Neighborhood Ass'n of the Back Bay, Inc. v. Federal Transit Administration

United States Court of Appeals
For the First Circuit
No. 06-1029

NEIGHBORHOOD ASSOCIATION OF THE BACK BAY, INC.;
THE BOSTON PRESERVATION ALLIANCE, INC.,

Plaintiffs, Appellants,

v.

FEDERAL TRANSIT ADMINISTRATION;
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Dyk* Circuit Judges.

Laurence E. Hardoon, with whom Deirdre Brennan Regan and
Brody, Hardoon, Perkins & Kersten, LLP, were on brief, for
appellants Neighborhood Association of the Back Bay, Inc., The
Boston Preservation Alliance, Inc.
Barbara Healy Smith, with whom Michael J. Sullivan was on
brief, for appellee Federal Transit Administration.
Stephen M. Leonard, with whom Rachel A. Lipton and Brown
Rudnick Berlack Israels L.L.P., were on brief, for appellee
Massachusetts Bay Transportation Authority.

September 14, 2006

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. The Neighborhood Association of the

Back Bay, Inc. ("NABB") and the Boston Preservation Alliance

("BPA") (collectively "Plaintiffs") brought suit against the

Federal Transit Authority ("FTA") and Massachusetts Bay Transit

Authority ("MBTA"), asserting that planned modifications to the

Copley Square transit station violated historical preservation

statutes. The United States District Court for the District of

Massachusetts denied preliminary and final injunctive relief.

Because we conclude that the plaintiffs have not established a

violation of applicable federal or state statutes, we affirm.

BACKGROUND

This case primarily presents questions as to whether the

FTA, in providing funding to the MBTA to make the Copley Square

station compliant with the Americans with Disabilities Act ("ADA"),

42 U.S.C. §§ 12101-12213 (2000), has violated various federal

statutes designed to preserve historic properties.

I.

Under Title II of the ADA, 42 U.S.C. §§ 12131-12165

(2000), and its implementing regulations, 49 C.F.R. §§ 37.47-51,

public transit authorities receiving federal funds are required to

identify "key stations" in their transit stations and then make

those stations accessible to wheelchair users. 42 U.S.C. § 12147.

In 1992 the Copley Square station was identified by the

MBTA as a key station, and plans were made to modify the station to

make it wheelchair accessible. To make the station wheelchair
accessible would require installation of new inbound and outbound

elevators to transport wheelchair users.

Under 49 U.S.C. § 5310, the FTA provides federal funds to

state entities such as the MBTA to assist them in achieving

compliance with the ADA. However, in providing funding, the FTA,

like other federal agencies, must ensure that the funded projects

comply with various federal statutes dealing with historic

preservation, including two sections of the National Historic

Preservation Act (“NHPA”) -- 16 U.S.C. § 470f (“section 106"), and

16 U.S.C. § 470h-2(f) (“section 110(f)”). The FTA must also comply

with Section 4(f) of the Department of Transportation Act of 1966

(“DOTA”), 49 U.S.C. § 303 (“section 4(f)”).

The problem with the planned modifications to the Copley

Square station lies in the fact that the station is adjacent to the

Boston Public Library ("the Library") and the Old South Church

("the Church"), both of which are designated as National Landmarks

and are listed on the National Register of Historic Places. The

Library and Church are located within the Back Bay Historic

District, which is itself on the National Register of Historic

Places, as is the existing inbound entrance headhouse to Copley

station. The proposed modifications to the station would require

use of part of the Library steps for the inbound elevator and

construction of an outbound elevator adjacent to the Church. The

plaintiffs contend that the proposed modifications would violate

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sections 106, 110 and section 4(f). Understanding plaintiffs’

contentions requires a description of these statutes, and the

process by which the FTA sought to achieve compliance with their

requirements.

Section 106 of the NHPA requires federal agencies, "prior

to the approval of the expenditure of any Federal funds on the

undertaking" to "take into account the effect" a federal

undertaking will have on "any district, site, building, structure,

or object that is included in or eligible for inclusion in the

National Register" and to "afford the Advisory Council on Historic

Preservation . . . a reasonable opportunity to comment with regard

to such undertaking." The regulations under this section make

clear that section 106 is applicable only when the proposed action

would have an "adverse effect" on an historic property such as the

Library and the Church. 36 C.F.R. § 800.5.

Section 110(f) of NHPA provides that “[p]rior to the

approval of any Federal undertaking which may directly and

adversely affect any National Historic Landmark” the agency “shall,

to the maximum extent possible, undertake such planning and actions

as may be necessary to minimize harm to such landmark, and shall

afford the Advisory Council on Historic Preservation a reasonable

opportunity to comment on the undertaking.” A precondition to the

application of section 110(f) is an action that “may directly and

adversely affect” a Landmark property, such as the Church or

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Library.

Section 4(f) provides that the Secretary of

Transportation may approve a transportation project "requiring the

use of . . . land of an historic site . . . only if: (1) there is

no prudent and feasible alternative to using that land; and (2) the

. . . project includes all possible planning to minimize harm to

the . . . historic site . . . ." 49 U.S.C. § 303(c) (“Section

4(f)”). The provision applies only if there is a “use” of an

historic site.

To comply with these statutes, the FTA must find that the

state entity complies with each statute before disbursing federal

funds for any transportation project, including an ADA

accessibility project. But the FTA need not undertake separate

reviews under each statute. 36 C.F.R. § 800.3(b). Furthermore, in

determining compliance with these statutes a federal agency such as

the FTA can rely on state agencies such as the MBTA, and on

consultants. 36 C.F.R. § 800.2(a)(3). Here, the FTA, in

concluding that the Copley Station project complied with all these

statutes, relied on “information, analyses and recommendations”

prepared by the MBTA. The MBTA, in turn, relied on consultants.

II.

The MBTA initially addressed the requirements of the ADA

in 1995. The MBTA commissioned a consultant to perform a study,

the "Schematic Design Report" (the "1995 Report"), that explored

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options for making these key stations accessible. The 1995 Report

identified several options for locating elevators at the Copley

Square station, and listed advantages and disadvantages of each.

It identified four options for locating the outbound elevator:

option A located the elevator in front of the Church, and options

B, C, and D located it across the street from the Church. The

report noted that option A "has the most serious historic adjacency

issues" with respect to the Church, but that it created "[n]o major

impacts on streetscape elements and infrastructure," required

little construction work, and was "[l]ocate[d] along the main path

of access."

The report identified two potential locations for the

inbound elevator: option E located the elevator adjacent to the

existing historic wrought iron subway entrance on the Library

steps, and option F located it about 150 feet away from the

existing entrance without using the Library steps. Option E called

for the construction of a matching structure on the other side of

the existing entrance. The 1995 Report concluded that failure to

build this matching structure would "seriously compromise the

explicit symmetry of the [historic landmark] composition." It also

stated that option E “is problematic because it not only creates

the very difficult task of imposing new structures along side the

intricately detailed wrought iron headhouse, but also creates many

interface problems with the Boston Public Library.” As for option

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F, the report noted that it had a lesser "streetscape and urban

impact" than option E, "but place[d] the entrance in a remote

location from the main entry to the station," which raised

questions of ADA compliance and also posed a number of engineering

difficulties.

At some point before May 28, 2002, the MBTA settled on

option E (library steps), minus the matching structure, for the

inbound elevator, and option A for the outbound elevator, locating

the elevator in front of the Church. The matching structure for

the inbound elevator was rejected because it would have been

positioned above the Library's basement, making it impractical to

anchor. Meetings were held with representatives of the Library and

the Church; no objection was raised to the locations of the

elevators. However, on August 22, 2003, plaintiff NABB by letter

requested various changes to the project, including the locations

for both inbound and outbound elevators. The letter requested that

the inbound elevator be placed 150 feet away from the existing

Library entrance (option F), rather than on the Library steps, and

that the outbound elevator be placed across the street from the

Church rather than directly in front of it. NABB did not then

assert that the placement of the elevators violated federal

statutory requirements.

The MBTA first addressed the requirements of the various

federal historical preservation statutes when it requested that its

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preservation consultant prepare a report (the "Carolan Report").

Though entitled "Section 106 and 4(f) Review," the Carolan Report

only discussed section 106 and did not mention section 4(f) at all.

Nor did the report address the requirements of section 110(f). The

report described the project, including the planned elevator

locations, and explained the effects of the project. The report

concluded that "the primary effect of [the project] would be a

visual one," and that the selected designs "will not interfere with

existing historic architectural structures." The report did not

discuss the alternative locations, but concluded that the planned

locations and designs for the inbound and outbound elevators would

not have an "adverse effect" within the meaning of section 106.

On August 29, 2003, based on the Carolan Report, the MBTA

sent a letter to the FTA stating that "[i]n view of these facts, it

is our opinion that the project will have 'No Adverse Effect' on

any historic resources." The MBTA "request[ed] a determination of

No Adverse Effect by FTA."

As the regulations require,1 the FTA by letter formally

advised the Massachusetts Historic Commission (“MHC”) of the Copley

Station improvement on January 23, 2004, and requested "[the MHC's]

1
The regulations promulgated under section 106 provide
that "[i]f the agency official proposes a finding of no adverse
effect, the agency official shall notify all consulting parties
[here including the MHC] . . . [and] the [MHC] shall have 30 days
from receipt to review the finding." 36 C.F.R. § 800.5(c). If the
MHC disagrees, further consultation is required. Id. at §
800(c)(2).

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concurrence in [the FTA's] determination that this project will

have no adverse effect on historic resources." The parties appear

to agree that this letter constitutes the FTA’s finding of “no

adverse effect” under section 106. The MHC concurred in the FTA's

finding of "no adverse effect" on January 29, 2004.

As required by section 4(f) regulations, in a February 5,

2004, letter to the Department of the Interior (“DOI”), the FTA

addressed the requirements of section 4(f); found that the project

complied with section 4(f); and requested the DOI’s concurrence in

that finding. The FTA found that “[b]ased on our review of the

attached documentation [including the Carolan Report, renderings

and schematics] as well as consultation with the Massachusetts

State Historic Preservation Officer (concurrence attached) we have

determined that [in the language of section 4(f)] there is no

prudent and feasible alternative to the proposed project and that

all possible measures to minimize harm have been included in the

project planning.” The DOI concurred on May 10, 2004.

In connection with an environmental assessment required

by the National Environmental Policy Act (“NEPA”),2 the FTA on

2
NEPA requires federal agencies to consider the
environmental impacts of agency decisions. 42 U.S.C. §§
4321-4370(e); 40 C.F.R. § 1500-1518 (2004). Federal agencies are
required to prepare an Environmental Impact Statement (“EIS”) for
any action that could significantly affect the quality of the human
environment. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.27. Agencies
file an Environmental Assessment (“EA”) in order to determine
whether an EIS is required. 40 C.F.R. § 1501.4. If on the basis
of the EA the agency determines an EIS is not required, the agency

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December 30, 2004, issued a “Finding of No Significant Impact”

(“FONSI”) as required by NEPA. As part of this document the FTA

further explained its conclusions with regard to 4(f). The FTA

acknowledged that “[a]n element of the proposed project [the

inbound elevator] . . . will use land from the [Library],” and that

the alternative of placing the elevator 150 feet away had not been

presented in the [MBTA’s] earlier 4(f) evaluation [the Carolan

Report]. However, the report concluded that this alternative was

not “prudent and feasible” within the meaning of section 4(f)

because it would not coincide with the circulation path of the

public to the maximum extent practicable, as required by the ADA.3

The alternatives for the outbound elevator were rejected for

engineering and passenger-flow reasons.

publishes a “Finding of No Significant Impact,” or “FONSI.” 40
C.F.R. § 1501.4(e). Here, the FTA prepared an EA and a FONSI. The
FONSI found that “the proposed project will have no significant
adverse impacts on the environment,” and thus that an EIS was not
required.
3
In particular, the EA stated that option F (placing the
inbound elevator 150 feet away from the existing entrance) was not
"appropriate or feasible" because it created a segregated entrance
for handicapped individuals, and would require the construction of
a tunnel linking the passengers to the fare collection area, or the
implementation of a "caged gate" system, which would require an
MBTA station operator to periodically release batches of
individuals from a caged area at the base of the elevator. The EA
noted that eliminating the matching headhouse from option E
increased the impact of the headhouse, but explained that retaining
the headhouse was "infeasible from an engineering perspective."

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 III.

Plaintiffs NABB and BPA filed suit under the APA on June

9, 2005, alleging that the FTA and MBTA violated sections 106 and

110(f) of NHPA, and section 4(f) of DOTA in approving the project.

The plaintiffs also alleged that the MBTA had violated

Massachusetts General Laws Chapter 161A, Section 5(k), which

required the MBTA to afford parties a “timely opportunity” to

participate in the development of “major transportation projects.”

Following a hearing, the district court denied

plaintiffs’ request for injunctive relief on November 8, 2005. On

November 23, 2005, plaintiffs timely appealed. On December 28,

2005, the district court issued a Memorandum and Order setting

forth its reasoning.

While the district court primarily treated the

plaintiffs’ request as if it were a motion for a preliminary

injunction and thus examined likelihood of success, risk of

irreparable harm, the balance of the hardships and the public

interest, the district court’s Order and Memorandum also denied the

permanent injunction.

Addressing the likelihood of success, the district court

rejected the plaintiffs’ argument that the FTA violated the

procedural requirements of the section 106 regulations by failing

adequately to document its “no adverse effect” finding, by failing

to independently review the project, or by failing to consult with

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the requisite “consulting parties” in reaching the conclusion that

there would be no adverse effect. The district court also

concluded that plaintiffs had not established that the no adverse

effect finding was arbitrary and capricious.

Next, the district court rejected plaintiffs’ argument

that section 110(f) was violated. The court held that section

110(f), which is triggered when an undertaking “may directly and

adversely affect” a National Historic Landmark, does not apply when

an agency properly determines a project has no adverse effect.

The court then rejected plaintiffs’ contention that

section 4(f) was violated. The court first addressed the proposed

inbound elevator, and held that although the inbound elevator would

“use” a historic landmark, the plaintiffs had failed to establish

“prudent and feasible” alternatives to that use because the

proposed alternatives failed to achieve the project’s purpose of

complying with ADA requirements. As for the outbound elevator, the

district court sustained the agency’s conclusion that the planned

construction would not directly or constructively “use” a historic

landmark, and thus section 4(f) did not apply.

Finally, the court addressed the plaintiffs’ state law

claim, and held that the MBTA had not violated section 5(k) because

the MBTA had afforded the plaintiffs a timely opportunity to

participate in the design process.

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 Proceeding with the remaining “preliminary injunction”

factors, the district court found that there was no risk of

irreparable harm because the project would have no adverse effect

on the properties; that the public interest would best be served by

making the stations ADA accessible as soon as possible; and that

the balance of hardships favored the MBTA and the public because

further delays would be expensive and could disrupt the MBTA’s ADA

accessibility plans.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

Judicial review here is governed by the Administrative

Procedure Act, 5 U.S.C. § 706, which requires that agency action be

set aside if the action was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or if the

action failed to meet statutory, procedural, or constitutional

requirements.

Precision of expression is not the hallmark of either the

historic preservation statutes involved here or the regulations

promulgated to implement those statutes. In view of this

ambiguity, we defer, where appropriate, to the various agency views

as to the applicable requirements. Under the Chevron doctrine, an

agency's interpretation of a statute is entitled to weight when the

statute is silent or ambiguous. See Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43

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(1984). We also owe deference to an agency's interpretation of its

own regulations. See United States v. Cleveland Indians Baseball

Co., 532 U.S. 200, 219 (2001).

Here, we owe Chevron deference to the statutory

interpretations reflected in the regulations promulgated by the

Advisory Council on Historic Preservation (“ACHP”) under sections

106 and 110, and promulgated by DOTA under section 4f. We also owe

deference to the decision of the FTA interpreting the DOTA

regulations, because the FTA is an agency within the DOT. See

Cleveland Indians, 532 U.S. at 219. We do not owe deference to the

FTA's interpretation of regulations promulgated by other agencies,

such as the section 106 and 110(f) regulations. Nonetheless, we

owe deference to the FTA’s no adverse effect finding under sections

106 and 110, since the FTA has jurisdiction to make the finding,

even though it does not have interpretive authority. See Adams

Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (U.S. 1990)

(recognizing that “agency determinations within the scope of

delegated authority are entitled to deference” even where the

agency does not have interpretive authority and thus is not

entitled to Chevron deference); see also Conservation Law

Foundation v. Federal Highway Admin., 24 F.3d 1465, 1476-77 (1st

Cir. 1994) (holding that administrative decisions under section

4(f) are subject to a highly deferential standard of review).

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 Underlying deference to agency action are assumptions

that the agencies are better able to articulate the pertinent

policies, and to reconcile the policies of potentially conflicting

statutes. An equally important assumption is that the agencies

will, in fact, carefully consider the policy issues and articulate

their resolution with clarity. Here the goals of the historic

preservation statutes potentially conflict with the mandates of the

ADA. As we will see, the FTA, while adequately performing its

assigned task, has fallen short of distinction in doing so, giving

little more than the bare minimum attention to historic

preservation issues. Of even greater concern, the agencies (ACHP,

DOTA, ATBCB) charged with promulgating regulations interpreting the

historic preservation statutes and reconciling them with the ADA

have issued regulations that are in some respects cryptic and

confusing. While we have been able to construe those regulations

in the present case so as to resolve the matter at hand, the

deficiencies in the existing regulations likely invite further

litigation as to future projects.

I. Compliance with Section 106 of NHPA

The National Historic Preservation Act of 1966, 16 U.S.C.

§ 470 et seq., “requires each federal agency to take responsibility

for the impact that its activities may have upon historic

resources, and establishes the Advisory Council on Historic

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Preservation [“ACHP”] . . . to administer the Act.” City of

Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1508 (D.C. Cir. 1994).

Section 106 of the NHPA requires that the FTA or any

other federal agency, in funding a project,

take into account the effect of the undertaking [project] on
any district, site, building, structure, or object that is
included in or eligible for inclusion in the National
Register. The head of any such Federal agency shall afford
the Advisory Council on Historic Preservation established
under part B of this subchapter a reasonable opportunity to
comment with regard to such undertaking.

The Library and Church are included in the National

Register. Under such circumstances, the ACHP regulations require

the FTA to determine whether the project will have an “adverse

effect” on the historic properties. 36 C.F.R. § 800.5. If the

agency finds an adverse effect, then the agency must follow

procedures under section 800.6 designed to avoid or mitigate the

adverse effects. 36 C.F.R. §§ 800.5(d)(2); 800.6(a),(b); 800.7

("failure to resolve adverse effects"). See 36 C.F.R. § 800.8

(coordination with NEPA, including early 106 review).

Section 106 is a procedural statute that requires agency

decisionmakers to "stop, look, and listen," but not to reach

particular outcomes. Narragansett Indian Tribe v. Warwick Sewer

Authority, 334 F.3d 161, 166 (1st Cir. 2003).

Plaintiffs argue that for various reasons the

requirements of section 106 were not met. Plaintiffs first contend

that the FTA committed procedural error during the process leading

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up to the "no adverse effect" finding. Plaintiffs complain that

the FTA did not conduct an independent analysis of historical

impacts of the undertaking and instead improperly relied on the

determination of the Carolan Report and the MBTA. However, the

regulations expressly permit an agency to "use the services of

applicants, consultants, or designees to prepare information,

analysis and recommendations," 36 C.F.R. § 800.2(a)(3); see also

Narragansett Indian Tribe, 334 F.3d at 168 ("The regulations

themselves explicitly contemplate the use of consultants to provide

analyses for use in the § 106 process.").

Although the plaintiffs urge that there is no indication

that the FTA made the required independent determination, there is

no specific requirement in the statute, the regulations or the APA

that the FTA provide detailed explanations for its decision or use

any particular form of words signifying that it made an independent

determination.4 Moreover, we are required to presume that the FTA

abided by the statutory requirements in the absence of any showing

that it did not do so. Bowen v. Am. Hosp. Assn., 476 U.S. 610,

626-27 (1986); Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 n.9 (1983). As the district court found

4
See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S.
633, 655-56 (1990) (holding that the APA does not specifically
require the agency to explain its decision when an informal
adjudication is involved); Camp v. Pitts, 411 U.S. 138, 142 n. 3
(1973) (holding that the APA’s requirement of a written explanation
on the record applies only to adjudications required to be made on
the record or to formal rulemaking).

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here, “[p]laintiffs offer no credible evidence indicating that the

FTA did not conduct an independent review, or that it 'rubber

stamped' the MBTA's conclusion of 'no adverse effects.'”

We also see no merit in plaintiffs’ contention that the

documentation provided to the MHC by the FTA did not adequately

explain the basis of the no adverse effect finding. They rely on

regulations that require that the documentation “enable” reviewing

parties “to understand [the] basis” of the adverse effect finding

as required by the regulations. 36 C.F.R. § 800.11(a); see also 36

C.F.R. § 800.11(e) (requiring documentation to support an adverse

effect finding). The plaintiffs’ primary contention is that the

underlying documentation did not address alternative locations for

the elevators, but there is nothing in the statute or regulations

that requires the consideration of alternatives in making the no

adverse effect determination. Plaintiffs’ fallback position is

that the document did not consider elevator location at all in

reaching the no adverse effects finding. This is not correct. The

documents, including the Carolan Report, described in detail the

basis for the finding and considered the location of the elevators

in making the finding.5

5
Plaintiffs’ argument that they should have been deemed
consulting parties because they were interested in the project and
that interest was well-known is also without merit. The
regulations expressly require parties to make a written request to
become consulting parties, and gives the agency and SHPO (here the
MHC) the discretion to decide whether to grant the request. 36
C.F.R. § 800.3(c)(5).

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 Turning to the merits, the plaintiffs also contend that

the no adverse effect finding is not sustainable. Again, we

disagree.

Plaintiffs argue that the regulations promulgated under

section 106 compel a finding of "adverse effect." Their principal

contention is that locating the inbound elevator on the Library

steps will have an adverse effect on the Library.

The section 106 regulations, 36 C.F.R. § 800.5

("Assessment of adverse effects"), set forth the criteria for

determining whether an action will have an adverse effect. Section

800.5(a) provides that the “agency official shall apply the

criteria of adverse effect to historic properties within the area

of potential adverse effects.” Section 800.5(a)(1) (“Criteria of

adverse effect”) provides:

An adverse effect is found when an undertaking may alter,
directly or indirectly, any of the characteristics of a
historic property that qualify the property for inclusion in
the National Register in a manner that would diminish the
integrity of the property's location, design, setting,
materials, workmanship, feeling or association. . . .
(emphasis added).

The FTA relied on various documents to support its no

adverse effect finding, including its implicit conclusion that the

integrity of the Library was not compromised. The plaintiffs argue

that the 1995 Report would only support a finding of no

diminishment if the original option E had been adopted (using

matching headhouses on either side of the library) and that the

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report did not support such a finding with respect to the final

plan that eliminated the matching headhouse. Plaintiffs correctly

point out that the 1995 Report concluded that the elimination of

the matching headhouse would “seriously compromise the explicit

symmetry of the composition.” (Emphasis added)6 However, the 1995

Report was not addressed to federal statutory requirements, and the

FTA primarily relied on the later Carolan report, which was

prepared after the elimination of the matching headhouse, for this

purpose. The Carolan Report described the historic setting of

Copley Station at length, and concluded that the selected designs

“will not interfere with existing historic architectural

structures.” This report amply supports the agency’s conclusion

that the inbound elevator would not have an adverse effect, i.e.,

that it would not “diminish the integrity” of the historical sites

or “change the character” of features of the Library that

contribute to its historical significance. The plaintiffs have

failed to show that this finding, on which the FTA relied, was

arbitrary or capricious.

Plaintiffs also urge that, even if the FTA was not

arbitrary and capricious in concluding that the proposed location

6
Plaintiffs also point to various inaccurate statements in
the 1995 Report. For example, the Report erroneously states that
“the exi[s]ting steps will not be disturbed,” and that “option F
locat[ed] the elevator in front of the Old Library.” Plaintiffs
have not established that the FTA relied on these erroneous
statements (which are contradicted elsewhere in the 1995 Report) in
making its no adverse effect finding.

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of the inbound elevator would not “diminish the integrity” of the

library, section 800.5(a)(2), which lists specific examples of

adverse effects, compels an adverse effect finding. This section

provides that:

[a]dverse effects on historic properties include, but are not
limited to:

(i) Physical destruction of or damage to all or part of the
property;
(ii) Alteration of a property, including restoration,
rehabilitation, repair, maintenance, stabilization, hazardous
material remediation, and provision of handicapped access,
that is not consistent with the Secretary's standards for the
treatment of historic properties (36 CFR part 68) and
applicable guidelines . . . .

Plaintiffs argue that locating the inbound elevator on the Library

steps has an adverse effect on the Library because disturbing the

Library steps constitutes "[p]hysical destruction of or damage to

all or part of the property" under subpart (i).

This interpretation is inconsistent with the structure of

the regulations. Under subpart (ii) adverse effects include

"[a]lteration of a property, including . . . provision of

handicapped access . . . that is not consistent with the Secretary

[of the Interior’s] standards for the treatment of historic

properties (36 C.F.R. part 68) and applicable guidelines."

800.5(a)(2)(ii) (emphasis added). Thus, subpart (ii) effectively

recognizes that alterations consistent with the Secretary’s

regulations will not create an adverse effect if they are designed

to secure handicapped access. In this respect the regulations are

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evidently designed to avoid potential conflicts with the

requirements of the ADA. If subpart (ii) is to be given its full

effect, subpart (i) cannot compel an adverse effect finding when a

property is physically altered to secure handicapped access in a

manner that could be said to “damage” the property. Rather,

subpart (i) must be read to refer only to “damage” that does not

come within the purposes enumerated in subpart (ii). In other

words, alterations for the provision of handicapped access are

governed exclusively by subpart (ii).

We similarly reject the plaintiffs’ contentions that the

placement of the inbound elevator could violate subsection (iv)

(“[c]hange of the character of the property's use or of physical

features within the property's setting that contribute to its

historic significance”) and subsection (v) (“[i]ntroduction of

visual, atmospheric or audible elements that diminish the integrity

of the property's significant historic features”). Again, if the

project complied with subsection (ii), it cannot be argued that it

failed to comply with subsections (iv) and (v).

We find no merit in plaintiffs’ confusing contention that

there was an adverse effect within the meaning of subpart (ii)

itself. Plaintiffs have not shown that the alterations to the

Library steps are inconsistent with the Secretary of the Interior’s

standards for the treatment of historic properties set out in 36

C.F.R. part 68.

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 We finally reject plaintiffs’ argument that the placement

of the outbound elevator would have an adverse effect on Old South

Church; and that placement of both elevators would have an adverse

effect on the design of the Back Bay region of the city, which

itself appears in the National Register of Historic Places; and

that the rehabilitation of the existing wrought iron entrance would

constitute an adverse effect under subpart (ii). The FTA’s finding

of no adverse effect encompassed the project as a whole, including

both the inbound and the outbound elevator. The plaintiffs have

failed to show that this finding was arbitrary or capricious.

We conclude that the agency's finding of "no adverse

effect" must be sustained.

II. Compliance with Section 110(f)

Plaintiffs next argue that even if the "no adverse

effect" finding was proper under section 106, section 110(f) was

violated. Section 110 of the NHPA imposes more stringent

procedural requirements when National Historic Landmarks are

involved, and is involved here because both the Library and the

Church are National Historic Landmarks. Section 110(f) provides:

Prior to the approval of any Federal undertaking which may
directly and adversely affect any National Historic Landmark,
the head of the responsible Federal agency shall, to the
maximum extent possible, undertake such planning and actions
as may be necessary to minimize harm to such landmark, and
shall afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking.

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 The implementing regulation for section 110(f), 36 C.F.R.

§ 800.10, calls for the same procedures as section 106 (i.e., the

procedures specified in 36 C.F.R. §§ 800.6 and 800.7 requiring

consultation with the ACHP), but further requires that the agency

“invite the Secretary [of the Interior] to participate in the

consultation where there may be an adverse effect" and requires

that the ACHP “report the outcome of the section 106 process . . .

to the Secretary [of the Interior]. . . .” 36 C.F.R. §§ 800.10(c),

(d).

Unfortunately, in the course of the lengthy review

process, the FTA did not directly address section 110(f). On

appeal the FTA and MBTA urge that, nonetheless, the district

court’s decision may be affirmed because section 110(f), like

section 106, is only triggered when there has been an “adverse

effect,” and that the section 106 “no adverse effect” finding (that

we have already sustained) means that section 110(f) is

inapplicable.

Plaintiffs disagree. They point out that the heightened

planning and consultation requirements of section 110 are triggered

when an undertaking "may directly and adversely affect" a historic

landmark. Plaintiffs urge that section 110(f) is triggered

whenever there is a possible adverse effect, and that a no adverse

effect finding is not the same as a finding that there is no

possible adverse effect.

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 We think the language of section 110(f) is ambiguous and

that this ambiguity is not resolved by the legislative history

speaking of the “higher standards” for compliance with section 110.

That committee report language was not referring to a stricter

standard for a section 110 adverse effect finding, but rather to

the higher standard imposed once an adverse effect finding has been

made. H.R. Rep. No. 1457, 96th Cong., 2d. Sess. 36-38, reprinted

in U.S.C.C.A.N. 6378, 6399-6401 (“This section does not supercede

Section 106, but complements it by setting a higher standard for

agency planning in relationship to landmarks before the agency

brings the matter to the Council.”).

The ACHP's regulations, to which we owe Chevron

deference, require an adverse effect finding as a predicate to

section 110(f)’s application. Section 800.10 of the regulations,

which implements section 110(f), provides that "[w]hen commenting

on [undertakings that may directly and adversely affect a National

Landmark], the [ACHP] shall use the process set forth in §§ 800.6

through 800.7." § 800.10(a). This process (set forth in §§ 800.6

through 800.7) repeatedly assumes that an adverse effect is

present. Section 800.6 is titled “resolution of adverse effects”

and contains no provision for the situation where an adverse effect

is absent, while section 800.7 deals with “failure to resolve

adverse effects.” In fact, during the section 106 review process,

section 800.6 ("Resolution of Adverse Effects") and 800.7 ("Failure

-25-
to resolve adverse effects") are triggered only after the agency

finds that there is an adverse effect under section 800.5(d)(2).

Logically, when the process of sections 800.6 and 800.7 is

triggered by section 110(f), an adverse effect must be present

because that process yields no result otherwise.

Plaintiffs appear to urge that these regulations

unreasonably interpret the statute to require a present effect, but

in fact the regulations specifically contemplate situations in

which an “adverse effect” finding may be based on future injury.

Thus, for example, section 800.5(a)(1) provides that "[a]dverse

effects may include reasonably foreseeable effects . . . that may

occur later in time . . . ." Therefore, an agency's "adverse

effect" finding would also include the situation where there "may"

be an adverse effect in the future. Construing section 110(f) to

be triggered only upon a finding of adverse effect is therefore

perfectly consistent with the use of the word "may" in section

110(f).

Because we conclude section 110(f) is not implicated when

there is no adverse effect, and the FTA properly concluded that the

project would have no adverse effects, we reject plaintiffs’

argument that 110(f) was violated.

III. Compliance with Section 4(f)

Next, we turn to plaintiffs’ claim that the FTA's

-26-
approval of the Copley Station improvements violated section 4(f).7

Section 4(f), unlike sections 106 and 110(f), imposes a

substantive mandate. 49 U.S.C. § 303(c) (2000). It imposes a dual

requirement, providing that the Secretary of Transportation may

approve a project "requiring the use of land of an historic site

only if: (1) there is no prudent and feasible alternative to using

that land; and (2) the project includes all possible planning to

minimize harm to the . . . historic site resulting from the use."

49 U.S.C. § 303(c). The Supreme Court’s decision in Overton Park

requires courts reviewing agency action under the APA for

compliance with 4(f) to follow the traditional approach to review

of administrative action. Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 414 (1971) (citing 5 U.S.C. § 706(2)(A),

(B), (C), (D) (1964 ed., Supp. V)).8

Plaintiffs argue that the FTA's approval of the inbound

and outbound elevator locations for the Copley Station project

violates both sections 4(f)(1) and 4(f)(2).

7
A recent amendment to section 4(f), dealing with projects
whose “uses” of historic sites have only a de minimis impact on
those sites, is not at issue in this case, because the 4(f) process
in this case was concluded before the amendment’s adoption. See
P.L. 109-59 (Aug. 10, 2005).
8
See also Valley Community Preservation Com'n v. Mineta,
373 F.3d 1078, 1084 (10th Cir. 2004).

-27-
 A. The Inbound Elevator

1. Section 4(f)(1)

Plaintiffs first argue that the placement of the inbound

elevator on the steps in front of the Library constitutes a direct

“use” of an historic site for which there is a “prudent and

feasible” alternative under section 4(f)(1). Since the defendants

agree that the elevator “uses” the historic site, the only issue is

whether there is a "prudent and feasible alternative."

In Overton Park, the Supreme Court drew a distinction

between feasibility and prudence. A feasible alternative is one

that can be built as a matter of sound engineering. 401 U.S. at

411; see also Druid Hills Civic Ass'n v. Federal Highway Admin.,

772 F.2d 700, 715 (11th Cir. 1985). Here, appellees do not contend

that the alternative location, away from the library steps, could

not be built. Rather, they maintain that that alternative is not

“prudent.”9

It is well settled that an alternative is not prudent if

it does not meet the transportation needs of a project.10 The

9
In one respect, there is a feasibility issue. Plaintiffs
maintain that if the inbound elevator were to be placed on the
library steps, creating a matching headhouse was a feasible and
prudent alternative. The FTA’s determination that the matching
headhouse was not “feasible” because of engineering difficulties
was not arbitrary and capricious.
10
City of Bridgeton v. FAA, 212 F.3d 448, 461 (8th Cir.
2000) (an alternative "that does not effectuate the project's
purposes is, by definition, unreasonable, and need not be evaluated
in detail under 4(f)"); Citizens against Burlington, Inc. v.

-28-
transportation needs of the project include ADA compliance. The

FTA determined that placing the handicap accessible elevator

entrance 150 feet from the main entrance would create a segregated

handicap entrance and violate ADA regulations.11

The FTA’s conclusion in this respect is not arbitrary or

capricious. Guidelines promulgated under the ADA require that

"accessible route[s] shall, to the maximum extent feasible,

coincide with the route for the general public." 49 C.F.R. pt. 37,

app. A 4.3.2(1). With respect to "Key Stations" (such as Copley)

"[t]he circulation path, including an accessible entrance and an

accessible route, for persons with disabilities shall, to the

maximum extent practicable, coincide with the circulation path for

the general public." 49 C.F.R. pt. 37, app. A 10.3.1(1),

10.3.2(2).12 These regulations respond to Congress' concern that

"historically, society has tended to isolate and segregate

Busey, 938 F.2d 190, 203 (D.C. Cir. 1991); Hickory Neighborhood
Defense League v. Skinner, 910 F.2d 159, 164 (4th Cir. 1990) (in
approving highway project, Secretary may reject as imprudent
alternatives that will not solve or reduce existing traffic
problems); Druid Hills, 772 F.2d at 715; Arizona Past & Future
Found. v. Dole, 722 F.2d 1423, 1428-29 (9th Cir. 1983).
11
The FONSI explained that the "FTA did not consider this
alternative to be prudent and feasible since it would not coincide
with the circulation path of the general public [and thus would not
comply with the ADA]." The attached Environmental Assessment, and
the 1995 Report reached the same conclusion.
12
They also require that handicap entrances be situated to
"minimize the distance which wheelchair users and other persons who
cannot negotiate steps may have to travel compared to the general
public." 49 C.F.R. pt. 37, app. A, 10.3.1(1).

-29-
individuals with disabilities, and, despite some improvements, such

forms of discrimination against individuals with disabilities

continue to be a serious and pervasive social problem." 42 U.S.C.

§ 12101(a)(2) (2000).

While plaintiffs correctly point out that the regulations

thus only require that the path coincide with that of the general

public to the extent that this is “feasible” and “practicable,”13

we read those qualifications as directed only to engineering and

cost considerations and not to concerns of historic preservation.

Cf. Overton Park, 401 U.S. at 411. Rather, the ADA deals elsewhere

with historic preservation issues, directing the Architectural and

Transportation Barriers Compliance Board ("ATBCB") to issue

supplementary guidelines that include "procedures and requirements

for alterations that will threaten or destroy the historic

significance of qualified historic buildings and facilities as

defined in 4.1.7(1)(a) of the Uniform Federal Accessibility

Standards ["UFAS"]." 49 C.F.R. pt. 37, app. A, § 4.1.7. The ATBCB

has adopted such guidelines, See 36 C.F.R. part 1191, app. B §

202.5. The DOT has adopted similar guidelines in the UFAS, section

13
49 C.F.R. pt. 37, app. A 4.3.2(1) ("accessible route[s]
shall, to the maximum extent feasible, coincide with the route for
the general public.") (emphasis added); 49 C.F.R. pt. 37, app. A
10.3.1(1), 10.3.2(2) ("[t]he circulation path, including an
accessible entrance and an accessible route, for persons with
disabilities shall, to the maximum extent practicable, coincide
with the circulation path for the general public.") (emphasis
added).

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4.1.7(a) of which provides that:

[a]lterations to a qualified historic building or
facility shall comply with [ADA accessibility
requirements including the routing requirement] unless it
is determined in accordance with the procedures in
4.1.7(2) that compliance with the requirements for
accessibility routes . . . would threaten or destroy the
historic significance of the building or facility in
which case the alternative requirements in 4.1.7(3)
[providing for alternative "minimum requirements" for
accessibility routes] may be used for the feature.

Plaintiffs contend that placing the elevators on the side

steps of the Library would "threaten or destroy" the historic

significance of the Boston Public Library. We need not in this

case delineate the precise scope of the required “threaten or

destroy” finding. It is sufficient for present purposes to

conclude that a project that will not have an “adverse effect”

under sections 106 and 110 cannot “threaten or destroy” the

historic significance of the project for purposes of section 504 of

the ADA. This is a situation in which the historic preservation

statutes have spoken “more specifically to the topic at hand” than

the ADA. Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 121 (2000). There is no suggestion here, and it is

indeed inconceivable, that the ADA was designed to be more

protective of historical properties than the primary historical

preservationist statutes themselves (sections 106 and 110).

2. Section 4(f)(2)

We also reject plaintiffs’ contention that the FTA

violated the requirement of section 4(f)(2) that it undertake “all

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possible planning to minimize harm to the . . . historic site . .

. ."

Although the language of 4(f) does not define the set of

alternatives that must be considered when performing a 4(f)(2)

balancing, we agree with our sister circuits that have held that an

agency need only consider alternatives that are feasible and

prudent.14 Here, as we have already discussed, plaintiffs have

failed to establish that the agency failed to consider a prudent

alternative to placing the inbound elevator on the Library steps

(i.e. an alternative that would achieve ADA compliance).15

14
Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d
686, 702 (3d Cir. 1999) (holding that a “‘feasible and prudent’
determination [should be applied] to the world of alternatives that
must be considered under 4(f)(2),” and that “the Secretary must
consider every ‘feasible and prudent alternative’ that uses
historically significant land when deciding which alternative will
minimize harm, but that the Secretary has slightly greater
leeway–compared to a 4(f)(1) inquiry–in using its expertise as a
federal agency to decide what the world of feasible and prudent
alternatives should be under 4(f)(2)”); Hickory Neighborhood
Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir. 1990)
(acknowledging that 4(f)(2) contains an implied “feasible and
prudent” test); Druid Hills, 772 F.2d at 716 (same); Louisiana
Envtl. Soc’y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976)
(same); see also City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th
Cir. 2000) (“In reviewing an agency's choice among feasible and
prudent alternatives [in its 4(f)(2) analysis], we again apply the
arbitrary and capricious standard of review.”).
15
Plaintiffs also argue that the FTA should have considered
the MBTA’s implementation of Charlie Fare cards, which resulted in
the elimination of automatic fare booths and, plaintiffs claim,
could have allowed the elevator to deliver passengers directly onto
the platform if option F had been implemented. We see no error in
the FTA’s failure to reopen proceedings to consider an alternative
first suggested months after the review process was completed.

-32-
 B. The Outbound Elevator

We also reject plaintiffs’ argument that placement of the

outbound elevator on the Church sidewalk triggers section 4(f).

Section 4(f) is not triggered unless a project “uses” a historical

site. Here, the parties appear to agree that the outbound elevator

does not directly use a historic site. Plaintiffs nonetheless

contend that placing the outbound elevator on the Church sidewalk

constitutes a “constructive” use of an historic site.

Under the regulations, a "constructive" use occurs if the

impact of locating the project near the site is "so severe that the

protected activities, features, or attributes that qualify [it] for

protection under 4(f) are substantially impaired." 23 C.F.R. §

771.135(p)(2). The regulations are ambiguous as to what

constitutes a constructive use. However, the regulations provide

that a constructive use does not occur when there is a finding of

'no effect' or 'no adverse effect' under section 106. 23 C.F.R §

771.135(p)(5)(i). Here, the FTA’s ‘no adverse effect’ finding

related to the project as a whole, including the outbound elevator.

In light of our conclusion that the "no adverse effect" finding was

proper, the FTA’s finding that placement of the elevator on the

Church sidewalk did not constitute a "use" of a historic site was

not erroneous.

IV. Compliance with State Law

Finally, plaintiffs urge that the MBTA, in planning the

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Copley Station Project, violated Section 5(k) of Massachusetts

General Law Chapter 161A. Subsection 5(k) directs the MBTA to

issue regulations “necessary and appropriate to provide the

following parties the timely opportunity to participate in the

development of major transportation projects . . . as defined by

the directors . . . .” Mass. Gen. Laws c. 161A, § 5(k). The

relevant parties include “state, regional and local agencies and

authorities affected by said projects . . . [and] other public and

private organizations, groups and persons who are affected by, and

who have provided the board with reasonable notice of their desire

to participate in the development of the design of [the] project.”

Id. Although regulations have not been issued under the statute,

we assume that the statute itself requires timely opportunity to

participate.

Although the MBTA urges that we decline to consider

compliance with the Massachusetts statutes under Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89 (1984), we do not reach

the immunity question. That question is not truly jurisdictional

and thus need not be addressed before the merits of the state law

claim. See Parella v. Retirement Bd. of Rhode Island Employees'

Retirement System, 173 F.3d 46, 55 (1st Cir. 1999) (holding that

immunity is not a true restriction on Article III jurisdiction and

therefore need not be addressed before the merits).

-34-
 Turning to the merits, we find no basis to conclude that

the statutes were violated. The MBTA afforded public and private

organizations the opportunity to comment and conducted several

public meetings regarding the project. Furthermore, even assuming

the plaintiffs had an individual right to participate and were

“affected by” the project within the meaning of the statute, we

agree with the district court that they were provided with

sufficient opportunity to participate. The MBTA held a public

meeting on July 21, 2003. Although the district court found that

plaintiffs did not attend this meeting, the parties agree that they

did. Plaintiff NABB also met with the MBTA twice more—once on

August 5, 2003, when the design plans were 75 percent complete, and

once on March 3, 2004, prior to final federal approval.

The plaintiffs contend that the plan was essentially

complete when they met with MBTA on August 5, 2003. The plan had

by then reached the “75 percent” stage. But the record makes clear

that the MBTA was still soliciting comments from the public at this

stage, and final federal approval had not yet occurred. The July

and August 5, 2003, meetings satisfy the statute’s requirement that

the participation occur early enough to “permit comments to be

considered prior to the final development of or commitment to any

specific design for the project.” Mass. Gen. Laws c. 161A, § 5(k).

We conclude that plaintiffs have failed to establish a violation of

the Massachusetts statute. Similarly, we find no merit to

-35-
plaintiffs’ contention that the federal regulations required

earlier consultation with affected parties. See 36 C.F.R. §

800.1(a).

CONCLUSION

Having determined that neither the FTA and MBTA acted

unlawfully, we conclude that the district court properly denied

preliminary and final injunctive relief. For the foregoing

reasons, we therefore affirm the district court’s judgment.16

Affirmed.

16
Plaintiffs’ Motion for Injunction Pending Appeal is
denied. FTA’s Motion to Modify the Record, MBTA’s Motion to
Supplement the Record, and related motions are denied.

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