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Save Our Sound OBX, Inc. v. North Carolina Department of Transportation

United States District Court, E.D. North Carolina, Northern Division

September 5, 2017

SAVE OUR SOUND OBX, INC.; THOMAS ASCHMONEIT; RICHARD AYELLA; DAVID HADLEY; MARK HAINES; JER MEHTA; and GLENN STEVENS, Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; JAMES H. TROGDON, III in his official capacity as Secretary of the North Carolina Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; and JOHN F. SULLIVAN, III, in his official capacity as Division Administrator for the Federal Highway Administration; Defendants, and DEFENDERS OF WILDLIFE; and NATIONAL WILDLIFE REFUGE ASSOCIATION, Intervenor-Defendants.

          MEMORANDUM OPINION

          LOUISE W. FLANAGAN United States District Judge

         This memorandum opinion sets forth reasons for the court's decision entered August 30, 2017, to deny partial motions to dismiss filed by defendants North Carolina Department of Transportation (“NCDOT”) and James H. Trogdon, III (“Trogdon”) (collectively “the state defendants”) and intervenor-defendants Defenders of Wildlife and National Wildlife Refuge Association (collectively “the conservation groups”).

         STATEMENT OF THE CASE

         This action may be characterized as a sequel to Defenders of Wildlife v. North Carolina Dep't of Transp., 762 F.3d 374 (4th Cir. 2014), litigated at the trial level before the undersigned. See Defenders of Wildlife v. North Carolina Dep't. of Transp., 971 F.Supp.2d 510 (E.D. N.C. 2013). In the prior action, the conservation groups sued the state defendants[1] and defendants Federal Highway Administration (“FHWA”) and John F. Sullivan, III (“Sullivan”) (collectively “the federal defendants”). See id. The conservation groups challenged aspects of Phase I of a project (“Bonner Bridge replacement project”) to replace the aging Herbert C. Bonner Bridge (“Bonner Bridge”), which is a part of North Carolina Highway 12 (“NC 12”). See id. at 518-19. This court entered summary judgment in favor of the state and federal defendants, see id. at 536, which decision the Fourth Circuit affirmed in part, reversed in part, and remanded for further proceedings. See Defenders of Wildlife, 762 F.3d at 403. That action came to a close when the state and federal defendants entered into a settlement agreement with the conservation groups April 30, 2015 (“the April 30, 2015 settlement agreement”). (See DE 28-1).

         Plaintiffs initiated this action February 2, 2017, seeking review of decision by the state and federal defendants to approve construction of a “jug-handle” bridge along the Pamlico Sound River, north of Rodanthe, North Carolina, which action would consummate Phase IIb of the Bonner Bridge replacement project. (DE 28 ¶ 1). Plaintiffs amended their complaint as of right March 7, 2017, dropping a claim arising under North Carolina law protested by the state defendants and conservation groups in earlier-filed motions to dismiss.[2] (DE 28). On the same day, plaintiffs moved for preliminary injunction, (DE 29), which motion now is stayed pursuant to this court's order on joint motion for briefing schedule, (DE 43), as the parties have evidenced agreement that no preliminary injunction is appropriate at this time where ground-disturbing activities are not scheduled to commence until March 2018.

         Plaintiff Save Our Sound OBX, Inc. (“Save Our Sound”) is a non-profit corporation existing under the laws of North Carolina with its principal place of business in North Carolina. (DE 28 ¶11). Save Our Sound's mission is to “preserve the Pamlico Sound-including federally protected waters lying within the presidential proclamation boundary of the Pea Island National Wildlife Refuge-and its surrounding areas.” (Id.).

         The individual plaintiffs are members of Save Our Sound. (Id. ¶¶ 11-17). Plaintiffs Thomas Aschmoneit, David Hadley, Mark Haines, Jer Mehta, and Glenn Stevens own property near the proposed construction site for the jug-handle bridge, and each individual plaintiff regularly uses the public lands, wetlands, and waters in and around the Pea Island National Wildlife Refuge (“Pea Island Refuge”). (Id. ¶¶ 12-17). The individual plaintiffs' use and enjoyment of the Pea Island Refuge will be diminished if the jug-handle bridge is constructed. (Id.). Moreover, the individual plaintiffs will suffer diminished property values due to reduced kiteboarding tourism in Rodanthe, North Carolina if the jug-handle bridge is built. (Id. ¶ 11).

         Defendant FHWA is a federal administrative agency within the United States Department of Transportation, and defendant Sullivan is administrator for the FHWA's North Carolina Division Office. (Id. ¶¶ 18-19). The FHWA is charged with administration of numerous statutes pertaining to domestic road transportation, including statutes governing highway construction projects eligible for federal funding from the National Highway Trust Fund, projects involving construction over protected wildlife preserves, and environmental review of such projects pursuant to the National Environmental Policy Act, 42 U.S.C. § 4331, et seq. (“NEPA”), and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(a); 23 U.S.C. § 138(a) (“Section 4(f)”). See 49 U.S.C. § 104 (duties of the FHWA).

         Defendant NCDOT is a North Carolina administrative agency vested with authority over highway construction within North Carolina, and defendant Trogdon is its Secretary. (DE 28 ¶¶ 20-21). Under federal law, NCDOT constitutes the “state transportation department” bearing responsibility to submit to the Secretary of Transportation any project requiring the Secretary's approval. 23 U.S.C. § 106(a)(1).

         Plaintiffs allege that the state and federal defendants approved construction of the jug-handle bridge without proper consideration of environmental consequences and feasible alternatives. Plaintiffs allege in count one that the state and federal defendants have failed to generate and consider a supplemental environmental impact statement as required by NEPA. (DE 28 ¶ 68-72). In count two plaintiffs allege that defendants violated Section 4(f) where the operative reason for state and federal defendants' decision to approve the jug-handle bridge was pre-determined intent to comply with terms of the April 30, 2015 settlement agreement, rather than proper regard of proceed under the judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.

         Plaintiffs seek declaratory judgment that the state and federal defendants have violated NEPA and Section 4(f) and that their decision to approve the jug-handle bridge project, set forth in a “Record of Decision” issued December 15, 2016 (“2016 Phase IIb ROD”) is of no force and effect. Plaintiffs also seek injunction directing compliance with the foregoing environmental laws and other ancillary relief including litigation costs and attorney's fees.

         The state defendants move to dismiss as plaintiff Save Our Sound on the ground that it failed to submit comments during the environmental review period as required under the Fixing America's Surface Transportation Act (the “FAST Act”), 42 U.S.C. § 4370m, et seq . The state defendants posit a distinction between the individual plaintiffs in their capacities as members of Save Our Sound (the “member individuals”) and the individual plaintiffs appearing in a non-associational capacity (the “singular individuals”). The state defendants concede that the singular individuals timely submitted comments as required by the FAST Act and, thus, are not subject to dismissal. The state defendants contend, however, that the member individuals' comments are untimely, and, for this reason, their APA claims are barred.

         The conservation groups move for partial dismissal on other grounds. First, the conservation groups move to dismiss count one of the amended complaint to the extent plaintiffs assert a direct challenge to the sufficiency of a Final Environmental Impact Statement issued in 2008 (“2008 FEIS”). The conservation groups argue that any challenge to the sufficiency of that document is now time-barred. Second, the conservation groups move to dismiss count two of the amended complaint on the ground that plaintiffs lack standing to assert claims arising under Section 4(f) where plaintiffs fail to allege injury to any interest protected by Section 4(f) and where plaintiffs submitted comments during the environmental review period that failed to place the state and federal defendants on notice of any challenge to the Bonner Bridge replacement project arising under Section 4(f) as required by the FAST Act.

         STATEMENT OF THE FACTS

         The facts alleged in the amended complaint viewed in the light most favorable to plaintiffs may be summarized as follows. Bonner Bridge connects Bodie and Hatteras Islands in the Outer Banks. (DE 28 ¶ 39). The southern end of Bonner Bridge lies in Pea Island Refuge, which spans from the northern tip of Hatteras Island to the village of Rodanthe. (See i d .). Beginning in the early 1990s, defendants FHWA and NCDOT began to study replacement projects for the aging Bonner Bridge, as well as improvements to sections of NC 12, which endeavors ultimately led to the Bonner Bridge replacement project as it now stands. (Id. ¶¶ 42-62).

         The state and federal defendants formed a “NEPA/Section 404 Merger Team” (the “Merger Team”) consisting of representatives from FHWA, NCDOT, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, the National Marine Fisheries Service, the National Park Service, the North Carolina Department of Cultural Resources, the North Carolina Wildlife Resources Commission, the North Carolina Department of Environment and Natural Resources (“NCDENR”) - Division of Water Quality, the NCDENR - Division of Coastal Management, and the NCDENR - Division of Marine Fisheries to facilitate streamlined decision-making affecting the Bonner Bridge replacement project. (Id. ¶ 41; DE 28-2). Pursuant to a Memorandum of Understanding executed by the members of the Merger Team, once a member indicates “concurrence” at a given point in the overall project, that member of the Merger Team must abide by the decision subject to concurrence absent circumstances warranting reevaluation. (See DE 28-2 at 2-3).

         In September 2008, the 2008 FEIS for the Bonner Bridge replacement project was issued. (DE 28 ¶ 43). The 2008 FEIS included a Final Section 4(f) Evaluation, addressed seven alternatives, and identified the “Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge” as the preferred alternative. (Id.). The 2008 FEIS considered at least one proposal that included a bridge along Pamlico Sound near Rodanthe, but the bridge proposed therein was aligned differently than the jug-handle bridge under review. (Id.). Also among the proposed alternatives were solutions involving beach nourishment (importation of sand into an eroding shoreline) and beach nourishment combined with a bridge within the existing NC 12 easement. (Id. ¶ 44). The 2008 FEIS's analysis pertaining to beach nourishment was conducted in light of shoreline erosion projections based on modeling completed in 2004. (Id.). Although later models of shoreline erosion were eventually developed, no supplement to 2008 FEIS incorporated these updated models. (Id. ¶ 60).

         In October 2009, a Revised Final Section 4(f) evaluation was issued, which added and selected a new alternative titled the “Parallel Bridge Corridor with NC-12 Transportation Management Plan.” (Id. ¶ 45). This alternative introduced the phased approach to the Bonner Bridge replacement project now in effect. (Id.). Under Phase I, the Bonner Bridge over Oregon Inlet was to be replaced as soon as possible. (Id.). The substance of future phases was left to be determined “based on actual conditions . . at the point in time that additional action becomes necessary.” (Id.). Following a May 2010 Environmental Assessment (the “2010 Phase I EA”), which included the Revised Section 4(f) Evaluation as an appendix, a Record of Decision was issued in December 2010 (the “2010 Phase I ROD”) approving construction of a replacement bridge over Oregon Inlet in conformity with the alternative identified in the Revised Final Section 4(f) Evaluation and the 2010 Phase I EA. (Id. ¶¶ 46-47).

         In August 2011, Hurricane Irene damaged NC 12 in the Rodanthe S Curves (“S Curves”) and within the Pea Island Refuge approximately six miles south of Oregon Inlet. (Id. ¶ 48). In February 2013, an environmental assessment was issued for Phase IIa of the Bonner Bridge replacement project in furtherance of the state and federal defendants' plan to provide long-term improvements at the location of breaches in the Pea Island Refuge caused by the hurricane. A Record of Decision was issued for Phase IIa in October 2013. (Id. ¶ 49).

         In December 2013, an Environmental Assessment (the “2013 Phase IIb EA”) was issued, which addresses plans to implement long-term improvements along the S Curves. (Id. ¶ 50). The 2013 Phase IIb EA identified four alternatives consisting of the jug-handle bridge, which was ultimately selected, an “Easement Bridge, ” which would have been situated within the existing NC 12 easement and closely approximate the current path of that highway, beach nourishment, and beach nourishment combined with a bridge within the existing easement. (Id. ¶ 50). These four alternatives are depicted as follows:

(Image Omitted.)

(Id.). Although the 2013 Phase IIb EA identified as alternatives beach nourishment and beach nourishment combined with a bridge within the existing NC 12 easement, it summarily rejected these alternatives, stating that the Merger Team already had decided to eliminate them from “detailed study.” (Id.). The 2013 Phase IIb EA ...


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