Associations Working for Aurora's Residential Environment v. Colorado Department of Transportation

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 27 1998
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ASSOCIATIONS WORKING FOR
AURORA’S RESIDENTIAL
ENVIRONMENT, a non-profit
corporation,

Plaintiff - Appellant,
v.

COLORADO DEPARTMENT OF
TRANSPORTATION; LAURENCE
WARNER, Transportation Director,
Region 6, Colorado Department of
No. 97-1418
Transportation; FEDERAL
HIGHWAY ADMINISTRATION;
JAMES DAVES, Acting Division
Administrator of the Federal Highway
Administration,

Defendants - Appellees.

CITY OF AURORA,

Amicus Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-N-1161)

Robert S. Ukeiley, Boulder, Colorado, for the Plaintiff - Appellant.
Jeffrey C. Dobbins, Department of Justice, Washington, D.C. (Robert L.
Klarquist, Department of Justice, Washington, D.C.; Lois J. Schiffer, Assistant
Attorney General; Henry L. Solano, United States Attorney; and Robert D. Clark,
Assistant United States Attorney, Denver, Colorado, with him on the brief) for the
Defendants - Appellees Federal Highway Administration and James Daves.

Gregory A. Jamieson, Assistant Attorney General, and Harry S. Morrow, First
Assistant Attorney General (Gale A. Norton, Attorney General, with them on the
brief), Denver, Colorado, for the Defendants - Appellees Colorado Department of
Transportation and Laurence Warner.

Charles H. Richardson and Teresa Kinney, Office of the City Attorney, Aurora,
Colorado, filed an amicus curiae brief for the City of Aurora.

Before HENRY , HOLLOWAY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Associations Working For Aurora’s Residential Environment (“AWARE”),

a non-profit corporation comprised of individuals and businesses who reside in or

around the Parker Road/I-225 interchange in Aurora, Colorado, appeals an order

refusing to enjoin defendants from beginning construction at that interchange.

Plaintiff asserts three claims on appeal: (1) defendants failed to comply with the

National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370d, and its

implementing regulations by allowing a private contractor with a conflict of

interest to assist in the preparation of the Environmental Impact Statement

(“EIS”) for the proposed project; (2) defendants failed to consider structural mass

transit as a reasonable alternative to construction in violation of 42 U.S.C. §

-2-
4332(C)(iii) and 40 C.F.R. § 1502.14(c); and (3) defendants failed to consider

“feasible and prudent” alternatives to developing publicly owned land in violation

of the Transportation Act, 49 U.S.C. § 303(c)(1). We conclude that, to the extent

that the contractor operated under a conflict of interest, the Colorado Department

of Transportation (“CDOT”) exercised sufficient supervision to preserve the

“objectivity and integrity of the NEPA process.” Forty Most Asked Questions

Concerning CEQ’s National Environmental Policy Act Regulations (“Forty

Questions”), 46 Fed. Reg. 18,026, 18,031 (Council on Envtl. Quality 1981). We

also conclude that defendants adequately considered alternatives to construction

and to the use of publicly owned lands. Accordingly, we affirm.

I

The history of the construction project at issue begins in 1985, when CDOT

entered into a contract with CH2M Hill (the “Contractor”), a private contractor, to

identify “the short and long-term needs” for a one-mile segment of Parker Road

where it meets with I-225, a major intersection in the Denver metropolitan area.

Appellees’ Supp. App., Ex. A, at 50,003. The contract provided that, after those

needs had been identified, the Contractor was to provide “preliminary and final

design plans for the selected short-term improvement concept.” Id. In August

1987, the Contractor completed a feasibility study, which concluded that there

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were “severe congestion problems” in the target area and proposed both long- and

short-term solutions to those problems. Appellant’s App. at 37.

In April 1989, CDOT and the Contractor entered into a supplemental

contract that authorized the Contractor to assist CDOT in refining the proposed

solution and preparing an environmental assessment for the project, and to

complete the preliminary engineering for the recommended improvements. In

October 1991, CDOT and the Contractor entered into another supplemental

contract authorizing the Contractor to perform preliminary and final design work

for the Parker Road project. See Appellees’ Supp. App., Ex. A, at 50,129,

50,159-61. At the time of the execution of the 1991 contract, the parties

anticipated that construction would begin in late 1993 or early 1994.

In 1992, the proposed project became the subject of controversy. As a

result, the I-225/Parker Road Interchange Citizens’ Advisory Committee (“CAC”)

was established “to develop a new or modified version of corridor/interchange

improvements.” Appellees’ Supp. App. at A294. The membership of the CAC

comprised 23 individuals, including one member of AWARE. Although not

members of the CAC, representatives from CDOT and the Contractor were part of

a “Project Planning Team responsible for guiding and assisting the CAC.” Id.

The CAC evaluated fourteen alternatives for the Parker Road corridor and

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ultimately proposed a majority and minority solution, both of which involved

construction of highway improvements in the target area.

As a result of the CAC proposal, CDOT decided to develop an

environmental impact statement for the proposed project. 1
In January 1993,

CDOT conducted a scoping meeting to discuss the preliminary design alternatives

to be included in the EIS. Representatives from CDOT, the Contractor, the

United States Army Corps of Engineers, the Colorado Division of Parks and

Outdoor Recreation, the City of Aurora, the Regional Transportation District

(“RTD”), and the Federal Highway Administration (“FHWA”) attended that

meeting.

On January 31, 1994, CDOT and the Contractor entered into another

supplemental contract authorizing the Contractor to assist in the development of

the EIS. A key dispute in this litigation is whether that supplemental contract

simply added to the scope of the existing duties of the Contractor, which included

final design work for the construction of improvements at Parker Road, or

whether the 1994 agreement amended the scope of work to eliminate final design

work pending the outcome of the EIS.

1
A comprehensive, site-specific environmental impact statement is required
for “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C).

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 In March 1996, defendants issued a draft environmental impact statement

and notice was published in the Federal Register. See 61 Fed. Reg. 10,754,

10,754 (1996). After a public hearing to receive comment on the draft EIS, the

FHWA and CDOT issued the final environmental impact statement. Another

hearing was held to receive public comment and explain the preferred alternative.

In December 1996, defendants issued the Record of Decision (“ROD”), which

approved the preferred construction alternative in the final EIS.

In January 1997, CDOT and the Contractor executed a supplemental

contract authorizing the Contractor to assist in the preliminary and final design of

the preferred alternative. Shortly after CDOT began soliciting bids from

construction contractors, AWARE brought the present action seeking a

preliminary injunction. That motion was consolidated with a trial on the merits

before the district court. The district court concluded that plaintiff was not

entitled to an injunction and entered final judgment on the merits in favor of

defendants. It is from that order that plaintiff now appeals. 2

2
Although the parties have each submitted numerous materials in separate
appendices, this court has not been provided with the entire administrative record.
We therefore defer to findings of fact by the district court where the record on
appeal is insufficient for us to determine whether those findings are clearly
erroneous. See United States v. Vasquez , 985 F.2d 491, 494-95 (10th Cir. 1993);
cf. McEwan v. City of Norman , 926 F.2d 1539, 1550 (10th Cir. 1991)
(“Generally, a party may not assign error on appeal unless he . . . designates that
part of the district court proceeding relevant thereto for appellate review.”).

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 II

In the National Environmental Policy Act, Congress recognizes that each

generation is a “trustee of the environment for succeeding generations.” 42

U.S.C. § 4331(b)(1). Accordingly, NEPA mandates that federal agencies comply

with certain procedures before taking actions that will affect the quality of the

environment to ensure that appropriate consideration is given to the

environmental impacts of those actions. See, e.g. , 42 U.S.C. § 4332(2)(C) (listing

the requirements for an environmental impact statement). “It is ‘well settled that

NEPA itself does not mandate particular results, but simply prescribes the

necessary process.’” Holy Cross Wilderness Fund v. Madigan , 960 F.2d 1515,

1522 (10th Cir. 1992) (quoting Robertson v. Methow Valley Citizens Council ,

490 U.S. 332, 350 (1989)). Thus, in reviewing agency decisions, it is not for the

court to select what it believes to be the optimum alternative, see Stryker’s Bay

Neighborhood Council, Inc. v. Karlen , 444 U.S. 223, 227-28 (1980) (per curiam);

rather, our review is limited to whether the agency complied with the “‘action-

forcing’ procedures” required by NEPA to guarantee that agencies take a “hard

look” at the environmental consequences of proposed actions. Robertson , 490

U.S. at 350 (quoting Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21 (1976)).

A. Conflict of Interest

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 When a federal agency proposes to undertake a “major action[]

significantly affecting the quality of the human environment,” NEPA requires that

it prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C). Under

implementing regulations promulgated by the Council on Environmental Quality

(“CEQ”), an agency may either prepare the EIS itself or it may select a contractor

to do so. See 40 C.F.R. § 1506.5(c). If the agency chooses to have a contractor

prepare the EIS, that contractor must “execute a disclosure statement . . .

specifying that [it has] no financial or other interest in the outcome of the

project.” Id. A contractor with a known conflict “should be disqualified from

preparing the EIS.” Forty Questions, 46 Fed. Reg. at 18,031.

Plaintiff contends that we must invalidate the EIS for the Parker Road

project because the Contractor had an incentive to promote a build alternative

over a non-build alternative at the time it aided in the preparation of the EIS.

Specifically, it argues that the Contractor either had an enforceable contract for

future work on the project, or that CDOT’s unvarying practice of awarding final

design contracts to the company that prepares the EIS amounts to a conflict of

interest here because the Contractor won the contract in a non-competitive bid

process. 3 According to plaintiff, this alleged conflict is aggravated by the

3
CDOT argues that plaintiff is precluded from raising this issue on appeal
because it did not assert this argument before the district court. See Jenkins v.
(continued...)

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Contractor’s failure to execute the required conflict of interest disclosure

statement, see 40 C.F.R. § 1506.5(c), until after the final EIS had been issued.

Whether the Contractor had a conflict of interest or not rests on the

definition of “financial or other interest” under § 1506.5(c). That phrase,

however, has eluded precise definition. In 1981, the CEQ interpreted the conflict

provision “broadly to cover any known benefits other than general enhancement

of professional reputation.” Forty Questions, 46 Fed. Reg. at 18,031. 4
Even then,

however, the CEQ conceded that a contractor may “later bid in competition with

others for future work on the project” if that contractor “has no promise of future

work or other interest in the outcome of the proposal.” Id. After discovering that

many agencies had “been interpreting the conflicts provision in an overly

burdensome manner,” the CEQ instructed that, absent an agreement to perform

construction on the proposed project or actual ownership of the construction site,

3
(...continued)
Wood , 81 F.3d 988, 996 (10th Cir. 1996). We disagree. Plaintiff has consistently
argued that CDOT’s practice of awarding final design contracts to the contractor
that prepares the EIS amounts to a conflict of interest for that contractor.
Plaintiff’s suggestion on appeal that we adopt such an interpretation of §
1506.5(c) is an extension of its arguments before the district court.

Although we recognize that we may rely on the interpretive guidance
4

offered by the CEQ, the Forty Questions document is not owed the substantial
deference afforded to administrative rules that are the product of notice and
comment procedures. See Northern Crawfish Frog (Rana Areolata Circulosa) v.
Federal Highway Admin. , 858 F. Supp. 1503, 1527 n.12 (D. Kan. 1994)
(gathering cases).

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it is “doubtful that an inherent conflict of interest will exist” unless “the contract

for EIS preparation . . . contain[s] . . . incentive clauses or guarantees of any

future work on the project.” Guidance Regarding NEPA Regulations, 48 Fed.

Reg. 34,263, 34,266 (Council on Envtl. Quality 1983).

The FHWA has also struggled to define what constitutes a conflict of

interest. In a 1988 memorandum, the FHWA construed “financial or other

interest in the outcome of the project” to exclude a contract for further project

development work. Appellees’ Supp. App. at A316. In 1995, the FHWA

abandoned that interpretation and concluded that a contract for future work would

constitute a conflict under the regulations. See id. at A317. In 1996, however,

the FHWA re-adopted the 1988 guidance after receiving numerous “inquiries and

comments reflecting concerns about [the 1995] guidance.” Id. at A320.

Despite these inconsistent interpretations, we agree with the district court

that a contractor with “an agreement, enforceable promise or guarantee of future

work” has a conflict of interest under § 1506.5(c). Appellant’s App. at 65. In

this case, however, the contract between CDOT and the Contractor did not create

such an arrangement. Notwithstanding plaintiff’s argument to the contrary, the

1994 supplemental contract between CDOT and the Contractor did supplant the

scope of work provision under the 1991 contract, thereby eliminating any

contractual guarantee the Contractor had to perform final design work. Each of

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the contracts in the record contain a scope of work section that describes the

Contractor’s obligations with respect to the design work for the project. In the

1991, 1994, and 1997 contracts, that scope of work section took the form of a

checklist listing all of the required tasks involved in preliminary and final design.

Next to each task on these checklists, there is an X indicating that it is the

Contractor’s obligation, an X indicating that CDOT has retained that obligation,

an X in each column indicating a shared duty, or no mark at all. Absence of a

mark indicates that the task responsibility is not assigned by that contract. As the

parties entered supplemental contracts, each new scope of work section redefined

the parties’ obligations under the agreement. See Appellant’s App. at 107 (“[T]he

assignments associated with the work activities have changed to achieve Aurora’s

Citizen Advisory Committee objectives.”). Although the Contractor was clearly

obligated to complete both preliminary and final design work under the 1991

contract, none of the tasks related to final design are marked on the checklist in

the 1994 contract. Thus, in 1994 the Contractor’s duties did not include final

design. We therefore agree with the district court that, at the time its services

were employed to develop the EIS, the Contractor had no contractual guarantee of

future work on the project. 5

Plaintiff argues that it was improper for the district court to rely on the
5

testimony of representatives of CDOT and the Contractor about their
(continued...)

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 Plaintiff also argues that, even absent an enforceable promise, the

Contractor operated under a conflict of interest because CDOT consistently

awards final design contracts to the firm that prepares the EIS and the Contractor

here received the final design contract through a non-competitive bid process. 6

The district court rejected plaintiff’s argument on two alternate grounds: (1) it

interpreted § 1506.5(c) to exclude a mere expectation of future work from the

definition of “financial or other interest,” see Appellant’s App. at 65; and (2) it

concluded that, to the extent that CDOT’s practice could give rise to a conflict,

defendants oversaw the Contractor’s work to a sufficient degree that such conflict

would not require invalidation of the EIS in this case, see id. at 70-72. Accepting

5
(...continued)
understanding of the contract’s meaning because such testimony is not part of the
administrative record and, alternatively, because Colorado applies the parol
evidence rule to contracts. We need not reach these issues because our review of
the “contract documents,” see Appellant’s Br. at 19, reveals that the 1994 scope
of work provision clearly superseded any obligations the Contractor had under
previous agreements. See Appellant’s App. at 107 (“The original supplemental
work activities assignment tasks are attached for more clarification. . . . Enclosed
is a fully executed copy of our revised scope of work with CH2M Hill for this
project.”) (emphasis added). Moreover, the materials in the administrative record
reinforce that interpretation. See id. at 198 (Contractor Disclosure Statement)
(“No final design tasks were included in the revised scope and there was no
promise on the part of CDOT for future design work.”). Thus, any error in
admitting such testimony would be harmless because it merely reiterates what the
documents state clearly on their face.

Plaintiff goes so far as to argue that “CH2M Hill must have known that if
6

the build alternative was chosen as a result of the EIS they were preparing, they
would get to perform the final design work or could sue under a theory of
detrimental reliance or promissory estoppel.” Appellant’s Br. at 20.

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for the sake of argument that the Contractor’s heightened expectation that it

would receive the contract for future design work amounted to a conflict, we

nevertheless agree with the district court’s conclusion that the degree of oversight

exercised by defendants, particularly CDOT, is sufficient to cure any defect

arising from that expectation.

The procedural requirements of NEPA and its implementing regulations are

designed to force agencies proposing to take any action that will affect the natural

environment to take a “hard look” at the environmental consequences. See

Robertson , 490 U.S. at 350. When reviewing an EIS prepared by a contractor

who has allegedly breached a requirement imposed by 40 C.F.R. § 1506.5(c), the

ultimate question for the court is thus whether the alleged breach compromised

the “‘objectivity and integrity of the NEPA process.’” Citizens Against

Burlington, Inc. v. Busey , 938 F.2d 190, 202 (D.C. Cir. 1991) (quoting Forty

Questions, 46 Fed. Reg. at 18,031); see Holy Cross , 960 F.2d at 1529 (concluding

that, although procedure followed deviated from “typical order of events” in a

NEPA case, circumstances led to conclusion that agency had taken the requisite

“hard look” at environmental factors); Northern Crawfish Frog (Rana Areolata

Circulosa) v. Federal Highway Admin. , 858 F. Supp. 1503, 1529 (D. Kan. 1994);

Sierra Club v. Marsh , 714 F. Supp. 539, 583 (D. Me. 1989); see also Brandon v.

Pierce , 725 F.2d 555, 563-64 (10th Cir. 1984) (holding prior to passage of CEQ

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regulations that contractor’s apparent conflict did not mandate invalidation of

environmental assessment so long as the agency does not substitute the

contractor’s judgment for its own), overruled on other grounds by Village of Los

Ranchos de Albuquerque v. Marsh , 956 F.2d 970, 973 (10th Cir. 1992) (en banc);

40 C.F.R. § 1500.3 (“[I]t is the [CEQ]’s intention that any trivial violation of

these regulations not give rise to any independent cause of action.”). Therefore,

when an EIS is challenged on the basis of an alleged conflict of interest that is

known to the agency, we agree with the district court “that the Court can evaluate

the oversight that the agency provided to the environmental impact statement

process as a factual matter and make a determination upholding the environmental

impact statement.” Appellant’s App. at 70. 7

The record on appeal indicates that CDOT exercised substantial supervision

over the preparation of the EIS. Even after CDOT hired the Contractor, CDOT

7
We disagree with plaintiff that the rule adopted by the district court fails
to promote the conflict of interest provision’s goal of preserving public faith in
the integrity of the NEPA process. See Appellant’s Reply Br. at 10 (citing
Guidance Regarding NEPA Regulations, 48 Fed. Reg. at 34,266). When an
agency is integrally involved in the preparation of an EIS, that involvement
diminishes the threat posed by any potential conflicts of interest because the
agency then has the opportunity to direct the analysis and supplement areas it
deems deficient. When agencies take such an active role, public perception
concerning the integrity of the process is necessarily strengthened, even when the
Contractor performs future work on the project. Indeed, recent legislation
indicates that Congress shares this view. See Transportation Equity Act for the
21st Century, Pub. L. No. 105-178, § 1205, 112 Stat. 107, 184-85 (1998).

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continued to perform all management activities and only used the Contractor’s

personnel for technical expertise or to supplement staff where there was

insufficient manpower. Consequently, CDOT managers made all major decisions

and the Contractor’s representatives reported to those managers, sometimes on a

daily basis, to receive direction. In addition, CDOT prepared, without the

Contractor’s assistance, those sections of the EIS addressing noise impacts, air

quality, wetlands, threatened and endangered species, paleontological resources,

hazardous waste materials, vegetation, botanical and wildlife habitat, and historic

resources. Finally, CDOT independently and extensively reviewed all of the

Contractor’s analyses, commented on the Contractor’s field data and written

product, noted deficiencies in the data and analysis, gave direction to the

Contractor’s work, and frequently required the Contractor to gather more facts or

perform supplemental analysis on aspects of the project. To the extent that we are

able to review the district court’s findings in the absence of the entire

administrative record, we are convinced that the degree of supervision exercised

by CDOT protected the integrity and objectivity of the EIS in this case. 8

8
Plaintiff continues to rely on the Contractor’s belated filing of the required
disclosure statement as grounds for invalidating the EIS. Although we agree with
the district court that it was a violation of the NEPA regulations to file the
disclosure statement after the final EIS had been issued, see Forty Questions, 46
Fed. Reg. at 18,031 (noting that the purpose of the conflict provision is to screen
out contractors with conflicts of interest prior to beginning the EIS), we conclude
(continued...)

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 B. Reasonable Alternatives

At “the heart of the environmental impact statement” is the obligation of

the lead agency to review “all reasonable alternatives” to the proposed action. 40

C.F.R. § 1502.14. To fulfill that obligation, “federal agencies must ‘[r]igorously

explore and objectively evaluate all reasonable alternatives, and for alternatives

which were eliminated from detailed study, briefly discuss the reasons for their

having been eliminated.’” All Indian Pueblo Council v. United States , 975 F.2d

1437, 1444 (10th Cir. 1992) (quoting 40 C.F.R. § 1502.14(a)). The agency is not

required to evaluate “the environmental consequences of alternatives it has in

good faith rejected as too remote, speculative, or . . . impractical or ineffective.”

Id. (quotation omitted). We review an EIS under a “rule of reason” standard to

determine “‘whether the statement is a good faith, objective, and reasonable

presentation of the subject areas mandated by NEPA’” and whether the discussion

of alternatives in the EIS is sufficient to permit a reasoned choice among the

options. Id. (quoting Manygoats v. Kleppe , 558 F.2d 556, 560 (10th Cir. 1977)).

8
(...continued)
that the late filing does not require reversal. The record demonstrates that the
disclosure was filed prior to the Record of Decision, that it was reviewed as soon
as it came in, and that it was found to be accurate and satisfactory. Given the
extensive supervision by CDOT and given the agency’s evaluation of the
disclosure upon its filing, we conclude it is not appropriate to invalidate the EIS
on the basis of the late disclosure. See 40 C.F.R. § 1500.3; cf. Busey , 938 F.2d at
202 (remanding to agency for execution of an appropriate disclosure statement
and, if conflict found, for agency to determine appropriate measures to be taken).

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We are not to substitute our judgment for that of the agency’s; we may only

determine whether the necessary procedures have been followed. See id. at 1445.

Plaintiff asserts that the EIS is fatally defective because it fails to consider

mass transit independently as a reasonable alternative to the construction proposal

selected by defendants. 9
We disagree. Although definition of the term reasonable

is not self-defining, see Busey , 938 F.2d at 196, it is clear an agency need not

independently evaluate alternatives it determines in good faith to be ineffective as

a means to achieving the desired ends, see All Indian Pueblo Council , 975 F.2d at

1444; North Buckhead Civic Ass’n v. Skinner , 903 F.2d 1533, 1543 (11th Cir.

1990) (holding mass transit alternative properly eliminated because it did not

resolve the congestion problem targeted by the agencies involved). Defendants’

goal for the instant project is to relieve “[e]xtreme congestion . . . in the portion

of Parker Road within the project area.” Appellees’ Supp. App., Ex. B, vol. 1, at

1-3. Having reviewed both the EIS and the ROD, as well as the portions of the

9
Plaintiff argues that defendants admit that mass transit is a reasonable
alternative in the final EIS. See Appellant’s Br. at 23. This argument is without
merit. Appendix A of the EIS, to which plaintiff points for support, identifies
“feasible” congestion management strategies, see Appellees’ Supp. App., Ex. B.,
vol. 2, at A-1 to A-2; it does not state that any such strategies would be a
reasonable solution to the targeted problem—i.e., extreme traffic congestion on
Parker Road at the I-225 interchange. See id. , vol. 1, at 1-3. Moreover,
defendants have consistently maintained the position that the EIS did not consider
mass transit as an independent alternative because it was not a reasonable solution
to the stated problem.

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administrative record submitted on appeal, we conclude defendants reasonably

rejected the mass transit alternative on the basis that it would not ameliorate the

congestion problem in the project area. See, e.g. , id. at E-2 (“Heavy congestion

in the project area will hamper use of alternative modes of travel as well as motor

vehicles, making this interchange less viable for transit in the future if

improvements are not made.”); id. at 1-18 (noting that a Light Rail Transit

alternative “would not negate the need for this proposed project”); id. , vol. 2, at

B-2 (noting that additional bus service to the surrounding neighborhoods “would

not address the significant portion of vehicles” traveling through the project

area); id. , Ex. C., at A-8, A-12 to A-13 (same). We are therefore forced to agree

with the district court that defendants “satisfied the hard look, reasonableness

standard of NEPA.” Appellant’s App. at 56. 10

10
We do not mean to suggest that plaintiff could not have supported a
NEPA claim by showing that defendants’ decision to reject mass transit was ill-
informed or contrary to the evidence in the administrative record. See North
Buckhead , 903 F.2d at 1543 (upholding EIS in which agency failed to address no
build/heavy rail alternative primarily because scientific data in the administrative
record demonstrated that existing streets would not be able to accommodate future
traffic volumes). Because plaintiff has failed to submit the entirety of the
administrative record for our review, however, we are simply unable to review its
claim that the administrative record is insufficient to support the agency’s
conclusion on that point.

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 III

Plaintiff’s final argument on appeal is that defendants failed to comply with

§ 4(f) of the Transportation Act by failing to consider “prudent and feasible”

alternatives to the use of 29 acres of publicly owned parkland. 49 U.S.C. §

303(c)(1). In evaluating alleged violations of the Transportation Act, we engage

in a three-tiered inquiry established by the Supreme Court in Citizens to Preserve

Overton Park, Inc. v. Volpe , 401 U.S. 402 (1971). First, we determine “whether

the Secretary acted within the scope of his authority.” Id. at 415. In that inquiry,

“the reviewing court must be able to find that the Secretary could have reasonably

believed that in this case there are no feasible alternatives or that alternatives do

involve unique problems.” Id. at 416. Next, we must determine that the

Secretary’s decision to authorize the project was not “‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5

U.S.C. § 706(2)(A)). To make this determination, we “must consider whether the

decision was based on a consideration of the relevant factors and whether there

has been a clear error of judgment.” Id. The court, however, “is not empowered

to substitute its judgment for that of the agency.” Id. Finally, we must determine

“whether the Secretary’s action followed the necessary procedural requirements.”

Id. at 417. According to plaintiff, the district court erred because structural mass

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transit is both feasible and prudent, and defendants improperly refused to consider

whether mass transit would obviate the need to use publicly owned lands.

Because we have already concluded that defendants did consider mass

transit during the preparation of the EIS, the only claim left for our review is

whether mass transit constitutes a “prudent and feasible” alternative to

construction. Although there appears to be no dispute that mass transit is, at a

minimum, feasible, we nevertheless conclude that defendants could properly

dismiss that alternative as imprudent. Whether an alternative is “prudent” for

purposes of the Transportation Act “involves a common sense balancing of

practical concerns, but § 4(f) requires the problems encountered by proposed

alternatives to be ‘truly unusual’ or ‘reach[] extraordinary magnitudes’ if parkland

is taken.” Committee to Preserve Boomer Lake Park v. Department of Transp. ,4

F.3d 1543, 1550 (10th Cir. 1993) (quoting Overton Park , 401 U.S. at 413).

Nevertheless, an alternative that does not solve existing or future traffic

problems, such as the congestion problem at issue in this case, may properly be

rejected as imprudent. See id. (citing Lake Hefner Open Space Alliance v. Dole ,

871 F.2d 943, 947 (10th Cir. 1989)). Because we have already concluded that

defendants reasonably rejected the mass transit alternative on the ground that it

fails to ameliorate the congestion problem in the project area, we conclude that

this alternative is imprudent for purposes of the Transportation Act. We have

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closely examined the final EIS, the ROD, and the portions of the administrative

record submitted for our review, and we conclude that the decision to construct

improvements in the project area “was based on a consideration of the relevant

factors” and followed “necessary procedural requirements.” Overton Park , 401

U.S. at 416-17.

IV

We are not unsympathetic to plaintiff’s position. Nevertheless, controlling

precedent dictates that we not evaluate the wisdom of the decision to construct

improvements at Parker Road. See Overton Park , 401 U.S. at 416; All Indian

Pueblo Council , 975 F.2d at 1445. To the extent we are able to review the

decision of the district court without the entirety of the administrative record, we

must conclude that defendants adequately complied with the requirements of

NEPA, its implementing regulations, and the Transportation Act. Accordingly,

the judgment is AFFIRMED.

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