In Re Petition of New Haven GLC Solar, LLC

The Vermont Supreme Court again ruled in favor of my client, the Town of New Haven, in overturning a Public Utilities Commission decision depriving us of a hearing regarding a large solar array adjacent to a scenic roadway. The unanimous decision of the full Supreme Court reversed the PUC grant of a Certificate of Public Good and remanded the case back to the Public Utilities Commission for hearing. 

The full case can be read here: 

 

In re Petition of New Haven GLC Solar, LLC. 2017 VT 72

Petition of LK Holdings: Dismissal

The Vermont Public Service Board has been methodically assessing a slate of net metering applications that were filed ahead of the January 1, 2017 change in net metering rules. Many of these applications were filed hurriedly and lacking various required elements in an attempt to get them in before the rules changed. The Board is making the determination, on a case by case basis, as to which of these applications is to be deemed incomplete, and thus dismissed. 

I represented an intervenor/adjoining landowner in this case, and in coordination with Regional Planning and the Town of Whiting filed for dismissal, as the application was deficient in several aspects. The dismissal was issued May 22, 2017, and is subject to potential reconsideration and appeal.  

file:///Users/user/Downloads/433484513888375onbase-unity_321513309249957068836055.pdf

Elliott v. U.S. Fish and Wildlife Service

Elliott v. US Fish and Wildlife Service, 747 F. Supp. 1094 (D. Vt. 1990)

U.S. District Court for the District of Vermont - 747 F. Supp. 1094 (D. Vt. 1990) 
October 2, 1990

 

747 F. Supp. 1094 (1990)

 

 

Jeffrey W. ELLIOTT and Preserve Appalachian Wilderness, Plaintiffs,
v.
The UNITED STATES FISH AND WILDLIFE SERVICE and Ronald E. Lambertson, in his capacity as Regional Director of the U.S. Fish and Wildlife Service, Defendants.

 

 

Civ. A. No. 90-263.

 

 

United States District Court, D. Vermont.

 

 

October 2, 1990.

 

*1095 Cindy Hill Couture, Couture and Hill, Northampton, Mass., James Dumont, Middlebury, Vt., for plaintiffs.

Helen Toor, Asst. U.S. Atty., Burlington, Vt., Abner Cooper, U.S. Dept. of Interior, Newton Corner, Mass., Carl G. Dworkin, Albany, N.Y., for defendants.

 

FINDINGS OF FACT AND OPINION

PARKER, District Judge.

Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin the United States Fish and Wildlife Service from introducing chemical lampricides into Lewis Creek, a stream feeding into the Vermont side of Lake Champlain, on September 23, 1990. A hearing was *1096 held and evidence was submitted on the motions on September 21 and 22, 1990. At the conclusion of the hearing, the Court denied plaintiffs' motions from the bench and by written order entered on September 22, 1990. The following findings of fact and conclusions of law supplement the Court's September 22 order.

 

I. FINDINGS OF FACT

1. The United States Fish and Wildlife Service and the New York State Department of Environmental Conservation, in cooperation with the Vermont Department of Fish and Wildlife, have initiated an eightyear program designed to reduce the population of sea lampreys in Lake Champlain. The sea lamprey is a species of parasitic fish that preys on fishes valued by the sports fishing industry. The program includes the controlled release of two chemicals TFM and Bayer 73, designated "lampricides" into streams and deltas flowing into Lake Champlain, where the sea lamprey larvae, or ammocoetes, develop. Final Environmental Impact Statement: Use of Lampricides in a Temporary Program of Sea Lamprey Control in Lake Champlain with an Assessment of Effects on Certain Fish Populations and Sportfisheries (July 19, 1990) (Government Exhibit B) (hereafter FEIS), at 1.

2. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C), and its regulations, 40 CFR Part 1505, the U.S. Fish and Wildlife Service prepared draft and final Environmental Impact Statements for the lampricide project. The draft statement (DEIS) was released for public review in November 1987. The comment period on the DEIS ended December 1, 1989. The FEIS was made available for public comment in August 1990. On September 11, 1990, the Fish and Wildlife Service issued its "Record of Decision" on the program. Record of Decision (Government Exhibit D), at 6, 16.

3. Permits for the lampricide treatments were issued by the New York Department of Environmental Conservation, the Adirondack Park Agency and the Vermont Agency of Natural Resources. Id. at 6.

4. The U.S. Fish and Wildlife Service identified a primary purpose of the program as follows:

 

Achieve maximum practical short-term reduction of parasitic phase sea lamprey via 2 applications of chemical lampricides to 13 tributaries and 5 delta areas. The first application would include all significant lamprey producing tributary and delta areas. Timing and scope of the second application would be based on post treatment ammocoete recovery surveys but would be planned to occur 4 years after the first treatment, and would likely be as extensive.

Id. at 6-7. Other aspects of the overall program include stocking the lake with trout, steelhead and salmon, and assessing economic and environmental impacts. Id. at 7.

5. The program calls for eventual release of TFM (3-trifluoromethyl-4-nitrophenol) in portions of nine New York streams, three Vermont streams and the Poultney River, shared by both states as an interstate boundary. Six New York streams and one Vermont stream, Lewis Creek, are slated for treatment in September 1990. One Vermont stream initially recommended for TFM treatment, Indian Brook, will not receive lampricides in order to protect the northern brook lamprey, a threatened species inhabiting that stream. Delta areas in New York waters of Lake Champlain are scheduled for treatment with Bayer 73. Id. at 8, 9.

6. Pursuant to the program, TFM was released into Boquet River on the New York side of Lake Champlain, during the morning of September 11. Affidavit of Plaintiff Jeffrey W. Elliott in Support of Motion for Temporary Restraining Order, September 18, 1990 (Plaintiffs' Exhibit # 2) (hereafter Elliott's First Affidavit), at ¶ 15.

7. The final release of the 1990 series was scheduled to occur at approximately 8 a.m. on September 23, 1990, in Lewis Creek, which empties into the lake in North Ferrisburg, Vermont.

*1097 8. Lake Champlain supports native, nonparasitic species of lamprey in addition to the sea lamprey, as well as other fishes, mollusks, and other aquatic animals. FEIS at 82-98.

9. TFM affects not only sea lampreys. The chemical also may harm numerous other species, including certain plants and invertebrates as well other fishes. FEIS at 123-172.

10. Plaintiff Jeffrey W. Elliott is an aquatic biologist from Lancaster, New Hampshire, who uses the Lake Champlain region for recreation and study.

11. Elliott is an active member of Plaintiff Preserve Appalachian Wilderness (PAW), a citizens organization with members throughout the northeastern United States, dedicated to the preservation and enhancement of wilderness and the diversity of species in the region.

12. Elliott first learned of the Lake Champlain lampricide project in November 1989.

13. On September 19, 1990, plaintiffs filed suit in the United States District Court for the District of Massachusetts, seeking to permanently enjoin the project. At the same time, plaintiffs filed motions for a temporary restraining order and preliminary injunction. On the following day, that court, the Hon. Frank H. Freedman presiding, denied the motion for a temporary restraining order and ordered the case transferred to the District of Vermont.

14. Plaintiffs' complaint alleges that the project violates the federal Clean Water Act, 33 U.S.C. §§ 1251 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Endangered Species Acts of Vermont and New York, 10 Vt. Stat.Ann. §§ 5401-5408; N.Y. Envtl. Conserv. § 11-0535. Only the claims under NEPA and the Vermont Endangered Species Act were raised as grounds for the motions before the Court.[1]

15. Plaintiffs argue that NEPA procedures were violated in several respects. A central claim is that the Fish and Wildlife Service did not consider, and could not have considered, certain objections to the project submitted by the U.S. Environmental Protection Agency on September 10, 1990, since implementation of the project began promptly the following day. Elliott also testified that he submitted comments that were not addressed in the FEIS. Further, he maintains that the FEIS did not address the synergistic effects caused by the combination of lampricides with chemicals already present in the lake. Finally, NEPA may be implicated by Elliott's testimony that the apparatus for dispersing TFM at the Boquet River was being used improperly and that the individuals monitoring this process were biased and unqualified, contrary to procedures specified in the FEIS. As to the Vermont Endangered Species Act, plaintiffs assert that the lampricide project threatens several endangered species of fish and mollusks, in violation of the Act.

16. The Vermont Endangered Species Act directs the Vermont Secretary of Natural Resources to adopt by rule a state-endangered species list and a state-threatened species list. 10 Vt. Stat.Ann. § 5402(a). A species is determined to be endangered "if it normally occurs in the state and its continued existence as wildlife or a wild plant in the state is in jeopardy." Id. § 5402(b). A species is determined to be threatened "if its numbers are significantly declining because of loss of habitat or human disturbance and unless protected will become an endangered species." Id. § 5402(c). The Act proscribes the killing of any member of an endangered or threatened species, except as authorized by the Secretary. Id. § 5403(a).

17. The Vermont Agency of Natural Resources has promulgated regulations containing state-endangered and threatened species lists. Vermont Fish and Wildlife *1098 Regulations § 10 (effective June 23, 1989), reprinted at 10 Vt.Stat.Ann.App. § 10.

18. Plaintiffs assert that "the release of lampricides into Lake Champlain and its surrounding rivers and streams has caused and will cause immediate and irreparable harm to the ecology of the Lake Champlain region, including harm and death to endangered species." Plaintiffs' Motion for Preliminary Injunction.

19. More specifically, plaintiff Elliott alleges that "TFM will kill any and all species of lamprey without distinction," that "[a]s a molluscide, TFM will kill numerous species of mollusks, including at least clam species which are known to me to be in danger of extinction throughout the states of Vermont and New York," and that "TFM is toxic to many small aquatic species ... which are known to me to be in danger of extinction throughout the states of Vermont and New York." Elliott's First Affidavit, at ¶¶ 12, 13. In a second affidavit, Elliott claims that numerous species listed by the New York Natural Heritage Program as vulnerable or threatened species in New York State "will suffer irreversible harm by the release of TFM into the watershed of Lake Champlain." Affidavit of Plaintiff Jeffrey W. Elliott in Support of Motion for Temporary Restraining Order, September 18, 1990 (Plaintiffs' Exhibit # 1), at ¶ 3.

20. Among the species identified by Elliott, only the lake sturgeon appears on the Vermont Endangered Species List of the Agency of Natural Resources. Four species all fish listed by Elliott appear on the Vermont Threatened Species List: eastern sand darter, northern brook lamprey, quillback, and American brook lamprey. No threatened or endangered species of mollusk are known to live in proposed treatment areas. See FEIS at 121.

21. None of the species on the Vermont lists are known to exist in Lewis Creek. FEIS at 90-91.

22. Of these species, only the lake sturgeon and the quillback inhabit the lake itself; the remaining four live only in streams or rivers within the lake's watershed. FEIS at 90-91.

23. Treatment of streams with TFM is designed to insure that the chemical concentration remains within a restrictive range. FEIS at 190.

24. The Fish and Wildlife Service projected that, among threatened or endangered species, only the northern brook lamprey and eastern sand darter would be affected by the lampricide treatments, with effects on the latter "of insignificant impact to the whole population." Neither species inhabits Lewis Creek or waters downstream of Lewis Creek. FEIS at 142, 198. No threatened or endangered species is expected to suffer significant risk from TFM treatment in Lewis Creek. Id. The projections are based on considerable factual evidence, including laboratory studies of toxicity of TFM to sea lampreys and nontarget fish, records of impacts on nontarget fish from about 2,000 Great Lakes stream treatments, studies of caged nontarget fish subjected to routine treatments, and results of bioassays of TFM against nontarget fish in water from a Lake Champlain tributary. Id. at 141.

25. The Aquatic Nuisance Control Permit issued for the lampricide project by the Department of Environmental Conservation of the Vermont Agency of Natural Resources states that only two species formally recognized as threatened by the State of Vermont "will be potentially impacted by the proposed TFM treatment." These are the American brook lamprey, in Trout Brook, and the northern brook lamprey, in Indian Brook. Permit included in FEIS at K-2, 5-6. Indian Brook was subsequently withdrawn as a site for treatment.

26. On September 11, 1990, Elliott observed officials dispersing lampricides into Boquet River, on the New York side of the lake. Elliott noticed one dead sea gull and dead insects of two species, but no other dead animals in the vicinity during and following the dispersal of the lampricides. Elliott also observed fish that appeared to be in stress.

*1099 27. The Court finds that the release of lampricides in Lewis Creek is unlikely to have any significant harmful impact on any endangered or threatened species.

28. In a Renewed Motion for Temporary Restraining Order, filed in this Court on September 21, 1990, plaintiffs raised as an additional ground for the motion "a strong possibility that the release of these lampricides into Lake Champlain will result in deleterious health effects on those many individuals who receive their drinking water from this source."

29. On this point, plaintiffs rely primarily on the September 10, 1990 letter by Elizabeth Higgins Congram, Assistant Director for Environmental Review at the Boston EPA office, to Ronald E. Lambertson, Regional Director, U.S. Fish and Wildlife Service. (Government Exhibit C.) The letter states that "any detected residues [of lampricide] would result in the need to provide the public with alternative drinking water supplies, whether requested or not."

30. The U.S. Fish and Wildlife Service took measures to mitigate any health risks attending the project, including advance notification to all affected landowners, the provision of free, commercially bottled water, and the arrangement of alternative watering of livestock in affected areas. FEIS at 191-195.

31. The FEIS also states that "toxicological literature indicates that human exposure to concentrations of TFM, Bayer 73 and other constituents or impurities in these formulations in the treatment and plume areas, will not cause adverse health effects." FEIS at 192.

32. The Commissioner of the Vermont Department of Health concluded that if TFM is applied and monitored, and the public and affected landowners notified, as outlined in the DEIS and relevant permits, there will be negligible risk to the public health. Letter to Timothy J. Burke, Commissioner, Vt. Dept. of Environmental Conservation, October 27, 1989, printed in FEIS at L-12. Efforts to protect the public are further detailed in a letter by William Bress and Michael Gates of the Vermont Department of Health to Elizabeth Higgins Congram at the EPA. FEIS at N-23.

33. No public water supplies in Vermont will be significantly affected by the lampricide project. Persons whose privately-owned water supplies may be affected will be protected by monitoring, notification, and provision of alternative water supplies. Bress & Gates Letter; testimony of Ralph Abele.

34. Plaintiffs' Renewed Motion for Temporary Restraining Order further relies on comments submitted by the Adirondack Council in response to the DEIS. Plaintiffs contend that the Adirondack Council asserts "that there is an unconsidered likelihood that components of the biocide released will result in the immediate and irreversible release of other toxics from the lake and stream bed, including PCB's and heavy metals." The Court has carefully reviewed the Adirondack Council's comments on the DEIS, reprinted in FEIS Appendix N, and finds no reference to the claim attributed to it by plaintiffs. A letter by Daniel Plumley of the Council, dated October 13, 1988, says "the DEIS should address the question of health advisories which are now in effect on PCB-laden fisheries." FEIS at N-173. A subsequent letter by Gary Randorf, Executive Director of the Council, dated January 31, 1990, expresses "concern[] that lamprey control and the rush to apply large doses of chemical lampricides to Lake Champlain has taken precedent [sic] over the many other ills now threatening to destroy the lake [such as] the dumping of toxic chemicals, including dioxin, PCBs, and chloroform. ..." FEIS at N-218. The Court has found no other comments by this organization referring to PCBs.

35. Plaintiffs have introduced insufficient evidence to show that the release of lampricides into Lewis Creek in accordance with program mitigation measures poses a significant threat to human health.

36. Defendants filed a memorandum of law in opposition to plaintiffs' motions in this Court on September 21, 1990. The *1100 matter was heard on September 21 and 22, 1990. Both parties were represented by counsel at the hearing, and both parties introduced documentary evidence and were prepared to offer testimony. The Court issued its oral ruling denying the motions after hearing the testimony of plaintiffs' witnesses and arguments by counsel.

 

II. OPINION

Plaintiffs initially filed two motions, for a temporary restraining order (TRO) and for a preliminary injunction. A TRO is an order that may be granted without notice to the adverse party in limited circumstances. Fed.R.Civ.P. 65(b). Where the adverse party has notice, as here, and there has been an adversary hearing on the application for a TRO, it may be treated as a motion for a preliminary injunction. Levas and Levas v. Village of Antioch, Ill., 684 F.2d 446, 448 (7th Cir. 1982); Delaware Valley Transplant Program v. Coye, 678 F. Supp. 479, 480 n. 1 (D.N.J.1988). Accordingly, the motion for a TRO is treated together with the motion for preliminary injunction, and the Court disposes of them as one.

 

It is well established in this Circuit that a party seeking a preliminary injunction must show that it is likely to suffer possible irreparable injury if the injunction is not granted and "either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor."

Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 (2d Cir.1990) (quoting Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982)). A showing of "probable irreparable harm" is a prerequisite to relief:

 

the moving party must demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered. Irreparable harm must be shown by the moving party to be imminent, not remote or speculative, and the alleged injury must be one incapable of being fully remedied by monetary damages.

Id. (citation omitted). See also Fireman's Fund Insurance Co. v. Leslie & Elliott Company, Inc., 867 F.2d 150, 151 (2d Cir. 1989) ("a finding of irreparable harm is an absolute prerequisite to the issuance of an injunction").

Violations of the procedures required by NEPA do not by themselves constitute irreparable harm sufficient to justify injunctive relief. Town of Huntington v. Marsh, 884 F.2d 648, 653 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1296, 108 L. Ed. 2d 473 (1990). The alleged harm must stem from the government action sought to be enjoined and must be of the sort that the statutes relied upon are designed to avert. Thus, in Natural Resources Defense Council v. Callaway, 524 F.2d 79, 82-83 (2d Cir.1975), the court, finding violations of NEPA, directed the entry of a preliminary injunction prohibiting the Navy from continued dumping in the Long Island Sound where "substantial evidence" was presented that the polluted material proposed for deposit at the site would disperse and "contaminate and destroy the first nurseries and marine resources on the coast." An injunction should not issue, by contrast, where the harms are unrelated to the law relied upon. Plaintiff Elliott, for example, observed insects and a gull that he believed may have been killed by TFM in the Boquet River. Assuming TFM was the cause of these animals' demise, they were undoubtedly irreparably injured, in one sense, by the actions of the government agencies. But the irreparable injury that plaintiffs must show to justify a preliminary injunction must be an injury of the sort that is legally actionable. Significant damage to the overall ecology of the lake or harm to threatened or endangered species might constitute irreparable injury in the required sense, but plaintiffs have been unable to persuade the Court that such injury is likely to occur as a result of the Lewis Creek lampricide release.[2]

*1101 The phrases used by the Second Circuit to describe the burden of proof a showing of "probable irreparable harm" or that plaintiffs are "likely to suffer possible irreparable injury if the injunction is not granted" are not self-explaining, and leave open the question whether plaintiffs must show by a preponderance of the evidence that they will suffer irreparable harm without the injunction, or whether plaintiffs need only show something less conclusive, perhaps "a threat of irreparable injury." See Town of Huntington, 884 F.2d at 653 (proof of "threat of irreparable injury" to environment, in addition to a violation of NEPA procedures, would justify injunctive relief). Whatever the level of proof required, however, plaintiffs in this case have failed to carry even a minimal burden. They have not persuaded the Court that irreparable harm is of any significant likelihood as a result of the release of TFM in Lewis Creek. Harm to threatened and endangered species and to human health was alleged, but the allegations are not supported by the evidence presented. While vulnerable species live in Lake Champlain and its tributaries, there is no reason in fact to suppose they will suffer harm from the Lewis Creek release. Similarly, while it may be true that the effects of TFM on humans are uncertain and adverse, plaintiffs have not shown that the TFM release in Lewis Creek is likely to expose the public to the chemical.

Plaintiffs are legitimately concerned for the health of Lake Champlain and the life it supports. The heart of their complaint is expressed in ¶ 17 of Elliott's First Affidavit: "[T]he loss of biological diversity and stability which will result from the lampricide project cannot be predicted. Any loss of biological diversity which results will deplete the resiliency of the Lake Champlain ecosystem." A preliminary injunction issued by this Court would not stop the Lake Champlain lampricide project, however. Six of the seven lampricide applications scheduled for 1990 occurred prior to the commencement of proceedings in this Court. The project is slated to continue in the coming years, and may be enjoined should the plaintiffs persuade the Court of the merits of their complaint. But the request for a preliminary injunction concerns only the seventh 1990 application, to Lewis Creek; as to that particular episode, plaintiffs have not carried their burden of showing a threat of irreparable harm should the preliminary injunction not issue. Because the motion is disposed of on this threshold ground, the Court does not address, and intimates no views on, plaintiffs' likelihood of success on the merits. Accordingly, the Renewed Motion for Temporary Restraining Order and the Motion for Preliminary Injunction are denied.

NOTES

[1] At the hearing, plaintiffs introduced evidence to support their allegations that the lampricide program violates NEPA and the Vermont Endangered Species Act. The Court makes no findings as to these allegations and intimates no view on their merits; plaintiffs' motions are denied, as explained below, solely because plaintiffs have failed to establish that they will suffer irreparable harm from the September 23 application of lampricide.

[2] Of course, the present concern of the Court relates only to Lewis Creek; plaintiffs will have the opportunity in future proceedings to develop a case that the lampricide program as a whole should be enjoined.

Case Report: Friends of Pioneer Street Bridge v. FHA

150 F.Supp.2d 637

United States District Court,

D. Vermont.

FRIENDS OF PIONEER STREET BRIDGE CORP., Plaintiff,

v.

FEDERAL HIGHWAY ADMINISTRATION (“FHWA”); Vincent Schimmoler, in his capacity as Deputy Executive Director of FHWA; Norman Mineta, in his capacity as Secretary of the U.S. Department of Transportation; Charles E. Basner, in his capacity as FHWA Division Administrator for Vermont; Kenneth Sikora, in his capacity as FHWA Environmental Program Manager for the Pioneer Street Bridge Project; Vermont Agency of Transportation (“VTRANS”); Brian Searles, in his capacity as Secretary of VTRANS; Micque Glitman, in her capacity as Deputy Secretary of VTRANS; Dennis Benjamin, in his capacity as Environmental Chief; John Perkins, in his capacity as VTRANS Director of Technical Services, Defendants,

and

Frederick Bashara, d/b/a Launderama; Guy's Farm & Yard; Barre Street Beverage & Redemption Center; DC's Hair Creations; Property Design, Inc.; S/R Janitorial Services, Inc.; Fothergill, Segale & Valley, P.C.; Steve's Small Engine Repair; Barre Street Market; Fisher Auto Parts, Inc.; Dernavich Associates, Inc., d/b/a Desilets Granite Company; I B's Auto Repair; Aja–Zorzi Farm; Berlin Veterinary ClinicBevin's Marine & Cycle Center, Inc.; James A. Palmisano, Esq.; National Clothes Pin Company, Inc.; Northeast Granite Company; Montpelier Granite Works, Inc.; Lamberton Electric; George's Auto; Allen Lumber Company; Honda Unlimited; Barrett Enterprises; LIL’ Duke & Son; Walbridge Electric, Inc.; the Source; Ageless Industrial MarkingGranite & Quartzite Centre Inc.;S.L. Garand Company, Inc.Garand–Teed Granites, Inc.; and Trading Post, Defendant–Intervenors.

No. 2:01–CV–114.

June 29, 2001.

Private organization sued Federal Highway Administration (FHWA), and state agency, challenging plan to replace historic bridge with new structure, with old bridge being preserved for possible recreational use at another location. Parties moved for summary judgment. The District Court, Sessions, J., held that: (1) neither environmental impact statement (EIS) or environmental assessment (EA) was required in connection with project, and (2) requirements for use of historic land as part of transportation project had been complied with.

Judgment for defendants.

West Headnotes (12)Collapse West Headnotes

Change View

1Administrative Law and ProcedureArbitrary, unreasonable or capricious action; illegality

Administrative action is upheld, under Administrative Procedure Act (APA), if agency has considered relevant factors and articulated rational connection between facts found and choice made. 5 U.S.C.A. § 706(2)(A).

2Administrative Law and ProcedureAdministrative construction

Agency's interpretation of its own regulations, including its procedural rules, is entitled to great deference when court is reviewing agency decision under Administrative Procedure Act (APA).

3Administrative Law and ProcedureArbitrary, unreasonable or capricious action; illegality

Administrative Law and ProcedureClear error

Federal court reviewing agency determination under Administrative Procedure Act (APA) should only reverse agency when determination is unreasonable, plainly erroneous, or inconsistent with plain meaning of regulation in question. 5 U.S.C.A. § 706(2)(A).

4Environmental LawAssessments and impact statements

Agency's decision to categorically exclude proposed project from environmental review is entitled to substantial deference, when reviewed by court under Administrative Procedure Act (APA). 5 U.S.C.A. § 706(2)(A).

2 Cases that cite this headnote

5Environmental LawNecessity

Environmental LawCategorical exclusion;  exemptions in general

No environmental impact statement (EIS) or environmental assessment (EA) is required for projects categorically excluded from review under NEPA. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C)40 C.F.R. §§ 1508.4,1508.9(a).

1 Case that cites this headnote

6Environmental LawSurface transportation;  highways and bridges

There was support in record for determination, by Federal Highway Administration (FHWA), that replacement of historic bridge was project categorically excluded from NEPA requirement that environmental impact statement (EIS) or environmental assessment (EA) be prepared, despite claim that replacement might increase development near bridge; increased development could occur regardless of action on bridge. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.23 C.F.R. § 771.117(d)(3).

7Environmental LawSurface transportation;  highways and bridges

There was support in record for determination, by Federal Highway Administration (FHWA), that replacement of historic bridge was project categorically excluded from NEPA requirement that environmental impact statement (EIS) or environmental assessment (EA) be prepared, despite claim that replacement would significantly affect traffic volumes and patterns; traffic projections showed only modest increase in traffic if new bridge were built. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.23 C.F.R. § 771.117(d)(3).

8Environmental LawNecessity

Environmental LawSurface transportation;  highways and bridges

There was support in record for determination, by Federal Highway Administration (FHWA), that replacement of historic bridge was project categorically excluded from NEPA requirement that environmental impact statement (EIS) or environmental assessment (EA) be prepared, despite claim that there were inadequate opportunities for public participation in decision making process; two public hearings were held by state agency, even though none were required, and there were 18 “public discussions” regarding project. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.23 C.F.R. § 771.117(d)(3).

9Environmental LawSurface transportation;  highways and bridges

There was support in record for determination, by Federal Highway Administration (FHWA), that replacement of historic bridge was project categorically excluded from NEPA requirement that environmental impact statement (EIS) or environmental assessment (EA) be prepared, despite claim that existence of substantial controversy necessitated EIS or EA; while there were three referenda showing populace in favor of rehabilitation, wording of questions undercut their importance. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.40 C.F.R. § 1508.423 C.F.R. § 771.117(b).

10Environmental LawSurface transportation;  highways and bridges

There was support in record for determination, by Federal Highway Administration (FHWA), that replacement of historic bridge was project categorically excluded from NEPA requirement that environmental impact statement (EIS) or environmental assessment (EA) be prepared, even though under another statute project could only be approved if there was no prudent and feasible alternative to project and all possible planning had been done to minimize impact to historic site. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq.49 U.S.C.A. § 303(c)23 C.F.R. § 771.117(b).

11BridgesConstruction

Federal Highway Administration (FHWA), approving plan to replace historic bridge, complied with statutory mandate that approval of transportation project involving use of historic site required determination that there was no prudent and feasible alternative to project; FHWA had followed regulation by rejecting “do nothing alternative,” establishing that it was not prudent to construct new bridge on new location, and finding that rehabilitation was not feasible. 49 U.S.C.A. § 303(c).

12BridgesConstruction

Federal Highway Administration (FHWA), approving plan to replace historic bridge, complied with statutory mandate that approval of transportation project involving use of historic site required determination that all possible planning has been done to minimize harm to historic site resulting from use, even though dismantling of bridge was contemplated; eventual restoration of bridge at some other location, for bicycle and other light uses, was also contemplated, and that alternative might well minimize harm that would otherwise occur if bridge were to continue in general use at present location. 49 U.S.C.A. § 303(c).

Attorneys and Law Firms

 

*639 Cindy Ellen Hill, Law Office of Cindy Hill, Middlebury, VT, for plaintiff.

Nancy J. Creswell, AUSA, Office of the United States Attorney, District of Vermont, Burlington, VT, for Charles E. Basner, Kenneth Sikora.

Thomas Radford Viall, Vermont Agency of Transportation, Montpelier, VT, John Kevin Dunleavy, Vermont Agency of Transportation, National Life Building, Montpelier, VT, for defendants.

Michael Popowski, III, Law Office of Michael Popowski, Northfield, VT, for defendant–intervenors.

 

OPINION AND ORDER

SESSIONS, District Judge.

This is an appeal from the administrative record regarding the fate of the historic Pioneer Street Bridge in Montpelier, Vermont. The Friends of the Pioneer Street Bridge Corporation (“FPSB” or “Plaintiff”), a nonprofit corporation, brought this action under the Administrative Procedures Act. The original defendants to this action were the Federal Highway Administration (“FHWA”), the Vermont Agency of Transportation *640 (“VTRANS”), and several officers or employees of FHWA and VTRANS, in their official capacities, who have been responsible for making the decisions regarding the relevant issues in this case (collectively referred to as “the government defendants”). In an effort to resolve the case as quickly as possible, the Court agreed to an expedited summary judgment schedule and both parties moved for summary judgment. On June 11, 2001, a group of property owners, residents, and business owners located on Barre and Pioneer Streets moved to intervene as defendants and join the government defendants' cross-motion for summary judgment.1 The Court heard oral argument on all pending motions on June 12, 2001, and granted the motion to intervene.2 For the reasons that follow, Plaintiff's motion for summary judgment (Paper 13) is DENIED and Defendants' cross-motion for summary judgment (Paper 19) is GRANTED.

I. Background

The Pioneer Street Bridge (or “Montpelier Bridge No. 6”) is a 140′ single span Pratt through truss bridge with straight top chords carrying Pioneer Street over the Winooski River on the edge of the historic district in Montpelier, Vermont. The bridge was built in 1929 and is one of fifty-four bridges remaining among the many that were built following Vermont's disastrous floods (which washed away more than 1,200 bridges) in 1927. Pioneer Street is classified as an “urban collector,” and is one of four highway structures running in an approximate north/south direction across the Winooski River. The bridge currently has a twenty-foot wide roadway and an extremely sharp turn at the north end. Until recently, due to its overall poor condition and the advanced deterioration of the floor system, the bridge had been restricted to a one-lane, alternating direction crossing with traffic flow controlled by signals at either end and had a three-ton load restriction, essentially prohibiting truck use. Because of its current state of disrepair, however, the bridge has since been closed to all traffic (including pedestrians). See State Defs.' Status Report Re: Cond. of Pioneer Street Bridge at 2 (Paper 16). The bridge is individually eligible for listing in the National Register of Historic Places,3 but is not a National Historic Landmark.

FPSB is a nonprofit corporation whose corporate statement of purpose is: “To *641 protect the welfare of the Barre Street community and the City of Montpelier as a whole.” See First Am. Compl. ¶ 6 (Paper 7). It brings this lawsuit under the Administration Procedures Act as a party aggrieved by two administrative actions of the FHWA, on which VTRANS (as a project applicant) had federal statutory duties. Specifically, FPSB challenges two determinations made by one or more of the defendants: (1) VTRANS' decision (with which the FHWA officially concurred) to “categorically exclude” the proposed Pioneer Street Bridge construction project from environmental review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and (2) the FHWA's “Programmatic 4(f) determination” that there was no “feasible and prudent alternative” to the proposed “use” of the Pioneer Street Bridge and that all measures had been taken to minimize harm from such use. Plaintiff alleges that neither of these decisions was properly documented or supported by the administrative record, and that in fact, the administrative record supports contrary conclusions from those reached by the government defendants. Thus, Plaintiff asserts, both decisions were arbitrary, capricious, and otherwise not in accordance with law.

Plaintiff therefore seeks declaratory and permanent injunctive relief, asking this Court to require the federal defendants to comply with NEPA by assessing, with public involvement, the environmental impacts of the proposed project; similar relief with respect to the government defendants' alleged noncompliance with 4(f) requirements for evaluation prior to the use of historic sites; to prohibit the awarding of bids for construction of the project; and to prohibit any removal of or damage to the current structure, or any groundwork that would impact the archaeological site, until a legally adequate environmental assessment or impact statement and legally adequate 4(f) studies are completed.

A. Summary of the Administrative Record

1. Historic and engineering studies

Four studies—two specific to the Pioneer Street Bridge and two addressing historic bridges in Vermont generally—are included in the record as investigations upon which the government defendants relied in making the relevant decisions in this case.

a. Vermont Historic Bridge Survey

In 1985, the Vermont Division for Historic Preservation sponsored a survey of Vermont's historic bridges (the “Vermont Historic Bridge Survey”) which categorized the bridges into three groups: “those which appear ineligible [for listing in the National Register of Historic Places], those which appear clearly eligible as outstanding historic resources, and those which meet the criteria [for National Register listing] but are not rare examples.” A.R. 236 at III.5. According to that survey, approximately thirty bridges were classified as “clearly eligible as outstanding historic resources” based on their possession of certain exceptional characteristics (e.g., architectural features, age, rarity, etc.). The Pioneer Street Bridge, however, was assigned to the second group (eligible for listing, but without exceptional individual significance). See A.R. 236 at App. 5.8.

b. The Holden Report

In 1992, VTRANS engaged Holden Engineers & Surveying, Inc. to conduct an “Engineering Alternative Study” of the Pioneer Street Bridge, the report of which was produced in April 1995 (the “Holden Report”). See A.R. 237. One of the stated purposes of the study was to evaluate two basic alternative solutions to “the current *642 structural and geometric deficiencies” of the bridge: (1) rehabilitation of the existing truss span and (2) replacement of the existing structure with a new bridge. A.R. 237 at 1.

Holden performed an “in-depth field inspection and a structural load rating analysis” of the Pioneer Street Bridge. A.R. 237 at 50. The report concluded that the “condition of the existing floor system ... warranted total replacement.” Id. It also noted that its twenty-foot roadway width combined with an average daily traffic greater than 5,000 has been “considered a ‘basically intolerable condition requiring high priority of replacement’.” A.R. 237 at 15. It further concluded that other safety features (such as railings) did not meet “currently acceptable standards.” See id. It made a detailed recommendation of corrective actions, concluding that many of the structural elements required replacement or repair based on their inspected condition and load rating analysis. See A.R. 237 at 23. It also addressed a variety of roadway alignment options to facilitate either the existing bridge or a replacement structure. See A.R. 237 at 24–30.4

c. The Pioneer Street Bridge Plan

In April 1997, VTRANS hired another group of engineers to prepare a “Historic Metal Truss Bridge Plan” for the Pioneer Street Bridge (the “Pioneer Street Bridge Plan”). See A.R. 238. The Pioneer Street Bridge Plan concluded that the “structure, in general, is in poor condition.” A.R. 238 at 1. It further stated that “[t]he structure also has several deficiencies, including the poor alignment of the north approach and narrow roadway width,” id., and the “roadway width of 20′ is below the State Standard recommended minimum of 26′ for this bridge to remain in place,” A.R. 238 at 2.

The Pioneer Street Bridge Plan considered six “rehabilitation alternatives” for the Pioneer Street Bridge: (A) rehabilitation in place for limited vehicle use; (B) rehabilitation in place for unrestricted vehicle use; (C) rehabilitation in place for adaptive use (this alternative would require that a new bridge on a new alignment also be built); (D) relocation for adaptive use (this alternative would require that a new bridge be built on an improved Pioneer Street alignment); (E) use of trusses as false facia on a new bridge; and (F) documentation and demolition. SeeA.R. 238 at 3, 17–19. After discussing each alternative's advantages and disadvantages, the study concluded that alternative (D) (relocation for adaptive use) was the most desirable because it “provides two beneficial crossings ....”5 See A.R. 238 at 25–26.

*643 The conclusion of the Pioneer Street Bridge Plan “supports the City's desire to build a new bridge on the existing alignment, and relocate the historic truss within the city as a crossing for the planned recreation path.” A.R. 238 at 2. The Plan also notes that “this bridge is historically important, and a striking visual feature of the local streetscape. Although it is not in the Montpelier Historic District, its close proximity certainly contributes to the historic atmosphere of the city.” Id. It suggests that rehabilitation and relocation of the bridge for recreational use “will maintain the aesthetic and historic value of the structure at a new site, while providing an HS25 (45 tons) capacity crossing with a 28′ wide roadway on the existing Pioneer Street alignment.” Id.

Although the recommended clear minimum roadway width for the Pioneer Street Bridge is twenty-eight feet, see A.R. 238 at 12, state standards also “indicate that historic bridges should be considered for design exceptions, and for rehabilitation rather than replacement.” Id.Nevertheless, the Pioneer Street Bridge Plan asserts that “[a]lthough this is a historic structure, the traffic volume, truck traffic and functional class of roadway indicate that a design exception for width would not be in the best interest of public safety.” Id. Moreover, a rehabilitation plan that included widening of the bridge would impair the bridge's historic integrity, thus defeating the goal of historic preservation. SeeA.R. 238 at 25; see also A.R. 236 at III.3–4, IV.18.

d. The Historic Truss Bridge Study

In October 1997, VTRANS commissioned the “Vermont Historic Metal Truss Bridge Study” to help state agencies and towns in their decisionmaking regarding historic truss bridges (the “Historic Truss Bridge Study”). See A.R. 239. The principal purpose of the study was to “establish a comprehensive preservation plan that w[ould] address which of Vermont's historic truss bridges c[ould] be preserved.” A.R. 239 at 1. The “underlying premise” of the study was “that each bridge included in the study is historic and worthy of preservation.” Id. The Pioneer Street Bridge was included in the Historic Truss Bridge Study.

The Historic Truss Bridge Study found that most of the historic bridges in Vermont did not meet modern standards for roadway width and load capacity. The study recommended that seventy bridges—Pioneer Street not among them—remain in use in the primary transportation system. It recommended thirty bridges, including Pioneer Street, for “adaptive or alternative use,”6 such as bike, pedestrian, or snowmobile paths, “historic interpretation locations,” or use as “false fascia.” A.R. 239 at 26. Specifically, the study stated that the Pioneer Street Bridge “has reached the end of its useful life as a traffic-bearing structure because it is in poor condition and should be relocated for adaptive use ....” A.R. 239 at 41–42.

*644 2. Procedural history of the Pioneer Street Bridge Project

Efforts to address the deficiencies of the Pioneer Street Bridge began in 1992, when VTRANS engaged Holden Engineering & Surveying to prepare the Holden Report and requested funds from the FHWA to cover a percentage of the preliminary engineering studies, with the express goal of rehabilitating the bridge. See A.R. 1. The FHWA authorized VTRANS to begin the preliminary procedures with regard to the bridge. See A.R. 4.

On March 17, 1998, VTRANS' Historic Preservation Coordinator sent documentation (including an excerpt of the Pioneer Street Bridge Plan and a Memorandum of Agreement (“MOA”) between the Historic Preservation Officer and the State Historic Preservation Officer) to the FHWA in compliance with § 106 of the National Historic Preservation Act of 1966 (“NHPA”) and the regulations implementing that Act.7 SeeA.R. 12. In the accompanying MOA, the Historic Preservation Officer made a finding of “adverse effect” under the NHPA, but provided for mitigation of that adverse effect by requiring placement of the bridge in VTRANS' adaptive use program and protection of potentially sensitive archeological areas near the site. See A.R. 17–18.

On March 30, 1998, the FHWA's Division Administrator, Frederick H. Downs (“Downs”), sent a letter to the Secretary of VTRANS explaining that federal funding would not be available for rehabilitation of the Pioneer Street Bridge. See A.R. 31. In that letter, Downs wrote that he was “aware that there ha[d] been a great deal of discussion on the relative merits of rehabilitating the existing bridge or replacing it with a new structure.” Id. He also noted “that the Montpelier City Council ha[d] voted in favor of replacing the bridge and that the Montpelier residents [had] recently voted in favor of an advisory referendum which called for rehabilitation of the bridge.” Id. However, “[a]fter further exploring the project history and the purpose and need for replacement or rehabilitation, [he] determined that it would not be in the public interest to rehabilitate the existing structure.” Id. He based this decision on: the fact that one of the primary reasons for the project was to provide truck access to the city's industrial area between Barre Street and the Winooski River, the conclusion of the Historic Truss Bridge Study that the bridge “did not need to be preserved but should be placed in [VTRANS'] Adaptive Use Program and made available for relocation for alternative transportation purposes,” and the fact that the State Historic Preservation Officer concurred with this conclusion and the Section 106 MOA. A.R. 31–32.

On April 16, 1998, Downs forwarded the finding of adverse effect and an MOA concurred in by the FHWA, the Vermont State Historic Preservation Officer, VTRANS, and the City of Montpelier, outlining measures to preserve the bridge for alternative use in a new location and photographic documentation of the bridge in its existing location, to the Advisory Council on Historic Preservation (“ACHP”). See A.R. 33–42. That MOA was “accepted” by the ACHP on August 13, 1998, see A.R. 76, attached to a letter from a representative of the ACHP indicating that “[b]y carrying out the terms of the [MOA], FHWA will have fulfilled its responsibilities under Section 106 of the National Historic Preservation Act and the Council's regulations for this undertaking.” A.R. 70.

*645 In July of 1998, FHWA also received a fully executed “Programmatic Memorandum of Agreement for the Vermont Historic Bridge Program,”8 attached to a letter in which the ACHP similarly stated that “[b]y carrying out the terms of the Agreement, FHWA will have fulfilled its responsibilities under Section 106 of the National Historic Preservation Act ....” A.R. 45.

On September 2, 1998, the Secretary of VTRANS wrote a letter in response to a citizen complaint arguing that the Pioneer Street Bridge should be rehabilitated. The letter explained that “given the City's stated purpose and need for the project, the FHWA would not finance a rehabilitation that did not include widening the bridge to 26 feet (the minimum for traffic volume under our revised State Standards)” and that widening the bridge “would not maintain the historic nature of the bridge.” A.R. 78.

On September 29, 1998, VTRANS sent a letter recommending to the FHWA that the Pioneer Street Bridge Project be categorically excluded from environmental review pursuant to 23 C.F.R. § 771.117(d)(3), as the project consisted of bridge replacement and would “not involve substantial planning, resources, or expenditures; nor is it likely to induce significant alterations in land use, planned growth, development patterns, traffic volumes, or traffic patterns.” A.R. 80. The letter further stated that “[n]o significant environmental impact is expected to result from construction or maintenance of this facility.” Id. Attached to the letter was a “Categorical Exclusion Environmental Analysis Sheet” (“CEEAS”), see A.R. 82–86, the project-specific MOA, see A.R. 87–92, a “Section 4(f) Programmatic Evaluation,” A.R. 93–100, and preliminary project plans, see A.R. 101–06.

In the CEEAS, the “Project Purpose & Need” was described in the following way: “This structure, constructed in 1929, is badly deteriorated and is now critically deficient. The proposed project will involve replacement with a modern steel beam and concrete structure.” A.R. 82. The CEEAS then considered, in checklist form, a variety of potential impacts stemming from the project. See A.R. 82–86.

On October 12, 1998 (before concurring in and thereby executing the categorical exclusion (“CE”)), the Environmental Programs Manager of the FHWA, Kenneth Sikora (“Sikora”), sent a memo to Downs containing the supporting documentation for the “Programmatic Section 4(f) Determination,”9 evaluating and rejecting four alternatives to replacement and relocation for alternative use of the Pioneer Street Bridge. See A.R. 107–10. The rejected alternatives were (1) to do nothing; (2) to rehabilitate the bridge without affecting its historic integrity; (3) to build a new one-way bridge on an adjacent alignment and rehabilitate the existing bridge for one-way traffic only; and (4) to build a new bridge at a different location and retain the existing bridge for alternative use only.

*646 Sikora found that the first alternative (do nothing) would “not solve the problems identified for this project.” A.R. 108.

This alternative would leave the bridge with a substandard load carrying capacity of 3 tons, substandard geometry on the southbound approach roadway, and a substandard clear width of 20 feet on the bridge.... Rerouting traffic to other city roads would not meet the needs of the community because this bridge is the primary access to a number of important commercial, industrial, and residential sites and districts. The structural problems with the bridge have reached a degree where they are irreversible, and routine maintenance cannot solve the problems. The continuing deterioration cannot be stopped. This alternative is not prudent because it will not meet the project need.

Id. He rejected the second alternative (rehabilitation without affecting the bridge's historic integrity) because “[a]s designed, Bridge No. 6 lacks sufficient geometric and structural capacity to carry current loads safely.” Id. This alternative would “neither improve the bridge's geometry nor increase its structural capacity sufficiently to serve current loading requirements for commercial and industrial vehicles, as well as emergency equipment. The bridge would still suffer stress from some heavy industrial and commercial users, and ultimately its life would be shortened.” Id. Sikora further noted that the “extensive alterations” needed to meet geometric and load requirements “would adversely affect the historic integrity of the bridge and would therefore not be an avoidance alternative.” Id. Nor, Sikora found, would rehabilitation address the bridge's poor approach alignment. See id.

Sikora rejected the third avoidance alternative (new one-way bridge) because rehabilitation of the Pioneer Street Bridge

would cost roughly 50% of the cost of a new bridge. Together, the cost of rehabilitation of Bridge No. 6 plus the cost of a new bridge would be 150% of the cost of constructing a new two-lane bridge. This would constitute a cost of extraordinary magnitude compared to the proposed project.

A.R. 108–09. Also, Sikora reasoned,

rehabilitation of Bridge No. 6 for one-way traffic would still not increase the bridge's structural capacity sufficiently to accommodate current loading requirements for the same reasons as the rehabilitation alternative, nor would it address the bridge's poor approach alignment. Moreover, construction of a second bridge along an adjacent alignment would further impair sight distance at the intersection of Pioneer Street and Barre Street ... [and] would cause severe hydraulics problems and jeopardize the structural integrity of the piers of the new bridge.

A.R. 109.

Finally, Sikora rejected the fourth alternative (building a new bridge on a new alignment and retaining Pioneer Street for alternative use) because it would

cause severe hydraulics problems and jeopardize the structural integrity of the piers of the new bridge. Locations for a new crossing are limited in this urban area and the costs of additional right-of-way and construction of new approach roadways would be considered to be of extraordinary magnitude compared to the proposed project.

Id. He also concluded that “the site [sic] distance from the new bridge would be impaired at the intersection of Pioneer Street and Barre Street, as well as at entrances to commercial sites along Pioneer Street.” Id.

*647 In the same document, Sikora also found that the project included all possible planning to minimize harm, including documentation and recording of the bridge and rehabilitation for adaptive use. See A.R. 109. Sikora concluded that the “project meets the applicability criteria of the Programmatic Section 4(f) for Historic Bridges,” that “there are no feasible and prudent alternatives to the use of Bridge No. 6,” that “[t]he measures to minimize harm are hereby assured to be implemented with the construction of the project,” and that “[t]his memorandum will document that the Programmatic Section 4(f) evaluation applies to this project.” A.R. 110.

On October 22, 1998, Sikora concurred in VTRANS' original determination that the project be categorically excluded from environmental review. See A.R. 81.

A series of communications between Plaintiff and the FHWA is also included in the administrative record. In the course of that dialogue, FPSB challenged the FHWA's CE determination on various grounds. The FHWA responded by clarifying its position and inviting further input, but advising the Plaintiff that “there is no formal appeal process for a CE determination”: “our determination is administratively final; the only recourse available for overturning a NEPA determination is through the legal process, i.e., litigation through the court system.” A.R. 148.

The FHWA conducted internal discussions regarding the issues raised by FPSB but on March 9, 2001, the government defendants decided to uphold their original CE determination. See A.R. 219. Attached to the document containing the decision that the CE remained valid upon re-evaluation (the “CE re-evaluation”) was a memorandum addressing in detail the concerns of FPSB as expressed in their letters to the FHWA. See A.R. 227–30. Specifically, the FHWA addressed FPSB's concerns regarding air quality, noise, water quality, historic and archeological resources, public participation, socioeconomic impact, aesthetic concerns, and safety. See id. The FHWA found that none of the issues raised by Plaintiff warranted reversal of the CE determination.

Among the issues raised by FPSB in one of its letters to Defendants was the fact that in three referendum votes in the City of Montpelier, a majority of the citizens voted for rehabilitation of the Pioneer Street Bridge. These were only advisory votes, however, and the City Council decided against rehabilitation in spite of them. Moreover, Defendants note that the ballot and the campaign flyers did not make clear all of the issues involved. See A.R. 130 (campaign flyer); A.R. 193 (sample ballot). For example, voters may not have been aware that VTRANS intended to rehabilitate and relocate the bridge for recreational use if possible within the City of Montpelier, or the fact that rehabilitation of the Pioneer Street Bridge to comply with structural and geometric requirements would impair the bridge's historic integrity.

II. Legal Standards

Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c)Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing agency action under the APA in general, “a district court must hold unlawful and set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.A. § 706(2)(A) (West 2000); see also Citizens to Pres. Overton *648 Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

1Under the “arbitrary and capricious” standard, “administrative action is upheld if the agency has ‘considered the relevant factors and articulated a rational connection between the facts found and the choice made.’ ” Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 982 (9th Cir.1985) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)); see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994). “[T]his standard is exceedingly deferential ....” Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996). The court's role is to determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Volpe, 401 U.S. at 416, 91 S.Ct. 814; see alsoSierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1051 (2d Cir.1985) (agency action is arbitrary and capricious when it “relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation contrary to the evidence before it, or its explanation ... is so implausible that it cannot be ascribed to differing views or agency expertise”). Moreover, “an agency decision is entitled to some presumption of regularity,” Preston v. Heckler, 734 F.2d 1359, 1372 (9th Cir.1984), and the burden of proof is on the party challenging the agency's decision, Park County Res. Council, Inc. v. USDA, 817 F.2d 609, 621 (10th Cir.1987)overruled on other grounds by Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992).

Under the APA, judicial review is generally based on a “review [of] the whole record or those parts of it cited by a party ....” 5 U.S.C.A. § 706(2). Thus, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam).

23Further, when a federal agency interprets its own regulations, its interpretation is afforded special consideration. “[A]n agency's interpretation of its own regulations, including its procedural rules, is entitled to great deference.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993). A federal court should only reject the agency's interpretation when it is “unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning.” Id.; see also Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (“provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation”) (internal quotation marks omitted).

4Finally, the Court notes that an agency's decision to categorically exclude a proposed project from environmental review “is entitled to substantial deference.” City of New York v. ICC, 4 F.3d 181, 186 (2d Cir.1993).

III. Discussion

A. The categorical exclusion (“CE”) determination

5Plaintiff's first challenges the decision by VTRANS and the FHWA to “categorically exclude” the Pioneer Street Bridge Project from environmental review. Plaintiff alleges that this determination *649 was “arbitrary and capricious and otherwise not in accordance with law.” Mem. in Supp. of Pl.'s Mot. for Summ. J. at 2 (Paper 14) [hereafter, “Pl.'s Mem.”]. It further contends that the documents submitted by VTRANS were “insufficient to support a CE determination,” and that the FHWA

did not conduct a sufficient independent analysis, did not require documents to be submitted which are mandated by its own regulations, and did not follow its own or [the Council on Environmental Quality] regulations in regards to the presence of unusual circumstances relative to the project. FHWA did not make its own, independent, early, determination of the appropriate level of project review, nor did it conduct any independent study or analysis. The FHWA categorical exclusion was a rubber-stamp, post-hoc justification, of a decision made by VTRANS at the behest of the City of Montpelier.

Pl.'s Mem. at 2–3. Rather than finding a CE, FPSB contends that the FHWA should have prepared either an Environmental Impact Statement (“EIS”) or an Environmental Assessment (“EA”) for the proposed project.10

NEPA requires a federal agency undertaking a “major Federal action [ ]11 significantly12 affecting the quality of the human *650environment” to prepare an EIS. 42 U.S.C.A. § 4332(2)(C). Under federal regulations promulgated by the Council on Environmental Quality (“CEQ”), however, the responsible agency may instead first prepare an EA in order to determine whether an EIS is necessary. See West v. Sec'y of the DOT, 206 F.3d 920, 927 (9th Cir.2000) (quoting 40 C.F.R. § 1508.9(a)(1) (1997)). If the EA reveals that the project will not have a significant effect on any aspect of the environment, the agency issues a “Finding of No Significant Impact,” 40 C.F.R. § 1508.13 (2001), and no EIS is required. See West, 206 F.3d at 927.

In some cases, moreover, neither an EA nor an EIS is required. See id. (citing 23 C.F.R. § 771.115). The CEQ's NEPA regulations authorize an agency to use a “Categorical Exclusion” for the “category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations ....” 40 C.F.R. § 1508.4 (2001)see also 40 C.F.R. § 1500.4(p) (2001). “Neither an EIS nor an EA is required for actions categorically excluded from NEPA review.” West, 206 F.3d at 927.

Pursuant to the CEQ regulations, each agency is responsible for developing criteria to determine the appropriate level of environmental review for different types of actions. See 40 C.F.R. § 1507.3(b)(2) (2001). The FHWA has thus created three classes of review—EIS, EA, and CE—each requiring different levels of documentation. See 23 C.F.R. § 771.115 (2001). The FHWA defines CEs as “actions which meet the definition contained in 40 C.F.R. 1508.4, and, based on past experience with similar actions, do not involve significant environmental impacts.” 23 C.F.R. § 771.117(a) (2001). Specifically, these are actions which:

do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.

Id. Importantly, the FHWA regulations governing CEs also provide that “[a]ny action which normally would be classified as a CE but could involve unusual circumstances will require the Administration, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper.” 23 C.F.R. § 771.117(b). Such unusual circumstances include:

(1) Significant environmental impacts;

(2) Substantial controversy on environmental grounds;

(3) Significant impact on properties protected by section 4(f) of the DOT Act or section 106 of the National Historic Preservation Act; or

(4) Inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action.

Id.

The FHWA regulations set forth two types of categorical exclusions. See *651 23 C.F.R. § 771.117(c) and (d). First, the regulations provide for categorical exclusion of twenty listed actions that meet the CE criteria and generally do not require further NEPA documentation. See 23 C.F.R. § 771.117(c). It is undisputed that the Pioneer Street Bridge Project does not come within any of those twenty listed actions.

The second type of CE for which the regulations provide is called a “documented categorical exclusion” (“DCE”). A DCE is available for actions that meet the general definition of a CE set forth in 40 C.F.R. § 1508.4 and 23 C.F.R. § 771.117(a) and for which the applicant submits documentation demonstrating compliance with the categorical exclusion criteria. See 23 C.F.R. § 771.117(d)Section 771.117(d)provides a nonexclusive list of examples for which a DCE may be appropriate, including “[b]ridge rehabilitation, reconstruction or replacement.” 23 C.F.R. § 771.117(d)(3). Accordingly, FHWA executed a DCE for the replacement of the Pioneer Street Bridge.

6FPSB alleges that the FHWA's CE determination was invalid for several reasons. First, it claims that the FHWA's finding that the project “is [not] likely to induce significant alterations in ... development patterns,” A.R. 80, was not supported by the administrative record.See Pl.'s Mem. at 9–12. In support of this contention, FPSB argues that “[s]prinkled through the record are indications that development was one of Montpelier's driving considerations.” Id. at 10 (citing A.R. 178 (“Concern with rehab has been the inability of the truss bridge to handle volume of traffic, trucks and potential future development.”); A.R. 169 (“Improvement to truck access brought about by bridge replacement may assist in the development of the [Zorzi property] for [industrial, manufacturing, and commercial] uses.”)). While it may be true that Montpelier has sought to develop the area near the Pioneer Street Bridge, this fact alone does not establish that the project will have a significant impact on development patterns. The development discussed in the record may happen without regard to the ultimate fate of the Pioneer Street Bridge; any impact that the bridge project may have on development is purely speculative. Moreover, the possibility that there will be some impact on development patterns is not inconsistent with the FHWA's findings; the issue is whether such impacts will be significant. The Court finds that the FHWA's conclusion that the project would not significantly alter development patterns was not arbitrary or capricious, and should be upheld.

7Second, FPSB alleges that the finding that the project was not likely to significantly affect traffic volumes and patterns was similarly unsupported by the administrative record. See id. at 12. Specifically, FPSB relies on a note in the record stating that “[b]ridge replacement will likely draw some truck traffic from the downtown area and eastbound Barre St.,” A.R. 169, and the letter in which Downs stated that “[o]ne of the primary reasons for the project is to provide truck access to the city's industrial area between Barre St. and the Winooski River,” A.R. 31. While these citations to the record demonstrate that the government defendants had traffic issues in mind while making their decision to replace the bridge, the record also supports their conclusion that the project's impact on traffic patterns and volume will not be significant.

At the outset, the Court agrees with Defendants that the appropriate comparison for analysis of traffic patterns is between the proposed replacement bridge and the bridge “before its deficiencies forced authorities to restrict traffic and, *652 more recently, close it to traffic altogether.” Supp. Mem. of Law at 6 n. 9 (Paper 32) (citing Sierra Club v. Hassell, 636 F.2d 1095 (5th Cir.1981)). With this in mind, the Court finds that there is support in the record for the conclusion that the bridge replacement project will not have a significant impact on traffic patterns, as the posted speed limit over the bridge will remain the same as it was before the bridge was shut down, see A.R. 211, 215, and the traffic volume over the bridge is only likely to increase at a modest rate, based on normal traffic projections, see A.R. 238 at 11, A.R. 238 at App. J. The fact that traffic will no longer need to be rerouted over other bridges with access to Barre Street is of little consequence, since the current rerouting is simply a product of the bridge having been shut down. Thus, the government defendants' finding of no significant impact on traffic volumes and patterns was not arbitrary and capricious and should be upheld.

8Third, FPSB criticizes the FHWA's assertion that it provided opportunities for public participation in the project decisionmaking. FPSB asserts that by failing to meaningfully provide for public participation, the FHWA violated regulations promulgated under the “Federal Aid Highway Program” and “the NEPA goal of both informing the public and receiving the wisdom of meaningful public comment.” Pl.'s Mem. at 12–14. However, as Defendants correctly assert, there is no requirement that public hearings be held when a project has been classified as a CE. See Defs.' Mem. at 33 (citing Pub. Interest Research Group v. Fed. Hwy. Admin., 884 F.Supp. 876 (D.N.J.)aff'd, 65 F.3d 163 (3d Cir.1995)). In any event, according to the record, in addition to two public hearings conduct by VTRANS, more than eighteen “public discussions” were held about the project. See A.R. 228. Thus, even if public participation was required for a CE determination, the Court finds that the government defendants provided sufficiently for such participation, and FPSB's argument to the contrary does not undermine the validity of their CE determination.

Fourth, FPSB alleges that the government defendants failed to address environmental justice issues in the CE determination. See Pl.'s Mem. at 14. In fact, the record belies this assertion. After FPSB raised an environmental justice issue in one of its letters to the FHWA, seeA.R. 198, 202–03, Sikora requested that VTRANS perform an analysis of such issues, see A.R. 214, and that analysis was attached to the CE re-evaluation, see A.R. 229. In that attachment, the government defendants observed that there were very few residences near the bridge area and that the properties did not constitute a “low-income neighborhood,” such that environmental justice issues would be implicated. See id. Thus, the Court finds that the government defendants adequately addressed environmental justice issues to the extent that they were required to in making the CE determination.

9FPSB further alleges that the CE determination was invalid because there were “unusual” or “extraordinary”13 circumstances that called for the preparation *653 of environmental studies. The unusual circumstances that FPSB allege apply here are substantial controversy on environmental grounds and significant impact on a section 4(f) property.14 See Pl.'s Mem. at 14–18.

In support of its claim that there was substantial controversy, FPSB relies primarily on the three advisory city-wide voter referenda, whose results indicated that a majority of the voting population was in favor of the rehabilitation of the Pioneer Street Bridge.

“ ‘Opposition and a high degree of controversy, however, are not synonymous.’ ” Fund for Animals v. Babbitt, 2 F.Supp.2d 570, 577 (D.Vt.1997) (quoting Town of Orangetown v. Gorsuch, 718 F.2d 29, 39 (2d Cir.1983)), aff'd, 152 F.3d 918 (2d Cir.1998). Moreover, the misleading nature of the wording of the ballots and campaign materials for those referenda cut against a conclusion that there was substantial controversy on environmental grounds in this case sufficient to warrant invalidation of the CE determination. The Court finds that the government defendants' failure to find unusual circumstances stemming from such controversy was not arbitrary or capricious, and should be upheld.

10As to its claim that the project entails a significant impact on 4(f) property, constituting an unusual circumstance under the CE regulations, FPSB asserts that “[t]he determination that the Pioneer Street truss bridge in [sic] National Historic Register eligible means it is ‘significant’, and that it ‘has historic significance.’ ” Pl.'s Mem. at 17 (citation omitted). However, the question is not whether the bridge is significant (or has historic significance), but whether the impact is significant. The Court agrees with Defendants that a mere finding of “adverse effect” on a 4(f) property15 (especially where, as here, the agency has provided for mitigation of that adverse effect) is insufficient to support the conclusion that the project will “significantly impact” a 4(f) property. See Defs.' Mem at 30 (citing City of New York v. ICC, 4 F.3d at 186; Ala. Ctr. for the Env't v. United States Forest Serv., 189 F.3d 851, 860 (9th Cir.1999)). The FHWA's determination that there was no significant impact is entitled to substantial deference and is supported by the mitigation measures undertaken to preserve the bridge.See City of New York v. ICC, 4 F.3d 181. The Court therefore finds that this decision as well was not arbitrary or capricious.

Finally, FPSB alleges that the CE determination was invalid because the FHWA failed to make its own, early determination of a CE or of the project's purpose and need, instead relying on the City of Montpelier's stated project purpose and need, which necessarily excluded any of the proposed alternatives to replacement of the existing bridge. See id. at 18–21 (“Acceptance of a purpose and need statement produced by a party neither the agency nor the applicant, and which itself dictates a foregone conclusion as to the project to be undertaken, violates the spirit of NEPA and is arbitrary, capricious, and otherwise not in accordance with law.”). FPSB's argument on this point is poorly articulated and is unsupported by *654 the governing regulations. Moreover, while possibly relevant to the agency's 4(f) determination, the project's stated purpose and need has little bearing on the CE determination. Hence, the Court finds this argument to be without merit. The CE determination made by the government defendants in this case was not arbitrary or capricious and must be upheld.

B. The FHWA's “4(f)” determination

11FPSB's second challenge is to the FHWA's “Section 4(f)” determination regarding the Pioneer Street Bridge Project. Pursuant to 49 U.S.C. § 303(c),16 “[t]he Secretary may approve a transportation ... project ... requiring the use of ... land of an historic site ... only if—

(1) there is no prudent and feasible alternative to using that land; and

(2) the ... project includes all possible planning to minimize harm to the ... historic site resulting from the use.”

49 U.S.C.A. § 303(c) (West 2000).17 FHWA found that these requirements were satisfied (i.e., that there were no prudent and feasible alternatives and that the project included all possible planning to minimize harm to the site) and therefore approved the project. There is no dispute in this case that § 4(f) is applicable to the Pioneer Street Bridge. The only dispute relates to whether the FHWA fulfilled the substantive requirements of that section.

FPSB alleges a number of deficiencies in the FHWA's 4(f) determination of no prudent and feasible alternatives to use of the bridge. First, FPSB again criticizes the FHWA's repeated reliance on Montpelier's stated project purpose and need to dismiss stated alternatives as either not prudent or neither feasible nor prudent. “[T]o allow the FHWA to reject as imprudent alternatives which do not meet a stated objective of removal of the historic structure at issue simply because they do not meet the project purpose, twists the historic preservation goals of Congress to [sic] a semantic shell game. Any park or historic site could be eliminated if the state [sic] project goal was the elimination of that park or site.” Pl.'s Mem. at 27.

Although the language of the 4(f) documentation may appear to suggest that FHWA was relying solely on the city's stated purpose and need for the project in rejecting each avoidance alternative, the FHWA clearly relied on other factors as well. The Court disagrees that this criticism warrants a finding that the government defendants' 4(f) studies were legally inadequate under the appropriate standard of review. The Court's task in reviewing agency action is not to split hairs about the language of the supporting documents for each of the agency's determinations, but rather to examine the record to see if the *655 agency's ultimate conclusion was supported by the record and was not “arbitrary, capricious, or otherwise not in accordance with law.” As set forth in detail below, there is support in the record for the FHWA's rejection of each of the Programmatic 4(f) avoidance alternatives. Therefore, the Court disagrees with FPSB's criticism that the FHWA relied solely on Montpelier's stated project purpose and need in making the 4(f) determination.

FPSB next argues that the FHWA failed to meaningfully evaluate the feasibility or prudence of any of the stated alternatives to use of the Pioneer Street Bridge even under procedures promulgated by the FHWA itself—namely, the “Historic Bridges; Programmatic Section 4(f) Evaluation and Approval” [hereafter, “Programmatic 4(f)”], 48 Fed.Reg. 38,135 (August 22, 1983) (Paper 20, Ex. B). The FHWA developed the Programmatic 4(f) to “simplify and streamline compliance with the Section 4(f) requirements [for the use of historic bridges] and shorten the required processing time.” Id. at 38,137. The Programmatic 4(f) states that “[b]efore this programmatic Section 4(f) approval can be used for a particular highway improvement, an analysis of all the studies necessary to document the fact that there are no feasible and prudent alternatives to the use of the historic bridge will have to be completed.” Id. The Programmatic 4(f) requires that three alternatives—(1) do nothing; (2) build a new structure at a different location without affecting the historic integrity of the old bridge; and (3) rehabilitate the historic bridge without affecting its historic integrity—be evaluated and that the findings regarding the feasibility and prudence of each option be “supported by the circumstances, studies, and consultations on the project.” Id. at 38,139.

FPSB states that “[a]lthough there are four alternatives listed in the 4(f) document, no actual substantive alternative was in any [sic] evaluated.” Pl.'s Mem. at 31. This is clearly untrue. Moreover, while the 4(f) document itself may not have fully evaluated each alternative, there can be little question that the record contains rather extensive evaluations of the alternatives to replacement of the bridge and relocation for adaptive reuse (embodied in at least two engineering studies specific to the Pioneer Street Bridge). The Court finds that there is sufficient documentation in the record to support the FHWA's rejection of all three alternatives set forth in the Programmatic 4(f).

First, there can be no question that the FHWA properly rejected “do nothing” avoidance alternative. In order to reject the “do nothing” alternative under the Programmatic 4(f), the agency must study this alternative and find, for the following reasons, that this alternative is not feasible and prudent:

a. Maintenance—The do nothing alternative does not correct the situation that causes the bridge to be considered structurally deficient or deteriorated. These deficiencies can lead to sudden collapse and potential injury or loss of life. Normal maintenance is not considered adequate to cope with the situation.

b. Safety—The do nothing alternative does not correct the situation that causes the bridge to be considered deficient. Because of these deficiencies, the bridge poses serious and unacceptable safety hazards to the traveling public or places intolerable restriction on transport and travel.

48 Fed.Reg. 38,135, 38,140.

The FHWA properly rejected the “do nothing” alternative because it “does not correct the situation that causes the bridge to be considered structurally deficient” and *656 “[n]ormal maintenance is not considered adequate to cope with the situation.” Id. Moreover, “[b]ecause of [its] deficiencies, the bridge ... places intolerable restriction on transport and travel,” id. See A.R. 237 at 10–15 (describing the bridge's structural deficiencies); A.R. 237 at 50 (“The condition of the existing floor system (bridge deck, stringers, and floorbeams) warranted total replacement.”); A.R. 237 at 23 (recommending extensive corrective action); A.R. 238 at 1 (“The structure, in general, is in poor condition.”);see also A.R. 131 (showing sufficiency rating of 2 out of possible score of 100 for the Pioneer Street Bridge based on an inspection done in May 2000). The bridge's status as too structurally deficient to accommodate any traffic at all certainly makes this alternative imprudent. The FHWA's rejection of this alternative must be upheld.

The record also supports the FHWA's rejection of avoidance alternative (2), building a new bridge on a new location without using the old bridge, as not feasible or prudent. Under the Programmatic 4(f), in order to properly reject alternative (2), the record must show one of the following: (a) the present bridge has already been located at the only feasible and prudent site; (b) building a new bridge away from the present site would result in “social, economic, or environmental impact of extraordinary magnitude”; (c) “[w]here difficulty associated with the new location is less extreme than [in reason (b) ], ... cost and engineering difficulties reach extraordinary magnitude”; and (d) “[i]t is not feasible and prudent to preserve the existing bridge ....” 48 Fed.Reg. 38,135, 38,140. The FHWA considered this alternative in two different ways: (1) building a new one-way bridge and rehabilitating the existing bridge for one-way traffic or (2) building a new bridge at a different location and retaining the Pioneer Street Bridge in its current location for alternative use.

The Court concludes that the record sufficiently supports a finding that either of these alternatives would involve cost and engineering difficulties of extraordinary magnitude. The Pioneer Street Bridge Plan concluded that

[a]lignment options for a new vehicular crossing are restricted in this urban area, specifically by the dam upstream and the alignment of U.S. Route 2 and other roads on each side of the river. The cost of acquiring the right-of-way for new approaches could add a significant amount to the overall cost of the project.

A.R. 238 at 25. Furthermore, the Vermont Historic Bridge Survey notes that “[p]reservation planning does not end once the total bypass option is selected: the maintenance and use of the old span must be considered. It must be inspected regularly in order to discern and arrest deterioration.... [E]ven if the old bridge must be closed off entirely, periodic inspection and maintenance must be provided.” A.R. 236 at IV.20.

Moreover, concerns about hydraulics, safety, and other engineering problems arising from alternative (2) are present throughout the record. The Pioneer Street Bridge Study informs that “[t]he water surface profile at the bridge site indicates that the 50–year flood event passes underneath the bottom chord of the bridge,” with one foot to spare. See A.R. 238 at 10. This hydraulic capacity meets current design standards. See id. However, the Historic Truss Bridge Study noted that

[i]f a new bridge is proposed next to an existing truss bridge, the hydraulic interaction caused by the combined substructures must be considered. An undesirable scenario can exist when the *657 distance between the two structures is small. Changes to the stream flow characteristics, such as the development of swirling currents know as ‘eddies,’ can increase the potential for scour of the downstream structure.

A.R. 239 at 61; see also A.R. 238 at 10 (“The construction of a new structure within the immediate vicinity of the truss bridge ... should be carefully designed and evaluated to ensure that the hydraulic standard for bridges continues to be met. During design of new or modified structures, consideration shall also be given to the effect the bridge may have on surrounding property during a 100–year flood event.”); A.R. 236 at IV.20 (warning that, generally, when implementing the alternative of bypassing the historic bridge with a new span, “care must be observed during construction to avoid damage to the older span, such as ... altering the stream's flow characteristics in a way that would undermine the old abutments”); id. (cautioning that the partial bypass option, where the historic bridge would be used for one-way traffic, “would result in a short stretch of divided road at the crossing, a major safety consideration”). The Holden Report indicated that a replacement bridge could be designed to withstand a 100–year hydraulic event. See A.R. 237 at 36. Furthermore, and significantly, there is a dam between 600 and 800 feet upstream from the Pioneer Street bridge which shows signs of deterioration, see A.R. 238 at 6; A.R. 237 at 2, which could have an impact on the potential for flooding, further bolstering the government defendants' concerns with hydraulics problems.

Even if, as Plaintiff contends, the record does not support the FHWA's conclusion that construction of a second bridge along an adjacent alignment “would cause severe hydraulics problems and jeopardize the structural integrity of the piers of both new and old bridges,” A.R. 98–99, the combination of the increased long-term costs of maintaining the old bridge, the cost of acquiring rights-of-way for the new bridge, and the potential hydraulics problems caused by the interaction of the two bridges support the government defendants' rejection of alternative (2) as not feasible or prudent. In any event, the Court finds that this determination was not arbitrary or capricious, and therefore, it should be upheld.

In order to find that alternative (3) (rehabilitation without affecting historic integrity) is not feasible or prudent, the record must show that either: (a) the bridge is “so structurally deficient that it cannot be rehabilitated to meet minimum acceptable load requirements without affecting the historical integrity of the bridge”; or (b) the bridge is “seriously deficient geometrically and cannot be widened to meet the minimum required capacity of the highway system on which it is located without affecting the historic integrity of the bridge.” 48 Fed.Reg. 38,135, 38,140. Notably, “[f]lexibility in the application of ... geometric standards ... should be exercised ... during the analysis of this alternative.” Id.

The government defendants properly rejected this alternative, as the record clearly supports the finding that the bridge is so structurally and/or geometrically deficient that it cannot be rehabilitated without compromising its historic integrity. First, the Holden Report noted that “[b]ridge roadway width equal to twenty (20) feet (2 lanes, 2 way traffic) with Average Daily Traffic (ADT) greater than five-thousand (5000) is considered a ‘basically intolerable condition requiring high priority of replacement’.” A.R. 237 at 15. Second, the Pioneer Street Bridge Study informs us that, according to “State *658 Standards,” the recommended clear roadway width for the bridge would be twenty-eight feet (as opposed to its current width of twenty feet) and the minimum roadway width is twenty-six feet. See A.R. 238 at 12. While the Study recognized that “historic bridges should be considered for design exceptions, and for rehabilitation rather than replacement...., the traffic volume, truck traffic and functional class of the roadway indicate that a design exception for width would not be in the best interest of public safety.” A.R. 238 at 12. Furthermore, the record is replete with evidence that widening the bridge would greatly compromise (if not destroy) its historic integrity. See, e.g., A.R. 238 at 25; A.R. 236 at III.3–4, IV.18. Thus, the government defendants' determination with regard to rejection of this alternative should also be upheld.

FPSB argues that the conclusions regarding the lack of feasibility of the avoidance alternatives in the 4(f) document are “[b]elied by the [o]nly [e]ngineering [i]nformation” in the record. Pl.'s Mem. at 33. The Court disagrees. As it has set forth in detail above, there is evidence in the record supporting the rejection of each of the avoidance alternatives in the Programmatic 4(f). Even accepting as true Plaintiff's contention that evidence supporting the feasibility of each of the alternatives is present in the record as well, the Court is persuaded that the government defendants' conclusions were “based on a consideration of the relevant factors,” and that there has not “been a clear error of judgment.” Volpe, 401 U.S. at 416, 91 S.Ct. 814. In order to find that the agencies' actions were not arbitrary and capricious, the Court must do more than simply find that the record could have supported a different decision. Rather, under the “arbitrary and capricious” standard, the Court must uphold the administrative action “if the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Friends of Endangered Species, 760 F.2d at 982 (internal quotation marks omitted). The agencies here have successfully done this, and the Court must uphold their determinations.

12FPSB also argues that the FHWA's conclusion that all possible planning was undertaken to minimize harm was erroneous because the bike path for which the bridge is allegedly to be used is only “a matter of wishful public discussion at this time.” Pl.'s Mem. at 41–42. This argument misses the mark. While it is uncertain whether the bike path will be implemented, Defendants have provided for the possibility that it might not. The MOA states that

[i]f, due to factors beyond the control of either FHWA or [VTRANS], adaptive use of Bridge No. 6 on the Montpelier East Bike Path is not feasible, [VTRANS] will partially disassemble the bridge and store it at an appropriate site until a new location can be found. [VTRANS] hereby commits to using its best efforts to secure an appropriate location, preferably in Montpelier, and will fund the costs for moving the bridge to its new location and for rehabilitation as part of the adaptive use program.

A.R. 88. Moreover, the FHWA provided that the Pioneer Street Bridge “will be documented and recorded in accordance with the Adaptive Use Program Manual prior to initiation of construction.” A.R. 109. Finally, and perhaps most importantly, the Historic Truss Bridge Study stated that

[c]onverting the structure to an adaptive use can reduce member stress ranges and, therefore, extend the safe fatigue life of the structure. Reinforcement or replacement of members can also improve *659 a structure's fatigue characteristics. For the oldest, and generally most historic structures in the State that have neared the end of their fatigue life, it may only be practical to remove the structures from vehicular loading by converting them to recreational use bridges.

A.R. 239 at 62. Therefore, it is likely that preservation of this historic structure is in fact better facilitated by removing the bridge than it is by leaving it in place. The government defendants' determination that they have undertaken all possible planning to minimize harm was not arbitrary and capricious and must be upheld.

Finally, FPSB challenges (in very brief form) the FHWA's failure to consider that the project will impact the railroad right-of-way owned by the state of Vermont which the Bike Path Committee has hoped to convert into the Montpelier East Bike Path. See Pl.'s Mem. at 42. “If the railroad right of way is to be considered a bike path for purposes of the minimization of harm requirement of the 4(f) determination, then it should also be considered a ‘park land’ for purposes of 4(f) evaluation.” Id. This argument is meritless. There is no reason in law or logic why a right-of-way that has only been considered as a potential site for a bike path should be treated as “park land” under the 4(f) analysis, and Plaintiff has cited no case which would convince this Court to conclude otherwise. Thus, the Court holds that the government defendants' determinations involved in the 4(f) analysis were not arbitrary and capricious, and must be upheld.

IV. Conclusion

Wherefore, the Court DENIES Plaintiff's motion for summary judgment (Paper 13) and GRANTS Defendants' cross-motion for summary judgment (Paper 19). Plaintiff's complaint is DISMISSED. Case CLOSED.

All Citations

150 F.Supp.2d 637

Footnotes

1

Actually, the defendant-intervenors entitled their motion as one to intervene and dismiss. See Mot. to Intervene and Dismiss at 1 (Paper 25). However, the Court understands that their intent was to join the cross-motion for summary judgment and treats their motion accordingly.

2

At the hearing, Plaintiff stated that it had no objection to the motion to intervene.

3

The National Register of Historic Places “is the nation's list of significant historic buildings, district [sic], structures, objects and sites.” See Admin. R. (“A.R.”) 236 at III.1 (Paper 15).

To be eligible for the National Register, a bridge (or any other property) must be at least 50 years old and must possess integrity of location, design, setting, and materials. Moreover, according to the criteria for listing in the National Register the bridge must

— be associated with events which have made a significant contribution to the broad patterns of our history (Criterion A) or

— embody the distinctive characteristics of a type, period, or method of construction; represent the work of a master; or possess high artistic values (Criterion C).

Id. “Normally, properties which have been moved from their original location are not eligible for the National Register. However, this exclusion does not generally pertain to historic bridges, since their eligibility rests mostly upon Criterion C, their significance as representative examples of particular types of construction.” A.R. 236 at III.1–2.

4

Defendants allege that after reviewing four possible alternatives (two involving rehabilitation and two involving replacement), the Holden Report concluded that the Pioneer Street Bridge should be replaced with a new steel plate girder bridge, based upon “Long Term Traffic Goals” and “Benefit–Cost Factors.” See Mem. in Supp. of Cross–Mot. for Summ. J. and Mem. in Opp'n to Pl.'s Mot. for Summ. J. at 7 (Paper 20) [hereafter, “Defs.' Mem.”]. However, the record does not support this contention. The Holden Report evaluates each alternative but does not come to any specific conclusion about which alternative is most desirable. The Holden Report did, moreover, state that the historical significance of the bridge was outside of its scope. See A.R. 237 at 53.

5

The Pioneer Street Bridge Plan also concluded that alternative (C) (restoration/rehabilitation in place for adaptive use) “would be considered desirable” if “a suitable alignment for a new vehicular crossing is available.” A.R. 238 at 25. However, it noted that “[a]lignment options for a new vehicular crossing are restricted in this urban area, specifically by a dam upstream and the alignment of U.S. Route 2 and other roads on each side of the river. The cost of acquiring the right-of-way for new approaches could add a significant amount to the overall cost of the project.” Id. Moreover, the study noted that while this alternative “would preserve the historic nature of the structure[,] ... the construction of a new bridge in close proximity to this bridge may detract from the aesthetic quality of the bridge.” Id.

6

Importantly, the Historic Truss Bridge Study noted that “[c]onverting the structure to an adaptive use can reduce member stress ranges and, therefore, extend the safe fatigue life of the structure.... For the oldest, and generally most historic structures in the State that have neared the end of their fatigue life, it may only be practical to remove the structures from vehicular loading by converting them to recreational use bridges.” A.R. 239 at 62.

7

Plaintiff has brought no claim in this case under NHPA; thus, there is no dispute as to whether the government defendants have complied with that statute.

8

This agreement addressed the FHWA's treatment of all of Vermont's historic bridges, including the Pioneer Street Bridge—thus, it is broader than the project-specific MOA referenced above.

9

The nationwide “Programmatic Section 4(f),” discussed in more detail below, is a document that outlines the procedures to be followed for projects affecting bridges which are on or eligible for inclusion on the National Register of Historic Places. It was designed to simplify and streamline compliance with Section 4(f) evaluations of historic bridges. See Historic Bridges; Programmatic Section 4(f) Evaluation and Approval, 48 Fed.Reg. 38,135–03 (August 22, 1983).

10

An EIS is a “detailed statement” on:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C.A. § 4332(2)(C). Before preparing an EIS, “the responsible official shall consult with and obtain comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.” Id.

An EA is “a concise public document ... that serves to:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

(2) Aid an agency's compliance with the Act when no environmental impact statement is necessary.”

40 C.F.R. § 1508.9(a) (2001). An EA should “include brief discussions of the need for the proposal, of alternatives, ... of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(b).

11

“The phrase ‘Federal action’ also includes those projects undertaken or performed essentially by the states but funded in whole or in part by the federal government.” Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F.2d 423, 431 n. 9 (5th Cir.1985) (citing 42 U.S.C. § 4332(D)).

12

The CEQ regulations provide that the term “ ‘[s]ignificantly’ as used in NEPA requires considerations of both context and intensity ....” 40 C.F.R. § 1508.27 (2001). The context prong requires that

the significance of an action ... be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

40 C.F.R. § 1508.27(a). “Intensity” refers to “the severity of impact.” 40 C.F.R. § 1508.27(b). The regulations provide, in relevant part, that the following factors should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

...

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

...

(8) The degree to which the action may adversely affect ... sites ... listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

Id.

13

The term “extraordinary” (rather than “unusual”) modifies “circumstances” in the CEQ regulation, 40 C.F.R. § 1508.4 (2001), pursuant to which the FHWA regulations governing “unusual circumstances” were promulgated. See id. (“Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.”) (emphasis added). The Court thus assumes that the FHWA's use of the word “unusual” was meant to be synonymous, in this context, with “extraordinary” as used in the CEQ regulation.

14

The parties do not dispute that the Pioneer Street Bridge qualifies as “4(f) property.” Thus, the only real issue is whether the replacement and relocation of the bridge constitutes a “significant impact” under the regulations.

15

There is no dispute that the FHWA found that “[t]he removal, relocation and reuse of the existing bridge is an adverse impact under Section 106” of the NHPA. A.R. 230; see also A.R. 33.

16

Determinations under this provision are labeled “4(f)” matters after their prior codification number because, according to FHWA regulations, “it would create needless confusion to do otherwise.” 23 C.F.R. § 771.107(e) n. 1 (2001).

17

The term “feasibility,” as used in this section, “focuses upon what ‘sound engineering’ makes possible.” Wade v. Lewis, 561 F.Supp. 913, 949 (N.D.Ill.1983) (quoting Volpe, 401 U.S. at 411, 91 S.Ct. 814), appeal dismissed by Wade v. Baise, 767 F.2d 925 (7th Cir.1985). “For the exception to th[is] statute[ ] to apply, ‘the Secretary must find that as a matter of sound engineering’ ” that the alternatives to the proposed project would not be feasible. Id. (quoting Volpe, 401 U.S. at 411, 91 S.Ct. 814).

“ ‘Prudence,’ as used in th[is] section[ ], connotes more than ‘a wide-ranging balance of competing interests.’ An alternative is ‘prudent’ if it does not present ‘unique problems.’ ‘Only the most unusual situations are exempted.’ ” Id. (quoting Volpe,401 U.S. at 411, 416, 91 S.Ct. 814).

 

Case Report: Abenaki Nation of Mississquoi v. Hughes

805 F.Supp. 234

United States District Court,

D. Vermont.

The ABENAKI NATION OF MISSISSQUOI, the Abenaki Tribal Council, Dee Brightstar, Dorcus Churchill, Michael Delaney, Blackhorse Phillips, Hilda Robtoy, April St. Francis, David St. Francis, Homer Francis, and Robert Wells, all on their own behalves and on Behalf of the Abenaki People

v.

James K. HUGHES, Lt. Colonel, District Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, William F. Lawless, P.E., Chief Regulatory Branch, Operations Division, of the Corps of Engineers of the United States Department of the Army, Philip R. Harris, Colonel, Division Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, Michael P.W. Stone, Secretary of the Army, The Village of Swanton, Vermont, and George Lague, Village Manager of the Village of Swanton, Vermont.

Civ. A. No. 2:92–CV–279.

Oct. 22, 1992.

Action was brought challenging Corps. of Engineers issuance of approval of hydroelectric project under general permit. The District Court, Parker, Chief Judge, held that: (1) general permit was properly issued; (2) Corps of Engineers adequately considered effect on historic resources; (3) EIS was not necessary; and (4) technical violation of National Historic Preservation Act was not fatal to the permission.

Judgment for defendant.

West Headnotes (18)Collapse West Headnotes

Change View

1Administrative Law and ProcedureArbitrary, unreasonable or capricious action; illegality

Environmental LawWater, wetlands, and waterfront conservation

Decision by Corps of Engineers to authorize hydroelectric project under general permit governing certain hydroelectrical development activities in the New England region was reviewable under the arbitrary and capricious standard. 5 U.S.C.A. § 706(2)(A); Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

3 Cases that cite this headnote

2Environmental LawNotice and comment

General permit issued by the Army Corps of Engineers for certain hydroelectric development activities in the New England region was not a “rule” required to be published in the Federal Register. 5 U.S.C.A. § 553; Federal Water Pollution Control Act Amendments of 1972, § 404(e), 33 U.S.C.A. § 1344(e).

3Environmental LawNecessity

It was not necessary for the Corps of Engineers to conduct a new environmental assessment in 1987 in order to reissue general permit authorizing certain hydroelectric development activities in the New England region where the GP was reissued in essentially its original form. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1); National Environmental Policy Act of 1969, § 102, as amended, 42 U.S.C.A. § 4332.

2 Cases that cite this headnote

4Environmental LawNotice and comment

IndiansStatus of Indian Nations or Tribes

Neither the Abenaki Nation of Mississquoi, the Abenaki Tribal Council, nor the Abenaki people are federal Indian tribes to which the Corps of Engineers is required to give notice before issuing permit under the Clean Water Act. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

1 Case that cites this headnote

5Environmental LawPermissible Uses and Activities;  Permits and Licenses;  Management

Decision of Army Corps of Engineers to authorize hydroelectric project under General Permit 38 governing certain hydroelectric development activities in the New England region was rationally related to the facts found and was not arbitrary or capricious; Corps gave great consideration to whether mitigation plan proposed by village for its plan to increase height of spillway on generating station was adequate. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

4 Cases that cite this headnote

6Environmental LawWaters and water courses;  dams and flood control

Environmental LawPermissible Uses and Activities;  Permits and Licenses;  Management

Corps of Engineers adequately considered impact of hydroelectric project on historic sites in making determination to approve it under general permit governing certain hydroelectric development activities in the New England region, where the Corps addressed issue of potential losses of historic resources by requiring participation of appropriate state and federal agencies and requiring avoidance data or data recovery as necessary and whereby having mitigation plan address impact on historical sites. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

6 Cases that cite this headnote

7Environmental LawNecessity

Corps of Engineers properly relied on Federal Energy Regulatory Commission (FERC) environmental assessment in granting authorization for hydroelectric project under general permit and was not required to conduct its own EA where the FERC was the lead agency for the project and had conducted an environmental assessment and reached a finding of no significant impact (FONSI). Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

1 Case that cites this headnote

8Environmental LawNotice and comment

Once Corps of Engineers determine that hydroelectric project was within scope of general permit authorizing certain hydroelectric development activities in the New England region, the project was no longer subject to Corps regulations implementing the National Environmental Policy Act (NEPA), and notice of project's authorization was not required. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1); National Environmental Policy Act of 1969, §§ 2–209, as amended, 42 U.S.C.A. §§ 43214347.

1 Case that cites this headnote

9Environmental LawDischarge or deposit of dredged or fill material

Discharge of dredged or fill material into river or wetland, whether natural or man-made, would require permit under the Clean Water Act. Federal Water Pollution Control Act Amendments of 1972, § 404, 33 U.S.C.A. § 1344.

10Environmental LawDischarge or deposit of dredged or fill material

If creation of wetlands occurs by flooding certain areas with waters from river, nothing included in the definition of “pollutants” will be discharged into the river as a result, so that individual § 404 permit for the project is not required. Federal Water Pollution Control Act Amendments of 1972, §§ 404, 502, 33 U.S.C.A. §§ 13441362.

11Environmental LawDischarge or deposit of dredged or fill material

Corps of Engineers regulations do not require the Corps to issue permit for discharge which might occur at some future date at the same time that it issues authorization for project under general permit. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

12Environmental LawDischarge or deposit of dredged or fill material

Fact that hydroelectric project would be in violation of terms of general permit if wetlands were filled as a result of Corps of Engineers authorization did not place the project outside the scope of the general permit but, rather, subjected the permit to possible revocation. Federal Water Pollution Control Act Amendments of 1972, § 404(e)(1), 33 U.S.C.A. § 1344(e)(1).

13Environmental LawReview and consultation requirements;  permits and approvals

IndiansStatus of Indian Nations or Tribes

Indian nation which was not formally recognized by the Secretary of the Interior as an Indian tribe was not an “Indian tribe” for purposes of National Historic Preservation Act and that was not interested person entitled to notice of approval of project. National Historic Preservation Act, § 106, 16 U.S.C.A. § 470f.

1 Case that cites this headnote

14Environmental LawWaters and water courses;  dams and flood control

Corps of Engineers provided adequate opportunity for opponents of hydroelectric project to receive information and express their views, and thus met notice requirements of the National Historic Preservation Act, where it met with representatives of opponents. National Historic Preservation Act, § 106, 16 U.S.C.A. § 470f.

15Environmental LawWaters and water courses;  dams and flood control

Corps of Engineers met requirements of National Historic Preservation Act before issuing authorization for hydroelectric project by meeting with Indian organizations opposed to the project and consulting with State Historic Preservation Officer concerning the project's impact on historical resources. National Historic Preservation Act, § 106, 16 U.S.C.A. § 470f.

16Environmental LawWaters and water courses;  dams and flood control

Environmental LawPermissible Uses and Activities;  Permits and Licenses;  Management

Corps of Engineers was in technical violation of National Historic Preservation Act due to failure to prepare memorandum of agreement between it and State Historic Preservation Officer before issuing approval for hydroelectric project pursuant to general permit, but that technical violation was not fatal to the permit where the permission for the project contained historical preservation conditions. National Historic Preservation Act, § 106, 16 U.S.C.A. § 470f.

17Dead BodiesRemoval from place of former burial;  injunction

Abenaki Nation of Mississquoi was a community of Indians protected by the Native American Graves Protection and Repatriation Act (NAGPRA) in view of fact that it received funds and assistance from the United States because of the status of its members as Indians. Native American Graves Protection and Repatriation Act, § 2(7), 25 U.S.C.A. § 3001(7).

2 Cases that cite this headnote

18Dead BodiesRemoval from place of former burial;  injunction

Regulatory powers of the Corps of Engineers under the Clean Water Act and Corps' involvement in devising and supervising mitigation plan for hydroelectric project did not place lands affected by the project under the “control” of the Corps so as to bring them within the protection of the Native American Graves Protection and Repatriation Act (NAGPRA). Native American Graves Protection and Repatriation Act, §§ 2(5), 3, 3(a), 5, 6, 25 U.S.C.A. §§ 3001(5)30023002(a)30033004.

1 Case that cites this headnote

Attorneys and Law Firms

 

*236 James A. DumontCindy E. Hill, Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, Vt., for plaintiffs.

Thomas D. AndersonHelen M. Toor, Asst. U.S. Attys., Burlington, Vt., for defendants James K. Hughes, Lt. Colonel, et al., William F. Lawless, P.E., et al., Philip R. Harris, Colonel, et al., Michael P.W. Stone, Secretary of Army.

Stephen C. Walke Jr., Paterson & Walke, P.C., Montpelier, Vt., for defendants The Village of Swanton, Vt. and George Lague, Village Manager of Village of Swanton, Vt.

 

OPINION AND ORDER

PARKER, Chief Judge.

I. Introduction

Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin defendants from all actions associated with raising the spillway elevation of the Orman Croft Generating Station, a hydroelectric facility in Highgate, Vermont. The parties agreed to a hearing on the merits and plaintiffs withdrew their temporary restraining order in early September, 1992. The parties understood and agreed that a decision on the merits would obviate the need for a preliminary injunction.

The litigation stems from the authorization granted to the Village of Swanton (hereafter “the Village”) to raise the spillway elevation of the Orman Croft Generating Station (hereafter “the Project”) by the Army Corps of Engineers (hereafter “the Corps”) on July 15, 1992. Pursuant to Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344(e), this authorization was granted under a general permit, General Permit 38, first issued by the Corps in 1982 and reissued in 1987.

Plaintiffs claim that General Permit 38 (hereafter “GP 38”) is invalid because of procedural violations. Even if valid, plaintiffs claim that the Project is not eligible *237 for authorization under GP 38. Plaintiffs also allege that the authorization granted by the Corps under GP 38 violates a variety of federal statutes, specifically (1) The National Environmental Policy Act, 42 U.S.C. §§ 43214347 (1992) (hereafter “NEPA”); (2) the Federal Water Pollution Control Act, 33 U.S.C. §§ 12511387 (1992) (popularly known as the Clean Water Act) (hereafter “CWA”); (3) the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1992) (hereafter “NHPA”); and (4) the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 30013013 (1992) (hereafter “NAGPRA”). For these reasons plaintiffs claim that the authorization by the Corps is void and that until the Project is properly permitted all activity connected with it must cease.

II. Background

The Village has operated a hydroelectric facility at Highgate Falls since 1928. It has upgraded the facility twice before, in 1930 and 1954, and in 1979 decided to upgrade it again.1

In order to proceed with this proposed Project, the Village was required to apply for a license from the Federal Energy Regulatory Commission (hereafter “FERC”) pursuant to the Federal Power Act, 16 U.S.C. §§ 791a828 (1992). It also needed a permit from the Corps for the discharge of dredged or fill material2 into the Mississquoi River pursuant to the Corps' responsibilities under the CWA, 33 U.S.C. § 1344.

Before issuing a license, the FERC must consider not only the power and development issues involved with a project but also issues related to the project's impact on environmental quality.3 For its part, the Corps may issue individual permits on a project by project basis (otherwise known as individual § 404 permits) or general permits, if activities involved “will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment,” on a State, regional or nationwide basis. 33 U.S.C. § 1344(e)(1).4

On October 22, 1982 the Corps issued GP 38 (administrative record (AR) 170) for certain hydroelectric development activities in the New England region.5 The public notice of the proposed GP 38 declared that

*238 [T]o avoid duplicating the regulatory control exercised by the Federal Energy Regulatory Commission (FERC) for hydropower development or expansion projects which cause minimal or no adverse environmental effects, the New England Division of the U.S. Army Corps of Engineers proposes to issue a general permit that, subject to certain conditions, would eliminate the need for Corps of Engineers approval of fills associated with such work at existing dams or at new or existing run-of-river projects throughout New England.

(AR 146).

GP 38 was subject to six Special Conditions (“SC”) and 24 General Conditions. (AR 189). The second SC states that the “activity which includes the discharge must be licensed or formally exempted by the [FERC]. No discharge is allowed unless and until the [FERC] license or formal exemption, as well as all other required local, State and Federal licenses and permits have been obtained.” (AR 189).

In short, GP 38 provided for FERC to be the lead agency in regulating hydroelectric projects in the New England Region and ensuring that they complied with applicable regulations, including NEPA and NHPA. While the Corps was still responsible for ensuring compliance with the dictates of the CWA, GP 38 called for the Corps to utilize the information gathered by the FERC and issue authorization if the discharge “cause[d] minimal or no adverse environmental effects.” If FERC concluded that there would be more than minimal adverse effects, or if the Corps determined on its own that a proposed action was outside the realm of GP 38, permit applicants would not be eligible for authorization under GP 38 and would have to proceed with an individual § 404 permit application.

Some time after the Corps issued GP 38 the Village commenced efforts to obtain the necessary permits for the envisioned improvements to the Highgate facility. Pursuant to the FPA and NEPA, the FERC conducted an Environmental Assessment (“EA”) of the Project and made a Finding of No Significant Impact (“FONSI”). (AR 105). Specifically it found that the project would result in only “short-term minor [environmental] impacts” and concluded that “issuance of a license, as conditioned herein, for the project will not constitute a major Federal action significantly affecting the quality of the human environment.” (AR 105 at p. 8).6

Prior to issuance of the FERC license, the Corps determined that the project was eligible under GP 38 and issued the authorization to proceed on January 24, 1984. The Corps based its determination on the Village's application for a permit, its FERC license application and the EA conducted by FERC. (AR 143). On May 24, 1984 FERC issued a license for the Project. (AR 105).

In 1987 GP 38 was reissued for another five years with several changes and amendments after public notice was given (AR 178) and a supplement to the 1982 Statement of Findings was made.7 (AR 188). In the meantime, work on the Project remained in the initial stages. On January 22, 1990, the Village filed a request with FERC for the amendment of its license, proposing to reduce the overall height of *239the project.8 In considering this request, FERC found that the amended project would “reduce the adverse effects of the project, most significantly those impacts on cultural resources and wetlands.” (AR 106 at p. 2). On March 14, 1991, FERC issued an order amending the original license to conform with the Village's proposed changes. (AR 106).

On September 5, 1991, the Village submitted a request to the Corps for authorization under GP 38 for the reduced Project. The Village initially believed that the authorization granted by the Corps in 1984 was suitable ground to grant authorization in 1991. (AR 5) In informal meetings and discussions as early as mid-September 1991 (AR 4) and as late as February, 1992, (AR 44) Corps personnel from the New England Division informed the Village that the Project was not eligible for authorization under GP 38 and that an individual § 404 permit would be necessary. This conclusion was based upon an expressed concern regarding the adverse impact of the Project on wetlands and the inadequacy of proposed mitigation plans.

Corps Headquarters agreed with the New England Division that an individual § 404 permit would be required if mitigation plans were not adequate but also stated that a conditioned general permit assuring adequate mitigation would allow authorization under GP 38. (AR 84). It advised the New England Division that adequate mitigation could be considered to remain below the minimal impact threshold for the general permit just as under NEPA it can be considered to reach a finding of no significant impact. (AR 103).

After consultation with the Vermont state archeologist concerning historical resources at the mitigation sites (AR 87, 94), the Village (AR 92), and Corps Headquarters (AR 101, 103), the Corps issued a conditioned authorization under GP 38 on July 15, 1992. (AR 132). This conditioned authorization imposed 23 Special Conditions (“SC”) which the Corps believes ensures that the Project will cause minimal or no adverse impact making it eligible for authorization under GP 38.9 It is this authorization to which plaintiffs object.

III. Discussion

A. Basis of Review

1. Jurisdiction

Plaintiffs allege violations of the Administrative Procedure Act, 5 U.S.C. §§ 500– *240 590 (1992) (hereafter “APA”), NEPA, CWA, NHPA and NAGPRA. The court has jurisdiction under 28 U.S.C. § 1331 to hear these claims.

2. Standard of Review

Courts traditionally afford the decisions of administrative agencies due deference in reviewing agency action. See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

The Second Circuit has stated the appropriate standard of review when reviewing actions and decisions by the Corps to issue permits. “In reviewing the validity of a decision by the Corps to issue a permit under the [CWA], a court should, as provided by the [APA], uphold the decision unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Sierra Club v. United States Army Corps of Eng., 701 F.2d 1011, 1032 (2d Cir.1983) (quoting 5 U.S.C. § 706(2)(A)). In defining arbitrary and capricious, the Second Circuit has stated that

[A]n agency's decision is held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation contrary to the evidence before it, or its explanation ... is so implausible that it cannot be ascribed to differing views or agency expertise.

Sierra Club v. United States Army Corps of Eng., 772 F.2d 1043, 1051 (2d Cir.1985).

1Accordingly, any review of the decision by the Corps to authorize the Project under GP 38 is limited to the arbitrary and capricious standard as established by statute and defined by relevant case law.

B. Plaintiffs' Claims

1. Claim 1—General Permit 38 is Invalid

Plaintiffs assert that General Permit 38, first issued in 1982 and reissued in 1987, is invalid because it fails to comply with the requirements of the APA, NEPA and the Corps' own regulations.

a. APA

2Plaintiffs claim that GP 38 is a “rule” under the APA because it is an agency statement of general applicability designed to implement the CWA. As a “rule” the APA requires it to be published in the Federal Register. 5 U.S.C. § 553. Plaintiffs claim that because GP 38 is a rule and the Corps failed to publish it in the Federal Register, it is invalid and any authorization stemming from it is void.

While facially attractive, this claim is unsupported by both the APA and case law. The APA defines “rule” as the “whole or part of an agency statement of general or particular applicability and future effect designed to implement law.” 5 U.S.C. § 551(4). It defines adjudication as the “agency process for formulation of an order.” 5 U.S.C. § 551(7). An order is defined in turn as “the whole or part of a final disposition, whether affirmative, negative, injunctive or declaratory in form, of an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6). License is defined to “include the whole or part of an agency permit....” 5 U.S.C. § 551(8).

From these definitions a general permit is more appropriately classified as an adjudication rather than a rule. Such a conclusion was reached in National Wildlife Federation v. Marsh, 568 F.Supp. 985, 992 n. 12 (D.C.1983), which stated that a “permit decision-making proceeding is clearly adjudication rather than rule making.” As an “adjudication” and not a “rule,” publication of GP 38 in the Federal Register was unnecessary. GP 38 was not issued in violation of the APA.

b. NEPA

3Plaintiffs claim that the issuance of GP 38 was a major federal action significantly affecting the environment and that prior to issuing GP 38 the Corps prepared neither an EIS nor an EA and therefore violated the dictates of NEPA.

NEPA requires that

[A]ll agencies of the Federal Government shall— ...

*241 (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action....

42 U.S.C. § 4332(2)(C)(i), (ii) and (iii) (1992).

The Council on Environmental Quality (“CEQ”) is responsible for interpreting and administering NEPA. 42 U.S.C. §§ 434244. The regulations promulgated by the CEQ are found in 40 C.F.R. §§ 1500–1517. The regulations establish that this “detailed statement,” known as an environmental impact study (“EIS”), is unnecessary if an agency finds through an environment assessment (“EA”) that a major federal action will not have a significant impact on the quality of human life, generally known as a finding of no significant impact. (“FONSI”). 33 C.F.R. § 1501.4(a)(2). The CEQ defined an EA at § 1508.9, but specifically left the procedures by which an EA is prepared to the individual agencies. § 1501.3. The Corps has promulgated such procedures and they are found at 33 C.F.R. Part 230.

The Corps procedures for implementing NEPA state that “[m]ost permits will normally require only an EA.” 33 C.F.R. § 230.7(a). The procedures define an EA as a “brief document which provides sufficient information to a [Corps] district commander on potential environmental effects of the proposed action, and, if appropriate, its alternatives for determining whether to prepare an EIS or a FONSI.” § 230.10(a). No specific format is required, § 230.10(b), but an EA should include a brief discussion of the need for the proposed action, the environmental impacts of the proposed action and a list of agencies and interested parties consulted.

As to the initial issuance of GP 38, plaintiffs' claim is factually incorrect. The administrative record contains an EA conducted by the Corps in 1982 prior to the issuance of GP 38 (AR 171) as well as a statement of findings. (AR 170). Both of these documents satisfy the procedural requirements of NEPA as set out in 33 C.F.R. § 325.2(a)(4) and (6). The FONSI reached by the Corps in 1982 rendered the requirement for an EIS unnecessary.

Plaintiffs assert that the 1987 version of GP 38 was a new permit10 and at the least a new EA should have been conducted by the Corps. It is not clear from the statute or the regulations whether reissuing GP 38 in 1987 served to make it a “new” general permit and hence subject to a new round of scrutiny under NEPA or whether reissuing only required an updated statement of findings. The Corps obviously believed the latter was the correct course as it only *242 prepared a supplement to the 1982 statement of findings. (AR 188).

The regulations promulgated by the Corps concerning the processing of permits, 33 C.F.R. Part 325, do shed light on this issue indirectly. Section 325.3(b) requires that public notice be published for reissuance of existing regional permits within their area of jurisdiction. It is clear that the Corps complied with this regulation. (AR 176, 180). Section 325.7(a) directs that modifications which result in “significant increases in scope of a permitted activity will be processed as new applications for permits.” Such modifications would clearly be “new permits” for NEPA purposes and require a new EA. But a proposal to reissue a permit which is not significantly different in scope from its predecessor is not a “new permit” and need not be subjected to the scrutiny attended its forebear. Indeed, reissuing a permit seems more akin to extending an existing permit than issuing a new one.11 The Corps treats extensions of permits due to expire as follows:

Requests for extensions will be processed in accordance with the regular procedures of § 325.2 of this part, except that such processing is not required where the district engineer determines that there have been no significant changes in the attendant circumstances since the authorization was issued.

33 C.F.R. § 325.6(d).

GP 38 was reissued in essentially the same form in 1987. (AR 189). It neither increased the scope of activities eligible for authorization under it nor decreased the regulation of those activities. In fact, it added reporting requirements for permit applicants and limited its geographic scope. (AR 190) After publishing public notice and considering comments received from the public, the Corps issued a supplemental statement of findings that the activities authorized under GP 38 caused minimal acceptable environmental impacts. (AR 177). Although there is no explicit regulation stating that this was all the procedure required, related regulations suggest that it is.

Based on the administrative record and this analysis, it was not necessary for the Corps to conduct a new EA in 1987 in order to reissue GP 38. By conducting the original EA in 1982, making two statements of findings and complying with the notice provisions, the Corps met the requirements of NEPA when it issued and reissued GP 38.

c. Corps Regulations

Plaintiffs contend that the Corps violated its own regulations governing the issuance of permits under the CWA by not providing notice and the chance to comment on impending general permits to the public, 33 C.F.R. § 325.3(a), and more specifically, to Indian tribes, § 325.3(d), and by not preparing either an EA or an EIS prior to issuance. This latter claim was addressed above and need not be repeated.

Plaintiffs claim that the Corps failed to notify anyone in Vermont of the proposed GP 38. Factually this is incorrect. The Corps provided notice of the proposed GP 38 to municipalities, state agencies and officials, private organizations and some individuals.12 (AR 147, 148).

4The Corps did not directly notify plaintiffs and would thus be in violation of 33 C.F.R. § 325.3(d) if any of the plaintiffs qualified as an Indian tribe. However, neither the Abenaki Nation of Mississquoi, the Abenaki Tribal Council nor the Abenaki people are recognized by the Bureau of Indian Affairs as a federal Indian tribe.13 *243 Section 325.3(d) requires the Corps to provide notice to “appropriate Indian Tribes or tribal representatives.” The Corps' failure to provide notice to the plaintiff was reasonable in light of the plaintiffs absence from the list of federally recognized tribes and the extensive notice it provided to other public forums and groups. Because the Corps did not violate its own regulations or those imposed by NEPA or the APA in issuing GP 38, plaintiff's claim that GP 38 is invalid fails.

2. Claim II—The July 15, 1992 Authorization Violated NEPA

In the early stages of the permit process reinitiated by the Village in its September 9, 1991 permit application, Corps personnel indicated that the Project would not be eligible for authorization under GP 38 because of its impact on wetlands. (AR 4, 5, 9/17/91). Corps personnel also indicated that an EIS might be necessary because of significant impact on the human environment. (AR 14, 10/25/91). Corps personnel maintained these positions until as late as February 27, 1992. (AR 58). In early March of 1992 the Corps modified its position, (AR 60, 61), holding out the possibility that with upfront mitigation which had reasonable assurance of success, the Project would become eligible under GP 38. (AR 60). The Village capitalized on this possibility, preparing mitigation plans and agreeing to the conditions imposed by the Corps, leading to the authorization under GP 38 for the Project. (AR 132).

Plaintiffs claim that this chain of events was in violation of NEPA. Specifically, they allege defendants violated NEPA by not preparing an EIS, by failing to give adequate consideration to historic resources at the Project site, improperly relying on the FERC EA and failing to provide proper notice of its intent not to conduct an EIS.

a. Failure to perform an EIS

Plaintiffs' contention that the Corps was required to conduct an EIS before authorizing the Project under GP 38 apparently stems (1) from the informal statements from Corps personnel that an EIS would be necessary and (2) from the Corps decision that the Project could be authorized under GP 38 if adequate mitigation was reasonably assured.

As to the informal statements made by Corps personnel regarding the need for an EIS, it would hardly make sense to hold the Corps, or any other agency, bound by the informal statements of its employees. See, e.g., American Trucking Assns. v. Atchinson, T. & S.F.R. Co.,387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967) (agency “faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation”).

Plaintiffs do not contest this but rather argue that the Corps has failed to articulate a rational connection between the facts found and the choice made.

5The administrative record indicates that once the Corps reached the position that it was possible that the Project could be permitted under GP 38 if the authorization was conditioned upon an adequate mitigation plan for cultural and biological impacts, the Corps gave great consideration to whether or not the mitigation plan proposed by the Village was adequate. (AR 60, 64, 65, 66, 69, 70, 71, 72, 74, 78, 79, 82, 87, 92, 93, 94). Moreover, the mitigation plan is mandated by the authorization and the Project cannot proceed unless the plan is followed. (AR 132). Based on these facts, the Corps' decision to authorize the Project under GP 38 was rationally related to the facts found and the decision cannot be said to be arbitrary and capricious.

Even with a mitigation plan reducing the impacts of the Project to “minimal,” plaintiffs maintain that the requirements of NEPA apply and defendants were required to conduct an EIS before granting authorization.

The authorization granted on July 15, 1992 was conditioned upon the satisfaction of 23 specific conditions concerning the creation *244 of 30 acres of wetlands to compensate for the loss of wetlands caused by the Project and the impact on any historical or cultural resources. (AR 132). These conditions were imposed in order to cause the Project to remain below the minimal impact threshold for GP 38. Implicitly, it also avoided the need to prepare an EIS.14 Plaintiffs rely on a memorandum prepared by the CEQ to support their claim that the mitigation plan does not obviate the need for an EIS under NEPA.

In its memorandum, “Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations”, 46 Fed.Reg. 18,026 (1981), the CEQ said:

Mitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal. As a general rule, the regulations contemplate that agencies should use a broad approach in defining significance and should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement.

Id. at 18,038. Because the mitigation plan was not part of the original proposal nor imposed by statute or regulation, plaintiffs contend that the Corps' reliance on the mitigation plan to avoid the EIS requirement was unjustified.

The Supreme Court has held that CEQ regulations are entitled to substantial deference. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354, 109 S.Ct. 1835, 1848, 104 L.Ed.2d 351 (1989). However, in considering the weight of this CEQ memorandum, the D.C. Circuit has stated that “[CEQ] interpretations are generally entitled to deference ... [t]he “Forty Questions” publication, however, is merely an informal statement, not a regulation, and we do not find it to be persuasive authority.” Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.Cir.1982) (citations omitted). See also, Friends of the Earth v. Hintz, 800 F.2d 822, 837 n. 15 (9th Cir.1986) (courts have uniformly held that “Forty Questions” is not controlling authority, citing decisions in the 5th, 9th and D.C. Circuits). While other circuits (including this one) have referenced the memorandum in reaching a decision, see, Sierra Club v. Marsh, 769 F.2d 868, 877 (1st Cir.1985)(reversing Corps decision based on promised mitigation plan); Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1059 (2d Cir.1985) (Mansfield, concurring), none have held that the memorandum is binding or entitled to substantial deference as CEQ regulations are.

Not only have courts given the “Forty Questions” document slight deference, but the majority of them have specifically held that mitigation measures are appropriately considered in determining whether a federal action will have a significant impact or not. See generally, C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th Cir.1988)Sierra Club v. United States Dept. of Transportation, 753 F.2d 120 (D.C.Cir.1985). As the D.C. Circuit has explained:

*245 NEPA's EIS requirement is governed by the rule of reason, and an EIS must be prepared only when significant environmental impacts will occur as a result of the proposed action. If, however the proposal is modified prior to implementation by adding specific mitigation measures which completely compensate for any possible adverse environmental impacts stemming from the original proposal, the statutory threshold of significant environmental effects is not crossed and an EIS is not required. To require an EIS in such circumstances would trivialize NEPA and would “diminish its utility in providing useful environmental analysis for major federal actions that truly affect the environment.”

Cabinet Mountains, supra at 682 (citations omitted).

The Second Circuit, in reviewing a challenge to another hydroelectric project, recently discussed the role of mitigation measures in supporting an agency's FONSI:

[W]e conclude that FERC took the requisite “hard look” at the environmental impact of the [project]. It examined the Project's impact on the aesthetic, cultural, historical, and recreational aspects of the site; it considered inconsistencies with state environmental plans; and it proposed measures to minimize certain unavoidable environmental impacts. Under these circumstances, given that FERC's findings regarding the adequacy of mitigation measures are supported by substantial evidence, FERC has “convincingly documented” its finding of no significant impact.

Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1556–67 (2d Cir.1992). As long as the adequacy of mitigation measures are clearly supported, Ompompanoosuc strongly suggests that the Second Circuit joins the majority of courts in finding it proper for an agency to consider mitigation plans in determining the significance of the environmental impact of an action.

In the present case, the Corps was not engaged in the process of determining whether or not the Project would significantly impact the human environment. Rather, it was engaged in determining whether the Project was below the threshold imposed by GP 38, i.e., whether it caused minimal or no adverse impact. In either case, the use of mitigation plans to reach such a finding is acceptable, even though the CEQ recommends against it. As in Ompompanoosuc, there is substantial evidence that the mitigation plans will adequately minimize any adverse environmental impacts. See, supra n. 9. As such, the authorization and its mandatory conditions were properly issued under GP 38. While a court may disagree with the final result, its review under NEPA is to insure that its procedural requirements have been followed and that the agency involved has taken the requisite “hard look” at the environmental impact of the action. See, Ompompanoosuc, supra at 1556–57 (“[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences.”) (quoting Stryker's Bay Neighborhood Council, Inc. v. Carlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980). The record here is replete with indications that the Corps did in fact take the necessary “hard look.” See, AR 60, 64–66, 69–72, 74, 78, 79, 82, 87 and 92–94.

For these reasons, the Corps' finding that the Project, as conditioned by the mitigation plan, caused minimal adverse environmental effect was not arbitrary or capricious nor an abuse of discretion and an EIS under NEPA was not necessary.

b. Historic Resources

6Plaintiffs claim that in making its determination of only minimal adverse impact the Corps did not give adequate consideration to the impact on historical resources at the Project site as required by NEPA, 40 C.F.R. § 1508.27(b)(3), (8). Plaintiffs recognize that the FERC license and the mitigation plan provide for consultation about the future of any historic sites but plaintiffs take issue with them because they make no explicit commitment to avoiding losses. Because any losses of historic resources would be significant, plaintiffs *246 argue that an EIS is required before the Project can continue.

Again, the court would point to the administrative record in finding that the Corps did consider the impact of the Project on any historic sites in making its determination and giving its approval under GP 38 to the Village. (AR 112, 122–126, 128, 129, 130, 131). Moreover, the authorization was conditioned to mitigate the impact on historical and cultural resources. Condition 7 of the authorization provides:

Upon completion of the monitoring of the mitigation area, a determination shall be made by the Corps as to whether or not any manipulation (i.e. grading or excavation) or inundation/flooding of the site will be required to accomplish the mitigation. Should site manipulation or inundation/flooding be necessary, a Phase I archaeological study (and, if determined necessary by the Corps and the Vt. [State Historical Preservation Officer] SHPO, a Phase II study) shall be conducted to determine if the area contains any resources of cultural significance. These studies shall be commenced within two months after a determination that manipulation or inundation/flooding is necessary. A report documenting the results of these studies shall be submitted to the Corps and the Vt. SHPO so that a determination of the effect may be made within three months after completion of the studies. Should the Corps, the Vt. SHPO and the Advisory Council on Historic Preservation determine that mitigation in way of avoidance or data recovery be necessary, this shall be accomplished before work can commence on the site.

AR 132. Accordingly the Corps addressed the issue of potential losses of historic resources by requiring participation of the appropriate state and federal agencies and also requiring avoidance or data recovery as necessary. The mitigation plan addresses the impact on historical sites adequately and therefore, as concluded above, the Corps did not act arbitrarily or capriciously in deciding an EIS was not necessary.

c. FERC Environmental Assessment

7Plaintiffs assert that the Corps improperly relied on the FERC EA in granting authorization under GP 38 and was required to conduct its own EA and EIS. FERC is the lead agency for the Project. Pursuant to NEPA, it conducted an EA and subsequently reached a FONSI in regards to the Village's original application. (AR 105) When the Village applied to amend its license, the FERC found that the impacts of the Project would be diminished by the reduction in size of the Project and granted an amended license. (AR 106).

As discussed previously, in accordance with NEPA the Corps has promulgated their own regulations for implementing NEPA. See, 33 C.F.R. §§ 230, 325. Both those regulations and the regulations promulgated by the CEQ allow for the adoption of another agency's EIS or EA/FONSI by the Corps. See, 33 C.F.R. § 230.2140 C.F.R. § 1506.3(a). The Corps may consider another agency's EIS or EA/FONSI adequate “unless the district commander finds substantial doubt as to technical or procedural adequacy or omission of factors important to the Corps decision.” 33 C.F.R. § 230.21.

Plaintiffs' claim is contrary to the regulations and again seems to be based on the preliminary statements of Corps employees who implied that the FERC EA was inadequate. (AR 14, 54). Plaintiffs do not challenge the FERC EA, only the Corps' reliance on it. But the regulations specifically allow the Corps to rely on another agency's EA/FONSI. Where the district commander found no substantial doubt as to the FERC EA/FONSI nor omission of important factors, the Corps has not violated the procedure of NEPA by relying on it to authorize the Project under GP 38.

d. Notice

Plaintiffs' final NEPA related claim alleges that the Corps was required to provide public notice of its intent not to perform an EIS prior to issuance of the July 15, 1992 authorization. Plaintiffs cite several Second Circuit decisions—Hanly v. Kleindienst, 471 F.2d 823 (2d Cir.1972)Cross–Sound Ferry Service, Inc. v. United *247 States, 573 F.2d 725 (2d Cir.1978) and WATCH v. Harris, 603 F.2d 310 (2d Cir.1979)—to support their claim. However, these cases held “that the agency ‘must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision’ ” as to whether an EIS was required. WATCH, supra at 326 n. 36, quoting Hanly, supra at 836.

As discussed above, the Corps did provide the required notice and opportunity to be heard prior to its initial issuance of GP 38 in 1982 and to its reissue in 1987. (AR 146). It also published an EA and a statement of findings explaining its decision that GP 38 did not have a significant impact on the human environment.

8As for the recent authorization granted the Project, Corps regulations provide that after a regional permit is issued in “compliance with the other procedures of this regulation ... individual activities falling within those categories that are authorized by such regional permits do not have to be further authorized by the procedures of this regulation.” 33 C.F.R. § 325.2(e)(2). Therefore, once the Corps determined that the Project was within the scope of GP 38, the Project was no longer subject to the Corps regulations implementing NEPA.15 Thus, notice of the Project's authorization under GP 38 was not necessary.

It is only when an agency is required to conduct an EA or an EIS that it is required to give public notice of the proposed action and provide an opportunity for public comment. The Corps was not required to conduct an EA or an EIS for the Village's permit application and so the notice obligation discussed in WATCH never attached. Plaintiffs' claim fails.

3. Claim III—The Mitigation Plan Requires an Individual § 404 Permit

Plaintiffs claim that the creation of the compensatory wetlands required by the Special Conditions attached to the authorization granted the Project16 will encompass a “discharge” into “navigable waters” within the meaning of section 404 of the CWA, 33 U.S.C. § 1344 and requires the Corps to issue a permit. See, U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985). Because the Corps' own regulations require that all permits reasonably related to the same activity be applied for in the same application17, plaintiffs assert that until the alleged “discharge” created by the mitigation plan is permitted under *248 section 404, the Project application for authorization under GP 38 is incomplete and the Project should be enjoined until the application is completed.

9Section 404 of the CWA, 33 U.S.C. § 1344, requires a permit to be issued for “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” “Navigable waters” is defined as “the waters of the United States, including the territorial seas,”33 U.S.C. § 1362(7), which in turn are defined by Corps regulations to include wetlands, 33 C.F.R. § 328.3(a). The courts have interpreted the CWA as including both natural and artificial wetlands. See, Leslie Salt Co. v. U.S., 896 F.2d 354 (9th Cir.1990)cert. denied, 498 U.S. 1126, 111 S.Ct. 1089, 112 L.Ed.2d 1194 (1991)U.S. v. Akers, 651 F.Supp. 320 (E.D.Cal.1987). Thus, discharge of dredged or fill material into a river or wetland, natural or man-made, would require a permit under Section 404.

Plaintiffs' argument rests on several faulty assumptions. The first is that manipulation or flooding will be necessary to create the wetlands. As mentioned above, it is quite possible that the mitigation sites18 will revert to their original form as wetlands once farming activities cease. If this is the case, the Corps would have no procedural responsibilities to fulfill under the CWA.

10If it does become necessary to successfully complete the mitigation by flooding it is not contemplated that this will result in a “discharge” into the Mississquoi within the meaning of section 404 of the CWA. Rather, mitigation will likely be accomplished by diverting water from the river itself to the sites (a fact plaintiffs acknowledge in their pretrial brief). The definition of “discharge” is defined to include “discharge of pollutants,” 33 U.S.C. § 1362(16), which is in turn defined to include dredged spoil, solid waste, sewage, rock, sand and agricultural waste, among other things. 33 U.S.C. § 1362(6). Thus if creation of the wetlands occurs by flooding the mitigation sites with waters from the Mississquoi, nothing included in the definition of pollutants will be discharged into the Mississquoi as a result.

Plaintiffs also mistakenly assume that the mitigation sites currently proposed constitute “waters of the United States” and that any flooding of the mitigation sites will therefore constitute a discharge into “waters of the United States,” requiring a section 404 permit. At present the mitigation sites do not constitute “waters of the United States” under the definitions of the CWA, 33 U.S.C. § 1362, or those of the Corps regulations, 33 C.F.R. § 328.3. Until the mitigation sites are determined to constitute “waters of the United States,” the provisions of section 404 cannot apply and no permit is required.

11Plaintiffs' final flawed assumption is that the regulation requires the Corps to issue a permit for a discharge of which might occur at some future date at the same time as issuing authorization under GP 38. It does not. The regulation requires that all “activities that the applicant plans to undertake ” be included in the same permit application. 33 C.F.R. § 325.1(d)(2). There are no current plans to discharge any fill or dredged material into “waters of the United States”19 because no such discharges appear necessary. Should such plans arise, the Village will be required to obtain a permit, or failing that, provide alternate mitigation. An individual *249 section 404 permit is accordingly not required and plaintiffs' claim fails.

4. Claim IV—Project is outside the scope of GP 38

Plaintiffs claim that the Project is ineligible for authorization under GP 38 because it entails adverse impacts to the natural and cultural environment which are more than the minimal impacts allowed under GP 38. They also allege that the Project is likely to require the filling of wetlands in violation of GP 38.

The substance of plaintiffs' claim here is the same as that addressed earlier in connection with NEPA and the Corps determination that the Project caused minimal or no adverse impacts. The Corps has addressed the cultural and environmental impacts of the Project and determined that, as conditioned, the Project will cause minimal adverse environmental and cultural impacts and authorization under GP 38 is appropriate.20 That determination was not arbitrary or capricious nor was it an abuse of discretion.

12When GP 38 was extended in 1987 in contained 6 Special Conditions. Special condition 4 declared that “[n]o permanent or temporary fill shall be deposited in wetlands under this permit.” If plaintiffs' claim is correct that wetlands will be filled as a result of the Corps' authorization, and it's not clear that it is21, the Project would clearly be in violation of the terms of GP 38. This possibility does not place the Project outside the scope of GP 38 but subjects its permit to possible revocation. Plaintiffs' claim fails.

5. Claim V—The July 15 Authorization Violated the NHPA

Plaintiffs claim that the Corps committed two violations of the NHPA by 1) failing to determine the effects of the approval on any historic property as required by Section 106 of the NHPA and 2) failing to give notice to interested parties prior to granting authorization for the Project. Plaintiffs request that all action at the Project be enjoined until the Corps complies with these provisions of the NHPA.

The “NHPA require[s] only that agencies acquire information before acting.” Connecticut Trust for Historic Preservation v. I.C.C., 841 F.2d 479 (2d Cir.1988). Section 106 of the NHPA seeks to implement this by requiring that all agencies “having authority to license any undertaking shall ... prior to the issuance of any license ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or is eligible for inclusion in the National Register.” 16 U.S.C. § 470f.

Regulations describe the methods by which Section 106 review is to be conducted. See generally, 36 C.F.R. § 800. When the effect of the proposed action is adverse, the agency is required to notify the Advisory Council on Historic Preservation (“Council”) and consult with the SHPO “to seek ways to avoid or reduce the effects on historic properties.” 36 C.F.R. § 800.5(e). The agency is also required to involve “interested persons” as consulting parties when they so request. § 800.5(e)(1). Interested persons include “the representative of an Indian tribe.” § 800.5(e)(1)(ii). The NHPA defines Indian tribe as “the governing body of any Indian tribe, band, nation, or other group that is recognized as an Indian tribe by the Secretary of the Interior....” § 800.2(g).

13As an initial matter, under the terms of the statute, none of the plaintiffs qualify as “interested persons.” It is undisputed that no plaintiff is formally recognized *250 by the Secretary of the Interior as an Indian Tribe. A list of recognized tribes was published in the 1988 Federal Register, 53 Fed.Reg. no. 250, p. 52829, et seq. (12/29/88) and plaintiffs were not included. Nor have they been added to the list since that time. Declaration of Holly Reckord, Acting Chief, Branch of Acknowledgment and Research, Bureau of Indian Affairs. Whether plaintiffs are an “Indian tribe” for other purposes (such as the receipt of benefits from other federal or state agencies) does not bear on their rights under the NHPA. As such, the plaintiffs are not “interested parties” by the terms of the statute and were not entitled to participate as consulting parties, § 800.5(e)(1), nor were they entitled to receive documents produced under a Section 106 review. § 800.5(e)(2).

14As members of the public though, the plaintiffs were entitled to “an adequate opportunity to receive information and express their views.” § 800.5(e)(3). The record shows that the Corps met with the plaintiffs Hilda Robtoy and Dee Brightstar on November 6, 1991, AR 21, and with Robtoy, Brightstar and John Moody on December 17, 1991, AR 31, in their representative capacity for the Abenaki Nation of the Mississquoi to discuss their concerns and the Project's impact on prehistoric cultural resources. The Corps provided “adequate opportunity” for the plaintiffs to receive information and express their views and as such did not violate any of the notice provisions of the NHPA.

As to whether or not the Corps adequately considered the effects of the Project on any historical sites, the analysis is not so straightforward. In issuing a license to the Village for the Project, the FERC was required to insure that the NHPA requirements were met. FERC made a finding of no adverse effect on the inundation site based on a mitigation plan that mandated avoidance and mitigation of impacts to the area. AR 108 at p. 8. Both the SHPO and the Council concurred. As to this finding, the Corps was obligated to accept the lead agency's finding. 33 C.F.R. Part 325, App. C(2)(c). Moreover, it appears that plaintiffs are not challenging this finding, as FERC is not named as a defendant in this action.

15Where the analysis becomes more involved is in relation to the mitigation site.22 The plaintiffs claim that the historic resources at the mitigation site were not adequately considered by the FERC license nor by the Corps authorization. Review here is limited to whether the Corps complied with the procedural requirements of the NHPA and acquired adequate information concerning the historic resources at the site and sought “ways to avoid or reduce the effects” of the Project.

The record and the conditions attached to the authorization make it clear that the Corps did indeed satisfy these requirements. In addition to meeting with plaintiffs several times, the Corps consulted with the SHPO concerning the Project's impact on historical resources, (AR 87 and 94), and both are in agreement as to how the possible adverse effects should be mitigated if any historic properties are discovered.Moreover, the conditions attached to the authorization adopt the recommendations of the SHPO, see, Affidavit of Martha Abair, Corps Project manager, Defendant's Exhibit A, and set out concrete steps to be *251 followed if any historical resources are discovered at the mitigation site. AR 132.

16Procedurally the Corps is in technical violation of the NHPA due to its failure to prepare a Memorandum of Agreement (“MoA”) between the SHPO and itself concerning how the effects of the Project will be taken into account. 36 C.F.R. § 800.5(e)(4). However, this violation is not fatal, given the NHPA's permission that its regulations “may be implemented in a flexible manner.” § 800.3(b). While the NHPA requires mutual agreements between the CORPS and SHPO to be executed in a MoA, the Corps' regulations require such agreements to be formalized either through an MoA or through permit conditioning. 33 C.F.R. Part 325, App. C(9). The Corps and the SHPO have taken this latter path and given the flexibility allowed by the NHPA itself and that the conditioned permit fulfills the goals of the NHPA, the Corp's failure to execute an MoA is insufficient to hold it has violated the NHPA.

6. Claim VI—NAGPRA violation

Plaintiffs' final claim is made under NAGPRA, 25 U.S.C. § 3005(a)(4).23 Plaintiffs claim that because the mitigation plan leaves the fate of the remains and artifacts which may be unearthed in the hands of the Corps, the State and the Village, it violates NAGPRA and is unlawful. Prior to reaching the merits of plaintiffs' claim, several definitional hurdles must be cleared.

NAGPRA defines Indian tribe as follows:

“Indian tribe” means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village ... which is recognized as eligible for the special programs and services by the United States to Indians because of their status as Indians.

25 U.S.C. § 3001(7). As discussed earlier, it is undisputed that the Abenaki Nation of Mississquoi is not an “Indian tribe” recognized by the Secretary of the Interior. Nonetheless, that plaintiff contends that for purposes of NAGPRA it does constitute an Indian tribe, citing its receipt of federal funds and a recent decision by the Vermont Supreme Court.24

17Plaintiff's argument that it does indeed constitute an Indian tribe may have practical merit as to the receipt of federal funds but appears to be stretching the Elliot decision rather thin. In any event, the merits of those arguments need not be addressed here because the language of NAGPRA includes “organized group or community of Indians ... eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” The regulation which sets out the procedures for establishing that an American Indian group exists as an Indian tribe, 25 C.F.R. § 83 (1992), defines Indian group or group to mean “any Indian aggregation within the continental United States that the Secretary of the Interior does not acknowledge to be an Indian tribe.” The Abenaki Nation of Mississquoi falls squarely within this definition and the fact that it receives funds and assistance from the United States because of its members status as Indians includes it within the class protected by NAGPRA.

18NAGPRA applies to the disposition of Native American cultural items that are “excavated or discovered on federal or tribal lands.” 25 U.S.C. § 3002(a). Federal lands are defined in relevant part as “land other than tribal lands which are controlled *252 or owned by the United States.” § 3001(5). Plaintiffs urge a broad construction of “control” to include the Corps' regulatory powers under the CWA and its involvement in devising and supervising the mitigation plan.

Such a broad reading is not consistent with the statute, which exhibits no intent to apply the Act to situations where federal involvement is limited as it is here to the issuance of a permit.25 To adopt such a broad reading of the Act would invoke its provisions whenever the government issued permits or provided federal funding pursuant to statutory obligations.

As yet there have been no cultural or funerary items discovered at the mitigation site, though the possibility of their existence is extremely high. However, NAGPRA applies to cultural and funerary objects already possessed or under the control of a Federal agency or museum, § 3003 and § 3004, or those already discovered or excavated, § 3002. As to plaintiffs' claim, the court must hold that even if NAGPRA were to apply, which it does not, the claim is premature.26

IV. Conclusion

On the basis of the foregoing discussion the court holds that the Plaintiffs have failed to sustain any of the claims pled and accordingly the Defendants are entitled to judgement as a matter of law. The July 15, 1992 conditioned authorization of the Corps of Engineers to the Village of Swanton to raise the spillway of the Orman Croft Generating Station is affirmed.

All Citations

805 F.Supp. 234

Footnotes

1

To increase the output of electric energy, the Village initially sought to install a fourth turbine generator in the powerhouse and raise the dam to an elevation of 200 feet. The Village's final proposal seeks to raise the level of the dam to 190 feet.

2

The “discharge” in this case consists of the placement of concrete to raise the concrete spill of the dam from an elevation of 167.5 feet to 175 feet with an inflatable spillway rubber gate installed atop the new crest for a total height of 190 feet.

3

Specifically, the Federal Power Act requires that

[T]he [FERC], in addition to the power and development purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.

16 U.S.C. § 797(e).

4

The distinction between nationwide permits and regional permits (both of which are general permits) is an important one in light of some last minute argument submitted by plaintiffs. A nationwide permit is just that—a permit issued by the Office of the Chief of Engineers that provides a nationwide permit for the discharge of dredged or fill material into navigable waters such as the Mississquoi. Projects meeting the conditions set out in the permit itself and in the regulations promulgated by the Corps in accordance with section 404 of the CWA, 33 C.F.R. § 330 (1992), are eligible under these nationwide permits and can thereby avoid the individual § 404 permitting process. Regional permits are issued on a regional basis by the division or district engineer. Regional permits may either modify a nationwide permit for a particular region, 33 C.F.R. § 330.1(d), or be issued unrelated to any nationwide permit and authorizing other discharges which meet the conditions set forth in the regional permit and in the regulations governing it, 33 C.F.R. § 325. Thus a regional permit can be directly related to a nationwide permit or distinctly independent.

5

GP 38 implemented a Memorandum of Understanding (“MoU”) entered into by FERC and the Secretary of the Army for the purpose of minimizing duplication of Federal review in regard to hydroelectric projects in the New England region. (AR 104).

6

FERC's finding that the Project did not constitute a major Federal action was based on its EA and on the conditions imposed on the Village by the License. These conditions included a mitigation plan to compensate for the loss of any wetlands caused by the Project and for the Village to fund a cultural resource management plan for “previously unrecorded archaeological or historical sites” discovered during the construction. (AR 105, article 44). FERC's finding meant that the threshold for triggering a more detailed environmental impact statement (“EIS”) under NEPA was not crossed. Plaintiff does not contest the license issued by FERC.

7

GP 38 was reissued in almost its original form save for three new permit conditions, added as a result of comments received by the Corps and the withdrawal of Rhode Island and Massachusetts from its scope. The new conditions made GP 38 a reporting general permit, and implemented further reporting and authorization recommendations from the states of Vermont and Connecticut.

8

The Village sought to reduce the proposed increased elevation of the dam from 200 feet to 190 feet.

9

The twenty-three Special Conditions (“SC”) attached to the Village's permit establish an intensely detailed plan for achieving the mitigation goal of replacing lost wetland functions and values, and protecting cultural and historic resources threatened, as a result of the Project.

The plan requires a two year monitoring period to determine if manipulation is necessary to create the compensatory wetlands and detailed instructions for the manner of conducting such monitoring. (SC 4, 5, 6). If manipulation or flooding is necessary to create the wetlands, the Village must develop and submit a site design for review and approval by the Corps. (SC 5, 10).

SC 7 and 18 provide specific steps to be taken in order to protect any cultural or historic resources located at the mitigation sites in the event that manipulation or flooding is necessary and for the location of staging areas. These steps include conducting a Phase I and if necessary, a Phase II archaeological study, mitigation in the way of avoidance or data recovery, hand excavating any monitoring wells which may be necessary by the Village's consulting archaeologist, joint supervision of the site by the Corps, the Advisory Council on Historic Preservation and the Vermont State Historic Preservation Office, and a prohibition on work at the site until written approval has been received from the Corps.

Following the completion of the mitigation areas, a five year period of monitoring to determine the mitigation sites' degree of success will be required of the Village with detailed, semiannual reports to be submitted to the Corps for review and approval. (SC 12) If after the five year monitoring period the Corps determines that the mitigation sites have failed to provide 30 acres of compensatory wetlands, a supplementary mitigation site and proposal must be prepared by the Village and reviewed and approved by the Corps. This supplementary proposal, upon Corps approval, will be added as a Special Condition to the permit. (SC 17).

There is also provision for riverbank stabilization, (SC 21) and an erosion control plan. (SC 22). The Special Conditions are mandatory and failure to comply with them would violate the permit and subject the Village to the Corps' enforcement provisions. (AR 132).

10

In a literally last minute filing and a post-hearing memorandum, plaintiffs assert that the October 28, 1982 public notice of the issuance of GP 38 (AR 176) classified GP 38 as a modification of a nationwide permit for hydroelectric projects with a capacity of not more than 1500 kilowatts. Because there was no limit placed on the capacity of hydroelectric projects in GP 38, plaintiffs argue that the 1987 reissuance of GP 38 was truly a “new” permit and required a new EA. Alternatively, plaintiffs claim that by the terms of the 1500 kw nationwide permit, public notice of any reissuance or modification of it was to be published in the Federal Register. 47 Fed.Reg. 31834.

Plaintiffs' argument hinges on the claim that GP 38 was a modification of the nationwide permit based on the October 28, 1982 public notice. It was not. The public notice issued after GP 38 was issued states that “[t]his regional general permitsupplements a nationwide general permit issued earlier by the Corps that applies only to FERC-regulated work at existing reservoirs which involves a total generating capacity of 1500 kilowatts or less....” (AR 176) This language is also repeated in the Corps' EA (AR 171) and Statement of Findings (AR 170) issued in 1982. By definition, supplement means to add to whereas modify means to limit. Thus, GP 38 was not a modification of the nationwide 1500 kw permit. Moreover, the terms of GP 38 and the guide sent to project managers for implementation of GP 38 (AR 175) make it clear that GP 38 was intended to be a different animal altogether from the nationwide permit. As such, the Corps was required to adhere to the procedures of 33 C.F.R. § 325 but it was not required to publish public notice in the Federal Register.

11

The Corps originally sought to extend the expiration date of GP 38. (AR 178). The Corps was unable to do so before GP 38 expired so it was forced to reissue it. The Corps seems to have treated reissuing the permit in the same light as extending its expiration date.

12

Plaintiffs' mistake here is understandable. At the time they submitted their pretrial brief plaintiffs had only been provided with the general mailing list used by the Corps. Only later did they receive the Vermont mailing list used by the Corps in 1982 and 1987.

13

A list of recognized Indian tribes is published at 53 Fed.Reg. No. 250, p. 52829, et seq. (1988) and the Abenaki Nation of Mississquoi is not included on that list. Nor have they been included since the list was published. Declaration of Holly Reckord, Acting Chief for the Branch of Acknowledgement and Research, Bureau of Indian Affairs.

14

The Corps relied on the mitigation plan and other conditions in determining that the Project was eligible for consideration under GP 38 because it caused only minimal adverse environmental effects. Were it not for this determination, the Corps would have had to repermit the Project under section 404 and at that point determine whether an EIS would be necessary as part of the individual permitting process or whether an EA would suffice. In either case, the Project would not be able to proceed until either an EA or an EIS had been performed.

The Corps argues that if the decision to issue authorization under GP 38 was correct, NEPA need not apply by definition. GP 38 can only apply if the action authorized will cause only minimal adverse effects. 33 U.S.C. § 1344(e). NEPA applies to major federal actions which significantly affect the quality of human life. Defendant argues that if the finding of minimal adverse effect was correct, and authorization under GP 38 was proper, there can be no significant impact to the human environment caused by the same action and NEPA does not apply. Thus, defendant argues that its decision to authorize the Project under GP 38 should be reviewed under the criteria imposed by GP 38 and not NEPA.

Although a similar threshold finding is required to avoid the need for an EA/EIS under NEPA and to issue a permit under GP 38, there are different procedural requirements and responsibilities under each. The decision to issue this permit under GP 38 will be examined under both the requirements of NEPA and the terms and conditions of GP 38.

15

This, of course, is consistent with the concept of the general permit under which the FERC conducted an EA and the Corps imposed additional mitigation requirements.

16

The creation of the compensatory wetlands required by the Corps may take place in several ways. The first method is completely natural. That is, the mitigation sites which must be acquired by the Village may turn into wetlands on their own. This possibility exists because the sites chosen were originally wetlands but were drained for cultivation purposes. With the cessation of farming activity required by Special Condition 2 the Village believes there is a strong possibility that the sites will return to wetlands naturally.

The second possibility envisions the need, determined after a two-year monitoring period of the mitigation sites, for manipulation or inundation/flooding in order to accomplish the mitigation. This course of action would be subject to Corps review and approval as to the extent of the manipulation necessary and the feasibility of the site for mitigation. Manipulation would also be subject to Special Condition 7's requirements for protecting cultural and historical resources at the site.

The third possibility envisions the failure, determined by the Corps after the completion of a five-year monitoring plan, of the mitigation sites acquired by the Village to provide adequate compensatory wetlands. If that becomes the case, the Village is required to prepare a supplemental mitigation site and proposal subject to Corps approval. The special conditions of the permit will then be amended to ensure adequate compensation for the impact on wetlands via the supplemental mitigation site or sites.

17

Plaintiffs cite 33 C.F.R. § 325.1(d)(2) which provides:

All activities which the applicant plans to undertake which are reasonably related to the same project and for which the DA [Department of the Army] permit would be required should be included in the same permit application. District engineers should reject as incomplete, any permit application which fails to comply with this requirement.

18

The mitigation sites at present are two parcels of land, the Bigelow” and “cornfield” mitigation sites, which constitute thirty acres of land near the Mississquoi River. (AR 132).

19

Special condition 22 requires the Village to prepare and submit an erosion control plan in regard to the riverbanks within the impoundment area. This condition is the only one which anticipates the possibility of the discharge of fill into “waters of the United States” due to proposed measures of an erosion control plan. This potential discharge is unrelated to the creation of the mitigation sites. SC 22 requires that individual permit applications be submitted for such measures and prohibits any such discharge until written approval has been received from the Corps. The Village did not plan on undertaking this activity; rather, it was imposed upon them by the Corps and therefore was not possible to be included in the same permit application as required by 33 C.F.R. § 325.1(d)(2).

20

Perhaps what makes this such a bitter pill for plaintiffs to swallow is the preliminary indication by the New England Corps Division that the Project would not be eligible for authorization under GP 38 but would be subject to an individual § 404 permitting process instead. AR 24. However, as discussed above, that decision was not the final decision and did not bind the Corps.

21

Plaintiffs cite a telephone conversation record between the Corps project manager and a representative of the Village discussing the possibility of the need for fills to allow the contractor access in the event of warmer weather and the inability to rely on frozen ground or snow roads for access. (AR 37).

22

For its part, the Corps argues that the mitigation site is distinct from the impoundment site and that it, unlike the impoundment site, has not yet been deemed eligible for the National Register and is therefore not within the confines of the NHPA. In addition, the Corps argues that even if the mitigation site is subject to the NHPA, the procedural requirements of the NHPA do not apply because GP 38 and the authorization for the Project have both taken into consideration the effect of the undertaking on historic property, thus satisfying the goals of Section 106. The Corps points to the conditions which set strict conditions on the manipulation of the mitigation site if it becomes necessary, AR 132, Special Condition 7, and the endorsement of the SHPO of these conditions as a satisfactory means of complying with NHPA. See, e.g., Walsh v. U.S. Army Corps of Engineers, 757 F.Supp. 781, 789 (W.D.Tex.1990) (“Given the special conditions imposed by [the permit], the Court finds no violation of NHPA or 36 C.F.R. Part 800”). For the purpose of this analysis, we will assume that the mitigation site is subject to the procedural requirements of the NHPA.

23

“Where cultural affiliation of Native American human remains and funerary objects has not been established in an inventory prepared pursuant to section 3003 of this title or the summary pursuant to section 3004 of this title, or where Native American human remains and funerary objects are not included upon any such inventory, then, upon request and pursuant to subsections (b) and (e) of this section and, in the case of unassociated funerary objects, subsection (c) of this section, such native American human remains and funerary objects shall be expeditiously returned where the requesting Indian tribe or native Hawaiian organization can show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, linguistic, folkloric, oral traditional historical, or other relevant information or expert opinion.

24

State of Vermont v. Raleigh Elliott et al., 159 Vt. 102, 616 A.2d 210 (1992).

25

The legislative history of the statute repeatedly uses the language “federal lands.” See 1990 U.S.Code Cong. & Admin.News at 4367–4392.

26

Plaintiffs' claim based on common law and property rights appears to be subsumed by the NAGPRA claim. Its violation of fiduciary duty claim is extremely nebulous and rehashes arguments that have been previously addressed. It is enough to note that though a general fiduciary duty may be owed to the plaintiffs by the government, “a general fiduciary relationship does not mean that any and every claim by [an Indian] necessarily states a proper claim for breach of the trust....” Pawnee v. U.S.A.,830 F.2d 187, 191 (Fed.Cir.1987)cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988).

Case Report: Madden v. Town of New Haven

2015 WL 4276463

Only the Westlaw citation is currently available.

United States District Court,

D. Vermont.

John MADDEN, Plaintiff,

v.

TOWN OF NEW HAVEN, VERMONT, Defendant.

Civil Action No. 2:14–cv–266.

Signed July 14, 2015.

Attorneys and Law Firms

John Madden, New Haven, VT, pro se.

 

Cindy E. Hill, Esq., Law Office of Cindy Hill, East Middlebury, VT, for Defendant.

 

OPINION AND ORDER

JOHN M. CONROY, United States Magistrate Judge.

(Doc. 17)

*1 New Haven, Vermont resident and “Registered Voter” John Madden, proceeding pro se, brings this voting-rights action under 28 U.S .C. § 1343 and 42 U.S.C. § 1983 against the Town of New Haven (the “Town”). (See Doc. 1.) Specifically, Madden claims that the Town “has deprived the registered voters of the Right of Vote” by amending the “Town Plan Land Use Zoning Districts Map”1 without holding an Australian ballot vote under 24 V.S.A. § 4385(c).2 (See Doc. 1.) For relief, Madden seeks an order that amendments to the “Town Plan Land Use Zoning Districts Map” be made by Australian ballot vote. (Id.) The Town filed an Answer on January 16, 2015, denying that the Court has jurisdiction to hear Madden's claim, denying that it deprived the Town's voters of the right to vote as Madden claims, and asserting a variety of affirmative defenses, including res judicata. (Doc. 6 at 1–3.)

On April 8, 2015, the Town filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and (6), (Doc. 17), and accompanying memorandum in support (Doc. 17–1).3 The Town argues that the Court lacks subject-matter jurisdiction to hear the action; that a determination by the Vermont Superior Court, Environmental Division precludes federal consideration; that Madden lacks standing to bring the action; and that Madden has failed to present any legally cognizable case or controversy. (Doc. 17.) The Town also seeks an award of its costs and attorney's fees in regards to its Motion to Dismiss. (Doc. 17–1 at 6.) Madden filed a Response on May 11, 2015. (Doc. 23 .)

The Court held a hearing on the Town's Motion to Dismiss on June 19, 2015. The Court has also reviewed Madden's post-hearing filing dated June 20, 2015. (Doc. 30.) All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs.3, 7.) For the reasons discussed below, the Town's Motion to Dismiss (Doc. 17) is GRANTED and the case is DISMISSED.

Background

Madden's one-page Complaint contains few factual allegations other than those stated above. For the purposes of the Town's res judicata argument, the Court takes notice of the Vermont Superior Court, Environmental Division's decisions in Madden v. Town of New Haven, No. 49–4–14 Vtec.4 In that case, Madden appealed pro se the Town Selectboard's decision to amend the Town bylaws and Zoning Map to reflect zoning changes to a certain parcel of land within the Town. In a decision dated September 12, 2014, the Superior Court, Environmental Division granted summary judgment to the Town, rejecting Madden's assertion that amending the Zoning Map requires a town vote by Australian ballot. Specifically, the court reasoned as follows:

[Madden's] assertion arises out of an apparent failure to distinguish between the Zoning Map and the Town Plan Map. Zoning maps are part of the zoning regulations and provide a visual representation of existing bylaws as applied to “different classes of situations, uses, and structures and to different and separate districts of the municipality.” 24 V.S.A. § 4411(b); Town of New Haven Zoning Bylaws, Art. II § 220 (“The official Zoning Map is hereby made a part of these regulations....”). Distinct from the zoning map, the town plan map (alternatively referred to as the Land Use Map) is part of the town plan and reflects both the present and prospective location and character of land uses and guides the sequence of development. 24 V.S.A. § 4382(a)(2). Thus, an amendment to the Zoning Map must be in accord with the procedural requirements for amending the Town bylaws, whereas an amendment to the Town Plan Map must follow the procedural requirements for amending the Town Plan. While Mr. Madden is entitled to the benefit of all reasonable doubts and inferences, his mistaken belief that the changes in the zoning of parcel 788.1 are reflected in the Town Plan Map is not grounded in fact or law. It is therefore undisputed that the changes will be represented in the Town's Zoning Map and that the Selectboard followed the proper statutory procedures for amending the Town bylaws. Madden v. Town of New Haven, No. 49–4–14 Vtec, 2014 WL 4796649, at *2 (Vt.Super. Ct., Environmental Div. Sept. 12, 2014) (Walsh, J.) (footnote omitted).5 The court also observed that “[w]hile [24 V.S.A.] § 4411(b) allows for a municipality to designate the Town Plan Map (Land Use Map) as the zoning map, the Town of New Haven has not done so.” Id. at *2 n. 4. The court accordingly entered judgment for the Town. (See Doc. 17–2.)

*2 On October 9, 2014, Madden filed a motion to amend, arguing that he has been deprived of his right to vote. Treating that motion as a motion to amend judgment under V.R.C.P. 59(e), the court denied the motion, reiterating that “[t]he matter at issue in this appeal is an amendment to the Town bylaws and Zoning Map, not the Town Plan Map.” Madden, No. 49–4–14 Vtec, 2014 WL 6600135, at *2 (Oct. 28, 2014)available at https://www.vermontjudiciary . org/GTC/Environmental/ENVCRTOpinions2010–Present/Maddenv̈0̈0̈New0̈Haven4̈9–4–14V̈tec0̈MÄlter.pdf. The court accordingly concluded that, “[d]espite disagreeing with the Court's legal analysis, Mr. Madden points to no justification for disturbing our judgment.” Id.

On November 14, 2014, Madden filed a second motion to amend, again arguing that he has been deprived of his right to vote. Again treating the motion as brought under V.R.C.P. 59(e), the court denied the motion as untimely. Madden, No. 49–4–14 Vtec, 2014 WL 7640784, at *1 (Nov. 20, 2014)available at https://www.vermontjudiciary . org/GTC/Environmental/ENVCRTOpinions2010–Present/MaddenN̈o0̈4̈9–4–14V̈tec0̈Amend2̈.pdf. The court further reiterated its prior conclusion that the Zoning Map is distinct from the Town Plan Map. Id. The court also rejected Madden's assertion that, under 24 V.S.A. § 4410, the Zoning Map and the Town Plan Map are required to be the same. Id. at *2. Finally, the court stated:

If Mr. Madden, or any other party, wishes to appeal our September 12, 2014 decision to the Vermont Supreme Court, they were required to do so by following the procedures set out in the Vermont Rules for Environmental Court Proceedings and the Vermont Rules of Appellate Procedure. Under Rule 5(k)(2) of the Vermont Rules for Environmental Court Proceedings, the deadline for such an appeal was October 13, 2014.

This matter is closed and no further motions will be considered.

Id. It does not appear that Madden attempted to file any appeal with the Vermont Supreme Court. Madden filed his Complaint in this Court on December 16, 2014. (Doc. 1.)

Analysis

I. Subject–Matter Jurisdiction

The Town has advanced arguments under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Court is required to address the Rule 12(b)(1)arguments first. See Drown v. Town of Northfield, No. 2:14–CV–80, 2015 WL 1393250, at *3 (D.Vt. Mar. 25, 2015) (citing Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990)).

A. Rule 12(b)(1) Standard

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court ‘lacks the statutory or constitutional power to adjudicate it.’ “ Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir.2014) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)). “ ‘A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.’ “ Id. (quoting Makarova, 201 F.3d at 113). The issue of subject-matter jurisdiction may be raised at any time. McCain v. United States, No. 2:14–cv–92, 2015 WL 1221257, at *19 (D.Vt. Mar. 17, 2015)see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); 5C Charles Alan Wright et al., Federal Practice and Procedure § 1361 (3d ed.2015) (motion raising subject-matter jurisdiction may be considered even when interposed after the responsive pleading has been filed).

B. Case or Controversy Requirement—Standing

*3 Article III of the United States Constitution “limits the judicial power of the United States to resolution of cases and controversies.” Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir.2015). “One aspect of this limitation is the requirement that the plaintiff have standing to sue, which ‘serves to prevent the judicial process from being used to usurp the powers of the political branches.’ “ Hedges v. Obama, 724 F.3d 170, 188 (2d Cir.2013) (quoting Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1146 (2013)). “To satisfy this jurisdictional requirement, ‘(1) the plaintiff must have suffered an injury-in-fact; (2) there must be a causal connection between the injury and the conduct at issue; and (3) the injury must be likely to be redressed by a favorable decision.’ “ Jewish People for the Betterment of Westhampton Beach, 778 F.3d at 394 (quoting Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d Cir.2009)).

The Town contends that Madden “makes no claim whatsoever of particularized harm” and raises only a “generalized grievance.” (Doc. 17–1 at 4.) However, the Town concedes that individuals can enforce procedural rights in certain circumstances. (Id. at 3.) Indeed, as the Supreme Court has stated, “a ‘person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.’ “ Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7 (1992)); see also Lujan, 504 U .S. at 573 n. 8 (individual can enforce procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing”).

Here—as in an earlier case in this Court brought by Madden against the Town also involving voting rights—Madden is asserting that his due process rights have been harmed by the Town's failure to present an issue for a town vote. See Madden v. Town of New Haven, No. 1:07–CV–111, 2007 WL 4143209, at *2 (D.Vt. Nov. 19, 2007). The Court concluded in that case that Madden was arguing procedural harm, and therefore had “an arguable claim for standing to bring suit.” Id. The same is true here; dismissal for lack of standing is not appropriate.

C. Federal–Question Jurisdiction

Generally, “federal courts have subject matter jurisdiction either on the basis of substance, where there is a federal question, or on the basis of citizenship, where the requirements for diversity jurisdiction are satisfied.” Gottlieb v. Carnival Corp., 436 F .3d 335, 337 n. 3 (2d Cir.2006). Here, there is no basis for diversity jurisdiction under 28 U.S.C. § 1332: Madden and the Town are both citizens of Vermont for diversity-jurisdiction purposes. Thus jurisdiction, if it exists in this case, would be federal-question jurisdiction under 28 U.S.C. § 1331.

*4 “For the purpose of determining whether a district court has federal question jurisdiction pursuant to Article III and 28 U.S.C. § 1331, the jurisdictional inquiry ‘depends entirely upon the allegations in the complaint’ and asks whether the claim as stated in the complaint ‘arises under the Constitution or laws of the United States.’ “ S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir.2010)(quoting Carlson v. Principal Fin. Grp., 320 F.3d 301, 306 (2d Cir.2003)). “Provided that it does, the district court has subject matter jurisdiction unless the purported federal claim is clearly ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’ “ Id. (quoting Carlson, 320 F.3d at 306). “[W]hether a plaintiff has pled a jurisdiction-conferring claim is a wholly separate issue from whether the complaint adequately states a legally cognizable claim for relief on the merits.” Id.

The Town argues that Madden's case “relates strictly to a matter of state law”—namely, the procedure for adopting a zoning change—and therefore implicates no federal rights. (Doc. 17–1 at 4–5.) However, as in Madden's 2007 case in this Court, Madden asserts “that the failure to hold a town vote violated state law, and in turn violated Madden's federal right to due process....” Madden, 2007 WL 4143209, at *1. Madden's claim therefore arises under the Constitution of the United States, and—since it alleges a violation of his federal civil rights—it is not immaterial or frivolous such that dismissal for lack of subject-matter jurisdiction would be appropriate. See id. (not addressing “viability” of due process claim premised on alleged failure to hold a town vote as required by state law, but rejecting argument that Madden had failed to allege a violation of a protected state or federal right).

II. Claim–Preclusion Defense

A. Timeliness of Claim–Preclusion Defense

“Claim preclusion is an affirmative defense; it does not go to subject-matter jurisdiction.” O'Connor v. Pierson, 426 F.3d 187, 194 (2d Cir.2005). Thus the Town's preclusion argument should be considered under Rule 12(b)(6)See Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir.2000) (“Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate when a defendant raises claim preclusion ... as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.”). The Town's preclusion argument is therefore untimely, because the Town filed its Motion to Dismiss after filing its Answer, and because Rule 12(b) motions generally “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b)(emphasis added). However, the Court will allow the untimely Motion because the Town raised preclusion as a defense in its Answer. SeeJennings Oil Co. v. Mobil Oil Corp., 80 F.R.D. 124, 127 n. 4 (S.D.N.Y.1978) (considering untimely 12(b)(6) motion because the defense was asserted in the answer); see also 5C Charles Alan Wright et al., Federal Practice and Procedure § 1361 (3d ed. 2015) (“[F]ederal courts have allowed untimely [Rule 12(b) ] motions if the defense has been previously included in the answer.”).

B. Rule 12(b)(6) Standard

*5 To survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see alsoFed.R.Civ.P. 8(a)(2). As noted above, dismissal is appropriate when “it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.” Conopco, 231 F.3d at 86. Because Madden represents himself, he is entitled to a liberal construction of his pleadings. Warren v. Colvin, 744 F.3d 841, 843 (2d Cir.2014) (per curiam).

C. The Law of Claim Preclusion

Under the Full Faith and Credit Act, “judicial proceedings of any ... State ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738. “To qualify for full faith and credit under the Act, the ‘state proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process Clause.’ “ Conopco, 231 F.3d at 87 (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 (1982)). “To determine the effect of a state court judgment, federal courts ... are required to apply the preclusion law of the rendering state.” Id.

Under Vermont's claim-preclusion doctrine, “ ‘a final judgment in previous litigation bars subsequent litigation if the parties, subject matter, and cause(s) of action in both matters are the same or substantially identical.’ “ Citimortgage, Inc. v. Dusablon, 2015 VT 68, ¶ 13 (quotingFaulkner v. Caledonia Cnty. Fair Ass'n, 2004 VT 123, ¶ 8, 869 A.2d 103). “The doctrine ‘bars parties from relitigating, not only those claims and issues that were previously litigated, but also those that could have been litigated in a prior action.’ “ Natural Res. Bd. Land Use Panel v. Dorr, 2015 VT 1, ¶ 10, 113 A.3d 400 (quoting Carlson v. Clark, 2009 VT 17, ¶ 13, 185 Vt. 324, 970 A.2d 1269).6 In short, “[c]laim preclusion is found where (1) a previous final judgment on the merits exists, (2) the case was between the same parties or parties in privity, and (3) the claim has been or could have been fully litigated in the prior proceeding.” Breslin v. Synnott, 2012 VT 57, ¶ 8, 192 Vt. 79, 54 A.3d 525 (internal quotation marks omitted).

D. Effect of the Superior Court, Environmental Division's Rulings

Here, all of the elements of claim preclusion are satisfied. The Superior Court, Environmental Division's September 12, 2014 judgment is undoubtedly a “judgment” on the merits. Nor is there any question that finality was achieved, at least by the time the court issued its November 20, 2014 decision denying Madden's second motion to amend. And the parties in the state-court proceedings were exactly the same parties as the parties here.

*6 Finally, Madden's claim that he was deprived of his right to vote was fully litigated in the Superior Court, Environmental Division. Madden raised precisely that claim in both of his post-judgment motions to amend in that case. As described above, the court rejected that claim, reasoning that Madden's suit concerned the Zoning Map (amendable by the Town's Selectboard under 24 V.S.A. §§ 4309(9), 4441, and4442(c)(1)) rather than the Town Plan Map (amendment of which requires the procedures stated in 24 V.S.A. § 4385(c)). Because it determined that there was no state-law right to a town vote on an amendment to the Zoning Map, the court apparently also determined that Madden's procedural due process rights were not violated. And even if Madden did not specifically frame his right-to-vote claim as a federal due process claim, it was at least a claim that Madden could have raised in the state-court proceedings. Madden offers no reason for concluding that the state-court proceedings themselves failed to satisfy procedural due process.7

III. Leave to Amend

The Second Circuit has cautioned that district courts should not dismiss pro se complaints with prejudice without granting leave to amend at least once “ ‘when a liberal reading of the complaint gives any indication that a valid claim might be stated.’ “ Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991)); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). Nonetheless, leave to amend may be denied in certain circumstances, including futility.Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008). Here, better pleading will not cure the res judicata bar. Accordingly, the Court denies leave to amend.

IV. Costs and Fees

In its memorandum in support of dismissal, the Town summarily requests an award of its costs and attorney's fees. (Doc. 17–1 at 6 .) Costs and fees are governed by Fed.R.Civ.P. 54, and by L.R. 54 in the District of Vermont. Under the Local Rules, “[t]axable costs are limited to those specified by 28 U.S.C. § 1920 and must be claimed using the Bill of Costs [Form AO–133]. All costs must be itemized and include supporting documentation, such as billing statements, invoices, or receipts for expenses.” L.R. 54(a). To recover attorney's fees, the Town must file a motion as required by Fed.R.Civ.P. 54(d)(2)(A). Under Fed.R.Civ.P. 54(d)(2)(B), the Town must specify in that motion what “statute, rule, or other grounds” justify departure from the American Rule. See Fox v. Vice, 131 S.Ct. 2205, 2213 (2011) (discussing American Rule under which each party is required to bear its own litigation expenses).

If the Town seeks fees under 42 U.S.C. § 1988, then the Town must show that Madden's action was not just meritless but “ ‘frivolous, unreasonable, or without foundation.’ “ Id. (quoting Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978)).8 Regarding both costs and fees, the Town must also show that it is the “prevailing party.” See Dattner v. Conagra Foods, Inc.,458 F.3d 98, 101 (2d Cir.2006) (per curiam) (noting that a “prevailing party” is the party who obtains a “ ‘judicially sanctioned change in the legal relationship of the parties,’ “ and that that meaning applies with respect to both fees and costs and also applies to dismissals obtained by defendants (quoting Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001))).9

Conclusion

*7 For the reasons discussed above, the Town's Motion to Dismiss (Doc. 17) is GRANTED and the case is DISMISSED. The Court will consider awarding costs and fees to the Town only if the Town completes the procedural steps described above; offers a basis for concluding that the Town is the “prevailing party”; and—with respect to fees under 42 U.S.C. § 1988—shows that Madden's action was frivolous, unreasonable, or without foundation.

All Citations

Not Reported in F.Supp.3d, 2015 WL 4276463

Footnotes

1

Madden has attached to his Complaint what he asserts is a copy of the “Town Plan Land Use Zoning Districts Map” that he contends is mandated by 24 V.S.A. § 4382(a)(2) and subject to the requirements of 24 V.S.A. § 4385(c). (See Doc. 1–1.) Document 1–1 is entitled “Town of New Haven Zoning Districts” and indicates that it depicts the “Zoning Districts adopted by the Selectboard, May, 2007.” (Id.)

2

Section 4385(c) requires a town vote by Australian ballot if the “municipality elects to adopt or amend municipal plans by Australian ballot.” For present purposes, the Court presumes that the Town has done so. Madden's May 11, 2015 and June 20, 2015 filings confirm that. (See Doc. 23 at 2 (reciting decision at the Town's March 6, 2000 Town Meeting to adopt Town Plans and amendments by Australian ballot); Doc. 30 at 3 (same).)

3

The Town also cites Fed.R.Civ.P. 12(b)(2) and 41(b), (see Doc. 17 at 1), but offers no analysis as to why the Court might lack personal jurisdiction over the Town, or how Madden might have failed to prosecute the case or to comply with the procedural rules or any court order. Accordingly, the Court will not dismiss the case on Rule 12(b)(2) or Rule 41(b) grounds.

4

Those decisions are the proper subject of judicial notice. See Briggs v. Warfield, No. 2:06–CV–227, 2007 WL 4268918, at *3 (D.Vt. Nov. 30, 2007) (“When a party moves to dismiss on the basis of res judicata, the Court may consider both the face of the complaint and matters of which the Court may take judicial notice, including prior court decisions.”).

5

The September 12, 2014 opinion appears in the docket of this case as Document 17–3. It is also available at https:// www.vermontjudiciary .org/GTC/Environmental/ENVCRTOpinions2010–Present/Maddenv̈0̈N̈ew% 20Haven4̈9–4–14V̈tec0̈EO0̈ẌMSJ.pdf.

6

Prior to 1984, the Second Circuit had suggested that, in § 1983 actions, “a prior state court proceeding does not bar federal court consideration of constitutional claims not actually litigated and determined in that proceeding.” Gargiul v. Tompkins, 704 F .2d 661, 666 (2d Cir.1983) (emphasis added). The Supreme Court reversed and remanded that decision for further consideration in light of Migra v. Warren City School District Board of Education, 465 U.S. 75 (1984)Tompkins v. Gargiul, 465 U.S. 1016 (1984). It is now settled that res judicata “applies equally to constitutional claims arising under § 1983 which could have been argued in an earlier state court proceeding” Coolidge v. Coates, No. 1:06–CV–92, 2006 WL 3761599, at *3 (D.Vt. Nov. 20, 2006) (emphasis added) (citing Migra, 465 U.S. at 84–85)).

7

At the June 19, 2015 hearing, Madden stated that in the Superior Court litigation he could not “get through” to Judge Walsh. It appears that Madden was unable to persuade Judge Walsh to rule in his favor, but that does not prove that the proceedings failed to satisfy procedural due process.

8

Such a showing would appear to be difficult in this case. See Cascella v. Canaveral Port Dist., No. 604CV1822ORL19DAB, 2006 WL 66719, at *5 (M.D.Fla. Jan. 10, 2006) (“Awarding attorneys' fees on the basis of the fact that the suit was dismissed based largely on the application of res judicata would be an incorrect application of the legal standard on frivolous suits under42 U.S.C. section 1988.”); Webber v. Mills, 597 F.Supp. 316, 319 (S.D.Fla.1984) (defendant in federal civil rights suit was not entitled to attorney's fees; plaintiff's federal suit “was not groundless simply because it was dismissed under the doctrine of res judicata ”).

9

That issue, too, is potentially difficult for the Town. See Perry v. Estates of Byrd, No. 1:13–cv–01555(ALC)(FM), 2014 WL 2998542, at *7 n. 8 (S.D.N.Y. July 3, 2014) (suggesting that a litigant who successfully obtains a dismissal of a claim on preclusion grounds might not be a “prevailing party” for the purposes of costs or attorneys' fees), appeal dismissed, No. 14–2860 (2d Cir. Feb. 4, 2015), ECF No. 85; RBC Nice Bearings, Inc. v. SKF USA Inc., Civil Action No. 3:06–CV–1880 (JCH), 2011 WL 6140919, at *2 (D.Conn. Dec. 9, 2011) (declining to award costs to either party because summary judgment was awarded on the basis of res judicata and neither party was the “prevailing party”).

Case Report: Commonwealth v. Carr

38 Mass.App.Ct. 179

Appeals Court of Massachusetts,

Suffolk.

COMMONWEALTH

v.

Alicia L. CARR (and a companion case1).

No. 93–P–254.

Argued June 7, 1994.Decided Feb. 28, 1995.

Contempt proceedings were initiated by judges against two individuals, including juvenile, who were to be witnesses at criminal trial. The Superior Court, Suffolk County, Elbert Tuttle, J., issued written adjudication of contempt and sentenced each witness to three months' confinement. Witnesses appealed. The Appeals Court, Brown, J., held that: (1) adjudication of contempt could not stand when no prior warnings were given to either witness that her failure to appear as ordered would amount to contempt of court for which she could be fined or imprisoned, and (2) summary contempt procedures were inapplicable when underlying case in which witnesses were to testify had been concluded.

Reversed and set aside.

West Headnotes (3)Collapse West Headnotes

Change View

1ContemptNature and Elements of Contempt

ContemptService on or knowledge of party or other person

Trial judge must warn individuals if they are in danger of being charged with contempt of court before contempt rules may be invoked.

2 Cases that cite this headnote

2ContemptNotice or other process;  attachment

Adjudication of contempt against witnesses, including a juvenile, who failed to appear for criminal trial could not stand when no prior warnings were given to either witness that her failure to appear as ordered would amount to contempt of court for which she would be fined or imprisoned.

2 Cases that cite this headnote

3ContemptSummary Proceedings

Assuming that there had been proper warning that nonappearance at criminal trial by witnesses, including a juvenile, would place them in contempt, summary contempt procedures were inapplicable and contempt proceedings should have been pursued under criminal rule requiring complaint or indictment, where underlying case in which witnesses were to testify already had been concluded, and, thus, there was no immediacy for contempt adjudication. Rules Crim.Proc., Rules 4344, 43C M.G.L.A.

2 Cases that cite this headnote

Attorneys and Law Firms

**426 *179 Cindy Ellen Hill, Middlebury, for Alicia L. Carr.

Bruce W. Carroll, Boston, for the juvenile.

Lucy A. Manning, Asst. Dist. Atty., Boston, for Com.

Before BROWN, KASS and GREENBERG, JJ.

Opinion

BROWN, Justice.

This appeal concerns contempt proceedings initiated by a judge against two individuals who were to be witnesses at a murder trial. The question presented is whether the conduct of the defendants warranted a finding of contempt.

*180 The facts are as follows. On July 7, 1992, prior to jury empanelment in a criminal case against one Michael Driggers, the prosecutor requested that the judge recognize two witnesses in order to insure that they would return to court to testify the following day. The judge inquired of the defendant Carr if she was willing to appear the following day, and she responded affirmatively. The judge then made similar inquiry of the juvenile defendant, to which she replied **427 “Hell, no.” Thereupon, the judge told the juvenile that he was requiring her to appear and that he could put her in custody overnight if she refused. The defendants were then requested to swear to the effect that they would recognize to the sum of $100 personal surety for their appearance the next day. The judge stated that “this is a serious matter” but did not otherwise allude to possible consequences for failure to appear.

The defendants did not appear for trial on July 8, and a capias was issued for each.2 The case in which they were to testify proceeded until July 10, 1992, at which time a guilty plea was tendered and accepted. That same day, the juvenile and Carr appeared in court voluntarily. The capias writs had not been served.

The judge inquired of the assistant district attorney if he wished to proceed against the defendants for contempt, and he indicated that he did. The judge then placed both defendants in custody pending a bail hearing. On July 13, 1992, a hearing on the contempt was held before the same judge pursuant to the summary contempt procedure under Mass.R.Crim.P. 43, 378 Mass. 919 (1979). Counsel for both defendants at this point objected to proceeding under that rule.

*181 Appearing for the Commonwealth were two police officers who testified about their attempts to serve the capias writs. The juvenile and Carr also testified that they did not appear in court because they feared for their lives. At the conclusion of argument by counsel, the judge made findings relative to the proceedings, including the inability of the police to locate the defendants. He indicated that he thought the guilty plea in the case in which the defendants were to testify was directly related to the nonappearance of the defendants at the trial. The judge cited as explicit acts of contempt the defendants' “attitude toward the judge and, in the case of [the juvenile], by other direct refusal to answer simple questions that are relevant to the issues involved in the case.”

Finally, the judge deemed the defendants' failure to appear as sufficiently disruptive of the ongoing proceeding to warrant summary contempt proceedings. The judge read his findings into the record and issued a written adjudication of contempt. Each defendant was sentenced to three months' confinement, with both sentences stayed pending appeal.

121. As a preliminary matter, the trial judge must warn individuals that they are in danger of being charged with contempt of court before contempt rules may be invoked. See Sussman v. Commonwealth, 374 Mass. 692, 697, 700, 374 N.E.2d 1195 (1978). Here, no prior warnings were given to either of the defendants that her failure to appear as ordered would amount to contempt of court for which she could be fined or imprisoned. Contrast Commonwealth v. Corsetti, 387 Mass. 1, 7, 438 N.E.2d 805 (1982) (the witness “was not taken by surprise”). A careful reading of the transcript reveals that, in fact, the defendants were neither told of the significance of being recognized as a witness nor warned of the consequences of failure to appear.

Because of the absence of a proper warning, the adjudication of contempt cannot stand. Sussman v. Commonwealth, supra 374 Mass. at 701, 374 N.E.2d 1195.3

3*182 2. We add the following. The circumstances of this case did not warrant contempt proceedings under the summary procedures of Mass.R.Crim.P. 43, as determined by the judge. Instead, assuming there had been a proper warning that the defendants' nonappearance would place them in contempt, contempt proceedings in this case **428 should have been pursued under Mass.R.Crim.P. 44, 378 Mass. 920 (1979), which first requires a complaint or indictment and is to be tried before a judge other than the one before whom the contumacious acts occurred “whenever the nature of the alleged contemptuous conduct is such as is likely to affect the trial judge's impartiality.”

While a trial judge has the inherent power to punish contumacious conduct, rule 43 permits a judge to punish such conduct summarily only when, to quote from the rule, “such summary punishment is necessary to maintain order in the courtroom.” Viewed as a whole,4 the rule provides that “[s]ummary contempt should be used only when the contemptuous behavior constitutes a threat that immediately imperils the administration of justice. Thus, where time is not of the essence, summary contempt proceedings are inappropriate.” Commonwealth v. Corsetti, 387 Mass. at 8, 438 N.E.2d 805 (citations omitted). See also Sussman v. Commonwealth, 374 Mass. at 700, 374 N.E.2d 1195. The underlying case in which the defendants were to testify had been concluded; there was no immediacy: time was not of the essence. See and compare Commonwealth v. Segal, 401 Mass. 95, 98–99, 514 N.E.2d 1082 (1987). See also Reporters' Notes to Mass.R.Crim.P. 43, Mass.Ann.Laws, Rules of Crim.P. at 595 (Law. Co-op.1979) (“when the adjudication of contempt is delayed until after the contemptuous conduct *183 has occurred, summary disposition is improper”); In re Lamson, 468 F.2d 551, 552 (1st Cir.1972) (summary proceedings not available when alleged contemptuous conduct is nonappearance of witness).

The judgments are reversed; the findings of contempt are set aside; judgment is to enter for the defendants.

So ordered.

All Citations

38 Mass.App.Ct. 179, 646 N.E.2d 426

Footnotes

1

Commonwealth vs. A Juvenile. In what is perhaps an abundance of caution in this case, we avoid using the second defendant's (the juvenile's) name to protect her identity. See Doe v. Commonwealth, 396 Mass. 421, 423, 486 N.E.2d 698 (1985).

2

On July 8, 1992, the judge was informed that either the juvenile or Carr had contacted Attorney Joshua Dohan of the Committee for Public Counsel Services for advice pertaining to appearing in court; he advised them that they were required to appear, that they could request an attorney, and that they could then seek advice with regard to their self-incrimination rights. In a separate proceeding, Mr. Dohan was held in contempt for refusing to divulge the names and phone numbers of the persons who contacted him. Those charges were ultimately dismissed.

3

We also note that when the defendants were first in court on July 7, the juvenile was not accompanied by a parent, legal guardian, or attorney. Although from this there appears to be some merit to the argument that the finding of contempt on her part was further tainted by the absence of protections under G.L. c. 119, § 55, we need not address the argument because of the result we reach.

4

In addition to other restrictions discussed above, the availability of summary contempt is limited by rule 43 to situations in which “(1) the contemptuous conduct could be seen or heard by the presiding judge and was committed within the actual presence of the court; (2) the judgment of contempt is entered upon the occurrence of the contemptuous conduct; and (3) the punishment imposed for each contempt does not exceed three months imprisonment or a fine of five hundred dollars.”

Case Report: Commonwealth v. Thayer

39 Mass.App.Ct. 396

Appeals Court of Massachusetts,

Franklin.

COMMONWEALTH

v.

Mark T. THAYER.

No. 94-P-1597.

Argued Sept. 11, 1995.Decided Nov. 6, 1995.

Defendant was convicted in the Superior Court, Franklin County, Mary-Lou Rup, J., of unarmed robbery. Defendant appealed. The Appeals Court, Porada, J., held that: (1) presentation to jury of unsanitized photograph of defendant created substantial risk of miscarriage of justice, and (2) judge's instruction cautioning jury not to infer anything from police possession of photograph did not eliminate prejudice.

Judgment reversed, verdict set aside.

West Headnotes (3)Collapse West Headnotes

Change View

1Criminal LawPictures of Accused or Others;  Identification Evidence

Criminal LawDocumentary Evidence

Presentment to jury of defendant's unsanitized police department photograph which contained notations suggestive of unrelated criminal activity, created substantial risk of miscarriage of justice; even though date on back of photograph did not precede date of offense for which he was on trial, jury could have inferred that defendant had been arrested for a crime that occurred after charged offense, but before the witness identified him in the photograph.

4 Cases that cite this headnote

2Criminal LawPurpose and Effect of Evidence

Judge's instruction to jury cautioning them not to draw any inference that police possessed photograph of defendant used by witness to identify him as perpetrator due to commission, by him, of prior criminal acts, did not dispel prejudice to defendant from information contained on back of photograph which suggested unrelated crimes, where other evidence against defendant was not overwhelming.

3Criminal LawDocumentary Evidence

Counsel's failure to object to photograph of defendant that was not properly sanitized and included information on back which suggested unrelated criminal activity, was not reasonable tactical decision.

2 Cases that cite this headnote

Attorneys and Law Firms

 

**908 *396 Cindy Ellen Hill, for defendant.

Shaun S. McLean, Assistant District Attorney, for Commonwealth.

Before DREBENSMITH and PORADA, JJ.

Opinion

PORADA, Judge.

The defendant was convicted of unarmed robbery by a jury in the Superior Court. On **909 appeal, he argues that a substantial risk of a miscarriage of justice occurred when his photograph was presented to the jury without proper sanitizing and when the judge directed the jury to return to their deliberations without their consent after they supposedly reported they were deadlocked for the third time. We reverse on the ground that the presentment to the jury of the defendant's photograph which contained notations suggestive of unrelated criminal activity created a substantial risk of a miscarriage of justice.

We summarize the evidence. The clerk of a Cumberland Farms store testified that at about 11:00 P.M. on March 20, *397 1993, a man entered the store, selected a candy bar, and then approached the cash register where she was standing and demanded that she give him money out of the cash register. She stated that she opened the cash register and the man removed the money from the register. As the man left the store, he told her not to move or look at him because he would shoot her if she did. Immediately after the robbery she assisted the police in preparing a composite picture of the robber and in examining a book of photographs. She did not identify anyone at that time as the robber.

On April 23, 1993, the police asked her to look at a photo array of eight frontal pose photographs. She selected a photograph of the defendant as the robber. Three of the photographs in the array were of people whom she knew, but she did not disclose that fact to the police. There was evidence that some time later she told a cousin that she wasn't sure that the defendant was the person who had committed the robbery and that during her examination of the photo array the police kept pointing to the defendant's picture. There was also evidence that prior to the robbery, the clerk's boyfriend had repeatedly requested that she give him money and that she take it from the store cash register. There was also evidence that her boyfriend resembled the defendant.

Identification was the key issue in this case. Accordingly, the Commonwealth offered in evidence without objection by the defendant the photo array from which the clerk had selected the defendant's photograph. The array consisted of eight frontal pose photographs of males. There were no markings on the face of the photographs, but on the back of each photograph was listed a name, date, and offense. On the back of the defendant's photograph, taken from the Greenfield police department files, was listed his name, height, weight, date of birth, the crime of armed robbery, the date of April 23, 1993, and a file number. When the array was distributed during the trial, none of this information was sanitized. At the close of the trial, the judge called counsel's attention to this fact. Defense counsel then moved that the*398 photographs be sanitized. The judge ordered that they be sanitized before the photo array was delivered to the jury for use during their deliberations. The record is silent as to who sanitized the photographs but in any event the Commonwealth and the defendant agree that the backs of the photographs were inadequately sanitized and that the information contained on the backs of the photographs would have been visible to the jury during their deliberations.

1Although the defendant made no objection to the failure to sanitize or the poor sanitizing, he now contends that the submission of his photograph to the jury with this information created a substantial risk of a miscarriage of justice because it suggested to the jury that the defendant had a criminal history and that he had committed a similar crime, which, he argues, could well have convinced the jury that he committed the crime in question. See Commonwealth v. Tracy, 27 Mass.App.Ct. 455, 460, 539 N.E.2d 1043 (1989), quoting fromCommonwealth v. Guilfoyle, 396 Mass. 1003, 1004, 485 N.E.2d 679 (1985) (“[i]t is all too easy for a jury to surmise that if a defendant earlier committed a crime, he probably committed the crime for which he is being tried, particularly if the crimes are similar”). We have repeatedly held that where there is a need to introduce mug shots, the mug shots, to the extent possible, should not indicate a prior record and should not call attention to their origins and implications. Commonwealth v. Smith, 29 Mass.App.Ct. 449, 451, 561 N.E.2d 520 (1990).Commonwealth v. Gee, 36 Mass.App.Ct. 154, 157-158, 628 N.E.2d 1296 (1994)**910 We are not convinced, as the Commonwealth argues, that the notations on the back of the defendant's photograph simply suggest that the photograph was taken during the police investigation of this incident because the date on the photograph did not precede the date of the offense charged here. CompareCommonwealth v. Payton, 35 Mass.App.Ct. 586, 594-595, 623 N.E.2d 1127 (1993) (where the dates on the photographs were later than the date of the offenses for which the defendant was on trial, no suggestion that the defendant had a prior record). The Commonwealth argues that the date of April 23, 1993, simply reflects the date on which the clerk made her identification *399 and that the crime of armed robbery noted fits the clerk's version of the event in question. While it is true that the date noted is the same as the date on which the clerk made her identification and that the clerk's version of the event may have fit the crime of armed robbery, there was no evidence offered as to when the defendant was arrested for this charge or indicating that the initial charge against him in connection with this offense was armed robbery. Nor is the information contained on the back of the defendant's photograph as innocuous as the Commonwealth suggests-the information depicted thereon includes a file number for the Greenfield police department, the defendant's height, weight, and date of birth and lists the crime as one other than the crime of unarmed robbery. In these circumstances it is just as likely that the jury inferred that the defendant had been arrested for an armed robbery that occurred after the robbery of March 20 in question here but on or before April 23.

23While we recognize that the judge in her instructions to the jury cautioned the jury not to draw any inference that the police had the defendant's photograph in their possession, we do not believe that the instruction was sufficient to dispel the prejudice to the defendant from the information contained on the back of the photograph. Compare Commonwealth v. Banks, 27 Mass.App.Ct. 1193, 1194, 543 N.E.2d 433 (1989). This was not a case in which the evidence of the defendant's guilt was overwhelming. The Commonwealth's case was based solely on the identification by the store clerk of the defendant as the robber. The defendant offered evidence to impeach her credibility and specifically challenged her version of the identification procedures used by the police in this case. Moreover, the information contained on the back of the photograph was sufficiently prejudicial to make plausible an inference that the result might have been otherwise but for the error. Commonwealth v. Tracy, 27 Mass.App.Ct. at 460, 539 N.E.2d 1043. Finally, it is inescapable that counsel's failure to object was not simply a reasonable tactical decision. Accordingly, we conclude in the circumstances of this case that the three preconditions for establishing a substantial risk of a miscarriage *400 of justice have been met. Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21, 490 N.E.2d 1195 (1986).

As the defendant's other claim of error is not likely to arise in the same context at retrial, we do not discuss it.

Judgment reversed.

Verdict set aside.

All Citations

39 Mass.App.Ct. 396, 656 N.E.2d 908

Case Report: Restore the North Woods v. USDA Forest Service -- Sugarbush Land Swap

968 F. Supp. 168 (1997)

 

 

RESTORE: THE NORTH WOODS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; Dan Glickman, Secretary, United States Department of Agriculture; Mike Dombeck, Chief, USDA Forest Service; Bob Jacobs, Regional Forester, Eastern Region, USDA Forest Service; James W. Bartelme, Forest Supervisor, Green Mountain National Forest; Beth LeClair, District Ranger, Rochester Ranger District, Green Mountain National Forest; in their official capacities as officers or employees of the United States Department of Agriculture; Defendants.

 

 

File No. 97 CV 163.

 

 

United States District Court, D. Vermont.

 

 

June 17, 1997.

 

*169 Cindy Ellen Hill, Middlebury, VT, for Plaintiff.

Joseph Robert Perella, Asst. U.S. Atty., Office of U.S. Attorney, Dist. of Vermont, Burlington, VT, for Defendants.

Carolyn Browne Anderson, Peter Welles Hall, Reiber, Kenlan, Schwiebert, Hall & Facey, P.C., Rutland, VT, for Movant.

 

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiff, RESTORE: The North Woods, ("RESTORE"), filed this action on May 20, 1997, seeking declaratory and injunctive relief requiring the Federal Defendants to comply with the National Environmental Policy Act ("NEPA") by assessing the environmental impacts of a proposed land exchange between the United States Forest Service and Sugarbush Resort Holdings, Inc. ("SRHI"), and to prohibit the exchange of deeds until the environmental impacts are assessed.

RESTORE filed motions for a Temporary Restraining Order, for Preliminary Injunction, and for Summary Judgment on the seven counts of its complaint (Papers 2, 3, 5). The Federal Defendants filed a cross-motion for Summary Judgment (Paper 8). SRHI, having been granted permission to intervene, also filed a cross-motion for Summary Judgment (Paper 11). The Court heard oral argument on May 29, 1997. For the reasons stated below, RESTORE's motion is granted and Defendants' and SRHI's motions are denied.

 

I. Factual Background

SRHI operates Sugarbush Resort, a major ski resort located on Mount Ellen and Lincoln Peak in the towns of Warren and Fayston, Vermont. National Forest System land in the Green Mountain National Forest is used by the resort. SRHI is authorized to use National Forest System lands under a 40-year Special Use Permit issued May 17, 1995.

In late 1995, SRHI and the United States Forest Service began discussing the acquisition by SRHI of a 57 acre parcel of National Forest land adjoining its current holdings. SRHI intends to build a hotel/conference center and paved parking lot on the property, *170 which currently consists of an unpaved parking lot, tennis courts and woods. This expansion is part of SRHI's plan to remain competitive as a four-season destination resort.

SRHI initially offered to swap 800 acres of SRHI land and 176 acres of land in Bennington, Vermont in exchange for the 57 acre parcel. The Forest Service, following regulations governing land exchanges between it and non-Federal parties, undertook to assess the environmental effects of the proposed action in accordance with NEPA. The proposal was released for public comment via a "scoping letter," on January 25, 1996. In response, the Regional Administrator of the Environmental Protection Agency ("EPA") urged the Forest Service to conduct an environmental analysis, "as the development of a destination resort and hotel conference complex by SRHI appears to be reasonably foreseeable and could have substantial impact on the environment." DeVillars letter (Paper 8, Att. 13).

On March 13, 1996, the Forest Service issued a "Decision Letter" disapproving the exchange, based at least in part on comment received from the local community, but noting that SRHI and the Forest Service would continue to work together to develop an acceptable exchange.

SRHI then began working with the Vermont Congressional delegation for the passage of specific legislation that would direct the Forest Service to convey its parcel to SRHI, and allow any excess funds received from the conveyance to be placed in escrow for the acquisition of additional lands to be incorporated into the Green Mountain National Forest. That effort culminated in the Sugarbush Land Exchange Act of 1996 ("SLEA"), attached to the 1997 Appropriations Bill and signed into law on September 30, 1996. The SLEA provides for the exchange of the 57 acre parcel for acceptable land and/or cash, and permits escrow of excess funds, if any. Sugarbush Land Exchange Act of 1996, Pub.L. No. 104-208, § 326, 110 Stat. 3009 (1996).

SRHI and the Forest Service developed a second exchange proposal during the summer of 1996. The second proposal contemplated exchanging the 57 acre National Forest parcel for 77 acres of land in private hands known as the Warren Falls parcel, on which SRHI had obtained an Option to Purchase, plus approximately 59 acres near Lincoln Gap, and 213 acres on the slopes of Lincoln Peak. The Warren Falls parcel is a tract of scenic land along the Mad River. The 59 acre parcel is undeveloped forest near the Breadloaf Wilderness Area, and the 213 acre parcel is associated with the operation of the ski resort. (Paper 8, Att. 4 at 9, 13).

In October, 1996, the Forest Service initiated another round of scoping, and received additional comments. On April 7, 1997, the Forest Service issued its decision to approve the land exchange. In approving the land exchange, the Forest Service concluded that the proposed action may be "categorically excluded" from complying with the preparation of an Environmental Impact Statement under NEPA.[1]

Simultaneously with its decision to exclude the land exchange from environmental review, the Forest Service issued an Environmental Assessment for the Upgrade and Realignment of the Village Double Chair and Management Area Designations for the Newly Acquired Lands through the Sugarbush Land Exchange Project ("Management Area Designation EA" or "EA"). This EA, in proposing land management designations for lands it would shortly acquire from SRHI, discussed some of the environmental implications of the transfer of the 57 acre parcel to SRHI, but did not directly address the issues raised.

On May 16, 1997 the Forest Service made a further determination that the conveyance *171 of the 57 acres was a non-discretionary agency action pursuant to the SLEA, and as such was exempt from the requirements of NEPA. (Paper 8, Att. 3). In effect, the Forest Service concluded that the limited environmental review it had conducted so far had been unnecessary.

SRHI and the Forest Service planned to complete the land exchange on May 22, 1997. They voluntarily postponed the closings until May 30, 1997, because of the pending litigation. SRHI's Option to Purchase the Warren Falls parcel expired June 1, 1997.

RESTORE's complaint asserts that the Forest Service failed to comply with NEPA's requirement of environmental review (Counts 1, 2); failed to comply with Council of Environmental Quality ("CEQ") and Forest Service regulations concerning categorical exclusions (Count 3); conducted segmented review of a proposed action in violation of NEPA (Count 4); failed to consider irreversible and irretrievable commitment of resources in violation of NEPA (Count 5); violated Forest Service regulations governing the exchange of land (Count 6); and alleged that the Forest Service's regulations concerning categorical exclusions violate NEPA (Count 7).

The parties' summary judgment motions have narrowed the issues to two dispositive questions of law: one, whether the proposed land exchange is exempt from NEPA because the exchange is mandatory under the SLEA; and two, if NEPA applies, whether the Forest Service's decision to categorically exclude the proposed land exchange was arbitrary and capricious.

 

II. Standards

A district court is empowered to review agency action under the Administrative Procedure Act. 5 U.S.C. § 702 (1996). The reviewing court must set aside agency action, findings, and conclusions if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A) (1996).

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970).

 

III. Discussion

NEPA requires federal agencies, including the Forest Service, to review the environmental impact of major federal actions significantly affecting the quality of the human environment.[2] 42 U.S.C. § 4332(2) (C) (1994). The Supreme Court has stated that NEPA has twin aims. "First it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision making process." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S. Ct. 2246, 2252, 76 L. Ed. 2d 437 (1983) (citations and interior quotation marks omitted).

The Second Circuit admonished, in an early case construing NEPA, that in enacting NEPA Congress directed that agencies implement it to the fullest extent possible. 42 U.S.C. § 4332. "In using this language, it was not creating a loophole to avoid compliance, but rather was stating that NEPA must be followed unless some existing law applicable to the agency made compliance impossible." Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 699 (2d Cir. 1972) (referring to the legislative history *172 of the phrase "to the fullest extent possible" in 42 U.S.C. § 4332). See also Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Comm'n, 869 F.2d 719, 729 (3d Cir.1989); Public Serv. Co. v. United States Nuclear Regulatory Comm'n, 582 F.2d 77, 81 (1st Cir.1978) (unless specific statutory provision necessarily collided with NEPA, agency had a duty to consider, and, to the extent within its authority, minimize environmental damage); 40 C.F.R. § 1500.6 ("to the fullest extent possible" means that compliance with the section is mandatory unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible).

The Supreme Court stressed that "to the fullest extent possible" was neither accidental nor hyperbolic, but "a deliberate command that the duty NEPA imposes upon the agencies to consider environmental factors not be shunted aside in the bureaucratic shuffle." Flint Ridge Development Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 787, 96 S. Ct. 2430, 2438, 49 L. Ed. 2d 205 (1976).

In Flint Ridge, the Supreme Court held NEPA's environmental impact statement requirement inapplicable, where there was a clear and fundamental conflict of statutory duty between NEPA and a statute which imposed strict and short time limits on agency action, and afforded the Secretary no discretion to suspend the time limits. Even where the agency action would constitute a major federal action ordinarily requiring NEPA analysis, where an agency cannot comply with NEPA and with another statutory duty, NEPA must yield. Flint Ridge, 426 U.S. at 791, 96 S. Ct. at 2439-40.

Flint Ridge left open the issue of whether an agency action is a major federal action for NEPA purposes when the agency lacks any discretion to take environmental consequences into consideration. Id. at 786-87, 96 S. Ct. at 2437. Some courts have proceeded to hold that where an agency action is purely ministerial and non-discretionary, NEPA does not apply because the action is not a major federal action. See Sugarloaf Citizens Ass'n v. F.E.R.C., 959 F.2d 508 (4th Cir.1992) (F.E.R.C. certification of small power facility for PURPA purposes purely ministerial and not a major federal action); Goos v. I.C.C.,911 F.2d 1283 (8th Cir.1990) (I.C.C. issuance of Notice of Interim Trail Use not a major federal action because Secretary had no discretion to refuse to issue notice if statutory requirements were met); National Ass'n for the Advancement of Colored People v. Medical Ctr., Inc., 584 F.2d 619 (3d Cir.1978) (H.E.W.'s ministerial approval of capital expenditures plan under Social Security Act not major federal action).

NEPA's requirements, moreover, are applicable to proposed federal agency actions. 42 U.S.C. § 4332(2) (C); see, e.g.,Monroe County Conservation Council, 472 F.2d at 697 (primary purpose of impact statement is to compel federal agencies to weigh environmental factors in making discretionary choices); Minnesota v. Block, 660 F.2d 1240 (8th Cir.1981) (for an EIS to be required, some future federal action, on which an EIS may have some effect, must be anticipated). A proposal exists at the stage in the development of an action when an agency has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and the effects can be meaningfully evaluated. 40 C.F.R. § 1508.23 (1997).

 

A. Exemption from the requirements of NEPA

The Forest Supervisor made a determination that the land exchange was not a discretionary act, and therefore the agency was not required to comply with NEPA. (Paper 8, Att. 3). An agency's threshold determination that an impact statement is not required under NEPA is reviewed under the "arbitrary, capricious, abuse of discretion standard." Hanly v. Kleindienst,471 F.2d 823, 830 (2d Cir.1972).

Under Flint Ridge, if the SLEA expressly prohibits environmental review under NEPA, or makes compliance with NEPA impossible, then the Forest Service is not required to conduct the review.

The SLEA provides in pertinent part:

 

If Sugarbush Resort Holdings, Inc. conveys to the United States land acceptable *173 to the Secretary of Agriculture that is at least equal in value to the value of the land described in subsection (a) (2), makes a payment of cash at least equal to that value, or conveys land and makes a payment of cash that in combination are at least equal to that value, the Secretary, subject to valid existing rights, shall, under such terms and conditions as the Secretary may prescribe, convey all right, title, and interest of the United States in and to the land described in subsection (a) (2).

Pub.L. No. 104-208, § 326, 110 Stat. 3009 (1996).[3]

The SLEA did not expressly exempt the proposed land exchange from the requirements of NEPA. If, however, the SLEA made compliance with NEPA impossible, or created a clear and fundamental conflict of statutory duty, the Forest Service is exempted from compliance with NEPA under Flint Ridge.

The Forest Service contends that the SLEA deprives it of any discretion with regard to the proposed land exchange, because it must convey all right, title, and interest in the parcel once SRHI conveys land and/or cash that is equal in value to the 57 acre parcel. Because its action in transferring the land will be non-discretionary and purely ministerial, it argues, NEPA does not apply. The Forest Service further maintains that it cannot comply with NEPA because the decision to transfer the land to SRHI has already been made, by Congress. Notably, the Forest Service does not suggest that the proposed land exchange is not a major federal action. See 36 C.F.R. § 254.3(g) (1997) (agreement to initiate land exchange between Federal and non-Federal parties triggers environmental analysis in accordance with NEPA).

RESTORE argues that the plain language of the statute confers discretion upon the Forest Service in the land exchange process.

The language of the statute indicates that Congress has limited, but not eliminated, the Secretary's discretion in this land exchange. First, the statute provides that the land SRHI conveys to the United States must be "acceptable" to the Secretary of Agriculture. If the land is not "acceptable," the Secretary need not proceed with the exchange. Second, the Secretary may prescribe "terms and *174 conditions" in its conveyance of the land.[4]

To be sure, if the land is acceptable, and if SRHI transfers land and/or cash equal in value, Congress has directed that the Secretary "shall ... convey all right, title, and interest of the United States in and to the land." The Forest Service does lack the discretion to convey less than all right, title, and interest, or to refuse to make the exchange if all the conditions are met. But it does not lack all discretion in the process, its actions are not purely ministerial, nor will compliance with NEPA be an empty formality.[5]

The SLEA does not preclude NEPA analysis of the terms and conditions which may be imposed upon the parcel which is exchanged out of the National Forest System. The regulations governing land exchanges between the Forest Service and non-Federal parties expressly provide for the imposition of restrictions on the use of Federal lands to be exchanged. 36 C.F.R. § 254.3(h) (1997). Congress, in enacting the SLEA, removed the Secretary's discretion to reserve any right or retain any interest in the land; it did not invade the Secretary's discretion to impose terms and conditions upon the exchange, such as restrictive covenants, as long as the Secretary does not reserve any rights or retain any interest in the parcel itself.[6] Nor did it invade the Secretary's discretion to consider whether the lands to be acquired by the Forest Service will be "acceptable" in light of any environmental consequences identified by a NEPA review, or whether there are ameliorative or mitigative measures which could or should be undertaken on other Green Mountain National Forest lands as a consequence of the exchange.

There is no clear and fundamental conflict between the duties imposed on the Forest Service by NEPA and by the SLEA, unlike the situation in Flint Ridge, where the Secretary could not comply with both statutes. The case at bar is also distinguishable from Pacific Legal Foundation v. Andrus, 657 F.2d 829, 835-37 (6th Cir.1981), where a statutory conflict was found between the Endangered Species Act and NEPA, so that an EIS was not required before a species could be listed as endangered. The Sixth Circuit found that filing an EIS before listing a species as endangered would not serve the purposes of the Endangered Species Act, nor would it serve the purposes for filing such a statement. It found, on the contrary, that NEPA's purpose of promoting protection of the environment was furthered by listing endangered species for protection. Conducting an environmental review before completing a proposed land exchange, however, is not in conflict with the purpose of the SLEA to provide for a land exchange acceptable to the Secretary nor is it in conflict with the purposes of NEPA. NEPA's purposes in fact are thwarted by exchanging this 57 acre parcel *175 out of the National Forest System without undertaking a NEPA analysis.

The Secretary is able to conduct an environmental review of the proposed land exchange, including an evaluation of alternative combinations of land and/or cash to be received, and terms and conditions to be imposed, without disobeying the SLEA's command to convey the parcel to SRHI if the proposed exchange is acceptable to the Secretary.

As stated above, although the SLEA removes some discretion from the Secretary, it does not remove all discretion. For this reason, the various cases cited by the Federal Defendants and by SRHI are inapposite, because they involve situations where the agency had no discretion to consider environmental consequences, and was only minimally involved. In Goos v. I.C.C., 911 F.2d at 1296, for example, where landowners sought environmental review of interim trail use under the Rails to Trails Act, the Eighth Circuit held that no major federal action was implicated. The I.C.C. was required to issue a Notice of Interim Trail Use if a railroad wished to discontinue rail service, and a prospective user of the right-of-way entered into negotiations with the railroad to take over financial responsibility for maintenance. The Notice did not mandate the conversion from rail to trail, but simply allowed two private parties to proceed to try to reach an agreement on the use of the right-of-way. Unlike the I.C.C. in that case, the Forest Service is an active party in this land exchange.

In South Dakota v. Andrus, 614 F.2d 1190 (8th Cir.1980), a state sought to compel the Department of the Interior to prepare an EIS before issuing a mineral patent to a mining company. Noting that the issuance of a mineral patent is a purely ministerial and non-discretionary act, the Eighth Circuit held also that it was not a major federal action because obtaining a patent did not enable a mining company to mine. The Court of Appeals stressed, however, that it recognized that NEPA applies to federal actions such as the one at issue here, which enable a private party to act so as to significantly affect the environment. Id. at 1194.

Similarly, in N.A.A.C.P. v. Medical Center, Inc., 584 F.2d at 634, the Third Circuit held that ministerial approval by the Department of Health, Education and Welfare of a capital expenditures plan for a private non-profit hospital was not a major federal action where there was minimal federal involvement in the program.

In Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir.1995), a NEPA analysis was not required before a sawmill company could construct a logging road on its right-of-way crossing Bureau of Land Management land, despite a potential threat to habitat of the spotted owl. The right-of-way agreement predated NEPA, and specified three limited conditions under which the Bureau could halt construction, none relevant to threats to avian habitat.

By contrast, in Forelaws on Board v. Johnson, 743 F.2d 677 (9th Cir.1984), a statute mandating a power authority to offer new long-term hydroelectric power contracts to its preference and non-preference customers "as soon as practicable within nine months" of the statute's effective date did not deprive the administrator of discretion with respect to contract terms that might have an effect upon the environment, and an EIS was required.

These cases illustrate that where there is minimal federal involvement, where the federal agency has no power to affect the proposed action, or where there is no action to be taken, NEPA does not apply. Where, however, the federal agency is involved in the action, and where it is possible to comply with NEPA, NEPA analysis must be undertaken. Because the case at bar involves a major federal action, where the SLEA does not expressly prohibit NEPA analysis, where the agency's role is not confined to the purely ministerial, and where it has discretion to impose terms and conditions on the transaction and to approve or disapprove the transaction based on the acceptability of the lands to be acquired, the proposed land exchange is not exempt from NEPA. The Forest Service's determination to the contrary must be set aside as arbitrary and capricious and an abuse of discretion.

 

*176 B. Categorical Exclusion

The Federal Defendants contend that, even if NEPA applies to the land exchange, the Forest Service acted reasonably in determining that the exchange is categorically excluded from NEPA analysis. When an agreement between the Forest Service and a private party has been reached to exchange land, the proposal must be subjected to environmental analysis pursuant to NEPA. 36 C.F.R. § 254.3(g) (1997). A preliminary step is to decide whether an EIS or an EA must be prepared.[7]In determining whether to prepare an EIS, an agency must decide whether under its regulations, the action normally requires or does not require an EIS or an EA. 40 C.F.R. § 1501.4(a) (1997). Actions which have been determined not to require an EIS or an EA, because they have been found not to have a significant effect on the human environment, are known as "categorical exclusions." 40 C.F.R. § 1508.4 (1997).

The Forest Service has established categories of routine actions which normally do not have a significant effect on the quality of the human environment, and which therefore may be categorically excluded from documentation in an EIS or EA, absent extraordinary circumstances. FSH 1909.15 § 31.1b (1992). One category is a "[s]ale or exchange of land or interest in land and resources where resulting land uses remain essentially the same. Examples include but are not limited to: ... [e]xchanging National Forest System lands or interests with a ... non-Federal party (individual or organization) with similar resource management objectives and practices." FSH 1909.15 § 31.1b(7) (b).

After reviewing the comments received during the scoping process, the Forest Supervisor concluded that "[t]his proposed action may be categorically excluded from documentation in an environmental impact statement or assessment as it falls within Section 31.1b, and there are no extraordinary circumstances related to the proposed actions." Letter to file, April 7, 1997 (Paper 8, Att. 1).

The 57 acre parcel to be exchanged out of the National Forest System is designated as "Management Area 7.1." This designation is defined in the Land and Resource Management Plan for the Green Mountain National Forest as "highly developed areas ... includ[ing] lodges, campgrounds, downhill ski areas and other high density developments on or intermingled with National Forest lands." (Paper 8, Att. 4 at 14). Because the land would retain the same high density land management designation after a hotel was built, the Forest Service determined that the land uses before and after exchange would be essentially the same. It also concluded that it and SRHI had similar resource management objectives.

RESTORE contends that the decision to categorically exclude the proposed land exchange was arbitrary and capricious, and must therefore be set aside. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 109 S. Ct. 1851, 1860-61, 104 L. Ed. 2d 377 (1989) (review of agency's factual determination controlled by "arbitrary and capricious" standard of 5 U.S.C. § 706(2) (A)). In making the factual inquiry concerning whether an agency decision was "arbitrary and capricious," a reviewing court must consider whether the decision was based on a reasoned evaluation of the relevant factors and whether there has been a clear error of judgment. Id. at 378, 109 S. Ct. at 1861-62. This inquiry must be "searching and careful, but the ultimate standard of review is a narrow one." Id., quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971). See also Abenaki Nation v. Hughes, 805 F. Supp. 234, 240 (D.Vt.1992); National Audubon Soc. v. Hoffman, 917 F. Supp. 280, 287 (D.Vt.1995).

As the Second Circuit has stated:

 

Normally, an agency's action is held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation *177contrary to the evidence before it, or its explanation ... is so implausible that it cannot be ascribed to differing views or agency expertise.

Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1051 (2d Cir.1985).

Having conducted a careful review of the facts in this case, this Court finds the Forest Service's conclusion that the proposed land exchange could be "categorically excluded" from environmental review under NEPA to be arbitrary and capricious.

First, the Forest Service ignored evidence presented to it, and the commands of its own Environmental Policy and Procedures Handbook. As previously described, the proposed land exchange underwent a required scoping process. FSH 1909.15 § 30.3(3). The Handbook directs that an EIS be prepared if scoping indicates that a proposed action might have a significant environmental effect. Id. In the instant case, scoping clearly indicated that the proposed land exchange might have a significant environmental impact.

For example, in response to the scoping letter, the Regional Administrator of the EPA stated, "I believe it is particularly important that an environmental analysis be prepared for this § 7 acre tract as the development of a destination resort and hotel conference complex by SRHI appears to be reasonably foreseeable and could have substantial impact on the environment." DeVillars letter (Paper 8, Att. 13). Other responses to the scoping letter echoed this concern. Management Area Designation EA at A-III, XIII, XIV; B-IV, XIV, XV (Paper 8, Att. 4).

In response to these concerns, the Forest Service stated summarily that "the appropriate level of NEPA analysis are [sic] contained in this document," and referred to the categorical exclusion language of § 31.1b(7) (b), with no explanation or analysis whatsoever as to why it considered the present and proposed land uses to be essentially the same, or how it considered itself as sharing similar resource management objectives and practices with SRHI.

Furthermore, in its Environmental Assessment of the Management Area Designations for the parcels to be acquired through the SLEA, the Forest Service stated that, without mitigation, construction of the hotel and parking lots could have a significant effect on soils, visual quality, water and fishery resources, wetlands, and public access to National Forest lands. EA at 28, 32, 36, 63, 71 (Paper 8, Att. 4).

Scoping, and the Forest Service's own analysis, thus indicated that the proposed land exchange could have a significant environmental effect, triggering the requirement to prepare an EIS. The receipt of comments indicating potential significant environmental effects, plus the Forest Service's apparent acknowledgment of significant environmental effects, cannot rationally be harmonized with the Forest Service's decision that the proposed action would not have a significant environmental effect.

Second, the Forest Service's decision to categorically exclude the proposed land exchange must be also be set aside because its rationale for categorical exclusion is implausible, and cannot be ascribed to "differing views or agency expertise." Sierra Club v. Army Corps, 772 F.2d at 1051. The Forest Service determined that the proposed land exchange could be categorically excluded because the land use of the exchanged parcel would remain essentially the same before and after the exchange, and because it and SRHI shared the same resource management objectives. This Court fails to see, nor can it glean from the record before it, any rational basis for concluding that a hotel/conference center is the same land use as a parking lot and tennis courts. The fact that the parcel's land management designation would remain the same does not signify that the land use would remain essentially the same. In addition, this Court has found no support in the record for the statement that the United States Forest Service and a private for-profit ski resort have similar resource management objectives and practices.

Consequently, the Court finds arbitrary and capricious the Forest Service's decision to categorically exclude the proposed action, because the Forest Service failed to analyze or explain its decision to exclude, the evidence before it indicated that the building *178 of a hotel/conference center could have a significant effect on the environment, and its rationale for categorical exclusion was not plausible.

In reaching this conclusion, the Court expresses no opinion on the merits of the land exchange or of the proposed development. In enacting NEPA Congress has required federal agencies to consider the environmental consequences of their actions. This obligation cannot be evaded because compliance may be inconvenient or time-consuming.

 

IV. Conclusion

The Plaintiff's Motion for Summary Judgment (Paper 5) is GRANTED. The Defendants' Motion for Summary Judgment (Paper 8) is DENIED. The Intervenor's Motion for Summary Judgment (Paper 11) is DENIED. Plaintiff's Motions for Temporary Restraining Order and Preliminary Injunction (Papers 2, 3) are DENIED as moot. Defendants are hereby ENJOINED to comply with the provisions of NEPA in implementing the SLEA, as the proposed land exchange is neither exempted nor categorically excluded from NEPA review. Defendants are furthermore ENJOINED from proceeding with the contemplated land exchange until the appropriate NEPA analysis has been conducted.

NOTES

[1] Under Forest Service regulations a proposed action may be categorically excluded from documentation in an Environmental Impact Statement ("EIS") or Environmental Assessment ("EA") if the proposed action normally does not have a significant effect on the quality of the human environment, unless "scoping" has indicated either the presence of extraordinary circumstances, or that the proposed action may in fact have a significant effect on the environment. Forest Service Environmental Policy and Procedures Handbook ("FSH 1909.15") §§ 30.3, 31.1b, (Paper 8, Att. 5).

[2] A major federal action includes an action with effects that may be major and which is potentially subject to Federal control and responsibility, such as approval of a specific project, whether by permit or other regulatory decision. 40 C.F.R. § 1508.18 (1997). A major federal action may encompass action by non-federal actors if the federal agency has the authority to influence significant non-federal activity. Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988).

[3] The SLEA provides in its entirety:

(a) Exchange or sale of land.

(1) If Sugarbush Resort Holdings, Inc. conveys to the United States land acceptable to the Secretary of Agriculture that is at least equal in value to the value of the land described in subsection (a) (2), makes a payment of cash at least equal to that value, or conveys land and makes a payment of cash that in combination are at least equal to that value, the Secretary, subject to valid existing rights, shall, under such terms and conditions as the Secretary may prescribe, convey all right, title, and interest of the United States in and to the land described in subsection (a) (2).

(2) Federal land to be exchanged. The Federal land to be exchanged is approximately 57 acres of federally owned land in the Green Mountain National Forest depicted on the map entitled "Green Mountain National Forest, Sugarbush Exchange," dated December 1995.

(3) Lands acquired from Sugarbush Resort Holdings, Inc. Any land conveyed to the United States in an exchange under subsection (a) (1) shall be subject to such valid existing rights of record as may be acceptable to the Secretary, and the title to the parcel shall conform with the title approval standards applicable to federal land acquisitions.

(b) Administration of land.

(1) Addition to green mountain national forest. On approval and acceptance of title by the Secretary, the land acquired by the United States through an exchange or with proceeds from a sale under subsection (a) shall become part of the Green Mountain National Forest, and the boundaries of the National Forest shall be adjusted to include the land.

(2) Administration. Land acquired under this Act shall be administered by the Secretary in accordance with the laws (including regulations) pertaining to the National Forest System.

(3) Authority of the secretary. This section does not limit the authority of the Secretary to adjust the boundaries of the Green Mountain National Forest pursuant to section 11 of the Act of March 1, 1911 (36 Stat. 963, chapter 186; 16 U.S.C. 521) (commonly known as the "Weeks Law").

(4) For the purposes of section 7 of the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 4601-9), the boundaries of the Green Mountain National Forest as adjusted under this Act, shall be considered to be the boundaries of the Green Mountain National Forest as of January 1, 1965.

Pub.L. No. 104-208, § 326, 110 Stat. 3009 (1996).

[4] In addition, according to the SLEA, the land SRHI conveys and/or the cash payment it makes to the United States must be "equal in value" to the value of the land it receives. An authorized officer of the Forest Service must make a determination, based on a qualified appraiser's report, whether the lands are approximately equal in value. 36 C.F.R. § 254.11 (199.7). An appraisal must include "historic, wildlife, recreation, wilderness, scenic, cultural, or other resource values or amenities as reflected in prices paid for similar properties in the competitive market." 36 C.F.R. § 254.9(b) (1) (iii) (1997). The Forest Service thus has a certain amount of discretion to consider environmental factors in its determination that the lands are equal in value as well.

[5] The legislative history, scant though it is, appears to confirm this limited discretion. The Conference Report's two line reference to the Act states: "Section 326 provides for a land exchange between the Forest Service (Green Mountain National Forest) and Sugarbush Resort Holdings, Inc. as proposed by the Senate. The House had no similar provision." H.R. Conf. Rep. No. 104-863 (1996) U.S.Code Cong. Admin.News 1996, p. 3009 (emphasis supplied). Other sections of the conference report describe statutes which transfer property, mandate boundary modifications, or remove acreage, leaving the agency no discretion to dictate the terms. See id., §§ 321, 325, 327. Where land exchange is authorized, or provided for,the statutes afford the Secretary some discretion, while still requiring the conveyance of "all right, title and interest." See id., §§ 324, 326. But see § 323, where "authorized" afforded discretion to convey "any interest."

[6] The Court notes that the Forest Service has stated publicly that it intends to retain a road right-of-way easement as part of the land exchange, in apparent contradiction of its position stated in court that it lacks the discretion to do so. EA, "Mitigation Measures," ¶ 9 (Paper 8, Att. 4).

[7] An EIS is the detailed written statement required by 42 U.S.C. § 4332(C). An EA is a more concise document prepared to ascertain whether an EIS is necessary, to facilitate preparation of an EIS, or to aid agency compliance when an EIS is not necessary. 40 C.F.R. § 1508.9(a) (1997).

Case Report: Dubois and RESTORE: The North Woods v. USDA Forest Service and Loon Mountain

United States Court of Appeals,First Circuit.

 

Roland C. DUBOIS and Restore:  The North Woods, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., and Loon Mountain Recreation Corporation, Defendants, Appellees.

Nos. 96-1015, 96-1068.

    Decided: December 19, 1996

Before SELYA, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges. Roland C. Dubois, Washington, DC, pro se. Cindy Ellen Hill, Middlebury, VT, for plaintiff-appellant RESTORE:  The North Woods. Jeffrey P. Kehne, Washington, DC, with whom Lois J. Schiffer, Assistant Attorney General, Sylvia Quast, John A. Bryson, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, Paul M. Gagnon, United States Attorney, T. David Plourde, Assistant United States Attorney, Concord, NH, Wendy M. John, Stuart L. Shelton, Office of the General Counsel, U.S. Department of Agriculture, Washington, DC, and Leslie M. Auriemmo, Office of the General Counsel, U.S. Department of Agriculture, Milwaukee, WI, were on brief for defendants-appellees U.S. Department of Agriculture;  Daniel Glickman, Secretary, U.S. Department of Agriculture;  Jack Ward Thomas, Chief, U.S. Forest Service;  Robert Jacobs, Regional Forester, Eastern Region, U.S. Forest Service;  Donna Hepp, Forest Supervisor, White Mountain National Forest. James L. Kruse, Concord, NH, with whom Gallagher, Callahan & Gartrell, P.A., were on brief for defendant-appellee Loon Mountain Recreation Corporation.

The defendant-intervenor Loon Mountain Recreation Corporation (“Loon Corp.”) operates a ski resort in the White Mountain National Forest in Lincoln, New Hampshire.   In order to expand its skiing facilities, Loon Corp. sought and received a permit to do so from the United States Forest Service.1  Appellant Roland Dubois sued the Forest Service alleging violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., the Administrative Procedure Act, 5 U.S.C. § 501, et seq.  (“APA”), and Executive Order 11,990, 42 Fed.Reg. 26,961 (1977), reprinted as amended in 42 U.S.C.A. § 4321 (West 1994).   Appellant RESTORE:  The North Woods (“RESTORE”) intervened as a plaintiff claiming violations of the same statutes, and appellee Loon Corp. intervened as a defendant.   Dubois and RESTORE (collectively referred to as “plaintiffs”) and the Forest Service filed cross-motions for summary judgment, and Loon moved to dismiss.   The district court granted the Forest Service's motion for summary judgment and denied the other motions.   We affirm in part, reverse in part, and remand.

I. STATEMENT OF THE CASE

A. Facts

The White Mountain National Forest (“WMNF”) is a public resource managed by the United States Forest Service for a wide range of competing public uses and purposes, including “outdoor recreation, range, timber, watershed, ․ wildlife and fish purposes,” 16 U.S.C. § 528 (1994), and skiing, 16 U.S.C. § 497(b) (1994).   Pursuant to the National Forest Management Act of 1976, the Forest Service makes long-term plans to coordinate these competing uses, 16 U.S.C. § 1604(e)(1) (1994), and issues “special use” permits authorizing private recreational services on national forest land, 36 C.F.R. §§ 251.50-.65 (1995).   The Forest Service's exercise of its permitting authority is legally constrained by environmental considerations emanating, inter alia, from NEPA, the CWA, and Executive Order 11,990.

Loon Pond is located in the WMNF at an elevation of 2,400 feet.   It has a surface area of 19 acres, with shallow areas around the perimeter and a central bowl 65 feet deep.   It is unusual for its relatively pristine nature.   There is virtually no human activity within the land it drains except skiing at the privately owned Loon Mountain Ski Area. New Hampshire Department of Environmental Services (“NHDES”) regulations classify Loon Pond as a Class A waterbody, protected by demanding water quality standards under a variety of criteria, see N.H.Code Admin. R. Env-Ws 432.03, and as an Outstanding Resource Water (“ORW”), protected against any measurable long-term degradation by the State's anti-degradation rules, see id. 437.06;  40 C.F.R. § 131.12(a)(3) (1995).   It ranks in the upper 95th percentile of all lakes and ponds in northern New England for low levels of phosphorus, which results in limited plant growth and therefore high water clarity and higher total biological production.   The pond supports a rich variety of life in its ecosystem.   Loon Pond also constitutes a major source of drinking water for the town of Lincoln 1,600 feet below it.   A dam across the outlet of the Pond regulates the flow of water from the Pond to Lincoln's municipal reservoir.

Loon Corp., defendant-intervenor herein, owns the Loon Mountain Ski Area, which has operated since the 1960s not far from Loon Pond.   Prior to the permit revision that gave rise to this litigation, Loon Corp. held a special use permit to operate on 785 acres of WMNF land.   That permit allowed Loon Corp. to draw water (“drawdown”) for snowmaking from Loon Pond, as well as from the East Branch of the Pemigewasset River (“East Branch”) and from nearby Boyle Brook.   In order to use water from Loon Pond, Loon Corp. also needed authorization from the Town of Lincoln and the State of New Hampshire.   Beginning in 1974, Loon Corp. was authorized to pump snowmaking water from Loon Pond down to 18 inches below full level.2  A 1988 amendment to this agreement permitted drawdown below the 18-inch level on a case-by-case basis.   Combined uses by Lincoln and Loon Corp. during the period governed by these agreements typically caused four- to six-foot fluctuations in the level of Loon Pond.

In addition to being used as a source of water for snowmaking, Loon Pond has been the repository for disposal of water after it is pumped through the snowmaking system.3  This includes water that originally came from Loon Pond, as well as water that originated in the East Branch or in Boyle Brook.   Approximately 250,000 gallons of East Branch water have been transferred into Loon Pond each year in this manner.   Obviously the water discharged into Loon Pond contains at least the same pollutants that were present in the intake water.   Evidence in the record indicates that intake water taken from the East Branch contains bacteria, other aquatic organisms such as Giardia lambia, phosphorus, turbidity and heat.   Evidence was also introduced in court, but not available prior to the issuance of the Environmental Impact Statement (“EIS”), that oil and grease were present in the discharge water, although their source was disputed.

In 1986, Loon Corp. applied to the Forest Service for an amendment to its special use permit to allow expansion of its facilities within the WMNF.   Pursuant to NEPA, 42 U.S.C. § 4332, the Service developed a draft EIS, and a supplement to the draft.   Responding to criticism of the adequacy of those documents, the Forest Service issued a revised draft EIS (“RDEIS”), which was published for public comment.   The RDEIS set forth five alternatives to meet the perceived demand for additional alpine skiing.   All five were located at the Loon Mountain site.4

Many individuals and groups, including both plaintiffs, filed comments pointing out various environmental problems with each alternative that involved expanding the ski area.   One lengthy comment from the U.S. Environmental Protection Agency (“EPA”) expressed its concern that the use of Loon Pond for snowmaking purposes would “use Loon Pond like a cistern” instead of treating it “with care” because it is “acknowledged to be one of the rare high altitude ponds of its size in the White Mountains.”   Joint Appendix (“JA”), vol. II, Response to Public Comment on RDEIS at A-78.   Other commenters suggested that Loon Corp. be required to build artificial water storage ponds, in order to eliminate the problem of depleting Loon Pond when withdrawing water for snowmaking as well as the problem of adding pollutants to Loon Pond when discharging water into the Pond after use.

During the EIS process, Ron Buso, a hydrologist for the WMNF, expressed concern to another Forest Service hydrologist that the proposed drawdown of Loon Pond by twenty feet was likely to have a severe impact on the Pond.   He explained that natural snowmelt in New Hampshire is extremely acidic and that, as a result of the planned drawdown, a substantial amount of acidic snowmelt would remain in Loon Pond, increasing the Pond's acidity by a factor of two to three times what it would be without the planned drawdown.   Without the drawdown, Loon Pond would be relatively full in the spring, and much of the snowmelt from surrounding higher elevations would glide over the surface of the Pond and down the mountain without significantly mixing with other Loon Pond water.   According to Buso and a number of scientists whose affidavits were submitted to the district court, the increase in the Pond's acidity due to the planned drawdown would change the chemistry of the Pond, cause toxic metals to be released from the sediment, and kill naturally occurring organisms.

Without addressing the issues raised in the Buso memorandum or in the comments suggesting artificial storage ponds, the Forest Service prepared a Final EIS (“FEIS”).   The FEIS added a sixth alternative, also on the Loon Mountain site.   The new alternative provided for expansion of Loon Corp.'s permit area by 581 acres and for the construction of one new lift and approximately 70 acres of new ski trails, changes designed to accommodate 3,200 additional skiers per day (from the current 5,800 per day).   The Forest Service deemed Alternative 6 as the preferred alternative.   Under it, Loon Corp. would more than double the amount of water used for snowmaking, from 67 million gallons per year to 138 million gallons.   Seventeen million gallons of the increase would be drawn from the East Branch, and 54 million gallons from Loon Pond.   In addition, Loon Corp. was authorized to draw the Pond down for snowmaking by fifteen feet, compared to the current eighteen inches.   The Forest Service assumed that the Town of Lincoln would need up to an additional five feet of Pond water, making a total of twenty feet that the Pond was expected to be drawn down each year.   This would constitute approximately 63% of the Pond's water.   In March 1993, the Forest Service published a Record of Decision (ROD) adopting Alternative 6.

As a mitigation measure to blunt the adverse environmental impact on Loon Pond, the Forest Service required Loon Corp. to pump water from the East Branch to Loon Pond in December and May of each year if the Pond was not otherwise full at those times.   In its FEIS, the Forest Service recognized that the East Branch is a relatively unprotected Class B waterway under New Hampshire law, and that transfer of East Branch water to Loon Pond, a protected Class A waterbody and Outstanding Resource Water under state and federal law, would introduce pollutants into the Pond. Accordingly, it specified that this transfer of East Branch water could not occur if it exceeded certain levels of turbidity, bacteria, or oil and grease.   Neither the FEIS nor the ROD set any limits, however, on the level of non-bacterial organisms such as Giardia lambia or on pollutants such as phosphorus that may be present in the transferred water.   Nor did the FEIS indicate an alternative means of refilling Loon Pond-with clean water-if conditions were such that the transfer of East Branch water would exceed the specified levels.5  It did, however, provide a series of restrictions and monitoring requirements for water levels and water quality, including daily testing of the transferred water for turbidity, bacteria, and oil and grease.6

Dubois and RESTORE appealed the ROD to the Regional Forester and, thereafter, to the Chief of the Forest Service.   These appeals were denied.   On March 16, 1994, the Forest Service issued a special use permit to Loon Corp., implementing the decision described in the ROD.

B. Proceedings Below

Plaintiff Dubois filed a complaint in the United States District Court for the District of Columbia,7 challenging the Forest Service's approval of the Loon Mountain expansion project.   He made three arguments.8  First, he argued that the Forest Service actions violated the CWA because they would lead to violations of state water quality standards which, he asserted, have the effect of federal law because they were approved by the federal EPA.   Second, he argued that the Forest Service violated both NEPA and Executive Order 11,990 by failing to consider alternatives to the use of Loon Pond and failing to develop adequate mitigation measures.   Finally, he argued that the Forest Service violated the CWA, 33 U.S.C. § 1311, by failing to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before approving Loon Corp.'s expansion plans, which entailed removing water from the East Branch, using it to pressurize and prevent freezing in its snowmaking equipment, and then discharging the used water into Loon Pond. According to Dubois, an NPDES permit was required in order for Loon Corp. to discharge pollutants into Loon Pond, including the discharge from Loon Corp.'s snowmaking equipment.

Plaintiff RESTORE, a membership organization, intervened on behalf of its members to challenge the project.   RESTORE first reiterated Dubois' claim that an NPDES permit was required.   In addition, RESTORE claimed that the Forest Service violated NEPA by failing to prepare a Supplemental EIS after it developed Alternative 6 as the preferred alternative.   According to RESTORE, this new alternative, not specifically mentioned in the previously published draft EIS or RDEIS, contained substantial changes to the proposed action that are relevant to environmental concerns, which required a supplemental EIS under NEPA and relevant implementing regulations.   Finally, RESTORE claimed that a supplemental EIS was required because the Forest Service's Final EIS failed to “rigorously explore and objectively evaluate all reasonable alternatives” that are capable of meeting the stated goals of the project, as required by 40 C.F.R. § 1502.14 (1995).   According to RESTORE, the asserted goal of meeting skier demand could have been met by expanding ski areas other than Loon, in particular, ski areas located outside the White Mountain National Forest.

The parties cross-moved for summary judgment.   Loon Corp. intervened, and moved to dismiss on the ground that both plaintiffs lacked standing.   The district court denied Loon Corp.'s motion to dismiss, granted summary judgment for the Forest Service, and denied the plaintiffs' cross-motions for summary judgment.

II. DUBOIS' STANDING 9

The ingredients of standing are imprecise and not easily susceptible to concrete definitions or mechanical applications.  Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).   In order to have standing to sue, a plaintiff must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ․ questions.”  Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

Standing consists of both a constitutional aspect and a prudential aspect.   The constitutional dimension derives from the requirement that federal courts can act only upon a justiciable case or controversy.  U.S. Const. art. III.   If a party lacks Article III standing to bring a matter before the court, the court lacks subject matter jurisdiction to decide the merits of the underlying case.  FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990).

To satisfy the constitutional component of standing, a plaintiff must have suffered an “injury in fact,” i.e., an invasion of a legally protected interest.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).   That injury must be “concrete and particularized”;  the latter term means the injury must be personal to the plaintiff.  Id. at 560 & n. 1, 112 S.Ct. at 2136 & n. 1.   It may be shared by many others, United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687-88, 93 S.Ct. 2405, 2415-16, 37 L.Ed.2d 254 (1973), but may not be common to everyone, see Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).   The injury must also be “actual or imminent, not conjectural or hypothetical,” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136 (quotation omitted), and it must be “distinct and palpable,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206.   The latter requirement may be satisfied by environmental or aesthetic injuries.   See SCRAP, 412 U.S. at 686, 93 S.Ct. at 2415;  Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).   The injury need not be “significant”;  a “small” stake in the outcome will suffice, if it is “direct.”  SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. at 2417 n. 14. In addition, the injury must be fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.10  Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136.

The doctrine of standing also includes prudential concerns relating to the proper exercise of federal jurisdiction.   Among these concerns is the requirement that “a plaintiff's complaint fall within the zone of interests protected by the law invoked.”  Allen, 468 U.S. at 751, 104 S.Ct. at 3324.   In addition, as a general rule, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”  Warth, 422 U.S. at 499, 95 S.Ct. at 2205.   A membership organization constitutes an exception to this general rule:  it may assert the claims of its members, provided that one or more of its members would satisfy the individual requirements for standing in his or her own right.11  See UAW v. Brock, 477 U.S. 274, 281-82, 106 S.Ct. 2523, 2528-29, 91 L.Ed.2d 228 (1986).

The burden falls on the plaintiff “clearly to allege facts demonstrating that he is a proper party to invoke” federal jurisdiction.  Warth, 422 U.S. at 518, 95 S.Ct. at 2215.   The plaintiff must “set forth reasonably definite factual allegations, either direct or inferential, regarding each material element needed to sustain standing.”  United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992).  “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”  Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2136.   At the pleading stage, “general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ ”  Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990)).

The district court denied Loon Corp.'s motion to dismiss Dubois' claims on standing grounds, relying on our precedent in Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971-72 (1st Cir.1993).   In that case, we held that the court need not determine the standing of all plaintiffs if at least one plaintiff has standing to maintain each claim.   The district court found that RESTORE had standing to bring all the claims at issue in this case, and, therefore, that the court could reach the merits of all claims without first addressing Dubois' standing.   We agree that RESTORE would have standing to raise, on behalf of its members, all the issues in dispute in this litigation.   But the district court erred in concluding that it could therefore reach the merits of all claims, because the district court's premise was incorrect:  RESTORE did not, even at the district court level, raise the issues relating to Executive Order 11,990 and the state water quality standards, which only Dubois is pursuing here.   The situation is not, therefore, analogous to Washington Legal Foundation;  if Dubois has no standing, we cannot decide issues that RESTORE has never raised.

 We find, however, that Dubois does satisfy all requirements for standing to litigate the claims he seeks to pursue on appeal.   His second amended complaint 12 alleged that

[his] principal residence from 1959-1977 was in Lincoln, New Hampshire.  [He] has returned to the Lincoln area at least once per year-and occasionally up to twelve or more times per year-since 1977.   During these trips, [he] has visited relatives and friends, collected botanical samples for scientific analysis, and engaged in recreational activities in and around the WMNF and the Loon Mountain Ski Area.   Plaintiff's interest in the environmental, recreational and aesthetic quality of the WMNF are and will be adversely affected by the Defendants' actions challenged in this Complaint.

Second Amended Complaint, ¶ 5. The last sentence is rather conclusory, but the entire complaint, taken together with inferences reasonably drawn from its allegations, contains sufficient “reasonably definite factual allegations,” AVX, 962 F.2d at 115, to survive a motion to dismiss.

“We are mindful that, under the notice pleading requirements of the federal rules, the allegations of the complaint should be construed favorably to the complainant on a motion to dismiss.”  Papex Int'l Brokers v. Chase Manhattan Bank, 821 F.2d 883, 886 (1st Cir.1987).   Moreover, as noted supra, at the pleading stage, “we presum[e] that general allegations embrace those specific facts that are necessary to support the claim.”  Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2137 (quotation omitted).   Further, the record reveals that the district court had adduced additional information during its consideration of the standing issue.   See AVX, 962 F.2d at 114 n. 6 (appellate court considering standing issue went beyond the complaint “in a record-wide search for facts supporting” the claim of standing).   Dubois' local counsel represented to the court that Dubois continues to return “regularly,” at least annually, to his parents' home in Lincoln;  that he drinks the water from the “Town of Lincoln water supply that comes down from Loon Pond”;  that he “walks those mountains” in the WMNF.   Transcript of Hearing, June 14, 1995, at 7-9.   The court expressed its understanding of Dubois' standing allegations as follows:

Mr. Dubois' injury in fact is he periodically comes back to the area and enjoys its natural beauty and will be injured by not being able to experience its natural beauty if the project is allowed to go forward?  ․ It's not a case of someone who's simply saying I'm an environmentalist and I want to protect the environment, which everybody presumably has an interest in doing.   It's somebody who says I'm back there a lot, I drink the water a lot, I'm up there in the woods a lot, and this is going to hurt me.

Id. at 8, 12.

We think it useful to compare the facts here with those alleged in AVX, 962 F.2d at 116-17.   In AVX, the plaintiff organization had simply made conclusory allegations that its “members have been and will continue to be harmed by the releases that [were] the subject of [that] litigation”;  its “averment [had] no substance:  the members [were] unidentified;  their places of abode [were] not stated;  the extent and frequency of any individual use of the affected resources [was] left open to surmise.”  Id.  This court in AVX pointed to the allegations in SCRAP, 412 U.S. 669, 93 S.Ct. 2405, as attenuated as they were, in which “there was a geographic nexus;  all the association's members resided in a single, defined metropolitan area, directly affected by the challenged action․  In SCRAP, unlike [AVX ], the claimed environmental injury was tied to the particular pursuits of particular persons.”  AVX, 962 F.2d at 117.

The instant case, in contrast with AVX, presents a particular person, whose family home is located squarely within the geographical area allegedly directly affected by the proposed project, who visits the area regularly, who drinks the water which will allegedly be tainted by pollutants, and who will allegedly be deprived of his environmental, aesthetic and scientific interests in ways directly tied to the project he challenges.   These are the types of interests which the Supreme Court has held-when asserted by an organization such as RESTORE on behalf of its members-satisfy the constitutional requirements for standing.   See SCRAP, 412 U.S. at 685-87, 93 S.Ct. at 2415-16;  Sierra Club v. Morton, 405 U.S. at 734-35 & n. 8, 92 S.Ct. at 1366 & n. 8;  see also supra, note 10.   There is certainly no reason why an organization would have standing to raise these interests on behalf of its members, but an individual such as Dubois would not have standing to raise the same interests on his own behalf.

Thus, with the degree of specificity necessary at the pleading stage, Dubois has articulated-directly and by inference-how his personal interests will be adversely affected by the Loon expansion proposal.13  Finally, his injuries are “likely to be redressed” by the relief he has requested in the complaint:  inter alia, an injunction against the project's proceeding.   See Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136.

As for the prudential standing requirements, there is no dispute that the violations and injuries alleged in the complaint are the sort that NEPA, the CWA, and the Executive Order were “specifically designed” to protect.   See Lujan v. National Wildlife Federation, 497 U.S. at 886, 110 S.Ct. at 3187.   Moreover, our discussion above related only to Dubois' own legal rights and interests, not those of third parties.   Accordingly, we find that Dubois has standing to litigate the claims he seeks to pursue on appeal.

III. STANDARD OF REVIEW

The district court's order granting summary judgment is subject to de novo review.  Borschow Hosp. and Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 14 (1st Cir.1996);  Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir.1992).   We independently weigh the merits of the summary judgment motions “without deference to the reasoning of the district court.”   Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir.1994).   Accordingly, we must reverse the court's grant of summary judgment unless “there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.”  Fed.R.Civ.P. 56(c).   In analyzing the issues, we will review the record in the light most favorable to the non-movants, and make all inferences in their favor.  Borschow, 96 F.3d at 14;  Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990).

It is well established that a reviewing court may not set aside administrative decisions “simply because the court is unhappy with the result reached.”  Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc. (“NRDC”), 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978)).   The fundamental policy questions are “appropriately resolved in Congress and in the state legislatures”;  they “are not subject to reexamination in the federal courts under the guise of judicial review of agency action.” 14  Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219.   Courts may set aside agency decisions “only for substantial procedural or substantive reasons as mandated by statute.”  Id.

The applicable statutes here are NEPA and the CWA.   NEPA requires that the agency take a “hard look” at the environmental consequences of a project before taking a major action.  Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)).   It is the role of the courts on judicial review to ensure “that this legal duty is fulfilled.”  Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985).

Congress, in enacting NEPA, meant “to insure a fully informed and well-considered decision.”  Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219.   But NEPA “does not mandate particular results”;  it “simply prescribes the necessary process.”  Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989).  “If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.”  Id.;  see also Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252.   Thus, “[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.”  Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. at 2252 (emphasis added).

Like NEPA, the CWA does not articulate its own standard of review;  therefore the appropriate scope of review for both NEPA claims and CWA claims is the standard set forth in the APA.  5 U.S.C. § 706(2)(A) (1994);  see Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir.1992);  Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 851-52 (9th Cir.1987).

Under the APA, “[t]he reviewing court shall ․ hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”   5 U.S.C. § 706(2)(A).   Errors of law are reviewed by the court de novo.   5 U.S.C. § 706 (1994) (“the reviewing court shall decide all relevant questions of law”);  Howard v. FAA, 17 F.3d 1213, 1215 (9th Cir.1994).

On the other hand, the task of a court reviewing agency action under the APA's “arbitrary and capricious” standard, 5 U.S.C. § 706(2), is “to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made.”  Baltimore Gas, 462 U.S. at 105, 103 S.Ct. at 2256 (emphasis added) (citations omitted);  see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983);  Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974);  Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814 823-24, 28 L.Ed.2d 136 (1971).   If the agency decision was based on a consideration of the relevant factors and there has not been “a clear error of judgment,” then the agency decision was not arbitrary or capricious.   Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24;  Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989).

In State Farm, the Supreme Court offered several examples of circumstances in which an agency action “normally” would be considered arbitrary and capricious:  situations where “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”   State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.   These are merely “examples,” Puerto Rico Sun Oil Co. v. U.S. EPA, 8 F.3d 73, 77 (1st Cir.1993);  others could be recited as well.   Whether reviewing an EIS or a rulemaking proceeding, the “reviewing court should not attempt itself to make up for such deficiencies;  we may not supply a reasoned basis for the agency's action that the agency itself has not given.”  State Farm, 463 U.S. at 43, 103 S.Ct. at 2867 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947)).

“While this is a highly deferential standard of review, it is not a rubber stamp.”  Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir.1995).   Although “the ultimate standard of review is a narrow one,” the court must undertake a “thorough, probing, indepth review” and a “searching and careful” inquiry into the record.15  Overton Park, 401 U.S. at 415-16, 91 S.Ct. at 823-24.   In order for an agency decision to pass muster under the APA's “arbitrary and capricious” test, the reviewing court must determine that the decision “makes sense.”  Puerto Rico Sun Oil, 8 F.3d at 77.   Only by “carefully reviewing the record and satisfying [itself] that the agency has made a reasoned decision” can the court “ensure that agency decisions are founded on a reasoned evaluation of the relevant factors.”   Marsh, 490 U.S. at 378, 109 S.Ct. at 1861 (internal quotation omitted).

IV. THE NEPA/EIS ISSUE

The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., declares a broad national commitment to protecting and promoting environmental quality.  Robertson, 490 U.S. at 348, 109 S.Ct. at 1844-45, 42, U.S.C. § 4331 (1994).   The primary mechanism for implementing NEPA is the Environmental Impact Statement (EIS).  42 U.S.C. § 4332 (1994).   The EIS is an “action-forcing” procedure, designed “[t]o ensure that this commitment is infused into the ongoing programs and actions of the Federal Government.”  Robertson, 490 U.S. at 348, 109 S.Ct. at 1845 (quotation omitted).

NEPA requires that an agency considering any action that would have a significant impact on the environment prepare an EIS. The EIS must contain a “detailed statement” including, inter alia, the environmental impacts of the proposed project, and all reasonable alternatives to the project.  42 U.S.C. § 4332(C) (emphasis added).   We previously emphasized the word “detailed” because “it connotes the careful, reasoned and fully explained analysis which we think Congress intended.”  Silva v. Lynn, 482 F.2d 1282, 1284 n. 2 (1st Cir.1973).   Thus, the EIS helps satisfy NEPA's “twin aims”:  to ensure that the agency takes a “hard look” at the environmental consequences of its proposed action, and to make information on the environmental consequences available to the public, which may then offer its insight to assist the agency's decision-making through the comment process.   See Robertson, 490 U.S. at 350, 356, 109 S.Ct. at 1846, 1849;  Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252.   The EIS thus “helps insure the integrity of the process of decision,” providing a basis for comparing the environmental problems raised by the proposed project with the difficulties involved in the alternatives.  Silva v. Lynn, 482 F.2d at 1285.

A. Consideration of Environmental Impacts

 In its EIS, the agency must “consider every significant aspect of the environmental impact of a proposed action,” Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252 (quoting Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216), and “evaluate different courses of action,” Kleppe, 427 U.S. at 410, 96 S.Ct. at 2730.   The EIS's discussion of environmental impacts “forms the scientific and analytic basis for the comparisons” of alternatives, 40 C.F.R. § 1502.16 (1995), which are “the heart” of the EIS, id. at § 1502.14;  see Part IV(B), infra.   The discussion of impacts must include both “direct and indirect effects (secondary impacts) of a proposed project.”   Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992);  40 C.F.R. § 1502.16(b).   The agency need not speculate about all conceivable impacts, but it must evaluate the reasonably foreseeable significant effects of the proposed action.  Sierra Club v. Marsh, 976 F.2d at 767.   In this context, reasonable foreseeability means that “the impact is sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.”  Id.  An environmental effect would be considered “too speculative” for inclusion in the EIS if it cannot be described at the time the EIS is drafted with sufficient specificity to make its consideration useful to a reasonable decision-maker.  Id. at 768.   Nevertheless, “[r]easonable forecasting ․ is ․ implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’ ”   Scientists' Inst. for Pub. Info. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C.Cir.1973).

Plaintiffs contended in the district court that the Forest Service failed to adequately assess the impact of Loon Corp.'s planned expansion on Loon Pond.   Plaintiffs listed a number of specific areas of concern.   The district court found the Forest Service's consideration of environmental impacts to be adequate, and plaintiffs have not appealed this point.   Accordingly, we need not pursue this issue here.

B. Consideration of Alternatives

 “[O]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences” of a proposed action.  Robertson, 490 U.S. at 351, 109 S.Ct. at 1846.   As one aspect of evaluating a proposed course of action under NEPA, the agency has a duty “to study all alternatives that appear reasonable and appropriate for study ․, as well as significant alternatives suggested by other agencies or the public during the comment period.”  Roosevelt Campobello Int'l Park Comm'n v. United States EPA, 684 F.2d 1041, 1047 (1st Cir.1982) (quotations omitted);  Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 462 (1st Cir.1989);  City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 95 F.3d 892, 903 (9th Cir.1996).

 As stated in the Council on Environmental Quality (“CEQ”) regulations implementing NEPA, the consideration of alternatives is “the heart of the environmental impact statement.”  40 C.F.R. § 1502.14. These implementing regulations are entitled to substantial deference.  Robertson, 490 U.S. at 355, 109 S.Ct. at 1848 (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979)).   The regulations require that the EIS “[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.”  40 C.F.R. § 1502.14(a).   It is “absolutely essential to the NEPA process that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, a requirement that we have characterized as ‘the linchpin of the entire impact statement.’ ”  NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir.1975) (citation omitted);  see Silva v. Lynn, 482 F.2d at 1285;  All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir.1992) (holding that a thorough discussion of the alternatives is “imperative”).  “The ‘existence of a viable but unexamined alternative renders an environmental impact statement inadequate.’ ”   Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1993) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992));  see Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980) (Even the existence of supportive studies and memoranda contained in the administrative record but not incorporated in the EIS cannot “bring into compliance with NEPA an EIS that by itself is inadequate.”).   Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well-reasoned.  Grazing Fields Farm, 626 F.2d at 1072;  see Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir.1983).

C. The Requisite Level of Detail

 One purpose of the EIS requirement is to “provide decisionmakers with sufficiently detailed information to aid in determining whether to proceed with the action in light of its environmental consequences.”  Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 56 F.3d 1060, 1064 (9th Cir.1995).   What level of detail is sufficient depends on the nature and scope of the proposed action.  Valley Citizens, 886 F.2d at 463;  Mumma, 956 F.2d at 1520.   The discussion of environmental effects of alternatives need not be exhaustive.  “[W]hat is required is information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned,” All Indian Pueblo Council, 975 F.2d at 1444 (quoting NRDC v. Morton, 458 F.2d 827, 836 (D.C.Cir.1972));  see also Carmel-By-The-Sea, 95 F.3d at 903, information sufficient for the agency to “[r]igorously explore and objectively evaluate” all reasonable alternatives.  40 C.F.R. § 1502.14(a);  All Indian Pueblo Council, 975 F.2d at 1444.

 The courts have applied “a rule of reason in determining whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.”  Carmel-By-The-Sea, 95 F.3d at 899 (quotation omitted);  see also Grazing Fields Farm, 626 F.2d at 1074;  Massachusetts v. Andrus, 594 F.2d 872, 884 (1st Cir.1979);  cf. Marsh, 490 U.S. at 373, 109 S.Ct. at 1859 (supplemental EIS).   One aspect of this determination is whether the agency has gone “beyond mere assertions and indicate[d] its basis for them.”  Silva v. Lynn, 482 F.2d at 1287.   The agency “must ‘explicate fully its course of inquiry, its analysis and its reasoning.’ ”  Massachusetts v. Andrus, 594 F.2d at 883 (quoting Silva v. Lynn, 482 F.2d at 1284-85).   The court must determine whether, in the context of the record, the agency's decision-and the analysis on which it is based-is too unreasonable for the law to permit it to stand.   See Sierra Club v. Marsh, 976 F.2d at 769.   We apply a rule of reason because courts should not “fly speck” an EIS and hold it insufficient based on inconsequential or technical deficiencies.  Swanson v. U.S. Forest Service, 87 F.3d 339, 343 (9th Cir.1996).  “The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible․  But implicit in this rule of reason is the overriding statutory duty of compliance with impact statement procedures to the fullest extent possible.”   Scientists' Inst., 481 F.2d at 1092 (quotations omitted).   The agency must “squarely turn[ ]” all “procedural corners” in its EIS.  Citizens Awareness Network, 59 F.3d at 290 (quoting Adams, 38 F.3d at 49).   The question whether a particular deficiency or combination is sufficient to warrant holding it legally inadequate, or constitutes merely a “fly speck,” is essentially a legal question, reviewable de novo.  Oregon Environmental Council v. Kunzman, 817 F.2d 484, 493 (9th Cir.1987).

 Applying these standards to the instant case, we conclude that the Forest Service has not rigorously explored all reasonable alternatives, in particular the alternative that Loon Corp. be required to build artificial water storage ponds, instead of withdrawing water for snowmaking from, and discharging water into, an “outstanding resource water” like Loon Pond.   The adverse environmental impacts of using Loon Pond were before the agency, and more than one commenter proposed building artificial water storage ponds, a proposal that would, on its face, avoid some of those adverse impacts.   One such commenter, Paul Beaudin of the Lincoln Committee of Concerned Citizens (LCCC), enclosed clippings pointing up “the wisdom of [Loon Corp.'s] need to enact the LCCC's proposal for water containment pond[s] high up on the Boyle Brook.”   JA, vol. II, Response to Public Comment on RDEIS at A-12.   The LCCC proposal itself, made two months earlier, referred to a letter from the National Ecology Research Center recommending consideration of water storage alternatives other than Loon Pond, and enclosed a map indicating where up to three containment ponds could be installed.   LCCC listed some nine advantages, including the cost-saving factor of servicing two-thirds to three-fourths of Loon Corp.'s snowmaking system by gravity feed.16

Instead of “rigorously explor[ing]” the alternative of using artificial water storage units instead of Loon Pond, the Forest Service's Final EIS did not respond to these comments at all.   The agency did not in any way explain its reasoning or provide a factual basis for its refusal to consider, in general, the possibility of alternatives to using Loon Pond for snowmaking, or LCCC's reasonably thoughtful proposal in particular.17  This failure violated the Forest Service's EIS obligation under NEPA.   See 40 C.F.R. § 1502.9(b) (1995);  42 U.S.C. § 4332(C)(iii) (1994).

The use of artificial storage ponds is not so facially implausible that it can be dismissed out of hand.   The Forest Service, on another occasion, required the Sugarbush Ski Area in Vermont to construct, for its snowmaking operations, three artificial water storage ponds capable of holding 123.5 million gallons of water on 22.9 acres of private land.   JA, vol. I, at 457, 465.   This is 73% more than the 71 million gallons of water that the ROD estimates would be withdrawn from Loon Pond under the approved Loon Mountain expansion project.   Beaudin/LCCC proposed constructing three similar ponds in the Boyle Brook area high up Loon Mountain.   In addition, the record contains evidence that Loon Corp. owns 365 acres of private land at the base of the ski area, where similar storage ponds could be constructed, and that such ponds could be filled with water from the East Branch, which is typically high enough in the spring to contribute to flooding in downstream areas.

Our conclusion is buttressed by NEPA's requirement that an agency consider and an EIS discuss “steps that can be taken to mitigate the adverse environmental consequences” of a proposed project.   See Robertson, 490 U.S. at 351, 109 S.Ct. at 1846.   Even though there is no requirement that the agency reach a particular substantive result, such as actually formulating and adopting a complete mitigation plan, the agency must discuss “the extent to which adverse effects can be avoided,” i.e., by mitigation measures, “in sufficient detail to ensure that environmental consequences have been fairly evaluated.”  Id. at 352, 109 S.Ct. at 1847.   This duty-coupled with the comments alerting the agency to the environmental consequences of using Loon Pond for snowmaking and suggesting the containment pond solution-required the Forest Service to seriously consider this alternative and to explain its reasoning if it rejected the proposal.

Nor can the Forest Service claim that its failure to consider an alternative to using Loon Pond for snowmaking was a de minimis or “fly speck” issue.   The record indicates serious adverse consequences to Loon Pond if it is used “as a cistern,” to use EPA's words, and at least a reasonable probability that the use of artificial storage ponds could avoid those consequences.   The existence of this non-de minimis “viable but unexamined alternative renders [the Loon EIS] inadequate.”   See Resources, Inc., 35 F.3d at 1307.

 After the matter had proceeded to court, counsel for the Forest Service argued that constructing artificial storage ponds large enough to serve as an alternative to using Loon Pond would not be a viable alternative for reasons that were conclusorily stated.   The district court accepted this argument.   But this “post hoc rationalization of counsel” cannot overcome the agency's failure to consider and address in its FEIS the alternative proposed by commenters.  State Farm, 463 U.S. at 50, 103 S.Ct. at 2870;  see Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962);  NRDC v. U.S. EPA, 824 F.2d 1258, 1286 n. 19 (1st Cir.1987).   Such post hoc rationalizations are inherently suspect, and in any event are no substitute for the agency's following statutorily mandated procedures.   As noted supra, even if the agency's actual decision was a reasoned one, the EIS is insufficient if it does not properly discuss the required issues.  Grazing Fields Farm, 626 F.2d at 1072.

In sum, how “probing” an investigation NEPA requires of alternatives depends on the circumstances, including the nature of the action at issue.  Valley Citizens, 886 F.2d at 463.   Thus, the reviewing court must be flexible in evaluating the depth of analysis to require in an EIS, because, while NEPA “does not mandate particular results,” it does require that the agency have adequately identified and evaluated a project's environmental consequences.   Robertson, 490 U.S. at 350, 109 S.Ct. at 1846.  “NEPA's success in large part arises from the use of legal concepts [that are flexible] such as ‘reasonableness' and ‘adequacy’ that permit courts to adapt it successfully to so many different kinds of circumstances surrounding so many different kinds of governmental decisions.”  Valley Citizens, 886 F.2d at 463.

Although in Valley Citizens we found the agency's analysis of alternatives “brief but adequate,” 886 F.2d at 462, the contrast with the instant case is instructive.   In Valley Citizens, we found that nothing in the record or in comments on the draft “point[ed] out any inaccuracy” in the agency's cost “descriptions” or in its “discussions” of other non-environmental considerations.  Id.  In contrast, in the instant case, the final EIS contains no “description” or “discussion” whatsoever as to why an alternative source of water such as an artificially created storage pond would be impractical.   The agency has discretion to balance competing concerns and to choose among alternatives, but it must legitimately assess the relative merits of reasonable alternatives before making its decision.

After a searching and careful review of the record in the instant case, we are not convinced that the Forest Service's decision was founded on a reasoned evaluation of the relevant factors, Marsh, 490 U.S. at 378, 109 S.Ct. at 1861, or that it articulated a rational connection between the facts found and the choice made, Baltimore Gas, 462 U.S. at 105, 103 S.Ct. at 2256.   Hence, it acted arbitrarily and capriciously in granting Loon Corp.'s special use permit for the expanded ski resort.   Moreover, because the Forest Service did not satisfy the requirement that it “rigorously explore and objectively evaluate” all reasonable alternatives,18 40 C.F.R. § 1502.14(a), its decision was not in accordance with law.19  See 5 U.S.C. § 706(2)(A).

D. The Preservation Issue

 The Forest Service argues that plaintiffs have not preserved their argument that the agency should have more seriously considered, as an alternative to Loon Pond, some other source for water and some other location to discharge the effluent from Loon Corp.'s snowmaking pipes.   It contends that plaintiffs failed adequately to raise their contentions during the public comment period, so they waived their right to pursue these challenges on their merits.   The Forest Service argues that, “[i]f commenters could require agencies to undertake detailed comparative analyses merely by asserting the superiority of an alternative site, configuration or method, only the imaginations of project opponents would limit the length of EISs and the duration of the NEPA process.”   Forest Service Brief at 53.   Raising the specter of catastrophe only obfuscates the real issues here:  whether the Forest Service adequately considered alternatives to using Loon Pond as a vehicle for Loon Corp.'s snowmaking, with adequacy based on the reasonableness and practicality of the alternatives, and whether the Forest Service adequately explained in its FEIS why it decided against such alternatives.

The Forest Service relies on Roosevelt Campobello:  “In order to preserve an alternatives issue for review, it is not enough simply to make a facially plausible suggestion;  rather, an intervenor must offer tangible evidence that an alternative site might offer a substantial measure of superiority as a site.”  684 F.2d at 1047 (emphasis added) (quotation omitted).   The Forest Service's reliance on Roosevelt Campobello is misplaced.   That case, and the precedents it relied on, dealt with a claim that the agency had not considered all appropriate alternative sites on which to locate a particular project.   Obviously, the number of potential locations for any project is infinite, and an agency cannot be expected to consider seriously every possible location before approving a project.   In such a context, the agency is only required to consider “all alternatives which were feasible and reasonably apparent at the time of drafting the EIS.”  Id.;  see also Seacoast Anti-Pollution League v. Nuclear Regulatory Comm'n, 598 F.2d 1221, 1229 (1st Cir.1979) (Agency need not “ferret out every possible alternative, regardless of how uncommon or unknown.”) (quoting Vermont Yankee, 435 U.S. at 551, 98 S.Ct. at 1216).

The situation in the instant case is wholly different.   It is one thing to ask whether there are “known,” “feasible,” alternative sites on which to locate a project, and a different matter to ask whether the Forest Service in the instant case should have considered an alternative means of implementing the expansion of the Loon Mountain Ski Area-a particular means of operation that would do less environmental damage-without changing the site to another state or another mountain.   Here, the Forest Service was alerted by commenters to the alternative of using artificial storage ponds instead of Loon Pond for snowmaking;  but even without such comments, it should have been “reasonably apparent” to the Forest Service, Roosevelt Campobello, 684 F.2d at 1047, not “unknown,” Seacoast Anti-Pollution League, 598 F.2d at 1229, that such an alternative existed.

In the instant case, at least two commenters, Paul Beaudin of LCCC and plaintiff Dubois, provided notice to the Forest Service, informing it of the substance of their proposed alternative.   Though not detailed, these comments submitted in response to the Forest Service's RDEIS made clear that the commenters thought the agency should consider some alternative source of water other than Loon Pond and some alternative place to discharge the water after it had gone through the snowmaking pipes.   They argued that such an alternative would reduce the negative environmental impact on Loon Pond from depleting the pond's water and from refilling the pond with polluted water either from the East Branch or from acidic snowmelt.   Dubois explicitly and Beaudin by reference suggested the possibility of new man-made storage units to accomplish these goals.   These comments provided sufficient notice to “alert [ ] the agency” to the alternative being proposed and the environmental concern the alternative might address.20  See Seacoast Anti-Pollution League, 598 F.2d at 1229 (quoting Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216).

Because the comments to the EIS were sufficient to notify the agency of the potential alternatives, see Adams v. U.S. EPA, 38 F.3d 43, 52 (1st Cir.1994), the district court erred in concluding that plaintiffs were required to “offer[ ] specifics as to how to implement a suggested alternative water storage system.”   Memorandum and Order at 31.   Such “specifics” are not required.   As we reasoned in Adams, the purpose of public participation regulations is simply “to provide notice” to the agency, not to “present technical or precise scientific or legal challenges to specific provisions” of the document in question.  Adams, 38 F.3d at 52.  “It would be inconsistent with the general purpose of public participation regulations to construe the regulations strictly.”  Id.

Moreover, NEPA requires the agency to try on its own to develop alternatives that will “mitigate the adverse environmental consequences” of a proposed project.  Robertson, 490 U.S. at 351, 109 S.Ct. at 1846.  “In respect to alternatives, an agency must on its own initiative study all alternatives that appear reasonable and appropriate for study at the time, and must also look into other significant alternatives that are called to its attention by other agencies, or by the public during the comment period afforded for that purpose.”  Seacoast Anti-Pollution League, 598 F.2d at 1230 (emphasis added).21  Particularly given this directive, the alert furnished by Beaudin and Dubois required exploration and discussion by the Forest Service of the idea that environmental damage might be reduced by the use of artificial storage ponds instead of Loon Pond for snowmaking purposes.   Therefore, the district court should have rejected the Forest Service's argument that Dubois failed to adequately preserve the issue of alternatives.

V. SUPPLEMENTAL EIS

Plaintiffs also appeal the district court's conclusion that the Forest Service was not required, under NEPA, to prepare a supplemental EIS.   The question of a supplemental EIS is premised on the dual purposes of the EIS:  to assure that the public who might be affected by the proposed project be fully informed of the proposal, its impacts and all major points of view;  and to give the agency the benefit of informed comments and suggestions as it takes a “hard look” at the consequences of proposed actions.   See Robertson, 490 U.S. at 349, 356, 109 S.Ct. at 1845, 1849, 40 C.F.R. §§ 1502.1, 1502.9(a) (1995).

 An agency “shall” prepare a supplemental EIS if, after issuing its latest draft EIS, “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns.”  40 C.F.R. § 1502.9(c)(1)(i) (1995).   The use of the word “shall” is mandatory, not precatory.   It creates a duty on the part of the agency to prepare a supplemental EIS if substantial changes from any of the proposed alternatives are made and the changes are relevant to environmental concerns.   See Marsh, 490 U.S. at 372, 109 S.Ct. at 1858.   Thus, as explained by CEQ, an additional alternative that has not been disseminated previously in a draft EIS may be adopted in a final EIS, without further public comment, only if it is “qualitatively within the spectrum of alternatives that were discussed” in the prior draft;  otherwise a supplemental draft is needed.   See Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed.Reg. 18026, # 29b (1981).

Plaintiffs argue that the project proposed as Alternative 6, appearing for the first time in the Final EIS, embodies “substantial changes” from any of the alternatives proposed in the prior drafts of the EIS, and that those changes are “relevant to environmental concerns.”   See 40 C.F.R. § 1502.9(c)(1)(i).   Therefore, plaintiffs assert that, by not describing Alternative 6 in a supplemental EIS-which would give the public an opportunity to comment on it and give the Forest Service the benefit of those comments in its consideration of the environmental impact of Alternative 6-the Forest Service collided with both the public information and the agency guidance objectives of NEPA.   In response, defendants argue that plaintiffs' interpretation of the previously discussed alternatives is incorrect, because Alternative 6 is merely a scaled-down modification of Alternative 2 which, as proposed in two phases in the RDEIS, would have been far larger and far more intrusive on the environment than the new preferred Alternative 6.   Plaintiffs reply that only Phase I and not Phase II of Alternative 2 was seriously considered and analyzed prior to the development of Alternative 6 in the final EIS.22  Defendants deny this assertion.

 We conclude, based on the record in this case, that a supplemental EIS was required.   The scope of review of a reviewing court is the APA's “arbitrary and capricious” standard.  Marsh, 490 U.S. at 375-76, 109 S.Ct. at 1860;  see Part III, supra.   The Court in Marsh was especially deferential to the “informed discretion of the responsible federal agencies,” due to the “high level of technical expertise” required in that case to analyze the relevant documents regarding soil composition and a dam's impact on downstream turbidity.  Marsh, 490 U.S. at 377, 379, 109 S.Ct. at 1861, 1862.   In the instant case, however, nothing in the FEIS indicates that any such technically complex scientific analysis would be required in order for this court to determine that Alternative 6 involves a “substantial change” from the prior proposals at Loon Mountain.

Alternative 6, adopted by the Forest Service as its preferred alternative in the final EIS, does not fall “within the spectrum of alternatives” that were considered in previous drafts, even if Phase II of Alternative 2 had been adequately analyzed prior to the FEIS.   Alternative 6 entails a different configuration of activities and locations, not merely a reduced version of a previously-considered alternative.   Phase II of Alternative 2 proposed expanding the ski area primarily on land that is not within the current permit area;  in contrast, Alternative 6 squeezes much of its expansion into that current permit area.   To accomplish this, Alternative 6 widens existing trails so as to eliminate buffers that currently separate the trails.   It also envisions a 28,500-square-foot base lodge facility within the existing permit area.   And it develops ski trails, access roads and lifts on land that the prior alternatives had left as a woodland buffer between the old ski area and the proposed expansion area.   These are substantial changes from the previously-discussed alternatives, not mere modifications “within the spectrum” of those prior alternatives.   It would be one thing if the Forest Service had adopted a new alternative that was actually within the range of previously considered alternatives, e.g., simply reducing the scale of every relevant particular.   It is quite another thing to adopt a proposal that is configured differently, in which case public commenters might have pointed out, if given the opportunity-and the Forest Service might have seriously considered-wholly new problems posed by the new configuration (even if some of the environmental problems present in the prior alternatives have been eliminated).

Nor can it be said that these changes are not “relevant to environmental concerns.”   They could very well have environmental impacts that the Forest Service has not yet considered, simply based on their more compact physical location.   Indeed, the RDEIS said the Forest Service had considered expansion alternatives such as “other configurations on the existing permit area,” but these alternatives “were eliminated from detailed analysis because they were not reasonable or feasible alternatives.”   JA, vol. I, at 145-46.   Moreover, the plan selected, Alternative 6 in the FEIS, would require that four million gallons more water be withdrawn annually for snowmaking, compared with the closest alternative among the five previously given detailed consideration.   Whether or not viewed in the graphic terms described by plaintiff RESTORE-four million gallons annually is enough water “to create a lake the size of a football field more than eleven feet deep,” RESTORE Brief at 33-this change can be expected to have a significant enough effect on the environment that additional analysis through a supplemental EIS would be required.   Cf. Roosevelt Campobello, 684 F.2d at 1055 (requiring a supplemental EIS to consider newly completed studies regarding the small risk of a major oil spill).   We conclude, based on the record in this case, that Alternative 6 entails substantial changes from the previously proposed actions that are relevant to environmental concerns, and that the Forest Service did not present those changes to the public in its FEIS for review and comment.   Accordingly, the Forest Service's failure to prepare a supplemental EIS was arbitrary and capricious.

VI. EXECUTIVE ORDER 11,990

 Plaintiffs contend that the Forest Service's failure to adequately consider alternatives to the use of Loon Pond and failure to develop adequate mitigation measures violates Executive Order 11,990, as well as NEPA.   The district court rejected this argument on essentially the same grounds as the NEPA argument.

On appeal, the government contends that the Executive Order is not enforceable, at least by private parties, because NEPA did not confer rulemaking authority on the President.   Plaintiffs argue that the Executive Order is accorded the full force and effect of a statute or regulation, enforceable under the APA.   We have not previously decided this precise issue, nor need we decide it now.

Even assuming that the Executive Order is enforceable under the APA, it does not apply to the circumstances of this case.   The Executive Order states that federal agencies,

to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use.

Exec. Order No. 11,990, § 2. There is no dispute that Loon Pond is a “wetland.”   The Forest Service, however, contends that the Loon Corp. expansion plan does not constitute “new construction.”   The Executive Order defines “new construction” to include “draining, dredging, channelizing, filling, diking, impounding, and related activities.”   Id., § 7(b).  Dubois claims that the use of Loon Pond as a source of water for snowmaking and the discharge of used water from the snowmaking pipes into Loon Pond constitute “draining” and “filling” within the meaning of § 7(b).

We agree with the Forest Service that the mere expansion of a previously ongoing withdrawal of water from or addition of water to a reservoir ordinarily does not fall within the ambit of the Executive Order's “new construction” requirement.23  This conclusion is dictated by the plain meaning of the phrase “new construction,” which does not ordinarily encompass the mere expansion of an ongoing activity, unless that activity itself constituted “new construction.”   Likewise, in common usage, the words “draining” and “filling” generally refer to activities that eliminate a wetland to convert it to another use, not to the expansion of an activity that already adds water to or withdraws water from an existing pond.   Our reading is buttressed by common sense:  one would not ordinarily think, without more, that a federal agency operating a dam on federal land would be required, by the Executive Order, to issue notices and make findings every time water is added to or withdrawn from the dam (assuming that the dam has already met all legal requirements to begin operation).

Applying the foregoing analysis of the Executive Order to the record in the instant case, we conclude that the situation here is more akin to an expansion of ongoing activities than to “new construction.”   The town of Lincoln is already using Loon Pond as a source of town water.   And Loon Corp. has been using the Pond as a source of water for snowmaking, to a depth of four to six feet on the average.   It is true that the extent of this intrusion is less than would be the case under the proposed expansion.   But plaintiffs did not challenge these currently-existing intrusions, and they have not demonstrated a factual basis for their conclusion that there is something qualitatively “new” about the proposed drawdown.   Thus, the proposed Loon Corp. expansion project-by drawing down a substantial additional amount of water from Loon Pond and refilling it with East Branch water or with acidic runoff-does not satisfy the definition of “new construction” within the meaning of Executive Order 11,990, even though it constitutes a major action with significant impact on the environment, triggering NEPA's EIS requirements.

VII. THE CLEAN WATER ACT ISSUES

The Clean Water Act (CWA) was “a bold and sweeping legislative initiative,” United States v. Commonwealth of P.R., 721 F.2d 832, 834 (1st Cir.1983), enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”  33 U.S.C. § 1251(a) (1994).   “This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality:  as the House Report on the legislation put it, ‘the word “integrity” ․ refers to a condition in which the natural structure and function of ecosystems [are] maintained.’ ”  United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132, 106 S.Ct. 455, 462, 88 L.Ed.2d 419 (1985) (quoting H.R.Rep. No. 92-911, at 76 (1972) U.S.Code Cong. & Admin.News 1972, at 3744).   In contrast to NEPA's focus on process, the CWA is substantive, focusing upon the “integrity of the Nation's Waters, not the permit process.”  Massachusetts v. Watt, 716 F.2d at 952 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 314, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982)).

The most important component of the Act is the requirement that an NPDES permit be obtained, Commonwealth of P.R., 721 F.2d at 834;  see 33 U.S.C. § 1342 (1994), which we discuss in Part VII(B), infra.   In addition, the CWA requires states to adopt water quality standards which protect against degradation of the physical, chemical, or biological attributes of the state's waters.  33 U.S.C. §§ 1251(a), 1313(d)(4)(B) (1994);  40 C.F.R. § 131.12 (1995).   This is discussed in Part VII(C), infra.24  Before turning to the merits of these issues, however, we must first address the defendants' jurisdictional arguments.

A. Jurisdictional Issues

 As a threshold matter, defendants argue that we need not address the merits of plaintiffs' claim that an NPDES permit was required, because the court lacks subject matter jurisdiction.   Defendants argue that the NPDES permit issue is not properly raised because plaintiffs failed to provide notice of their intentions to sue Loon Corp.25  Defendants contend that Section 505(b) of the CWA “prohibits citizen plaintiffs from filing [suit to enforce the CWA's NPDES permit requirement] until at least 60 days after they have provided notice of their intent to sue” to EPA, to the State in which the alleged violation occurred, and to “any alleged violator” of the standard, limitation, or order.   Forest Service Brief at 37;  see 33 U.S.C. § 1365(b)(1) (1994).   It is undisputed, however, that Dubois, the original plaintiff, did provide notice to the Forest Service of his intent to sue.   The Forest Service was the only defendant that he did sue;  and he alleged only that the Forest Service, not Loon Corp., had violated federal statutes, including the CWA, in approving Loon Corp.'s expansion plan.   The district court therefore had jurisdiction to hear Dubois' claim that the Forest Service had approved the project illegally by not ensuring that an NPDES permit was obtained.   His properly raised NEPA claim subsumed the CWA claim.26

 Thus, even if Loon Corp.'s lack of notice did deprive us of jurisdiction to hear Dubois' claim that the Forest Service violated the CWA by failing to require an NPDES permit before approving the special use permit, this would not remove the NPDES permit issue from the case.27  Regardless of whether any of the remedies provided in the CWA would be available to Dubois in light of his asserted failure to provide proper notice of his intent to sue, this court would still have the authority and the obligation to decide, under NEPA, whether an NPDES permit is required in this case.   See Keating v. FERC, 927 F.2d 616, 624 (D.C.Cir.1991).   This is because, as noted supra, NEPA requires the Forest Service to identify in its EIS all federal permits that the project needed in order to comply with applicable federal law.  40 C.F.R. § 1502.25(b).   There is no question that plaintiffs have properly invoked the jurisdiction of this court, pursuant to 28 U.S.C. § 1331 (general federal question jurisdiction), to challenge defendants' failure to comply with NEPA in this regard.   For these reasons, we reject defendants' jurisdictional argument and turn to the merits.

B. NPDES Permit

 Section 301(a) of the Clean Water Act prohibits the “discharge of any pollutant” into navigable waters from any “point source” without an NPDES permit.  33 U.S.C. § 1311(a) (1994).   Plaintiffs argue that the Forest Service violated Section 301(a) by failing to obtain an NPDES permit before approving Loon's plan to remove water from the East Branch, use it to pressurize and prevent freezing in its snowmaking equipment, and then discharge the used water into Loon Pond. Section 301(a) prohibits the “discharge of any pollutant by any person” except as authorized pursuant to a permit issued under the Act.  Id.;  see 33 U.S.C. §§ 1342, 1344 (1994);  Commonwealth of P.R., 721 F.2d at 835.   The term “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”   33 U.S.C. § 1362(12)(A) (1994).   The definition of a “pollutant” includes “dredged spoil, solid waste, ․ sewage, garbage, ․ biological materials, ․ heat, ․ sand, ․ and agricultural waste.”  33 U.S.C. § 1362(6) (1994).   “Navigable waters” is defined as “the waters of the United States.”  33 U.S.C. § 1362(7) (1994).   The district court found and the parties agree that Loon Pond is a water of the United States, that the East Branch water discharged from Loon Corp.'s snowmaking pipes into Loon Pond is a pollutant within the meaning of the CWA,28 and that the pipe discharging the water into Loon Pond is a point source.   The question, then, is whether there is an “addition” of pollutants to Loon Pond when water containing pollutants is discharged from Loon Corp.'s snowmaking equipment into Loon Pond.

The district court answered this question in the negative.   The court reasoned that the intake water from the East Branch of the Pemigewasset River and the water in Loon Pond are all part of “a singular entity, ‘the waters of the United States,’ ” and therefore that “the bodies of water are not to be considered individually in this context.”   Memorandum and Order at 13.   Because it interpreted the East Branch and Loon Pond to be part of the same “singular entity,” the court concluded that the transfer of water from the East Branch into Loon Pond would not constitute an “addition” into the Pond, at least if the pipes added no new pollutants.29  Id.

There is no basis in law or fact for the district court's “singular entity” theory.   The error in the court's reasoning is highlighted by an analogy the court drew:  it hypothesized a pond in which “we place a pipe ․ and we pump the pond water from the bottom to the surface.   No one would reasonably contend that internal pumping causes an ‘addition’ of pollutants to the pond.   Instead, we would consider the pumping to be a redistribution of pollutants from one part of the pond to another.”   Id. at 12.   Such a situation is not at all analogous to the instant case.   There is no barrier separating the water at the top of a pond from the water at the bottom of the same pond;  chemicals, organisms, and even heat are able to pass from the top to the bottom or vice versa, at rates determined only by the laws of science.

In contrast, the transfer of water or its contents from the East Branch to Loon Pond would not occur naturally.   This is more analogous to the example the district court gave from the opposite end of the spectrum:  where water is added “from an external source” to the pond and an NPDES permit is required.   Id.  As in this converse example, the East Branch and Loon Pond are not the same body of water;  the East Branch is indeed a source “external” to Loon Pond.   We can take judicial notice that the Pemigewasset River was for years one of the most polluted rivers in New England, the repository for raw sewage from factories and towns.   It emitted an overwhelming odor and was known to peel the paint off buildings located on its banks.   Yet, under the district court's theory, even if such conditions still prevailed, a proposal to withdraw water from the Pemigewasset to discharge it into Loon Pond would be analogous to moving water from the top to the bottom of a single pond;  it would not constitute an “addition” of pollutants “from an external source” because both the East Branch and Loon Pond are part of the “singular” waters of the United States.30  The district court apparently would reach the same conclusion regardless of how polluted the Pemigewasset was or how pristine Loon Pond was.   We do not believe Congress intended such an irrational result.

The district court's analysis also ignores the fact that water would pass through Loon Corp.'s privately owned pipes on its way from the East Branch to Loon Pond.   Thus, nature would not regulate-and neither the Forest Service nor the court could know in advance-whether any pollutants would be added to the water as it passes through the pipes.   The district court concluded that the East Branch water does not “lose[ ] its status as navigable waters” even if it is “commercially exploited,” Memorandum and Order at 18, as long as Loon Corp. does not “plan[ ] to add any additional pollutants to the East Branch water that it intends to discharge into Loon Pond.”  Id. at 10.   The court does not indicate whether anyone assures compliance with the “plan” that no pollutants be added during the commercial exploitation, or if so who makes that determination and how it is made, at a time when the project is still just a proposal and not yet a fait accompli.   Cf. Massachusetts v. Watt, 716 F.2d at 952.   The district court's analysis would apply equally if the water passed through a paper mill on its way to Loon Pond, instead of through snowmaking pipes.   And the analysis is equally unpersuasive in either circumstance.   Either way, the water leaves the domain of nature and is subject to private control rather than purely natural processes.   As such, it has lost its status as waters of the United States.

Other courts have held that an NPDES permit is required before pollutants may be moved from one body of water of the United States to another.   See Dague v. City of Burlington, 935 F.2d 1343, 1354-55 (2d Cir.1991), rev'd in part on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992);  Committee to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308-09 (9th Cir.1993), cert. denied, 513 U.S. 873, 115 S.Ct. 198, 130 L.Ed.2d 130 (1994).   The Eleventh Circuit has held that such a permit is required in order to move dredge materials by a point source within the same water body.  United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.1985).

Even the Forest Service does not support the district court's conclusion that mere transfers of water from one water body to another, without more, never result in an addition of pollutants to waters of the United States.   The Forest Service recognizes that “[i]t is possible that water transferred between unrelated water bodies of different water quality would properly be regarded as losing its status as ‘water [sic] of the United States,’ ” requiring a Section 402 permit.   Forest Service Brief at 47.   We agree.   The Forest Service qualifies this insight, however.   It argues that Loon Corp. “moves water between hydrologically connected water bodies containing water of like quality” which, therefore, does not “introduce pollutants ‘from the outside world’ into the receiving waters.”  Id.  Accordingly, the Forest Service argues no permit is required.   We disagree with the Forest Service's qualification.

First, there is nothing in the statute evincing a Congressional intent to distinguish between “unrelated” water bodies and related or “hydrologically connected” water bodies.   The CWA simply addresses “any addition of any pollutant to navigable waters from any point source.”  33 U.S.C. § 1362(12)(A).   Nor is the purpose of the CWA served by means of such a distinction.   If anything, the purpose would be better served by a distinction between de minimis transfers of water and transfers which add some not insignificant amount of pollutants to the transferee water body.   But no such distinction appears in the statute, and to imply one would thrust some agencies with no expertise on environmental issues into the role of deciding whether the CWA's environmental protections should even be considered.31

More compellingly, the Forest Service's “hydrological connectedness” proposal ignores a fundamental fact about water:  the direction of flow.   It is true that Loon Pond and the East Branch of the Pemigewasset River are “hydrologically connected” in the sense that water from the Pond flows down and eventually empties into the River.   But water from the East Branch certainly does not flow uphill into Loon Pond, carrying with it the pollutants that have undisputedly accumulated in the East Branch water from some of the other sources of water entering the East Branch from upstream.   Under such circumstances, defendants cannot credibly argue that these water bodies are so related that the transfer of water from the East Branch to Loon Pond is not an “addition” of water from one of the “waters of the United States” to another.   We therefore reject the Forest Service's “hydrological connectedness” proposal.

Likewise, we reject its assertion, unsupported by the record, that in some general sense the two bodies of water are “of like quality.”   First, this is the kind of substantive question to which the EPA would apply its technical expertise in deciding whether to issue an NPDES permit and what conditions to attach to such a permit in order to protect water quality.   It is not the kind of threshold question that the Forest Service or this court should address in deciding whether to subject the Loon Corp. expansion proposal to the NPDES permitting process.

Second, the Forest Service does not contest plaintiffs' assertion that there are at least some pollutants in the East Branch that do not exist naturally in Loon Pond.   The Final EIS itself noted that the East Branch has been designated by the New Hampshire legislature as a Class B Waterway, a lower quality designation than the Class A quality rating of Loon Pond.   JA, vol. II, FEIS at 91.   The difference in classifications-the East Branch as a Class B waterway, Loon Pond as Class A-evinces a higher quality level for the Pond than for the River, and belies the Forest Service's assertion that the two bodies of water are “of like quality.”

Even if the East Branch were rated in the same general class as Loon Pond (Class A), that would not mean the two bodies of water were identical in quality, such that an NPDES permit would be unnecessary.   The East Branch contains different organisms than Loon Pond, inter alia, Giardia lambia.   Loon Pond is also colder overall than the East Branch, and its lower depths are significantly colder.   The two bodies of water also have different chemistries, especially the low level of phosphorus in Loon Pond, which affects its biological composition.   Nor has the Forest Service argued that all such pollutants would be eliminated before any East Branch water would be pumped up to refill Loon Pond after depletion by Loon Corp.'s snowmaking.   The Service cannot say, therefore, that the discharge of East Branch water into Loon Pond would not result in “any pollutants” being added to the Pond.  33 U.S.C. § 1362(12)(A).

Aside from the difficulty of defining a general concept such as “of like quality,” it would defeat the purpose of the CWA's permit process to interpret the statutory language “discharge of any pollutant,” 33 U.S.C. § 1311(a), to be implicitly qualified by the phrase “except when the transferee body of water is of like quality.”   The Forest Service is simply wrong to analogize the present situation to a dam that merely accumulates the same water, see National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 175 (D.C.Cir.1982), or a pump storage facility that stores water from one source in a different place, see National Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 589-90 (6th Cir.1988), as distinguished from moving different water from one flowing water body into another stationary, colder body.   We cannot allow such a watering down of Congress' clear statutory protections.

We hold that the Pemigewasset River and Loon Pond are two distinct “waters of the United States,” and that the proposed transfer of water from one to the other constitutes an “addition.”   Where, as is undisputed here, the discharge is through a point source and the intake water contains pollutants, an NPDES permit is required.   The Forest Service's determination to the contrary was arbitrary and capricious and not in accordance with law.   See 5 U.S.C. § 706(2)(A).

C. Violation of State Water Quality Standards

Plaintiff Dubois claims that state water quality standards are violated because of the quality of water that would enter Loon Pond.   This water would come from one of two sources:  some of it would come from snowmelt that replaces the water that Loon Corp. has pumped out of Loon Pond to make snow;  and some would be water that Loon Corp. has taken from the East Branch for snowmaking and then discharged into Loon Pond.   Dubois contends that Loon Corp.'s snowmaking operations pose an impermissible threat to Loon Pond because influxes of East Branch water and snowmelt-the two principal sources of water to refill the Pond-could alter the Pond's naturally occurring pH, bacteria, oil and grease, and turbidity levels.

On the merits of the water quality standards issue, Dubois argues that the CWA requires states to adopt water quality standards which protect against degradation of the physical, chemical, or biological attributes of the state's waters.  33 U.S.C. §§ 1251(a), 1313(d)(4)(B);  40 C.F.R. § 131.12.   The greatest protection is afforded to Outstanding Resource Waters, including Loon Pond, as to which no degradation is permitted.  40 C.F.R. § 131.12(a)(3);  N.H.Code Admin. R. Env-Ws 437.06.   Dubois contends that the ski resort's proposal to draw down a significant amount of water changes the physical structure of Loon Pond;  that refilling it with East Branch water containing phosphorus (and through pipes that might contain oil and grease) or with acidic runoff would change the Pond's chemical composition;  and that the transfer of organisms such as Giardia lambia and chemicals such as phosphorus into the Pond would alter its biological attributes.   Because we hold infra that Dubois cannot, in a challenge to the Forest Service's FEIS, collaterally attack the state's certification of compliance with state water quality standards, we need not reach the merits of the state water quality standards issue.

Defendants argued in the district court that Dubois' CWA claim was not properly presented, that Dubois should have raised his objections by exhausting various administrative remedies and filing a timely appeal in the New Hampshire Supreme Court.   They argued that the federal agency (Forest Service) and the federal court lack the authority to review independently and determine the validity of requirements imposed under state law or in a state's § 401 certification, see 33 U.S.C. § 1371(c)(2)(A) (1994), and that such authority is expressly delegated to the states, 33 U.S.C. § 1341(a) (1994).

The district court agreed.   It held that, “[i]f the plaintiffs in this case were dissatisfied with the state's § 1341 certification, they could have challenged the certification by exhausting state administrative remedies and filing a timely challenge in the New Hampshire Supreme Court.”   Memorandum and Order at 21-23.   That is true insofar as it goes.   The question, however, is whether a state court action is the plaintiffs' only recourse, or whether, in the alternative, they had a right to challenge in federal court the federal agency's issuance of a federal permit in reliance on the state certification, where the basis for their challenge is that the project fails to meet the minimum standards of the federal Clean Water Act.

Defendants may be correct that the cases they rely upon hold that the state courts are the only fora in which to challenge whatever requirements the state adds, beyond the minimum required by the CWA.   Those cases do not, however, deprive the federal courts of jurisdiction to hear a claim that defendants have violated the floor level of clean water requirements imposed by the CWA, i.e., the requirements which the state regulations share with the federal CWA.

 The cases relied upon by the defendants and by the district court 32 dealt with challenges to the state's imposition of more stringent controls on a project's water pollution effluent.   Such cases relied on the language of the CWA itself, as well as basic principles of federalism, to support their holdings that the CWA “empower[s]” the states “to set more stringent water quality standards than those set by the Act and its attendant requirements” to prevent water pollution.  Marathon Dev. Corp., 867 F.2d at 99;  see Commonwealth of P.R., 721 F.2d at 834 n. 3;  Roosevelt Campobello, 684 F.2d at 1056.   However, the states may not set standards that are less stringent than the CWA's.   See Marathon Dev. Corp., 867 F.2d at 99.   Simply put, the CWA provides a federal floor, not a ceiling, on environmental protection.   If a state seeks to approve a standard that is less stringent than the federal CWA's floor, or seeks to apply a standard in a way that is otherwise invalid under federal law, then federal agencies and federal courts are obligated to resolve the application of the federal CWA in any case that properly comes before them.   See Keating v. FERC, 927 F.2d at 624.

 The Forest Service asserts another defense, also relied on by the district court, which carries more force.   Section 511(c)(2)(A) of the CWA precludes federal agencies from invoking NEPA to authorize their review of “the adequacy of any certification under section [401].”  33 U.S.C. § 1371(c)(2)(A).   Dubois points out that, in the circumstances of this case, Section 511(c)(2)(A) does not apply when the discharge of pollutants in question is not regulated by effluent limitations established under CWA Sections 301(b) and 302, 33 U.S.C. §§ 1311(b) & 1312, or by an applicable standard of performance under CWA Sections 306 and 307, 33 U.S.C. §§ 1316 & 1317.   Dubois Brief at 27;  see 33 U.S.C. § 1341(a).   Such effluent limitations and standards are established in NPDES permits for point source dischargers.  33 U.S.C. §§ 1311(b), 1312, 1316, 1317, 1362(11).   Dubois then tries to bootstrap the fact that Loon Corp. failed to apply for an NPDES permit into a circumstance that renders Section 511(c)(2)(A) inapplicable.   Dubois Brief at 27-28.   His argument is without merit.

It is true that the Forest Service was obligated to assure itself that an NPDES permit was obtained before permitting Loon Corp. to expand its ski resort.   See Part VII(B), supra.   However, the violation of that statutory obligation is a separate issue from the state water quality standards issue.   For purposes of the latter, the fact is that there do not exist any effluent limitations under CWA Sections 301(b) or 302 nor any standards of performance under CWA Sections 306 or 307 that apply to the discharge of East Branch water and pollutants into Loon Pond.   Therefore, whether or not the Forest Service actually obtained the required NPDES permit, Section 511(c)(2)(A) applies, and Dubois' challenge to the adequacy of the state's Section 401 certification may not proceed in this court.

As the federal defendants argued in their brief and as we held in Roosevelt Campobello, 684 F.2d at 1056, Dubois' challenge must be addressed as part of EPA's “independent obligation to ensure that EPA-issued NPDES permits meet state water quality standards.”   Forest Service Brief at 29;  see 33 U.S.C. § 1311(b)(1)(C) (1994).33  If, upon remand, EPA determines that a permit is appropriate, with or without conditions or limitations,34 and if plaintiffs disagree with EPA's decision, then they may challenge such decision in any manner that is available to them at the time.   But EPA, not the Forest Service, is the proper entity to evaluate compliance with state water quality standards.

CONCLUSION

We affirm the district court's denial of defendant Loon's motion to dismiss plaintiff Dubois' complaint for failure to meet his burden of establishing his standing to sue.

We reverse the district court's grant of summary judgment in favor of defendants and reverse the district court's denial of summary judgment in favor of plaintiffs, with respect to

(1) the NEPA/EIS issue relating to consideration of alternatives,

(2) the supplemental EIS issue, and

(3) the NPDES permit issue.

We affirm the district court's grant of summary judgment in favor of defendants and affirm the district court's denial of summary judgment in favor of plaintiff Dubois, with respect to the alleged violations of

(1) Executive Order 11,990, and

(2) state water quality standards under the CWA.

Affirmed in part;  reversed in part;  remanded;  costs on appeal awarded to plaintiffs.

FOOTNOTES

1.   The Forest Service, its parent organization, the United States Department of Agriculture, and their agents will be collectively referred to as “the Forest Service” throughout this opinion.

2.   The level of Loon Pond drops when Pond water is used for snowmaking, because the Pond does not receive much natural water through precipitation during the winter.

3.   In order for Loon Corp. to make snow, it must pump significantly more water through the system than is actually made into snow.   Passing this extra water through the pipes keeps them from freezing.   It also provides the pressure that forces the artificial snow out through snowmaking jets.

4.   The Forest Service's ten-year plan for the WMNF, issued in 1986, included plans for accommodating increased demand for downhill skiing.   It determined that it would meet this demand through expansion of existing ski areas rather than through the creation of new ones.   It did not discuss the possibility of meeting the demand through alternative sites outside the national forest.

5.   As noted supra, absent some other method of refilling, the Pond would be refilled by the melting of acidic snow.

6.   In response to an earlier draft EIS, the EPA had expressed the following concern:  “While monitoring plans have merit, they should not be considered a substitute for a thorough evaluation of a project and its potential impacts prior to action approval.”   JA, vol. I, at 97;  see also Massachusetts v. Watt, 716 F.2d 946, 951-52 (1st Cir.1983) (NEPA “requires an EIS according to its terms,” before the agency becomes “committed to [a] previously chosen course of action”).

7.   The case was later transferred to the United States District Court for the District of New Hampshire.

8.   Plaintiffs made other arguments below, but have not pursued them on appeal.

9.   Defendants have abandoned their challenge to RESTORE's standing.

10.   Violations of procedural rights, such as those created by NEPA and CWA, receive “special” treatment when it comes to standing.  “The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.”  Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. at 2142 n. 7.   As an example, the Supreme Court points to “the procedural requirement for an environmental impact statement before a federal facility is constructed next door” to the plaintiffs.  Id. at 572, 112 S.Ct. at 2142.   The contrasting example-where the disregard of procedural requirements would be held not to impair the plaintiffs' concrete interests-is “persons who live (and propose to live) at the other end of the country” from the project.  Id. at 572 n. 7, 112 S.Ct. at 2142 n. 7.

11.   An association must meet two other requirements in order to have standing to sue:  the interests that the suit seeks to vindicate must be germane to the objectives for which the organization was formed;  and neither the claim asserted nor the relief requested requires the personal participation of affected individuals.   UAW v. Brock, 477 U.S. 274, 282, 106 S.Ct. 2523, 2528-29, 91 L.Ed.2d 228 (1986).

12.   Dubois moved for leave to file a third amended complaint and a reply brief.   The district court failed to rule on this motion until after the court's jurisdiction was terminated by the docketing of RESTORE's appeal.   Dubois asked this court to clarify the status of this motion in light of the district court's order granting Dubois' post-judgment motion under Fed.R.Civ.P. 60(a) for clarification;  the court indicated that it had intended to allow the third amended complaint and the reply brief, but did not, due to clerical mistakes.   Docket Entry 79-b.   We need not decide Dubois' motion because of our decision on the merits.   Resolving the motion would not, in any event, affect our decision on the standing issue, because the third amended complaint contains language identical to the second regarding standing.

13.   Our analysis is not altered by the fact that three of the parties filed cross-motions for summary judgment.   The standing issue was raised only in Loon Corp.'s motion to dismiss.   Where, as here, the defendants have not contradicted the factual allegations concerning standing that we deem adequate at the motion to dismiss stage, we will not subject those allegations to a summary judgment level of scrutiny in the absence of a motion for summary judgment on the issue.   In these circumstances, “[t]he standing analysis is no different, as a result of the case having proceeded to summary judgment, than it would have been at the pleading stage.”  Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 n. 15, 96 S.Ct. 1917, 1924 n. 15, 48 L.Ed.2d 450 (1976).

14.   For example, in Vermont Yankee, Congress had made the policy decision that the nation would try nuclear power;  the Court refused to second-guess that decision in reviewing an EIS pursuant to NEPA. 435 U.S. at 557-58, 98 S.Ct. at 1218-19.

15.   We note that the two-step process articulated in Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), does not apply here, because we are not reviewing an agency's interpretation of the statute that it was directed to enforce.

16.   In addition to the Beaudin/LCCC proposal, plaintiff Dubois' comments also suggested that Loon Corp. build artificial water storage units, in his case underground.   This suggestion, requiring costly subterranean construction, may be more facially vulnerable than Beaudin/LCCC's;  it may or may not alone have required an explicit response, however brief.   But we need not address this question because we reverse based on the Beaudin/LCCC proposal.

17.   Aside from its preservation argument, see Part IV(D), infra, the Forest Service merely argues that the LCCC proposal was made to Loon Corp. before the RDEIS was published.   However, the Forest Service does not suggest that Beaudin's comment letter-responding to the Forest Service's RDEIS-did not fairly refer to the prior LCCC proposal, or that this proposal was unknown to the Service.

18.   In addition to the question of an alternative to Loon Pond as a source of water or as a discharge point, plaintiff RESTORE has raised a second issue regarding alternatives.   RESTORE asserts that the Forest Service should have considered alternative sites for the entire project, outside of the White Mountain National Forest.   The district court found that such alternative sites were not appropriate for study because some draw from different markets and others do not offer the same type of skiing experience as the WMNF ski areas which have more terrain, higher mountains, more natural snow, and better facilities than their counterparts outside the WMNF.   We agree.

19.   Dubois also notes that the FEIS failed to disclose what he claims are numerous violations of state water quality standards, which “renders the FEIS unacceptable under NEPA.”   Dubois Brief at 16 n. 11;  see Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581, 587-88 (9th Cir.1985), rev'd on other grounds sub nom. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).   For discussion of the issue of state water quality standards, see Part VII(C), infra.

20.   In Adams v. U.S. EPA, 38 F.3d 43 (1st Cir.1994), we held that a plaintiff had sufficiently raised his proposal at the agency level by stating in his comment:  “The EPA has not carried out the intent of Congress in relation to the [Act in question, citing specific statutory provisions].”  Adams, 38 F.3d at 52.   This court held that that reference-together with other comments discussing the detrimental impact of the proposed project on beaches and marine life-was sufficient to “alert[ ] the EPA to [his] concern that the EPA had not adequately complied with the [statutory] mandates.”  Id.

21.   In deciding whether an agency has adequately studied all reasonable alternatives, a reviewing court may consider “the extent and sincerity of the opponents' participation.”  Seacoast Anti-Pollution League, 598 F.2d at 1231.   Here, it is apparent from the record that Dubois has treated this matter seriously, not as “a game,” id. at 1229;  he has not “played dog in the manger with respect to alerting the agency” to his views regarding alternatives, id., in an effort to “scuttle” the project, id. at 1231.

22.   Plaintiffs point to several instances where the FEIS stated that further environmental analysis would be conducted in the future if and when Loon Corp. sought permission to proceed with Phase II.

23.   It is conceivable, of course, that an expansion of an already existing activity could fall within the ambit of the Executive Order's “new construction” requirement.   This could occur if the expansion effectuated a qualitative change in the nature of the activity, rather than a mere quantitative enlargement of that activity.   On the record before us in the instant case, we cannot say that plaintiffs have demonstrated such a qualitative change.

24.   The third major aspect of the CWA is the use of industry-specific effluent standards to control the quality of effluent that can be attained using available pollution control technology.  33 U.S.C. § 1311, et seq.   This aspect of the CWA is not in issue in this litigation.

25.   The Forest Service also asserts that no claim can stand against it as a defendant because EPA regulations place the responsibility for obtaining an NPDES permit on the “operator” of a covered activity;  the Forest Service is merely the owner of the land on which the activity takes place.   This argument is unavailing:  if an NPDES permit were required, as plaintiffs contend, then the Forest Service should not have granted a special use permit to Loon Corp. without ensuring that Loon Corp. obtain the NPDES permit.

26.   Thereafter, Loon Corp. chose to intervene in the action in order to protect its business interests.   When Loon Corp. voluntarily intervened in an ongoing action, it “step[ped] into the shoes” of the original defendants-who were properly before the court-insofar as the 60-day notice is concerned.  Kitlutsisti v. ARCO Alaska, Inc., 592 F.Supp. 832, 842 (D.Alaska 1984), vacated as moot, 782 F.2d 800 (9th Cir.1986);  cf. E.H. Ashley & Co. v. Wells Fargo Alarm Servs., 907 F.2d 1274, 1277 (1st Cir.1990) (When insurer, as subrogee, steps into shoes of insured, insurer “has no greater rights against a third party” than the insured had;  insurer “was on constructive notice of the provisions of [insured's] contract [with third party] because it occupies the shoes of its insured.”).

27.   Nor is RESTORE precluded from pursuing its claims on the ground that it did not notify defendants of its intent to bring suit.   RESTORE was an intervenor, merely joining a suit that was already in esse;  it did not bring a new suit.   As such, RESTORE was not required to notify Loon Corp. of its intent to bring suit.   We need look no further than the statutory language itself:  “No action may be commenced ” without the requisite notice.  33 U.S.C. § 1365(b).   RESTORE did not “commence” this action;  it intervened in an existing action.   Moreover, the purpose of the notice requirement-to give the parties an opportunity to resolve the problem administratively or to settle the matter without resort to the courts, before the parties have assumed adversarial positions brought about by litigation-no longer applied at the time RESTORE intervened in the ongoing suit.   Hence, the purpose of the notice requirement would not be served by applying it to an intervenor like RESTORE.Nor are we faced with the kind of equitable considerations discussed in Hallstrom v. Tillamook County, 493 U.S. 20, 29, 110 S.Ct. 304, 310, 107 L.Ed.2d 237 (1989), in holding an original plaintiff strictly to the notice requirement.   Unlike the original plaintiff, who has full control over when to file the suit, an intervenor like RESTORE has no control over the timing of the initial action.   Because this action was already being litigated on an expedited schedule, RESTORE could well have lost the opportunity to protect its interests if it had served a notice of intent to sue and then waited 60 days before intervening in the expedited case.   The balance of equities here favors permitting RESTORE to pursue its claims.

28.   It contains at least the same pollutants that were present in the water from the East Branch before intake into the pipes.

29.   This premise is a disputed issue.   Plaintiffs argue that allowing the water from the East Branch to flow through the pipes before discharge into Loon Pond results in the addition of not insignificant amounts of oil and grease.   Defendants dispute this, which ordinarily would result in a reversal of summary judgment on this issue.   See Fed.R.Civ.P. 56(c).   Defendants argue, however, that plaintiffs failed to raise this factual dispute before the agency in timely fashion, so it is not preserved for our review.   Plaintiffs respond that they could not have raised this dispute prior to the publication of the FEIS because the Forest Service did not even collect the data regarding oil and grease until after issuing its decision (the ROD).   We need not resolve this dispute;  we hold infra that, even if the pipes add no new pollutants, the transfer of East Branch water through Loon Corp.'s privately owned pipes and its discharge into Loon Pond constitutes a point source discharge of at least some pollutants into the Pond, thereby requiring an NPDES permit.   Upon remand, the parties are not foreclosed from presenting their factual disputes to the EPA if they decide to contest the issuance of that permit.

30.   Again, we leave to one side the possibility that additional pollutants, such as oil and grease, would be added when the water flowed through the system of pipes.   If that were true, that alone would require an NPDES permit.

31.   As discussed in Part VII(C), infra, in another context, the Forest Service argues that it is the EPA, not the Forest Service, that has the expertise and the congressional mandate to determine whether a proposed project meets state water quality standards.   We agree.   The availability of EPA to perform this task is another reason why an NPDES permit should be obtained before the Forest Service approves the Loon Corp. expansion plan.   See note 32 and accompanying text, infra.

32.   They rely particularly on our Roosevelt Campobello decision, 684 F.2d at 1056, but also on Puerto Rico Sun Oil, 8 F.3d at 81;  United States v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir.1989);  Lake Erie Alliance for Protection of Coastal Corridor v. U.S. Army Corps of Eng'rs, 526 F.Supp. 1063, 1074 (W.D.Pa.1981), aff'd mem., 707 F.2d 1392 (3d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983).   All of these cases involved states imposing more stringent controls on water pollution than required by federal law.

33.   The availability of EPA to perform this task is another reason supporting our holding in Part VII(B), supra, that an NPDES permit is required.   See supra note 30.   The federal CWA requires that any state certification ensure that the minimal federal standards have been adhered to.   The government is correct that the Forest Service possesses neither the congressional mandate nor the expertise to second-guess state water quality certifications.   But EPA does;  and the CWA envisions that EPA make those assurances in the context of deciding whether to issue an NPDES permit.

34.   Whether or not the NHDES certifies that state water quality standards have been met, EPA would be “bound to include in the federal permit ‘any more stringent limitations ․ established pursuant to any State law or regulations (under authority preserved by section 510).’ ”   Roosevelt Campobello, 684 F.2d at 1056 (quoting 33 U.S.C. § 1311(b)(1)(C)).

BOWNES, Senior Circuit Judge.

Case Report: Adams v. Sudbury

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

 

2016 VT 11 No. 2014-465

Supreme Court On Appeal from

Superior Court, Rutland Unit, Civil Division

 

John T. Adams II v. Town of Sudbury

 

June Term, 2015 Cortland Corsones,

 

J. Peter H. Banse of Banse & Banse, P.C., Americus, Georgia, for Plaintiff-Appellant.

 

Cindy Ellen Hill, Middlebury, for Defendant-Appellee.

 

 

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

 

¶ 1. REIBER, C.J. This case arises from the often complex struggle that Vermont towns have had with taxing parcels of land that lie in more than one town. It is also the latest episode in a decades-long dispute between taxpayer and the Town of Sudbury. Taxpayer owns three units in a condominium community that lies in both Sudbury and its neighbor, Hubbardton. Taxpayer objects to Sudbury’s tax assessment of the portion within its boundaries. He argues that the trial court erred in upholding: (1) the state law through which Sudbury made its tax assessment; (2) Sudbury’s valuation of the portion within its boundaries; and (3) Sudbury’s method of apportioning the tax burden among the owners of the condominium community. We affirm on all three issues. 2

 

¶ 2. The condominium community is known as Wanee Villas and Resorts (Wanee). It is located on the grounds of a former children’s camp and consists of twenty-one individually owned units—residential buildings and their footprints—and an expanse of common land. Wanee’s ownership and governance are detailed in two documents filed in the Sudbury land records: a 1978 declaration of protective covenants and a 1993 amendment to those covenants. These documents not only assign a percentage of ownership interest in the common land to each unit but also detail that each unit has an easement to access the common land. Moreover, they create a common interest community as defined by 27A V.S.A. § 1-103(7) and a condominium as defined by 27A V.S.A. § 1-103(8).

 

 ¶ 3. Wanee encompasses a total of 26.9 acres. The vast majority of this land— including all the privately owned units—lies in Hubbardton. The Sudbury portion consists solely of 1.29 acres of common land but includes 385 feet of prime frontage on Lake Hortonia, which greatly enhances the appeal of Wanee and its individually owned units. Taxpayer personally owns three units and further owns a substantial stake in Wanee Enterprises, which is the successor corporation to the former children’s camp and which itself owns eleven units.

 

¶ 4. In 1996, taxpayer appealed Sudbury’s tax assessment of the Sudbury portion of Wanee’s land to the state appraiser. Taxpayer and Sudbury stipulated to a valuation of $89,460 for the Sudbury portion, and the state appraiser entered this stipulation on the condition that this valuation would be listed for three years. In 2007, taxpayer again objected to Sudbury’s tax assessment of the land, arguing before the town’s Board of Civil Authority and, later, the trial court, that Sudbury could not tax the land because all the individually owned units lay within Hubbardton. Taxpayer voluntarily dismissed the case by agreement with Sudbury that it would not tax the units owned by taxpayer, Wanee Enterprises, or taxpayer’s mother for the years 2007- 2009. Sudbury adhered to this agreement for those three years and then continued to refrain 3 from taxing the land at all as it waited on clarification from the Legislature regarding how to tax common lands belonging to a condominium community whose units lie entirely in another town.

 

¶ 5. In 2012, the Legislature provided this clarification through an amendment to 27A V.S.A. § 1-105, which now states, in part: (a) In a condominium or planned community: . . . (2) if there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights; provided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located, the town in which the common elements are located may designate that portion of the common elements within its boundaries as a parcel for property tax assessment purposes and may tax each unit owner at an appraisal value pursuant to 32 V.S.A. § 3481. 27A V.S.A. § 1-105(a). Sudbury then reappraised the Sudbury portion as part of a town-wide reappraisal that it had begun two years prior and whose results and methods were approved by the Vermont Department of Taxes. Through this reappraisal—which used a systematic, multiple-factor formula derived from land tables, schedules, and adjustments—Sudbury valued the Sudbury portion at $177,445. In response to the recent amendment to § 1-105, Sudbury then levied taxes for the land against the individual unit owners. In doing so, it apportioned the tax burden among the unit owners in accordance with their percentage ownership of Wanee as specified in the 1978 declaration of protective covenants.

 

 ¶ 6. In response to this new tax assessment, taxpayer first appealed to Sudbury’s appraisers, then to the Sudbury Board of Civil Authority, and then, in November 2013, to the trial court. Taxpayer raised three arguments before the trial court. First, he argued that § 1-105 violates both the Equal Protection principle of the Fourteenth Amendment to the U.S. Constitution and the Proportional Contribution Clause of the Vermont Constitution. Next, he 4 argued that Sudbury’s valuation of the land at $177,445 was not supported by the evidence and does not represent the land’s fair market value. Finally, he argued that Sudbury must not apportion the tax burden among the unit owners in relation to their percentage interest in Wanee but instead must apportion the burden equally to each unit. After holding a bench trial, the trial court entered its order in November 2014, finding against taxpayer on each of these arguments. The trial court upheld the tax assessment in all respects except for remand to apportion the tax burden among the unit owners in accordance with the 1993 amendments to Wanee’s covenants rather than the original 1978 covenants. Taxpayer now bases his appeal on the same three arguments that he raised before the trial court. I. Constitutionality of 27A V.S.A. § 1-105

 

¶ 7. We begin with taxpayer’s first argument, which is that 27A V.S.A. § 1-105 violates both the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Proportional Contribution Clause of the Vermont Constitution. Specifically, taxpayer contends that the law creates a situation in which properties that have common land in more than one town may be taxed at higher total rates than those with common land in just one town. Indeed, he alleges that an owner in his situation “pays as much as twice.” Taxpayer further contends that this alleged situation violates the principle that any difference in tax burden between similarly situated citizens must have a reasonable and rational basis.

 

 ¶ 8. A tax is constitutionally valid if it meets two requirements. First, it must have been established for a reasonable purpose and bear a reasonable relation to that purpose. See Lathrop v. Town of Monkton, 2014 VT 9 ¶ 13, 195 Vt. 564, 91 A.3d 378, 382 (“[A] legislative classification must bear a reasonable relation to the purpose for which it is established” (quotation omitted)); see also Andrews v. Lathrop, 132 Vt. 256, 259, 315 A.2d 860, 862 (1974) (“[I]f any reasonable policy or purpose for the legislative classification may be conceived of, the enactment will be upheld.”). Second, it must be fairly applied so that all within a given tax 5 classification are treated alike. See In re Prop. of One Church St. Burlington, 152 Vt. 260, 268, 565 A.2d 1349, 1353 (1989) (“Once fair classifications have been established, taxpayers within a given classification must be treated alike.”).

 

¶ 9. These two requirements apply identically to taxpayer’s Fourteenth Amendment and Proportional Contribution Clause arguments because we view the constitutional provisions as equivalent in the tax context. See In re Eddy, 135 Vt. 468, 472, 380 A.2d 530, 534 (1977) (“[A]s far as [tax] classifications are concerned, our proportional contribution clause is the practical equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.”). They also apply to § 1-105 because § 1-105 expressly creates two different tax classifications: one for common elements located entirely in one town and another for common elements located in two towns. Common elements located entirely in one town and for which a declarant has reserved no development rights may not be taxed separately at all. See § 1-105(a)(2) (describing that, generally, “no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights”). The value of this land is simply allocated to Wanee’s individual units, which themselves are then taxed. But common elements located in a town other than the town in which the units are located may be taxed. See id. (“ . . . [P]rovided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located,” former may tax that portion).

 

¶ 10. We conclude that § 1-105 is constitutionally valid because it creates a tax regime that is not only reasonable but also results in fair and uniform tax treatment if implemented properly. Towns are prevented from taxing lands that lie outside their boundaries, but they are free to raise funds in accordance with the amount and value of land that lies within their boundaries. And assuming towns value their lands properly, landowners are treated uniformly because they pay like taxes, regardless of whether their lands lie in one town or multiple towns. 6

 

 ¶ 11. Section 1-105 also satisfies a second principle of the Proportional Contribution Clause: Vermont’s property tax system must be based on fair market value to ensure that the tax burden is shared proportionately. Barnett v. Town of Wolcott, 2009 VT 32, ¶ 4, 185 Vt. 627, 970 A.2d 1281 (mem.) (“The goal of property-tax appraisal is to ensure that no property owner pays more than his or her fair share of the tax burden; this is accomplished by listing all properties at fair market value.”); see also 32 VSA § 3481 (“The estimated fair market value of a property is the price which the property will bring in the market when offered for sale and purchased by another.”). This principle is reflected in our recent holding that when a contiguous piece of land lies in two or more towns, each of those towns may value and tax the portion within its boundaries so long as the combined valuation of each portion does not exceed the actual fair market value of the entire piece of land. See Vanderminden v. Town of Wells, 2013 VT 49, ¶ 20, 194 Vt. 96, 75 A.3d 598 (“The fair market value must be divided between the towns . . . the sum of the values attributable to the part of the parcel in each town cannot exceed the fair market value of the whole parcel.”) (citation omitted). Section 1-105 reflects this holding and the broader fair market value principle because it leaves towns free to consider not only the qualities of that portion that lies within their boundaries but also the fair market value of the entire contiguous piece of land. Id. ¶ 21(“[T]he correct valuation for property . . . includes both the fair market value of the property overall and of the portion in the town involved in the appeal.”).

 

¶ 12. Having concluded that § 1-105 is constitutionally valid, we further note that taxpayer offers no evidence to bolster his assertion that his particular property is valued or taxed at a rate higher than it would be if it were entirely located within just one town. Indeed, his own testimony was that he valued each of his units at $25,000 when considering their lakefront access, but at only $15,000 when not considering their lakefront access. Meanwhile, the trial court specifically found that Hubbardton assessed taxpayer’s units at just $12,800 each, “a clear indication that they are not assessing them as having lakefront access.” It also found that “the 7 property is not ‘double taxed’ as lakefront property.” This case is therefore unlike those in which towns have maximized the taxable value of the separate portions of land such that, when combined, they exceeded the actual fair market value of the land. See Vanderminden, 2013 VT 49 (rejecting town’s valuation of lakefront portion of property because it used model that placed primary value on lakefront, while neighboring town in which house was located used model that placed primary value on land immediately surrounding houses); see also Devon Energy Prod., L.P. v. Hockley Cnty. Appraisal Dist., 178 S.W.3d 879, 882-83 (Tex. Ct. App. 2005) (rejecting combined valuation of land by two towns amounting to 134-percent of land’s actual fair market value because “appraisal districts assessing property crossing county lines are entitled to ‘share it fairly but don’t take a slice of [the other’s] pie.’ ” (citing Pink Floyd, Money (Capitol Records 1973))).

 

 ¶ 13. Here, taxpayer did not meet his burden of establishing that the combined valuations by Sudbury and Hubbardton exceeded the fair market value of Wanee. Notably, it is true that § 1-105 does not contain language that on its own prevents two towns from valuing portions of land such that the valuations combined exceed the fair market value of the total property, as occurred in Vanderminden and Devon. But the Proportional Contribution Clause of the Vermont Constitution, and the Equal Protection Clause of the U.S. Constitution require that the statute be applied in a way that does not subject taxpayer to taxation based on a total valuation in excess of the fair market value of the taxpayer’s property simply because the property straddles town lines. II. Valuation of the Sudbury Portion

 

¶ 14. We next address taxpayer’s second argument, which is that the trial court’s conclusion that the fair market value of the Sudbury portion was $177,445 is not supported by the evidence. Here, taxpayer objects to Sudbury’s method of calculating the land’s value and tax burden through the use of land tables, schedules, and adjustments that take into account multiple 8 factors affecting the value of the land. Notably, the formula includes an “easement” adjustment to reflect that the land is merely a small portion of a much larger parcel. Taxpayer argues that this adjustment is insufficient and that that this formula should not be applied to the land because it was developed to value stand-alone parcels, not portions of land that belong to larger parcels. Instead—without proposing an alternative method—taxpayer contends that the land should be ascribed a lower value because it cannot be independently developed, accessed, or sold apart from the larger parcel.

 

 ¶ 15. We have long recognized that Vermont towns have discretion to use different appraisal methods to value property according to fair market value. See City of Barre v. Town of Orange, 138 Vt. 484, 486, 417 A.2d 939, 941 (1980) (“[M]any different methods exist for determining fair market value.”). However, as a logical extension of our previous observation of the Proportional Contribution Clause, towns’ appraisal methods must reflect fair market value, and this can be accomplished only by taking into consideration all elements that combine to give value to a property. See also Bookstaver v. Town of Westminster, 131 Vt. 133, 137, 300 A.2d 891, 893 (1973) (noting that “[t]here is no one or controlling factor.”). Sudbury heeds our holdings concerning the importance of fair market value and multiple-factor assessments. Its method begins with a general land schedule provided by the State of Vermont and based on actual sales in the town over the previous three years. It then makes adjustments based on factors including terrain, accessibility, septic systems, and quality of structures. Notably, Sudbury’s assessment system has been accurate over the years; the trial court found that its assessed values are very comparable to actual sales.

 

¶ 16. In the specific case of Wanee’s assessment, the trial court found the following facts. Sudbury started with a schedule that was based on a finding that the average fair market value for a lot on Lake Hortonia is $1000 per linear foot of lake frontage. Applying this schedule to Wanee’s total lake frontage, it determined that the property’s value before 9 adjustments was $385,000. To this base value, Sudbury assigned factors of: (1) 0.80 for land quality because the beach front was overgrown; (2) 1.02 for depth factor because the parcel is slightly deeper than the average lot; (3) 0.70 for amount of lake frontage, which is above average in Wanee’s case, and the per-foot value of frontage decreases as the amount of frontage increases; and (4) 0.80 because the parcel has an easement on it for the community owners and cannot be developed. After accounting for these factors—a multiplication of each factor against the base value—and then adding $1500 to account for two dilapidated structures, Sudbury arrived at a final assessed value of $177,445.

 

 ¶ 17. The trial court found that the system used by Sudbury to value taxpayer’s land was accurate, and this finding was supported by the evidence. First, the starting schedule was based on actual sales data. Second, the adjustment factors for properties such as land quality, depth, and lake frontage reflect those elements that we have previously recognized as giving property a market value. Bookstaver, 131 Vt. at 136-37, 300 A.2d at 893 (“The fair market value of property is the price which the property will bring in the market when offered for sale and purchased by another, taking into consideration all the elements of the availability of the property, its use both potential and prospective, any functional deficiencies, and all other elements such as age and condition which combine to give property a market value.”). Finally, we find that the town uses proper bases for determining the degree of adjustment for each factor. The depth factor and lake frontage adjustments are based on numerical charts and the easement adjustment is equal to the easement adjustments for other properties. For the land quality factor, the use of judgment to consider multiple features of the land is reasonable in light of the difficulty of assessing land quality. Moreover, the estimated land values have closely matched historical sale prices. We therefore conclude that Sudbury’s appraisal method conforms to the Proportional Contribution Clause’s fair market value requirement. It is unlike those systems that we have struck down as being unreasonable or too simplistic. See Bloomer v. Town of Danby, 10 135 Vt. 56, 57, 370 A.2d 194, 195 (1977) (striking town’s formula for determining land value, which solely contemplated total acreage and did not adjust for location, type of land, accessibility, or sale of comparable property); Town of Barnet v. New England Power Co., 130 Vt. 407, 413, 296 A.2d 228, 232 (1972) (holding that it was error to restrict appraised fair market value to no greater than net book value).

 

¶ 18. We further note that this same analysis applies to taxpayer’s argument that Sudbury’s formula should not be applied at all to the land because it was developed to value stand-alone parcels, not portions of land that belong to larger parcels. On this point, taxpayer argues that the Sudbury portion is worth almost nothing because it cannot be sold on its own. But this ignores the trial court’s finding that the Sudbury portion certainly added value to the whole when viewed as part of a larger property. It also ignores our long-standing precedent that contiguous lands should be treated as one under appropriate circumstances. We outlined those circumstances in Neun v. Town of Roxbury, 150 Vt. 242, 244, 552 A.2d 408, 410 (1988): All relevant factors must be considered in determining whether or not property should be assessed as a single parcel, including whether the property was conveyed in one deed, the character of the land and the purposes for which it is used, whether separately deeded tracts are contiguous, and whether the property currently functions as one tract for the owner. We have since reaffirmed those circumstances in several cases concerning the tax treatment of lands lying in more than one town. See Vanderminden, 2013 VT 49, ¶ 12 (holding that taxpayer’s land should be treated as one parcel because “[i]t is covered in one deed, used for one common purpose, and functions as a single tract.”); Bullis v. Town of Grand Isle, 151 Vt. 503, 504, 561 A.2d 1359, 1360 (1989) (affirming that parcels of land that are between a quarter of a mile and one mile apart should not be treated as contiguous for tax purposes). We see no reason to diverge from this precedent. Moreover, we find that the Sudbury and Hubbardton portions together function as one tract; the Sudbury portion enhances the whole by providing the units 11 with lakefront access. We therefore conclude that it is proper to value Wanee’s Sudbury portion as part of the whole parcel. The evidence supports the trial court’s conclusion about its fair market value. III. Taxation of the Ownership Interests

 

¶ 19. We finally address taxpayer’s third argument, which is that the trial court erred by upholding Sudbury’s apportionment of the tax burden among the unit owners in relation to their percentage interest in Wanee. He contends that this method is unreasonable and therefore violates both the Fourteenth Amendment and the Proportional Contribution Clause. He further contends that this method does not reflect the actual value that the common property adds to each unit and therefore violates the principal that property tax appraisal value should be proportionate to fair market value. In place of this method for apportioning the tax burden, taxpayer proposes that the tax burden arising from the common property in Sudbury should fall equally on each unit.

 

¶ 20. We disagree. Sudbury’s method of apportioning the tax burden according to ownership interest rather than equally to each unit is reasonable because it takes into account the benefits and burdens of condominium ownership. It comports with the fair market value principle of the Proportional Contribution Clause for the same reason; it reflects the actual value that the common property adds to each unit. Under Vermont law, common expenses in a condominium are charged according to the unit owners’ interests in the common area. See 27 V.S.A. § 1310 (“[T]he common expenses shall be charged to[] the apartment or site owners according to the percentage of the undivided interest in the common areas and facilities.”). This burden is balanced by the actual benefit of having an ownership interest. Upon termination of the condominium, the unit owners gain an interest in the property owned in common according to their previous ownership interest of the condominium. See 27 V.S.A. § 1316 (“[T]he property shall be considered to be owned in common by the apartment or site owners. The undivided 12 interest in the property owned in common which shall appertain to each apartment or site owner shall be the percentage of undivided interest previously owned by the owner in the common areas and facilities.”). Tax is a common expense, so it is reasonable for Sudbury to allocate this burden across the different units according to percentage of ownership interest. It is therefore consistent with the Fourteenth Amendment and the Proportional Contribution Clause.

 

 ¶ 21. This allocation also reflects the historical and prevalent practice in Vermont. In our state, the common area of a condominium community is not taxed as if it is completely independent of the units that own easements to it. Rather, it is allocated to the individually owned units that comprise the condominium, and then those units are taxed. This principle is explained in 27 V.S.A. § 1322, which reads, in part: Each apartment or site and its percentage of undivided interest in the common areas and facilities shall be considered to be a parcel and shall be subject to separate assessment and taxation by each assessing unit and special district for all types of taxes authorized by law . . . . Neither the building, the property nor any of the common areas and facilities shall be deemed to be a parcel. 27 V.S.A. § 1322. This practice is well established in our state, and condominium owners like those in Wanee have advance notice of it. We further note that, despite taxpayer’s argument to the contrary, Sudbury’s method comports with § 1322. The statute prohibits taxing common areas as a separate parcel only if those common areas lie in the same town as the community’s units. It does not prohibit taxing common areas that lie in a wholly separate town from the units. Here, none of Wanee’s units lie within Sudbury, so Sudbury may tax the portion of common area lying within its boundaries.

 

Affirmed. FOR THE COURT: Chief Justice

Compulsory Speech: The Silent Side of the First Amendment

An noted athlete sits out the Pledge of Allegiance...  Since this was done in the context of his work for a private employer, responses to this act of expression have more to do with contract law than with the First Amendment. However, the incident has provided a grand opportunity for the public to discuss whether the First Amendment to the United States Constitution protects your right to not say anything at all....

The First Amendment to the United State Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press…”.  The First Amendment is most commonly invoked to support the unfettered expression of ideas, such as voicing political opinion or creating artistic and literary works. However, First Amendment law also holds that “free speech” means that the government cannot compel you to say things that you do not wish to say. The freedom of speech includes the freedom of silence.
A Small Vermont Example...
The issue of compulsory speech rose in Vermont a few years ago in regards to the new vaccination exemption law. Last winter, the Vermont legislature amended the state’s long-standing statutory process for enrolling unvaccinated children in school.  The law previously required parents to submit to the school a statement “in writing … that the person, parent or guardian…has religious beliefs or philosophical convictions opposed to immunization.”
The amended law required parents to annually complete a form created by the Vermont Department of Health which not only attest to a religious or philosophical opposition to immunizations, but also attesting that the parent or guardian:
--has reviewed and understands evidence-based educational material provided by the department of health regarding immunizations, including information about the risks of adverse reactions to immunization;
--understands that failure to complete the required vaccination schedule increases risk to the person and others of contracting or carrying a vaccine-preventable infectious disease; and
--understands that there are persons with special health needs attending schools and child care facilities who are unable to be vaccinated or who are at heightened risk of contracting a vaccine-preventable communicable disease and for whom such a disease could be life-threatening.
A number of parents, through Attorney Mitch Pearl of Langrock, Sperry and Wool in Middlebury, have objected to the Vermont Department of Health, asserting that the form comprises compulsory speech in violation of their First Amendment rights because the latter two provisions of the form require parents to swear or affirm that they hold certain beliefs about the nature, cause and transmission of disease and the role and effect of vaccinations.
As Attorney Pearl masterfully argued in his letter to the Department of Health, the issue is not a question of the state of scientific, empirical study on vaccinations and disease.  In other words, it does not matter whether or not the two paragraphs in question are true. The Constitutional issue is whether the State can compel individuals to attest to something they may not personally believe, as a prerequisite for participating in a governmental program—in this case, their children’s schooling.
The Pledge of Allegiance
Compulsory speech issues relative to schooling are not new. In 1943, the U.S. Supreme Court ruled in West Virginia State Board of Education v. Barnette that under the First Amendment, public school students cannot be forced to salute the flag or say the pledge of allegiance. An interesting facet of that case is that the Supreme Court did not hinge its decision on protection of the students’ rights of religious expression, even though the students’ families had brought the lawsuit on the grounds that, as Jehovah’s Witnesses, their religion precluded them from saluting icons or partaking in oaths.
Had the Supreme Court ruled on grounds of religious exemption, every student asserting their right to abstain from reciting the pledge would need to demonstrate adherence to a religion which has tenets precluding such an action. By basing their decision on grounds of compulsory speech, the Supreme Court acknowledged a broad-based Constitutional protection which applies regardless of the content of the statement or the nature of the religion of the person asserting the right. 
Other Compulsory Speech Cases
School is not the only venue for compulsory speech conflicts. For example, in 1977, the U.S. Supreme Court ruled in Wooley v. Maynard that the State of New Hampshire could not compel its citizens to display the “Live Free or Die” logo on their license plates. Regardless of the popularity or populist sentiment of the expression, the government cannot force citizens to vocalize or display a message which they do not care to express.
The Supreme Court has been less impressed by First Amendment arguments asserting that citizens cannot be compelled to contribute funds that pay for a government-sponsored message with which the citizen may disagree. In 2005, the Supreme Court determined that the First Amendment rights of grass-fed beef growers were not violated by the terms of the 1985 Beef Act, which requires all cattle raisers to pay $1-per-head into a fund which engages in the generic eat-more-beef advertising campaign. Specialty beef ranchers did not want to participate in generic marketing, as it undercuts their efforts to portray grass-fed beef as better than other categories of beef. The Supreme Court ruled that much as citizens’ tax dollars can be used to buy library books or fund wars with which the taxpayer may not agree, the government may compel payments into a government ad campaign for which the contributor may disagree with the message.
Conclusion
The Vermont immunization form issue was resolved, at least for the moment, after thoughtful dialogue led to changes in the required form.  The issue will no doubt arise again in this immunization context, however, as across the nation the pressure mounts to make failure to comply with these programs punishable by civil and even criminal penalties.  
In other spheres of our lives, compulsory speech issues will likely be increasing as polarization politics adopts leads increasingly to 'litmus tests' of patriotism and loyalty.  False dichotomies are poor logic, and an even poorer basis for democratic governance.  Requiring one to swear to a specific mindset or phrase to obtain government jobs or services leaves the realm of democracy all together.