Reply Brief Fed Appeal 10/29/2010

Case: 10-1313 Document: 006110775295 Filed: 10/29/2010 Page: 1
Case No. 10-1313
_____________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
______________________________
JULIE WEISS,
Plaintiff-Appellant,
v.
SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR;

CITY OF BENTON HARBOR,
Defendants-Appellees
HARBOR SHORES COMMUNITY REDEVELOPMENT, INCORPORATED
Intervening Appellee.
______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
_____________________________
REPLY BRIEF OF APPELLANT
_____________________________
Terry J. Lodge, Esq.

316 N. Michigan St., Suite 520
Toledo, OH 43604-5627
(419) 255-7552
tjlodge50@yahoo.com
Counsel for Appellant

TABLE OF CONTENTS
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Disputed Genesis of Harbor Shores. . . . . . . . . . . . . .1
‘Small Handle’ Permits Federalize the Project. . . . . . . . . .3
18 - 3 = Segmenting. . . . . . . . . . . . . . . . . . . . . . .5
Facts Federalize the Project. . . . . . . . . . . . . . . . . . 7
Appellees’ ‘Hard Look’ Was Through a Blind Eye. . . . . . . . .10
Plaintiffs’ Unique Status Establishes Their Standing. . . . . .14
A. Prudential interest as environmental litigants. . . . 15
B. Environmental litigants may rely on Adams standing

to pursue multiple violations of L&WCFA. . . . . . . . . 17
There Is No Mootness; the Project Is Not Completed. . . . . . .18
There Is SCORP Noncompliance When Priority

Parkland Positives Are Lost to Conversion. . . . . . . . . . . 22
‘Brief Discussions’ of ‘Lite’ Alternatives. . . . . . . . . . .24
A. Standing and waiver. . . . . . . . . . . . . . . . . . 24
B. ‘Hard look’ doctrine includes EA alternatives. . . . . 25
The Record Is Clear: JKP is Eligible

for National Register Listing. . . . . . . . . . . . . . . . . 27
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . .30
APPENDIX
Designation of All Relevant District Court Documents

(Plaintiffs’ and Defendants’)
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TABLE OF AUTHORITIES
Cases Page(s)
Burbank Anti-Noise Group v. Goldschmidt,

623 F.2d 115 (9th Cir.1980), cert. den.,
450 U.S. 965 (1981). . . . . . . . . . . . . . . . . . . . . . 21
Citizens Alert Regarding the Environment v. EPA, \

259 F.Supp.2d 9 (D.D.C. 2003). . . . . . . . . . . . . . . . . .3
City of Newport Beach v. CAB, 665 F.2d 1280 (D.C.Cir. 1981). . 20
Columbia Basin Land Protection Assoc. v. Schlesinger,

643 F.2d 585 (9th Cir. 1981). . . . . . . . . . . . . . . . . .21
County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . 20
DaimlerChrysler v. Cuno, 547 U.S. 332 (2006). . . . . . . . . .17
Department of Transportation v. Public Citizen,

541 U.S. 752 (2001). . . . . . . . . . . . . . . . . . . . . 4, 5
Government of Canal Zone v Burjan,

596 F.2d 690 (5th Cir.1979). . . . . . . . . . . . . . . . . . .19
Maryland Conservation Council v. Gilchrist,

808 F.2d 1039 (4th Cir.1987). . . . . . . . . . . . . . . . . . .6
Northwest Environmental Defense Center v. Gordon,

849 F.2d 1241 (9th Cir.1988). . . . . . . . . . . . . . . . . .20
Ocean Advocates v. U.S. Army Corps of Eng'rs,

402 F.3d 846 (9th Cir. 2005). . . . . . . . . . . . . . . . . .14
Papasan v. Allain, 478 U.S. 265, (1986). . . . . . . . . . . . 19
Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 349 (1989). . . . . . . . . . . . . . . . . . . .26
Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981). . . . . 20
Save Our Cumberland Mountains v. Kempthorne,

453 F.3d 334 (6th Cir. 2001). . . . . . . . . . . . . . . .25, 26
.
Save Our Parks v. Kempthorne,
2006 U.S. Dist. LEXIS 85206 (2006). . . . . . . . . . . . . . .22
-ii-
Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978). . 17, 18, 24
Sierra Club v. Morton, 405 U.S. 727 (1972). . . . . . . . . . .15
Southwest Williamson County Community Association

v. Slater, 243 F.3d 270 (6th Cir.2001). . . . . . . . . . . . . .5
Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009). .15, 16
University of Texas v. Camenisch, 451 U.S. 390 (1981). . . . . 20
Upper Pecos Ass’n v. Stans, 500 F.2d 17 (10th Cir. 1974). . . .20
West v. Secretary of the Department of Transportation,

206 F.3d 920 (9th Cir. 2000). . . . . . . . . . . . . . . . . .21
White Tanks Concerned Citizens, Inc. v. Strock,

Case No. 07-15659 (9thCir.2009) (slip op.). . . . . . . . . . . .5
Statutes
5 U.S.C. § 706. . . . . . . . . . . . . . . . . . . . . . .21, 23
16 U.S.C. § 460l-8(f)(3). . . . . . . . . . . . . . . . . .17, 22
42 U.S.C. § 4332(2). . . . . . . . . . . . . . . . . . . . . . 25
Regulations
33 C.F.R. Part 325, Appendix B § 7. . . . . . . . . . . . . . .8
36 C.F.R. § 59.3(b). . . . . . . . . . . . . . . . . . . .18, 23
40 C.F.R. § 1508.9. . . . . . . . . . . . . . . . . . . . . . 25
40 C.F.R. § 1508.18. . . . . . . . . . . . . . . . . . . . . . 3
40 C.F.R. § 1508.25. . . . . . . . . . . . . . . . . . . . . . 6
-iii-
ARGUMENT
The Disputed Genesis of Harbor Shores
Appellees’ flawed conclusions are rooted in their fanciful,
a-factual narrative about the birth of Harbor Shores. According
to this account, the “forty-year” “decline” of Jean Klock Park
was ended when the Michigan Governor’s task force, formed fol-
lowing civil unrest in Benton Harbor in 2003, proposed a golf
course subdivision using JKP. From thence sprung Harbor Shores
Community Redevelopment, Inc., spawned by three eleemosynary
concerns dedicated to civic involvement. Aided by a 90% write-
down in equity value of JKP land, millions in governmental grants
and loans, EPA Superfund dollars, TIFs, and a disinclination to
share the dirt on poisoned brownfields swapped for JKP’s prized
dune crests, HSCRI founded Harbor Shores.
The actual record is different. The actual record divulges
that a year before the 2003 civil unrest, in 2002, Whirlpool
Foundation retained the development firm Melrose Company to
refine the Harbor Shores scheme. RE 155 Exh.2B p.7. Building upon
this aversion to full disclosure, the myth of HSCRI was founded.
For example, HSCRI provided hydraulic, sediment evaluation,
flood plain mitigation, wetland mitigation and other reports,
plans or studies to the Corps of Engineers, but never handed over
its “Documentation of Compliance with Part 10 Rules,” RE 151
Exh.6, to the Corps nor the public. That “Part 10" document lists
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five parcels of mitigation parkland as toxic "facilities"
requiring long-term monitoring and remediation, id. p.24, and
explains toxic exposure risks to the public, including leachates
into groundwater and the poisoning of the Paw Paw River. Docu-
ments available for public comment (6 weeks in 2008) contain only
scattered tidbits about the chemical profile of mitigation par-
cels. The Part 10 document was provided to NPS but not the Corps,
and NPS made no mention in its NEPA findings of the gross con-
tamination or potential public health risks from brownfields.
Rather, NPS gave rote approval to the concept of buffered hiking
trails, with no explanation as to why they were buffered.
The 2006 economic study HSCRI provided the Corps (RE 157 at
pp. 21-23) was dismissed by Benton Harbor. In the Public Comment
Summary, the City preferred the 2008 Upjohn report (not the 2006
study cited by the Federal Appellees) as the one which “most
accurately reflects the conservative number of jobs that will be
created”. RE 179 Exh. 28 pp.4-5. The 2008 report was provided
neither to NPS nor the Corps. Indeed, the Upjohn Institute
distanced itself from its own 2008 report with this disclaimer:
This Upjohn Institute report ... must not be construed

as a market feasibility study for the proposed development.
It is based solely on growth projections provided by the
Harbor Shores developers and it does not offer an assessment
of the soundness of these projections. In addition the
Upjohn Institute in providing the report is not thereby
giving its support for the leasing of 22 acres of the Jean
Klock Park for the development’s golf course.
RE 179 Exh. 28 pp. 6-7.
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‘Small Handle’ Permits Federalize the Project
Federal Appellees (Br. p.21) suggest that NPS’ conversion
approval was not a serious enough “federal action” to invoke
serious NEPA scrutiny. To them, L&WCFA requirements were protect-
ing a “$50,000 ... investment in a municipal park bathhouse ...
over 30 years ago.” But L&WCFA federalizes parks to provide a
degree of permanency against conversion and privatization. L&WCFA
is not mere perfunctory paperwork; it was supposed to assure
public involvement in the crucial decision to privatize JKP’s
“dramatic views”1 for golf. But that public involvement saw
almost no disclosures of contamination, of planned pernicious
damage to the dunes, of extensive tree-cutting, and of asphalting
4 acres of beachfront.
Federal permitting discretion triggers public involvement
under NEPA “even where federal money has not actually been
provided.... where federal entities have sufficient authority
over the local project so as to control or influence its
outcome.” Citizens Alert Regarding the Environment v. EPA, 259
F.Supp.2d 9, 20 (D.D.C. 2003). “Major federal actions” include
“projects ... entirely or partly ... regulated or approved by
federal agencies....” 40 C.F.R. § 1508.18(a).
HSCRI contends (Br. p. 26) that Plaintiffs’ position that
the project relies on federal permits to realize completion was
1
Federal Appellees’ Br.11.
-3-
negated by Department of Transportation v. Public Citizen, 541
U.S. 752 (2001). But in Public Citizen, the agency had no auth-
ority to stop the anticipated environmental effects, whereas
here, either the Corps, with its historical oversight of creation
and termination of wetlands, or NPS, with discretion over con-
version approval, could prevent the environmental damage to JKP.
Applying NEPA’s “rule of reason,” conversion approval might have
been endangered by truthful disclosures about the planned deg-
radation of natural features and the suspect swap of contaminated
land (encumbered with explicit exposure restrictions) for pris-
tine parkland. Although the proposed fill of wetland acreage was
computed down to the cubic yard in the Parkland EA, HSCRI never
disclosed any quantification of the far greater, dramatic dune
damage: “Far more meaningful than offering this or any other
particular estimate of fill quantity was describing the location
and effect of adding the fill.” HSCRI Br. p.39. NPS’ view was
“Let the public eat conceptual plans.”
In Public Citizen, proosed agency rules were deemed only
indirectly related to anticipated air pollution increases which
would follow upon issuance of an executive order. Here, however,
direct agency approvals authorized physical alterations to JKP’s
dunes. The Ninth Circuit captured this distinction well:
We held in [Save Our Sonoran] that where a development

could not go forward without a permit, then the Federal
involvement was sufficient to grant ‘Federal control and
responsibility’ over the project within the meaning of the
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regulation. 408 F.3d at 1121-24. The United States Supreme

Court’s decision in Public Citizen is not to the contrary.
In that case, the Supreme Court held that an agency did not
have to take into account certain environmental effects in
its EA because that agency had ‘no ability to countermand
the President’s lifting of the moratorium’ on trucks from
Mexico; therefore, it was not the agency’s action that was
the proximate cause of the negative environmental impacts.
[citation omitted]. In SOS, this court determined that it
was the Corps’ issuance of the Section 404 permit that
allowed the development to occur, and it was the issuance of
the permit itself that caused the environmental effects.
White Tanks Concerned Citizens, Inc. v. Strock, Case No. 07-15659
(9th Cir.2009) (slip op.). In JKP, the NPS and Corps permits
themselves have set into motion the negative environmental
effects, although the Federal Appellees would have the Court see
their regulatory actions over the conversion project as akin to
benign rulemakings. That is absurd.
18 - 3 = Segmenting
The Federal Appellees misunderstand the concept of segment-
ing (Br.p.22) by asserting that the entire golf course develop-
ment, including the 15 private-land golf holes, are not covered
by NEPA, though they are part of an 18-hole unitary golf course.
The Appellees say that the 15 were built before NPS approval of
the remaining three in JKP, so “the approval of those three holes
could not have affected the decision to construct those first
15.” Br. p.22. But in fn. 17 of South Williamson County Community
Association v. Slater, 243 F.3d 270 (6th Cir.2001), cited by the
Appellees, the Sixth Circuit says, approvingly, that
... [C]ourts have found ‘major Federal actions’ despite
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a federal agency's lack of jurisdiction over the non-federal

project when the court determines ... that the state was
improperly attempting to ‘segment’ its project into discrete
sections in order to circumvent NEPA requirements ... or ...
improperly attempting to ‘de-segment’ a major federal action
to permit construction of one segment without complying with
NEPA.”
Id., 243 F.3d at 286 fn.17. HSCRI and Benton Harbor partitioned
18 holes bound by the accentuation of “forward play” into 15 and
3 precisely to circumvent NEPA scrutiny of the overall, larger,
project. The numbers just don’t add up.
Actions are “connected” if they “cannot or will not proceed
unless other actions are taken previously or simultaneously ...
Are interdependent parts of a large action and depend on the
larger action for their justification.” 40 C.F.R. § 1508.25(a)
(1). The 15 holes express “forward play” design in their
connection with the JKP holes at the Park’s northeastern corner.
The JKP holes loop around a pond, and the course exits the Park
near its southeastern corner. The 15 holes pre-emptively forced
routing of the 3 holes through JKP before the public comment
period - they were under construction for over a year by that
time. This classic segmenting tactic is similar to the highway
proposal described in Maryland Conservation Council v. Gilchrist,
808 F.2d 1039, 1042 (4th Cir.1987), where a road was to be built
on either side of a L&WCFA-protected park such that “the com-
pleted segments would stand like gun barrels pointing into the
heartland of the park” (citation omitted).
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Facts Federalize the Project
Federal Appellees’ misunderstanding of the federalization
concept is obvious. They incorrectly state (Br. p.2) that NPS
“approved the conversion of 22.11 acres of a municipal park in
exchange for 38.41 acres of newly created wetlands and recrea-
tional parkland” pursuant to the L&WCFA. But none of the JKP
mitigation parkland is “newly created wetlands.” Parcel E is
pre-existing wetland. The “newly created” wetlands within Harbor
Shores represent mitigation for a predecessor development as well
as wetland mitigation for golf holes. They are subject to § 404
regulation by the Corps, and are wholly distinct from park
mitigation acreage which, as parkland, is regulated by NPS.
Federal Appellees state, incorrectly, that Plaintiffs demand
federalization of the 530-acre Harbor Shores project even though
only “a portion” of it required permits in order to proceed.
Fed.App. Br.25-26. What Plaintiffs actually argue is that absent
the permit-essential portions of JKP, the whole project could not
proceed (according to HSCRI). HSCRI insists that it could not
reconfigure the project to limit construction to areas not in-
volving NPS approval, because the development utterly depends
upon having spectacular views of Lake Michigan.
The District Engineer is considered to have control and
responsibility for portions of the project beyond the limits of
the Corps’ jurisdiction where the Federal involvement suffices to
-7-
turn an essentially private action into a Federal one - viz.,
where the environmental consequences of the larger project are
essentially products of the Corps’ permit action. Typical
factors to be considered in determining whether sufficient Corps
“control and responsibility” exists include “[w]hether there are
aspects of the upland facility in the immediate vicinity of the
regulated activity which affect the location and configuration of
the regulated activity,” and “[t]he extent of cumulative Federal
control and responsibility.” 33 C.F.R. Part 325, Appendix B §
7(b)(ii) & (iv). But the Corps adopted HSCRI’s dogma from the §
404 application that:
The target property for this project must be land

associated with water since Benton Harbor is a coastal city
on Lake Michigan and it is a proven attraction for visitors.
The Paw Paw River is the major body of water flowing through
the city. A golf course requires large tracts of land. The
only land available for such use in the City of Benton
Harbor is along the Paw Paw River. Therefore, based on the
search of available properties within the City of Benton
Harbor and the criteria necessary to realize the basic
project purpose, Harbor Shores found that there were no
alternative locations for the proposed mixed-use develop-
ment.
RE 177 Exh. 26 p. 5.
Plaintiffs noted in their first Brief (p.36) that the USEPA
criticized the stated project purpose as “to construct a Jack
Nicklaus Signature Golf Course,” which “is inherently too
specific” and “ruled out practicable alternatives ... because ‘it
is not prudent to high quality golf.’” RE 147 Exh.1 pp. 19-20,
USEPA letter.
-8-
Federal Appellees complain that (Br. p.33) Plaintiffs wrong-
ly accuse NPS of limiting its purpose and need to a Jack Nicklaus
“signature” golf course. They deny, in fact, that NPS even men-
tions the “signature” course in its EA/FONSI. RE 174 p.65. They
may want to reconsider, however, since RE 174 p.65, part of the
“Summary Document for Public Review” of the NEPA package, states
“The proposal is to convert 22.11 acres of the 74-acre Park for
three holes of public golf course to be designed by Nicklaus
Design as a Jack Nicklaus signature public golf course.” Too,
the EA for the JKP conversion area - one of two EA’s of which NPS
claims ownership - states: “These parcels are to be converted to
three holes of a golf course designed by Nicklaus Design as a
Jack Nicklaus ‘Signature’ golf course.”
So it seems that NPS did restrict purpose and need for the
project to a grandiose Nicklaus course, which effectively exclu-
ded consideration of any less-destructive alternative. The
Federal Appellees and HSCRI categorically rejected any alternat-
ive which would not accommodate a Nicklaus design golf course
containing “spectacular views” from the JKP dunes. The Appellees
insist that the private-land portion of the project could not
exist independently of the regulated parkland part. Given this
fusion, the entire 530-acre development, the conversion area of
JKP and the contaminated mitigation parkland are all deemed
federalized - hence combined - for purposes of NEPA and § 404
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consideration. Issuance of a § 404 permit which considered the
environmental effects only upon sub-portions of the development
must be canceled and reversed for want of adequate scope.
Appellees’ ‘Hard Look’ Was Through a Blind Eye
The Federal Appellees’ a-factual recitations include
sweeping assertions (Fed.App. Br.29) that “both federal and state
agencies considered” the net excavation - actually, the gouging
and bulldozing - of hundreds of yards’ length of the 60' high
dunes which transect JKP. The Federal Appellees cite 10
different places in the administrative record where, ostensibly,
the cubic yardage of dislocated dune sand is quantified. But not
a single citation refers to excavation of the dunes.2 There is
discussion of sediment dredged from the Paw Paw River, of cubic
yardage of fill to be placed into wetlands in the project area,
and of the elevation of flood plains. But there is literally no
quantification - hence, zero disclosure to the public - in either
administrative record of the damage planned for the dunes. The
dunes are to be anchored with unknown fill and topsoil to perm-
anently halt their natural migration patterns with turf grass.
The dunes are the major natural features of the Park,
historically used for hiking, sledding, tumbling, picnicking,
viewing fireworks displays, and contemplating Lake Michigan, and
2
Plaintiffs refer to Federal Appellees’ reliance on RE 157
9, 13-15; RE 159, 5-6, 10, 52-54.
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they establish the essential ambiance of the park interior. The
NEPA documents are completely void of any discussion of the
dramatic alteration and de-naturalization of these focal struc-
tures (besides a passing mention of “contouring”). That simply
was not a mere oversight.
Similarly, the exclusion from discussion of 4 acres taken
for an access road and parking lot on the beachfront outside the
leased area, and the eradication of ancient trees, some along an
historical, buried brick road, was not accidentally omitted from
the scope of the NEPA discussion. The Federal Appellees suggest
(Br.30) that constructing the beachfront parking lot was not
necessitated by the removal of the parking lot in the lee of the
dunes. They admit that the old lot was destroyed and replaced by
fill material to anchor the dunes and mold them for golf, thus
the asphalted beachfront acreage was undeniably converted for
replacement parking. This added nearly 4 acres to the 22.11
interior parkland acres admittedly converted. New parking facil-
itated the construction of the 3 new golf holes.
The Federal Appellees deny (Br.30) that there was conceal-
ment of significant information about the degree of contamination
of the mitigation parkland parcels by pointing to mentions of
“arsenic” in a letter appended to, but not referenced in, the NPS
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version of the NEPA document.3 But “arsenic” does not appear in
the Environmental Assessment cited by the Federal Appellees.
Plaintiffs conclusively proved in their first Brief that the
Corps was never given the Part 10 Document which inventories the
industrial toxins which continue to leak into the atmosphere and
the waters of the adjacent Paw Paw River, even now. RE 151 Exh.6
pp.10-13. Yet the Corps mystifyingly argues (Br.30-31) that
“nothing ... would lead the Corps to believe any of the activi-
ties it permitted would cause that leakage.” Inasmuch as the
agency didn’t receive the Part 10 analysis, “nothing” was there
to prompt that conclusion. Professional insight, however, would
suggest that carving up acres of former foundry land along a
Section 10 river for paths, wetlands, stream covering, boardwalks
and swales would almost certainly disturb contaminated brown-
fields and groundwater.
A search for the word “contamination” in the Corps adminis-
trative record reveals literally nothing about the toxins present
in the entire Harbor Shores development. Twenty-two (22) docu-
ments contain the word “contamination.” Nine (9) are comment
letters and emails from the public about such subjects as the
planned irrigation of the golf course (on contaminated land) with
25,000,000 gallons of water each season. Seven (7) are various
3
The version of the NEPA document conveyed to the COE
notably omitted this same letter.
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updates of a “Compensatory Wetland Mitigation Plan”, where
“contamination” appears in a single sentence, stating only that
core analysis of soil will be performed to check for contamin-
ation. One (1) document is the lengthy “Conversion and Mitiga-
tion Proposal” for JKP. An public comment letter the Corps
forwarded to HSCRI following a 2006 public hearing on wetland
mitigation contains “contamination.” HSCRI’s “Pollution Preven-
tion Plan” mentions “contamination” in the form of anticipated
spillages of pesticides or herbicides on the golf course. And the
Corps’ “Permit Evaluation” mentions “contamination” twice rela-
tive to filling new wetlands and lessening contamination in
existing ones. Finally, there is a “Sediment Evaluation Manage-
ment Plan,” detailing how contamination will be minimized during
“nonremedial maintenance dredging” of the Paw Paw River for a
marina. This addresses only potential contamination of the
riverbed. But there is no mention of the toxins in the brown-
fields, including the mitigation parkland parcels, hence no
environmental impact analysis. Lacking knowledge of the Part 10
analysis, the Corps’ claims of adequate protection of water
quality are vacuous and legally unsustainable, having no support
whatsoever in the agency record.
Similarly, neither of NPS’s two EAs for the conversion
mention or account for remedial actions on the mitigation
parcels; NPS didn’t mention the Part 10 analysis in its EA/FONSI,
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and the public was never given it, nor told that the poisoned
38.41 mitigation parkland acres would, once remediated, allow
activity only on buffered hiking paths. The NPS brief does not
explain, even post hoc, why it withheld key evidence of
contamination from the public, such as the December 13, 2007
letter from Michigan’s DEQ to its DNR. The letter constructed out
of whole cloth a recreational toxic exposure standard to limit
contact by children with the contaminated mitigation parkland. RE
168 at 26-27. Nor does NPS say why contamination was not
mentioned in the conversion approval. Certainly it would have
made a difference to the public if the NEPA disclosures explained
that the state government had acknowledged permanent public
health risks to children on the new, replacement parkland. The
NPS does not explain why the permanent, completed pathways for
PAHs and VOCs to pollute the air, land and water do not comprise
an array of impacts upon the human environment which under NEPA
and § 404 must be disclosed, analyzed and discussed.
The Federal Appellees have clung to conclusory assertions
throughout this litigation, but an agency cannot rely on "con-
clusory assertions that an activity will have only an insignif-
icant impact on the environment." Ocean Advocates v. U.S. Army
Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir. 2005). The basis for
the agency approvals was inadequate, even imaginary. The Court
may thus not affirm either the conversion approval or the § 404
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permit.
Plaintiffs’ Unique Status Establishes Their Standing
Plaintiffs’ claims to standing to challenge the appraisals
of JKP and the mitigation parkland are two-fold.
A. Prudential interest as environmental litigants
Plaintiffs’ direct prudential interests in this lawsuit,
evidenced by their district court declarations, are as longtime,
intensive recreational users of JKP. The Supreme Court affirmed
such an interest as a basis for standing in Summers v. Earth
Island Institute, 129 S.Ct. 1142, 1147 (2009):
While generalized harm to the forest or the environment

will not alone support standing, if that harm in fact af-
fects the recreational or even the mere esthetic interests
of the plaintiff, that will suffice. Sierra Club v. Morton,
405 U.S. 727, 734–736 (1972). (emphasis supplied).
Plaintiffs brought their lawsuit as environmental litigants,
not as taxpayers. Plaintiffs maintain that the appraisals were
incompetently done, in violation of bright-line protocols con-
tained within the Uniform Appraisal Standards. Plaintiffs seek,
not to protect the public fisc, but to expose the suspicious
nature of appraisals arranged by an HSCRI attorney. The
appraisals made the conversion inexpensive for HSCRI. HSCRI
needed a lowballed appraisal of $900,000 for the 22.11 parkland
acres which did not rely upon the $15,840,000 value that the
appraisal reviewer assigned to JKP (RE 178 Exh.27 p.8) so that
the contaminated land mitigation for JKP’s heartland would seem
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to be a fair trade. Parcel H, a 1.47-acre, regulated toxic
facility on the Paw Paw River, was appraised at $714,000 - nearly
80% of the $900,000 value of the uncontaminated 22.11 acres
inside the Park! The underappraisal of JKP also ensured a low
base rental figure for the 105-year contemplated lease term.
HSCRI rents the 22.11 acres containing 3 golf holes and “spectac-
ular views” at an initial rate of $32,000 annually.
Appellees incorrectly challenge Plaintiffs’ standing as
taxpayer standing; Plaintiffs do not claim a mere taxpayer
interest in protecting the federal investment in JKP. They have
prosecuted this lawsuit as environmental litigants who have used
the Park recreationally for many years. As such, Plaintiffs
established prudential standing which differentiates them from
the general public, and from other taxpayers, because Plaintiffs’
frequent usage and protectiveness of JKP as users who live in the
vicinity is not an interest shared commonly by all members of the
public.
Plaintiffs’ standing to sue is validated and bolstered by
Earth Island. As recreational Plaintiffs, they maintain a direct
interest in opposing the privatization of Jean Klock Park;
demanding an economically realistic appraisal instead of a gross
underestimate is simply an expression of that opposition. HSCRI
categorically declined to consider any alternative which would
locate the golf course completely outside JKP because of
-16-
profitability considerations. Plaintiffs have continuously
insisted that the economics of the project must therefore be
publicly disclosed, especially given departures from federal
appraisal standards in the appraisals. The appraiser’s failure to
assign a “highest and best use” valuation to JKP land produced a
suspect, low-dollar value for the converted parkland, which made
the conversion artificially attractive to HSCRI and its corporate
backers.
B. Environmental litigants may rely on Adams standing

to pursue multiple violations of L&WCFA
In DaimlerChrysler v. Cuno, 547 U.S. 332, 349 fn. 5 (2006),
the Supreme Court noted that Sierra Club v. Adams, 578 F.2d 389
(D.C. Cir. 1978) grants that “once a litigant has standing to
request invalidation of a particular agency action, it may do so
by identifying all grounds on which the agency may have ‘failed
to comply with its statutory mandate....’” Cuno affirmed that
environmental litigant standing allows plaintiffs, such as those
at bar to identify and litigate “all grounds on which the agency
may have ‘failed to comply with its statutory mandate.’” That is
precisely what Plaintiffs have done here, under the L&WCFA.
Notably, neither Appellees nor the district court objected
to Plaintiffs’ standing to complain that the mitigation parcels
approved by NPS are not, per the L&WCFA, “reasonably equivalent
[in] usefulness with the property proposed for conversion,” a
statutory police implemented by a key L&WCFA regulation. 16
-17-
U.S.C. § 460l-8(f)(3); 36 C.F.R. § 59.3(b)(3). Having
established standing to challenge misapplication of the L&WCFA on
the reasonable equivalence issue, Plaintiffs, per Adams, also
thus have standing to attack the sufficiency of the appraisals
under another L&WCFA regulation, 36 C.F.R. § 59.3(b)(2).
Plaintiffs’ prudential interest is found in their unique
concrete interest, as environmental litigants (a distinguishable
subset of the population), in resisting the procedural harm of
unlawful steps taken which caused the conversion of JKP. Loss of
procedural due process is a type of imminent harm from the
conversion. Plaintiffs’ interests are conceivably protected by
the statutes on which they base this litigation (NEPA, L&WCFA,
CWA). Plaintiffs’ standing to challenge any violations of the
L&WCFA includes standing to challenge the adequacy of the
appraisals, per Adams.
There Is No Mootness; the Project Is Not Completed
Citing newspaper articles and unsourced facts about HSCRI’s
budget, HSCRI suggests (Br. pp.18-19) that the NEPA claims of
this lawsuit have become moot. But at its fn.5, HSCRI antici-
pates projects spending millions of dollars for work on the
mitigation parkland in 2010 and 2011 (Br. p.20). Similarly, at
Br. p.16, Federal Appellees incorrectly allege that “none of the
remainder of the Project is expected to require any Federal
approval or permitting.”
-18-
To counter HSCRI’s and the Federal Appellees’ extra-record
facts, Plaintiffs ask that the Court take judicial notice of
certain public record facts4 which Appellees failed to tell the
public throughout the NEPA process. The U.S. Environmental
Protection Agency has identified a spreading, toxic vinyl chlor-
ide plume which has migrated through the groundwater underneath
the Paw Paw River from a Superfund site controlled by HSCRI
within the Harbor Shores project area to locations within
mitigation parkland parcel E. See www.epa.gov/superfund/sites
/fiveyear/f2008050002653.pdf at pp. 9, 26, 31, 33 (of .pdf). The
plume may further contaminate the already-contaminated Parcel E
and other mitigation parkland parcels situated downstream, yet
HSCRI has not disclosed the plume’s longtime existence to the
public, Federal Appellees or the courts. Of this Superfund site,
where residential condominiums are planned, USEPA states:
In order to assure protectiveness of the site cleanup,

the site owner or developer would need to work with EPA
before residential development of the property ... to
evaluate whether contaminant concentrations found in the
area are consistent with residential use and would have to
take additional measures if the contaminant levels do not
allow for residential use. These measures may include
additional site cleanup ..., demonstration that residential
soil cleanup levels are already met, and/or ... installation
of vapor barriers ... in the construction of the
residences.... [I]f additional information, sufficient to
support a change of a portion of the site property to
4
See Papasan v. Allain, 478 U.S. 265, (1986); Government of
Canal Zone v Burjan, 596 F.2d 690 (5th Cir.1979) (fact may be
judicially noticed by appellate court under FRE 201 “at any stage
of the proceeding”).
-19-
residential use is presented to USEPA, it will be necessary

to document such change with either an explanation of
significant difference (ESD) or an amendment to the Record
of Decision (ROD).
Id. at 8.
This appeal is not rendered moot by Appellees’ self-
interested NEPA interpretation; demonstrating mootness carries a
heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); North Environmental Defense Center v. Gordon, 849 F.2d
1241, 1244 (9th Cir.1988). The question “‘is not whether the
precise relief sought at the time the application for an injunc-
tion was filed is still available. The question is whether there
can be any effective relief.’” Id., 849 F.2d at 1244-45.
A suit to compel future action is moot only after the future
action has been "fully and irrevocably carried out." E.g.,
University of Texas v. Camenisch, 451 U.S. 390, 398 (1981). Thus
a suit to compel an EIS is rendered moot only when the EIS is
completed and filed. Romero-Barcelo v. Brown, 643 F.2d 835, 862
(1st Cir. 1981); City of Newport Beach v. CAB, 665 F.2d 1280
(D.C.Cir. 1981); Upper Pecos Ass’n v. Stans, 500 F.2d 17 (10th
Cir. 1974).
Here, the EIS process is not only unfinished, it has not
begun. If the Court concludes that the conversion of JKP consti-
tutes a "major federal action" or that there was critical infor-
mation withheld from the public and/or the NPS and Corps did not
give the project the required “hard look,” then it can “compel
-20-
agency action unlawfully withheld or unreasonably delayed." See 5
U.S.C. § 706(1). Injunctive actions at that point might include
halting construction of hiking trails, excavation and remedia-
tion. The Court could void the HSCRI-Benton Harbor lease and
eject HSCRI from the Park. That lease provides that in the event
of cancellation, HSCRI will restore the Park to the physical
state that pertained, pre-golf. RE 178 Exh.27 p.19; RE 179 Exh.28
pp.2-3. See Columbia Basin Land Protection Assoc. v. Schles-
inger, 643 F.2d 585, 591 n.1 (9th Cir. 1981) (power line already
constructed, but challenge not moot because relief could still
take form of its removal); Burbank Anti-Noise Group v. Gold-
schmidt, 623 F.2d 115, 116 (9th Cir.1980) (action challenging
completed sale of airport not moot when the actions could be
"undone"), cert. den., 450 U.S. 965 (1981).
If all it took to set up a claim of nonjusticiability were
completion of the action challenged under NEPA, a party "could
merely ignore the requirements of NEPA, build its structures
before a case gets to court, and then hide behind the mootness
doctrine. Such a result is not acceptable." West v. Secretary of
the Department of Transportation, 206 F.3d 920, 925 (9th Cir.
2000) (citation omitted).
The blatant NEPA and § 404 violations by HSCRI and Benton
Harbor have caused this litigation and bought time for the Park
to be largely mangled for golf. But the harm to Plaintiffs’
-21-
interest continues; the conversion of JKP is an ongoing project.
Mootness must not be allowed to reward Appellees’ mendacity.
There Is SCORP Noncompliance When Priority

Parkland Positives Are Lost to Conversion
Appellees contend that NPS had a merely perfunctory role in
assuring that the JKP conversion complied with the L&WCFA, argu-
ing that passive acceptance of “certification” by the State was
sufficient scrutiny. That is not what the statute requires. Sec-
tion 6(f)(3) of the L&WCFA [16 U.S.C. § 4601-8(f)(3)] states
pertinently:
The Secretary shall approve such conversion only if

he/she finds it to be in accordance with the then-existing
Statewide Comprehensive Outdoor Recreation Plan (SCORP) and
only upon such conditions as he/she deems necessary to
assure the substitution of other recreation properties of at
least equal fair market value and of reasonable equivalent
usefulness and location.
The Interior Secretary must “find” the conversion to accord with
the SCORP. New York’s federal district court interprets that
statute in this way:
Under the L&WCFA, the NPS may only approve of this

conversion for private use if it concludes that the
conversion of public parkland would be in accord with the
comprehensive statewide outdoor recreation plan (‘SCORP’)and
‘only upon such conditions as [the NPS] deems necessary to
assure the substitution of other recreation properties of at
least equal fair market value and of reasonably equivalent
usefulness and location.’ 16 U.S.C. §4601-8(f)(3).
Save Our Parks v. Kempthorne, 2006 U.S. Dist. LEXIS 85206 (2006).
There is no room in the statute for NPS to delegate the finding
of SCORP compliance to the states or other entities. The
-22-
determination of SCORP compliance is reviewable under the
“arbitrary and capricious” standard of the APA, 5 U.S.C. §
706(2)(A), NPS’ passive, unexamined acceptance of Michigan’s
“certification” was arbitrary and capricious.
Federal Appellees contend (Br. p.55) that nothing supports
the ranking of conservation as the top SCORP goal. At fn. 15 of
their first brief, Plaintiffs showed that conservation was ranked
at the top in goal-setting for the 2008-2012 SCORP, citing RE 152
Exh.7 p.17.
Benton Harbor maintains (Br. p.40) that only the end result
of “the conversion and substitution process, [i.e., the handover
of replacement property] satisfies the SCORP.” But 36 C.F.R. §
59.3(b)(9) expressly requires that both “[t]he proposed conver-
sion and substitution are in accord with the [SCORP]” (Emphasis
supplied). The federal regulation compels both the conversion and
mitigation to concur with SCORP.
Whatever is done with converted parkland post-conversion is
irrelevant to meeting SCORP. What is relevant is whether loss of
particular park features inside the conversion area would contra-
dict SCORP goals. If parkland could be converted regardless of
its valued features so long as the mitigation parkland were in
accord with SCORP goals, the L&WCFA would be a nullity, because
parkland protection and integrity would have no relevance.
Moreover, Appellees are wrong when they claim that whatever
-23-
is done with the converted parkland post-conversion is not at
issue. The JKP conversion is not approvable, because the natural
features - the dunes - are being sacrificed, partially recon-
figured and removed from parkland status, which directly
contradicts the SCORP goal of natural resource protection which
has been consistently recognized in current and previous state-
wide plans. NPS has approved the conversion in derogation of the
SCORP, not in accordance with it. This is reversible error.
‘Brief Discussions’ of ‘Lite’ Alternatives
A. Standing and waiver
The Federal Appellees question (Br. p.35) whether Plaintiffs
may challenge adequacy of the alternatives, claiming Plaintiffs
waived opposition by not requesting location of the golf holes
outside the Park, or suggesting a smaller course footprint.
LuAnne Kozma’s public comment letter expressly mentioned the
northern location alternative depicted on the 2004 Redd Map and
sought consideration of a smaller course footprint. RE 178
Exh.27 pp.2-3. Plaintiff Julie Weiss expressly incorporated the
Kozma comments by reference into her own. RE 178 Exh.27 p.8.5
Thus Plaintiffs did expressly propose such alternatives.
But it is immaterial whether Plaintiffs made such proposals.
See Sierra Club v. Adams, 578 F.2d 389, 391-93 (D.C. Cir. 1978):
5
“I also support and incorporate the comments made by LuAnne
Kozma ... as my own.”
-24-
[B]ecause appellees have established an independent

basis for standing to challenge the FEIS, they also have
standing to argue the public interest in support of their
claim that there is inadequate discussion and consideration
of the effect of the construction on the Cuna and Choco
Indians.
See also DaimlerChrysler v. Cuno, 547 U.S. 332, 349 fn.5 (“[O]nce
a litigant has standing to request invalidation of a particular
agency action, it may do so by identifying all grounds on which
the agency may have ‘failed to comply with its statutory
mandate....’”).
B. ‘Hard look’ doctrine includes EA alternatives
The Federal Appellees and HSCRI contend that an EA contain
only “brief discussions” of alternatives, citing 40 C.F.R. §
1508.9, as though the regulation dispenses with any expectation
that NEPA and interpretative precedent must be followed. Fed.App.
Br. pp.34-5; HSCRI Br. pp.486. But NEPA states (42 U.S.C. §
4332(2)):
The Congress authorizes and directs that, to the full-

est extent possible all agencies of the federal government
shall include in every recommendation or report on pro-
posals for legislation and other major Federal actions
significantly affecting the quality of the human envir-
onment, a detailed statement by the responsible official on
alternatives to the proposed action. (Emphasis supplied)
This Circuit insists that NEPA prevents agencies in an EA from
effectively “defining the objectives of their actions in terms so
6
“[T]he alternatives analysis in an EA is less rigorous than
in an EIS,” citing Save Our Cumberland Mountains, 453 F.3d 334
(6th Cir. 2006).
-25-
unreasonably narrow they can be accomplished by only one alter-
native.” Save Our Cumberland Mountains v. Kempthorne, 453 F.3d
334, 345. This Court requires that “‘the agency has ... ade-
quately studied the issue and taken a ‘hard look’ at the envir-
onmental consequences of its decision.’” Id. at 339 (citations
omitted). The Sixth Circuit holds that an EA addresses two
purposes: (1) to "ensure[] that the agency ... will have avail-
able, and will carefully consider, detailed information concern-
ing significant environmental impacts" and (2) to "guarantee[]
that the relevant information will be made available to the
larger audience that may also play a role in both the decision-
making process and the implementation of that decision.” Id. at
348, quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 349 (1989).
Here, alternatives were rejected in conclusory fashion,
mostly for undisclosed economic reasons. “No action” (no
conversion) which would leave Harbor Shores’ 530 acres redev-
elopment-ready (Alternative 1) was rejected out of hand. A
smaller-than-Nicklaus course would not sufficiently “transform”
Benton Harbor profitably (Alt. 2). Golf on the Park’s beach
(Alt.3) would be at-grade on the Lake and be unspectacular.
Building south of JKP has too many physical impediments and
recreation is allegedly “425 Act”-prohibited (Alt. 4), although
Parcel H, another 425 Act parcel, is mitigation parkland (hence
-26-
recreational). Golf east of JKP is infeasible because the
“forward play” comes from another direction (Alt. 5). Secret
economic data says that golf north of JKP would not “transform”
Benton Harbor enough (Alt. 6). The alternatives discussion was
captive of a project purpose “so slender as to define competing
'reasonable alternatives' out of consideration (and even out of
existence),” negating NEPA’s role. Simmons v. United States Army
Corps, 120 F.3d 664, 666-67 (7th Cir.1997). Appellees’ “brief EA
discussions” of alternatives avoided taking a “hard look.”
Appellees shortened the form to abandon all substance.
The Record Is Clear: JKP Is Eligible

for National Register Listing
In July, 2004, (RE 149 at pp.4-7) Michigan’s SHPO advised
Benton Harbor’s (now Harbor Shores’) lawyer:
A recent site visit by one of our staff members

revealed that while the park has undergone some changes due
to new development and the effects of nature and neglect,
many of the park’s significant features are still intact.
The 3.7 acre Grand Boulevard Parcel ... has undergone some
changes due to the natural shifting of the sand dunes that
have covered a portion of the road and some of the original
plantings. Thus some of the integrity of the design has been
lost. However, features from the original design can still
be seen and should be retained. (Emphasis supplied)
The foregoing, however, begs the question: whose design?
What plantings? Michigan’s SHPO cautioned Benton Harbor:
... The entry posts must be retained, and any intact,

original portions of Grand Boulevard (sic - should be Jean
Klock Boulevard) should be restored wherever possible.
There is a grouping of large cottonwoods on the north
side of Grand Boulevard ... Every effort should be made to
-27-
preserve this cluster ...

The designers for this project should review Jensen’s
original plans and incorporate as much of the original
design and materials as possible in their proposed plans ...
Id.
The SHPO is not in the business of merely offering advice to
real estate developers on project design or aesthetic consider-
ations under a Section 106 review unless those matters bear upon
historically significant properties. SHPO employs the verb “must”
referring to the entry columns’ retention, and directs that the
developer “should” preserve the trees and “should” review the
Jensen plans and incorporate them into the development, and the
road “should be restored.” SHPO was acting in an official
capacity, not an informal one. The fact that these considerations
were forgotten the minute they were written and never conveyed to
the ACOE during the Section 106 review for Harbor Shores does not
invalidate their importance.
SHPO neither conceded doubt, nor declared its findings “pre-
liminary” in 2004. (Fed.App.Br.p.60 fn.17). The SHPO letter
continued: “Jean Klock Park ... appears to meet the criteria for
listing in the National Register ...” Subsequent review in
7
Appellee NPS here confuses the Grand Boulevard Renaissance
development, which in fact did occur, with Harbor Shores,
although the earlier conversion’s resulting permanent injunction
against commercial development was essential to Harbor Shores’
later deep discount appraisal. The chronology of JKP conversions
rendered by Appellees requires dismissal of SHPO’s July 29, 2004
opinion as “preliminary”; otherwise, no golf in the dunes or
asphalt on the historic roadway.
-28-
September 2006 of manmade features by Hitchcock Design, then a
Harbor Shores partner, (RE 154 at 4) and the Corps of plant
material in a Michigan December (RE 162 at 12) serve only to
rationalize development.
Although the Corps did solicit comment from various Jens
Jensen authorities, it did not offer to hire any for a thorough
historical review despite SHPO’s concern over Hitchcock’s
conflict and Hitchcock’s peevish denunciation of the Corps’
reading comprehension (RE 177 Exh.26 p.2). One respondent told
the Corps:
[I]t appears your original report [Hitchcock] is

tainted by a possible conflict of interest. It also appears,
from a brief reading of these documents, that the issue of
National Register eligibility has not been fully addressed
and that the park may indeed be eligible under one of the
four criteria, even if it is NOT a fully implemented design
by a nationally known designer such as Jens Jensen.
RE 177 Exh.26 p.3.
Federal Appellees offer a 1990 JKP Master Plan excerpt (RE
161 at 40) to discount the historic integrity of JKP (“topography
suggested that much of the area had been leveled and scraped”),
yet they were literally looking the wrong direction. The
immediately subsequent sentence in that plan says: “This is
especially true for the City of Benton Harbor water facility and
its surrounding parking lot occupying the extreme south portion
of the project area.” (RE 161 at 41). The historic trees
documented by SHPO in July, 2004, are located at the opposite end
-29-
- north end - of the 74-acre park. Notably, in its September
2006 survey of structures in JKP, Hitchcock Design failed to list
as National Register-eligible this same historic 60-year-old
“water facility,” the largest building situated on JKP. RE 154 at
4.
The backpedaling and dissembling by Defendants and SHPO
following the Michigan Governor’s assurance of carte blanche to
Whirlpool Corporation for its golf course development (RE 177
Exh.26 pp.6-7) are unmistakable. JKP’s National Register
eligibility was inconvenient, and so, history had to be
rewritten.
/s/ Terry J. Lodge

Terry J. Lodge
Counsel for Plaintiffs-Appellants
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type

volume limitation imposed by Fed.R.App.P. 32(a)(7)(B). The brief
was prepared using Wordperfect x4 and contains no more than
6,982 words of text. The typeface is Courier New, 12-point font.
/s/ Terry J. Lodge

Terry J. Lodge
Dated: October 29, 2010
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2010, I electronically

filed the foregoing Opening Brief of Appellant with the Clerk of
the Sixth U.S. Circuit Court and that pursuant to official ECF
policy, it was to be electronically served upon all counsel of
-30-
record.
/s/ Terry J. Lodge

Terry J. Lodge
-31-
ADDENDUM “A” – DESIGNATION OF

RELEVANT DISTRICT COURT DOCUMENTS
PLAINTIFFS’ DESIGNATIONS FROM THE CORPS’ RECORD
Title of Document Document begins Pages Record Entry

in Administrative designated by Number
Record at Page Plaintiffs
Harbor Shores “A Corps Corps AR 60 74, 76, 97 RE 147 at 2, 3, 4

Foundation for Community
Transformation”
Collected report from Jean Corps AR 782 799, 834 RE 147 at 5, 6
Klock Park
Conceptual Stormwater Corps AR 1015 1015, 1027 RE 147 at 7, 8
Management Plan
Corps, Allenson to JFNew, Corps AR 1098 1101, 1104 RE 147 at 9,10
von Wahlde
JFNew, von Wahlde letter to Corps AR 1723 1725 RE 147 at 11
City 5/14/2008
Department of the Army Corps AR 1867 1867, 1870, RE 147 at 12,
permit evaluation 1882, 1898, 13, 14, 15, 16-
1909-1910, 17, 18
1920
EPA, Pierard letter Corps AR 2250 2250, 2251 RE 147 at 19, 20
SHPO, Conway letter to Corps AR 2570 2570 RE 147 at 21
Corps, Allenson 8/11/2006
Harbor Shores, McFeeter letter Corps AR 2574 2575, 2578, RE 154 at 2, 3,
to Corps, Konik 10/19/2006 2580-2581, 4-5, 6-17
2587-2598
SHPO, Conway letter Corps to Corps AR 2609 2609-11 RE 155 at 2-4
DC\#270462
-60-

SHPO, Grennell letter to Corps AR 2612 2612 RE 155 at 5

L. Krieger letter to MDEQ, Corps AR 2704 2705 RE 155 at 6
Poynter w/encls.
Presentation for Executive Corps AR 3588 3604, 3626- RE 155 at 7, 8-9
Leadership meeting 3627
10/13/2005
Corps returning one copy of Corps AR 3836 3839 RE 155 at 10
permit to applicant, 8/29/2008
PLAINTIFFS’ DESIGNATIONS FROM THE PARK SERVICE’S RECORD

MDNR letter to NPS, DOI AR 15 15 RE 148 at 2

12/22/2004
Consent Judgment DOI AR 22 22-34 RE 148 at 3-15
Michigan SHPO letter to DOI AR 48 48 RE 148 at 16
Benton Harbor attorney Fields
7/29/2004
Exhibit G to Conversion DOI AR 494 499 RE 148 at 17
version and Mitigation
Proposal
Exhibit S to Conversion and DOI AR 871 876 RE 148 at 18
Mitigation Proposal
NPS 10/16/2007 letter to DOI AR 883 883-87 RE 148 at 19-23
MDNR denying conversion
DC\#270462
-61-

NPS phone memorandum DOI AR 912 912 RE 148 at 24

1/25/08
U.S. Army Corps letter DOI AR 1011 1011-14 RE 148 at 25-28
4/28/2008 to Benton Harbor
Southwest Michigan DOI AR 1115 1118 RE 149 at 2
Commission letter to MDNR,
10/13/2006
Copy of U.S. Army Corps DOI AR 1141 1147 RE 149 at 3
letter to John Cameron,
06/30/2006
Michigan State Historic DOI AR 1152 1152-55 RE 149 at 4-7
Preservation Office letter,
2004
Letter, Luanne Kozma to U.S. DOI AR 1170 1170 RE 149 at 8
Army Corps, 12/4/2006
Copy of 5/11/2008 Benton DOI AR 1222 1222 RE 149 at 9
Harbor Herald Palladium
Guest column
Copy of Wendy Chesser DOI AR 1327 1337, 1340, RE 149 at 10,
1/15/2008 electronic mail 1341 11, 12
Copy of Maureen Houghton DOI AR 1342 1342 RE 149 at 13
12/12/2007 electronic mail
5/17/2008 Nicole Moon letter DOI AR 1463 1466, 1467 RE 149 at 14, 15
Att. 5
Part I, Exhibit E Public DOI AR 1750 1777, 1792, RE 149 at 16,
Comment Summary 1802, 1811 17, 18, 19
DC\#270462
-62-

Part II Attachment B Exhibit 2 DOI AR 1852 1855 RE 150 at 2

Jean Klock Park
Improvements Drawings
Part II Attachment E DOI AR 1926 1984, 1985 RE 150 at 3, 4
Environmental Assessment for
the mitigation lands
Part II Attachment F Lease DOI AR 2021 2031, 2032 RE 150 at 5, 6
Agreement
Part III Harbor Shores Lease DOI AR 2149 2169, 2170 RE 150 at 7, 8
Agreement blacklined version
Documentation of Compliance DOI AR 2328 2328-2362 RE 151 at 2-36
with Part 10 rules
Documentation of Compliance DOI AR 2328 2363-2376 RE 152 at 2-15
with Part 10 rules
Part IV Michigan Statewide DOI AR 2477 2548, 2558 RE 152 at 16, 17
Comprehensive Outdoor
Recreation Plan
NPS internal conversion DOI AR 2753 2757 RE 152 at 18
evaluation
NPS FONSI 7/25/2008 DOI AR 2761 2761 RE 152 at 19
Environmental Analysis DOI AR 2762 2764-2767 RE 152 at 20-23
Summary Document
NPS 7/25/2008 letter to DOI AR 2778 2778 RE 152 at 24
MDNR
DC\#270462
-63-
PLAINTIFFS’ SUPPLEMENTAL DESIGNATION OF ADMINISTRATIVE RECORD
Name of Document Document Begins in Pages Designated Record

Admin Record at by Plaintiffs Entry No.
EXHIBIT 26
Hitchcock Design Corps AR 734 734 RE 177 at

Group letter to ACOE 2
9/9/2006
Email, ACOE (Westerly Corps AR 746 746-747 RE 177 at

Group) 2/20/2007 3-4
JF New, Sect. 404 Corps AR 2024 2058 RE 177 at

Application to ACOE 5
Granholm to Fettig Corps AR 2562 2562-2563 RE 177 at

letter, 5/10/2006 6-7
EXHIBIT 27
LuAnne Kozma, Public DOI AR 1068 1078-1083 RE 178 at

Comment letter, 2-7
5/14/20080
Julie Weiss, Public Supp. Exh. 941 26 RE 178 at

Comment letter, May 8
17, 2008
Appraisal Review, DOI AR 2293 2293 RE 178 at

Jean Klock Park, 9
2007
Benton Harbor-HSCRI DOI AR 2149 2170 RE 178 at

Lease 10
EXHIBIT 28
Public Comment Summary DOI AR 1750 1793-1794, RE 179 at

1796-1797 2-5
UpJohn Institute DOI AR 1530 1531-1532 RE 179 at

study cover page 6-7
and disclaimer
March 2008
DEFENDANTS’ DESIGNATIONS FROM THE CORPS’ RECORD

Record at Page Defendants
Original permit application Corps 0098 0098-102 RE 157 at 2-6

from Corps and Fritsma to
Simon (Oct. 11, 2005)
Sediment Evaluation and Corps 0134 0134-35, 0141 RE 157 at 7-9
Dredged Material
Management (Corps received
Oct. 19, 2005)
Letter from JFNew (von Corps 0430 0430-32 RE 157 at 10-12
Wahlde) to MDEQ (Zimont)
(Nov. 1, 2005)
Letter from Harbor Shores Corps 0435 0435-37 RE 157 at 13-18
(McFeeter) to MDEQ
(Wontorick) re: providing
requested information on
floodplain analysis
HEC-RAS Hydraulic Analysis Corps 0484 0484-85 RE 157 at 19-20
Harbor Shores Community
Redevelopment, Paw Paw
River, City of Benton Harbor,
MI (revised Jan. 2006)
Economic Impact Study for Corps 0549 0549-51 RE 157 at 21-23
Harbor Shores by Paul Fisher
and Brooke Douglas (Jan. 19,
2006)
Michigan SHPO, Conway Corps 0731 0731 RE 157 at 24
letter to Corps, Allenson
(Oct. 24, 2006)
DC\#270462
-64-

Hitchcock Design Group, Corps 0734 0736 RE 157 at 25

Baldin response to Corps and
Michigan SHPO (Nov. 9,
2006)
Letter from Jens Jensen Corps 0751 0751 RE 157 at 26
Legacy Project commenting
on Jean Klock Park (Feb. 13,
2007)
Email from Corps, Allenson to Corps 0760 0760 RE 157 at 27
Chicago Artists Resource,
Koenen (Feb. 14, 2007)
Collected report from Friends Corps 0782 0782 RE 157 at 28
of Jean Klock Park to Corps,
Allenson (received Mar. 6,
2007)
Letter from Friends of Jean Corps 0851 0851-909 RE 157 at 29-87
Klock Park to Corps, Allenson
(Mar. 6, 2007)
Conceptual Stormwater Corps 1015 1016 RE 157 at 88
Management Plan by
Abonmarche (Mar. 2007)
Floodplain Mitigation Plan by Corps 1035 1035-52 RE 158 at 2-19
Abonmarche (Mar. 2007)
Harbor Shores and City of St. Corps 1111 1111-12 RE 158 at 20-21
Joseph Compensatory Wetland
Mitigation Plan (received
Apr. 17, 2007)
DC\#270462
-65-

Letter from JFNew (von Corps 1723 1723-26 RE 158 at 22-25

Wahlde) to Benton Harbor
(Marsh) (Apr. 29, 2008)
JFNew (von Wahlde) email to Corps 1834 1840 RE 158 at 26
Corps (Allenson and Simon)
with new compensatory
wetland mitigation plan
(Aug. 12, 2008)
Dept. of Army Permit Corps 1867 1867-1926 RE 159 at 2-61
Evaluation (Aug. 14, 2008)
JFNew (von Wahlde) emails Corps 1927 1927-33 RE 160 at 2-8
sent to Corps (Simon)
(Aug. 14, 2008)
Corps of Engineer Public Corps 2140 2140-44 RE 160 at 9-13
Notice (Apr. 13, 2006)
Letter from EPA (Pierard) to Corps 2254 2254-55 RE 160 at 14-15
MDEQ Bostwick re:
comments on stream impacts
(Dec. 20, 2006)
EPA (Pierard) letter to MDEQ Corps 2256 2256 RE 160 at 16
(Bostwick) re: additional
comments on stream impacts
(Jun. 14, 2006)
EPA (Pierard) letter to MDEQ Corps 2259 2259 RE 160 at 17
(Bostwick) re: additional
comments (Mar. 17, 2006)
NPS (Anderson) letter to Corps 2306 2306 RE 160 at 18
MDNR (Wood) re: accept part
conversion package (Jul. 25,
2008)
DC\#270462
-66-

Corps (Konik) letter to Harbor Corps 2315 2315 RE 160 at 19

Shores (Cameron) re: denial
without prejudice (Nov. 9,
2007)
Letter Corps (Konik) to City Corps 2322 2322-25 RE 160 at 20-23
of Benton Harbor (Marsh) -
comments on park conversion
(Apr. 29, 2008)
ACHP, Vaughn letter to Corps 2334 2334-35 RE 160 at 24-25
Corps, Konik (Apr. 27, 2007)
MEDQ golf course permit Corps 2423 2433 RE 160 at 26
issued to Harbor Shores
(May 9, 2007)
SHPO, Conway letter to Corps 2564 2564-69 RE 160 at 27-32
Corps, Allenson -- no effect
(Apr. 9, 2007)
Harbor Shores, McFeeter letter Corps 2574 2574-2606 RE 161 at 2-34
to Corps, Konik (Oct 19,
2006)
Hitchcock Design, Baldin Corps 2607 2608.001 RE 161 at 35
letter to Corps, Allenson
(Nov. 9, 2006)
M. Colclough letter to Corps Corps 2652 2652-78 RE 161 at 36-62
(Allenson) re: portions of
report on Jean Klock Park
(Apr. 24, 2006)
DC\#270462
-67-

Defense of Place et al. Corps 2766 2770 RE 162 at 2

testimony to MNRTFB
(Aug. 15, 2006)
Corps (Konik) letter to Harbor Corps 2800 2802-03 RE 162 at 3-4
Shores (Cameron) re:
coordination of comments
(Jun. 20, 2006)
Corps, Konik letter to Harbor Corps 2892 2892, RE 162 at 5-7
Shores, Cameron -- Jean 2894-95
Klock Park historic issues
(Oct. 13, 2006)
Corps, Weigum memo to Corps 3258 3258-59 RE 162 at 8-9
Corps, Chief Regulatory
Officer -- Jean Klock Park
historic issues (Mar. 22, 2007)
Allen Kurta Report on Indiana Corps 3260 3260-61 RE 162 at 10-11
Bats (Dec. 13, 2005)
Corps, Allenson memo to file - Corps 3268 3268-71 RE 162 at 12-15
- site report on Jean Klock
Park (Mar. 31, 2007)
Corps, Konik letter to SHPO, Corps 3449 3449-51 RE 162 at 16-18
Conway - no historic
properties affected (Mar. 23,
2007)
Corps Statement of Findings Corps 3635 3635-38 RE 162 at 19-22
(Aug. 14, 2008)
Letter from Corps (Konik) to Corps 3639 3642 RE 162 at 23
Harbor Shores (Cameron) re:
proffered draft permit
(Aug. 14, 2008)
DC\#270462
-68-

Corps’ Final Permit Letter and Corps 3836 3836-45 RE 162 at 24-33
Dept, of Army permit signed
by Corps and applicant
(Aug. 29, 2008)
Permit Drawings (Jun. 2008) Corps 3846 3846-60 RE 163 at 2-16
3861-96 RE 164 at 2-37
Harbor Shores and City of St. Corps 3897 3897-3935 RE 165 at 2-40
Joseph Compensatory Wetland
Mitigation Plan (Aug. 15,
2008)
Harbor Shores Compensatory Corps 3936 3936-72 RE 166 at 2-38
Stream Mitigation Plan
(Aug. 27, 2008)
Harbor Shores Golf Course Corps 3973 3973 RE 166 at 39
Pollution Prevention Plan
(undated)
Corps (Krepps) notes on Corps 4126 4126-27 RE 166 at 40-41
review of historic property
issues (undated)
DEFENDANTS’ DESIGNATIONS FROM THE PARK SERVICE’S RECORD

MDNR letter to NPS re: DOI 0015 0015-21 RE 167 at 2-8

proposal by Benton Harbor to
convert 3.7 acres (Dec. 22,
2004)
DC\#270462
-69-

Advisory letter from Michigan DOI 0040 0040-41 RE 167 at 9-10

State Historic Preservation
Office to Geoffrey Fields
(Jul. 29, 2004)
MDNR letter to NPS DOI 0081 0081-82 RE 167 at 11-12
submitting amendment
number three for L&WCF
grant (June 26, 2007)
L&WCF proposal for Jean DOI 0141 0145-46 RE 167 at 13-14
Klock Park (June 2007)
Exhibit A to Conversion and DOI 0152 0152-54, 0163, RE 167 at 15-26
Mitigation Proposal: Benton 0166, 0181-86,
Harbor, A Plan for Positive 0223
Change: Final Report of the
Benton Harbor Task Force
(Oct. 15, 2003)
Exhibit B to Conversion and DOI 0257 0258, 0261, RE 167 at 27-32
Mitigation Proposal: 0274, 0277,
Development of Harbor 0312, 0326
Shores Booklet (dated Oct. 18,
2006)
Exhibit G to Conversion and DOI 0494 0496-503 RE 168 at 2-9
Mitigation Proposal: Public
Meeting Notices and Minutes
(undated)
Exhibit H to Conversion and DOI 0504 0512-14 RE 168 at 10-12
Mitigation Proposal:
Memorandum of
Understanding (Apr. 13, 2006)
DC\#270462
-70-

Exhibit I to Conversion and DOI 0539 0540-44 RE 168 at 13-17

Mitigation Proposal: Grand
Boulevard Consent Judgment
(Jan. 27, 2004)
Letter from David Howell to DOI 1015 1015 RE 168 at 18
National Park Service re: Jean
Klock Park (May 1, 2008)
General Letter from Craig DOI 1016 1016 RE 168 at 19
Cundiff re: Jean Klock Park
(May 1, 2008)
Copy of Karen Krepps DOI 1182 1182-83 RE 168 at 20-21
Mar. 21, 2007 email to US
Army Corps
Copy of Wendy Chesser DOI 1327 1338-41 RE 168 at 22-25
(Corner Stone Alliance)
Jan. 15, 2008 email
Moon Letter attachment 4: DOI 1455 1455-56 RE 168 at 26-27
MDNR Interoffice Memo
regarding Jean Klock Park
mitigation (Dec. 13, 2007)
Moon attachment 5 – various DOI 1463 1463, RE 168 at 28-30
environmental related papers 1466-67
(May 17, 2008)
Moon attachment 8 – map DOI 1473 1473 RE 168 at 31
entitled “Proposed
Development Plan for Harbor
Shores” (May 17, 2008)
MDNR letter to NPS DOI 1588 1588-89 RE 168 at 32-33
submitting revised application
to convert a portion of Jean
Klock Park (June 16, 2008)
DC\#270462
-71-

Part I: Exhibit A – Public DOI 1590 1591-94 RE 168 at 34-37

Review Process
Part I: Exhibit E - Transcript DOI 1617 1618, 1674, RE 169 at 2-12
of Public Hearing on the 1676-77, 1682-
proposed Conversion and 83, 1686-87,
Mitigation of a Portion of Jean 1691, 1698,
Klock Park (Apr. 17, 2008) 1717
Part I: Exhibit E - Public DOI 1750 1750-1812 RE 169 at 13-75
Comment Summary &
Response Document
Part I: Exhibit E – Apr. 9, DOI 1831 1831-36 RE 169 at 76-81
2007 SHPO letter to Corps of
Engineers
Part II: Attachment A – DOI 1839 1841-42, RE 169 at 82-84
Executive Summary of Benton 1844
Harbor, A Plan for Positive
Change
Part II: Attachment B – DOI 1849 1851 RE 169 at 85
Exhibit 1 Trailway System
Maps
Part II: Attachment B – DOI 1852 1854-55 RE 170 at 2-3
Exhibit 2 Jean Klock Park
Improvements Drawings
Part II: Attachment C – DOI 1856 1856-1908 RE 170 at 4-56
Environmental Assessment for
the conversion of Jean Klock
Park lands
Part II: Attachment D - DOI 1909 1911-25 RE 170 at 57-71
Description of mitigation
parcels of Jean Klock park
converted lands
DC\#270462
-72-

Part II: Attachment E – DOI 1926 1926-2020 RE 171 at 2-96

Environmental Assessment
Analysis for the mitigation
lands
Part II: Attachment F - Lease DOI 2021 2021-2068 RE 172 at 2-49
Agreement between City of
Benton Harbor and Harbor
Shores Community
Redevelopment, Inc.
Part II: Attachment G – Park DOI 2069 2069-2138 RE 172 at 50-
Improvement and 119
Maintenance Agreement
Part III: Michigan Attorney DOI 2140 2140 RE 172 at 120
General’s June 4, 2008 letter
to Benton Harbor City
Attorney
Part III: Summary of changes DOI 2145 2145-48 RE 172 at 121-
to the Harbor Shores Lease 124
Agreement and the Park
Improvement and
Maintenance Agreement
Part III: Harbor Shores Lease DOI 2149 2149-97 RE 173 at 2-50
Agreement black lined version
Part IV: Jean Klock Park DOI 2269 2269-74 RE 173 at 51-56
revised section 6(f)(3)
boundary maps
Part IV: Appraisal reviews for DOI 2293 2293-2309 RE 174 at 2-18
the Jean Klock Park converted
parkland and replacement
properties
DC\#270462
-73-

Part IV: Undated listing of DOI 2312 2312-15 RE 174 at 19-22

public events where Harbor
Shores project was discussed
Part IV: Jack Nicklaus Design DOI 2316 2316 RE 174 at 23
letter relating to the use of
Jean Klock Park lands for
three holes of new golf course
(Sept. 21, 2006)
Part IV: Summary of MNRTF DOI 2318 2318-20 RE 174 at 24-26
Board Public Comment
Sessions 2006
Part IV: Michigan Attorney DOI 2377 2377-78 RE 174 at 27-28
General Sept. 14, 2007 letter
opining the use of Jean Klock
Park lands for part of a public
golf course serves a public
purpose as a public park
Part IV: Michigan Statewide DOI 2477 2477-81, RE 174 at 29-53
Comprehensive Outdoor 2548-67
Recreation Plan
Bette Pierman letter to NPS DOI 2721 2722 RE 174 at 54
subject: Jean Klock Park
revised Conversion Mitigation
Proposal for a portion of Jean
Klock Park dated June 6, 2008
National Park Service internal DOI 2753 2753-60 RE 174 at 55-62
conversion evaluation (Jul. 24,
2008)
DC\#270462
-74-

National Park Service DOI 2761 2761 RE 174 at 63

executed Finding of No
Significant Impact with one
attachment numbered
00101.01
Environmental Analysis DOI 2762 2762-77 RE 174 at 64-79
Summary Document
Executed amendment number DOI 2779 2779 RE 175 at 2
three for L&WCF grant 26-
00568
Land and Water Conservation DOI 2781 2781, RE 175 at 3-12
Fund Grants-in-Aid Manual – 2892-93,
Version 151 released Dec. 9, 3260-66
1991 (vol. 68)
MISCELLANEOUS JUDICIAL RECORD CITATIONS
Title of Document Record Entry

Number
Opinion of U.S. District Court for the Western District of Michigan, RE 138
Southern Division (Jan. 15, 2010)
First Amended Complaint RE 60
DC\#270462
-75-

Reply Brief Fed Appeal 10/29/2010

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Reply Brief Fed Appeal 10/29/2010

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Case: 10-1313 Document: 006110775295 Filed: 10/29/2010 Page: 1

Case No. 10-1313

IN THE UNITED STATES COURT OF APPEALS

SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR;

HARBOR SHORES COMMUNITY REDEVELOPMENT, INCORPORATED

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

REPLY BRIEF OF APPELLANT

Terry J. Lodge, Esq.

Counsel for Appellant

The Disputed Genesis of Harbor Shores. . . . . . . . . . . . . .1

‘Small Handle’ Permits Federalize the Project. . . . . . . . . .3

Facts Federalize the Project. . . . . . . . . . . . . . . . . . 7

Appellees’ ‘Hard Look’ Was Through a Blind Eye. . . . . . . . .10

Plaintiffs’ Unique Status Establishes Their Standing. . . . . .14

A. Prudential interest as environmental litigants. . . . 15

B. Environmental litigants may rely on Adams standing

There Is No Mootness; the Project Is Not Completed. . . . . . .18

There Is SCORP Noncompliance When Priority

‘Brief Discussions’ of ‘Lite’ Alternatives. . . . . . . . . . .24

A. Standing and waiver. . . . . . . . . . . . . . . . . . 24

B. ‘Hard look’ doctrine includes EA alternatives. . . . . 25

The Record Is Clear: JKP is Eligible

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . .30

Designation of All Relevant District Court Documents

Burbank Anti-Noise Group v. Goldschmidt,

Citizens Alert Regarding the Environment v. EPA, \

City of Newport Beach v. CAB, 665 F.2d 1280 (D.C.Cir. 1981). . 20

Columbia Basin Land Protection Assoc. v. Schlesinger,

County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . 20

DaimlerChrysler v. Cuno, 547 U.S. 332 (2006). . . . . . . . . .17

Department of Transportation v. Public Citizen,

Government of Canal Zone v Burjan,

Maryland Conservation Council v. Gilchrist,

Northwest Environmental Defense Center v. Gordon,

Ocean Advocates v. U.S. Army Corps of Eng'rs,

Papasan v. Allain, 478 U.S. 265, (1986). . . . . . . . . . . . 19

Robertson v. Methow Valley Citizens Council,

Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981). . . . . 20

Save Our Cumberland Mountains v. Kempthorne,

Sierra Club v. Morton, 405 U.S. 727 (1972). . . . . . . . . . .15

Southwest Williamson County Community Association

Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009). .15, 16

University of Texas v. Camenisch, 451 U.S. 390 (1981). . . . . 20

West v. Secretary of the Department of Transportation,

White Tanks Concerned Citizens, Inc. v. Strock,

5 U.S.C. § 706. . . . . . . . . . . . . . . . . . . . . . .21, 23

16 U.S.C. § 460l-8(f)(3). . . . . . . . . . . . . . . . . .17, 22

33 C.F.R. Part 325, Appendix B § 7. . . . . . . . . . . . . . .8

36 C.F.R. § 59.3(b). . . . . . . . . . . . . . . . . . . .18, 23

The Disputed Genesis of Harbor Shores

Appellees’ flawed conclusions are rooted in their fanciful,

a-factual narrative about the birth of Harbor Shores. According

to this account, the “forty-year” “decline” of Jean Klock Park

lowing civil unrest in Benton Harbor in 2003, proposed a golf

course subdivision using JKP. From thence sprung Harbor Shores

Community Redevelopment, Inc., spawned by three eleemosynary

concerns dedicated to civic involvement. Aided by a 90% write-

down in equity value of JKP land, millions in governmental grants

and loans, EPA Superfund dollars, TIFs, and a disinclination to

share the dirt on poisoned brownfields swapped for JKP’s prized

dune crests, HSCRI founded Harbor Shores.

The actual record is different. The actual record divulges

that a year before the 2003 civil unrest, in 2002, Whirlpool