George Wise v. Department of Transportation ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3016
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George Wise; Matthew Pekar; Uta Meyer; David Martindale; Robert Walker
lllllllllllllllllllllPlaintiffs - Appellants
v.
Department of Transportation, United States; Federal Highway Administration;
Arkansas Department of Transportation
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 26, 2019
Filed: December 6, 2019
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Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
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WOLLMAN, Circuit Judge.
This action arises from the widening of Interstate Highway 630 from six to
eight lanes from Baptist Hospital to University Avenue (approximately 2.5 miles)
within the City of Little Rock, Arkansas (the I-630 project). George Wise and others
filed suit against the U.S. Department of Transportation, the Federal Highway
Administration (FHWA), and the Arkansas Department of Transportation (Arkansas
DOT), alleging violations of the National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. § 4321 et seq., and NEPA’s implementing regulations, 40 C.F.R. §§ 1500-
1508. Wise also filed a motion for a temporary restraining order, seeking to enjoin
the defendants from working on the I-630 project. Wise appeals from the denial of
injunctive relief, arguing that the district court1 erred in determining that the I-630
project qualified for a categorical exclusion under 23 C.F.R. § 771.117(c)(22). We
affirm.
I. Background
NEPA requires federal agencies to prepare an environmental assessment or an
environmental impact statement for “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C). “NEPA itself does not
mandate particular results, but simply prescribes the necessary process.” Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Categories of actions
“which do not individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect” do not require an
environmental assessment or an environmental impact statement. 40 C.F.R. § 1508.4;
see Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1185-87 (8th Cir.
2001) (setting forth the regulatory background that allows agencies to “categorically
exclude certain types of federal activities from [NEPA’s] case-by-case environmental
assessment review”). FHWA has identified certain actions that do not involve
significant environmental impacts and thus qualify for categorical exclusion from
NEPA’s requirements. See 23 C.F.R. § 771.117. At issue here is the categorical
exclusion for projects that take place “entirely within the existing operational right-
of-way.” See id. § 771.117(c)(22).
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
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In October 2016, the defendants reported that the I-630 project qualified for a
categorical exclusion from NEPA’s environmental assessment or environmental
impact statement requirements. The categorical exclusion report outlined the
improvements proposed along I-630, including increasing the travel lanes from six
to eight and replacing all bridges within the project’s limits. The report noted that the
“[e]xisting right of way width varies, ranging from 220 to 400 feet” and explained
that the project did not require any “additional permanent right of way.” Arkansas
DOT already owned the land that would be used for the I-630 project.
Arkansas DOT issued a press release on July 13, 2018, stating that construction
on the I-630 project would begin on Monday, July 16. Wise filed suit and moved for
a temporary restraining order two days later. During a status conference held on
Friday, July 19, 2018, Wise characterized the demolition of the Hughes Street
Overpass as the harm that would be done “between now and Monday,” when the
hearing on Wise’s motion for a temporary restraining order would be held. Wise
asked the district court to disallow demolition of the overpass and immediately enjoin
the defendants from working on the I-630 project. The district court declined to do
so, and the Hughes Street Overpass was demolished that weekend.
Keli Wylie, the program administrator of Arkansas DOT’s Connecting
Arkansas Program, testified at the hearing on Wise’s motion. She explained that the
existing operational right-of-way included traffic lanes and clear zones, “which, in
layman’s terms, [are the areas] outside of the shoulder of the roadway[, and] . . . in
this case it’s 30 feet beyond the edge of the travel way.” Wylie testified that the
existing operational right-of-way was not limited to those areas, however, because it
also included “mitigation areas, drainage areas, interchange ramps, anything that we
maintain or use for transportation purposes.” She explained that the right-of-way for
the I-630 project was clear, but that Arkansas DOT would remove any other trees, if
necessary, to complete the project. According to Wylie, the existing operational
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right-of-way was “property line to property line”—i.e., the entire 220- to 400-foot
expanse owned by Arkansas DOT.
After reviewing the evidence, “particularly the testimony of Keli Wylie,” the
district court concluded that Wise had “failed to establish that any part of the I-630
project construction would go outside of the existing operational right-of-way” and
that it was therefore reasonable for the defendants to conclude that the project
qualified as a categorical exclusion under the regulation. D. Ct. Order of July 27,
2018, at 6. The district court thus denied injunctive relief because, among other
things, Wise had not shown he was likely to succeed on the merits of his claim that
the defendants violated NEPA.
II. Analysis
We reject the defendants’ argument that we lack jurisdiction over this
interlocutory appeal. We have jurisdiction under 28 U.S.C. § 1292(a)(1) because the
district court’s order had the practical effect of denying a preliminary injunction. See
Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (“We have previously made clear that
where an order has the ‘practical effect’ of granting or denying an injunction, it
should be treated as such for purposes of appellate jurisdiction.”); Sampson v.
Murray, 415 U.S. 61, 86-88 (1974) (treating an order labeled a temporary restraining
as a preliminary injunction because it had the same practical effect as a preliminary
injunction). We also reject Arkansas DOT’s argument that the appeal should be
dismissed as moot because the action that Wise sought to enjoin has been completed.
Arkansas DOT contends that Wise merely sought to enjoin the demolition of the
Hughes Street Overpass. The record and the district court’s order make clear,
however, that Wise sought to enjoin any further work on the I-630 project, and
Arkansas DOT’s argument to the contrary is misguided.
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“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); see also Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981) (en banc). We review the denial of a preliminary injunction for abuse of
discretion. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs, 826
F.3d 1030, 1035-36 (8th Cir. 2016). A district court abuses its discretion if it “rests
its conclusion on clearly erroneous factual findings or if its decision relies on
erroneous legal conclusions.” Id. at 1036 (quoting PCTV Gold, Inc. v. SpeedNet,
LLC, 508 F.3d 1137, 1142 (8th Cir. 2007)).
Wise argues that the district court erred in concluding that he would not
succeed on the merits of his NEPA claim. He contends that the I-630 project required
FHWA to complete an environmental assessment or an environmental impact
statement, because the project did not take place within the “existing operational
right-of-way” and thus did not satisfy the categorical exclusion set forth in 23 C.F.R.
§ 771.177(c)(22). According to Wise, the I-630 project’s additional travel lanes
would require expanded clear zones, which would necessarily be built in areas
outside the existing operational right-of-way.
Wise argues that the district court rested its decision on the erroneous legal
conclusion that “existing operational right-of-way” meant the entire right-of-way
owned by Arkansas DOT. He contends that the term is limited to lanes of travel,
shoulders, and clear zones. This limitation conflicts with the definition provided in
the regulation, which states that an “[e]xisting operational right-of-way refers to right-
of-way that has been disturbed for an existing transportation facility or is maintained
for a transportation purpose.” See 23 C.F.R. § 771.117(c)(22). The regulation
explains that an existing operational right-of-way includes features like mitigation
areas and landscaping. Id. (providing a non-exhaustive list of “features associated
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with the physical footprint of the transportation facility” and “areas maintained for
transportation purposes”).2
Wise claims that his reading of the regulation is supported by the explanatory
text accompanying the notice of the final rule, which states, “a project within the
operational right-of-way that requires the creation of new clear zones or extension of
clear zone areas beyond what already exists would not qualify” for categorical
exclusion. Environmental Impact & Related Procedures, 79 Fed. Reg. 2107-01, 2113
(Jan. 13, 2014). To interpret this text consistently with the regulation, we conclude
that the explanatory text does not apply when the new or extended clear zones are
built within the “existing operational right-of-way,” as defined by the regulation. We
2
During the relevant time period the regulation provided:
Existing operational right-of-way refers to right-of-way that has been
disturbed for an existing transportation facility or is maintained for a
transportation purpose. This area includes the features associated with
the physical footprint of the transportation facility (including the
roadway, bridges, interchanges, culverts, drainage, fixed guideways,
mitigation areas, etc.) and other areas maintained for transportation
purposes such as clear zone, traffic control signage, landscaping, any
rest areas with direct access to a controlled access highway, areas
maintained for safety and security of a transportation facility, parking
facilities with direct access to an existing transportation facility, transit
power substations, transit venting structures, and transit maintenance
facilities. Portions of the right-of-way that have not been disturbed or
that are not maintained for transportation purposes are not in the existing
operational right-of-way.
23 C.F.R. § 771.117(c)(22). The regulation now states, “Existing operational right-
of-way means all real property interests acquired for the construction, operation, or
mitigation of a project.” Id. (effective Nov. 28, 2018); see Environmental Impacts &
Related Procedures, 83 Fed. Reg. 54,480, 54,487 (Oct. 29, 2018) (revising the
definition of “existing operational right-of-way”).
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thus conclude that the district court properly rejected Wise’s proposed limitation on
the term’s definition.
Applying the plain language of the regulation, the district court concluded that
Wise did not present evidence to establish that the area required for the I-630 project
required expansion beyond the existing operational right-of-way. Wise has offered
calculations regarding the additional area required for the project’s new traffic lanes
and expanded clear zones, and he contends that “basic mathematics” render not
credible Wiley’s testimony that the I-630 project will take place within the existing
operational right-of-way. Appellant’s Br. 13. But Wise again incorrectly limits the
term’s definition to travel lanes, shoulders, and clear zones, and he has not shown that
the additional area previously had not been disturbed or maintained for transportation
purposes. We thus conclude that Wise has failed to show that the district court relied
on any clearly erroneous factual findings in denying Wise’s motion for injunctive
relief.
Finally, Wise argues that the I-630 project does not qualify for a categorical
exclusion because it will have significant noise and air-quality impact and it involves
unusual circumstances. See 23 C.F.R. § 771.117(a)-(b). He has not shown that
FHWA’s determination to the contrary is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, however. See Friends of Richards-Gebaur
Airport, 251 F.3d at 1187 (“We review an agency’s determination that an action falls
within a categorical exclusion under the arbitrary and capricious standard.”).
Having failed to show that his claim was likely to succeed on the merits, Wise
has not established that the district court abused its discretion in denying his request
for injunctive relief. The order denying Wise’s request for a preliminary injunction
is affirmed.
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