection of at least two different
routes for Segment 9: Alternative A, tracking M-22, and Alternative B, tracking Traverse Lake
Road. Moreover, the maps in the administrative record show that a path to the end of County
Road 651 could have tracked several other roads. (See, e.g., No. 16-4 at PageID.796.) The Park
Service’s stated purpose was not unreasonably narrow.
2. Failure to Consider County Road 669 Alternative
Plaintiffs also argue that the Park Service failed to consider a reasonable range of
alternatives because it did not consider routing Segment 9 North along County Road 669 (a/k/a
Bohemian Road), ending the trail at that road’s Northern terminus.
PageID.3791.)

(ECF No.31 at

Whatever advantages this route may have over the proposed routes, it

nonetheless conflicts with the purpose of ending the trail on County Road 651. It was reasonable
for the Park Service not to consider this alternative route.

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III. CONCLUSION
For the foregoing reasons, Plaintiffs have failed to exhaust their administrative remedies
and Defendant is entitled to summary judgment as to all counts.
A separate order will enter.

Dated: December 21, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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