access and expansion as well
as compliance with Federal Aviation Administration ("FAA") requirements.
Id. at ¶ 7. In 1971, the New York State Department of Transportation
("NYSDOT") was statutorily authorized to acquire 8,675 acres of land
adjacent to, and in the vicinity of, Stewart Airport for transportation
purposes. Id. The land was obtained in the name of the People of the
State of New York on behalf of the MTA and was obtained through both
purchase and eminent domain. Id. at ¶¶ 7 & 8. These 8,675 acres
became known as "Stewart Buffer Lands" or "Stewart Properties." Id.
In 1974, the MTA and the New York State Department of Environmental
Conservation ("NYSDEC") executed a revocable management agreement whereby
the NYSDEC would manage the Stewart Buffer Lands on behalf of the MTA.
Gorton Aff., ¶ 8. The agreement was terminable upon sixty (60) days
notice. Id. In 1982, jurisdiction over Stewart Airport, including the
Stewart Buffer Lands, was transferred from MTA to the NYSDOT. Id. at
¶ 11. After obtaining jurisdiction over Stewart Airport, the NYSDOT
chose to continue management of the property through NYSDEC. Id. A
portion of the Stewart Airport, i.e., Crestview Lake, has been managed by
the Town of New Windsor under a revocable license with the NYSDOT. Id.
at ¶ 22. This license expired in April 2002. Id. at ¶ 23.
In 1991, the New York State legislature ("the Legislature") directed
the New York State Thruway Authority ("NYSTA") to acquire I-84. The
Legislature transferred ownership of I-84 from the State of New York and
the NYSDOT to the NYSTA effective March 19, 1992. In 1992, the
Legislature also directed the NYSTA to undertake a project to provide
direct access to Stewart Airport from I-84. Waite Aff. (Docket No. 31),
¶¶ 8 & 10. In 1992, the NYSDOT and the federal government issued
a Final Environmental Impact Statement ("FEIS") analyzing proposals for
the development of Stewart Airport. The development project was not
implemented. Gorton Aff., ¶ 12. Intervening events, including the
1998 privatization of Stewart Airport and the permanent transfer of 5,
264 acres of the Stewart Properties rendered the 1992 FEIS obsolete.
Thus, the State and Federal Defendants prepared new project proposals for
improved access to Stewart Airport. See Def. Statement of Material Facts
(Docket No. 31), ¶¶ 11 & 14.
On December 10, 1997, the State and Federal Defendants published a
Notice of Intent to prepare an Environmental Impact Statement ("EIS")
relating to the improvement project in the Federal Register. Notices of
Scoping meetings were sent out on December 12, 1997 and two scoping
meetings were held on January 14, 1998. On April 5, 1999, a Draft
Environmental Impact Statement ("DEIS") was released. On April 9, 1998,
a Notice for a Public Hearing and availability of the DEIS was published
in the Federal Register. On May 12, 1998, a public hearing was held and
comments on the DEIS were allowed until June 1, 1999. See id. at §§
After comments were received, the State and Federal Defendants made
revisions to the DEIS. On April 14, 2000, the State and Federal
Defendants released a FEIS, which selected Alternative 5b, Option 3 as
the preferred design ("the Project"). The Project consists of: (1) a new
diamond interchange at I-84 and Drury Lane at the existing Drury Lane
overpass; (2) a new four-lane east-west connector roadway from Drury Lane
to "C" Street; (3) reconstructing "C" Street to four lanes with a
landscaped median; (4) modifications to Bruenig Road at the "Loop" in
from the Stewart Airport passenger terminal' (5) widening of Drury Lane
to four lanes
between the new I-84 interchange and the new east-west
connector roadway; and (6) improvement to and/or realignment of the
two-lane section of Drury Lane from I-84 to Route 17K and from the new
east-west connector roadway to Route 207. Gorton Aff., ¶¶ 17-18;
Nardone Aff., ¶ 4; Waite Aff., ¶¶ 13-14. On June 23, 2000, the
Federal Defendants issued a Record of Decision documenting their decision
to select Alternative 5b, Option 3. On July 11, 2000 and February 1,
2001, the State Defendants issued their Records of Decision documenting
their selection of Alternative 5b, Option 3.
This action followed.
II. Standard of Review
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate only
where "there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law." The moving
party bears the burden to demonstrate through "pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any," that there is no genuine issue of material fact.
F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To defeat a motion for
summary judgment, the non-movant must "set forth specific facts showing
that there is a genuine issue for trial," and cannot rest on "mere
allegations or denials" of the facts submitted by the movant.
Fed.R.Civ.P. 56(e); see also Rexnord Holdings, Inc. v. Bidermann,
21 F.3d 522, 525-26 (2d Cir. 1994). When considering a motion for
summary judgment, the court must resolve all ambiguities and draw all
reasonable inferences in favor of the non-movant. Nora Beverages, Inc.
v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
This action is a review of an agency decision and therefore, is
governed by the Administrative Procedure Act ("APA"). See Sierra Club
v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988). Under the APA, the
court's review is generally limited to determining whether an agency's
decision was arbitrary, capricious or not in accordance with law. See
5 U.S.C. § 706.*fn1 In determining whether an agency's decision was
arbitrary or capricious, "a court may not substitute its judgment for
that of [the] agency." Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 216 (1971) (internal quotations and citation
omitted). Rather, the court must only determine "whether the agency's
decision `was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.'" State of N.Y. Dep't
of Social Servs. v. Shalala, 21 F.3d 485, 492 (2d Cir. 1994) (quoting
Motor Vehicle Mfrs. Ass'n. of the U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
Within the context of NEPA and SEQRA, the scope of review is narrow.
See Strycker's Bay Neighborhood Council v. Karlem, 444 U.S. 223, 227
(1980). The court's review is limited to a determination of whether the
agency took a "hard look at environmental consequences." Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quotation marks
and citation omitted); see also Akpan v. Koch, 555 N.Y.S.2d 16, 20
(1990). NEPA does not mandate a particular result, "but simply
prescribes the necessary process." Robertson, 490 U.S. at 350 (citations
omitted). SEQRA also gives "agencies considerable latitude [in]
evaluating environmental effects and [in] choosing between alternative
measures." Akpan, 555 N.Y.S.2d at 20.
Similarly, while the requirements of section 4(f) of the Department of
Transportation Act are stringent, the court's review is limited to
determining whether the Secretary of Transportation's decision was wholly
unreasonable or whether the Secretary failed to follow the necessary
procedural requirements. See Adler v. Lewis, 675 F.2d 1085, 1091 (9th
Cir. 1982); see also National Parks & Conservation Ass'n v. F.A.A.,
998 F.2d 1523, 1532 (10th Cir. 1993).
III. Section 4(f) of the Department of Transportation Act
Plaintiffs contend that the Secretary of the Department of
Transportation violated section 4(f) of the Department of Transportation
Act when he determined that the Stewart Buffer Lands and the Crestview
Lake Property were not entitled to section 4(f) protection.
Section 4(f) of the Department of Transportation Act states in
The Secretary [of Transportation] may approve a
transportation . . . project . . . requiring the use
of publicly owned land of a public park, recreation
area, or wildlife and waterfowl refuge of national,
State, or local significance . . . only if . . . there
is no prudent and feasible alternative to using that
land; and the . . . project includes all possible
planning to minimize harm to the park, recreation
area, wildlife and waterfowl refuge. . . .
49 U.S.C. § 303(c).
In order for land to be afforded section 4(f) protection, two
conditions must be met. "[F]irst, . . . the land must be publicly owned,
and second, the land must be from one of the enumerated types of publicly
owned land. . . ." National Wildlife Fed. v. Coleman, 529 F.2d 359, 370
(5th Cir. 1976); see also Geer v. FHA, 975 F. Supp. 47, 67 (D.Mass.
1997). Here, there is no dispute that the land in question is publicly
held. Indeed, it is owned by NYSDOT. The issue is whether any or all of
the Stewart Buffer Lands or the Crestview Lake Property were designated
or administered as a public park, recreational area or wildlife and
waterfowl refuge. See National Wildlife Fed., 529 F.2d at 369-71; see
also Ringsred v. Dole, 828 F.2d 1300, 1304 (8th Cir. 1987).
A. The Stewart Buffer Lands
The parties do not dispute the following facts: In 1971, the MTA
became the owner of approximately 8,675 acres that became known as the
Stewart Buffer Lands. In 1974, the MTA agreed to permit approximately
7,000 acres to be used for hunting,
trapping and fishing. This land
became known as the Stewart Airport Cooperative Hunting Area to be
managed by NYSDEC. See Docket No. 51, Exs. 4 & 29. In 1982,
ownership of the Stewart Buffer Lands was transferred to NYSDOT. In
1983, the NYSDOT continues the cooperative agreement with NYSDEC pursuant
to N.Y. Envtl. Conserv. Law § 11-0501. Id. at Ex. 1. From 1974 to
the present, the Stewart Airport Cooperative Hunting Area has been widely
used for hunting, trapping and fishing. See id. at Ex. 11.*fn2
Plaintiffs contend that despite the fact the Stewart Buffer Lands were
initially acquired for transportation, their historical use as a public
park, recreation area and wildlife refuge entitle the land to section 4(f)
protection. Plaintiffs rely upon two cases holding that where publicly
held land is designated or administered either formally or informally as
a park, recreation area or wildlife refuge, it is entitled to section
4(f) protection. See National Wildlife Fed'n, 529 F.2d at 370; Geer, 975
F. Supp. at 67. These cases, however, do not support a finding that the
Stewart Buffer Lands are entitled to section 4(f) protection.
In National Wildlife Fed'n, the issue was whether the proposed
construction of a highway used land that was a refuge for the Mississippi
Sandhill Crane, an endangered species. The Court held that the land was
not designated or administered, either formally or informally, as a
wildlife refuge and therefore, was not entitled to section 4(f)
protection. 529 F.2d at 370. The mere presence of the crane was
insufficient to establish the land as a type enumerated under the
statute. Here, the Stewart Buffer Lands are not home to any endangered
In Geer, the court determined that neither the state nor the state's
conservation agency had formally designated the Charles River Basin as a
park and therefore, it was not entitled to section 4(f) protection. 975
F. Supp. at 68-69. There was no discussion of what the court meant by
informal administration as a park or recreation area.*fn3
Here, there has been no formal designation of the Stewart Buffer Lands
as park or recreational land. Furthermore, the cooperative agreement
entered into by MTA and the NYSDEC, then subsequently between NYSDOT and
NYSDEC, did not alter the designation of the land. It was always held
for transportation purposes. In fact, Plaintiffs do not dispute this.
Rather, Plaintiffs contend that the management of the Stewart Buffer
Lands by NYSDEC created an informal administration of a park,
recreational area and wildlife refuge.
The cooperative agreement was entered into pursuant to N.Y. Envtl.
Conserv. Law § 11-0501. Nothing in the statute changes the
designation of lands that are the subject of such cooperative
agreements. Rather, the purpose of the statute is to allow for
controlled hunting and fishing on lands that would not otherwise be
available to the property and to manage what the statute refers to as
wildlife areas. See N.Y. Envtl. Conserv. Law § 11-0303; Docket No.
51, Ex. 3. Thus,
NYSDOT entered into a management agreement with NYSDEC
for NYSDEC to control the wildlife population and to permit interim use
of the land by the public. It did not formally or informally administer
the land as a park, recreational area or wildlife refuge.
Indeed, the only two cases this Court could find on point supports the
proposition that simply because the Stewart Buffer Lands were temporarily
used for hunting, does not change their character. See Collin County,
Texas v. Homeowners Ass'n for Values Essential to Neighborhoods,
716 F. Supp. 953, 971-72 (N.D.Texas 1989), vacated on other grounds,
915 F.2d 167 (5th Cir. 1990); Citizens Envtl Council v. Volpe,
364 F. Supp. 286, 295 (D.Kansas), aff'd, 484 F.2d 870 (10th Cir. 1973).
Once the land was purchased for transportation purposes, the mere fact
that the owners of the property permitted interim use does not entitle
the land to section 4(f) protection. To hold otherwise would discourage
government agencies to permit such interim use.
Plaintiffs further contend that the FHWA's determination that the
Stewart Buffer Lands were not entitled to section 4(f) protection was
contradicted by the Secretary of the Department of the Interior ("DOI").
Indeed, in a letter December 13, 1990, the DOI stated that it did "not
entirely agree" with the position that the Stewart Properties were not
subject to section 4(f) protection merely because of the terminable
nature of the cooperative agreement. Docket No. 51, Ex. 19.
Specifically, the DOI stated that "[f]or all practical purposes, the
Properties are now a significant publicly-owned recreation and wildlife
management area. . . ." Id.
Pursuant to regulations, the FHWA determines the application of section
4(f). See 23 C.F.R. § 771.135(b). While the FHWA must seek the
advice and opinions of the agencies with jurisdiction over the land in
question, it is the responsibility of the FHWA to determine the
reasonableness of such advice and to make the final determination. See
Geer, 975 F. Supp. at 67 (citations omitted). Since the proper
procedures to determine the applicability of section 4(f) were followed,
it cannot be said that the determination that the Stewart Buffer Lands
were not entitled to section 4(f) protection was arbitrary or
Accordingly, the Federal Defendants' motion for summary judgment on
this ground is granted and Plaintiffs' cross-motion for summary judgment
on this ground is denied.
B. Crestview Lake Property
In 1975, Charles Martin, the Stewart Airport Director, offered the
Crestview Lake Property to the Town of New Windsor ("the Town") under a
two year lease with a three year option for renewal. Docket No. 51, Ex.
34. When negotiations for renewal began, the Town sought "an insertion
in the lease that the proposed master plan for the airport to be
promulgated in or about the Spring of 1979 will endeavor to plan for the
continued usage of the Crestview Lake facility as a recreation facility
of the Town. . . ." Id. at Ex. 35. There is no evidence in the record
that this provision was added to the lease in 1978. Furthermore, there
is no evidence in the record that a 1979 master plan created a park or
In 1982, the Town signed a 20 year lease for the Crestview Lake
property and named it the Charles Martin Recreation Facility. Id. There
is no provision in the 1982 lease creating a park or recreational area.
See Meyers Aff. (Docket No. 31), Attachment A. Since the beginning of
the lease, the Charles Martin Recreation Facility has undergone
improvements such as tennis courts, barbeque grills, picnic tables and a
snack bar. Id. Crestview Lake
continues to be operated by the Town and
permits swimming, boating, fishing and picnicking. Id. at Ex. 33.
Similar to the Stewart Buffer Lands, there is no evidence in the record
that the owners of the Crestview Lake Property ever designated or
administered the land as a park or recreational area. The land was
originally purchased for transportation purposes and the Town's
supervisor stated that the lease never conferred any rights on the Town
to use the property for park or recreational purposes after the lease
expired in April 2002. See Meyer Aff., ¶ 6. Accordingly, this Court
cannot hold that the determination that the Crestview Lake Property was
not entitled to section 4(f) protection was arbitrary or capricious.
See, e.g., Falls Road Impact Comm. Inc. v. Dole, 581 F. Supp. 678, 686-89
(E.D. Wisc. 1984) (court should look at the purpose of the original
purchase and whether the owners of the land converted the designation).
Accordingly, the Federal Defendants' motion for summary judgment on
this ground is granted and Plaintiffs' cross motion on this ground is
IV. NEPA and SEQRA Claims
Plaintiffs bring seven causes of action pursuant to NEPA and SEQRA.
Specifically, Plaintiffs allege that: (1) Defendants ignored and
manipulated relevant traffic data used in the EIS and FEIS (Counts Two
and Three); (2) Defendants improperly segmented the environmental review
of the I-84 and Drury Lane interchange and the I-84 and I-87 interchange
(Counts Four and Five); and (3) Defendants failed to consider the growth
and cumulative impacts of other projects that are contemplated and in
conjunction with the Project (Counts Six and Seven).
A. Requirements of NEPA and SEQRA
The two goals of NEPA are to ensure that agencies take a "hard look" at
the environmental consequences of proposed action and to make information
available to the public. See Robertson v. Methos Valley Citizens
Council, 490 U.S. 332, 350 (1989). To achieve these goals, NEPA requires
agencies to follow specific procedures to determine what, if any, impact
agency action will have on the environment. See City of New York v.
Department of Transp., 715 F.2d 732, 747-48 (2d Cir. 1983). One
requirement is the preparation of an EIS whenever a federally funded
project significantly affects the environment. 42 U.S.C. § 4332.
Although this requirement "may effect substantive decision[s], NEPA does
not mandate particular substantive outcomes." Knaust v. City of
Kingston, New York, No. 96-CV-601, 1999 WL 31106, at *4 (N.D.N.Y. Jan.
15, 1999) (Scullin, J.). Thus, this Court's inquiry is limited to
whether the federal agencies reviewed all relevant factors involving
environmental impacts and "whether there was a clear error of judgment."
Motor Vehicle Mfr. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. at
43; see also Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223,
Similar to NEPA, the purpose of SEQRA is "to inject environmental
considerations directly into governmental decision making." Matter of
Coca-Cola Bottling Co. v. Board of Estimate, 536 N.Y.S.2d 33, 35 (1988).
Pursuant to the statutory procedure, a [DEIS] is
prepared and, after a comment period and any public
hearings deemed necessary by the agency, is
reevaluated to determine in what way, if any, the EIS
should be revised or supplemented so as to adequately
address issues raised by the comments. The agency
then files a [FEIS] and, after a final comment period
and any appropriate public hearings, the agency must
make express findings that SEQRA's requirements have
Akpan, 555 N.Y.S.2d at 19-20 (internal citations omitted).
Unlike NEPA, "SEQRA also imposes substantive requirements delineating
the content of the EIS and requiring the lead agency to act and choose
alternatives which, consistent with social, economic and other essential
considerations, to the maximum extent practicable, minimize or avoid
adverse environmental effects." Id. at 20 (internal citation and
quotation marks omitted). Thus, the Court's review is limited to
determining whether the procedural requirements were followed and
"whether the agency identified the relevant areas of environmental
concern, took a `hard look' at them, and made a `reasoned elaboration' of
the basis for its determination." Id. (quoting Matter of Jackson v. New
York State Urban Dev. Corp., 503 N.Y.S.2d 298, 304 (1986)).
With these standards in mind, the Court turns to the specific
B. Traffic Data
One stated goal of the Project is to provide improved access to Stewart
Airport and to divert airport bound traffic from the local roads, thereby
minimizing the Project's environmental impact. Nardone Aff. (Docket No.
34), ¶ 4; Levine Aff. (Docket No. 37), ¶ 9. Presently, traffic
bound for Stewart Airport can only gain access via local streets. Both
the DEIS and the FEIS assumed that the proposed I-84 and Drury Lane
interchange would be used by 90% of the airport related traffic and the
remaining 10% would continue to use local streets. Plaintiffs contend
that when Defendants learned that this so-called "traffic assignment"
data was erroneous, they ignored proper data and failed to properly
represent the traffic effects to the public.
With respect to the erroneous data, the record demonstrates that the
traffic data gathered for the Project included manual and automated
traffic counts, traffic analyses, traffic flow mapping and traffic
modeling. Meyer Aff., ¶¶ 7-11. Plaintiffs, however, allege that the
data was erroneously gathered. In support of this allegation, Plaintiffs
refer to an October 7, 1999 memo by consultant Adenrele Oshodi ("Oshodi")
in which he states: "My dilemma centers on how to reconcile the
inconsistencies or remove any ambiguity in the document . . . and avoid
creating a new round of traffic generation to account for all foreseeable
developments which would mean redoing the traffic analyses for all the
alternatives considered." Docket No. 51, Ex. 114, p. 2. Plaintiff,
however, take this statement out of context. An entire reading of the
memo reveals that Oshodi was commenting on the DEIS as well as addressing
issues raised by public comment. Oshodi even refers to Plaintiffs'
expert Lawrence Levin's ("Levin") concerns with the traffic data. The
memo represents Oshodi's deliberative process in determining what needed
to be done to assure an accurate result. Indeed, Oshodi has submitted an
affidavit on behalf of Defendants affirming that the traffic data was
compiled using accepted methodology. See Oshodi Aff. (Docket No. 31),
¶ 6. Thus, the memo does not, as Plaintiffs suggest, demonstrate an
effort by Defendants to manipulate data. Accordingly, Plaintiffs'
contention is rejected.
Plaintiffs also allege that Defendants ignored and improperly withheld
from the public contrary traffic assignment
data from the Newburgh-Orange
County Transportation Council ("NOCTC"), which opined that the traffic
assignment was 60/40%. The record, however, demonstrates that Defendants
did consider NOCTC's analysis. See Docket No. 49, Ex. 18. At worst,
Defendants believed the analysis was flawed and relied upon the advice of
their own experts and consultants. Defendants are completely within
their discretion to rely on such advice. See Marsh v. Oregon Nat'l
Resources Council, 490 U.S. 360, 378 (1989) ("When specialists express
conflicting views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if, as an original
matter, a court might find contrary views more persuasive.").
Nonetheless, the record suggests that Defendants' consultants actually
believed that the NOCTC's study actually supported their own analysis.
Defendants' consultants and experts opined that if other facts not
included in the NOCTC's study, such as driver behavior and proper
signage, were considered, the two analyses are statistically consistent.
See Docket No. 49, Ex. 14; see also Peters Aff. (Docket No. 40), ¶
16. Since the NOCTC's report was a routine project quality assurance
check and since Defendants' believed the statistical analyses were
consistent, it was not arbitrary or capricious or clear error not to
include it in the public record. Cf. County of Suffolk v. Secretary of
the Interior, 562 F.2d 1368, 1378 (2d Cir. 1977) ("An EIS is required to
furnish only such information as appears to be reasonably necessary under
the circumstances for evaluation of the project rather than to be so
all-encompassing in scope that the task of preparing it would become
either fruitless or well nigh impossible.") (quotation marks are
citations omitted). Therefore, Plaintiffs' allegation that Defendants'
intentionally withheld the information is not supported by the record.
Finally, Plaintiffs allege that the Defendants used erroneous and
arbitrary truck traffic in determining the environmental impact of the
Project. Specifically, Plaintiffs allege that the analysis that the
percentage of trucks will go down between the years 2015 and 2022 has no
basis in the record. Levine affirms that "[g]iven the large amount of
industrial development planned for the area, truck numbers will continue
to increase, not decrease." Levine Aff., ¶ 46 (internal citations
omitted). Defendants, however, correctly point out that Levine
interchanges the percentage of trucks and the number of trucks.
Defendants affirm, and this Court agrees, that "[a] reduction in the
percentage of trucks from 4% to 2% does not correspond to a 50% reduction
in the number of trucks." Peters Aff., ¶ 21. Defendants further
explain that the Project will increase the volume of other vehicles,
therefore, while the number of trucks will increase, the percentage of
trucks will decrease. Id. Thus, Defendants' determination of the
percentage of trucks will decrease was not erroneous or arbitrary.
Accordingly, Defendants' motions for summary judgment on this ground
are granted and Plaintiffs' cross-motion for summary judgment on this
ground is denied.
C. Segmentation of the Project and Reconstruction of I-84 and I-87
Plaintiffs allege that Defendants violated NEPA and SEQRA by segmenting
the environmental review of the Project from the environmental review of
a proposed interchange between I-84 and I-87. Segmentation is "the
division of the environmental review of an action such that various
activities or stages are addressed . . . as though they were
independent, unrelated activities, needing individual determination of