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

United States Court of Appeals, Fourth Circuit

January 23, 2019

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, in his official capacity as Division Administrator for the Federal Highway Administration; JAMES H. TROGDON, III, in his official capacity as Secretary of the North Carolina Department of Transportation, Defendants - Appellees, and DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE ASSOCIATION, Intervenors/Defendants - Appellees.

          Argued: December 11, 2018

          Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Louise W. Flanagan, District Judge. (2:17-cv-00004-FL)


          David Ari Schnitzer, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellants.

          Thekla Hansen-Young, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Colin Justice, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

         ON BRIEF:

          Michael K. Murphy, Kyle N. Guest, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellants.

          Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Andrew C. Mergen, Robert J. Lundman, Carter F. Thurman, Appellate Section, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Josh Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina; Scott T. Slusser, Special Deputy Attorney General, Mollie Cozart, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees North Carolina Department of Transportation, Federal Highway Administration, John F. Sullivan, III, and James H. Trogdon, III. Kimberley Hunter, Nicholas S. Torrey, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees Defenders of Wildlife and National Wildlife Refuge Association.

          Before NIEMEYER, DUNCAN, and QUATTLEBAUM, Circuit Judges.


         Appellants Save Our Sound OBX, Inc. and its members, residents and vacationers from North Carolina's Outer Banks, (collectively "SOS") challenge the decision of the North Carolina Department of Transportation (the "NCDOT"), the Federal Highway Administration (the "FHWA"), and their administrators (collectively "the Agencies") to replace a segment of North Carolina Highway 12 ("NC-12") with a bridge across the Pamlico Sound (the "Jug-Handle Bridge"). The district court granted the Agencies' motion for summary judgment, finding that they did not violate the National Environmental Policy Act (the "NEPA"), 42 U.S.C. § 4321 et seq., or the Department of Transportation Act (the "DTA"), 49 U.S.C. § 301 et seq., when they approved the bridge. SOS challenges that ruling on appeal. For the reasons that follow, we affirm.


         This case involves a segment of NC-12, which is the main roadway passing through the Outer Banks of North Carolina. State and federal agencies have been working for several years to update and improve NC-12 because of its susceptibility to weather damage and erosion.

         Like many highway construction projects, the NC-12 project required cooperation among state and federal agencies. For instance, in North Carolina, NCDOT has authority over highway construction, while FWHA supplies federal funds for highway projects. The agencies tasked with improving NC-12, including NCDOT and FHWA, formed a Merger Team to coordinate decisionmaking and regulatory compliance for the NC-12 project.[1] The Merger Team was responsible for ensuring that the NC-12 project complied with the requirements of NEPA and the DTA, among other regulations.

         SOS challenges certain agency decisions in the NC-12 project under NEPA and the DTA. Accordingly, we first provide a brief overview of the requirements of those statutes before turning to the specific facts and procedural history of this appeal.


         The first statute at issue in this appeal is NEPA. Pursuant to NEPA, 42 U.S.C. § 4321 et seq., and its implementing regulations, government agencies considering certain projects must evaluate whether the project would have a significant impact on the environment by preparing an Environmental Assessment (an "EA"). Id. § 4332(C); 40 C.F.R. § 1508.9; see id. § 1508.18 (defining the types of federal actions to which NEPA applies). If the project would have a significant impact, the agency must prepare an Environmental Impact Statement (an "EIS"). 42 U.S.C. § 4332(C). The agency is responsible for ensuring that the EIS complies with various regulatory requirements. See 40 C.F.R. § 1502.1 et seq. For instance, the EIS must "provide full and fair discussion" of any significant environmental impacts of a proposed action. 40 C.F.R. § 1502.1. Additionally, the agency must "[r]igorously explore and objectively evaluate all reasonable alternatives" that could "avoid or minimize adverse impacts." Id. §§ 1502.1, 1502.14. The agency is permitted, however, to identify a preference among alternatives based on non-environmental considerations, such as economic factors or the agency's statutory mission. Id. § 1505.2(b). If the agency has a preferred alternative, NEPA requires the agency to identify that preference in the EIS. Id. § 1502.14. NEPA also requires the agency to prepare a supplemental EIS (an "SEIS") if significant new information or environmental changes come to light after the agency prepares an EIS. Id. § 1502.9(c). After the agency makes its final decision about which alternative to pursue, it publishes a record of decision (an "ROD") explaining its choice. Id. § 1505.2.

         We now turn to the second statute at issue: the DTA. The DTA contains substantive requirements for government transportation projects. 49 U.S.C. § 301 et seq. Relevant here, the so-called "§ 4(f)" requirements[2] concern transportation projects that require the use of publicly owned land of a wildlife refuge or a significant historic site. Id. § 303(c). Historic sites include structures "included in, or eligible for inclusion in," the National Register of Historic Places. 23 C.F.R. § 774.17. The Secretary of Transportation may only approve such projects if there is no "feasible and prudent" alternative to using that land and the "project includes all possible planning to minimize harm . . . resulting from the use." Id. § 303(c). If there is no feasible and prudent alternative, the Secretary may only approve the alternative that "[c]auses the least overall harm in light of the [DTA's] preservation purpose." 23 C.F.R. § 774.3(c). Relevant considerations in selecting the least harmful alternative include whether harm to the land can be mitigated, whether harm to the land affects the attributes qualifying that land for protection, and whether the alternative meets the needs of the project. Id.


         Having established the relevant framework, we consider the facts of this case. SOS's claims in this litigation concern the Agencies' environmental analysis under NEPA and the DTA with respect to a segment of NC-12 that passes from the southern edge of Bodie Island to the village of Rodanthe. For this segment, the Merger Team was responsible for preparing EAs and EISs pursuant to NEPA and for determining which proposed plan for the project was the least environmentally-damaging practicable alternative (the "LEDPA") pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, among other requirements.[3] See 40 C.F.R. § 230.10 (setting out the LEDPA requirement).

         In 2008, the Merger Team issued an EIS and § 4(f) evaluation (the "2008 EIS") for improving NC-12. For the segment at issue here, the 2008 EIS included discussion of several alternatives, including a proposed bridge in the Pamlico Sound near Rodanthe (the "Bridge South alternative") and proposals involving beach nourishment. An EA in 2010 (the "2010 EA") further developed these alternatives.

         The Merger Team released an updated EA in 2013 (the "2013 EA") to account for environmental changes after the 2010 EA, including the effects of Hurricane Irene in 2011. The 2013 EA identified four alternatives for the segment at issue: (1) the so-called Jug-Handle Bridge, a bridge extending out into the Pamlico Sound (also referred to in the environmental analyses as the "Bridge on New Location");[4] (2) an easement bridge on the existing NC-12 location; (3) beach nourishment; and (4) an easement bridge combined with beach nourishment. The Merger Team did not study the beach nourishment alternatives in depth in the 2013 EA because, at a 2011 meeting, it had already determined not to pursue them after experts reported on a "high erosion rate and a lack of sand supply." J.A. 843. In the 2013 EA, the Merger Team identified the easement bridge as its preferred alternative under NEPA. However, certain members of the Merger Team objected to finding that the easement bridge was the LEDPA under the Clean Water Act, citing concerns about its location within the surf zone, additional permits associated with erosion setback requirements, and its impact on a nearby wildlife refuge. See J.A. 1745-47.

         In the meantime, environmental groups Defenders of Wildlife and the National Wildlife Refuge Association (intervenors here, collectively the "Environmental Groups") brought suit in federal court to challenge the Agencies' NEPA and § 4(f) determinations with respect to a different segment of NC-12 in the Outer Banks--the Bonner Bridge, which connects Bodie Island and Hatteras Island to the north of Rodanthe. See Defs. of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374 (4th Cir. 2014). The Environmental Groups and the Agencies eventually reached an agreement in 2015 (the "Settlement").[5]The Settlement required NCDOT to identify the Jug-Handle Bridge as its preferred alternative for the segment of NC-12 at issue in this case. It also required NCDOT to seek Merger Team concurrence that the Jug-Handle Bridge was the LEDPA. In doing so, it stated that nothing in the Settlement "requires or should be interpreted to predetermine the choice" of the Jug-Handle Bridge as the final selected alternative. J.A. 1090. In exchange, the Environmental Groups dismissed the Bonner Bridge suit and agreed not to challenge the Agencies in court if the Jug-Handle Bridge was determined to be the LEDPA and was ultimately selected in the ROD for this project.

         After a 2015 meeting, the Agencies identified the Jug-Handle Bridge as their preferred alternative. Following public comment and detailed studies, the Merger Team determined that the Jug-Handle Bridge was the LEDPA. In 2016, the Merger Team released a revised EA (the "2016 EA") to evaluate the environmental impacts of the Jug-Handle Bridge and its associated construction activities. Later that year, the Merger Team issued an ROD (the "2016 ROD") formally approving the Jug-Handle Bridge.

         In addition to authorizing construction of the Jug-Handle Bridge, the 2016 ROD also addressed concerns relating to a shipwreck in the proposed bridge's path known as the Pappy's Lane Wreck. The shipwreck is eligible for listing on the National Register of Historic Places. Because of the shipwreck's historical significance, the 2016 ROD ordered a data recovery project on the shipwreck, which later uncovered evidence that the shipwreck was a World War II assault vessel. The Merger Team has not yet determined how it will respond to this new information.


         We now turn to the procedural history of this litigation, which began when SOS sued the Agencies on February 2, 2017. A month later, the Environmental Groups intervened in the suit in support of the Agencies. In its complaint, SOS alleged, as relevant here, that the Agencies' approval of the Jug-Handle Bridge violated NEPA because that decision was predetermined by the Settlement. To show evidence of predetermination, SOS moved to supplement the administrative record before the district court to include documents related to the negotiation of the Settlement on the ...

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