DECISION WITHOUT PUBLISHED OPINION
Affirmed.
Plaintiffs contend that the
FHWA understated the 32B Alternative costs by omitting certain mitigation costs. Doc. #48 at 55-56. The FHWA states that its Final Section 4(f) Evaluation clearly includes mitigation costs for both the 32B and 42A alternatives.
Id. at 6892. It estimated that mitigation costs would be $22.1 million for the 32B Alternative and $2.0 million for the 42A Alternative.
Id. Even including the $20.1 million difference in mitigation costs, the FHWA estimated that 32B would cost $19 million less than 42A, primarily because 42A bridge construction would cost nearly $50 million more than 32B bridge construction.
Id. Plaintiffs assert that the $22.1 million which the FHWA included for 32B mitigation costs understates the estimated total bill for the 32B mitigation plan by $10 million because it did not include all the costs associated with acquiring and converting the 317 acres of new wetlands, building the 10,000 square foot Wetland and Cultural Center, constructing hiking and biking trails, creating parking and camping areas, and funding the Baker University annuity. Doc. #48 at 20, 21 n. 80, 55-56. Without support, the FHWA states that all mitigation costs are accounted for in the $22.1 million.
Doc. #55 at 40 n. 11. This claim, however, is incorrect. According to the FHWA's own numbers, the $22.1 million understates the 32B mitigation
costs by nearly $200,000. Further, the FHWA's own numbers do not include several big ticket items — 317 acres of new wetlands, moving 31st Street, building the Wetland and Cultural Center and constructing hiking and biking trails and parking.
See Doc. #48 at 20, 21 n. 80, 55-56;
FHWA ROD,
AR, Vol. 11 at 8023, 8027-35. The FHWA cost estimate is therefore clearly erroneous and may not be properly considered in determining that the 42A Alternative is imprudent.
The FHWA's 2007 Cost Estimate table appeared in the Final Section 4(f) Evaluation as follows:
If the Court accepts plaintiffs' rough estimate that the omitted costs are roughly $10 million, the total cost of the 32B Alternative would be $157.9 million, which is still $9 million less than the 42A Alternative. The FHWA argues that even if its cost calculation is wrong, project cost may nevertheless be considered because even under plaintiffs' cost calculation 32B is $9 million cheaper than 42A. Doc. #55 at 40. The difference in cost can be properly weighed, however, only if the amount of the difference is known. It is not enough to assert that 42A would be more expensive anyway. In light of its failure to include substantial costs, the FHWA cost estimate is so unreliable that it should not be used as a factor in determining whether the 42A Alternative is imprudent.
Plaintiffs also argue that the FHWA erred by not evaluating the 32B Alternative against the 42C Alternative, which would be cheaper than the 42A Alternative. This argument is moot because the FHWA cost estimate will not be considered in the Court's review of whether the FHWA reasonably concluded that the 42A Alternative was imprudent.
When an agency relies on a number of findings, one or more of which are erroneous, the Court must reverse and remand only when there is a significant chance that but for the errors the agency might have reached a different result. Nat'l Parks Conservation Ass'n v. Fed. Aviation Admin., 998 F.2d 1523, 1533 (10th Cir. 1993) (quoting Salt River Project Agric. Improvement Power Dist. v. United States, 762 F.2d 1053, 1060-61 n. 8 (D.C. Cir. 1985)). Whether the FHWA's reliance on its erroneous cost estimate constitutes prejudicial error that would require reversal and remand its decision is discussed below.
3. Wakarusa Floodplain and Floodway Impacts
The FHWA's Final Section 4(f) Evaluation conceded that both alternatives would affect the Wakarusa floodplain, but concluded that 32B would affect the floodplain and floodway less than 42A.Final Section 4(f) Evaluation, AR, Vol. 10 at 6892. Plaintiffs assert that the FHWA's own regulations, comments by FHWA headquarters and Department of the Interior ("DOI") opinions undermine the FHWA conclusion. Doc. #48 at 52-53. FHWA headquarters' comments on the Draft Section 4(f) Evaluation and the Corps' FEIS stated that under FHWA regulations "longitudinal encroachments" like the 32B Alternative should be avoided when practicable and that the Section 4(f) ROD should contain a statement regarding floodplain encroachment. Draft Section 4(f) Evaluation, AR, Vol. 8 at 5856. Neither the regulation nor the FHWA headquarters' comments undermine the FHWA's conclusion that the Section 32B Alternative has fewer floodplain and floodway impacts.
The regulation does not require the FHWA to avoid longitudinal encroachments in every circumstance, but only where practicable. By selecting 32B over 42A, the FHWA, in essence, concluded that avoiding 32B's longitudinal encroachment was not practical. In addition, the FHWA headquarters simply suggested that the FHWA include a statement regarding floodplain encroachment, and the FHWA included one. See Final Section 4(f) Evaluation, AR, Vol. 10 at 6892.
The DOI commented that the 42A Alternative "has less impacts to wetlands, less floodplain impacts, and less total stream involvement (greater number of crossings but fewer total linear feet of involvement)." Draft Section 4(f) Evaluation, AR, Vol. 9 at 6544. A reviewing court "may properly be skeptical" that agency conclusions are reliable if the agency "has apparently ignored the conflicting views of other agencies having pertinent expertise." Davis, 302 F.3d at 1123 (quoting Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1030 (2d Cir. 1983)) (internal quotation marks omitted). The Court is indeed skeptical, but it is in no position to choose between the conflicting opinions of the FHWA and DOI regarding floodplain and floodway impacts.See Boomer Lake, 4 F.3d at 1553;N. Buckhead Civic Ass'n, 903 F.2d at 1544. The Court may only determine whether the FHWA's conclusion had a rational basis. Boomer Lake, 4 F.3d at 1553. Here, the FHWA stated that the 42A Alternative would pass through roughly 2.4 miles of floodplain, cross the Wakarusa River floodway in three places, and "have a significantly greater impact on the river and its riparian corridor." Final Section 4(f) Evaluation, AR, Vol. 10 at 6892 (quoting Corps' ROD). The 32B Alternative, however,
would lie along the northern edge of the Wakarusa floodplain and cross two miles of it; it would not cross the Wakarusa River and would therefore avoid impacting the Wakarusa River floodway. Id. Notwithstanding the DOI's disagreement, the FHWA's conclusion that the 42A Alternative would have a greater impact on the Wakarusa floodplain and floodway is not arbitrary, capricious or clearly erroneous. The FHWA properly considered its conclusion in rejecting the 42A Alternative as imprudent.
4. Accelerated Planned and Unplanned Development South of Wakarusa River
The FHWA concluded that the 42A Alternative would accelerate planned and unplanned development south of the Wakarusa River (including increased demand for street, sewer, water and other public utility infrastructure) and a new "commercial node" that would attract "a more mixed and dense urban population" than currently planned for that area. Final Section 4(f) Evaluation,AR, Vol 10 at 6893, 6895. It also determined that the 32B Alternative was more consistent with the city's long-term plans for growth ( Horizon 2020) and transportation ( Transportation 2025). Id. at 6895. The FHWA projected that accelerated growth south of the Wakarusa River would increase traffic and attract more dense urban development around the Haskell Farm than presently exists or would exist under the 32B Alternative (seeinfra Part II.B.5 for detailed discussion). Id. at 6895. Plaintiffs assert that because development would be constrained by local zoning laws, the FHWA forecast for development south of the Wakarusa River is "sheer speculation." Doc. #48 at 51. Plaintiffs cite DOI comments on the FHWA's Draft Section 4(f) Evaluation in which the DOI notes that the area south of the Haskell campus and north of the Wakarusa River (the area around the 32B Alternative) is subject to the same development pressure as areas south of the river. Draft Section 4(f) Evaluation, AR, Vol. 9 at 6543. In its Final Section 4(f) Evaluation, the FHWA acknowledges that development could occur around the 32B Alternative, but states that such development would be more limited than the south-of-the-river development associated with the 42A Alternative because the land north of the river is located in a 100-year floodplain. Id. at 6895. The FHWA noted that although development in the floodplain is permissible if it complies with the local floodplain regulations, it is not recommended for urban development. Id. In addition, the FHWA concluded that the new wetlands created by the 32B mitigation plan would create a buffer between the Haskell Farm and any new development. Final Section 4(f) Evaluation, AR, Vol. 10 at 6868.
The FHWA's conclusion that the 42A Alternative would accelerate planned and unplanned development south of the Wakarusa River is not arbitrary or capricious, nor is it a clear error of judgment; it was therefore an appropriate factor to consider in determining whether 42A is imprudent.
5. Secondary and Cumulative Impacts on Haskell Farm
The FHWA's Final Section 4(f) Evaluation concluded that even though the 42A Alternative would have no direct impact on the Haskell Farm, it would cause greater long-term secondary and cumulative adverse impacts than the 32B Alternative. Final Section 4(f) Evaluation, AR, Vol. 10 at 6895. This conclusion is primarily rooted in the FHWA's determination that 42A would increase traffic on the streets surrounding the Haskell Farm, which in turn would increase noise, light, urban debris and visual disturbances. Id. at 6895-96. The FHWA also predicted that the 42A Alternative would cause increased development in the floodplain adjacent to the Haskell Farm and require one or more of the streets to be expanded. Id. at 6896. It acknowledged that "urban development in the floodplain is not recommended," but noted that such "development may be approved it if complies with the local floodplain regulations." Final Section 4(f) Evaluation,AR, Vol. 10 at 6896-97.
Plaintiffs assert that the FHWA's traffic increase projection and noise study are flawed and that new development in the floodplain is purely speculative. Doc. #48 at 49-51. The FHWA concedes that it inadvertently omitted 38,000 vehicles per day from its traffic increase projections, but asserts that this omission has little impact on its conclusion because Haskell Avenue will be moved roughly 1,000 feet away from the farm property under the 32B Alternative. Doc. #55 at 44. The Court agrees and finds that this omission is harmless.
Plaintiffs attack the FHWA traffic increase projections because they excluded from the estimate 38,000 cars on Haskell Avenue between 31st Street and the 32B Alternative. Doc. #48 at 49-51. In Exhibit 6, plaintiffs generated their own traffic volume estimates. See Ex. 6 attached to Doc. #48. The FHWA moves to strike Exhibit 6 because it contains new, extra-record evidence which the Court may not consider except in certain limited circumstances. Doc. #53 at 5. Plaintiffs argue that the data in Exhibit 6 are taken straight from the administrative record and therefore constitute permissible argument or "pedagogical devices" and not new evidence. Doc. #58 at 3-4. However, as Exhibit 6 clearly explains, plaintiffs attempt to "correct" FHWA calculations that they think are incorrect. Specifically, to account for the 38,000 vehicles per day, plaintiffs engage in a complicated computation to take the weighted average of traffic volume for this stretch of road and apply it to their computation. Plaintiffs have not shown where their calculations appear in the record and they cannot properly be construed as mere argument; instead, Exhibit 6 must be viewed as new evidence. Because the Court is constrained by the four corners of the administrative record, except in rare circumstances, the Court sustains defendants' motion to strike Exhibit 6. See Citizens for Alts. to Radioactive Dumping, 485 F.3d at 1096. Moreover, Exhibit 6 is unnecessary to prove plaintiffs' point because the FHWA concedes that it inadvertently omitted 38,000 vehicles per day from its traffic increase projections. Doc. #55 at 44.
With respect to noise, plaintiffs assert that the FHWA grossly overstated the noise the 42A Alternative would generate on streets surrounding Haskell Farm. Doc. #48 at 44-45. Plaintiffs argue that the noise maps overstate the 42A noise impact and understate the 32B noise impact. They show that the 42A noise map includes noise impacts that do not reach the Haskell Farm and are not considered in the 32B study, namely noise impacts east of Haskell Avenue and west of Louisiana Street. See id. The FHWA, however, does not rely on noise impact data taken east of Haskell Avenue, west of Louisiana Street or south of the Wakarusa River. It exclusively relies on the residual noise impacts generated by traffic on Haskell Avenue and Louisiana Street. See Final Section 4(f) Evaluation, AR,
Vol. 10 at 6887-89. It seems that the FHWA did not consider the noise impact of traffic on Haskell Avenue and Louisiana Street for the 32B Alternative because these streets would be moved away from the Haskell Farm under the 32B mitigation plan. See id. at 6889, 6896-97. It concluded that, due to 32B mitigation measures ( i.e. noise walls around the 32B roadway and moving Haskell Avenue and Louisiana Street away from the Haskell Farm), "the total audible disturbance associated with [the 32 B Alternative] will be less by the year 2025 . . . than noise disturbances from adjacent roads associated with the 42A Alternative." Id. at 6896-97.
Contrary to plaintiffs' claim, the FHWA does not overstate the possibility that development could occur in the floodplain adjacent to the Haskell Farm. Rather, it acknowledges that "urban development in the floodplain is not recommended" but "may be approved if it complies with the local floodplain regulations."Id. at 6896. It further notes that a "portion of the land located immediately west of Baker Wetlands was platted for multi-family development." Id. KDOT currently owns this land and plans to convert the land to wetlands as part of the 32B mitigation plan; if the 32B Alternative is not selected, however, the land will return to private hands to be developed. Id. According to the FHWA, this development would "diminish or eliminate the rural character of the land." Id.
Under the 32B Alternative, a four-lane highway with 12-foot noise walls would bisect the Haskell Farm and Baker Wetlands. Id. It would directly impact the Haskell Farm, but the FHWA concluded that it would nonetheless have fewer cumulative secondary impacts than 42A. Id. The FHWA's Final Section 4(f) Evaluation acknowledges that "visual impacts may occur as a result of walls being constructed for the purpose of noise mitigation," but concludes that the visual obstruction would be minimal because the walls would be located behind second-growth trees and, eventually, an evergreen tree screen. Id. Furthermore, because the 32B Alternative mitigation package expands the Baker Wetlands surrounding the Haskell Farm, no development would be allowed on or around farm property. See id. The FHWA reached its conclusions regarding the cumulative and secondary impacts on the Haskell Farm through reasoned — not arbitrary or capricious — analysis. The Court therefore concludes that the FHWA properly considered these impacts in reaching its determinating that the 42A Alternative is imprudent.
6. Additional Adverse Environmental Impacts
The FHWA determined that the 42A Alternative would impact four more acres of riparian woodlands and 8.6 more acres of upland woodlands than the 32B Alternative. Final Section 4(f) Evaluation, AR, Vol. 10 at 6897. It also concluded that the 42A Alternative would be situated near the Oregon and California National Historic Trail, including Blanton's Crossing, a bridge which the National Park Service has identified as a "High Potential Site" for its importance as a trail resource and its role in western migration and "Bleeding Kansas." Id. According to the FHWA, the 42A
Plaintiffs take issue with the FHWA's statement that the 42A Alternative would lie in the area of Blanton's Crossing. Doc. #58. They primarily rely on their map in Exhibit 14 attached toPlaintiff's Opening Brief (Doc. #48) and argue that Blanton's Crossing is located 500 feet northeast of where 42A would run. Doc. #58. The FHWA moves to strike Exhibit 14 because the Court's review of administrative actions under the APA is limited, with certain narrow exceptions, to the administrative record developed by the agency. Doc. #53; Forest Guardians, 579 F.3d at 1131 (quoting Camp, 411 U.S. at 142); see also Fla. Power Light, 470 U.S. at 743-44 (1985) (listing limited exceptions); Citizens for Alts. to Radioactive Dumping, 485 F.3d at 1096. Plaintiffs argue that the Court should take judicial notice of the map in Exhibit 14 because it is a catalogued Kansas State Historical Society record. Doc. #58 at 5.
The Court sustains the FHWA motion to strike Plaintiffs' Exhibit 14 because the map of Blanton's Crossing in Exhibit 14 is not in the administrative record and it does not fall into one of the limited exceptions. Moreover, plaintiffs' argument with respect to the location of Blanton's Crossing has no bearing on the Court's decision. Although the FHWA considered the fact that the 42A Alternative "would be aligned along the area where the Oregon and California National Historic Trail was located, including Blanton's (Bridge) Crossing located at the Wakarusa River and Louisiana Street, east of the Meair's Farmstead," Final Section 4(f) Evaluation, AR, Vol. 10 at 6897, it stated (in response to comments) that 42A "would avoid direct impacts to Blanton's Crossing." Id. at 6881. Moreover, the FHWA focused on 42A's impact on the area where the Oregon and California trails existed, "and the historic importance of this area in the history of western migration and of `Bleeding Kansas,'" which the FHWA determined were "essential factors to be considered in determining which alternative is feasible and prudent, and best serves the overall public interest." Id. The FHWA did not consider, as plaintiffs suggest, direct impacts on Blanton's Crossing, so plaintiffs' argument is misplaced and Exhibit 14 is not relevant to the Court's decision.
Alternative would also affect a corner of the National Register-eligible William Meairs Farmstead, but any adverse effect could be mitigated by vegetative screening. Id.
Plaintiffs point out that Blanton's Crossing is not eligible for listing on the National Register of Historic Places and that it therefore should not be considered. Doc. #48 at 53. The FHWA does not contend that Blanton's Crossing is register-eligible, but notes that it is a National Park Service "High Potential Site" and that it would be indirectly impacted by 42A. These effects are relevant to the FHWA's determination. Final Section 4(f) Evaluation, AR, Vol. 10 at 6897. The FHWA admits that the 42A Alternative "would avoid direct impacts to Blanton's Crossing." Id. at 6881-82. Even though these environmental effects might be minimal, they are nevertheless relevant. Therefore the FHWA did not act arbitrarily or capriciously in considering them.
7. 32B Alternative Provides Net Benefit
The FHWA determined that the 32B Alternative mitigation plan would provide a net benefit to the Haskell Farm and Baker Wetlands which the 42A Alternative does not provide. Id. at 6897-98. The 32B mitigation plan would include 12-foot noise walls to minimize roadway disturbances on the HINU campus and the Baker Wetlands, a 10,000 square-foot Wetland and Cultural Education Center, creation of 317 acres of wetlands to replace the 53 acres of wetlands that would be destroyed by the project, relocating 31st Street 500 feet south of its present alignment between Haskell Avenue (which will be moved 1,000 feet to the east) and Louisiana Avenue (which will be moved 1,000 feet to the west), and hiking and biking trails, camp sites and parking. FEIS,AR, Vol. 2 at 605-12. Plaintiffs do not dispute the benefits of the 32B Alternative mitigation plan, but take issue with the FHWA's conclusion that the benefits provided by the mitigation plan outweigh the impact of a four-lane highway severing the Haskell Farm from the Baker Wetlands. See Doc. #48 at 60-61. The FHWA, however, weighed plaintiffs' concerns, and after taking a "hard look," it concluded that the 32B Alternative mitigation plan would yield a net benefit to the Haskell Farm and Baker Wetlands. The Court is in no position to second-guess the FHWA's expert weighing of the technical considerations involved. See Boomer Lake, 4 F.3d at 1551.
Plaintiffs do not argue that the FHWA should not have considered the 32B "net benefit;" they only argue that 32B did not create a net benefit. The regulations are unclear whether the 32B net benefit is a proper consideration in determining whether 42A is prudent, but because plaintiffs do not raise this issue, the Court assumes without deciding that the FHWA properly considered the 32B "net benefit."
Bearing in mind that Section 4(f) gives paramount importance to the preservation of protected properties, the question is whether the FHWA could have reasonably believed that the 42A Alternative posed unique problems of extraordinary magnitude based on (1) purpose and need (traffic and safety), (2) Wakarusa floodplain and floodway impacts, (3) accelerated planned and unplanned development south of the Wakarusa River, (4) secondary and cumulative impacts on Haskell Farm, (5) additional adverse environmental impacts, and (6) 32B net benefit. Overton Park, 401 U.S. at 412, 416; Boomer Lake, 4 F.3d at 1549-50 (10th Cir. 1993); see also 23 C.F.R. § 771.135. Even though the FHWA's cost estimate was clearly erroneous, and it admitted inadvertently omitting 38,000 cars from its traffic increase projections, the Court may reverse and remand only if there is a significant chance that but for these errors, the FHWA might have reached a different result. Nat'l Parks Conservation Ass'n, 998 F.2d at 1533 (quoting Salt River Project Agric. Improvement Power Dist., 762 F.2d at 1060-61 n. 8).
On this record, the Court concludes that the FHWA acted within the scope of its authority and could have reasonably believed that the 42A Alternative involved unique problems of extraordinary magnitude that rendered it imprudent. In Boomer Lake, the Tenth Circuit held that an avoidance alternative was imprudent because it could not accommodate future traffic volumes, did not satisfactorily fulfill the purposes of the project and posed safety and cost concerns. Boomer Lake, 4 F.3d at 1550. The same is true here. An alternative that does not adequately accommodate future traffic volume may be rejected as imprudent. Ass'ns Working for Aurora's Residential Env't, 153 F.3d at 1131 (alternative that does not solve existing or future traffic problems, such as congestion, may properly be rejected as imprudent); Boomer Lake, 4 F.3d at 1550 (inability of alternative to accommodate future traffic volumes is justification for rejecting that alternative); Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 947 (10th Cir. 1989) (rejecting no-build alternative because existing streets would not be able to accommodate future traffic volumes). Here, the 42A Alternative would handle 3,634 fewer cars per day and divert less traffic from congested local streets. Final Section 4(f) Evaluation, AR, Vol. 10 at 6891. Safety concerns are also valid considerations in rejecting an alternative. Boomer Lake, 4 F.3d at 1550. Selecting the 42A Alternative would result in 12 more accidents per year by 2025. Final Section 4(f) Evaluation, AR, Vol. 10 at 6891. Moreover, the FHWA found that although the 42A Alternative had no direct impact on Section 4(f) — protected properties, it would ultimately have greater long-term secondary cumulative effects due to increased traffic and development in the vicinity of the Haskell Farm. Final Section 4(f) Evaluation, AR, Vol. 10 at 6895-97. In light of the purpose of Section 4(f) to protect properties like the Haskell Farm, these long-term adverse effects rise to "extraordinary magnitudes." Although no single factor would justify the FHWA's rejection of the 42A Alternative, the cumulative weight of the factors is enough to support the FHWA decision.See Boomer Lake, 4 F.3d at 1550. The Court might have reached a different decision after weighing the relevant factors, but its role in reviewing the FHWA decision is not to determine whether 32B or 42A is the "right" or "better" alternative. Its role is simply to determine whether the FHWA made a reasoned judgment after a hard look at the facts. Eagle Found. v. Dole, 813 F.2d 798, 804 (7th Cir. 1987);see also Marsh, 490 U.S. at 378;Mission Grp. Kan., Inc. v. Spellings, 515 F. Supp. 2d 1232, 1234-35 (D. Kan. 2007). Here, the FHWA met the statutory requirement.
Plaintiffs assert that the FHWA arbitrarily failed to consider the direct and indirect impacts of the 32B Alternative on the Haskell Farm and Baker Wetlands. See Doc. #48 at 46-48. Plaintiffs, however, are mistaken. The FHWA clearly admitted the obvious — that the 32B Alternative has substantial direct impacts on the Haskell Farm. Final Section 4(f) Evaluation, AR, Vol. 10 at 6863. The FHWA analysis did not, as it should not, end there. The FHWA considered the post-mitigation 32B Haskell Farm impacts, both direct and indirect, and compared them to the long-term secondary cumulative impacts of 42A. Id. at 6863-69.
Plaintiffs assert that the 32B Alternative would jeopardize the Haskell Farm's eligibility for listing on the National Register of Historic places. Doc. #58 at 7. Plaintiffs in part rely on Exhibit 15 attached to Plaintiffs' Opening Brief (Doc. #48), which is a National Register bulletin titled "How to Apply the National Register Criteria for Evaluation." The FHWA moves to strike Exhibit 15 because it is not contained in the administrative record to which the Court (with few exceptions) is limited. Doc. #53 at 5. Forest Guardians, 579 F.3d at 1131 (quoting Camp, 411 U.S. at 142); see also Fla. Power Light, 470 U.S. at 743-44 (listing limited exceptions); Citizens for Alts. to Radioactive Dumping, 485 F.3d at 1096. Plaintiffs ask the Court to take judicial notice of the Bulletin because it is an official National Park Service publication. Doc. #58 at 5. The Court sustains defendants' motion to strike. Plaintiffs assert that the Bulletin is relevant because the Court should use it to second-guess the FHWA's judgment regarding the impact which 32B would have on the Haskell Farm. See Doc. #58 at 6-7. The FHWA concluded that the 32B Alternative would have minor sound and visual impacts on the Haskell Farm and considered these impacts in its analysis. See Final Section 4(f) Evaluation, AR, Vol. 10 at 6896-97. The Court is in no position to substitute its judgment for that of the FHWA, particularly with respect to the technical question of National Register eligibility. Therefore, the Court sustains the FHWA's motion to strike Exhibit 15.
Throughout their briefs, plaintiffs accuse defendants of improperly favoring the 32B Alternative and arbitrarily and capriciously skewing the Section 4(f) Evaluation against the 42A Alternative. The record contains no evidence, however, of such nefarious conduct.
B. The 42C Alternative: Overton Park Step Two (Relevant Factors, Clear Errors)
Plaintiffs assert that the FHWA violated Section 4(f) because it arbitrarily refused to consider the PBPN's proposed 42C Alternative. Doc. #60 at 59-60. Section 4(f) requires that the FHWA base its decision on a "consideration of the relevant factors" and not on "a clear error of judgment." See Overton Park, 401 U.S. at 416. In other words, the FHWA must examine enough alternatives to reasonably conclude that the study of additional alternative routes is not worthwhile.Boomer Lake, 4 F.3d at 1551; Eagle Found., 813 F.2d at 807. Although the Court may reverse the FHWA decision if it finds that the FHWA did not examine a viable alternative route that would avoid the Haskell Farm, "the decision concerning which alternatives to consider is necessarily bounded by a rule of reason and practicality." Boomer Lake, 4 F.3d at 1551. The Court's inquiry into the facts is to be searching and careful, but "the ultimate standard of review is a narrow one." Id. Once the Court is satisfied that the FHWA took a "hard look" at the relevant factors, the Court may not substitute its judgment for that of the agency.Davis, 302 F.3d at 1114; see also Overton Park, 401 U.S. at 416.
Plaintiffs argue that the FHWA should have considered the 42C Alternative because, according to the PBPN estimate, it would cost $22.9 million less than the 42A Alternative. Doc. #62 at 16. Even if the Court accepted plaintiffs' 42C cost estimate, which defendants dispute, plaintiffs do not allege that 42C would rectify any of the other deficiencies of 42A, such as safety, diverting city traffic and secondary impacts on the Haskell Farm. The FHWA could have considered innumerable alternative corridors and alignments. It was not required to do so, however; it only had to study enough routes to determine that studying more routes would not be worthwhile. The FHWA studied multiple different 42nd Street alternatives, each of which posed similar problems.
The FHWA disputes plaintiffs' 42C cost estimate, citing the Corps of Engineers estimation that 42C would cost only $5.3 million less than the 42A Alternative, not $19 million. Doc. #55 at 42 (citing Corps ROD, AR, Vol. 3 at 1847, 2540).
Plaintiffs do not suggest, except for cost, that the 42C Alternative would eliminate any of the problems associated with the other 42nd Street alternatives. Because cost was not the single determining factor in the FHWA's Section 4(f) Evaluation, and because the FHWA decision to select 32B was proper even without considering costs, studying the 42C Alternative in further detail would not have augmented the FHWA evaluation or changed the outcome. Moreover, the FHWA did not blindly dismiss the PBPN's 42C Alternative; it decided not to include 42C in its Section 4(f) Evaluation only after the Corps and KDOT reviewed the proposal and determined that it would increase traffic accident risks, and after the FHWA reviewed the Corps' FEIS in light of the proposal. See FHWA ROD, AR, Vol. 10 at 7441-46. Thus the FHWA did not act arbitrarily or capriciously in not considering the 42C Alternative in its Section 4(f) Evaluation. C. Defective Noise Study: Overton Park Step 3 (Procedural Requirements)
Plaintiffs assert that the FHWA sabotaged the PBPN's 42C Alternative by modeling it with extreme curves. The FHWA, however, based its analysis of the 42C Alternative on a model developed by an engineer for PBPN. The FHWA made adjustments to avoid public park and school land, which plaintiffs admit were necessary. See FEIS, AR, Vol. 3 at 2532, 2539.
Plaintiffs assert that the FHWA violated the procedural requirements for conducting noise studies by not measuring existing noise levels or determining the impact of traffic noise increases. Doc. #48 at 42-43. The FHWA argues that neither the Section 4(f) statute ( 49 U.S.C. § 303) nor the regulations ( 23 C.F.R. Part 774) require the FHWA to perform a noise study; therefore, even if the noise study was defective, it cannot be the basis for reversing the FHWA decision. Whether Section 4(f) requires the FHWA to perform a noise increase impact study that complies with 23 C.F.R. § 772 is unclear. Even if it does, the FHWA's failure to comply with the noise study regulations did not prejudice plaintiffs and is not grounds for reversal. See supra Part I.C; New Mexico ex rel. Richardson, 565 F.3d at 708.
Conclusion
For the foregoing reasons, the Court affirms the FHWA's ROD.
IT IS THEREFORE ORDERED that the Federal Highway Administration Record of Decision issued in May of 2008, of which plaintiffs sought judicial review in Plaintiffs' Amended Opening Brief (Doc. #48) filed March 23, 2010, be and hereby is AFFIRMED. IT IS FURTHER ORDERED that the Federal Defendant's Motion To Strike Exhibits With Memorandum In Support Included (Doc. #53) filed May 28, 2010 be and hereby is SUSTAINED IN PART as to Plaintiffs' Exhibits 6, 14 and 15 attached to Plaintiffs' Amended Opening Brief (Doc. #48) filed March 23, 2010, and OVERRULED as to Plaintiffs' Exhibit 5 attached to Plaintiffs' Amended Opening Brief (Doc. #48) filed March 23, 2010.