Citizens for Smart Growth v. Secretary, Department Ot Transportation , 669 F.3d 1203 ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11056 FEB 6, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:07-cv-14122-JEM
CITIZENS FOR SMART GROWTH,
a Florida Non Profit Corporation,
ODIAS SMITH,
an individual,
KATHIE SMITH,
an individual,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
versus
SECRETARY of the DEPARTMENT OF TRANSPORTATION,
J RICHARD CAPKA,
ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION,
DIVISION ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION, FLORIDA DIVISION,
FLORIDA DEPARTMENT OF TRANSPORTATION,
SECRETARY STEPHANIE C. KOPELOUSOS,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2012)
Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.
WILSON, Circuit Judge:
This appeal concerns the actions and decisions of the Federal Highway
Administration (“FHWA”) and the Secretary of the Florida Department of
Transportation (“FDOT”) during the planning and development of the Indian
Street Bridge Project in Martin County, Florida. Appellants Odias Smith, Katie
Smith, and Citizens for Smart Growth (collectively, “Citizens”) brought suit under
the Administrative Procedure Act, 5 U.S.C. §§ 701–706, alleging that FHWA and
FDOT violated both the National Environmental Protection Act of 1969
(“NEPA”), 42 U.S.C. §§ 4321–4347, and Section 4(f) of the Department of
Transportation Act (“Section 4(f)”), 49 U.S.C. § 303, during development of the
project. Citizens also requested an injunction to stop construction of the bridge.
The district court granted summary judgment in favor of FHWA and FDOT and
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
2
denied the injunction. After review of the extensive 10,000-page administrative
record in this case, we affirm the district court.
I. Background
In 1998, FDOT began the planning and decision process that led up to the
construction of the Indian Street Bridge in Martin County. Responding to Martin
County’s desire for an additional crossing of the St. Lucie River for traffic relief
and evacuation purposes, FDOT began investigating possible improvements to the
State Road 714 corridor. FDOT presented the findings of this investigation in the
Feasibility Study Report (“Feasibility Study”) of 1998. The Feasibility Study
considered one corridor—the existing four-lane Palm City Bridge on State Road
714—and evaluated three alternatives within this corridor: a No-Build Alternative,
a Six-Lane Alternative, and an Eight-Lane Alternative. The study concluded that
widening the bridge would require taking Section 4(f) properties, possibly exceed
noise maximums, potentially negatively impact the environment, and possibly
affect Superfund sites along the corridor. Additionally, only the Eight-Lane
option provided the level of service required in design year 2026, but this option
was barred by FDOT policy regarding lane maximums on state highways. The
Feasibility Study concluded that the No-Build Alternative was the “best”
3
alternative of those examined but recommended that other alternatives (including
an additional bridge crossing) be considered to address the traffic concerns.
FDOT then prepared the New Bridge Crossing Alternative Corridor Report
(“Corridor Report”), released in March 2001. The Corridor Report examined
seven potential corridors for a river crossing and one tunnel alternative and
evaluated each option on the basis of cost, traffic service levels, engineering
factors, environmental impacts (noise, air quality, wetlands impact, endangered
species impact, and potential contamination), and socio-economic factors (public
opinion, Section 4(f) impacts, future development, sustainability, and community
cohesion). As part of this analysis, the Corridor Report also took into account that
the Martin County Metropolitan Planning Organization had unanimously endorsed
the Indian Street Corridor and voted to prohibit widening State Road 714. The
Corridor Report concluded that Corridor Three, the Indian Street Crossing, was
the best alternative because it had scored highest on the evaluation matrix.
Following the completion of the Corridor Report, the FHWA prepared a
Draft Environmental Impact Statement (“EIS”) as required by NEPA; distributed it
to federal, state, and local agencies for notice and comment; and published it in the
Federal Register. Citizens submitted an alternative (“Citizens’s Alternative”)
during this comment period, proposing a combination of traffic management
4
mechanisms and road improvements rather than construction of a new bridge.
Appellees analyzed Citizens’s Alternative, but they ultimately rejected it because
it did not provide another corridor across the river—desirable for emergencies and
evacuations—or reduce traffic to the extent desired. On July 6, 2006, FHWA
issued the Final EIS (“FEIS”), which incorporated by reference the findings of the
Feasibility Study and the Corridor Report. On October 19, 2006, FHWA signed a
Record of Decision (“ROD”), responding to the comments to the FEIS and
approving the project. The Feasibility Study, Corridor Report, FEIS, and ROD
were made available to the public.
Citizens filed suit on April 20, 2007, alleging that Appellees violated NEPA
and Section 4(f) in their development of the Indian Street Bridge Project. On
October 1, 2009, Citizens’s motion for a preliminary injunction was denied. Both
parties moved for summary judgment, and on April 30, 2010, the district court
granted summary judgment in favor of FHWA and FDOT and denied the motion
for an injunction. All other pending motions were dismissed. The project
received funding from the American Reinvestment and Recovery Act on February
9, 2010, and construction of the bridge is now underway.
II. Jurisdiction
5
This suit was brought under the Administrative Procedure Act (“APA”),
which provides for judicial review of federal agency actions and allows federal
courts to enjoin authorities of the United States government. See 5 U.S.C. §§ 701,
702. Citizens seeks only injunctive relief against the Secretary of FDOT. The
Secretary argues that this court lacks jurisdiction to enjoin a state official in an
action based on the APA because FDOT is not a federal agency.
Our jurisdiction over a state official in an action like this one is a complex
legal question and presents an issue of first impression in this circuit. Other
circuits that have addressed this question have focused on whether a highway
project constitutes a major federal action or whether the state and federal projects
are sufficiently interrelated. Sw. Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 243
F.3d 270, 277 (6th Cir. 2001) (“If we conclude that the highway corridor
constitutes a ‘major federal action,’ then we have the authority to instruct the
district court to enjoin the state from further construction on the highway.”); Fund
for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir. 1992) (“Nonfederal
defendants may be enjoined if federal and state projects are sufficiently
interrelated to constitute a single federal action for NEPA purposes.” (quotation
marks omitted)).
6
While we agree with the Secretary of FDOT that the APA does not apply to
state agencies, we decide that jurisdiction over the Secretary may be exercised in
the circumstances of this case. The Secretary admits that “FDOT’s substantial role
is well documented in the Administrative Record.” And, the Secretary calls FDOT
a “party working in tandem with federal agencies.” Given these circumstances,
and the fact that the plaintiffs have only sought injunctive relief against the
Secretary, we find the district court properly exercised its jurisdiction over the
Secretary in this case.1
III. Standard of Review
We review a grant of summary judgment de novo and apply the same legal
standards as the district court. See Wilderness Watch & Pub. Emps. for Envtl.
Responsibility v. Mainella, 375 F.3d 1085, 1087–88 (11th Cir. 2004). When
confronted with claims brought under the APA, we may only set aside agency
action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). This standard is “exceedingly
deferential.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008).
1
We question whether it would even be necessary for the Secretary to be a party to this
case in order for an injunction to bind the Secretary. See Fed. R. Civ. P. 65(d)(2)(A), (C) (stating
that an order granting an injunction binds the parties and “other persons who are in active concert
or participation” with the parties provided they have actual notice).
7
To determine whether an agency decision was arbitrary and
capricious, the reviewing court must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment. This
inquiry must be searching and careful, but the ultimate standard
of review is a narrow one. Along the standard of review
continuum, the arbitrary and capricious standard gives an
appellate court the least latitude in finding grounds for
reversal; administrative decisions should be set aside in this
context only for substantial procedural or substantive reasons
as mandated by statute, not simply because the court is
unhappy with the result reached.
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541–42 (11th Cir. 1996) (quotation
marks and ellipses omitted).
IV. NEPA
The National Environmental Protection Act sets forth review procedures
that federal agencies must engage in before taking any “major” actions. 42 U.S.C.
§ 4332. Section 102(2)(C) of NEPA requires that to evaluate the proposed action
an agency must prepare an EIS that includes “a detailed statement of (i) the
environmental impact of the proposed action, (ii) any adverse environmental
effects which cannot be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relationship between local short-term
uses of man’s environment and the maintenance and enhancement of long-term
productivity, and (v) any irreversible and irretrievable commitments of resources
8
which would be involved in the proposed action should it be implemented.”
Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th
Cir. 1985) (citing 42 U.S.C. § 4332(2)(C)). The requirements of NEPA are purely
procedural and do not mandate any specific outcome; agencies may make a
decision that preferences other factors over environmental concerns as long as
they have first adequately identified and analyzed the environmental impacts. Van
Antwerp, 526 F.3d at 1361. A court reviewing NEPA compliance may only ask
whether the agency took a “hard look” at environmental consequences. Druid
Hills, 772 F.2d at 709. A challenging party has the burden of showing by a
preponderance of the evidence that the agency did not comply with NEPA’s
procedures. Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974).
A. Incorporation of Local Planning Documents
Citizens argues that it was improper of FHWA to rely upon FDOT’s
Feasibility Study and Corridor Report when preparing the FEIS. However, circuit
precedent holds that incorporation of local planning documents is permissible and
that references to such documents can satisfy the requirements of NEPA. See
Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 438 (5th Cir. Unit
B Feb. 1981) (“The reference to the [regional planning document] contained in the
. . . EISs was sufficient to satisfy the procedural and substantive requirements of
9
NEPA.”).2 Furthermore, the Council on Environmental Quality Guidelines
instruct that “[a]gencies shall incorporate material into an environmental impact
statement by reference,” 40 C.F.R. § 1502.21 (emphasis added), and encourage
joint federal and local action, see 40 C.F.R. § 1502.5(b).
Citizens also contends that use of the local planning documents was
impermissible because FHWA failed to participate in the preparation of the
documents. In support of its position, Citizens points to 23 C.F.R.
§ 771.109(c)(5), which states that a local agency “may prepare the EIS and other
environmental review documents with the Administration furnishing guidance,
participating in the preparation, and independently evaluating the document.”
However, the Feasibility Study and the Corridor Report are not NEPA
environmental review documents; they are support documents that were
referenced in an environmental review document: the FEIS. See 23 C.F.R.
§ 771.111(a)(2). “Publicly available documents . . . produced by, or in support of,
the transportation planning process . . . may be incorporated directly or by
reference into subsequent NEPA documents” and require review by the FHWA
2
In Piedmont Heights, the court explained that because the regional planning documents
“were readily available to the public,” the agency was “not required to reiterate facts and figures”
already made public. 637 F.2d at 438. Following this reasoning, because Appellees made the
Feasibility Study and Corridor Report available to the public, they were able to satisfy their
NEPA obligations by incorporating those documents by reference rather than republishing the
already-public information.
10
only “as appropriate.” 23 § C.F.R. 450.212(b). We find no error in FHWA’s
incorporation of the local planning documents in the FEIS.
B. Purpose and Need Statement
Citizens contends that FHWA adopted an impermissibly narrow Purpose
and Need Statement that foreclosed consideration of a sufficiently wide array of
alternatives. NEPA’s only requirement regarding the Purpose and Need Statement
is that it “briefly specify the underlying purpose and need to which the agency is
responding in proposing the alternatives including the proposed action.” 40
C.F.R. § 1502.13. “[A]gencies must look hard at the factors relevant to the
definition of purpose” and “should take into account the needs and goals of the
parties involved in the application.” Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 196 (D.C. Cir. 1991). “[A]n agency may not define the objectives
of its action in terms so unreasonably narrow that only one alternative from among
the environmentally benign ones in the agency’s power would accomplish the
goals of the agency’s action, and the EIS would become a foreordained formality.”
Id. “Nor may an agency frame its goals in terms so unreasonably broad that an
infinite number of alternatives would accomplish those goals and the project
would collapse under the weight of the possibilities.” Id.11
The FEIS stated that the purpose of the study was “to evaluate and
comprehensively examine various alternatives for an additional crossing of the
South Fork of the [St. Lucie] River in Martin County, Florida.” It also explained
that an additional crossing was desired to accommodate infrastructure needs,
satisfy transportation demands, and facilitate emergency response and evacuation.
Although Citizens objects to FHWA’s limitation of the scope of the statement to
cover only a Southern crossing of the river, we find FHWA’s rationale—that an
existing bridge across the river serves mainly the central and northern parts of the
county—to be reasonable. In sum, we find FHWA’s consideration of the relevant
factors to be sufficient and the Purpose and Need Statement to be not unduly
narrow.
C. Review of Environmental Impacts
Citizens alleges the following deficiencies in the FEIS: inadequate review
of alternatives, failure to take a “hard look” at direct effects, and insufficient
consideration of cumulative and indirect impacts.
First, Citizens asserts that Appellees failed to complete a detailed analysis
of all alternatives because it relied upon conclusions of local planning documents
to reject some alternatives prior to the preparation of the FEIS. As explained
above, the reliance on local planning documents was appropriate. Regarding
12
Citizens’s contention that too few alternatives were considered in the FEIS,
NEPA’s requirement that alternatives be considered is “bounded by some notion
of feasibility.” Druid Hills, 772 F.2d at 713 (citation and quotation marks
omitted). Agencies only have to consider “reasonable alternatives,” and we
evaluate their choices against a “rule of reason.” Id. NEPA does not impose any
minimum number of alternatives that must be evaluated. See N. Buckhead Civic
Ass’n v. Skinner, 903 F.2d 1533, 1541–43 (11th Cir. 1990) (finding that an EIS
with only two alternatives studied in detail was sufficient); Tongass Conservation
Soc’y v. Cheney, 924 F.2d 1137, 1140–42 (D.C. Cir. 1991) (finding that agency
complied with NEPA when thirteen of fourteen alternatives were eliminated as
unreasonable and only one alternative was discussed in detail in the EIS). Here,
Appellees considered three alternatives in the FEIS—the Indian Street Bridge
Alternative, the No-Build Alternative, and the Traffic System Management
Alternative—and also analyzed Citizens’s Alternative in depth. Reviewing
Appellees’ choice and analysis of alternatives presented in the EIS under a rule of
reason, we find Appellees’ consideration of alternatives to be “sufficient to permit
a reasoned choice.” N. Buckhead Civic Ass’n, 903 F.2d at 1541.
When alternatives are rejected from consideration in an EIS, there is no duty
to perform in-depth analyses of these alternatives. 40 C.F.R. § 1502.14(a) (stating
13
that agencies shall “[r]igorously explore and objectively evaluate all reasonable
alternatives,” but when alternatives have been rejected from consideration,
agencies need only “briefly discuss the reasons for their having been eliminated”
(emphasis added)). Because Appellees’ choice to exclude the alternatives that it
did was appropriate, Appellees had no duty to conduct an in-depth analysis of
those rejected alternatives in the FEIS. Appellees, by discussing in the FEIS their
analysis of the expected environmental effects of the corridors and the relative
impact of the various alternatives on cost, traffic service, engineering,
environmental, and socio-economic factors, more than fulfilled NEPA’s
requirement to “briefly discuss” the rejected alternatives.
Second, Citizens alleges that Appellees failed to take a “hard look” at the
direct environmental effects of the proposed action, as required by 40 C.F.R.
§ 1502.16(a). Citizens argues that one arbitrary and capricious act of Appellees
regarding their study of direct impacts was the choice to continue with
environmental studies after the EIS was completed. In making this argument,
Citizens urges us to conclude from the fact that studies are ongoing that they could
not have been developed to an appropriate extent when the EIS was created.3
3
Citizens also argues that Appellees violated the requirement that the “draft EIS shall
also summarize the studies, reviews, consultations, and coordination required by environmental
laws or Executive Orders to the extent appropriate at this stage in the environmental process.” 23
14
However, a commitment to ongoing studies alone is not necessarily indicative of
an insufficient EIS. See City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123
F.3d 1142, 1167 (9th Cir. 1997) (finding that an agency with only a “conceptual”
mitigation plan that intended to continue compliance efforts had satisfied
Executive Order 11990 because it had complied “to date”). Because we do not
find the scheduling choice alone to be arbitrary or capricious, we turn to examine
the alleged substantive deficiencies of the EIS.
Citizens points to specific studies to illustrate its claim that Appellees failed
to adequately evaluate direct environmental impacts of the proposed action.
Under the Magnuson-Stevens Fishery Conservation and Management Act of 1996
(“MSFCMA”), 16 U.S.C. §§ 1801–1883, federal agencies are required to prepare
an Essential Fish Habitat Assessment and consult with the National Marine
Fisheries Service prior to taking an action that would adversely impact an essential
fish habitat, 50 C.F.R. § 600.920. Appellees did so, but Citizens alleges that the
study area selected to review cumulative effects—the drainage basin of the South
Fork of the St. Lucie River—was too narrow, and thus the assessment was
C.F.R. § 771.123(c). Citizens’s argument glosses over the “to the extent appropriate” caveat of
that regulation and fails to acknowledge the instructions of 23 C.F.R. § 771.133: “If full
compliance [with other environmental regulations] is not possible by the time the final EIS . . . is
prepared, the final EIS . . . should reflect consultation with the appropriate agencies and provide
reasonable assurance that the requirements will be met.” A commitment to continue with
ongoing environmental reviews would embody exactly this kind of assurance.
15
insufficient. Appellees respond that the basin area selected for review of
cumulative impacts was the only basin into which another bridge also drained, and
thus the only area where cumulative impacts could potentially occur. This
rationale is hardly indicative of arbitrary and capricious decision making.4
Citizens also asserts that Appellees did not comply with Executive Orders
11988 and 11990 because Appellees’ analyses lacked detail and were overly
conclusory.
Executive Order 11988, entitled “Floodplain Management,” requires
federal agencies taking action in or affecting a floodplain to think
twice. The agency must consider the project’s effects on the
floodplains and possible alternatives, and may proceed only if it finds
that the only practicable alternative requires sitting in the floodplain.
In designing its plan the agency must take steps to minimize potential
damage to the floodplain.
City of Carmel-by-the-Sea, 123 F.3d at 1166 (quotation marks and footnote
omitted). Executive Order 11990, entitled “Protection of Wetlands,” provides
“similar protection” regarding wetlands. Sierra Club v. Hassell, 636 F.2d 1095,
1100 (5th Cir. Unit B Feb. 1981). Section Four of the FEIS contains a detailed
discussion of floodplains and wetlands. Both the floodplains and wetlands
4
Citizens also contends that Appellees acted in error by failing to consider alternatives to
the action, but an analysis of alternatives is not mandatory under the Act. See 50 C.F.R.
§ 600.920(e)(3) (listing mandatory contents of assessment); 50 C.F.R. § 600.920(e)(4) (listing
additional information—including an analysis of alternatives—to be included “[i]f appropriate”).
16
subparts of Section Four discuss harm-minimization plans. The floodplains
subpart concludes that because the area along the river is prone to flooding, there
is no practicable alternative to locating the bridge in a floodplain. The wetlands
subsection explains that due to the nature of bridge construction and the terrain
around the St. Lucie River, there are no practicable alternatives to impacting
wetlands. Overall, we find this analysis, as well as the discussions of other direct
impacts, satisfactorily thorough and neither arbitrary nor capricious.
Third, Citizens contends that Appellees’ review of cumulative and indirect
impacts was insufficient. Indirect impacts are reasonably foreseeable long-term
effects of the proposed action. 40 C.F.R. § 1508.8(b). “Cumulative impact is the
impact on the environment which results from the incremental impact of the action
when added to other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person undertakes such
other actions.” Id. § 1508.7 (quotation marks omitted). Appellees discuss both
types of impacts in the subsection of the FEIS entitled “Indirect and Cumulative
Impacts.” That subsection discusses the cumulative impacts on current and
existing growth, emergency response and evacuation, wildlife, essential fish
habitats, and water quality, as well as proposed transportation projects. The FEIS
also noted that no other major construction projects pending in the area had
17
obtained permit applications. The FEIS discussion of these matters, therefore, was
sufficient.
Citizens alleges that Appellees’ indirect impacts assessment is faulty
because it fails to consider the change that would result from the project’s
stimulation of commercial interests in a previously residential area. However, in
their review of indirect impacts of the project, Appellees found that other
commercial uses in the study area were already being planned or developed.
Therefore, Appellees concluded that any induced commercial growth would not
constitute a change to the area. Citizens also objects to the area selected for the
study of induced growth but fails to explain why Appellees’ choice was erroneous.
Determining the geographic extent of an analysis area is the kind of task “assigned
to the special competency of the appropriate agencies,” and such a determination
can only be overturned by a showing of arbitrariness or capriciousness in the
decision making. See Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S. Ct. 2718,
2732 (1976). Furthermore, the FEIS recognized that commercial uses were in
development or in the planning stages for development along the project’s
corridor. Appellants cannot demand a more detailed response to their challenge
without identifying precise geographic areas or instances of induced growth,
18
considering that the project is already underway. Here, the FEIS’s finding that no
land use change is expected to occur adequately addresses Appellants’ concerns.
In their study of cumulative effects, Appellees found that because no other
construction projects were listed on the Martin County Five-Year Capital
Improvements Plan as pending in the project area, no cumulative impacts could be
expected. Citizens argues that referencing to the Five-Year Plan was an error and
that Appellees should have consulted the Martin County Long-Range Plan instead.
However, Appellees determined that because the projects on the Long-Range Plan
were listed far before their actual development, any analysis of the cumulative
impacts of the Long-Range Plan projects would be mostly speculative.5 We have
held that agencies cannot be “forced to analyze the environmental impact of a
project, the parameters and specifics of which would be a mere guess.” City of
Oxford v. FAA, 428 F.3d 1346, 1356 (11th Cir. 2005).
Ultimately, Citizens argues that Appellees should have used different and
better methodologies for reviewing environmental impacts of the project.
However, we do not review an agency’s compliance with NEPA by asking
whether it made the optimal choices; NEPA does not require perfection. See
5
See 23 U.S.C. § 135(f) (“Each State shall develop a long-range statewide transportation
plan, with a minimum 20-year forecast period . . . .”) (emphasis added).
19
Druid Hills, 772 F.2d at 708–09. Appellees’ compliance with NEPA may not
have been perfect, but it was sufficient.
D. Need for a Supplemental Environmental Impact Statement
The Indian Street Bridge has four phases that were originally planned to be
completed contemporaneously, but FDOT announced on May 1, 2009 that one
phase will commence prior to the others. Citizens now attempts to argue that
Appellees erred by not completing a Supplemental Environmental Impact
Statement (“SEIS”) investigating the impacts of phasing.6 However, Citizens did
not raise this issue in its Amended Complaint.7 Instead, Citizens alleged in its
Amended Complaint that an SEIS was necessary because Citizens had submitted
its Alternative, which included information and proposals about traffic modeling
systems. Citizens’s argument on appeal—that the decision to utilize phasing must
be examined further in an SEIS—is substantially different than that alleged in its
Complaint, and we will not consider a claim not detailed in the plaintiff’s
pleadings. See Maniccia v. Brown, 171 F.3d 1364, 1367 n.1 (11th Cir. 1999).
6
A SEIS is required when the agency “makes substantial changes in the proposed action
that are relevant to environmental concerns; or [t]here are significant new circumstances or
information relevant to environmental concerns and bearing on the proposed action or its
impacts.” 40 C.F.R. § 1502.9(c)(1).
7
Citizens filed a motion to amend its Complaint to include the argument it now raises;
Appellees opposed the motion as untimely. The district court denied the motion as moot when it
entered its May 3, 2010 summary judgment order.
20
V. Section 4(f)
Section 4(f) of the Transportation Act allows the Secretary of
Transportation to approve a federal highway project using the land of a public
park, recreation area, wildlife refuge, or historic site only if “(1) there is no
prudent and feasible alternative to using that land; and (2) the program or project
includes all possible planning to minimize harm to the park, recreation area,
wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C.
§ 303(c).
Section 4(f)(1) requires that the Secretary must make a finding that no
feasible or prudent alternatives to the use of Section 4(f) lands exist. “An
alternative is feasible if it can be built as a matter of sound engineering.” Druid
Hills, 772 F.2d at 715. An alternative is prudent unless there are “truly unusual
factors present in a particular case or the cost or community disruption resulting
from alternative routes reached extraordinary magnitudes” or the alternative routes
present “unique problems.” Id. (alteration omitted). When evaluating alternatives
during a Section 4(f)(1) review, the Secretary need not consider options that
impact Section 4(f) lands because “[a]n alternate route that also impacts upon
parks and historic sites is not an alternative to the use of such property.” Id.(quotation marks omitted).
21
If the Secretary determines that there are no feasible or prudent alternatives
to using Section 4(f) property for the project, the Secretary must then comply with
the mandate of Section 4(f)(2) to minimize harm to parks and historic sites. This
requires “a simple balancing process which totals the harm caused by each
alternate route to section 4(f) areas and selects the option which does the least
harm.” Id. at 716. Unlike 4(f)(1), the 4(f)(2) analysis requires the Secretary to
consider alternatives that would use 4(f) lands. See id.We use a three-part test to review the Secretary’s compliance with Section
4(f). First, we ask whether the Secretary acted within the scope of his authority:
did he construe his authority to approve projects to be limited to situations where
no feasible and prudent alternatives to the use of 4(f) property existed, and could
he have reasonably believed that no such alternatives existed? Druid Hills, 772
F.2d at 714. Second, we inquire whether the Secretary’s ultimate decision was
arbitrary, capricious, or an abuse of discretion. Id. Third, we ask if the Secretary
followed the necessary procedural requirements. Id. “[T]he Secretary’s decision
is entitled to a presumption of regularity,” but “that presumption does not shield
his action from a thorough, probing, in-depth review.” Id. (quotation marks and
22
citation omitted). Our review of the Secretary’s actions focuses on the
administrative record, not the district court’s opinion.8 Id.Citizens argues that the brevity of the statements in the FEIS regarding
Section 4(f) compliance reveals that the Secretary had no reasonable basis to
believe that no prudent alternatives to the project exist. Citizens cites to Stop H-3
Ass’n v. Coleman, 533 F.2d 434, 445 (9th Cir. 1976), for the proposition that
conclusory or unsupported statements do not satisfy the Secretary’s 4(f) burden.
However, in Stop H-3, the Secretary’s position was that Section 4(f) “was
altogether inapplicable,” and the court found that “[i]n the light of that
consistently recorded position, it is not possible, with factual accuracy, to
conclude that the Secretary evaluated [the proposed highway] with the explicit
directives of 4(f) firmly in mind.” 533 F.2d at 445. The factual situation here is
radically different: the FEIS itself contains a lengthy discussion of 4(f) impacts
and also references the Corridor Report, which provides even more analysis of the
alternatives’ effects on 4(f) lands. Unlike in Stop H-3 where the court found that
the Secretary could not have evaluated the project with the directives of Section
8
Citizens challenges the sufficiency of Appellees’ Section 4(f) analyses (in the
administrative record), upon which the Secretary based his Section 4(f) determinations.
Therefore, our discussion of Section 4(f) compliance in this case centers on whether Appellees’
Section 4(f) analyses and determinations were adequate.
23
4(f) in mind, the thorough discussion of Section 4(f) impacts indicates a
mindfulness of Section 4(f) not present in Stop H-3. Because the analysis in the
instant case does in fact demonstrate consideration that each of the alternatives
was not feasible and prudent within the context of Section 4(f), the facts do not
support Citizens’s arguments that the Secretary’s review was cursory.
Citizens also contends that the reasons for rejecting alternatives as
imprudent were insufficient because the Secretary failed to point to extraordinary
or unique circumstances, as mandated by Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 413, 91 S. Ct. 814, 822 (1971). We disagree. Some of the
corridor alternatives did not avoid the use of 4(f) lands, so they did not need to be
considered during the Section 4(f)(1) inquiry. See Druid Hills, 772 F.2d at 715.
Some of the alternatives were rejected because they did not fulfill the purpose and
need of the project. This circuit has long maintained that failure to meet a
project’s purpose can render an alternative imprudent. See Druid Hills, 772 F.2d
at 715–16. The remainder of the alternatives were rejected due to extraordinarily
high costs, unacceptable or severe environmental impacts, or both, which are
sufficient foundations for finding that the alternatives were imprudent. See 23
C.F.R. § 774.17 (stating that an alternative is not prudent if: it “compromises the
project to a degree that it is unreasonable to proceed with the project in light of its
24
stated purpose and need”; causes severe “social, economic, or environmental
impacts,” “disruption to established communities,” or “impacts to environmental
resources protected under other Federal statutes”; “results in additional
construction, maintenance, or operational costs of an extraordinary magnitude”; or
“involves multiple factors in . . . this definition, that while individually minor,
cumulatively cause unique problems or impacts of extraordinary magnitude”).9
FHWA’s explanations are sufficient and will not be found lacking simply because
they did not include the terms “extraordinary” or “unique.” See Comm. to Pres.
Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1550–51 (10th Cir. 1993)
(explaining that the “mechanical use” of magic words “is unrelated to the [4(f)]
documents’ substantive merit”); Hickory Neighborhood Def. League v. Skinner,
910 F.2d 159, 162–63 (4th Cir. 1990) (holding that it was unnecessary for the
Secretary to use the terms “unique” and “extraordinary” in the § 4(f) analysis).
Furthermore, “an administrative decision ‘of less than ideal clarity’ will be upheld
‘if the agency’s path may reasonably be discerned.’” La. Envtl. Soc., Inc. v. Dole,
707 F.2d 116, 123 (5th Cir. 1983) (citing Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 285–86, 95 S. Ct. 438, 442 (1974)). Based on the
9
FHWA’s March 2005 Section 4(f) Policy Paper, in effect at the time the Indian Street
Bridge Project was approved, was codified in substantially similar form at 23 C.F.R. § 774.17.
25
record, we do not find that the Secretary acted arbitrarily or capriciously in making
his determination that the alternatives rejected were imprudent, and we find
sufficient evidence that the Secretary could have reasonably believed that there
were no feasible or prudent alternatives.10
Finally, Citizens argues that FHWA failed to comply with the procedural
requirements of Section 4(f). Because Citizens did not raise this issue below, we
cannot consider it now. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue not
raised in the district court and raised for the first time in an appeal will not be
considered by this court.” (citations omitted)).
The district court’s denial of injunctive relief and grant of summary
judgment in favor of FHWA and FDOT is
AFFIRMED.
10
Citizens additionally asserts that the Secretary should have considered a broader range
of environmental factors and completed more detailed studies when making his prudence
determinations. We find the large number of factors considered to be sufficient to make a
reasoned decision. Although it may be true that a wider review would be optimal, this does not
amount to a reason to overturn a satisfactory 4(f) determination.
26