United States District Court, D. Colorado
HIGHLANDS RANCH NEIGHBORHOOD COALITION, a Colorado non-profit corporation, Plaintiff,
v.
JOHN M. CATER, in his official capacity as the Division Administrator, Colorado Division of the Federal Highway Administration, THE FEDERAL HIGHWAY ADMINISTRATION, SHAILIN P. BHATT, in his official capacity as Executive Director of the Colorado Department of Transportation, and THE COLORADO DEPARTMENT OF TRANSPORTATION, Defendants.
ORDER AFTER SECOND REMAND
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
Plaintiff
brought this lawsuit seeking declaratory and injunctive
relief based on allegations that Defendants violated the
requirements of the National Environmental Policy Act of 1969
(“NEPA”). Plaintiff requested the Court to void
the Finding of No Significant Impact (“FONSI”) on
the C-470 Project and enjoin Defendants from conducting any
further work. As relevant here, one issue was the methodology
Defendants used to validate the Traffic Noise Model
(“TNM”). Defendants used short-term noise
measurements to validate, but Plaintiff argued that long-term
measurements were required. Defendants followed Section
3.2.2. of the “Colorado Department of Transportation
Noise Analysis and Abatement Guidelines” dated January
15, 2015 (the “2015 Guidelines”) to validate the
TNM.
In its
Order of November 8, 2017, the Court found Defendants did not
comply with NEPA because they failed to show their decision
to take and use short-term noise measurements had a rational
basis and that they took into consideration the relevant
factors in deciding which validation methodology to use.
Accordingly, the Court remanded the matter to Defendants for
further consideration.
Thereafter,
Plaintiff filed a motion for reconsideration while Defendants
filed a Joint Status Report (“Report”) (ECF No.
61) with a Re-evaluation that supplemented the administrative
record for the C-470 Project. After reviewing the Report and
Re-evaluation, the Court found Defendants failed to show they
complied with their remand obligations; determined it should
retain jurisdiction over Defendants' remand obligations;
and vacated the final judgment. The Court remanded the matter
back again for Defendants to comply with their remand
obligations in the first remand order (ECF No. 50) and to
address how Defendants could have relied on the 2015
Guidelines for validation actions taken in 2013 and 2014.
See Sierra Club-Black Hills Grp. v. U.S. Forest
Serv., 259 F.3d 1281, 1289 (10th Cir. 2001) (“When
the agency record is inadequate, ‘the proper course,
except in rare circumstances, is to remand to the agency for
additional investigation or explanation.'” (quoting
Florida Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985))). Defendants' Joint Report (ECF No. 64)
followed, to which Plaintiff has filed no challenge or other
response.
The
Court has considered the Joint Report (with supporting
declarations from those involved with conducting the noise
analysis at issue), the court record, and relevant parts of
the administrative record and, upon such consideration, finds
Defendants have discharged their remand obligations, i.e.,
substantiated their prior decisions and actions in compliance
with NEPA. Based on the record now before the Court, it finds
Defendants have provided a roadmap of their decision-making
process, offered a rationale for their decision to use
short-term measurements, and showed they considered relevant
factors in deciding which validation method to use. In
summary, Defendants have sufficiently shown:
• They considered the relevant factors, policies, and
guidelines, including:
o The 2013 Guidelines, which were the guidelines in effect at
the time the noise measurements were taken, including the
2006 User's Guide (also referred to as “Appendix
C”);
o The 2011 Federal Highway Administration “Highway
Traffic Noise: Analysis and Abatement Guidance”;
o The 2015 Guidelines, which updated the 2013 Guidelines, as
those were in effect at the time the July 2015 Traffic Noise
Technical Report was completed;[1] and
o That the 2015 and 2013 Guidelines were materially the same,
thus there were no required updates to the noise analyses for
the C-470 Project.
•
They offered a rational basis for deciding to take and use
only short-term noise measurements, including:
o Why the methodology in the 2006 User's Guide was not
used;
o Why long-term noise measurements were ...