Conservation Alliance v. United States Department of Transportation

145 F. Supp. 3d 1198, 2015 U.S. Dist. LEXIS 157599, 2015 WL 7351544
CourtDistrict Court, S.D. Florida
DecidedNovember 5, 2015
DocketCASE NO. 14-14192-CIV
StatusPublished

This text of 145 F. Supp. 3d 1198 (Conservation Alliance v. United States Department of Transportation) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conservation Alliance v. United States Department of Transportation, 145 F. Supp. 3d 1198, 2015 U.S. Dist. LEXIS 157599, 2015 WL 7351544 (S.D. Fla. 2015).

Opinion

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE

This- is an action brought by environmental organizations challenging the Federal Highway Administration (“FHWA”) and the United States Department of Transportation’s (“-USDOT”) approval of abridge and highway project that will cross the St. Lucie River, including the North Fork of the St. Lucie River Aquatic Preserve and- the Savannas Preserve State [1200]*1200Park. Plaintiffs and the federal Defendants have moved for summary judgment, the federal Defendants have filed an Administrative Record Certification and Index, and the Parties have filed a Joint Appendix. The City of Port St. Lucie (“City”) moved to intervene in the action. While I denied the motion to intervene, I invited the City to file a memorandum as amicus curiae. I have considered the memoranda filed by the Parties, as well as the City, and have had the benefit of oral argument.

STANDARD OF REVIEW

Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, and Section 18(a) of the Federal-Aid Highway Act, 23 U.S.C. § 138 (collectively “Section 4(f)”) allow the Secretary of Transportar tion to approve a federal highway project using the land of a public park, recreation area, wildlife refuge, or historic site only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to. minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c).

“This language is a plain and explicit bar to the use of federal funds for construction of highways through parks— only the most unusual situations are exempted.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Supreme Court s has instructed that a reviewing court in considering a challenge •under Section 4(f) “must consider whether the Secretary properly construed his authority to approve the use of’parkland as limited to situation's where there are ho feasible alternative routes or where feasible alternative routes involve uniquely difficult problems.” Id. at 416, 91 S.Ct. 814. “[T]he 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.” Id. (internal citations omitted). The court is “not empowered to substitute its judgment for that of the- agency.” Id. The final inquiry is whether the Secretary followed the necessary procedural requirements. Id. See also Citizens for Smart Growth v. Secretary of Dept. of Transp., 669 F.3d 1203, 1216 (11th Cir.2012).

An alternative is feasible if it can be built as a matter of sound engineering. 401 U.S. at 411, 91 S.Ct. 814. See also Druid Hills Civic Ass’n, Inc. v. Fed. Highway. Admin., 772 F.2d 700, 715 (11th Cir.1985). An alternative is prudent unless there are “truly unusual factors presented in a particular case or the cost or community disruption resulting from alternative routes reach[ ] extraordinary magnitudes,” or the alternative routes present “unique problems.” 401 U.S. at 413, 91 S.Ct. 814; Druid Hills, 772 F.2d at 715.

Subsequent to Overton Park, Congress enacted The Safe, Accountable, Flexible, Efficient 'Transportation Equity Act: A Legacy for the Users (“SAFETEA-LU”), Pub.L, 109-59, 199 Stat. 1144, § 6009(b) (2005), which directed the Secretary of Transportation to promulgate regulations clarifying the factors and standards to be used in determining whether alternatives are prudent and feasible. See 73 Fed.Reg. 13368 (March 12,2008).

The Rules define a “feasible and prudent avoidance alternative” as one that" “avoids using 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” 23 C.F.R. 774.17(1). An alternative “is not prudent” if:

(i) It compromises the project to a degree that it is unreasonable to proceed [1201]*1201with 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 Federal statutes;
(iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;
(v) It eauses other unique problems or unusual factors; or
(vi) It involves multiple factors in paragraphs (3)(i) through (3)(v) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

23 C.F.R. § 774.17 (definition of “Feasible and prudent avoidance alternative”).

If there is no feasible and prudent avoidance alternative, the Section 4(f) Rules require the FHWA to determine which of the remaining alternatives will cause the least overall harm in light of the statute’s purpose. 23 C.F.R. § 774.3(c). Seven factors govern this inquiry:

(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)- properfy;
(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

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145 F. Supp. 3d 1198, 2015 U.S. Dist. LEXIS 157599, 2015 WL 7351544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conservation-alliance-v-united-states-department-of-transportation-flsd-2015.