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Little Traverse Lake Property Owners Association v. National Park Service

United States District Court, W.D. Michigan, Southern Division

December 21, 2016

LITTLE TRAVERSE LAKE PROPERTY OWNERS ASSOCIATION, DOUGLAS JONES, L. GENE MORSE and LINDA MORSE, in their capacities as CO-TRUSTEES of THE LEROY AN LINDA MORSE TRUST, MARY ANN SHUTZ, in her capacity as TRUSTEE OF THE MARY ANN SHUTZ TRUST, and MARCIA SKAJAERLUND, Plaintiffs,
v.
NATIONAL PARK SERVICE, Defendant.

          OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

          HON. GORDON J. QUIST, Judge

         This case presents a challenge under the Administrative Procedure Act, 5 U.S.C. §§ 551-706, to Defendant National Park Service's adoption of a finding of no significant impact as to one segment, Segment 9, of the Leelanau Scenic Heritage Route Trailway Plan. The trail will be a non-motorized pathway that links southern Leelanau County with the Sleeping Bear Dunes National Lake shore at the North end of County Road 651. The entire trail will be built on Park Service property or existing public road rights-of-way. The challenged proposed portion of the trail, Segment 9, would run along the north side of Traverse Lake Road. Plaintiffs own property on the south side of Traverse Lake Road.

         Plaintiffs allege that the Park Service violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370, because it (1) failed to sufficiently disclose and analyze environmental impacts in the environmental assessment, (2) failed to prepare a full environmental impact statement, (3) failed to analyze an adequate range of alternatives, and (4) relied on incomplete, misleading, or inaccurate data. Plaintiffs moved for summary judgment on all counts. (ECF No. 31.) The Park Service cross-moved for summary judgment on the grounds that Plaintiffs waived their arguments by failing to exhaust their administrative remedies and because the Park Service otherwise complied with the National Environmental Policy Act in preparing the environmental assessments and adopting the finding of no significant impact. (ECF No. 35.)

         I. BACKGROUND

         Federal agencies must prepare an environmental impact statement for all “major federal actions significantly affecting the quality of the human environment.” Sherwood v. Tenn. Valley Auth., 590 F.App'x 451, 457-58 (6th Cir. 2014) (citing Sierra Club v. Slater, 120 F.3d 623, 628 (6th Cir.1997)). “Major Federal action includes actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. The significance of an action's effects is determined by evaluating both the context of the action and the intensity of the impact. 40 C.F.R. § 1508.27.

         Agencies prepare an environmental assessment if it is unclear whether or not a proposed action significantly will affect the environment. Sherwood, 590 F. App'x at 457 (citing 40 C.F.R. §§ 1501.4(c) and 1508.9). The environmental assessment is a preliminary document in which the agency must evaluate “the environmental impacts of the proposed action and alternatives.” Kentucky Coal Ass'n, Inc. v. Tennessee Valley Auth., 804 F.3d 799, 804 (6th Cir. 2015) (citing 40 C.F.R. §§ 1508.9, 1501.4(b)). The agency may issue a “finding of no significant impact” and proceed with the proposed actions if the agency determines that an environmental impact statement is not required. Id. (citing 40 C.F.R. §§ 1501.4(e), 1508.13).

         The finding of no significant impact must “briefly present[] the reasons why proposed agency action will not have a significant impact on the human environment.” Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 758, 124 S.Ct. 2204, 2210 (2004) (citing 40 C.F.R. §§ 1501.4(e), 1508.13.)

         In October 2008, the Park Service published an environmental assessment of the trail that included analysis of various environmental impacts. The environmental assessment analyzed three alternatives: Alternative A was a trail “constructed in the M-22/M-109 rights-of-way to the extent possible, only deviating where necessary due to physical or environmental constraints.” (PageID.1229); Alternative B, was a trail “in the M-22/M-109 rights-of-way, in many areas, but deviating from the highway corridor where possible to avoid physical or environmental constraints, provide access to natural, cultural, or recreation resources, and to promote a broader variety of experiences for the Trailway user” (PageID.1246); the environmental assessment also included a “no action” alternative, under which no Trailway would be constructed. Most importantly for the purposes of this case, Alternative A included a segment which tracked M-22, while Alternative B contained a segment that ran along Traverse Lake Road.

         The Park Service held a 30-day comment period and an open house, ultimately receiving about 50 comments. The residents on Little Traverse Lake Road objected to various aspects of the proposed route, largely on the basis that it would increase traffic along Traverse Lake Road; that increased traffic would generate safety risks for hikers and bikers; that the trail would disrupt driveways, mailboxes, and utilities; that M-22 is a preferable route for the trail because it would channel trail users towards businesses along M-22; and that the trail would disrupt wildlife, habitat, and topography. (ECF No. 16-6 at PageID.1170-83, comments numbered 2, 8, 9, 11, 12, 13, 14, 16 -31, 37.) One comment proposed an alternative route. (ECF No. 16-6 at PageID.1177.)

         The Park Service considered these comments and issued a second environmental assessment in March 2009 in which it changed the proposed Segment 9 from a path directly adjacent to Traverse Lake Road to one separated from the road by some distance. The Park Service again made the environmental assessment available for 30 days for public review and comment. No Plaintiff objected to the 2009 environmental assessment, and there was no comment on the 2009 environmental assessment regarding Segment 9. (ECF No. 16-3 at PageID.690; ECF No. 32-1 at 3795-97.) The Park Service issued a finding of no significant impact for the trailway project in August 2009 and selected Alternative B.

         II. DISCUSSION

         A. Waiver

         “Persons challenging an agency's compliance with NEPA must ‘structure their participation so that it ... alerts the agency to the [parties'] position and contentions, ' in order to allow the agency to give the issue meaningful consideration.” Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 2213 (2004) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 1216 (1978)). An objection must also be detailed enough to “allow the agency to rectify the alleged violation.” Karst Envtl. Educ. & Prot., Inc. v. Fed. Highway Admin., 559 F.App'x 421, 424 (6th Cir. 2014) (internal quotation marks omitted). “The question … is whether the claim raised in the administrative process was similar enough to that raised in the federal complaint that the agency was on notice that it must consider and decide the same claim now raised.” Id. at 427. Failure to properly object at the administrative stage generally “forfeit[s] any objection” to the environmental analysis on that ground, but “an EA's or an EIS'[s] flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action.” Pub. Citizen, 541 U.S. at 764-65, 124 S.Ct. at 2214.

         The Park Service argues that Plaintiffs forfeited their objections when they failed to comment on the 2009 environmental assessment. (ECF No. 35 at PageID.3820.) Plaintiffs argue that the comments on the October 2008 environmental assessment sufficiently alerted the Park Service to the issues now before the Court, or that the environmental assessment's flaws are ...


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