Sierra Club North Star Chapter ST Croix River SJ

Case 0:07-cv-02593-MJD-SRN Document 80 Filed 05/29/09 Page 1 of 48
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
)
Sierra Club North Star Chapter, )
)
Plaintiff, )
) Civil No. 07-2593-MJD-SRN
v. )
)
Ray LaHood, Secretary of Transportation; ) MEMORANDUM IN SUPPORT OF
Jeffrey Paniati, Federal Highway ) PLAINTIFF’S MOTION FOR
Administrator; Ken Salazar, Secretary of ) SUMMARY JUDGMENT
the Interior; and Daniel Wenk, Director of )
the National Park Service, )
)
Defendants. )
)
In this lawsuit, the Sierra Club challenges the federal government’s decision to
approve the construction of a four-lane highway bridge (the “Proposed Bridge”) over the
Lower St. Croix River. The Lower St. Croix, which runs along the Minnesota-Wisconsin
border near the Twin Cities, was designated a wild and scenic river in 1976 due to its
“outstandingly remarkable scenic, recreational, and geologic values.” Cooperative
Management Plan; Lower St. Croix National Scenic Riverway (hereafter “Management
Plan”), NPS Doc. 1 at 4.1
1
Documents in the administrative record are cited by reference to their first page. Thus,
because the Management Plan begins on page 1 of the National Park Service record, this
document is cited as “NPS Doc. 1.” Documents in the Federal Highway Administration
record are similarly cited. E.g., FHWA Doc. 9019.
1
The Proposed Bridge is the latest iteration of an ongoing campaign to sacrifice the
Lower St. Croix’s scenic and recreational values for the sake of road expansion. State
and federal transportation agencies have long clamored to build a new highway bridge
over this river – even though the river is already traversed by the Stillwater lift bridge and
the I-94 crossing eight miles downriver. In 1995, the transportation agencies proposed to
build a four-lane bridge about a mile south of Stillwater. Sierra Club sued to stop the
project, arguing that it would violate the Wild and Scenic Rivers Act (“WSRA”) and
other statutes.
Prompted by Sierra Club’s lawsuit, the National Park Service (“NPS”) evaluated
that bridge proposal under Section 7 of the WSRA, which prohibits federal assistance for
“any water resources project that would have a direct and adverse effect on the values for
which such river was established.” 16 U.S.C. § 1278(a). NPS concluded that this bridge
would adversely affect the Lower St. Croix’s scenic and recreational values. See Section
7(a) Evaluation; Wild and Scenic Rivers Act; Proposed New St. Croix River Crossing,
Nov. 1996 (“1996 Section 7 Evaluation”), NPS Doc. 373. As a consequence, the Federal
Highway Administration (“FHWA”) rescinded its approval of the project and the Lower
St. Croix was spared from the threat posed by this massive bridge. This Court
subsequently upheld NPS’s decision. See Sierra Club North Star Chapter v. Peña, 1
F. Supp. 2d 971 (D. Minn. 1998).
Now, FHWA has once again approved a bridge proposal that would irreparably
harm the Lower St. Croix. Indeed, the Proposed Bridge is virtually identical to the 1995
proposal rejected by NPS. This time around, however, NPS inexplicably reversed its
2
1996 position and concluded that the Proposed Bridge would not violate Section 7 of the
WSRA.
In doing so, NPS breached its obligations under the WSRA, the Management Plan
for the Lower St. Croix National Scenic Riverway, and the NPS Organic Act and General
Authorities Act. Moreover, the environmental impact statement (“EIS”) for the Proposed
Bridge violates the National Environmental Policy Act (“NEPA”), and FHWA’s approval
of the Proposed Bridge violated Section 4(f) of the Transportation Act. Because the
Proposed Bridge is contrary to federal law, Sierra Club seeks a declaration from this
Court that the defendants’ authorization of the Proposed Bridge was unlawful, an
injunction to prevent construction of the bridge, and an order vacating the defendants’
authorization of this bridge.2
BACKGROUND
A. The Wild And Scenic Rivers Act
The WSRA, which was enacted in 1968, established a national policy that certain
rivers with “outstandingly remarkable scenic, recreational, geologic, fish and wildlife,
historic, cultural, or other similar values, shall be preserved in free-flowing condition,”
and that these rivers “and their immediate environments shall be protected for the benefit
and enjoyment of present and future generations.” 16 U.S.C. § 1271. Congress
2
Sierra Club has standing to bring this action. As explained in the attached declarations,
the Proposed Bridge project would harm the interests of Sierra Club’s members. See
Declarations of Ronald Carlson, Thomas Clarke, and James Rickard. Additionally,
Sierra Club has standing to sue on behalf of its members. See Sierra Club v. U.S. Army
Corps of Eng’rs, 446 F.3d 808, 816 (8th Cir. 2006).
3
implemented this policy by establishing a national Wild and Scenic River System and
developing a process so that other rivers with “outstandingly remarkable values” could be
added to the system.
The upper stretch of the St. Croix was one of eight rivers originally included in the
system. See 16 U.S.C. § 1274(a)(6). At the time of the Act’s passage, the Lower St.
Croix was designated a study river so it could be added at a later date. Id. § 1276(a)(21).
The WSRA contains several provisions designed to protect designated rivers and
their environments. Foremost among these is Section 10(a), which mandates that wild
and scenic rivers be managed “in such manner as to protect and enhance the values which
caused it to be included in said system without . . . limiting other uses that do not
substantially interfere with public use and enjoyment of these values.” 16 U.S.C.
§ 1281(a).
In addition to this “protect and enhance” requirement, wild and scenic rivers are
protected by Section 7 of the WSRA. Section 7 provides that “no department or agency
of the United States shall assist by loan, grant, license, or otherwise in the construction of
any water resources project that would have a direct and adverse effect on the values for
which such river was established, as determined by [the administering agency].”
16 U.S.C. § 1278(a). Section 7 thus requires NPS to evaluate whether a “water resources
project” – such as a bank stabilization project, docking facility, or bridge – “would have a
direct and adverse effect” on the river’s outstandingly remarkable values. See Friends of
Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1027 (9th Cir. 2008) (“The WSRA
framework designates rivers based on specific ‘outstandingly remarkable values’ . . .
4
which both justify the initial designation of a river as a WSRS component and provide
the benchmark for evaluating a proposed project affecting a designated river.”). If NPS
finds that a water resources project would have a “direct and adverse effect,” the project
cannot be authorized or funded absent congressional intervention. See generally
Memorandum of Law & Order (Dkt. No. 34) (May 15, 2008) (“May 15 Order”) at 5-6.
B. The Lower St. Croix National Scenic Riverway
The Lower St. Croix is widely recognized for its pristine natural character and
scenic qualities. The river passes through a variety of landscapes, including a deep,
narrow gorge and broad valleys lined with wooded bluffs. Complaint for Declaratory and
Injunctive Relief (Dkt. No. 1) (“Complaint”) ¶ 52; Federal Defendants’ Answer (Dkt.
No. 9) (“Answer”) ¶ 52. This “juxtaposition of landforms and geologic features,
including the bluffs, islands, the Dalles, and Lake St. Croix, [is] unique.” Management
Plan, NPS Doc. 1 at 19. Moreover, the towns along the Lower St. Croix, such as Taylors
Falls and Stillwater, have “retain[ed] their historic small town character.” Id.
The Lower St. Croix is also “considered to be a hot spot from a biodiversity
standpoint, supporting a rich fauna and flora population.” Complaint ¶ 53; Answer ¶ 53
(citation omitted). The Riverway hosts “[a] mosaic of biological communities . . .,
including southern hardwood forests, oak savannahs, and lowland forests. . . . Several
special habitats are rare or unique in this region: bedrock outcrops, oak savannahs, and
floodplain islands harbor their own special plant associations and wildlife populations.”
Id.
5
Critically, the Lower St. Croix “has one of the richest freshwater mussel
communities in the world and serves as a major refuge for both globally and regionally
endangered mussel species.” Complaint ¶ 54; Answer ¶ 54 (citation omitted). The river
harbors forty species of mussel, including the federally-endangered Higgins’ eye
pearlymussel and the winged mapleleaf mussel, whose only known population is in this
river. Id. The Riverway is home to many additional wildlife species, including a diverse
population of birds (such as the federally-protected bald eagle and peregrine falcon),
dozens of fish species, and numerous mammals such as river otter and beaver. Complaint
¶ 55; Answer ¶ 55.
Because of its natural and scenic qualities, as well as its proximity to the Twin
Cities, the Lower St. Croix is a popular destination for recreational activities, including
boating, hiking, skiing, canoeing, camping, and fishing. The Riverway and its associated
state and local parks receive more than 2 million visitors annually. Complaint ¶ 57;
Answer ¶ 57.
In recognition of the river’s “outstandingly remarkable scenic, recreational, and
geologic values,” NPS Doc. 1 at 17, Congress passed the Lower St. Croix Act in 1972.
This Act designated the upper portion of the Lower St. Croix as a wild and scenic river
and provided a means for designation of the southernmost stretch, which occurred in
1976. 16 U.S.C. § 1274(a)(9). As NPS has recognized, protecting against
overdevelopment was one of the principal purposes of the Act:
[T]his is one of the last remaining major rivers in the United

States which lies within a major metropolitan area and is still
relatively unspoiled. The river borders the eastern boundary
6
of the Minneapolis-St. Paul urban area and is within easy

access of over 2 million people. Ironically, it is this
accessibility which places in jeopardy the features which
make this river an outstanding natural resource, and which
makes it imperative that the river quickly receive protection
under the Wild and Scenic Rivers Act. . . .
If comprehensive protection is not extended to the riverway,

the St. Croix will eventually become one more city river, its
waters poisoned with pollution, its shorelines gutted with
indiscriminate development.
118 Cong. Rec. at 34391, 34393 (Oct. 9, 1972) (statements of Sens. Jackson and Nelson).
These concerns were warranted. The Lower St. Croix is increasingly under threat
from land development and roadbuilding. See NPS Doc. 1 at 20, 21, 23. Urbanization
has been particularly intense in Washington County, Minnesota, and St. Croix County,
Wisconsin – the location of the Proposed Bridge. FHWA Doc. 5193 at 5193, 5194;
FHWA Doc. 31021 at 31028; see also FHWA Doc. 32816 at 32823 (noting that St. Croix
County “lost almost 6,500 acres of farmland each year between 1997 and 2002”). If not
properly managed, this development could threaten the very qualities for which the
Lower St. Croix was designated a wild and scenic river. See NPS Doc. 1604 at 1608
(NPS comments on the Proposed Bridge stating that “[b]ridge-related land development
and land use change could significantly affect scenic integrity; water quality; and the
natural, cultural and recreational resources of the Riverway and its larger view shed”).
C. The 1995 Bridge Proposal
In recent years, the most serious threat to the Lower St. Croix has been an
unceasing effort to construct a mammoth new bridge over the river. This effort, which
has been led by FHWA, the Minnesota Department of Transportation (“MnDOT”), and
7
the Wisconsin Department of Transportation (“WisDOT”) (collectively, the
“transportation agencies”), initially resulted in a record of decision in July 1995. The
agencies’ preferred alternative was a four-lane bridge that would cross the river about a
mile south of Stillwater (the “1995 Proposal”).
Sierra Club filed suit to enjoin the project. Among other claims, Sierra Club
alleged that NPS had failed to evaluate whether the 1995 Proposal “would have a direct
and adverse effect” on the Lower St. Croix’s outstandingly remarkable values, as Section
7 of the WSRA requires. 16 U.S.C. § 1278(a).
NPS subsequently conducted the Section 7 evaluation. In late 1996, NPS issued
its evaluation, which found that the 1995 Proposal would have a direct and adverse
impact on the Lower St. Croix’s scenic, recreational, and biological values. See
generally 1996 Section 7 Evaluation, NPS Doc. 373.
The Evaluation recognized that this bridge would have a greater impact on the
Riverway’s scenic values than any shoreline development, and that “[a] bridge cutting
across the river is fundamentally different in terms of its visual impacts than the impacts
of shore and bank development.” NPS Doc. 373 at 436. NPS explained that the adverse
effects of this new bridge could not be avoided through mitigation measures. Id. at 436,
454.3 NPS also found that the 1995 Proposal would negatively affect the Lower St.
3
An NPS official reiterated this point in a September 2003 e-mail: “[N]o matter how you
design it, a bridge across a river as wide as the St. Croix is here cannot be hidden. A
bridge inherently has an adverse effect on a Wild and Scenic River where the intent is to
have as few works of man in view of the river as possible.” NPS Doc. 894 at 894.
8
Croix’s recreational values and its mussel populations, which “should be protected to the
same extent as the outstandingly remarkable scenic and recreational values.” Id. at 410,
420, 440.
After the 1996 Section 7 Evaluation was released, the federal government
withdrew its authorization and financial support of the 1995 Proposal. In an effort to
save the project, MnDOT and WisDOT intervened in Sierra Club’s lawsuit and disputed
NPS’s conclusions. Peña, 1 F. Supp. 2d at 981. This Court rejected their arguments,
noting that the new bridge “would change the scenic qualities of the Lower St. Croix
more than any development since the river’s designation,” and that “it would have a
fundamentally greater visual impact than any of the current shoreline development.” Id.
at 982. These observations bear equally on the Proposed Bridge at issue here.
D. The 2006 Bridge Proposal
After this Court’s 1998 decision, FHWA and the state DOTs began working to
revive the project. Initially, the transportation agencies pursued the project through the
“Braun facilitation process,” which was led by a former MnDOT Commissioner. This
process resulted in another proposal (the “Braun C Alternative”) for a four-lane bridge
over the Lower St. Croix, except that this bridge would have been shorter than the 1995
Proposal. See NPS Doc. 694 at 694. The Braun process was halted in January 2001 and
no EIS was published. FHWA Doc. 9019 at 9022.
The following year the transportation agencies renewed their efforts to build a
bridge. These efforts gained momentum in September 2002, when President George W.
Bush issued Executive Order 13274, which established a process for accelerating certain
9
transportation projects. The Bush Administration identified the St. Croix project as one
of seven nationwide that would be “fast-tracked” under this executive order. FHWA
Doc. 4057 at 4061.
In March 2004, FHWA and the state DOTs issued a Final Amended Scoping
Decision Document (“final scoping document”). See FHWA Doc. 2906. In this
document, the transportation agencies identified five “build” alternatives for the St. Croix
River Crossing Project.4 These alternatives are briefly described below, and their
locations are illustrated on the maps in Exhibit A:
Alternative B: This was the 1995 Proposal. It called for the construction of
a four-lane highway bridge about a mile south of the Stillwater lift bridge.
FHWA Doc. 2906 at 2923. The height of the bridge would range from 72
feet to 128 feet. NPS Doc. 373 at 387.
Alternative B-1: This alternative (which ultimately became the Proposed

Bridge) called for the construction of a four-lane highway bridge slightly to
the south of the 1995 Proposal. FHWA Doc. 9019 at 9023. This bridge
would rise even higher than the 1995 Proposal – between 113 feet and 159
feet. FHWA Doc. 7857 at 7871; see also FHWA Doc. 31898 at 31901
(acknowledging that the Proposed Bridge would be taller).5
Alternative C: This alternative called for the construction of a four-lane

highway bridge approximately three-quarters of a mile south of the lift
bridge. FHWA Doc. 2906 at 2924. Alternative C is similar to the “Braun
C alternative” developed in the late 1990s. See FHWA Doc. 9019 at 9026.
4
Another alternative, termed Alternative A, would have avoided construction of a new
bridge by rehabilitating the Stillwater lift bridge and using a combination of
transportation techniques, including mass transit. FHWA Doc. 2906 at 2923. FHWA
dropped this alternative during the scoping process.
5
Alternative B-1 included two sub-alternatives: B-1a proposed closing the Stillwater lift
bridge to motorized vehicles, while B-1b would leave the lift bridge open to local traffic.
See FHWA Doc. 4117 at 4132. Alternative B-1a was ultimately chosen.
10
Alternative D: This alternative called for the construction of a four-lane

bridge less than half a mile south of the lift bridge. FHWA Doc. 2906 at
2925. This bridge would rise between 68 and 82 feet above the river. NPS
Doc. 694 at 694.
Alternative E: This alternative called for the construction of a two-lane

bridge less than half a mile south of the lift bridge. FHWA Doc. 2906 at
2926. This bridge would rise 61 feet above the river. NPS Doc. 694 at
695. Under this alternative, the lift bridge would be converted to one-way
traffic for westbound travelers, and the new bridge would handle eastbound
traffic.6
In August 2004, the transportation agencies issued their Supplemental Draft EIS
(“Draft EIS”), which discussed four of the build alternatives (B-1, C, D, and E), in
addition to the no-build alternative. Although the Draft EIS did not identify a preferred
alternative, the agencies had begun focusing on Alternative B-1 – the alternative similar
to the 1995 Proposal – long before it was officially chosen. Indeed, in August 2003 a
Minnesota Department of Natural Resources (“DNR”) official criticized the
transportation agencies for essentially rehashing the 1995 Proposal:
Based on the presentation this week, the twin bridge project

[Alternative E] is infeasible because the old bridge isn’t going
to last. Based on information we’ve received before, TSM
[Alternative A] doesn’t go far enough to solve the problem.
Oh, gee, that means the only option left to them is the old
1995 alignment. We were tipped off going into this process
that MnDOT and WisDOT were going to try to go back to
that alternative. Now they’re showing their cards.
6
Alternative E was loosely based on the “3 Architects” or “Twin Bridges” plan, which
proposed a “low and slow” bridge in order to preserve the lift bridge and minimize
environmental harm. See FHWA Doc. 30246 at 30257-58. After receiving this proposal,
however, the transportation agencies substantially modified the plan, resulting in a design
with greater impacts. See FHWA Doc. 31738 at 31738; FHWA Doc. 32816 at 32819.
11
NPS Doc. 880 at 880. By February 2004 – before either the final scoping document or
Draft EIS had been published – NPS was aware that the transportation agencies had
settled on Alternative B-1. See NPS Doc. 903 at 905 (“You are correct that MnDOT does
have a preferred alternative.”).7
Throughout the EIS process, the project proponents resisted any reconsideration of
their 1995 decision to build a massive new bridge. By March 2003, the relevant federal
agencies – including FHWA and NPS – had “agree[d] that a ‘New River Crossing’ is a
common goal” because the St. Croix project had been selected to be fast-tracked through
the Environmental Streamlining Task Force. FHWA Doc. 30212 at 30213. And in an
October 2002 memorandum, MnDOT’s contractor noted that the permitting agencies
considered the issues of bridge alignment, height, and number of lanes to be “off the
table.” FHWA Doc. 30108 at 30118.
When the transportation agencies issued the Supplemental Final EIS (“Final EIS”)
in June 2006, they identified Alternative B-1 – the Proposed Bridge – as their preferred
7
During the scoping and EIS processes, the transportation agencies consulted with a
“stakeholders group,” which consisted of representatives from state and federal agencies,
municipalities, and other groups. Although the stakeholders group was given an
opportunity to comment on the process, the transportation agencies retained
decisionmaking authority. FHWA Doc. 4079 at 4094. Sierra Club participated in the
stakeholders group, but it did not sign off on the Proposed Bridge. Nor did the City of
Oak Park Heights. Indeed, the City had to go to court to protect its municipal consent
rights under Minnesota state law. In October 2007, the Washington County District
Court issued an opinion upholding the City’s right to proceed under the municipal
consent statutes that were in effect at the time of the 1995 Proposal. The basis for the
court’s ruling was that the Proposed Bridge “is materially and substantially the same
project as it was in 1995.” City of Oak Park Heights v. State, Case No. 82-C0-06-
006815, Order at 5 (Oct. 18, 2007), attached as Exhibit B.
12
alternative. This became the selected alternative when FHWA issued its Record of
Decision in November 2006.
The Proposed Bridge bears remarkable similarities to the 1995 Proposal that was
rejected by NPS. Among other things:
• Both the Proposed Bridge and the 1995 Proposal call for the
construction of a massive four-lane highway bridge within the
Lower St. Croix National Scenic Riverway.
• The Proposed Bridge is in nearly the same location as the 1995

Proposal. FHWA Doc. 9019 at 9023; FHWA Doc. 2906 at 2923.
• Both the Proposed Bridge and the 1995 Proposal would rise more
than 100 feet above the river. FHWA Doc. 7857 at 7871; NPS Doc.
373 at 387. (By way of comparison, the deck of the Stillwater lift
bridge is only 14 feet above the river. NPS Doc. 2324 at 2324.)
• The Proposed Bridge is even taller than the 1995 Proposal. FHWA
Doc. 31898 at 31901. The Proposed Bridge would rise 113 feet
above the Minnesota shore and 159 feet above the Wisconsin shore,
and its towers would stand approximately 200-235 feet above the
river. NPS Doc. 462 at 469; FHWA Doc. 7857 at 7871.
• The visual impacts of the Proposed Bridge would be as great as, or

even greater than, those of the 1995 Proposal. See NPS Doc. 694 at
694.8
• The width of the two bridges is nearly identical: 104 feet for the
1995 Proposal and a total width of 118 feet (including the cable tie-
in areas) for the Proposed Bridge. NPS Doc. 373 at 386; NPS Doc.
462 at 469.
8
Although the Proposed Bridge’s perpendicular alignment was purportedly chosen to
“obstruct views less than a more diagonal crossing in the same location (such as the 1995
[Proposal]),” NPS Doc. 1584 at 1586, the evidence suggests that the Proposed Bridge
would have greater visual impacts than the 1995 Proposal. Compare NPS Doc. 462 at
507 with Peña, 1 F. Supp. 2d at 982.
13
• The Proposed Bridge is longer than the 1995 Proposal: 3930 feet for
the 1995 Proposal and 4953 feet for the Proposed Bridge. NPS Doc.
373 at 387; NPS Doc. 462 at 469.
• Both the Proposed Bridge and the 1995 Proposal would sink several
large concrete piers into the Lower St. Croix riverbed. NPS Doc.
373 at 387; NPS Doc. 462 at 469.9
In an effort to draw some distinction between these two proposals, the
transportation agencies offered several mitigation items, including the use of a “context-
sensitive” bridge design, the removal of a shoreline barge facility and a nearby industrial
building, some limited bluffland restoration and purchases, and the conversion of the
Stillwater lift bridge to pedestrian and bike traffic. See Draft Section 7(a) Evaluation;
Wild and Scenic Rivers Act; St. Croix River Crossing, Oct. 2005 (“2005 Section 7
Evaluation”), NPS Doc. 462 at 504-08.
Although NPS’s 1996 Section 7 Evaluation had found mitigation measures to be
insufficient, NPS Doc. 373 at 436, the agency took a much different approach to the
project this time around. As early as June 2003, Paul Hoffman, the Interior Department’s
Deputy Assistant Secretary in charge of NPS, expressed support for a new bridge. See
NPS Doc. 879 ([W]e are moving forward on this project in a way that will more likely be
successful this time.”). Equally troubling, at times NPS virtually surrendered its
independence from FHWA and the Department of Transportation. For example, Deputy
Assistant Secretary Hoffman gave Department of Transportation officials the opportunity
9
Though FHWA and NPS planning documents mention a range of four to six piers, the
administrative record clarifies that the Proposed Bridge will have at least six piers in the
river. NPS Doc. 2402 at 2404.
14
to revise NPS’s comments before they were formally provided to FHWA. See NPS Doc.
2096 at 2097 (“I want Tom Bradley and [Transportation Department Counselor] Mike
O’Malley to have a shot at this before we finalize anything.”); NPS Doc. 2188 (e-mail
from Mr. O’Malley stating that “[w]e appreciate the changes”).
When it issued the 2005 Section 7 Evaluation, NPS found that the Proposed
Bridge project would not have a direct and adverse effect on the Lower St. Croix’s scenic
and recreational values. NPS Doc. 462 at 517-18. The agency neglected to consider
whether the Bridge would adversely affect the river’s mussel communities.
LEGAL STANDARD
Summary judgment is appropriate when there are no genuine issues of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
claims in this case are reviewed pursuant to the Administrative Procedure Act, 5 U.S.C. §
706 (“APA”). Under the APA, courts set aside agency actions that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). An action is arbitrary and capricious if the agency “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.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). Likewise, an agency violates the APA if it “fail[s] to
apply the relevant statutory authority in making its decision.” Sokol v. Kennedy, 210 F.3d
876, 878 (8th Cir. 2000).
15
Finally, and particularly relevant here, courts apply a heightened standard of
review when an agency reverses an earlier decision. In those circumstances, the agency
is “obligated to supply a reasoned analysis for the change beyond that which may be
required when an agency does not act in the first instance.” Sierra Club v. Clark, 755
F.2d 608, 619 (8th Cir. 1985) (citing State Farm, 463 U.S. at 42); see also Gatewood v.
Outlaw, 560 F.3d 843, 847 (8th Cir. 2009) (“We have construed State Farm as requiring
a fuller explanation when ‘a new rule reflects a departure from the agency’s prior
policies.’”) (quoting Macon County Samaritan Memorial Hosp. v. Shalala, 7 F.3d 762,
765-66 (8th Cir. 1993)).
ARGUMENT
I. THE 2005 SECTION 7 EVALUATION VIOLATES FEDERAL LAW.
NPS’s 2005 Section 7 Evaluation is unlawful for five reasons. First, by approving
construction of virtually the same bridge it rejected in 1996, NPS arbitrarily reversed its
earlier position without providing an explanation. Second, even apart from this reversal
in policy, NPS’s conclusion – that the Proposed Bridge would not directly and adversely
affect the Lower St. Croix’s outstandingly remarkable values – was arbitrary and
capricious. Third, NPS’s authorization of this project violates the directives of the Lower
St. Croix Management Plan. Fourth, in approving the Proposed Bridge, NPS failed to
consider whether its decision satisfied the “protect and enhance” requirement of Section
10(a) of the WSRA. Finally, NPS failed to address whether the Proposed Bridge project
would violate the non-impairment requirement of the Organic Act. For all these reasons,
the 2005 Section 7 Evaluation is unlawful and should be vacated.
16
A. The National Park Service Arbitrarily Reversed Its Position Without

An Explanation.
Under the APA, when an agency reverses its position, the agency must “supply a
reasoned analysis for the change beyond that which may be required when an agency
does not act in the first instance.” Clark, 755 F.2d at 619 (citing State Farm, 463 U.S. at
42); see also Macon County, 7 F.3d at 765-66. If the agency does not adequately explain
the basis for its change in position, its decision “is quintessentially arbitrary and
capricious.” La. Public Service Comm’n v. FERC, 184 F.3d 892, 897 (D.C. Cir. 1999).
NPS’s 2005 Section 7 Evaluation represents just such an unexplained change in policy.
1. The 1996 Section 7 Evaluation
As noted above, in 1996 NPS concluded that the construction of a large bridge
would have a direct and adverse effect on the Lower St. Croix’s scenic and recreational
values. NPS Doc. 373 at 435-36, 440, 454. With respect to the Lower St. Croix’s scenic
values, NPS analyzed the 1995 Proposal from three different vantage points. The agency
found that this bridge would have significant impacts throughout the viewshed. For
example, on the stretch of river closest to the project, “the proposed bridge would be far
more visually apparent than the . . . shoreline development.” Id. at 430. The bridge
would also disrupt “[t]he historic character of the city of Stillwater and the view of the
existing historic bridge.” Id. Regardless of vantage point, NPS found that the bridge
would have a much greater impact on the Lower St. Croix’s scenic values than the
existing shoreline development. Id. at 426, 431, 433, 434.
17
Indeed, the agency recognized that a large highway bridge would have a far
greater impact on the Riverway’s scenic values than any shoreline development possibly
could:
Placing a massive bridge where there previously was not one

results in a fundamental change in the scenic qualities that
existed in this portion of the Riverway at the time of
designation. . . . The visual impacts of the existing shoreline
development . . . [are] not comparable to visual impacts
which would occur if the proposed bridge is constructed. A
bridge cutting across the river is fundamentally different in
terms of its visual impacts than the impacts of shore and bank
development.
NPS Doc. 373 at 435-36 (emphasis added).10
NPS explained that these adverse effects could not be avoided through mitigation
measures. The agency noted that “[o]pportunities to mitigate the visual impacts of the
proposed bridge are very limited” because “‘a four-lane bridge cannot be hidden from
view.’” Id. at 434 (citation omitted). And although the transportation agencies had tried
to mitigate the negative impacts through design elements, the use of “these design
elements even along with all other available mitigation strategies would not be sufficient
to less[e]n the negative visual impacts of the proposed bridge on the scenic values for
which the river was designated.” Id. at 436 (emphasis added). NPS flatly concluded that
“[t]he severity and magnitude of the visual impacts . . . are so great that they cannot be
significantly reduced by the available mitigation measures.” Id.; see also id. at 454 (“The
10
As an NPS official noted in September 2003, the agency had previously objected to
“the ‘monster’ nature of the original proposal.” NPS Doc. 894 at 894.
18
direct and adverse effects the proposed bridge would have on the scenic and recreational
values . . . cannot be adequately mitigated.”).
NPS also found that the 1995 Proposal would adversely affect the Lower St.
Croix’s recreational values by impairing recreationists’ “enjoyment of the natural and
historic scene” along this stretch of the river. Id. at 440. The recreational experience
would be further degraded by traffic noise and additional instream obstructions. Id.
2. The Agency Arbitrarily Reversed Its Position.
As explained above at 13-14, the Proposed Bridge is identical in all relevant
respects to the 1995 Proposal rejected by NPS. Yet, notwithstanding the agency’s prior
conclusion that the construction of a large bridge would have a direct and adverse effect
on the Riverway’s scenic and recreational values, and that mitigation could not offset
those effects, NPS reached the opposite conclusion in 2005.
In its 2005 Section 7 Evaluation, NPS acknowledged that the Proposed Bridge
would have an adverse effect on the scenic and recreational values of the Lower St.
Croix. NPS Doc. 462 at 517-18. NPS also frankly admitted that the minimization and
mitigation measures incorporated into the project would be largely ineffective. Id. at 505,
508-09. The agency nevertheless concluded that these measures would somehow
“offset[] the impact of the preferred crossing to the scenic resources of the Riverway.”
Id. at 511. NPS also found that these measures would offset the Proposed Bridge’s
negative effect on the Riverway’s recreational values. Id. at 516. But even though its
conclusions contradict those of the 1996 Section 7 Evaluation, the agency made no
19
attempt to reconcile them or otherwise explain the basis of its reversal. The 2005 Section
7 Evaluation does not even cite the 1996 Evaluation.
In 1996, NPS found that the construction of a “massive bridge” along this stretch
of the Lower St. Croix would have a direct and adverse effect on the Riverway’s scenic
and recreational values. In 2005, the agency reached the opposite conclusion without
explaining this change in course. Because NPS failed to “supply a reasoned analysis for
the change” in policy, the 2005 Section 7 Evaluation is arbitrary and capricious, and
should be vacated. Sierra Club, 755 F.2d at 619 (citing State Farm, 463 U.S. at 42).
B. The 2005 Section 7 Evaluation Is Otherwise Arbitrary And Capricious.
Even apart from the arbitrariness of NPS’s reversal of position, the 2005 Section 7
Evaluation suffers from multiple deficiencies.
First, NPS “entirely failed to consider an important aspect of the problem,” State
Farm, 463 U.S. at 43, because the agency did not evaluate the effect of the Proposed
Bridge on the Lower St. Croix’s mussel communities, including the federally-endangered
Higgins’ eye pearlymussel and the winged mapleleaf mussel. NPS concluded in its 1996
Section 7 Evaluation that the mussel populations of the Lower St. Croix represented an
“outstandingly remarkable value” that “should be protected to the same extent as the
outstandingly remarkable scenic and recreational values.” NPS Doc. 373 at 410. And
because the 1995 Proposal would result in the destruction and disturbance of mussels and
their habitat, NPS found that this project would have a direct and adverse effect. Id. at
418, 420-21.
20
Despite its earlier conclusion that these mussel communities were an outstandingly
remarkable value, NPS dropped this analysis entirely in the 2005 Section 7 Evaluation.
The Evaluation hardly mentions mussels at all.11 Because NPS should have discussed the
impact of the Proposed Bridge on the Lower St. Croix’s mussel populations, the agency’s
omission renders the 2005 Section 7 Evaluation arbitrary and capricious.
Additionally, the 2005 Section 7 Evaluation is arbitrary because its discussion of
mitigation “runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43.
In the document, NPS recognized the limited effectiveness of the mitigation measures
associated with the Proposed Bridge project. For example, the purchase of blufflands
“would not have the same scenic or wildlife value as that impacted by the [Proposed
Bridge],” and the removal of a sign from the Wisconsin bluff “provides very little in the
way of restoring scenic value.” NPS Doc. 462 at 508. NPS also acknowledged that
removing the Xcel Energy barge facility would have a limited impact because these
structures, which “are lower in height and positioned parallel to the Minnesota riverbank,
. . . do not obstruct views to [the] same degree as would the [Proposed Bridge].” Id. And
although NPS noted that it would be nice to convert the Stillwater lift bridge to non-
motorized traffic, “the fact that the Lift Bridge would remain if the [Proposed Bridge] is
constructed results in two bridges in a section of river where there was one at the time of
11
The entire document contains only two cursory references to mussels, with no
discussion of the degree of impacts, the effect of permanent habitat loss, or the project’s
long-term effects on mussel communities. See NPS Doc. 462 at 487, 488.
21
designation and would create an increased urban nature to this stretch of the Riverway.”
Id. at 508-09.
NPS likewise conceded the limited effectiveness of using a “context-sensitive”
bridge design: “[T]he construction of a bridge of this size would introduce a massive
constructed feature that fundamentally alters the scenic qualities of this segment of the
Riverway. Minimization strategies alone cannot reduce the impact of the proposed
bridge on the scenic values of the Riverway to an acceptable level.” Id. at 505. The
agency’s observations are consistent with its 1996 finding that minimization and
mitigation measures “would not be sufficient to less[e]n the negative visual impacts of
the proposed bridge on the scenic values for which the river was designated.” NPS Doc.
373 at 436. Moreover, NPS’s findings are mirrored by internal agency discussions, in
which the principal author of the 2005 Section 7 Evaluation acknowledged that the
limited effectiveness of mitigation was one of the “weaknesses” of the document. See
NPS Doc. 2121 (“Nothing removed of similar scope/scale of proposed bridge.”); id.
(“Bluffland mitigation is weak.”).
Yet, despite acknowledging the ineffectiveness of these design strategies and
mitigation measures, NPS somehow concluded that they would sufficiently offset the
impact of the Proposed Bridge. NPS Doc. 462 at 511, 516. The agency made no attempt
to explain the discrepancy between these factual findings and its ultimate conclusion.
Because NPS failed to articulate a “rational connection between the facts found and the
choice made,” the 2005 Section 7 Evaluation was arbitrary and capricious. State Farm,
463 U.S. at 43 (citation omitted).
22
C. NPS’s Authorization Of The Proposed Bridge Violates The Lower

St. Croix Management Plan.
In addition to violating Section 7, NPS’s approval of the Proposed Bridge violated
the Cooperative Management Plan for the Lower St. Croix. The Management Plan
includes specific restrictions on the construction of new river crossings. NPS ignored
those restrictions when it authorized the Proposed Bridge.
Under the WSRA, the administering agency must prepare a comprehensive
management plan “to provide for the protection of the river values.” 16 U.S.C.
§ 1274(d)(1). These plans ensure that the agency “is properly managing the river to
enhance such important values as wildlife, scenery, cultural resources, and recreational
opportunities.” Nat’l Wildlife Fed’n v. Cosgriffe, 21 F. Supp. 2d 1211, 1219 (D. Or.
1998). The directives of a management plan are mandatory. See 47 Fed. Reg. 39454 at
39458 (Sept. 7, 1982) (“Wild and scenic rivers shall be managed in accordance with
plans prepared in accordance with the requirements of the Act . . . .”);12 see also Oregon
Natural Desert Ass’n v. U.S. Forest Serv., 312 F. Supp. 2d 1337, 1344, 1346 (D. Or.
2004) (holding that “the Forest Service is under a mandatory duty to implement the
comprehensive management plans the agency prepared for [two] wild and scenic rivers”).
The Management Plan for the Lower St. Croix was adopted in 2001. 66 Fed. Reg.
56848 (Nov. 13, 2001). The Plan announces a long-term goal of reducing “the number
12
In 1982, the Secretary of the Interior and Secretary of Agriculture jointly published
interpretative guidelines (the “Secretarial Guidelines”) explaining several provisions of
the WSRA, including those relating to the management of wild and scenic rivers. See
generally 47 Fed. Reg. 39454.
23
and size of visible river crossings,” including “bridges for roads, railroads, [and]
pedestrians.” NPS Doc. 1 at 53. In furtherance of that goal, the Plan establishes a policy
of “no net increase in the number of transportation corridors.” Id. The Plan stresses the
need to locate transportation projects within existing corridors, such as by widening a
bridge or building a parallel structure. Id. (“In general, transportation corridors will be
replaced in or adjacent to the existing corridor.”).
The Management Plan also sets strict limits on the relocation of transportation
corridors:
Existing transportation corridors will be relocated only if all

of the following are true: 1) the need for the project is clearly
justified, 2) the project is consistent with state and regional
transportation plans, 3) there is no feasible and prudent
alternative to relocating the corridor, and 4) all built elements
of the existing corridor are removed, and the corridor is
restored to natural conditions.
NPS Doc. 1 at 53. NPS violated these requirements in approving the Proposed Bridge.
Not only did the agency neglect to consider whether there is a “feasible and prudent
alternative to relocating the corridor,” it also failed to ensure that “all built elements of
the existing corridor are removed, and the corridor is restored to natural conditions.” Id.
Unless the Stillwater lift bridge is removed and that portion of the Riverway restored to
natural conditions, construction of the Proposed Bridge will violate the Management
Plan. By increasing the number of river crossings, the Proposed Bridge project
contravenes the Management Plan.
When NPS released its initial draft of the Section 7 evaluation in 2005, the agency
received comments noting that these Management Plan requirements had not been met.
24
See, e.g., FHWA Doc. 34846 at 34848 (draft Section 7 evaluation “[n]eeds to more
adequately address the non proliferation policy issue – removal of vehicles does not
address the addition of a new crossing”). Yet even after receiving these comments, NPS
continued to ignore the issue. See FHWA Doc. 34859 at 34859 (“Language/discussion in
Section 7(a) Evaluation not anticipated to change much.”); FHWA Doc. 35017 (noting
“only two minor changes”). More troubling still, the agency was aware that its decision
did not comply with the Management Plan’s non-proliferation requirement. See NPS
Doc. 2121 (stating that one of the “weaknesses” of the Section 7 evaluation was its
“[c]ompromise to non-proliferation policy”). Nevertheless, the 2005 Section 7
Evaluation does not even mention, much less attempt to comply with, the four-part test
for relocating transportation corridors. Because the 2005 Section 7 Evaluation flouts the
directives of the Management Plan, NPS’s approval of the Proposed Bridge was “not in
accordance with law.” 5 U.S.C. § 706(2)(A).
D. NPS’s Authorization Of The Proposed Bridge Violated The WSRA’s

“Protect And Enhance” Requirement.
NPS failed to consider whether the Proposed Bridge satisfied the non-degradation
policy set forth in Section 10(a) of the WSRA. Section 10(a) directs NPS to administer
each component of the Wild and Scenic Rivers System “in such manner as to protect and
enhance the values which caused it to be included in said system.” 16 U.S.C.
25
§ 1281(a).13 Pursuant to this requirement, NPS must give “primary emphasis . . . to
protecting its esthetic, scenic, historic, archeologic, and scientific features.” 16 U.S.C.
§ 1281(a) (emphasis added); see also Friends of Yosemite Valley, 520 F.3d at 1036
(faulting NPS for failing to satisfy this statutory obligation). The agency need not limit
other uses of the river so long as they “do not substantially interfere with public use and
enjoyment of [the river’s outstandingly remarkable] values,” but those that do must be
restricted. Id. at 1027; see also Oregon Natural Desert Ass’n v. Singleton, 75 F. Supp. 2d
1139, 1152 (D. Or. 1999) (discussing the public’s strong “interest in preserving and
enhancing the extraordinary values” of a wild and scenic river).
As an administrative decision, the 2005 Section 7 Evaluation was subject to the
“protect and enhance” requirement of Section 10(a). See Sokol, 210 F.3d at 879
(concluding that administrative acts are subject to Section 10(a)). NPS thus had a
statutory duty to ensure that its evaluation would “protect and enhance the outstandingly
remarkable values that caused the [Lower St. Croix] to be included in the [Wild and
Scenic Rivers] System.” Id.; see also Oregon Natural Desert Ass’n v. Green, 953 F.
Supp. 1133, 1144 (D. Or. 1997) (holding that cattle grazing adjacent to a wild and scenic
river “may continue, but only in accordance within the strictures of the WSRA to protect
and enhance”). By authorizing construction of the Proposed Bridge, NPS violated this
statutory mandate.
13
The Secretarial Guidelines interpret Section 10(a) “as stating a nondegradation and
enhancement policy for all designated river areas, regardless of classification.” 47 Fed.
Reg. at 39458.
26
In its 2005 Section 7 Evaluation, NPS acknowledged that the Proposed Bridge
“would negatively impact landforms/terrain, vegetation and wildlife particularly on the
Wisconsin side of the Riverway.” NPS Doc. 462 at 509. NPS also recognized that “[t]he
addition of a large new bridge would create a visual intrusion to natural and historic
scenic values in the project area,” and that this “increased urban character would be
contrary to protecting the outstandingly remarkable values and the purposes of [the
Lower St. Croix’s] designation referenced in the Congressional Record.” Id. Thus, by
NPS’s own admission, the Proposed Bridge will degrade this wild and scenic river. See
Oregon Natural Desert Ass’n, 953 F. Supp. at 1145-46 (finding violations of the WSRA
where the “outstandingly remarkable values” of a wild and scenic river were being
degraded).
NPS nevertheless failed to address whether these impacts would be acceptable
under the “protect and enhance” standard. The 2005 Section 7 Evaluation includes
passing references to Section 10(a), see NPS Doc. 462 at 467, 519, but the agency made
no attempt to ensure that its decision was consistent with the “protect and enhance”
mandate. Here, as in Sokol, NPS “failed to apply [a] relevant statutory authority in
making its decision.” 210 F.3d at 878. Accordingly, the 2005 Section 7 Evaluation is
contrary to law and should be vacated.
27
E. NPS Violated The Organic Act By Failing To Consider Whether The

Proposed Bridge Would Impair The Riverway’s Resources And
Values.
NPS also failed to consider whether its authorization of the Proposed Bridge
satisfied the non-impairment requirement of the Organic Act and General Authorities
Act. The Organic Act directs NPS to
“regulate the use” of national parks by means that conform to

their “fundamental purpose,” namely: “to conserve the
scenery and the natural and historic objects and the wild life
therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for
the enjoyment of future generations.”
May 15 Order at 6 (quoting 16 U.S.C. § 1). Congress later amended the Organic Act
with the General Authorities Act, which prohibits the management of national park areas
“in derogation of the values and purposes” for which those areas were established. 16
U.S.C. § 1a-1.
These statutes and their implementing regulations prohibit NPS from “allow[ing]
the impairment of riverway resources and values unless directly and specifically provided
for by legislation or proclamation establishing the riverway.” 66 Fed. Reg. 56848, 56850
(Nov. 13, 2001); see also Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1247 (E.D. Cal.
1999) (discussing the Organic Act’s standards). Thus, NPS cannot allow impacts that
“would harm the integrity of riverway resources or values, including the opportunities
28
that otherwise would be present for the enjoyment of those resources or values.” 66 Fed.
Reg. at 56850.14
To assess whether a particular impact would impair Riverway resources, NPS
must “examine the duration, severity, and magnitude of the impact; the resources and
values affected; and direct, indirect, and cumulative effects of the action.” Id. An impact
is more likely an impairment if
it affects a resource or value whose conservation is: (a)

Necessary to fulfill specific purposes identified in the
establishing legislation . . .; (b) key to the natural and cultural
integrity of the riverway or the opportunities for enjoyment of
the riverway; or (c) identified as a goal in the riverway’s
general management plan or other relevant NPS planning
documents.
Id. NPS’s management policies state that before the agency approves a proposed action
that might cause impairment, “an NPS decision-maker must consider the impacts of the
proposed action and determine, in writing, that the activity will not lead to an impairment
of park resources and values. If there would be an impairment, the action may not be
approved.” NPS Management Policies § 1.4.7 (2001) (emphasis added), attached as
Exhibit C.
Here, the Lower St. Croix Act and the Management Plan demonstrate that
preventing overdevelopment is necessary to protect the Riverway’s resources and values.
14
NPS has, in fact, interpreted the Organic Act as embodying “both a non-impairment
requirement and a broader conservation mandate.” Fund for Animals v. Norton, 294 F.
Supp. 2d 92, 103 (D.D.C. 2003), order modified by 323 F. Supp. 2d 7 (2004). That
broader mandate applies “even when there is no risk that any park resources or values
may be impaired.” Id.
29
Indeed, this was one of the main reasons why the Lower St. Croix was designated a wild
and scenic river. See 118 Cong. Rec. at 34391, 34393, quoted above at 6-7. Likewise,
protecting the Lower St. Croix’s water quality was a principal reason for the river’s
designation and represents a main priority of the Management Plan. See NPS Doc. 1 at
16, 18, 43.
In the 2005 Section 7 Evaluation, NPS admitted that the Proposed Bridge
threatens to permanently degrade the Riverway’s water quality. See NPS Doc. 462 at 490
(recognizing “the potential indirect impacts to water quality due to the construction of the
proposed bridge”). And in comments on the Draft EIS, NPS also recognized the
environmental harm that would result from this project:
Bridge-related land development and land use change could

significantly affect scenic integrity; water quality; and the
natural, cultural and recreational resources of the Riverway
and its larger view shed. . . . Local, county, state and federal
units of government may well lack the resources to respond to
growth . . . in a manner that protects the character of the
Riverway and its environs. Of particular concern to the NPS
is our own ability to respond to an increase in development
proposals affecting scenic easement lands and the ability of
our state and local partners to implement Riverway land use
regulations.
NPS Doc. 1604 at 1608.
NPS nevertheless argued in its 2005 Section 7 Evaluation that it could not
consider these issues because Section 7 “does not authorize the administering official to
examine indirect impacts.” NPS Doc. 462 at 490. But the Organic Act places no such
constraint on NPS. Indeed, under the Organic Act NPS cannot authorize impacts that
would cause “impairment of riverway resources and values.” 66 Fed. Reg. at 56850.
30
And it is undisputed that the Lower St. Croix’s water quality, scenic integrity, and natural
communities are among the Riverway’s “exceptional resources and values.” NPS Doc. 1
at 18-19.
Though acknowledging that the Proposed Bridge would unleash a wave of
development and cause deterioration of the river’s water quality – thereby imperiling the
very reasons for the Riverway’s designation – NPS did not consider the non-impairment
requirement when it signed off on the project.15 By neglecting to apply this requirement,
NPS not only “failed to consider an important aspect of the problem,” State Farm, 463
U.S. at 43, it also “failed to apply the relevant statutory authority in making its decision.”
Sokol, 210 F.3d at 878. The 2005 Section 7 Evaluation should be vacated.
II. FHWA VIOLATED NEPA.
FHWA’s authorization of the Proposed Bridge was also unlawful. As explained
below, the agency violated both NEPA and Section 4(f) of the Transportation Act.
A. The National Environmental Policy Act
The purpose of NEPA is to encourage government efforts “which will prevent or
eliminate damage to the environment.” 42 U.S.C. § 4321. NEPA’s implementing
regulations direct federal agencies to “[u]se all practicable means . . . to restore and
enhance the quality of the human environment and avoid or minimize any possible
adverse effects of their actions upon the quality of the human environment.” 40 C.F.R.
15
After releasing a draft of the 2005 Section 7 Evaluation, NPS received comments that
the evaluation failed to adequately address the water quality and other indirect effects of
(continued on next page)
31
§ 1500.2(f). To fulfill these goals, NEPA requires agencies to “take a ‘hard look’ at the
environmental consequences” of a major federal action before taking that action. Mid
States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 533 (8th Cir. 2003)
(citation omitted). The EIS is the principal tool agencies use to conduct that “hard look.”
An EIS must “[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). Each
alternative must be given “substantial treatment so that reviewers may evaluate their
comparative merits.” Id. § 1502.14(b). NEPA’s implementing regulations direct
agencies to identify the direct, indirect, and cumulative impacts of each alternative, and
consider possible mitigation measures to reduce environmental impacts. See id.
§§ 1502.14, 1502.16, 1508.7. The information in an EIS “must be of high quality.
Accurate scientific analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA.” Id. § 1500.1(b).
Among the factors that an agency should consider when taking a “hard look” at
environmental impacts are the “unique characteristics of the geographic area such as
proximity to . . . wild or scenic rivers.” Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d
428, 431 (8th Cir. 2004) (quoting 40 C.F.R. § 1508.27(b)(3)). NEPA’s overarching
purpose of preventing environmental damage “is surely implicated when the environment
(continued from previous page)
increased urban growth. FHWA Doc. 34833 at 34834-35. NPS nonetheless refused to
analyze these impacts.
32
that may be damaged is one that Congress has specially designated for federal
protection.” Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 186-87 (4th Cir.
2005). Because the Lower St. Croix is a federally-protected wild and scenic river, the
EIS for the Proposed Bridge needed to pay special attention to the Riverway’s resources
and values.
NEPA also prescribes specific procedural requirements: An agency must prepare
a draft EIS and then request comments from other federal agencies, state, local, and tribal
governments, and the public. 40 C.F.R. § 1503.1. The agency must assess, consider, and
respond to all comments in preparing the final EIS. Mid States Coalition, 345 F.3d at
537 (citing 40 C.F.R. § 1503.4(a)).
The Draft and Final EISs for the Proposed Bridge violate NEPA for three principal
reasons. First, the agency failed to consider all reasonable alternatives. Second, FHWA
did not adequately address the indirect effects of the Proposed Bridge project. Third,
FHWA did not sufficiently address the project’s cumulative impacts. Because the EIS
violates NEPA, FHWA’s Record of Decision should be vacated and remanded.
B. FHWA Did Not Consider A Reasonable Range Of Alternatives.
As noted above, NEPA requires federal agencies to “[r]igorously explore and
objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a) (emphasis
added). This requirement represents “the heart of the environmental impact statement.”
40 C.F.R. § 1502.14. If an agency fails to examine a viable alternative, the EIS is legally
inadequate. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115,
1128 (8th Cir. 1999).
33
In this case, FHWA failed to consider a reasonable range of alternatives. The EIS
discusses four “build” alternatives, all of which involved four-lane river crossings. See
FHWA Doc. 2906 at 2959.16 Throughout the EIS process, the agency never considered a
new, two-lane crossing as an alternative, i.e., an alternative that would truly be a
replacement for the existing lift bridge. As in Coalition for Canyon Preservation v.
Bowers, another case wherein FHWA only considered four-lane alternatives, exploring a
two-lane alternative “was both reasonable and obvious.” 632 F.2d 774, 784 (9th Cir.
1980) (Kennedy, J.). Indeed, an FHWA-sponsored study published in 2001 specifically
raised this issue, noting that some stakeholders “favor[ed] consideration of a two-lane
bridge, on the grounds that placing some constrictions on east-west travel would produce
better land use patterns with less ‘sprawl’ from the Minneapolis-St. Paul area.” NPS
Doc. 1415 at 1447. The report recommended that the EIS “directly and thoroughly”
address this issue of bridge scale and its potential growth impacts. Id. But except for
continued use of the lift bridge itself, no two-lane options were considered. The fact that
a smaller bridge could have reduced scenic and recreational impacts to a wild and scenic
river made a two-lane alternative all the more reasonable. See Coalition for Canyon
Preservation, 632 F.2d at 784 (“The use of a narrower than four-lane road is made even
more obvious by the possibility that parkland would thereby [be] spared.”); 40 C.F.R.
16
Though FHWA characterized Alternative E as an option that “utilizes a smaller, two-
lane one-way bridge,” FHWA Doc. 2906 at 2959, Alternative E is, in fact, a four-lane
option – the combination of two separate bridges. FHWA Doc. 7857 at 7862.
34
§ 1508.27(b)(3); see also Davis v. Mineta, 302 F.3d 1104, 1120 (10th Cir. 2002) (finding
that FHWA failed to consider reasonable alternatives to a new river crossing).
Nor did FHWA consider other reasonable alternatives to a four-lane crossing. For
example, although the agency concluded that mass transit and Transportation System
Management/Transportation Demand Management (“TSM/TDM”) strategies would not
meet the purpose and need for the project, FHWA Doc. 4097 at 4111, FHWA never
considered whether these strategies, when combined with a new two-lane bridge, would
have met the project goals. When confronted with a similar lack of analysis in Davis, the
Tenth Circuit characterized this omission as “one of the most egregious shortfalls” of the
environmental assessment. 302 F.3d at 1121-22; see also id. at 1120 (holding that
FHWA violated NEPA because the agency rejected TSM, “mass transit, and various
build alternatives, simply by concluding that each, by itself, would not meet the purpose
and need of the Project or was otherwise infeasible”). Davis demonstrates that an agency
cannot avoid serious consideration of an alternative by considering its components
separately and rejecting them seriatim. Because FHWA did not consider a two-lane
option, either alone or in conjunction with other alternative strategies, the agency failed
to consider a reasonable range of alternatives. See also Utahns for Better Transp. v. U.S.
Dep’t of Transp., 305 F.3d 1152, 1169-70 (10th Cir. 2002) (finding EIS inadequate where
it failed to consider an alternative in which public transit would be expanded prior to road
expansion).
FHWA failed to consider other alternatives as well. For example, the agency
never considered a variation on Alternative E – a two-lane bridge adjacent to the
35
Stillwater lift bridge with reversible lanes, so it could accommodate two-way traffic
during closures of the lift bridge. Sierra Club specifically proposed this alternative in
comments on the draft scoping document, FHWA Doc. 31561 at 31575, but FHWA
never explained why this alternative was unreasonable. FHWA’s refusal to consider this
alternative made the rejection of Alternative E a foregone conclusion given the traffic
issues associated with lift bridge closures.
FHWA also neglected to consider another variation on Alternative E proposed
during the scoping process. This alternative, dubbed Alternative E1, would have been a
lower, slower version of Alternative E, with fewer environmental impacts. See FHWA
Doc. 2774 (describing Alternative E1); NPS Doc. 2433. Nor did the EIS consider
expanding capacity at the existing I-94 crossing in Hudson. Because traffic diverted from
I-94 may be increasing congestion at the Stillwater crossing, FHWA Doc. 32816 at
32821, upgrading the I-94 corridor might have satisfied the purpose and need for the
project, while avoiding the environmental harms of a new river crossing. An expansion
of the I-94 crossing, either alone or together with other transportation strategies, should
have been considered. Because the build alternatives were “not varied enough to allow
for a real, informed choice,” Friends of Yosemite, 520 F.3d at 1039, the EIS is
inadequate.
C. FHWA Did Not Adequately Address Indirect and Cumulative Impacts.
NEPA directs federal agencies to consider the indirect and cumulative effects of a
proposed action. Indirect effects “are caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b). They
36
“may include growth inducing effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and related effects on air and water
and other natural systems, including ecosystems.” Id. The “cumulative impact” of an
action “results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions . . . . Cumulative impacts can result
from individually minor but collectively significant actions taking place over a period of
time.” Id. § 1508.7. The EIS for the Proposed Bridge fails to properly analyze either the
indirect or cumulative impacts of this project.
First, the EIS fails to discuss the effect that increased land development from the
Proposed Bridge would have on Wisconsin’s water quality and quantity, wetlands,
wildlife habitat, and other natural and cultural resources. As the Wisconsin DNR and
other groups pointed out, the Draft EIS ignored these impacts almost completely. See,
e.g., FHWA Doc. 8257 at 8274-75, 8277-78 (Department of Interior comments); id. at
8309-14 (Wisconsin DNR); id. at 8318-19 (Wisconsin Historical Society); id. at 8360-63
(Minnesota Center for Environmental Advocacy). FHWA responded to these comments
by consolidating its indirect effects discussion into a single chapter for the Final EIS,
Chapter 13. But despite the potential for major impacts, the Final EIS lacks any serious
analysis of this issue. The discussion mostly consists of a series of bullet points
describing “concerns” that were raised by state and federal agencies. FHWA Doc. 8141
at 8154-55. The EIS then blithely concludes that although negative impacts on natural
and cultural resources “are possible,” those impacts are probably inevitable because there
is already growth in the area. Id. at 8157. The EIS summarizes the Proposed Bridge’s
37
indirect effects on natural and cultural resources in a single sentence: “To the degree that
the Preferred Alternative adds to the amount of development anticipated, the potential
amount of impact increases; however, it does not increase the probability that negative
impacts will occur with development.” Id. Such a conclusory discussion falls far short
of NEPA’s standards. See Davis, 302 F.2d at 1122-23 (rejecting indirect effects analysis
that consisted of conclusory statements).
FHWA’s failure to address the inadequacies of its indirect effects analysis was
mentioned repeatedly in comments the agency received when it circulated a “cooperating
agency draft” of the Final EIS in June 2005. No fewer than five state and federal
agencies – Wisconsin DNR, U.S. Army Corps of Engineers, EPA, American Council on
Historic Preservation, and NPS – found the indirect effects analysis to be inadequate.
See, e.g., FHWA Doc. 34899 at 34931 (Wisconsin DNR expressing disagreement “with
findings of no substantial adverse impact for water quality/quantity and wildlife”); id. at
34924 (NPS commenting that “[t]he indirect impacts analysis lacks substance” and “must
evaluate the potential impacts to natural resources, especially water quality”). Yet even
after receiving these comments, FHWA made only nominal changes to its discussion of
indirect and cumulative effects.17
17
The cumulative impacts chapter had only two minimal changes. Compare FHWA
Doc. 34291 at 34303, 34307 with FHWA Doc. 8164 at 8175, 8180. The indirect effects
analysis in Chapter 13 also had few changes from the cooperating agency draft.
Although some details were added regarding mitigation efforts, the only change to the
analysis itself was FHWA’s addition of the phrase, “water supply can also be affected by
development activities.” Compare FHWA Doc. 34266 at 34283 with FHWA Doc. 8141
at 8154.
38
The agency’s failure to correct its analyses after being repeatedly warned of their
deficiencies underscores the insufficiency of the EIS. See Davis, 302 F.3d at 1123 (“[A]
reviewing court ‘may properly be skeptical as to whether an EIS’s conclusions have a
substantial basis in fact if the responsible agency has apparently ignored the conflicting
views of other agencies having pertinent expertise.’”) (citation omitted). Moreover,
FHWA’s failure to respond to these critiques is itself a violation of NEPA’s
implementing regulations. See Mid States Coalition, 345 F.3d at 537 (finding EIS
inadequate because the agency had failed to satisfy the “minimum requirement” of
assessing, considering, and responding to all comments) (citing 40 C.F.R. § 1503.4(a)).
Because FHWA failed to properly assess the indirect effects of the Proposed Bridge “on
air and water and other natural systems, including ecosystems,” 40 C.F.R. § 1508.8(b),
the EIS is legally insufficient.
FHWA’s conclusory statements regarding indirect effects further violate NEPA
because they were made without supporting evidence. The discussion of natural and
cultural resources, in particular, was unsupported by underlying data. On this basis
alone, the EIS should be vacated and remanded to the agency. See 40 C.F.R. § 1502.24
(directing that agencies “shall identify any methodologies used and shall make explicit
reference by footnote to the scientific and other sources relied upon for conclusions”);
Friends of the Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 822 (8th Cir.
2006) (stating that “the ‘agency must provide a satisfactory explanation for its actions
based on relevant data’”) (citation omitted); Or. Nat. Res. Council Fund v. Goodman, 505
F.3d 884, 893 (9th Cir. 2007) (“[G]eneralized, conclusory assertions from agency experts
39
are not sufficient; the agency must provide the underlying data supporting the assertion in
language intelligible to the public.”).
The discussion of cumulative impacts is similarly deficient. A cumulative impacts
analysis “must be sufficiently detailed to be useful to the decisionmaker in deciding
whether, or how, to alter the program to lessen cumulative impacts and must rely on some
quantified or detailed information.” Habitat Educ. Ctr., Inc. v. Bosworth, 363 F. Supp.
2d 1070, 1079 (E.D. Wis. 2005) (citation omitted) (emphasis added); see also Sierra
Club v. Bosworth, 352 F. Supp. 2d 909, 926 (D. Minn. 2005) (noting that “some
quantified or detailed information is required” for a cumulative impacts analysis)
(citations omitted). “[P]erfunctory statements about ‘possible’ effects and ‘some risk’”
are insufficient. Bosworth, 352 F. Supp. 2d at 926 (citation omitted).
Far from providing “quantified or detailed information” about the potential effects
on natural resources such as water, wildlife, and vegetation, the EIS merely includes a
cursory discussion of the possible impacts. For example, in discussing aquatic resources,
FHWA mentioned that various negative impacts “could” occur, and that “[w]ater quality
can be impaired from development related activities,” but then simply concludes that
“regulatory structures currently in place reduce the potential for significant adverse
impacts to water quality.” FHWA Doc. 8164 at 8185. The discussions of other natural
resources are also inadequate. Id. at 8180-88. See City of Carmel-by-the-Sea v. U.S.
Dep’t of Transp., 123 F.3d 1142, 1160 (9th Cir. 1997) (finding cumulative impacts
analysis inadequate where it lacked discussion of how specific natural resources would be
affected).
40
At bottom, the indirect and cumulative impacts analyses are insufficient because
they provide no detail about the degree to which the Proposed Bridge – either alone or in
combination with other past, present, and future projects – will affect the natural and
cultural resources in surrounding areas, particularly western Wisconsin. Because FHWA
“failed to consider an important aspect of the problem” in these analyses, the EIS is
arbitrary and capricious. State Farm, 463 U.S. at 43.
III. FHWA VIOLATED SECTION 4(F) OF THE TRANSPORTATION ACT.
Section 4(f) of the Transportation Act, 49 U.S.C. § 303, “mandates that the
protection of historic properties, parks, recreation areas, and wildlife refuges be given
paramount importance in transportation planning.” Concerned Citizens Alliance v.
Slater, 176 F.3d 686, 693 (3d Cir. 1999); see also Citizens to Protect Overton Park, Inc.
v. Volpe, 401 U.S. 402, 412-13 (1971).
The statute protects these resources by placing two strict limits on federally-
funded transportation projects that use Section 4(f) properties like the Lower St. Croix
National Scenic Riverway. First, the Secretary of Transportation cannot approve a
project unless “there is no prudent and feasible alternative to using that land.” Section
4(f)(1), 49 U.S.C. § 303(c)(1). Second, if 4(f) resources must be used, the project must
include “all possible planning to minimize harm to the park, recreation area, wildlife and
waterfowl refuge, or historic site resulting from the use.” Section 4(f)(2), id. § 303(c)(2).
Courts have recognized that these requirements are “stringent.” Druid Hills Civic Ass’n,
Inc. v. FHWA, 772 F.2d 700, 718 (11th Cir. 1985).
41
To satisfy the requirements of Section 4(f)(2), the Transportation Secretary must
balance the total “harm caused by each alternate route to section 4(f) areas and select[]
the option which does the least harm.” Concerned Citizens, 176 F.3d at 694. In choosing
between alternatives, the “only relevant factor” is “the quantum of harm to the park or
historic site caused by the alternative.” Id. (citation omitted); see also Druid Hills, 772
F.2d at 716 (same).
The Lower St. Croix is the largest, and most significant, of the 4(f) resources
affected by this project. Because Congress has placed particular emphasis on protection
of the Lower St. Croix through its WSRA designation, FHWA’s Section 4(f) analysis
needed to take special heed of the river’s “outstandingly remarkable” scenic and
recreational values. See City of Bridgeton v. Slater, 212 F.3d 448, 461-62 (8th Cir. 2000)
(finding that another federal mandate could affect the 4(f)(2) analysis); Allison v. Dep’t of
Transp., 908 F.2d 1024, 1029 (D.C. Cir. 1992) (“Given the avowed policy of section 4(f)
to preserve the ‘natural beauty’ of wildlife refuges and other parklands, agencies must
consider the effects of an action on the natural attributes of those lands in making its
section 4(f) determinations.”) (citation omitted).
In this case, FHWA violated Section 4(f) in two respects. First, the agency
violated Section 4(f)(1) because it did not consider a reasonable range of alternatives in
the EIS. Just as the existence of a viable but unexamined alternative renders an EIS
inadequate, the agency’s improper rejection of a prudent and feasible alternative renders
its 4(f) evaluation insufficient. Coalition for Canyon Preservation, 632 F.2d at 784-85.
42
Second, FHWA violated Section 4(f)(2) by failing to properly determine which
alternative would minimize harm to the Riverway. As noted above, once an agency
concludes that 4(f) resources cannot be avoided, the agency must choose the least-harm
alternative. Concerned Citizens, 176 F.3d at 694. Indeed, FHWA’s own policy guidance
acknowledges this requirement. See FHWA Doc. 35952 at 35961 (recognizing that
“FHWA can approve only the feasible and prudent alternative that has the least overall
harm to the 4(f) resource”).
Because FHWA is obligated to choose the least-harm alternative, it is axiomatic
that the agency must compare the degree of harm resulting from each alternative. Section
4(f)(2) therefore required FHWA to provide a meaningful comparison of the impacts of
each of the four build alternatives, and then choose the alternative which would cause the
least overall harm. Druid Hills, 772 F.2d at 716-17. In its final Section 4(f) Evaluation,
FHWA asserted that Alternative B-1 (the Proposed Bridge) would cause the “least harm”
on the Riverway. FHWA Doc. 9274 at 9321. But neither the draft nor the final Section
4(f) Evaluation includes a sufficient comparative analysis to support that conclusion. The
final Section 4(f) evaluation fails to do so because it focuses primarily on the impacts of
Alternative B-1. See id. at 9304-14. And, although the draft 4(f) Evaluation purports to
fill that gap, this document also fails to compare the alternatives’ effect on several
important resources.
Most notably, FHWA failed to provide a meaningful comparison of the visual
impacts of each build alternative. Although FHWA acknowledged that visual impacts
43
represent a “use” of the Riverway,18 the draft Section 4(f) Evaluation is devoid of a
comparative visual impacts analysis. The document itself simply references Chapter 7 of
the EIS. See FHWA Doc. 4741 at 4768-69. And although Chapter 7 is lengthy, it never
compares the degree of visual impacts that would be caused by each build alternative.
Moreover, the available evidence suggests that Alternative B-1, far from being the least-
harm alternative, would have the greatest visual impact of any of the build alternatives.
See NPS Doc. 694 (stating that B-1 could be seen “3 miles upstream, 3 miles
downstream”).
Likewise, although the 4(f) Evaluation discusses blufflands – i.e., impacts to the
shoreline – the document fails to compare impacts to the river itself. The Proposed
Bridge would place 2840 feet of roadway over the river, more than any of the other build
alternatives. FHWA Doc. 3123 at 3132. As the longest of the build alternatives, FHWA
Doc. 32727 at 32739, the Proposed Bridge would have the greatest “footprint” over the
Riverway. But FHWA did not analyze this issue, even though comments on the draft
scoping document urged FHWA to compare the amount of “Roadway over water” for
each alternative. See FHWA Doc. 31931 at 31933. In sum, the lack of a comparative
analysis makes it impossible to discern which of the build alternatives would minimize
harm to the Riverway.
18
The “use” of 4(f) resources is construed broadly to include not only physical takings
but also indirect harms, such as noise or visual disruptions. See Concerned Citizens, 176
F.3d at 693 n.4; Allison, 908 F.2d at 1028.
44
This is precisely the deficiency identified in Druid Hills, where the Eleventh
Circuit rejected a Section 4(f)(2) analysis because it lacked “adequate information to
enable the [Transportation] Secretary to weigh the relative damage to protected properties
which would result from building each of these roads.” Druid Hills, 772 F.2d at 716-17.
The court held “that the Secretary did not make the requisite findings necessary for an
informed comparison of the relative harms anticipated by the various routes.” Id. at 717.
FHWA’s failure to provide a meaningful comparison is all the more alarming given that
the available evidence suggests that Alternative B-1 would cause greater harm than the
other alternatives. Because the Section 4(f) Evaluation lacks the data or analysis needed
to compare the quantum of harm, FHWA “failed to consider an important aspect of the
problem,” and its approval of the Proposed Bridge was arbitrary and capricious. State
Farm, 463 U.S. at 43.
Even those impacts that are discussed in the Section 4(f) Evaluation were not
properly compared. For example, the Evaluation states that Alternatives B-1 and C
would have less impact on the Wisconsin bluff than Alternatives D or E because the
bridge abutment is higher. FHWA Doc. 9274 at 9307. But this finding understates the
bluff impacts of Alternatives B-1 and C, which would deface a pristine bluff that runs for
approximately six miles. NPS Doc. 462 at 494. Alternatives D or E, by contrast, would
impact the bluff in an area that is already developed. See FHWA Doc. 4463 at 4476
(“For Alternatives D and E, the area is steep but relatively developed, and includes the
[existing] transportation corridor.”); see also FHWA Doc. 32210 at 32213 (Wisconsin
DNR comments on bluff impacts). By focusing solely on differences in acreage, FHWA
45
improperly ignored the quality of the blufflands impacted. Because a proper Section 4(f)
analysis should have considered this factor, see FHWA Doc. 35952 at 35960, FHWA’s
conclusion “runs counter to the evidence.” State Farm, 462 U.S. at 43.
FHWA tried to paper over these deficiencies by stating that it chose Alternative
B-1 only “after considering mitigation.” FHWA Doc. 9274 at 9321. But although
mitigation can be helpful in minimizing harm to 4(f) resources, it cannot substitute for the
reasoned, comparative analysis of alternatives required by the statute. Moreover, most of
the mitigation items identified by FHWA could have been implemented in connection
with any of the build alternatives. Removal of shoreline structures, for example, is not
alternative-specific. See id. Nor is bluffland restoration or the development of riverway
interpretation items or public boat access. See id. at 9321-22. FHWA’s reliance on
mitigation is thus misplaced.
In sum, FHWA neglected its obligation under Section 4(f) to either avoid use of
the Riverway or choose the least-harm alternative. Because the agency failed to properly
compare the impacts of the build alternatives, its Section 4(f) analysis is arbitrary and
capricious, and the Record of Decision was improperly issued.
CONCLUSION
In 1972, as Congress debated whether to designate the Lower St. Croix as a wild
and scenic river, Wisconsin Senator Gaylord Nelson warned of the need for
“comprehensive protection” for this riverway. Without it, “the St. Croix will eventually
become one more city river, its waters poisoned with pollution, its shorelines gutted with
indiscriminate development.” 118 Cong. Rec. at 34393. Fortunately, Senator Nelson
46
explained, “[w]e still have a choice for the future of this river. We can establish plans
and controls to assure that future growth is in harmony with the river’s scenic and
recreational values. Or we can, simply by doing nothing or walking away from it, let the
river be swallowed up by the growing urban pressures and dollar-sign decisions.” Id.
That same fundamental choice – between protecting the scenic and recreational values of
“this magnificent natural resource,” id., or letting the Riverway become choked by
mammoth bridges and sprawl – is the very issue in this case. The Proposed Bridge not
only violates numerous statutory mandates, it also contravenes the very purposes for
which the Lower St. Croix was designated a wild and scenic river. In order to protect this
river, as well as ensure the integrity of the WSRA itself, Sierra Club urges this Court to
vacate the defendants’ authorization of this project and enjoin construction of the
Proposed Bridge.
47
Dated: May 29, 2009 Respectfully submitted,
s/ Michelle E. Weinberg
Michael C. Soules, MN Bar # 0387936
ENVIRONMENTAL LAW & POLICY
CENTER
35 East Wacker Drive, Suite 1300
Chicago, IL 60601-2110
(312) 673-6500
(312) 795-3730 (facsimile)
msoules@elpc.org
and
Brian B. O’Neill, MN Bar # 82521

boneill@faegre.com
Richard A. Duncan, MN Bar # 192983
rduncan@faegre.com
Elizabeth H. Schmiesing, MN Bar #
229258
eschmiesing@faegre.com
Michelle E. Weinberg, MN Bar # 388771
mweinberg@faegre.com
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
(612) 766-7000
(612) 766-1600 (facsimile)
Attorneys for Plaintiff Sierra Club

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Case 0:07-cv-02593-MJD-SRN Document 80 Filed 05/29/09 Page 1 of 48

UNITED STATES DISTRICT COURT

“outstandingly remarkable scenic, recreational, and geologic values.” Cooperative

Plan”), NPS Doc. 1 at 4.1

F. Supp. 2d 971 (D. Minn. 1998).

authorization of this bridge.2

A. The Wild And Scenic Rivers Act

historic, cultural, or other similar values, shall be preserved in free-flowing condition,”

and enjoyment of present and future generations.” 16 U.S.C. § 1271. Congress

added to the system.

which such river was established, as determined by [the administering agency].”

framework designates rivers based on specific ‘outstandingly remarkable values’ . . .

cannot be authorized or funded absent congressional intervention. See generally

B. The Lower St. Croix National Scenic Riverway

No. 9) (“Answer”) ¶ 52. This “juxtaposition of landforms and geologic features,

(citation omitted). The Riverway hosts “[a] mosaic of biological communities . . .,

harbors forty species of mussel, including the federally-endangered Higgins’ eye

¶ 55; Answer ¶ 55.

In recognition of the river’s “outstandingly remarkable scenic, recreational, and

1976. 16 U.S.C. § 1274(a)(9). As NPS has recognized, protecting against

overdevelopment was one of the principal purposes of the Act:

[T]his is one of the last remaining major rivers in the United

of the Minneapolis-St. Paul urban area and is within easy

If comprehensive protection is not extended to the riverway,

C. The 1995 Bridge Proposal

the Wisconsin Department of Transportation (“WisDOT”) (collectively, the

“transportation agencies”), initially resulted in a record of decision in July 1995. The

mile south of Stillwater (the “1995 Proposal”).

7 of the WSRA requires. 16 U.S.C. § 1278(a).

generally 1996 Section 7 Evaluation, NPS Doc. 373.

D. The 2006 Bridge Proposal

no EIS was published. FHWA Doc. 9019 at 9022.

Doc. 4057 at 4061.

locations are illustrated on the maps in Exhibit A:

Alternative B-1: This alternative (which ultimately became the Proposed

Alternative C: This alternative called for the construction of a four-lane

Alternative D: This alternative called for the construction of a four-lane

Alternative E: This alternative called for the construction of a two-lane

Minnesota Department of Natural Resources (“DNR”) official criticized the

transportation agencies for essentially rehashing the 1995 Proposal:

Based on the presentation this week, the twin bridge project

have a preferred alternative.”).7

table.” FHWA Doc. 30108 at 30118.

Decision in November 2006.

rejected by NPS. Among other things:

• The Proposed Bridge is in nearly the same location as the 1995

• The visual impacts of the Proposed Bridge would be as great as, or

In an effort to draw some distinction between these two proposals, the

Evaluation”), NPS Doc. 462 at 504-08.

Although NPS’s 1996 Section 7 Evaluation had found mitigation measures to be

Assistant Secretary Hoffman gave Department of Transportation officials the opportunity

from Mr. O’Malley stating that “[w]e appreciate the changes”).

Summary judgment is appropriate when there are no genuine issues of material

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

876, 878 (8th Cir. 2000).

Finally, and particularly relevant here, courts apply a heightened standard of

765-66 (8th Cir. 1993)).

I. THE 2005 SECTION 7 EVALUATION VIOLATES FEDERAL LAW.

the 2005 Section 7 Evaluation is unlawful and should be vacated.

A. The National Park Service Arbitrarily Reversed Its Position Without

1. The 1996 Section 7 Evaluation

existing shoreline development. Id. at 426, 431, 433, 434.