Defenders of Wildlife, et al v. North Carolina Department of Transportation, et al
Filing
99
ORDER denying 74 Motion for Summary Judgment; granting 79 Motion for Summary Judgment; and granting 81 Motion for Summary Judgment - Signed by District Judge Louise Wood Flanagan on 09/16/2013. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:11-CV-35-FL
DEFENDERS OF WILDLIFE and
NATIONAL WILDLIFE REFUGE
ASSOCIATION,
Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION;
JOHN F. SULLIVAN, III, Division
Administrator, Federal Highway
Administration; and EUGENE A.
CONTI, JR., Secretary, North Carolina
Department of Transportation,
Defendants,
and
CAPE HATTERAS ELECTRIC
MEMBERSHIP CORPORATION,
Intervenor-Defendant.
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ORDER
This matter comes before the court on motion of Defenders of Wildlife and National Wildlife
Refuge Association (collectively “plaintiffs”) for summary judgment (DE 74).
Defendants North
Carolina Department of Transportation (“NCDOT”) and Eugene A. Conti, Jr. (“state defendants”)
responded and filed cross-motion for summary judgment (DE 79). Defendants Federal Highway
Administration (“FHWA”) and John F. Sullivan, III (“federal defendants”) also filed response and
cross-motion for summary judgment (DE 81). The issues raised are ripe for adjudication. For the
following reasons, plaintiff’s motion is denied and defendants’ cross-motions are granted.
STATEMENT OF THE CASE
Plaintiffs filed suit pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701706, raising claims against defendants for alleged violations of the National Environmental Policy
Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-47, and Section 4(f) of the Department of Transportation
Act of 1966 (“Section 4(f)”).1
Plaintiffs primarily allege that defendants failed to follow proper
procedure in researching, designing, and choosing a replacement for the Herbert C. Bonner Bridge
(“Bonner Bridge”), which spans the Oregon Inlet of North Carolina’s Outer Banks.
The parties proposed a case schedule to consist first of the federal defendants’ lodging of the
administrative record, followed by the parties’ cross-motions for summary judgment.
The court
adopted this plan by order entered November 1, 2011, and amended it on February 9, 2012, after
allowing Cape Hatteras Electric Membership Corporation to intervene as a defendant.
On July 20, 2012, plaintiffs moved for summary judgment on the basis that defendants
violated NEPA by: (1) impermissibly segmenting the action at issue; (2) failing to disclose and fully
evaluate the direct, indirect, and cumulative impacts of the selected alternative; (3) failing to
adequately analyze alternatives; and (4) failing to prepare a supplemental environmental impact
statement (“SEIS”). Plaintiffs also moved for summary judgment pursuant to Section 4(f), claiming
that defendants’ selected alternative is prohibited because it uses a refuge. Defendants responded
in opposition and filed cross-motions for summary judgment on September 5, 2012, arguing that the
selected alternative meets the requirements of NEPA and Section 4(f).
1
Due to the large number of acronyms and abbreviations in this case, a glossary of terms is attached.
2
STATEMENT OF UNDISPUTED FACTS
A.
Bonner Bridge and Pea Island National Wildlife Refuge2
The project at issue, entitled “NC 12 Replacement of Herbert C. Bonner Bridge” (sometimes
referred to as the “Project”), was developed by NCDOT, in collaboration with FHWA to secure
federal funding.
R. 58273-59058 (containing the 2008 Final Environmental Impact Statement
(“FEIS”)/Section 4(f) Evaluation for the Project). Bonner Bridge, which is part of North Carolina
Highway 12 (“NC 12”), connects Bodie and Hatteras Islands in the Outer Banks by spanning 2.5
miles across Oregon Inlet. R. 58275, 58330-31. Bonner Bridge, owned by NCDOT, was built in
1962 and is approaching the end of its reasonable service life.3 R. 91956. In 2002, Bonner Bridge
carried about 5,400 vehicles per day, with peak tourist season traffic up to 10,900 vehicles per day.
R. 58328-29. Ferries also provide emergency transportation between the islands, and were the sole
means of transport before Bonner Bridge was constructed. R. 58369-70.
The southern end of Bonner Bridge lies in Pea Island National Wildlife Refuge (“Refuge”),
which spans from the northern tip of Hatteras Island to the village of Rodanthe. R. 58499-501. The
Refuge is almost twelve (12) miles long, but only 0.25 to 1 mile in width. R. 58538. The Refuge
was established in 1938 by Executive Order of President Theodore Roosevelt in recognition of the
importance of the area for wildlife preservation. R. 58537.4
The Refuge is home to hundreds of
species of migratory birds and other wildlife, including the piping plover (a shorebird designated as
2
For a map of the area described in this section, see Figure 1, infra.
3
It is disputed, however, as to how much longer the bridge will remain safe for use.
4
The Refuge is a Section 4(f) resource, with significant publicly owned recreation area and historic site. R.
58538.
3
threatened under the Endangered Species Act) and several threatened and endangered species of sea
turtles that use the Refuge for nesting. R. 58599-601, 58730-40.
The Executive Order establishing the Refuge reserved the lands for the Refuge “subject to
valid existing rights” – a restriction consistent with language in the Migratory Bird Conservation Act
of 1929 (from which the Refuge was funded) specifically allowing pre-existing rights- of-way to
remain when a property is acquired if the right-of-way is not incompatible with the Refuge function.
16 U.S.C. § 715(e). Later in 1938, the United States acquired the land for the Refuge through
condemnation actions. R. 77-86. These acquisitions did not include existing public highways and
public utility easements across the island. R. 78. At that time, the North Carolina State Highway
and Public Works Commission, in cooperation with FHWA’s predecessor agency, published a map
of Dare County depicting both the Refuge and an “unimproved road” extending from Oregon Inlet,
across the length of the Refuge to Rodanthe and points further south. R. 78363.
In 1954, the United States Department of Interior (“DOI”) granted an easement for a
100-foot-wide right-of-way for the state of North Carolina to maintain a road, where NC 12 was
built. R. 1108-10, 68660. NC 12 bisects the entire Refuge as it connects Bodie Island to Rodanthe.
The Refuge is located on an unstable portion of Hatteras Island due to shoreline erosion. R. 58329.
The result of the natural forces working on the Refuge, along with efforts to shore up the road, is a
continual narrowing of the island and its beaches over time.
The same forces also are causing
Oregon Inlet to move. Since a storm created the inlet in 1846, the southern end of Bodie Island has
moved over two miles southward (at an average of seventy (70) feet per year), as the southern end
of Bodie Island accretes and the northern end of Hatteras Island erodes. R. 58329.
4
In 1991, scientists retained by NCDOT identified three “critical sections” or “hot spots”
within the Refuge. R. 58326, 58329. These are the areas with the highest erosion rates (ranging
from eight to fifteen (15) feet per year) and where the creation of new inlets is most likely to occur.
R. 58329.
Because of Hatteras Island’s erosion and westward movement, NCDOT has, over time,
relocated NC 12 to the western-most edge of its right-of-way in many places within the Refuge, and
occasionally outside the right-of-way.
Each relocation required a special use permit from DOI.
R. 75635-43, 77086-90. Travel on NC 12 frequently is disrupted, as storms and high tides make it
impassable for anywhere from a few hours to a few weeks, usually at the hot spots identified by
NCDOT. R. 36922-26 (listing seventeen (17) significant storm events in the area between 1991 and
2005); R. 59874-79, R. 77259-81, 77284 (correspondence and photos of storm damage to NC 12).
B.
Preparation for Bonner Bridge Replacement
Planning began for a replacement in 1990 after severe deterioration of the steel and concrete
supporting structures became apparent and a ship collision demolished several spans. R. 7603-25,
8568-69. Environmental studies for NEPA and other federal environmental laws were undertaken
because NCDOT intended to construct the replacement bridge using Federal grant-in-aid funds
administered by FHWA. See R. 9142-44.
In evaluating the Project under NEPA and Section 404 of the Clean Water Act, FHWA’s
North Carolina Division Office and NCDOT engaged in an interagency project development and
permitting process referred to as the “Merger Team” with the United States Army Corps of
Engineers (“USACE”), United States Environmental Protection Agency (“EPA”), United States Fish
and Wildlife Service (“USFWS”), National Marine Fisheries Service (“NMFS”), National Park
5
Service (“NPS”), North Carolina Division of Environment and Natural Resources (“NCDENR”),
and the North Carolina Department of Cultural Resources, State Historic Preservation Office
(“SHPO”). R. 58878. The Merger Team meetings provided opportunities for agency participants
to concur formally with key decisions in the NEPA process, such as the Project’s purpose and need,
the alternatives to be analyzed in detail, the Least Environmentally Damaging Practicable Alternative
(“LEDPA”), and avoidance and minimization of harms. R. 58879, 83419. In the event that the
Merger Team could not agree on a particular issue, the Merger Process included a dispute resolution
procedure to resolve conflicts. R 83419. The Merger Process was agreed to by USACE, NCDENR,
FHWA, and NCDOT, and supported by other partnering agencies and local units of government.
R. 83419.
As noted above, the Project area is complex and the shoreline constantly is changing.
R. 83436, 91956. Over a 19-year study period, FHWA and NCDOT jointly prepared 3,163 pages
of environmental documentation, including: (1) a 1993 Draft Environmental Impact Statement
(“DEIS”)/Draft Section 4(f) Evaluation, R. 12522-954; (2) a 2005 Supplemental Draft
Environmental Impact Statement (“SDEIS”)/Draft Section 4(f) Evaluation, R. 31649-2197; (3) a
2007 Supplement to the Supplemental Draft Environmental Impact Statement (“SSDEIS”)/Draft
Section 4(f) Evaluation, R. 38890-9072; (4) a 2008 FEIS/Section 4(f) Evaluation, R. 58273-9571;
(5) a 2009 Revised Final Section 4(f) Evaluation, R. 75556-5734; and, (6) a 2010 Environmental
Assessment (“EA”), R. 83394-913.
FHWA and NCDOT released the 1993 DEIS/ Draft Section 4(f) Evaluation. R. 12522–954.
It assessed multiple alternatives, while indicating that the Parallel Bridge Corridor across Oregon
Inlet alternative was the “preferred alternative.” R. 12562, 12587-612. After the release of the 1993
6
DEIS/ Draft Section 4(f) Evaluation, two public hearings were held. R. 32086, 91958. Federal, state,
and local agencies, and other non-governmental organizations submitted comments on the 1993
DEIS/ Draft Section 4(f) Evaluation. R. 91958. A preliminary FEIS/Section 4(f) Evaluation was
prepared in 1996, but was not formally completed. R. 15724.
In 2001, an informal re- evaluation was conducted to determine if the 1996 preliminary
FEIS/Section 4(f) Evaluation remained a valid assessment of Project impacts, given the length of
time that had passed since the 1993 DEIS/ Draft Section 4(f) Evaluation was completed. R. 1934,
19750-88, 20017-18. Following that informal re-evaluation process, FHWA and NCDOT published
the 2005 SDEIS/Draft Section 4(f) Evaluation. R. 31649- 2197. Work on the 2005 SDEIS/Draft
Section 4(f) Evaluation commenced in 2002 with a new study of potential Bonner Bridge
replacement alternatives. R. 20637, 20649. The area to be studied in the 2005 SDEIS/Draft Section
4(f) Evaluation was expanded south to encompass NC 12 to Rodanthe, due to concerns about
shoreline erosion and overwash. R. 21007, 21012. The 2005 SDEIS/Draft Section 4(f) Evaluation
assessed two potential corridors, the Pamlico Sound Bridge Corridor and the Parallel Bridge
Corridor. R. 31765, 31783-84. Five alternatives within these two corridors were analyzed. R.
31913-32024.
After the release of the 2005 SDEIS/Draft Section 4(f) Evaluation, two public
hearings were held and comments on the document were solicited. R. 91958, 91960.
Based upon a proposal made during the 2005 SDEIS/Draft Section 4(f) Evaluation comment
period, two additional Parallel Bridge Corridor alternatives were developed.
R. 91960.
These
additional alternatives were analyzed in the 2007 SSDEIS/Draft Section 4(f) Evaluation, which was
signed in February 2007. R. 38890-9072. Two public hearings on the 2007 SSDEIS/Draft Section
4(f) Evaluation were held. R. 91960.
7
On June 20, 2007, an informational Merger Team meeting was held to discuss funding issues
regarding the Pamlico Sound Bridge Corridor alternative, along with alternatives that would involve
a phased construction approach. R. 41303-16, 58838. FHWA and NCDOT presented details on the
cost estimates for the detailed study alternatives in the 2007 SSDEIS/Draft Section 4(f) Evaluation.
R. 41303-16, 58838. The cost estimates independently were reviewed by FHWA’s Headquarter’s
Office of Bridge Technology as well as an independent bridge contractor, Finley Engineering. R.
41303-16, 58838. On August 27, 2007, NCDOT, FHWA, USACE, and NCDENR (these agencies
comprise the Merger Dispute Resolution Board) concurred as part of the Merger Team Dispute
Resolution process that the Parallel Bridge Corridor with a phased approach was the LEDPA. R.
58838, 59444-46.
On September 17, 2008, FHWA signed the 2008 FEIS/Section 4(f) Evaluation.
R. 58273-9571. The 2008 FEIS/Section 4(f) Evaluation addressed the comments received on both
the 2005 SDEIS/Draft Section 4(f) Evaluation and the 2007 SSDEIS/Draft Section 4(f) Evaluation
and identified the Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge as the “preferred
alternative.” R. 91960. The 2008 FEIS/Section 4(f) Evaluation was provided to eighteen (18)
federal agencies, eleven (11) state agencies, fourteen (14) local agencies or governments, and twentythree (23) interest groups and nongovernmental organizations.
R. 69019. Copies of the 2008
FEIS/Section 4(f) Evaluation were made available for public review at six libraries or government
offices in the local study area, as well as on the internet. R. 69019-20.
Comments on the 2008 FEIS/Section 4(f) Evaluation were accepted for a thirty-day period.
R. 69020. Adverse comments were received from DOI, NMFS, EPA, NCDENR, and the Southern
Environmental Law Center. R. 69020-21. To address the comments and concerns they received
8
about the 2008 FEIS/Section 4(f) Evaluation, NCDOT and FHWA worked through the Merger Team
process. R. 63818-62. The EPA representative on Merger Team proposed that NCDOT should
develop a modification of the 2008 FEIS/Section 4(f) Evaluation, and the Merger Team agreed. R.
70182-84, 70191-92. EPA suggested a new alternative which would combine Phase I of the 2008
FEIS/Section 4(f) Evaluation preferred alternative (the replacement bridge over Oregon Inlet) with
an adaptive management and joint planning process for future decisionmaking in the southern
portion of the Project area. R. 70182-84, 70191-92. EPA’s proposal formed the basis for the new
preferred alternative, which was called the “Parallel Bridge Corridor with NC 12 Transportation
Management Plan” alternative. R. 75559-61.
In 2009, FHWA prepared a Revised Section 4(f) Evaluation to change several determinations
in the prior Section 4(f) analysis, evaluate the new preferred alternative that had evolved at the
Merger Team meetings, analyze the feasibility of the Pamlico Sound Bridge Corridor alternative, and
reconsider the least overall harm determination in light of the new preferred alternative.
R. 75556-90.
Since the 2008 FEIS/Section 4(f) Evaluation, FHWA and NCDOT had collected more
information regarding the history of vehicular transportation across Bodie and Hatteras Islands, and
the development of the Cape Hatteras National Seashore (“Seashore”) and Refuge. R. 75564-69.
The 2009 Revised Section 4(f) Evaluation examined the effect of the new Parallel Bridge Corridor
with NC 12 Transportation Management Plan alternative, and concluded that the Pamlico Sound
Bridge Corridor alternative—a long bridge totaling 17.5 miles—was not a prudent alternative
because of its cost and the funding needed to construct a bridge of that magnitude in a single
construction phase.
R. 75574- 76, 75698-714.
9
Additionally, the 2009 Revised Section 4(f)
Evaluation concluded that the Pamlico Sound Bridge Corridor alternative would impact adversely
the public’s access to the Refuge. R. 75576.
On May 7, 2010, FHWA and NCDOT issued an EA. R. 83394–913. The 2010 EA was
prepared to identify and assess changes that occurred since the completion of the 2008 FEIS/Section
4(f) Evaluation.
The changes following the 2008 FEIS/Section 4(f) Evaluation were made in
response to comments received on the 2008 FEIS/Section 4(f) Evaluation and in light of factors
involving the continued existence and maintenance of NC 12 in the Seashore and Refuge. R. 91960.
The 2010 EA discussed: (i) new information obtained since the publication of the 2008 FEIS/Section
4(f) Evaluation; (ii) refinements made to the detailed study alternatives since the release of the 2008
FEIS/Section 4(f) Evaluation; (iii) the elimination of the Pamlico Sound Bridge Corridor alternative
as a detailed study alternative; (iv) the addition of a new detailed study alternative – the Parallel
Bridge Corridor with NC 12 Transportation Management Plan alternative – and its selection as the
preferred alternative going forward; (v) an assessment of impacts for the preferred alternative; and
(vi) an evaluation of the changes to several of the remaining detailed study alternatives at both
Rodanthe and at the northern end of Hatteras Island. R. 91960.
Following the publication of the 2010 EA, two additional public hearings were held in July
2010. R. 91960. After reviewing the comments received at the public hearings regarding the 2008
FEIS/Section 4(f) Evaluation and 2010 EA, FHWA determined that the changes identified in the
2010 EA did not result in any new significant impacts that were not previously identified in the
earlier environmental documents, and another environmental impact statement (“EIS”) was not
required. R. 91960. The Merger Team agreed to a 2010 amendment to the August 27, 2007, Merger
Team agreement stipulating that the Merger Team would be consulted about decisions on future
10
phases of highway construction.
R. 83449, 83467-68. Although DOI had at one point raised
objections to a preferred alternative, DOI ultimately did not object to the selection of the Parallel
Bridge Corridor with NC 12 Transportation Management Plan alternative because appropriate permit
conditions and mitigation to protect the Refuge would be put into place. R. 92063.
C.
Selection of the Parallel Bridge Corridor with NC 12 Transportation Management Plan
Alternative
FHWA’s decisionmaking for the Project concluded on December 20, 2010 when the FHWA
signed the Record of Decision (“ROD”) approving the Parallel Bridge Corridor with NC 12
Transportation Management Plan alternative for implementation.
R. 91952-2117.
The ROD
authorizes NCDOT to begin the final engineering design for a two- lane, adjacent replacement bridge
over Oregon Inlet that will be built with eighty percent (80%) federal highway funds administered
by FHWA. See R. 91986; 23 C.F.R. § 771.127. The ROD summarizes the environmental issues
that were encountered; the numerous bridge, ferry, and no action alternatives that were considered;
the coordination undertaken with the public and federal, state, and local agencies; and mitigation
measures that NCDOT will be required to implement in order to receive the federal funds. R.
91952-2117. The ROD also included FHWA’s responses to comments submitted on the 2010 EA.
R. 92042-99.
In addition to authorizing the replacement of Bonner Bridge within a parallel corridor,
referred to as “Phase I,” the ROD addressed the fact that the environmental studies anticipated that
additional federally-funded NC 12 repairs will be necessary on Hatteras Island in the future due to
shoreline erosion and storms.
R. 91967, 91970, 91983.
The portion of NC 12 the 2008
FEIS/Section 4(f) Evaluation studied for future phases of repair as part of the Project extends from
11
the southern end of Bonner Bridge to Rodanthe, a distance of approximately 12.5 miles. The future
shoreline conditions along NC 12 were forecasted through the year 2060. R. 91956.
The ROD explains that FHWA decided not to approve any particular action beyond the limits
of Phase I because of the inherent uncertainty in predicting future conditions within a dynamic
coastal barrier island environment. R. 91967. Instead, FHWA approved a detailed plan that requires
NCDOT to monitor, study, and conduct additional agency and public coordination before coming
back to FHWA for approval to implement each future phase of NC 12 repair, which is called the
“NC 12 Transportation Management Plan.”
R. 91959 (map depicting Phase I and NC 12
Transportation Management Plan); R. 91967-70. Future phases will be subject to further NEPA
documentation and permits, as appropriate. R. 91970-83.
D.
Proposed Alternatives5
1.
Pamlico Sound Bridge Corridor Alternative
The Pamlico Sound Bridge Corridor alternative is a proposed long bridge totaling 17.5 miles,
which would travel from Bodie Island to Rodanthe through the Pamlico Sound. It would bypass the
Refuge completely. See Figure 1 below. If built, the Pamlico Sound Bridge would be the second
longest bridge in the United States and one of the longest bridges in the world.6 R. 75711.
5
As indicated above, many alternatives were considered. The court limits its discussion in this section to the
two alternatives at issue in this case.
6
The cost estimates vary broadly from $420 million to $1.7 b illion for building the Pamlico Sound Bridge
Corridor alternative. Plaintiffs claim that the higher range estimates are inflated, but are still less than some estimates
for providing transportation improvements from Bodie Island to Rodanthe under the selected alternative. These costs
do not include the extra costs asserted by intervenor, a rural electric cooperative which provides electric power service
to Hatteras Island. Intervenor claims that its trans mis s io n line currently runs along the bottom of Bonner Bridge.
Intervenor claims it will have to pay for a new transmission line attached to the new bridge, and estimates its costs alone
to be $12 million under the Parallel Bridge Corridor with NC 12 Transportation Management Plan alternative and $53
million under the Pamlico Sound Bridge Corridor alternative.
12
R. 58276 (“Figure 1”).
13
On September 10, 2003, following its July 23, 2002 meeting, the Merger Team selected the
Pamlico Sound Bridge Corridor alternative as the sole alternative to be studied in detail for the
Project, having determined that the Parallel Bridge Alternatives could not receive certain approvals
required under federal law, including a compatibility determination required by the National Wildlife
Refuge System Improvement Act of 1997.7 R. 80895 (concurrence form); R. 23293 (minutes of July
23, 2003 Merger Team meeting); R. 58389. NCDOT explained the selection of the Pamlico Sound
Bridge Corridor alternative to local government officials in Dare County, where the Project would
be located, stating that a parallel replacement bridge in Oregon Inlet was “no longer viable.” R.
80897 (June 20, 2003 letter from Tippett to Judge); see also R. 80899, DE 315 (June 26, 2003 letter
from Bryant).
There is some evidence that certain state officials did not support the Pamlico Sound Bridge
Corridor alternative, wanted to revert to one of the Parallel Bridge Alternatives, and voiced their
concerns to defendants and other government entities. R. 80904-06 (letter from Basnight to Easley
stating that building the Pamlico Sound Bridge Corridor alternative would cost $260 million, but
funding allocated for the Project is only $120 million, which would require other projects in the state
to be set aside or set back and voicing concern as to citizens’ access to the Refuge); R. 26249-51
(letter from White to Tippett expressing disappointment in NCDOT’s handling of the replacement
of Bonner Bridge); R. 26000 (April 1, 2004, letter from Tippett to Jones responding to concerns by
stating that “the 17-mile long bridge [is] the only currently proposed reasonable, feasible, and
practicable alternative for replacing the Bonner Bridge”); R. 22661-62 (letter from Dare County
7
Among other things, this Act prohibits the use of National Wildlife Refu g e land for purposes that are
incompatible with the mission of the Refuge, 16 U.S.C. § 668dd(d)(3)(A)(i).
14
Board of Commissioners to state and federal government entities expressing concern over public
access to the Refuge).
The Pamlico Sound Bridge Corridor alternative meets the purpose and need of the Project
by providing continued access to Hatteras Island. R. 58836. It would take approximately two
minutes longer for emergency response to use the Pamlico Sound Bridge Corridor alternative than
the Parallel Bridge Corridor with Transportation Management Plan alternative. R.58835. Under the
Pamlico Sound Bridge Corridor alternative, paved road access to the Refuge would not be retained.
R. 58835. Both the Pamlico Sound Bridge Corridor alternative and the Parallel Bridge Corridor with
Transportation Management Plan alternative adequately take into consideration shoreline migration
and channel migration to 2050. R. 58835. However, defendants found that the Pamlico Sound
Bridge Corridor alternative could not “reasonably be built because of lack of available funding and
the inability to phase the Project in operational segments.” R. 58836.
2.
High Speed Ferries
In the 1993 DEIS, defendants decided not to study the use of ferries in detail due to costs,
reduction in traffic service despite increased demand, and the requirement of dredging to maintain
a navigation channel. R. 12597- 602. High speed ferries in particular were considered to be an
unworkable alternative. R.92092-93. The existing ferry service in North Carolina carries 1.1 million
vehicles per year on seven routes, while Bonner Bridge carried 1.9 million vehicles in 2002 and is
projected to carry 3.5 million vehicles in 2025. R. 92094. Thus, the ferry facilities currently in place
for emergency use would need to be greatly expanded. R. 58370, 92093. Use of a ferry would also
likely require dredging, which causes substantial environmental damage. R. 58368-71.
15
DISCUSSION
Summary judgment is appropriate where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986) (holding that a factual
dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is
sufficient evidence for a reasonable jury to find for the non-moving party).
The party seeking
summary judgment bears the initial burden of demonstrating the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met
its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that
there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).
Summary judgment is not a vehicle for the court to weigh the evidence and determine the
truth of the matter, but to determine whether a genuine issue exists for trial. Anderson, 477 U.S. at
249.
In making this determination, the court must view the inferences drawn from the underlying
facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). Only disputes between the parties over facts that might affect the outcome of the
case properly preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. Accordingly,
the court must examine the materiality and the genuineness of the alleged fact issues in ruling on this
motion. Id. at 248-49.
Pursuant to the APA, a person “adversely affected or aggrieved by agency action . . . is
entitled to judicial review thereof.” 5 U.S.C. § 702. “The reviewing court shall . . . hold unlawful
and set aside any agency action, findings, and conclusions found to be . . . arbitrary, capricious, an
16
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
[A] reviewing 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 . . . .
Although this inquiry into the facts is to be searching and careful, the ultimate
standard of review is a narrow one. The court is not empowered to substitute its
judgment for that of the agency.
Fort Sumter Tours, Inc. v. Babbitt, 66 F.3d 1324, 1335 (4th Cir. 1995) cert. denied, 517 U.S. 1220
(1996) (internal quotation marks omitted).
Under this narrow standard of review, the court “must ensure that the agency has examined
the relevant data and articulated a satisfactory explanation for its action, and must not reduce itself
to a rubber-stamp of agency action.” N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596,
601 (4th Cir. 2012) (internal citations and quotation marks omitted); see also Shenandoah Valley
Network v. Capka, 669 F.3d 194, 196 (4th Cir. 2012) (“Claims arising under NEPA are subject to
judicial review pursuant to the [APA].”); Hickory Neighborhood Def. League v. Skinner, 893 F.2d
58, 61 (4th Cir. 1990) (applying the deferential standard in the APA when considering a claim
pursuant to Section 4(f)).
A.
NEPA Claims
NEPA was enacted with the recognition that America “has in many areas overdrawn its bank
account in life-sustaining natural elements.” S. Rep. No. 296, 91st Cong., 1st Sess. at 16 (1969).
Its purpose is “to establish . . . a national policy to guide federal activities which are involved with
or related to the management of the environment or which have an impact on the quality of the
environment.” Id. at 8. Section 102(1) of NEPA commands that “the policies, regulations, and
public laws of the United States shall be interpreted and administered in accordance with the policies
set forth in [this Act].” 42 U.S.C. § 4332(1). NEPA includes a range of “action forcing procedures
17
that require that agencies take a hard look at [the] environmental consequences” of a proposed
project. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation
marks omitted).
NEPA does not mandate a particular outcome, but rather describes the process necessary to
reach an informed decision. Robertson, 490 U.S. at 351 (recognizing that NEPA “merely prohibits
uninformed–rather than unwise–agency action”). However, proper compliance with procedures “are
almost certain to affect the agency’s substantive decision.” Robertson, 490 U.S. at 350. An agency’s
decision may be based on “factors including economic and technical considerations and agency
statutory missions,” as well as “any essential considerations of national policy which were balanced
by the agency.” 40 C.F.R. § 1505.2(b). The agency must also evaluate “reasonably foreseeable
significant adverse effects on the human environment,” which are known as the cumulative impacts.
40 C.F.R. §§ 1502.22 and 1508.7 (latter section defining 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... or person undertakes
such other actions”).
NEPA requires preparation of an EIS for any major federal action that
significantly affects the quality of the “human environment.” 42 U.S.C. § 4332(2)(c).
1.
Segmentation
Under NEPA, agencies must prepare an EIS for any “major [f]ederal actions significantly
affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “Proposals or parts of
proposals which are related to each other closely enough to be, in effect, a single course of action
shall be evaluated in a single impact statement.” 40 C.F.R. § 1502.4.
Thus, actions that are
“connected,” meaning “closely related,” should be considered together in one EIS. 40 C.F.R. §
18
1508.25(a).
“Actions are connected if they: (i) Automatically trigger other actions which may
require environmental impact statements. (ii) Cannot or will not proceed unless other actions are
taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on
the larger action for justification.” 40 C.F.R. § 1508.25(a)(1).
Furthermore, the scope of an EIS, includes “[c]umulative actions, which when viewed with
other proposed actions have cumulative significant impacts and should therefore be discussed in the
same [EIS].” 40 C.F.R. § 1508.25. Thus, agencies must consider connected actions and cumulative
actions in the same EIS. “This requirement is intended to prevent agencies from engaging in
[improper] segmentation, which involves ‘an attempt to circumvent NEPA by breaking up one
project into smaller projects and not studying the overall impacts of the single overall project.’”
Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 426 (4th Cir. 2012) (quoting Coal. On W. Valley
Nuclear Wastes v. Chu, 592 F.3d 306, 311 (2nd Cir. 2009) and SPARC v. Slater, 352 F.3d 545, 559
(2nd Cir. 2003)); see also Maryland Conservation Council v. Gilchrist, 808 F.2d 1039 (4th Cir.
1986) (“We are committed to the proposition that when a major federal action is undertaken, no part
may be constructed without an EIS.”).
Segmentation of a road construction project should be avoided, but may still be done properly
if the action:
(1) connect[s] logical termini and [is] of sufficient length to address environmental
matters on a broad scope; (2) ha[s] independent utility or independent significance,
i.e., be usable and be a reasonable expenditure even if no additional transportation
improvements in the area are made; and (3) [will] not restrict consideration of
alternatives for other reasonably foreseeable transportation improvements.
23 C.F.R. § 771.111(f). Conversely, segmentation is improper when “the segmented project has no
independent utility, no life of its own, or is simply illogical when viewed in isolation.” SPARC, 352
19
F.3d at 559.
Courts often uphold an agency’s determination of scope for a transportation project under
the deferential standard of review the agency is afforded, particularly in circumstances, as here,
where a project presents unique geographical circumstances involving bridges and islands. See, e.g.,
Highway J Citizens Grp. v. Mineta, 349 F.3d 938, 962-63 (7th Cir. 2003) (finding that defendants
did not impermissibly segment a 1.3-mile bridge construction project from an abutting 18.1-mile
highway widening project); Conservation Law Found. v. Fed. Highway Admin., 24 F.3d 1465, 147273 (1st Cir. 1994) (finding that two bridges on either side of an island over Narragansett Bay were
“perfectly logical termini,” and thus the project was not improperly segmented); Vill. of Los Ranchos
de Albuquerque v. Barnhart, 906 F.2d 1477, 1483-84 (10th Cir. 1990) (evaluating the proposed
construction of a bridge across the Rio Grande River and finding no segmentation where the
terminus was a logical one, even though it may not be the most logical terminus). The parties have
not identified and the court does not find any Fourth Circuit case providing segmentation analysis
for a transportation construction project that includes bridges and islands.
a.
Logical Termini
Turning first to consideration of “logical termini” and “sufficient length,”as set out in 23
C.F.R. § 771.111(f), the FHWA defines “logical termini” as “major crossroads, population centers,
major traffic generators, or similar major highway control elements.” 37 Fed. Reg. 21,810. When
considering the question of using bridges as termini, the First Circuit has reasoned for example:
“Although the FHWA is not free to consider every bridge or culvert in a highway system to be a
suitable end point for purposes of conducting EIS analysis, two bridges over . . . a considerably large
body of water, can reasonably constitute a major ‘highway control element,’ . . . [and] appear to be
20
perfectly logical termini to us.” Conservation Law Found., 24 F.3d at 1472 (quoting 37 Fed. Reg.
21,810). See also Vill. of Los Ranchos de Albuquerque, 906 F.2d at 1482-84 (rejecting plaintiffs’
argument of illegal segmentation of a federally funded project and state bridge project, where the two
projects were “at best, only peripherally related” and the bridge project had logical termini).
In this case, defendants chose to consider Phase I as a three-mile span across the Oregon Inlet
because of the unique nature of the Outer Banks, and especially due to concerns as to changing
conditions and weather events impacting the shoreline on Hatteras Island. In this context, the
northern end of Hatteras Island constitutes a logical terminus for the Project.
Plaintiffs argue that the logical termini for this Project are Bodie Island and Rodanthe, as that
corridor connects two population centers. However, the factual circumstances surrounding this case
are unique. Selecting proper termini for a project that spans Bodie and Hatteras Islands is difficult
given the physical movement of those barrier islands and susceptibility of the Project area to storm
damage. Defendants considered and rejected plaintiffs’ proposed termini, and chose to use a phased
approach instead after years of study.
Given that agencies are only required to select “logical
termini” and not the “most logical” termini, the court finds that the Bonner Bridge replacement
complies with the first requirement of 23 C.F.R. § 771.111(f).
See Vill. of Los Ranchos de
Albuquerque, 906 F.2d at 1483 (“That a terminus is the most logical is not mandated by the
segmentation analysis-that analysis requires only that a terminus be ‘logical.’”).8
8
The court notes also that this factor has been considered to hold less weight than the other two considered
infra. See New River Valley Greens v. U.S. Dep't of Transp., No. 97-1978, 1998 WL 633959, at *3 (4th Cir. Sept. 10,
1998) (unpublished per curiam opinion) (“The hallmarks of segmentation are where the proposed component action has
little or no independent utility or involves such a large and irretrievable commitment of resources that it may virtually
force a larger or related project to go forward notwithstanding the environmental consequences.”); Conservation Law
Found., 24 F.3d at 1472.
21
b.
Independent Utility
The court next considers the “independent utility” of the proposed alternative without making
“additional transportation improvements in the area.” 23 C.F.R. § 771.111(f)(2). Therefore, the
independent utility of the proposed segment must be “substantial.” Wilds v. S.C. Dep’t of Transp.,
9 Fed. App’x 114, 120 (4th Cir. 2001). “Independent utility does not have to be maximum utility,
but it does require that the segmented portion is a reasonable expenditure . . . .” W. N.C. Alliance
v. N.C. Dep’t of Transp., 312 F. Supp. 2d 765, 774 (E.D.N.C. 2003) (internal citations and quotation
marks omitted). For example, a plan to build a highway loop around a metropolitan area may be
segmented for NEPA evaluation because each part of the loop has substantial independent utility in
relieving traffic congestion, even if the maximum utility of that segment will not be achieved until
the entire loop is completed. See N.C. Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp.,
151 F. Supp. 2d 661, 683 (M.D.N.C. 2001). Furthermore, the replacement of a structure that is
nearing the end of its service life has been found to have independent utility. See Highway J Citizens
Grp., 349 F.3d at 963 (recognizing that “independent utility is the most important factor” and that
replacement of a bridge for safety purposes had independent utility from widening the connecting
highway).
In this case, defendants chose to replace a bridge reaching the end of its service life with a
parallel bridge, while leaving open future plans to further construct later phases to Rodanthe. Bonner
Bridge is nearing the end of its service life, and has been under consideration and study for
replacement since its structural integrity first was questioned in 1990.
The proposed bridge
replacement would connect to the existing transportation corridor, and provide access to the Refuge.
Therefore, the Parallel Bridge Corridor with NC 12 Transportation Management Plan alternative is
22
a reasonable expenditure independent of additional transportation improvements, which defendants
also plan to make in future phases.
Plaintiffs assert that the replacement of Bonner Bridge will not be usable unless it
contemplates a larger section of the Outer Banks because of high erosion. See R. 64433 (NCDOT
email explaining that impassible “hot spots” of erosion leading up to the bridge would make it
useless). Therefore, they contend, the utility of replacing Bonner Bridge is lost without additional
construction through the entire Refuge on Hatteras Island. Plaintiffs note that NC 12 has been cut
off twice in recent history, due to tropical storm Ida in 2009 and hurricane Irene in 2011, requiring
extensive repairs and expenditures to reopen access to Hatteras Island. While it is true that NC 12
requires maintenance, especially in the hot spots subject to erosion on Hatteras Island, that does not
ruin the substantial utility of replacing a bridge that is reaching the end of its service life.
See
Highway J Citizens Grp., 349 F.3d at 963; N.C. Alliance for Transp. Reform, 151 F. Supp. 2d at 683.
c.
Restrictions on Future Phases of the Project
In Maryland Conservation Council, the Fourth Circuit considered not only the utility of the
proposed component of highway construction, but also whether the component was designed in a
way that would virtually force the agency to approve a later component as “a fait accompli.” 808
F.2d at 1042-43. Accordingly, the court must consider whether the “project would violate NEPA
by limiting the choice of reasonable alternatives available to federal decision-makers.” State of N.C.
v. City of Virginia Beach, 951 F.2d 596, 602 (4th Cir.1991) (internal quotation marks and citations
omitted). That is, the court considers whether the completion of the first component has “a direct
and substantial probability of influencing” the agency’s decisions as to future components. Id. at
603.
23
It is undisputed that the entire highway from Bodie Island to Rodanthe will need to be
replaced, and defendants have considered that reality while developing the EIS.
However, the
current EIS only covers the Bonner Bridge replacement, with future studies planned for later
construction phases along the NC 12 corridor.
triggered” in later phases.
Therefore, no particular action is “automatically
See 40 C.F.R. § 1508.25(a).
In this case, unlike in Maryland
Conservation Council, defendants seek to build a replacement bridge without forcing any particular
course of action in relation to subsequent components. See 808 F.2d at 1042-43.
Plaintiffs argue that the construction of Bonner Bridge as proposed would diminish the
options available for the completion of subsequent phases in violation of NEPA. They argue that
the two alternatives that plaintiffs seek to have considered, the Pamlico Sound Bridge Corridor
alternative that bypasses the Refuge or a high speed ferry system, would both be foreclosed if Bonner
Bridge is replaced as proposed. However, a bridge system or ferry system or some combination may
still be considered and adopted along Hatteras Island in later phases. This approach, as defendants
note, reflects the unique properties of that barrier island, which is subject to constant change and
migration. Thus, the Bonner Bridge replacement “contemplates, rather than restricts, future roadway
projects.” See Highway J Citizens Grp., 349 F.3d at 963.
In sum, in light of the logical termini, independent utility, and lack of restrictions on future
improvements, the court ultimately finds, under the deferential standard set forth in the APA, that
the defendants did act reasonably when they chose to consider construction from Bodie Island to
Rodanthe in phases. The court recognizes the unique geography present in this case is especially
compelling. For all of the above reasons, the court finds that the Bonner Bridge replacement was
not improperly segmented.
24
2.
Disclosure and Evaluation of the Impacts of the Parallel Bridge Corridor with NC 12
Transportation Management Plan Alternative
Plaintiffs challenge the disclosure and evaluation of the impacts of the selected alternative. 9
Many of plaintiffs’ arguments rely heavily upon the premise that defendants committed illegal
segmentation, asserting that the remaining phases of the Project are ambiguous. As the court found
no illegal segmentation in this case, it need only address the argument that remains, namely that
defendants failed to disclose and evaluate the direct impacts of the terminal groin and the indirect
effects of the selected alternative.
Part of the agencies’ analysis under NEPA includes assessing the environmental impacts of
a project to provide the “scientific and analytic basis for the comparison” of alternatives. 40 C.F.R.
§ 1502.16.
“As part of this analysis agencies must measure the indirect and cumulative
environmental effects of proposed actions. Conclusory statements that the indirect and cumulative
effects will be minimal or that such effects are inevitable are insufficient under NEPA.” N.C.
Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 602 (4th Cir. 2012) (internal citations
omitted).
a.
Terminal Groin
The terminal groin is a rock structure that was built on the northern end of Hatteras Island
to protect the southern terminus of Bonner Bridge. R. 58775. The parties dispute whether the
terminal groin must be considered as part of the agencies’ calculation of a no-build baseline (also
referred to as a no-action baseline) alternative. See 40 C.F.R. § 1502.14(d) (requiring the inclusion
9
Plaintiffs also challenged the agencies’ analysis of cumulative impacts, relying heavily on arguments relating
to phasing of the Project. It follows from the court’s analysis of segmentation above that the agencies’ analysis of future
phases, including cumulative impacts, is not insufficient as there was no illegal segmentation.
25
of “the alternative of no action” in an EIS). Accurate baseline data allows an agency to “carefully
consider information about significant environmental impacts.” N.C. Wildlife Fed’n, 677 F.3d at
603 (internal citations omitted). The no-build baseline in an EIS facilitates the comparison of the
environmental consequences of the “status quo” to the proposed action. See Ctr. for Biological
Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 642 (9th Cir. 2010); Town of Winthrop v. Fed.
Aviation Admin., 535 F.3d 1, 4 (1st Cir. 2008); City of Shoreacres v. Waterworth, 420 F.3d 440, 451
(5th Cir. 2005); Custer Cnty. Action Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001).
For example, in American Rivers, an agency conducted NEPA review of the proposed relicensing of two hydroelectric power facilities. Am. Rivers v. Fed. Energy Regulatory Comm’n, 201
F.3d 1186, 1191-92 (9th Cir. 1999). The agency characterized its no-action baseline alternative in
the EIS as the continued operation of facilities under the terms of their original license, and did not
give a “lengthy evaluation” of the alternative of license denial, which would entail dam removal.
Id. at 1200-201. The Ninth Circuit found that this baseline analysis satisfied the requirements of
NEPA. Id.
Similarly, in this case the agencies used the continuing existence of the terminal groin in their
no-action baseline. R. 58775-80. Defendants did give some consideration as to both retention and
removal of the groin. E.g., R. 58647 (the groin’s halting of the southward migration of Hatteras
Island); R. 58550 (accretion of Hatteras Island with the groin in place); R. 58551 (a deeper and
narrower inlet); R. 58554-55 (erosion developing on the estuarine side of the groin, which could lead
to a breach); R. 58561-62 (inlet dynamics assuming the groin in place); R. 58562-64 (inlet dynamics
assuming removal of the groin, including potential merging of the inlet with the Refuge’s northern
pond); R. 58561-62 (impacts on navigation); R. 58647, 58771, 58780 (adverse effect on the historic
26
former United States Coast Guard Station because it could be “washed away” if the groin is
removed); R. 58655, 58781 (interference with the Refuge’s and Seashore’s goal of not stabilizing
the Outer Banks artificially); R. 58664 (performance of the groin); R. 58670 (possibility of a breach
near the groin); R. 58677, 58680-81, 58733 (use of the groin fillet for sand mining and its ability to
provision foraging habitat for piping plovers); R.58567, 58729, 058733, 058753 (proximity of the
groin to critical habitat for the piping plover).
Plaintiffs argue that the impact of retaining the terminal groin must be examined pursuant
to NEPA, and that it has a significant negative impact on the Refuge. Plaintiffs specifically assert
that the terminal groin was permitted only for the protection of the existing Bonner Bridge, and that
the terminal groin thus is not properly considered as part of the status quo for a Bonner Bridge
replacement. Even presuming that a new permit will be required for the selected alternative, which
defendants dispute, the agencies are not required to consider whether the terminal groin would lose
its permit. See Am. Rivers, 201 F.3d at 1200-201. “No action” in this case would logically entail
retaining both the terminal groin and Bonner Bridge. See 40 C.F.R. § 1502.14(d).
Plaintiffs also assert that defendants failed to consider adequately the impact of retaining the
groin, which defendants dispute. In consideration of the extensive evidence in the record, the court
finds that defendants did adequately analyze the impact of terminal groin retention pursuant to
NEPA. However, even assuming that the agencies did not provide in-depth analysis of removal of
the groin, plaintiffs’ argument must fail. See Am. Rivers, 201 F.3d at 1201 (asserting that the agency
was not required to do more than briefly discuss dam removal to meet the requirements of NEPA).
Thus, the terminal groin was adequately considered pursuant to NEPA as part of the status quo for
a no-action baseline alternative.
27
b.
Other Indirect Impacts
Plaintiffs raise issue with the analysis of zone scour impacts that might result from
constructing bridges in the NC 12 easement. The record reflects, however, eight pages of analysis
in the 2008 FEIS/Section 4(f) Evaluation, and reliance on field data collected over decades from
different research piers. R. 58671-80, 38991-94, 68488-89. The analysis conducted factored in the
configuration and orientation of the piers in the studies, along with several other factors, when
considering scour impacts. R. 58671-78. The record shows that other indirect impacts of both Phase
I and future construction alternatives were considered, including public access to the Refuge, future
preservation of the former Coast Guard station, the location of utilities, shoreline development and
use of the Outer Banks, future development and redevelopment, and the relocation or protection of
portions of NC 12. R. 58774-77. Studies of the impact of new storm breaches spanned fifty (50)
years. R. 58628-33.
Agencies must take a “hard look” at the environmental impacts, including indirect impacts,
of building the Parallel Bridge Corridor with NC 12 Transportation Management Plan. See Webster
v. U.S. Dep’t of Agriculture, 685 F.3d 411, 425 (4th Cir. 2012). However, the court “may not seize
upon trivial inadequacies to reject the agency’s decision for that would impermissibly intrude into
its decisionmaking prerogative.” Id. In consideration of the agencies’ study of indirect impacts, the
court finds that the agencies have taken a “hard look” at the Project’s environmental effects. See id.
3.
Analysis of Project Alternatives
The “heart” of an EIS is the alternatives analysis, which “should present the environmental
impacts of the proposal and the alternatives in comparative form.” 40 C.F.R. § 1502.14. The
regulations require the agency to “evaluate all reasonable alternatives” and discuss the reasons for
28
the elimination of alternatives from the study, as well as mitigation efforts related to each alternative.
40 C.F.R. § 1502.14(a), (f). The agency is then required to describe the affected environment in
sufficient detail “to understand the effects of the alternatives.” 40 C.F.R. § 1502.15. Finally, the
regulations require the agency to conduct a detailed examination of the environmental consequences
on the affected environment, including direct and indirect effects and their significance, the
environmental effects of alternatives, and mitigation measures to the extent they were not covered
under the alternatives analysis. 40 C.F.R. § 1502.16.
a.
Pamlico Sound Bridge Corridor Alternative
Plaintiffs accuse defendants of abandoning their once preferred alternative, for a long bridge
over the Pamlico Sound from Bodie Island to Rodanthe, because of improper political influence,
which then resulted in skewed cost estimates for the Pamlico Sound Bridge Corridor alternative and
a failure to adequately assess funding sources.
While there is some evidence that politicians participated in the NEPA process, and voiced
their concerns as to building a long bridge because of its potential to limit means of public access,
this is the type of participation and commentary that NEPA processes seek to extract. The agencies
thoroughly studied the Pamlico Sound Bridge Corridor alternative, even after the alleged political
pressure was brought to bear in 2003 and 2004. Plaintiffs rely upon International Snowmobile to
assert that a decision made pursuant to political pressure is arbitrary and capricious.
Int’l
Snowmobile Mftrs. Ass’n v. Norton, 304 F. Supp. 2d 1278, 1291 (D. Wyo. 2004). In that case, the
court granted a preliminary injunction based in part upon the fact that a draft EIS concluded that
snowmobile access was consistent with all applicable laws, but a memorandum later directed the
agency to prohibit snowmobile access, and that prohibition was in the final EIS. Id. International
29
Snowmobile is inapposite because that court found a failure to take a hard look at the environmental
impacts of snowcoaches in the parks. Id. Here, defendants studied the Pamlico Sound Bridge
Corridor alternative in detail. The agencies rejected the Pamlico Sound Bridge Corridor alternative
only because of careful and extensive research as to the feasibility and prudence of the Project. See
infra Discussion Part B.
Furthermore, the record indicates a thorough review and consideration of costs, with detailed
explanations as to why cost estimates for all of the alternatives rose over time. E.g., R. 58480-85
(examining estimated costs through 2060 for seven replacement bridge corridor alternatives under
consideration and explaining why estimates rose between 2005 and 2006); R. 38665-71 (showing
the 2007 cost estimates generated by an independent specialty engineering firm hired to assess costs
by NCDOT). Therefore, the cost estimates as to the Pamlico Sound Bridge Corridor alternative were
reasonable, and did not violate NEPA. See Nw. Envtl. Advocates v. Nat’l Marine Fisheries Serv.,
460 F.3d 1125, 1145 (9th Cir. 2006) (finding no NEPA violation where independent experts
reviewed costs and concluded agency’s analyses were reasonable). The problem with the cost of
building the Pamlico Sound Bridge Corridor alternative was not that it had a substantially different
price than the selected alternative when considered with the later phases to come. The issue the
agencies ran into was paying for the bridge all at once. In the selected alternative, defendants have
the ability to phase building out over fifty (50) years to cover the twelve (12) mile stretch from Bodie
Island to Rodanthe. The Pamlico Sound Bridge Corridor alternative cannot be phased, and so the
entire cost of the bridge would have to be raised in a lump sum.
Plaintiffs further assert that defendants did not adequately analyze sources of funding to
complete the Pamlico Sound Bridge Corridor alternative because of their consideration of funding
30
cycles pursuant to state law and a failure to investigate other sources of funding. As to the agencies’
consideration of funding cycles, the court finds that this was a reasonable way to consider costs
according to the funding periods mandated by state statute when examining possible sources of
funding through state government. See R. 93853. Defendants reasonably considered the legitimate
need to replace Bonner Bridge in the near future within the context of funding pursuant to current
state and federal laws. NEPA does not require agencies to lobby for new funding laws or speculate
as to how funding might be obtained if such efforts were successful. See NRDC v. Callaway, 524
F.2d 79, 93 (2nd Cir. 1975) (“[T]here is no need to consider alternatives of speculative feasibility
or altenatives which could only be implemented after significant changes, in governmental policy
or legislation.”).
The record reveals that defendants did consider the Pamlico Sound Bridge Corridor
alternative in detail, including consideration of several means of financing the Bonner Bridge
replacement. R. 58489-91, 83619-23, 82446-47 (considering the State Infrastructure Bank program,
tolls, a public-private partnership, and Grant Anticipation Revenue Vehicles as possible sources of
funding, and finding that each source would still not be adequate to meet the funding needs of the
Pamlico Sound Bridge Corridor alternative). Therefore, each of plaintiffs’ arguments as to adequate
study of the Pamlico Sound Bridge Corridor alternative is inadequate to show arbitrary and
capricious action on the part of defendants. Instead, the court finds that defendants rigorously and
objectively evaluated this alternative, in compliance with NEPA. See 40 C.F.R. § 1502.14(a).
b.
High Speed Ferry
Unlike the Pamlico Sound Bridge Corridor alternative, defendants did not study ferry
alternatives in detail, but considered them to be unreasonable after brief examination. See 40 C.F.R.
31
§ 1502.14(a) (requiring agencies to evaluate “reasonable alternatives” and “briefly discuss the
reasons” for eliminating unreasonable alternatives from “detailed study”).
Plaintiffs argue that a
high speed ferry option should have been considered for detailed study because it is a viable
alternative. Defendants repeatedly considered ferry alternatives to be unreasonable. R. 8981-86,
9007-15, 12597-602, 30128-34, 58368-73, 92067, 92092-94. The use of a ferry was found to reduce
traffic service across the Oregon Inlet when demand would be increasing, which would also increase
evacuation time in case of an emergency. It would require dredging of either a three-mile route or
an eighteen-mile route, which could have a substantial negative impact on the environment.
R.
58368-71. Defendants thus decided not to study the ferry alternative in detail because it would be
inadequate to meet demand. The agencies considered high-speed, shallow draft ferries, but found
they still would not provide adequate service, in part because the faster travel times would not
compensate for time required to load and unload ferries.
R. 92092-93, 58369.
Given these
significant hindrances, defendants properly omitted high speed ferries from detailed study.
See
Webster, 685 F.3d at 427-28 (finding that it was proper for the agency to eliminate alternatives from
detailed study for reasons such as technical feasibility, costs and effectiveness in achieving the
purposes of the action complied with NEPA).
Plaintiffs further argue that because the high speed ferry alternative was a “significant
alternative” suggested during the comment period, it must undergo detailed study.
See Roosevelt
Campobello Int’l Park Comm’n v. U.S. Envtl. Prot. Agency, 684 F.2d 1041, 1047 (1st Cir. 1982).
However, a high speed ferry system was found to be unreasonable by the agencies, and thus may
properly be eliminated from detailed study. See 40 C.F.R. § 1502.14(a); N.C. Wildlife Fed’n, 677
F.3d at 602 (recognizing that “agencies have discretion to identify the range of reasonable
32
alternatives”) (internal quotation marks omitted).
B.
Section 4(f) of the Department of Transportation Act
Plaintiffs allege that when the FHWA issued its Final Section 4(f) Evaluation, and in so
doing selected its preferred alternative, it rejected a feasible and prudent alternative project design
that would have eliminated the need to use the Refuge (i.e., the Pamlico Sound Bridge Corridor
alternative).
Section 4(f) imposes substantive limits on the discretion of the United States Secretary of
Transportation to approve federally-funded projects that use certain protected lands or resources.
Specifically, Section 4(f) prohibits federal approval or funding of a transportation project that
requires the use of protected land,10 such as a wildlife and waterfowl refuge or public park, 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 [protected property] resulting from the use.”
49 U.S.C. § 303(c). The Supreme Court has held that the existence of Section 4(f) “indicates that
protection of parkland was to be given paramount importance.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 412-13 (1971).
Thus, when confronted with the potential use of Section 4(f) resources, the FHWA must
consider alternatives that avoid these resources. These avoidance alternatives become the preferred
alternative unless they are shown to be infeasible or imprudent. An alternative is infeasible “if it
cannot be built as a matter of sound engineering judgment.” 23 C.F.R. § 774.17. An alternative is
imprudent if:
10
There is no dispute in this case that the Refuge would be used to build the Bonner Bridge replacement,
therefore Section 4(f) analysis is triggered.
33
(i) It compromises the project to a degree that it is unreasonable to proceed with the
project in light of its stated purpose and need;
(ii) It results in unacceptable safety or operational problems;
(iii) After reasonable mitigation, it still causes:
(A) Severe social, economic, or environmental impacts;
(B) Severe disruption to established communities;
(C) Severe disproportionate impacts to minority or low income populations; or
(D) Severe impacts to environmental resources protected under other [f]ederal
statutes;
(iv) It results in additional construction, maintenance, or operational costs of an
extraordinary magnitude;
(v) It causes other unique problems or unusual factors; or
(vi) It involves multiple factors in paragraphs [ (i) ] through [ (v) ] of this definition,
that while individually minor, cumulatively cause unique problems or impacts of
extraordinary magnitude.
Id.
If the FHWA has determined that there is no prudent and feasible alternative to using a given
Section 4(f) property, the FHWA may approve, from among the remaining alternatives that do use
the 4(f) property, only the alternative that causes the least overall harm. 23 C.F.R. § 774.3(c)(1).
The least overall harm is determined by balancing the following factors:
(i) The ability to mitigate adverse impacts to each Section 4(f) property (including
any measures that result in benefits to the property);
(ii) The relative severity of the remaining harm, after mitigation, to the protected
activities, attributes, or features that qualify each Section 4(f) property for protection;
(iii) The relative significance of each Section 4(f) property;
(iv) The views of the official(s) with jurisdiction over each Section 4(f) property;
(v) The degree to which each alternative meets the purpose and need for the project;
(vi) After reasonable mitigation, the magnitude of any adverse impacts to resources
not protected by Section 4(f); and
(vii) Substantial differences in costs among the alternatives.
Id.
The Supreme Court in Overton Park prescribed a three-step analysis for a court reviewing
the United States Secretary of Transportation’s decision to use resources protected under Section
34
4(f). Overton Park, 401 U.S. at 416-17; see also Hickory Neighborhood Def. League v. Skinner, 893
F.2d 58, 61 (4th Cir. 1990) (following the Overton Park analysis to evaluate a Section 4(f) challenge
to a highway project).
First, the court determines whether the United States Secretary of
Transportation recognized the scope of his authority was limited to approving a use of land protected
by Section 4(f) where there was no reasonable and prudent alternative to such use and all possible
planning had been undertaken to minimize the harm to the Section 4(f) resource. Overton Park, 401
U.S. at 416.
Second, the court must determine whether the United States Secretary of
Transportation’s decision was based upon the relevant factors and was not arbitrary, capricious, an
abuse of discretion, or not in accordance with law. Id. Although a searching and careful inquiry is
required, the reviewing court is not to substitute its own judgment for that of the agency. Id. Third,
the court must determine whether the United States Secretary of Transportation followed the
necessary procedural requirements. Id. at 417.
1.
Analysis of the Use of Protected Resources
Plaintiffs argue that FHWA’s determination that Section 4(f) did not apply to the Refuge “as
a refuge” but only as an historic property because NC 12 was planned jointly or concurrently with
the Refuge is arbitrary and capricious. Section 4(f) does not apply to an otherwise protected property
“[w]hen a property is formally reserved for a future transportation facility before or at the same time
a park, recreation area, or wildlife and waterfowl refuge is established and concurrent or joint
planning or development of the transportation facility and the Section 4(f) resource occurs.” 23
C.F.R. § 774.11(i) (referred to as the joint planning exception).
FHWA’s Revised Section 4(f) Evaluation explained that recent historical research showed
that a public vehicular thoroughfare existed through the land that later became the Seashore and
35
Refuge, and that the road was concurrently and jointly planned and developed with the establishment
of the Seashore and Refuge. R. 75564, 75567. Thus, Section 4(f) did not apply to the Seashore or
Refuge as a refuge. Nevertheless, Section 4(f) remained applicable to the Refuge as an historic
property because the Refuge is eligible for the National Register of Historic Places. Because Phase
I of the Project would use approximately 3.08 acres of the Refuge, a Section 4(f) Evaluation
document was required. Thus, the distinction FHWA made between the Refuge as a refuge and the
Refuge as an historic property ultimately made little difference in terms of the Section 4(f) analysis
that FHWA was required to undertake, and which FHWA appropriately completed.
Plaintiffs focus on the time between the establishment of the Refuge in 1938, Exec. Order
No. 7864, 3 Fed. Reg. 863 (April 12, 1938), and the formal reservation of NC 12 in 1954 when the
federal government granted an easement to North Carolina for a right of way to maintain a road. AR
108, 68658. However, there is evidence in the record showing joint or concurrent planning from
1938 when the Refuge was established. R. 102, 123, 142, 175-742, 83817-22.
The unimproved road through the Refuge is depicted on the United States Coast and
Geodetic Survey map published in 1942 (based upon surveys through 1938). R. 78362. The road’s
existence is further supported by a 1939 public ferry permit application describing ferry service
beginning in 1926, R. 104-22; photographs of the ferry carrying cars, R. 1-2; NC state highway maps
from 1944, R. 253, and 1949 R. 587; and refuge manager reports mentioning the “public road”
and/or describing work done to keep the public road passable in 1938, R. 103, 1940, R. 147, 1942,
R. 190, 1943, R. 199, 1944, R. 212, 1945, R. 300, 1947, R. 451, 454, and 1949, R. 524.
In 1951, following a debate in which Senator Willis Smith from North Carolina asserted the
State’s ownership of the road across the Refuge and explained the State’s desire to clear its title,
36
Congress passed Public Law 229, which authorized the United States Secretary of the Interior “to
convey to the [s]tate of North Carolina a permanent easement for the construction of a public road
(together with rights for such other uses as may be customary or necessary in the [s]tate of North
Carolina in connection with the construction or operation of such a road) through the . . . Refuge in
Dare County, North Carolina.” R. 743-46. On May 20, 1954, the state granted a quitclaim deed to
the United States for all interest that it had in the Refuge, excepted for a previously granted 100-foot
easement for right-of-way to operate and maintain the recently constructed paved road. R. 75568,
75635-36. In July 1954, DOI conveyed a permanent easement to the state for the construction,
operations, and maintenance of a public road across the Refuge. R. 75568, 75636. The easement
stated that nothing in the document was to limit or impair the right of the United States to continue
to use the property for its intended purposes “not inconsistent with the construction, operation, and
maintenance of a public highway thereon.” R. 77568, 75636.
Federal and state governments preserved the Hatteras Island area with an understanding that
vehicular passage would be accommodated, and that the vehicular passage has not been fixed to one
location, but has evolved in response to the forces of nature and advances in highway construction.
R. 75569. Thus, FHWA properly relied on the joint planning exception with respect to the Refuge.
See 23 C.F.R. § 774.11(i).
2.
Feasible and Prudent Alternative Analysis
Plaintiffs challenge FHWA’s conclusion that the Pamlico Sound Bridge Corridor alternative
is not a feasible and prudent avoidance alternative because of issues with financing its high costs,
37
its impact on maintenance of the rest of North Carolina’s highways and public access concerns.11
To reach this conclusion, FHWA relied upon 23 C.F.R. § 774.17 (3)(iv) and (v), which allow the
agency to consider “results in additional construction, maintenance, or operational costs of an
extraordinary magnitude,” and whether the alternative “causes other unique problems or unusual
factors” which make that alternative imprudent.12
If built, the Pamlico Sound Bridge Corridor alternative would be the second longest bridge
in the United States and one of the longest bridges in the world. It would also be “the most
expensive single structure contract ever awarded in the country.” R. 75711. Despite consideration
of sources of funding through traditional and nontraditional means, FHWA was unable to find a way
to pay for this alternative. R. 75700-711. The commitment of state and federal resources to the
Pamlico Sound Bridge Corridor alternative could deprive the state of the ability to replace other
deficient bridges and advance other needed construction projects for two to seven years, depending
on the source of funding. R. 75703, 75709.
Thus funding the Pamlico Sound Bridge Corridor
alternative “would result in an increase in the number of deficient bridges in the state by around
2,000 by the year 2015.” R. 75711. The state’s roadway system would “substantially degrade” while
the bridge was being constructed. R. 75712.
The public’s access to and enjoyment of the Refuge also would be severely impacted,
because vehicular access through the Refuge would be lost along with the visitor’s center. R. 75712-
11
Plaintiffs also repeat the argument that potential funding sources were not adequately considered. This
assertion is invalid for the reasons discussed supra Discussion Part A.3.a. FHWA thoroughly examined funding methods.
See R. 75700-711.
12
Although FHWA concluded that the Pamlico Sound Bridge Corridor alternative was not prudent, it did find
that it was feasible because it could be designed and constructed. R. 75700. An avoidance alternative (meaning one that
avoids use of refuge land) must be both prudent and feasible.
38
14. All of these factors in combination make the Pamlico Sound Bridge Corridor alternative not
prudent as an alternative. See 23 C.F.R. § 774.17 (3); R. 75713.
3.
Planning and Mitigation of Harm for use of Protected Land
Plaintiffs assert that the Project’s segmentation under the Parallel Bridge Corridor with NC
12 Transportation Management Plan alternative avoids planning and analysis of minimizing harm
to the Refuge. Section 4(f) permits the use of protected land if the “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)(2). FHWA must identify from the alternatives, the one
that causes the “least overall harm” according to the factors listed in 23 C.F.R. § 774.3(c)(1).
As discussed above, defendants did not engage in illegal segmentation, and FHWA
reasonably concluded that there was no feasible avoidance alternative. After considering each of the
listed factors for each of the remaining alternatives, FHWA concluded that the Parallel Bridge
Corridor with NC 12 Transportation Management Plan was the alternative causing the least overall
harm. R. 75576-82. Future environmental conditions will be more certain before decisions for later
phases of construction are finalized. R. 75577, 75579-80, 75582. Thus, the Parallel Bridge Corridor
with NC 12 Transportation Management Plan alternative will cause the least overall harm because
it will provide the best opportunity to mitigate direct, indirect and cumulative impacts in the Project
area.
The interagency collaboration that the Project involves will lead to FHWA and NCDOT
implementing actions that will cause the least overall harm to Section 4(f) resources for future phases
of construction when changing shoreline conditions are more certain. R. 75582.
FHWA also conducted all possible planning to minimize harm. R. 75582-90. The Project
includes a host of mitigation measures. R. 91976-81. With respect to the Refuge, examples of the
39
efforts that FHWA took to minimize harm include commitments regarding sedimentation and
erosion control methods, disposal of dredged material, surveys for seabeach amaranth habitat,
avoidance of piping plover bird closure areas and sea turtle nests within the Seashore and Refuge,
prohibiting repair work on bridge structures during piping plover and sea turtle nesting seasons, and
avoiding and minimizing wetland impacts. R. 75582-90, 91978-81.
Additionally, throughout the development of the Project, the Merger Team process served
to identify all possible planning to minimize harm to Section 4(f) properties. R. 75582. The Merger
Team framework will rely on monitoring of coastal and natural resources to identify specific issues
and involve relevant stakeholders in identifying optimal solutions. R. 77582. When coastal and
environmental monitoring indicates a future problem for the NC 12 transportation corridor, the
Merger Team will convene to identify an appropriate response strategy. R. 75590. Further, a
Programmatic Agreement signed by FHWA, SHPO, and the Advisory Council on Historic
Preservation contains numerous measures to minimize harm with respect to the Refuge as an historic
property. R. 75586, 91977, 91982, 92102-17. The terms of the agreement include offering the
SHPO, USFWS, and NPS an opportunity to review and comment on the plans and specifications for
NC 12, requiring NCDOT to develop and implement sustainable techniques to protect NC 12 in
consultation with FHWA, USFWS, NPS, SHPO, and the North Carolina Coastal Geological
Cooperative, and a commitment to utilizing the best practices and measures available at the time of
construction to minimize all impacts to historic properties. R. 75586- 87. Moreover, if a later phase
of construction requires the use of Section 4(f) property, additional Section 4(f) analysis would be
undertaken before the agency approves the later phase. R. 75590.
Plaintiffs assert that the phased method allows FHWA to select road maintenance methods
40
that will harm the Refuge later in the process. However, FHWA’s reasoned determination to defer
the selection of specific elements of a NC 12 Transportation Management Plan is not an avoidance
of planning to minimize harm to the Refuge.
Rather, it is a practical means of addressing the
changing natural conditions in the Project area. Therefore, FHWA’s findings were not arbitrary and
capricious, and the court finds that FHWA has satisfied the requirements of Section 4(f).
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary judgment is DENIED (DE 74), and
defendants’ cross-motions for summary judgment are GRANTED (DE 79, 81). The clerk is directed
to close this case.
SO ORDERED, this the 16th day of September, 2013.
___
LOUISE W. FLANAGAN
United States District Court Judge
41
Glossary
APA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administrative Procedure Act
DEIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Draft Environmental Impact Statement
DOI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States Department of the Interior
EA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Environmental Assessment
EIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Environmental Impact Statement
EPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States Environmental Protection Agency
FEIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Final Environmental Impact Statement
FHWA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Highway Administration
LEDPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Least Environmentally Damaging Practicable Alternative
NC 12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . North Carolina Highway 12
NCDENR. . . . . . . . . . . . . . . . . . . . . . North Carolina Division of Environment and Natural Resources
NCDOT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . North Carolina Department of Transportation
NEPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Environmental Policy Act
NMFS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Marine Fisheries Service
NPS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Park Service
Project.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NC 12 Replacement of Herbert C. Bonner Bridge
Refuge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pea Island National Wildlife Refuge
ROD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Record of Decision
SDEIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supplemental Draft Environmental Impact Statement
Seashore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cape Hatteras National Seashore
Section 4(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 4(f) of the Department of Transportation Act
SEIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supplemental Environmental Impact Statement
SHPO. . . . . . . . . North Carolina Department of Cultural Resources, State Historic Preservation Office
SSDEIS.. . . . . . . . . . . . . . . . . Supplement to the Supplemental Draft Environmental Impact Statement
USACE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States Army Corps of Engineers
USFWS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States Fish and Wildlife Service
42
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