UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROUTE 9 OPPOSITION LEGAL FUND,
An Unincorporated Association;
PIEDMONT ENVIRONMENTAL COUNCIL,
A Virginia Nonprofit Corporation;
WEST VIRGINIA RIVERS COALITION;
NANCY WILSON; JOHN PORTER; BLUE
RIDGE CENTER FOR ENVIRONMENTAL
STEWARDSHIP, A project of the
Robert and Dee Leggett Foundation,
A Virginia Nonprofit Corporation,
Plaintiffs-Appellants, No. 02-2007
v.
NORMAN Y. MINETA, SECRETARY,
UNITED STATES DEPARTMENT OF
TRANSPORTATION; MARY PETERS,
Administrator, Federal Highway
Administration; FRED VANKIRK,
Secretary, West Virginia
Department of Transportation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-02-20)
Argued: May 6, 2003
Decided: September 15, 2003
Before WILKINS, Chief Judge, and WILLIAMS and
GREGORY, Circuit Judges.
2 ROUTE 9 OPPOSITION v. MINETA
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Andrea Carol Ferster, Washington, D.C., for Appellants.
Sheila D. Jones, AKIN, GUMP, STRAUSS, HAUER & FELD,
L.L.C., Washington, D.C., for Appellees. ON BRIEF: Ian A. Shavitz,
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.C., Washington,
D.C.; Thomas L. Sansonetti, Assistant Attorney General, Andrew C.
Mergen, Pamela S. West, Robert H. Oakley, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Several organizations and individuals (collectively, "Appellants")
appeal a district court order granting summary judgment to federal
and West Virginia highway officials in Appellants’ suit challenging
the approval of a highway construction project. Finding no reversible
error, we affirm.
I.
The project at issue involves the construction of a new 4.6-mile
four-lane highway in Jefferson County, West Virginia, extending
from Charles Town to the Virginia state line. The proposed highway
would be built near existing West Virginia Route 9, a winding two-
lane highway constructed in the 1930s. Because of rapid population
growth in Jefferson County, the relevant portion of Route 9 has
become more developed. Numerous residences and businesses now
ROUTE 9 OPPOSITION v. MINETA 3
have driveways accessing the highway, and there are many school bus
stops along the road.
Due to the increased traffic on Route 9, the highway now has phys-
ical and functional deficiencies, including inadequate roadway geo-
metrics and intersection configurations, a lack of climbing and turning
lanes, and inadequate sight distance at intersections. These deficien-
cies have resulted in unsafe driving conditions, which are reflected in
accident, injury, and fatality rates significantly higher than statewide
averages. Further, the increased traffic has prevented Route 9 from
functioning at an acceptable level of service (LOS).1
For these reasons, the West Virginia Department of Transportation
(WVDOT) determined that improvements to Route 9 were necessary
and sought federal funding for this purpose. Pursuant to a provision
of the National Environmental Policy Act of 1969 (NEPA), see 42
U.S.C.A. § 4332(2)(C) (West 1994), and Section 4(f) of the Depart-
ment of Transportation Act of 1966 ("Section 4(f)"), see 49 U.S.C.A.
§ 303(c) (West 1997), the Federal Highway Administration (FHWA)
and WVDOT (collectively, "the Agencies") issued a Draft Environ-
mental Impact Statement and Section 4(f) Evaluation for public com-
ment in December 1993. In October 2000, the Agencies issued a Final
Environmental Impact Statement and Section 4(f) Evaluation (FEIS).
The FEIS identified a variety of possible alternatives for the project,
including a No-Build Alternative (leaving the existing Route 9
unchanged), a Transportation Systems Management (TSM) Alterna-
tive (making improvements to the existing two-lane highway, such as
adding turning and climbing lanes, widening and repaving shoulders,
and installing traffic signals and additional signs), a Public Transit
Alternative (making greater use of existing and potential public trans-
1
LOS is a qualitative measure describing operational conditions within
a stream of traffic and motorists’ perception of those conditions. LOS is
expressed in grades of "A" through "F," with "A" reflecting the least con-
gested conditions and "F" the most congested. The appropriate minimum
LOS for the type of rural highway at issue here is "C." Based on 1999
data, the LOS on four of the eight relevant segments of Route 9 in the
morning peak hour is "C." However, for the other four segments in the
morning peak hour and all segments in the afternoon peak hour, the LOS
ranges from "D" to "F."
4 ROUTE 9 OPPOSITION v. MINETA
portation options), a Two-Lane Upgrade Alternative (upgrading exist-
ing Route 9, likely by constructing a two-lane highway on a new
alignment in order to provide adequate stopping sight distance and
sufficient road and shoulder width, limit roadway grade and horizon-
tal curvature, and improve side road intersections), a Four-Lane
Upgrade Alternative (expanding the existing highway to four lanes),
and five different Four-Lane Build Alternatives (constructing a new
four-lane highway on one of five new alignments).
The FEIS evaluated these alternatives in two stages. First, the
Agencies assessed whether each of the alternatives would meet the
purpose and needs of the project. This analysis was intended "to
determine which preliminary alternatives demonstrated merit to be
retained for detailed study and which alternatives should be dismissed
from further consideration." J.A. 446. During this stage, the Agencies
determined that the No-Build Alternative, the TSM Alternative, the
Public Transit Alternative, the Two-Lane Upgrade Alternative, and
the Four-Lane Upgrade Alternative should be eliminated from further
consideration because, inter alia, none of these alternatives would
meet the capacity and safety needs of the project. By contrast, the
Agencies determined that the five Four-Lane Build Alternatives
would meet the capacity and safety needs of the project. Thus, these
alternatives and the No-Build Alternative were retained for more
detailed study.2
The second stage of the alternatives analysis involved a more
detailed engineering and environmental impact assessment of the
alternatives that were carried forward from the first stage. After ana-
lyzing each of the Four-Lane Build Alternatives (Alternatives A-E),
the Agencies identified Alternative E as the Preferred Alternative.
The Agencies recognized in the FEIS that Alternative E would
involve the acquisition of property from sites protected by Section 4(f).3
2
Although the Agencies determined that the No-Build Alternative
would not meet the project needs, they carried it forward to the second
stage as a baseline for comparing the other alternatives.
3
Section 4(f) provides that the Secretary of Transportation may
approve a project "requiring the use of publicly owned land of a public
ROUTE 9 OPPOSITION v. MINETA 5
However, based on their determination that several of the proposed
alternatives would not meet project needs and an analysis showing
that all of the Four-Lane Build Alternatives would use land from Sec-
tion 4(f) properties, the Agencies concluded that (1) there were no
prudent alternatives that would entirely avoid the use of Section 4(f)
properties, (2) Alternative E was the prudent alternative that least
harmed these properties, and (3) Alternative E incorporated all possi-
ble planning to minimize harm. In January 2001, FHWA issued a
Record of Decision approving the selection of Alternative E based on
the findings in the FEIS.
In December 2001, Appellants brought this action, claiming, inter
alia, that the Agencies had violated NEPA and Section 4(f) by failing
to adequately consider two-lane alternatives that would add climbing,
passing, and turning lanes; realign curves; improve intersections; and
widen and resurface shoulders. Both sides moved for summary judg-
ment. With regard to NEPA, the district court held that the Agencies
had adequately considered alternatives involving the upgrading of the
existing two-lane highway and had reasonably determined that such
alternatives would not meet the capacity and safety needs of the proj-
ect. Similarly, the court rejected Appellants’ Section 4(f) claim, con-
cluding that the Agencies’ findings regarding the lack of prudent
alternatives and the efforts to minimize harm to Section 4(f) proper-
ties were reasonable. The court therefore granted summary judgment
to the Agencies.4
park, recreation area, or wildlife and waterfowl refuge . . . , or land of
an historic site . . . only if— (1) there is no prudent and feasible alterna-
tive to using that land; and (2) the . . . project includes all possible plan-
ning to minimize harm to the [protected site] resulting from the use." 49
U.S.C.A. § 303(c).
4
The district court also ruled that the Agencies did not err in declining
to prepare a supplemental environmental impact statement, and it dis-
missed the claims of Appellants Piedmont Environmental Council and
Blue Ridge Center for Environmental Stewardship for lack of standing.
Because Appellants do not challenge these rulings, we do not address
them further.
6 ROUTE 9 OPPOSITION v. MINETA
II.
On appeal, Appellants maintain that the Agencies violated NEPA
and Section 4(f) by failing to adequately consider two-lane alterna-
tives to the proposed project. We review the grant of summary judg-
ment to the Agencies de novo. See Hodges v. Abraham, 300 F.3d 432,
445 (4th Cir. 2002), cert. denied, 123 S. Ct. 871 (2003). We may
overturn the FHWA’s decision to approve the project only if that
decision was "arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law." 5 U.S.C.A. § 706(2)(A) (West
1996). "When reviewing an agency’s decision to determine if [it] was
arbitrary and capricious, the scope of our review is narrow. Like the
district court, we look only to see if there has been a ‘clear error of
judgment.’" Hughes River Watershed Conservancy v. Johnson, 165
F.3d 283, 287 (4th Cir. 1999) (quoting Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 378 (1989)). An agency’s decision is arbitrary
and capricious if the agency
relied on factors that Congress has not intended it to con-
sider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausi-
ble that it could not be ascribed to a difference in view or
the product of agency expertise.
Id. at 287-88. "Although our inquiry into the facts is to be searching
and careful, this court is not empowered to substitute its judgment for
that of the agency." Id. at 288.
Under NEPA, a federal agency must take a "hard look" at the envi-
ronmental consequences of its proposed actions. Hughes River Water-
shed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). The
agency must "[r]igorously explore and objectively evaluate all reason-
able alternatives," including "the alternative of no action." 40 C.F.R.
§ 1502.14(a), (d) (2002); see 42 U.S.C.A. § 4332(2)(C)(iii). "[F]or
alternatives which were eliminated from detailed study," the agency
must "briefly discuss the reasons for their having been eliminated." 40
C.F.R. § 1502.14(a). An alternative may be eliminated from further
consideration if it does not meet the purpose and needs of the project.
See Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1067
ROUTE 9 OPPOSITION v. MINETA 7
(9th Cir. 1998); Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 198 (D.C. Cir. 1991).
Section 4(f) provides that the Secretary of Transportation may
approve a project requiring the use of land from a protected site only
if "(1) there is no prudent and feasible alternative to using that land;
and (2) the . . . project includes all possible planning to minimize
harm to the [site] resulting from the use." 49 U.S.C.A. § 303(c). The
Secretary must "determine that there are strong and compelling rea-
sons to reject alternatives to the use of section 4(f) land on the basis
that the alternatives are not prudent." Hickory Neighborhood Def.
League v. Skinner, 910 F.2d 159, 164 (4th Cir. 1990). The Secretary
may reject alternatives as imprudent when they "would not fulfill the
transportation needs of the project." Id.
A.
Appellants first challenge the Agencies’ determination that an
upgraded version of the existing two-lane highway "cannot satisfy the
important project need of accommodating existing and projected traf-
fic volumes." J.A. 450. The Agencies based this determination on
general capacity figures for a hypothetical two-lane rural highway
(the "Table 8-10 road") described in the Highway Capacity Manual
(3d ed. 1994) ("HCM"), a professional treatise focusing on the design
and operational analysis of highways. Appellants contend that the
Agencies’ analysis based on the Table 8-10 road was arbitrary and
capricious because they failed to conduct an LOS analysis for the spe-
cific proposed two-lane alternatives. We conclude that under the cir-
cumstances, the Agencies’ analysis was reasonable.
The Agencies used the Table 8-10 road to approximate the capacity
of the proposed two-lane alternatives, in order to show that present
and projected future traffic volumes on Route 9 far exceed the capac-
ity of any two-lane highway over the same type of terrain. The HCM
indicates that a highway like the Table 8-10 road could handle a max-
imum average daily traffic volume of 2,400 vehicles at an acceptable
level of service. According to 1999 traffic data, the average daily traf-
fic volumes on existing Route 9 within the project area range from
6,880 to 11,197 vehicles. In 2025, average daily traffic on this portion
of Route 9 is projected to range from 10,826 to 17,619 vehicles.
8 ROUTE 9 OPPOSITION v. MINETA
Based on these figures, the Agencies concluded that "even assuming
that improvements to the existing two-lane route could incrementally
increase its capacity, any two-lane alternative would be seriously
inadequate to meet existing and future needs for increased roadway
capacity." J.A. 450. Given the large disparities between the capacity
figures for the Table 8-10 road and existing and projected future traf-
fic volumes on Route 9, we believe that the Agencies reasonably
determined that further study of two-lane alternatives was unwar-
ranted because such alternatives could not possibly meet the capacity
needs of the project.5
B.
Appellants also contend that in forecasting future traffic volume,
the Agencies improperly relied on growth assumptions for Jefferson
County roads in general and did not adequately study future traffic
growth specifically on Route 9. We disagree. In estimating future traf-
5
Appellants assert that the Agencies’ use of 2,400 vehicles per day as
a capacity limit is misleading because that figure applies to mountainous
terrain and only two of the relevant segments of Route 9 are mountain-
ous. However, even under the capacity limits for rolling or level terrain
at LOS "C"—5,200 and 7,900 vehicles per day, respectively—current
traffic volume still exceeds capacity on most segments, and projected
future volume exceeds capacity by a wide margin on all segments.
Appellants also contend that the proposed two-lane alternatives would
provide more passing opportunities than the Table 8-10 road and there-
fore that these alternatives would meet capacity needs. We reject this
argument. The 2,400 vehicle per day limit for the Table 8-10 road
assumes that vehicles can pass on 40 percent of the highway, while the
7,900 vehicle per day limit for level terrain assumes that vehicles can
pass on 80 percent of the road. Thus, even assuming arguendo that the
proposed two-lane alternatives could provide twice the passing opportu-
nities of the Table 8-10 road, the capacity of the upgraded two-lane high-
way would still be insufficient to handle present and projected future
traffic volume at an acceptable LOS.
Further, Appellants claim that the proposed two-lane upgrades would
also resolve existing safety problems on Route 9. Because we conclude
the Agencies reasonably determined that the proposed two-lane upgrades
would not meet the capacity needs of the project, we do not consider
whether those improvements would adequately address safety issues.
ROUTE 9 OPPOSITION v. MINETA 9
fic volume, the Agencies obtained actual traffic data from Route 9
and then applied a growth factor derived from a statistical analysis of
historical travel data for similar highways in Jefferson County. The
growth factor used by the Agencies represents overall traffic growth
of 57.36 percent between 1999 and 2025, or a compounded annual
increase of approximately 1.76 percent. Actual measurements of traf-
fic growth on Route 9 between 1975 and 1999 reflect an annual
growth rate of approximately 2.2 percent, suggesting that the Agen-
cies’ estimate of future traffic growth was reasonable. In addition, the
West Virginia University study from which the Agencies’ growth fac-
tor was derived indicates that although the methodology used by West
Virginia for projecting traffic volume on rural highways has certain
shortcomings, it is at least as reliable as the methods used by other
states for predicting traffic growth on similar roads. For these reasons,
we find that the Agencies’ analysis of future traffic volume was reason-
able.6 See Johnson, 165 F.3d at 289 ("Agencies are entitled to select
their own methodology as long as that methodology is reasonable.
The reviewing court must give deference to an agency’s decision.").
III.
In sum, we conclude that the Agencies’ decision to exclude the
proposed two-lane alternatives from more detailed consideration does
not reflect "a clear error of judgment." Id. at 287 (internal quotation
marks omitted). Because the Agencies reasonably rejected these alter-
natives as not meeting project needs, their analysis was sufficient
under NEPA and Section 4(f). We therefore affirm the judgment of
the district court.
AFFIRMED
6
Appellants also challenge a district court order striking a declaration
by one of their experts because it was not part of the administrative
record and was not necessary to assist the court in understanding the
record. We conclude that the district court did not abuse its discretion.
See Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.
1998).