Petition for Writ of Certiorari — Ross v. Federal Highway Administration
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Supr
B01900 Yu W200]
OFFICE oF
No. THE CLERK
In The
Supreme Court of the United States
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THOMASINE ROSS, et al.,
Petitioners,
FEDERAL HIGHWAY ADMINISTRATION, et al.,
Respondents.
+
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
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PETITION FOR WRIT OF CERTIORARI
¢
Bruce PLENK
Counsel of Record
Law Office oF Bruce PLENK
16 East 13th Street
Lawrence, KS 66044
(785) 840-0077
(785) 842-3039
Rosert V. Eve
IRIGONEGARAY & ASSOCIATES
1535 S.W. 29th Street
Topeka, KS 66611
(785) 267-6115
(785) 267-9458
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
Pyhnbeesrntios
QUESTION PRESENTED
Whether a Court of Appeals must disregard its own
findings of arbitrary, capricious and unjustified govern-
ment action and wholly defer to a district court’s finding
of substantial justification of the government's position in
denying EAJA fees to a prevailing party?
LIST OF PARTIES TO THE PROCEEDINGS
IN THE COURT BELOW
The full names of the petitioners in this case are:
Thomasine Ross; Stanley Ross; Anjanette Bitsie; Pemina
Yellowbird; Jason Daniels; Wetlands Preservation Organi-
zation; and Kansas University Environs, Kansas Unincor-
porated Associations,
The full names of the respondents in this case are:
Federal Highway Administration; David Geiger, in his
Official Capacity as Division Administrator, Federal
Highway Administration; Mark Buhler, Tom Taul, and
Dean Nieder, in their Official Capacities as County Com-
missioners of Douglas County, Kansas; and E. Dean Car-
lson, in His Official Capacity as Kansas Secretary of
Transportation.
PFs ee OS
TABLE OF CONTENTS
Page
es ae a ns ehh ab ewe wells i
BN EE PEND ccc cecercnndcesuccnsessevedsessa ii
6s ocenntvissous bevessoccdassevens iii
SE ee SIND 60 osc acecnccscccsetesccuscessee iv
TE SikeWhecetecnesannecebesscesbcasens 1
RE SE EE pe ee Ee Pn i 1
Statutory Provision Involved...................000 2
i ee Cl yobs secvecteatdexdcnseewsewe 2
Reasons for Granting the Writ..................... 4
EE 96.66.5046 00440 W046. 006b000050k0seuen des 9
PDC Stee an svendccncccvccncssustecereseee App. 1
Ross et al. v. Federal Highway, et al., 242 F.3d 390
(10th Cir. 2001) (table), 2001 WL 23148 (10th
CMU CEE AUG Vee iso ae Ceeess baeticcencea App. 1
Ross et al. v. Federal Highway, et al., 1999 WL
NE GE EE bing soos aéedenduscdparedccea App. 10
Ross et al. v. Federal Highway, et al., Order deny-
ing motion to alter or amend (1999)......... App. 19
Ross et al. v. Federal Highway, et al.,972 F. Supp.
Se cus ow ded bbe en ebbe eeewss App. 22
Ross et al. v. Federal Highway, et al., 162 F.3d 1046
SE ME 6a NSe eek awbcaninte ssc dacenn'e App. 49
Ross et al. v. Federal Highway, et al., Order deny-
Se EE CED so cdscncccnedcaccacccecea App. 68
iv
TABLE OF AUTHORITIES
Page
Cases
Christianson v. Colt Indus. Operating Corp., 486 US
Pe SOOM Kh db cb edccieccctecvésaghaxiandennunetas si 8
Citizens Council of Delaware County v. Brinegar, 741
POG SEG COU GE TR a oc seen ccecscanssscassescsas 4
Contractor’s Sand and Gravel, Inc. v. Federal Mine
Safety and Health Review Comm’‘n., 199 F.3d 1335
ie Gee So ov ok eho ndeyns.be00-4440ksbécdenahaeske 8
FDIC v. Oldenburg, 34 F.3d 1529 (10th Cir. 1994)...... 6
Federal Election Comm'n. v. Political Contributions
Data, Inc., 995 F.2d 383 (2nd Cir. 1993)............. 8
Friends of the Boundary Waters Wilderness v. Thomas,
me LO SOE GOU CAe BORED s ov acencccsivecccseansecs 7
Herman v. Schwent, 177 F.3d 1063 (8th Cir. 1999)...... 7
Marcus v. Shalala, 17 F.3d 1033 (7th Cir. 1994)........ 7
Pierce v. Underwood, 487 US 552 (1988)..... 4, 5, 6, 7, 9
Ross, et al. v. Federal Highway, et al., 972 F.Supp. 552
DUPER o \nwksneanavdecenedalcacceabewaneee un
Ross, et al. v. Federal Highway, et al., 162 F.3d 1046
CR CN. Bes bv cvna dba nsddchvnes saseennaaws 1,3
Ross, et al. v. Federal Highway, et al., 1999 WL
SENOS TERNS kik Kad cdrdanseiadedcapunnnsan benans 1
Ross, et al. v. Federal Highway, et al., 242 F.3d 390
(10th Cir. 2001), 2001 WL 23148 (10th Cir.)..1, 5, 6, 8
Vv
TABLE OF AUTHORITIES - Continued
Page
US v. Hallmark Construction Co., 200 F.3d 1076 (7th
Che, DOOD) occ cicsacseacevekeasesecasansaasnaneessss 7
US v. Paisley, 957 F.2d 1161 (4th Cir. 1992)...... 4,6, 7
Village of Los Ranchos de Albuquerque v. Barnhart,
906 F.2d 1477 (10th Cir. 1990)............. ee eee eee 3
Statutes & RULES
2B USC & 125MA) 2 ncn cca cccadesdsccccusccassnessseas 1
yp BS, oe a) erererrrrrrrper rrr rere ry ry ce rrr. 2
28 USC § 2412(d)(1)(A) .........- cece eee e renee 2, 3, 4
Rule Séid), BELCIOP. oc cssccccnsnevesecscecsanssuwan 3
OTHER MATERIALS
H.Rep. No. 1418, 96th Cong., 2d Sess. 5-6, 9-10
(1980), reprinted in 1989 US Code Cong. &
Admin. News at 4984, 4988-89............-2eeeeees 4
Seat ee oe
PETITION FOR WRIT OF CERTIORARI
Thomasine Ross and other petitioners respectfully
petition for a Writ of Certiorari to review the judgment of
the United States Court of Appeals for the Tenth Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Tenth Circuit is reported in table form at 242 F.3d 390
(10th Cir. 2001), at 2001 WL 23148 (10th Cir.) and is
included in the Appendix at 1. The order denying the
petition for rehearing is included in the Appendix at 68.
The opinion of the district court is reported only at 1999
WL 381460 (D.Kan.) and is included in the Appendix at
10. The district court order denying a motion to alter or
amend is included in the Appendix at 19. The underlying
opinions on the merits are found at 972 F.Supp. 552
(D.Kan 1997) and 162 F.3d 1046 (10th Cir. 1998) and are
included in the Appendix at 22 and 49, respectively.
eo
JURISDICTION
The court of appeals entered its judgment on January
10, 2001, and denied the petition for rehearing on March
21, 2001. The jurisdiction of this Court is invoked under
28 USC § 1254(1).
STATUTORY PROVISION INVOLVED
The Equal Access to Justice Act (EAJA), 28 USC §
2412(d)(1)(A) provides that:
. a-court shall award to a prevailing
party ... fees and other expenses . . . incurred
by that party in any civil action . . . brought by
or against the United States . . . unless the court
finds that the position of the United States was
substantially justified... .
+
STATEMENT OF THE CASE
Petitioners in this case are Native Americans and
environmentalists who use a wetlands near a proposed
highway in Kansas for spiritual, recreational, educational
and environmental purposes. They successfully argued to
the district court that NEPA applied to the road project,
that it was arbitrary and capricious for the US Federal
Highway Administration to discontinue a partially-com-
pleted Supplemental Environmental Impact Statement
(SEIS) and abandon its NEPA responsibilities some ten
years after that process was begun and that the environ-
mental studies needed to be completed before a route for
the highway was selected. Jurisdiction was invoked
under 28 USC § 1331 (federal question). The court
granted preliminary and permanent injunctions halting
any further road-building activities until NEPA was com-
plied with. The district court found the agencies’ action
of not completing the SEIS arbitrary and capricious under
the Administrative Procedure Act. 972 F.Supp. 552
(D.Kan. 1997).
a ath i erie ts
Deke Se MIRAE
The respondent agencies appealed that decision. The
Tenth Circuit Court of Appeals unanimously affirmed,
finding that “it was simply too late for the state of Kansas
to convert the eastern segment into a local project.” 162
F.3d at 1052-53. That court also looked closely at the state
of the law in 1997 and especially an earlier Tenth Circuit
case, Village of Los Ranchos de Albuquerque v. Barnhart, 906
F.2d 1477 (10th Cir. 1990), on which the federal respon-
dents had fully based their position in litigation. The
Court of Appeals stated that “nothing in Los Ranchos
supports the government's decision to ‘defederalize’ the
eastern segment of the South Lawrence Trafficway.” 162
F.3d 1053.
Petitioners then sought attorneys fees and costs pur-
suant to the Equal Access to Justice Act (EAJA) (28 USC §
2412) and Rule 54(d), F.R.Civ.P. The district court denied
this motion finding the government’s position was sub-
stantially justified. The district court denied a motion to
alter or amend. The 10th Circuit Court of Appeals
affirmed this denial of fees under a strict standard of
review, finding that despite their own contrary opinion
on the merits, they could not overturn the district court’s
denial of fees unless that decision was “whimsical or
manifestly unreasonable.” A petition for rehearing and
rehearing en banc was also denied.
Ultimately, the agencies completed the SEIS and con-
cluded that the road should not be built through the
wetlands.
REASONS FOR GRANTING THE WRIT
I. THE TENTH CIRCUIT’S OPINION CONFLICTS
WITH DECISIONS OF THIS COURT AND OTHER
CIRCUIT COURTS CONCERNING THE APPRO-
PRIATE METHOD OF REVIEW FOR DECISIONS
ON ATTORNEY FEES UNDER THE EQUAL
ACCESS TO JUSTICE ACT.
The fundamental issue presented in this case is
whether the Tenth Circuit Court of Appeals has distorted
the holding of Pierce v. Underwood, 487 US 552 (1988) to
frustrate the purpose of the Equal Access to Justice Act
(EAJA) (28 USC § 2412) by denying attorneys fees to
citizens who successfully sue the government.
The policy underlying EAJA was to reduce the dis-
parity in resources between the US government and those
seeking review of or defending against unreasonable gov-
ernment action by reimbursing those citizens and small
businesses who were successful in this activity. See
H.Rep. No. 1418, 96th Cong., 2d Sess. 5-6, 9-10 (1980),
reprinted in 1989 US Code Cong. & Admin. News at 4984,
4988-89, cited in Citizens Council of Delaware County v.
Brinegar, 741 F.2d 584, 589-90 (3rd Cir. 1984). EAJA pro-
vides for this fee shifting to assist those willing to litigate
meritorious claims against the government who are ulti-
mately successful. US v. Paisley, 957 F.2d 1161, 1164 (4th
Cir. 1992). The details of such fee shifting and how the
courts are to determine the appropriateness of EAJA
awards has been undergoing refinement for more than a
decade but has now been severely undermined by the
Tenth Circuit.
Fernar.
AED ANAL BAT. Opiate 4 RB ot thi
In Pierce v. Underwood, 487 US 552 (1988) this Court
determined that an abuse of discretion standard was
appropriate in the review by appellate courts of district
court decisions awarding or denying EAJA attorney fees,
granting “deferential review of a district court’s decision
regarding attorney fees under EAJA.” 487 US 563. The
Pierce court also discussed the appropriate manner of
reviewing district court decisions concerning whether the
government's position was “substantially justified,” the
issue here. 487 US 563.
After rejecting de novo appellate court review in favor
of an abuse of discretion standard, the Pierce court
reviewed the “actual merits of the Government's litigat-
ing position,” including the statutory language, the case
law the government relied on to support its position, and
the opposing case law cited by the respondents to deter-
mine if the district court was correct in its decision that
the government's position was not substantially justified.
487 US 569-71.
The Tenth Circuit has adopted a distorted and
crabbed view of the abuse of discretion analysis required
by Pierce which has the effect, as here, of essentially
protecting from review an erroneous denial of EAJA fees
to a prevailing plaintiff. While starting with Pierce, Slip
Op. at 5, App. at 4-5, the court reviewed its prior merits
opinion in this matter, quoted the portion of that opinion
which found nothing in then-existing case law to support
the government’s position, but then turned away from its
proper duty of review and “rubber-stamped” the district
court opinion. The appellate court held that since the
district court decision was “neither ‘whimsical’ nor ‘man-
ifestly unreasonable’” it must be sustained under the
abuse of discretion standard. Slip Op. at 8, App. at 8. This
is clear error, inconsistent with Pierce, and in conflict with
other circuit courts.
The Tenth Circuit has now authored over one hun-
dred opinions using its “whimsey” standard as an elab-
oration of the abuse of discretion standard. While there
may be some basis for this standard in reviewing evi-
dence-intensive trial decisions, where the standard origi-
nated, see FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.
1994), there is little reason to apply it in the EAJA fees
context, particularly here, where the district court is con-
sidering the fees application in light of the law as set forth
by the appeals court. This is clearly a distortion of the Pierce
standard.
The difference is also evident when the decision here
is compared with EAJA decisions from other circuits
effectuating the Pierce standard. Take US v. Paisley, 957
F.2d 1161, 1165-68 (4th Cir. 1992). That court distin-
guished Pierce, where the underlying merits portion of
the case was settled, from cases like the present case
where the merits were litigated and then the fee applica-
tion presented to the district court. The Paisley court
found that Pierce set out a level of deference to the trial
court “considerably short of a simple accept-on-faith,
rubber-stamping of district court decisions on this issue.”
957 F.2d at 1166. That court then tracked the Pierce anal-
ysis, reviewing the “objective indicia” of the strength of
the government's position, finding that the district court
had erred as a matter of law, and that that was an abuse
of discretion. 957 F.2d 1165.
Perhaps more significantly, the Paisley court looked at ~
4 the merits decisions that it and this Court had entered
i and substantively reviewed the district court fees decision in
light of those decisions. The conclusion: the rationales of
the merits decision(s) are the “most powerful available
i indicators of the strength, hence reasonableness, of the
i ultimately rejected position.” 957 F.2d at 1167.
The Seventh Circuit has used a similar in-depth anal-
ysis in a recent EAJA case which directly conflicts with
the Tenth Circuit approach as well. In US v. Hallmark
Construction Co., 200 F.3d 1076 (7th Cir. 2000), that court
explained that the Pierce abuse of discretion standard
“does not dilute our meaningful examination of the dis-
trict court’s decision.” Then the court remanded for fur-
ther explanation of the district court’s denial of fees in
light of the merits opinion which so strongly favored the
defendant against the government, relying on earlier
cases with similar findings. See, Marcus v. Shalala, 17 F.3d
1033, 1037 (7th Cir. 1994).
The Eighth Circuit also engages in intensive review
of these district court decisions on EAJA applications.
Thus, in Friends of the Boundary Waters Wilderness v.
Thomas, 53 F.3d 881, 885 (8th Cir. 1995) the court used its
own opinion on the merits as the starting point for
reviewing and reversing the district court’s denial of fees.
“ |. our conclusion that the Chief’s position was plainly
contrary to existing law counsels so strongly against the
conclusion that the Chief’s position was substantially
justified that it must determine the outcome.” See also
Herman v. Schwent, 177 F.3d 1063 (8th Cir. 1999).
a
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The DC Circuit has also held that a decision on the
merits may in essence resolve the substantial justification
issue where the standards used are close and all issues
are resolved, as they were here. See Contractor's Sand and
Gravel, Inc. v. Federal Mine Safety and Health Review
Comm’n., 199 F.3d 1335 (DC Cir. 2000) (agency decision).
And the Second Circuit has used this standard for many
years. See, e.g. Federal Election Comm'n. v. Political Contri-
butions Data, Inc., 995 F.2d 383 (2nd Cir. 1993).
Clearly, the Tenth Circuit's rubber stamp failure to
genuinely review the district court decision is in conflict
with most other circuits. This Court should resolve this
impasse and make the review standard the same for
litigants in the intermountain region as that used in the
rest of the country.
The other problem with the Tenth Circuit opinion is
that it contradicts traditional rules of the law of the case,
as established both at common law and by this Court. In
Christianson v. Colt Indus. Operating Corp., 486 US 800
(1988) and numerous other cases, this doctrine makes
clear that decisions of a court, or a panel of a court, are
binding as to future litigation of those same issues in that
case.
Here, however, ignoring the law of the case that it
had established itself in the merits phase of the case, the
court of appeals concluded that it must defer to the
district court’s odd interpretation of the appellate court's
own opinion unless that opinion was “whimsical or mani-
festly unreasonable.” Slip. Op. at 7-8, App. at 8. Finding
that it was neither, the court of appeals affirmed this
district court rewrite of its opinion. This violates the law
of the case and is an improper application of Pierce.
¢
CONCLUSION
The Tenth Circuit has undercut the standard of
review articulated by this Court in Pierce and established
a policy of review of EAJA fee denials which destroys the
key aspects of that statute. By rubber-stamping the dis-
trict court denial in the face of its own contrary decision
on the merits of the case and its own discussion of the
inadequate basis for the government’s position, that court
has departed from the procedure used in numerous other
circuits and thwarted the intent of Congress in the act.
This Court should grant certiorari to resolve this conflict
in the circuits and this improper application of its earlier
case.
Respectfully submitted,
Bruce PLENK
Counsel of Record
Law Office OF BRUCE PLENK
16 East 13th Street
’ Lawrence, KS 66044
(785) 840-0077
(785) 842-3039
Rosert V. EYE
IRIGONEGARAY & ASSOCIATES
1535 S.W. 29th Street
Topeka, Kansas 66611
(785) 267-6115
ee er Mee eee ne
App. 1
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
THOMASINE ROSS; STANLEY _)
ROSS; ANJANETTE BITSIE;
PAMINA YELLOWBIRD; JASON
DANIELS; and WETLANDS No. 99-3269
PRESERVATION (D. Kansas)
ORGANIZATION and KANSAS (D.C. No.
UNIVERSITY ENVIRONS, Kansas
unincorporated associations,
Civ-97-2132-GTV)
(Jan. 10, 2001)
Plaintiffs-Appellants,
V.
)
)
)
)
)
)
)
)
)
)
FEDERAL HIGHWAY .
ADMINISTRATION; DAVID
GEIGER, in his official capacity )
as Division Administrator, )
Federal Highway Administration; )
MARK BUHLER, TOM TAUL,
DEAN NEIDER, in their official
capacities as County
Commissioners of Douglas
County, Kansas; and E. DEAN
CARLSON, in his official
capacity as Kansas Secretary of )
Transportation, )
)
Defendants-Appellees.
ORDER AND JUDGMENT™*
Before KELLY, ANDERSON, and HENRY, Circuit
Judges.
*This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment
may be cited under the terms and conditions of 10th Cir. R. 36.3.
App. 2
Plaintiffs brought this action seeking declaratory and
injunctive relief against the defendant federal and state
officials. They contended that in planning and building a
highway near Lawrence, Kansas, defendants failed to
comply with the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. §§ 4321-4347. The district court
found in favor of the plaintiffs, and enjoined the defen-
dants from taking any further action on the uncompleted
eastern portion of the highway project until the require-
ments of NEPA had been met. See Ross v. Federal Highway
Administration, 972 F.Supp. 552, 562-63 (D. Kan. 1997).
This court affirmed that judgment in Ross v. Federal High-
way Administration, 162 F.3d 1046 (10th Cir. 1998) [here-
inafter Ross II ]. Plaintiffs then filed a motion in the
district court for attorneys’ fees and costs pursuant to the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, and
Fed.R.Civ.P. 54(d). The district court denied both fees and
costs. The plaintiffs now appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm the judgment of
the district court.
I. BACKGROUND
As the facts of this case were described in detail in
Ross II, 162 F.3d at 1048-50, we will only briefly recount
that background.
In 1986, federal, state, and local officials began to
plan the South Lawrence Trafficway, a highway bypass
which was supposed to traverse the south side of Law-
rence, Kansas. The project was jointly funded under the
Federal-Aid Highway Act, 23 U.S.C. §§ 101-189. Most of
the highway was constructed and is in use. However,
ot ke
App. 3
before the eastern portion of the project could be built, a
neighboring educational institution (Haskell Indian
Nation University), as well as several community groups,
raised objections to its location. These objections
appeared to necessitate a Supplemental Environmental
Impact Statement (SEIS) under NEPA. Instead of complet-
ing the SEIS, though, the federal and state highway offi-
cials decided to “defederalize” the unbuilt eastern
segment of the highway.
Although the federal government had funded a sig-
nificant percentage of the trafficway’s total coast [sic],
relatively little federal money had been spent directly on
the eastern segment, which was to be primarily paid for
by the state. Apparently, federal and state highway offi-
cials concluded that the eastern segment could conse-
quently be “defederalized” - i.e. redefined as an
independent state project. If the project were thus
redefined, NEPA would not apply, and an SEIS would not
be required. Accordingly, in early 1997, the Federal High-
way Administration published a notice of its intent to
withdraw from both the eastern segment of the project
and the SEIS, which would allow the state to proceed
with construction.
The plaintiffs then sued, arguing that this defederal-
ization was improper. The district court agreed; it ruled
that because all federal appropriations for the trafficway
had included the eastern segment in the trafficway’s
description, the entire project should be considered fed-
eral, even if little federal money was actually to be spent
on the eastern segment. It therefore enjoined further
action on the eastern segment, pending completion of the
SEIS. Ross, 972 F.Supp. at 562-63.
2
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App. 4
On appeal, this court upheld the ruling of the district
court, although our rationale was slightly different. We
held that by 1997, the “advanced stage” of the bypass
collaboration meant “it was simply too late for the state
of Kansas to convert the eastern segment into a local
project.” Ross II, 162 F.3d at 1052-53. Despiie the relatively
small federal expenditures directly related to the eastern
segment, we wrote, “[t]he federal nature of the trafficway
was so pervasive that the Kansas authorities could not rid
the project of federal involvement simply by withdrawing
the last segment of the project from federal funding.” Id.
at 1053 (citations omitted).
The plaintiffs next filed a motion in the district court
for attorneys’ fees and costs. The district court denied
attorneys’ fees against both the federal and state defen-
dants, and on separate grounds also denied costs. The
plaintiffs now appeal.
Il. DISCUSSION
A. Denial of Attorneys’ Fees from Federal Defen-
dants
Under the EAJA, a party that prevails in a civil action
against the United States is entitled to fees and other
expenses, “unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). In the present case, the district court
found that the government's litigating position was sub-
stantially justified. We review the district court’s ruling
on this question for an abuse of discretion. Pierce v.
App. 5
Underwood, 487 U.S. 552, 562 (1988); Gilbert v. Shalala, 45
F.3d 1391, 1394 (10th Cir. 1995).
In order to determine whether the federal govern-
ment’s position was substantially justified, a court must
ask whether that position was justified “in substance or
in the main.” Pierce, 487 U.S. at 564. A position is substan-
tially justified if it has “a reasonable basis both in law and
fact,” or is “justified to a degree that could satisfy a
reasonable person.” Id. at 565. Here, the district court
found that when the government announced its intent to
withdraw from the SEIS. its position was reasonable,
based on “the case law governing in 1997.” Aplt’s
Supp.App. at 22 (District Court Order filed May 24, 1999).
Applying this standard, the district court placed par-
ticular weight on Village of Los Ranchos de Albuquerque v.
Barnhart, 906 F.2d 1477 (10th Cir. 1990). In Los Ranchos, the
federal government had been involved in preparing an
environmental impact statement (EIS) for a proposed
highway river crossing project in New Mexico. The river
crossing project was near another major federal project, a
highway interchange, but had been “segmented” from
the interchange for funding purposes. Id. at 1482. The
federal government withdrew from the river crossing
project after completing the EIS, but before construction
began; the river crossing was to be funded thereafter by
non-federal authorities. Neighbors of the river crossing
who were opposed to the project then sued. They argued
that the project could not be defederalized for two rea-
sons: because the prior federal involvement with the EIS
precluded defederalization, and because the river cross-
ing had been improperly separated from the federal high-
way interchange project.
App. 6
This court held that both segmentation and
defederalization had been proper. We emphasized that
because the federal government’s involvement had ended
very early in the project, and because the federal mone-
tary contribution had been a very small fraction of the
river crossing’s expected cost, federal involvement was
minimal, and defederalization was permissible. Los
Ranchos, 906 F.2d at 1480-82. We also held that segmenta-
tion had been proper. “Even if a local project terminates
at a point of juncture with a federally funded project,” we
wrote, such a juncture would not “preclude” segmenta-
tion of the two projects. Id. at 1483.
In the present action, the district court emphasized
that before our decision on the merits in this case, Los
Ranchos was the controlling case in this circuit. It found
that the Federal Highway Administration
believed that, under its reading and interpreta-
tion of Village of Los Ranchos and other federal
appellate court case law, the eastern segment of
the [South Lawrence] trafficway was not a
“major federal action” because it was to be com-
pleted without the use of further federal funds
and because the FHWA no longer had the
authority to exercise control in the planning or
construction of the segment.
Aplit’s Supp.App. at 22. The district court concluded that
under Los Ranchos, there was a reasonable basis for both
the government's action and its litigating position.
The plaintiffs now argue that even in 1997, the law
suggested defederalization of the eastern segment would
be unreasonable. Essentially, the plaintiffs maintain that
sak a abacwacdedimenss
ete hah lia tle ai itd ea le Mik IE te
App. 7
Los Ranchos is factually distinct from the Kansas contro-
versy, making it valueless as precedent. They further
contend that all relevant cases other than Los Ranchos
have rejected defederalization.
Our earlier opinion in this case does indeed state that
“nothing in Los Ranchos” supports the government's
“decision to ‘defederalize’ the eastern segment of the
South Lawrence trafficway.” Ross II, 162 F.3d at 1053. The
present case, we found, differs “significantly” from the
facts in Los Ranchos. Id. It also approves of the cases
plaintiffs cited in support of their position, especially
Scottsdale Mall v. State of Indiana, 549 F.2d 484 (7th -ir.
1977). In Scottsdale Mall, the state had attempted to
defederalize a highway project in order to circumvent
NEPA. The Seventh Circuit ruled that because there had™
been significant federal involvement in all stages of the
project prior to the attempted defederalization, the
attempt was improper. Id. at 488-90. As a result, plaintiffs
urge us to find that the government's position was not
substantially justified.
However, under the “abuse of discretion” standard of
review, we cannot reverse the district court unless we
have “a definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” McEwen v. City
of Norman, 926 F.2d 1539, 1553-54 (10th Cir. 1991). The
district court’s judgment may only be reversed for an
abuse of discretion if it appears “arbitrary, capricious,
whimsical, or manifestly unreasonable.” FDIC v. Olden-
burg, 34 F.3d 1529, 1555 (10th Cir. 1994).
App. 8
Despite the plaintiffs’ contentions and our decision in
Ross, the district court’s conclusion was neither “whimsi-
cal” nor “manifestly unreasonable.” Although Scottsdale
Mall supported the plaintiffs’ position (and raised ques-
tions about the government's), it was not binding author-
ity in this circuit. See Garcia by Garcia v. Miera, 817 F.2d
650, 658 (10th Cir. 1987) (affirming that the decisions of
one circuit court of appeals are not binding upon another
circuit). In contrast, Los Ranchos, a case from within our
circuit, addressed issues of highway segmentation and
defederalization and provided some support for the gov-
ernment’s contentions.
Here, the district court found that because Los
Ranchos appeared to be the most relevant precedent, it
was not unreasonable for the Federal Highway Adminis-
tration to rely upon that case in formulating its argu-
ments. In other words, in order to have a “substantially
justified” litigating position, the FHWA need not have
predicted or foreseen our decision on the merits here,
which followed the reasoning of Scottsdale Mall and dis-
tinguished Los Ranchos. This conclusion by the district
court was neither “whimsical” nor “manifestly unreason-
able.” We therefore conclude that the district court did
not abuse its discretion in denying the plaintiffs’ motion
for attorneys’ fees.}
1 Because we conclude Los Ranchos provides sufficient
support for the district court’s ruling, we need not address the
relevance of 23 U.S.C. § 145.
SA ARAM ITER eh IY WA Et Hebe
App. 9
B. Denial of Costs From All Defendants
Because the plaintiffs did not file a bill of costs within
thirty days after the final judgment, as required by the
local court rules, the district court denied plaintiffs their
costs. See D. Kan. Rule 54.1. Plaintiffs state that while
they did not file a bill of costs on the specific form
required by the local Kansas rule, they did submit their
costs as part of an affidavit for attorneys’ fees under the
EAJA. This, they propose, “compl[ies] with the intent” of
the Kansas rule. Aplt’s Br. at 24.
We have on many occasions found that “the district
court is entitled to considerable deference in its inter-
pretation and application of its own rules of practice and
procedure.” Mitchell v. Maynard, 80 F.3d 1433, 1447 (10th
Cir. 1996). Although we might have held differently (not-
ing the confusion that could have resulted from the EAJA
application), under this deferential standard, it was per-
missible for the district court to find that plaintiffs’ affi-
davit did not sufficiently comply with the local rule
requiring a bill of costs.
Ill. CONCLUSION
For the foregoing reasons, the judgment of the dis-
trict court is AFFIRMED.
Entered for the Court,
Robert H. Henry
- Circuit Judge
App. 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THOMASINE ROSS, STANLEY
ROSS, ANJANETTE BITSIE,
PAMINA YELLOWBIRD, JASON
DANIELS, WETLANDS
PRESERVATION ORGANIZATION,
and KANSAS UNIVERSITY
— ~~ es ee ee ee”
ENVIRONS, ) CIVIL ACTION
Plaintiffs, ‘ No. 97-2132-GTV
(FILED
= MAY 24, 1999)
FEDERAL HIGHWAY
ADMINISTRATION; DAVID
GEIGER, Division Administrator,
Federal Highway Administration;
- MARK BUHLER, TOM TAUL,
DEAN NEIDER, Douglas County,
Kansas Commissioners; and E.
DEAN CARLSON, Secretary of
the Kansas Department of
Transportation,
|
Defendants.
eee eee eee eee ee
MEMORANDUM AND ORDER
Plaintiffs brought this action seeking declaratory and
injunctive relief against all defendants for their failure to
comply with the National Environmental Policy Act of
1969 (“NEPA”), 42 U.S.C. § 4321 et seq., in the planning
and construction of the eastern leg of the South Lawrence
Trafficway in Douglas County, Kansas. After an evidenti-
ary hearing, this court found in favor of plaintiffs, and
enjoined defendants from taking any action or expending
Liha PO ead Dal Met WS TNT
DENSA CALE POLL LM CHS Ate se
App. 11
any funds to complete the eastern leg of the trafficway.
On appeal, this court’s order was affirmed by the United
States Court of Appeals for the Tenth Circuit. Ross v.
Federal Highway Admin., 162 F.3d 1046 (10th Cir. 1998).
The case is now before the court on plaintiffs’ motion
(Doc. 65) for attorneys’ fees and costs pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412,
and Fed.R.Civ.P. 54(d). For the reasons set forth in this
memorandum and order, plaintiffs’ motion is denied.
I. BACKGROUND
The instant motion for attorneys’ fees and costs arises
out of the development and construction of a southern
bypass around Lawrence, Kansas, known as the South
Lawrence Trafficway. In 1986, state and federal officials
began planning the trafficway as a jointly funded federal-
aid highway project. Under the Federal-Aid Highway
Act, 23 U.S.C. § 101 et seq., states may seek reimburse-
ment for a percentage of the costs incurred for certain
highway projects. States seeking federal highway funds
must submit to the Federal Highway Administration
(“FHWA”) a list of proposed transportation projects.
Upon final approval of the project and compliance with
applicable federal laws, including the National Environ-
mental Policy Act (“NEPA”), the FHWA reimburses the
state for a portion of the project cost. In order to be
eligible for federal funding, the state must prepare an
environmental impact statement.
In the instant case, the FHWA approved and released
to the public a final environmental impact statement on
January 4, 1990. On June 5, 1990, the FHWA issued a
App. 12
Record of Decision, selecting the route for the eastern leg
of the Trafficway along the existing 31st Street in the City
of Lawrence. In July and October 1993, representatives of
Haskell Indian Nations University expressed concern
about the 31st Street alignment that is adjacent to the
Haskell campus. Following the passage of a Haskell
Board of Regents’ resolution opposing the 31st Street
alignment, the FHWA, the Kansas Department of Trans-
portation (“KDOT”), and officials from Douglas County,
Kansas, determined that a supplemental environmental
impact statement (“SEIS”) was needed to address Hask-
ell’s spiritual, academic, and developmental concerns.
In April 1994, to facilitate construction, KDOT
requested that the FHWA allow segmentation of the traf-
ficway project. In May 1994, the FHWA approved KDOT’s
request to divide the trafficway project into four seg-
ments with three segments on the western leg and the
remaining segment being the eastern leg. The three seg-
ments of the western leg of the trafficway have since been
completed and are in use.
On October 2, 1995, the FHWA, KDOT, and Douglas
County released a draft SEIS addressing the eastern seg-
ment of the trafficway for public comment. After a public
hearing on the draft SEIS, SEIS process stalled because
the FHWA, KDOT, and Douglas County were unable to
reach an agreement on the alignment of the eastern leg.
In February 1997, KDOT, in an attempt to expedite
the project, forwarded to the FHWA an agreement
between KDOT and Douglas County to construct the
eastern leg of the trafficway as a nonfederal project,
without the use of federal-aid highway funds. On March
ET LPR BERR LN a I
App. 13
6, 1997, the FHWA published a notice in the Federal
Register withdrawing the Notice of Intent to complete an
SEIS.
On March 12, 1997, plaintiffs filed their complaint
seeking to enjoin further action on the project. On March
15, 1997, this court granted a preliminary injunction. Fol-
lowing a hearing on May 2, 1997, the court issued a
permanent injunction preventing the FHWA, KDOT, and
Douglas County from taking further action on the eastern
leg of the trafficway pending completion of the SEIS
process, issuance of a final SEIS, and entry of a new
Record of Decision. Applying the arbitrary and capri-
cious standard of review set forth in § 706(2)(A) of the
Administrative Procedure Act, the court concluded that
defendants violated NEPA by not completing the SEIS.
Defendants appealed to the United States Court of
Appeals for the Tenth Circuit. The Tenth Circuit affirmed
this court’s decision. As prevailing parties,! plaintiffs
now move for attorneys’ fees and costs.
II. DISCUSSION
Pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412, and Fed. R. Civ. P. 54(d), plaintiffs seek attorneys’
fees and costs from both the federal and state defendants.
The court concludes that plaintiffs are not entitled to
recover attorneys’ fees or costs from any defendant.
1 It is undisputed that plaintiffs are prevailing parties.
App. 14
A. Attorneys’ Fees From Federal Defendants
Plaintiffs seek attorneys’ fees from the federal defen-
dants pursuant to § 2412 of the Equal Access to Justice
Act (“EAJA”). The relevant provision of the EAJA pro-
vides:
Except as otherwise specifically provided
by statute, a court shall award to a prevailing
party other than the United States fees and other
expenses . . . incurred by that party in any civil
action . . . brought by or against the United
States in any court having jurisdiction of that
action, unless the court finds that the position of
the United States was substantially justified or
that special circumstances make an award
unjust.
28 U.S.C. § 2412(d)(1)(A). In determining whether the
government’s position was “substantially justified,” the
court must look to the “action or failure to act by the
agency upon which the civil action is based” and “to the
position taken by the United States in the civil action.”
See id. § 2412(d)(2)(D). “[T]he test of substantial justifica-
tion is essentially one of reasonableness in both law and
fact.” United States v. 2,116 Boxes of Boned Beef, 726 F.2d
1481, 1486-87 (10th Cir. 1984). In the Tenth Circuit, “the
reasonableness test breaks down into three parts: the
government must show ‘that there is a reasonable
basis . . . for the facts alleged . . . , that there exists a
reasonable basis in law for the theory it propounds; and
that the facts alleged will reasonably support the legal
theory advanced.’ ” Gatson v. Bowen, 854 F.2d 379, 380
(10th Cir. 1988) (quoting 2,116 Boxes of Boned Beef, 726 F.2d
at 1487).
App. 15
In the instant case, the Tenth Circuit held on appeal
that the FHWA acted arbitrarily and capriciously when it
discontinued the SEIS process and withdrew from the
completion of the trafficway. The appellate court’s find-
ing of arbitrary and capricious conduct, however, does
not, in and of itself, mandate an EAJA award. “The legis-
lative history of the [EAJA] indicates that the substantial
justification standard ‘should not be read to raise a pre-
sumption that the Government position was not substan-
tially justified, simply because it lost the case.’ ” Cohen v.
Bowen, 837 F.2d 582, 585 (2d. Cir. 1988) (quoting H.R. Rep.
No. 96-1418, 96th Cong., 2d. Sess., at 11 (1980), reprinted
in 1980 U.S.C.C.A.N. 4984, 4990). “Rather, the standard is
intended to caution agencies to carefully evaluate their
case and not to pursue those which are weak or tenuous.
At the same time, the language of the section protects the
government when its case, though not prevailing, has a
reasonable basis in law and fact.” Id. (citing H.R. Rep.
96-1418, at 14, 1980 U.S.C.C.A.N. at 4993). Thus, even
after a merits determination that an agency’s conduct was
arbitrary and capricious, the government may establish
that its position was substantially justified by showing
that it had a reasonable basis in law and fact.
The federal defendants argue in the instant case that
the FHWA’s decision to discontinue the NEPA process,
specifically the SEIS, was reasonable and, therefore, sub-
stantially justified. At both the district and appellate
court level, the federal defendants argued that the FHWA
was not required to perform an SEIS because the eastern
segment of the trafficway was not a “major federal
action” as defined by NEPA. Pursuant to NEPA, federal
agencies are required to prepare, inter alia, environmental
App. 16
impact statements for major federal actions in order to
investigate and consider the environmental consequences
of proposed federal activities on the human environment.
If the federal defendants had a reasonable basis in law
and fact for arguing that the eastern leg of the trafficway
was not a major federal action, the government’s position
was substantially justified.2
Both the FHWA’s decision to withdraw from the con-
struction of the eastern segment of the trafficway and the
government's legal arguments are based on case law gov-
erning in 1997, specifically Village of Los Ranchos de Albu-
guergue v. Barnhart, 906 F.2d 1477 (10th Cir. 1990).
According to the federal defendants, the FHWA with-
drew from the construction of the eastern segment
because it believed that, under its reading and interpreta-
tion of Village of Los Ranchos and other federal appellate
court case law, the eastern segment of the trafficway was
not a “major federal action” because it was to be com-
pleted without the use of further federal funds and
2 As stated above, the court must consider both the “action
or failure to act by the agency upon which the civil action is
based” and “the position taken by the United States in the civil
action.” See 28 U.S.C. § 2412(d)(2)(D). In the instant case, an
analysis of the reasonableness of the FHWA’s decision to
withdraw from the construction of the eastern segment and to
not complete the SEIS directly parallels an analysis of the
government’s legal position in this civil action. The
reasonableness of both hinge on the application of the
undisputed facts to the same case law. The court, therefore, need
not address both aspects of the government’s position
separately, and will collectively refer to the agency action and
the government's legal position as “the government’s position.”
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App. 17
because the FHWA no longer had the authority to exer-
‘cise control in the planning or construction of the seg-
ment.
After reviewing the facts underlying the parties’ con-
flict and the case law governing in 1997, specifically
Village of Los Ranchos, the court concludes that there was a
reasonable basis for the facts alleged by the federal defen-
dants, that there existed a reasonable basis in law for the
federal defendant's legal theory, and that the facts alleged
reasonably supported their legal theory. See Gatson, 854
F.2d at 380. Accordingly, the government’s position was
reasonable and, therefore, substantially justified.
B. Attorneys’ Fees From State Defendants
Plaintiffs seek attorneys’ fees from the state defen-
dants pursuant to Fed. R. Civ. P. 54(d). To successfully
seek attorneys’ fees under Fed. R. Civ. P. 54(d), a moving
party must “specify . . . the statute, rule, or other grounds
entitling the moving party to the award.” In the instant
case, plaintiffs argue that they are entitled to attorneys’
fees under 42 U.S.C. § 1988. The court disagrees. Section
1988(b) only authorizes the award of attorneys’ fees
expended in actions to enforce the provisions of 42 U.S.C.
§§ 1981, 1981a, 1982, 1983, 1985, 1986, & 13981, 20 U.S.C.
§ 1681 et seq., 42 U.S.C. § 2000bb et seq., and 42 U.S.C.
§ 2000d et seq. Plaintiffs’ underlying action is based on
none of these provisions. Accordingly, plaintiffs request
for attorney’s fees pursuant to Fed. R. Civ. P. 54(d) is
denied.
App. 18
C. Costs From All Defendants
Plaintiffs also seek costs from both state and federal
defendants pursuant to Fed. R. Civ. P. 54(d). D. Kan. Rule
54.1 provides:
The party entitled to recover costs shall file a
bill of costs within 30 days (a) after the expira-
tion of time allowed for appeal of a final judg-
ment or decree, or (b) after receipt by the clerk
of an order terminating the action on appeal... .
The failure of a prevailing party to timely file a
bill of costs shall constitute a waiver of any
claim for costs.
Because plaintiffs did not file a bill of costs within 30
days after final judgment in the instant case, they have
waived any claim for costs under Fed. R. Civ. P. 54(d) and
D. Kan. Rule 54.1.
IT IS, THEREFORE, BY THE COURT ORDERED that
plaintiffs motion (Doc. 65) for attorneys’ fees and costs is
denied.
The clerk shall mail copies of this order to counsel of
record.
IT IS SO ORDERED.
Dated at Kansas City, Kansas, this 24 day of May
1999.
/s/ G. T. VanBebber
G. T. VanBebber
United States District Judge
App. 19
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THOMASINE ROSS, et al., )
a )
Plaintiffs, , CIVIL ACTION
vs. ) No. 97-2132-GTV
FEDERAL HIGHWAY )
ADMINISTRATION, et al.,
Defendants. )
)
ORDER_
(Filed Jul. 14, 1999)
Plaintiffs brought this action seeking declaratory and
injunctive relief against defendants for their failure to
comply with the National Environmental Policy Act of
1969 (“NEPA”), 42 U.S.C. § 4321 et seq., in the planning
and construction of the eastern leg of the South Lawrence
Trafficway. After an evidentiary hearing, the court found
in favor of plaintiffs, and enjoined defendants from tak-
ing any action or expending any funds to complete the
eastern leg of the trafficway. On appeal, the court’s order
was affirmed. See Ross v. Federal Highway Admin., 162 F.3d
1046 (10th Cir. 1998). Plaintiffs then moved for attorneys’
fees and costs pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, and Fep. R. Cr. P. 54(d).
Because the court concluded that the federal defendants’
decision to discontinue the NEPA process was substan-
tially justified, plaintiffs motion for fees was denied. The
court also denied plaintiffs’ request for fees from the state
defendants due to plaintiffs’ failure to specify a statue
App. 20
[sic], rule, or other grounds authorizing such an award.
Finally, the court denied plaintiffs’ request for costs
because plaintiffs failed to comply with the provisions of
D. Kan. Rule 54.1. The case is before the court on plain-
tiffs’ motion (Doc. 76) to alter or amend judgment pur-
suant to Fed. R. Civ. P. 59(e).
A motion to alter or amend judgment pursuant to
Fed. R. Civ. P. 59(e) may be granted only if plaintiffs can
establish: (1) an intervening change in controlling law; (2)
the availability of new evidence that could not have been
obtained previously through the exercise of due dili-
gence; or (3) the need to correct clear error or prevent
manifest injustice. Brumark Corp. v. Samson Resources
Corp., 57 F.3d 941, 948 (10th Cir. 1995). Plaintiffs proceed
exclusively on the third prong. In analyzing this issue,
the court must bear in mind that motions to alter or
amend judgment are regarded with disfavor and gener-
ally granted only if the court has obviously misap-
prehended a party’s position or the facts. Eichenwald v.
Krigel’s, Inc., 908 F. Supp. 1531, 1564-65 (D. Kan. 1995).
With the above standards in mind, the court con-
cludes that it did not misapprehended plaintiffs’ argu-
ment and that it correctly applied the facts of the case to
the relevant law. The court’s order denying plaintiffs’
motion for fees and costs was not erroneous. Accordingly,
plaintiffs’ motion to alter or amend is denied.
IT IS, THEREFORE, BY THE COURT ORDERED that
plaintiffs’ motion (Doc. 76) to alter or amend judgment is
denied.
The case is closed.
App. 21
The clerk shall mail copies of this order to counsel of
record.
IT IS SO ORDERED.
Dated at Kansas City, Kansas, this 14 day of July
1999.
/s/ G. T. VanBebber
G. T. VanBebber
United States District Judge
App. 22
United States District Court,
D. Kansas.
Thomasine ROSS, Stanley Ross, Anjanette Bitsie,
Pamina Yellowbird, Jason Daniels, Wetlands
Preservation Organization, and Kansas University
Environs, Plaintiffs,
Vv.
FEDERAL HIGHWAY ADMINISTRATION; David
Geiger, Division Administrator, Federal Highway
Administration; Mark Buhler, Tom Taul, Dean Neider,
Douglas County, Kansas Commissioners; and E. Dean
Carlson, Secretary of the Kansas Department of
Transportation, Defendants.
Civil Action No. 97-2132-GTV.
July 17, 1997.
Robert V. Eye, Irigonegaray & Associates, Topeka,
KS, Bruce M. Plenk, Lawrence, KS, for plaintiffs.
Helen Mountford, Federal Highway Administration,
Kansas City, MO, Jackie A. Rapstine, Office of U.S. Attor-
ney, Topeka, KS, for Federal Highway Administration,
Division Administrator of Federal Highway Administra-
tion.
Timothy P. Orrick, Mark Parkinson, Parkinson, Foth
& Reynolds, Lenexa, KS, for Commissioners of Douglas
County, Kansas.
Daniel D. Crabtree, Stinson, Mag & Fizzell, P.C.,
Overland Park, KS, Vicky S. Johnson, Michael B. Rees,
Office of Chief Counsel, Gelene D. Savage, Kansas Dept.
of Transp., Topeka, KS, Stephen P. Chinn, Patricia A.
Konopka, Stinson, Mag & Fizzell, P.C., Kansas City, MO,
for Secretary of Kansas Dept. of Transp.
App. 23
MEMORANDUM AND ORDER
VAN BEBBER, Chief Judge.
In this case, plaintiffs allege that defendants are vio-
lating the National Environmental Policy Act (NEPA),
specifically 42 U.S.C. §§ 4331-4335, by continuing con-
struction of the South Lawrence Trafficway in Douglas
County, Kansas prior to completing a supplemental envi-
ronmental impact statement (SEIS). In their amended
complaint, plaintiffs seek judicial review pursuant to the
Administrative Procedures Act (APA), 5 U.S.C. § 701 et
seqg., mandamus relief pursuant to 28 U.S.C. § 1361,)
declaratory relief pursuant to 28 U.S.C. § 2201, and
injunctive relief pursuant to 28 U.S.C. § 2202. For the
reasons set forth below, the court finds that it has subject
matter jurisdiction and is, therefore, prepared to rule
upon the merits of the case. Accordingly, the court issues
an injunction prohibiting defendants from taking any
action or expending any funds to complete the eastern leg
of the Trafficway before completing the SEIS process,
issuing a final SEIS, and entering a-new Record of Deci-
sion.
Procedural Background
Plaintiffs filed their complaint and motion for prelim-
inary injunction on March 12, 1997.2 At a March 28, 1997
1 “The availability of a remedy under the APA technically
precludes [plaintiffs’] request for a writ of mandamus.” Mt.
Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997).
2 There have been two previous cases involving the
Trafficway. In Northern Crawfish Frog (Rana Areolata Circulosa) v.
App. 24
hearing, the court focused upon plaintiffs’ claims against
the Federal Highway Administration and Division
Administrator David Geiger (federal defendants) to
determine if the court has subject matter jurisdiction.
NEPA applies to federal agencies undertaking “major
federal actions significantly affecting the quality of the
human environment”. 42 U.S.C. § 4332(2)(C); see Village of
Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1480
(10th Cir.1990) (“The requirements of NEPA apply only
when the federal government’s involvement in a project
is sufficient to constitute ‘major federal action.’”). The
court, therefore, observed that its subject matter jurisdic-
tion is contingent upon a finding of “major federal
action” in the Trafficway not yet constructed.
At the March 28 hearing, the court also commented
that plaintiffs seeking to enforce the procedural require-
ments of NEPA, which contains no private cause of
action, are subject to the APA’s judicial review provisions.
See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882-83,
110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990); Committee
to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th
Federal Highway Admin., 858 F.Supp. 1503 (D.Kan.1994), the
plaintiffs requested an injunctive order halting acquisition of
right-of-way and construction activity of the Trafficway until
the Federal Highway Administration (FHWA) adopted a new
route that did not require taking protected park land, and until
the FHWA prepared and approved a supplemental
environmental impact statement. Judge Crow granted the
FHWA’s motion for summary judgment. In Kansas Natural
Resource v. Federal Highway Admin., No. 95-2495-GTV (D.Kan.
Nov. 9, 1995), the court denied the plaintiffs’ preliminary
injunction motion for a “town hall” rather than the scheduled
“open house” public hearing.
App. 25
Cir.1996); Catron County Bd. of Comm'rs v. United States
Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir.1996);
Southern Utah Wilderness Alliance v. United States Forest
Serv., 897 F.Supp. 1394, 1397 n. 1 (D.Utah 1995). The court
concluded that federal defendants’ actions at issue would
be reviewed under the APA and modified the briefing
schedule outlined in D.Kan.R. 83.7 to accommodate the
final hearing scheduled for early May. (Doc. 14.) The
court then authorized a preliminary injunction (Doc. 12),
which was memorialized in an order filed April 15, 1997
(Doc. 21).
The court conducted a final hearing on May 2, 1997,
during which the court noted that its subject matter juris-
diction is intertwined with the merits of the action.
Accordingly, both the merits of plaintiffs’ claims against
federal defendants as well as the court’s subject matter
jurisdiction over plaintiffs’ claims revolve around federal
defendants’ conclusion that the unconstructed Trafficway
involved no “major federal action.”> If jurisdiction is
lacking, the court noted that it would dismiss federal
defendants and that it lacked authority to exercise sup-
plemental jurisdiction over the state and local defen-
dants. See Tatum v. Everhart, 954 F.Supp. 225, 230
(D.Kan.1997). At the conclusion of the May 2 hearing, the
3 At the May 2 hearing, the court granted plaintiffs’
uncontested motion for leave to file an amended complaint in
which plaintiffs allege the APA as a jurisdictional basis,
correcting their previous oversight. See Committee to Save the Rio
Hondo, 102 F.3d at 448 (plaintiffs seeking to enforce NEPA’s
procedural requirements must rely upon the APA as the basis
for their action).
App. 26
court continued the preliminary injunction pending sub-
mission of additional briefing by the parties and the
court’s resolution of the issues contained therein. (Doc.
33.)
The case is now before the court to determine subject
matter jurisdiction and, upon a finding of jurisdiction, the
merits of issuing an injunction. The court has considered
the arguments of counsel and the evidentiary submis-
sions. Judicial review under the APA is limited to the
administrative record with limited exceptions. The excep-
tion pertinent here is the necessity for background infor-
mation. See Northern Crawfish Frog (Rana Areolata
Circulosa) v. Federal Highway Admin., 858 F.Supp. 1503,
1508 n. 6 (D.Kan.1994) (citations omitted). Accordingly,
the court bases its factual findings upon the administra-
tive record in this case as well as uncontroverted findings
from Northern Crawfish Frog, a previous case involving the
Trafficway.
Pursuant to Fed.R.Civ.P. 52(a), the court makes the
following findings of fact and conclusions of law.
Findings of Fact
1. Interest in a southern bypass trafficway around
Lawrence began in 1964, and numerous studies were
conducted by consultants as well as local, state, and
federal agencies.
2. In April 1986, the Federal Highway Administra-
tion (FHWA) became involved in the Trafficway project
and informed Douglas County and the Kansas Depart-
ment of Transportation (KDOT) that eligibility for federal
App. 27
funding necessitated preparation of an environmental
impact statement (EIS). On June 23, 1986, the FHWA
published a Notice of Intent to Prepare an EIS for the
Trafficway in the Federal Register.
3. The Trafficway was conceived as a federal-aid
highway project jointly funded by local, state, and federal
monies. In a federal-aid highway project, state and local
officials contract for the actual planning and construction
work, subject to the FHWA’s oversight. The FHWA reim-
burses the state for eligible costs expended on contracts
into which state and local officials have entered.
4. On January 4, 1990, the FHWA approved and
released to the public a final EIS. On June 5, 1990, the
FHWA issued a Record of Decision, selecting the route
for the eastern leg of the Trafficway along the existing
31st Street in the City of Lawrence. On April 22, 1993, the
United States Army Corps of Engineers (Corps) issued a
section 404 permit pursuant to the Clean Water Act for
the 31st Street route.*
5. In July and October 1993, representatives of
Haskell Indian Nations University expressed concern
about the 31st Street alignment that is adjacent to the
Haskell campus. Following a Haskell Board of Regents’
resolution opposing the 31st Street alignment, the FHWA,
KDOT, and Douglas County determined that a SEIS was
4 The Clean Water Act provides that dredge or fill material
may not be discharged into waterways, including wetlands,
without a section 404 permit from the Corps. See 33 U.S.C.
§ 1344(a).
App. 28
needed to address Haskell’s spiritual, academic, and
development concerns.
6. In April 1994, to facilitate construction phasing
and available funding limits, KDOT requested that
FHWA allow segmentation of the Trafficway. In May
1994, the FHWA approved KDOT’s request to divide the
Trafficway into four segments with three segments on the
western leg (Kansas Turnpike south to U.S. 40, U.S. 40
south to Clinton Parkway, and Clinton Parkway south
and west to U.S. 59) and the remaining segment being the
eastern leg, east of U.S. 59. Citing 23 C.F.R. § 771.111(f),
the FHWA determined that segmentation provided logi-
cal termini, that each segment had independent utility,
and that construction of the western segments would not
foreclose alternatives for the eastern segment. The three
segments of the western leg of the Trafficway have been
constructed and are carrying traffic.
7. On October 17, 1994, the FHWA published a
Notice of Intent to Prepare a SEIS to address Haskell’s
concerns. Department of Transportation Notice, 59
Fed.Reg. 52,360 (1994). Approximately one year later, on
October 2, 1995, a draft SEIS addressing the eastern leg of
the Trafficway was released for public comment. On
November 8, 1995, a public hearing was held, at which
over 633 people attended. There were 280 written com-
ments, 180 oral comments, and 5 petitions submitted.
8. Cooperating agencies never reached agreement
on a preferred alignment to 31st Street. On October 29,
1996, FHWA, Corps, KDOT, and Douglas County dis-
cussed defederalizing the project.
App. 29
9. On December 9, 1996, Douglas County wrote the
FHWA, commenting that the SEIS process was “dead-
locked” and that the FHWA had yet “to take a stand in
writing on any of the three alignments.” (Administrative
Record Ex. 16.) Douglas County asked that the “FHWA
give [its] position in writing and recommend a method to
conclude the SEIS process.” (AR Ex. 16.)
10. On January 10, 1997, KDOT and Douglas
County entered into an agreement to construct the east-
ern leg of the Trafficway without federal funds. On Feb-
ruary 10, 1997, KDOT informed the FHWA of KDOT and
Douglas County’s agreement, stating that KDOT hoped
this information resolved “the question of any further
involvement by the [FHWA].” (AR Ex. 19.)
11. On February 4, 1997, plaintiffs’ counsel wrote
federal defendants and others, asking that the FHWA and
Environmental Protection Agency (EPA) take “steps to
prevent the expenditure of any additional funds or the
undertaking of any construction activities by Douglas
County and/or KDOT” on the eastern leg of the Traffic-
way “until the completion of the [SEIS] and the filing of a
new Record of Decision determining an alignment based
on the [SEIS].” (AR Ex. 18.)
12. On February 14, 1997, the EPA wrote the FHWA,
acknowledging that the EPA’s statutory authority to pre-
vent expenditure of funds prior to completion of the SEIS
was limited. Nonetheless, EPA shared its belief that “the
NEPA process should be completed... . “> (AR Ex. 17.)
5 Although the letter is dated January 14, 1997, federal
defendants allege that the date was actually February 14, 1997.
App. 30
13. On February 21, 1997, the FHWA responded to
plaintiffs’ counsel's letter, stating that KDOT and Douglas
County had agreed to complete the eastern leg of the
Trafficway without federal funds and that such agree-
ment was in accord with 23 U.S.C. § 145, which autho-
rizes states to decide which highway projects will include
federal funding. Division Administrator David Geiger
concluded the letter, observing: “Since no Federal-aid
highway funds will be used on the proposed project, we
know of no provision in any applicable Federal law or
regulation that would allow FHWA to take any of the
actions you have requested.” (AR Ex. 22.)
14. Also on February 21, 1997, FHWA informed
Douglas County that, based upon the agreement between
Douglas County and KDOT, “the FHWA will no longer be
the lead federal agency for the project.” (AR Ex. 21.) On
March 6, 1997, FHWA published a Notice of Withdrawal
of Intent to Complete a Supplement to the Final EIS in the
Federal Register, citing KDOT and Douglas County’s
agreement not to use federal funds for the project.
“Therefore, FHWA is no longer the lead Federal agency
for this project and is discontinuing the Supplemental
6 Federal defendants contend that they anticipated that
KDOT and Douglas County would request additional federal
funds for the eastern leg of the Trafficway. This contention is
based upon an August 24, 1995 letter on FHWA letterhead to
Beverley Worster of the Coalition to Preserve Our Wetlands,
stating that KDOT “plans to use Federal-aid funds for
construction of the trafficway, but is using only State funds for
preliminary engineering and right-of-way acquisition.” (AR Ex.
11.)
rm ile
App. 31
‘
Environmental document process.” Department of Trans-
portation Notice, 62 Fed.Reg. 10,305 (1997).
15. Also on March 6, 1997, the Corps wrote Douglas
County, noting that since the FHWA’s withdrawal, the
“Corps is the only Federal agency with statutory author-
ity for the remaining work,” but that its role “is more
focused than the FHWA role because [its] authority is
limited to [its] Clean Water Act jurisdiction.” (AR Ex. 23.)
16. Federal funds in the amount of $10,404,040 have
been expended on the Trafficway. All federal funds, with
the exception of the $108,300 spent on the Santa Fe Mit-
igation Site,?7 have been expended on the western seg-
ments.
17. On March 12, 1997, plaintiffs filed the above-
captioned case, alleging that defendants’ defederalization
of the eastern leg of the Trafficway is an attempt to
circumvent the mandates of NEPA. Plaintiffs seek a
declaratory judgment that defendants must complete the
SEIS process and issue a new Record of Decision prior to
planning, expending, or contracting for the expenditure
of funds on the eastern leg of the Trafficway. Plaintiffs
also seek injunctive relief that prohibits defendants from
planning, expending, or contracting for the expenditure
of funds on the eastern leg of the Trafficway prior to
7 Mitigation of 11.89 acres that the 31st Street alignment
would impact has been accomplished at a triangular area north
of 35th Street and east of Haskell. The construction of a water
level control device in this area has the potential of flooding 15.3
acres in the off-site location. This creation of wetlands resulted
in a net gain of 3.41 acres of wetlands.
App. 32
completing the SEIS process, issuing a new Record of
Decision, and entry of a new Record of Decision.
Conclusions of Law
I. Subject Matter Jurisdiction
As previously noted, the court first must address the
question of subject matter jurisdiction. “A court lacking
jurisdiction . . . must dismiss the cause at any stage of the
proceeding in which it becomes apparent that jurisdiction
is lacking.” Laughlin v. Kmart Corp., 50 F.3d 871, 872 (10th
Cir.) (internal quotations and citation omitted), cert.
denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995);
see Fed.R.Civ.P. 12(h)(3). Federal courts are courts of lim-
ited jurisdiction. The party seeking the federal forum
must establish the basis for the court’s jurisdiction. United
States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548,
551 (10th Cir.1992). United States district courts have
original jurisdiction over actions arising under the laws
of the United States. 28 U.S.C. § 1331. Here, plaintiffs seek
an APA review of federal defendants’ actions allegedly in
violation of NEPA.
A. APA
Under the APA, “{a] person suffering legal wrong
because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5
U.S.C. § 702; see Catron County Bd. of Comm'rs, 75 F.3d at
1434 (citing Lujan v. National Wildlife Fed’n, 497 U.S. 871,
882-83, 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990)).
Plaintiffs seek an APA review of federal defendants’
App. 33
actions (1) discontinuing the SEIS and thereby ending the
NEPA process for the eastern leg of the Trafficway, (2)
withdrawing as lead NEPA agency without arranging for
another federal agency to complete the NEPA process,
and (3) modifying the previously filed Record of Decision
for the Trafficway. (Doc. 20, at 12.) The APA authorizes
the reviewing court to “compel agency action unlawfully
withheld” and to “hold unlawful and set aside agency
actions, findings, and conclusions,” which the court finds
to be, as plaintiffs allege here, “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(1), § 706(2)(A); see Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 492, 415-16, 91 S.Ct.
814, 823-24, 28 L.Ed.2d 136 (1971) (scope of APA judicial
review of agency action); Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1573-75 (10th Cir.1994) (same).
B. NEPA
Congress enacted NEPA “to protect and promote
environmental quality. To ensure this protection, [NEPA]
establishes ‘action forcing’ procedures the agencies must
follow, such as requiring an agency to prepare either an
[EIS] or a [SEIS] under certain circumstances.” Committee
to Save the Rio Hondo, 102 F.3d at 448 (citing 42 U.S.C.
§§ 4331(a-c), 4332(2)(C)(i-v)); 40 C.ER. § 1502.9(c)(1)(i))-
An EIS or a SEIS details “the environmental in.pact of the
action; unavoidable adverse environmental effects; alter-
natives to the action; relationship between the short-term
uses and long-term productivity of the affected environ-
ment; and irretrievable and irreversible commitments of
resources should the action be implemented.” Catron
County Bd. of Comm'rs, 75 F.3d at 1434 (citing 42 U.S.C.
App. 34
§ 4332(2(c)(i-v)). One purpose of the EIS or SEIS is to
allow “critical evaluation of an agency’s actions by those
outside the agency.” Id. (citation omitted). NEPA man-
dates a particular process, not a particular outcome. Com-
mittee to Save the Rio Hondo, 102 F.3d at 448; Sierra Club v.
Marsh, 872 F.2d 497, 502 (1st Cir.1989).
As previously noted, NEPA can be invoked only if
major federal action has affected significantly the quality
of the human environment. 42 U.S.C. § 4332(2)(C). The
Tenth Circuit has construed the implementing regulations
defining major federal action “to encompass not only
actions by the federal government but also nonfederal
actions ‘ “with effects that may be major and which
are potentially subject to Federal control and respon-
sibility.” ’” Village of Los Ranchos de Albuquerque, 906 F.2d
at 1482 (quoting Sierra Club v. Hodel, 848 F.2d 1068, 1089
(10th Cir.1988) (citing 40 C.FR. § 1508.18)).
C. Discussion
Under an APA review, “an agency’s action must be
upheld, if at all, on the basis articulated by the agency
itself.” Olenhouse, 42 F.3d at 1575 (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mvt. Ins. Co., 463 U.S. 29, 50, 103
S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983)); see Industrial
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S.
607, 631 n. 31, 100 S.Ct. 2844, 2858, 65 L.Ed.2d 1010 (1980).
According to the administrative record before the court,
federal defendants withdrew from the project because
KDOT and Douglas County agreed not to use federal-aid
highway funds for the eastern leg of the Trafficway (with
the exception of the $108,000 spent on the mitigation site).
XL
~
A ie Det RA EME Het a's 9
App. 35
Federal defendants determined there was no major fed-
eral action because there would be no federal funding of
the eastern leg. Such determination was in accord with 23
U.S.C. § 145, according to federal defendants, because “it
is the State’s decision to determine on ‘vhich projects [the
State] will use [its] limited Federal-aid highway funds.”
(AR Ex. 22.) Section 145, which is part of the Federal-Aid
Highway Act, 23 U.S.C. § 101 et seq., states: “The authori-
zation of the appropriation of Federal funds or their
availability for expenditure under this chapter shall in no
way infringe on the sovereign rights of the States to
determine which projects shall be federally financed. The
provisions of this chapter provide for a federally assisted
State program.”
The Federal-Aid Highway Act provides “financial
aid for approved state highway construction projects.”
Miller v. United States, 710 F.2d 656, 659 (10th Cir.1983).
“The states own, construct, and maintain the highways
which form the federal-aid highways within their bor-
ders. The statutory and regulatory criteria for federal-aid
highway funding is an elaborate, intricate scheme.” Save
Barton Creek Ass’n v. Federal Highway Admin., 950 F.2d
1129, 1134 n. 6 (5th Cir.1992). Based upon these criteria,
the FHWA apportions the authorized money in the form
of certificates among the states. Mike Mills, Highway Bill
Debates Becomes War Between the States, Cong.Q. 1487,
1487-88 (June 8, 1991). A state seeking federal-aid high-
way funds must submit proposed projects for approval.
Miller, 710 F.2d at 659-60. The FHWA is responsible for
administering the federal-aid highway program, but
“does not plan, design or locate highways.” No East-West
App. 36
Highway Comm., Inc. v. Whitaker, 403 F.Supp. 260, 273-74
(D.N.H.1975).
On April 2, 1987, Congress allocated funds for the
Trafficway as a demonstration and priority highway pro-
ject
in Douglas County, Kansas, to demonstrate
methods of reducing traffic congestion and facil-
itating the usage by motorists on the Interstate
System of recreational facilities by construction
of a north-south limited access trafficway of
approximately 4 miles in length which will con-
nect an east-west interstate route to a reservoir
and a university research park.
Surface Transportation and Uniform Relocation Assis-
tance Act of 1987 (STURAA), Pub.L. No. 100-17,
§ 149(a)(72), 1987 U.S.C.C.A.N. (101 Stat.) 132, 192. Con-
gress appropriated a total of $7.2 million for the Traffic-
way. Id. § 149(b)(72), § 149(d). On “December 22, 1987,
Congress amended section 149(a)(72) to expand the road
to
approximately 14 miles in length which, at its
western terminus, will provide access from an
east-west Interstate highway route to a reservoir
and a university research park, will proceed
easterly around the southern portion of the City
of Lawrence and, at its eastern terminus, will
provide access to a business park and a limited
access east-west State highway.
Department of Transportation and Related Agencies
Appropriations Act of 1988, Pub.L. No. 100-202, § 345,
1987 U.S.C.C.A.N. (101 Stat.) 1329, 1329-358, 1329-387 to
1329-388. On December 18, 1991, as part of the rural
RET
App. 37
access projects, Congress appropriated an additional $3.3
million for the years 1992 through 1997 for a “Lawrence
Circumferential Roadway.” Intermodal Surface Transpor-
tation Efficiency Act of 1991 (ISTEA), Pub.L. No. 102-240,
§ 1106(a)(2) F 102, 1991 U.S.C.C.A.N. (105 Stat.) 1914,
2041.
Plaintiffs’ key argument is that the Trafficway, a con-
gressionally mandated highway demonstration project,
cannot be defederalized, and that federal defendants’
reliance upon 23 U.S.C. § 145 to discontinue the SEIS
process is contrary to established law. Plaintiffs distin-
guish between demonstration projects and “normal” fed-
eral-aid highway projects, which plaintiffs liken to block
grants: In the latter scenario, the state prioritizes the
projects to submit to the FHWA for approval, and the
allotted apportionment is not designated for any particu-
lar project. In contrast, demonstration projects are specific
highway projects that Congress has selected and are not
within the discretion of state highway departments. See
Where the Money Goes, Cong.Q. 127, 128 (Dec. 7, 1991)
(“[S]tate transportation officials often dislike [demonstra-
tion} projects because they bypass the traditional high-
way funding method of lump-sum grants, which let
states decide how to spend the money. . . . Members of
Congress defend the spending, saying they often know
local road needs better than state transportation offi-
cials.”); Mike Mills, Demonstration Projects Survive in
House Transportation Bill, Cong.Q.2066, 2066 (July 27,
1991) (“Lawmakers increasingly use [demonstration pro-
jects] to steer federal dollars toward specific local road
projects, bypassing the traditional formula funding pro-
cess.”).
App. 38
Plaintiffs contend that because Congress authorized
demonstration funds for the entire fourteen miles of the
Trafficway, the entire Trafficway is major federal action
regardless of how and where the federal funds have been
spent. Plaintiffs claim that state and local officials cannot
spend the federal demonstration funds in a different
manner or on a different project than Congress autho-
rized. See Mike Mills, House Travels Favorite Road to Fund-
ing Local Highways, Cong. Q. 1884, 1884 (July 13, 1991)
(demonstration projects “bypass funding projects prefer-
red by state planners and often leave local governments
with no choice but to scrape together matching funds to
build the projects”). Plaintiffs assert that federal defen-
dants maintain control over the project by virtue of the
Trafficway being a demonstration project. Finally, plain-
tiffs suggest the eastern leg of the Trafficway may be
defederalized only if all federal funds expended on the
entire project are reimbursed to the federal government.
See Ely v. Velde, 497 F.2d 252, 257 (4th Cir.1974); Hall
County Historical Soc’y v. Georgia Dep't of Transp., 447
F.Supp. 741, 752 (N.D.Ga.1978).
In response, federal defendants assert that there is no
major federal action because no federal funds have been
requested or approved for constructing the eastern leg of
the Trafficway and the Trafficway has been segmented
into independent projects.
Federal defendants dispute that demonstration pro-
jects such as the Trafficway are net subject to the state
sovereignty provisions of 23 U.S.C. § 145. Citing STURAA
§ 149(i) and ISTEA § 1106(a)(7), federal defendants argue
that Congress did not intend for these acts to preempt the
Federal-Aid Highway Act, including 23 U.S.C. § 145, or
App. 39
its implementing regulations allowing segmentation, ‘
including 23 C.F.R. § 771.111(f). Under both STURAA and
ISTEA, Congress specified that
[f]unds authorized by this section shall be avail-
able for obligation in the same manner as if such
funds were apportioned under chapter 1 of title
23, United States Code, except that the Federal
share of the cost of any project under this sec-
tion shall be determined in accordance with this
section and such funds shall remain available
until expended. Funds authorized by subsec-
tions (b) and (c) shall not be subject to any
obligation limitation.
STURAA § 149(i); accord ISTEA § 1106(a)(7) (virtually
identical language).
Federal defendants also argue that there is nothing in
STURAA § 149 clearly stating that by accepting demon-
stration funds, the state is prohibited from segmenting
the Trafficway for expenditure and NEPA purposes. See
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24,
101 S.Ct. 1531, 1543, 67 L.Ed.2d 694 (1981) (“Congress
must express clearly its intent to impose conditions on
the grant of federal funds so that the States can know-
ingly decide whether or not to accept those funds.”)
i 1 lh AEA Prieta ie v ied NEES baste Boge! be I abe
Finally, to the extent STURAA and ISTEA are ambig-
uous concerning either the applicability of 23 U.S.C. § 145
or the appropriateness of imposing conditions on federal
funds to states, federal defendants assert that the court
must defer to federal defendants’ statutory interpreta-
tion. See, e.g., Smiley v. Citibank (S.D.), 517 U.S. 735, __
116 S.Ct. 1730, 1733, 135 L.Ed.2d 25 (1996) (“It is our
practice to defer to the reasonable judgments of agencies
th hada lees pier AI Adie hadi a a taht i
A Meine oa
DOD aL TY
App. 40
with regard to the meaning of ambiguous terms in stat-
utes that they are charged with administering.”).
The administrative record does not support federal
defendants’ emphasis on segmentation as a basis for find-
ing no major federal action. The Trafficway was divided
into four segments in 1994 to facilitate construction phas-
ing and available funding limits. Defendants did not
discuss making the eastern leg a non-federal project (i.e.,
defederalizing) until approximately two years after seg-
mentation occurred. The court finds the segmentation
argument to be “[a]fter-the fact rationalization,” upon
which the court cannot rely. Olenhouse, 42 F.3d at 1575
(citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 50, 103 S.Ct.
at 2870).
Neither party cites any case law discussing demon-
stration highway projects in the NEPA context, and the
court has found none. The court, therefore, bases its
decision on the unambiguous statutes at issue here. “If a
statute is clear and unambiguous, the court must inter-
pret the statute to effect the unambiguous intent of Con-
gress, regardless of the interpretation given to the statute
by an administrative agency with responsibility for
enforcement.” Mt. Emmons Mining Co. v. Babbitt, 117 F.3d
1167, 1170 (10th Cir.1997). In such a scenario, the court’s
inquiry ends and the plain meaning of the language is
conclusive except in the rare case not at issue here. See
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42,
109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290 (1989) United
States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 381, 92 L.Ed.
442 (1948).
App. 41
The language of STURAA § 149(i) and ISTEA
§ 1105(a)(7) communicates Congress’ clear intent that
demonstration projects such as the Trafficway be treated
differently than other federal-aid highway projects.®
These provisions dictate that authorized demonstration
funds shall be available in the same manner as authorized
funds under the Federal-Aid Highway Act. STURAA
§ 149(i) and ISTEA § 1105(a)(7) instruct how the funds
will be administered; they do not invoke the state sover-
eignty provision of 23 U.S.C. § 145. To find to the contrary
would eliminate demonstration projects for all intents
and purposes. Although demonstration projects are wan-
ing in popularity, see 143 Cong. Rec. H3358-01, H3370,
§ 338, Sense of the Senate on Highway Demonstration
8 President Reagan vetoed STURAA, voicing his
disapproval of “pork barrel spending” in the form of add-on
funding for 152 highway special interest projects. . . . The total
cost to complete these highway projects is estimated to be $5.5
billion, and they have not even been selected through the
established Federal-aid highway program mechanism that
relies on the expertise of State and local officials. In fact, there is
virtually no hearing record and related analyses regarding the
merits of these projects. The States, not the Congress should
determine their highway program needs.
Reagan Veto Stalls Highway Bill: A Text, Cong.Q. 607, 607 (Apr. 4,
1987). The Senate overrode the presidential veto. Paul Starobin,
Highway Bill Veto Overridden After Close Call in the Senate,
Cong.Q. 604, 604-06 (Apr. 4, 1987). President Bush signed ISTEA
into law, despite his dissatisfaction with the funding of
demonstration projects, which, as one commentator observed,
preempt “some state and local government authority over
project selection by adding 538 demonstration projects not
subject to the review of federal, state, or local governmental
officials.” Robert Jay Dilger, ISTEA: A New Direction for
Transportation Policy, 22 Publius 67, 77 (1992).
App. 42
Projects (June 4, 1997), the virtue of demonstration pro-
jects is not before the court.
Pursuant to STURAA and ISTEA, Congress appropri-
ated over $10 million in demonstration funds for a four-
teen-mile Trafficway, not a four-mile nor a ten-mile
highway. The conditions attached to the grant of federal
funds to the state are unequivocal. The federal funds are
to be expended on the described project. The court finds
that the entire Trafficway is major federal action over
which federal defendants have “ ‘the ability to influence
or control the outcome in material respects.’ ” Village of
Los Ranchos de Albuquerque, 906 F.2d at 1482 (quoting
Sierra Club, 848 F.2d at 1089). Accordingly, the court finds
that federal defendants’ actions at issue were not in
accordance with the law.
Because the entire Trafficway, including the uncon-
structed eastern leg, is major federal action, the court has
subject matter jurisdiction over the case. Before examin-
ing plaintiffs’ request for injunctive relief, the court
briefly will address plaintiffs’ standing to bring the case.
II. Standing
Standing is a threshold issue and jurisdictional requi-
site for bringing a case in federal court, United States v.
McVeigh, 106 F.3d 325, 334 (10th Cir.1997), a “bedrock
requirement,” Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464,
471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). “To meet the
standing requirements of Article III, ‘[a] plaintiff must
allege personal injury fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by
App. 43
the requested relief.’” Raines v. Byrd, 521 U.S. 811, __
117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997) (quoting Allen
v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82
L.Ed.2d 556 (1984)). In addition to constitutional standing
requirements, plaintiffs must establish that final agency
action caused them to suffer “an injury in fact falling
within the ‘zone of interests’ ” that NEPA protects. Com-
mittee to Save the Rio Hondo, 102 F.3d at 448 (citations
omitted).
The court has examined the complaint? and is per-
suaded that plaintiffs have alleged a concrete and partic-
ularized injury capable of being resolved through the
judicial process. The court also finds that plaintiffs have
alleged injury falling within the NEPA-protected “zone of
interests.” See Raines, 521 U.S. at __-__, 117 S.Ct. at
2317-18; Committee to Save the Rio Hondo, 102 F.3d at
447-52. . :
9 According to the allegations in the complaint, the
individual plaintiffs utilize the southern portion of the Haskell
campus, which is adjacent to the proposed 31st Street
alignment, for spiritual practice and solitude, for recreational
use, for aesthetic purposes, and/or for environmental studies.
The membership of plaintiffs Wetlands Preservation
Organization and Kansas University Environs utilizes the
wetlands for spiritual, religious, educational, and
environmental purposes. All plaintiffs allege that completion of
the Trafficway as presently planned will create pollt:tion, litter,
traffic, noise, lights, and other effects, interfering witn their use
of the land.
App. 44
III. Injunction
Having established subject matter jurisdiction and
standing, the court will proceed to the merits of the case.
Plaintiffs ask the court to convert the preliminary injunc-
tion into permanent injunctive relief. If this court should
make its injunction permanent, it would last only as long
as it takes federal defendants to complete the SEIS pro-
cess, issue a final SEIS, and enter a new Record of Deci-
sion.
As evinced in the discussion concerning subject mat-
ter jurisdiction, plaintiffs have demonstrated that the
Trafficway is major federal action and that defendants are
violating NEPA by failing to complete the SEIS process
for the unconstructed portion of the Trafficway. Plaintiffs
have established a statutory violation.
The court, however, “is not mechanically obligated to
grant an injunction for every violation of law.” Weinberger
v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803,
72 L.Ed.2d 91 (1982). It is fundamental “that an injunction
is an equitable remedy that does not issue as of course.”
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107
S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987) (citing Weinberger,
456 U.S. at 311, 102 S.Ct. at 1802-03). Unless the statute in
question, either expressly or by “necessary and inescapa-
ble inference,” limits the court’s equity jurisdiction, issu-
ance of injunctive relief is within the court’s discretion.
Weinberger, 456 U.S. at 313, 102 S.Ct. at 1803-04. Courts
have concluded that NEPA does not limit the court’s
equity jurisdiction. See, e.g., Wilderness Soc’y v. Tyrrel, 701
F.Supp. 1473, 1477 (E.D.Cal.1988), rev'd on other grounds,
App. 45
918 F.2d 813 (9th Cir.1990); Friends of the Earth v. Hall, 693
F.Supp. 904, 948-49 (W.D.Wash.1988).
“In brief, the bases for injunctive relief are irrepar-
able injury and inadequacy of legal remedies. In each
case, a court must balance the competing claims of injury
and must consider the effect on each party of the granting
or withholding of the requested relief.”?° Amoco Prod. Co.,
480 U.S. at 542, 107 S.Ct. at 1402 (citing Weinberger, 456
U.S. at 311-13, 102 S.Ct. at 1802-04). “Environmental
injury, by its nature, can seldom be adequately remedied
by money damages and is often permanent or at least of
long duration, ie., irreparable. If such injury is suffi-
ciently likely, therefore, the balance of harms will usually
favor the issuance of an injunction to protect the environ-
ment.” Id. at 545, 107 S.Ct. at 1404. Additionally, courts
must factor the public interest into the equitable equa-
tion. Id.
Plaintiffs contend that they have no adequate remedy
at law and will suffer irreparable injury if, prior to com-
pletion of the Trafficway’s eastern leg, full consideration
of the environmental impact to their use of the adjacent
lands does not occur. Plaintiffs emphasize the uniqueness
of and the 100-year traditions associated with the land at
issue.
10 The Supreme Court noted that “[t]he standard for a
preliminary injunction is essentially the same as for a
permanent injunction with the exception that the plaintiff must
show a likelihood of success on the merits rather than actual
success.” Amoco Prod. Co., 480 U.S. at 546 n. 12, 107 S.Ct. at 1404
n. 12.
App. 46
The court agrees that construction of the eastern por-
tion of the Trafficway as presently planned will result in a
permanent alteration to the environment. “An environ-
mental injury usually is of an enduring or permanent
nature, seldom remedied by money damages and gener-
ally considered irreparable.” Catron County Bd. of
Comm'rs, 75 F.3d at 1440 (citing Amoco Prod. Co., 480 U.S.
at 545, 107 S.Ct. at 1404).
Plaintiffs also maintain that the additional time
required to finalize a substantially complete draft of the
SEIS is minimal, considering that the Trafficway has been
in the planning stage for over twenty years and in the
environmental review stage for over nine years. Plaintiffs
further allege that completion of the SEIS will not harm
third parties because defendants have not yet purchased
land east of U.S. 59.
Defendants argue that delays in construction run the
potential for increased land and construction costs should
the highway be built later. Plaintiffs dispute that such an
argument outweighs their interests. See Highland Coop. v.
City of Lansing, 492 F.Supp. 1372, 1382 (W.D.Mich.1980)
(“While the delay in a construction project will almost
invariably result in an increase in the eventual costs,
those costs cannot be said to be a substantial harm.”).
Plaintiffs further claim that if a final SEIS recommends a
different route for the eastern portion of the Trafficway,
defendants will save money that would have been spent
on roadway designs and land acquisitions for a “ghost
highway.”
Defendants also suggest that any delay will jeopard-
ize the public safety because existing roads are unable to
App. 47
accommodate the current level of traffic. Public safety is
certainly a concern; however, defendants have not estab-
lished that the danger of existing roadways is so immi-
nent that it outweighs all other concerns.
Plaintiffs assert that it is not in the public interest to
begin construction on one route when the impact state-
ment regarding route selection is pending. See Dickman,
724 F.Supp. at 1348. Such action, according to plaintiffs,
cannot not be in the public interest because such action
violates NEPA public policy and implementing regula-
tions. See Park County Resource Council, Inc. v. United
States Dep't of Agric., 817 F.2d 609, 620 (10th Cir.1987)
(“NEPA . . . reflects an important public policy of this
nation: the avoidance of precipitous federal decision
making at the agency level which may fail to adequately
consider the environmental ramifications of agency
actions.”), overruled on other grounds, Village of Los Ranchos
De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.1992);
Northern Crawfish Frog, 858 F.Supp. at 1506 (° ‘major Fed-
eral actions significantly affecting the quality of the
human environment’ must be preceded by an environ-
mental impact statement”) (internal quotations and cita-
tions omitted); 40 C.F.R. § 1506.1.
Defendants contend that an injunction harms the
public interest because plaintiffs’ true goal is derailment
of the eastern portion of the Trafficway, an objective that
puts public safety at risk. Defendants’ contention is spec-
ulative. Plaintiffs’ satisfaction or dissatisfaction with the
yet-to-be selected route for the eastern leg of the Traffic-
way is not the issue before the court.
App. 48
The court finds plaintiffs’ arguments persuasive.
Plaintiffs have demonstrated their entitlement to injunc-
tive relief.
IT IS, THEREFORE, BY THE COURT ORDERED that
all defendants are enjoined from taking any action and
expending any funds on the eastern leg of the Trafficway
prior to completion of the supplemental environmental
impact statement process, issuance of a final supplemen-
tal environmental impact statement, and entry of a new
Record of Decision.
The case is now closed.
IT IS SO ORDERED.
App. 49
United States Court of Appeals,
Tenth Circuit.
Thomasine ROSS; Stanley Ross; Anjanette Bitsie;
Pamina Yellowbird; Jason Daniels; and Wetlands
Preservation Organization and Kansas University
Environs, Kansas unincorporated associations,
Plaintiffs-Appellees,
V.
FEDERAL HIGHWAY ADMINISTRATION; David
Geiger, in his official capacity as Division
Administrator, Federal Highway Administration;
Mark Buhler, Tom Taul, Dean Nieder, in their official
capacities as County Commissioners of Douglas
County, Kansas; and E. Dean Carlson, in his official
capacity as Kansas Secretary of Transportation,
Defendants-Appellants.
Nos. 97-3240, 97-3278.
Nov. 17, 1998.
Bruce M. Plenk, (Robert V. Eye, of Irigonegaray &
Associates, Topeka, Kansas, with him on the brief), Law-
rence, Kansas, for Plaintiffs-Appellees.
Tamara N. Roundtree, (John A. Bryson, U.S. Depart-
ment of Justice; and Diane K. Mobley, U.S. Department of
Transportation, Federal Highway Administration, Office
of the Chief Counsel, Washington, D.C. with her on the
brief), U.S. Department of Justice, Washington, D.C., for
Defendants-Appellants Federal Highway Commission
and David Geiger.
Michael J. Davis, (Patricia A. Konopka, of Stinson,
Mag & Fizzell, P.C., Kansas City, Missouri; and Michael B.
Rees, Office of Chief Counsel, Kansas Department of
Transportation, Topeka, Kansas, with him on the brief), of
App. 50
Stinson, Mag & Fizzell, P.C., Kansas City, Missouri, for
Defendants-Appellants Kansas Department of Transpor-
tation and Douglas County, Kansas.
Before BALDOCK, McKAY, and HENRY, Circuit
Judges.
BALDOCK, Circuit Judge.
Defendants appeal the district court’s grant of a per-
manent injunction enjoining further action on a segment
of the South Lawrence trafficway in Douglas County,
Kansas, pending the completion of a supplemental envi-
ronmental impact statement (hereafter “SEIS”) and entry
of a new record of decision by the Federal Highway
Administration (hereafter “FHWA”). Defendants argue
that the district court erred in concluding (1) that the
eastern segment of the trafficway, which runs along 31st
Street in Lawrence, Kansas, was a “major federal action”
subject to the requirements of the National Environmen-
tal Policy Act (hereafter “NEPA”); and (2) that § 145 of
the Federal-Aid Highway Act (hereafter “FAHA”) does
not apply to demonstration projects. In the alternative,
Defendants argue that if the project was properly deemed
a major federal action, the district court erred in ordering
an SEIS without allowing the agency to determine
whether NEPA in fact required such action. Our jurisdic-
tion arises under 28 U.S.C. § 1291. We affirm.
he
The development of a southern bypass around Law-
rence, Kansas has taken a long and winding path.
App. 51
Although the idea for a southern bypass around Law-
rence has been under consideration for more than thirty
years, the FHWA became involved in the South Lawrence
Trafficway project in 1986. At that time, local, state and
federal officials began planning the trafficway as a jointly
funded federal-aid highway project. Under the Federal-
Aid Highway Act, states may seek reimbursement for a
percentage of the costs incurred for highway projects. 23
U.S.C. § 101 et. seq. States seeking federal highway funds
must submit to FHiWA a list of proposed transportation
projects. 23 U.S.C. § 105. Upon final approval of the
project and compliance with applicable federal laws and
regulations, including NEPA, FHWA reimburses the state
for a portion of the project’s cost. See 23 U.S.C. § 120; 23
C.E.R. § 1.36; 42 U.S.C. § 4332(2)(C). Thus, in order to be
eligible for federal funding, the state needed to prepare
an environmental impact statement (hereafter “EIS”).
On June 23, 1986, the FHWA published in the Federal
Register a Notice of Intent to Prepare an EIS for the
trafficway. The notice stated that the project “runs east-
west near 31st Street in South Lawrence from K-10 to the
Clinton Dam and north-south from Clinton Dam to the
Kansas Turnpike.” After public comment, FHWA
approved and released to the public a final EIS for the
entire South Lawrence trafficway. The next day, the
FHWA issued a Record of Decision, selecting a route for
the trafficway, which included the eastern leg along 31st
Street. In April 1993, the United States Army Corps of
Engineers issued a permit pursuant to the Clean Water
Act for the 31st Street route, allowing state and county
authorities to discharge dredge or fill material into wet-
lands. See 33 U.S.C. § 1344(a).
App. 52
Congress appropriated $7.2 million in federal fund-
ing for the trafficway on April 2, 1987, and designated the
trafficway as a demonstration project. Surface Transpor-
tation and Uniform Relocation Assistance Act of 1987
(“STURRA”), Pub.L. No. 100-17, § 149(a)(72), 101 Stat.
132, 192 (1987). On December 22, 1987, Congress
amended § 149(a)(72) of STURRA to expand the traffic-
way to:
approximately 14 miles in length, which, at its
western terminus, will provide access from an
east-west Interstate highway [I-70] route to a
reservoir and a university research park, will
proceed easterly around the southern portion of
the City of Lawrence and, at its eastern ter-
minus, will provide access to a business park
and a limited access east-west State highway
[Kansas Highway 10].
Department of Transportation and Related Agencies
Appropriations Act of 1988, Pub.L. No. 100-202, § 345,
101 Stat. 1329 (1987). In 1991, Congress appropriated an
additional $3.3 million for the years 1992 through 1997 for
the trafficway. Intermodal Surface Transportation Effi-
ciency Act of 1991 (ISTEA), Pub.L. No. 102-240,
§ 1106(a)(2), 105 Stat.1914, 2041 (1991). Of these funds,
$108,000 have been expended on the eastern leg of the
trafficway for wetlands mitigation.2 The remainder of the
‘ Demonstration projects, specially earmarked by
Congress, are designed to demonstrate novel road-building
techniques. Cf. Mike Mills, House Travels Favorite Road to Funding
Local Projects, 49 Cong.Q. 1884, 1885 (July 13, 1991).
2 Mitigation of 11.89 acres of wetlands that the 31st Street
alignment would impact was completed with a net gain of 3.41
acres of wetlands.
App. 53
$10.4 million in federal funds authorized for the South
Lawrence trafficway have been spent on the wester
portions.
In July and October 1993, representatives of Haskell
Indian Nation University expressed concerns that the 31st
Street route adjacent to the campus would impact its
property, cultural traditions, and spiritual sites. When the
Haskell Board of Regents passed a resolution opposing
construction of the trafficway along 31st Street, Douglas
County, the Kansas Department of Transportation (here-
after “KDOT”), and FHWA suspended work along the
31st Street portion of the trafficway. FHWA, KDOT and
Douglas County later determined that because the origi-
nal EIS did not consider the University’s concerns, an
SEIS was necessary. Accordingly, on October 17, 1994,
FHWA published a Notice of Intent to Prepare an SEIS.
In April 1994, after Haskell University raised its con- —
cerns about the 31st Street leg of the project, KDOT
requested that FHWA allow the trafficway to be seg-
mented in order to facilitate construction and funding
limits.3 In May 1994, FHWA approved KDOT'’s request to
3 Generally, segmentation of highway projects is improper
for the purpose of preparing environmental documentation. See
Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477,
1483 (10th Cir.1990). A project may be properly segmented,
however, if the segments (1) have logical termini; (2) have
substantial independent utility; (3) do not foreclose the
opportunity tc consider alternatives; and (4) do not
irretrievably commit federal funds for closely related projects.
Id. After determining that the South Lawrence trafficway met
these requirements, FHWA approved segmentation. The parties
do not challenge the segmentation of the trafficway. Therefore,
App. 54
segment the trafficway, with three segments on the west-
ern leg (Kansas Turnpike south to U.S. 40, U.S. 40 south
to Clinton Parkway, and Clinton Parkway south and west
to U.S. 59) and one segment on the eastern leg (east of
U.S. 59 to 31st Street east to K-10). The three segments on
the western leg have since been completed and are in use.
On October 2, 1995, FHWA, KDOT and Douglas
County released a draft SEIS addressing the 31st Street
portion of the trafficway for public comment. On Novem-
ber 8, 1995, Douglas County, FHWA and KDOT held a
public hearing on the draft SEIS. After the hearing, the
SEIS process stalled because FHWA, KDOT and Douglas
County were unable to reach an agreement on the align-
ment of the eastern leg. On December 9, 1996, Douglas
County sent a letter to FHWA, notifying the agency that
the county intended to proceed with the original 31st
Street route for the eastern leg of the trafficway, and
asking FHWA to “give their position in writing and rec-
ommend a method to conclude the SEIS process.” The
letter expressed the county’s frustration with the SEIS
process stating that “[t]he Douglas County Board of
County Commissioners is frankly disappointed that the
efforts of the last three years have not produced an
acceptable alternative to 31st Street. . . . The SEIS process
is deadlocked. FHWA has yet to take a stand in writing
on any of the three alignments. . .. We await your advice
and position but must clearly proceed to complete the
project the County voters approved over six years ago.”
we do not have before us the issue of whether FHWA properly
approved segmentation in this case.
App. 55
Two months later, in February 1997, KDOT, in hopes
of completing the project, forwarded to FHWA an agree-
ment between KDOT and Douglas County to construct
the eastern leg of the trafficway as a nonfederal project,
without the use of federal-aid highway funds. KDOT
stated that the agreement should “resolve the question of
any further involvement by the FHWA [in this project].”
On February 21, 1997, FHWA responded by letter, acqui-
escing to KDOT’s decision to treat the eastern portion of
the trafficway as a local project. In the letter to Douglas
County, Defendant David R. Geiger, FHWA division
administrator, stated that the FHWA “will no longer be
the lead Federal agency for this project. In accordance
with 23 U.S.C. § 145, it is the State’s decision on which
highway projects they will use their limited Federal-aid
highway funds. . . . ” On March 6, 1997, FHWA published
a notice in the Federal Register withdrawing the Notice
of Intent to complete an SEIS.
On March 12, 1997, Plaintiffs filed their complaint
seeking to enjoin further action on the project. On March
15, 1997, the district court granted a preliminary injunc-
tion. Following a hearing on May 2, 1997, the district
court issued a permanent injunction preventing FHWA,
KDOT and Douglas County from taking further action on
the eastern leg of the trafficway pending completion of
the SEIS process, issuance of a final SEIS and entry of a
new Record of Decision. Applying the arbitrary and
capricious standard of review set forth in § 706(2)(A) of
the Administrative Procedure Act (hereafter “APA”), the
district court concluded that Defendants violated NEPA
by not completing the SEIS.
re a renaabenntenbiaeineal
App. 56
Plaintiffs argue that FHWA improperly discontinued
the SEIS process and withdrew from the eastern leg of the
South Lawrence trafficway. We review an agency decision
regarding the need for an SEIS under the arbitrary and
capricious standard of the APA, 5 U.S.C. § 706(2)(A). See
Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1524
(10th Cir.1992). The scope of review under this standard
is narrow, id., and we may not substitute our judgment
for that of the agency. Hoyl v. Babbitt, 129 F.3d 1377, 1383
(10th Cir.1997).
Under the APA, we may set aside the agency’s deci-
sion only if it is arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with the law. 5 U.S.C.
§ 706(2)(A). We must determine whether the agency con-
sidered all relevant factors and whether there has been a
clear error of judgment. Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1574 (10th Cir.1994). Agency action
will be set aside if:
the agency has relied on factors which Congress
has not intended it to consider, entirely failed to
consider an important aspect of the problem,
offered an explanation for its decision that runs
counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co.,
463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Moreover, if agency action was “unlawfully withheld or
unreasonably delayed,” we must compel the agency to
App. 57
take appropriate action. 5 U.S.C. § 706(1); see also Mt.
Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th
Cir.1997). In conducting our review of the agency deci-
sion, we accord no deference to the district court’s deci-
sion. Id.
B.
Congress enacted NEPA to promote environmental
quality. See 42 U.S.C. § 4331(a)-(c). As a means of doing
so, NEPA establishes procedures agencies must follow,
such as preparing an EIS or SEIS. Committee to Save the Rio
Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir.1996). These
procedures ensure that the agency will take a “hard look”
at the effect of its actions. Kleppe v. Sierra Club, 427 U.S.
390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). NEPA
does not mandate a particular outcome, only a specific
process that the agency must follow. Rio Hondo, 102 F.3d
at 448. Compliance with NEPA is required, however, only
if the federal government's involvement in a project con-
stitutes “major federal action.” Los Ranchos, 906 F.2d at
1480; 42 U.S.C. § 4332(2)(C). Thus, in order to determine
whether FHWA acted arbitrarily and capriciously by dis-
continuing the SEIS process and withdrawing from the
completion of the trafficway, we must first decide
whether the trafficway constitutes a major federal action.
We have defined “major federal action” as “actions
by the federal government . . . and nonfederal actions
‘with effects that may be major and which are potentially
subject to Federal control and responsibility.’ ” Los
Ranchos, 906 F.2d at 1482 (quoting Sierra Club v. Hodel, 848
F.2d 1068, 1089 (10th Cir.1988)). In effect, “major federal
App. 58
action” means that the federal government has “actual
power” to control the project. Id.
Defendants argue that the district court erred in con-
cluding that the entire trafficway, including the eastern
leg, remained a “major federal action” after the state
decided not to seek any additional federal funds to con-
struct the eastern leg of the trafficway. Defendants ask us
to consider only the eastern segment of the trafficway in
determining whether a “major federal action” exists.
Defendants argue that because the state will not use
federal funds to complete the eastern segment, the seg-
ment is not a “major federal action” under Los Ranchos
and therefore NEPA does not apply.
Defendants’ argument overemphasizes the segmenta-
tion of the trafficway. Defendants assume that once a
federal-aid highway project is segmented it may be
defederalized, regardless of how far the project has
advanced. Segmentation does not, however, necessarily
convert a trafficway into federal and nonfederal seg-
ments. In this case, Kansas’ argument for “defederaliza-
tion” of the eastern leg is based, not on segmentation, but
instead on the state’s withdrawal, more than two years
after segmentation, from federal funding for the eastern
segment. Likewise, FHWA’s articulated reason for with-
drawing from the project after state and county officials
decided not to use federal funds, was Kansas’ right under
23 U.S.C. § 1454 to determine which highway projects will
4 Title 23 U.S.C. § 145 provides that “[t]he authorization of
the appropriation of Federal funds or their availability for
expenditure under this chapter shall in no way infringe on the
sovereign rights of the States to determine which projects shall
be federally financed.”
App. 59
be federally financed. Therefore, the relevant inquiry on
appeal is whether § 145 authorized state and local offi-
cials, with FHWA approval, to “defederalize” a segment
of a “major federal action” by foregoing federal funding
in order to avoid compliance with NEPA. On the unique
facts of this case, the answer is no.
The South Lawrence Trafficway envisioned and
planned by FHWA, KDOT and Douglas County was
clearly a “major federal action.” Congress appropriated
approximately $10.4 million for the entire fourteen-mile
trafficway. See Los Ranchos, 906 F.2d at 1480 (noting that
courts have found highways major federal actions where
federal funds have been approved or are immediately
sought). In this case, the manner in which the project was
funded strengthens the federal government's “actual
power to control” this project. See id. at 1482. In the
appropriations bill, Congress specifically designated the
trafficway as a demonstration project. See STURRA,
Pub.L. No. 100-17, § 149(a)(72), 101 Stat. 132, 192 (1987).
Funding for demonstration projects: differs from normal
federal-aid highway projects in that the demonstration
funds may only be spent on the specified project. See
Mike Mills, Where the Money Goes, 49 Cong.Q. 127, 128
(Dec. 7, 1991). Indeed, states prefer “normal” highway
funding which allows them to prioritize projects, instead
of demonstration funding which specifies the particular
project on which the money must be spent. Id. Congress’
decision to select the trafficway as a demonstration proj-
ect shows a high degree of federal involvement in this
case. In addition, KDOT and Douglas County sought
federal approval at each stage of the project and spent
more than $10 million in federal funds on the project,
App. 60
including $108,000 on the eastern segment. Therefore, the
district court did not err in concluding that the entire
trafficway is a “major federal action” within the meaning
of 42 U.S.C. § 4332(2)(C).
The question now becomes whether Kansas and
Dovglas County can withdraw a segment of the traffic-
way from federal funding and, as a result, discontinue
the segment’s status as a “major federal action,” circum-
venting the SEIS process already begun. This question
has not been directly addressed by our circuit. The Fifth
and Seventh circuits, however, have concluded that states
may not avoid NEPA’s requirements by withdrawing a
segment of a project from federal funding. San Antonio
Conservation Society v. Texas Highway Dept., 446 F.2d 1013,
1027 (1971) (state cannot circumvent federal laws by con-
structing segment of federal highway project with state
funding); Scottsdale Mall v. State of Indiana, 549 F.2d 484,
489 (7th Cir.1977) (withdrawal of federal funding from a
segment of a “major federal action” does not relieve state
of NEPA compliance).
The facts of this case are very similar to Scottsdale
Mall. In that case, the Indiana State Highway Commission
(hereafter “ISHC”) withdrew a highway project from fed-
eral-aid highway funding and sought to proceed solely
with state funds in the final stages of the project. Id. at
485. By doing so, the state sought to avoid NEPA compli-
ance. Id. The court determined that withdrawal from
federal funding in the project’s final stages did not relieve
the state of its obligation to comply with federal environ-
mental laws. Id. at 489.
ROU cena ane ns neem anartceR NTENNT N e
cm a a I aa cece na” a ES
+
App. 61
The project at issue in Scottsdale Mall was a 28-mile
bypass around the South Bend-Elkhart area in Indiana. Id.
at 486. The by-pass, under consideration for twenty years,
was planned as a federal project in four segments. Id. At
the time of the lawsuit, the state of Indiana had com-
pleted one segment, spending $6.7 million in federal
funds. Id. One of the uncompleted segments was set to
bisect the plaintiff’s property, a shopping mall in South
Bend, Indiana. Id. The plaintiff brought suit, arguing that
the state had not complied with NEPA. Id. at 485. The
state then decided to build the segment without further
federal assistance. Id. at 486. This, the state apparently
argued, relieved it of its duty to comply with NEPA.
Looking to the history of federal-state involvement in the
project, the court concluded that the highway project
“was so imbued” with a “federal character” that the state
had to comply with the federal environmental statutes
even if it withdrew the project from federal funding
participation. Id. at 489. Simply put, “there is a point in
the on-going federal-state relationship under Federal-Aid
Highway Act programming at which the requirements of
NEPA must be met.” Id.
We find the analysis of Scottsdale Mall persuasive. At
the advanced stage of the trafficway project, it was sim-
ply too late for the state of Kansas to convert the eastern
segment into a local project. Since 1986, local, state and
federal authorities scheduled, programmed and worked
on the trafficway as a joint federal-state project. The
federal nature of the trafficway was so pervasive that the
Kansas authorities could not rid the project of federal
involvement simply by withdrawing the last segment of
App. 62
the project from federal funding. See Scottsdale Mall, 549
F.2d at 488.
Defendants assert that § 145 gives the state the
authority to convert the eastern segment into a local
project. See supra n. 3. To be sure, § 145 guarantees to
states the right to select which of many transportation
projects shall receive FAHA assistance. Section 145 does
not, however, authorize states to circumvent compliance
with NEPA by persuading FHWA to withdraw from par-
ticipation in a portion of a selected project. See Scottsdale
Mall, 549 F.2d at 488; see also Los Ranchos, 906 F.2d at 1482
(noting that there was no showing that the local defen-
dants were trying to evade federal environmental
requirements). See Scottsdale Mall, 549 F.2d at 488. In other
words, once the federal government is pervasively
involved in every stage of a federal-aid highway project,
§ 145 does not allow states to withdraw a portion of the
project from federal funding consideration with the
resulting effect of avoiding compliance with federal envi-
ronmental laws. Therefore, the decision by KDOT and
Douglas County not to use additional federal funds on
the eastern leg of the project did not change the funda-
mental nature of this project as a “major federal action”
or relieve the state of its obligation to comply with NEPA.
We do not, however, define the precise point at which a
federal project becomes immutably federal for purposes
of NEPA compliance. We conclude only that the South
Lawrence Trafficway was so imbued with a federal char-
acter that the eastern segment of the project could not be
“defederalized.”
Defendants rely heavily on Los Ranchos, 906 F.2d 1477
(10th Cir.1990), to argue that the eastern segment is not a
App- 63
major federal action. We find nothing in Los Ranchos,
however, which supports Defendants’ decision to
“defederalize” the eastern segment of the South Law-
rence trafficway. Los Ranchos is distinguishable from the
present case because of the nature and degree of federal
involvement with the transportation project at issue in
that case.
In Los Ranchos, FHWA had only preliminary involve-
ment in the project. FHWA’s involvement was limited to
assistance with the preparation of the EIS and approval of
the final EIS. As of the date of the approval of the EIS,
“federal involvement in the . . . [project] came to an end.”
Los Ranchos, 906 F.2d at 1479. Importantly, the state did
not request or receive federal funding for the construc-
tion of the project. Id. The only federal funds expended
were $59,000 incurred in connection with the preparation
of the EIS. Although the project remained eligible for
federal funding, we concluded that “eligibility in itself is
not sufficient to establish a major federal action requiring
the FHWA to comply with the requirements of NEPA.” Id.
at 1481. Our case differs significantly from Los Ranchos.
First, it differs because federal funding was sought and
appropriated® for the trafficway, including the 31st Street
segment. Second, it is distinguishable because FHWA
5 Defendants make much of the fact that all but $108,000 of
the $10.4 million appropriated for construction of the trafficway
was spent on the three western segments. We do not find this
determinative. To do so would mean that a state could request
and accept federal funds for a highway project, spend all the
allocated funds on only a portion of the project and then avoid
NEPA compliance for the remainder of the project, arguing that
no federal funds had been expended.
App. 64
participation continued long after the initial EIS was com-
pleted and approved, unlike Los Ranchos where federal
involvement ceased at the preliminary planning stages of
the project. Thus, we do not find Defendants’ reliance on
Los Ranchos persuasive.
..
Although we agree with the district court’s conclu-
sion that § 145 does not permit the state to “defederalize”
the eastern segment of the trafficway, we do not adopt
the district court’s analysis. See Gowan v. U.S. Dept. of Air
Force, 148 F.3d 1182, 1189 (10th Cir.1998) (we may affirm
the district court on any ground supported by the
record). The district court based its decision on the traf-
ficway’s status as a demonstration project, distinguishing
between demonstration projects, which are expressly
selected and funded by Congress, and “normal” federal-
aid highway projects, which the states prioritize and for
which appropriations are not specifically designated. The
district court concluded that the state sovereignty provi-
sion of § 145 of the FAHA does not apply to demonstra-
tion projects. If it did, the district court opined, § 145
would “eliminate demonstration projects for all intents
and purposes.” 972 F.Supp. at 561. The court was con-
cerned that, in effect, the application of § 145 to demon-
stration projects would allow states to rewrite
appropriations bills. Thus, the district court concluded
that because “Congress appropriated over $10 million in
demonstration funds for a fourteen-mile Trafficway, not a
four-mile nor a ten-mile highway . . . [t]he conditions
attached to the grant of federal funds to the state [for the
trafficway] are unequivocal.” Id.
App. 65
Although well-reasoned, the district court’s analysis
did not have the benefit of a recent amendment to § 145,°
which Defendants contend directly contradicts the dis-
trict court’s analysis. Based upon the amendment'’s plain
language, Congress apparently intended for demonstra-
tion projects to be treated no differently than any other
federal-aid highway projects for purposes of the state
sovereignty provision of § 145. We need not decide the
effect of this amendment on this case, however, because
§ 145, either in its original form or as amended, does not
authorize Kansas to circumvent federal environmental
laws by withdrawing a segment of the trafficway from
federal funding at this late stage in the project.
D.
In the alternative, Defendants argue that the district
court erred by granting injunctive relief requiring FHWA
6 On June 9, 1998, President Clinton signed into law the
Transportation Equity Act for the Twenty First Century, Pub.L.
No. 105-178, § 1601(b). The Act amends § 145 by (1) creating
subsection (a) consisting of the original provision of § 145 and
entitled “Protection of State Sovereignty”; and (2) adding
subsection (b) which provides as follows:
Purpose of Projects - The projects described
in... section 149(a) of the Surface Transportation and
Uniform Relocation Assistance Act of 1987 [STURRA]
are intended to establish eligibility for Federal-aid
highway funds made available for such
projects .. . and are not intended to define the scope
or limits of Federal action in a manner inconsistent
with subsection (a).
Section 149(a) of STURRA created the demonstration project at
issue in this case.
App. 66
to issue a final SEIS without first allowing FHWA to
determine whether an SEIS was needed to complete the
project. We review the district court’s grant of an injunc-
tion for abuse of discretion. Law v. National Collegiate
Athletic Ass'n, 134 F.3d 1010, 1016 (10th Cir.1998).
The district court’s injunction prevents Defendants
from “taking any action and expending any funds on the
eastern leg of the Trafficway prior to completion of the
supplemental environmental impact statement process,
issuance of a final supplemental environmental impact
statement, and entry of a new Record of Decision.” 972
F.Supp. at 563. Defendants argue that the injunction
“impermissibly usurped the agency's discretion” by
ordering the SEIS. We disagree. Courts have routinely
recognized the appropriateness of injunctive relief requir-
ing the preparation or completion of an EIS or SEIS. See
Sierra Club v. Hodel, 848 F.2d 1068, 1096-97 (10th Cir.1988)
(enjoining construction pending completion of NEPA
studies) (overruled on other grounds by Village of Los
Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th
Cir.1992)); Wisconsin v. Weinberger, 745 F.2d 412, 428 (7th
Cir.1984) (“An order requiring the preparation of an SEIS,
of course, may always be appropriate to vindicate the
purposes of NEPA”); Environmental Defense Fund v. Ten-
nessee Valley Auth., 468 F.2d 1164, 1168 (6th Cir.1972)
(requiring completion of EIS prior to construction of proj-
ect).
The district court in this case did not “usurp”
FHWA’s discretion by ordering FHWA to complete the
SEIS process. The injunction merely remedies the
improper agency conduct in this case, that is, FHWA’s
discontinuance of the SEIS process and withdrawal as
App. 67
lead agency from the trafficway. Therefore, the district
court did not abuse its discretion in ordering the relief.
Il.
We sympathize with the state and county's desire to
complete the last segment of the South Lawrence Traffic-
way, and indeed they thought they had found a way to
complete it. However, as the Fifth Circuit explained in
San Antonio, “[nJo one forced the State to seek federal
funding, to accept federal participation, or to commence
construction of a federal aid highway. The State, by enter-
ing into this venture, voluntarily submitted itself to fed-
eral law.” 446 F.2d at 1028. The state of Kansas and
Douglas County chose to develop this trafficway in con-
junction with the federal government as a federal-aid
highway project and proceeded in that manner for more
than ten years before attempting to “defederalize” a por-
tion of the project. Although states may, in appropriate
circumstances, choose to construct a highway project as a
purely local undertaking and, as a result, avoid federal
environmental laws, this is not that case. Kansas and
Douglas County’s attempt to withdraw a portion of the
trafficway from federal funding, after the project hit an
environmental road block, does not relieve FHWA of its
statutory obligation to comply with NEPA. Therefore,
FHWA abused its discretion by discontinuing the SEIS
process and withdrawing from the eastern leg of the
trafficway.
For these reasons, the decision of the district court is
AFFIRMED.
App. 68
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
THOMASINE ROSS; STANLEY
ROSS; ANJANETTE BITSIE;
PAMINA YELLOWBIRD; JASON
DANIELS; WETLANDS
PRESERVATION ORGANIZATION,
KANSAS UNIVERSITY ENVIRONS,
Kansas unincorporated associations,
Plaintiffs-Appellants,
V.
)
)
)
)
)
)
)
)
)
)
FEDERAL HIGHWAY ia liata
ADMINISTRATION; DAVID
GEIGER, in his official capacity as )
division administrator; MARK )
BUHLER; TOM TAUL; DEAN
NEIDER, in their official capacities )
as Douglas County, Kansas,
Commissioners; E. DEAN )
CARLSON, in his official capacity )
as Kansas Secretary of )
Transportation,
)
Defendants-Appellees.
ORDER
Filed March 21, 2001
Before KELLY, ANDERSON, and HENRY, Circuit
Judges.
App. 69
Appellants’ petition for rehearing is denied.
The petition for rehearing en banc was transmitted to
all of the judges of the court who are in regular active
service as required by Fed. R. App. P. 35. As no member
of the panel and no judge in regular active service on the
court requested that the court be polled, that petition is
also denied.
Entered for the Court
PATRICK FISHER, Clerk of Court
by: /s/ Danielle Aguirre
Deputy Clerk
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