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Conservation Alliance of St Lucie County, Inc. v. U.S. Department of Transportation, Secretary

United States Court of Appeals, Eleventh Circuit

February 3, 2017

CONSERVATION ALLIANCE OF ST LUCIE COUNTY, INC., a Florida Not-For-Profit Corporation, TREASURE COAST ENVIRONMENTAL DEFENSE FUND, a.k.a. Indian Riverkeeper, Plaintiffs - Appellants,
U.S. DEPARTMENT OF TRANSPORTATION, SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, VICTOR MENDEZ, Administrator of the Federal Highway Administration, JAMES CHRISTIAN, Division Administrator of the Florida Division of the Federal Highway Administration, Defendants-Appellees, CITY OF PORT ST. LUCIE, Intervenor Defendant.

         Appeal from the United States District Court for the Southern District of Florida, No. 2:14-cv-14192-DMM

          Before MARCUS, DUBINA, and WALKER, [*] Circuit Judges.

          MARCUS, Circuit Judge:

         When the City of Port St. Lucie sought to build a new bridge spanning the North Fork St. Lucie River (NFSLR), it was required to work with the Federal Highway Administration (FHWA) and the Florida Department of Transportation (FDOT) to choose an acceptable location for that bridge. The selection process was complicated by the fact that each of the proposed paths for the new bridge impacted "publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge" that is protected under § 4(f) of the Department of Transportation Act. 49 U.S.C. § 303(c). Under § 4(f), the Secretary of Transportation may approve projects that use § 4(f) lands only if the agency first determines that there is no feasible and prudent alternative to using that land. Id. at § 303(c)(1). If there are no such alternatives, the agency must conduct "all possible planning" to minimize harm to the protected lands. Id. at § 303(c)(2).

          The Federal Highway Administration and the City worked in concert with many federal, state, and local agencies to conduct a lengthy analysis of the sociocultural, economic, and environmental impacts each alternative carried in its wake before making a selection. The agencies also collaborated on a mitigation plan to remedy the adverse effects of the preferred alternative. Ultimately, all of the agencies involved in the review agreed on a path for the new bridge that would use approximately two acres of § 4(f) land.

         Plaintiff-appellants Conservation Alliance of St. Lucie County, Inc., and Treasure Coast Environmental Defense Fund, Inc., are two environmental organizations that challenge the FHWA's selected alternative. They claim that the FHWA abused its discretion in not selecting their proffered alternative that, when built with a spliced-beam construction, would avoid all use of § 4(f) lands. After examining this alternative, the FHWA determined that spliced-beam construction would cause significantly greater harm to non-§ 4(f) wetland areas and, therefore, deemed the spliced-beam construction "imprudent." It also concluded that Appellants' favored path was imprudent because it would cause "severe social impacts." That path would require the construction of a new six-lane roadway running diagonally through an established residential neighborhood, which would result in residential and commercial relocations, would create substantial visual and noise impacts, would require the relocation of a retirement community's access road, and would have the potential to affect neighborhoods with a higher than average number of minority households. Ultimately, the FHWA rejected Appellants' favored alternative as "imprudent." Appellants now claim that these determinations were arbitrary and capricious.

         We recognize that § 4(f) sets a high bar that an agency must clear before it may approve a project that affects any § 4(f) lands. Here, however, the FHWA cleared that bar. "[S]evere and immitigable social impacts" associated with Appellants' preferred alternative would be sustained in order to avoid the use of barely two acres of parkland in parks with nearly 10, 000 acres in total. What's more, the FHWA worked with federal, state, and local agencies to develop ambitious mitigation plans that include the addition of nearly 110 acres to the affected parks. The FHWA was thorough and careful in its analysis and thoughtful in its determination, and we can discern neither an arbitrary or capricious action nor an abuse of discretion. Accordingly, we affirm.



         The City of Port St. Lucie, some one hundred and fifteen miles north of Miami, has grown rapidly in the past twenty-five years, nearly tripling in population from about 56, 000 residents in 1990 to about 164, 000 residents in 2010. The best predictions are that its population will exceed 225, 000 by 2035.Currently, only two bridges within the City cross the North Fork St. Lucie River: the bridge at Port St. Lucie Boulevard and the bridge at Prima Vista Boulevard. Those bridges link the communities on the east and west sides of the river and provide the only means of east-west emergency evacuation in case of a natural disaster like a hurricane for residents east of the NFSLR. The existing traffic crossing those two bridges now well exceeds the bridges' capacities.

         Indeed, the City recognized the need for a third crossing of the NFSLR as early as 1980, and it was determined that merely widening the two existing bridges would not provide the necessary traffic relief. The general location for the new crossing was set between the two existing bridges, and in June 2008 the City conducted a study to identify an appropriate corridor for the bridge (the "Corridor Report"). After consulting advisory groups and the Federal Highway Administration, the City concluded that Corridor 5 (the "Crosstown Parkway Corridor") was "the only location for a crossing that met the purpose and need for the project."

         After selecting the Crosstown Parkway Corridor for the project, the City conducted another report (the "Alternatives Report") that examined ten alternative sites within Corridor 5: a Multimodal Alternative (which involved influencing travel behaviors and incentives), a Transportation System Management Alternative (which involved operational and intersection improvements), and eight build alternatives (which involved new crossings of the NFSLR). Both the Corridor Report and the Alternatives Report were reviewed by the Environmental Technical Advisory Team, which for this project included the FHWA, the U.S. Army Corps of Engineers ("Army Corps"), the U.S. Environmental Protection Agency (EPA), the U.S. National Marine Fisheries Service (NMFS), the U.S. Fish and Wildlife Service (FWS), the U.S. Coast Guard (USCG), the South Florida Water Management District (SFWMD), the Florida Department of Environmental Protection (FDEP), the Florida Fish and Wildlife Conservation Commission (FWC), the Florida Department of Economic Opportunity, the Florida Department of State, the Miccosukee Tribe, the Natural Resources Conservation Service, and the St. Lucie Transportation Planning Organization (TPO). The reports were also posted in the FDOT's online Environmental Screening Tool. No comments were submitted on the reports, which were accepted by the FHWA on March 24, 2009. The City determined that the Multimodal Alternative, the Transportation System Management Alternative, and two of the eight build alternatives did not meet the project's purpose and need. The FHWA reviewed the City's reports and concluded that, "due to the sensitive social and environmental character of the project area and to ensure a comprehensive comparison and evaluation of alternatives, the remaining six build alternatives would be carried forward as potential viable alternatives for evaluation." The six build alternatives are depicted below in Figure 1.

         (Image Omitted)

          The FHWA, as the lead federal agency, then began preparing an Environmental Impact Statement (EIS), as it was required to do by the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), codified at 42 U.S.C. § 4321 et seq., and which was to be conducted by the City. In compiling the Draft EIS, the City considered obvious concerns, including social and economic impacts, physical-resource impacts, visual impacts, natural-resource impacts, and cumulative impacts associated with the alternatives. An analysis under § 4(f) of the Department of Transportation Act, Pub. L. No. 89-670, 80 Stat. 931, 934 (1966), codified as amended at 49 U.S.C. § 303(b)-(c), was also mandated, because three properties within the project area -- the North Fork St. Lucie River Aquatic Preserve (AP), the Savannas Preserve State Park (SPSP), and Kiwanis Park[1]-- are "park[s], recreation area[s], wildlife and waterfowl refuge[s], or historic site[s]" that are protected under § 4(f). 49 U.S.C. § 303(c). These analyses were compiled into a Draft EIS that the FHWA approved and made publicly available on July 1, 2011. The § 4(f) properties in relation to the build alternatives are depicted below in Figure 2.

         (Image Omitted)

          As the project sponsor, the City was tasked with the responsibility of selecting a Locally Preferred Alternative (LPA). On November 17, 2011, after a lengthy evaluation process, the City, the FDOT, and the TPO selected build Alternative 1C as the LPA. On January 23, 2012, the Port St. Lucie City Council adopted Alternative 1C as the LPA. On July 16, 2012, the FDOT wrote to the FHWA to formally request that it identify Alternative 1C as the preferred alternative, and on July 30, 2012, the FHWA concurred in the selection of Alternative 1C.

         The FHWA then revised the Draft Environmental Impact Statement into a Final Environmental Impact Statement that was issued in June 2013 and was approved for public circulation on November 14, 2013. The Final EIS was subsequently incorporated into the FHWA's final Record of Decision. The Final EIS recounted the considerable efforts taken by the City and the FDOT to select an LPA and restated the analyses that had previously been reported in the Corridor Report, the Alternatives Report, and the Draft EIS. It analyzed each build alternative carefully, and it also considered different methods of bridge construction. While one method -- spliced-beam construction -- would have resulted in Appellants' favored Alternative 6A avoiding all use of § 4(f) land, the FHWA determined that spliced-beam construction was imprudent due to its substantially larger impact on non-§ 4(f) wetland habitats.

          The FHWA concluded that each build alternative used some § 4(f) land and, therefore, that no feasible and prudent avoidance alternatives existed. Notably, Appellants' favored Alternative 6A was not an avoidance alternative because it would use 0.01 acres of the Aquatic Preserve through the placement of piers in the riverbed. It was also deemed imprudent due to its "severe social impacts." Although Alternative 6A would swing far to the north to avoid running through the Savannas Preserve State Park, its northerly route would require constructing a new six-lane roadway that would run diagonally through an established residential area where no road currently exists. The FHWA concluded that the new road's negative impacts on community cohesion and local mobility were significant enough to render this alternative imprudent.

         The Federal Highway Administration then considered various alternatives to determine which one resulted in the least overall harm. Based on its own analyses and on the reports generated by the City, and after coordination with the public, stakeholders, and regulatory and cooperating agencies including the FDOT, the FDEP, and the TPO, the FHWA eliminated four of the six build alternatives, including Alternative 6A, "due to the magnitude of their impacts to non-Section 4(f) resources after reasonable mitigation." The FHWA then concluded that, of the remaining two options, Alternative 1C was the option with the least overall harm to § 4(f) lands. Although Alternative 1C would use 0.02 acres of the AP and 2.14 acres of the SPSP after mitigation, the FHWA concluded that it had "the least overall net harm" because "[i]t ha[d] fewer social impacts than any other build alternative, it ha[d] the least number of residential relocations, and it require[d] no business relocations."

         Following the selection of the Preferred Alternative, additional avoidance and mitigation efforts were developed in coordination with the Army Corps, the EPA, the NMFS, the SFWMD, the FDEP, and the FWS. Together, the agencies developed a Proprietary Mitigation Plan that offered compensatory mitigation for obtaining an easement to cross state-owned lands and a Regulatory Mitigation Plan that focused on compensating for unavoidable impacts to natural resources.

         These plans included general efforts to reduce the impact on § 4(f) lands, such as reducing the width of the typical bridge section from 143 feet to 103 feet, which decreased the use of the SPSP by 0.07 acres (to 2.14 acres). They also included remedial efforts, such as water-quality improvement projects, rehabilitation of riverbed land, and the addition of 108.55 acres of land to the SPSP. The plans also included substantial improvements to the Halpatiokee Canoe and Nature Trail, because Alternative 1C would block access to the head of the trail. The FHWA and the Florida Department of Environmental Protection agreed on a mitigation plan that would relocate the trail access point approximately 1, 000 feet to the south of its present location. In addition, the plan included improvements to and maintenance of the currently unimproved trails that pass through floodplain wetlands and are inundated or flooded for most of the year. The FDEP agreed that these plans would compensate fully for the impacts of Alternative 1C and indeed would provide substantial benefits to the SPSP by increasing the park by 108.55 acres. The FDEP also entered into a Memorandum of Understanding with the City stating that the City would provide the listed mitigation efforts in exchange for an easement to cross the North Fork St. Lucie River.

         Alternative 1C was officially designated the "Preferred Alternative" in the FHWA's final Record of Decision that was signed on February 24, 2014. In that decision, the FHWA concluded that "unique or unusual factors are involved in the use of alternatives that avoid Section 4(f) properties, and the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes." There were no feasible and prudent alternatives to using land from the AP and the SPSP, and the Preferred Alternative -- Alternative 1C -- "ha[d] the least net harm to Section 4(f) resources." Final agency approval was thus given to Alternative 1C.


         Conservation Alliance of St. Lucie County ("Conservation Alliance") is a nonprofit corporation whose mission is "to protect the water, soil, air, native flora and fauna upon which all the Earth's creatures depend on for survival." Many of its members regularly visit the Halpatiokee Trail to hike, sightsee, and take pictures. Treasure Coast Environmental Defense Fund, Inc., also known as the Indian Riverkeeper, is a nonprofit whose mission is "to protect and restore the waters of North America's most diverse estuary, the Indian River Lagoon, its tributaries, fisheries and habitats." Its members regularly use the AP, the SPSP, and the Halpatiokee Trail for recreational purposes.

         On May 12, 2014, Conservation Alliance and Indian Riverkeeper (hereinafter collectively referred to as "Conservation Alliance") filed a complaint in the United States District Court for the Southern District of Florida against the United States Department of Transportation (DOT), DOT Secretary Anthony Foxx, the Federal Highway Administration, FHWA Administrator Victor Mendez, and FHWA Florida Division Administrator James Christian (hereinafter collectively referred to as the FHWA), seeking declaratory and injunctive relief. Specifically, Conservation Alliance alleged that the FHWA had arbitrarily and capriciously failed to identify Alternative 6A as a feasible and prudent alternative to Alternative 1C. It also claimed that, if constructed using a spliced-beam bridge construction, "Alternative 6A Spliced" would completely avoid the use of § 4(f) properties and thus should have been selected over Alternative 1C.

          Conservation Alliance moved for summary judgment on March 16, 2015, and the FHWA cross-moved for summary judgment on May 12, 2015. In the interim, the City of Port St. Lucie moved to intervene in the case; that motion was denied. Instead, the City participated as an amicus curiae supporting the FHWA's motion for summary judgment. A hearing on the motions for summary judgment was held on October 6, 2015, and on November 5, 2015, the district court granted the FHWA's motion and denied Conservation Alliance's motion. The district court reasoned that the FHWA "acted within the scope of its authority and reasonably concluded that neither alternative 6A or 6A with a spliced beam construction method was a prudent alternative." Further, the FHWA's "ultimate conclusion that Alternative 1C ...

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