Highlands Ranch Neighborhood v. Cater

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 18, 2022
• Docket: 19-1190
• Status: Unpublished

Opinion

Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court HIGHLANDS RANCH NEIGHBORHOOD COALITION, a Colorado non-profit corporation,

Plaintiff - Appellant,

v. No. 19-1190 (D.C. No. 1:16-CV-01089-RM) JOHN M. CATER, in his official capacity (D. Colo.) as the Division Administrator, Colorado Division of the Federal Highway Administration; FEDERAL HIGHWAY ADMINISTRATION; SHOSHANNA LEW, in her official capacity as the Executive Director of the Colorado Department of Transportation; COLORADO DEPARTMENT OF TRANSPORTATION,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, BACHARACH, and EID, Circuit Judges. _________________________________

This appeal considers whether defendants-appellees, the Colorado Department

of Transportation and the Federal Highway Administration (“the Agencies”), violated

the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 2

Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., by implementing only

short-term measurements to assess the noise impact of a highway-expansion project.

For the following reasons, we affirm the district court’s order approving the

Agencies’ decision.

I.

Colorado is expanding a state highway through the southwestern part of the

Denver metropolitan area. Because the expansion project involves federal funds, the

Agencies must comply with applicable federal law. Specifically, NEPA regulations

require the Agencies to perform an Environmental Assessment (“EA”) to determine

whether noise from the expanded highway would significantly impact the

surrounding areas. 40 C.F.R. § 1501.5; see also WildEarth Guardians v. Conner, 920

F.3d 1245, 1251 (10th Cir. 2019) (requiring an agency to submit an assessment of

any action that may affect the environment, unless the answer to the initial inquiry of

“whether the proposed action will significantly affect the environment” is

“immediately apparent”).

To complete this assessment, Federal Highway Administration regulations

direct the Agencies to follow Colorado’s state-specific guidelines for evaluating

noise levels. See 23 C.F.R. § 772.7(b) (requiring state-highway agencies to develop

and implement noise-evaluation policies consistent with federal regulations). These

state-specific guidelines, found in Colorado’s 2015 Noise Analysis and Abatement

Guidelines (“the Guidelines”), require the Agencies to (1) identify the areas that will

be affected by traffic noise, (2) evaluate the noise using Traffic Noise Model (TNM)

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software, and (3) validate the TNM with noise measurements. See App’x Vol. VI at

1282–92.

At the heart of this dispute is step three: noise validation. The Agencies

determined that sections 3.2.2 and 3.3 of the Guidelines permitted validation of the

TNM using short-term noise measurements. Section 3.2.2 addresses modifications to

existing roadways, and it requires the Agencies to perform at least two noise

measurements. This section does not require a particular measurement method;

instead, it requires only that the measurements “best illustrat[e] the existing traffic

noise environment.” Id. at 1288. Section 3.3 explains that in order to optimize the

TNM’s ability to “determine the worst-hour existing noise levels and predict . . .

future noise levels,” field measurements are compared to the TNM’s results. Id.

Taking these sections together, the Agencies determined that short-term noise

measurements would best represent traffic noise.

After performing only short-term measurements, the Agencies drafted an EA

concluding that noise-mitigation measures would be needed only in select areas along

the highway. The Agencies then submitted the EA for public comment. During this

comment period, the public raised concerns about noise mitigation. In response, the

Agencies conducted long-term noise measurements. The Agencies did not

incorporate the long-term measurements in the final assessment, but they noted that

the results from the long-term measurements did not necessitate any changes. After

the close of the public-comment period, the Agencies released a Finding of No

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Significant Impact (“FONSI”) with respect to the traffic noise and continued with the

expansion project. 1

Plaintiff-appellant, the Highlands Ranch Neighborhood Coalition (“the

Coalition”), is a group of residents who live in the areas along the highway that will

not receive noise-mitigation measures. The Coalition contends that the Agencies’

decision to use only short-term noise measurements violated NEPA. Specifically, the

Coalition points out that the Guidelines contain a 2006 Traffic Noise Model Users

Guide (“the Users Guide”) and argues that section 4.0 of the Users Guide requires

both short- and long-term noise measurements to validate the TNM. Accordingly,

the Coalition sought judicial review of the Agencies’ EA and FONSI.

The district court determined that the Agencies could rely on only short-term

noise measurements but needed to provide a rational basis for doing so. The district

court then issued two remand orders instructing the Agencies to outline and support

their rationale for using short-term measurements. After the second remand, the

district court affirmed the Agencies’ decision and determined that the Users Guide

was discretionary “by its own terms.” App’x Vol. V at 953. Thus, the Agencies need

only “consider[]” the Users Guide. Id. at 950 (emphasis in original). Because the

1 Under NEPA, if an agency’s EA indicates that the proposed action will not significantly impact the environment, the agency issues a FONSI. 40 C.F.R. §§ 1501.6(a), 1508.13. If the EA concludes that the proposed action will significantly impact the environment, the agencies must prepare an environmental impact statement, which requires more extensive analysis than the EA. Id. §§ 1501.5(c)(1), 1502 (detailing requirements for impact statements). 4 Appellate Case: 19-1190 Document: 010110659310 Date Filed: 03/18/2022 Page: 5

Agencies showed that they considered the Guide, the district court affirmed. The

Coalition appeals.

II.

The Coalition argues that the Agencies’ decision to use only short-term noise

measurements violated NEPA. Because NEPA does not provide a private right of

action, we evaluate the Agencies’ NEPA compliance according to the APA. See

High Country Conservation Advocs. v. U.S. Forest Serv., 951 F.3d 1217, 1222 (10th

Cir. 2020). Under the APA, we review the district court’s decision de novo and set

aside the Agencies’ NEPA determination only if it “fails to meet statutory,

procedural or constitutional requirements, or . . . is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Id. (quoting N.M. Cattle

Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001)).

We apply this standard “by asking whether [the Agencies’] method of

analyzing environmental effects ‘had a rational basis and took into consideration the

relevant factors.’” WildEarth Guardians, 920 F.3d at 1257 (quoting Utah Shared

Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1212–13 (10th Cir. 2002)).

Ultimately, we are concerned only with whether the Agencies made a reasoned

decision, not whether the Agencies made the best decision. See High Country

Conservation Advocs., 951 F.3d at 1223. In performing this review, “we accord

agency action a presumption of validity; the burden is on the petitioner to

demonstrate that the action is arbitrary and capricious.” Copar Pumice Co. v.

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Tidwell, 603 F.3d 780, 793 (10th Cir. 2010).

The Coalition challenges the Agencies’ decision to use only short-term

measurements on two grounds. First, the Coalition argues that the Agencies’

decision to use only short-term measurements contravenes section 4.0 of the Users

Guide. Second, the Coalition argues that the Agencies’ decision is not adequately

supported by the record.

a.

The Agencies relied on sections 3.2.2 and 3.3 of the Guidelines to perform

only short-term measurements, but the Coalition does not address these sections.

Instead, it focuses on the Users Guide, arguing that the Guide and the Guidelines

“must be read together.” Aplt. Br. at 18. Specifically, the Coalition points to section

4.0 of the Users Guide, which provides three “levels of validation” for validating the

TNM: (1) measurement results from similar projects, (2) short-term noise

measurements, and (3) short- and long-term measurements. App’x Vol. VI at 1356.

Section 4.0 then states that the third level applies to “large corridor projects.” Id.

Therefore, the Coalition reasons, because the highway expansion is a large-corridor

project, the Users Guide requires both short-term and long-term measurements, and

the Agencies’ failure to conduct both types of measurements was arbitrary and

capricious.

The Agencies do not dispute that the documents can be read together. Instead,

the Agencies argue—consistent with the district court’s order—that the Users Guide

is discretionary, not mandatory. For support, the Agencies note that the introduction

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to the Users Guide states that it “provides recommendations on the application of the

[TNM]” and also describes section 4.0 as providing “[r]ecommendations.” Id. at

1331. The Agencies also point out that section 4.0 frames the validation levels as

items “to consider,” not as binding requirements. Id. at 1356. On reply, the

Coalition does not address these arguments. Instead, the Coalition argues that if the

Agencies are not required to follow the validation methods in the Users Guide, then

the Guide becomes “essentially worthless.” Reply Br. at 13.

In our view, the Agencies accurately represent that the Guide provides

recommendations, not requirements. The Coalition does not dispute the plain

meaning of the Users Guide or explain why the methods laid out in the Guide should

be treated as requirements. Accordingly, the Coalition has not carried its burden of

showing that the Agencies acted arbitrarily and capriciously by declining to follow

the discretionary Users Guide.

b.

Since the Users Guide is discretionary, the remaining question is whether the

Agencies put forth enough evidence to justify performing only short-term

measurements. To answer this question, we ask whether the decision “had a rational

basis and took into consideration the relevant factors.” WildEarth Guardians, 920

F.3d at 1257 (quoting Utah Shared Access All., 288 F.3d at 1212–13).

The Coalition does little to undermine the Agencies’ decision. The Coalition

repeatedly notes that the Agencies had to follow state-specific guidelines for noise

evaluations. But the Coalition does not dispute that the Agencies did, indeed, follow

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Colorado’s guidelines. As a result, the Coalition’s point about state-specific

guidelines does nothing to satisfy its burden of showing that the Agencies acted

arbitrarily and capriciously.

The Coalition also argues that the Agencies acted arbitrarily and capriciously

by ignoring the Users Guide. But the record belies this assertion. The Agencies did

consider the Users Guide; in fact, they described it as a “reference document” when

responding to public comments on the expansion. App’x Vol. I at 137. The

Coalition inaccurately equates the Agencies’ decision not to follow the Users Guide

with a decision to completely ignore the Guide.

Next, the Coalition argues that the Agencies’ decision to rely on only short-

term testing cannot be well-founded because the Users Guide is an authoritative

document that was developed after four years of studying noise-evaluation measures.

But our concern is whether the Agencies’ provided a well-reasoned decision, not

whether it implemented the best method. See WildEarth Guardians, 920 F.3d at

1256–57.

The Agencies argue that the short-term measurements from sections 3.2.2 and

3.3 of the Guidelines follow more recent methodology and guidance from the Federal

Highway Administration. For support, the Agencies point to the declarations of

Jordan Rudel, a Region 1 Environmental Program Manager at the Colorado

Department of Transportation, and Lawrence Sly, a Senior Project Manager at Jacobs

Engineering. According to both Rudel and Sly, short-term noise measurements

accurately provide data for highways with consistent traffic flow. Additionally,

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Stephanie Gibson, an Environmental Program Manager at the Federal Highway

Administration’s Colorado Vision Office, stated in her declaration that the Users

Guide served a limited purpose: to provide “‘standard validation practices’ . . . only

if the model fails to validate in any given noise analysis.” App’x Vol. V at 1039.

The Coalition does not respond to this testimony beyond reiterating its position that

the Agencies cannot justify deviating from the mandatory Users Guide.

The Agencies’ action withstands our de novo review. The use of short-term

measurements comports with the plain language of the Guidelines and the Users

Guide. It is also substantiated by declarations confirming that short-term noise

measurements are appropriate. Accordingly, the Agencies’ explanation for the use of

short-term measurements was neither arbitrary nor capricious.

III.

Because the Coalition failed to show that the Agencies acted arbitrarily and

capriciously by evaluating the highway noise using short-term measurements, we

AFFIRM the district court.

Entered for the Court

Allison H. Eid Circuit Judge