Wild and Scenic Rivers Act (WSRA)

Judicial Review of Section 7 Decisions. The NPS argued that its finding under Section 7 of the WSRA was not subject to judicial review. The court rejected that argument, holding that decisions under Section 7 are subject to judicial review because the statute provides a “meaningful standard of review.”

“State-Administered” Status of River. The plaintiffs argued that the portion of the Lower St. Croix River at issue in the case – known as the “lower section of the Lower St. Croix River” – was not a “state-administered” section of the river. Federal legislation had specifically designated this section as state-administered, but the plaintiffs contended that it was no longer state-administered because the NPS was involved in managing this section. The court held that this section was, in fact, state-administered: “NPS’s participation in cooperative management under the CMP does not change the state-administered designation of the lower portion of the Lower St. Croix.” On the other hand, the court also held that NPS’s duties under Section 7 are the same regardless of whether the river is state-administered.

Section 7 Determination. Section 7 of the WSRA prohibits federal agencies from approving or providing assistance to a project, if the NPS determines that the project will “directly and adversely affect” the protected values of a WSRA-designated river. In 1996, the NPS had determined that an earlier version of this project would directly and adversely affect the lower section of the Lower St. Croix. In 2005, the NPS determined that the project would not directly and adversely affect this section of the river. The plaintiffs challenged the 2005 decision, alleging that NPS had arbitrarily changed its position. The court agreed with the plaintiffs, essentially because the court found that NPS had not explained the change in its position.

“Put another way, when an agency treats two similar transactions differently, an explanation for the agency’s actions must be forthcoming…. The Supreme Court has frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner. Therefore, NPS could not simply ignore its prior policy in issuing the 2005 Section 7 Evaluation. Although it did not need to provide better or stronger reasons for its new position than for its 1996 position, it was required to acknowledge its previous position and provide a reasoned explanation for its change.”
“The Court reiterates that NPS was not bound by its 1996 Section 7 Evaluation when it evaluated the Proposed Bridge. NPS clearly has the power to reevaluate its prior determination. But, the agency must explain its reasons for changing its policy; the Court cannot provide that basis during APA review: The Court may not accept counsel’s post hoc rationalizations for agency action. It is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”
“In this litigation, Defendants attempt to distinguish the 1995 Proposal from the current Proposed Bridge. They argue that, while the Proposed Bridge is longer and taller than the 1995 Proposal, it has a less serious visual impact due to the extradosed design, altered alignment and location, and fewer riverbed piers. They point to new mitigation measures included in the newer plan. While there are, indeed, differences between the two bridges, common sense provides that they are generally similar-in purpose, location, and physical characteristics…. The Court is not concluding that NPS’s attempt to distinguish the two bridges was inadequate; rather, the Court concludes that NPS wholly failed to mention, let alone distinguish, the 1995 Proposal and 1996 Section 7 Evaluation in the 2005 Section 7 Evaluation.” (emphasis in original) Assessment of Environmental Impacts. The plaintiffs challenged the NPS’s finding, in part, based on NPS’s failure to consider environmental impacts – specifically, impacts to mussels – as part of its Section 7 determination under the WSRA. The court held that NPS was only required to consider impacts to the river’s scenic, recreational, and geologic values – the values for which it was designated under the WSRA. But the court also noted that NPS’s 1996 decisions focused extensively on mussel impacts, while its 2005 decision did not. The court held that this “about-face” in NPS’s “further highlights NPS’s failure to acknowledge that its 2005 Section 7 Evaluation represented a 180-degree change in position from its 1996 Section 7 Evaluation.”

Consistency with NPS Management Plan. The NPS’s management plan for this section of the river stated that the plan’s “long-term goal will be to reduce the number and size of visible river crossings” and also said that “there will be no net increase in the number of transportation corridors” across this section of the river. NPS determined that building a new bridge would not increase the number of “transportation corridors,” because the existing bridge would closed to vehicular traffic and would remain in use only as a pedestrian bridge. The plaintiffs challenged that finding, arguing that a pedestrian bridge is a “transportation corridor.” so the construction of a new bridge would in fact increase the number of transportation corridors across the river. The court upheld the NPS’s decision:

“The Court concludes that, in context, a ‘transportation corridor,’ at a minimum, requires motorized traffic or moving goods or persons for non-recreational purposes. The proposed pedestrian and bicycle bridge does not meet the definition of transportation corridor, when the Lift Bridge will be for non-motorized, recreational use…. NPS’s interpretation of the term “transportation corridor” to require motorized traffic is, at a minimum, reasonable. The Court concludes that the Proposed Bridge will not violate the CMP’s statement that there ‘will be no net increase in the number of transportation corridors.’” The plaintiffs also argued that the NPS’s approval was inconsistent with the plan’s policy regarding relocation of the existing corridor – specifically, a requirement that “all built elements of the existing corridor are removed, and the corridor is restored to natural conditions.” The court acknowledged that the project was inconsistent with this element of NPS’s plan for the river, because the existing bridge would remain in place (as a pedestrian bridge) rather than being removed. But the court also recognized that the NPS had a competing legal responsibility to preserve the existing bridge, which is listed on the National Register of Historic Places. The court concluded that NPS had properly balanced these responsibilities:

“NPS has not violated the WSRA simply because the decision to keep the Lift Bridge’s structure in place conflicts with a factor listed in the [plan], when complete removal would conflict with other [plan] provisions. Moreover, this [plan] is merely a general framework to give direction in management of the river, not a statutory mandate.” “Protect and Enhance” Requirement under Section 10(a). Section 10(a) of the WSRA requires the NPS to “protect and enhance” the values of a river that caused the river to be designated as part of the Wild and Scenic Rivers System. The plaintiffs argued that NPS’s section 7 determination was flawed because it did not address Section 10(a). The court disagreed, finding that Section 10(a) did not apply to state-administered sections of the river,

Applicability of NPS Organic Act. The NPS Organic Act gives the NPS a duty to preserve national park resources “unimpaired” for future generations. The plaintiffs claimed that NPS erred because it did not consider this non-impairment obligation when issuing its Section 7 determination. NPS claimed that the Organic Act did not apply because this section of the river was state-designated and thus was not part of the national park system. The court ruled in favor of NPS on this issue.

NEPA

Range of Alternatives. The plaintiffs claimed that FHWA had violated NEPA by failing to consider several other alternatives, including a new two-lane bridge; a new two-lane bridge combined with TSM/TDM improvements; an alternative that included reversible lanes; and expansion of I-94, which crossed the river at a different location. The court upheld FHWA’s consideration of alternatives, holding that:
FHWA properly concluded that these other alternatives would not meet the purpose and need; and
FHWA did not have an obligation to “undertake a separate analysis of alternatives that are not significantly distinguishable from alternatives actually considered or which have substantially similar consequences”; and
FHWA did not have an obligation to consider potential combinations of the build alternatives with a TSM/TDM alternative, because the TSM/TDM component would have ad an “imperceptible effect” on traffic flow. Indirect Impacts. The plaintiff claimed that the EIS failed to give adequate consideration to the project’s potential indirect effects, specifically the potential for induced growth. The court upheld the analysis, finding that it contained sufficient detail to satisfy NEPA, in part because the analysis considered and relied on local land use plans:
“The Court holds that FHWA’s indirect effect analysis was sufficient. It identified indirect effects and mitigation measures to minimize those effects. FHWA analyzed existing and future land use, existing and future population estimates, growth management strategies from local plans, and land use regulation and ordinances such as zoning. Local planning documents, such as the St. Croix County Development and Management Plan, plan for construction of a new river crossing. FHWA also held discussions with local government and planning officials on land use trends. This analysis and reliance on local land use plans and planners was sufficient.” Cumulative Impacts. The plaintiffs contended that FHWA’s analysis of cumulative impacts was inadequate because it “lacked any quantified or detailed information” about the combined impacts of the proposed project and other actions. The court noted that FHWA had provided more detailed information for some resources than others, but held that the cumulative impacts analysis was adequate.
“The analysis sets the geographic and time boundaries of the cumulative impacts assessment. It then summarizes the existing condition of each potentially affected resource. The analysis summarizes the impacts from the Proposed Bridge on each potentially affected resource and identifies other current and reasonably foreseeable future actions and their possible impacts on those resources. Finally, the analysis discusses the potential for cumulative impacts on the resources and mitigation or minimization measures. This approach constitutes a ‘meaningful cumulative impact analysis.’” Section 4(f)

Prudent and Feasible Alternatives. The plaintiffs claimed that FHWA had failed to consider a “reasonable range of alternatives” for avoiding Section 4(f) resources. The court ruled that FHWA had properly eliminated alternatives that did not meet the purpose and need, and concluded that the range of alternatives considered in the Section 4(f) evaluation was adequate.

Minimization of Harm to 4(f) Resources. The plaintiffs challenged FHWA’s comparison of harm to the various Section 4(f) resources in the project area, arguing among other things that FHWA had not given enough weight to the value of the Lower St. Croix River and that it had not adequately considered the harm caused by visual impacts. The court found that FHWA’s analysis was sufficiently thorough and upheld FHWA’s determination that the selected alternative would result in the “least impacts to Section 4(f) properties in the project area.”

Litigation Procedure

Waiver. FHWA argued that the plaintiffs had waived the right to challenge the range of alternatives, because the plaintiffs themselves had not submitted comments during the NEPA process asking for additional study of the alternatives cited in the lawsuit. The court held that the plaintiffs had not waived this claim, because “all of the alternatives Sierra Club now puts forth were brought to FHWA’s attention at some point during the administrative process.”

Permanent Injunction. The court issued a permanent injunction, barring FHWA and the States from proceeding with the project, until the NPS reconsidered its finding and issued a new finding (which itself would be subject to a new legal challenge). The court issued the injunction because it found that there was a clear threat of irreparable harm; the balance of harms weighed toward granting the injunction; and the public interest weighed in favor of granting the injunction.