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PRESERVATION COALITION v. FEDERAL TRANSIT ADMIN.

March 31, 2000

PRESERVATION COALITION OF ERIE COUNTY PLAINTIFF,
V.
FEDERAL TRANSIT ADMINISTRATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Skretny, District Judge.

DECISION AND ORDER

TABLE OF CONTENTS

INTRODUCTION ..................................................................... 554 BACKGROUND ....................................................................... 554 I. Applicable Statutes ...................................................... 554 II. Buffalo Inner Harbor Project ............................................. 556 III. Archeological Exploration At The Inner Harbor Site ....................... 557 IV. "No Adverse Effect" Determination ........................................ 558 V. Stage III Excavations .................................................... 559 DISCUSSION ....................................................................... 560 I. Plaintiff's Standing ..................................................... 561 II. Scope Of Review And The Record Subject To Review ......................... 562 III. Preliminary Injunction Standard Of Proof ................................. 563 A. Likelihood of Success: Plaintiff's Arguments ......................... 564 1. Definition of Project Goals ...................................... 565 2. Archeology Exception ............................................. 565 3. Supplemental EIS ................................................. 569 B. Irreparable Harm ..................................................... 572 1. Harm to Members' access to Commercial Slip Wall .................. 573 2. Harm to the Proposal to Incorporate Commercial Slip Wall in to a Functioning Slip ............................................. 573 3. Harm to Other Resources .......................................... 576 IN SUMMARY ....................................................................... 576 CONCLUSION AND ORDER ............................................................. 577

ABBREVIATIONS AND ACRONYMS

The following abbreviations and acronyms are used in this Decision:

APA — Administrative Procedure Act, 5 U.S.C. § 701, et seq.

EQRA — Environmental Quality Review Act

NEPA — National Environmental Policy Act, 42 U.S.C. § 4321, et seq.
NHPA — National Historic Preservation Act, 16 U.S.C. § 470, et seq.
§ 106 of NHPA — (§ 106, process — when agency consults with SHPO over proper treatment of historic resources).
§ 4(f) § 4(f) of the National Transportation Act, 49 U.S.C. § 303

EIS — Environmental Impact Statement

FEIS — Final Environmental Impact Statement

SEIS — Supplemental Environmental Impact Statement

SEQRA — State Environmental Quality Review Act, New York Environmental Conservation Law, § 8-0101, et seq.

SHPO — State Historic Preservation Office

National Register — National Register of Historic Places
"Criterion A" and "Criterion D" — criteria for inclusion in the National Register, found at 46 C.F.R. § 60.4, note.
"Stage IA," "Stage IB," "Stage II" and "Stage III" — stages in archeological investigation of the Inner Harbor Project site, conducted by firm of Warren Barbour, Ph.D.
ESDC — Empire State Development Corporation (d/b/a New York State Urban Development Corporation)

FTA — Federal Transit Administation

NFTA — Niagara Frontier Transit Authority

NYSTA — New York State Thruway Authority

OPRHP — Office of Parks, Recreation & Historic Preservation

SUNY — State University of New York

INTRODUCTION

Plaintiff Preservation Coalition of Erie County (Preservation Coalition or Coalition) has moved this Court for an Order preliminarily enjoining Defendants from engaging in construction at a site identified as the Buffalo Inner Harbor Project. The Coalition claims that construction at the Inner Harbor Project site threatens the imminent destruction of historic resources that are of great local and national significance. It claims that Defendants violated Federal and State laws that require consideration of the impact of the Project on historic resources and planning to mitigate harm to those resources.

This Court in its prior decision rendered on February 23, 2000 in this case, determined that the administrative record was insufficient to enable the Court to determine the issues essential to deciding the Preliminary Injunction Motion, and that the Coalition would therefore be permitted to call three witnesses. (Item no. 30, at 17, 20-21.) Those three witnesses, David Gerber, Ph.D., Daniel Rogers and Robert Z. Melnick, Ph D., testified on February 29, 2000. This Court then granted Defendants' request to call a rebuttal witness, Robert D. Kuhn. Ph.D., who testified on March 6, 2000.

Now, upon the parties' submissions and the testimony and evidence before this Court, Plaintiffs Motion for a Preliminary Injunction is granted in part and denied in part for the reasons stated in the discussion that follows.*fn1

BACKGROUND

I. APPLICABLE STATUTES

Preservation Coalition asserts claims under three Federal statutes which provide for protection of environmental, and particularly historic resources.*fn2 The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. requires the preparation of an Environmental Impact Statement (EIS) whenever a federally funded construction project significantly affects the quality of the environment. The EIS

serves NEPA's "action forcing" purpose in two important respects. It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in [] the decision making process.
Publication of an EIS . . . gives the public the assurance that the agency has indeed considered environmental concerns in its decision making process and, perhaps more significantly, provides a springboard for public comment.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989) (Internal citations omitted.) In an EIS a "responsible official" must describe the environmental impact of the project, including any unavoidable adverse effects, and consider alternatives that might meet project goals while minimizing harm to the environment. 42 U.S.C. § 4332(2)(C).

NEPA is essentially a procedural statute. It requires that an agency take a "hard look" at environmental consequences of its projects, but does not elevate environmental concerns over other priorities, or prohibit a course of action that may harm resources, so long as the agency justifies its decision. Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1050 (2nd Cir. 1985).

The National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. requires that any federally funded undertaking "take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register" of Historic Places. 16 U.S.C. § 470f. The State Historic Preservation Office (SHPO) is charged with recommending whether to include a resource in the National Register. 36 C.F.R. § 60.3(m). Any agency whose project impacts resources that may be eligible for the National Register must consult with SHPO to determine whether National Register criteria are met, and, if so, whether the project will adversely affect the resources. 36 C.F.R. § 800.4, 800.5. If the project is likely to have an adverse impact on a protected historic resource, SHPO must be consulted regarding alternative approaches to avoid or mitigate that adverse effect. Id. § 800.6. NHPA, like NEPA, is an essentially procedural statute, which requires planning to avoid or mitigate harm to historic resources, but does not prohibit projects simply because they are likely to cause such harm. Natural Resources Defense Council v. City of New York, 672 F.2d 292, 299 (2nd Cir. 1982).

Since historic resources are a component of the environment protected by NEPA, Preservation Coalition v. Pierce, 667 F.2d 851, 858 (9th Cir. 1982), a Federally funded project impacting such resources will be subject to two parallel review processes, the EIS process under NEPA and the consultation process required by NHPA.*fn3

Under § 4(f) of the Transportation Act, 49 U.S.C. § 303(c).*fn4 Federal funding of a transportation project that adversely effects a historic site cannot be approved unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. § 4(f) protects resources eligible for the National Register. However § 4(f) does not apply to an archeological resource that is "important chiefly because of what can be learned by data recovery and has minimal value for preservation in place." 23 C.F.R. § 771.135(g)(2).

Where NEPA and NHPA require only that a project consider alternatives that mitigate harm to historic resources, § 4(f) prohibits use of a historic site unless its conditions are met. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). Since Federally funded transportation projects are often subject to NEPA's procedural requirements and the substantive requirements of § 4(f), an agency implementing such a project may opt to document its efforts to comply with § 4(f) in the Project's EIS. Thus, the FEIS in the present case addresses § 4(f) requirements with regard to the Inner Harbor Project.

II. BUFFALO INNER HARBOR PROJECT

The Inner Harbor Project, a component in a broader scheme for developing Buffalo's waterfront, incorporates a variety of improvements on a tract of land that adjoins the waterfront. New York State Urban Development Corporation, doing business as Empire State Development Corporation ("ESDC"), as the lead agency with regard to environmental review, prepared the Final Environmental Impact Statement ("FEIS") for the Inner Harbor Project. The goals of the Project are: 1) enhancement of access to and transportation options at the Inner Harbor; 2) encouragement of recreational use of the Project site and private development of adjoining properties; and 3) enhancement of the attractiveness of the location. (FEIS, at ES-4, 5.) The FEIS addresses a range of environmental issues, including land use, socioeconomic factors, coastal zone management, navigable water, air quality, noise hazardous materials and the visual quality of the setting. (Id., at i — iv.) However, Preservation Coalition's claims focus on the Project's impact on cultural and historic resources.

The Project site is bounded by Main Street, Hanover Street, Pearl Street, Marine Drive, Marine Court and the Buffalo River. According to Preservation Coalition, it is one of the most significant historic locations in Western New York.

Historically, the Erie Canal terminated at the Buffalo River within the Inner Harbor project site and was connected to the river by two canal slips known as the Commercial Slip and the Prime Slip, both of which are located within the Inner Harbor Project site.

(Complaint ¶ 22.) The site was the locus of much of the earliest commercial, residential and industrial development in Buffalo's history. It was a critical juncture in the route that commercial vessels took from the Great Lakes to central and down-state New York via the Erie Canal and a jumping off point for much 19th Century migration to mid-western United States via the Great Lakes. (Item no. 2, Tielman aff. ¶ 27.)

Preservation Coalition asserts that a variety of resources exist intact at the Project site, including structural remains of the Commercial Slip, and Prime Slip, historic streets such as Lloyd and Hanover Streets, side-walks and foundation remains of buildings and other structures bordering on those streets. It argues that these resources can and should be preserved in place. (Complaint ¶ 24.)

The FEIS acknowledges the historic significance of the Project site, noting that:

[t]he proposed site of the Inner Harbor project has a rich and complex history which embraces the entire history of the City of Buffalo, including early habitation by a number of Native American groups, European entry into the region in the 17th century and eventual occupation of Western New York in the 18th century. The greatest level of activity on the site occurred in the middle and late 19th century, with the construction of an extensive canal system that included the Erie Canal, a network of local feeder canals and slips, and the development of Buffalo as a transshipment center for grains and other goods. Early maps and photographs of the project site depict a complex system of canals, slips, and streets, and an active and varied warehousing area.

(FEIS, 6-4 to 6-5.) However, although Defendants agree that the site is historically significant, they vigorously contest the Coalition's assertion that there are extensive historic resources extant at the site. Thus, Warren Barbour, Ph.D., an archeologist with the firm of Dean and Barbour, which has been involved in evaluating those resources since shortly after the inception of the Inner Harbor Project, concludes that:

a quiet, peaceful, historic city [does] not lay below [the Project site] waiting to emerge. To the contrary, the Project area, like . . . [other historic sites] that I have worked at over the last thirty-four years, had been built, torn down and rebuilt multiple times over the course of its history and with a look more to the future than a concern for the past.

(Item no. 10, ex.2 ("Barbour aff.") ¶ 8.)

III. ARCHEOLOGICAL EXPLORATION AT THE INNER HARBOR SITE

Dr. Barbour's firm was commissioned to conduct archeological exploration in order to determine the likely extent of historic resources at the Project site. That exploration has proceeded in stages. At the conclusion of each stage, Dr. Barbour reported his findings and recommendations and ESDC, in consultation with SHPO, reviewed Dr. Barbour's report and defined goals and parameters for the next stage.

The first stage in Dr. Barbour's work, termed "Stage IA," involved a literature search, to ascertain the types of resources that have been described on maps, in contemporary newspaper, journals and other writings, and in secondary sources. Based on that literature search, Dr. Barbour determined that resources likely to be found sub-surface at the site included taverns, brothels, light industry, remnants of Commercial and Prime Slips and other artifacts related to 19th century lake transport. (Barbour aff. ex. A, at 10-15.) He concluded that, although "the majority" of these structures were likely demolished during urban renewal in the 1950's, "lower layers and foundations of buildings from the 1830 through 1860 period are likely to be intact in over 50 per cent of the project area" and Prime Slip also was likely to be intact. (Id., at 2, 11-1 6.) He therefore recommended that sub-surface exploration be done to assess the extent of recoverable historic resources. (Id., at 39.)

Sub-surface exploration was eventually done in three successive stages: Stages IB and II, which were completed prior to the FEIS, and Stage III, which took place after the FEIS was issued. As noted in the FEIS, "[t]he Stage IB Investigation indicated that historic cultural resources related to the early commercial center of Buffalo both exist and are recoverable on the project site;" and "Stage II indicated evidence that intact resources exist in various locations on the project site, including those associated with former industrial operations, canal resources (e.g. Commercial Slip and Prime Slip), as well as evidence of former residential inhabitation on the project site." (FEIS, at 6-5, 6-6.)

The Stage IA and II exploration disclosed that the area had been subjected to significant "disturbance" during periods of construction, particularly when a railroad trestle was constructed across the site in the late 19th century. That disturbance likely destroyed significant portions of the infrastructure, including streets and buildings, and called into question the integrity of remaining resources. (Barbour aff. ex. A, at 14-15, 27.) However, in his report of the findings from the "Stage II" excavations Dr. Barbour concluded:

it appears that portions of the project area may meet National Register Criteria A and D*fn5 and potentially contain data for addressing regional and national contexts. It also contains research potential to address questions concerning the structure of nineteenth century industrial and commercial development. These deposits have the potential to yield significant information on the daily workings of Buffalo's waterfront and canal system.
The project area appears to merit additional testing and appears to be eligible for inclusion in the National Register for Historic Places. [I], therefore, recommend that a Stage III archeological investigation be undertaken.

(Barbour aff. ex. D, at 2.)

IV. "NO ADVERSE EFFECT" DETERMINATION

The Field Services Bureau of the State Office of Parks, Recreation and Historic Preservation serves as New York's SHPO. (Item no. 9 ¶ 1.) On December 8, 1998, SHPO determined that the Inner Harbor Project would have "[n]o [a]dverse [e]ffect on cultural resources in or eligible for inclusion in the National Register of Historic Places." (Item no. 9 ("Kuhn aff."), ex. F.) SHPO set two conditions on its finding of "no adverse effect," that are relevant to the present motion: 1) that ESDC implement its research design for "Stage III Mitigation," which SHPO had previously approved, and 2) that ESDC consult with SHPO "regarding the status of any canal-related commercial slip remains and their appropriate treatment or incorporation into project designs." (Id.)*fn6

SHPO's finding of "no adverse effect" was premised in part on its conclusion that the "archeology exception" applied to resources at the Project site. (Kuhn aff. ¶ 10.) Regulations implementing § 4(f) provide that the statute does not apply to an archeological resource that is "important chiefly because of what can be learned by data recovery and has minimal value for preservation in place." 23 C.F.R. § 771.135(g)(2). When the exception applies, "mitigation" focuses on obtaining and recording information from the site, rather than on physically preserving the historic property. Once the information is obtained, damage to the property is not considered an adverse effect under § 4(f). Thus, Robert D. Kuhn, Ph.D., who was responsible for SHPO's review of the Project, refers to "Phase III*fn7 data recovery excavations designed to mitigate impacts to . . . archeological resources." (Kuhn aff. ¶ 12.) Dr. Kuhn gives the following explanation for invoking the "archeology exception."

(Kuhn aff. ¶ 5.)

Preservation Coalition contends that this explanation is premised on a false dichotomy, in which "below ground" is equated with "archeological" and "above ground" is equated with "historic." It contends that, once SHPO adopted this false premise, its conclusion was inexorable: nothing remains above ground, hence the site's only significance is archeological. It argues that SHPO's approach ignores the significance of the project site to the history of Buffalo and the nation, and the importance of extant resources in conveying the site's place in history.

At defendants' request, Dr. Kuhn was permitted to testify, to clarify SHPO's interpretation. Although he agreed that significant historic developments occurred at the Project site, Dr. Kuhn concluded that no existing resources at the Project site had sufficient integrity to qualify as historic buildings or structures, and that the focus of investigation, with regard to National Register criteria, was on whether the site had "integrity as an archeological resource." (K24-26.)*fn8 He stated that an archeological site is a type of ...


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