Davis v. Mineta

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 20 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

NICOLE DAVIS; BRAD DAVIS;
KENT PLAYER; MATT ARNETT;
RICK TAYLOR; JAN SHARP;
DENNIS DALLEY,

Plaintiffs-Appellants,

v. No. 01-4129

NORMAN Y. MINETA, Secretary,
Department of Transportation; MARY
E. PETERS, Administrator, Federal
Highway Administration; DAVID
GIBBS, Division Administrator,
Federal Highway Administration, Utah
Division; THOMAS R. WARNE,
Executive Director, Utah
Department of Transportation,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 00-CV-993-C)

Jeffrey W. Appel (James L. Warlaumont and Jennifer L. Crane with him on
the brief), Salt Lake City, Utah, for Plaintiffs-Appellants.
Jeffrey C. Dobbins, Attorney, U.S. Department of Justice Environment & Natural
Resources Division, Washington, D.C. (Clay Samford and Andrew Mergen,
Attorneys, U.S. Department of Justice Environment & Natural Resources
Division, Washington, D.C., and Helen Mountford, Federal Highway
Administration, Office of the Chief Counsel, San Francisco, California, of
Counsel, with him on the brief), for Defendants-Appellees Norman Y. Mineta,
Secretary, Department of Transportation; Mary E. Peters, Administrator, Federal
Highway Administration; and David Gibbs, Division Administrator, Federal
Highway Administration, Utah Division.

Thomas A. Mitchell, Assistant Attorney General, Steven F. Alder, Assistant
Attorney General, Mark L. Shurtleff, Attorney General, Salt Lake City, Utah,
for Defendant-Appellee Thomas R. Warne.

Before SEYMOUR , EBEL , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.

Plaintiffs seek to enjoin defendants from proceeding with the construction

of a highway project (the “Project”) located within the cities of Draper, Sandy and

South Jordan in Salt Lake County, Utah. Plaintiffs argue that defendants violated

the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C) and

§ 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c) when they

prepared an inadequate Environmental Assessment (“EA”) and then proceeded to

issue a Finding of No Significant Impact (“FONSI”) rather than an Environmental

Impact Statement (“EIS”). The Project under review includes several

components: the creation of a new freeway interchange at Interstate 15 and 11400

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South; the construction of a new bridge over the Jordan River at 11400 South; and

the widening and extension of existing 11400 South. 1
The proposed expansion

and widening of 11400 South will create a new segment of five-lane highway

where no road currently exists. A portion of the expanded 11400 South will

affect publicly-owned parkland and will require the displacement or demolition of

several historic structures.

As currently envisioned, the Project will proceed in two phases. Phase I

includes the construction of the 11400 South interchange at I-15 and I-15

improvements. Phase II involves the expansion and extension of 11400 South,

including the construction of a new bridge across the Jordan River. While

completion of Phase I appears to involve a time horizon of approximately three

to four years, there is no definitive timetable established for the completion of

Phase II.

The proponents of the Project are the Utah Department of Transportation

(“UDOT”), and Draper, Sandy and South Jordan. Due to its potential effects on

the environment, parkland and historic structures, the Project implicates both the

NEPA, and § 4(f). The Federal Highway Administration (“FHWA”) was the

1
The reader will find attached to this opinion as Exhibit 1 a map of
the area affected by the Project. This map has been prepared by this court from
information in the record using a computer bitmap program. It is not drawn to
scale, and is intended solely as a visual aid.

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federal agency responsible for approving the Project and for preparing the

environmental analysis required by NEPA. However, the EA here was initially

prepared by Horrocks Engineers under contract with Sandy City and then

reviewed and adopted by the FHWA. The Secretary of Transportation was

responsible for approving the Project based on the § 4(f) analysis. 2

Here the FHWA’s combined EA and § 4(f) analysis (EA/4(f)) led to a

FONSI. Thus, the FHWA concluded that no EIS was required.

We have identified the following deficiencies with defendants’

methodology and conclusions in this case:

1. The EA/4(f)’s consideration of alternatives to the Project is inadequate.

Serious consideration was given only to the preferred alternative (i.e., the Project

as proposed) and a no-build alternative.

2
Plaintiffs sought a preliminary injunction, which the district court
denied. Davis v. Slater, 148 F. Supp. 2d 1195 (D. Utah 2001). This court was
initially asked to provide plaintiff with a stay pending appeal. We entered a
temporary stay, which remains in effect, and we consolidated the request for stay
with the merits of the appeal. On September 11, 2001, we conducted oral
argument on the merits of the appeal, in which all parties participated. We now
reverse the district court’s order denying a preliminary injunction and we remand
with instruction to the district court to enter a preliminary injunction upon a
proper bond and for further proceedings consistent with this opinion. Where
NEPA is implicated by a highway project in which state agencies are
participating, the state agencies are also proper parties and we have the authority
to instruct the district court to enjoin the state agencies from further construction
on the highway project. Southwest Williamson County Community Ass’n v. Slater,
243 F.3d 270, 277 (6th Cir. 2001).

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 2. The EA/4(f) fails to consider adequately the Project’s impacts including

cumulative impacts.

3. The EA/4(f) fails to address adequately issues relating to phasing of the

Project, particularly given the many-year time frame between the beginning and

prospective completion dates for the Project.

4. The § 4(f) analysis failed to satisfy the high burden imposed on projects

that make use of a public park and/or historic sites.

5. The EA/4(f) is fatally flawed by its use of vague, unsupported

conclusions and inadequate, incomplete analysis.

I. Standard of review

This court reviews a district court’s grant or denial of a preliminary

injunction for an abuse of discretion. Prairie Band of Potawatomi Indians v.

Pierce , 253 F.3d 1234, 1243 (10th Cir. 2001); Kikumura v. Hurley , 242 F.3d 950,

955 (10th Cir. 2001). A district court abuses its discretion where it commits

a legal error or relies on clearly erroneous factual findings, Prairie Band ,

253 F.3d at 1242, or where there is no rational basis in the evidence for its ruling.

Utah Licensed Beverage Ass’n v. Leavitt , 256 F.3d 1061, 1065 (10th Cir. 2001).

We examine the district court’s underlying factual findings for clear error, and its

legal determinations de novo . Water Keeper Alliance v. United States Dep’t of

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Def. , 271 F.3d 21, 30 (1st Cir. 2001); see also United States v. Power Eng’g Co. ,

191 F.3d 1224, 1230 (10th Cir. 1999).

In order to receive a preliminary injunction, the plaintiff must establish the

following factors: “(1) a substantial likelihood of prevailing on the merits;

(2) irreparable harm unless the injunction is issued; (3) [that] the threatened

injury outweighs the harm that the preliminary injunction may cause the opposing

party; and (4) [that] the injunction, if issued, will not adversely affect the public

interest.” Fed. Lands Legal Consortium ex rel. Robart Estate v. United States,

195 F.3d 1190, 1194 (10th Cir. 1999). If the plaintiff can establish that the latter

three requirements tip strongly in his favor, the test is modified, and the plaintiff

may meet the requirement for showing success on the merits by showing “that

questions going to the merits are so serious, substantial, difficult, and doubtful as

to make the issue ripe for litigation and deserving of more deliberate

investigation.” Id. at 1195.

Our analysis of likelihood of success on the merits necessarily implicates

defendants’ compliance with NEPA and § 4(f). At this point, a second layer of

review comes into play, because defendants’ agency actions are themselves

examined under a highly deferential, “arbitrary and capricious” standard. This

standard is rooted in the very nature of administrative review.

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 Judicial review of agency NEPA and § 4(f) decisions is made available

through the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. See

All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443 (10th Cir. 1992)

(NEPA); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

(1971) (§ 4(f)). The APA sets forth a number of standards to be employed by

courts reviewing administrative action. See 5 U.S.C. § 706(2). It has long been

settled that an agency’s decision to issue a FONSI is reviewed under the APA’s

deferential “arbitrary and capricious” standard. Id. § 706(2)(A); see, e.g., Utah

Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1213

(10th Cir. 2002); Comm. to Preserve Boomer Lake v. Dep’t of Transp., 4 F.3d

1543, 1555 (10th Cir. 1993). Although our standard of review of the § 4(f)

analysis is somewhat more complex in this case, it generally implicates the

arbitrary and capricious standard as well. Overton Park, 401 U.S. at 416.

Under NEPA regulations, an agency undertaking an action is required to

determine whether its proposal is one that normally requires or normally does not

require an EIS. 40 C.F.R. § 1501.4(a). If the answer to this question is not clear-

cut, the agency should prepare an EA. Id. § 1501.4(b). 3
If the agency determines,

3
An EA is a “concise public document” that “[b]riefly provide[s]
sufficient evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact.” 40 C.F.R.
§ 1508.9(a).

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based on the EA, that no EIS is needed because its action would not significantly

affect the environment, it may then prepare a FONSI. Id. §§ 1501.4(e), 1508.13.

Otherwise, it must prepare an EIS.

When we review an EA/FONSI to determine whether an EIS should have

been prepared, we must determine whether the agency acted arbitrarily and

capriciously in concluding that the proposed action “will not have a significant

effect on the human environment.” Thus, our review of an EA/FONSI has a

substantive component as well as a component of determining whether the agency

followed procedural prerequisites. If the plaintiffs can demonstrate substantively

that the FHWA’s conclusion of non-significant effect on the environment

represents a “clear error of judgment,” then that conclusion must be reversed.

Utah Shared Access Alliance, 288 F.3d at 1213.

As will be seen, here plaintiffs have demonstrated both procedural

deficiencies in the EA as well as demonstrating that the Project will have a

significant impact on the environment. Defendants propose to construct a five-

lane highway through a park where no road currently exists. This five-lane

highway will bisect the park, require the construction of a new bridge across the

Jordan River, require the demolition or removal of several historic structures, and

triple noise levels in portions of the park. By the year 2020, it is expected to

carry at least 34,000 cars per day.

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 Furthermore, the record establishes here that the defendants prejudged the

NEPA issues. This prejudgment diminishes the deference owed to the federal

defendants in our review of their decision to issue a FONSI rather than an EIS.

The addendum to the Engineering Services Agreement between Sandy City and

Horrocks Engineers (Horrocks), a consultant on the Project, required Horrocks to

distribute an EA no later than October 25, 1999, and further stipulated that a

FONSI be signed and distributed by FHWA by February 25, 2000. In other words,

Horrocks, the consultant employed to prepare the draft EA/4(f) for FHWA’s

review, was contractually obligated to prepare a FONSI and to have it approved,

signed and distributed by FHWA by a date certain. The decision whether to

prepare a FONSI should be based on the EA, of course, not the other way around.

See 40 C.F.R. § 1501.4(c), (e). Horrocks thus had an inherent, contractually-

created bias in favor of issuance of a FONSI rather than preparation of an EIS.

See, e.g., Metcalf v. Daley , 214 F.3d 1135, 1143-44 (9th Cir. 2000).

We discern two ways in which this prejudgment is attributed to the federal

decisionmakers in this case, who were not themselves parties to the Engineering

Services Agreement. First, the district court found, and the record establishes,

that “FHWA was involved throughout the NEPA process,” Davis, 148 F. Supp. 2d

at 1218, thus implicating FHWA directly in Horrocks’ “rush to judgment” on the

environmental issues. The minutes of a meeting held October 12, 1999, between

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representatives of Sandy City, Horrocks and the federal defendants, indicate that

“FHWA wants to advance the environmental documents and not issue a FONSI

until they are checked against the new WFRC model.” 4 Significantly, this

meeting occurred before the EA had been submitted to FHWA for formal review

and approval. Additionally, the record contains a memo to UDOT’s project

manager dated August 7, 2000, including FHWA’s recommendation to proceed

with public review of the revised EA/4(f) document, subject to certain revisions.

FHWA wanted the FONSI, which had already been prepared, removed “from the

document to be circulated for public review.” Id. This suggests that a FONSI

had already been prepared prior to an evidently pro forma public opportunity to

comment on the revised EA. FHWA’s own regulations suggest that a FONSI not

be prepared until FHWA has reviewed the public’s comments concerning the EA.

23 C.F.R. § 771.121(a).

Second, the record establishes that the FHWA failed to conduct a sufficient

independent review of Horrocks’ work to insulate itself from the biases toward a

FONSI reflected in Horrocks’ draft EA. The district court concluded that FHWA

made an independent investigation before issuing a FONSI. Its conclusion rests

4
The WFRC is the Wasatch Front Regional Council. WFRC prepared
a traffic model, which modeled weekday traffic volume under certain scenarios.
At the time of the October 12, 1999 meeting, the parties expected a revised
WFRC model in January 2000.

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on two facts: (1) that FHWA was involved throughout the NEPA process, and

(2) that it rejected the initial EA/4(f) document prepared by Horrocks. Davis,

148 F. Supp. 2d at 1218.

However, as will be seen, the EA/4(f) prepared in this case is insufficient

in many particulars. Although FHWA rejected an initial draft of the EA/4(f), this

did not result in the correction of the many problems plaintiffs raise with the

FONSI. This is true even though many of these problems were brought to

FHWA’s attention. Defendants employed a law firm to assist with draft responses

to comments received concerning the EA/4(f) documentation. The law firm wrote

a memorandum to defendants which is highly critical of the EA/4(f), echoing

many of the complaints plaintiffs have raised in this appeal. For example, it notes

that “[t]he Project EA addresses alternatives to the Project in a conclusory

manner, and addresses only the preferred alternative and the no project alternative

as alternatives subject to full analysis.” It further notes that the EA does not

adequately address phasing issues, in spite of frequent public comments on the

issue. The memo warns that the failure to discuss alternatives adequately

“appears to pose an appreciable litigation risk.” The FHWA received a copy of

the very critical evaluation of the EA and even agreed with many of the

comments. Yet, in spite of this dire warning and critical appraisal of the

deficiencies of the EA, FHWA did not fix the problems identified with the EA.

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 On this record it is apparent that FHWA failed to take sufficient steps to

insulate the final resulting documentation from Horrocks’ tainted analysis. See

Assocs. Working for Aurora’s Res. Env’t v. Colo. Dept. of Transp., 153 F.3d

1122, 1129 (10th Cir. 1998) (discussing the kind of independent review that

might insulate the reviewing agency from the biases of the preparer of the

underlying EA).

With regard to our review under § 4(f) of the Department of Transportation

Act, there are some special rules pertaining to the standards we apply. That is

because § 4(f) conditions approval of a transportation project through a park upon

a finding 1) that there is no prudent and feasible alternative to using the land and

2) that the project includes all possible planning to minimize harm to the park.

In the first step, the reviewing court must decide whether the Secretary of

Transportation acted within the scope of his authority. Boomer Lake , 4 F.3d at

1549. This inquiry requires the district court to examine whether “the Secretary

could have reasonably believed that in this case there are no feasible alternatives

or that alternatives do involve unique problems.” Id. (quotation omitted). The

review of this issue centers on whether “there is no prudent and feasible

alternative” to construction of the project over land protected by § 4(f).

49 U.S.C. § 303(c). Section 4(f) “requires the problems encountered by proposed

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

parkland is taken.” Boomer Lake , 4 F.3d at 1550 (quotation omitted).

In the second step, the reviewing court examines whether the Secretary’s

decision was arbitrary, capricious, an abuse of discretion or otherwise not in

accordance with law. Id. at 1549. Here, the court asks whether the Secretary’s

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

Secretary made a clear error of judgment. Id. In assessing this factor, the

reviewing court must conduct a careful and searching inquiry into the facts;

however, once it becomes satisfied that the Secretary took a “hard look” at the

relevant factors, the court should not substitute its judgment for that of the

agency. Id. at 1551.

Finally, the reviewing court asks whether the Secretary followed the

necessary procedural requirements in reaching his decision. Id. at 1549.

This court reviews the district court’s conclusions on all three of these issues

de novo , according no deference to the district court’s conclusions. Id.

II. Preliminary Injunction Factors of Harm to Plaintiffs; Balancing of
Harm to Defendants; and Public Interest.

Having set out in some detail the standard by which we review both the

decision of the district court and the underlying agency decisions, we move now

to the merits of this appeal. As mentioned earlier, we examine four factors to

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determine whether plaintiffs have demonstrated their entitlement to a preliminary

injunction: harm to the plaintiffs; harm to the defendants; the public interest; and

plaintiffs’ likelihood of success on the merits.

A. Irreparable harm to plaintiffs

1. NEPA

The district court concluded that plaintiffs had failed to demonstrate that

construction of the Project would cause irreparable harm to their environmental

interests. Davis, 148 F. Supp. 2d at 1221. The district court relied on the

insufficiency of plaintiffs’ specific, tangible assertions of harm and the

unlikelihood of their success on the procedural aspects of their claim.

In mandating compliance with NEPA’s procedural requirements as a means

of safeguarding against environmental harms, Congress has presumptively

determined that the failure to comply with NEPA has detrimental consequences

for the environment. 5 See 42 U.S.C. § 4321 (congressional declaration of

5
NEPA’s intent is to “focus[] the agency’s attention on the
environmental consequences of a proposed project,” to “guarantee[] that the
relevant information will be made available to the larger audience that may also
play a role” in forming and implementing the agency’s decision, and to provide
other governmental bodies that may be affected with “adequate notice of the
expected consequences and the opportunity to plan and implement corrective
measures in a timely manner.” Robertson v. Methow Valley Citizens Council ,
490 U.S. 332, 349-50 (1989). “The thrust of [NEPA] is . . . that environmental
concerns be integrated into the very process of agency decision-making.”
Andrus v. Sierra Club , 442 U.S. 347, 350 (1979).

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purpose); cf. Sierra Club v. Marsh , 872 F.2d 497, 500 (1st Cir. 1989) (stating

harm NEPA seeks to prevent is complete when agency makes decision without

considering information NEPA seeks to place before decision-maker and public);

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448-49 (10th Cir. 1996)

(“The injury of an increased risk of harm due to an agency's uninformed decision

is precisely the type of injury the National Environmental Policy Act was

designed to prevent.”). For this reason, we hold that harm to the environment

may be presumed when an agency fails to comply with the required NEPA

procedure. 6

Plaintiffs must still make a specific showing that the environmental harm

results in irreparable injury to their specific environmental interests. They have

done so here. Plaintiffs’ property will be directly impacted by this Project and the

size and scope of this Project supports a conclusion that the injury is significant.

Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 544 (1987). See Marsh,

872 F.2d at 504 (“The difficulty of stopping a bureaucratic steam roller, once

6
The district court seemed to recognize this principle, but concluded
that plaintiffs had not shown irreparable harm because they failed to demonstrate
likelihood of success on the merits of their NEPA claim. See Davis , 148 F. Supp.
2d at 1195 (“Plaintiffs have not demonstrated a likelihood of success on the
merits and are therefore not entitled to a presumption of irreparable harm.”).
Since we disagree with the district court concerning the likelihood of plaintiffs’
success on the merits, however, we are willing to apply the presumption it
eschewed.

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started . . . seems to us . . . a perfectly proper factor for a district court to take

into account . . . on a motion for preliminary injunction.”). 7 Thus, plaintiffs have

established irreparable harm under NEPA.

2. Section 4(f)

The substantive harm contemplated by § 4(f) is the actual harm to parkland

or historic sites that will occur if the Secretary of Transportation does not

(1) consider every prudent and feasible alternative to using the land, and (2) make

all possible plans to minimize the harm, if use is required. Plaintiffs have shown

adequate proximity to and use of the parkland sufficient to establish injury

flowing from degradation of the parkland. The proposed extension of 11400

South will make use of public parkland and historic sites thus causing the sort of

harm that is protected against by § 4(f).

In Amoco Production Co. , 480 U.S. at 544 (1987), the Supreme Court gave

some guidance to evaluating harm connected with violations of substantive

7
Defendants have also argued that plaintiffs will suffer no irreparable
harm if construction begins on Phase I of the Project, because the harms plaintiffs
fear arise principally from the more invasive construction associated with
expansion of the highway in Phase II. If construction goes forward on Phase I, or
indeed if any construction is permitted on the Project before the environmental
analysis is complete, a serious risk arises that the analysis of alternatives required
by NEPA will be skewed toward completion of the entire Project. See Marsh,
872 F.2d at 504; Md. Conservation Council, Inc. v. Gilchrist , 808 F.2d 1039,
1042 (4th Cir. 1986). See generally 40 C.F.R. § 1506.1 (prohibiting an agency
from taking action concerning a proposal that would limit the choice of
reasonable alternatives, until the NEPA process is complete).

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environmental statutes. It stated that substantive “[e]nvironmental injury, by its

nature, can seldom be adequately remedied by money damages and is often

permanent or at least of long duration, i.e., irreparable.” Amoco, 480 U.S. at 545.

That is certainly the case here. The § 4(f) statement concedes that construction of

the Project will impair the aesthetic attributes associated with the Jordan River

Parkway and “will disrupt the natural setting and feeling of the park.” Noise

levels are expected to increase at least ten decibels in both Willow Creek Park

and Jordan River Parkway and perhaps as much as twenty decibels at times in

Jordan River Parkway. This harm is irreparable in the sense that it cannot

adequately be remedied by nonequitable forms of relief. See Sierra Club v.

Hodel , 848 F.2d 1068, 1097 (10th Cir. 1988), overruled on other grounds by Vill.

of Las Ranchos de Albuquerque v. Marsh , 956 F.2d 970, 972 (10th Cir. 1992). 8

Plaintiffs’ property will be directly impacted by these environmental harms,

and accordingly plaintiffs have also established irreparable harm under § 4(f) of

the Department of Transportation Act.

8
Here again, we are faced with defendants’ assertion that the asserted
harm is not imminent because it will occur only during the construction of Phase
II. If construction were allowed on Phase I, however, there is a real risk that the
§ 4(f) analysis would be skewed toward completion of the entire Project, with the
attendant harms we have noted. This risk is sufficient to make the alleged harm
imminent.

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 B. Balance of harms

We must next balance the irreparable harms we have identified against the

harm to defendants if the preliminary injunction is granted. Defendants allege

that significant financial penalties will be incurred by UDOT if the Project is

delayed. Defendants rely on the affidavit of Angelo Papastamos, UDOT’s Senior

Project Manager. This affidavit describes costs that will be incurred by UDOT

based on the delays experienced and anticipated by this litigation. However, it

appears that many of these costs may be self-inflicted. As we have previously

concluded, the state entities involved in this case have “jumped the gun” on the

environmental issues by entering into contractual obligations that anticipated a

pro forma result. In this sense, the state defendants are largely responsible for

their own harm. Cf. Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d

800, 806 (3d Cir. 1998) (stating, in context of franchise contract dispute, that

“[t]he self-inflicted nature of [defendant’s] harm . . . weighs in favor of granting

preliminary injunctive relief”).

On this record, it appears that the environmental harms from proceeding

with the Project without adequate NEPA review outweigh the legitimately

incurred costs to defendants resulting from an injunction.

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 C. Public interest

Conflicting public interest values are involved here. Obviously, the public

interest does not favor payment of construction-related penalties from the public

fisc, and it does favor the construction of much-needed highways. On the other

hand, plaintiffs assert a strong public interest in NEPA compliance.

This is not a case in which “any adverse effect upon the environment

would appear to be negligible as compared with the obvious need for correcting

a dangerous highway intersection.” Pub. Interest Research Group of Mich. v.

Brinegar , 517 F.2d 917, 918 (6th Cir. 1975). First, the environmental dangers at

stake in this case are serious, particularly where the effect on parkland and

historic structures protected by § 4(f) is concerned. Second, the proposed

highway construction has not yet begun, and so we are not confronted with

equities in favor of completion of a partially-completed project.

We conclude that the public interest associated with completion of the

Project must yield to the obligation to construct the Project in compliance with

the relevant environmental laws. On balance, the public interest favors

compliance with NEPA and § 4(f).

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 D. Sliding scale test

If plaintiffs have made a “strong showing” on the last three factors, the

showing on the merits of their claim could be relaxed. While plaintiffs have

satisfied the last three requirements for obtaining a preliminary injunction, we do

not believe that this showing is sufficiently strong to entitle them to rely on the

relaxed standard on the merits. Plaintiffs must therefore satisfy the traditional

first criterion in full, by showing that they are likely to succeed on the merits of

their claims.

III. Likelihood of success on the merits

We now arrive at the heart of our analysis. We must consider whether

plaintiffs have shown that they are likely to succeed on the merits of their NEPA

and § 4(f) claims. We begin with an overview of each statute, before discussing

the specific statutory problems at issue here.

A. NEPA Overview

We have already provided a basic overview of the NEPA process. As

mentioned, the basic issue is whether the Project will have a significant effect on

the human environment such that an EIS, rather than a FONSI, should have been

prepared. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.13. Plaintiffs have the

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burden of showing that FHWA’s decision not to prepare an EIS was arbitrary and

capricious. Boomer Lake, 4 F.3d at 1555.

In this case, FHWA’s own regulations implementing NEPA assist plaintiffs

in meeting their burden of proof. The Council on Environmental Quality (CEQ)

regulations require agencies to determine whether a project is one that “normally

requires” an EIS. 40 C.F.R. § 1501.4(a)(1). Pursuant to this requirement, FHWA

has adopted a regulation providing examples of actions that normally require an

EIS. One of the actions that the FHWA determined “normally required an EIS”

is “[a] highway project of four or more lanes on a new location.” 23 C.F.R.

§ 771.115(a)(2). That, of course, precisely describes a portion of the Project:

the expansion of 11400 South from 700 West to 1300 West.

We have held, it is true, that regulations of this type do not inevitably

create a mandatory duty to prepare an EIS. Boomer Lake, 4 F.3d at 1554-55. The

fact that there is no mandatory duty, however, does not mean that this regulation

has no effect at all. This FHWA regulation presumes that an EIS will normally be

prepared for highway projects of four or more lanes on a new location, thereby

imposing on the FHWA the burden of establishing why that presumption should

not apply in this particular case. If FHWA arbitrarily and capriciously failed to

follow its own regulation, its decision must be reversed.

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 B. Section 4(f) Overview

Section 4(f) provides that:

The Secretary [of Transportation] may approve a transportation
program or project . . . requiring the use of publicly owned land of a
public park, recreation area, or wildlife and waterfowl refuge of
national, State, or local significance, or land of an historic site of
national, State, or local significance (as determined by the Federal,
State, or local officials having jurisdiction over the park, area,
refuge, or 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). There are two types of protected properties at issue here:

parkland and historic sites.

Two publicly owned parks are planned within the APE: the Jordan River

Parkway and Willow Creek Park. The Jordan River Parkway is currently owned

partly by two private landowners and partly by the Utah Department of Natural

Resources, Division of Parks and Recreation. The Willow Creek Park is included

in the Draper City Master Plan, Id. at 7800, but it is currently owned by a private

landowner in the vicinity of the proposed action. Id.

In order to qualify as § 4(f) property, parkland must be “publicly owned.”

Under these facts, Willow Creek Park does not qualify, in that it is owned by a

private landowner. That portion of Jordan River Parkway which is owned by a

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private landowner is similarly disqualified. The fact that these properties may

eventually be transferred to public ownership does not qualify them as § 4(f)

properties. See Nat’l Wildlife Fed’n v. Coleman, 529 F.2d 359, 370 (5th Cir.

1976). The remaining portion of Jordan River Parkway, however, currently

owned by the State of Utah and designated as a public park, does qualify as § 4(f)

property. 9

Plaintiffs assert that the Project will affect the publicly-owned portion of

the Jordan River Parkway. Our review of the record indicates that a part of the

publicly-owned portion of this parkland will be directly impacted and likely even

directly taken by the extension of 11400 South across the Jordan River. The

FHWA believed the direct and cumulative impacts on publicly-owned parkland

were sufficiently serious to apply a § 4(f) analysis to the park, and we will follow

its lead on this point.

9
The State of Utah acknowledged that “the Jordan River Parkway falls
within the purview of 4(f) and 6(f) protections for any conversion of uses from
public recreation to nonpublic recreation uses.” It further indicated that the
Division of Parks and Recreation has assumed jurisdictional authority over these
Parkways. See Admin. Rec. at 1442 (letter from Tharold Green of State of Utah
Department of Natural Resources). This land is further designated as parkland on
the South Jordan City Parks and Recreation Master Plan. None of the parties
dispute that the publicly-owned portion of the Jordan River Parkway is parkland
within the meaning of § 4(f). Accordingly, we accept as undisputed that this
Project will impact parkland protected by § 4(f).

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 Historic structures qualify for § 4(f) consideration if they are either on the

National Register of Historic Places, or eligible for inclusion on the National

Register. 23 C.F.R. § 771.135(e). There are 29 historic properties located within

the 11400 South APE; however, four of these are not recommended for inclusion

on the National Register. The remaining 25 properties are subject to § 4(f)

analysis.

Once the property is determined to be § 4(f) property, the Secretary of

Transportation can approve the use of such publicly-owned parkland or historic

sites for highway construction only if “there is no prudent and feasible

alternative to using that land,” 49 U.S.C. § 303(c)(1), and only after the Secretary

has performed “all possible planning” in the project “to minimize harm to the

park . . . or historic site resulting from the use.” Id. § 303(c)(2).

C. Specific problems with defendants’ 4(f) and EA analysis under

NEPA

1. Scope of Project

The EA/4(f) prepared in this case is inadequate for three reasons. First, it

fails to consider reasonable alternatives to the Project. Second, it contains an

inadequate discussion of the Project’s impacts. Finally, the treatment of the

issues is too vague, incomplete and inadequate to allow the decision-maker to

decide if an EIS is required.

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 Plaintiffs argue that the EA/4(f) defines the scope of the Project so

narrowly as to eliminate reasonable alternatives. Plaintiffs had argued for

consideration of alternatives that would avoid altogether the construction of an

additional crossing over the Jordan River at 11400 South. The district court,

discussing this issue as it relates to the § 4(f) analysis, stated:

Because the articulated purpose and need for the Project is, in part,
to provide another crossing point of the Jordan River, such an
alternative [avoiding another Jordan River crossing] would be per se
unfeasible and imprudent because any alternative addressing the
purpose and needs articulated for the Project would necessarily have
to cross the Jordan River Parkway.

Davis, 148 F. Supp. 2d at 1219.

While it is true that defendants could reject alternatives that did not meet

the purpose and need of the project, Boomer Lake, 4 F.3d at 1550, they could not

define the project so narrowly that it foreclosed a reasonable consideration of

alternatives. Colo. Envlt. Coalition v. Dombeck, 185 F.3d 1162, 1174-75

(10th Cir. 1999); Simmons v. United States Army Corps of Eng’rs, 120 F.3d 664,

669 (7th Cir. 1997). Although the scope of the Project certainly contemplates

additional road capacity across the Jordan River, we do not believe that a fair

reading of the Project purposes and needs requires that this additional capacity

necessarily be achieved by extending 11400 South across the Jordan River.

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 The EA/4(f) lists the following purposes for the Project:

“Maintain I-15 mainline capacity, decrease existing and future
congestion on I-15, and improve the level of service at adjacent
interchanges by improving interchange spacing and eliminating the
existing weave maneuver between the 12300 South interchange and
the State Street off-ramp.”

“Improve the functionality of the 11400 South corridor as an
important local and regional travel corridor as identified in the local
and regional master plans of Sandy, Draper, South Jordan, WFRC,
and UDOT.”

“Enhance access and mobility throughout the project area so that
sufficient access opportunities are available for all properties and
developments.”

“Help accommodate the regional traffic demand for east-west travel
across the southern end of the Salt Lake Valley.”

“Improve the geometry and operation of the 11400 South/State Street
intersection so that the efficiency of the intersection is increased,
traffic flow is improved, travel time and other delays are decreased,
and the frequency and lengths of backups is reduced.”

Further, if the Project did narrowly express its purposes and needs as

requiring a new crossing across the Jordan River at 11400 South, we would

conclude that such a narrow definition of Project needs would violate NEPA

given the more general overarching objective of improving traffic flow in the

area. In Simmons v. United States Army Corps of Eng’rs, 120 F.3d 664, 669

(7th Cir. 1997), the Seventh Circuit observed that:

the ‘purpose’ of a project is a slippery concept, susceptible of no
hard-and-fast definitions. One obvious way for an agency to slip past

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 the structures of NEPA is to contrive a purpose so slender as to
define competing ‘reasonable alternatives’ out of consideration (and
even out of existence). The federal courts cannot condone an
agency’s frustration of Congressional will.

Id. at 666. The record here suggests potentially viable alternatives of expanding

east-west traffic capacity across the Jordan River at 9800 South, 10600 South, and

12300 South. Thus, if the purposes and needs of the Project were so narrowly

construed as to mandate the extra capacity only at 11400 South, we would

conclude that such a narrow definition would be contrary to the mandates of

NEPA.

2. Consideration of alternatives

A properly-drafted EA must include a discussion of appropriate alternatives

to the proposed project. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1508.9(b). “An

agency decision concerning which alternatives to consider is necessarily bound by

a rule of reason and practicality.” Airport Neighbors Alliance, Inc. v. United

States, 90 F.3d 426, 432 (10th Cir. 1996) (quotation omitted).

With even more force, § 4(f) requires the Secretary of Transportation to

consider all “prudent and feasible alternatives.” 49 U.S.C. § 303(c)(1). “Whether

an alternative is ‘prudent’ . . . involves a common sense balancing of practical

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

be truly unusual or to reach extraordinary magnitudes if parkland is taken.

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

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. . . may properly be rejected as imprudent.” Assocs. Working for Aurora’s Res.

Env’t, 153 F.3d at 1131 (quotation and citations omitted).

The § 4(f) document studied only two primary alternatives: a “no build”

alternative, and the proposed alternative. The document concluded that the “no

build” alternative was the only prudent alternative that would not impact § 4(f)

properties within the APE. Naturally, the “no build” alternative was then rejected

because it did not meet the purpose and need for the Project. Defendants

summarily rejected, without a hard look, secondary avoidance alternatives such as

“minor alignment shifts, a reduced typical section, and retaining structures.” The

EA similarly rejected without a hard look the Transportation System Management

(TSM), mass transit, and various build alternatives, simply concluding that each,

by itself, would not meet the purpose and need of the Project or was otherwise

unfeasible. Defendants were then left with only two alternatives: the “Proposed

Action Alternative” (the Project) and a no build alternative. Again, the no build

alternative was rejected in favor of the proposed alternative.

Thus, in both the EA and § 4(f), only two alternatives were given serious

consideration: build the Project as conceptualized, or adopt a “no build”

approach. This summary treatment of alternatives must be measured against the

standards in 42 U.S.C. § 4332(2)(E) and 40 C.F.R. § 1508.9(b) (requiring the

agency to study, develop and discuss appropriate alternatives and to briefly

-28-
describe those alternatives). Plaintiffs contend that this analysis was deficient for

several reasons:

a. Additional Jordan River crossing

Plaintiffs argue that defendants should have given more detailed

consideration to alternatives involving the extension or expansion of other roads

that cross the Jordan River. In particular, they claim the crossings at 12300 and

10600 could be expanded as an alternative to constructing a new crossing at

11400 South. The EA summarily rejected various piecemeal options involving

added lanes to other highways in the area. Each option was rejected because

standing alone it would not meet the purpose and need of the Project.

FHWA relies on several traffic studies that purport to show that reasonable

traffic volume can only be achieved by creating at least four lanes on 11400

South. Those studies, however, provide an insufficient basis for failing to

consider additional lane configurations at existing crossings or other locations as

a means of meeting the project’s purpose and need.

Those studies, and particularly the Fehr & Peers report to USDOT dated

September 7, 1999, show the obvious that construction of a four lane crossing

over the Jordan River at 11400 South will increase traffic capacity in the area and

will improve traffic flows. But that is not the test for whether alternatives should

be studied in an EA. Tellingly, that Report also reveals that substantial traffic

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benefits could alternatively be obtained by expanding capacity over the Jordan

River at 12300 South and 10600 South and by constructing a new crossing at

9800 South. Nothing in that report nor anywhere else in the record that we have

seen justifies a conclusion that these alternatives are not practical, reasonable, and

perhaps in some instances even preferable to a crossing at 11400 South. The Fehr

& Peers report points out that these alternatives “must be further evaluated . . . on

[their] own merits” in order to make an adequate environmental appraisal of them,

but it was precisely that further analysis that was eschewed in this EA.

Alternatives need not be studied if they are “remote, speculative . . .

impractical or ineffective.” Airport Neighbors Alliance, Inc., 90 F.3d at 432

(quotation omitted). However, particularly in light of § 4(f)’s stringent mandates,

we have seen nothing in the record to justify the failure of the EA to study the

alternatives, separately or in combination, of expanded capacity over the Jordan

River at 12300 South and 10600 South and a new crossing at 9800 South.

b. Alternative routing of 11400 South

The § 4(f) statement concludes that, once it is given that 11400 South will

be extended across the Jordan River, there are no feasible and prudent alternative

alignments of 11400 South that would avoid the Jordan River Parkway and

Willow Creek Park altogether. However, those conclusions are so vague and

unspecific as to be little more than platitudes. Defendants are required to use “all

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possible planning” to minimize the effect on parkland. 49 U.S.C. § 303(c)(2).

The § 4(f) statement does not discuss whether the proposed alignment and bridge

across the Jordan River have been placed at the least environmentally-sensitive

location in the Jordan River Parkway, or whether an alignment shift north or

south might minimize the effect of noise and other environmental effects on the

Parkway.

As planned, the Project will also result in the complete use of five historic

sites, with impacts on fifteen others. The § 4(f) document considers and rejects a

number of minor alignment shifts in an effort to avoid these impacts. This

discussion of alignment shifts, while site-specific, is qualitatively insufficient to

address § 4(f) concerns. For example, certain alignment shifts are rejected in the

§ 4(f) evaluation because they may impact other structures; however, no

discussion is presented of the comparative historic value of these other structures

nor is there any quantitative comparison of the impact of various orientations of

11400 South even assuming it is expanded at some point over the Jordan River.

This discussion of alignment alternatives is so vague and non-specific as to be

essentially meaningless.

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 c. Cumulative alternatives

In addition to the possibility of expanding existing roads, options involving

Transportation System Management (TSM) and mass transit were eliminated from

study under the EA. The EA/4(f) rejected these options because, standing alone,

they would not meet the purpose and need of the Project. However, no effort was

made to consider TSM and mass transit together and/or in conjunction with

alternative road expansion as a means of meeting Project goals. 10 This represents

one of the most egregious shortfalls of the EA. According to the various reports

in the record, TSM could significantly contribute to traffic management in the

area and mass transit in any number of iterations is apparently under active

consideration in this area by a number of jurisdictions involved. Although mass

10
Additionally, the EA/4(f) opined that mass transit was not a feasible
alternative, in part because there was only the potential for commuter rail in the
area. This vague statement without some analysis of the likelihood or feasibility
of realizing that potential, was not an adequate one for rejecting mass transit as
part of a cumulative solution to the purpose and need identified in the EA/4(f).

For example, this conclusion did not take into account a letter from the
Utah Transit Authority (UTA) to Horrocks dated August 3, 1999. The letter
begins by informing Horrocks that “a development in the South Salt Lake County
Transit Corridor Studies has arisen that your firm should be aware of as it
proceeds through the DEIS process.” The letter states that UTA has been
requested to explore the possibility of a light rail extension paralleling the
I-15/300 East corridor from its current terminus point to 14600 South and notes
that this alignment “do[es] warrant further consideration.” Id. The letter suggests
that light rail is more than a speculative possibility. It states that a “feasibility
study has concluded that light rail is a viable alternative in South Salt Lake
County.”

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transit in the area is apparently not a sure thing, neither is there anything in the

record to establish that it is such a “remote, speculative, impractical or

ineffective” alternative that it did not need to be studied as a viable alternative in

the EA. There are no cost studies, cost/benefit analyses or other barriers

advanced that would warrant a conclusion that mass transit alternatives are

unreasonable, standing alone or in conjunction with other alternatives.

Again, because of the need of FHWA to engage in “all possible planning,”

the failure of the EA carefully to consider mass transportation, particularly in

combination with other alternatives, is not justified. “[A]ll possible planning”

requires consideration of whether reasonable resources currently planned for

extension of 11400 South across the Jordan River might instead be effectively

directed toward expansion of mass transit and other traffic management strategies

that could adequately meet the needs and purpose of the Project in a way that

avoids the adverse impact on parkland or historic structures.

d. Conclusion

The EA/4(f) does not contain an adequate discussion of alternatives. Many

alternatives were improperly rejected because, standing alone, they did not meet

the purpose and need of the Project. Cumulative options, however, were not

given adequate study. Alternatives were dismissed in a conclusory and

perfunctory manner that do not support a conclusion that it was unreasonable to

-33-
consider them as viable alternatives in the EA. As a result, only two alternatives

were studied in detail: the no build alternative, and the preferred alternative.

FHWA acted arbitrarily and capriciously in approving an EA/4(f) that does not

provide an adequate discussion of Project alternatives.

3. Significant impacts

We conclude that the EA/FONSI discussion of the impacts expected to

result from the Project is also inadequate.

a. Induced growth

The problem of induced growth arises fairly frequently in NEPA cases.

See Daniel R. Mandelker, NEPA Law and Litigation § 8.07[5] (2d ed. 2001).

NEPA requires agencies to consider the growth-inducing effects of proposed

actions. 40 C.F.R. § 1508.8(b); City of Carmel-by-the-Sea v. United States Dep’t

of Transp. , 123 F.3d 1142, 1162 (9th Cir. 1997). A conclusory statement that

growth will increase with or without the project, or that development is

inevitable, is insufficient; the agency must provide an adequate discussion of

growth-inducing impacts. Laguna Greenbelt, Inc. v. United States Dep’t of

Transp. , 42 F.3d 517, 526 (9th Cir. 1994).

Here, the EA/4(f) finds that “[i]ndirect and cumulative impacts of the

[Project] to growth will be minimal because they do not include the impacts of

development, which will occur with or without the [Project] .” Admin. Rec. at

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7786 (emphasis added). The EA/4(f) acknowledges, however, that “the rate of

development on lands east of the Jordan River may increase as a result of the

project.” Id. 11 The district court accepted the agency’s conclusion that the

Project would not significantly increase the rate of growth.

However, in a letter dated September 19, 2000, commenting on the draft

EA/4(f), the Environmental Protection Agency (EPA) opined that “[e]nhanced

transportation facilities will generate or enhance economic activity and

development,” and that “related federal, state, and private actions” may result in

significant environmental impact. The EPA concluded that “because all direct

impacts may not have been identified and assessed . . . [it] believes there is not a

reasonable basis for a finding of no significant impact (FONSI) for the preferred

alternative.” It does not appear these concerns were ever adequately addressed in

the EA. The EPA’s viewpoint on this issue is undeniably relevant. While it is

true that NEPA “requires agencies preparing environmental impact statements to

consider and respond to the comments of other agencies, not to agree with them,”

Custer County Action Ass’n , 256 F.3d at 1038, it is also true that a reviewing

court “may properly be skeptical as to whether an EIS’s conclusions have a

11
The district court stated that it could even take judicial notice of the
intense and rapid growth in the project area. Judicial notice is only appropriate
where the issues are “not subject to reasonable dispute,” see Fed. R. Evid. 201(b).
The factual issues surrounding growth here are the subject of a considerable
amount of dispute between the parties.

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substantial basis in fact if the responsible agency has apparently ignored the

conflicting views of other agencies having pertinent expertise.” Sierra Club v.

United States Army Corps of Eng’rs , 701 F.2d 1011, 1030 (2d Cir. 1983).

Defendants did provide a graphic analysis of socio-economic growth in the

area bounded by State Street, 10200 South, 12600 South and 4800 West and the

Provo Reservoir Canal during the period from 1970 through the present,

extrapolated through 2020. See id. at 7329. This table shows that continued

growth in this area is anticipated through 2020, albeit at a lesser rate than has

existed since 1990. The graph, however, contains no discussion or comparison of

the local effects in the area directly impacted by this Project of induced growth

caused by the extension of 11400 South as compared to a no-build alternative or

the use of other alternatives.

Defendants also point to a map in the record that shows regional

development density as of the year 2000. That map, however, merely confirms

plaintiffs’ claim that the 11400 South corridor remains in large part an island of

open space in a sea of development. Defendants’ refusal to study the possibility

that the relatively unspoiled nature of this local area might be due, at least in part,

to the present lack of a major roadway through it is arbitrary and capricious, and

the district court abused its discretion in ignoring this factor in its analysis.

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 b. Phasing

Plaintiffs claim that the EA does not adequately discuss the significant

impacts associated with phasing the Project. “Phasing” refers to environmental

impacts that occur because a project will not be constructed all at once. 12
The

Project here is to be constructed in two phases: the I-15 interchange will be

constructed before 11400 South is expanded and extended across the Jordan

River. Plaintiffs identify two significant impacts from phasing the project:

(1) for an extended period, persons living along the proposed expansion of 11400

South may suffer from pollution, noise and safety impacts as the result of living

with a planned, but unconstructed, five-lane highway project made necessary by

the first phase of the Project; and (2) it is possible that the second phase of the

Project will never be completed because of permitting issues, resulting in many

environmental problems caused by a major interchange that dumps traffic onto an

unimproved two-lane road.

The district court found that FHWA and the Secretary of Transportation

had taken a “hard look” into the phasing question and had determined that the

12
“Phasing” should be distinguished from “segmentation,” which refers
to the agency’s decision to break a project into smaller pieces in order to
complete the environmental analysis. Although plaintiffs contend that defendants
improperly segmented the Project, we believe defendants properly followed the
regulatory criteria in selecting the scope of the project to be studied. See 23
C.F.R. § 771.111(f).

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impacts from phasing would not be significant. Davis , 148 F. Supp. 2d at 1209

n.3. This determination appears to rest on a single traffic study. This study deals

only with traffic volumes on 700 West. It does not assess impacts to persons who

live along 11400 South during the time period after the interchange has been

constructed, but before the extension and expansion have been completed, a time

period which may span a decade or more. 13
The potentially significant impacts

from phasing have not been adequately studied in the EA. See 40 C.F.R.

§ 1508.8(b).

c. Noise

The EA/4(f) discloses a significant, and in some cases dramatic, increase in

noise levels in the vicinity of the Project. The average noise level in the Project

area is currently approximately 57 dBA. This level is defined in the UDOT noise

abatement policy as an appropriate noise level for “[l]ands on which serenity and

13
To the extent that inconveniences resulting from construction can be
characterized as “temporary” or construction-related, a finding of no significant
impact from the phased construction could be upheld. See Sierra Club v. Slater ,
120 F.3d 623, 635 (6th Cir. 1997). However, here, plaintiffs argue that the
remainder of the Project may be delayed for a decade or more, or perhaps
permanently. We could not find any definitive timetable for the completion of
Phase II in the EA or in the administrative record other than the statement in the
record that the Jordan River crossing at 11400 South “is not planned for the
immediate future.” Counsel for plaintiffs at oral argument said that Phase II will
be built in “ten to twenty years, if at all.” Counsel for FHWA disputed a twenty
year time frame and suggested a three to eight year time frame. It is clear, from
all of this, that there will be at the least a very substantial delay between Phase I
and Phase II.

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quiet are of extraordinary significance and serve an important public need.” In

other words, the Project area right now is a serene island of quiet. The Jordan

River Parkway is even more placid, with noise levels ranging from 45 to 50 dBA.

Once the Project is constructed, noise levels are expected to jump to over

65 dBA in an area affecting 119 residences, churches, parks and businesses. 14

Sound levels in the Jordan River Parkway are expected to jump from ten to twenty

decibels, to 55 to 70 dBA. Since each ten decibel increase is equivalent to a

doubling of the noise volume, this means the noise level in portions of the park

may quadruple.

The EA/4(f) lists a number of proposed mitigation measures that might be

used to decrease the effect of the noise pollution. 15 The district court found these

measures persuasive on the question of significant impact. Davis, 148 F. Supp.

2d at 1217. However, most of the measures considered were rejected in the

EA/4(f), and the remaining, recommended measures are speculative without any

basis for concluding they will occur.

14
A noise level of 65 dBA or above will “significantly” disturb outdoor
speech. Valley Citizens for a Safe Env’t v. Aldridge, 886 F.2d 458, 467 (1st Cir.
1989).
15
In their opening brief, plaintiffs argue that we may not take into
account mitigation measures when assessing whether a significant impact exists.
This is plainly wrong. See Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d
722, 733-34 (9th Cir. 2001) (quotations and footnote omitted), cert. denied, 122
S. Ct. 903 (2002); Boomer Lake, 4 F.3d at 1556.

-39-
 Defendants rejected the option of slowing down traffic on the road, even

through the parkland section, because the Project’s purpose and need requires a

speed of at least 40 to 45 mph. Horizontal and/or vertical alignment shifts were

rejected as impractical, as were landscaping and berms. Noise walls are

mentioned for part of the roadway, but merely as a recommendation: “a final

decision on the installation of the abatement measures will be made upon

completion of the project design and the public involvement process.” It was

noted in the EA/4(f) that the noise walls are quite costly ($850,000) and the

defendants made no commitment to build them. 16

Mitigation measures may be relied upon to make a finding of
no significant impact only if they are imposed by statute or
regulation, or submitted by an applicant or agency as part of the
original proposal. As a general rule, the regulations contemplate that
agencies should use a broad approach in defining significance and
should not rely on the possibility of mitigation as an excuse to avoid
the EIS requirement.

Forty Most Asked Questions Concerning CEQ's National Environmental

Policy Act Regulations (“Forty Questions”), 46 Fed. Reg. 18,026, 18,038 (Council

on Envtl. Quality 1981) (emphasis added). 17 In short, the EA/4(f) makes no firm

16
Defendants argue that UDOT has already committed to provide the
mitigation. However, the cite to the record they provide does not establish a
binding obligation to provide the proposed mitigation.
17
We apply the “Forty Questions” here as persuasive authority offering
interpretive guidance. “Although we recognize that we may rely on the
interpretive guidance offered by the CEQ, the Forty Questions document is not
(continued...)

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commitment to any noise mitigation measures. We disagree with the district

court’s conclusion that the increase in noise levels associated with the Project is

not a significant impact.

d. Cumulative impacts

The CEQ regulations require agencies to discuss the cumulative impacts of

a project as part of the environmental analysis. 40 C.F.R. § 1508.7. The EA does

not provide an adequate discussion of the cumulative impacts of the Project on

the human environment. These cumulative impacts may be significant. This

five-lane highway project, of a type that normally requires an EIS, bisects two

parks, requires the demolition or moving of numerous historic structures and will

affect others, may quadruple noise levels in one of the parks, will increase traffic

to 34,000 cars per day, and will require the construction of a new bridge over the

Jordan River. On the record before us, it appears that the cumulative

environmental impact of the Project is significant and FHWA’s contrary

conclusion represents a clear error of judgment; at the least, the EA as presently

17
(...continued)
owed the substantial deference afforded to administrative rules that are the
product of notice and comment procedures.” Ass’ns Working for Aurora’s
Residential Env’t, 153 F.3d at 1127.

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drafted fails to provide an adequate basis for a FONSI conclusion that the Project

“will not have a significant effect on the human environment.” 18

IV. Bond

Defendants contend that plaintiffs should be required to post a bond in

order to obtain a preliminary injunction. The amount of a bond is a matter to be

resolved by the district court on remand. Fed. R. Civ. P. 65(c). Ordinarily, where

a party is seeking to vindicate the public interest served by NEPA, a minimal

bond amount should be considered. See, e.g., Friends of the Earth, Inc. v.

Brinegar, 518 F.2d 322, 322-23 (9th Cir. 1975). Here, plaintiffs are private

individuals rather than a public interest organization. Nevertheless, plaintiffs’

strong showing on the merits and the defendants’ apparent prejudgment to

proceed prematurely with the Project before the required environmental studies

were considered suggests that a large bond should not be required.

The order of the United States District Court for the District of Utah

denying a preliminary injunction is REVERSED, and the case is REMANDED

for entry of a preliminary injunction barring further road construction pending

resolution of this case on the merits.

18
We have considered the other objections raised by plaintiffs to this
EA but have concluded that the remaining objections are without merit.

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Exhibit 1 cannot be formatted in Wordperfect.

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