Case 2:17-cv FL Document 120 Filed 03/14/18 Page 1 of 51

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION NO. 2:17-CV FL SAVE OUR SOUND OBX, INC., THOMAS ASCHMONEIT, RICHARD AYELLA, DAVID HADLEY, MARK HAINES, JER MEHTA, and GLENN STEVENS, v. Plaintiffs, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, JAMES H. TROGDON, III, in his official capacity as Secretary of the North Carolina Department of Transportation, FEDERAL HIGHWAY ADMINISTRATION, and JOHN F. SULLIVAN, III, in his official capacity as Division Administrator for the Federal Highway Administration, PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS AND DEFENDANT-INTERVENORS CROSS-MOTIONS FOR SUMMARY JUDGMENT Defendants, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE REFUGE ASSOCIATION, Defendant-Intervenors. Case 2:17-cv FL Document 120 Filed 03/14/18 Page 1 of 51

2 TABLE OF CONTENTS Page I. The Settlement Agreement in the Bonner Bridge Suit Unlawfully Biased the NEPA Analysis for Phase IIb....2 A. The Plain Language of the Settlement Agreement and the Merger Team Process Predetermined the Selection of the Jug-Handle Bridge....2 B. The Settlement Agreement Biased Defendants Process and Constituted an Irreversible Commitment....5 II. Defendants Failed to Adequately Analyze the Impacts of Hauling Construction Materials A. The Record Does Not Include Adequate Analysis of the Impacts of Hauling Construction Materials for Phase IIb B. Section 4(f) and Section 106 Require Analysis of Impacts from Hauling Materials C. Defendants Failed to Analyze Any Impacts from Construction Traffic III. Defendants Failed to Adequately Evaluate the Project s Impacts on the Refuge s Qualities as a Wildlife Refuge IV. Defendants Did Not Adequately Analyze the Project s Socioeconomic Impacts V. Defendants Violated NEPA by Failing to Prepare a Supplemental EIS in Light of Significant New Information and Substantial Changes in the Proposed Action A. A Supplemental EIS Is Required to Effectively Evaluate Beach Nourishment as an Alternative in Light of Significant New Information B. Substantial Changes in the Proposed Action Require the Preparation of a Supplemental EIS...39 VI. The Jug-Handle Bridge Is Not the Least Overall Harm Alternative VII. The Cumulative Errors of Defendants Analysis Render the Record of Decision Unlawful CONCLUSION...45 i Case 2:17-cv FL Document 120 Filed 03/14/18 Page 2 of 51

3 TABLE OF AUTHORITIES Page(s) Cases Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1976)...27 Defs. of Wildlife v. N.C. Dep t of Transp., 762 F.3d 374 (4th Cir. 2014)...1, 4, 6, 20, 21, 22, 29, 41 Friends of Back Bay v. U.S. Army Corps of Eng rs, 681 F.3d 581 (4th Cir. 2012)...30, 37 Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir. 1996)...11, 29 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146 (9th Cir. 1998)...30 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989)...34, 37 Mullin v. Skinner, 756 F. Supp. 904 (E.D.N.C. 1990)...27 N.C. Wildlife Fed n v. N.C. Dep t of Transp., 677 F.3d 596 (4th Cir. 2012)...34 Nat l Audubon Soc y v. Dep t of the Navy, 422 F.3d 174 (4th Cir. 2005)...9, 13, 16, 18, 19, 30, 44, 45 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005)...18, 28 Piedmont Envtl. Council v. U.S. Dep t of Transp., 159 F. Supp. 2d 260 (W.D. Va. 2001)...15, 26, 37 Portland Audubon Soc y v. Babbitt, 998 F.2d 705 (9th Cir. 1993)...30 Pub. Emps. for Envtl. Responsibility v. United States Fish & Wildlife Serv., 177 F. Supp. 3d 146 (D.D.C. 2016)...38 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)...12, 13, 15, 16, 20, 23, 38, 39, 44, 45 Route 9 Opp. Legal Fund v. Mineta, 75 Fed. App x. 152 (4th Cir. 2003)...17 ii Case 2:17-cv FL Document 120 Filed 03/14/18 Page 3 of 51

4 TABLE OF AUTHORITIES (continued) Page(s) Wash. Cty. v. U.S. Dep t of Navy, 317 F. Supp. 2d 626 (E.D.N.C. 2004)...5, 11 Wyoming v. U.S. Dep t of Agric., 661 F.3d 1209 (10th Cir. 2011)...8 Statutes 49 U.S.C U.S.C. 303(c) U.S.C Regulations 23 C.F.R C.F.R C.F.R (c)...23, C.F.R (c)(1)...4, 21, 23, 24, 25, C.F.R (c)(1)(i)...24, C.F.R (c)(1)(ii)...21, C.F.R (c)(1)(vii)...34, C.F.R C.F.R (b) C.F.R (f)...5, 7 40 C.F.R (c)(1) C.F.R (c)(1)(i)...39, 41, C.F.R (c)(1)(i) (ii) C.F.R (c)(1)(ii) C.F.R iii Case 2:17-cv FL Document 120 Filed 03/14/18 Page 4 of 51

5 TABLE OF AUTHORITIES (continued) Page(s) 40 C.F.R (a) C.F.R (a)(2)...5, 7 40 C.F.R , 26, C.F.R , 28 Other Authorities Mid-Currituck Final Environmental Impact Statement, available at midcurrituck_feis_ pdf...19 iv Case 2:17-cv FL Document 120 Filed 03/14/18 Page 5 of 51

6 Each of the three opposition briefs from Federal Defendants (hereinafter referred to as FHWA), State Defendants (hereinafter referred to as NCDOT), and Defendant-Intervenors claims that the settlement agreement regarding the Bonner Bridge lawsuit ( Settlement Agreement ) did not unlawfully bias the Phase IIb decision-making process and that Defendants adequately analyzed the impacts of the Phase IIb alternatives. None of their arguments has merit. First, the Settlement Agreement predetermined the selection of the Jug-Handle Bridge in violation of NEPA. The Court need not to look to the subjective intent of agency personnel, or determine whether Defendants acted in bad faith. Rather, the plain language of the Settlement Agreement, read together with the Merger Team charter and procedures, leads to the inescapable conclusion that Defendants bound themselves not to choose any alternative but the Jug-Handle Bridge, in exchange for Defendant-Intervenors agreement to drop their suit and allow the Bonner Bridge replacement to get underway. Once the Settlement Agreement was signed, no other outcome was possible, and Defendants behaved accordingly by treating the Jug-Handle Bridge as a foregone conclusion. Second, this illegal commitment tainted the NEPA process, and directly led to a cascade of violations of Defendants duty to take a hard look at the environmental impacts of the proposed action and to consider reasonable alternatives. In the latest chapter of this project s tortured decisionmaking history, Defs. of Wildlife v. N.C. Dep t of Transp., 762 F.3d 374, 381 (4th Cir. 2014), Defendants violated NEPA and Section 4(f) by failing to adequately analyze (i) the impacts of hauling construction materials to the construction site; (ii) the project s impacts on the Pea Island National Wildlife Refuge s qualities as a wildlife refuge; and (iii) the socioeconomic impacts on the community of Rodanthe. Defendants also violated NEPA by 1 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 6 of 51

7 failing to issue a Supplemental Environmental Impact Statement, or in the alternative by failing to reevaluate beach nourishment in an Environmental Assessment, in light of major developments regarding sand sources and erosion projections in the eight years following the issuance of the FEIS, and in light of material changes to the project itself. Plaintiffs again request that this Court hold that the Record of Decision violated federal law, set it aside, and remand the case back to Defendants with an order to comply with NEPA and Section 4(f) by preparing a Supplemental Environmental Impact Statement ( Supplemental EIS ) that fully analyzes the various alternatives to address the S Curves area of NC-12. I. The Settlement Agreement in the Bonner Bridge Suit Unlawfully Biased the NEPA Analysis for Phase IIb. Defendants and Defendant-Intervenors argue that the Settlement Agreement did not unlawfully bias the Phase IIb decision-making process because Plaintiffs cannot prove speculative conspiracy theories based on the subjective intent of agency personnel. See ECF No. 109 at 27; ECF No. 113 at But their argument falls flat, because it purposely distorts Plaintiffs position. A plain reading of the Settlement Agreement shows that it contractually precluded Defendants from selecting any Phase IIb alternative other than the Jug-Handle Bridge. What Defendants were thinking i.e., their subjective intent is immaterial, because the Settlement Agreement and Defendants own Merger Team rules predetermined the Jug-Handle Bridge selection. A. The Plain Language of the Settlement Agreement and the Merger Team Process Predetermined the Selection of the Jug-Handle Bridge. Because none of the opposition briefs meaningfully engages with the terms of the Settlement Agreement itself, it bears re-emphasizing what exactly the Settlement Agreement required of Defendants and other agencies: 2 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 7 of 51

8 1. Two of the state lead agencies bound themselves to support the Jug-Handle Bridge as the LEDPA. First, NCDOT agreed to identify Phase IIb Bridge on New Location [i.e., the Jug-Handle Bridge] as its preferred alternative and seek Merger Team Concurrence Point 3 i.e., concurrence to designate the Jug-Handle Bridge as the LEDPA (short for least environmentally damaging practicable alternative ). RD (c). Second, NCDENR-DCM agreed to provide a written statement of [its] support and preference for [the Jug-Handle Bridge] and to use best efforts to help NCDOT attempt to secure Merger Team concurrence to designate the Jug-Handle Bridge as the LEDPA. RD (e). 2. Because the Merger Team acts only by consensus, RD , AR , NCDOT s and NCDENR-DCM s commitments precluded the Merger Team from designating as the LEDPA any alternative other than the Jug-Handle Bridge. The above-cited provisions plainly precluded both NCDOT and NCDENR-DCM from agreeing to any LEDPA alternative other than the Jug-Handle Bridge. This is important, because both NCDOT and NCDENR-DCM were members of the Merger Team, AR 57711, which was tasked with reaching concurrence on the LEDPA, RD By preventing two Merger Team members from agreeing on a LEDPA other than the Jug-Handle Bridge, the Settlement Agreement precluded the Merger Team from reaching a consensus on any LEDPA other than the Jug-Handle Bridge. Even if every other member of the Merger Team wanted to designate the Easement Bridge or beach nourishment as the LEDPA, there could be no consensus on such alternative given the terms of the Settlement Agreement. 3. Three of the four members of the Merger Team Dispute Resolution Board signed the Settlement Agreement, further ensuring the Jug-Handle Bridge would be selected as the LEDPA. In the absence of consensus, the Merger Team process provides that a concurrence 3 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 8 of 51

9 point (such as the LEDPA designation) is referred to the Merger Team s Dispute Resolution Board, RD ; see also AR , which has the primary decision-making authority with regard to NEPA and Section 404 permitting, RD Thanks to the Settlement Agreement, the Dispute Resolution Board was likewise precluded from identifying as the LEDPA any alternative other than the Jug-Handle Bridge. The Board consists of representatives of only four agencies NCDOT, NCDENR, FHWA, and the U.S. Army Corps of Engineers. RD As noted above, two of these agencies NCDOT and NCDENR-DCM were contractually precluded from agreeing to identify as the LEDPA any alternative but the Jug- Handle Bridge. Thus, like the Merger Team as a whole, there was no way that the Dispute Resolution Board could ever decide on a LEDPA other than the Jug-Handle Bridge. See AR ( Concurrence by all Review Board [i.e., Dispute Resolution Board] members shall constitute a final decision. ) (emphasis added). To make the conflict of interest even worse, a third member of the Dispute Resolution Board, FHWA, was a signatory to the Settlement Agreement and stood to benefit from dismissal of the Bonner Bridge suit only after the Jug- Handle Bridge was designated as the LEDPA. See RD (h). 4. Once the Jug-Handle Bridge was selected as the LEDPA, federal law required that it would be selected as the final alternative. Because this project involves Section 4(f) property, Defendants were required to select the alternative that causes the least overall harm. 23 C.F.R (c)(1). 1 Selecting a final alternative other than the alternative that was designated as the LEDPA (again, least environmentally damaging practicable alternative ) would plainly run afoul of this requirement. Thus, only the LEDPA could be selected as the 1 Unlike NEPA, the requirements of which are strictly procedural, Section 4(f) imposes substantive restraints on an agency s action. Defs. of Wildlife, 762 F.3d at Case 2:17-cv FL Document 120 Filed 03/14/18 Page 9 of 51

10 final alternative. See RD (public NCDOT announcement that the LEDPA designation is equivalent to an agreement on which alternative will be built ). And because the Settlement Agreement allowed only the Jug-Handle Bridge to be designated as the LEDPA, the Settlement Agreement allowed only the Jug-Handle Bridge to be selected as the final alternative. This is the epitome of predetermination. B. The Settlement Agreement Biased Defendants Process and Constituted an Irreversible Commitment. Instead of addressing Plaintiffs core argument, which is based on an objective reading of the Settlement Agreement s binding terms, Defendants and Defendant-Intervenors rely on diversionary arguments, none of which has merit. First, the opposition briefs invoke case law from the Ninth and Tenth Circuits providing that predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action... before the agency has completed that environmental analysis. ECF No. 109 at (quotation omitted); see also ECF No. 113 at 25; ECF No. 117 at As a threshold matter, case law from this Court provides that agencies violate NEPA unless they act as unbiased and conflict free decision maker[s]. Wash. Cty. v. U.S. Dep t of Navy, 317 F. Supp. 2d 626, 631 (E.D.N.C. 2004). This language accords with the text of CEQ regulations, which provide that [u]ntil an agency issues a record of decision... no action concerning the proposal shall be taken which would... [l]imit the choice of reasonable alternatives. 40 C.F.R (a)(2); id. at (f) (agencies may not commit resources prejudicing selection of alternatives before making a final decision ). There can be little doubt that the Settlement Agreement limited the choice of reasonable alternatives by eliminating all but one alternative. But for instant purposes, it does not matter whether the Court applies this Court s unbiased and conflict free standard, or other circuits standard of irreversible and irretrievable 5 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 10 of 51

11 commitments. The Settlement Agreement was unlawful under either standard, as it did constitute an irreversible and irretrievable commitment. Upon executing the Settlement Agreement, Defendants eliminated any possibility of selecting an alternative other than the Jug- Handle Bridge. Thus, the Settlement Agreement irreversibly and irretrievably foreclosed the other three alternatives that were ostensibly still on the table Easement Bridge, beach nourishment, and an in-easement bridge combined with beach nourishment. 2 RD The only other option allowed by the Settlement Agreement was to do absolutely nothing. Of course, no party has ever contended that this is a viable approach, as it conflicts with the purpose and need of the project. See RD (describing purpose and need of project); RD (explaining that the no-build alternative would not be feasible and prudent because it would not meet the third project purpose ); Defs. of Wildlife, 762 F.3d at 392 ( Defendants have clearly committed themselves to doing something between the southern terminus of the [Bonner] bridge and Rodanthe they simply have not (at least publicly) chosen what. ) (emphasis in original). Second, Defendants argue that the Settlement Agreement was lawful because Defendants could have identified another alternative based on input and comments received after the execution of the Settlement Agreement. ECF No. 117 at 28. This claim is based on the following prefatory clause in the Settlement Agreement: If the Merger Team concurs that the Phase IIb Bridge on New Location Alternative [Jug-Handle Bridge] is the LEDPA for Phase IIb.... RD (c)(i); see also ECF No. 109 at 22 (NCDOT claiming that this prefatory clause constituted a significant contingency that bound no one ). But, as explained above, the 2 At the time of the Settlement Agreement, the Easement Bridge and the Jug-Handle Bridge were the only remaining detailed-study alternatives, although beach nourishment and nourishment combined with an in-easement bridge were listed as alternatives (without detailed study) in the subsequent 2016 EA. RD Case 2:17-cv FL Document 120 Filed 03/14/18 Page 11 of 51

12 Settlement Agreement, when construed in light of the Merger Team structure, made it impossible to identify as the LEDPA any alternative but the Jug-Handle Bridge. Thus, this purported escape clause provided no path to redemption. Third, Defendants and Defendant-Intervenors argue that the Settlement Agreement did not fatally bias the Phase IIb decision, because Defendants prepared a Phase IIb EA and solicited public comments prior to entering into the Settlement Agreement. But it is irrelevant that the NEPA process had already begun prior to the execution of the Settlement Agreement. What matters is that the NEPA process had not yet been concluded. 40 C.F.R (f) ( Agencies shall not commit resources prejudicing selection of alternatives before making a final decision. ) (emphasis added); see also id. at (a)(2) ( Until an agency issues a record of decision... no action concerning the proposal shall be taken which would... [l]imit the choice of reasonable alternatives. ). The Settlement Agreement was executed over a year before the Revised Phase IIb EA was issued and over a year-and-a-half before the Phase IIb Record of Decision was issued. Thus, the Settlement Agreement, which limited the choice of reasonable alternatives, was unlawfully executed before Defendants had made a final decision on Phase IIb. Fourth, the opposition briefs argue that federal law tasks the Corps with issuing permits for the LEDPA pursuant to Section 404 of the Clean Water Act, and that because Plaintiffs are not asserting any claims under the Clean Water Act, any discussion of how the LEDPA was selected is largely outside the scope of this Court s review. ECF No. 113 at 26; see also ECF No. 109 at This argument confuses the power to designate the LEDPA, which is critical to this case, with the power to issue permits, which is not relevant to this case. The Merger Team process used in this project, which no party argues violated federal law, provided that the LEDPA designation would be made by the Merger Team as a whole, not by the Corps alone. 7 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 12 of 51

13 The Corps ceded any authority it may otherwise have had to unilaterally determine the LEDPA when it entered into the Merger Team Memorandum of Understanding. See RD (providing that Merger Team shall reach concurrence on defining points in the NEPA project development and Section 404 permitting process, including the designation of the LEDPA); RD ( These procedures will generally apply to all new locations and all projects that require an individual permit under Section 404 of the Clean Water Act ); RD ( By signing this document, these agencies agree to participate and abide by the procedures described in the Merger 01 Process. ). The fact that the Corps retained sole authority to issue permits under Section 404 of the Clean Water Act is not relevant to the instant dispute, as Plaintiffs are not challenging those permits here. What is relevant is that the Corps shared the authority to designate the LEDPA with conflicted agencies. And as explained above, the Settlement Agreement precluded all but one alternative from being the LEDPA, which consequently precluded all but one alternative from being selected as the final alternative. Fifth, each of the opposition briefs emphasizes that federal law does not prohibit agencies from identifying a preferred alternative prior to making a final decision. Plaintiffs do not dispute this. See 40 C.F.R ; Wyoming v. U.S. Dep t of Agric., 661 F.3d 1209, 1263 (10th Cir. 2011) ( [T]he CEQ regulations expressly indicate than an agency can have a preferred alternative in mind when it conducts a NEPA analysis. ) (internal quotation marks omitted). But this is irrelevant, as Plaintiffs do not contend that the Settlement Agreement was unlawful solely in its requirement that NCDOT and FHWA identify the Jug-Handle Bridge as the preferred alternative [i]f the Merger Team concurs that the Phase IIb Bridge on New Location Alternative [Jug-Handle Bridge] is the LEDPA for Phase IIb. RD (c)(i). Rather, the Settlement 8 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 13 of 51

14 Agreement was unlawful in that it infused structural bias into the alternatives analysis and precluded the final selection of any alternative but the Jug-Handle Bridge. Sixth, NCDOT and Defendant-Intervenors misguidedly rely on National Audubon Society v. Department of the Navy, which provides that courts should not seek to derive the alleged subjective intent of agency personnel divined through selective quotations from trails. 422 F.3d 174, 199 (4th Cir. 2005). Resorting to bombastic rhetoric, Defendant- Intervenors assert that Plaintiffs have [i]gnor[ed] this clear directive from the Fourth Circuit and attempt[ed] to conjure up a complicated conspiracy theory of predetermination based on the subjective intent of agency personnel. ECF No. 113 at 23; see also id. at 24 (asserting that Plaintiffs persist in trafficking in conspiracy ); ECF No. 109 at 27 (NCDOT claiming that Plaintiffs argument is rooted in conspiratorial speculations ); id. at 23 (claiming that Plaintiffs argument is supported by the innocuous comments of an agency employee alone ). This argument fundamentally misrepresents the basis of Plaintiffs predetermination claim. Although Plaintiffs have cited to a number of communications by agency personnel in order to provide context to the relevant events, the linchpin of Plaintiffs argument is found in the objective terms of the Settlement Agreement and the Merger Team s structural documents. Thus, Plaintiffs are not asking that the Court delve into intrigue and attempt to divine the alleged subjective intent of agency personnel... through selective quotations from trails. ECF No. 113 at 27 (quoting Nat l Audubon Soc y, 422 F.3d at 199). Rather, Plaintiffs have simply pointed to the terms of a binding contract and explained that, when read in conjunction with the Merger Team s structural documents, it irreversibly eliminates every alternative but the Jug-Handle Bridge. No 9 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 14 of 51

15 conspiracy theorizing is necessary; objective reading will suffice. Tellingly, the opposition has chosen to engage in misdirection rather than address this argument head-on. 3 Seventh, for similar reasons, Defendants and Defendant-Intervenors miss the mark with their argument that Plaintiffs predetermination argument is foreclosed by this Court s prior order denying Plaintiffs motion to supplement the administrative record. See ECF No. 109 at 27; ECF No. 113 at 24. With that motion, Plaintiffs sought to supplement the record with communications between Defendant-Intervenors and FHWA regarding the Settlement Agreement negotiations the purpose being to add further context to the Settlement Agreement and to see if Defendants made any other binding commitments that were not reflected in the record. ECF No. 61. In order to prevail on that motion, Plaintiffs were required to establish that FHWA considered other documents that were not already included in the administrative record. See ECF No. 75 at 3. The Court denied the motion after concluding that Plaintiffs arguments that FHWA considered other documents rest upon speculation. Id. at 4. But this ruling has no bearing on the instant motion, as Plaintiffs are not requesting summary judgment on the issue of whether FHWA considered extra-record documents when issuing the Record of Decision. Rather, Plaintiffs are requesting summary judgment on the issue of whether the Settlement Agreement unlawfully biased the Phase IIb decision-making process. The Settlement Agreement and Merger Team documents which are indisputably part of the record are alone sufficient to establish that it did. Although communications of agency personnel are informative, Plaintiffs claim does not depend on such evidence. 3 To its credit, FHWA appears to concede that the subjective intent of agency personnel is not the basis of Plaintiffs claim. See ECF No. 117 at 23 ( In support [of their predetermination argument], Plaintiffs rely exclusively on the Settlement Agreement reached in June ). But FHWA fails to acknowledge that Plaintiffs claim also rests on the Merger Team s structure, and FHWA does not address the interplay between this structure and the terms of the Settlement Agreement. 10 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 15 of 51

16 Eighth, in yet another strawman argument, Defendants cite to Plaintiff SOS OBX s comments during the administrative process in a misleading effort to portray Plaintiffs themselves as having previously agreed that the Settlement Agreement did not predetermine the Phase IIb outcome. ECF No. 109 at 21; ECF No. 117 at 28 n.4. In the comment in question, SOS OBX stated: Although NCDOT and FHWA are not contractually bound to choose the Bridge on New Location [Jug-Handle Bridge] as the final Selected Alternative, the Settlement Agreement clearly required the agencies to take steps that have fundamentally shifted the momentum of the alternative selection process in favor of the Bridge on New Location. RD (emphasis in original). These comments were submitted on July 15, 2016 before the Record of Decision was issued, before this suit was filed, and before Plaintiffs gained access to the administrative record. To be sure, Plaintiffs always have and continue to take the position that the Settlement Agreement unlawfully biased the NEPA process, regardless of whether any binding commitments were made. See Wash. Cty., 317 F. Supp. 2d at 631. But upon reviewing the administrative record, particularly the documents spelling out the structure of the Merger Team and Dispute Resolution Board, Plaintiffs discovered that the Settlement Agreement did indeed contractually preclude Defendants from selecting any alternative other than the Jug- Handle Bridge. Finally, to the extent Defendants and Defendant-Intervenors argue that Defendants would have selected the Jug-Handle Bridge even in the absence of the Settlement Agreement, such claims are speculative and irrelevant to the issue at hand whether Defendants actually complied with NEPA s procedural requirements. See Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996) ( [I]t is well settled that NEPA does not mandate that agencies reach particular substantive results. Instead, it simply sets forth procedures that agencies must 11 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 16 of 51

17 follow. ) (emphasis added). It is the height of irony that, after falsely portraying Plaintiffs as relying solely on speculation, the opposition invites the Court to speculate as to how the Phase IIb process would have played out in the absence of the Settlement Agreement. As discussed below, following the Settlement Agreement s infusion of fatal bias into the Phase IIb decision-making process, Defendants sidestepped necessary analysis of the project s construction, environmental, and socioeconomic impacts, as well as ignoring new information that should have resulted in a supplemental environmental analysis of other alternatives. II. Defendants Failed to Adequately Analyze the Impacts of Hauling Construction Materials. In its initial memorandum in support of the instant motion, Plaintiffs cited to construction diagrams in the record, RD 26 27, showing plans to use haul roads cutting through the Rodanthe Historic District and an adjacent wetlands area. Because the record contains no analysis of the impacts of using these haul roads, Plaintiffs asserted that Defendants had failed to take any look much less the requisite hard look at such impacts. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Twenty-nine days after Plaintiffs filed their motion for summary judgment, NCDOT notified Plaintiffs that it was scrapping the plans to use the haul roads depicted in the diagrams. Ex. A (Feb. 8, from John Batherson). NCDOT stated that this decision was based on the impracticality of the plan as a result of the logistics for barge transport of bridge materials due to the shallow water depths and necessity of dredging in Pamlico Sound near and at the ferry ramp basin, and other factors. Id.; ECF No at 3. Plaintiffs promptly asked NCDOT what the current plans are for hauling materials to the construction site. Ex. B (Feb. 8, from Bryson Smith to John Batherson). Thirtyfour more days have passed, and Plaintiffs have still received no answer to this inquiry. 12 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 17 of 51

18 Defendants and Defendant-Intervenors now argue that Plaintiffs argument about hauling impacts is moot given the abandonment of plans to use the specific routes depicted in the diagrams. Not so. As Plaintiffs explained in their initial memorandum: Because Defendants had an obligation to take a hard look at the impacts of construction regardless of the precise haul routes that were ultimately selected for hauling construction materials, it is immaterial when the contractor s diagrams were created, or whether they even represent the actual hauling plans that will be followed in this project. The fact remains that the record is impermissibly devoid of any analysis of the impacts of hauling, which will inevitably take place. ECF No. 96 at (emphasis added). Plaintiffs claim is not confined only to the haul roads depicted in the diagrams included in the record at RD Regardless of the haul route ultimately chosen (which Defendants have, to this day, still not revealed), that route was not disclosed and analyzed prior to the issuance of the Record of Decision. This is a clear violation of NEPA. See 40 C.F.R (b) ( NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. ) (emphasis added). No party disputes that the instant project has significant impacts that require an Environmental Impact Statement. Rather, the instant dispute hinges on whether Defendants took the requisite hard look at the project s impacts, Robertson, 490 U.S. at 350, and whether Phase IIb has any new, significant impacts that were not analyzed in the 2008 FEIS. RD The hallmarks of a hard look are thorough investigation into environmental impacts and forthright acknowledgment of potential environmental harms. Nat l Audubon Soc y, 422 F.3d 4 In its opposition brief, Defendant-Intervenors contend that the 2008 FEIS is not before this court for review. The Court need only, and indeed can only, review the adequacy of the 2016 EA. ECF No. 113 at 39 (emphasis in original). This contention is flat-out wrong, as this Court has already held. See ECF No. 66 at 24 (denying Defendant-Intervenors motion to dismiss complaint to the extent it requires a review of the 2008 FEIS, explaining that Plaintiffs are bringing a challenge to the Phase IIb ROD which relies on the analysis conducted in the 2008 FEIS instead of a direct challenge to the 2008 FEIS itself). 13 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 18 of 51

19 at 187. Because Defendants have failed to even disclose which haul routes will be used for Phase IIb let alone analyze the potential impacts of such hauling they have failed to take the requisite hard look at potential environmental harms. Indeed, according to FHWA, the haul route diagrams cited in Plaintiffs initial memorandum, RD 26-27, were not even created until after the Record of Decision was issued. ECF No. 88 at 1. This underscores just how little forethought went into Defendants consideration of (i) how to get construction materials to and from the work site, and (ii) how that transport process might impact the environment. A. The Record Does Not Include Adequate Analysis of the Impacts of Hauling Construction Materials for Phase IIb. Defendants cite to a number of pages in the record that they claim establish that they adequately considered the impacts of hauling construction materials. But these citations deal almost exclusively with impacts of construction activities at the project site, as opposed to the impacts of hauling materials to the project site, and come nowhere close to constituting the hard look required by NEPA. For example, FHWA cites to a section in the Revised Phase IIb EA called Construction Noise. RD But this section deals with noise from activities taking place at the site of construction. The only reference to hauling states that measures to control noise include haul road locations. RD Yet no locations are specified and no further elaboration is provided as to how hauling noise will be controlled. The Phase IIb EA also states that predominant construction activities include hauling and a number of other on-site construction activities, and that [t]emporary and localized construction noise impacts likely will occur as a result of these activities. RD ; RD But the analysis of these noise impacts is constrained to the areas surrounding the project site. There is no analysis whatsoever of how noise or other impacts of hauling will affect the areas through which the materials are hauled. 14 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 19 of 51

20 Finally, Defendants cite to project commitments and the Phase IIb Request for Proposal ( RFP ) in an effort to show that they adequately disclosed and analyzed the impacts of hauling. See ECF No. 109 at 29 32; ECF No. 117 at 31. But the project commitments merely provide that haul roads may not be located in certain areas. They provide no analysis of the impacts to the locations that are used for hauling. Likewise, the RFP provisions merely set forth certain restrictions, without analyzing the impacts on areas through which hauling takes place. Thus, unlike an EIS or EA, the RFP is not a source of impacts analysis. Additionally, unlike an EIS or EA, the RFP was not circulated for public comment, nor is not incorporated by reference into the 2008 FEIS, the 2013 Phase IIb EA, or the 2016 Revised Phase IIb EA. Thus, even if the RFP did contain wholesome analysis of hauling impacts which it does not it cannot constitute the basis by which Defendants meet their obligations to provide for broad dissemination of relevant environmental information. Robertson, 490 U.S. at 350. In sum, the analysis cited by Defendants amounts to nothing more than a vague acknowledgement that hauling may have some adverse impacts somewhere. But Defendants cannot satisfy their duty to take a hard look through an exceedingly brief discussion that analyzes hauling impacts in a conclusory and abbreviated manner. Piedmont Envtl. Council v. U.S. Dep't of Transp., 159 F. Supp. 2d 260, 279 (W.D. Va. 2001) (holding that FHWA was required to prepare a Supplemental EIS where it failed, in both an FEIS and a subsequent EA, to take the requisite hard look at the impacts of a proposed highway bypass project). In this case, none of the NEPA documents disclose the route and method by which materials will be transported to the site. Nor do any of the NEPA documents analyze the impacts on the actual 15 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 20 of 51

21 areas where such transport will occur or on local residents. As a result, Defendants analysis here falls far short of the required hard look. 5 Robertson, 490 U.S. at 350. B. Section 4(f) and Section 106 Require Analysis of Impacts from Hauling Materials. Even if Defendants could be deemed to have satisfied NEPA s requirements with respect to hauling construction materials, they have still violated Section 4(f) and Section 106. Notably, none of the three opposition briefs responded to Plaintiffs claims under these statutes. NCDOT and Defendant-Intervenors summarily dismissed these arguments as moot. Similarly, FHWA expressly stated that it was responding only to Plaintiffs NEPA claim on the grounds that the Section 4(f) and Section 106 claims are moot. ECF No. 117 at 30 n.5. That is incorrect. Even with the abandonment of the plans to use haul roads through the Rodanthe Historic District, the project will still require the hauling of materials through properties protected by Section 4(f) and Section 106. It goes without saying that the construction materials must be transported to the work site in some fashion. And Defendants have stated that they will no longer barge the materials to the Rodanthe Ferry Terminal and haul them through the Rodanthe Historic District. ECF No Thus, barring an airlift (for which the record contains no mention or analysis), the materials will have to be transported by road via NC-12 the only artery to and from the construction site. If the materials are hauled from the south, they will necessarily pass through the Rodanthe Historic 5 NCDOT is off base with its insinuation that the lack of directly on-point case law is damning to Plaintiffs claims regarding hauling impacts. ECF No. 109 at 32. As explained below, agencies typically do analyze the impacts of hauling construction materials, thereby avoiding challenges on such grounds. Moreover, NEPA cases tend to be highly fact-specific and thus do not lend themselves to directly analogous application to future cases. See Nat l Audubon Soc y, 422 F.3d at 186 ( [G]iven all the possible factual variations in NEPA cases, an agency s obligations under NEPA are casespecific. A hard look is necessarily contextual. ). 16 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 21 of 51

22 District, as the District extends all the way across Rodanthe from Pamlico Sound to the Atlantic Ocean. See RD (showing boundaries of Rodanthe Historic District); RD (same). And if the materials are hauled from the north, they will necessarily pass through the Pea Island National Wildlife Refuge. See RD Because both the Rodanthe Historic District and the Refuge are protected by Section 4(f) and Section 106, see RD 23533; RD 28652, Defendants must comply with these statutes when analyzing the impacts of hauling construction materials through these areas. Section 4(f) requires agencies to evaluate whether there is a prudent and feasible alternative to using the Section 4(f) property, in addition to includ[ing] all possible planning to minimize harm to the Section 4(f) property. 49 U.S.C. 303(c). And Section 106 requires agencies to take into account the effect of the undertaking on any historic property prior to approving the project. 54 U.S.C This project will require the hauling of large equipment and construction materials for at least three years through congressionally protected areas. See RD Foreseeable impacts of this hauling process include increased noise, emissions, vibrations, and visual impairments. But the record contains no evaluation of how this hauling process will impact the cultural and historic qualities of the Rodanthe Historic District or the Refuge, or the refuge-related qualities of the Refuge. This is a plain violation of both Sections 4(f) and 106. C. Defendants Failed to Analyze Any Impacts from Construction Traffic. The use of NC-12 to transport construction materials also entails traffic impacts that have been neither disclosed nor analyzed. See generally Route 9 Opp. Legal Fund v. Mineta, 75 Fed. 6 Indeed, the northern terminus of the Jug-Handle Bridge lies within the Refuge, RD 24195, so any hauling of materials to the northern terminus, even if coming from the south, will require hauling through the Refuge. 17 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 22 of 51

23 App x. 152 (4th Cir. 2003) (assessing adequacy of traffic volume analysis performed by FHWA and state analog). It is inevitable that this hauling process will involve wide loads at slow speeds along NC-12 a two-lane highway that is the only road to and from Rodanthe. But the record contains no analysis of the resulting impacts on traffic patterns along this critical thoroughfare. Indeed, the 2008 FEIS summarily states that there would be only [b]rief periods of delay and disruption that result from construction vehicles operating on NC 12. AR But this statement was based on the premise that [m]ost of the bridge components with the replacement bridge corridor alternatives would be brought to the construction site by barge. Id. According to Defendants, the barge option is now off the table. See ECF No. 109 at 33; ECF No Thus, Defendants cannot satisfy their obligation to take a hard look by simply assuming that traffic interruptions will be minimal. Defendants also miss the mark with their assertion that Plaintiffs haul-road argument constitutes mere flyspeck[ing]. See ECF No. 109 at 32 33; ECF No. 117 at 32. In National Audubon Society, the case on which Defendants rely for this argument, the Fourth Circuit held that the Navy had violated NEPA by preparing an insufficient impacts analysis. The court made clear that an agency falls short of its legal obligations when it provides inadequate evaluation of a specific yet important environmental impact. Nat l Audubon Soc y, 422 F.3d at 189. Thus, Defendants cannot brush off their failure to address hauling impacts just because this is a specific issue. Id.; see also See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1241 (9th Cir. 2005) ( A hard look does not dictate a soft touch or brush-off of negative effects. ). Indeed, Defendants flyspecking argument is belied by Defendants admission that hauling is a predominant construction activit[y], RD ; RD 23523, as well as 18 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 23 of 51

24 Defendants more wholesome analysis of hauling in the 2008 FEIS with respect to Phase I the Bonner Bridge replacement, see AR 57268, 57276, , 57379, As explained in Plaintiffs initial memorandum, the 2008 FEIS contains extensive analysis of the impacts of hauling construction materials during the replacement of the Bonner Bridge. ECF No. 96 at 35. This analysis went so far as to provide the precise dimensions of the hauling routes and how they would be revegetated after construction was completed. AR 57268, 57276, , 57379, See also ECF No. 113 at (Defendant-Intervenors acknowledging that bring[ing] in heavy, noisy, and destructive equipment cause[s] significant negative impact to the Pea Island National Wildlife Refuge through which NC 12 currently runs ). Defendants failure to disclose and analyze hauling impacts for Phase IIb also stands in stark contrast to their analysis for similar projects. For example, in the 2012 FEIS issued for the Mid-Currituck Bridge, FHWA and NCDOT devoted three whole paragraphs to the transportation of construction materials and equipment for a coastal bridge project in North Carolina, including explicitly disclosing the haul routes to be taken, potential impacts on traffic, and efforts to mitigate such impacts. See, e.g., Mid-Currituck Final Environmental Impact Statement at , available at midcurrituck_feis_ pdf. And unlike the instant project, the Mid-Currituck Bridge project did not involve congressionally protected properties that require particularly scrutinizing impacts analysis. Id. at 3-20 (stating that there would be no use of Section 4(f) properties); see also Nat l Audubon Soc y, 422 F.3d at 207 (agency must follow NEPA s requirements particularly where... proposed action may affect an area that Congress has specially protected as a National Wildlife Refuge ) (emphasis added); id. at 187 (agency must take particular care 19 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 24 of 51

25 to evaluate how its actions will affect the unique biological features of [a] congressionally protected area ) (emphasis added). As for Phase IIb, Defendants have still not even disclosed how materials will be delivered to the project site, let alone disclose and analyze the impacts of such methods prior to issuing the Record of Decision. Thus, not only did Defendants fail to take a hard look before issuing the Record of Decision. Robertson, 490 U.S. at 350. They also acted arbitrarily and capriciously in assuming that Phase IIb will have no new, significant impacts that would require a Supplemental EIS. RD 28666; 40 C.F.R (c)(1). III. Defendants Failed to Adequately Evaluate the Project s Impacts on the Refuge s Qualities as a Wildlife Refuge. Defendants have failed to comply with Section 4(f) by failing to adequately evaluate the alternatives relative impacts on the Pea Island National Wildlife Refuge. As a preliminary matter, all parties agree that the record for this action contains no additional information regarding the applicability of the joint planning exception that was not included in the record for the Bonner Bridge Suit. ECF No ; ECF No ; ECF No And the Fourth Circuit has already held that the record for the Bonner Bridge Suit provided no support for the joint planning exception. Defs. of Wildlife, 762 F.3d at 402. Despite the parties threshold agreement, FHWA bizarrely claims that Plaintiffs have provided no supporting citation for the assertion that, in the absence of a joint planning exception, Defendants are required to analyze the project s impacts on the Refuge s attributes as a wildlife refuge.... ECF No. 117 at 32. Plaintiffs have repeatedly cited the Fourth Circuit s decision in Defenders of Wildlife, where, after finding that nothing in the record established a joint planning exception, the court stated: Of course, should the district court determine that the joint planning exception is inapplicable, it must examine the record to determine whether FHWA 20 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 25 of 51

26 complied with the substance of Section 4(f). Defs. of Wildlife, 762 F.3d at 402. This is consistent with the letter of the law, which provides that FHWA may approve only the least overall harm alternative, 23 C.F.R (c)(1), and that one of the factors to be evaluated is the harm... to the protected activities, attributes, or features that qualify each Section 4(f) property for protection, id. at 774.3(c)(1)(ii). There is no dispute that Section 4(f) applies to the Refuge both as a wildlife refuge and as a historic property. RD 23533; see also RD ( The primary purpose of the Refuge is to serve as a refuge and breeding ground for migratory birds and other wildlife. ). Thus, Defendants are required to evaluate the harm to the Refuge in regard to both its historic qualities and its refuge qualities. Even Defendant-Intervenors acknowledge that Defendants were required to analyze the refuge-related impacts on the Refuge. ECF No. 113 at 27. But Defendant-Intervenors have obscured the facts in another way by claiming that the Fourth Circuit has already held that [t]he impacts of the Jug-Handle Bridge were already addressed adequately in the FEIS. ECF No. 113 at 30 (citing Defs. of Wildlife, 762 F.3d at 397). To borrow from Defendant- Intervenors own lexicon, this assertion is shockingly disingenuous. See ECF No. 113 at 29. The quotation cited by Defendant-Intervenors is dicta not a holding and was made in regard to the NEPA analysis not the Section 4(f) Evaluation for the selection of a plan for the corridor from Oregon Inlet to Rodanthe not Phase IIb, the instant project. What the Fourth Circuit actually held, inter alia, was that nothing in the record supported a conclusion that the joint planning exception applied. Defs. of Wildlife, 762 F.3d at 402. The Fourth Circuit remanded for further proceedings, with the clear pronouncement that should the district court determine that the joint planning exception is inapplicable, it must examine the record to determine whether FHWA complied with the substance of Section 4(f). Id. If the Fourth 21 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 26 of 51

27 Circuit had held that FHWA had satisfied its legal obligations, there would have been no basis for reversal and remand for further proceedings regarding, well, whether FHWA had satisfied its legal obligations. Additionally, Defenders of Wildlife involved the high-level plan for the NC-12 corridor. Id. at That case focused particularly on Phase I the replacement of the Bonner Bridge as opposed to Phase IIb, the project now in question. Id. At that time, Phase IIb was just an amorphously titled Later Phase[], id. at 388, for which Defendants had specified really nothing more than a plan to make a plan, id. at 398. As parties to Defenders of Wildlife, Defendant-Intervenors know better than to claim that the Fourth Circuit has already given a thumb s up to Defendants analysis of Phase IIb impacts. Turning to Defendants Section 4(f) evaluation of impacts to the Refuge, the Jug-Handle Bridge constitutes a permanent use of the Refuge, which is protected by Section 4(f). RD Thus, the requirements of Section 4(f) and its implementing regulations indisputably apply to this project. See 49 U.S.C. 303; 23 C.F.R Defendants and Defendant- Intervenors contend that the impacts analysis required for a direct, permanent use of Section 4(f) property is narrower than the impacts analysis required for a constructive use that does not take place within the Section 4(f) property. ECF No. 109 at ( Since the Jug-Handle Bridge would permanently incorporate Refuge land, a constructive use of Section 4(f) property would not occur and therefore it was not necessary to address proximity impacts. ); ECF No. 113 at 30; ECF No. 117 at 34. There is no legal support for this counterintuitive conclusion. Although only the regulations for constructive uses include the term proximity impacts, 23 C.F.R , that does not mean that impacts such as noise, vibrations, light, and emissions need not be considered for a direct, permanent use. The absence of the term proximity in the 22 Case 2:17-cv FL Document 120 Filed 03/14/18 Page 27 of 51