Conservation Law Fdn. v. Highways

2006 DNH 078

• Court: District Court, D. New Hampshire
• Decided: July 11, 2006
• Docket: CV-06-45-PB
• Status: Published

Opinion

Conservation Law Fdn. v. Highways CV-06-45-PB 07/11/06 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation

v. Case No. 06-cv-45-PB Opinion No. 2006 DNH 078

US Federal Highway Admin, and NH Dep't of Transportation

O R D E R

Defendants Federal Highway Administration ("FHWA") and New

Hampshire Department of Transportation ("NHDOT") have filed

motions to strike Conservation Law Foundation's ("CLF")

supplemental record ("SR") documents.1 Defendants contend that

the SR documents do not meet any of the recognized exceptions to

the general rule that the court's review should be limited to the

Administrative Record ("AR"), which "consists of all documents

1 CLF has represented that the following documents are already contained in the AR: SR at 242, 250-51, 444-46, 457-58, 459-60, 476-80, 481, 482-87, 515-17, 525. FHWA does not object to admission of an internal FHWA email dated January 30, 2003 (SR at 250-51) and the draft FHWA white paper (SR at 53-123), both of which were before FHWA at the time of decision. NHDOT does not object to admission of a letter sent by the Town of Auburn to the NHDOT Commissioner concerning secondary impacts of the project (SR at 248-49). and materials directly or indirectly considered by the [decision­

making] agency." Bar MK Ranches v. Yuetter. 994 F.2d 735, 739

(10th Cir. 1993). I address defendants' objections to specific

documents below.

1. Currier's Rail Report

CLF has filed an expert report authored by Richard Currier,

entitled "Evaluation of the Restoration of Rail Service on the

Manchester and Lawrence Branch In Conjunction with the Widening

of the Interstate 93," which was prepared at CLF's request in

October 2005. SR at 606-45. CLF states that it submitted the

report "for the purpose of demonstrating part of the

transportation solution for the 1-93 corridor." Mem. of Law in

Supp. of O b j . to Defs.' Mot. to Strike at 14. I agree with

defendants that the report should be stricken from the AR because

it post-dates the record of decision and thus could not have been

considered by FHWA in the decision-making process. The report

merely provides additional evidence to support CLF's contention

that passenger rail should have been included in the EIS

alternatives analysis, which CLF apparently argued throughout the

EIS process.

- 2 - 2. Marshall Declaration

CLF also submits a declaration by Norman L. Marshall as part

of its supplemental record evidence. SR at 911-34. Marshall's

declaration was prepared in May 2006 for the purpose of this

litigation. Defendants argue that the declaration simply

rehashes comments by Marshall that are already included in the

AR, but CLF counters that the report focuses on NHDOT's May 2005

"1-93 Traffic Sensitivity Analysis," which was not available to

the public during the EIS comment period. CLF also contends that

Marshall used the same modeling data employed by NHDOT in

preparing his analysis and thus his report does not reflect a

battle between experts using competing methodologies.

Because Marshall's declaration appears to come within the

exception that expert testimony may be admitted to show

inadequacies in the agency's research or analysis, see County of

Suffolk v. Secretary of the Interior. 562 F.2d 1368, 1385 (2d

Cir. 1977), defendants' motions to strike Marshall's declaration

are denied without prejudice. Defendants may renew their

objections to the declaration when summary judgment motions are

filed.

- 3 - 3. Correspondence from EPA, NHDES and U.S. Army Corps

Defendants argue that correspondence2 within and between the

United States Environmental Protection Agency ("EPA"), New

Hampshire Department of Environmental Services ("NHDES") and U.S.

Army Corps of Engineers should be stricken from the AR because

they were not transmitted to FHWA and thus were not considered

directly or indirectly in the decision-making process. The

documents concern a variety of issues raised by CLF in its

complaint, including chlorides pollution, air and water-quality

impacts south of the state line, impacts of proposed exit 4A, and

rail alternatives.

I agree with defendants that the AR generally should be

limited to documents that were before FHWA at the time of

decision. Nonetheless, I cannot determine whether

supplementation is appropriate here without reviewing the

documents in light of CLF's criticisms of the EIS and the record

2 See SR at 243-47, 252-54, 274, 428-36, 440-43, 447-54, 492-514, 518-24, 530, 532, 534-77, 597, 598, 660-65; see also SR at 1000-05 (maps generated by NHDES). NHDOT also objects to several documents that were drafted by EPA and NHDES and purportedly were not submitted to FHWA. See SR at 6-12, 16-52, 457-58, 526-29, 763-66, 767-883, 884-910.

- 4- as a whole.3 See Valiev Citizens for a Safe Environment v.

Aldridge, 886 F.2d 458, 460 (1st Cir. 1989) (recognizing

circumstances in which supplementation of the AR may be

appropriate). Accordingly, defendants' motions to strike the

supplemental documents are denied without prejudice to their

renewal at a time when all of the relevant documents can be

considered in context.

In summary, defendants' motions to strike CLF's supplemental

record documents (Doc. Nos. 20 and 25) are granted as to Richard

Currier's expert report and denied without prejudice as to the

remaining documents.

SO ORDERED.

/s/Paul Barbadoro_________ Paul Barbadoro United States District Judge

July 11, 2006

cc: Counsel of Record

3 The same is true with regard to any other documents in the SR that are not specifically addressed in the defendants' motions.

- 5 -