reply brief fed appeal 10/29/2010

8/8/2019 REPLY BRIEF FED APPEAL 10/29/2010

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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

Case: 10-1313 Document: 006110775295 Filed: 10/29/2010 Page: 1


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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).

-25-



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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




37/52

DC\#270462-61-


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


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




38/52

DC\#270462-62-


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




39/52

DC\#270462-63-


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




40/52

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



41/52

DC\#270462-64-

DEFENDANTS DESIGNATIONS FROM THE CORPS RECORD


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




42/52

DC\#270462-65-


in Administrative

Record at Page

Pages

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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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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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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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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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


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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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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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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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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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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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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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

