UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al.

Plaintiffs,

V.

U.S. ARMY CORPS

OF ENGINEERS, et al.

Defendants.

Civil No. 06-CV-00258-JAW

ORDER ON PLAINTIFFS' AMENDED MOTION FOR PARTIAL

RECONSIDERATION OF ORDER ON PLAINTIFFS'

MOTION FOR PRELIMINARY INJUNCTION

The Court denies the Plaintiffs' motion for reconsideration of its Order denying their

motion for preliminary injunction, because they have failed to demonstrate that there is new

evidence not previously available, that there has been an intervening change in controlling law,

or that the Court needs to correct a clear error of law or prevent a manifest injustice. More

specifically, the Court concludes that the Plaintiffs have waived one argument, have attempted to

present a new argument that could have and should have been raised earlier, have failed to

demonstrate that the Court' s original analysis misconstrued their previous arguments, and have

been unable to convince the Court that it erred as a matter of law when it preliminarily concluded

that the decision of the U.S. Army Corps of Engineers (Corps), granting a permit to the city of

Concord (City) to fill wetlands, passed legal muster.

I. PROCEDURAL HISTORY

Plaintiffs filed suit against the Corps and the City on July 13, 2006, alleging that the

Corps violated the Clean Water Act (CWA), the National Environmental Policy Act (NEPA),

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and the National Historic Preservation Act (NHPA) when it granted the City a permit to fill

certain wetlands to build a three-quarter mile road. See Compl. (Docket # 1). On the same day,

they moved for a temporary restraining order (TRO) and a preliminary injunction. See Pls. ' Mot.

for TRO and Prelim. Inj. (Docket # 2). Plaintiffs subsequently filed an emergency motion for a

TRO and requested an expedited hearing (Docket # 32) on September 6, 2006. The Court held a

hearing on both the TRO and preliminary injunction on September 13, 2006, and denied the

TRO by order dated September 15, 2006. See Order on Emergency Mot. for TRO (Docket

# 46).1 Plaintiffs moved for reconsideration of that order (Docket # 50).

On January 5, 2007, the Court denied Plaintiffs' motion for a preliminary injunction. See

Order (Docket # 81) (Order). Within that Order, the Court also denied Plaintiffs' motion for

reconsideration of the Order on the TRO. Id. at 2 n.5. On January 29, 2007, the Plaintiffs

moved for reconsideration of the order denying a preliminary injunction. See Mot. for

Reconsideration of Order on Pls. ' Mot. for Prelim. Inj. (Docket # 87). Plaintiffs replaced this

motion with an amended motion the following day, which is the motion for reconsideration

currently at bar (Docket # 91) (Pls. ' Mot.) 2

H. DISCUSSION

A. Availability and Standards

Under 28 U.S.C. § 1292(a)(1), a court of appeals has jurisdiction of appeals from

"[i]nterlocutory orders . . . refusing or dissolving injunctions. Because an order denying a

preliminary injunction is an "order from which an appeal lies, FED. R. Civ. P. 54(a), it is a

1 The Court ruled on the motion for TRO on an expedited basis and focused on narrow issues, because the

construction would have a limited initial effect. The Order denying the preliminary injunction addressed the full

range of issues the Plaintiffs set forth in their Complaint.

2

Plaintiffs have not complied with the District of NewHampshire's Local Rules, which impose a fifteen-page limit

on memoranda of law for non-dispositive motions. See LR 7.1(a)(3). Plaintiffs' memorandum is twenty pages long.

The Court will, once again, overlook the Plaintiffs' failure to comply with the District's local rules; however, once

again, it reminds counsel that "the Rule exists to be followed. Order On Pls. 'Mot. for Sanctions and Mot. to

Disqualify Counsel at 2- 3 (Docket # 120).

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"judgment for purposes of the Federal Rules . See Ty, Inc. v. Publ'ns Int'l Ltd., 292 F.3d 512,

516 (7th Cir. 2002); Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 400 (2d Cir. 2000); see

also 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE &

PROCEDURE: CIVIL § 2658.1 [hereinafter WRIGHT & MILLER]. Rule 59 of the Federal Rules of

Civil Procedure deals with new trials and amendment ofjudgments. See FED. R. CIV. P. 59. The

Rule encompasses motions for reconsideration . See United States v. $ 23, 000 in United States

Currency, 356 F.3d 157, 165 (1st Cir. 2004) ("We note that a motion `asking the court to modify

its earlier disposition of the case because of an allegedly erroneous legal result is brought under

FED. R. Civ. P. 59(e).' ) (quoting In re Spittler, 831 F.2d 22 (1st Cir. 1987)); see also 11 WRIGHT

& MILLER § 2810.1.

The First Circuit recently addressed the standards for assessing motions for

reconsideration:

The granting of a motion for reconsideration is an extraordinary

remedy which should be used sparingly.... Unless the court has

misapprehended some material fact or point of law, such a motion

is normally not a promising vehicle for revisiting a party's case

and rearguing theories previously advanced and rejected.... To

obtain relief, the movant must demonstrate either that newly

discovered evidence (not previously available) has come to light or

that the rendering court committed a manifest error of law.

Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006); see also Fed. Deposit Ins. Corp. v.

World Univ., Inc., 978 F.2d 10, 16 (1st Cir. 1992) ("Rule 59(e) motions are aimed at

reconsideration, not initial consideration. ) (citation and internal citations omitted); Order On

Pls. ' Am. Mot. for Recons. of Order on Pls. 'Mot. to Complete the Admin. R. at 2 (Docket # 118).

As an "extraordinary remedy, a motion for reconsideration's utility is properly limited to: "(1)

the availability of new evidence not previously available, (2) an intervening change in

controlling law, or (3) the need to correct a clear error of law or to prevent manifest injustice.

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Villanueva-Mendez v. Nieves Vazquez, 360 F. Supp. 2d 320, 24 (D.P.R. 2005). Otherwise, "in

the interest of fnality . . . motions for reconsideration should be granted sparingly because

parties should not be free to relitigate issues a court has already decided. Id.

B. Plaintiffs ' Motion

1. Balancing Analysis

Count I of the Plaintiffs' Complaint alleges generally that, in issuing the CWA § 404

permit, the Corps acted in an arbitrary and capricious manner in balancing the benefits of the

project against its reasonably foreseeable detriments. Compl. ¶¶ 79-107. In its Order, the Court

rejected the Plaintiffs' challenge and concluded that the Plaintiffs failed to demonstrate a

"likelihood of success on the merits of Count I. Order at 13-15. The Court discussed whether

(1) "the Corps relied on traffic studies that considered the potential impact of the development of

both Phase II and Phase III of the Northwest Bypass project and failed to assess the impact of

Phase II alone; and, (2) there was expert evidence refuting the Corps's conclusion. Id.

Plaintiffs contend that the Court failed to address one of their principal claims:

[T]he Court misconstrues the plaintiffs' principal claim as being

that "the Corps relied on traffic studies that considered the

potential impact of the development of both Phase II and Phase III

of the Northwest Bypass project and failed to assess the impact of

Phase II alone. Order at 13 (Docket # 81) (emphasis added,

citations omitted). Instead, the plaintiffs['] first claim is that the

response to relevant and significant public comments, by the Army

Corps in its decisional Environmental Assessment and Statement

of Findings ... is arbitrary and capricious.

Pls. ' Mot. at 1 (emphasis in original).3 The Plaintiffs conclude : "The Army Corps was obliged

but failed to explain how this project's claimed benefits outweighed its claimed detriments.

Pls. ' Mot. at 4.

3 Paragraph 106 of the Complaint reads in part: "Alternatively, the ACOE statement that 'the Corps is not deciding

that issue at this time ' constitutes arbitrary or capricious agency failure to respond to relevant and significant public

comments . Compl. ¶ 106.

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The Plaintiffs point out that the Complaint itemized numerous "significant public

comments that the Corps received:

(a) that the traffic analyses presented in support of the application

studied alternatives for the entire Northwest Bypass and did not

include analysis of the Phase II portion by itself nor with the

proposed closure of Silk Farm Road, and therefore did not address

the project under consideration; (b) that simply completing the

Phase II project as presented (which includes the closure of Silk

Farm Road/Dunbarton Road), at least without completing the

entire Northwest Bypass, would attract new traffic to Pleasant

Street traveling to and from the areas East of Concord Hospital

(Concord's population and business centers) and Phase II; (c) that

the new traffic would increase congestion on Pleasant Street; (d)

that the increased Pleasant Street congestion would exacerbate

existing public safety hazards caused by traffic cutting-through

neighborhood streets to avoid the five-pronged Pleasant

Street/Fruit Street intersection; and (e) that these effects vitiate the

principal purported purpose, need and benefit of Phase II, the

principal "pedestrian safety and traffic benefits ofwhich, EA/SOF

at 10, must necessarily result from decreasing such Pleasant Street

traffic.

Compi. ¶ 89 (emphasis in original).

The Complaint further alleges that the Corps responded to these concerns in the

Environmental Assessment (EA) as follows:

It is hard to see how building the Langley Parkway between

Clinton Street and Pleasant Street would cause much change in the

traffic patterns [exJcept the intended consequence of traffic

between the hospital complex and 1-89/Clinton using the parkway

rather than South Fruit street [sic] and Pleasant Street.

Compi. ¶ 90 (quoting the EA) (emphasis in Complaint); and,

From the Army Corps of Engineers perspective, we do not think

the Langley Parkway South will attract much traffic to residential

neighborhoods. Some traffic between 1-89 and Clinton Street will

be able to use the new road and not have to travel east to South

Fruit Street and then north on south Fruit street to get to Pleasant

Street and west on Pleasant Street get to [sic] the hospital. Some

vehicles coming from north and east of the corner of Pleasant

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Street and South Fruit street may choose to travel out (west on)

Pleasant Street to get to Langley Parkway South to get to Clinton

street (sic) and thence to route 1-89, rather than proceeding south

on South Fruit Street to get to Clinton Street. Building the entire

Northwest Bypass might have a greater impact on traffic patterns

in the city but the Corps is not deciding that issue at this time.

Id. 19 (emphasis in Complaint).

The Plaintiffs now argue that the Corps's articulated response was so inadequate to be

arbitrary and capricious . Although the Court addressed their argument about whether the record

contained evidence sufficient to sustain the Corps ' s conclusions, the Plaintiffs stress that the

"plausible support in the evidence before the agency is a "much more forgiving standard, by

which the Court might overlook the agency' s actual rationale to see if instead there is any

competent . . . evidence, not cited by the agency, that provides a different response, albeit a

specific and satisfactory one, to the plaintiffs' expert ' s critique . Pls. ' Mot. at 2 (emphasis in

original).

First, the Plaintiffs waived this argument. Simply put, the Plaintiffs' contentions

regarding the asserted inadequacy of the Corps ' s expressed rationale, although clearly expressed

in their motion for reconsideration , appear nowhere in their Complaint, original motion, or

memoranda. The Complaint attacks the language in the Corps's decision, but nowhere clarifies -

as does the motion for reconsideration - that the asserted inadequacy of the Corps ' s explanation

was itself arbitrary and capricious . 4 Instead, the Plaintiffs focused their argument on the absence

a

In paragraph 91 of the Complaint, the Plaintiffs quote from the Corps's conclusions - "hard to see and the agency

"do[es] not think - and in paragraph 92, the Complaint states: "Therefore, to pass muster, these agency

conclusions must find plausible support in the evidence before the agency. Compi. ¶¶ 91-92. Similarly, paragraph

95 alleges that the Corps's finding regarding traffic is "contrary to the evidence before the agency. Id. ¶ 95. In

paragraph 104, after reciting public comments in their favor, the Plaintiffs allege that their position finds "essentially

undisputed evidentiary support in the record before the [Corps]. Id. ¶ 104. In paragraph 105, the Plaintiffs allege

that the Corps's weighing of the benefits versus its detriments is "arbitrary and capricious because the agency could

not plausibly have found that the project would accomplish its central claimed benefit. Id. ¶ 105. The closest the

Plaintiffs come to their current argument is paragraph 106, where they alleged that the "[Corps's] statement that 'the

Corps is not deciding that issue at this time' constitutes arbitrary or capricious agency failure to respond to relevant

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of evidentiary support in the record for the Corps' s conclusions . A motion for reconsideration is

neither a vehicle for relitigating issues a court has already decided, nor for litigating for the first

time issues the Court was not previously asked to decide.

In excess of caution, however, the Court will address the Plaintiffs' contention that the

Corps's decision was so deficient in its articulated rationale as to be arbitrary and capricious.

The Plaintiffs cite no law supporting their contention that the Corps's decision must address with

specificity each particular objection raised by the project's opponents. In fact, the law does not

mandate such exhaustive decisions; instead, the law requires only at a minimum that the

agency's "basic rationale is clear enough to permit review. Waweru v. Gonzales, 437 F.3d 199,

204 (1st Cir. 2006). In Waweru, the First Circuit referred to Bowman Transportation, Inc. v.

Arkansas-Best Freight Sys., Inc., which stated: "While we may not supply a reasoned basis for

the agency's action that the agency itself has not given... we will uphold a decision of less than

ideal clarity if the agency's path may reasonably be discerned. 419 U.S. 281, 285-86 (1974)

(citations omitted). After reviewing the Corps's decision, the Court concludes that it meets the

Waweru standard. See Waweru, 437 F.3d at 204 n.5 ([T]he Chenery doctrine, see SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947), aims to prevent a court from inventing a rationale for

the agency, but it does not prevent ascertaining a rationale that is less than perfectly expressed. ).

2. Alternatives Analysis

Next, Plaintiffs contend that the Court committed legal error in its alternatives analysis

under the CWA. In its Order, the Court outlined the framework for its analysis:

and significant public comments. Id. ¶ 106. But, the Plaintiffs' quotation of the Corps's decision comes in the

context of whether the Corps is considering the entire Northwest Bypass project or only Phase II and the Corps's

clarification that it was not deciding the potential impact on traffic patterns if the entire project were built. This

allegation is not the same argument the Plaintiffs are attempting to raise in their motion for reconsideration. In

short, nothing in the Complaint placed the Court on notice of the Plaintiffs' current contention. The Plaintiffs'

memoranda in support of its motion for a TRO and a preliminary injunction and their reply all fail to mention this

rationale. See Pls. ' Mem. ofLaw in Supp. ofMot. for TRO and Prelim. Inj. (Docket # 2); Pls. ' Mem. ofLaw in Reply

to Defs. ' Opp'n Mem. (Docket # 24).

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Under 40 C.F.R. § 230.10(a)(3), there is a presumption that

alternatives exist when the proposed project is not "water

dependent. The Phase II construction does not "require access or

proximity to . . . the special aquatic site in question to fulfill its

basic purpose. 40 C.F.R. § 230.10(a)(3). Thus, "when the basic

purpose of a project may be accomplished without `access or

proximity' to a `special aquatic site ... practicable alternatives that

do not involve special aquatic sites are presumed to be available,

unless clearly demonstrated otherwise.' Greater Yellowstone

Coal., 321 F.3d at 1262 n.12 (quoting 40 C.F.R. § 230.10(a)(3)).

In other words, "under the CWA, it is not sufficient for the Corps

to consider a range of alternatives to the proposed project: the

Corps must rebut the presumption that there are practicable

alternatives with less adverse environmental impact. Id.; see also

Nat'l Wildlife Fed'n, v. Whistler, 27 F.3d 1341, 1344 (8th Cir.

1994) ("This presumption of practicable alternatives is very strong,

creating an incentive for developers to avoid choosing wetlands

when they could choose an alternative upland site .... (citations

and internal quotation marks omitted)). Therefore, it is presumed

that there existed alternatives to the chosen course of action,

because the Phase II project does not depend on an "aquatic site

for its existence. The question becomes whether any of the

existing alternatives were practicable, such that the discharge of fill

could be avoided.

Order at 15-16 (footnote omitted).

In their motion for reconsideration, Plaintiffs imply that the Court applied the wrong

standard, but then proceed to cite generally the same case law the Court cited in its Order.

Compare Pls. ' Mot. at 4-5 with Order at 15-16. In the Order, the Court recognized that, under

the CWA, there is a "very strong presumption that practicable alternatives exist when a

proposed project is not water-dependent, and that the agency carries the burden to rebut that

presumption by showing the alternatives to be impracticable.5 Order at 15-16. Despite the

5 The Plaintiffs criticize the Court for failing to reflect that the "oft-quoted characterization of the strength of the

CWA presumption as being 'Very strong, italicizing the modifier, "very. Pls. 'Mot. at 5 (quoting Buttrey v.

United States, 690 F.2d 1170, 1180 (5th Cir. 1982) (emphasis in original)). It is true that in its Order, the Court

inadvertently failed to italicize "very in quoting the same language in Nat'Z Wildlife Fed'n v. Whistler, 27 F.3d

1341, 1344 (8th Cir. 1994). See Order at 15-16. The Plaintiffs do not contend that the Court applied the wrong

legal standard or that the Court incorrectly quoted the words, but only that its quotation omitted italics on the word

"very. Although the Plaintiffs are technically correct, their argument seems a bit punctilious.

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general congruity between the case law cited in the Order and the case law cited by the Plaintiffs,

they worry that the Court failed to apply the correct legal standard, quoting from Utahns for

Better Transp. v. United States Dep't of Transp., 305 F.3d 1152, 1187 (10th Cir. 2002), and

claiming that in addition to the very strong presumption and the placement of the burden on the

applicant, there is a requirement that the applicant sustain its burden by detailed, clear, and

convincing information proving impracticality, which the Corps independently verifies. To

reassure the Plaintiffs, the Court now affirms that it applied exactly the same standard the

Plaintiffs say it should have applied. It appears they simply disagree with the Court's

conclusion: that the Corps properly determined that the City had rebutted the presumption by

showing that the available alternatives were impracticable. To make it clear, the Court reaffirms

its conclusion that the Corps was justified in reaching its independent decision based on evidence

in the record that the City had sustained its burden by "detailed, clear and convincing

information, proving impracticality. Id. Because in reaching its decision, the Court applied the

same standards the Plaintiffs urge upon it in their motion for reconsideration, they have not set

forth grounds for relief under Rule 59.

The Plaintiffs then argue the evidence, asserting that it is insufficient as a matter of law to

sustain the Corps's conclusions. The Court has considered these arguments and has iejected

them. See Order at 16-17. The Plaintiffs' motion for reconsideration does not alter its analysis.

3. Cumulative Impacts

Plaintiffs next object to the Court's language that "the relationship between Phase II and

Phase III is much too speculative to mandate Phase III consideration. Pls. ' Mot. at 12 (quoting

Order at 21-22). In this section of the Order, the Court concluded that the Plaintiffs were not

likely to succeed in showing that the Corps engaged in improper segmentation because the Phase

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II road has justification independent from the entire Northwest Bypass project - to relieve traffic

congestion and provide for easy access to the hospital by emergency vehicles. Moreover, the

Court concluded that they were not likely to succeed in showing that the Corps's decision was

arbitrary or capricious, because the construction of Phase III is not reasonably foreseeable.

Plaintiffs cite no manifest error of law committed by the Court, but suggest that the lack of

current plans to build Phase III does not render it too speculative for consideration. Pls. 'Mot. at

12 (citing Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 111 (D.N.H. 1975)). They

disagree with the Court's conclusion, but raise no new evidence and no manifest error of law that

would justify relief under Rule 59.

4. NHPA - Tuttle Home and Pleasant View Home

Regarding the NHPA claims, the Plaintiffs first claim that the "Court has not addressed

the plaintiffs' allegations that under the NHPA the Army Corps was required to consult with the

Tuttles .... Pls. ' Mot. at 15 (emphasis in original). This assertion is plainly wrong, and the

Court will not repeat its original analysis. See Order at 32-33 (discussing the October 6, 2000

meeting attended by the Corps and the Tuttles, and the Corps's subsequent follow-up on this

issue with the Advisory Council on Historic Preservation). The administrative record does not

support Plaintiffs' assertion that "[i]t is undisputed that the agency never contacted the Tuttles, a

plain violation of the NHPA. Pls. 'Mot. at 16.

Next, with respect to the Pleasant View Home issue, Plaintiffs reiterate their argument

that "the record is devoid of any evidence that the Army Corps ever consulted with anyone about

[] noise impacts. Pls. 'Mot. at 16. The Plaintiffs' disagreement with the Court's conclusions is

not an adequate ground for relief under Rule 59.

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Finally, Plaintiffs address the Carmelite Monastery - a non-register property - asserting

that the Court did not apply Section 106 of the NHPA correctly in concluding that the Corps's

consideration of adverse noise impacts was adequate . Pls.' Mot. at 17-18 . According to

Plaintiffs, the Corps failed to employ technical expertise , and simply deferred to the

determination of a state agency. Id. These arguments are simply reiterations of previous

arguments, which the Court considered in denying their motion for preliminary injunction. They

have not presented any newly discovered evidence, nor have they alleged that the Court has

committed a manifest error of law.

5. NEPA

Plaintiffs present their final objection for the first time in this motion for reconsideration.

They quote Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F . 3d 722, 736 (9th Cir. 2001), for

the proposition that "[a] gencies must prepare environmental impact statements whenever a

federal action is controversial , that is, when substantial questions are raised as to whether a

project ... may cause significant degradation of some human environmental factor .... Id. at

736 (citation and internal quotation marks omitted). Plaintiffs essentially argue that, because this

project is controversial , the Corps ' s failure to prepare an environmental impact statement was

arbitrary and capricious . Pls. 'Mot. at 19.

The purpose of a Rule 59 motion is not to raise new arguments that could have been

included in previous filings . As such, there is no basis for granting relief under Rule 59.

However, even if this argument had been raised before, it lacks merit. As the Corps

acknowledges , the definition of "controversy in this context is not as broad as the Plaintiffs

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would hope.6 For example, in Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992), the

Ninth Circuit said:

An agency's careful evaluation of the impact of its proposed

action, its collection and review of evidence, and its reasoned

conclusions as to what the date reveals would be for naught if by

simply filing suit and supplying an affidavit by a hired expert,

predicated upon the same facts relied upon by the agency but

reaching a different conclusion, a litigant could create a

controversy necessitating an EIS.

Id. at 1335. As the Fourth Circuit has pointed out, and common sense dictates, the term

"controversial is not synonymous with "opposition. See North Carolina v. Fed. Aviation

Admin., 957 F.2d 1125, 1134 (4th Cir. 1992) (adding that "[o]therwise, opposition, and not the

reasoned analysis set forth in an environmental assessment, would determine whether an

environmental impact statement would have to be prepared. . . . The outcome would be

governed by a `heckler's veto.' ). The Ninth Circuit's framing of the controversy in Babbitt is

telling: "[National Parks & Conservation Association] asserted that the effects on the

environment would likely be substantial. The [National] Parks Service responded that the extent

of the effects was unknown. Therein lay the controversy. 241 F.3d at 737. The court did not

excuse the Parks Service from preparing an EIS to fmd out the extent of the effects "when there

is a reasonable possibility that such information can be obtained in connection with the

preparatory process. Id.

Here, the Plaintiffs have mt established that the same sort of controversy exists as in

Babbitt and therefore, even had the Plaintiffs previously raised this issue, the Court would not

have found a likelihood of success on the merits sufficient to justify the issuance of a preliminary

injunction.

6 The Court previously noted that the Northwest Bypass project is "controversial in the general sense of the term.

Order on Pls. ' Motionsfor Leave to Amend Compl. at 8 (Docket # 119).

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III. CONCLUSION

The Court DENIES the Plaintiffs' motion for reconsideration (Docket # 91).

SO ORDERED.

/s/ John A. Woodcock

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 4th day of June, 2007

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