IN THEUNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT
UTAHNS FOR BETTER TRANSPORTATION; ROSS C. "ROCKY" ANDERSON, in his official capacity as Mayor of Salt Lake City, Utah; PAUL C. HUNTER; ROSEMARIE M. HUNTER,
STATE OF UTAH; UTAH DEPARTMENT OF TRANSPORTATION,
UTAHS FOR BETTER TRANSPORTATION,
ROSS C. “ROCKY” ANDERSON, in his official capacity as Mayor of Salt Lake City, Utah; SIERRA CLUB; PAUL C. HUNTER; ROSEMARIE M. HUNTER,
UNITED STATES DEPARTMENT OF TRANSPORTATION; RODNEY SLATER, Secretary, United States Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; KENNETH WYKLE, FHWA Administrator; DAVID GIBBS, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. ARMY CORPS OF ENGINEERS; MICHAEL J. WALSH, Colonel, District Engineer of the Sacramento District; BROOKS CARTER, Chief of the Intermountain Regulatory Section; NORMAN MINETA, Secretary of the United States Department of Transportation; FEDERAL TRANSIT ADMINISTRATION; NURIA FERNANDEZ, Administrator of the Federal Transit Administration; LEE WADDLETON, Regional Administrator of the Federal Transit Administration and his successor,
STATE OF UTAH; UTAH DEPARTMENT OF TRANSPORTATION,
UTAHS FOR BETTER TRANSPORTATION; SIERRA CLUB; PAUL C. HUNTER; ROSEMARIE M. HUNTER,
ROSS C. “ROCKY” ANDERSON, in his official capacity as Mayor of Salt Lake City, Utah,
UNITED STATES DEPARTMENT OF TRANSPORTATION, RODNEY SLATER, Secretary, United States Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; KENNETH WYKLE, FHWA Administrator; DAVID GIBBS, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. ARMY CORPS OF ENGINEERS, MICHAEL J. WALSH, Colonel, District Engineer of the Sacramento District; BROOKS CARTER, Chief of the Intermountain Regulatory Section; NORMAN MINETA, Secretary of the United States Department of Transportation; FEDERAL TRANSIT ADMINISTRATION; NURIA FERNANDEZ, Administrator of the Federal Transit Administration; LEE WADDLETON, Regional Administrator of the Federal Transit Administration and his successor,
STATE OF UTAH; UTAH DEPARTMENT OF TRANSPORTATION,
On Appeal from the United States District Courtfor the District of Utah
Filed November 16, 2001
40 C.F.R. § 230.1(d).
The Supreme Court has indicated that the harm connected with violations of substantive environmental statutes is often irreparable. See Amoco Prod. Co. v. Vill. Of Gambell, 480 U.S. 531, 545 (1987) (holding that substantive “[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable”); see also Catron County Bd. Of Comm’rs. V. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1440 (10th Cir. 1996).
In addition, appellants raise the irreparable harm of displacing farms, residences, and businesses, based on an alignment of the Legacy Parkway which may be modified subsequently. Appellees do not address this aspect of the irreparable harm analysis.
B. Balance of Harm Between Appellants and Intervenors.
Intervenors argue that they will suffer serious harm if injunctive relief is granted because of their contractual obligations, arguing also that the third-party construction company and the public will be harmed. They argue that it will cost hundreds of thousands of dollars to delay construction in this case.
Although intervenors have presented substantial evidence that they will incur a financial loss if the injunction is granted, it appears that much of this harm is self-inflicted. The Utah Department of Transportation awarded the highway contract to Fluor Ames Kramer in December 2000 (before the Army Corps of Engineers approved the project), thereby entering into contractual obligations that anticipated a pro form result. Further, the state agency was aware that there were several court cases challenging the approval of the Legacy Parkway, but chose to proceed nevertheless. This cuts against their claim of harm outweighing the environmental concerns. Cf. Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 806 (3rd Cir. 1998) (“The self-inflicted nature of [defendant’s] harm . . . weighs in favor of granting preliminary injunctive relief.”) Moreover, as the Legacy Parkway is intended to alleviate traffic congestion in the year 2020, the public’s inability to use the highway more than fifteen years earlier does not appear to be substantial harm
B. Public Interest
The concern for wetlands expressed by the Clean Water Act and its implementing regulations demonstrates a strong public interest in their preservation and maintenance. See, e.g., C.F.R. § 320.4(b), which states:
For this reason, the public has an interest in ensuring that all alternatives to the destruction of wetlands have been considered and that unavoidable impacts on such areas are minimized.
The public also has an interest in improving their transportation systems through the construction of necessary roadways. This interest, however, includes the public interest in complying with federal environmental statutes to ensure that the impacts of constructing a roadway are considered.
B. Likelihood of Success.
Based on the above analysis, we conclude that the “balance of harms” factors tip decidedly in appellants’ favor. Accordingly, appellants must establish only that their issues are so serious, substantial, and doubtful, as to be deserving of more deliberate investigation.
Appellants argue that the highway approval process rested on an incomplete Environmental Impact Statement, that the Federal Highway Administration’s decision was arbitrary and capricious, and that the Army Corps of Engineers (Corps) did not apply the correct legal standards in evaluating the project under the Clear Water Act. Because we conclude that appellants have raised a serious and substantial question regarding the Corps’ issuance of a permit under the Clean Water Act, we need not consider appellants’ other arguments.
Wetlands have been provided special protection under the Clean Water Act and its implementing regulations. Before the Corps may issue a permit to fill wetlands, it must evaluate the request under the guidelines set out in 40 C.F.R. § 230. The following requirements “must be met” before a permit may issue:
Id. § 230.10(a) (emphasis added).
In cases such as this one, where a proposed project “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e. is not “water dependent’), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise,” Id. § 230.10(a)(3) (emphasis added). The Corps is not authorized to issue a permit “unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem. Subpart H identifies such possible steps.” Id. § 230.10(d).
A permit may not be issued if the proposed project does not comply with the requirements of § 230.10 because:
Id., § 230.12(a).
The Corps is also required to make written findings regarding “the potential short-term or long-term effects of a proposed discharge of . . . fill material on the physical, chemical, and biological components of the aquatic environment,” including:
Id. § 230.11. Further, the regulations place a duty on the Corps to make its own inquiry if “the NEPA document . . . [do] not . . . consider[ ] the alternatives in sufficient detail to respond to the requirements of these Guidelines. In the latter case, it may be necessary to supplement these NEPA documents with this additional information.” Id. § 230.10(a)(4).
Appellants argue that the Corps did not meet these requirements in considering the Legacy Parkway’s configuration and alignment. The record excerpts which have been provided to us support their argument. With regard to the parkway’s configuration, the Corps’ approval of such a wide right of way appears to discount alternatives that were “practicable,” as that term is defined. For example, it appears from the partial record before us that the Corps did not consider narrowing the median by using barriers that would permit drivers to view the scenery, such as low metal guardrails or posts connected by wire; it did not consider narrowing the maintenance strips or eliminating one of the strips; and it did not consider combining functions such as the utility right of way with the median, or the multi-use path with the maintenance strip. Further, the Corps’ justification for some of its conclusions appear to be contrary to the evidence, such as its conclusion that a wide median is necessary to filter runoff, in light of the proposed extra lanes in the median that will be filtered adequately by the remaining median strip, or its conclusion that drivers will be able to enjoy the vistas without considering the effect of the right-of-way fence that will run along the highway.
With regard to the highway's alignment, the Corps appears to have summarily accepted the representation in the Environmental Impact Statement that alignments other than the Great Salt Lake were impracticable, without evaluating the cost estimates or analyzing whether a 100-meter right of way was necessary to the other alignments. We also question whether the Corps considered the cumulative effects of the project, which apparently contemplates building two more lanes in the median. All of the Corps’ analysis relates to a four-land, as opposed to a six-land highway.
In light of the potential for irreparable harm if construction continues on this project, we grant appellants’ motion to enjoin any further action that will disturb the ground or vegetation in the proposed right of way, pending resolution of the underlying appeals. Activities that will not disturb the ground or vegetation in the proposed right of way may continue. In addition, appellees may take necessary actions to secure the already-build portion of the project.
II. INJUNCTION BOND
Pursuant to Fed. R. App. P. 8(a)(2)(E), we may condition injunctive relief on appellants’ filing a bond in the district court. The bond serves two purposes: to compensate the enjoined party for harm caused by a wrongfully-granted injunction and to deter rash applications for injunctive relief. See Curtis 1000, Inc. v. Youngblade, 878 F. Supp. 1224, 1277 (N.D. Iowa 1995). The bond must not be set so high, however, as to deny the moving party its right to judicial review of its claims. See People ex rel. Van de Kamp v. Tahoe Reg. Planning Agency, 766 F.2d 1319, 1325-26 (9th Cir), amended on other grounds, 775 F.2d 998 (9th Cir. 1985) and cases cited therein.
Considering these factors, we conclude that issuance of an injunction pending appeal in these cases should be conditioned on appellants’ posting of a $50,000 bond. The bond shall be filed in the district court and a notice filed with this court evidencing compliance with the bond requirement.
II. EXPEDITED APPEALS
To minimize the damage to appellees caused by an injunction, we will expedite the underlying appeals in these cases, according to the following schedule: The matter is set for oral argument during the week of March 17, 2002. Appellants’ opening brief(s) shall be received by this court on or before December 21, 2001, with service to appellees by expedited mail or delivery service. Appellees’ response brief(s) shall be received by this court on or before January 23, 2002, with service to appellants by expedited mail or delivery service. Appellants’ reply brief(s) shall be received by this court on or before January 31, 2002. No extensions will be granted.
Entered for the Court
Craig D. Galli (5072)
Michael J. Malmquist (5310)
H. Douglas Owens (7762)
PARSONS BEHLE & LATIMER
One Utah Center201 South Main Street, Suite 1800
Post Office Box 45898
Salt Lake City, Utah 84145-0898
Telephone: (801) 532-1234
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