federal appeal jean klock park opening brief 06 18 2010

8/9/2019 FEDERAL APPEAL JEAN KLOCK PARK OPENING BRIEF 06 18 2010

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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 COURTFOR THE WESTERN DISTRICT OF MICHIGAN

_____________________________

OPENING BRIEF OF APPELLANT (CORRECTED)

_____________________________

Terry J. Lodge, Esq.316 N. Michigan St., Suite 520Toledo, OH 43604-5627

(419) [email protected]

Counsel for Appellant

Case: 10-1313 Document: 006110659606 Filed: 06/18/2010 Page: 1


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TABLE OF CONTENTS

Corporate Disclosure Form i

TABLE OF AUTHORITIES v

STATEMENT IN SUPPORT OF ORAL ARGUMENT x

STATEMENT OF JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 2

STATEMENT OF THE CASE 4

STATEMENT OF THE FACTS 7

Environmental Impacts Inside JKP But Outside

the Conversion Acreage 8

Impacts Within the Conversion Acreage 9

Impacts Related to the Mitigation Parkland 10

Impacts Outside the Park and Mitigation Parkland

In 530-Acre Development 12

Forced Golf Course Routing Through JKP 12

Federal Agency Approvals 13

SUMMARY OF ARGUMENT 14

ARGUMENT 22

I. THE DISTRICT COURT ERRED BY NOT ORDERING AN

ENVIRONMENTAL IMPACT STATEMENT 22

A. Introduction and Standard of Review 22

B. The NPS Used Unduly Narrow Scoping in JKP 23

C. The Project Was Federalized By Its Dependency

on Federal Permits 25

D. No 3-Hole Golf Courses: Segmentation 27

E. There Were Significant Effects from a

Major Federal Action 28

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F. Incomplete Facts Undermine Comparisons of

Good and Bad Effects 30

II. THE ALTERNATIVES DISCUSSION WAS INCOMPLETE, NARROW

AND FAILED TO PROVIDE MEANINGFUL CHOICES TODECISION-MAKERS AND THE PUBLIC 32


B. The Sine Qua Non Imperative 35

C. The Inadequately-Investigated Alternatives 38

D. Concealed and Undiscussed Alternatives 40

III. PLAINTIFFS SHOULD HAVE BEEN ACCORDED STANDING

TO CHALLENGE THE CONVERSION APPRAISALS;

APPROVAL OF THEM WAS ARBITRARY AND CAPRICIOUS 41


B. Plaintiffs Established Prudential Standing 43

C. The Trial Court Erroneously Ruled That The

Mitigation Appraisals Accounted for Contamination 46

D. Uniform Appraisal Standards Governing Contamination

Were Not Followed 48

E. Uniform Appraisal Standards for Highest and Best Use

Were Not Followed 49

IV. THE MITIGATION PARKLAND IS NOT REASONABLY EQUIVALENT

TO THE CONVERSION PARKLAND 52


B. Widespread Contamination Destroys Viability of the

Exchange 53

C. Mitigation Parkland Not Accessible to Public in

Perpetuity 55

V. THE CONVERSION WAS NOT IN ACCORD WITH STATEWIDE

COMPREHENSIVE OUTDOOR RECREATION PLAN (SCORP) 56


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B. The District Court Erred By Approving Inconsistent

Conversion and Mitigation As Meeting Goals of the SCORP 57

VI. TRIAL COURT ERRED IN SUSTAINING THE ADEQUACYOF HISTORIC PRESERVATION REVIEW 59


B. It Was Error to Approve An Incompletely-Documented 404

Finding of No Historical Significance/No Adverse Effect 60

CONCLUSION 65

CERTIFICATE OF COMPLIANCE 66

CERTIFICATE OF SERVICE 66

APPENDIX

A-1 Designation of Relevant District Court Documents

A-2 Glossary of Terms

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TABLE OF AUTHORITIES

Page(s)

Cases

Am Fedn of Govt Employees v. Clinton,180 F.3d 727 (6th Cir. 1999). . . . . . . . . . . . . . . . . 42

Anglers of the Au Sable v. U.S. Forest Service,Case #05-10152-BC (E.D. Mich. N.D. 2005). . . . . . . . . . . 29

Assn of Data Processing Serv. Orgs., Inc. v. Camp,397 U.S. 150 (1970).. . . . . . . . . . . . . . . . . . . 18, 43

Attakai v. United States,746 F. Supp. 1395 (D. Ariz. 1990).. . . . . . . . . . . . . . 65

Battle Creek Health System v. Leavitt,498 F.3d 401 (6th Cir. 2007)... . . . . . . . . . . . . . . . 33

Bennett v. Spear,520 U.S. 154 (1997).. . . . . . . . . . . . . . . . . . . . . 44

California v. Block,690 F.2d 753 (9th Cir. 1982). . . . . . . . . . . . . . . . . 34

Camp v. Pitts,411 U.S. 138 (1973).. . . . . . . . . . . . . . . . . . . . . 47

Chelsea Neighborhood Assoc. v. U.S. Postal Service,516 F.2d 378 (2d Cir. 1975).. . . . . . . . . . . . . . . . . 39

Citizen Advocates For Responsible Expansion, Inc. (I-Care) v.

Dole,770 F.2d 423 (5th Cir. 1985). . . . . . . . . . . . . . . . . 25

Citizens Against Burlington, Inc. v. Busey,938 F.2d 190 (D.C.Cir.1991).. . . . . . . . . . . . . . . 17, 33

City of Grapevine v. Dept of Transp.,

17 F.3d 1502 (D.C. Cir. 1994).. . . . . . . . . . . . . . . . 33

Clarke v. Sec. Indus. Assn,479 U.S. 388 (1987).. . . . . . . . . . . . . . . . . . . . . 43

Comm. to Save the Rio Hondo v. Lucero,

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102 F.3d 445 (10th Cir. 1996).. . . . . . . . . . . . . . . . 30

Concerned About Trident v. Rumsfeld,555 F.2d 817 (D.C. Cir. 1977).. . . . . . . . . . . . . . . . 37

Courtney v. Smith,297 F.3d 455 (6th Cir. 2002). . . . . . . . . . . . . . . . . 42

Crounse Corp. v. Interstate Commerce Commn,781 F.2d 1176 (6th Cir. 1986).. . . . . . . . . . . . 14, 23, 30

DaimlerChrysler Corp. v. Cuno,547 U.S. 332 (2006).. . . . . . . . . . . . . . . . . . . . . 46

Davenport v. Causey,521 F.3d 544 (6th Cir. 2008). . . . . . . . . . . . . . . . . 33

Dept of Transp. v. Pub. Citizen,541 U.S. 752 (2004) . . . . . . . . . . . . . . . . . . . 22, 23

Dismas Charities, Inc. v. U.S. Dept of Justice,401 F.3d 666 (6th Cir. 2005). . . . . . . . . . . . . . . 43, 44

DuBois v. U.S. Dept. of Agric.,102 F.3d 1273 (1st Cir. 1996),

cert. denied, 117 S.Ct. 1567 (1997).. . . . . . . . . . . 34, 37

Ferris v. Secretary of the United States Dept of Transp.,No. 89-C-779-C (W.D. Wis. 1990).. . . . . . . . . . . . . . . 65

Friends of Fiery Gizzard v. Farmers Home Administration,61 F.3d 501 (6 Cir. 1995). . . . . . . . . . . . . . 16, 29, 30th

Henry Ford Health Sys. v. Shalala,233 F.3d 907 (6th Cir. 2000). . . . . . . . . . . . . . . . . 56

Hirt v. Richardson,127 F.Supp.2d 833 (W.D. Mich. 1999).. . . . . . . . . . . 16, 27

Idaho Conservation League v. Mumma,956 F.2d 1508 (9 Cir. 1992) . . . . . . . . . . . . . . . . 34th

Idaho Sporting Congress v. Thomas,137 F.3d 1146 (9th Cir. 1998).. . . . . . . . . . . . . . 17, 30

Methow Valley Citizens Council v. Regional Forester,833 F.2d 810 (9th Cir. 1987). . . . . . . . . . . . . . . . . 34

Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29, 43 (1983) .. . . . . . . . . . . . . . . . . . . 33

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Narragansett Indian Tribe v. Warwick Sewer Auth.,334 F.3d 161 (1st Cir. 2003). . . . . . . . . . . . . . . . . 64

National Trust for Historic Preservation v. United States Army

Corps of Engineers,552 F.Supp. 784 (S.D. Ohio 1982). . . . . . . . . . . . . . . 65

Natural Resources Defense Council v. Callaway,524 F.2d 79 (2nd Cir. 1975).. . . . . . . . . . . . . . . . . 35

North Buckhead Civic Assn v. Skinner,903 F.2d 1533 (11th Cir. 1990). . . . . . . . . . . . . . . . 35

Olson v. United States,292 U.S. 246 (1934).. . . . . . . . . . . . . . . . . . . . . 50

Pueblo of Sandia v. United States,

50 F.3d 856 (10th Cir. 1995). . . . . . . . . . . . . . . . . 64

Save Our Cumberland Mountains v. Kempthorne,453 F.3d 334 (6th Cir. 2006) .. . . . . . . . . . . . . . . . 23

Save Our Parks v. Kempthorne,No. 06 Civ. 6859, 2006 U.S. Dist. LEXIS 85206 (S.D.N.Y. 2006).57

Save Our Sonoran, Inc. v Flowers,227 F.Supp.2d 1111 (D. Ariz. 2002), affd 381 F.3d 905 (9th Cir.

2004).. . . . . . . . . . . . . . . . . . . . . . . . . . 15, 25

Save the Bay v. U.S. Army Corps of Engineers,

610 F.2d 322 (5th Cir. 1980). . . . . . . . . . . . . . . . . 27

SEC v. Chenery Corp.,332 U.S. 194 (1947).. . . . . . . . . . . . . . . . . . . . . 47

Sierra Club v. Adams,578 F.2d 389 (D.C. Cir. 1978).. . . . . . . . . . . . 18, 45, 46

Sierra Club v. Davies,955 F.2d 1188 (8th Cir. 1992).. . . . . . . . . . . . 18, 44, 53

Sierra Club v. Marsh,

714 F. Supp. 539 (D. Me. 1989). . . . . . . . . . . . . . . . .37

Sierra Club v. Marsh,872 F.2d 497 (1st Cir.1989).. . . . . . . . . . . . . . . . . 30

Sierra Club v. Sigler,

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695 F.2d 957 (5th Cir. 1983). . . . . . . . . . . . . . . . . 39

Simmons v. United States Army Corps of Engrs,

120 F.3d 664 (7 Cir. 1997). . . . . . . . . . . . . . . . . 37

th

United States v. 162.20 Acres of Land, More or Less, Situated in

Clay County, Miss.,639 F.2d 299 (5th Cir. 1981). . . . . . . . . . . . . . . . . 64

Van Abbema v. Fornell,807 F.2d 633 (7th Cir.1986).. . . . . . . . . . . . . . . . . 37

Weinberger v. Catholic Action of Hawaii/Peace Educ. Project,

454 U.S. 139 (1981).. . . . . . . . . . . . . . . . . . . . . 25

White Tanks Concerned Citizens, Inc. v. Strock,Case No. 07-15659 (9 Cir. April 29, 2009) (slip op.). . . . 26th

Statutes

5 U.S.C. 702. . . . . . . . . . . . . . . . . . . . . . . . 43

5 U.S.C. 706(2)(A). . . . . . . . . . . . . . . 14, 23, 43, 60

16 U.S.C. 460l-8(f)(3). . . . . . . . . . 1, 4, 17, 19, 42, 52

16 U.S.C. 470f. . . . . . . . . . . . . . . . . . . . 1, 5, 63

42 U.S.C. 4332(2)(C). . . . . . . . . . . . . . . . 14, 22, 28

Regulations

36 C.F.R. 59.3(b)(1). . . . . . . . . . . . . . . . . . 18, 46

36 C.F.R. 59.3(b)(2). . . . . . . . . . . . . . 4, 18, 42, 52

36 C.F.R. 59.3(b)(3). . . . . . . . . . . . . . . . . . 52, 54

36 C.F.R. 59.3(b)(7). . . . . . . . . . . . . . . . . . 18, 46

36 C.F.R. 59.3(b)(9). . . . . . . . . . . . . . 19, 20, 56, 58

36 C.F.R. 60.4. . . . . . . . . . . . . . . . . . . . . 20, 59

36 C.F.R. 800.4(a)(1).. . . . . . . . . . . . . . . . . . . 65

36 C.F.R. 800.4(b). . . . . . . . . . . . . . . . . . . 20, 60

36 C.F.R. 800.4(c)(2).. . . . . . . . . . . . . . . . . . . 61

40 C.F.R. 1501.4(a)-(b). . . . . . . . . . . . . . . . . . . 22

40 C.F.R. 1501.4(e). . . . . . . . . . . . . . . . . . . . . 23

40 C.F.R. 1502.14.. . . . . . . . . . . . . . . . . . . . . 34

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40 C.F.R. 1502.14 (b).. . . . . . . . . . . . . . . . . . . 34

40 C.F.R. 1502.23.. . . . . . . . . . . . . . . . . . . . . 39

40 C.F.R. 1506.1. . . . . . . . . . . . . . . . . . . . 17, 34

40 C.F.R. 1508.9. . . . . . . . . . . . . . . . . . . . .23, 32

40 C.F.R. 1508.13. . . . . . . . . . . . . . . . . . . . . . 23

40 C.F.R. 1508.27.. . . . . . . . . . . . . . . . . . . . . 28

40 C.F.R. 1508.27(b). . . . . . . . . . . . . . . . . . . . 29

40 C.F.R. 230.10(a).. . . . . . . . . . . . . . . . . . . . 35

40 C.F.R. 230.10(a)(2). . . . . . . . . . . . . . . . . . . 35

Other Authorities

Uniform Appraisal Standards, A-14.. . . . . . . . . . . . . 49

Uniform Appraisal Standards, B-3 . . . . . . . . . . . . . . 50

Uniform Standards of Professional Practice. . . . . . . . . . .48

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STATEMENT IN SUPPORT OF ORAL ARGUMENT

Appellants, who were the Plaintiffs below, respectfully

request that oral argument be held in this matter.

This case involves the applicability of the National

Environmental Policy Act (NEPA) to a 530-acre private golf

course-centered commercial and residential subdivision which

includes the conversion of pristine public parkland to 3 holes of

an 18 hole golf course overlooking Lake Michigan. The park is

federalized by past receipt of federal Land and Water

Conservation Fund Act (L&WCFA) support. Twenty-two acres in the

heart of the public park are to be swapped for 38 acres of

minimally-remediated former industrial brownfield, much of it

seriously contaminated. This conversion received National Park

Service approval. The project also requires a 404 Clean Water

Act permit from the U.S. Army Corps of Engineers because it will

cause destruction of wetlands and stream covering.

Appellants have raised issues of nondisclosure to the public

of important project information under NEPA; of L&WCFA violations

due to inadequate appraisals and recreational uselessness of the

compensatory land; that the project violates the state recrea-

tional plan and federal historic properties assessment mandates.

Destruction of the publics commons for private business

concerns is an emerging issue. This park privatization is the

first known L&WCFA conversion involving a swap of contaminated

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land for parkland in mitigation of the conversion.

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STATEMENT OF JURISDICTION

The Appellants, Plaintiffs below, are seven (7) individuals

who sued two federal agencies and a city to halt a golf course

development project involving conversion of a federally-assisted

public park. Plaintiffs sued under the National Environmental

Policy Act (NEPA), 42 U.S.C. 4321, et seq.; the Land and Water

Conservation Fund Act (L&WCFA), 6(f)(3) [16 U.S.C. 460l-

8(f)(3)]; 404 of the Clean Water Act, 33 U.S.C. 1344; and the

National Historic Preservation Act (NHPA), 16 U.S.C. 470f. RE

1, 60, Complaint/Amended Complaint.

The district court had federal question jurisdiction under

28 U.S.C. 1331. The district court entered its final orders on

January 15, 2010 (RE 138, 139, 140). On March 10, 2010, Plain-

tiffs timely appealed. RE 141. This Court has jurisdiction over

this appeal from the district courts final order and judgment

under 28 U.S.C. 1291.

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ISSUES PRESENTED FOR REVIEW

Whether NEPA required public disclosure and analysis because

the permitted project will cause undisclosed net change to park

dunescapes of 18,000 cy of material, and toxic facilities

contaminate brownfields being traded for parkland.

Whether NEPA was violated when alternative locations for

golf holes other than on parkland were considered by the

developer but not disclosed in the EAs.

Whether NEPA was violated when the NPS limited its analysis

to the converted parkland (3 of 18 golf holes), while the Corps

analyzed only the development containing the remaining 15 holes.

Whether NEPA was violated by understating the conversions

footprint; facilities associated with the project were built

outside the conversion area but not analyzed in the EA.

Whether the court erred in denying standing to park users to

challenge the adequacy of appraisals performed for the conver-

sion.

Whether L&WCFA was violated where conversion appraisals

depart from Uniform Standards.

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Whether L&WCFA was violated where the project countered the

priority goal of the State Comprehensive Outdoor Recreation Plan

(SCORP).

Whether CWA 404 and NEPA were violated where the Corps

failed to account for widespread chemical contamination in

wetlands and brownfields by a river which are being exchanged for

parkland in a conversion.

Whether 404 and NHPA 106 were violated where the State

Historic Preservation Office concealed and repudiated an earlier

finding of historical significance respecting park resources.

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STATEMENT OF THE CASE

This case involves a conversion plan using acreage from Jean

Klock Park (JKP) in Benton Harbor, Michigan as the focus of a

530-acre, $400 million golf course residential/commercial

development. Plaintiffs, 6 residents of Benton Harbor and a

resident of an adjacent township, filed suit in the U.S. District

Court for the District of Columbia, alleging that the National

Park Service (NPS) and City of Benton Harbor (1) failed to

prepare an environmental impact statement (EIS), violating the

National Environmental Policy Act (NEPA), 42 U.S.C. 4321, et

seq.; (2) failed to consider practical alternatives, violating

NEPA and Land and Water Conservation Fund Act ((L&WCFA)

6(f)(3), 16 U.S.C. 460l-8(f)(3) and L&WCFA regulations; (3)

improperly converted land, violating the L&WCFA based on planned

use for professional sports; (4) inadequately appraised

conversion and mitigation property, violating L&WCFA regulation

36 C.F.R. 59.3(b)(2); (5) improperly mitigated conversion

property, violating 36 C.F.R. 59.3(b)(3); (6) improperly

converted property, violating Michigans Statewide Comprehensive

Outdoor Recreation Plan (SCORP) per 36 C.F.R. 59.3(b)(9); (7)

improperly accepted non-viable mitigation parkland, violating 36

C.F.R. 59.3(b)(5); (8) violated the Administrative Procedures

Act (APA), 5 U.S.C. 706; (9) violated a state-law requirement

to obtain two appraisals; (10) failed to require approval of the

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conversion by the Michigan Natural Resources Trust Fund Board.1

RE 1, Complaint. Harbor Shores Community Redevelopment, Inc.,

project developer, was granted status to intervene on the side of

the Defendants (now Appellees).

The district court denied Plaintiffs motion for a TRO to

halt destruction of JKP. RE 30; Weiss v. Kempthorne, 580 F.Supp.

2d 184 (D.D.C. 2008). The case was ordered transferred to the

U.S. District Court for Western Michigan. RE 43, Order.

Plaintiffs then amended theircomplaint, asserting the Corps

of Engineers (Corps) failure to comply with NEPA and the Clean

Water Act 404, 33 U.S.C. 1344, including inadequate review of

the Parks eligibility under the National Historic Preservation

Act (NHPA), 16 U.S.C. 470 et seq.

At issue here are NPS approval of the conversion of 22.11

acres of JKP property, RE 152 Exh.7 p.19, FONSI; and the Corps

permit issuances pursuant to 404 to the Rivers and Harbors Act

10, 33 U.S.C. 403. RE 155 Exh.2B p.10.

The Court ordered administrative record filing, required

briefing, convened oral argument on cross-motions for summary

judgment and dismissal, and allowed supplemental briefing. RE

82, 87, 89, 132. On January 15, 2010, the court granted summary

judgment/judgment of dismissal to the Defendants-Appellees and

dismissed the suit. RE 138 Opinion, 139 Order, 140 Judgment.

Plaintiffs have abandoned claim nos. 3, 8, 9, and 10 above.1

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Plaintiffs timely appealed on March 10, 2010. RE 141.

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STATEMENT OF THE FACTS

This lawsuit focuses on a golf course residential/commercial

development, Harbor Shores, located partly in Benton Harbor in

southwest Michigan. Three of the courses 18 holes are within

Jean Klock Park on 22.11 acres of leased land. JKP is 73 acres

and stretches a half-mile along Lake Michigan. Prior to the golf

course it featured 60' high wooded sand dune ridges running its

entire length. Plaintiffs Julie Weiss, Nicole Moon, Emma Kinnard,

James H. Duncan, LeaAnna Locey, Scott Elliott, and Ronnie

Whitelow live in or near Benton Harbor who allege that their use

and enjoyment of JKP is threatened by the development.

In 2002, Whirlpool Foundation retained the Melrose Company,

a development firm, to refine the Harbor Shores development. RE

155 Exh.2B p.7, corporate presentation. The resulting golf course

subdivision is aimed at an economic renaissance in the Benton

Harbor area. A crumbled factory town, the City has longtime

unemployment over 20% and is some 94% African-American.

HSCRI is the developer of a Jack Nicklaus signature 18-

hole course anchoring the brownfields redevelopment. The

signature feature is its dramatic element view of Lake

Michigan from Jean Klock Park. RE 152 Exh.7 pp.21-22, NEPA

Summary.

John Klock, prominent businessman, and his spouse donated

JKP to the City in 1917 to honor their daughter, Jean, who died

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in early childhood. In 1977, the City received L&WCFA funds for a

bathhouse and other improvements. JKP is subject to a state-court

injunction requiring that the City use the Park only for bathing

beach, park purposes, or other public purposes related to bathing

beach or park use . . . . RE 148 Exh.3 p.3, Consent Judgment.

The 22.11 acres leased to HSCRI include: Jean Drive; a

parking lot; the landward slopes of the dunes; the top of the

dunes; and one acre of wetland, for up to 105 years. RE 150 Exh.5

pp.5-6, Lease; RE 152 Exh.7 p.20. HSCRI must allow public use of

the private golf course. Some net income after costs and expenses

(from only the golf course, not the entire development), will be

paid to a community benefits fund. RE 150 Exh.5 pp.5-6, Lease.

Environmental Impacts Inside JKP

But Outside the Conversion Acreage

In the two Environmental Assessments (EAs) provided NPS by

the City, facts were omitted or insufficient. Within JKP,

destruction of existing roadways, construction of a new road

through the south dune and asphalt paving west of the dunes are

disclosed, but not analyzed for environmental impact. The public

learned via a legal memorandum filed by HSCRI in this lawsuit, RE

19, 77, that 3.35 acres of beachfront would be covered by

asphalt, all of it outside the 22.11 acres. This is the only

revelation of the cut and fill impact on the dunes for automobile

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access to the beachfront.2

The conversion prompted removal of boardwalks and destruc-

tion of brick roadway which the State Historic Preservation

Office had required in 2004 to be preserved, plus a row of his-

torically-significant cottonwood trees on the beachfront. The

only EA disclosure was a before-and-after drawing, giving no

textual details of destruction which has since occurred. RE 150

Exh.5 p.2. There was no explanation of tree clearing outside the

boundaries of the conversion acreage, only conceptual drawings of

a golf course supplanting native landscape with manmade elements.

Another undisclosed feature for golf will be located on the

publics part of JKP: a retention swale (drainage pond), seen

only in a Conceptual Stormwater Management Plan, which went

undisclosed to the public. RE 147 Exh.1 pp.7-8. This reduces

even further the public recreation land in JKP.

Impacts Within the Conversion Acreage

Within the 22.11 leased acres, the changes include: de-

stroying an existing parking lot; new paved golfcart paths;

filling wetland acreage; eradicating over a hundred mature trees;

and excavating and backfilling a net 18,000 cy of fill material

on the landward side of the dune ridges. Tree eradication and the

true extent of massive dune bulldozing were not detailed in the

RE 19, 52, remove approximately 275 cy of sand and add2

in 500 cy to close current access road..

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EAs. Court testimony revealed that a net 18,000 cy (900

construction-grade truckloads of material) (RE 112 p.25 fn.16,

HSCRI Memorandum) would be removed from/added to the dunes,

replacing sand with unknown fill to arrest the natural migration

of the dunes and enable turfgrass growth. This material change

in the ecology of the dunes - the mainstay of JKP - is absent

from NEPA analysis. HSCRI neither quantified the massive volume

of fill material to enable non-native turfgrass on the dunes, nor

did HSCRI provide scaled diagrams of the minimal grading of3

this massive project.

Impacts Related to the Mitigation Parkland

The EAs disclose nearly nothing of the toxic contamination

on 6 of the 7 parcels of land exchanged as mitigation park-

land. In HSCRIs Documentation of Compliance with Part 10 Rules

(Part 10 analysis, RE 151 Exh.6), not disclosed to the public,

5 parcels were listed by HSCRIs consultant as toxic "facilities"

requiring long-term monitoring and remediation . RE 151 Exh.64

p.24. The analysis details toxic exposure risks to the public

from leachates to groundwater and its venting into the Paw Paw

RE 112, HSCRI SJ Memo at 14 (The project will require3

minimal grading of the site. . . .).

Mitigation parcel H, also is a toxic facility with sample4

locations that exceed residential direct criteria for arsenic andtrimethybenzene, and where the residential ambient air particu-late soil inhalation criteria is exceeded for Chromium. RE 149Exh.4 pp.14-15, MDEQ letter.

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River (id. pp.10-13) and from being inhaled, id. pp.11-12. An

MDEQ ad hoc decision holding HSCRI nonliable for remediation is5

neither mentioned nor explained in the EAs. Id. p.12. Neither

the levels of contamination nor an ad hoc administrative decision

which limits the number of days children may be exposed to

contact with the soil were disclosed or explained in the NEPA

document. Mention of contamination appears in a two-page MDEQ

letter within the application package, not in the EA for the

mitigation parcels, where one would expect contamination

disclosures to be detailed. RE 150 Exh.5 pp.3-4. Neither the MDEQ

letter nor the Part 10 analysis appear in the Corps adminis-

trative record. The Corps EA excludes the mitigation parkland

from its scope, RE 147 Exh.1 p.14, despite evidence of pollution

leaking from those parcels into the Paw Paw River. Part 10

analysis, RE 151 Exh.6 pp. 10-13.

The Lease between the City and HSCRI (RE 150 Exh.5 pp.7-8)

provides ( 6.05) for remediation of parcels D and F: mass

excavation, disposal of soil, concrete, debris and industrial

waste, the bulk filling of areas of the Park Expansion Property,

and the installation of an isolation zone.. .. RE 150 Exh.5 p.7.

The aims of remediation were not explained in the EAs, nor the

industrial wastes identified, nor how they would be remediated.

See MDEQ to MDNR memo (RE 149 Exh.4 pp. 11-12), on-the-spot5

creation of a site-specific recreational cleanup criteria

[sic].

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These parcels lie alongside the Paw Paw River, raising concern

for pollution of public waterways when the land is disturbed for

the project. Paragraph 6.05 of the Lease authorizes HSCRI

unilaterally to terminate the project if remediation is

impossible. Re 150 Exh.5 pp.7-8. The potential for failure is not

explained in the EA.

Impacts Outside the Park and Mitigation Parkland

In 530-Acre Development

There was neither a final stormwater management plan nor

pollution prevention plan for the overall project as of the time

(April 2008) of public comment, even for those portions directly

involving JKP and mitigation parkland. Only a conceptual storm-

water plan existed which was not publicly-disclosed. RE 147

Exh.1 p.7.

For years brownfields and Superfund reclamation efforts have

been ongoing within and adjacent to the 530-acre project area

involving federal and state money, yet the status of none of this

- permanent toxic facilities, progress of cleanup, effects on

ground- and surface water of drainage and runoff from excavation

for construction of the golf course and structures - was

disclosed or mentioned in any NEPA document.

Forced Golf Course Routing Through JKP

Construction commenced on the privately-owned 15 golf holes

outside the Park in May 2007, before the City even applied to NPS

to convert land for the final 3 holes. NPS rejected that

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application based on concerns about control over JKP conveyed by

the Lease, lack of a public comment period for conversion review,

and inadequacy of the recreational viability of the proposed

mitigation parcels. NPS rejection letter, RE 148 Exh. 3 pp. 19-

23. A public comment period was held, the Lease wording was

changed and the application was resubmitted in June 2008.

Throughout that time, construction continued on the 15 private-

land holes, predetermining routing of the final three. Grading

and sculpting, destroying certain woods, relocating streambed,

and location of new wetlands for the 15 holes forced the need

for the final holes to be located within JKP.

Federal Agency Approvals

On July 25, 2008, NPS decided, based on two EAs (one for

JKP, one for the mitigation parkland) that the conversion would

not have a significant impact on the quality of the human envi-

ronment. RE 152 Exh.7 p.19, FONSI; RE 152 Exh.7 p. 24, NPS

letter. On August 29, 2008, Corps granted a 404 permit to HSCRI

to create 7.84 acres of wetland mitigation, discharge fill, cover

streambed and construct other facilities associated with the

Harbor Shores development. RE 155 Exh.2B p. 10.

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SUMMARY OF ARGUMENT

1. The decision not to prepare an EIS is reviewed under the

arbitrary and capricious standard of review. 5 U.S.C.

706(2)(A). A major Federal action significantly affecting the

quality of the human environment, 42 U.S.C. 4332(2)(C),

requires an EIS. While the Court must not substitute [its]

judgment of the environmental impact for the judgment of the

agency, once the agency has adequately studied the issue,

Crounse Corp. v. Interstate Commerce Commn, 781 F.2d 1176, 1193

(6th Cir. 1986), [i]t is [the Courts] role . . . to determine

whether the agency has, in fact, adequately studied the issue and

taken a hard look at the environmental consequences of its

decision. Id.

By listing undetailed impacts (contamination, remedia-

tion) or de-emphasizing magnitude (minimal contouring instead

of moving 18,000 cy of fill), providing drawings without

narrative (beachfront roadway, new parking lots, startling

landscape transformation), new facilities absent environmental

analysis (new roadway and parking lots covering 3.35 acres of

non-conversion beachfront) or completely failing to disclose

(health effects of contaminants, allowable human exposure, only

safe areas on mitigation parkland will be buffered isolation zone

paths, golf course retention ponds occupying non-conversion

parkland, demolishing dune boundary for access road, widespread

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clear-cutting of dunes outside conversion area), it cannot be

said that NPS adequately studied or took the requisite hard

look. An EIS is required if substantial questions are raised

about a projects effect on environmental quality. Idaho

Sporting Congress v. Thomas, 137 F.3d 1146, 1149-50 (9th Cir.

1998).

2. The entire project should have been federalized for NEPA

purposes by the Corps. An agency cannot avoid a wide EIS scope by

arbitrarily confining the scope of its analysis to some activi-

ties within a particular project to the exclusion of other,

related activities that are within its jurisdiction. SOS [Save

Our Sonoran, Inc. v Flowers, 227 F.Supp.2d 1111, 1114-1115 (D.

Ariz. 2002), affd381 F.3d 905 (9th Cir. 2004)]. By incuriously

avoiding investigation of contamination of the 530-acre brown-

fields project and mitigation parkland and implications for water

quality of multiple watersheds, the Corps published an uninformed

EA using an impermissibly narrow scope. The Corps declined

responsibility for identifying primary environmental impacts

within JKP or the mitigation parkland and by accepting the NPS

findings, could not effectively analyze secondary impacts as it

had promised.

3. Dividing agency responsibilities as though there were

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two independent development projects constituted segmenting. The

NPS restricted its scope to JKP and mitigation parkland, ignoring

how the 15 holes developed on private land forced the selection

of the preferred alternative. Improper segmentation occurs when

the proposed component action has little or no independent

utility and its completion may force the larger or related

project to go forward notwithstanding the environmental con-

sequences. Hirt v. Richardson, 127 F.Supp.2d 833, 842 (W.D.

Mich. 1999). The separate review processes left impacts un-

considered or minimized.

4. Where the Corps neither independently investigated nor

was given complete information on contamination in uplands and

mitigation parkland wetlands by the 404 applicant, when it

balanced positive against adverse effects on water quality, its

approach was fatally mistaken. Where. . . adverse effects can be

predicted, and the agency is in the position of having to balance

the adverse effects against the projected benefits, the matter

must, under NEPA, be decided in light of an environmental impact

statement. Friends of Fiery Gizzard v. Farmers Home

Administration, 61 F.3d 501, 505 (6th Cir. 1995).

5. The NEPA alternatives discussion must be sufficiently

thorough to avoid preselection of the preferred alternative. An

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agency must avoid outcome-controlled "rigging" of purpose and

need, or violate NEPA. Citizens Against Burlington, Inc. v.

Busey, 938 F.2d 190, 195 (D.C. Cir.1991). [A]n agency may not

define the objectives of its action in terms so unreasonably

narrow that only one alternative from among the environmentally

benign ones in the agency's power would accomplish the goals of

the agency's action. . . . Id.

The NPS discussion of alternatives was not presented in

comparative form to provide meaningful choices, there was

insufficient detailed treatment of each alternative, and while

the conversion application was pending, ongoing construction of

15 golf holes on private land locked in the preferred alternative

for the remaining 3. See 40 C.F.R. 1506.1.

By failing to disclose publicly two specific non-Park

alternatives, one secretly considered by the developer and one

suggested by the Corps, the alternatives discussion was legally

insufficient. Idaho Sporting Congress v. Thomas, 137 F.3d 1146,

1149-50 (9th Cir. 1998) (existence of viable but unexamined

alternative renders EIS inadequate).

6. A conversion only with approved appraisals ensuring

substitution of other recreation properties of at least equal

fair market value and of reasonably equivalent usefulness and

location. 16 U.S.C. 460l-8(f)(3). The regulations require

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that the market value be established by an approved appraisal.

36 C.F.R. 59.3(b)(2).

Plaintiffs have prudential standing to sue under the APA to

challenge incompetent appraisals under L&WCFA. The DOI

Secretary must know the value of the park he is charged to

create through conversion. Sierra Club v. Davies, 955 F.2d 1188,

1195 (8th Cir. 1992). Plaintiffs have demonstrated an interest in

ensuring a fair trade through conversion consistent with the

statute and meet the zone-of-interests test for L&WCFA

protection. SeeAssn of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 153 (1970). Plaintiffs aesthetic and

recreational interests in JKP are threatened by an improper

conversion; incompetent appraisals have prompted approval of a

low value for the conversion parkland and a high value for the

mitigation parkland, which has consequently lowered the residual

value of the Park.

Alternatively, since Plaintiffs have NEPA standing, they

have standing to sue under L&WCFA by authority of Sierra Club v.

Adams, 578 F.2d 389, 391-93 (D.C. Cir. 1978). NEPA has been

incorporated directly into the L&WCFA regulations. 36 C.F.R.

59.3(b)(1) and (7). Having established a procedural claim

under the NEPA prong of the L&WCFA, Plaintiffs may further raise

claims based on the appraisal prong of the L&WCFA.

The APAs arbitrary-and-capricious standard attaches to the

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issue of appraisal adequacy. It was arbitrary to approve

appraisals which do not comply with Uniform Appraisal Standards

for evaluating the effects of environmental contamination and

highest and best use. It was arbitrary for NPS to adopt an

appraisers uninformed interpretation as development restrictions

on parkland the generous interpretation of recreational use of

public land conferred by Michigan courts. It was also arbitrary

and capricious for the district court to rely on extra-record

evidence to find that an appraisal properly considered the

presence of contamination.

7. It was arbitrary and capricious for the court to approve

polluted mitigation parkland as reasonably equivalent under 16

U.S.C. 460l-8(f)(3) when the Lake-overlook converted parkland

was the site of hiking, climbing, skiing, birdwatching, lake

viewing, inland scenery viewing, photography, running, picnick-

ing, marriage ceremonies, religious rites, watching fireworks

displays, but the use of the mitigation parcels will be strictly

limited to walking paths (isolation zones) due to risks of

exposure to contaminants on those properties.

8. A conversion must comply with 36 C.F.R. 59.3(b)(9),

viz., be in accord with the Statewide Comprehensive Outdoor

Recreation Plan (SCORP) and/or equivalent recreation plans. NPS

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used two subordinate goals of the SCORP to demonstrate that the

JKP conversion was in accord with the SCORP, while ignoring the

conversions contradiction of the top priority SCORP goal. Both

parts of the proposal - the conversion and the mitigation, and

not simply one or the other - must meet the goals of the state

plan. 36 C.F.R. 59.3(b)(9) requires that [e]quivalent

usefulness and location will be determined based on the following

criteria [that] [t]he proposed conversion and substitution are in

accordwith the [SCORP].

9. The NHPA requires the Corps to evaluate the impact of

issuing a 404 permit on sites eligible for inclusion in the

National Register of Historic Places. To qualify for inclusion in

the National Register, historical significance must be present in

structures or objects that possess integrity of location,

design, setting,. . . workmanship, feeling, and association . . .

. 36 C.F.R. 60.4. In consultation with the SHPO, the agency

"shall make a reasonable and good faith effort to identify

historic properties that may be affected by the undertaking and

gather sufficient information to evaluate the eligibility of

these properties for the National Register." 36 C.F.R.

800.4(b).

After stating in 2004 that JKP displayed evidence of a

preeminent 20 century landscape architects influence andth

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requiring the City to preserve that evidence, the SHPO later

concealed that conclusion from the Corps, dropped its opposition

to use of an ethically-compromised consultant who deprecated the

Parks historic attributes, and changed its finding to no

adverse effect. That was arbitrary and not good faith compliance

under NHPA.

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ARGUMENT

I. THE DISTRICT COURT ERRED BY NOT ORDERING

AN ENVIRONMENTAL IMPACT STATEMENT

A. Introduction and Standard of Review

The NPS and/or Corps should have required an EIS prior to

approving the conversion and the 404 permit. There were three

(3) EAs, two for the 22.11 acre parkland conversion within JKP

and its mitigation, the other supposedly covering the 530-acre

development but excluding the Park and mitigation. Significant

environmental impacts were not disclosed, hence not mitigated.

The scope of the conversion as a project was too narrow, making

the effects of conversion appear less intrusive within JKP than

they actually are. The entire development should have been

federalized for NEPA purposes in light of the but-for test.

The mitigated EA/FONSIs ignored critical facts which caused

underestimated negative impacts while exaggerating the positives

of brownfields redevelopment.

NEPA requires preparation of an EIS for all major Federal

actions significantly affecting the quality of the human envi-

ronment . . . . 42 U.S.C. 4332(2)(C). NEPA regulations allow

preparation of a more limited EA if the agencys proposed action

would not clearly require the production of an EIS. Dept of

Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004); see 40 C.F.R.

1501.4(a), (b). The EA must briefly provide evidence and

analysis to determine whether preparation of a full EIS is indi-

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cated, 40 C.F.R. 1508.9, covering project need, alternatives

and environmental impacts of the proposed action and alter-

natives. A determination not to require an EIS prompts issuance

of a finding of no significant impact (FONSI), explaining why

the proposed action will not have a significant impact on the

human environment. See 40 C.F.R. 1501.4(e), 1508.13.

NPS and the Corps each issued EA/FONSIs.

An agencys decision not to prepare an EIS is reviewed under

the deferential arbitrary and capricious standard of review.

Pub. Citizen, 541 U.S. at 763 (quoting 5 U.S.C. 706(2)(A));

Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 339

(6th Cir. 2006). The Court must not substitute [its] judgment

of the environmental impact for the judgment of the agency, once

the agency has adequately studied the issue. Crounse Corp. v.

Interstate Commerce Commn, 781 F.2d 1176, 1193 (6th Cir. 1986).

However, [i]t is [the Courts] role . . . to determine whether

the agency has, in fact, adequately studied the issue and taken a

hard look at the environmental consequences of its decision.

Id; see also Cumberland Mountains, 453 F.3d at 339.

B. The NPS Used Unduly Narrow Scoping in JKP

The NPS determined an EIS of the conversion within JKP to be

unnecessary, following narrow scoping. NPS disclosed changes in

man-made elements in JKP but failed to discuss impacts to the

natural environment either within or outside the conversion

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acreage, with the exception of state-threatened sabatia angularis

(rose pink). Moreover, NPS failed to analyze or disclose the

extent of permanent legacy chemical contamination on the

mitigation parkland.

The district court required Plaintiffs to identify and

explain significance of environmental impacts. Respecting damage

to the dunes and paving 3.35 acres of beachfront, the Plaintiffs

did not explain how those activities could have a potentially

significant impact that was not considered. RE 138, Opinion 25.

Plaintiffs do not indicate how the removal of trees could have

unconsidered impacts. Id. at 24. The City and HSCRI were taking

remedial action to ensure that the contaminated parcels are safe

for public outdoor recreation use - undisclosed actions lacking

analysis of potential for nonpoint pollution - hence NPS took the

requisite hard look. Id. at 26. The presence of contamination

on the mitigation parkland is not an effect of the Corps

Permit (or of the conversion), and it was unsupported specula-

tion that disturbance of contaminated land might cause uncon-

sidered impacts. Id. at 26-27. Plaintiffs offer no evidence to

suggest that the incomplete information about plants and wild-

life undermined the JKP FONSI. Id. at 28.

The courts holding (id. at 29) that there is no indication

that NPS or the Corps ignored or left unexamined a potentially

significant environmental impact reflects a poor understanding

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of NEPA. [M]ere perfunctory or conclusory language will not be

deemed to constitute an adequate record and cannot serve to

support the agency's decision not to prepare an EIS." Citizen

Advocates For Responsible Expansion, Inc. (I-Care) v. Dole, 770

F.2d 423, 434 (5th Cir. 1985). The purpose of NEPA is to protect

the environment. See, e.g., Weinberger v. Catholic Action of

Hawaii/Peace Educ. Project, 454 U.S. 139, 143 (1981) (NEPAs

twin aims are to inject environmental considerations into the

agencys decision-making process and to inform the public that

the agency has considered environmental concerns).

By contrast, here, information about significant environ-

mental effects was concealed, minimized, obscured behind gener-

alities, or disingenuously denied.

C. The Project Was Federalized

By Its Dependency on Federal Permits

The Court concluded, erroneously, that this is not

. . . a case where an agency has arbitrarily confinedthe scope of its analysis to some activities within aparticular project to the exclusion of other, related

activities that are within its jurisdiction, as in SOS [SaveOur Sonoran, Inc. v Flowers, 227 F.Supp.2d 1111, 1114-1115

(D. Ariz. 2002), affd381 F.3d 905 (9th Cir. 2004)].

RE 138, Opinion 18. The Corps knew generally there was contamin-

ation throughout the 530-acre project and mitigation parkland,

yet did not investigate. The Corps ratified NPS NEPA omissions

concerning JKP: the environmental effects from destroying mature

trees, massive earthmoving, the polluted mitigation parkland

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adjoining its jurisdictional waters. But it is the impact on

jurisdictional waters that determines the scope of the Corps

responsibility, not the constructs of the developer. SOS, 381

F.3d at 913.

The district courts belief that the Corps was reviewing

the effects of the overall project, RE 138, Opinion 18, is

belied by the facts. The Corps merely accepted NPS insufficient

EAs and performed review of some aspects of the non-Park

project. No single NEPA document encompasses the environmental

impacts of the golf course subdivision; NEPA responsibility was

fragmented between NPS and the Corps.

In SOS, the developer sought a 404 permit to construct

roads for a 608-acre housing development which required filling

in washes at 66 separate spots. The Corps limited NEPA analysis

to the effect of the fills on 5% of the total area. The court

held that the washes were legion, and that development of the

entire section ... is directly dependent upon, and the product

of, the Corps permit action.... The washes and the land were

all part of the same project, requiring a new EA as though

federal action included the entire project on all of the 608

acres. Id.

In White Tanks Concerned Citizens, Inc. v. Strock, Case No.

07-15659 (9 Cir. April 29, 2009) (slip op.), the court foundth

that the developers requirement of a federal permit for its

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planned 10,000 acre subdivision meant that the projects

viability is founded on the Corps issuance of a 404 permit,

which federalized it.

Here, HSCRI maintains that the spectacular views of Lake

Michigan are indispensable to the overall developments success,

so the 530-acre projects viability depends upon a permit for

conversion. The filling of wetlands and clearing of upland

forest for the construction of a golf course are not distinct

projects with separate functions and independent justifications,

either. The nonfederal development will not go forward absent

the federal permits, hence the project should have been deemed

federalized for purposes of NEPA. Save the Bay v. U.S. Army

Corps of Engineers, 610 F.2d 322 (5 Cir. 1980); Sylvester v.th

U.S. Army Corps of Engineers, 884 F.2d 394, 400-01 (9 Cir.th

1989).

D. No 3-Hole Golf Courses: Segmentation

The district court erroneously found no segmentation of the

overall development when NPS and the Corps confined their reviews

to different geographical jurisdictions. RE 138 Opinion 18. The

two 3-hole/15-hole developments lack independent utility.

Construction of the 15 holes in 2007 forced the routing of the 3

holes through JKP - classic segmenting. Hirt v. Richardson, 127

F.Supp.2d 833, 842 (W.D. Mich. 1999). Limiting scope to the

narrow matter of converting 22.11 acres of the Park for golf

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caused construction of the private-land holes to crystallize

forward play through JKP. No one made HSCRI consider objective

alternative options.

It was thus incorrect that (RE 138, Opinion 19) the two

agencies separate review processes considered the significance

of all effects from the overall project. No one assessed massive

destruction of dunes and trees, or included facilities built

outside the conversion area as conversion effects. There was no

analysis of effects on land or people from recreational use of

toxic land via limited trails/isolation zones. The court opined

(RE 138, Opinion 21) that the relevant information. . . has

already been made available in connection with the combined

review of both NPS and the Corps. Few in the public would trade

Lake-overlook summits for carcinogenic flatland if provided with

the facts.

E. There Were Significant Effects from a Major Federal Action

The district court erred in concluding there were no

significant environmental impacts from the privatization of JKP.

An EIS is required for "major Federal actions significantly

affecting the quality of the human environment." 42 U.S.C.

4332(2)(C). The test for "major Federal action" and "signif-

icantly affecting" is actually a single criterion: significance.

An action is major if it is significant and if significant, re-

quires preparation of an EIS. 40 C.F.R. 1508.27. The degree

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of environmental impact determines significance.

Significantly involves intensity, which (40 C.F.R.

1508.27(b)) refers to the severity of impact - i.e., that

environmentally negative consequences may occur in implementation

of the project. The Sixth Circuit says of intensity that one

speaks of the severity of adverse impacts, not beneficial im-

pacts. Friends of Fiery Gizzard v. Farmers Home Administration,

61 F.3d 501, 504 (6 Cir. 1995).th

At 40 C.F.R. 1508.27(b) are 10 measures of intensity of

an impact. The net excavation and filling of 18,000 cy of sand/

unknown material in the dunes and unanalyzed, undisclosed con-

tamination in project areas where wetlands and upland will be

disturbed meet each listed measure.

The district court required Plaintiffs to show how the

massive fill of the dunes could have potentially significant

environmental effects. . . not considered by the NPS or Corps.

RE 138, Opinion 24. The court, assured that grading and con-

struction would minimize impacts, said Plaintiffs had not proven

how unknown fill material might cause problems. Id.

However, [t]o [require an EIS], a plaintiff need not show

that significant effects will in fact occur ... raising substan-

tial questions whether a project may have a significant effect is

sufficient. (Emphasis supplied). Anglers of the Au Sable v.

U.S. Forest Service, Case #05-10152-BC (E.D. Mich. N.D. 2005) at

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13-14, citing Idaho Sporting Congress v. Thomas, 137 F.3d 1146,

1149-50 (9th Cir. 1998) (EIS required if substantial questions

are raised about effects on environmental quality).

The Court must not substitute [its] judgment of the

environmental impact for the judgment of the agency, once the

agency has adequately studied the issue. Crounse Corp., supra.

But here, neither agency adequately studied several crucial

issues. The harm NEPA seeks to prevent is complete when, as here,

the agency makes a decision without considering information NEPA

requires be placed before the decision-maker andpublic. Sierra

Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989). "The injury of

an increased risk of harm due to an agency's uninformed decision

is precisely the type of injury {NEPA} was designed to prevent.

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448-49 (10th

Cir. 1996).

F. Incomplete Facts Undermine Comparisonsof Good and Bad Effects

The district court found (Re 138, Opinion 30) that [t]he

Corps determined that there would not be significant adverse

effects from approval of the Corps Permit. The court dismissed

Plaintiffs citation of Friends of Fiery Gizzard v. Farmers Home

Administration, 61 F.3d 501, 505 (6th Cir. 1995), stating6

Where. . . adverse effects can be predicted, and the6

agency is in the position of having to balance the adverseeffects against the projected benefits, the matter must, underNEPA, be decided in light of an environmental impact statement.

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Gizzardonly applies where the agency determines that there may

be significant adverse effects. Id. It is true that [a]n

agency is not required to prepare an EIS if it finds that

significant adverse effects can be avoided through mitigation,

(RE 138, Opinion 30), but those effects first must be

acknowledged before they can be mitigated. The court

maintained,post hoc, that the Corps satisfactorily addressed

matters about which it clearly had no knowledge.

The Corps accepted, unconditionally, NPS conclusory,

nonfactual statements about environmental effects. The Corps has

never seen the Part 10 analysis (RE 151 Exh.6 pp. 2-36) and so

did not analyze the likelihood of toxic contamination of the Paw

Paw River and mitigation parkland wetlands in its balancing act.

The Corps knew nothing of the polluted state of HSCRIs

brownfields, so did not address that pollution in its EA. For

example, the Corps states in its EA (RE 147 Exh.1 p. 15):

The overall level of contamination in wetlands adjacentto the Paw Paw River should be lessened through constructionof 7.84 acres of new wetland areas to compensate for totalof 5.62 acres of wetland fill under the HSCRI portions andthe City of St Joseph portion of the golf course.

This statement is not credible, given the Corps ignorance of the

Part 10 analysis. The Corps compared known project benefits to

unknown or incomplete formulations of environmental negatives.

The Corps inadequately studied the environmental effects -

indeed, didnt study some at all. Its 404 permit issuance,

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based on inaccurate assumptions, was arbitrarily and capriciously

sustained by the district court.

II. THE ALTERNATIVES DISCUSSION WAS INCOMPLETE,NARROWAND FAILED TO PROVIDE MEANINGFUL CHOICES

TO DECISION-MAKERS AND THE PUBLIC


The NPS did not consider reasonable alternatives to a Jack

Nicklaus signature golf course, such as a smaller course that

would not require use of Park property, or no course at all. The

stated purpose of the project, i.e., a project built around a

Nicklaus signature course, excluded such consideration.

Two studies were significant to the trial court: a market

study concluding that a signature course could charge higher

greens fees, and one which said signature courses financially

outperform other golf facilities. RE 138, Opinion 31. Since NPS

determined that there would be no significant impacts from

conversion, the district judge found the agencys duty to discuss

alternatives to be less pressing and dismissed Count II. RE

138, Opinion 33-34.

The district court ratified a narrow project purpose and did

not support alternatives with economic data, which ruled out all

but the preferred alternative. There was no comparison of

environmental impacts from the conversion with the alternatives.

The trial court cited 40 C.F.R. 1508.9 (brief discussions of

alternatives) to overrule arguments about the discussions lack

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of substance. RE 138, Opinion 33. The court cited City of

Grapevine v. Dept of Transp., 17 F.3d 1502, 1506 (D.C. Cir.

1994) that [a]n agency may consider alternatives in a manner

that is consistent with the economic goals of a projects

sponsor. RE 138, Opinion p. 33. But in Citizens Against

Burlington, Inc. v. Busey, 938 F.2d 190, 197-98 (D.C.Cir.1991),

then-judge Thomas warned that outcome-controlled "rigging" of

purpose and need violates NEPA, which "does not give agencies

license to fulfill their own prophecies, id. at 195. Justice

Thomas continued, an agency may not define the objectives of its

action in terms so unreasonably narrow that only one alternative

from among the environmentally benign ones in the agency's power

would accomplish the goals of the agency's action. . . . Id.

The Sixth Circuit reviews de novo the district courts

grant of summary judgment. Davenport v. Causey, 521 F.3d 544, 550

(6th Cir. 2008). Pursuant to arbitrary-and-capricious review

under the APA, the Court must canvass the record to determine

whether there exists a rational connection between the facts

found and the choice made. Motor Vehicle Mfrs. Assn v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). If this inquiry

reveals that the agencys regulatory activity is plainly erro-

neous or inconsistent with the underlying statute, the Court

must remand. Battle Creek Health System v. Leavitt, 498 F.3d 401,

409 (6th Cir. 2007).

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NEPA requires: (1) that alternatives be presented in

comparative form to provide meaningful choices to decision-makers

and the public (40 C.F.R. 1502.14); (2) that substantial

treatment be devoted to each alternative considered in detail,

to enable reviewers to evaluate the comparative merits of each

alternative (40 C.F.R. 1502.14 (b)); and (3) that during the

course of the NEPA process, no actions go forward that have

adverse environmental impacts or would limit the choice of

reasonable alternatives (40 C.F.R. 1506.1).

Agencies must, to the fullest extent possible, [s]tudy,

develop, and describe appropriate alternatives to recommended

courses of action in any proposal. . . . 42 U.S.C.

4322(2)(E); Idaho Conservation League v. Mumma, 956 F.2d 1508,

1519-20 (9th Cir. 1992). It means examination of every alter-

native within the nature and scope of the proposed action,

California v. Block, 690 F.2d 753, 761 (9th Cir. 1982),

sufficient to permit a reasoned choice. Methow Valley Citizens

Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir. 1987).

The existence of a viable, but unexamined alternative renders an

environmental impact statement inadequate. Idaho Conservation

League, supra. Agencies must study. . . significant alternatives

suggested by other agencies or the public. . . . DuBois v. U.S.

Dept. of Agric., 102 F.3d 1273, 1286 (1st Cir. 1996), cert.

denied, 117 S.Ct. 1567 (1997). Even an alternative which would

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only partially satisfy the need and purpose of the proposed

project must be considered by the agency if it is "reasonable,"

Natural Resources Defense Council v. Callaway, 524 F.2d 79, 93

(2nd Cir. 1975), because it might convince the decision-maker to

meet part of the goal with less impact, North Buckhead Civic

Assn v. Skinner, 903 F.2d 1533, 1542 (11th Cir. 1990).

B. The Sine Qua Non Imperative

The three golf holes with Lake Michigan views are, to HSCRI,

the sine qua non of the entire Harbor Shores development upon

which success of the entire development depends. The Corps

defined the purpose and need as to develop a mixed-use devel-

opment with housing, commercial and recreational facilities

centered on a championship golf course. RE 147 Exh.1 p. 13.

While NPS confined the NEPA scope to converting 22.11 acres

of JKP for golf, construction of golf holes on private land

outside JKP began a year before the 2008 conversion approval and

rendered NPS conversion decision anticlimactic.

The presumed need for an 18-hole Nicklaus signature golf

course mangled the presumption of 404 that less-damaging7

alternatives to the proposed site design exist. Harbor Shores is

A 404 permit must be denied if there is a practicable7

alternative to the proposed discharge which would have lessadverse impact on the aquatic ecosystem. 40 C.F.R. 230.10(a).Even an area that is not presently owned by the applicant may bea practicable alternative if it could be reasonably obtained,utilized, expanded or managed in order to fulfill the basic

purpose of the proposed activity. 40 C.F.R. 230.10(a)(2).

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not water dependent under the CWA, so less-destructive8

alternatives must be examined. The Corps hid behind fragmented

NEPA jurisdiction, did nothing to stop the predictive effect of

the holes built on private land, then disingenuously accepted

NPS anticlimax that there was no less-destructive alternative

than conversion of JKP for golf.

The USEPA objected to HSCRIs insistence on a signature

course:

The stated project purpose ... is to construct a ...

Jack Nicklaus Signature Golf Course. This project purposeis inherently too specific so as to exclude discussion ofmany practicable alternatives that do not conform to thestandards of a [Nicklaus Course].

The logic of the argument presented by the applicantfollows:

> We need a [Nicklaus Course] so this is a worldclass course.

> There are technical standards for a [NicklausCourse].

> Anything that would cause those standards not bemet is not prudent.

By narrowly defining the project purpose in such man-

ner, the applicant has ruled out practicable alternativesfor having a very good golf course and still protectingwetlands and water quality. . . . because it is not prudentto high quality golf.

RE 147 Exh.1 pp. 19-20, USEPA letter.

The NPS EA described a conversion of only 22.11 acres which

did not include new roadways, parking lots, retention ponds, or

Golf course construction,per se, does not require access8

or proximity to or siting within wetlands to take place.Therefore, we must presume that there are practicablealternatives to achieve the overall project purpose that do notinvolve special aquatic sites.... EA, RE 147 Exh.1 p.18.

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18,000 cy of contouring to destroy dunescapes. The resulting

underestimate of environmental damage skewed the alternatives

discussion.

An agency may not:

. . . [C]ontrive a purpose so slender as to definecompeting 'reasonable alternatives' out of consideration(and even out of existence). . . . If the agency constrictsthe definition of the project's purpose and thereby excludeswhat truly are reasonable alternatives, the EIS cannotfulfill its role. Nor can the agency satisfy [NEPA].

Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 665

(7 Cir. 1997). See alsoVan Abbema v. Fornell, 807 F.2d 633,th

638 (7th Cir. 1986) (evaluation of alternatives mandated by

NEPA is to be an evaluation of alternative means to accomplish

the general goal of an action; it is not an evaluation of the

alternative means by which a particular applicant can reach his

goals); also, Sierra Club v. Marsh, 714 F.Supp. 539, 577 (D.Me.

1989) (projects principal goals must override the stated

preferences of the applicant for purposes of NEPA's reasonable

alternatives analysis); DuBois v. U.S. Dept. of Agric., supra,

102 F.3d 1287 (existence of a reasonable, but unexamined,

alternative renders the EIS inadequate). Courts must ensure that

the ultimate site decision is made only after reasonable

alternatives and their impacts are properly identified in the

NEPA document. Concerned About Trident v. Rumsfeld, 555 F.2d 817

(D.C. Cir. 1977).

The insistence on dramatic element views of Lake Michigan

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and a signature course meant that alternatives to conversion

which might be profitable, but not as profitable, were rejected.

Harbor Shores ... specifically considered the costs of acquiring

high-end residential property and determined that the project

lost economic feasibility if this alternative was selected. RE

149 Exh.4 p.18. HSCRI complained that compliance with wetlands

protections threatened profitability and declined to purchase

land for golf from private owners because it cost too much. RE

147 Exh.1 pp.16-17.

C. The Inadequately-Investigated Alternatives

The alternatives were depicted in their worst light. For

example, Alternative #1 (no action) assumes that the entire

530-acre development will be canceled absent the land for golf in

JKP. Improvements to the Park would not be made. RE 152 Exh.7

p. 21. Yet HSCRI itself admitted, outside of conversion area,

there would still be action: ... $3 million in improvements, and

a new 12.2 mile linear walking system and over 30 acres of land

will be added to the Benton Harbor park system.... 500 acres of

land deemed a burden are now ready for some type of development.

RE 149 Exh.4 p.9; RE 147 Exh.1 p.11. Alternative #1 was

misleading.

Concerning Alternative #2 (no course within Benton Harbor),

the EA, void of justification, warned that a lesser golf course

would doom the entire project. RE 152 Exh.7 pp.21-22. Pre-emptive

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dismissal of a smaller-footprint 18-hole or 9-hole course

relieved HSCRI from disclosing the minimum amount of land

required for the signature course, making alternatives to using

JKP impossible to find.

NEPA requires provision of cost-benefit information when

economics are cited:

If a cost-benefit analysis relevant to the choice amongenvironmentally different alternatives is being considered

for the proposed action, it shall be incorporated by

reference or appended to the [NEPA] statement as an aid in

evaluating the environmental consequences. (Emphasis

supplied).

40 C.F.R. 1502.23. The agency must discuss the relationship

between that analysis and any analyses of un-quantified environ-

mental impacts, values, and amenities. Id. Once the agency

elects to prepare an economic cost-benefit analysis to compare

alternatives, NEPA demands an objective and accurate presentation

of the economic costs and benefits of each alternative. Id.;

Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983) (citing

Chelsea Neighborhood Assoc. v. U.S. Postal Service, 516 F.2d 378,

386-87 (2d Cir. 1975)) (If an agency were permitted to cite

possible benefits in order to promote a project ... yet avoid

citation of accompanying costs ... the cost-benefit analysis in

the EIS would be reduced to a sham....).

Alternative #3 (golf holes on the Parks beach) sought even

more of JKP than the preferred 22.11 acres. This more intrusive

option, by definition, was not a reasonable alternative.

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Alternative #4 (golf holes south of JKP) was infeasible

because of physical impediments from a railway and a legal

prohibition to including recreational land in a tax increment

financing (TIF) zone. Yet parkland mitigation Parcel H is part

of a TIF area. RE 149 Exh.4 pp.10, 17, 19. This unexplained

discrepancy destroys the rationale for rejection of Alternative

#4.

Alternative #5 (golf holes east of JKP) was rejected with a

too much hassle excuse: The designers worked extensively with

[governmental agencies] to redesign holes to meet governmental

requirements that resulted in the present golf course layout,

(RE 152 Exh.7 p.22), so #5 is not viable. This exposes HSCRIs

nonnegotiable presumption.

Alternative #6 (golf holes north of JKP) was rejected

because it would creat[e] more of the tax base outside of the

City and thus defeat[] the transformational benefits of the

project to the community. RE 152 Exh.7 pp.22-23. This exclusion

argued costs and benefits without disclosing economic facts.

D. Concealed and Undiscussed Alternatives

The alternatives discussion does not disclose another

northern alternative which HSCRI historically considered. A

Preliminary Schematic Master Plan designates acreage in the

Higman Park neighborhood as Alternative Golf Routing Not Using

Jean Klock Park. RE 149 Exh.4 p.3; RE 147 Exh.1 pp.2, 3, 4. It

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is absent from the NEPA documents.

The Corps submitted public comments in April 2008 which were

neither disclosed to the public nor summarized in the Public

Comment Summary, suggesting 11 acres for golf which would avoid

JKP. RE 148 Exh.3 pp. 25-26. The City withheld these9

observations from the public and the city commission whose

approval was required.

Even if alternative sites are ruled out because of price,

they must be disclosed and analyzed under NEPA, and reasons given

for their rejection. But that would have called into question

the economic viability of the HSCRI development.

The NPS declared in its conversion evaluation (RE 152 Exh.7

p.18) that the reasonable range of alternatives was specific-

ally addressed. That is clearly untrue. The alternatives dis-

cussion for conversion and 404 purposes was arbitrary and

capriciously approved, and the district court should be reversed.

III. PLAINTIFFS SHOULD HAVE BEEN ACCORDED STANDING

TO CHALLENGE THE CONVERSION APPRAISALS;

APPROVAL OF THEM WAS ARBITRARY AND CAPRICIOUS


Plaintiffs contended in Count IV of their Complaint that the

[A] large upland area lies to the south and west of Parcel

9

G containing over 5 acres of upland that certainly couldaccommodate a golf course hole. Materials recently submitted tothe Corps ... show a new Golf Course Maintenance and Turf Farmof over 6 acres that was presented in permit application mater-ials as future development for housing.

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appraisals of the JKP conversion land and the mitigation parkland

parcels were skewed, the former too low in value, and the latter,

too high.

The L&WCFA requires the Interior Secretary to approve a

conversion only upon such conditions as he deems necessary to

assure the substitution of other recreation properties of at

least equal fair market value and of reasonably equivalent

usefulness and location. L&WCFA 6(f)(3) [16 U.S.C. 460l-

8(f)(3)]. Regulations require that the market value be

established by an approved appraisal (prepared in accordance

with uniform Federal appraisal standards). 36 C.F.R.

59.3(b)(2).

The district court denied Plaintiffs standing to proceed. RE

138, Opinion 36.

The Sixth Circuit reviews de novo a district courts

decision to dismiss a case for lack of standing. Courtney v.

Smith, 297 F.3d 455, 459 (6th Cir. 2002). The complaint must be

viewed in the light most favorable to the plaintiff; all material

allegations of the complaint must be accepted as true. Id.

(quoting Am. Fedn of Govt Employees v. Clinton, 180 F.3d 727,

729 (6th Cir. 1999)).

If Plaintiffs are found to have standing, the question

becomes whether the Secretary's approvals of appraisals of the

conversion and mitigation acreage conformed to federal appraisal

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standards and whether those decisions were arbitrary and

capricious, an abuse of discretion, or otherwise not in

accordance with law. 5 U.S.C. 706(2)(A).

B. Plaintiffs Established Prudential Standing

While Article III standing prerequisites require a plaintiff

to suffer an injury-in-fact, 10 of the APA requires that a

demonstration that the plaintiff has prudential standing. Dismas

Charities, Inc. v. U.S. Dept of Justice, 401 F.3d 666, 671 (6th

Cir. 2005); 5 U.S.C. 702. Prudential standing requires the

interest sought to be protected by the complainant [to be]

arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in

question. Assn of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150, 153 (1970). The Supreme Courts zone-of-interests

test is

. . . whether, in view of Congress evident intent tomake agency action presumptively reviewable, a particularplaintiff should be heard to complain of a particular agencydecision. In cases where the plaintiff is not itself thesubject of the contested regulatory action, the test deniesa right of review if the plaintiffs interests are somarginally related to or inconsistent with the purposesimplicit in the statute that it cannot reasonably be assumedthat Congress intended to permit the suit. The test is notmeant to be especially demanding; in particular, there needbe no indication of congressional purpose to benefit thewould-be plaintiff.

Clarke v. Sec. Indus. Assn, 479 U.S. 388, 399-400 (1987).

Whether a plaintiffs interest is arguably ... protected ... by

the statute ... is to be determined not by reference to the

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overall purpose of the Act in question ..., but by reference to

the particular provision of law upon which the plaintiff relies.

Bennett v. Spear, 520 U.S. 154, 175-76 (1997). Dismas, supra.

The district court believed the zone of interest of the

appraisals was protection from a fiscal injury to the govern-

ment. RE 138, Opinion 36. This is incorrect.

In requiring NPS to assure the substitution of other

recreation properties of at least equal fair market value,

Congress made no mention whatsoever of avoiding fiscal injury to

the government, but required that the land swap be for land equal

or superior in value to that being converted. The appraised

value of the parkland being converted sets a benchmark value

which the mitigation parkland appraisals must meet or exceed.

Thus Congress was unconcerned with protecting $50,000 of

L&WCFA funds spent on JKP in the 1970's, but sought, instead, to

keep the public from losing valuable parkland in a poorly-

conceived land trade. In Sierra Club v. Davies, 955 F.2d 1188,

(8th Cir. 1992), the court clearly understood this mandate:

A requirement that the Secretary must first be assuredof substituted lands, and then begin testing to determinethe value of the converted land, is unworkable. It wouldrequire the Secretary to create a new park of reasonablyequivalent usefulness and value even before he decideswhether or not to convert the state park to a commercialdiamond mine and even before he knows the value of the park

he is charged to create.

Id. at 1195.

The Plaintiffs prudential interest is to see that the

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converted land is replaced with at least equally-valuable land.

If it were merely to assure that the $50,000 were matched or

surpassed by the value of the replacement parkland, it would not

be necessary to appraise the Park, but only the mitigation land;

the L&WCFA grant amount is a known. The aim is to meet or exceed

the fair market value, not the grant total.

Plaintiffs claim that improper appraisals have caused them

procedural injury, i.e., NPS failure to ensure a fair trade

because of an improperly low value for the conversion parkland

and a high value for the mitigation parkland. The conversion,

they maintain, has lowered the residual value of the Park. If

the benchmark figure for the 22.11 acres is low by millions of

dollars and the polluted lands overvalued, there has been no fair

trade.

The Plaintiffs demonstrated both their injury-in-fact and

prudential interest to the district court. RE 122, Plaintiffs

Opposition to SJ Cross-Motion at 33-34; also, RE 60, Amended

Complaint 65. Their prudential interests are neither

marginal nor inconsistent with the purposes implicit within

the statute.

The trial court could not discern ... [a] ... relationship

between Plaintiffs NEPA and L&WCFA claims and maintained that

Sierra Club v. Adams, 578 F.2d 389, 391-93 (D.C. Cir. 1978) did

not give Plaintiffs standing to raise claims under another

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statute than NEPA. RE 138, Opinion 39. But NEPA is incorporated

directly into the L&WCFA regulations, see conversion

prerequisites at 36 C.F.R. 59.3(b)(1) and (7), that:

(1) All practical alternatives to the proposedconversion have been evaluated. . . .

**** **** **** ****(7) The guidelines for environmental evaluation have

been satisfactorily completed and considered by NPS duringits review of the proposed 6(f)(3) action.

Plaintiffs Article III standing under NEPA simultaneously

confers Article III standing under L&WCFA, because NEPA

considerations are express prerequisites to approval of a

conversion under L&WCFA. Plaintiffs with Article III standing

may raise other alleged violations of the statute on which suit

is b