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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

June 4, 2018

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.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on the parties' cross-motions for summary judgment. (DE 95, 107, 108, 115). The motions have been fully briefed, and the issues raised are ripe for ruling. For reasons noted, plaintiffs' motion is denied and defendants' and intervenor-defendants' motions are granted.

         STATEMENT OF THE CASE

         This action concerns the highway construction project designated in the administrative record as State Transportation Improvement Program Project No. B-2500 (“B-2500 project”).[1] T h e overall purpose the B-2500 project is to provide a reliable method of road transportation in North Carolina's outer banks through 2060 by replacing and improving a stretch of North Carolina Highway 12 (“NC-12”) from the southern end of Bodie Island to the village of Rodanthe. The B-2500 project is segmented into phases. Phase I, wherein construction now is ongoing, involves construction of a new bridge to span Oregon Inlet - a short waterway that runs between Bodie and Hatteras Islands and connects the Pamlico Sound in the West with the Atlantic Ocean in the East. Phase I will serve to replace the aging Herbert C. Bonner Bridge (“Bonner Bridge”), which served as the only mode of crossing Oregon Inlet since that bridge opened in 1962.

         In an earlier action brought prior to initiation of Phase I, intervenor-defendants Defenders of Wildlife and the National Wildlife Refuge Association (collectively, “conservation groups”), sued Eugene A. Conti, Jr., then-Secretary of the North Carolina Department of Transportation (“NCDOT”), and defendant NCDOT challenging a Record of Decision issued in 2010, (“2010 Phase I ROD”), which authorized construction of Phase I. Defenders of Wildlife v. North Carolina Department of Transportation; 762 F.3d 374 (4th Cir. 2014). That action was litigated at the trial level before the undersigned. 971 F.Supp.2d 510 (E.D. N.C. 2013). This court ruled in favor of the defendants on cross-motions for summary judgment. On appeal, the Fourth Circuit affirmed in part, reversed in part, and remanded for further proceedings. That action came to a close when, on April 11, 2015, the parties filed joint stipulation of dismissal, which action consummated settlement agreement executed by the parties (“2015 settlement agreement”).

         Phase II, which has been further subdivided in Phases IIa and IIb, involves building improvements to NC-12 in two areas of the outer banks that defendant NCDOT has designated as “hot spots” where natural erosion and overwash regularly damage NC-12 requiring maintenance and road closures. Phase IIa embraces improvements in the area between the southern end of the Pea Island Wildlife Refuge's (“Refuge”) South Pond and the northern end of the 2.1-mile section of NC-12 in the southern half of the Refuge that is not expected to be threatened by shoreline erosion prior to 2060. This area includes a breach caused by Hurricane Irene in August 2011 that temporarily opened an inlet between Pamlico Sound and the Atlantic Ocean, which inlet now is closed due to natural processes.

         Phase IIb, which is the subject of this litigation, involves improvements to the area between the Emergency Ferry Dock in Rodanthe to approximately 1.8 miles north of the Refuge border. This area includes a breach in Rodanthe, also caused by Hurricane Irene, as well as the Rodanthe “S Curves Hot Spot” and two other areas identified in the 2008 Final Environmental Impact Statement (“2008 FEIS”) as geologically susceptible to breaches.

         On December 15, 2016, defendants NCDOT and James H. Trogdon, III (“Trogdon”) (collectively, “state defendants”) and defendant Federal Highway Administration (“FHWA”) and John F. Sullivan, III (“Sullivan”) (collectively, “federal defendants”), together with other interested agencies (collectively “the Agencies”), issued a Record of Decision (“2016 Phase IIb ROD”), which approved plans for Phase IIb. The 2016 Phase IIb ROD approves construction of a bridge that removes a section of NC-12 from the Refuge into the Pamlico Sound (“jug-handle bridge”).

         Plaintiffs initiated this action February 2, 2017, challenging the 2016 Phase IIb ROD under the National Environmental Policy Act (“NEPA”), Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the North Carolina Environmental Policy Act, and the judicial review provisions of the Administrative Procedure Act (“APA”).

         The conservation groups, formerly plaintiffs in the settled Phase I litigation, moved to intervene on March 3, 2017. This court granted that unopposed motion. Plaintiffs then amended their complaint as a matter of right on March 7, 2017, abandoning their claims under North Carolina law. At the same time, plaintiffs moved for preliminary injunction, which motion this court initially stayed, and recently denied without prejudice rather than maintain indefinite stay, as the parties agreed that no ground-disturbing activities were scheduled to commence until March 2018, and further extended in the current schedule to June 6, 2018.

         Federal defendants lodged the administrative record July 7, 2017, which consists of the prior administrative record underlying Phase I and additional documents generated since that time. Plaintiffs moved to compel completion of the administrative record, or, in the alternative, to compel production of agreement negotiation materials pertinent to the 2015 settlement agreement so that plaintiffs might assert them as extra-record evidence. This court denied that motion October 20, 2017. Also on October 20, 2017, plaintiffs moved for leave to file a second amended complaint, seeking to add claims arising under Section 106 of the National Historic Preservation Act (“Section 106”). On October 26, 2017, the court granted plaintiffs' request to withdraw the October 20, 2017, motion to amend the complaint and to assert, instead, a revised motion to amend. On December 5, 2017, the court granted in part the revised motion to amend allowing amendments related to a possible haul route located in the Rodanthe Historic District, but denied the motion as it pertained to claims related to a shipwreck off Pappy Lane in the Phase IIb project area. Plaintiffs moved for summary judgment on January 10, 2018. Defendants and intervenor-defendants cross-moved for summary judgment on February 21, 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. The individual plaintiffs are members of Save Our Sound. Each individual plaintiff claims non-economic injury arising from, among other things, regular use of the public lands, wetlands, and waters in and around the Refuge and the Rodanthe Historic District.

         Defendant FHWA is a federal administrative agency within the United States Department of Transportation. Defendant Sullivan is administrator for the FHWA's North Carolina Division Office. FHWA administers various statutes pertaining to highway transportation, including statutes governing highway construction projects eligible for federal funding, projects involving construction over protected wildlife preserves, and environmental review of such projects pursuant to NEPA, Section 4(f), and Section 106.

         Defendant NCDOT is a North Carolina administrative agency with authority over highway construction within North Carolina. Defendant Trogdon is NCDOT's Secretary. NCDOT is the state transportation department with responsibility to submit to the Secretary of Transportation any project requiring the Secretary's approval. For purposes of NEPA, FHWA and NCDOT are joint lead agencies, which designation, under pertinent federal regulations, charges FHWA and NCDOT with responsibility to supervise preparation of any environmental impact statement required under NEPA.

         Plaintiffs contend that the Agencies approved construction of the jug-handle bridge without appropriate consideration of environmental consequences under NEPA, feasible alternatives under Section 4(f), and effects on historically significant property under Section 106. Plaintiffs seek judicial review pursuant to the APA.

         Plaintiffs moved for summary judgment January 10, 2018. In support, plaintiffs rely on the administrative record, declarations from each individual plaintiff, and an e-mail transmission written by counsel for state defendants John Batherson. Each defendant cross-moved for summary judgment February 21, 2018. In support of their motions, defendants rely also on the administrative record.

         STATEMENT OF THE UNDISPUTED FACTS

         The undisputed facts may be summarized as follows. NC-12 runs north-to-south along the outer banks of North Carolina and connects Bodie Island in the North with Rodanthe in the South, and continues along the Outer Banks. AR 58326.[2] The southern end of Bonner Bridge lies in the Refuge, which spans from the northern tip of Hatteras Island to Rodanthe. Id. Beginning in the early 1990s, FHWA and NCDOT began to study replacement projects for the aging Bonner Bridge, as well as improvements to sections of NC-12, which is the only North-South roadway along portions of the outer banks. RD 2261.

         FHWA and NCDOT formed a “NEPA/Section 404 Merger Team, ” (“Merger Team”) consisting of representatives from FHWA, NCDOT, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers (“USACE”), 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 Environmental and Natural Resources (“NCDENR”) - Division of Water Quality, the NCDENR - Division of Coastal Management, and the NCDENR - Division of Marine Fisheries. RD 28988. 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 decision subject to concurrence absent circumstances warranting reevaluation. RD 16644-50.

         In September 2008, the 2008 FEIS issued, which document included a Final Section 4(f) Evaluation, AR 58795, addressed seven alternatives plans for improvements to NC-12, and identified the “Parallel Bridge Corridor with Phased Approach/Rodanthe Bridge” as the preferred alternative. AR 58280-81. The 2008 FEIS assessed a proposal termed the Road North/Bridge South alternative that included a bridge in Pamlico Sound near Rodanthe in the current Phase IIb area, although the alignment of that bridge was different than the jug-handle bridge now under review. AR 58277. Also among the alternatives selected for detailed study were proposals involving beach nourishment and beach nourishment combined with a bridge within the existing NC-12 easement. The 2008 FEIS's analysis pertaining to beach nourishment was conducted in light of shoreline erosion projections based on modeling completed in 2004. AR 58277-78.

         In October 2009, a Revised Final Section 4(f) evaluation issued, AR 75239, which added an alternative titled the “Parallel Bridge Corridor with NC-12 Transportation Management Plan.” AR 75244. This alternative contemplates a phased approach to the overall B-2500 project with mixing and matching of components borrowed from other alternatives previously identified in the 2008 FEIS. Id. In Phase I, the Bonner Bridge over Oregon Inlet would be replaced as soon as possible. The content of future phases was left to be determined “based on actual conditions existing on Hatteras Island at the point in time that additional action becomes necessary.” Id. Following a May 2010 Environmental Assessment (“2010 Phase I EA”), AR 83394, the 2010 Phase I ROD issued in December 2010 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. AR 91952.

         In August 2011, Hurricane Irene damaged NC-12 in the Rodanthe S Curves and within the Refuge approximately six miles south of Oregon Inlet, creating the Pea Island Inlet. RD 29249. In February 2013, an Environmental Assessment (“2013 Phase IIa EA”) issued to account for these environmental changes. Id. Incorporating information developed in the 2013 Phase IIa EA, a Record of Decision (“Phase IIa ROD”) issued in October 2013 and approved plans to construct an alternative termed “Bridge within Existing Easement, ” which would involve “building a bridge in the existing NC 12 easement approximately 2.1 miles in length to replace the existing surface road and the temporary bridge over the Pea Island inlet.” RD 10753. As of issuance of the Phase IIa EA, improvements in the area around the Pea Island Inlet were designated “Phase IIa, ” RD 29247, while improvements near northern Rodanthe were designated “Phase IIb.” RD 29248. The foregoing alternative for Phase IIa would have provided a long-term bridge over hot spots on Pea Island through 2060; however, it was not constructed for reasons described in more detail below.

         In December 2013, the Agencies issued an Environmental Assessment pertinent to the Phase IIb area in northern Rodanthe (“2013 Phase IIb EA”), which updated previous NEPA documentation. RD 17805. The 2013 Phase IIb EA addresses plans to implement long-term improvements to NC-12 along the S Curves and in areas near Rodanthe damaged by Hurricane Irene. RD 17823. The 2013 Phase IIb EA identified four alternatives consisting of (1) the “Bridge on New Location [(also, “jug-handle bridge”)]; (2) an “easement bridge” within the existing NC-12 easement (“easement bridge”); (3) beach nourishment; and (4) beach nourishment combined with a bridge within the existing easement. RD 17829. The latter two options were eliminated from detailed study at a Merger Team meeting held November 14, 2012. RD 17834. Thus, only the former options were assessed in the 2013 Phase IIb EA in detail, and the easement bridge was identified as the preferred alternative. RD 17849.

         Neither the jug-handle bridge nor the easement bridge studied in the 2013 Phase IIb EA were entirely new alternatives. The jug-handle bridge assessed in the 2013 Phase IIb EA builds upon and incorporates changes to “the Bridge South component of the Road North/Bridge South Alternative that was assessed in the 2010 [Phase I] EA.” RD 11573. In turn, the Road North/Bridge South alternative discussed in the 2010 Phase I EA constitutes a modified and more detailed version of the Road North/Bridge South alternative studied in the 2008 FEIS. AR 83408-08 (“Several modifications were made to the detailed study alternatives . . . since the release of the [2008] FEIS . . . These changes are: . . . [m]odifications to the conceptual designs . . . for the Road North/Bridge South [and other] alternatives.”). Similarly, the easement bridge assessed in the 2013 Phase IIb EA incorporates “refinements from the Phased Approach/Rodanthe Bridge Alternative assessed in the 2008 FEIS and 2010 EA.” RD 11574. In this manner, both alternatives assessed in the 2013 Phase IIb EA incorporate analysis from earlier NEPA documentation and further develop the record pertinent to those alternatives.

         Following release of the 2013 Phase IIb EA, the Merger Team held a series of public meetings to “obtain public input on long-term improvements to NC 12 . . . .” RD 11789. The Merger Team accepted written comments. RD 11790. Following the comment period, NCDOT developed two new possible alignments for the Bridge on New Location Alternative designed to avoid areas of dense submerged aquatic vegetation in the southern half of the project area. RD 16946-47. Each alignment is described in the record as “nearly identical” to the alignment studied in the 2013 Phase IIb EA. RD 16947. These two new alignments are depicted below alongside the alignment identified in the 2013 Phase IIb EA and the original “2010 Bridge South” alignment identified in the 2008 FEIS:

         (Image Omitted)

RD 23455.

         At a February 2014 meeting, National Marine Fisheries Service agreed that the proposed new alignment was preferable to the 2013 alignment, but requested more information regarding submerged aquatic vegetation. RD 16947. The proposed new alignments were presented at a March 6, 2014, Merger Team meeting. RD 14273. During that meeting, the Merger Team concurred that the jug-handle bridge and easement bridge would be evaluated further as possible alternatives for Phase IIb. RD 14278.

         Also during 2014, defendants FHWA and NCDOT litigated the conservation groups' challenge to the 2010 Phase I ROD and related documents. See Defenders of Wildlife v. N.C. Dep't. of Transp., 2:11-cv-35-FL (E.D. N.C. ). The conservation groups objected to two key components of the B-2500 project. First, the conservation groups objected to segmentation of the B-2500 project into phases, contending that defendants should have undertaken to plan and analyze environmental effects of the entire B-2500 project prior to any construction activity. See id., Pls.' Compl. ¶¶ 51, 67-77. Second, the conservation groups objected to defendants' reliance on a “joint planning exception” to Section 4(f), which defendants erroneously believed absolved them of their duty to analyze environmental effects of the B-2500 project on the Pea Island Refuge “as a refuge.” Id. ¶¶ 108-09. Read as a whole, the conservation groups' complaint in that action discloses that the conservation groups primarily were concerned that the Agencies had failed to plan the B-2500 project, as a whole, in a manner that would minimize environmental effects on the Refuge. See Id. ¶ 51 (“In other words, the Defendants opted to ignore the problem of what to do with NC-12 and segmented the Project in order to move forward with a replacement for Bonner Bridge.”). That is, the central issue of the conservation groups' prior litigation was not the selected alternative to replace Bonner Bridge in Phase I; rather, it was the subsequent transportation management plan, which at that time did not account for environmental effects on the Refuge “as a refuge” that occupied the conservation groups' address. See id.

         The Fourth Circuit rejected the conservation groups' challenge to defendants' decision to plan the B-2500 project in phases. Defenders of Wildlife, 762 F.3d at 398. However, the Fourth Circuit agreed with the conservation groups that no joint planning exception to the strictures of Section 4(f) was available. Id. at 401-02. In this manner, the conservation groups' litigation efforts may be characterized as successful in that the conservation groups established that the law required defendants to analyze environmental effects on the Refuge under the strict standards of Section 4(f) rather than under the more limited procedural rules of NEPA, thus requiring defendants to give significantly more weight to any environmental effects on the Refuge than the 2010 Phase I ROD contemplated. See id.

         The parties to that action settled April 30, 2015. (DE 91-1). Under the terms of the 2015 settlement agreement, the conservation groups agreed to take dismissal of Defenders of Wildlife, which result allowed defendants to begin construction of a replacement for Bonner Bridge. (DE 96-1 ¶ 1.h). In exchange, defendants made two main concessions regarding later phases of the B-2500 project. First, defendants agreed to rescind the contract for Phase IIa, which, as noted, contemplated construction of a bridge, permanent through 2060, over the Pea Island Inlet and associated hot spots on Pea Island, and, instead, enter a contract to construct an interim bridge for the Phase IIa area. (Id. ¶ 1.a). The 2015 settlement agreement required that any interim solution for Phase IIa be designed to leave open possibility that NC-12 eventually will be moved outside the Refuge completely, with relevant sections relocated to a bridge in Pamlico Sound. (Id. ¶ 3.a).

         Second, the 2015 settlement agreement provided that NCDOT must identify the jug-handle bridge “as its preferred alternative and seek Merger Team Concurrence . . . .” (Id. ¶ 1.c). The agreement provided also that “[n]othing in this Agreement requires or should be interpreted to predetermine the choice of the Phase IIb [jug-handle bridge] as the Selected Alternative.” (Id.) . T h e 2015 settlement agreement further required that NCDENR, Division of Coastal Management “provide a written statement of its support and preference” and “otherwise . . . use best efforts to help NCDOT attempt to secure Merger Team concurrence.” (Id. ¶ 1.e). In the event that the Merger Team reached concurrence and concluded that the jug-handle bridge is the Least Environmentally Damaging Practicable Alternative (“LEDPA”), the 2015 settlement agreement required defendants FHWA and NCDOT to “promptly revise” the 2013 Phase IIb EA and Section 4(f) Evaluation to idenitfy the Bridge on New Location as the preferred alternative, and to “[p]ropose to identify the Phase IIb . . . Alternative as the ‘least overall harm' alternative[.]” (Id. ¶ 3.c.i).

         On June 17, 2015, the Merger Team identified the 2014B Bridge on New Location as the LEDPA. RD 16982. On May 24, 2016, FHWA and NCDOT issued the 2016 Revised Phase IIb EA, which document provided updates regarding any changed environmental circumstances occurring since issuance of the 2013 Phase IIb EA. RD 28978. The 2016 Revised Phase IIb EA addressed the same alternatives as the 2013 Phase IIb EA, and included also discussion of the two additional alignments for the Bridge on New Location alternative introduced following the 2013 Phase IIb EA comment period. RD 28983-86. On December 15, 2016, FHWA, with the Merger Team's concurrence, issued the 2016 Phase IIb ROD approving the Bridge on New Location 2014B alignment as the selected alternative. RD 28979-80. This action followed.

         DISCUSSION

         A. Standards of Review

         1. Summary Judgment

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On cross-motions for summary judgment, the court “consider[s] each motion separately on its own merits to determine whether [any] of the parties deserves judgment as a matter of law.” Defs. of Wildlife, 762 F.3d at 392. The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those ...


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