Coal. for Sonoran Desert Prot. v. Fed. Highway Admin.

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Coalition for Sonoran Desert Protection, et al., Plaintiffs, v. Federal Highway Administration, et al., Defendants.

No. CV-22-00193-TUC-JCH

United States District Court, D. Arizona

May 23, 2023

ORDER

HONORABLE JOHN C. HINDERAKER, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants' partial motion to dismiss ("Motion") for lack of subject matter jurisdiction. Doc. 18. Under the Administrative Procedure Act ("APA"), a Court has jurisdiction to review final agency action. 5 U.S.C. § 704. The question here is whether the agencies' "Section 4(f) Evaluation"-incorporated and published with the agencies' Record of Decision-is such "final agency action" for purposes of subject matter jurisdiction. The Court finds that it is and denies Defendants' Motion.

I. Background

Plaintiffs the Coalition for Sonoran Desert Protection, Center for Biological Diversity, Friends of Ironwood Forest, and Tucson Audubon Society, (collectively "Plaintiffs"), sued challenging both the Tier 1 Record of Decision ("ROD") and the "Final Preliminary Section 4(f) Evaluation" ("Section 4(f) Evaluation"). Compl. ¶¶ 102-116. Named Defendants include the Federal Highway Administration ("FHWA") and Karla Petty (Arizona Division Administrator, FHWA), (collectively "Defendants"). Compl. ¶¶ 18-19. The Complaint alleges violations under the National Environmental Policy Act ("NEPA"),^[1] Section 4(f) of the Department of Transportation Act ("Section 4(f)"),^[2] and the APA.^[3] Plaintiffs seek declaratory and injunctive relief. See Compl. pp. 42.

The allegations concern a proposed 280-mile corridor, located between Nogales and Wickenburg, Arizona, for the Interstate-11 Project ("I-11 Corridor" or "Project"). Compl. ¶ 68. Plaintiffs assert two claims.^[4] In Count One, Plaintiffs contend that FHWA's Tier 1 ROD and Section 4(f) Evaluation (together the "Tier 1 Evaluation") violated NEPA and the APA. Compl. ¶¶ 102-04. In Count Two, Plaintiffs allege Defendants violated Section 4(f) by failing to comply with its statutory provisions. Compl. ¶¶ 105-112. Specifically, Plaintiffs argue that Defendants were required in Tier 1 to identify properties protected or unprotected under Section 4(f) and evaluate the potential use of these properties as early as practicable. Id. By designating certain properties as unprotected under Section 4(f) and deferring designation of others (and thereby deferring Section 4(f) analyses), the Tier 1 Evaluation has "prejudiced alternatives without an adequate Section 4(f) evaluation of these lands." Doc. 27 at 16. Defendants move to dismiss Count Two, the Section 4(f) claims, only. Doc. 18.

The Court heard oral argument on January 25, 2023. Coalition for Sonoran Desert Protection et al. v. Federal Highway Administration et al., 4:22-CV-00193-TUC-JCH (D. Ariz. January 25, 2023), Hr'g Tr. at 01:04 (hereinafter "Hr'g Tr.").

A. Statutory and Regulatory Background

i. NEPA

NEPA "establishes a 'national policy [to] encourage productive and enjoyable harmony between man and his environment,' and was intended to reduce or eliminate environmental damage and to promote 'the understanding of the ecological systems and natural resources important to' the United States." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321). "NEPA does not require agencies to adopt any particular internal [decision-making] structure." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 100 (1983). Instead, NEPA requires agencies to follow a particular decision-making process. Relevant here, the FHWA must complete Environmental Assessments and Environmental Impact Statements "before decisions are made and before actions are taken." 40 C.F.R. § 1500.1(b); 40 C.F.R. § 1500.1(c) (stating that "[t]he NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences... ").^[5]

An Environmental Impact Statement ("EIS") must be included "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). An EIS "shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. An EIS is comprised of various sections, including: (1) the purpose and need for the action; (2) the alternatives including the proposed action; and (3) the affected environment and environmental consequences of the proposed action. 40 C.F.R. § 1502.10(d)-(g). The "purpose and need" statement "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13. The "alternatives" section "is the heart" of an EIS and requires agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 49 C.F.R. § 1502.14(a). The environmental consequences section must discuss both direct and indirect effects of the proposed action and the "[p]ossible conflicts between the proposed action and the objectives of Federal, regional, State, and local land use plans, policies and controls for the area concerned." 40 C.F.R. § 1502.16. Within the alternatives analysis, the agency must assess: (a) a "no action" alternative, (b) other reasonable courses of action not within the jurisdiction of the lead agency, and (c) mitigation measures not already included in the proposed action or alternatives. Id. § 1502.14(b)-(f).

NEPA's regulations provide for a "tiered" environmental analysis. Tiering refers to "the coverage of general matters in broader [EIS analyses] with subsequent narrower statements or environmental analyses (such as regional or basin[-]wide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared." 40 C.F.R. § 1508.1. "Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review...." 40 C.F.R. § 1502.20. A properly tiered analysis consists of "a broad environmental impact statement" followed by "a subsequent statement or environmental assessment ... on an action included within" the program or policy contemplated in the broad statement. 40 C.F.R. § 1502.20. The subsequent statement "shall concentrate on the issues specific to the subsequent action[,]" and it "need only summarize the issues discussed in the broader statement[.]" 40 C.F.R. § 1502.20.

ii. Section 4(f)

Whereas NEPA "prohibits uninformed-rather than unwise-agency action[,]" there are "[o]ther statutes [that] impose substantive environmental obligations on federal agencies[.]" Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). Section 4(f) is one such statute. Under Section 4(f), the statute allows the Secretary of Transportation to:

approve a transportation program or project...requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if-

(1) there is no prudent and feasible alternative to using that land; and

(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

49 U.S.C. § 303(c). An alternative is infeasible only when it "cannot be built as a matter of sound engineering judgment." 23 C.F.R. § 774.17(2). Section 4(f) regulations require the preparation of an evaluation that "shall include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative and shall summarize the results of all possible planning to minimize harm to the Section 4(f) property." 23 C.F.R. § 774.7(a).

In a Tier 1, broad-scale EIS, the detailed information necessary to complete the Section 4(f) approval may not be available at that stage in the development of the action. 23 C.F.R. § 774.7(e)(1). As such, the Section 4(f) Evaluation "should address the potential impacts that a proposed action will have on a Section 4(f) property and whether those impacts could have a bearing on the decision to be made." 23 C.F.R. § 774.7(e)(1). The Section 4(f) Evaluation may make a preliminary determination whether the project's impacts on Section 4(f) property are de minimis, or whether there are feasible and prudent avoidance alternatives. 23 C.F.R. § 774.7(e)(1). A preliminary Section 4(f) approval must be incorporated into the first-tier EIS and finalized in the second-tier study. 23 C.F.R. § 774.7(e)(1), (2). "The potential use of land from a Section 4(f) property shall be evaluated as early as practicable in the development of the action when alternatives to the proposed action are under study." 23 C.F.R. § 774.9(a).

Section 4(f) applies not just to the agency's direct use of a Section 4(f) property but also to the "constructive use" of a nearby Section 4(f) property. 23 C.F.R. § 774.17; 23 C.F.R. § 774.15(b). "A constructive use occurs when the transportation project does not incorporate land from a Section 4(f) property, but the project's...