Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 1 of 45
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`NATIONAL WILDLIFE REFUGE ASSOCIATION,
`DRIFTLESS AREA LAND CONSERVANCY, WISCONSIN
`WILDLIFE FEDERATION, and DEFENDERS OF WILDLIFE,
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`v.
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`Plaintiffs,
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`OPINION AND ORDER
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`21-cv-096-wmc &
`21-cv-306,
`Consolidated
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`RURAL UTITLITIES SERVICE,
`CHRISTOPHER MCLEAN, Acting Administrator,
`Rural Utilities Service,
`UNITED STATES FISH AND WILDLIFE SERVICE,
`CHARLES WOOLEY, Midwest Regional Director, and
`SABRINA CHANDLER, Manager, Upper Mississippi River
`National Wildlife and Fish Refuge,
`UNITED STATES ARMY CORPS OF ENGINEERS,
`LIEUTENANT GENERAL SCOTT A. SPELLMON, Chief of
`Engineers and Commanding General, U.S. Army Corps of
`Engineers, COLONEL STEVEN SATTINGER, Commander
`And District Engineer, Rock Island District, U.S. Army Corps of
`Engineers, and COLONEL KARL JANSEN, Commander and
`District Engineer, St. Paul District, U.S. Army Corps of Engineers,
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`AMERICAN TRANSMISSION COMPANY, LLC,
`DAIRYLAND POWER COOPERATIVE, & ITC
`MIDWEST LLC,
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`Defendants,
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`Intervenor-Defendants.
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`In this lawsuit, plaintiffs National Wildlife Refuge Association, Driftless Area Land
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`Conservancy, Wisconsin Wildlife Federation, and Defenders of Wildlife challenge the
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`actions of various federal agencies permitting the Cardinal-Hickory Creek (“CHC”)
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`Transmission Line Project, which would run from the Hickory Creek substation west of
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 2 of 45
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`Dubuque, Iowa, through far Southwest Wisconsin near Cassville and the Mississippi River
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`to Middleton in the center of Southern Wisconsin, all through what is known as “the
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`Driftless Area.”1 The utility companies charged with building and operating the CHC --
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`American Transmission Company, LLC (“ATC”), Dairyland Power Cooperative
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`(“Dairyland”) and ITC Midwest LLC (“ITC”) (the “Utilities”) -- later joined the suit as
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`intervenor-defendants. Now at the merits stage, the court finds that defendants fail to
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`meet legal requirements for the Environmental Impact Statement, Compatibility
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`Determination, and Land Transfer.
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`BACKGROUND2
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`As proposed, the CHC project would create a 345-kilovolt electricity transmission
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`line between 100 and 125 miles long. (ROD004933-34.) As part of the project, a new
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`electricity substation would also be constructed in Montfort, Wisconsin. (Id.) Intervenor-
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`defendants Dairyland, ATC, and ITC intend to construct, own and operate the CHC line
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`jointly. (ROD004940.) Several areas of the proposed CHC project cover existing rights-
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`1 The Driftless area is a region in Iowa, Wisconsin, and Minnesota. This region was not flattened
`by glaciers like many other areas of the Upper Midwest, leading to a unique geographic region with
`hills, bluffs and valleys. Many species of plant and animal call this region home, such as the Timber
`Rattlesnake, the Northern Monkshood, and the Brook Trout. “Defining the Driftless,”
`https://driftlesswisconsin.com/defining-the-driftless/ (last visited December 30, 2021).
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`2 Intervenor-defendants moved to strike plaintiffs’ proposed findings of fact (dkt. #113) from
`consideration, as the parties agreed in their preliminary pretrial conference report that proposed
`findings would be unnecessary. (Report (dkt. #40) 13.) Because the court did not rely on any
`parties’ proposed findings of fact for summary judgment, but instead relied directly on the
`administrative record, that motion will be denied as moot, along with plaintiffs’ related motion for
`leave to reply (dkt. #165).
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`2
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 3 of 45
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`of-way owned by the Utilities and would also involve replacing or upgrading existing
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`facilities. (Id.)
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`Midcontinent Independent System Operator, Inc. (“MISO”), an independent not-
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`for-profit group which manages the power grid in 15 states, worked with various state
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`regulators and utility industry stakeholders from 2008 to 2011 to identify projects that
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`would increase energy transmission and usage of renewable energy. (ROD004981.) One
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`identified project was to connect Dubuque, Iowa, to southwest Wisconsin, which would
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`provide cheaper wind power to Milwaukee and Chicago, as well as reduce overloaded power
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`lines. (ROD031340-41.) This in turn developed into the proposed CHC transmission line
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`project. (ROD004981.)
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`Because Dairyland expressed an intent to request funding for its 9% stake in the
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`CHC project from the U.S. Department of Agriculture Rural Utilities Service (“RUS”),
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`that government entity led the effort to prepare an Environmental Impact Statement
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`(“EIS”) in cooperation with U.S. Fish and Wildlife Service (“Fish and Wildlife”), the U.S.
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`Army Corps of Engineers (“Corps”) and the U.S. Environmental Protection Agency
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`(“EPA”). (ROD004941.) The Utilities also asked (1) Fish and Wildlife for a right of way
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`easement and special use permit to cross the Upper Mississippi River National Wildlife
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`and Fish Refuge (“the Refuge”), and (2) the Corps for permits to build in navigable waters
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`of the United States. (ROD004942.)
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`Before granting a right of way through the Refuge, Fish and Wildlife must confirm
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`that the proposed project comports with the purposes of the Refuge under 16 U.S.C.A.
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`§ 668dd. Fish and Wildlife originally finalized its “Compatibility Determination for the
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`3
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 4 of 45
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`CHC” on December 20, 2019. (ROD007584.) Because the Utilities already had a prior
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`right of way through the Refuge, where a 161 and 69kv transmission line had been
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`previously installed (ROD17047) and the Utilities had agreed to transfer back that right
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`of way (ROD007574), Fish and Wildlife found the proposed CHC line was compatible
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`with the purposes of the Refuge as “a minor realignment of an existing right-of-way” and
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`granted a permit to the Utilities. (ROD007574.)
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`On March 1, 2021, however, the Utilities contacted Fish and Wildlife and asked
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`for a slightly amended right of way through the Refuge, ostensibly to avoid Ho-Chunk
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`burial grounds. (Zoppo Decl., Ex. A (dkt. #53-1) 2-3.) Then, before Fish and Wildlife
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`could issue a decision on the proposed amendment, the Utilities again contacted Fish and
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`Wildlife on July 29, 2021, this time asking for an expedited land exchange instead of an
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`amended right of way, ostensibly because approval for a new right of way would take too
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`long. (Zoppo Decl. (dkt. #53-2) 1.) Specifically, in exchange for a land exchange in the
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`Refuge, the Utilities were now proposing to transfer a 30-acre parcel to Fish and Wildlife.
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`(Id.) On August 3, 2021, Fish and Wildlife confirmed receipt of the Utilities’ latest
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`proposal, indicating that its response to such a land exchange “may” be “favorable.”
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`(Zoppo Decl. (dkt. #53-3) 1.)
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`Then, on August 27, 2021, less than a month after Fish and Wildlife responded
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`favorably to a proposed land transfer, and less than a week before summary judgment
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`motions were due in this case, Fish and Wildlife “withdrew” its entire original
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`Compatibility Determination, stating it “learned that an error had previously been made
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`regarding the 2019 Compatibility Determination when identifying the existing rights-of-
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 5 of 45
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`way proposed for re-alignment.” (Not. by Def. (dkt. #69-1) 1.) As a result, any approved
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`right of way through the Refuge was rescinded, along with the compatibility determination.
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`(Id.) However, in its letter of withdrawal to the Utilities, Fish and Wildlife did note that
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`the agency “is committed to working with you toward timely review of the land exchange
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`you have proposed in lieu of your March 2021 application for an amended right-of-way
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`permit . . . [and] concurs that a land exchange is a potentially favorable alternative to a
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`right-of-way permit.” (Id.)
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`As for the Corps’ involvement, both its Rock Island and Saint Paul district offices
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`issued permits, as each office covers a different area of the CHC line. (USACE000094;
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`USACE000679.) Specifically, the Corps’ Rock Island office is responsible for those
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`sections of the CHC project running through Iowa and authorized the project under
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`Nationwide Permit 12 (“NWP 12”). Generally, such nationwide permits (“NWPs”) are
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`used as a means to expedite permissions to build without needing to go through the more
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`demanding, individual permitting process. (USACE001200.) Instead, proposed projects
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`permitted by an NWP only require that the Corps do a project-specific “verification” to
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`ensure that it meets the requirements of the nationwide permit. (USACE001199.) The
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`CHC was verified in November of 2019. (USACE001199.) However, NWP 12 was later
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`revoked by the Corps in part, and now only covers oil and gas pipelines, meaning that
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`companies building utility lines like the CHC project will need to be permitted under NWP
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`57. To date, the Utilities have not yet reapplied for an NWP 57 permit. See “Regulatory
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`Program
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`&
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`Permits,”
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`U.S.
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`Army
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`Corps
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`of
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`Engineers,
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`https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/
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`Nationwide-Permits/ (last visited Jan. 14, 2022).
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`In contrast, the Saint Paul district Corps never relied on NWP 12; instead, it issued
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`a separate permit. (USACE013001.) Specifically, the Saint Paul office issued a Regional
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`Utility General Permit (“RUGP”), which mirrors NWP 12 for the most part, while applying
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`to operations in the Saint Paul District that includes the relevant portions of Southwest
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`Wisconsin. (USACE000730.) The Corps verified the proposed CHC project under the
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`RUGP in December of 2019 (USACE000679), which is active. (USACE000679.) Various
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`other state permits have been issued for the CHC project as well, although none of those
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`are challenged in this case. (USACE000012.)
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`I. Mootness
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`OPINION
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`The Administrative Procedure Act (“APA”) grants judicial review of agency action
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`to persons “suffering legal wrong because of agency action, or adversely affected or
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`aggrieved by agency action within the meaning of the relevant statute.” 5 U.S.C. § 702.
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`More specifically, APA § 704 provides that “final agency action for which there is no other
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`adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. Finally, APA
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`§ 706 grants courts the power to set aside agency actions that are “arbitrary, capricious, or
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`otherwise not in accordance with law,” 5 U.S.C.§706(2)(A), while affording appropriate
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`deference to administrative decisions.
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 7 of 45
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`Both governmental and intervenor-defendants argue that many of the challenged
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`actions here are now moot. Specifically, defendants point to the fact that the Fish and
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`Wildlife’s original Compatibility Determination and issuance of a right of way through the
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`Refuge have been revoked, while the proposed land transfers have not yet been finalized.
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`Yet none of these arguments hold up to scrutiny, as the specific facts of this case compel
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`the court to rule on the challenged permits, as they are certain to have to be revisited by
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`this court in similar form, except under even more pressing and difficult circumstances.
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`While this court’s jurisdiction “is limited by Article III to live cases and
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`controversies,” the doctrine of mootness generally weighs against relinquishing jurisdiction.
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`Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 2017). This is particularly true when a party
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`voluntarily ceases the disputed conduct, rather than face a lawsuit forcing the conduct to
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`stop. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
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`Thus, the Supreme Court has adopted a “strict” standard in cases of voluntary cessation,
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`as “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does
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`not deprive a federal court of its power to determine the legality of the practice.’” Friends
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`of the Earth, Inc. 528 U.S. at 189 (citing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
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`283, 289 (1982)). In such cases, the court may only find mootness if “subsequent events
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`make it absolutely clear that the allegedly wrongful behavior could not reasonably be
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`expected to recur.” Id. (citing United States v. Concentrated Phosphate Export Assn., 393 U.S.
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`199, 203 (1968)). This burden shifts slightly if: (1) the party voluntarily ceasing an action
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`is the government; and (2) “a government actor sincerely self-corrects the practice at issue.”
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`Freedom From Religion Found., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1051 (7th Cir.
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`2018). In that case, “a court will give this effort weight in its mootness determination,”
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`although a case may still be “live” if it “cannot give definitive weight to the [government’s]
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`statements.” Id.
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`Under the circumstances here, the court cannot help but conclude that any
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`mootness determination would require a finding of absolute clarity that a return to a
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`request for a right of way could not reasonably be expected, especially because the Utilities
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`offer only 30 days’ notice from its reissuance to begin building through the heart of the
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`Refuge. Even assuming a slightly lower standard applied because Fish and Wildlife is a
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`governmental body -- albeit one seemingly working hand-in-glove with the Utilities up to
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`and including suddenly withdrawing the right of way through the Refuge just weeks before
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`plaintiffs’ challenge was to become ripe for summary judgment consideration by this court
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`-- the only other alternative is a nearly identical crossing through land transfers approved
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`by Fish and Wildlife, which will be subject to the same or very similar challenges. Indeed,
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`there remains no reasonable doubt on this record that both the Utilities and Fish and
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`Wildlife remain committed to a path through the Refuge (whether by land transfer or a
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`reissued right of way). Nevertheless, the court will address mootness and standing issues
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`as to plaintiffs’ principal claims in more detail before turning to the merits of those claims.
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`A. Compatibility Determination
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`Plaintiffs’ strongest claim is their challenge to the Fish and Wildlife’s original
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`Compatibility Determination, which granted the Utilities the original right of way through
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`the Refuge. However, defendants argue that the withdrawal of the right of way by Fish
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`and Wildlife renders that claim moot, especially since the Utilities are now planning to
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 9 of 45
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`seek land transfers with Fish and Wildlife to run through the Refuge instead. (Defs.’ Mot.
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`(dkt. #93) 45; Not. by Def. (dkt. #69-1) 1.)
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`As previously explained, the history of the Compatibility Determination and
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`issuance of the original right of way is a convoluted one, with the Utilities later requesting
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`an amended right of way and now a land transfer, then Fish and Wildlife withdrawing its
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`determination altogether, and with it, the existing right of way. Suspiciously, all of these
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`actions took place in the months after this case was filed. Moreover, in weighing the
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`likelihood of reoccurrence against Fish and Wildlife’s voluntary cessation, the court finds
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`that a very similar compatibility determination is not only likely but nearly certain to
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`reoccur.
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`In response, defendants contend that the original right of way permit issued in 2020
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`will never be reissued given the Utilities request for a planned land transfer instead of a
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`permit. (Defs.’ Mot. (dkt. #93) 46.) That response is thin porridge indeed. While the
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`Utilities have waffled between seeking another right of way or land transfers, at no point
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`has Fish and Wildlife or the Utilities suggested that the CHC would not cross the Refuge,
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`which mean the Utilities’ request for another Compatibility Determination is a near
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`certainty and its outcome is at least “potentially favorable” for the Utilities. Indeed, the
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`government’s Final EIS itself acknowledges as much: “[a]ll action alternatives would cross
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`the Refuge,” and the EIS did not even consider any routes not crossing the Refuge.
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`(ROD004950.) Instead, the government relied on “the Utilities’ investigation and
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`assessment of potential Mississippi River crossing locations for the proposed C-HC Project”
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 10 of 45
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`and accepted the Utilities’ own analysis that the CHC must cross the Refuge.
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`(ROD005006.)
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`Without even a cursory analysis of non-Refuge crossings beyond the Utilities’ self-
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`funded research, both defendants and intervenor-defendants have already made their
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`choice and the CHC transmission line will, by right of way or land transfer, still cross the
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`Refuge. In fact, the Utilities continue to clear land on both the Iowa and Wisconsin sides
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`of the Refuge as though its crossing were inevitable. (11/1/21 Op. & Order (dkt. #16) 3.)
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`Thus, the Utilities must gain access to the Refuge under either of two ways: receive a right
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`of way through a renewed compatibility determination process or acquire a fee simple title
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`through land transfers with Fish and Wildlife, which as discussed below raises all the same
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`concerns as a compatibility study.
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`Moreover, the fact that Fish and Wildlife is now expecting to review a land transfer
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`favorably does not mean that a renewed right of way request is in the offing, and as
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`discussed above, a controversy is not moot unless “it is absolutely clear [that] the allegedly
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`wrongful behavior could not reasonably be expected to recur,” which the Supreme Court
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`has interpreted as an extremely high bar. Friends of the Earth, Inc., 528 U.S. at 189 (citing
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`United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)) (emphasis
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`added). For example, when the Governor of Missouri announced that the state was
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`revoking a challenged policy about grants for religious organizations, the Supreme Court
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`found that the State still had “not carried the ‘heavy burden’ of making ‘absolutely clear’
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`that it could not revert to its policy.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137
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`S. Ct. 2012, 2019 n.1 (2017). Similarly, while the Utilities may proceed by land transfer
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 11 of 45
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`through the Refuge, it is equally as likely that they will have to revert to seeking a right of
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`way. As such, defendants have not met the heavy burden required to moot plaintiffs’
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`challenge to the Compatibility Determination.
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`If the land transfer were to fall through, the government defendants alternatively
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`contend that the Utilities would be requesting an amended right of way permit, which will
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`be different than the original request. (Defs.’ Mot. (dkt. #93) 46.) However, an amended
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`right of way request will not be so different as to moot plaintiffs’ challenge. Indeed, such
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`a request would have to cover nearly the same acreage within the Refuge, something that
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`the Utilities are all but assuring as they continue to clear the path for the CHC line up to
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`the Refuge from both the Iowa and Wisconsin sides even as this lawsuit pends. (Zoppo
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`Decl., Ex. B (dkt. #53-2) 5.)
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`In a case involving preferential treatment for city contracts, the Supreme Court held
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`that similar, minor changes to the repealed conduct cannot moot a case:
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`There is no mere risk that [the city] will repeat its allegedly
`wrongful conduct; it has already done so. Nor does it matter
`that the new ordinance differs in certain respects from the old
`one. City of Mesquite does not stand for the proposition that it
`is only the possibility that the selfsame statute will be enacted
`that prevents a case from being moot; if that were the rule, a
`defendant could moot a case by repealing the challenged
`statute and replacing it with one that differs only in some
`insignificant respect . . . The new ordinance may disadvantage
`[plaintiffs] to a lesser degree than the old one, but insofar as it
`accords preferential treatment . . . it disadvantages them in the
`same fundamental way.
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`Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656,
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`662 (1993). Thus, the fact that Fish and Wildlife may grant land transfers or issue a
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`slightly amended right of way that require less acreage does not change plaintiffs’ main
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`11
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 12 of 45
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`complaint that placement of the CHC line through the Refuge is not compatible with its
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`purposes.
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`Finally, while intervenor-defendants assert they are acting in good faith, there is
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`substantial, contrary evidence in this record. As noted, the Utilities did not ask to amend
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`their right-of-way permit until after this litigation commenced (Zoppo Decl., Ex. A (dkt.
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`#53-1) (letter dated March 1, 2021)), and Fish and Wildlife suddenly “discovered” errors
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`in the Compatibility Determination that warranted withdrawal, which defendants argue
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`conveniently moots any pending challenges to a Refuge crossing, just a week before opening
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`briefs on summary judgment were due in this case. (Not. of Withdrawal (dkt. #69).)
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`Shortly before this, the Utilities suggested a land transfer, which they maintain was only
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`because it would allow construction to begin faster (Zoppo Decl., Ex. B (dkt. #53-3)), an
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`option that Fish and Wildlife promptly indicated may be a good option (id., Ex. C).
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`At the same time, the Utilities have continued construction on the Iowa side of the
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`line and started construction on the Wisconsin side in October 2021, even as they
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`maintained passage through the Refuge was uncertain, ignoring that the obvious connector
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`between the two portions of the line under construction runs straight through the Refuge.
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`(ROD005063.) In particular, on August 11, 2021, the Utilities requested a stay from the
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`court pending a possible land transfer, stating that they would not begin work in the Refuge
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`until October 2022, while offering to give plaintiffs all of “30 days’ notice” before starting
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`actual construction in the Refuge. (Intervenor-Defs.’ Mot. (dkt. #50) 3.) Then, on
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`September 24, 2021, the Utilities notified the court that they would start construction in
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`Wisconsin on October 25, 2021, leaving the Refuge and a few, federal wetlands as the only
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`12
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 13 of 45
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`portion of the line not under construction. (Not. (dkt. #96) 1.) This, despite the fact that
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`the summary judgment motions in this case would have otherwise been due on November
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`1, 2021, and the Utilities still did not have a valid right of way or approved land transfer
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`through the Refuge. (Not. (dkt. #96) 1.)3
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`Given these facts, plaintiffs contend, and the court finds credible, that the Utilities
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`are pushing forward with construction on either side of the Refuge, even without an
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`approved path through the Refuge, in order to make any subsequent challenge to a Refuge
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`crossing extremely prejudicial to their sunk investment, which will fall on their ratepayers
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`regardless of completion of the CHC project, along with a guaranteed return on the
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`Utilities’ investment in the project. Thus, if the court does not treat consideration of the
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`essentially inevitable re-proposal for a Refuge crossing as ripe for consideration now, the
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`Utilities will have built up to either side of the Refuge, making entry of a permanent
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`injunction later all the more costly, not just to the Utilities and their ratepayers, but to the
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`environment they are altering on an ongoing basis.
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`B. Land Transfer
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`Even if the original challenge to the Compatibility Determination were not ripe, a
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`challenge to land transfer, as the only alternative for crossing the Refuge, would be. Of
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`course, the intervenor defendants similarly argue that the court cannot yet review the Fish
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`3 Plaintiffs filed a preliminary injunction to halt construction, and the Utilities again emphasized
`at a court hearing, that they had always planned to begin Wisconsin construction in October 2021.
`(11/22/21 Hr’g Tr. (dkt. #173) 8-14.) Construction is already underway in Iowa, with clearing
`occurring in Wisconsin subject to the court’s preliminary injunction order protecting a few
`designated wetlands. (Id. 9-12.)
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 14 of 45
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`and Wildlife’s approval of land transfers, as there is no final decision or record to review.
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`(Intervenor-Defs.’ Opp’n (dkt. #112) 8.) However, the defendants’ argument is premised
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`on the likely mistaken assumption that Fish and Wildlife may apply different decision
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`criteria to the land transfer than the right of way, necessarily leading to the need for the
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`creation of a new administrative record. In fact, the proposed land exchange would very
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`likely have to meet the same compatibility requirements of the Refuge Act, making any
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`analysis done by Fish and Wildlife for the land exchange and the right of way practicably
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`identical.
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`Thus, the possible, minor change to the proposed Refuge crossing does not
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`constitute a sufficient change to moot the agency’s original compatibility analysis, and the
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`difference between the CHC’s crossing the Refuge by right of way or fee simple title
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`transfers are negligible where the underlying effect of allowing the crossing is the same. See
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`Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656,
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`662 (1993) (holding it does not “matter that the new ordinance differs in certain respects
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`from the old one”). As such, the issue of compatibility -- whether by exchange or by right
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`of way -- is not only ripe, but the only way to ensure an orderly review of the project under
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`the National Environmental Protection Act (“NEPA”).
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`Finally, the Supreme Court has held that the question of whether an agency decision
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`is “final” depends upon “the fitness of the issues for judicial decision and the hardship to
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`the parties of withholding court consideration.” Abbott Lab’ys v. Gardner, 387 U.S. 136,
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`149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Thus,
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`“[t]he cases dealing with judicial review of administrative actions have interpreted the
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 15 of 45
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`‘finality’ element in a pragmatic way,” with the Supreme Court finding a statement by the
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`Federal Communications Commission as reviewable even though “the FCC regulation
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`could properly be characterized as a statement only of its intentions.” Abbott, 387 U.S.
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`136 at 149.
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`Even if Fish and Wildlife does not have to follow the Refuge Act’s compatibility
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`requirements for a land exchange, Fish and Wildlife’s own, anticipated approval of a land
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`exchange to proceed with a Refuge crossing and the hardship that a delay in consideration
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`would cause plaintiffs compels the court to review the proposed crossing now. Specifically,
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`the letter from Fish and Wildlife stating its concurrence “that a land exchange is a
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`potentially favorable alternative to a right-of-way permit,” as well as its subsequent
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`revocation of the original right of way to avoid orderly review, are statements of intent.
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`(Notice (dkt. #69-1) 1.) In fact, as previously discussed, Fish and Wildlife has created a
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`situation where a land exchange or similar right of way are the only options left to
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`defendants, making its statement of intent all but a guarantee, while they continue to
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`attempt to evade judicial review until any route, other than through the Refuge, would be
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`so prejudicial that a court would have little choice but to approve the crossing -- creating
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`the very hardship that the Supreme Court warned against in Abbot. If anything, both the
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`government defendants and Utilities appear to be playing a shell game, cavalierly revoking
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`applications for and grants of permits, all as a Refuge crossing becomes a near certainty,
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`while telling this court that nothing is yet reviewable.
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`Defendants also fail on public policy grounds. In Abbott, the Supreme Court was
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`being asked to review a drug labeling regulation where the government similarly argued
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 16 of 45
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`that reviewing the regulation and halting its enforcement would be harmful to the public
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`given the importance of proper pharmaceutical labeling. 387 U.S. 136 at 154. In rejecting
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`this argument, the Supreme Court found that pre-enforcement review would actually speed
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`up enforcement, as the regulation would either be fully upheld or struck down at once,
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`despite recognizing that pharmaceutical labeling can have drastic negative effects on
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`patient health. Id. Here, there is no similar, adverse public safety concern should the court
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`act now; if anything, pre-enforcement review of the right of way or land transfer only affects
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`the proposed crossing through the Refuge sought by the Utilities. As such, the government
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`and Utilities have an even weaker argument for delay than in Abbott.
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`If this were simply a case of a land transfer, the court may be more inclined to wait
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`for Fish and Wildlife’s further review. Given the history of this litigation, however,
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`common sense counsels in favor of proceeding. As previously noted, if the issuance of a
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`right of way or land transfer is not reviewed at this stage, there is a strong possibility that
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`the CHC line will be nearly completed in all areas except the Refuge despite its legality
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`being in substantial question. Defendants tout the land transfer as the reason why
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`reissuance of the right of way will not occur, but acknowledge that the contemplated land
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`transfers are uncertain to shield a crossing through the Refuge from review.
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`Defendants cannot use a possible land exchange as both sword and shield in this
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`litigation, while the public interest and plaintiffs may suffer substantial hardship by further
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`delaying judgment day. Even without questioning the governmental defendants’ or the
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`Utilities’ motives, their proposed “wait and see” method of proceeding amounts to little
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`more than an orchestrated trainwreck at some later point in this lawsuit. See City of Mesquite
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`Case: 3:21-cv-00306-wmc Document #: 149 Filed: 01/14/22 Page 17 of 45
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`v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (“In this case the city’s repeal of the
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`objectionable language would not preclude it from reenacting precisely the same provision
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`if the District Court’s judgment were vacated.”) (citations omitted); Wis. Right to Life, Inc.
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`v. Barland, 751 F.3d 804, 831 (7th Cir. 2017) (quoting Friend of the Earth, Inc. v. Laidlaw
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`Envtl. Servs., Inc. 528 U.S. 167, 190) (“[A] case does not become moot merely because the
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`defendants have stopped engaging in unlawful activity. ‘[A] defendant claiming that its
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`voluntary compliance moots a case bears the formidable burden of showing that it is
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`absolutely clear the allegedly wrongful behavior could not reasonably be expected to
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`recur.’”). Given all of the above factors, therefore, the court finds the Compatibility
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`Determination ripe for review.4
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`II. Standing
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`Defendants further contend that plaintiffs have no standing to bring this action. In
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`order to establish standing, there are three requirements: “First, the plaintiff must have
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`suffered an injury in fact . . . Second, there must be a causal connection between the injury
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`and the conduct complained of . . . Third, it must be [redressable].” Lujan v. Defs. of
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`Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations omitted). Moreover, to
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`4 Plaintiffs also seek to challenge the Corps’ NWP 12 permit, which defendants note is no longer
`operational and has been replaced by NWP 57, altho