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Paradise Ridge Defense Coalition, Inc. v. Hartman

United States District Court, D. Idaho

August 29, 2017

PARADISE RIDGE DEFENSE COALITION, INC., Plaintiff,
v.
PETER J. HARTMAN, Division Administrator for the Idaho Division of the Federal Highway Administration; The FEDERAL HIGHWAY ADMINISTRATION; and The IDAHO TRANSPORTATION DEPARTMENT, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, Chief Judge United States District Court.

         INTRODUCTION

         The Court has before it motions for summary judgment filed by the three parties in this case: The plaintiff Paradise Ridge Defense Coalition, and defendants Federal Highway Administration (FHWA) and Idaho Transportation Department (ITD). The Court heard oral argument on July 24, 2017, and took the motions under advisement. For the reasons expressed below, the Court will deny plaintiff's motion and grant defendants' motions.

         BACKGROUND OF LITIGATION

         Plaintiffs challenge a highway project just south of Moscow, Idaho designed to improve a stretch of US-95. This highway connects Lewiston and Moscow, running for about 22 miles between these cities. The project will involve moving a portion of US-95 closer to Paradise Ridge, which contains some of the best remaining examples of the Palouse Prairie ecosystem, along with stands of pine trees and grasslands. Plaintiff claims that the choice of this alternative violates NEPA, an Executive Order, and agency regulations. Plaintiff seeks to enjoin any further work on the US-95 project until the agencies comply with NEPA.

         In 1999, the FHWA and the ITD began making plans to improve US-95 between Lewiston and Moscow. At that time the highway was narrow and dangerous, often derided as a “goat trail.” The agencies planned to widen about 15 miles of the road and construct a new highway over about 5 miles. They completed an Environmental Assessment and a Finding of No Significant Impact, that was challenged in 2003 by plaintiff. The agencies had selected an alternative that constructed a new highway near the base of Paradise Ridge. Plaintiff challenged that decision on the ground that it had significant environmental impacts that needed to be studied in an Environmental Impact Statement (EIS). This Court agreed, and enjoined further construction until the agencies conducted their EIS. See Memorandum Decision (Dkt. No. 44) in Paradise Ridge v FHWA 3:03-cv-156-BLW.

         After some delay, the agencies completed their EIS and ROD, settling on a project that would replace the existing two-lane undivided highway from Thorncreek Road to the South Fork Palouse River Bridge with a four-lane highway divided by a 34-foot median through most of that alignment. The highway would transition to a four-lane highway with a center turn lane in the urban area just south of Moscow.

         The preferred route - and the route chosen by the ROD - had been labeled as the E-2 alternative. The ROD rejected two alternative routes labeled C-3 and W-4 and the no-action alternative.

         Of all these alternative routes, the E-2 route takes the highway closest to Paradise Ridge, home to several remnants of the Palouse Prairie ecosystem. That ecosystem is characterized by native grasses and flowers, and is excellent habitat for a wide variety of wildlife. Because about 99% of the Palouse Prairie has been converted to agricultural lands, it is considered one of the most endangered ecosystems in the United States. AR 000645. Paradise Ridge is entirely privately owned, and consists of rural residential developments, commercial developments, actively farmed land, and Conservation Reserve Program land (where farmers remove lands from agricultural production in exchange for rental payments, and plant alternative vegetation to improve water quality and prevent soil erosion). AR 000616

         In selecting the E-2 alternative, the ROD, issued in March of 2016, gave the following explanation:

The FHWA and ITD selected the E-2 Alternative which was the Preferred Alternative in the FEIS. The primary advantages of the E-2 Alternative are that it is aligned through flatter topography, has the fewest US-95 access points, and has the greatest safety improvement. E-2 will affect the least amount of tributary channel distance and will avoid floodplains. Similarly to the other alternatives, it will avoid cultural and Section 4(f) resources. The primary disadvantage of E-2 over the other alternatives is that it will be located closer to Paradise Ridge, which supports a Ponderosa pine stand and various shrubs that provide the best ungulate habitat in the project area (Sawyer 2010). The affected pine stand is pygmy nuthatch habitat and potential habitat for long-eared myotis and northern alligator lizard. It will impact the greatest number of wetlands and the highest quality wetlands (i.e. scrub-shrub) and headwater tributaries. The E-2 Alternative will have the greatest indirect effects to Palouse remnants, planned and ongoing Palouse restoration projects and a key conservation area for Spalding's catchfly recovery primarily due to potential weed establishment and spread outside the right-of-way compared to the other alternatives. Although E-2 will have the highest noise impacts to residences of the action alternatives, E-2 is compatible with land use plans. The evaluation of effects during the screening process, detailed analyses presented in the DEIS and FEIS, and the public and agency comments on the DEIS and FEIS resulted in the lead agencies, FHWA and ITD, selecting the E-2 Alternative. The E-2 Alternative was selected for the following reasons:
• It will have the greatest safety improvement.
• It will have the fewest access points and at-grade county intersections.
• It will have the least effect to streams.
• It will avoid potential business impacts and floodplains.
• It will have the shortest five-lane typical section and overall shortest length.
• It meets the project purpose and need.

AR 000035. Plaintiff Paradise Ridge challenges the selection of the E-2 Alternative, arguing that it has the worst impact of all the Alternatives on Paradise Ridge and the Palouse Prairie ecosystem. The Court will address plaintiff's arguments after reviewing the applicable legal standards.

         LEGAL STANDARDS

         Judicial review of final agency decisions under NEPA is governed by the Administrative Procedures Act (“APA”). Native Ecosystems Council v. U.S. Forest Service, 866 F.Supp.2d 1209(D. Idaho 2012). Under the APA, the court shall set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). An agency action should be overturned when 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 Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463U.S. 29, 43 (1983).

         ANALYSIS

         Range of Alternatives

         Plaintiffs argue that the defendants arbitrarily selected the three alternatives for in-depth review, eliminating other alternatives that were rated higher. NEPA requires agencies to “rigorously explore and objectively evaluate all reasonable alternatives” to a proposed plan of action that has significant environmental effects. See 40 C.F.R. § 1502.14(a). This is “the heart” of an EIS. City of Carmel-by-the-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir.1997).

         Here, after a lengthy study and public input process, the agencies identified ten Action Alternatives in the western, central, and eastern corridors. AR 00586. Each shared the same design criteria: a combination of four-lane undivided highway and four-lane highway with a center turn lane. AR 000581. The ten alternatives were then screened based on 23 criteria including air quality, water quality, safety, weather, etc. AR 000584. Each alternative was given a numerical score based on the number of positive attributes it received in the screening process. AR 018881. As a rule, the least amount of impact of any environmental factor was considered favorable. Id. In situations where alignment information for a given environmental factor was equal, all the alignments were counted as favorable. Id.

         For example, the highest rated alternative (C-3) received 13 positive attributes, including top marks for, among other criteria, (1) ice conditions; (2) historic site impacts, (3) wetland impacts; (4) total construction cost, and (5) visual analysis. The other high-ranking alternatives, C-1, C-2 and W-2 received 11, 10, and 10 positive attributes respectively.

         The E-2 alternative, by way of comparison, received only 7 positive attributes, placing it in a tie with E-3 and just ahead of the last-place finisher, E-1, which received 6 positive attributes.

         In selecting the alternatives to study in-depth, the ITD did not choose the top ranked alternatives (which would have been C-1, C-2, C-3 & W-2), but instead chose one alternative from each corridor. Because E-2 was highly ranked within the eastern corridor, it was chosen to be one of the three alternatives to be studied in the FEIS. AR 000587-88. The ITD used this selection process “[b]ased on a desire to maintain corridor and alignment options and based on extensive environmental evaluation and public involvement.” AR 018903.

         The selection of each alternative within each corridor was described in the FEIS. For example, the FEIS discussed the three alternatives in the eastern corridor as follows:

The E-2 Alternative was forwarded for further consideration because it had the least effect to wetlands, cultural resources and was the only alternative to not directly affect rare plant communities. The E-3 Alternative effects were very similar to the E-2 Alternative but E-3 resulted in three more residential impacts and twice as many business impacts than E-2. While the residential and business impact assumptions and numbers have been modified since the screening report was prepared, the E-2 Alternative still resulted in overall less impact. The E-3 Alternative directly affected two rare plant communities and resulted in slightly higher effects to prime farmlands compared to E-2. While the differences were small they were higher and more adverse. The E-2 Alternative was forwarded for detailed analysis because it had the least overall effects compared to the other alternatives in the eastern corridor.

AR 000587-88. The other two corridors - the western and central corridors - went through a similar analysis ...


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