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September 26, 2002


The opinion of the court was delivered by: Reggie B. Walton, United States District Judge


I. Background

Plaintiff VCPC is "a nonprofit membership organization incorporated under the laws of New Mexico, for the purpose of encouraging the conservation and protection of land, water, historic and cultural resources within the Hondo River valley and Lincoln County, New Mexico . . ." Compl. ¶ 10.*fn2 Plaintiffs allege that the FHWA has failed to comply with Section 4(f) of the Department of Transportation Act ("Section 4(f)"), 23 U.S.C. § 138 (2000), 49 U.S.C. § 303 (2000) ("DTA"), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(c) (2000), prior to approving a major 37.5 mile highway project to reconstruct U.S. 70 from "a two-lane highway, [to] a continuous four-lane highway through the Hondo valley in Lincoln County, New Mexico, between [the communities of] Ruidoso Downs and Riverside . . ." Compl. ¶ 1.*fn3

When assessing whether to proceed with the current project, which is needed to address transportation problems in the larger area of the U.S. 70 corridor that is located between Roswell and Ruidoso Downs, New Mexico, three alternatives were considered, id. ¶ 27, one being a "no build" alternative. Id. ¶ 30. A document prepared by the New Mexico State Highway and Transportation Department ("NMSHTD") in September 1999, entitled "U.S. 70: Initial Corridor Study Report" (the "Corridor Report") determined that two of the bypass alternatives — one using U.S. 54, U.S. 380 and U.S. 246, and the second using U.S. 54, U.S. 349, and U.S. 246, "would partially achieve the need for the Project by providing an alternative route for commercial trucks and through traffic but" were not feasible because (1) trucks would continue to use U.S. 70, which travels through the Hondo River valley, as a short cut; (2) additional improvements would still be needed to address safety issues on U.S. 70, which would increase the project's costs; and (3) businesses located along U.S. 70 would be adversely affected if the traffic flow was reduced. Id. The Corridor Report recommended that decision-making concerning the transportation options for the corridor be separated into two segments: (1) a 17 mile segment between Riverside and Roswell ("the Plateau Project") and (2) a 37.5 mile segment between Ruidoso Downs and Riverside ("the Hondo Valley Project"). The Plateau Project was approved by FHWA in February 2001.*fn4 Id. ¶ 28.

On May 4, 2001, the FHWA issued a Draft Environment Impact Statement ("DEIS") regarding the Hondo Valley project. This DEIS indicated that the project would be implemented through a "design-build" process, "whereby the design phase and the construction phase of the [p]roject are integrated under a single contract."*fn5 Id. ¶ 29. The DEIS evaluated the two build alternatives, in addition to the "no build" alternative. Id. ¶ 30. The second alternative ("Alternative 2") proposed reconstruction of U.S. 70 as "an enhanced two-lane highway" and the third alternative ("Alternative 3") proposed "reconstruction of the existing highway as a continuous four-lane highway." Id. The DEIS indicated that Parsons Brinckerhoff ("PB"), an engineering firm, was its principal preparer. Id. ¶ 29. Plaintiffs allege that the DEIS did not evaluate any alternatives that would bypass the Hondo Valley on the basis that they had been rejected by the Corridor Report, and that it contained a "cursory" statement identifying the historic properties and archaeological sites, but deferred final determination of the project's effects, as well as mitigation procedures to address any such effects, as these determinations would be made by State Historic Preservation Officer ("SHPO") "in consultation with the public and other stakeholders pursuant to Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f, which would be made part of the Final EIS." Id. ¶¶ 29, 31.

In September 2001, a Cultural Resource Report was prepared. Id. ¶ 32. This report was prepared following "a preliminary cultural resource investigation [that] was conducted to identify and assess historic properties and properties of traditional cultural importance that are located within the limits of the proposed project." Id. The Area of Potential Effect ("APE") of the project was identified as being "150 feet beyond the existing [highway's] right of way." Id. ¶ 32. On October 31, 2001, the FHWA forwarded the Cultural Resource Report to the New Mexico SHPO for review and comment. Id. ¶ 33. On November 15, 2001, the New Mexico SHPO reviewed and commented on the Cultural Resource Report, in which he provided a qualified concurrence with the report's recommendations. Id. ¶ 35.*fn6

On January 29, 2002, the FHWA issued the Final Environmental Impact Statement ("FEIS"). Id. ¶ 39. "The [FEIS] reiterated and adopted the statements in the [Supplemental Draft Environmental Impact Statement] SDEIS." Id. ¶ 40. It concluded that the two build alternatives would not utilize Section 4(f) protected historic properties (citing the New Mexico's SHPO's qualified concurrence in the letter dated October 31, 2001). Id. ¶ 41.*fn7 Then, on March 15, 2002, just four days after the comment deadline regarding the FEIS, the FHWA issued its Record of Decision ("ROD") for the project, which, although acknowledging that Alternative 2's enhanced two lane proposal was the "environmentally preferred alternative," selected Alternative 3 that will reconstruct the existing highway into a continuous four-lane highway, because of its "greater safety benefits." Id. ¶ 43. Plaintiffs contend that neither the DEIS, SDEIS, FEIS, or ROD "explain, quantify, or substantiate the purported greater safety benefit of Alternative [3]." Id. ¶ 44. Although identifying the Section 4(f) properties located within the project area, the ROD concluded that the project would not involve the use of any Section 4(f) properties. Id. ¶ 45. In addition, according to plaintiffs, although the ROD stated that the FHWA would develop a "programmatic agreement . . . with groups interested in being a consulting party for Section 106 consultation" this consultation was limited to "determinations of effect on previously unidentified cultural resources and potential impacts to identified resources that are affected by design changes and construction activities." Id.*fn8

On July 15, 2002, the Advisory Council, the New Mexico SHPO, FHWA and NMSHTD executed a Programmatic Agreement ("PA"), which invited several of the plaintiffs to participate as "consulting parties." Id. ¶ 48. The PA concedes that the design-build process that would be utilized for the project might result in "as-yet-unassessed" effects to historic properties during the final design development because aspects of the design had not been finalized. Id. The PA, which divides the project into six segments for purposes of design and construction, also establishes a process under which a "Cultural Resource Task Force," which will be composed of representatives of the signatories and concurring parties to the PA, will "consider the effects on identified National-Register-eligible and undetermined historic properties and develop mitigation plans for any adversely affected historic properties within the Project's Area of Potential Effect." Id. The PA also establishes a mechanism by which disagreements between the consulting parties concerning determinations made previously regarding the ineligibility of properties for listing in the National Register of Historic Places ("National Register") would be submitted to the Keeper of the National Register. Id. ¶ 49. Plaintiffs argue that the project will utilize the J. and P. Analla Ranches, and the Montano Ranches, which are owned by plaintiff Gerald Ford, and have origins dating back to the 1800's. Pls.' Mem. at 16. Thus, despite defendants' conclusion that modern construction and alterations to these ranches preclude their eligibility for the National Register, the Keeper of the National Register must review this determination.*fn9 Id. In addition, plaintiffs challenge defendants' conclusion that the Rio Ruidoso Acequia and W.P.A. Schoolhouse do not qualify for the National Register. Defs.' Opp'n at 23.

On July 19, 2002, a design-build contract was awarded and executed for the project by the NMSHTD, authorizing the commencement of the final design and construction of the Project. Id. ¶ 50. Defendants were scheduled to commence work on the project's draining structures on September 23, 2002, and to install fencing within the project's right of way.*fn10 Pls.' Memorandum of Points and Authorities in Support of Their Application for a Temporary Restraining Order and Motion for Preliminary Injunction ("Pls.' Mem.") at 3. This initial phase of the project will entail the removal of trees and other vegetation, and plaintiffs seek a temporary restraining order and preliminary injunction because the activities purportedly "will result in irreparable injury to historic and natural resources." Id.

II. Plaintiff's Application for a Temporary Restraining Order

A. Plaintiff's Arguments

Plaintiffs argue that they have met the standard for an award of injunctive relief. First, plaintiffs argue that they have a substantial likelihood of success on the merits because the FHWA violated its own Section 4(f) regulations, which prohibit it from deferring the Section 106 studies necessary to make a determination of whether the project will use Section 4(f) protected historic properties until after the issuance of the ROD. Pl.'s Mem. at 14. Second, plaintiffs argue that they have a substantial likelihood of demonstrating that the FHWA violated NEPA by approving the project without making a detailed assessment of the project's environmental impacts, but instead delegating this responsibility to the highway builders, who would perform "environmental reevaluations" during the design and construction process. Id. Plaintiffs also argue that the NEPA process is tainted because the PB engineering firm has a substantial conflict of interest as a result of having entered into a second contract to serve as the administrator of the project during the design-build phase. Pls.' Mem. at 23-24. Thus, plaintiffs contend that PB had a financial interest in the outcome of the project but was not disqualified from preparing key NEPA documents and served as the principal contractor for the NEPA process, in violation of 40 C.F.R. § 1506.5(c). Id. at 24.

Plaintiffs argue that if injunctive relief is not granted they will suffer irreparable harm for which there is no adequate remedy at law. Pl.'s Mem. at 24. Defendants are scheduled to commence work on the draining structures and install fencing within the project right of way in Sections D (between Hondo and Tinnie) and Section F (between Picacho and Riverside) and some in Section 3. Id. at 25. Rock-blasting activities will commence in October. Id. The irreparable harm plaintiffs will allegedly suffer "includes the removal of trees and vegetation that contributes importantly to the historic landscape." Id. In any event, "a temporary restraining order is necessary immediately to preserve the status quo while this Court decides whether to issue a preliminary injunction." Id. Plaintiffs also argue that defendants will not be substantially harmed if injunctive relief is granted in plaintiffs' favor and that the public interest favors the issuance of an injunction. Id. Plaintiffs state there will be "no identifiable harm" to defendants as a result of the delay that would be occasioned by awarding them temporary injunctive relief, and that this delay is preferable to defendants' having to reverse their actions if permanent injunctive relief is granted. Id. at 26-27. Finally, plaintiffs allege that the public interest favors granting injunctive relief, "in light of the strong congressional mandate of Section 4(f) that the protection of historic properties is to be given `paramount' importance in transportation planning . . ." Id. at 27.

B. Defendants' Arguments

Defendants argue that plaintiffs' request for injunctive relief must be denied because, under the deferential standard of review afforded by the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (2000) ("APA"), this Court must conclude that defendants have not acted arbitrarily, capriciously, or contrary to law. 5 U.S.C. § 706. First, plaintiffs do not have a substantial likelihood of success on the merits because Section 4(f) only protects historic sites and defendants have rationally concluded that the project will not involve the use of such sites. Defs.' Mot. at 20-25. Regarding the plaintiffs' NEPA claims, defendants contend that plaintiffs have not demonstrated a substantial likelihood of success on the merits because the U.S. 70 design-build process was at least thirty (30) percent completed when the ROD was issued, which is typical of almost all highway projects that the agency approves. Id. at 33. Defendants allege that this thirty percent completion mark "fully complies with NEPA" and, in addition, "[o]ther important features of the Project's design were also established by the time of the ROD." Id. at 33-34.

Next, defendants argue plaintiffs have failed to establish that they will suffer irreparable harm. Id. at 39. Plaintiffs' harm regarding the removal of trees and vegetation is "weak at best[,]" they contend, as the "[i]nitial ground disturbance will only occur at 22 drainage structures in Segments D and F of the Project . . . [which will] have no potential to affect historic properties because none of the structures is located in the boundaries or immediate vicinity of any historic properties."*fn11 Id. at 40. In any event, defendants argue that the potential harm plaintiffs may experience does not outweigh the harm that injunctive relief will cause the defendants. Injunctive relief, according to defendants, would result in "significant delay and shut down costs to the NMSHTD[,]" amounting to a loss of $887,200 per month for a "temporary standby" and $3,296,000 if "a total demobilization were to occur." Id. at 41. Finally, defendants argue that the public interest weighs in favor of denying injunctive relief because the U.S. 70 project was initiated primarily to address safety concerns and cessation of the project now could result in additional accidents.*fn12 Id. at 7-8; 42.

II. Analysis

A. Standards of Review

Neither NEPA nor the Department of Transportation Act provide an independent cause of action, and therefore review of defendants' actions in this case must be scrutinized according to the standards set forth in the APA. In reviewing the actions of the defendants, the first inquiry the Court must make is "whether the [defendants] acted within the scope of [their] authority." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (citation omitted). This inquiry also involves a "determination of whether on the facts the [defendants'] decision can reasonably be said to be within [the] range [of their authority]." Id. Next the Court must then decide, pursuant to 5 U.S.C. § 706(2)(A), whether "the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id. (quoting 5 U.S.C. § 706(2)(A)); M.D. Pharm., Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir. 1998) (same). In reaching its conclusion regarding this question, "the 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." Citizens to Preserve Overton Park, 401 U.S. at 416 (citation omitted). Finally, the Court must determine whether "the [defendants'] action followed the necessary procedural requirements." Id. at 417. Although the Court must make a detailed inquiry into the facts and circumstances underlying the defendants' actions, "the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id.

Regarding injunctive relief, the Court must apply the familiar four-prong test in determining whether plaintiffs are entitled to injunctive relief. This test requires the Court to ask whether (1) plaintiffs have demonstrated that there is a substantial likelihood that they will prevail on the merits of one of their claims; (2) whether plaintiffs have shown that they would be irreparably harmed if injunctive relief is not awarded; (3) whether the issuance of injunctive relief would not "substantially harm" the other parties, and (4) whether awarding the relief is in the public interest. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (citing Virginia Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). In applying this test, district courts "employ a sliding scale under which a particularly strong showing in one area can compensate for weakness in another." Sociedad Anonima Vina Santa Rita v. Department of the Treasury, No. CIV.A.01-1573, 2001 WL 1804108, at *6 (D.D.C. Aug. 13 2001) (quoting City Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). Under this sliding scale, injunctive relief may be issued where, for example, the moving party has made a particularly strong showing of success on the merits "even if there is a relatively slight showing of irreparable injury." Id., at *7 (quotation omitted). The failure of the moving party to demonstrate irreparable harm, however, is sufficient reason for the district court to refuse to grant injunctive relief. Id.

B. Analysis of the Merits

(i) Plaintiffs' Section 4(f) claims:

"Federally funded highway projects must comply with a number of statutory requirements." Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 370 (D.C. Cir. 1999). Section 4(f) of the Department of Transportation Act, 23 U.S.C. § 138, 49 U.S.C. § 303, provides in part:

The Secretary [of Transportation] may approve a transportation program or project . . . requiring the use of publicly owned land of a . . . historic site of national, State, or local significance . . . 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 . . . historic site resulting from the use.

The DTA seeks to enforce the nation's policy "that special effort should be made to preserve the natural beauty of the countryside . . . and historic sites." 23 U.S.C. § 138; 49 U.S.C. § 303. To protect identified historic sites, Section 106 of the National Historic Preservation Act, 16 ...

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