Prairie Band Pottawatomie Nation v. Federal Highway Administration
2012 U.S. App. LEXIS 14091
| 10th Cir. | 2012Background
- The SLT would bypass congested Lawrence streets by linking K-10 and I-70 around the city; a final decision selected 32B through the Haskell Farm despite alternatives.
- The appellants include Native Nations, environmental groups, and local conservation advocates seeking to protect environmental and cultural resources.
- FHWA and KDOT (plus agency heads) were the defendants; the Army Corps of Engineers participated but was not named.
- Two routes adjacent to a floodplain and a historic site (Haskell Farm) were evaluated; 32B would touch the Farm while 42A would avoid it but have other drawbacks.
- The government conducted a multi-stage NEPA analysis, including a draft and final EIS, and issued a record of decision adopting 32B; appellants challenged under APA, NEPA, and 4(f).
- Appellants proposed a 42C route late in the process; after final EIS, FHWA rejected 42C as unsafe, and the district court denied relief, prompting appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA noise analysis adequacy | Appellants contend the noise analysis violated 23 C.F.R. § 772 and failed to compare predicted to existing noise. | FHWA conducted stage-two analysis with feasible/reasonable noise abatement; any stage-one flaw harmless here. | No reversible error; analysis supported the decision; any stage-one defect was harmless. |
| Failure to reconsider 42C during scoping | Appellants argue 42C should have been considered as a feasible alternative. | Agency acted reasonably in selecting alternatives during scoping; late proposal did not require reconsideration. | Not arbitrary; 42C not required to be analyzed as a fourteenth alternative. |
| Underestimation of 32B costs (wetlands) | Footnote misled cost figures by excluding wetlands costs. | Total wetlands costs were included in other sections; any error was offset by other cost figures. | Costs understated by about $500,000; nonetheless, still not likely to alter the decision given large 32B–42A gap. |
| Section 4(f) imprudence of 42A | 42A should be prudent; cumulative factors insufficient to deem it imprudent. | 42A imprudent based on seven cumulative factors including purpose/need, cost, floodplain impact, development, and net Haskell Farm benefit. | The government’s 4(f) analysis was sufficient; 42A imprudent given cumulative factors. |
Key Cases Cited
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (rigorous but deferential review; not to substitute judgment for agency)
- Custer County Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir. 2001) (rule of reason for NEPA alternative selection)
- Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543 (10th Cir. 1993) (imprudence can rely on cumulative factors; deference to agency judgments)
- Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010) (de novo NEPA review; harmless errors if not prejudicial)
- New Mexico ex rel. Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009) (NEPA errors require prejudice; harmlessness analysis appropriate)