Little Traverse Lake Property Owners Association et al v. National Park Service

BRIEF in support of MOTION for summary judgment 30 , MOTION for summary judgment 34 and in Opposition to Plaintiffs' Motion for Summary Judgment

W.D. Mich.July 8, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION __________________________________________ LITTLE TRAVERSE LAKE PROPERTY OWNERS ASSOCIATION, et al., Case No. 1:15-cv-789 Plaintiffs, v. Hon. Gordon J. Quist, United States District Judge; NATIONAL PARK SERVICE, Hon. Phillip J. Green, United States Magistrate Judge. Defendant. __________________________________________/ BRIEF IN SUPPORT OF DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3806 Page 1 of 36 i TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. STATUTORY BACKGROUND ........................................................................................... 1 A. Administrative Procedure Act .............................................................................................. 1 B. National Environmental Policy Act ...................................................................................... 2 III. FACTUAL BACKGROUND ............................................................................................ 3 A. The October 2008 EA .......................................................................................................... 4 B. The Revised March 2009 EA ............................................................................................... 5 C. The FONSI .......................................................................................................................... 7 D. The Present Complaint ......................................................................................................... 7 IV. LEGAL STANDARDS ...................................................................................................... 8 A. Standard for a Motion for Summary Judgment ..................................................................... 8 B. Scope of Judicial Review ..................................................................................................... 8 V. ARGUMENT ......................................................................................................................... 9 A. Plaintiffs have waived numerous issues they never raised during comment on the 2009 EA. ........................................................................................................................... 10 B. NPS complied with NEPA by preparing an EA and FONSI before approving the Trailway Project. .............................................................................................................. 13 i. The EA properly analyzes the expected environmental impacts of the Trailway Project. ....................................................................................................................... 14 a) The EA analyzes impacts to trees and vegetation. ..................................................... 15 b) The EA analyzes impacts to wetlands and streams. ................................................... 16 c) The EA analyzes impacts to topography and soils of the Lakeshore’s dunes. ............ 17 d) The EA analyzes impacts to wilderness. ................................................................... 21 e) The EA contains an adequate cost estimate. .............................................................. 22 ii. The EA properly considered a reasonable range of alternatives. ............................ 22 iii. NPS had no legal duty to revise Appendix G to the EA, or to complete the sample Environmental Screening Form. ............................................................................... 24 C. The FONSI renders an EIS unnecessary. ....................................................................... 26 D. It was both appropriate and necessary for NPS to issue the FONSI before it made a final decision regarding the Trailway Project. ................................................................ 29 VI. CONCLUSION ................................................................................................................ 30 Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3807 Page 2 of 36 ii TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 8 Animal Def. Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988) ..................................................... 22 Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256 (10th Cir. 2011) ............................................. 10 Bark v. Northrop, No. 3:13-cv-828-AA, 2016 WL 1181672 (D. Or. March 25, 2016) ............... 10 Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011) ............................................................................... 8 Camp v. Pitts, 411 U.S. 138 (1973) ................................................................................................ 8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 8 Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412 (6th Cir. 2004) .... 2 Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) ...................................................... 2 City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986) .............................................................. 23 Coal. for Advancement of Reg’l Transp. v. Fed. Highway Admin., 576 F. App’x 477 (6th Cir. 2014) ..................................................................................... passim Crosby v. Young, 512 F. Supp. 1363 (E.D. Mich. 1981) .............................................................. 23 Del. Audubon Soc’y v. Salazar, 829 F. Supp. 2d 273 (D. Del. 2011) ..................................... 27, 28 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ................................................................. 10 Dyer v. Sec’y of Health and Human Servs., 889 F.2d 682 (6th Cir. 1989)................................... 25 Envtl. Def. Fund, Inc. v. U.S. Army Corps of Eng’rs, 492 F.2d 1123 (5th Cir. 1974) ................. 30 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ................................................................ 8 Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501 (6th Cir. 1995) ......................... 2 Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969 (8th Cir. 2011) ................................. 10 Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257 (10th Cir. 2004) ........................................ 3 Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147 (9th Cir. 2008) ............... 29 Isle Royale Boaters Ass’n v. Norton, 154 F. Supp. 2d 1098 (W.D. Mich. 2001) ................. 2, 8, 25 Jackson Hole Conserv. All. v. Babbitt, 96 F. Supp. 2d 1288 (D. Wyo. 2000) ………………..25, 27 James Madison Ltd. By Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996) ..................................... 9 Karst Envtl. Educ. and Prot., Inc. v. Fed. Highway Admin., 559 F. App’x 421 (6th Cir. 2014) ...................................................................................... 10, 11 Kentucky ex rel. Beshear v. Alexander, 655 F.2d 714 (6th Cir. 1981) ............................. 10, 22, 23 Kroger Co. v. Reg’l Airport Auth. of Louisville and Jefferson Cty, 286 F.3d 382 (6th Cir. 2004) ................................................................................................. 2, 8 Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3808 Page 3 of 36 iii Ky. Coal Ass’n v. TVA, 68 F. Supp. 3d 685 (W.D. Ky. 2014) ...................................................... 28 Lindberg v. U.S. Forest Serv., 132 F. Supp. 3d 1255 (D. Or. 2015) ............................................ 10 Lone Tree Council v. U.S. Army Corps of Eng’rs, No. 06-12042-BC, 2007 WL 1520904 (E.D. Mich. May 24, 2007) ......................................... 30 Mason Cty. Med. Ass’n v. Knebel, 563 F.2d 256 (6th Cir. 1977) ................................................. 15 Natural Resources Def. Council v. TVA, 502 F.2d 852 (6th Cir. 1974) ................................. 29, 30 Okanogan Highlands All. v. Williams, No. CIV 97-806-JE, 1999 WL 1029106 (D. Or. Jan. 12, 1999) .............................................. 22 Partners in Forestry Co-op v. U.S. Forest Serv., 45 F. Supp. 3d 677 (W.D. Mich. 2014) .......... 28 Patmon v. Mich. Sup. Ct., 224 F.3d 504 (6th Cir. 2000) ................................................................ 8 Presidio Golf Club v. Nat’l Park Svc., 155 F.3d 1153, (9th Cir. 1998) ........................................ 27 Quechan Indian Tribe of the Fort Yuma Indian Res. v. U.S. Dep’t of Interior, 547 F. Supp. 2d 1033 (D. Ariz. 2008) ..................................................................................... 23 Save Our Cumberland Mtns. v. Kempthorne, 453 F.3d 334 (6th Cir. 2006) ................ 3, 14, 22, 26 Sierra Club v. Bostick, No. CIV-12-742-R, 2013 WL 6858685 (W.D. Okla. Dec. 30, 2013) ............................... 10, 11 Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997) ......................................................... 1, 2, 9, 26 Tenn. Envtl. Council v. TVA, 32 F. Supp. 3d 876 (E.D. Tenn. 2014) ....................................... 3, 27 Tinicum Twp., Pa. v. U.S. Dep’t of Transp., 685 F.3d 288 (3d Cir. 2012) ................................... 14 Town of Cave Creek, Arizona v. F.A.A., 325 F.3d 320 (D.C. Cir. 2003) ..................................... 28 U.S. Dept. of Energy, 753 F.3d 576 (6th Cir. 2014) ..................................................................... 29 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) ................ 10, 13 Statutes 5 U.S.C. § 706 ....................................................................................................................... 2, 8, 14 5 U.S.C. § 706(2)(A)....................................................................................................................... 2 28 U.S.C. § 2401(a) ........................................................................................................................ 7 42 U.S.C. § 4332(2)(C) ............................................................................................................. 3, 26 42 U.S.C. § 4332(2)(E) ................................................................................................................. 22 Mich. Comp. Laws Ann. § 324.35304(1)(g) (West 2016) ............................................................ 21 Mich. Comp. Laws Ann. § 324.35324 (West 2016) ..................................................................... 21 Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3809 Page 4 of 36 iv Regulations 40 C.F.R. §§ 1500.1-1508.28 .......................................................................................................... 2 40 C.F.R. § 1501.2 ........................................................................................................................ 29 40 C.F.R. § 1501.4(b) ................................................................................................................... 26 40 C.F.R. § 1502.14(d) ................................................................................................................... 4 40 C.F.R. § 1502.9(c).................................................................................................................... 30 40 C.F.R. § 1508.13 ........................................................................................................................ 3 40 C.F.R. § 1508.27 ...................................................................................................................... 27 40 C.F.R. § 1508.27(a).................................................................................................................. 27 40 C.F.R. § 1508.27(b) ................................................................................................................. 27 40 C.F.R. §1508.27(b)(3) .............................................................................................................. 27 40 C.F.R. §1508.9 ..................................................................................................................... 2, 14 Rules Fed. R. Civ. P. 56(a) ....................................................................................................................... 8 Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3810 Page 5 of 36 1 I. INTRODUCTION Plaintiffs Little Traverse Lake Property Owners Association (“Property Association”), et al., challenge plans for a recreational hiking and biking trail developed through a partnership of governments and local organizations, and approved by the National Park Service (“NPS”). The trail, known as the Leelanau Scenic Heritage Route Trailway, will be a twenty-seven mile non-motorized path connecting south Leelanau County with the north end of County Road 651, in Sleeping Bear Dunes National Lakeshore. As approved, the Trailway is routed entirely on NPS property or existing public road rights of way. However, Plaintiffs own property on Traverse Lake Road, along Segment 9 of the Trailway, and would prefer the path to be routed differently. In response to an early proposed route for Segment 9, the Property Association opposed even “the posting of signs directing bikers . . . onto Traverse Lake Road.” PageID.1179. Now, nearly seven years after NPS approved the Trailway, Plaintiffs seek to stop its completion near their property. Their filings allege a multitude of problems with the 2009 Environmental Assessment (“EA”) prepared by NPS and its partners to comply with the National Environmental Policy Act (“NEPA”). Yet during the period for public comment on that EA and the revised route for Segment 9 it described, Plaintiffs remained silent and raised neither concern nor criticism. Plaintiffs have waived their arguments for deficiencies in the EA. But independent of that waiver, Plaintiffs also have not shown the EA or associated Finding of No Significant Impact (“FONSI”) to be arbitrary or capricious. NPS is entitled to summary judgment. II. STATUTORY BACKGROUND A. Administrative Procedure Act (“APA”) Because NEPA does not provide a private right of action, a NEPA challenge must be brought pursuant to the APA. Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997). Under the APA, Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3811 Page 6 of 36 2 judicial review is confined to the administrative record. Id. at 638; 5 U.S.C. § 706. The reviewing court is “not empowered to substitute its judgment for that of the agency.” Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Rather, a court may set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is the “least demanding review” of an administrative action. Kroger Co. v. Reg’l Airport Auth. of Louisville and Jefferson Cty, 286 F.3d 382, 389 (6th Cir. 2004). “If there is any evidence to support the agency’s decision, the agency’s determination is not arbitrary or capricious.” Id. B. National Environmental Policy Act (“NEPA”) “NEPA is meant to foster better decision-making and informed public participation for actions that affect the environment.” Isle Royale Boaters Ass’n v. Norton, 154 F. Supp. 2d 1098, 1111 (W.D. Mich. 2001). The statute does not mandate any particular results, but simply establishes procedural requirements for agencies to assess the environmental impacts of their proposed actions, and consider alternatives, before making a decision. Id. at 350; Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 414 (6th Cir. 2004). The Council on Environmental Quality (“CEQ”), an agency created by NEPA within the Executive Office of the President, has promulgated regulations that guide federal agencies’ compliance with NEPA. 40 C.F.R. §§ 1500.1-1508.28. To comply with NEPA, agencies often prepare an EA, a “concise” public document which “briefly” discusses the environmental impacts of, and alternatives to, a proposed action. 40 C.F.R. § 1508.9. An EA functions as a “screening device” to determine whether a full environmental impact statement (“EIS”) is required, “allow[ing] agencies with limited resources to focus on truly important federal actions.” Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 504 (6th Cir. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3812 Page 7 of 36 3 1995).1 If, based on the EA, an agency determines the proposed action will have no significant impact on the quality of the human environment, it may issue a FONSI “briefly presenting the reasons why an action . . . will not have a significant effect on the human environment,” and the NEPA process is complete. 40 C.F.R. § 1508.13; Save Our Cumberland Mtns. v. Kempthorne, 453 F.3d 334, 339 (6th Cir. 2006). “An agency’s decision to issue a FONSI and not prepare an EIS is a factual determination which implicates agency expertise.” Tenn. Envtl. Council v. TVA, 32 F. Supp. 3d 876, 892 (E.D. Tenn. 2014) (quoting Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004)). III. FACTUAL BACKGROUND The idea for a non-motorized trail connecting south Leelanau County with the visitor sites and facilities of Sleeping Bear National Lakeshore sprung from the Leelanau Scenic Heritage Route Committee, a group comprised of representatives from local governments, Leelanau County, the Michigan Department of Transportation, NPS, and several other interested organizations and citizens. PageID.765. Established by the Michigan Heritage Route Program and coordinated by the Northwest Michigan Council of Governments (“Council”), the Committee works to preserve and enhance scenic, historical, and recreational qualities of nearby highway routes through the rural countryside and unique villages of Leelanau County. PageID.765-66. In its original Heritage Route Management Plan, the Committee identified a non-motorized trail as a priority. Id. In January 2007, a public request was issued seeking proposals for a pre-engineering study and environmental assessment to determine design concept, best location, trail alignment, probable cost and range of uses for a multi-purpose pathway/trailway beginning at Manning Road (Leelanau County line) and extending approximately twenty-five (25) miles to County Road 651 along M-22 and M-109 through the Sleeping Bear Dunes National Lakeshore. 1 A more extensive EIS is required only for certain “major Federal actions significantly affecting the quality of the human environment[.]” 42 U.S.C. § 4332(2)(C). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3813 Page 8 of 36 4 PageID.3145. Environmental consulting firm Gosling Czubak Engineering Sciences, Inc. was selected to undertake the initial study and draft EA for a Trailway. PageID.3133-34. NPS staff and Committee members met with Gosling Czubak’s landscape architect and land planner in spring and summer 2007, to flesh out the basic contours of a Trailway proposal and alternatives for the future EA. See id.; PageID.3083, 3079; 3048 (meeting agendas). Over the course of the next year, the partners coordinated extensively to draft and revise a preliminary EA, and present an early proposal to affected local governments. See PageID.1835, 1822, 1815. A. The October 2008 EA On October 1, 2008, NPS released an initial EA for the Leelanau Scenic Heritage Route Trailway Plan. PageID.1212. As described in the 2008 EA, the Trailway would be roughly 27 miles long and located “entirely on public lands in the National Lakeshore or on county road or state highway rights-of-way.” PageID.1225. The EA analyzed three alternatives. PageID.1265. Under Alternative A, a Trailway “would be constructed in the M-22/M-109 rights-of-way to the extent possible, only deviating where necessary due to physical or environmental constraints.” PageID.1229. Under Alternative B, the Trailway would be “in the M-22/M-109 right-of-way, in many areas, but deviating from the highway corridor where possible to avoid physical or environmental constraints, provide access to natural, cultural, or recreation resources, and to promote a broader variety of experiences for the Trailway user.” PageID.1246 (emphasis added). The third alternative was the “no action” alternative, under which no Trailway would be constructed. See 40 C.F.R. § 1502.14(d). To analyze the alternatives and environmental impacts with more specificity, the 2008 EA broke the proposed Trailway into nine distinct geographic segments. PageID.1227. The easternmost Segment 9 encompasses the Little Traverse Lake area at issue in this litigation. In the 2008 EA, Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3814 Page 9 of 36 5 Alternative A routed Segment 9 south of Little Traverse Lake inside the right of way for Highway M-22, while the “preferred” Alternative B proposed a route north of the Lake on Traverse Lake Road. Compare PageID.1244 with PageID.1260. Diagrams showing options for the trail design reflected a non-motorized lane contiguous with the surface of Traverse Lake Road, ten feet wide (if located on one side of the road) or five feet wide (if located on both sides of the road). PageID.1324. The 2008 EA was available for public review and comment for thirty days, and an open house meeting was held October 16, 2008. PageID.690, 1793. Twenty people attended the open house, and 53 comments were received during that period. PageID.690. Many residents living on M-22 supported a route along Traverse Lake Road, while homeowners on Traverse Lake Road preferred the route on M-22. See, e.g., PageID.1173 (“As a resident living along M22 . . . I believe the preferred Alternative B [Traverse Lake Road] is the best way to go.”); id. (“As property owners on the north shore of Little Traverse Lake, . . . the trail should be on M-22 . . . .”). Numerous commenters raised concerns about biking next to the heavy traffic on M-22. Id. (“it is usually nerve racking with frequent large trucks zooming by”); PageID.1171 (“prefer to be as far away from busy roads as possible”). The Property Association commented that a trail on the south side of Traverse Lake Road would conflict with many driveways and interfere with utility boxes or landscaping in the county road right of way, while a trail on the north side would affect dunes and trees. PageID.1179. NPS considered these and other public comments. See PageID.1189. B. The Revised March 2009 EA After reviewing comments received on the 2008 EA, NPS decided to adjust several portions of the proposed route. PageID.1162-64. In March 2009, a revised EA reflecting changes to Segments 1, 2, and 9 was released for public review. PageID.758. Like the 2008 EA, each action alternative proposed a Trailway entirely on Lakeshore lands or in existing public road rights of way Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3815 Page 10 of 36 6 owned by the state or county. PageID.771. However, where the initial EA had routed Segment 9 of Alternative B along the same surface as Traverse Lake Road traffic, the revised 2009 EA described separated path: an “off road boardwalk within the county right of way” on the west side of Traverse Lake Road, leading to “a separate 10’ off road asphalt path on the north side of Traverse Lake Road either within the county road right-of-way or on Lakeshore property . . . .” PageID.795, 805 (map). In revising the route for Alternative B near Traverse Lake Road to be separate and north of the road surface, NPS meaningfully responded to comments on the 2008 EA. All commenters at the open house had supported a route on the north side of the lake along Traverse Lake Road, and several urged “a separate paved trail off the road in that area.” PageID.1182. Changing the trail to a separate off road path addressed public concerns that a bike lane with a shared road surface would be unsafe. PageID.1174 (“Traverse Lake Road is a narrow, winding road . . . dangerous for a bike lane.”). And routing the path only on the north side of the road avoided direct conflicts with the many residences on the south side, between the road and Little Traverse Lake. PageID.1179 (“a bicycle lane on the south side of Traverse Lake Road would cross more than 70 driveways”). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3816 Page 11 of 36 7 Both NPS and the Council announced the availability of the revised March 2009 EA and another thirty day period for public review and comment. PageID.752, 755-56. Only five comments on the revised 2009 EA were received. PageID.523, 690.2 None of the comments related to the route along Traverse Lake Road in Segment 9, and no commenters expressed any concern or opposition to making the trail a “separate” path “on the north side of Traverse Lake Road,” as proposed in the revised preferred Alternative B. PageID.690. C. The FONSI NPS issued a FONSI for the Trailway in late August 2009. PageID.516-25. The FONSI selected the revised Alternative B—the alternative contemplating a trail “deviating from the highway corridor where possible, on Lakeshore lands, to avoid physical or environmental constraints, provide access to natural, cultural, or recreational resources, and to promote a broader variety of experiences for the Trailway user.” PageID.517. Segment 9 of the selected alternative was the separate off-road path north of Little Traverse Lake, largely following Traverse Lake Road. NPS considered the analysis of the 2009 EA in light of the CEQ factors for significance, and concluded that “[t]he Selected Alternative will not have a significant effect on the human environment.” PageID.521-24. D. The Present Complaint Plaintiffs filed this action on July 31, 2015, less than thirty days before the six year general statute of limitations for civil actions against the United States would expire. 28 U.S.C. § 2401(a). Despite not commenting on the revised March 2009 EA, Plaintiffs now allege that the EA failed to 2 The full text of the five public comments submitted on the 2009 EA does not appear in the several comment compilations in the existing record. PageID.1170, 1185, 1189. For completeness, NPS has filed a second administrative record supplement, adding a three-page document containing those five comments. PageID.3798. However, the record already before the Court, filed January 15 and April 26, 2016, reflects that only “five comments were received” on the 2009 EA and “[n]one were directed to Traverse Lake road issues.” PageID.690. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3817 Page 12 of 36 8 adequately analyze environmental impacts (Count I); that NPS should have prepared a full EIS (Count II); that NPS failed to analyze an adequate range of alternatives (Count III); and that the EA relied on “incomplete, misleading, and inaccurate data” (Count IV). IV. LEGAL STANDARDS A. Standard for a Motion for Summary Judgment Summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011). The moving party bears the initial burden to establish the basis for the motion, and that “there is an absence of evidence to support the nonmoving party’s case.” Patmon v. Mich. Sup. Ct., 224 F.3d 504, 508 (6th Cir. 2000) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). To prevail on a summary judgment motion, a movant must present sufficient evidence that “a rational trier of fact [could not] find for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261 n.2 (1986) (citation omitted); see Isle Royale Boaters, 154 F. Supp. 2d at 1111-12. B. Scope of Judicial Review The APA limits the scope of judicial review of final agency action to the administrative record. 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party. . . .”). Accordingly, the “focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). The reviewing court “is not generally empowered to conduct a de novo inquiry into the matter being reviewed and reach its own conclusions based on such an inquiry.” Kroger Co., 286 F.3d at 387 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). Rather, the Court reviews the established record of “all materials ‘compiled’ by the agency Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3818 Page 13 of 36 9 [ ] that were ‘before the agency at the time the decision was made.’” Sierra Club, 120 F.3d at 638 (citing James Madison Ltd. By Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citations omitted)). Plaintiffs’ brief repeatedly relies on factual allegations and evidence outside the administrative record. For example, Plaintiffs alleged in the Complaint and continue to assert that Segment 9 is “heavily wooded.” PageID.3778. NPS denied that allegation in its Answer, PageID.429, and the record reflects there is “wide spacing of the existing mature trees.” PageID.844. Similarly, while Plaintiffs allege that “dunes . . . completely cover the road shoulder for a distance of more than 700 feet” along Traverse Lake Road, NPS also denied that factual allegation, PageID.429, and Plaintiffs cite nothing in the record to support it. Plaintiffs also cite no record support for their assertions that the Trailway will “cross[ ] the front yards of private residences within ten feet of private structures” or that “a 20 foot wide cut was used” for portions of the Trail already built. PageID.3773. The photographs attached to the Complaint and cited in Plaintiffs’ brief also are not in the record. Neither is the letter from NPS dated March 30, 2015—years after the FONSI. PageID.3774. Plaintiffs’ many extra-record references flout the rule stated in their own brief: that judicial “review is limited to the Administrative Record.” Id. The Court should disregard them. V. ARGUMENT The 178-page EA and associated FONSI prepared for the Trailway plan satisfy NEPA. Those documents and the larger administrative record reflect that NPS gave thoughtful and thorough consideration to both environmental effects and reasonable alternatives for the proposed Trailway. And when Plaintiffs had the opportunity to voice concerns with the revised route ultimately approved by NPS and the revised 2009 EA analyzing it, Plaintiffs lay silent, failing to exhaust their administrative remedies. Courts have approved EAs and FONSIs for other trails planned for hiking, Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3819 Page 14 of 36 10 biking, or recreational use. See, e.g., Bark v. Northrop, No. 3:13-cv-828-AA, 2016 WL 1181672 (D. Or. March 25, 2016) (approving EA for seventeen miles of mountain bike trails and new skills park in national forest); Lindberg v. U.S. Forest Serv., 132 F. Supp. 3d 1255, 1260-61 (D. Or. 2015) (upholding EA for fifteen miles of bike trails and new parking lot in national forest). Plaintiffs’ various new theories for shortcomings in the EA fail to undermine the reasonableness of NPS’ NEPA process and conclusions, and the Court should uphold the EA and FONSI for the Trailway. A. Plaintiffs have waived numerous issues they never raised during comment on the 2009 EA. A party “challenging an agency’s compliance with NEPA must structure [its] participation so that it . . . alerts the agency to the [party’s] positions and contentions, in order to allow the agency to give the issue meaningful consideration.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (internal quotations and citation omitted); see Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 533 (1978). Where a party fails to alert the agency of its contentions during the administrative process, they are “forfeited” and waived for purposes of subsequent litigation. Public Citizen, 541 U.S. at 764. The Sixth Circuit and many other courts routinely apply this principle. Karst Envtl. Educ. and Prot., Inc. v. Fed. Highway Admin., 559 F. App’x 421, 424-25 (6th Cir. 2014); Kentucky ex rel. Beshear v. Alexander, 655 F.2d 714, 718 (6th Cir. 1981) (litigant “did not meet its obligation of meaningful participation by informing the [agency] . . . at a time when the [agency] could have taken any necessary corrective action . . . .”).3 3 See also Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 974 (8th Cir. 2011) (“[F]ail[ing] to raise an objection before the agency results in its waiver.”) (citation omitted); Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1261-62 (10th Cir. 2011) (issues “not properly raised before an agency are waived”); Sierra Club v. Bostick, No. CIV-12-742-R, 2013 WL 6858685 (W.D. Okla. Dec. 30, 2013), aff’d 787 F.3d 1043 (10th Cir. 2015) (litigant waived numerous NEPA claims by failing to raise them in comments on EA). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3820 Page 15 of 36 11 In this case, Plaintiffs not only failed to alert NPS to most of the asserted problems now raised in their brief—Plaintiffs failed to submit any input on the March 2009 EA during public comment. After revising the 2008 EA to address certain issues raised in public comments, including modifications to the route of Segment 9 along Traverse Lake Road, NPS released a revised March 2009 EA for public comment. PageID.523. No commenters, including Plaintiffs or their members, expressed any concern or criticism of Segment 9 during public comment on that document. PageID.690 (of the comments on revised EA, “[n]one were directed to Traverse Lake Road issues”). Accordingly, Plaintiffs have waived the many criticisms of the March 2009 EA that they voice for the first time before this Court. Karst, 559 F. App’x at 424-25 (“The time to complain is at the comment stage, not after the agency has completed its decision making process.”) (citation omitted). Importantly, Plaintiffs appear to concede that they did not fully participate in the NEPA process. PageID.3770 (stating that Plaintiffs participated only “in those phases of the Trail’s planning that were well publicized or for which notice was received”). But NEPA does not permit a party to lay silent during a publicly announced comment period and later “ambush an agency by making new demands during litigation.” Sierra Club, 2013 WL 6858685, at *8. Any suggestion that the 2009 EA was not “well publicized” is meritless. NPS announced the revised EA on its website, PageID.751-52; a press release was issued, PageID.755-56; and hard copies of the revised document were placed in “area libraries and public offices.” PageID.690. If Plaintiffs truly did not notice the issuance of the March 2009, it is due to their own inattention, not a lack of publicity. Plaintiffs’ failure to apprise NPS of their criticisms of the 2009 EA—indeed, their failure to comment on the document or the revised route for Segment 9 in any manner—deprived NPS of the opportunity to consider whether further revision might be warranted before issuing its decision. Thus, the many issues Plaintiffs raise for the first time in this case are waived. Karst, 559 F. App’x at 425 (“We Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3821 Page 16 of 36 12 cannot review issues that have not been passed on by the agency . . . whose action is being reviewed.”) (citation and internal quotations omitted). To the extent Plaintiffs may argue their comments on the 2008 EA alerted NPS to the issues raised in their brief, they did not. First, most of the named Plaintiffs did not comment on either the 2008 EA or 2009 EA. Only the Property Association and Marcia Skjaerlund submitted comments, and those comments only addressed the early proposed routes for Segment 9 in the 2008 EA. PageID.1176; 1179 (comments 20 and 27).4 Ms. Skjaerlund raised safety issues regarding a Trailway surface on Traverse Lake Road and commented that placing the Trail on the entire length of the Road would be disruptive to property owners. PageID.1176. The Property Association cited similar concerns about “driveways,” “mailboxes,” and “landscaping” of property owners on the south side of the Road, and stated that a trail on the north side of the Road “would interfere with critical dunes and require the removal of many, many mature trees.” PageID.1179. However, the only deficiency Plaintiffs asserted in the 2008 EA was that the impact to lakeshore property owners “is not ‘negligible’ as predicted by the study but very disruptive . . . .” PageID.1176. Thus, in their comments on the October 2008 EA, Plaintiffs merely voiced disagreement with the route and cited impacts already noted in the EA, like the fact that dunes would be affected and trees removed. During public comment on the revised 2009 EA, Plaintiffs • never asserted the analysis of soils, topography, or dunes was deficient; • never asserted the analysis of vegetation or tree removal was deficient; 4 From the administrative record, it does not appear Douglas Jones, L. Gene Morse, Linda Morse, the Leroy and Linda Morse Trust, Mary Ann Shutz, or the Mary Ann Shutz Trust submitted any comment on either the 2008 EA or the revised 2009 EA. It is unclear from the record whether any other commenters were members of the Property Association. To determine whether the Plaintiff Property Association had organizational standing in this case, undersigned counsel requested from Plaintiffs’ counsel a list of members of the Property Association. No list was provided. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3822 Page 17 of 36 13 • never asserted the analysis of wetlands or stream crossings was deficient; • never asserted the analysis of wildlife and associated habitat was lacking; • never asserted the analysis of visitor use was wanting; • never asserted the EA should discuss future permits that might be needed; • never asserted studies related to traffic or safety were necessary; • never asserted the estimated cost projections for the Trailway were deficient; • never asserted the statement of purpose and need was too narrow or otherwise improper; • never asserted the range of alternative Trailway routes considered was unreasonable; • never asserted any alternative threatened a violation of federal, state, or local law; • never asserted the EA included incomplete, misleading, or inaccurate data; • never asserted an EIS was legally required, or even that NPS should prepare an EIS. Plaintiffs simply never mentioned during the time for public review and comment the myriad ways they now allege the 2009 EA is deficient. As the Supreme Court has cautioned, [a]dministrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure references to matters . . . and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated . . . . Vt. Yankee, 435 U.S. at 553-54. NPS reasonably issued a FONSI based on a revised 2009 EA for which it received only five comments, none related to Traverse Lake Road issues. PageID.690. Plaintiffs waived any argument that the March 2009 EA was deficient, and the Court should not entertain their new criticisms in the first instance. B. NPS complied with NEPA by preparing an EA and FONSI before approving the Trailway Project. Even if Plaintiffs had not waived their claims, the EA satisfies the requirements of NEPA. An EA is a “concise public document” that must include “brief discussions” of the need for the Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3823 Page 18 of 36 14 proposal, alternatives, and the expected environmental impacts of the proposed action and alternatives. 40 C.F.R. § 1508.9; Save Our Cumberland Mtns, 453 F.3d at 339. Under the APA’s deferential standard of review, the agency’s discussion of environmental impacts and alternatives must be upheld because it is not arbitrary or capricious. 5 U.S.C. § 706. In this case, NPS prepared a thorough EA and released it for public comment in October 2008. In response to public comments received, NPS revised and reissued the EA in March 2009, making several revisions, including to the route for Segment 9. Although nothing in NEPA mandates that agencies modify their proposed actions, the revisions NPS made to the Trailway reduced the impacts to property owners along Traverse Lake Road. This is exactly how NEPA’s twin aims of informed decisionmaking and public participation are designed to work. NPS has not “abused [its] considerable discretion” in conducting the NEPA analysis, and the Court should uphold the 2009 EA and FONSI. Save Our Cumberland Mtns, 453 F.3d at 350. i. The EA properly analyzes the expected environmental impacts of the Trailway Project. Plaintiffs do not challenge the EA’s analysis for roughly 24 miles of its 27 mile length. Instead, Plaintiffs dissect the EA’s discussion of Segment 9, which is about three miles long. PageID.3772. They allege deficiencies in the EA’s discussion of wooded areas, wetlands, and dunes in Segment 9. But the fact that Plaintiffs are concerned only with the part of the Trailway near their property does not heighten the standard for impact analysis. NPS properly addressed each of these issues. “NEPA does not require maximum detail,” especially where the agency prepares an EA. Coal. for Advancement of Reg’l Transp. v. Fed. Highway Admin., 576 F. App’x 477, 492 (6th Cir. 2014) (quoting Tinicum Twp., Pa. v. U.S. Dep’t of Transp., 685 F.3d 288, 296 (3d Cir. 2012)). “Rather, it requires agencies to make a series of line-drawing decisions based on the significance and usefulness of additional information.” Id. The analysis in the EA was reasonable, and the Court Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3824 Page 19 of 36 15 should not accept Plaintiffs’ invitation to flyspeck the document. See Mason Cty. Med. Ass’n v. Knebel, 563 F.2d 256, 265 (6th Cir. 1977) (“someone later can always find fault” with NEPA documents). a) The EA analyzes impacts to trees and vegetation. Regarding trees and vegetation, the EA describes potential impacts from both trail construction and trail use. PageID.841-44. The EA fully recognizes that development of trail infrastructure may impact vegetation and forest resources, including “direct removal or loss of vegetation that serves as wildlife habitat . . . .” PageID.841. The record belies Plaintiffs’ claim that NPS did not address the impacts of “cutting a large swath through mature forest”; in fact, the EA describes that impact in nearly the same words: “development of a new trail through an area of relatively native forest where a swath of vegetation [] is removed to construct the trail would represent habitat loss.” Id. (emphasis added). The EA also discloses that such impacts may occur in Segment 9, because Trail “[p]lacement outside rights-of-way would be required in Segments 1, 4, 5, 7, 8, and 9.” PageID.843. In Segment 9 specifically, the EA describes the trail routing as a separate 10’ off road path on the north side of Traverse Lake Road either within the county road right-of-way or on Lakeshore property south of proposed wilderness. The trail would then follow an old two track road that runs from the northeast end of Little Traverse Lake to behind the Bufka Farmstead. PageID.816. However, NPS clarified that “[m]inimal tree removal is expected due to the wide spacing of the existing mature trees in this area.” PageID.843. Regarding the Trailway as a whole, NPS found that “virtually all trail locations out of the highway rights-of-way are on previously disturbed areas, or areas with widely-spaced trees.” PageID.844. The EA also described best management practices for reducing impacts to vegetation. Prior to construction, a “professional biologist or NPS staff” would develop a plan for relocating native plant species, and “plant species within the construction vicinity would be marked and flagged with Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3825 Page 20 of 36 16 protective fencing,” if necessary. PageID.809. “At the completion of the project, restoration would occur, which would include soil preparation and native seeding and planting.” Id. These best management practices for reducing impacts to vegetation were incorporated into the FONSI, as part of NPS’ final selected alternative. PageID.518. In light of the impacts and planned mitigation, NPS concluded that “impacts to vegetation are likely, in the short-term to be moderate adverse and in the long-term, to be minor and adverse.” PageID.844. NPS also determined that Alternative B would not impair vegetation, within the meaning of the NPS Organic Act. Id. Plaintiffs have not shown NPS’ analysis of impacts to trees and vegetation to be arbitrary or capricious. b) The EA analyzes impacts to wetlands and streams. In discussing wetlands, the EA acknowledges that “there are four wetland areas that could be impacted” by the proposed Alternative B, including the area in Segment 9 “[f]rom the Narada Lake area east to Little Traverse Lake and beyond to Townline Road.” PageID.840. The EA further notes that “[t]hree surface waters could be affected by the proposed Trailway,” including “Shalda Creek on Traverse Lake Road.” PageID.821. In Segment 9, the proposed “Trailway turns north on the west side of Traverse Lake Road onto an off road boardwalk within the county road right of way.” PageID.795. The boardwalk crossing Shalda Creek was a change from the 2008 EA, to reduce environmental impacts in response to public comments about routing a new lowland Trailway path in that area. PageID.1173, 1180 (“no mention is made of the stream crossing at Shalda Creek”); PageID.1172 (“an impediment to this draining action would have a direct impact”). Although the EA recognizes that Trail construction may impact wetlands and water bodies due to the risk of pollution from “petroleum products”, as well as “runoff” and “dust” effects, NPS explained that “boardwalks or hardened trail surfaces[] would be located to the extent feasible to avoid directly dredging or filling of wetlands.” PageID.838. The EA also describes the use of best Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3826 Page 21 of 36 17 management practices and monitoring during construction, including compliance with all applicable wetland regulations, the use of “sediment control fencing,” and “limited construction area[s].” PageID.809. The FONSI incorporated these mitigation measures. PageID.518, 840. NPS concluded that “[the preferred] Alternative B would likely have short-term and long-term minor adverse impacts on wetlands and water quality of the Lakeshore.” PageID.840. However, NPS found “[t]here would be no impairment of wetlands and water quality from implementation of alternative B.” Id. Where NPS reasonably determined the Trail’s impacts to wetlands and water bodies would be minor, the EA and FONSI are not arbitrary or capricious. See Coal. for Advancement of Reg’l Transp., 576 F. App’x at 492-93 (upholding agency’s analysis that bridge piers “would lead to a loss of habitat . . . but would not substantially impair the function of the water body as a whole”). Plaintiffs assert that “permits from MDEQ are required for stream crossings and actions that negatively impact wetlands,” but the EA and FONSI both acknowledge that NPS would “follow and comply with all federal, state and local ordinances and guidelines when working in or near regulated wetlands.” PageID.809; 518. Additionally, construction of Segment 9 has not yet begun. Thus, the time for NPS to obtain relevant wetlands permits for Segment 9 (if necessary) has not expired. Plaintiffs do not allege that NPS violated any state wetlands statute in constructing the portion of the Trail already built, nor do Plaintiffs allege any ongoing violation of wetlands law. NPS did not violate NEPA or any other statute in assessing the Trailway’s impacts to wetlands and streams. c) The EA analyzes impacts to topography and soils of the Lakeshore’s dunes. The term “dunes” covers a broad array of landscapes in the Lakeshore. Dune ecosystems are addressed in several EA impact topics, including “Vegetation,” “Topography,” and “Soils.” At the outset, the EA describes how ancient glaciation and wind erosion created the steep bluffs of the Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3827 Page 22 of 36 18 Lakeshore coastline, which were again eroded into “sandbars cutting off the embayment lakes (such as . . . Little Traverse Lake) . . . .” PageID.819-20. The bluffs eroded further, and windblown sand created even higher “perched dunes” on top of the glacial moraines. Sleeping Bear Dunes, Empire Bluffs, Pyramid Point and the island dunes are examples of these perched dunes. Lower dunes between the headlands and moraines are found in the Platte Plains and Good Harbor areas. PageID.820. NPS found that “[g]enerally, the topography within the project vicinity has slopes of 5% or less; however several localized areas do exceed 5% and range from moderate to steep slopes.” Id.; see also PageID.851 (listing slope by soil type and occurrence by trail segment). The EA noted that “the steepest slopes occur more in the southern segments,” not in the northern end of the Trailway near Segment 9. Id. Besides the “perched dunes” referenced in the Affected Environment section discussing Topography, the EA explains how the Lakeshore’s dunes take numerous other forms: from the barren “storm beach” on the shores of Lake Michigan, to the “first dunes behind this beach [which] support some pioneer plants,” to “[f]urther landward . . . areas of the dunes, [where] grass, forb and shrub species” grow, to the “active sand dunes” found in Segment 5 of the Trailway, and even further inland to a “dynamic zone where the dunes and neighboring woodland or forest move back and forth as conditions change.” PageID.822. The EA also addressed the physical environment of dunes in its discussion of “Soils,” noting that “the erodibility of the soil type as measured by the Soil Survey, or K factor, was considered in relation to Trailway development . . . .” PageID.826, 851. Next, the EA properly analyzed the “Environmental Consequences” of the proposed Trailway project and alternatives on each these landscapes. Regarding topography,5 the EA 5 The EA defined “topography” as “a natural or human-made landscape condition where existing contours of the land create a condition that would require grading with a landform change to develop the Trailway.” PageID.836. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3828 Page 23 of 36 19 explained that “[d]isturbance of areas with steep side slopes and gradients would be avoided where possible,” but acknowledged that some “minor” adverse impacts to topography may occur in several segments of the Trailway. Similarly, regarding Alternative B’s impacts on “soils,” the EA described both “soil impacts from visitor use, and soil impacts due to infrastructure development,” including soil “erosion,” “compaction,” and “disturbance during the construction phase” through “clearing of vegetation” and “removal of topsoil.” PageID.847. The EA disclosed that Trailway “[p]lacement outside rights-of-way would be required in Segments 1, 4, 5, 7, 8, and 9,” but noted that “[i]n most cases, however, they are deviations from the highway use routes where the soils have previously been disturbed,” such as the existing rights of way or the eastern stretch of Segment 9, which is expected to follow an old two-track road near the Bufka Farmstead. PageID.849. The EA also analyzed the soil types, erodibility characteristics, and gradient/slope of the terrain present in each trail segment. PageID.851. The analysis reflects that much of Segment 9 contains level areas, although some “Deer Park Sand” and “Emmet-Omena sandy loams” are found in higher slope areas. Id. Nonetheless, most of the soils present in Segment 9 are in level areas. 6 Id. And most of the soil types present in Segment 9 have “low” erodibility, with two having “low- moderate” erodibility. PageID.852. None are highly erodable. Id. Notably, NPS discussed (and incorporated in its FONSI) several best management practices to reduce the impacts of Trailway construction on topography and soils, like “silt fencing . . . in areas of steep topography” and “restoration to disturbed areas in order to reduce destructive erosion.” PageID.809. Based on these factors, NPS reasonably concluded that the proposed Trailway would 6 Segment 9 includes “Edwards muck” with “Lowland” slope; “Lupton-Markey mucks” with “Lowland” slope; “Au Gres - Kalkaska sands” with “0-4%” slope; “Kalkaska-East Lake loamy sands” with “0-6%” slope; “Mancelona-Richter gravelly sandy loams” with “0-6 %” slope. PageID.851. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3829 Page 24 of 36 20 have short-term and long-term “minor” adverse impacts to topography, and short-term “moderate” and long-term “minor” adverse impacts to soils.7 For both topography and soils, NPS determined that implementing Alternative B would not impair Lakeshore resources. PageID.838, 850. Plaintiffs fail to prove these determinations arbitrary or capricious, or explain why the EA’s detailed analysis of topography and soils does not sufficiently address the impacts of the Trail on the Lakeshore’s dune lands. Plaintiffs argue NPS should have found the Trailway’s impacts to topography “moderate,” due to some slopes near the eastern end of Traverse Lake Road. PageID.3781. But that argument overlooks that NPS’ ultimate assessment of impacts was properly aimed at the 27-mile Trailway as a whole—not just the short stretch along Traverse Lake Road. Moreover, Plaintiffs are incorrect in asserting that gradient and slope are “not referenced or identified” in the EA. Id. As discussed, the EA specifically addresses “gradient (slope)” in its section analyzing soils. PageID.818 (“Soil associations were considered for soil type (hydric, silty, sandy), permeability, gradient (slope), and erosion factors.”) (emphasis added); see PageID.847-51. Finally, Plaintiffs suggest Michigan’s state “Sand Dune Protection and Management” statute “requires the issuance of a permit . . . for any use within a critical dune area.” PageID.3782-83 n.13 (citing Mich. Comp. Laws Ann. § 324.35304 (West 2016)). However, Plaintiffs do not plead any state law cause of action, and their indirect arguments about state dune laws fail for several reasons. First, like the state permits related to wetlands, the time for obtaining any state permits related to Trail construction affecting dunes has not arrived, because work on Segment 9 has not yet begun. PageID.3774 n.4. Therefore, the issue is unripe for judicial review, and the Court need not address it. Second, it is questionable whether Michigan’s dune law requires a federal agency to obtain a state 7 The EA reasonably defined “minor” impacts to topography as circumstances where “[a]verage grades in potential new trail development areas are less than 5% slope; or, if on an existing trail, railroad grade, or two-track road, are 5% to 10% slopes.” PageID.836. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3830 Page 25 of 36 21 permit before taking management action on federal lands. The statute expressly applies to the federal government only “to the extent allowable by law.” Mich. Comp. Laws Ann. § 324.35324 (West 2016). Third, even if the statute applies, NPS satisfied its terms because it merely instructs that “[f]ederally owned land, . . . within critical dune areas shall be managed by the federal . . . government, . . . in a manner that is consistent with the model zoning plan.” Id. (emphases added). The model zoning plan instructs land managers to consider whether “the use will significantly damage” the lands “by significant and unreasonable depletion or degradation of” dunes. Mich. Comp. Laws Ann. § 324.35304(1)(g) (West 2016). Through its EA and FONSI, NPS reasonably determined the Trailway “will not have a significant effect on the human environment.” PageID.524 (emphasis added), 838 (minor impacts on topography), 850 (no major impacts to soils). Plaintiffs fail to demonstrate that the approved Trailway violates or threatens to violate any state law. d) The EA analyzes impacts to wilderness. None of the Trailway route for the selected alternative falls inside the wilderness areas of the Lakeshore. PageID.833. Indeed, NPS explained that “[n]o Trailway developments could occur on lands proposed for wilderness . . . unless and until Congress acts upon a recommendation.” Id. Plaintiffs note that a statement in the October 2008 EA indicated that a section of trail from the northeast end of Little Traverse Lake to the Bufka Farmstead “would fall in proposed wilderness and would not be allowed,” but no similar statement appears in the revised March 2009 EA. PageID.3782. That is because in January 2009, the Lakeshore issued a Record of Decision on its “Final General Management Plan / Wilderness Study / Environmental Impact Statement,” which, among other planning actions, recommended changes to the boundaries of the proposed wilderness areas in the Lakeshore. PageID.1147-58. Lands directly east of Little Traverse Lake are no longer Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3831 Page 26 of 36 22 proposed wilderness. PageID.686 (map of proposed wilderness). The March 2009 EA accurately reflects that Segment 9 of Alternative B does not conflict with wilderness. e) The EA contains an adequate cost estimate. NEPA does not require intricate discussion of costs. Animal Def. Council v. Hodel, 840 F.2d 1432, 1439-40 (9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir. 1989) (news of decreased cost of alternative aqueduct route did not require NEPA supplementation); Okanogan Highlands All. v. Williams, No. CIV 97-806-JE, 1999 WL 1029106, at *12 (D. Or. Jan. 12, 1999) (“NEPA does not specifically require detailed cost estimates for each alternative.”). Nonetheless, the 2008 EA contains a line by line cost estimate for the 27-mile Trailway. PageID.1338-47. NPS reasonably concluded in the revised 2009 EA that “modifications to Alternative B, Segments 1, 2, and 9 do not significantly impact the overall cost projections for the Alternative.” PageID.884. Plaintiffs have not proven that determination arbitrary or capricious, or a violation of NEPA.8 ii. The EA properly considered a reasonable range of alternatives. NEPA requires federal agencies to “study, develop, and describe appropriate alternatives” to proposed action. 42 U.S.C. § 4332(2)(E). However, it does not require agencies “to discuss every conceivable alternative[.]” Alexander, 655 F.2d at 718. Rather, agencies have discretion to define and discuss a reasonable range of alternatives “based on the needs the proposed action is designed to address.” Coal. for Advancement of Reg’l Transp., 576 F. App’x at 490 (citation omitted); Save Our Cumberland Mtns, 453 F.3d at 342. The duty to consider alternatives is “less pressing” where the action does not rise to the level of significance. Id. (citations omitted). 8 Plaintiffs also vaguely allege that the 2009 EA does not address impacts to wildlife or visitor use. PageID.3783, 3788. The EA belies those assertions, and contains dedicated discussions of wildlife and protected species, visitor use, and socioeconomic impacts. See, e.g., PageID.823-25, 841-47 (wildlife); PageID.829-30, 858-60 (visitor use); PageID.826-28, 852-55 (socioeconomics). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3832 Page 27 of 36 23 As previously noted, Plaintiffs failed to comment on the 2009 EA, and that “failure to challenge [the] agency’s choice of action alternatives during the NEPA process results in a waiver of the right to subsequently challenge the agency’s choice.” Quechan Indian Tribe of the Fort Yuma Indian Res. v. U.S. Dep’t of Interior, 547 F. Supp. 2d 1033, 1040 (D. Ariz. 2008) (citation omitted). However, even if Plaintiffs had not waived their challenge to alternatives, it fails on the merits. The stated purpose and need for action defines the range of reasonable alternatives. See Coal. for Advancement of Reg’l Transp., 576 F. App’x at 490. The purpose here was to create a non-motorized trailway that will provide a continuous scenic pathway from M-22 and Manning Road at the south boundary of Leelanau County to the north boundary of the Lakeshore at Good Harbor Bay, County Road 651, all within Leelanau County. PageID.771. That purpose and need reasonably “connect[ed] the park’s primary visitor sites and facilities,” ranging from the south Leelanau County line to the easternmost beach at the north boundary of the Lakeshore on C.R. 651.9 It was both logical and reasonable for NPS to include in the purpose and need a route that extends all the way to C.R. 651 at Good Harbor Trail. Consideration of three alternatives in the March 2009 EA—the “no action” alternative, and two alternative routes that met the purpose and need—was reasonable. PageID.771. Plaintiffs argue the EA should have analyzed a Segment 9 route “north of M-22 on Bohemian Road (a/k/a County Road 669).” PageID.3791. But the EA notes that “[s]everal options were eliminated . . . as they were not feasible or fell within proposed wilderness areas . . . .” PageID.774.10 An agency need not “detail alternatives that have been rejected as infeasible.” Crosby v. Young, 512 F. Supp. 1363, 1374 (E.D. Mich. 1981); see Alexander, 655 F.2d at 719. 9 Plaintiffs also did not comment, nor plead any NEPA claim before this Court, that the statement of purpose and need was improperly narrow in violation of NEPA. 10 The FONSI also notes that “[a] number of other options were considered . . . but were eliminated due to excessive grading issues, impacts to private property, steep topography, potential impacts on proposed wilderness, or safety.” PageID.519. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3833 Page 28 of 36 24 Where the purpose and need was for a trail extending to Lakeshore facilities at “Good Harbor Bay, County Road 651,” it was reasonable for NPS to reject alternative trail routes that led elsewhere. See City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986), cert denied, 484 U.S. 870 (1987) (“When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.”). NPS reasonably declined to analyze an alternative along Bohemian Road that would not achieve the stated purpose and need. Plaintiffs’ proposed alternative along Bohemian Road (C.R. 669) is also ineffective because it would stop the Trailway short of Lakeshore sites like the historic Bufka Farmstead and a swimming beach at the end of the Good Harbor Trail (C.R. 651). PageID.829, 1507, 795. As the EA notes, Segment 8 of the selected alternative provides access to “Lakeshore facilities at CR 669,” while Segment 9 is necessary to provide additional “access to Good Harbor Trail (CR 651) and Good Harbor Beach.” PageID.794-95. Plaintiffs may oppose extending the route as far east as Good Harbor Trail, but it was a stated part of the purpose and need, and other commenters supported it. PageID.1170. The decision not to analyze Plaintiffs’ preferred route was not arbitrary or capricious. iii. NPS had no legal duty to revise Appendix G to the EA, or to complete the sample Environmental Screening Form. Plaintiffs make much of the fact that NPS did not modify the appendices to the EA between the first version of the EA issued in October 2008 and the revised EA issued in March 2009. PageID.3780-82. But NPS was not required to redo certain tables in Appendix G before it released the revised EA. The EA states that the tables were created to provide an early assessment of various route options for several impact topics, not a numeric assessment of final environmental impact. See PageID.907. As explained in the narrative preceding the tables, [i]mpact topics that were considered when evaluating the Trailway routing options are represented in Preliminary Matrices developed to help measure and compare potential impact to the environment and feasibility. . . . The Tables and Maps Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3834 Page 29 of 36 25 measure the opportunities and challenges of possible alternatives in relation to environmental consequences. … The retained impact topics discussed in detail in section 2.4 and 2.5 – “Affected Environment and Environmental Consequences,” only include those topics that posed a potential impact and may differ from the impact topics that were identified initially. PageID.904. Thus, the matrix tables in Appendix G were expressly “preliminary” in nature, and NPS noted that the final discussion of environmental impacts in the body of the EA “may differ.” Id. Because Appendix G was an early scoping tool and not a summary of the final impact analyses in the EA, differences between the numeric scores in Appendix G and the conclusions in the EA itself are not just appropriate—they are to be expected. NPS fully analyzed the environmental impacts of the proposal in the body of the EA, and neither NEPA nor any other legal authority required NPS to revise these preliminary matrix tables. Plaintiffs also argue that “failure on the part of NPS to prepare an [Environmental Screening Form] in connection with the Trail is a per se violation of NEPA, [NPS Director’s Order] DO-12, and the Handbook.” PageID.3776. The record does not appear to contain a completed copy of the sample screening form, but neither NEPA nor CEQ regulations require completion of such a form. The sample form was appended to a 2001 NPS guidance Handbook. PageID.3725. While Plaintiffs claim the handbook has “the force of law,” PageID.3775, this Court has previously held DO-12 to be “an unenforceable statement of policy by the agency,” not a source of positive rights for plaintiffs. Isle Royale Boaters, 154 F. Supp. 2d at 1113. Any deviation from such policy statements does not give rise to an APA claim. Jackson Hole Conserv. Alliance v. Babbitt, 96 F. Supp. 2d 1288, 1296 (D. Wyo. 2000); see Dyer v. Sec’y of Health and Human Servs., 889 F.2d 682, 685 (6th Cir. 1989).11 11 Plaintiffs’ argument that the Handbook “according to its own terms, has ‘the force of law’” selectively quotes the document. PageID.3775. The Handbook says “most of its sections derive in whole or part from the CEQ regulation[s] or Interior NEPA guidelines, giving them the force of law.” PageID.3618 (emphasis added). The Handbook itself does not create enforceable obligations. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3835 Page 30 of 36 26 Even though NPS had no binding obligation to prepare the model screening form attached to the Handbook, Appendices F and G largely fulfilled the same purpose as the form. The NPS Handbook contemplates that park staff may “use a similar form or process” as an alternative to the sample screening form provided. PageID.3635. Here, Appendix F, entitled “Preliminary Impact Topics,” serves as a more nuanced proxy for the check-box impact topics listed on the model screening form. Compare PageID.904-07 with PageID.3726. And Appendix G goes beyond the requirements of the model screening form by providing numeric assessments for each impact topic— indeed, each trail section—based on the information available at that early stage. Accordingly, while DO-12 and the Handbook do not create any binding legal duty, the EA reflects that NPS has already fulfilled the purposes of its interpretive guidance regarding environmental screening. Plaintiffs cannot demonstrate that NPS was arbitrary or capricious in determining not to amend the matrix tables or otherwise in its environmental screening procedures.12 C. The FONSI renders an EIS unnecessary. Plaintiffs never asserted during the administrative process that an EIS was required, or even that NPS should prepare a full EIS for the Trailway. The argument is therefore waived. However, the argument also fails on the merits. Agencies may comply with their NEPA obligations by first preparing an EA to assess anticipated impacts and determine whether an action rises to the level of significance that would require a full EIS. 40 C.F.R. § 1501.4(b) (authorizing EA); see 42 U.S.C. § 4332(2)(C) (requiring EIS only for “major federal action significantly affecting the quality of the human environment”) (emphasis added). CEQ instructs agencies to weigh both the “context” and 12 Even if the Court finds some minor flaw in the NEPA process, the EA and FONSI should not be invalidated based on a technicality. Sierra Club, 120 F.3d at 637-38 (“[A] mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency’s determination. . . . We find the plaintiffs’ argument to be, at best, nitpicking.”); Save Our Cumberland Mtns, 453 F.3d at 348 (upholding EA where problem “was one of form, not function”). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3836 Page 31 of 36 27 “intensity” of the proposed action in determining significance. 40 C.F.R. § 1508.27. “Generally, however, the decision not to prepare an EIS is left to the ‘informed discretion’ of the agency.” Tenn. Envtl. Council, 32 F. Supp. 3d at 892. Many courts have upheld EAs related to NPS management actions on park lands. See, e.g., Jackson Hole Conserv. Alliance v. Babbitt, 96 F. Supp. 2d 1288, (D. Wyo. 2000) (upholding EA for road widening and construction in Grand Teton National Park); Presidio Golf Club v. Nat’l Park Svc., 155 F.3d 1153, (9th Cir. 1998) (upholding EA for project to demolish four buildings and construct new 6,000 square foot building). In this case, neither the “context” nor the “intensity” of the Trailway requires an EIS. First, Plaintiffs do not argue the “context” of the Trailway is significant, and it is not. The Trailway is a non-motorized path “on public land, either Lakeshore lands or within state highway or county road rights-of-way.” PageID.516. It will provide a means of recreation and transport from the south end of Leelanau County north to the Lakeshore, but will not “significantly” impact the affected townships or counties, much less “society as a whole.” See 40 C.F.R. § 1508.27(a). The Trailway also is not significant within the meaning of CEQ’s “intensity” factors. See 40 C.F.R. § 1508.27(b). The “presence of intensity factors does not mandate a finding of significance; rather, the agency must establish only that it addressed and evaluated the factors.” Tenn. Envtl. Council., 32 F. Supp. 3d at 893 (citing Del. Audubon Soc’y v. Salazar, 829 F. Supp. 2d 273, 284 (D. Del. 2011)). Plaintiffs argue an EIS is required because there are “[u]nique characteristics of the geographic area,” including the “forests, beaches, dune formations, and ancient glacial phenomena” of the Lakeshore. PageID.3788 (citing 40 C.F.R. §1508.27(b)(3)). But the FONSI acknowledges that the “Trailway traverses Sleeping Bear Dunes National Lakeshore through a variety of interesting and unique natural and cultural resources,” including “unique farmlands,” wetlands, rivers and streams. PageID.521. NPS reasonably found that the selected action minimizes or avoids adverse Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3837 Page 32 of 36 28 impacts to those unique areas, and that sensitive ecological areas are avoided. Id. (limestone trail surface comports with cultural landscapes; boardwalks planned for wetlands). NPS reasonably concluded that impacts to the unique characteristics of the Lakeshore will not be significant. Plaintiffs also argue the effects on the human environment are “highly controversial,” but the record does not support that argument. PageID.3788 (citing 1508.27(b)(4)). NPS received just five public comments on its revised March 2009 EA, and none raised concern with the revised route of Segment 9 near Traverse Lake Road. PageID.690, 719. On the 2008 EA, only 53 comments were received, and less than half objected to the Traverse Lake Road area. PageID.1170-83, 1185-86; see Ky. Coal Ass’n v. TVA, 68 F. Supp. 3d 685, 693 (W.D. Ky. 2014) (action not “highly controversial” even where “majority of the 304 public comments received opposed” the action).13 Moreover, “[t]he term “controversial” refers to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Partners in Forestry Co-op v. U.S. Forest Serv., 45 F. Supp. 3d 677, 686-87 (W.D. Mich. 2014) (quoting Town of Cave Creek, Ariz. v. F.A.A., 325 F.3d 320, 331 (D.C. Cir. 2003)). Many early objections to a route along Traverse Lake Road simply opposed the use of the commenter’s neighborhood for a public trail, even inside an existing right of way. PageID.1175 (“This is a simply unacceptable proposal. We pay extremely high property taxes….”); (“trail would divert MANY walkers, joggers, and bikers . . . past our idyllic northern cottage”). The EA noted that the number of visitors to the area may increase, but expected “[l]ittle increase in vehicular traffic” and minimal 13 Plaintiffs incorrectly assert that “70% of the written comments” opposed routing the Trail near Traverse Lake Road. PageID.3789. Defendant previously denied that allegation, PageID.434, and the record proves it wrong. On the 2009 EA, no comments expressed concern with Segment 9 or the Traverse Lake Road area. PageID.690. Only 25 of 53 comments on the 2008 EA raised concerns with the route along Traverse Lake. Comments 1, 3-7, 10, 15, 32-35, 38-50, and three additional comments (PageID.1185-86) voiced no concern with the Traverse Lake area. PageID.1170-83. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3838 Page 33 of 36 29 effects on adjacent land use. PageID.854. NPS properly determined the Trail’s effects are not “highly controversial” under CEQ regulations. PageID.521. Finally, in a footnote, Plaintiffs appear to argue that NPS violated NEPA by making the 2009 EA over 100 pages long—more extensive than NPS guidelines require. PageID.3790 n.18. Excessive analysis in an EA does not invalidate the document or violate NEPA. In fact, the Sixth Circuit has approved an EA over 400 pages in length. Klein v. U.S. Dept. of Energy, 753 F.3d 576 (6th Cir. 2014). Because the EA and FONSI comply with NEPA, an EIS is not required. D. It was both appropriate and necessary for NPS to issue the FONSI before it made a final decision regarding the Trailway Project. NEPA requires agencies to analyze the effects of their actions and potential alternative courses of action before determining a course, or making any irreversible or irretrievable commitment of resources. See Natural Resources Defense Council v. TVA, 502 F.2d 852, 853 (6th Cir. 1974). Accordingly, Plaintiffs are wrong in asserting that NPS violated NEPA by issuing the EA and FONSI “before final decisions were made regarding the Trail.” PageID.3784. To the contrary, CEQ regulations instruct agencies to integrate NEPA “at the earliest possible time to insure that planning and decisions reflect environmental values.” 40 C.F.R. § 1501.2. To the extent Plaintiffs argue that the description of Alternative B along Traverse Lake Road was not sufficiently detailed to allow adequate impact analysis, that argument, too, is meritless. PageID.3786.14 The EA defines the route with appropriate specificity: “a separate 10’ off road asphalt path on the north side of Traverse Lake Road either within the county road right-of-way or on 14 The Court should not consider the extra-record letter Plaintiffs cite. PageID.3784. In any event, it merely shows NPS’ willingness to discuss a change in Trailway route that might resolve Plaintiffs’ concerns, “as long as it could be shown to have similar or lesser environmental impact.” Id. n.15. Although Plaintiffs do not allege such a change has been made, it would not violate NEPA. See N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1154-55 (9th Cir. 2008). Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3839 Page 34 of 36 30 Lakeshore property south of the proposed wilderness.” PageID.795. Nothing in NEPA required NPS to identify the exact ten foot wide ribbon of land that will ultimately be paved. As the Sixth Circuit has explained, “NEPA does not require perfection, nor the impossible,” and “practicability and reasonableness . . . are to be taken into account” in assessing the adequacy of NEPA analysis. Natural Resources Def. Council, 502 F.2d at 853 (quoting Envtl. Def. Fund, Inc. v. U.S. Army Corps of Eng’rs, 492 F.2d 1123, 1131 (5th Cir. 1974)). By describing the route near Traverse Lake as a ten foot wide path inside a roughly 80 foot wide strip north of the road, NPS preserved a modest degree of flexibility while defining the proposal in sufficient detail to meaningfully assess impacts. Finally, Plaintiffs’ argument that the EA and FONSI are “outdated” is meritless. Mere passage of time does not compel preparation of a supplemental NEPA document. Lone Tree Council v. U.S. Army Corps of Eng’rs, No. 06-12042-BC, 2007 WL 1520904, at *16 (E.D. Mich. May 24, 2007). Rather, a NEPA document must be supplemented only when “significant new circumstances or information relevant to environmental concerns bear on the proposed action and its impacts.” 40 C.F.R. § 1502.9(c). NPS revised its 2008 EA; reissued an updated 2009 EA reflecting changes to Trailway segments 1, 2 and 9; and, receiving no criticisms of the revised route for Segment 9 during public comment, properly issued a FONSI for the Trailway project. PageID.868, 516-24. Plaintiffs have identified no significant new information or significant changed circumstances since the FONSI that might require NPS to reopen its NEPA process and prepare yet another EA. VI. CONCLUSION For the foregoing reasons, NPS respectfully requests that the Court grant summary judgment in favor of Defendant on all claims, and deny Plaintiffs’ motion for summary judgment in its entirety. Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3840 Page 35 of 36 31 Dated: July 8, 2016 Respectfully submitted, JOHN C. CRUDEN, Assistant Attorney General Environment & Natural Resources Division /s/ Joseph T. Mathews JOSEPH T. MATHEWS (Colo. Bar No. 42865) Trial Attorney, Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Telephone: (202) 305-0432 Facsimile: (202) 305-0506 joseph.mathews@usdoj.gov PATRICK A. MILES, JR. United States Attorney RYAN D. COBB (P64773) Assistant United States Attorney Post Office Box 208 Grand Rapids, Michigan 49501-0208 (616) 456-2404 Attorneys for Federal Defendant Of Counsel: KATHRYN WILLIAMS-SHUCK, Attorney-Advisor U.S. Department of the Interior Rocky Mountain Regional Solicitor’s Office 755 Parfet Street, Suite 151 Lakewood, CO 80215 Case 1:15-cv-00789-GJQ-PJG ECF No. 35 filed 07/08/16 PageID.3841 Page 36 of 36