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Wise v. Department of Transportation

United States Court of Appeals, Eighth Circuit

December 6, 2019

George Wise; Matthew Pekar; Uta Meyer; David Martindale; Robert Walker Plaintiffs - Appellants
v.
Department of Transportation, United States; Federal Highway Administration; Arkansas Department of Transportation Defendants - Appellees

          Submitted: September 26, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         This action arises from the widening of Interstate Highway 630 from six to eight lanes from Baptist Hospital to University Avenue (approximately 2.5 miles) within the City of Little Rock, Arkansas (the I-630 project). George Wise and others filed suit against the U.S. Department of Transportation, the Federal Highway Administration (FHWA), and the Arkansas Department of Transportation (Arkansas DOT), alleging violations of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and NEPA's implementing regulations, 40 C.F.R. §§ 1500-1508. Wise also filed a motion for a temporary restraining order, seeking to enjoin the defendants from working on the I-630 project. Wise appeals from the denial of injunctive relief, arguing that the district court[1] erred in determining that the I-630 project qualified for a categorical exclusion under 23 C.F.R. § 771.117(c)(22). We affirm.

         I. Background

         NEPA requires federal agencies to prepare an environmental assessment or an environmental impact statement for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Categories of actions "which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect" do not require an environmental assessment or an environmental impact statement. 40 C.F.R. § 1508.4; see Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1185-87 (8th Cir. 2001) (setting forth the regulatory background that allows agencies to "categorically exclude certain types of federal activities from [NEPA's] case-by-case environmental assessment review"). FHWA has identified certain actions that do not involve significant environmental impacts and thus qualify for categorical exclusion from NEPA's requirements. See 23 C.F.R. § 771.117. At issue here is the categorical exclusion for projects that take place "entirely within the existing operational right-of-way." See id. § 771.117(c)(22).

         In October 2016, the defendants reported that the I-630 project qualified for a categorical exclusion from NEPA's environmental assessment or environmental impact statement requirements. The categorical exclusion report outlined the improvements proposed along I-630, including increasing the travel lanes from six to eight and replacing all bridges within the project's limits. The report noted that the "[e]xisting right of way width varies, ranging from 220 to 400 feet" and explained that the project did not require any "additional permanent right of way." Arkansas DOT already owned the land that would be used for the I-630 project.

         Arkansas DOT issued a press release on July 13, 2018, stating that construction on the I-630 project would begin on Monday, July 16. Wise filed suit and moved for a temporary restraining order two days later. During a status conference held on Friday, July 19, 2018, Wise characterized the demolition of the Hughes Street Overpass as the harm that would be done "between now and Monday," when the hearing on Wise's motion for a temporary restraining order would be held. Wise asked the district court to disallow demolition of the overpass and immediately enjoin the defendants from working on the I-630 project. The district court declined to do so, and the Hughes Street Overpass was demolished that weekend.

         Keli Wylie, the program administrator of Arkansas DOT's Connecting Arkansas Program, testified at the hearing on Wise's motion. She explained that the existing operational right-of-way included traffic lanes and clear zones, "which, in layman's terms, [are the areas] outside of the shoulder of the roadway[, and] . . . in this case it's 30 feet beyond the edge of the travel way." Wylie testified that the existing operational right-of-way was not limited to those areas, however, because it also included "mitigation areas, drainage areas, interchange ramps, anything that we maintain or use for transportation purposes." She explained that the right-of-way for the I-630 project was clear, but that Arkansas DOT would remove any other trees, if necessary, to complete the project. According to Wylie, the existing operational right-of-way was "property line to property line"-i.e., the entire 220- to 400-foot expanse owned by Arkansas DOT.

         After reviewing the evidence, "particularly the testimony of Keli Wylie," the district court concluded that Wise had "failed to establish that any part of the I-630 project construction would go outside of the existing operational right-of-way" and that it was therefore reasonable for the defendants to conclude that the project qualified as a categorical exclusion under the regulation. D. Ct. Order of July 27, 2018, at 6. The district court thus denied injunctive relief because, among other things, Wise had not shown he was likely to succeed on the merits of his claim that the defendants violated NEPA.

         II. Analysis

         We reject the defendants' argument that we lack jurisdiction over this interlocutory appeal. We have jurisdiction under 28 U.S.C. § 1292(a)(1) because the district court's order had the practical effect of denying a preliminary injunction. See Abbott v. Perez, 138 S.Ct. 2305, 2319 (2018) ("We have previously made clear that where an order has the 'practical effect' of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction."); Sampson v. Murray, 415 U.S. 61, 86-88 (1974) (treating an order labeled a temporary restraining as a preliminary injunction because it had the same practical effect as a preliminary injunction). We also reject Arkansas DOT's argument that the appeal should be dismissed as moot because the action that Wise sought to enjoin has been completed. Arkansas DOT contends that Wise merely sought to enjoin the demolition of the Hughes Street Overpass. The record and the district court's order make clear, however, that Wise sought to enjoin any further work on the I-630 project, and Arkansas DOT's argument to the contrary is misguided.

         "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). We review the denial of a preliminary injunction for abuse of discretion. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, 826 F.3d 1030, 1035-36 (8th Cir. 2016). A district court abuses its discretion if it "rests its conclusion on clearly erroneous ...


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