NEPA Brief on Merits 06 04 2009

-1-

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF MICHIGAN

Julie WeissNicole MoonEmma KinnardJames H. DuncanLea’Anna LoceyScott Elliott andRonnie Whitelow,

Plaintiffs,

-vs-

Dirk Kempthorne, Secretary,U.S. Department of the InteriorMary A. Bomar, Director,National Park ServiceErnest Quintana, RegionalDirector, National Park ServiceRebecca A. Humphries, Director,Michigan Department of NaturalResources andCity of Benton Harbor, MI,

Defendants.

)

) Case No. 1:08-cv-01031-RHB

)

)

)

)

)

)

)

)

)

)

)

* * * * *

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Now come Julie Weiss, Nicole Moon, Emma Kinnard, James H. Duncan,

Lea’Anna Locey, Scott Elliott and Ronnie Whitelow, Plaintiffs herein,

by and through counsel, and move for an award of summary judgment on

their First Amended Complaint on the ground that there are no genuine

issues of fact and they are entitled to judgment as a matter of law.

/s/ Terry J. Lodge Terry J. Lodge, Esq.Ohio Bar No. 0029271316 N. Michigan St., Ste. 520Toledo, OH 43604-5627(419) [email protected] Counsel for Plaintiffs

Case 1:08-cv-01031-RHB Document 105 Filed 06/04/2009 of 49

-2-

MEMORANDUM IN SUPPORT

This lawsuit arises under the National Environmental Policy Act,

as amended (“NEPA”), 42 U.S.C. § 4321 et seq., and its implementing

regulations, 40 C.F.R. Parts 1500-1508. Plaintiffs also claim viola-

tions of the Land and Water Conservation Fund Act of 1965 (“L&WCFA”),

16 U.S.C. §§ 460l-4 through 460l and its regulations at 36 C.F.R. §§

59.1 through 59.3.

In their First Amended Complaint, Plaintiffs challenge two

separate, but related, administrative decisions: (1) The Department of

the Interior, National Park Service’s (“NPS”) decision permitting the

conversion of 22.11 acres of land located in Benton Harbor, Michigan

in the City’s Jean Klock Park for a private golf course development

project known as Harbor Shores; and (2) the issuance of a permit by

the Army Corps of Engineers (“Corps”) which authorizes the discharge

of fill material into 3.31 acres of wetland in the Park the covering

of a streambed and building aquatic features and wetlands as part of

the overall development. Plaintiffs allege that both the NPS’ and the

Corps approval processes were inadequate.

The development project was led at the local level by the City of

Benton Harbor (“Benton Harbor”) and Harbor Shores Community Redevelop-

ment, Inc. (“HSCRI”), a non-profit corporation. The conversion allows

construction of three golf holes in the Park which are part of a

privately-owned and managed 18-hole course. The conversion of the Park

via a lease between the City and HSCRI is at issue in this case.

NPS's jurisdiction stems from a 1977 L&WCFA federal grant for

improvements to the Park, acceptance of which then “federalized”

protections for preserving the Park’s integrity.


-3-

On June 26, 1977 the Michigan Department of Natural Resources

(“MDNR”) submitted the first version of the conversion proposal to

NPS, which was rejected because of concerns about the lease between

the City and Harbor Shores and the sufficiency of the public

participation. Thereafter, the City and Harbor Shores restructured the

lease, finally disclosed documents to the public concerning the par-

ticulars of the project and held a formal public comment period. The

revised proposal was submitted to NPS on June 16, 2008, and NPS

approved it on July 25, 2008. Separately, the Corps issued a § 404

permit to HSCRI on August 29, 2008, authorizing wetlands fill and the

aforementioned aquatic structures to be built.

On August 12, 2008, Plaintiffs filed their original Complaint in

U.S. District Court for the District of Columbia. The matter subse-

quently was transferred to the U.S. District Court for the Western

District of Michigan, and the Complaint was amended to add the Army

Corps of Engineers and the federal Advisory Council on Historic

Preservation as Defendants. The amendment included allegations under §

404 of the Clean Water Act (33 U.S.C. § 1344 et seq.), and § 106 of

the National Historic Preservation Act (16 U.S.C. § 270 et seq.). The

suit is now before the Court for a merits determination.

STANDARD OF REVIEW

This lawsuit is an administrative appeal from the determinations

of two federal agencies, and is governed by the Administrative Proce-

dures Act. The Court must uphold the challenged actions unless it they

are "arbitrary, capricious, an abuse of discretion, or otherwise not

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

I. THE PROJECT WAS A ‘MAJOR FEDERAL ACTION’ WHICH REQUIRED


-4-

AN ENVIRONMENTAL IMPACT STATEMENT, NOT AN EA/FONSI

All federal agencies must prepare a detailed environmental impact

statement (“EIS”) on every proposal for a major federal action which

would “significantly affect the quality of human environment.” 42

U.S.C. § 4332(2)(C). According to 40 C.F.R. § 1508.18, a “major

federal action” includes “actions with effects that may be major and

which are potentially subject to Federal control and responsibility.”

“Major” is used interchangeably in the NEPA regulations with

“significantly.” “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.

Theis case involves use of the environmental assessment (“EA”),

described as a "rough-cut, low-budget environmental impact statement."

Cronin v. U.S. Dept. of Agriculture , 919 F.2d 439, 443 (7th Cir.

1990). It "[a]ids an agency's compliance with [NEPA] when no

environmental impact statement is necessary," 40 C.F.R. § 1508.9

(a)(2), and provides "evidence and analysis for determining whether to

prepare an environmental impact statement...." 40 C.F.R. § 1508.9(a)

(1). The EA functions as "a screening device,” Preservation Coalition,

Inc. v. Pierce, 667 F.2d 851, 858 (9th Cir. 1982), to decide whether

the next step will be the preparation of an EIS. Charter Township of

Huron Mich. v. Richards , 997 F.2d 1168, 1174 (6th Cir. 1993).

In deciding on the basis of an EA whether the proposed action

“significantly” affects the quality of the environment, the agency

must look at both the "context" of the action and its "intensity." 40

C.F.R. § 1508.27(a) and (b). Concerning “intensity”, the Sixth Circuit

has noted, “This choice of adjectives is significant ... one speaks of


-5-

the severity of adverse impacts, not beneficial impacts.” Friends of

Fiery Gizzard v. Farmers Home Administration, 61 F.3d 501, 504 (6th

Cir. 1995).

a. Harbor Shores’ environmental impacts are ‘significant’

Defendants essentially produced two mitigated “findings of no

significant impact” (FONSI) by concluding that following mitigation of

the appropriation of parkland and the damaged and pollution associated

with the aquatic structures, there would supposedly be significant

environmental impacts. These results were achieved by ignoring logi-

cal scoping considerations, by segmenting, and by misstating the

physical impacts of the conversion and overall development project.

The conversion proposal within the Park encompasses the destruc-

tion of existing roadways and building of new, paved roads, including

a new access road to the beach; construction of an entirely-new paved

parking lot at the south end of the beach, curving through a new cut

through the dunes and turning to parallel the beach; obliteration of a

7-year-old boardwalk at the base of the dunes; building a new parking

lot at the north end of the park parallel to the lakeshore; destroying

a sizable existing parking lot east of the dune ridge; paving golf

cart paths; filling wetland acreage among the golf holes; eradicating

dozens of mature trees for the golf fairways; destroying an ancient

brick roadway and historic landscaping (rows of historic cottonwood

trees); and excavating and backfilling at least 18,000 cubic yards of

soil on the eastward slope of the dune ridges.

NPS’ “L&WCF Grants Manual” § 650.2(9)(A) (DOI R. 2781, 2894) says

an EIS is indicated when “[m]arshes, or wetlands, unique animal or

plant ecosystems ... are affected significantly;” and when “the


1At p. 23 [replace with DOI reference] of the “Environmental Assessment Analysisfor the Conversion Area in Jean Klock Park”, Benton Harbor states that “[a]pproximate-ly 890 cubic yards of fill will be placed within the proposed 0.18 acres of wetlandimpact,” and “[a]t Golf Hole #7, approximately 0.09 acres of emergent wetland will beimpacted with 450 cubic yards of fill for the construction of two tee boxes”. Id.

2“Intervenor Harbor Shores Community Redevelopment, Inc.’s Memorandum inOpposition to Plaintiffs’ Motion for Temporary Restraining Order and/or PreliminaryInjunction”, ¶ 52, filed September 30, 2008.

-6-

proposed L&WCF project would or might result in major natural or

physical changes ... with the project area or its immediate en-

virons....” The Manual’s § 650.2(7)(B) (Id. 2781, 2891) requires:

Whenever possible, an environmental impact should be quan-tified. In all cases, the level of activities involved should begiven -- number of trees to be removed, cubic yards of debris tobe removed cubic yards of fill to be required, etc. (Emphasissupplied).

Moreover, 36 C.F.R. § 59.3(d) mandates that “NPS shall be noti-

fied by the State of all proposed changes” from one L&WCFA eligible

facility to another “in advance of their occurrence.” Yet no advance

notice has been given NPS, even now, of the massive reshaping and

partial destruction of dunes which rise 60 feet above Lake Michigan.

Benton Harbor and HSCRI had no trouble quantifying and disclosing

in the conversion EA the amounts of fill which would be placed in wet-

lands;1 they had to do that for the § 404 permit. They avoided provi-

ding similar specifics on physical destruction of Park features which

did not require a specific permit. It was only through a memorandum

filed in this lawsuit2 that the public finally learned that a cut

through the dune ridge for a new beach access road and parking area

requires the removal of “approximately 275 cubic yards” of sand and

that “the existing ‘cut’ created by the current access road will be

closed through the addition of 500 cubic yards....” That same filing

also reveals (¶ 77) that 3.35 acres of the Park’s beachfront will be


3 MDNR suggested, on the eve of the public comment period, thatBenton Harbor and HSCRI “add a description of the excavation and otherwork necessary for development of the 3 golf holes/fairways to beplaced in the park.” 3/12/08 email, Houghton to HSCRI officers, DOI 1324.

-7-

converted from open sand to paved parking spaces and a new access

road. The new road and parking are shown, without any textual de-

tails, on maps. DOI R. 1852. And it was only at the October 2, 2008

hearing on “Plaintiffs’ Motion for Temporary Restraining Order” that

HSCRI finally admitted the gigantic quantity of earthen fill material

which would be dumped to replace the sand on the eastern slopes of the

dune ridge structures in the Park. HSCRI’s project manager testified

there would be a “quantity of net balancing [of] about 18,000 cubic

yards [in] a combination of cutting and filling.” TRO Tr. 206. Eight-

een thousand cubic yards equals 900 large dump truckloads, certainly a

significant and intense impact in the heart of the 73-acre Park. But

MDNR indicated on NPS screening forms that the conversion would cause

“minor impacts” to “slopes” and “landforms”; “no impacts” to water

quality/quantity; “negligible impacts” to recreation resources; “no

impacts” to minority or low-income populations (in a 94% African-

American community with the bleakest small-town poverty profile in the

state); and “no impacts” to “land/structures with history of contam-

ination/hazardous materials even if remediated.” DOI R. 94, 95. MDNR

answered “no” when asked if the project would have “significant

impacts on such natural resources ... as park ... lands.” DOI R. 94,

96.

Benton Harbor and HSCRI clung to a minimalist narrative even

after the public demanded, and MDNR suggested,3 more disclosure:

• “Grading of the existing topography will be limited and


-8-

the crest of the dune will not be altered”(DOI 1750, 1777).• “All activities associated with the golf course will occur

landward of the crest of the Dunes. The elevation of the dunes’crest will not be lowered and the protection the dunes provideagainst wind to the landward side will not be reduced”(id. 1777).

• “Only minimal grading of the site is anticipated. Dunesare a dynamic environment and even significant contour changescould be considered natural occurrence. Some fill will be broughtin, particularly to raise the area that is currently the parkinglot. This area has already been impacted” (DOI 1750, 1777).

To the dunes’ destruction should be added the permanent loss of

acres of woods and trees inside and outside the Park for the golf

course; since 2007, HSCRI has clearcut acres of century-old cotton-

wood, hardwood and other trees throughout the 530-acre project area,

on the beach side of the dunes in the Park, and atop the dunes

themselves. This was neither quantified nor mentioned in the NEPA

document. This project involves the appropriation of an obviously

valuable public asset (i.e., “dramatic views” from the dunetops in the

Park). This public decision, under NEPA, calls for transparency and

process. Mere “after” diagrams depicting as-built features do not

suffice to disclose anticipated destruction. Project proponents easily

enough proclaimed “happy news” improvements within their NEPA document

(DOI 1852) (the relocation of a pavilion, upgrades to the existing

bathhouse, etc.), but would not tell the public what negatives were

the price of this transformation.

In the Eastern District Court of Michigan, prospective bulldozer

destruction of 3.5 acres of old-growth forest for oil well test

drilling, construction of flowlines and an associated access road were

deemed sufficient impacts to

... [D]emonstrate a substantial question whether the defen-dants’ finding that the project would cause no significant en-vironmental impact is arbitrary and capricious.... In terms ofcontext, there is evidence that the project and site preparation


4HSCRI states in the “Summary Document” of its proposal: “A Signature course cangenerate the level of adjacent home sales investor attention and golfer interestnecessary to produce enough revenues to fund the improvements and community benefitsoffered by the project. A Signature course requires dramatic elements along the courseto warrant the Signature designation. The dramatic element identified for the golfcourse in Benton Harbor was the view of Lake Michigan from Jean Klock Park.” (Emphasissupplied). DOI R. 2762, 2765-66.

-9-

could affect more than just the immediate local area....

The Anglers judge then issued a preliminary injunction. Anglers of the

Au Sable v. U.S. Forest Service, Case Number 05-10152-BC (E.D. Mich.

N.D. 2005) at 13, citing Idaho Sporting Congress v. Thomas, 137 F.3d

1146, 1149-50 (9th Cir. 1998) (an EIS must be prepared if “substantial

questions are raised” about the effect of the project on environmental

quality) and Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th

Cir. 1992). “To trigger this requirement a plaintiff need not show

that significant effects will in fact occur ... raising substantial

questions whether a project may have a significant effect is

sufficient.” (Emphasis supplied). Anglers, supra 14.

b. An unlawfully narrow scope used to evade EIS

The scope of the proposal to convert Park acreage into 3 holes of

a private golf course was segmented and narrowed to avoid compiling an

EIS. Evidence of this attenuated scope is voluminous:

1) The three golf holes are, according to HSCRI, the sine qua non

of the entire Harbor Shores development.4 Since the whole project

depends upon appropriating the views from the Park, the entire project

must be deemed within the scope of NEPA to identify environmental

effects and evaluate meaningful alternatives.

2) There is a very extensive toxic contamination pollution

problem involving most of the parcels of land swapped as “mitigation”

for the acreage in the Park. In HSCRI’s “Documentation of Compliance


5See 12/13/07 MDEQ to MDNR memo (DOI R. 1327, 1340-41) wherein after reviewingthe Part 10 report, an MDEQ administrator created, without any science-based rule-making, a “site-specific recreational cleanup criteria” because the residentialstandards for public health protection were considered too high and cleanup liabilitywould center on HSCRI. This memo was preceded by emailed MDNR’s suggestions of theprecise wording to use, DOI R. 1342.

6See DOI R. 902 (12/07 phone memo); DOI R. 1327 (email from Cornerstone/HSCRI).

7“Current analysis indicates that remediation activities are required to beperformed on Park Mitigation Parcels D and F as described on Exhibit B to the ParkImprovements and Maintenance Agreement "Remediation Parcels") by Harbor Shores. Suchresponse activities and measures are necessary to mitigate arsenic exposure on theRemediation Parcels as outlined on Part 4.0 of the Document of Compliance with thePart 10 Rules dated November 2007; such remediation includes, without limitation, massexcavation, disposal of soil, concrete, debris and industrial waste, the bulk fillingof areas of the Park Expansion Property, and the installation of an isolation zone on

-10-

with Part 10 Rules” (DOI 2328) - never disclosed to the public - 6 of

the seven listed parcels (not including Parcel H) were deemed so

contaminated by experts they were declared "facilities" for regulatory

scrutiny and remediation. Id. at 2350. The report also reveals many

additional risks of toxic exposures through pathways such as contam-

ination leaching into the groundwater and venting into the Paw Paw

River (id. 2336 – 2339) and of toxic chemical inhalation potential,

id. 2337-38. But an MDEQ ad hoc decision5 rendered HSCRI not liable

for the cost burden of remediation of this dirty dirt in the

mitigation areas. DOI R. 2328, 2338. Both the contamination and ad

hoc administrative choice should have been disclosed to the public in

the NEPA document. There are details only of arsenic contamination

which appear in an MDNR letter in the application package but not in

the EA for the mitigation parcels. DOI R. 1926, 1984-85. That MDNR

letter was not included in the NEPA documentation provided the Corps.

Notably, the mitigation EA was written by HSCRI, the developer, and

not the applicant, Benton Harbor6.

3) The Lease between Benton Harbor and Harbor Shores contains a

provision (¶ 6.05) for remediation of two of the mitigation parcels7


certain areas of the Park Expansion Property." DOI R. 2149, 2169.

8“In the event that the BEA [baseline environmental assessment] is not approvedby the MDEQ and Harbor Shores does not attempt to resubmit a new BEA to the MDEQwithin one hundred eighty 180 days of receipt of the disapproval letter for theoriginal BEA, either party to this Lease may terminate this Lease by written notice tothe other party.

***** ***** *****[I]f Harbor Shores' proposed due care/remediation plan is not accepted by the

appropriate governmental bodies, Harbor Shores in its sole discretion may reviewwhether to proceed with or cease development of any portion of the Project includingthe golf course and terminate this Lease and the Park Improvements and MaintenanceAgreement without any further liability.” DOI R. 2149, 2169-70.

9Harbor Shores admitted by counsel that those plans were not complete even inSeptember 2008, HSCRI Memorandum in Opposition to TRO, ¶ 55.

-11-

which will involve “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 on

certain areas of the Park Expansion Property.” The need for this work

was explained nowhere in the NEPA document; these parcels’ proximity

to the Paw Paw River raises concern for pollution of public waterways

before, during and after the excavations. There also arise questions

about the enforceability of this clause in light of MDEQ’s absolution

of HSCRI’s liability to remediate (DOI R. 1327, 1340-41). And ¶ 6.05

of the Lease allows Harbor Shores to withdraw from the project if it

cannot achieve effective cleanup of the dirty dirt8 - significant

discretion, without any explanation whatsoever in the NEPA document.

4) The plans for this golf course/residential/commercial devel-

opment were far from complete for purposes of the public comment

period in April 2008. There was no final stormwater management plan

and no pollution prevention plan.9 The EA for the Park contained an

admittedly incomplete herpetological survey by HSCRI’s consultant for


10"Numerous other amphibians and reptiles are expected to be present within thewetlands, but time and resource constraints prevented WCR from conducting fullherpetological surveys of the parcels." DOI R. 1856, 1875.

11See, for example, the Corps of Engineers diagram of 40 monitoring wells at theformer Aircraft Components site on the Paw Paw River, upstream from the mitigationparcels, to measure radiation in groundwater plumes. DOI R. 1474, 1480.

-12-

purposes of determining impacts through changes in the wetlands,10 but

the same consultant produced a non-public, complete endangered species

survey for HSCRI’s 500 acres of development outside the Park. DOI R.

2437. It is “arbitrary and capricious” to grant federal approvals

where the requisite species inventorying is incomplete. Center for

Biol. Diversity v. BLM., 422 F.Supp.2d 1115, 1162-63 (N.D. Cal. 2006).

5) For years there have been brownfields reclamation efforts

going on within the 530-acre project area involving federal and state

money, yet none of these activities and their relationship to the

overall project and conversion were disclosed in the NEPA document.

The true extent of toxic contamination within the 530 acres was not

released to the public in the NEPA document, nor were its pollutive

effects on air, surface water and groundwater explicated.11

6) The NEPA document failed to disclose and discuss the true

history of prior conversions of Jean Klock Park land. The golf course

project is at least the third excision of land from the Park in

slightly more than a decade. There was a 2004 conversion of 3.4 acres

along Grand Boulevard in the north of the Park for a platted high-

income housing development (DOI R. 79) and a 1998 conversion called

Marram Shores, involving the sale of over an acre of Park land

containing 300' of Lake Michigan beachfront, in the northwestern

corner. DOI R. 1508. NPS approval was never sought for the Marram

conversion. Marram has never been mitigated, and represents a net loss


12See legal requirements at L&WCFA Manual, 660.2, DOI R. 2781, 3072 (precisemeasurements necessary).

-13-

of valuable beachfront parkland from the Park. When it approved the

golf course conversion, the NPS accepted a flawed § 6(f)(3) map from

Benton Harbor, in violation of L&WCFA regulations.12 Which did not show

the Marram and Grand Boulevard boundary changes to the Park. Neither

the NPS nor the public could meaningfully determine the overall

effects of the golf course conversion upon the Park as a contiguous

facility, nor what remaining parkland would be subject to L&WCFA

protections after the golf course conversion. The acreage for the e

golf holes hems in a large “doughnut hole” which is a dozen acres of

unconverted parkland west of Park wetlands pond. Disclosure within

the NEPA document of the reduced public land in the Park has not

occurred and deprives the public of facts for a meaningful decision.

7) There were actually two (2) NEPA documents in this case. The

most absurd and unmistakable evidence of the need for an EIS lies in

the NEPA presentation in the record: two separate Environmental

Assessments were compiled. The purpose of an EA is to determine

whether or not an EIS is warranted, yet the project was illegally

segmented into two distinct EAs to avoid treating the conversion and

the swapout for contaminated mitigation lands as parts of the same

transaction. “Proposals or parts of proposals which are related to

each other closely enough to be, in effect, a single course of action

shall be evaluated in a single impact statement.” 40 C.F.R. § 1502.4

(a). “[T]he lead agency is ultimately responsible for the scope of an

EIS.” L&WCFA Grants Manual, DOI R. 2781, 2946. The NPS countenanced a

ridiculous series of gambits by Benton Harbor and HSCRI to avoid NEPA;


-14-

allowing two EAs, though, was perhaps the most asinine.

The golf course is a development “magnet,” albeit situated on

polluted land, and should have been analyzed within an EIS for its

direct, indirect and cumulative effects upon the human environment and

public health. The conversion will cause permanent damage to natural

features of the Park and surrounding areas, and changes in the human

usage and the viability of unconverted portions of the Park. The very

length of the Corps’ evaluation EA (Corps. R. 1867) proves the neces-

sity for handling the overall Harbor Shores project within an EIS.

Corps regulations state that “[w]here the EA is combined with a Corps

report ... in the case of construction ..., the EA normally should not

exceed 15 pages.” 33 C.F.R. § 230.10(c). The Corps’ EA in this case is

60 pages, yet does not address the contaminated mitigation lands.

c. The project should have been deemed‘federalized’ for NEPA purposes

The centrality of the 22.11 acre conversion to the whole 530-acre

Harbor Shores development should have prompted a full-blown EIS. The

overweening importance of Park land “federalized” the development plan

for NEPA purposes. Nonfederal projects become “federalized” when

“there are aspects of the upland facility in the immediate vicinity of

the regulated activity which affect the location and configuration of

the regulated activity.” 33 C.F.R. Part 325, App. B, §§ 7(b)(2)(ii).

Cf. Stewart v. Potts, 996 F.Supp. 668 (S.D. Tex. 1998) (§ 404 permit

for impacts to 2 acres of wetlands in a golf course on a 400-acre

tract required NEPA analysis of entire tract because wetlands were

scattered throughout the proposed golf course site, filling them and

clearing upland forest for golf course were interrelated; “[T]he


-15-

Corps’ characterization of the project as a filling of the wetlands

separate and distinct from the clearing of the forest located on those

wetlands is irrational ... asinine on its face, and an impermissible

abdication of a federal agency’s duties under NEPA.” Id. at 682-83. In

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

Ariz. 2002), aff’d 381 F.3d 905 (9th Cir. 2004), the developer wanted

a § 404 permit to construct roads for a 608-acre housing development

which required filling in washes at 66 separate spots. The Corps

limited its NEPA analysis to the effect of the fills on the 7.5 acres

of impacted washes (5% of the total area). The court held that the

washes “run through the property the way lines run through graph

paper”, that the project dictated the location and configuration of

access roads, and “the development of the entire section ... is

directly dependent upon, and the product of, the Corps’ permit

action....” Thus the washes and the land were all held to be “part of

the same project,” id., and court ordered the Corps to prepare a new

EA “as though federal action included the entire project on all of”

the 608 acres of land. Id.

The Harbor Shores project was all of a piece, and the entire 530-

acre development was required to be scrutinized under NEPA.

d. The project was improperly segmented to avoid EIS analysis

The NPS erroneously believes that its regulatory interest is

limited to the federal investment under the L&WCFA and that NPS’

review consequently is focused narrowly on the proposed 22.11 acre

conversion and proper mitigation for it. This position violates NEPA

and the L&WCFA. Section 6(f)(3) (16 U.S.C. § 460l-8(f)(3)) obligates

the NPS to protect the entire parkland within the so-called “section


-16-

6(f)(3)” boundary - and to properly assess the bounded property before

deciding whether or not the conversion is appropriate. That did not

happen here, and the public is the poorer for it. Such attenuation of

the scope of the EA to the 22.11 acres within Jean Klock Park caused

unlawful segmentation of the project.

Impermissible segmentation involves a ‘major federal action’where a small part of that action has been ‘segmented’ in orderto escape application of the NEPA process. The hallmark ofimproper segmentation is the existence of two proposed actionswhere the proposed component action has little or no independentutility and its completion may force the larger or relatedproject to go forward notwithstanding the environmental conse-quences. Maryland Conservation Council v. Gilchrist, 808 F.2d1039 (4th Cir. 1986); Bragg v. Robertson, 54 F.Supp.2d 635, 649(S.D. W.Va. 1999). Courts have also required that environmentaleffects of multiple projects be analyzed together when thoseprojects will have a cumulative effect on a given region ...[Citations omitted].... Finally, multiple stages of a developmentmust be analyzed together when ‘the dependency is such that itwould be irrational, or at least unwise, to undertake the firstphase if subsequent phases were not also undertaken.’ Thomas v.Peterson, 753 F.2d 754, 759 (9th Cir. 1985).

Hirt v. Richardson, 127 F.Supp.2d 833, 841-42 (W.D. Mich. 1999), quo-

ted with approval in Anglers of the Au Sable v. U.S. Forest Service,

Case Number 05-10152-BC (E.D. Mich. N.D. 2005) at 15.

HSCRI began constructing 15 holes of the golf course on private

land long before getting approval to convert the Park land for the

final 3 holes. Golf course construction prior to conversion approval

was based on the assumption that approval would be granted; treating

the 3 golf holes as though they were a distinct project from the

remaining 15 was unlawful segmentation. Segmentation also occurred in

the artificial narrowing of the scope of the endangered species sur-

vey, the lack of disclosure for analysis of the degree of toxic con-

tamination of the mitigation parcels, and the paucity of detailed

discussion of plans for their remediation. Segmentation, though, was


13See DOI R. 1343, 12/07 email where MDNR grants manager counsels HSCRI andCornerstone about contents of EA: “ I noticed that there are notations on wetlandmitigation areas. These should be explained in a legend for the graphic or left out.As it does not directly relate to the grant program conversion and mitigationproposal; it could complicate the public review information; we're not solicitingcomments on the DEQ or Corps of Engineers permits.”

14“If major substantive issues not covered adequately in the EA are raised...,the draft EA must be rewritten to incorporate them and reissued for a second 30-dayreview. If any of the issues point to the potential for significant impacts, a Noticeof Intent (NOI) to prepare an environmental impact statement (EIS) must then beprepared and submitted through the Federal Register process.” DOI R. 909.

15“The overall project purpose must be specific enough to define the applicant’sneeds, but not so restrictive as to preclude all discussion of alternatives. . .Defining the overall purpose of a project is critical in its evaluation, and should becarefully considered.” Standard Operating Procedures for the Regulatory Program, ArmyCorps of Engineers, p. 7 (Oct. 15, 1999).

-17-

encouraged by MDNR.13

The NPS ignored rank evidence of significant environmental

impacts; allowed segmentation to avoid NEPA; refused to apply logic to

the issue of scoping; and evaded the focal role of federal permits in

enabing the project. NPS bungled badly; its own internal public

participation guidelines oblige a candid local agency response when

significant information is brought to official attention during the

public comment period.14 NPS’ decision to deny an EIS was arbitrary,

capricious and illegal, and an EIS must now be ordered.

II. NO REASONABLE ALTERNATIVES WERE DISCLOSED OR ANALYZED

The alternatives to privatization of 22.11 acres of Jean Klock

Park were bogus, unreasonable and misleading.

NEPA requires: (1) that alternatives be presented in comparative

form to provide meaningful choices to decision-makers and the public15

(40 CFR § 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 CFR § 1502.14 (b)); and

(3) that during the course of the NEPA process, no actions go forward


-18-

that have adverse environmental impacts or that would limit the choice

of reasonable alternatives (40 CFR § 1506.1, reproduced in L&WCFA

Manual, DOI R. 2781, 2918). By limiting the scope of the proposal to

the very narrow matter of converting the 22.11 acres of the Park for

golf, NPS as the lead agency allowed construction of the 15 golf holes

on private land outside the Park to go forward. NPS, the Corps and

HSCRI colluded by crystallizing the “forward play” direction of the

course, and so locking out any other alternative but the taking of

Jean Klock Park land.

All agencies shall, to the fullest extent possible, “[s]tudy,

develop, and describe appropriate alternatives to recommended courses

of action in any proposal which involves unresolved conflicts

concerning alternative uses of available resources.” 42 U.S.C. §

4322(2)(E); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519-20

(9th Cir. 1992). This necessitates looking at every alternative

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), rev’d on other grounds,

490 U.S. 332 (1989). “The existence of a viable, but unexamined

alternative renders an environmental impact statement inadequate.”

Idaho Conservation League, 956 F.2d at 1519. Agencies must “study ...

significant alternatives suggested by other agencies or the public

during the comment period.” 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 only partially satisfy the need and purpose

of the proposed project must be considered by the agency if it is


16“The overall project purpose must be specific enough to define the applicant’sneeds, but not so restrictive as to preclude all discussion of alternatives. . .Defining the overall purpose of a project is critical in its evaluation, and should becarefully considered.” Standard Operating Procedures for the Regulatory Program, ArmyCorps of Engineers, p. 7 (Oct. 15, 1999). Available athttp://www.swf.usace.army.mil/pubdata/environ/regulatory/other/sop1.pdf (accessed5/28/09).

-19-

"reasonable." Natural Resources Defense Council v. Callaway, 524 F.2d

79, 93 (2nd Cir. 1975), because it might convince the decisionmaker to

meet part of the goal with less impact, North Buckhead Civic Ass’n v.

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

The NPS’ internal document on citizen participation under NEPA

The Corps devised this purpose and need for the conversion:

We have determined that the reason why the applicantproposes to conduct the DA permit activities described above isto develop a mixed use development with housing, commercial andrecreational facilities centered on a championship golf course inthe Benton Harbor and St. Joseph, Michigan area.

Corps R. 1870. A stated overall project purpose is necessary for

assessing practicable alternatives under § 404(b)(1).16 Several

alternatives might have satisfied the statement of purpose developed

by the Corps, while leaving the Park untouched, but they were

systematically excluded from the NEPA document, or left undetailed.

While the NEPA document was being written in 2006-08, HSCRI busily

biased the process toward its preferred alternative by commencing

construction of 15 of the total 18 golf holes on private property

outside the Park. HSCRI graded the dunes, changed area topography,

sculpted dunes, cut down forested areas, performed stream relocation,

and excavated and filled wetlands and other features on planned

mitigation parcels. In the end, the privately-located 15 holes were

aligned in such a way as to “require” appropriation of the land in the

Park for “forward play” on the golf course. Robert McFeeter, TRO Hg.


17A § 404 permit must be denied “if there is a practicable alternative to theproposed discharge which would have less adverse impact on the aquatic ecosystem.” 40C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable ofbeing done after taking into consideration cost, existing technology, and logistics inlight of overall project purposes.” This includes locating the project in an area notcurrently owned by the applicant. An area that is not presently owned by the applicantmay be a 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).

18“Golf course construction, per se, does not require access or proximity to orsiting within wetlands to take place. Therefore, we must presume that there arepracticable alternatives to achieve the overall project purpose that do no not involvespecial aquatic sites....” Corps evaluation, Corps. R. 1867, 1920.

-20-

Tr. 218. Commencing physical construction of the golf course to compel

the preferred alternative amounts to a violation of NEPA and the

L&WCFA. By so “segmenting” the project, Benton Harbor and HSCRI sought

to avoid meaningful environmental review (see discussion infra).

a. The alternatives discussion used an improperly-narrowfocus to exclude all but the preferred alternative; the

presumption of ‘practicable’ alternatives was not appliedto the facts

Benton Harbor and HSCRI never publicly analyzed the question of

whether a golf course-centered economic development project could be

attained without an 18-hole Jack Nicklaus “championship” golf course,

or even without any golf course whatsoever. In their alternatives

discussion, the project proponents did not mention nor rebut the

statutory presumption of the Clean Water Act regulations17 that there

were less environmentally-damaging alternatives to their proposed site

design. The project is not “water dependent” under the CWA18, so Benton

Harbor as conversion applicant was required to affirmatively show the

Corps that no less-destructive alternatives to the proposed project

existed which could achieve the project’s purpose. Instead, the

project proponents restricted the range of alternatives which could be

considered, which barred consideration of several practicable options.


-21-

The U.S. Environmental Protection Agency explicitly objected to

HSCRI’s limited alternatives, accusing the developer of defining the

need as a “championship” course so as to preclude any option but a

Jack Nicklaus signature course. In a letter to the Corps (Corps R.

2250-51), the Chicago USEPA office stated:

The 404(b)(1) Guidelines (Guidelines) of the Clean Water Actrequire that a sequence of planning steps be demonstrated thatinvolves avoidance minimization and compensation for stream andwetland loss associated with unavoidable impacts to waters of theU.S.

One of the first aspects of this sequencing involves theacceptance of a project purpose that is not too broad orspecific, reflects the fundamental goals of the project, andallows flexibility for examining alternatives. The statedproject purpose in this Public Notice is to construct a‘championship’ golf course, more specifically a ‘Jack NicklausSignature Golf Course’. This project purpose is inherently toospecific so as to exclude discussion of many practicable alter-natives that do not conform to the standards of a Jack NicklausSignature Golf Course.

The logic of the argument presented by the applicantfollows:

> We need a Jack Nicklaus Signature Golf Course so this isa world class course.

> There are technical standards for a Jack NicklausSignature Golf Course.

> Anything that would cause those standards not be met isnot ‘prudent’.

By narrowly defining the project purpose in such manner, theapplicant has ruled out practicable alternatives for having avery good golf course and still protecting wetlands and waterquality. We believe that technical standards for Jack NicklausSignature Golf Course do not supersede the requirement that allfeasible and prudent alternatives be exhausted before there isdredging or filling in waters of the U.S. There are feasible andprudent alternatives for a golf course (and other elements of theoverall project) that would have less environmental impacts thanwhat is proposed.

For example, there are alternatives to the proposed wetlandfills on Holes 11 (2.55 acres) and 9 (2.23 acres). For Hole 11,MDEQ proposed an alternative whereby golfers would shoot acrossOx Creek; consequently, there would be no filling of wetlands.For Hole 9, MDEQ proposed an alternative that would have reducedimpacts which the applicant ruled out because ‘it is not prudentto high quality golf.’

Agencies have a duty not to define a project’s purpose and need


19“The dramatic element identified for the golf course in Benton Harbor was theview of Lake Michigan from Jean Klock Park.” “Summary Document for Public Review,”DOI 2762, 2766.

20According to the chairman of HSCRI, the signature course will justify “averagehome prices over double the value” of those in other golf course developments. Newsarticle, 5/11/08, DOI R. 1222.

-22-

in such narrow terms that only one alternative can fulfill the

project’s goals:

One obvious way for an agency to slip past the strictures ofNEPA is to contrive a purpose so slender as to define competing'reasonable alternatives' out of consideration (and even out ofexistence). The federal courts cannot condone an agency'sfrustration of Congressional will. If the agency constricts thedefinition of the project's purpose and thereby excludes whattruly are reasonable alternatives, the EIS cannot fulfill itsrole. Nor can the agency satisfy the Act.

Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 665 (7th

Cir. 1997) (impermissibly narrow purpose for the project precluded

entire category of reasonable alternatives). Similarly, Benton

Harbor’s narrow project purpose foreclosed practicable alternatives.

By limiting the scope of the environmental analysis solely to the

conversion of 22.11 acres without considering the effects of new

roadways, parking lots, sidewalks and destruction of natural features

throughout the Park, the discussion of alternatives fell far short of

satisfying the requirements of federal law.

The proponents of the project insisted in the NEPA document that

they must appropriate the “dramatic element”19 of views of the Great

Lake Michigan in order to compete against other high-end signature

golf course developments.20 The sole stated justification for the

conversion of the Park, then, was maximum profit; alternatives which

might be profitable, but not as profitable, were rejected since they

could not justify appropriation of the “dramatic element” of the Park.


-23-

b. The alternatives discussion excluded less-than-‘championship’ golfcourse designs and failed to disclose ‘reasonable’ non-Park locations

The alternatives presented are discussed below.

“Alternative #1: Take no action; leave Jean Klock Park “as is.” “By taking no action the current conditions in the city of Benton

Harbor would continue, and Jean Klock Park would remain underutilized,with continued poor access and state of continual disrepair. Thenetwork of bike trails and foot bridges linking the downtown to thePark would not be built. Improvements to the Park would not be made.”

DOI 2765. This supposed “no-action” alternative is a false conceit.

It is ludicrous to imply that Jean Klock Park has no economic value.

Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446 (4th

Cir. 1996) (timber sale area in its natural state generates signifi-

cant economic benefits). One unconsidered no-action option was

developing residences near the Park as part of an eco-tourism plan as

conceived in a 1990 master plan for the Park. (the Troyer study). DOI

R. 1550-53. Even HSCRI concedes that the “no-action” alternative had

some positives. In the area newspaper on May 11, 2008, HSCRI’s Presi-

dent counseled that “the worst-case scenario” will see

... $3 million in improvements, and a new 12.2 linearwalking system and over 30 acres of land will be added to theBenton Harbor park system. The bottom line is 500 acres of landdeemed a burden are now ready for some type of development.

DOI R. 1222; accord, HSCRI consultant letter. Corps. R. 1723. “The ‘no

action’ alternative must be considered in detail.” Alaska Wilderness

Recreation and Tourism Association v. Morrison, 67 F.3d 723, 729-30

(9th Cir. 1995). It was meaningless here, contrary to law.

“Alternative #2: Do not construct a signature golf course withinthe city of Benton Harbor.

... [T]the planning team had to seriously consider a JackNicklaus Signature golf course. A Signature course can generate thelevel of adjacent home sales, investor attention, and golfer interestnecessary to produce enough revenues to fund the improvements andcommunity benefits offered by the project. A Signature course requiresdramatic elements along the course to warrant the Signature designa-


-24-

tion. Constructing less than a Signature golf course within the BentonHarbor City limits, not placing three holes within Jean Klock Park,would significantly undermine the ability of the community to attractprivate investment.... Such a lesser golf course: (a) would notattract enough play to generate an operating profit, with the resultthat the course would be a financial drain; and (b) could be builtonly by utilizing land designated for development ... necessary togenerate revenues to make the project financially viable.”

DOI R. 2765-66. Without providing any financial analysis, Harbor

Shores’ proponents threaten that if a “signature” course is not built

in Benton Harbor, all redevelopment options and the benefits flowing

from them will be lost. Though providing not a single hard economic

fact, a “less than Signature” golf course would doom the project. The

proponents of Harbor Shores pre-emptively dismissed analysis of any

“lesser” golf course types, such as an 18-hole course with a reduced

footprint, or a 9-hole course, and conceal the minimum parcel size

required to accomplish their project purpose.

When the cost-benefit method of analyzing a project is invoked,

there are important disclosure obligations under NEPA:

If a cost-benefit analysis relevant to the choice amongenvironmentally different alternatives is being considered forthe proposed action, it shall be incorporated by reference orappended to the [NEPA] statement as an aid in evaluating theenvironmental consequences (emphasis supplied).

40 C.F.R. § 1502.23. To assess the adequacy of compliance with section

102(2)(B) of NEPA “the statement shall, when a cost-benefit analysis

is prepared, discuss the relationship between that analysis and any

analyses of unquantified environmental impacts, values, and ameni-

ties.” 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. When that cost-benefit threshold is crossed, “the


-25-

analysis must be objective.” 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)). Additionally (at id.):

There can be no ‘hard look’ at costs and benefits unless allcosts are disclosed. . . . . If an agency were permitted to citepossible benefits in order to promote a project . . . yet avoidcitation of accompanying costs . . . the cost-benefit analysis inthe EIS would be reduced to a sham....

Having marginally better or worse scenery to market housing does

not comprise “impracticability”. This alternative therefore does not

address the statutory requirements under § 404(b)(1) of the Clean

Water Act and was not seriously-considered, as NEPA requires.

“Alternative #3: Locate golf holes to the west of the proposedlocation within Jean Klock Park.

The Lake Michigan beach with boardwalk, beach house and pavilionare located west of the proposed layout for the golf holes in JeanKlock Park. Using this area for part of the golf course was determinedto be unacceptable early on in the planning process. Though golf holesconstructed along the beach would be breathtaking – and would dramati-cally increase the value of the course – this alternative would beinconsistent with one of the stated goals of the community redevel-opment project: to improve, not hinder, the public’s access to and useof Jean Klock Park’s beach.”

DOI R. 2766. This alternative was never a serious one. The high cost

and public outcry of developing on-the-beachfront property would not

allowed the course to go there. And proponents of the project have

insisted that the “dramatic element” of elevated views from the Lake

Michigan overlook - not the view from the beach - is what drives the

development. This alternative is not and was never “reasonable.”

“Alternative #4: Locate golf holes outside of Jean Klock Park tothe south. The land to the south of the Park is not as conducive for linkingto the golf course because of physical impediments associated with theCSX railway. Even if the holes could be located in this area at greatfinancial expense, the land in this location is within the “Act 425”agreement, and must be developed to generate tax revenues to financeinfrastructure and environmental cleanup necessary in the city ofBenton Harbor to make the larger redevelopment project financially


21Admitted by Benton Harbor in its “Public Comment Summary & ResponseDocument,” DOI R. 1750, 1792, 1811. See also DOI 1337.

-26-

feasible.”

DOI R. 2766. This alternative was rejected despite the lack of any

factual explanation of the “great financial expense” that would befall

Harbor Shores were it to move the golf holes to the south of the Park.

When alternatives rely on cost-benefit analysis, it must be performed

across the board. Sierra Club v. Sigler, supra, 695 F.2d 979. And 40

CFR § 230.10(3) requires that “[w]here the activity ... is not ‘water

dependent’, practicable alternatives ... are presumed to be available,

unless clearly demonstrated otherwise.” The presumption that alter-

natives exist in non-water projects is “very strong.” Highway J

Citizens Group v. U.S. Dept. of Transp., 2005 WL 1076071, *11

(E.D.Wis. 2005). The Defendants did not overcome this presumption.

There was a double standard at play in the rejection of this

alternative for “Act 425" reasons. Mitigation Parcel H is also “Act

425"-covered.21 Its use for recreation as mitigation lands is also

legally-prohibited; Parcel H, too, must “be developed to generate tax

revenues to finance infrastructure and environmental cleanup necessary

in the City of Benton Harbor”. Nonetheless, Parcel H is proposed for

mitigation purposes. Rejection of Alternative #4 based on the above

rationale was specious and lacks credibility.

“Alternative #5: Locate golf holes outside of Jean Klock Park tothe east.

Golf holes cannot feasibly be relocated within the City’s bordersto the east; the design team exhausted alternatives for locating golfholes within the city due to environmental, land, water and regulatoryconstraints. In an effort to help revitalize Benton Harbor, theproject is using property that includes large tracts of land that wereabandoned industrial sites, wetland and/or floodplain. The design teamthus had to address issues including wetland mitigation, environmental


-27-

clean up, and limited site accessibility due to topography and poorsoil conditions.... Additionally, there were extensive negotiations,searches and review conducted by Harbor Shores to acquire land so asto minimize and mitigate impacts to natural resources and stillmaintain the design requirements of a Jack Nicklaus Signature course.”

DOI R. 2766. Alternative #5 is not really an alternative, but is

simply an advertisement for the preferred alternative of building in

the Park. Golfing east of the preferred alternative is “infeasible,”

with the only explanation being a vague desire to locate as much of a

Nicklaus signature course within Benton Harbor as possible. This is

not alternatives discussion; it is a rationale for why Harbor Shores

should not have to be inconvenienced by adhering to NEPA. Having to

“maintain the design requirements of a Jack Nicklaus” course is not

“impracticability” and reflects indifference to § 404(b)(1) and NEPA.

Benton Harbor and HSCRI arrogate to themselves the presumption that

their alternative is the “best” and that no serious treatment of

options can, or should, be entertained.

“Alternative #6: Locate golf holes outside of Jean Klock Park tothe north. It is theoretically possible to redirect golf holes to the northinto Benton Township, though Harbor Shores has not acquired propertyfor this purpose. The visual elements of the course needed to attractvisitors to the area and outside investors would be significantlycurtailed. Moving the development north into Benton Township would beat the expense of the city of Benton Harbor, thus creating more of thetax base outside of the City and thus defeating the transformationalbenefits of the project to the community. In this regard, it should benoted that a 1988 proposal failed largely because it promised tobenefit the city of St. Joseph, not Benton Harbor.”

DOI R. 2766-67. Perhaps the most stunning evidence of the inadequacy

of the alternatives discussion lies in omission of “theoretical”

options to the north. In at least 5 places in the Corps and DOI

records appears the “Preliminary Schematic Master Plan,” a map of the

Harbor Shores region, by Michael Redd Associates, dated 2004. On this


22“We have in fact recommended to HSCRI that consideration be given to furtherreducing wetland discharge areas or making use of the currently proposed wetlandmitigation (mitigation for wetland discharges not for park land conversion) areas(7.84 acres within the project area) as part of the golf course, while pursuing otherwetland mitigation alternatives outside of the immediate vicinity. The proposedwetland mitigation areas are currently non-wetland areas and conversion of these areaswould not require a Department of Army permit. In addition, it appears that moreproperties are currently under consideration for the overall HSCRI project than wereincluded in the Department of Army permit application. These new areas may providemore flexibility to reduce impacts to wetlands. Although the application materialssubmitted to our office show the eastern end of the development area at Paw PawAvenue, we note that Park Land Conversion Parcel G lies east of Paw Paw Avenue and alarge upland area lies to the south and west of Parcel G containing over 5 acres ofupland that certainly could accommodate a golf course hole. Materials recentlysubmitted to the Corps of Engineers show a new "Golf Course Maintenance and Turf Farm"of over 6 acres that was presented in permit application materials as "futuredevelopment" for housing.”

-28-

map appears an alternative location for the Park golf holes which

overlooks Lake Michigan from the adjacent Higman Park neighborhood.

The site appears to be 15 acres or larger and is clearly marked on the

Redd diagram as “Alternative Golf Routing Not Using Jean Klock Park”.

DOI R. 1147, 1555; Corps R. 74, 76, 97. There is not a single mention

of this alterative site, nor consideration of it, anywhere in the NEPA

document which was provided the public for review and comment. The

public has never been told that this possibility was considered in the

past, nor why it was rejected.

There was also an important unconsidered public comment, from the

Corps. In the midst of the April-May 2008 public comment period, as

its public comments, the Corps sent a letter to Benton Harbor and

copied MDNR, NPS and HSCRI’s consultant, complaining that the overall

size of the project remained indeterminate, and suggesting ways to use

land outside of the Park to avoid the conversion. See DOI R. 1011,

1012.22

None of these three alternative locations for golf course holes

were ever disclosed to the public, neither before nor after the public


23“Feb 22, 2007. The applicant provided the major revision to the golf courselayout (Encl. 79) stating that the property for the original Holes 10 and 11 waspriced too high and was no longer being considered for part of the project.” (Emphasissupplied)

-29-

comment period. Moreover, Benton Harbor neither listed the Corps’

letter as a public comment (despite the Corps’ reference in DOI R.

1011 to having not been notified of the public comment hearing), and

so did not list the Corps’ as a commenter in its response document

(DOI R. 1750).

Notably, nowhere do the proponents of Harbor Shores publicly

admit that they do not want to pay more for purchasing alternate land

from private sellers as opposed to converting artificially cheap

public parkland instead. At least once, HSCRI declined to buy from a

private seller and used the cost of that deal to justify conversion of

Jean Klock Park. Corps R. 1909-10.23

None of Harbor Shores’ past or intended purchase negotiations

were disclosed in the discussion of alternatives. HSCRI’s abandonment

of park course configurations that cost too much in favor of taking

public land was a fact about the project that its proponents would not

want the public to know. If the public learned that HSCRI were shying

away from buying land at market rates, it would it impel closer

scrutiny of the artificially-underpriced conversion property and a

closer look at the overvalued, contaminated mitigation property. The

truth about alternatives could cause the public to question the

realistic prospects for the development.

The Corps, NPS, Benton Harbor and HSCRI also failed to disclose

these facts noted in the Corps’ non-public evaluation (Corps R. 2781,

2910):


-30-

Jan 24 2006. In response (Encl. 82) to comments made byMIDEQ and the Corps regarding alternative golf course designs,the agent wrote that the original Hole 7 (now Hole 15) was movednorth of the river onto an upland area scheduled for multi-familyresidential development. While avoiding 3.4 acres of wetlandimpacts, the project lost 24 residential lots at an estimatedcost of $600,000 to the project. The agent also stated that thereduction in housing units would also reduce future tax revenuesto the City of Benton Harbor. The agent stated that any furtherreduction in housing units would make the project uneconomical,even as a not-for-profit venture.

Jan 12 2006. In response to work session on December 16,2005, the applicant's agent provided a response letter (Encl.83). The overall purpose of the project is to provide economicbenefits in the form of jobs and increased tax base for the localcommunities. The agent asserted that MDEQ agreed at the meetingthat the project purpose and public benefit were reasonable. Areview of Feasible and Prudent alternatives by the agent examinedthe golf course on hole by hole basis to identify practicablealternatives that could reduce wetland impacts. Moving Hole 7(now Hole 15) was considered feasible, but likely not prudent dueto the cost to the project. The two remaining large wetland fills(at that time Holes 9 and 11) were reduced slightly. (Emphasissupplied).

Even where alternative sites for the project are limited by

price, that does not make them impracticable for consideration. But

candid disclosure of the changes to the project involving possible

alternate lands to using the Park, and disclosing a too-close-for-

comfort profit picture for Harbor Shores to the public during the

comment period would have triggered needed public debate on whether

the undertaking were worth it. Facts about the economic downside

could prompt inconvenient questions and derailed the whole idea. After

all, plans for a golf course subdivision in Benton Harbor were first

proposed in 1988 and again in 1994 but both times were “abandoned due

to economic challenges”. DOI R. 257, slideshow presentation.

Financial considerations using cost-benefit analysis must be

balanced and objective and disclosed and must not be used merely to

provide a rationalization for the applicant’s preferred result. 40


24

-31-

C.F.R. § 1502.23; Chelsea Neighborhood Assoc. v. U.S. Postal Service,

supra, 516 F.2d 386-87. The proprietary secrecy of HSCRI’s economic

choices concerning golf course land gave cover to allow HSCRI to

insist to the regulators upon having its preferred course design

through the Park.

The National Park Service declared in its “Section 6(F)(3)

Conversion Evaluation” (DOI R. 2753, 2757) that the “reasonable range”

of alternatives “was specifically addressed.” That range was not

“reasonable.” During the public comment period on the proposal, the

Corps of Engineers contended that all “reasonable” alternatives had

not actually been identified or discussed in the NEPA document.24

Unfortunately, the Corps’ public comments to Benton Harbor were not

made public in May 2008 nor were they addressed in the comment and

response document. Hence the Corps’ concerns about poor consideration

of alternatives were never revealed to the public until after the

public had lost its chance to inquire further into the Corps’ areas of

concern. And then, the Corps inexplicably changed its mind. Regardl-

ess, the alternatives considered by both the NPS and Corps were not

“reasonable” and thwarted the thrust of NEPA, making the subsequent

permitting decisions arbitrary and capricious.

III. PROFESSIONAL SPORTS USE OF CONVERSION LAND RENDERSREMAINING PARKLAND NONVIABLE TO PUBLIC

The original L&WCFA grant for Jean Klock Park is a development

grant; as part of the Park, the 22.11 acres proposed for conversion

met all development criteria and remain governed by them.

Section 640.3 of the L&WCFA Handbook prohibits the use of L&WCFA


25Public Comment Response, DOI R. 1750, 1793. 26“In the case of assisted sites which are partially rather than wholly

converted, the impact of the converted portion on the remainder shall be considered.If such a conversion is approved, the unconverted area must remain recreationallyviable or be replaced as well.” 36 CFR § 59.3(b)(5).

-32-

assets for professional sports. Subsection 6 of the “Guidelines for

Eligible Recreational Facilities,” (DOI R. 2781, 2873) states:

M. Professional Facilities. Areas and facilities designedprimarily for semi-professional or professional ... athletics,... are not eligible for L&WCF assistance.

According to the firm which is to manage the golf course, the tee on a

tiny man-made island for which the wetlands pond within the Park was

disrupted is being built only for tournaments and will be closed to

the public “at all times.” DOI R. 1308 (KemperSports letter). Benton

Harbor confirmed that tournament play will take place by permit and

that the “doughnut hole” acreage in the center of the golf holes,

bounded by the converted land and the pond, may not be accessible to

the public during professional golf play because of the need for crowd

control.25 Besides violating L&WCFA regulations requiring facilities

under the Act to be publicly-accessible at all times (or to be re-

placed as part of the conversion)26, recurring use of the Park for

professional play expressly violates L&WCFA regulations. It was

arbitrary and capricious for the NPS to approve the conversion, given

this intention by the developer.

IV. APPRAISALS OF CONVERSION AND MITIGATION LANDSWERE LEGALLY INSUFFICIENT

a. Unlawful appraisal of Park acreage

The appraisal value of $900,000.00 for the 22.11 acres being

converted was supposed to establish the minimum dollar value of new


27The “Uniform Appraisal Standards for Federal Land Acquisitions” appearin the Court’s record as HS Supp 2-B-3.

-33-

land required to be given to the City of Benton Harbor for public

recreation in order to mitigate the loss of public access to the Klock

Park acreage. The appraisal figure is untrustworthy because its

computation was achieved only by ignoring uniform Federal appraisal

standards.27

L&WCFA regulations (36 C.F.R. § 59.3(b)(2)) require

... The fair market value of the property to be converted[to be] established and [that] the property proposed forsubstitution is of at least equal fair market value asestablished by an approved appraisal (prepared in accordance withuniform Federal appraisal standards)....

The actual appraisals do not appear in the NPS record; the NPS

accepted them uncritically, without examination. What appear in the

record are the “appraisal reviews” - summary reviews performed by an

appraiser for the MDNR who performed a desktop assessment of adequacy

of the actual appraisals without actually seeing the subject proper-

ties. The NPS ignored as of small importance the advice in each

appraisal review that “[t]his review is intended solely for the use of

our clients and cannot be completely understood without the attached

subject appraisal.” The NPS thus abdicated its responsibility.

The purpose of an appraisal is to determine what dollar value to

assign to the land being converted so that mitigation lands of “equiv-

alent or greater value” can be identified and set off against the

appraised value. The lower the appraised value of the conversion

land, the lower the necessary value of the mitigation lands. The Klock

Park appraisal review ratified a low $900,000.00 value for the conver-

sion acreage in the Park. But in 2004, the City of Benton Harbor sold


28MDNR letter to NPS, 12/22/04, DOI 15.

-34-

a 3.7-acre strip along Grand Boulevard on the northern border -

acreage further from Lake Michigan than the dune crests, and without

the commanding views from the dunes - for $1,335,000.0028 ($435,000.00

more for less than 1/5 the acreage).

The low appraisal figure for the conversion land was the product

of the appraiser‘s decision that restrictions against development of

the Park limited the “highest and best use” options otherwise implied

in uniform appraisal standards:

The park has a restriction against development for anythingexcept ‘public’ use. This has a major impact on its value andrestricts it from residential development which would have beenits highest and best use absent this restriction.

DOI 1750, 1795. The MDNR reviewer wrote:

The parcels are not considered stand-alone properties andare valued on the basis of the larger parcel approach. Theappraiser values 21.11-acres ... as part of the 44 acres west ofJean Dr. This tract has nearly a half mile of Lake Michiganfrontage and indicated to have a value of $15,840,000unencumbered. This value is discounted 80%, to $3,168,000, dueto the park’s easement restriction preventing development inperpetuity - highest and best use as recreational. It isestimated the rear 60% or 26ac of this parcel, the so-called‘backlands’ and where the subject resides, has only 35% of thevalue, or $1,108,800 ($42,500/ac). The indicated value of the‘dry’ 21.11-acres is $897,175 to which is added 1 acre of wetland at $2400/acre for final estimated value of $900,000.

DOI 2293. When he “discounted” the residential highest and best use of

the Park by 80%, the appraiser ignored two interrelated federal ap-

praisal principles: (1) that the concept of “highest and best use”

involves an economic use; and (2) that a “highest and best use”

involving conservation, natural lands, preservation, or that requires

the property to be withheld from economic production in perpetuity, is

noneconomic and not a valid basis for the estimation of market value.


-35-

An appraiser’s use of a definition of “highest and best use” that

incorporates non-economic considerations (e.g., value to the public,

value to the government, or community development goals) will subject

the resulting report to disapproval. See “Uniform Appraisal Standards”

§ A-14, “Analysis of Highest and Best Use:”

The appraiser’s estimate of highest and best use must be aneconomic use. A noneconomic highest and best use, such asconservation, natural lands, preservation, or any use thatrequires the property to be withheld from economic production inperpetuity, is not a valid use upon which to estimate marketvalue. Therefore, any appraisal based on such a non-economichighest and best use will not be approved for federal land acqui-sition purposes.

Id. at 18.

Also, “if the property is clearly adaptable to a use other than

the existing use, its marketable potential for such use should be

considered to the extent that potential affects market value.”

Uniform Appraisal Standards, § B-3, “Highest and Best Use,” p. 34. The

Park acreage was adaptable for conversion into the feature event of an

18-hole golf/residential/commercial development. The appraiser was

obliged to consider the converted acreage to be the core element of a

major development undertaking. But he did not in the fiction that he

was only assigning a value to parkland. He wore blinders in

contradiction to the Uniform Standards, § B-3, p. 35:

The benefit a real estate development produces for acommunity or the amenity contribution provided by a plannedproject (i.e., the public space in a park-like area) is notconsidered in the appraiser’s analysis of highest and best use.Highest and best use is driven by economic considerations andmarket forces, not by public interest. (emphasis supplied)

Indeed, the 22.11 conversion acres are crucial to Harbor Shores:

“[t]he dramatic element identified for the golf course in Benton

Harbor was the view of Lake Michigan from Jean Klock Park” (emphasis


29www.harborshoresdevelopment.org/index/php?option=com.content&task=view&id+9&itemid=22

-36-

supplied). “Summary Document for Public Review,” DOI 2762, 2766. A

Harbor Shores website29 describes the commercial imperative of the golf

course conversion this way:

Golf is a requirement for Harbor Shores.... Without anoutstanding golf course, Harbor Shores Community Redevelopment,Inc. sees no way to bring needed investment into the BentonHarbor Community. (emphasis supplied)

Even the appraisal review notes the “sand dunes and spectacular

views” from the dunes. DOI R. 2293. Nicklaus Design, architect of the

golf course, advised Harbor Shores in 2006 that “[w]ithout these holes

as depicted in the current design, the course and overall development

would fall short of being marketed as a world class destination.”

Letter, DOI R. 2316, 2317. LR Development, a player in Harbor Shores,

told HSCRI that “strategic golf holes located near Lake Michigan is

[sic] critical to attracting sophisticated investors and homeown-

ers....” Letter, DOI R. 2324.

The $900,000.00 appraisal is low by a factor of 10 or 20, and was

produced by ignoring explicit guidance contained in the Uniform

Appraisal Standards. NPS’ uncritical acceptance of it in the face of

public criticism was arbitrary and capricious.

2. Unlawful appraisals of the mitigation parcels

The $900,000.00 appraisal of the 22.11 converted acres is below

the $999,500.00 valuation given the array of industrially-polluted

lands which are being swapped for the Park. The mitigation parcels

contain no Great Lakes overlook and they are chemically toxic, but

somehow were more than worthy to trump the “dramatic element.” In


30 “Parcels A, B, E and G have some sample locations that exceed residentialdirect contact criteria for Arsenic. The Evaluation states that these areas can beaddressed by installing an exposure barrier or excavating the impacted soil. That isacceptable under the NREPA....

Parcel D has some sample locations that exceed residential direct contactcriteria for Arsenic several Polynuclear Aromatic Hydrocarbons, and Lead. There isalso one sample location where the residential ambient air particulate soil inhalationcriteria is exceeded for Chromium. These areas can be addressed by installing anexposure barrier or excavating the impacted soil.

Parcel F has some sample locations that exceed residential direct criteria forArsenic and Lead. These areas can be addressed by installing an exposure barrier orexcavating the impacted soil.

Parcel H has some sample locations that exceed residential direct criteria forArsenic and Trimethybenzene, as well as one sample location where the residentialambient air particulate soil inhalation criteria is exceeded for Chromium. These areascan be addressed by installing an exposure barrier or excavating the impacted soil.” Letter, Michigan Department of Environmental Quality to McFeeter (HSCRI), April 20,2007, DOI R. 1466-67. This letter was not part of the conversion proposal packagetransmitted to the U.S. Army Corps of Engineers.

31‘Facility’ means any area place or property where a hazardous substance inexcess of the concentrations which satisfy the requirements of section 20120a(1)(a) or(17) or the cleanup criteria for unrestricted residential use under part 213 has beenreleased, deposited, disposed of or otherwise comes to be located. ‘Facility’ does notinclude any area, place, or property at which response activities have been completedwhich satisfy the cleanup criteria for the residential category provided for insection 20120a(1)(a) and (17) or at which corrective action has been completed underpart 213 which satisfies the cleanup criteria for unrestricted residential use.

-37-

ratifying the appraisal price for each of the mitigation parcels, the

reviewer made no mention of the toxic industrial chemicals polluting

most of them. Compare the Michigan Department of Environmental

Quality’s summary of contamination in the mitigation lands30 with the

lack of disclosure in any of the appraisal reviews (DOI 2296, 2298,

2300, 2302, 2304, 2308). There is zero mention in those appraisal

reviews of a prospective threat to public health extending into the

future from contamination which will in most cases be left in situ and

covered with an application of topsoil.

In fact, the polluted parcels have more than heavy metal toxic-

ity. Harbor Shores’ consultant issued a November, 2007 report, “Docu-

mentation of Compliance with Part 10 Rules” (DOI R. 2328) identified 6

of the mitigation parcels as contaminated “facilities”31 which required


32”The analytical results of the soil and ground water samples collected fromthe park mitigation parcels during the previous investigation activities indicatedthat hazardous substances are present in Park Mitigation Parcels A, B, D, E, F and G.These park mitigation parcels constitute a ‘facility’ as defined in Part 201, Section20101(o) [of the Michigan Code Laws].” DOI 2328, 2350.

33http://commerce.appraisalfoundation.org/html/2006%20USPAP/ao9.htm#Relevant

-38-

heightened regulatory scrutiny and mitigation.32 The Part 10 Rules

require efforts to reduce public and utility worker exposure to the

industrial toxins via inhalation of volatile materials and waterborne

dispersions of particulate. DOI R. 2328, 2350. The Part 10 analysis

was evidently not given to the appraiser.

While Parcel H - the 1.47-acre, $714,000.00 part of the mitiga-

tion package - was not covered in the Part 10 document, it, too, is a

“facility” which “received limited residential closure from the DEQ as

result of completing a consent order with the United States Environ-

mental Protection Agency in 2003.” DOI R. 1327, 1340-41. The property

still exceeds some contamination levels, although that was evidently

not made known to the appraiser, who proceeded to conclude that Parcel

H, alone, at $714,000.00 was worth nearly as much as the 22.11 uncon-

taminated acres in the heart of Jean Klock Park.

According to the Uniform Appraisal Standards (§ D-3, p. 80) “it

is improper, unless specifically instructed otherwise, [for an

appraiser] to estimate the market value of a property assuming it is

free of contamination when there is evidence ... that contamination

may exist.” Yet that appears to have happened here. The Uniform

Standards of Professional Practice (USPAP), Advisory Opinion AO-933

requires a complex analysis when appraising known contaminated

property:

The appraisal of properties that may be impacted by envir-


-39-

onmental contamination usually involves extensive highest andbest use analysis.... {T]he appraiser must consider relevantfactors in developing an opinion of the highest and best use ofthe property in its impaired condition. The valuation ofproperties impacted by environmental contamination usuallyinvolves the estimate of two values ... The second does considerany limitations due to the contamination, its remediation, andany legal use restrictions associated with the cleanup of thecontamination source.... The appraiser should consider thepossibility that site remediation and any remaining limitationson the use of the site following remediation may alter or limitits highest and best use in the impaired condition. In addition,excessive environmental risk and stigma may deter sitedevelopment or redevelopment and thereby limit the highest andbest use....

The mitigation land appraisals were manipulated in order to

exceed the low-ball $900,000.00 price of the 22.11 acres of uncon-

taminated dune crest land in the Park. The most egregious example of

this is Parcel H, valued at $714,000.00. The appraisals were wholly

inadequate and violative of federal L&WCFA regulations. Reliance on

them by the NPS was arbitrary and capricious. They must be rejected

and new ones ordered.

V. PATHS-ONLY MITIGATION LANDS ACCESS IS NOT‘REASONABLY EQUIVALENT USEFULNESS’

An especially audacious aspect of the substitute land trade for

Jean Klock Park acreage is that on most mitigation parcels the public

access will be restricted solely to 3' wide walking paths due to

widespread contamination dangers.

On mitigation parcel A, pavement 3" to 4" thick will be laid in a

3' wide walkway on top of a “cap” laid to halt the spread of contami-

nation “to provide an exposure barrier to mitigate the direct exposure

contact risks” from arsenic and lead in the ground. DOI R. 2328,

2351. On mitigation parcel B, either 6" of crushed stone or 30" of

wood chips will be laid in a 3' wide walkway “to provide an exposure


-40-

barrier to mitigate the direct contact exposure risks” from arsenic in

the ground. DOI R. 2351. On mitigation parcel D, a boardwalk will be

constructed “to provide an exposure barrier to mitigate the direct

exposure contact risks” after parcel D has been excavated to try to

remedy the presence of arsenic, lead and PAHs (polynuclear aromatic

hydrocarbons) in the ground and groundwater. DOI R. 2352. On miti-

gation parcel E, either 6" of gravel or crushed concrete/stone will be

laid in a 3' walkway “to provide an exposure barrier to mitigate the

direct contact exposure risks” from arsenic in the ground. DOI R.

2328, 2353. On mitigation parcel F, a two-foot-thick isolation zone

of earth will be topped with 6" of gravel and crushed stone to build a

walkway “to provide an exposure barrier to mitigate the direct contact

exposure risks” from arsenic and PAHs in the ground and groundwater.

DOI R. 2353-54. On mitigation parcel G, an existing sidewalk will be

extended to a new observation area to “provide an exposure barrier to

mitigate the direct contact exposure risks” from arsenic in the

ground. DOI R. 2354.

L&WCFA regulations (36 C.F.R. § 59.3(b)(3)) require that “[t]he

property proposed for replacement is of reasonably equivalent useful-

ness and location as that being converted.” What is being appro-

priated from the public is their free use of 22.11 acres (or more,

given the restricted access to the “doughnut hole” acreage) of Park

dune crests, which have been used for climbing, hiking, skiing,

birdwatching, lake viewing, inland scenery viewing, photography,

running, picnicking, marriage ceremonies, religious rites, watching

fireworks displays and countless other uses. What the public is being

given in trade are industrially-contaminated “facilities” containing


34“The goal is to protect, restore and, where appropriate, enhance naturalresource quality related to public outdoor recreation venues. Priority actions includeacquisition of inholdings; development or renovation at recreation sites that resultsin cleaner surface waters through reductions in erosion and other sources ofpollution; wetland conservation, restoration and enhancement; restoration of nativecommunities of flora and fauna; and provision of fish habitat improvements at or nearpublic access points on state waters.” (DOI R. 2477, 2548).

-41-

untold amounts of poisons, having narrow access paths across them

which are designed to protect human health and only secondarily to

provide scenic walking options. The only approved access to these

contamination facilities will be the as-built walking paths. Uses

requiring that one go off the paths will be discouraged or forbidden,

and certainly will not be indulged in by those who know of the

dangers. This is not “reasonably equivalent usefulness,” it is

unreasonably expedient exclusion of the public. It was arbitrary,

capricious and unlawful for NPS to approve the mitigation properties

as equivalent.

VI. CONVERSION NOT IN ACCORD WITH STATEWIDECOMPREHENSIVE OUTDOOR RECREATION PLAN (SCORP)

A proposed L&WCFA conversion must comply with 36 C.F.R.

59.3(b)(9) and be “in accord with the Statewide Comprehensive Outdoor

Recreation Plan (SCORP) and/or equivalent recreation plans.” This plan

was not. SCORPs are required and funded under the L&WCFA. The State of

Michigan completed a new SCORP (DOI 2477) in 2007.

The golf course conversion of Jean Klock Park is incongruent with

the SCORP’s highest priority of “Resource Conservation.”34 Directly

contravening this goal, the golf course conversion in the Park creates

inholdings that take up a vast amount of the park’s land and water

base, breaks up an intact old public park on a Great Lakes shoreline,

destroys dunes, wetlands and habitat, endangers plant communities with


-42-

chemically-dependent golf greens nearby, uses contrived landscaping,

seeds sand dunes with turfgrass, and moves and sculpts those dunes.

This does not protect, restore or enhance resource quality.

The overriding goal in the 2008-2012 SCORP (“Natural Resources-

Based Recreation Opportunities”) states:

For many communities, opportunities for natural resourcebased outdoor recreation ... often are limited by a lack ofpublic ownership, open space, experience, education, facilitiesor suitable natural resources because of pollution andimpairment. The conservation of natural resources was rated asthe most important of all the priorities ...by local park andrecreation administrators in our statewide surveys for the 2008-2012 SCORP.

(DOI 2477, 2558).

Benton Harbor contends, not that the conversion meets these SCORP

expectations, but instead, that the golf course proposal would fulfill

a subheading under the above goal, “Urban Opportunities:”

An important case for targeted action is restoring orenhancing impaired outdoor recreation resources in urbanenvironments. Urban residents often have borne the burden ofpollution, and nearby potential recreational environments such asurban waterfronts have been less than desirable recreation sites.The growing movement for greenways, walkable communities andrestoration of degraded urban natural resources to providequality outdoor recreation opportunities represents a priorityconservation issue in Michigan’s SCORP.

DOI 2762, 2775. The City thus characterizes Benton Harbor residents

as “urban residents” in their small town of 10,746, apparently because

94% of the population of Benton Harbor is African-American. The Park,

with its half-mile of pristine Lake Michigan lakefront and natural

dunes one mile from the city center, is incorrectly termed an “urban”

facility, merely because it is owned and used by the “urban” residents

of Benton Harbor. The actual “degraded resources” here are the

polluted mitigation parcels proposed as replacement parkland for Jean


-43-

Klock Park’s Lake views. They provide only walkways across polluted

parcels lying alongside polluted waterways and are precisely the

places which the SCORP contemplates as “burdening” urban residents.

Benton Harbor asserts that the golf course project will provide

resource conservation by enhancing and removing pollutants from

wetlands on the mitigation parcels, but says nothing about destroying

the Park’s resources. (DOI R. 1750, 1769). The creation of greenways,

walkable communities and non-motorized trails does not outweigh the

overriding goal in the SCORP to protect natural resources.

Benton Harbor did not have a current Community Recreation Plan

(CRP) on file with the MDNR at the time of the conversion proposal in

2006-08 and so was not consulted for the SCORP, so the city’s recrea-

tional needs are not specifically reflected in the SCORP. There was no

community recreational planning done by residents or the City, no

needs assessed, no new parkland areas identified or articulated, and

golf was not identified as a community recreation need. Residents who

complained to MDNR that there was no CRP in January 2008 (DOI R. 918)

received a tepid response from the State which evaded the issue of how

MDNR would make the City comply with state law. (DOI R. 1099).

The MDNR approved this conversion in 2008 without the Michigan

Natural Resources Trust Fund Board’s (MNRTF) 2008 approval of the

plan. MNRTF’s approval was required for the proposed conversion by

both L&WCFA and MNRTF grant requirements. The Defendants believe that

the October 18, 2006 MNRTF Board approval of the first conversion

proposal sufficed for a project that was changed in dimension and

connectivity when it was resubmitted to the NPS in 2008. The 2008

conversion relied on the 2008-2012 SCORP. MNRTF approval was not


35“A recent site visit by one of our staff members revealed that, while the parkhas undergone some changes due to a new development and the effects of nature andneglect, many of the park’s significant features are still intact.”

36The DOI Record does not reveal whether such review by SHPO ever occurredconcerning the Grand Boulevard development, but the Corps’ Record cites SHPO review ofHarbor Shores’ plans, implicitly predicated on the undisclosed agreement between theCity and SHPO documented herein.

-44-

sought after 2006 and so was not provided to NPS in the 2008

conversion proposal (DOI R. 1588), violating L&WCFA requirements.

It was arbitrary and capricious for NPS to approve the conversion

absent compliance with the mandate for state agency approval, the lack

of actual congruence with the SCORP, and the lack of fulfillment of

the contractual requirement that HSCRI obtain MNRTF approval of the

2008 conversion proposal for Jean Klock Park.

VII. THE SECTION 106 HISTORICAL PROPERTIESCONSULTATION WAS FLAWED

When Benton Harbor’s then-counsel, Geoffrey Fields, was repre-

senting the City in its sale of a 3.7-acre strip of Jean Klock Park,

he was sent a July 29, 2004, letter from the Michigan Historic

Preservation Office (SHPO) advising of information “... about the

significance of the [Jean Klock] park as the work of noted landscape

architect Jens Jensen.” DOI R. 4835.

Before it would authorize the Grand Boulevard development on Park

land to proceed, the SHPO required “an agency official with legal and

financial responsibility for the undertaking” to agree that “[o]nce

plans for the project are developed, they will be submitted to the

SHPO for review and approval.” DOI R. 48, 4936. SHPO further required

that “the entry posts” to the Park be retained and “any intact,

original portions of Grand Boulevard should be restored wherever

possible; that “every effort” must be made to preserve a grouping of


37The Hitchcock Design Group map of the Harbor Shores Development can be foundat Corps R. 2611.

-45-

large cottonwoods on the northwestern side of Grand Boulevard near the

beach; and that the developers should “review Jensen’s original plans

... and incorporate as much of the original design as possible....”

Id. NPS was copied that letter.

On August 26, 2004, the Benton Harbor City Manager signed the

SHPO form accepting the conditions. DOI R. 1155. In conjunction with

the Corps’ solicitation of agency input, SHPO replied in May, 2006,

advising the Corps of Jensen’s involvement in the design of Jean Klock

Park and asking to be provided with “the plans and specifications for

the proposed golf course.” Corps R. 2612. On August 11, 2006, SHPO

advised the CORPS to obtain an historic assessment of the park. Corps

R. 2570. There is no mention in the Corps record, however, that SHPO

advised the Corps of its August 2004, contract with the City.

Harbor Shores then hired one of its own development consortium

partners, Hitchcock Design Group, to write an historical report. Corps

R. 2575.37 The Hitchcock assessment’s flaws and the firm’s egregious

conflict of interest were addressed and documented by the Friends of

Jean Klock Park (“FJKP”) in a letter December 5, 2006, to SHPO. DOI R.

1171. The conflict was also brought to the attention of the Corps. DOI

R. 1170. FJKP’s letter quoted SHPO’s own caveat to the Corps regarding

the documented business relationship between Harbor Shores and

Hitchcock Design Group:

... [A]ny conclusions from their historic assessment reportwould be highly suspect. It would therefore be necessary toconduct a second evaluation using a consultant with no connectionto the redevelopment of the site.


-46-

Corps R. 2609. But no “second evaluation” was conducted. The Hitch-

cock assessment, ultimately affirmed by SHPO (Corps. R. 224), the

Corps (Corps R. 1102) and the ACHP (Corps R. 212) contains errors and

unsubstantiated conclusions. Selectively plucking segments of Jensen’s

plans (Corps R. 2587-98) and comparing them to later nautical surveys

drawn by the Corps of Engineers was one dissuasive maneuver. Use of

more appropriate historical references and careful on-site obser-

vations would have yielded more accurate results. Hitchcock states

that Jensen suggested Park expansion “east along the Paw Paw....”

Corps. 2578. The addition Jensen suggested, however, was a 300-foot

wide diagonal strip bordering on the south “present property line.”

1917 topographical map, Corps R. 2587. Though Hitchcock inventoried

one remaining brick column on the south (Corps R. 2580) and structures

existing in September, 2006 (Id., 2581), it missed the City’s water

treatment facility on the southeast parkland. Hitchcock confused the

original platted Park road paralleling Lake Michigan, shown on the

1917 Jensen map as “BRICK DRIVE,” with a later boulevard installed in

1923 after Jensen’s involvement with the park had commenced. Corps. R.

799. The original road was 18 feet wide with a “street walk” parallel

to it. Hitchcock’s 1938 map of Klock Park (Corps. R. 2608.002) is

illegible. Plaintiffs are familiar with a 1938 map of the park, which

shows a divided boulevard running parallel to Lake Michigan with a

landscaped median island. Further, FJKP provided an historical post-

card image to the Corps and ACHP at Corps. R. 834 which shows a

divided boulevard with a landscaped median. What the nautical and

illegible photographs fail to document, the historical postcard

clearly does: it reflects the park plans created by Jensen.


38“This document constitutes my Environmental Assessment, Public Interest reviewsummary, and, if applicable. my factual and compliance determination according to the404(b)(1) Guidelines for the work proposed for permit.” Corps. R. 1867.

-47-

Under § 404, the Corps is required to consult with the ACHP to

identify potentially historical properties and resources and to

mitigate harm to those properties and resources, all pursuant to the

NHPA, 16 U.S.C. § 270 et seq. Neither the ACHP nor the Corps acted on

evidence provided by a grassroots “consulting party,” bit deferred,

instead, to Harbor Shores, its conflicted business partner and sketchy

documentation, including a plant list compiled by the Corps in

December of a Michigan winter, when plantings are nearly invisible.

Corps. R. 1101, 1104. By failing to conduct thorough, objective

analyses and to consider contradictory, valid evidence, the CORPS and

ACHP discounted John Klock as a significant historical figure

associated with the Park, despite of SHPO’s earlier requirement to

“retain” the brick entry columns erected for the park’s 1917 dedica-

tion.

The grove of cottonwood trees which SHPO required to be conserved

in 2004 could have no other historical importance in the context of

Jean Klock Park’s history than their association with master landscape

architect Jens Jensen. Yet in 2006, SHPO could find no evidence of

Jensen. Corps R. 224. The conclusion that the Park has no historical

significance was arbitrary and erroneous and requires reversal.

VIII. THE CORPS IMPROPERLY BALANCED ADVERSE ENVIRONMENTAL EFFECTSAGAINST BENEFITS IN THE EA, DENYING THE PUBLIC THE BENEFIT OF AN EIS

The Corps deemed its Permit Evaluation for the overall Harbor

Shores project to be also its Environmental Assessment for NEPA

purposes.38 Despite evidence of a large, complex project taking place


-48-

on polluted land about which the Corps had reason to know, the Corps

decided to forego an EIS. Corps. R. 3635, 3637.

The Corps’ EA/Permit Evaluation contains analyses never made

public under NEPA of various features of the HSCRI development.

Considerable balancing of values is reflected in its conclusory

statements:

> “Without successful mitigation with new basins connected to theriver at high flow elevations, an increase in sedimentation at themouth of the Paw Paw River and into the St. Joseph River can beexpected. The cumulative impacts of numerous such projects on erosionand accretion would become major, long-term, and negative.... Sincethe net area and volume of the new basins would exceed that of thewetlands scheduled to be filled, long-term negative effects onaccretion would be avoided if the mitigation is successfully carriedout....” Corps R. 1867, 1891.

> “Cumulatively, the proposed permit activity, with successfulstream and wetland mitigation, would have major, but predominatelyshort term, and predominately minor long term adverse impacts asdescribed in the sections above.” Id. at 1914.

> “Numerous projects such as this, if no adequate wetland mitiga-tion were accomplished, could greatly reduce water quality. Overall,the operation and use of the proposed activity, with successfulwetland and stream mitigation efforts, would have minor, long term,negative impact on water quality.” Id. at 1890.

> “Adverse impacts to wetlands would be major. The cumulativeeffects of such actions, without appropriate replacement thoughwetland mitigation could result in major impairment of wetlandresources.” Id. at 1901.

> (Re effects on wildlife) “The project without successfulmitigation would result in net exchange of habitats that areincreasingly rare in the area for habitats that are abundant. Thischange will decrease the overall wildlife diversity and productivity.Historically stream enclosures have resulted in aquatic and riparianhabitat losses across the state of Michigan. The cumulative impacts ofnumerous such projects without stream and wetland mitigation couldbecome significant and negative.” Id. at 1899.

The Sixth Circuit is quite clear on the NEPA lead agency’s

obligation when there are both beneficial and detrimental effects:

Where ... adverse effects can be predicted, and the agencyis in the position of having to balance the adverse effects


39"A significant effect may exist even if the Federal agency believes that onbalance the effect will be beneficial."

-49-

against the projected benefits, the matter must, under NEPA, bedecided in light of an environmental impact statement.

Friends of Fiery Gizzard v. Farmers Home Administration, 61 F.3d 501,

505 (6th Cir. 1995); Sierra Club v. Marsh, 769 F.2d 868, 880 (1st Cir.

1985). Cf. 40 C.F.R. § 1508.27(b)(1).39

By finding “significant” or “major” and “negative” effects”, then

weighing them against mitigation measures, the Corps effectively

admits in its wholly-nonpublic EA what it should have delineated in

detail in a public draft EIS. It was arbitrary and capricious for the

Corps to ignore explicit legal precedent and not require an EIS. This

determination should be reversed.

WHEREFORE, Plaintiffs pray the Court grant them summary judgment

and set a hearing for the form and substance of injunctive relief

which should be awarded on their First Amended Complaint.

/s/ Terry J. Lodge Terry J. Lodge, Esq.Trial Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2009, I electronically filed theforegoing “Plaintiffs’ Motion for Summary Judgment” with the Clerk ofthe Court using the ECF system, and that pursuant to ECF practice itwas to be served electronically upon all registered counsel of record.

/s/ Terry J. Lodge Terry J. Lodge


NEPA Brief on Merits 06 04 2009

Documents

Transcript of NEPA Brief on Merits 06 04 2009