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Case No. 10-1313
_____________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
JULIE WEISS,
Plaintiff-Appellant,
v.
SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR;CITY OF BENTON HARBOR,
Defendants-Appellees
HARBOR SHORES COMMUNITY REDEVELOPMENT, INCORPORATED
Intervening Appellee.
______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF MICHIGAN
_____________________________
REPLY BRIEF OF APPELLANT
_____________________________
Terry J. Lodge, Esq.316 N. Michigan St., Suite 520Toledo, OH 43604-5627
(419) [email protected]
Counsel for Appellant
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TABLE OF CONTENTS
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Disputed Genesis of Harbor Shores. . . . . . . . . . . . . .1
Small Handle Permits Federalize the Project. . . . . . . . . .3
18 - 3 = Segmenting. . . . . . . . . . . . . . . . . . . . . . .5
Facts Federalize the Project. . . . . . . . . . . . . . . . . . 7
Appellees Hard Look Was Through a Blind Eye. . . . . . . . .10
Plaintiffs Unique Status Establishes Their Standing. . . . . .14
A. Prudential interest as environmental litigants. . . . 15
B. Environmental litigants may rely on Adams standing
to pursue multiple violations of L&WCFA. . . . . . . . . 17
There Is No Mootness; the Project Is Not Completed. . . . . . .18
There Is SCORP Noncompliance When Priority
Parkland Positives Are Lost to Conversion. . . . . . . . . . . 22
Brief Discussions of Lite Alternatives. . . . . . . . . . .24
A. Standing and waiver. . . . . . . . . . . . . . . . . . 24
B. Hard look doctrine includes EA alternatives. . . . . 25
The Record Is Clear: JKP is Eligible
for National Register Listing. . . . . . . . . . . . . . . . . 27
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . .30
APPENDIX
Designation of All Relevant District Court Documents
(Plaintiffs and Defendants)
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TABLE OF AUTHORITIES
Cases Page(s)
Burbank Anti-Noise Group v. Goldschmidt,623 F.2d 115 (9th Cir.1980), cert. den.,450 U.S. 965 (1981). . . . . . . . . . . . . . . . . . . . . . 21
Citizens Alert Regarding the Environment v. EPA, \259 F.Supp.2d 9 (D.D.C. 2003). . . . . . . . . . . . . . . . . .3
City of Newport Beach v. CAB, 665 F.2d 1280 (D.C.Cir. 1981). . 20
Columbia Basin Land Protection Assoc. v. Schlesinger,643 F.2d 585 (9th Cir. 1981). . . . . . . . . . . . . . . . . .21
County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . 20
DaimlerChrysler v. Cuno, 547 U.S. 332 (2006). . . . . . . . . .17
Department of Transportation v. Public Citizen,541 U.S. 752 (2001). . . . . . . . . . . . . . . . . . . . . 4, 5
Government of Canal Zone v Burjan,596 F.2d 690 (5 Cir.1979). . . . . . . . . . . . . . . . . . .19th
Maryland Conservation Council v. Gilchrist,808 F.2d 1039 (4 Cir.1987). . . . . . . . . . . . . . . . . . .6th
Northwest Environmental Defense Center v. Gordon,
849 F.2d 1241 (9th Cir.1988). . . . . . . . . . . . . . . . . .20
Ocean Advocates v. U.S. Army Corps of Eng'rs,
402 F.3d 846 (9th Cir. 2005). . . . . . . . . . . . . . . . . .14
Papasan v. Allain, 478 U.S. 265, (1986). . . . . . . . . . . . 19
Robertson v. Methow Valley Citizens Council,490 U.S. 332, 349 (1989). . . . . . . . . . . . . . . . . . . .26
Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981). . . . . 20
Save Our Cumberland Mountains v. Kempthorne,
453 F.3d 334 (6 Cir. 2001). . . . . . . . . . . . . . . .25, 26th
.
Save Our Parks v. Kempthorne,2006 U.S. Dist. LEXIS 85206 (2006). . . . . . . . . . . . . . .22
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Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978). . 17, 18, 24
Sierra Club v. Morton, 405 U.S. 727 (1972). . . . . . . . . . .15
Southwest Williamson County Community Associationv. Slater, 243 F.3d 270 (6 Cir.2001). . . . . . . . . . . . . .5th
Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009). .15, 16
University of Texas v. Camenisch, 451 U.S. 390 (1981). . . . . 20
Upper Pecos Assn v. Stans, 500 F.2d 17 (10th Cir. 1974). . . .20
West v. Secretary of the Department of Transportation,206 F.3d 920 (9th Cir. 2000). . . . . . . . . . . . . . . . . .21
White Tanks Concerned Citizens, Inc. v. Strock,
Case No. 07-15659 (9 Cir.2009) (slip op.). . . . . . . . . . . .5th
Statutes
5 U.S.C. 706. . . . . . . . . . . . . . . . . . . . . . .21, 23
16 U.S.C. 460l-8(f)(3). . . . . . . . . . . . . . . . . .17, 22
42 U.S.C. 4332(2). . . . . . . . . . . . . . . . . . . . . . 25
Regulations
33 C.F.R. Part 325, Appendix B 7. . . . . . . . . . . . . . .8
36 C.F.R. 59.3(b). . . . . . . . . . . . . . . . . . . .18, 23
40 C.F.R. 1508.9. . . . . . . . . . . . . . . . . . . . . . 25
40 C.F.R. 1508.18. . . . . . . . . . . . . . . . . . . . . . 3
40 C.F.R. 1508.25. . . . . . . . . . . . . . . . . . . . . . 6
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ARGUMENT
The Disputed Genesis of Harbor Shores
Appellees flawed conclusions are rooted in their fanciful,
a-factual narrative about the birth of Harbor Shores. According
to this account, the forty-year decline of Jean Klock Park
was ended when the Michigan Governors task force, formed fol-
lowing civil unrest in Benton Harbor in 2003, proposed a golf
course subdivision using JKP. From thence sprung Harbor Shores
Community Redevelopment, Inc., spawned by three eleemosynary
concerns dedicated to civic involvement. Aided by a 90% write-
down in equity value of JKP land, millions in governmental grants
and loans, EPA Superfund dollars, TIFs, and a disinclination to
share the dirt on poisoned brownfields swapped for JKPs prized
dune crests, HSCRI founded Harbor Shores.
The actual record is different. The actual record divulges
that a year before the 2003 civil unrest, in 2002, Whirlpool
Foundation retained the development firm Melrose Company to
refine the Harbor Shores scheme. RE 155 Exh.2B p.7. Building upon
this aversion to full disclosure, the myth of HSCRI was founded.
For example, HSCRI provided hydraulic, sediment evaluation,
flood plain mitigation, wetland mitigation and other reports,
plans or studies to the Corps of Engineers, but neverhanded over
its Documentation of Compliance with Part 10 Rules, RE 151
Exh.6, to the Corps nor the public. That Part 10" document lists
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five parcels of mitigation parkland as toxic "facilities"
requiring long-term monitoring and remediation, id. p.24, and
explains toxic exposure risks to the public, including leachates
into groundwater and the poisoning of the Paw Paw River. Docu-
ments available for public comment (6 weeks in 2008) contain only
scattered tidbits about the chemical profile of mitigation par-
cels. The Part 10 document was provided to NPS but not the Corps,
and NPS made no mention in its NEPA findings of the gross con-
tamination or potential public health risks from brownfields.
Rather, NPS gave rote approval to the concept of buffered hiking
trails, with no explanation as to why they were buffered.
The 2006 economic study HSCRI provided the Corps (RE 157 at
pp. 21-23) was dismissed by Benton Harbor. In the Public Comment
Summary, the City preferred the 2008 Upjohn report (not the 2006
study cited by the Federal Appellees) as the one which most
accurately reflects the conservative number of jobs that will be
created. RE 179 Exh. 28 pp.4-5. The 2008 report was provided
neither to NPS nor the Corps. Indeed, the Upjohn Institute
distanced itself from its own 2008 report with this disclaimer:
This Upjohn Institute report ... must not be construedas a market feasibility study for the proposed development.It is based solely on growth projections provided by theHarbor Shores developers and it does not offer an assessmentof the soundness of these projections. In addition the
Upjohn Institute in providing the report is not therebygiving its support for the leasing of 22 acres of the JeanKlock Park for the developments golf course.
RE 179 Exh. 28 pp. 6-7.
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Small Handle Permits Federalize the Project
Federal Appellees (Br. p.21) suggest that NPS conversion
approval was not a serious enough federal action to invoke
serious NEPA scrutiny. To them, L&WCFA requirements were protect-
ing a $50,000 ... investment in a municipal park bathhouse ...
over 30 years ago. But L&WCFA federalizes parks to provide a
degree of permanency against conversion and privatization. L&WCFA
is not mere perfunctory paperwork; it was supposed to assure
public involvement in the crucial decision to privatize JKPs
dramatic views1 for golf. But that public involvement saw
almost no disclosures of contamination, of planned pernicious
damage to the dunes, of extensive tree-cutting, and of asphalting
4 acres of beachfront.
Federal permitting discretion triggers public involvement
under NEPA even where federal money has not actually been
provided.... where federal entities have sufficient authority
over the local project so as to control or influence its
outcome. Citizens Alert Regarding the Environment v. EPA, 259
F.Supp.2d 9, 20 (D.D.C. 2003). Major federal actions include
projects ... entirely or partly ... regulated or approved by
federal agencies.... 40 C.F.R. 1508.18(a).
HSCRI contends (Br. p. 26) that Plaintiffs position that
the project relies on federal permits to realize completion was
1Federal Appellees Br.11.
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negated by Department of Transportation v. Public Citizen, 541
U.S. 752 (2001). But in Public Citizen, the agency had no auth-
ority to stop the anticipated environmental effects, whereas
here, either the Corps, with its historical oversight of creation
and termination of wetlands, or NPS, with discretion over con-
version approval, could prevent the environmental damage to JKP.
Applying NEPAs rule of reason, conversion approval might have
been endangered by truthful disclosures about the planned deg-
radation of natural features and the suspect swap of contaminated
land (encumbered with explicit exposure restrictions) for pris-
tine parkland. Although the proposed fill of wetland acreage was
computed down to the cubic yard in the Parkland EA, HSCRI never
disclosed any quantification of the far greater, dramatic dune
damage: Far more meaningful than offering this or any other
particular estimate of fill quantity was describing the location
and effect of adding the fill. HSCRI Br. p.39. NPS view was
Let the public eat conceptual plans.
In Public Citizen, proosed agency rules were deemed only
indirectly related to anticipated air pollution increases which
would follow upon issuance of an executive order. Here, however,
direct agency approvals authorized physical alterations to JKPs
dunes. The Ninth Circuit captured this distinction well:
We held in [Save Our Sonoran] that where a developmentcould not go forward without a permit, then the Federalinvolvement was sufficient to grant Federal control andresponsibility over the project within the meaning of the
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regulation. 408 F.3d at 1121-24. The United States SupremeCourts decision in Public Citizen is not to the contrary.In that case, the Supreme Court held that an agency did nothave to take into account certain environmental effects in
its EA because that agency had no ability to countermandthe Presidents lifting of the moratorium on trucks fromMexico; therefore, it was not the agencys action that wasthe proximate cause of the negative environmental impacts.[citation omitted]. In SOS, this court determined that itwas the Corps issuance of the Section 404 permit thatallowed the development to occur, and it was the issuance ofthe permit itself that caused the environmental effects.
White Tanks Concerned Citizens, Inc. v. Strock, Case No. 07-15659
(9th Cir.2009) (slip op.). In JKP, the NPS and Corps permits
themselves have set into motion the negative environmental
effects, although the Federal Appellees would have the Court see
their regulatory actions over the conversion project as akin to
benign rulemakings. That is absurd.
18 - 3 = Segmenting
The Federal Appellees misunderstand the concept of segment-
ing (Br.p.22) by asserting that the entire golf course develop-
ment, including the 15 private-land golf holes, are not covered
by NEPA, though they are part of an 18-hole unitary golf course.
The Appellees say that the 15 were built before NPS approval of
the remaining three in JKP, so the approval of those three holes
could not have affected the decision to construct those first
15. Br. p.22. But in fn. 17 of South Williamson County Community
Association v. Slater, 243 F.3d 270 (6th Cir.2001), cited by the
Appellees, the Sixth Circuit says, approvingly, that
... [C]ourts have found major Federal actions despite
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a federal agency's lack of jurisdiction over the non-federalproject when the court determines ... that the state wasimproperly attempting to segment its project into discretesections in order to circumvent NEPA requirements ... or ...
improperly attempting to de-segment a major federal actionto permit construction of one segment without complying withNEPA.
Id., 243 F.3d at 286 fn.17. HSCRI and Benton Harbor partitioned
18 holes bound by the accentuation of forward play into 15 and
3 precisely to circumvent NEPA scrutiny of the overall, larger,
project. The numbers just dont add up.
Actions are connected if they cannot or will not proceed
unless other actions are taken previously or simultaneously ...
Are interdependent parts of a large action and depend on the
larger action for their justification. 40 C.F.R. 1508.25(a)
(1). The 15 holes express forward play design in their
connection with the JKP holes at the Parks northeastern corner.
The JKP holes loop around a pond, and the course exits the Park
near its southeastern corner. The 15 holes pre-emptively forced
routing of the 3 holes through JKP before the public comment
period - they were under construction for over a year by that
time. This classic segmenting tactic is similar to the highway
proposal described in Maryland Conservation Council v. Gilchrist,
808 F.2d 1039, 1042 (4th Cir.1987), where a road was to be built
on either side of a L&WCFA-protected park such that the com-
pleted segments would stand like gun barrels pointing into the
heartland of the park (citation omitted).
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Facts Federalize the Project
Federal Appellees misunderstanding of the federalization
concept is obvious. They incorrectly state (Br. p.2) that NPS
approved the conversion of 22.11 acres of a municipal park in
exchange for 38.41 acres of newly created wetlands and recrea-
tional parkland pursuant to the L&WCFA. But none of the JKP
mitigation parkland is newly created wetlands. Parcel E is
pre-existing wetland. The newly created wetlands within Harbor
Shores represent mitigation for a predecessor development as well
as wetland mitigation for golf holes. They are subject to 404
regulation by the Corps, and are wholly distinct from park
mitigation acreage which, as parkland, is regulated by NPS.
Federal Appellees state, incorrectly, that Plaintiffs demand
federalization of the 530-acre Harbor Shores project even though
only a portion of it required permits in order to proceed.
Fed.App. Br.25-26. What Plaintiffs actually argue is that absent
the permit-essential portions of JKP, the whole project could not
proceed (according to HSCRI). HSCRI insists that it could not
reconfigure the project to limit construction to areas not in-
volving NPS approval, because the development utterly depends
upon having spectacular views of Lake Michigan.
The District Engineer is considered to have control and
responsibility for portions of the project beyond the limits of
the Corps jurisdiction where the Federal involvement suffices to
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turn an essentially private action into a Federal one - viz.,
where the environmental consequences of the larger project are
essentially products of the Corps permit action. Typical
factors to be considered in determining whether sufficient Corps
control and responsibility exists include [w]hether 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, and [t]he extent of cumulative Federal
control and responsibility. 33 C.F.R. Part 325, Appendix B
7(b)(ii) & (iv). But the Corps adopted HSCRIs dogma from the
404 application that:
The target property for this project must be landassociated with water since Benton Harbor is a coastal cityon Lake Michigan and it is a proven attraction for visitors.The Paw Paw River is the major body of water flowing throughthe city. A golf course requires large tracts of land. Theonly land available for such use in the City of BentonHarbor is along the Paw Paw River. Therefore, based on thesearch of available properties within the City of Benton
Harbor and the criteria necessary to realize the basicproject purpose, Harbor Shores found that there were noalternative locations for the proposed mixed-use develop-ment.
RE 177 Exh. 26 p. 5.
Plaintiffs noted in their first Brief (p.36) that the USEPA
criticized the stated project purpose as to construct a Jack
Nicklaus Signature Golf Course, which is inherently too
specific and ruled out practicable alternatives ... because it
is not prudent to high quality golf. RE 147 Exh.1 pp. 19-20,
USEPA letter.
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Federal Appellees complain that (Br. p.33) Plaintiffs wrong-
ly accuse NPS of limiting its purpose and need to a Jack Nicklaus
signature golf course. They deny, in fact, that NPS even men-
tions the signature course in its EA/FONSI. RE 174 p.65. They
may want to reconsider, however, since RE 174 p.65, part of the
Summary Document for Public Review of the NEPA package, states
The proposal is to convert 22.11 acres of the 74-acre Park for
three holes of public golf course to be designed by Nicklaus
Design as a Jack Nicklaus signature public golf course. Too,
the EA for the JKP conversion area - one of two EAs of which NPS
claims ownership - states: These parcels are to be converted to
three holes of a golf course designed by Nicklaus Design as a
Jack Nicklaus Signature golf course.
So it seems that NPS didrestrict purpose and need for the
project to a grandiose Nicklaus course, which effectively exclu-
ded consideration of any less-destructive alternative. The
Federal Appellees and HSCRI categorically rejected any alternat-
ive which would not accommodate a Nicklaus design golf course
containing spectacular views from the JKP dunes. The Appellees
insist that the private-land portion of the project could not
exist independently of the regulated parkland part. Given this
fusion, the entire 530-acre development, the conversion area of
JKP and the contaminated mitigation parkland are all deemed
federalized - hence combined - for purposes of NEPA and 404
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consideration. Issuance of a 404 permit which considered the
environmental effects only upon sub-portions of the development
must be canceled and reversed for want of adequate scope.
Appellees Hard Look Was Through a Blind Eye
The Federal Appellees a-factual recitations include
sweeping assertions (Fed.App. Br.29) that both federal and state
agencies considered the net excavation - actually, the gouging
and bulldozing - of hundreds of yards length of the 60' high
dunes which transect JKP. The Federal Appellees cite 10
different places in the administrative record where, ostensibly,
the cubic yardage of dislocated dune sand is quantified. But not
a single citation refers to excavation of the dunes.2 There is
discussion of sediment dredged from the Paw Paw River, of cubic
yardage of fill to be placed into wetlands in the project area,
and of the elevation of flood plains. But there is literally no
quantification - hence, zero disclosure to the public - in either
administrative record of the damage planned for the dunes. The
dunes are to be anchored with unknown fill and topsoil to perm-
anently halt their natural migration patterns with turf grass.
The dunes are the major natural features of the Park,
historically used for hiking, sledding, tumbling, picnicking,
viewing fireworks displays, and contemplating Lake Michigan, and
2Plaintiffs refer to Federal Appellees reliance on RE 1579, 13-15; RE 159, 5-6, 10, 52-54.
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they establish the essential ambiance of the park interior. The
NEPA documents are completely void of any discussion of the
dramatic alteration and de-naturalization of these focal struc-
tures (besides a passing mention of contouring). That simply
was not a mere oversight.
Similarly, the exclusion from discussion of 4 acres taken
for an access road and parking lot on the beachfront outside the
leased area, and the eradication of ancient trees, some along an
historical, buried brick road, was not accidentally omitted from
the scope of the NEPA discussion. The Federal Appellees suggest
(Br.30) that constructing the beachfront parking lot was not
necessitated by the removal of the parking lot in the lee of the
dunes. They admit that the old lot was destroyed and replaced by
fill material to anchor the dunes and mold them for golf, thus
the asphalted beachfront acreage was undeniably converted for
replacement parking. This added nearly 4 acres to the 22.11
interior parkland acres admittedly converted. New parking facil-
itated the construction of the 3 new golf holes.
The Federal Appellees deny (Br.30) that there was conceal-
ment of significant information about the degree of contamination
of the mitigation parkland parcels by pointing to mentions of
arsenic in a letter appended to, but not referenced in, the NPS
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version of the NEPA document.3 But arsenic does not appear in
the Environmental Assessment cited by the Federal Appellees.
Plaintiffs conclusively proved in their first Brief that the
Corps was never given the Part 10 Document which inventories the
industrial toxins which continue to leak into the atmosphere and
the waters of the adjacent Paw Paw River, even now. RE 151 Exh.6
pp.10-13. Yet the Corps mystifyingly argues (Br.30-31) that
nothing ... would lead the Corps to believe any of the activi-
ties it permitted would cause that leakage. Inasmuch as the
agency didnt receive the Part 10 analysis, nothing was there
to prompt that conclusion. Professional insight, however, would
suggest that carving up acres of former foundry land along a
Section 10 river for paths, wetlands, stream covering, boardwalks
and swales would almost certainly disturb contaminated brown-
fields and groundwater.
A search for the word contamination in the Corps adminis-
trative record reveals literally nothing about the toxins present
in the entire Harbor Shores development. Twenty-two (22) docu-
ments contain the word contamination. Nine (9) are comment
letters and emails from the public about such subjects as the
planned irrigation of the golf course (on contaminated land) with
25,000,000 gallons of water each season. Seven (7) are various
3The version of the NEPA document conveyed to the COEnotably omitted this same letter.
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updates of a Compensatory Wetland Mitigation Plan, where
contamination appears in a single sentence, stating only that
core analysis of soil will be performed to check for contamin-
ation. One (1) document is the lengthy Conversion and Mitiga-
tion Proposal for JKP. An public comment letter the Corps
forwarded to HSCRI following a 2006 public hearing on wetland
mitigation contains contamination. HSCRIs Pollution Preven-
tion Plan mentions contamination in the form of anticipated
spillages of pesticides or herbicides on the golf course. And the
Corps Permit Evaluation mentions contamination twice rela-
tive to filling new wetlands and lessening contamination in
existing ones. Finally, there is a Sediment Evaluation Manage-
ment Plan, detailing how contamination will be minimized during
nonremedial maintenance dredging of the Paw Paw River for a
marina. This addresses only potential contamination of the
riverbed. But there is no mention of the toxins in the brown-
fields, including the mitigation parkland parcels, hence no
environmental impact analysis. Lacking knowledge of the Part 10
analysis, the Corps claims of adequate protection of water
quality are vacuous and legally unsustainable, having no support
whatsoever in the agency record.
Similarly, neither of NPSs two EAs for the conversion
mention or account for remedial actions on the mitigation
parcels; NPS didnt mention the Part 10 analysis in its EA/FONSI,
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and the public was never given it, nor told that the poisoned
38.41 mitigation parkland acres would, once remediated, allow
activity onlyon buffered hiking paths. The NPS brief does not
explain, evenpost hoc, why it withheld key evidence of
contamination from the public, such as the December 13, 2007
letter from Michigans DEQ to its DNR. The letter constructed out
of whole cloth a recreational toxic exposure standard to limit
contact by children with the contaminated mitigation parkland. RE
168 at 26-27. Nor does NPS say why contamination was not
mentioned in the conversion approval. Certainly it would have
made a difference to the public if the NEPA disclosures explained
that the state government had acknowledged permanent public
health risks to children on the new, replacement parkland. The
NPS does not explain why the permanent, completed pathways for
PAHs and VOCs to pollute the air, land and water do not comprise
an array of impacts upon the human environment which under NEPA
and 404 must be disclosed, analyzed and discussed.
The Federal Appellees have clung to conclusory assertions
throughout this litigation, but an agency cannot rely on "con-
clusory assertions that an activity will have only an insignif-
icant impact on the environment." Ocean Advocates v. U.S. Army
Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir. 2005). The basis for
the agency approvals was inadequate, even imaginary. The Court
may thus not affirm either the conversion approval or the 404
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permit.
Plaintiffs Unique Status Establishes Their Standing
Plaintiffs claims to standing to challenge the appraisals
of JKP and the mitigation parkland are two-fold.
A. Prudential interest as environmental litigants
Plaintiffs direct prudential interests in this lawsuit,
evidenced by their district court declarations, are as longtime,
intensive recreational users of JKP. The Supreme Court affirmed
such an interest as a basis for standing in Summers v. Earth
Island Institute, 129 S.Ct. 1142, 1147 (2009):
While generalized harm to the forest or the environmentwill not alone support standing, if that harm in fact af-fects the recreational or even the mere esthetic interests
of the plaintiff, that will suffice. Sierra Club v. Morton,405 U.S. 727, 734736 (1972). (emphasis supplied).
Plaintiffs brought their lawsuit as environmental litigants,
not as taxpayers. Plaintiffs maintain that the appraisals were
incompetently done, in violation of bright-line protocols con-
tained within the Uniform Appraisal Standards. Plaintiffs seek,
not to protect the public fisc, but to expose the suspicious
nature of appraisals arranged by an HSCRI attorney. The
appraisals made the conversion inexpensive for HSCRI. HSCRI
needed a lowballed appraisal of $900,000 for the 22.11 parkland
acres which did not rely upon the $15,840,000 value that the
appraisal reviewer assigned to JKP (RE 178 Exh.27 p.8) so that
the contaminated land mitigation for JKPs heartland would seem
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to be a fair trade. Parcel H, a 1.47-acre, regulated toxic
facility on the Paw Paw River, was appraised at $714,000 - nearly
80% of the $900,000 value of the uncontaminated 22.11 acres
inside the Park! The underappraisal of JKP also ensured a low
base rental figure for the 105-year contemplated lease term.
HSCRI rents the 22.11 acres containing 3 golf holes and spectac-
ular views at an initial rate of $32,000 annually.
Appellees incorrectly challenge Plaintiffs standing as
taxpayer standing; Plaintiffs do not claim a mere taxpayer
interest in protecting the federal investment in JKP. They have
prosecuted this lawsuit as environmental litigants who have used
the Park recreationally for many years. As such, Plaintiffs
established prudential standing which differentiates them from
the general public, and from other taxpayers, because Plaintiffs
frequent usage and protectiveness of JKP as users who live in the
vicinity is not an interest shared commonly by all members of the
public.
Plaintiffs standing to sue is validated and bolstered by
Earth Island. As recreational Plaintiffs, they maintain a direct
interest in opposing the privatization of Jean Klock Park;
demanding an economically realistic appraisal instead of a gross
underestimate is simply an expression of that opposition. HSCRI
categorically declined to consider any alternative which would
locate the golf course completely outside JKP because of
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profitability considerations. Plaintiffs have continuously
insisted that the economics of the project must therefore be
publicly disclosed, especially given departures from federal
appraisal standards in the appraisals. The appraisers failure to
assign a highest and best use valuation to JKP land produced a
suspect, low-dollar value for the converted parkland, which made
the conversion artificially attractive to HSCRI and its corporate
backers.
B. Environmental litigants may rely on Adams standing
to pursue multiple violations of L&WCFA
In DaimlerChrysler v. Cuno, 547 U.S. 332, 349 fn. 5 (2006),
the Supreme Court noted that Sierra Club v. Adams, 578 F.2d 389
(D.C. Cir. 1978) grants that once a litigant has standing to
request invalidation of a particular agency action, it may do so
by identifying all grounds on which the agency may have failed
to comply with its statutory mandate.... Cuno affirmed that
environmental litigant standing allows plaintiffs, such as those
at bar to identify and litigate all grounds on which the agency
may have failed to comply with its statutory mandate. That is
precisely what Plaintiffs have done here, under the L&WCFA.
Notably, neither Appellees nor the district court objected
to Plaintiffs standing to complain that the mitigation parcels
approved by NPS are not, per the L&WCFA, reasonably equivalent
[in] usefulness with the property proposed for conversion, a
statutory police implemented by a key L&WCFA regulation. 16
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U.S.C. 460l-8(f)(3); 36 C.F.R. 59.3(b)(3). Having
established standing to challenge misapplication of the L&WCFA on
the reasonable equivalence issue, Plaintiffs, perAdams, also
thus have standing to attack the sufficiency of the appraisals
under another L&WCFA regulation, 36 C.F.R. 59.3(b)(2).
Plaintiffs prudential interest is found in their unique
concrete interest, as environmental litigants (a distinguishable
subset of the population), in resisting the procedural harm of
unlawful steps taken which caused the conversion of JKP. Loss of
procedural due process is a type of imminent harm from the
conversion. Plaintiffs interests are conceivably protected by
the statutes on which they base this litigation (NEPA, L&WCFA,
CWA). Plaintiffs standing to challenge any violations of the
L&WCFA includes standing to challenge the adequacy of the
appraisals, perAdams.
There Is No Mootness; the Project Is Not Completed
Citing newspaper articles and unsourced facts about HSCRIs
budget, HSCRI suggests (Br. pp.18-19) that the NEPA claims of
this lawsuit have become moot. But at its fn.5, HSCRI antici-
pates projects spending millions of dollars for work on the
mitigation parkland in 2010 and 2011 (Br. p.20). Similarly, at
Br. p.16, Federal Appellees incorrectly allege that none of the
remainder of the Project is expected to require any Federal
approval or permitting.
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To counter HSCRIs and the Federal Appellees extra-record
facts, Plaintiffs ask that the Court take judicial notice of
certain public record facts4 which Appellees failed to tell the
public throughout the NEPA process. The U.S. Environmental
Protection Agency has identified a spreading, toxic vinyl chlor-
ide plume which has migrated through the groundwater underneath
the Paw Paw River from a Superfund site controlled by HSCRI
within the Harbor Shores project area to locations within
mitigation parkland parcel E. See www.epa.gov/superfund/sites
/fiveyear/f2008050002653.pdf at pp. 9, 26, 31, 33 (of .pdf). The
plume may further contaminate the already-contaminated Parcel E
and other mitigation parkland parcels situated downstream, yet
HSCRI has not disclosed the plumes longtime existence to the
public, Federal Appellees or the courts. Of this Superfund site,
where residential condominiums are planned, USEPA states:
In order to assure protectiveness of the site cleanup,the site owner or developer would need to work with EPAbefore residential development of the property ... toevaluate whether contaminant concentrations found in thearea are consistent with residential use and would have totake additional measures if the contaminant levels do notallow for residential use. These measures may includeadditional site cleanup ..., demonstration that residentialsoil cleanup levels are already met, and/or ... installationof vapor barriers ... in the construction of theresidences.... [I]f additional information, sufficient tosupport a change of a portion of the site property to
4See Papasan v. Allain, 478 U.S. 265, (1986); Government ofCanal Zone v Burjan, 596 F.2d 690 (5th Cir.1979) (fact may bejudicially noticed by appellate court under FRE 201 at any stageof the proceeding).
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residential use is presented to USEPA, it will be necessaryto document such change with either an explanation ofsignificant difference (ESD) or an amendment to the Recordof Decision (ROD).
Id. at 8.
This appeal is not rendered moot by Appellees self-
interested NEPA interpretation; demonstrating mootness carries a
heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); North Environmental Defense Center v. Gordon, 849 F.2d
1241, 1244 (9th Cir.1988). The question is not whether the
precise relief sought at the time the application for an injunc-
tion was filed is still available. The question is whether there
can be any effective relief. Id., 849 F.2d at 1244-45.
A suit to compel future action is moot only after the future
action has been "fully and irrevocably carried out." E.g.,
University of Texas v. Camenisch, 451 U.S. 390, 398 (1981). Thus
a suit to compel an EIS is rendered moot only when the EIS is
completed and filed. Romero-Barcelo v. Brown, 643 F.2d 835, 862
(1st Cir. 1981); City of Newport Beach v. CAB, 665 F.2d 1280
(D.C.Cir. 1981); Upper Pecos Assn v. Stans, 500 F.2d 17 (10th
Cir. 1974).
Here, the EIS process is not only unfinished, it has not
begun. If the Court concludes that the conversion of JKP consti-
tutes a "major federal action" or that there was critical infor-
mation withheld from the public and/or the NPS and Corps did not
give the project the required hard look, then it can compel
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agency action unlawfully withheld or unreasonably delayed." See 5
U.S.C. 706(1). Injunctive actions at that point might include
halting construction of hiking trails, excavation and remedia-
tion. The Court could void the HSCRI-Benton Harbor lease and
eject HSCRI from the Park. That lease provides that in the event
of cancellation, HSCRI will restore the Park to the physical
state that pertained, pre-golf. RE 178 Exh.27 p.19; RE 179 Exh.28
pp.2-3. See Columbia Basin Land Protection Assoc. v. Schles-
inger, 643 F.2d 585, 591 n.1 (9th Cir. 1981) (power line already
constructed, but challenge not moot because relief could still
take form of its removal); Burbank Anti-Noise Group v. Gold-
schmidt, 623 F.2d 115, 116 (9th Cir.1980) (action challenging
completed sale of airport not moot when the actions could be
"undone"), cert. den., 450 U.S. 965 (1981).
If all it took to set up a claim of nonjusticiability were
completion of the action challenged under NEPA, a party "could
merely ignore the requirements of NEPA, build its structures
before a case gets to court, and then hide behind the mootness
doctrine. Such a result is not acceptable." West v. Secretary of
the Department of Transportation, 206 F.3d 920, 925 (9th Cir.
2000) (citation omitted).
The blatant NEPA and 404 violations by HSCRI and Benton
Harbor have caused this litigation and bought time for the Park
to be largely mangled for golf. But the harm to Plaintiffs
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interest continues; the conversion of JKP is an ongoing project.
Mootness must not be allowed to reward Appellees mendacity.
There Is SCORP Noncompliance When PriorityParkland Positives Are Lost to Conversion
Appellees contend that NPS had a merely perfunctory role in
assuring that the JKP conversion complied with the L&WCFA, argu-
ing that passive acceptance of certification by the State was
sufficient scrutiny. That is not what the statute requires. Sec-
tion 6(f)(3) of the L&WCFA [16 U.S.C. 4601-8(f)(3)] states
pertinently:
The Secretary shall approve such conversion only ifhe/she finds it to be in accordance with the then-existingStatewide Comprehensive Outdoor Recreation Plan (SCORP) andonly upon such conditions as he/she deems necessary toassure the substitution of other recreation properties of atleast equal fair market value and of reasonable equivalentusefulness and location.
The Interior Secretary must find the conversion to accord with
the SCORP. New Yorks federal district court interprets that
statute in this way:
Under the L&WCFA, the NPS may only approve of thisconversion for private use if it concludes that theconversion of public parkland would be in accord with thecomprehensive statewide outdoor recreation plan (SCORP)andonly upon such conditions as [the NPS] deems necessary toassure the substitution of other recreation properties of atleast equal fair market value and of reasonably equivalentusefulness and location. 16 U.S.C. 4601-8(f)(3).
Save Our Parks v. Kempthorne, 2006 U.S. Dist. LEXIS 85206 (2006).
There is no room in the statute for NPS to delegate the finding
of SCORP compliance to the states or other entities. The
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determination of SCORP compliance is reviewable under the
arbitrary and capricious standard of the APA, 5 U.S.C.
706(2)(A), NPS passive, unexamined acceptance of Michigans
certification was arbitrary and capricious.
Federal Appellees contend (Br. p.55) that nothing supports
the ranking of conservation as the top SCORP goal. At fn. 15 of
their first brief, Plaintiffs showed that conservation was ranked
at the top in goal-setting for the 2008-2012 SCORP, citing RE 152
Exh.7 p.17.
Benton Harbor maintains (Br. p.40) that only the end result
of the conversion and substitution process, [i.e., the handover
of replacement property] satisfies the SCORP. But 36 C.F.R.
59.3(b)(9) expressly requires that both [t]heproposed conver-
sion and substitution are in accord with the [SCORP] (Emphasis
supplied). The federal regulation compels both the conversion and
mitigation to concur with SCORP.
Whatever is done with converted parkland post-conversion is
irrelevant to meeting SCORP. What is relevant is whether loss of
particular park features inside the conversion area would contra-
dict SCORP goals. If parkland could be converted regardless of
its valued features so long as the mitigation parkland were in
accord with SCORP goals, the L&WCFA would be a nullity, because
parkland protection and integrity would have no relevance.
Moreover, Appellees are wrong when they claim that whatever
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is done with the converted parkland post-conversion is not at
issue. The JKP conversion is not approvable, because the natural
features - the dunes - are being sacrificed, partially recon-
figured and removed from parkland status, which directly
contradicts the SCORP goal of natural resource protection which
has been consistently recognized in current and previous state-
wide plans. NPS has approved the conversion in derogation of the
SCORP, not in accordance with it. This is reversible error.
Brief Discussions of Lite Alternatives
A. Standing and waiver
The Federal Appellees question (Br. p.35) whether Plaintiffs
may challenge adequacy of the alternatives, claiming Plaintiffs
waived opposition by not requesting location of the golf holes
outside the Park, or suggesting a smaller course footprint.
LuAnne Kozmas public comment letter expressly mentioned the
northern location alternative depicted on the 2004 Redd Map and
sought consideration of a smaller course footprint. RE 178
Exh.27 pp.2-3. Plaintiff Julie Weiss expressly incorporated the
Kozma comments by reference into her own. RE 178 Exh.27 p.8.5
Thus Plaintiffs did expressly propose such alternatives.
But it is immaterial whether Plaintiffs made such proposals.
See Sierra Club v. Adams, 578 F.2d 389, 391-93 (D.C. Cir. 1978):
5I also support and incorporate the comments made by LuAnneKozma ... as my own.
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[B]ecause appellees have established an independentbasis for standing to challenge the FEIS, they also havestanding to argue the public interest in support of theirclaim that there is inadequate discussion and consideration
of the effect of the construction on the Cuna and ChocoIndians.
See also DaimlerChrysler v. Cuno, 547 U.S. 332, 349 fn.5 ([O]nce
a litigant has standing to request invalidation of a particular
agency action, it may do so by identifying all grounds on which
the agency may have failed to comply with its statutory
mandate....).
B. Hard look doctrine includes EA alternatives
The Federal Appellees and HSCRI contend that an EA contain
only brief discussions of alternatives, citing 40 C.F.R.
1508.9, as though the regulation dispenses with any expectation
that NEPA and interpretative precedent must be followed. Fed.App.
Br. pp.34-5; HSCRI Br. pp.486. But NEPA states (42 U.S.C.
4332(2)):
The Congress authorizes and directs that, to the full-est extent possible all agencies of the federal governmentshall include in every recommendation or report on pro-posals for legislation and other major Federal actionssignificantly affecting the quality of the human envir-onment, a detailed statement by the responsible official onalternatives to the proposed action. (Emphasis supplied)
This Circuit insists that NEPA prevents agencies in an EA from
effectively defining the objectives of their actions in terms so
6[T]he alternatives analysis in an EA is less rigorous thanin an EIS, citing Save Our Cumberland Mountains, 453 F.3d 334(6th Cir. 2006).
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unreasonably narrow they can be accomplished by only one alter-
native. Save Our Cumberland Mountains v. Kempthorne, 453 F.3d
334, 345. This Court requires that the agency has ... ade-
quately studied the issue and taken a hard look at the envir-
onmental consequences of its decision. Id. at 339 (citations
omitted). The Sixth Circuit holds that an EA addresses two
purposes: (1) to "ensure[] that the agency ... will have avail-
able, and will carefully consider, detailed information concern-
ing significant environmental impacts" and (2) to "guarantee[]
that the relevant information will be made available to the
larger audience that may also play a role in both the decision-
making process and the implementation of that decision. Id. at
348, quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 349 (1989).
Here, alternatives were rejected in conclusory fashion,
mostly for undisclosed economic reasons. No action (no
conversion) which would leave Harbor Shores 530 acres redev-
elopment-ready (Alternative 1) was rejected out of hand. A
smaller-than-Nicklaus course would not sufficiently transform
Benton Harbor profitably (Alt. 2). Golf on the Parks beach
(Alt.3) would be at-grade on the Lake and be unspectacular.
Building south of JKP has too many physical impediments and
recreation is allegedly 425 Act-prohibited (Alt. 4), although
Parcel H, another 425 Act parcel, is mitigation parkland (hence
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recreational). Golf east of JKP is infeasible because the
forward play comes from another direction (Alt. 5). Secret
economic data says that golf north of JKP would not transform
Benton Harbor enough (Alt. 6). The alternatives discussion was
captive of a project purpose so slender as to define competing
'reasonable alternatives' out of consideration (and even out of
existence), negating NEPAs role. Simmons v. United States Army
Corps, 120 F.3d 664, 666-67 (7th Cir.1997). Appellees brief EA
discussions of alternatives avoided taking a hard look.
Appellees shortened the form to abandon all substance.
The Record Is Clear: JKP Is Eligible
for National Register Listing
In July, 2004, (RE 149 at pp.4-7) Michigans SHPO advised
Benton Harbors (now Harbor Shores) lawyer:
A recent site visit by one of our staff membersrevealed that while the park has undergone some changes dueto new development and the effects of nature and neglect,
many of the parks significant features are still intact.The 3.7 acre Grand Boulevard Parcel ... has undergone somechanges due to the natural shifting of the sand dunes thathave covered a portion of the roadand some of the original
plantings. Thus some of the integrity ofthe design has been
lost. However, features from the original design can still
be seen and should be retained. (Emphasis supplied)
The foregoing, however, begs the question: whose design?
What plantings? Michigans SHPO cautioned Benton Harbor:
... The entry posts must be retained, and any intact,original portions of Grand Boulevard (sic - should be JeanKlock Boulevard) should be restored wherever possible.
There is a grouping of large cottonwoods on the northside of Grand Boulevard ... Every effort should be made to
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preserve this cluster ...The designers for this project should review Jensens
original plans and incorporate as much of the originaldesign and materials as possible in their proposed plans ...
Id.
The SHPO is not in the business of merely offering advice to
real estate developers on project design or aesthetic consider-
ations under a Section 106 review unless those matters bear upon
historically significant properties. SHPO employs the verb must
referring to the entry columns retention, and directs that the
developer should preserve the trees and should review the
Jensen plans and incorporate them into the development, and the
road should be restored. SHPO was acting in an official
capacity, not an informal one. The fact that these considerations
were forgotten the minute they were written and never conveyed to
the ACOE during the Section 106 review for Harbor Shores does not
invalidate their importance.
SHPO neither conceded doubt, nor declared its findings pre-
liminary in 2004. (Fed.App.Br.p.60 fn.17). The SHPO letter
continued: Jean Klock Park ... appears to meet the criteria for
listing in the National Register ... Subsequent review in
7Appellee NPS here confuses the Grand Boulevard Renaissancedevelopment, which in fact didoccur, with Harbor Shores,although the earlier conversions resulting permanent injunctionagainst commercial development was essential to Harbor Shoreslater deep discount appraisal. The chronology of JKP conversionsrendered by Appellees requires dismissal of SHPOs July 29, 2004opinion as preliminary; otherwise, no golf in the dunes orasphalt on the historic roadway.
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September 2006 of manmade features by Hitchcock Design, then a
Harbor Shores partner, (RE 154 at 4) and the Corps of plant
material in a Michigan December (RE 162 at 12) serve only to
rationalize development.
Although the Corps did solicit comment from various Jens
Jensen authorities, it did not offer to hire any for a thorough
historical review despite SHPOs concern over Hitchcocks
conflict and Hitchcocks peevish denunciation of the Corps
reading comprehension (RE 177 Exh.26 p.2). One respondent told
the Corps:
[I]t appears your original report [Hitchcock] istainted by a possible conflict of interest. It also appears,from a brief reading of these documents, that the issue ofNational Register eligibility has not been fully addressedand that the park may indeed be eligible under one of thefour criteria, even if it is NOT a fully implemented designby a nationally known designer such as Jens Jensen.
RE 177 Exh.26 p.3.
Federal Appellees offer a 1990 JKP Master Plan excerpt (RE
161 at 40) to discount the historic integrity of JKP (topography
suggested that much of the area had been leveled and scraped),
yet they were literally looking the wrong direction. The
immediately subsequent sentence in that plan says: This is
especially true for the City of Benton Harbor water facility and
its surrounding parking lot occupying the extreme south portion
of the project area. (RE 161 at 41). The historic trees
documented by SHPO in July, 2004, are located at the opposite end
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- north end - of the 74-acre park. Notably, in its September
2006 survey of structures in JKP, Hitchcock Design failed to list
as National Register-eligible this same historic 60-year-old
water facility, the largest building situated on JKP. RE 154 at
4.
The backpedaling and dissembling by Defendants and SHPO
following the Michigan Governors assurance of carte blanche to
Whirlpool Corporation for its golf course development (RE 177
Exh.26 pp.6-7) are unmistakable. JKPs National Register
eligibility was inconvenient, and so, history had to be
rewritten.
/s/ Terry J. LodgeTerry J. LodgeCounsel for Plaintiffs-Appellants
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the typevolume limitation imposed by Fed.R.App.P. 32(a)(7)(B). The briefwas prepared using Wordperfect x4 and contains no more than6,982 words of text. The typeface is Courier New, 12-point font.
/s/ Terry J. LodgeTerry J. LodgeCounsel for Plaintiffs-Appellants
Dated: October 29, 2010
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2010, I electronicallyfiled the foregoing Opening Brief of Appellant with the Clerk ofthe Sixth U.S. Circuit Court and that pursuant to official ECFpolicy, it was to be electronically served upon all counsel of
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record.
/s/ Terry J. LodgeTerry J. Lodge
Counsel for Plaintiffs-Appellants
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DC\#270462-60-
ADDENDUM A DESIGNATION OF
RELEVANT DISTRICT COURT DOCUMENTS
PLAINTIFFS DESIGNATIONS FROM THE CORPS RECORD
Title of Document Document begins
in Administrative
Record at Page
Pages
designated by
Plaintiffs
Record Entry
Number
Harbor Shores A Corps
Foundation for Community
Transformation
Corps AR 60 74, 76, 97 RE 147 at 2, 3, 4
Collected report from Jean
Klock Park
Corps AR 782 799, 834 RE 147 at 5, 6
Conceptual Stormwater
Management Plan
Corps AR 1015 1015, 1027 RE 147 at 7, 8
Corps, Allenson to JFNew,
von Wahlde
Corps AR 1098 1101, 1104 RE 147 at 9,10
JFNew, von Wahlde letter to
City 5/14/2008
Corps AR 1723 1725 RE 147 at 11
Department of the Army
permit evaluation
Corps AR 1867 1867, 1870,
1882, 1898,
1909-1910,
1920
RE 147 at 12,
13, 14, 15, 16-
17, 18
EPA, Pierard letter Corps AR 2250 2250, 2251 RE 147 at 19, 20
SHPO, Conway letter to
Corps, Allenson 8/11/2006
Corps AR 2570 2570 RE 147 at 21
Harbor Shores, McFeeter letter
to Corps, Konik 10/19/2006
Corps AR 2574 2575, 2578,
2580-2581,
2587-2598
RE 154 at 2, 3,
4-5, 6-17
SHPO, Conway letter Corps toCorps, Allenson 10/19/2006
Corps AR 2609 2609-11 RE 155 at 2-4
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DC\#270462-61-
Title of Document Document begins
in Administrative
Record at Page
Pages
designated by
Plaintiffs
Record Entry
Number
SHPO, Grennell letter to
Corps, Allenson 5/2/2006
Corps AR 2612 2612 RE 155 at 5
L. Krieger letter to MDEQ,
Poynter w/encls.
Corps AR 2704 2705 RE 155 at 6
Presentation for Executive
Leadership meeting
10/13/2005
Corps AR 3588 3604, 3626-
3627
RE 155 at 7, 8-9
Corps returning one copy of
permit to applicant, 8/29/2008
Corps AR 3836 3839 RE 155 at 10
PLAINTIFFS DESIGNATIONS FROM THE PARK SERVICES RECORD
Title of Document Document begins
in Administrative
Record at Page
Pages
designated by
Plaintiffs
Record Entry
Number
MDNR letter to NPS,
12/22/2004
DOI AR 15 15 RE 148 at 2
Consent Judgment DOI AR 22 22-34 RE 148 at 3-15
Michigan SHPO letter to
Benton Harbor attorney Fields
7/29/2004
DOI AR 48 48 RE 148 at 16
Exhibit G to Conversion
version and Mitigation
Proposal
DOI AR 494 499 RE 148 at 17
Exhibit S to Conversion and
Mitigation Proposal
DOI AR 871 876 RE 148 at 18
NPS 10/16/2007 letter to
MDNR denying conversion
DOI AR 883 883-87 RE 148 at 19-23
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DC\#270462-62-
Title of Document Document begins
in Administrative
Record at Page
Pages
designated by
Plaintiffs
Record Entry
Number
NPS phone memorandum
1/25/08
DOI AR 912 912 RE 148 at 24
U.S. Army Corps letter
4/28/2008 to Benton Harbor
DOI AR 1011 1011-14 RE 148 at 25-28
Southwest Michigan
Commission letter to MDNR,
10/13/2006
DOI AR 1115 1118 RE 149 at 2
Copy of U.S. Army Corps
letter to John Cameron,
06/30/2006
DOI AR 1141 1147 RE 149 at 3
Michigan State Historic
Preservation Office letter,
2004
DOI AR 1152 1152-55 RE 149 at 4-7
Letter, Luanne Kozma to U.S.
Army Corps, 12/4/2006
DOI AR 1170 1170 RE 149 at 8
Copy of 5/11/2008 Benton
Harbor Herald Palladium
Guest column
DOI AR 1222 1222 RE 149 at 9
Copy of Wendy Chesser
1/15/2008 electronic mail
DOI AR 1327 1337, 1340,
1341
RE 149 at 10,
11, 12
Copy of Maureen Houghton
12/12/2007 electronic mail
DOI AR 1342 1342 RE 149 at 13
5/17/2008 Nicole Moon letter
Att. 5
DOI AR 1463 1466, 1467 RE 149 at 14, 15
Part I, Exhibit E Public
Comment Summary
DOI AR 1750 1777, 1792,
1802, 1811
RE 149 at 16,
17, 18, 19
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DC\#270462-63-
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in Administrative
Record at Page
Pages
designated by
Plaintiffs
Record Entry
Number
Part II Attachment B Exhibit 2
Jean Klock Park
Improvements Drawings
DOI AR 1852 1855 RE 150 at 2
Part II Attachment E
Environmental Assessment for
the mitigation lands
DOI AR 1926 1984, 1985 RE 150 at 3, 4
Part II Attachment F Lease
Agreement
DOI AR 2021 2031, 2032 RE 150 at 5, 6
Part III Harbor Shores Lease
Agreement blacklined version
DOI AR 2149 2169, 2170 RE 150 at 7, 8
Documentation of Compliance
with Part 10 rules
DOI AR 2328 2328-2362 RE 151 at 2-36
Documentation of Compliance
with Part 10 rules
DOI AR 2328 2363-2376 RE 152 at 2-15
Part IV Michigan Statewide
Comprehensive Outdoor
Recreation Plan
DOI AR 2477 2548, 2558 RE 152 at 16, 17
NPS internal conversionevaluation
DOI AR 2753 2757 RE 152 at 18
NPS FONSI 7/25/2008 DOI AR 2761 2761 RE 152 at 19
Environmental Analysis
Summary Document
DOI AR 2762 2764-2767 RE 152 at 20-23
NPS 7/25/2008 letter to
MDNR
DOI AR 2778 2778 RE 152 at 24
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PLAINTIFFS SUPPLEMENTAL DESIGNATION OF ADMINISTRATIVE RECORD
Name of Document Document Begins in Pages Designated Record
Admin Record at by Plaintiffs Entry No.
EXHIBIT 26
Hitchcock Design Corps AR 734 734 RE 177 atGroup letter to ACOE 29/9/2006
Email, ACOE (Westerly Corps AR 746 746-747 RE 177 atGroup) 2/20/2007 3-4
JF New, Sect. 404 Corps AR 2024 2058 RE 177 atApplication to ACOE 5
Granholm to Fettig Corps AR 2562 2562-2563 RE 177 atletter, 5/10/2006 6-7
EXHIBIT 27
LuAnne Kozma, Public DOI AR 1068 1078-1083 RE 178 atComment letter, 2-75/14/20080
Julie Weiss, Public Supp. Exh. 941 26 RE 178 atComment letter, May 817, 2008
Appraisal Review, DOI AR 2293 2293 RE 178 at
Jean Klock Park, 92007
Benton Harbor-HSCRI DOI AR 2149 2170 RE 178 atLease 10
EXHIBIT 28
Public Comment Summary DOI AR 1750 1793-1794, RE 179 at1796-1797 2-5
UpJohn Institute DOI AR 1530 1531-1532 RE 179 atstudy cover page 6-7and disclaimer
March 2008
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DEFENDANTS DESIGNATIONS FROM THE CORPS RECORD
Title of Document Document begins
in AdministrativeRecord at Page
Pages
designated byDefendants
Record Entry
Number
Original permit application
from Corps and Fritsma to
Simon (Oct. 11, 2005)
Corps 0098 0098-102 RE 157 at 2-6
Sediment Evaluation and
Dredged Material
Management (Corps received
Oct. 19, 2005)
Corps 0134 0134-35, 0141 RE 157 at 7-9
Letter from JFNew (von
Wahlde) to MDEQ (Zimont)
(Nov. 1, 2005)
Corps 0430 0430-32 RE 157 at 10-12
Letter from Harbor Shores
(McFeeter) to MDEQ
(Wontorick) re: providing
requested information on
floodplain analysis
Corps 0435 0435-37 RE 157 at 13-18
HEC-RAS Hydraulic Analysis
Harbor Shores Community
Redevelopment, Paw Paw
River, City of Benton Harbor,
MI (revised Jan. 2006)
Corps 0484 0484-85 RE 157 at 19-20
Economic Impact Study for
Harbor Shores by Paul Fisher
and Brooke Douglas (Jan. 19,
2006)
Corps 0549 0549-51 RE 157 at 21-23
Michigan SHPO, Conway
letter to Corps, Allenson(Oct. 24, 2006)
Corps 0731 0731 RE 157 at 24
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designated by
Defendants
Record Entry
Number
Hitchcock Design Group,
Baldin response to Corps and
Michigan SHPO (Nov. 9,
2006)
Corps 0734 0736 RE 157 at 25
Letter from Jens Jensen
Legacy Project commenting
on Jean Klock Park (Feb. 13,
2007)
Corps 0751 0751 RE 157 at 26
Email from Corps, Allenson toChicago Artists Resource,
Koenen (Feb. 14, 2007)
Corps 0760 0760 RE 157 at 27
Collected report from Friends
of Jean Klock Park to Corps,
Allenson (received Mar. 6,
2007)
Corps 0782 0782 RE 157 at 28
Letter from Friends of Jean
Klock Park to Corps, Allenson
(Mar. 6, 2007)
Corps 0851 0851-909 RE 157 at 29-87
Conceptual Stormwater
Management Plan by
Abonmarche (Mar. 2007)
Corps 1015 1016 RE 157 at 88
Floodplain Mitigation Plan by
Abonmarche (Mar. 2007)
Corps 1035 1035-52 RE 158 at 2-19
Harbor Shores and City of St.
Joseph Compensatory Wetland
Mitigation Plan (received
Apr. 17, 2007)
Corps 1111 1111-12 RE 158 at 20-21
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DC\#270462-66-
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Pages
designated by
Defendants
Record Entry
Number
Letter from JFNew (von
Wahlde) to Benton Harbor
(Marsh) (Apr. 29, 2008)
Corps 1723 1723-26 RE 158 at 22-25
JFNew (von Wahlde) email to
Corps (Allenson and Simon)
with new compensatory
wetland mitigation plan
(Aug. 12, 2008)
Corps 1834 1840 RE 158 at 26
Dept. of Army PermitEvaluation (Aug. 14, 2008)
Corps 1867 1867-1926 RE 159 at 2-61
JFNew (von Wahlde) emails
sent to Corps (Simon)
(Aug. 14, 2008)
Corps 1927 1927-33 RE 160 at 2-8
Corps of Engineer Public
Notice (Apr. 13, 2006)
Corps 2140 2140-44 RE 160 at 9-13
Letter from EPA (Pierard) to
MDEQ Bostwick re:
comments on stream impacts(Dec. 20, 2006)
Corps 2254 2254-55 RE 160 at 14-15
EPA (Pierard) letter to MDEQ
(Bostwick) re: additional
comments on stream impacts
(Jun. 14, 2006)
Corps 2256 2256 RE 160 at 16
EPA (Pierard) letter to MDEQ
(Bostwick) re: additional
comments (Mar. 17, 2006)
Corps 2259 2259 RE 160 at 17
NPS (Anderson) letter to
MDNR (Wood) re: accept partconversion package (Jul. 25,
2008)
Corps 2306 2306 RE 160 at 18
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Defendants
Record Entry
Number
Corps (Konik) letter to Harbor
Shores (Cameron) re: denial
without prejudice (Nov. 9,
2007)
Corps 2315 2315 RE 160 at 19
Letter Corps (Konik) to City
of Benton Harbor (Marsh) -
comments on park conversion
(Apr. 29, 2008)
Corps 2322 2322-25 RE 160 at 20-23
ACHP, Vaughn letter toCorps, Konik (Apr. 27, 2007)
Corps 2334 2334-35 RE 160 at 24-25
MEDQ golf course permit
issued to Harbor Shores
(May 9, 2007)
Corps 2423 2433 RE 160 at 26
SHPO, Conway letter to
Corps, Allenson -- no effect
(Apr. 9, 2007)
Corps 2564 2564-69 RE 160 at 27-32
Harbor Shores, McFeeter letter
to Corps, Konik (Oct 19,2006)
Corps 2574 2574-2606 RE 161 at 2-34
Hitchcock Design, Baldin
letter to Corps, Allenson
(Nov. 9, 2006)
Corps 2607 2608.001 RE 161 at 35
M. Colclough letter to Corps
(Allenson) re: portions of
report on Jean Klock Park
(Apr. 24, 2006)
Corps 2652 2652-78 RE 161 at 36-62
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Pages
designated by
Defendants
Record Entry
Number
Defense of Place et al.
testimony to MNRTFB
(Aug. 15, 2006)
Corps 2766 2770 RE 162 at 2
Corps (Konik) letter to Harbor
Shores (Cameron) re:
coordination of comments
(Jun. 20, 2006)
Corps 2800 2802-03 RE 162 at 3-4
Corps, Konik letter to Harbor
Shores, Cameron -- JeanKlock Park historic issues
(Oct. 13, 2006)
Corps 2892 2892,
2894-95
RE 162 at 5-7
Corps, Weigum memo to
Corps, Chief Regulatory
Officer -- Jean Klock Park
historic issues (Mar. 22, 2007)
Corps 3258 3258-59 RE 162 at 8-9
Allen Kurta Report on Indiana
Bats (Dec. 13, 2005)
Corps 3260 3260-61 RE 162 at 10-11
Corps, Allenson memo to file -- site report on Jean Klock
Park (Mar. 31, 2007)
Corps 3268 3268-71 RE 162 at 12-15
Corps, Konik letter to SHPO,
Conway - no historic
properties affected (Mar. 23,
2007)
Corps 3449 3449-51 RE 162 at 16-18
Corps Statement of Findings
(Aug. 14, 2008)
Corps 3635 3635-38 RE 162 at 19-22
Letter from Corps (Konik) to
Harbor Shores (Cameron) re:proffered draft permit
(Aug. 14, 2008)
Corps 3639 3642 RE 162 at 23
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Pages
designated by
Defendants
Record Entry
Number
Corps Final Permit Letter and
Dept, of Army permit signed
by Corps and applicant
(Aug. 29, 2008)
Corps 3836 3836-45 RE 162 at 24-33
Permit Drawings (Jun. 2008) Corps 3846 3846-60
3861-96
RE 163 at 2-16
RE 164 at 2-37
Harbor Shores and City of St.
Joseph Compensatory Wetland
Mitigation Plan (Aug. 15,
2008)
Corps 3897 3897-3935 RE 165 at 2-40
Harbor Shores Compensatory
Stream Mitigation Plan
(Aug. 27, 2008)
Corps 3936 3936-72 RE 166 at 2-38
Harbor Shores Golf Course
Pollution Prevention Plan
(undated)
Corps 3973 3973 RE 166 at 39
Corps (Krepps) notes on
review of historic propertyissues (undated)
Corps 4126 4126-27 RE 166 at 40-41
DEFENDANTS DESIGNATIONS FROM THE PARK SERVICES RECORD
Title of Document Document begins
in Administrative
Record at Page
Pages
designated by
Defendants
Record Entry
Number
MDNR letter to NPS re:
proposal by Benton Harbor to
convert 3.7 acres (Dec. 22,
2004)
DOI 0015 0015-21 RE 167 at 2-8
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Pages
designated by
Defendants
Record Entry
Number
Advisory letter from Michigan
State Historic Preservation
Office to Geoffrey Fields
(Jul. 29, 2004)
DOI 0040 0040-41 RE 167 at 9-10
MDNR letter to NPS
submitting amendment
number three for L&WCF
grant (June 26, 2007)
DOI 0081 0081-82 RE 167 at 11-12
L&WCF proposal for JeanKlock Park (June 2007)
DOI 0141 0145-46 RE 167 at 13-14
Exhibit A to Conversion and
Mitigation Proposal: Benton
Harbor, A Plan for Positive
Change: Final Report of the
Benton Harbor Task Force
(Oct. 15, 2003)
DOI 0152 0152-54, 0163,
0166, 0181-86,
0223
RE 167 at 15-26
Exhibit B to Conversion and
Mitigation Proposal:
Development of Harbor
Shores Booklet (dated Oct. 18,
2006)
DOI 0257 0258, 0261,
0274, 0277,
0312, 0326
RE 167 at 27-32
Exhibit G to Conversion and
Mitigation Proposal: Public
Meeting Notices and Minutes
(undated)
DOI 0494 0496-503 RE 168 at 2-9
Exhibit H to Conversion and
Mitigation Proposal:
Memorandum ofUnderstanding (Apr. 13, 2006)
DOI 0504 0512-14 RE 168 at 10-12
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Pages
designated by
Defendants
Record Entry
Number
Exhibit I to Conversion and
Mitigation Proposal: Grand
Boulevard Consent Judgment
(Jan. 27, 2004)
DOI 0539 0540-44 RE 168 at 13-17
Letter from David Howell to
National Park Service re: Jean
Klock Park (May 1, 2008)
DOI 1015 1015 RE 168 at 18
General Letter from Craig
Cundiff re: Jean Klock Park(May 1, 2008)
DOI 1016 1016 RE 168 at 19
Copy of Karen Krepps
Mar. 21, 2007 email to US
Army Corps
DOI 1182 1182-83 RE 168 at 20-21
Copy of Wendy Chesser
(Corner Stone Alliance)
Jan. 15, 2008 email
DOI 1327 1338-41 RE 168 at 22-25
Moon Letter attachment 4:
MDNR Interoffice Memoregarding Jean Klock Park
mitigation (Dec. 13, 2007)
DOI 1455 1455-56 RE 168 at 26-27
Moon attachment 5 various
environmental related papers
(May 17, 2008)
DOI 1463 1463,
1466-67
RE 168 at 28-30
Moon attachment 8 map
entitled Proposed
Development Plan for Harbor
Shores (May 17, 2008)
DOI 1473 1473 RE 168 at 31
MDNR letter to NPSsubmitting revised application
to convert a portion of Jean
Klock Park (June 16, 2008)
DOI 1588 1588-89 RE 168 at 32-33
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Pages
designated by
Defendants
Record Entry
Number
Part I: Exhibit A Public
Review Process
DOI 1590 1591-94 RE 168 at 34-37
Part I: Exhibit E - Transcript
of Public Hearing on the
proposed Conversion and
Mitigation of a Portion of Jean
Klock Park (Apr. 17, 2008)
DOI 1617 1618, 1674,
1676-77, 1682-
83, 1686-87,
1691, 1698,
1717
RE 169 at 2-12
Part I: Exhibit E - Public
Comment Summary &Response Document
DOI 1750 1750-1812 RE 169 at 13-75
Part I: Exhibit E Apr. 9,
2007 SHPO letter to Corps of
Engineers
DOI 1831 1831-36 RE 169 at 76-81
Part II: Attachment A
Executive Summary ofBenton
Harbor, A Plan for Positive
Change
DOI 1839 1841-42,
1844
RE 169 at 82-84
Part II: Attachment B Exhibit 1 Trailway System
Maps
DOI 1849 1851 RE 169 at 85
Part II: Attachment B
Exhibit 2 Jean Klock Park
Improvements Drawings
DOI 1852 1854-55 RE 170 at 2-3
Part II: Attachment C
Environmental Assessment for
the conversion of Jean Klock
Park lands
DOI 1856 1856-1908 RE 170 at 4-56
Part II: Attachment D -Description of mitigation
parcels of Jean Klock park
converted lands
DOI 1909 1911-25 RE 170 at 57-71
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Defendants
Record Entry
Number
Part II: Attachment E
Environmental Assessment
Analysis for the mitigation
lands
DOI 1926 1926-2020 RE 171 at 2-96
Part II: Attachment F - Lease
Agreement between City of
Benton Harbor and Harbor
Shores Community
Redevelopment, Inc.
DOI 2021 2021-2068 RE 172 at 2-49
Part II: Attachment G Park
Improvement and
Maintenance Agreement
DOI 2069 2069-2138 RE 172 at 50-
119
Part III: Michigan Attorney
Generals June 4, 2008 letter
to Benton Harbor City
Attorney
DOI 2140 2140 RE 172 at 120
Part III: Summary of changes
to the Harbor Shores Lease
Agreement and the Park
Improvement and
Maintenance Agreement
DOI 2145 2145-48 RE 172 at 121-
124
Part III: Harbor Shores Lease
Agreement black lined version
DOI 2149 2149-97 RE 173 at 2-50
Part IV: Jean Klock Park
revised section 6(f)(3)
boundary maps
DOI 2269 2269-74 RE 173 at 51-56
Part IV: Appraisal reviews for
the Jean Klock Park convertedparkland and replacement
properties
DOI 2293 2293-2309 RE 174 at 2-18
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designated by
Defendants
Record Entry
Number
Part IV: Undated listing of
public events where Harbor
Shores project was discussed
DOI 2312 2312-15 RE 174 at 19-22
Part IV: Jack Nicklaus Design
letter relating to the use of
Jean Klock Park lands for
three holes of new golf course
(Sept. 21, 2006)
DOI 2316 2316 RE 174 at 23
Part IV: Summary of MNRTFBoard Public Comment
Sessions 2006
DOI 2318 2318-20 RE 174 at 24-26
Part IV: Michigan Attorney
General Sept. 14, 2007 letter
opining the use of Jean Klock
Park lands for part of a public
golf course serves a public
purpose as a public park
DOI 2377 2377-78 RE 174 at 27-28
Part IV: Michigan Statewide
Comprehensive Outdoor
Recreation Plan
DOI 2477 2477-81,
2548-67
RE 174 at 29-53
Bette Pierman letter to NPS
subject: Jean Klock Park
revised Conversion Mitigation
Proposal for a portion of Jean
Klock Park dated June 6, 2008
DOI 2721 2722 RE 174 at 54
National Park Service internal
conversion evaluation (Jul. 24,
2008)
DOI 2753 2753-60 RE 174 at 55-62
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Pages
designated by
Defendants
Record Entry
Number
National Park Service
executed Finding of No
Significant Impact with one
attachment numbered
00101.01
DOI 2761 2761 RE 174 at 63
Environmental Analysis
Summary Document
DOI 2762 2762-77 RE 174 at 64-79
Executed amendment number
three for L&WCF grant 26-00568
DOI 2779 2779 RE 175 at 2
Land and Water Conservation
Fund Grants-in-Aid Manual
Version 151 released Dec. 9,
1991 (vol. 68)
DOI 2781 2781,
2892-93,
3260-66
RE 175 at 3-12
MISCELLANEOUS JUDICIAL RECORD CITATIONS
Title of Document Record Entry
Number
Opinion of U.S. District Court for the Western District of Michigan,
Southern Division (Jan. 15, 2010)
RE 138
First Amended Complaint RE 60
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