Defenders of Wildlife v. North Carolina Department of Transportation

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2215

DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE ASSOCIATION,

Plaintiffs – Appellants,

v.

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; ANTHONY J.
TATA, Secretary, North Carolina Department of
Transportation; FEDERAL HIGHWAY ADMINISTRATION; JOHN F.
SULLIVAN, III,

Defendants – Appellees,

and

CAPE HATTERAS ELECTRIC MEMBERSHIP CORPORATION,

Intervenor/Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W.
Flanagan, District Judge. (2:11-cv-00035-FL; 2:12-mc-00001-FL)

Argued: May 13, 2014 Decided: August 6, 2014

Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Duncan
and Judge Childs joined.
ARGUED: Julia Furr Youngman, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants. Robert Lundman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John
Foster Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees. ON BRIEF: Nicholas S. Torrey,
SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina;
Jason C. Rylander, DEFENDERS OF WILDLIFE, Washington, D.C., for
Appellants. Ethan G. Shenkman, Acting Principal Deputy
Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas G. Walker, United States Attorney,
Matthew L. Fesak, Assistant United States Attorney, Environment
& Natural Resources Division, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina; Roy Cooper, Attorney General,
Scott T. Slusser, Special Deputy Attorney General, Thomas D.
Henry, Assistant Attorney General, Colin A. Justice, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.

2
WYNN, Circuit Judge:

At the heart of this case are the past and future of the

Outer Banks, barrier islands along North Carolina’s Atlantic

coast. For decades, the Herbert C. Bonner Bridge (“Bonner

Bridge”) has provided highway access between mainland North

Carolina and the Outer Banks’s Hatteras Island. But the effects

of time threaten the structural integrity of the Bonner Bridge,

while large storms and changing coastal conditions threaten the

viability of the non-elevated portions of North Carolina Highway

12 (“NC 12”) south of the Bonner Bridge.

The North Carolina Department of Transportation (“NCDOT”)

and the Federal Highway Administration (“FHWA”) (collectively,

“Defendants”) sought a long-term transportation solution to

these problems and settled on a plan that essentially mirrors

what currently exists: replacing the Bonner Bridge and

maintaining NC 12 on Hatteras Island.

Defenders of Wildlife and the National Wildlife Refuge

Association (“Plaintiffs”) responded with this lawsuit.

Plaintiffs claim that Defendants violated the National

Environmental Policy Act (“NEPA”) and Section 4(f) of the

Department of Transportation Act of 1966 by, among other things,

committing to the construction of only one segment of the

transportation project—namely the replacement bridge—and denying

the public the full review of the entire project and its

3
environmental impact, as NEPA requires. Plaintiffs also contend

that Defendants violated Section 4(f) by, among other things,

improperly rejecting alternatives that would not have used

protected wildlife refuge land.

The district court brought Plaintiffs’ suit to a halt by

granting summary judgment in favor of Defendants. The district

court held, in part, that Defendants complied with NEPA and

Section 4(f) in researching, designing, and selecting their

project.

On appeal, we do not decide whether we agree with

Defendants’ policy choices or project preferences. Rather, we

must determine whether Defendants have complied with the law in

reaching their decisions. This has been no easy task, given the

tortured decisionmaking history of this project, the difficulty

of determining exactly what Defendants intend to construct, and

the extensive administrative record underlying the district

court’s decision. Nevertheless, for the reasons that follow, we

affirm the district court’s determination that Defendants

complied with NEPA, reverse the district court’s determination

that a special exception frees Defendants from complying with

Section 4(f), and remand for further proceedings.

4
 I.

A.

Since the early 1990s, Defendants have been developing

plans to replace portions of NC 12, a two-lane highway that

traverses the Outer Banks. We refer to Defendants’ chosen plan—

the one currently under review by this Court—simply as “the

Project.” The Project involves the fifteen-mile portion of NC

12 running from the southern tip of Bodie Island, across the

Oregon Inlet, to the Village of Rodanthe, the northernmost

population center on Hatteras Island. The Oregon Inlet is a

relatively narrow and shallow channel of water formed in the

mid-1800s by severe storms.

Before 1963, when the Bonner Bridge was constructed over

the Oregon Inlet, motorists relied on ferries to travel between

Hatteras Island and the mainland. The two-lane Bonner Bridge is

approximately 2.4 miles long and carries over ten thousand

vehicles per day during the area’s busy summer tourist season.

After crossing the Oregon Inlet but before reaching

Rodanthe, NC 12 passes through thirteen miles of the Pea Island

National Wildlife Refuge (“Refuge”) and the Cape Hatteras

National Seashore (“Seashore”). These two natural areas are

owned and managed by the federal government, and they are major

destinations for many of the tourists who visit Hatteras Island.

5
Although the boundaries of the Seashore and the Refuge generally

overlap in the Project area, they are two distinct entities.

In 1938, President Roosevelt established the Refuge

pursuant to Executive Order 7864, issued under the Migratory

Bird Conservation Act. The Order stated that the land was to be

reserved “as a refuge and breeding ground for migratory birds

and other wildlife” and that “any private lands within the area

described shall become a part of the refuge hereby established

upon the acquisition of title thereto or lease thereof by the

United States[.]” Exec. Order No. 7864, 3 Fed. Reg. 734–35

(Apr. 12, 1938). During 1937 and 1938, the United States

government used condemnation proceedings to acquire the property

for the Refuge directly from the previous land owners. The

Refuge is managed by the United States Fish and Wildlife

Service, a bureau of the Department of the Interior (“DOI”).

In 1937, Congress created the Seashore as a protected

environment separate and distinct from the Refuge. Act of Aug.

17, 1937, Pub. L. No. 311, 50 Stat. 669. The Seashore contains

approximately 100 square miles of “primitive wilderness” on the

coast, “set apart . . . for the benefit and enjoyment of the

people[.]” Id. at 669. The United States government acquired

the land for the Seashore through several deeds from the State

of North Carolina. Today, the Seashore “is a publicly owned

6
park and recreation area that is owned by the federal government

and administered by the [National Park Service].” J.A. 1413.

When the Seashore was created, Congress emphasized the need

to protect it from development, stating that “no development of

the project [Seashore] or plan for the convenience of visitors

shall be undertaken which would be incompatible with the

preservation of the unique flora and fauna” in the area. Act of

Aug. 17, 1937, Pub. L. No. 311, § 4, 50 Stat. 669, 670. The

Seashore remains “72 miles . . . of open, virtually unspoiled

beach and scenic drive.” J.A. 1413.

During the 1940s, paved roads were built between the

villages on Hatteras Island, and in 1952, “a paved road was

constructed through Hatteras Island to the village of Hatteras.”

J.A. 1910. Exactly when and how the public right-of-way south

of the bridge was established is a matter of dispute discussed

in detail below. But the record reflects that it was not until

1951 that Congress authorized DOI to grant “a permanent easement

for the construction of a public road through . . . the Pea

Island National Wildlife Refuge” to the State of North Carolina.

Act of Oct. 29, 1951, Pub. L. No. 229, 65 Stat. 662. And it was

not until 1954 that DOI formally deeded the easement to North

Carolina.

Unfortunately, both the Bonner Bridge and the road have

suffered from the effects of time, ocean overwash, and erosion.

7
NCDOT has deemed the condition of the Bonner Bridge “poor” and

given it a “sufficiency rating of two out of 100.” J.A. 1256.

The condition of the surface road is no better. In its

narrowest places in the Refuge, Hatteras Island is just one-

quarter mile wide, and even under normal weather conditions,

portions of NC 12 are “threatened by shoreline erosion and

overwash.” J.A. 1256.

Despite moving NC 12 as far west as possible, 1 and

notwithstanding valiant efforts by its civil engineers and road

crews, NCDOT has not been able to ensure the uninterrupted

operation of the highway in recent years. In November 2009, for

example, Tropical Storm Ida rendered NC 12 impassable just north

of Rodanthe. Less than two years later, Hurricane Irene created

two breaches that closed NC 12 from August 2011 until October

2011. And in 2012, Hurricane Sandy “tore up the roadbed,

leveled the dunes, and damaged the sandbags” north of Rodanthe.

DOT struggling with Highway 12 repairs at the S-curves; more

ferries added for holiday, Island Free Press, Nov. 16, 2012,

http://islandfreepress.org/2012Archives/11.16.2012-DOTStruggling

WithHighway12RepairsAtTheScurvesMoreFerriesAddedForHoliday.html.

(saved as ECF opinion attachment).

1
NCDOT has had to seek DOI approval to reconstruct NC 12
west of its original right-of-way and outside the bounds of its
easement.

8
 In light of the impact of storm events such as these,

merely replacing the Bonner Bridge would not achieve the central

purpose of the Project, which is to “[p]rovide a new means of

access from Bodie Island to Hatteras Island for its residents,

businesses, services, and tourists prior to the end of the

Bonner Bridge’s service life.” J.A. 2486. Indeed, as

Defendants’ own NEPA documents have put it: “Building Phase I

[the bridge replacement] alone would not meet the purpose and

need of the project[.]” J.A. 2493. Therefore, the Project now

“also includes NC 12 between the community of Rodanthe and

Oregon Inlet, a section of roadway that is at risk because of

shoreline erosion.” J.A. 2486.

B.

In 1991, NCDOT designated several “hot spots” along NC 12:

areas with a high rate of erosion and a high likelihood of

overwash creating a new inlet. That same year, transportation

officials began to plan for the replacement of the Bonner

Bridge. They completed a feasibility study and selected as

their NEPA preferred alternative 2 the “1993 Parallel Bridge

Corridor.” J.A. 785. This alternative consisted only of a

2
“Preferred alternative” is a NEPA term of art. An agency
must identify its preferred alternative “if one or more exists,
in the draft statement and . . . in the final statement unless
another law prohibits the expression of such a preference.” 40
C.F.R. § 1502.14(e).

9
replacement bridge. In 1993, Defendants completed a Draft

Environmental Impact Study and a Section 4(f) analysis for this

bridge-only preferred alternative.

However, nine years later, in 2002, officials decided “that

the 1993 Parallel Bridge Corridor was no longer a viable Bonner

Bridge replacement alternative,” J.A. 787, due in large part to

the ongoing beach erosion and “increased problems with ocean

overwash along NC 12 south of Bonner Bridge” that often rendered

the highway impassable. J.A. 786. Defendants perceived the

need to “lengthen the project limits . . . . [T]he prevailing

logic being that if those hot spots are impassible, [sic] what

good is the bridge?” J.A. 1787.

Accordingly, Defendants began assessing different

alternatives that addressed both the bridge and certain segments

of NC 12, preparing a Supplemental Draft Environmental Impact

Statement, and performing a new Section 4(f) Evaluation. These

assessments were consolidated into one document that was signed

and released to the public on September 12, 2005 (the “2005

Supplemental Draft Environmental Impact Statement/4(f)

Evaluation”).

The 2005 Supplemental Draft Environmental Impact

Statement/4(f) Evaluation analyzed five alternatives that were

located within two different geographic corridors. The first

corridor was described as the “Pamlico Sound Bridge Corridor,”

10
and the two alternatives within this corridor involved an 18-

mile-long bridge that extended from Bodie Island in the north to

Rodanthe in the south. Both of these alternatives, titled

“Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus”

and “Pamlico Sound Bridge Corridor With Intersection Rodanthe

Terminus,” J.A. 781, avoided almost all of the Refuge and the

Seashore by making a large sweeping curve approximately five

miles west of Hatteras Island into Pamlico Sound before

rejoining existing NC 12 in Rodanthe.

The remaining three alternatives were located within the

“Parallel Bridge Corridor.” J.A. 781–82. These alternatives

all consisted of a replacement bridge that would span the Oregon

Inlet parallel to the existing Bonner Bridge, coupled with a

strategy for keeping “NC 12 open from the community of Rodanthe

to the Oregon Inlet bridge’s southern terminus[.]” J.A. 783.

These alternatives differed in their respective strategies for

keeping NC 12 open on Hatteras Island.

The first alternative—titled “The Nourishment Alternative”—

involved “beach nourishment plus dune enhancement . . . to

maintain a minimally adequate beach and dune system.” J.A. 783.

The protection afforded by the beach and dunes—which would need

to be replenished with dredged sand every few years—would

ostensibly allow NC 12 to remain in place.

11
 The second alternative—titled “Road North/Bridge South”—

involved placing NC 12 “on a bridge west of Hatteras Island

beginning at a new intersection in Rodanthe and continuing to a

point approximately 2 miles . . . north of the Refuge’s southern

boundary where the project would meet existing NC 12.” J.A.

783. After that point, NC 12 would

then remain unchanged for 2.6 miles [and] . . . would
be relocated to a point 230 feet . . . west of the
forecast worst-case 2060 shoreline. This relocation
would continue 7.1 miles . . . north until the
relocated NC 12 would meet the Oregon Inlet bridge.
Three 10-foot-high dunes, totaling 2,100 feet . . .
would be built when needed as the shoreline erodes
towards the relocated road.

J.A. 783.

The final alternative within the Parallel Bridge Corridor

was called the “All Bridge Alternative,” in which “NC 12 would

be constructed on a bridge to the west of the existing road.”

J.A. 783. Notwithstanding its name, the All Bridge Alternative

would also include two surface road segments—one near the Oregon

Inlet and another “just north of the Refuge’s ponds where access

from NC 12 to the Refuge would be provided.” J.A. 783. The

2005 Supplemental Draft Environmental Impact Statement/4(f)

Evaluation explained that although all of the Parallel Bridge

Corridor alternatives were described and addressed “as three

separate alternatives, their components could be mixed and

12
matched geographically along the length of NC 12 to create other

variations.” J.A. 783.

The 2005 Supplemental Draft Environmental Impact

Statement/4(f) Evaluation did not select a preferred

alternative, and Defendants never issued a Final Environmental

Impact Statement. Instead, Defendants issued another supplement

in 2007. They titled this document the “Supplement to the 2005

Supplemental Draft Environmental Impact Statement and Draft

Section 4(f) Evaluation” (the “2007 Supplement”). The 2007

Supplement explains that it was issued to address the

“characteristics and potential direct, indirect, and cumulative

impacts of two additional detailed study alternatives.” J.A.

1091. These two new alternatives were titled: (1) “Parallel

Bridge Corridor With Phased Approach/Rodanthe Bridge;” and (2)

“Parallel Bridge Corridor With Phased Approach/Rodanthe

Nourishment.” J.A. 1096. The 2007 Supplement also explicitly

stated that “[u]nless otherwise noted, information presented in

the 2005 [Supplemental Draft Environmental Impact Statement] has

not changed and is not reproduced in this Supplement.” J.A.

1093.

The 2007 Supplement’s two new alternatives were variations

on a “Phased Approach” to the Project. Both alternatives

included “an Oregon Inlet bridge and elevating portions of NC 12

through the Refuge and northern Rodanthe on new bridges within

13
the existing NC 12 easement.” J.A. 1097. Both alternatives

were proposed to be built in four phases, with the construction

of the new Oregon Inlet bridge as the first phase. The

remaining phases would be constructed “as necessitated by

shoreline erosion.” J.A. 1097.

The only difference between the two new “Phased Approach”

alternatives was the manner in which NC 12 would be protected

from erosion. Under the “Phased Approach/Rodanthe Bridge

Alternative, the [new] bridge in the existing NC 12 easement

would begin in Rodanthe . . . and extend north to Oregon Inlet

except for the 2.1 mile . . . length of NC 12 in the southern

half of the Refuge that would not be threatened by erosion prior

to 2060.” J.A. 1097. “The Phased Approach/Rodanthe Nourishment

Alternative would be similar except the southern end of the NC

12 bridge would begin 0.3 mile . . . south of the

Refuge/Rodanthe border. Beach nourishment would be used to

protect NC 12 in Rodanthe.” J.A. 1097. And like the 2005

Supplemental Draft Environmental Impact Statement, the 2007

Supplement explained that all of the Parallel Bridge

Alternatives “could be mixed and matched geographically along

the length of NC 12 to create other variations.” J.A. 1097.

To review, then, the 2005 Supplemental Draft Environmental

Impact Statement and its 2007 Supplement analyzed in detail

seven alternatives: (1) Pamlico Sound Bridge Corridor With

14
Curved Rodanthe Terminus; (2) Pamlico Sound Bridge Corridor With

Intersection Rodanthe Terminus; (3) Parallel Bridge Corridor

With Nourishment; (4) Parallel Bridge Corridor With Road

North/Bridge South; (5) Parallel Bridge Corridor With All

Bridge; (6) Parallel Bridge Corridor With Phased

Approach/Rodanthe Bridge; and (7) Parallel Bridge Corridor With

Phased Approach/Rodanthe Nourishment.

In 2008, Defendants issued a Final Environmental Impact

Statement (“2008 Final Environmental Impact Statement”) that

analyzed the seven alternatives covered by the 2005 and 2007

documents. The Final Environmental Impact Statement stated that

the preferred alternative was the Parallel Bridge Corridor With

Phased Approach/Rodanthe Bridge. J.A. 1229. The Final

Environmental Impact Statement clearly explained that the

preferred alternative and the other Phased Approach alternative

that was added in the 2007 Supplement—the Parallel Bridge

Corridor With Phased Approach/Rodanthe Nourishment—would remain

“within the existing NC 12 easement.” J.A. 1230. The Final

Environmental Impact Statement noted that Defendants chose the

preferred alternative based on several factors, including: “the

ability of the alternatives considered to meet the project’s

purpose and need; environmental consequences; opportunities

available to mitigate impacts; cost; public and agency comment

[on the 2005 Supplemental Draft Environmental Impact

15
Statement/4(f) Evaluation and the 2007 Supplement]; and other

findings presented in this [Final Environmental Impact

Statement].” J.A. 1231.

But at the end of the comment period, Defendants did not

issue a Record of Decision. 3 Instead, sometime between late 2008

and early 2009, Defendants decided “to revisit” their preferred

alternative “because of consideration and evaluation given to

comments received on the [Final Environmental Impact Statement]

and the Section 4(f) Evaluation included in the [Final

Environmental Impact Statement].” J.A. 1812. Defendants also

claimed to have “obtained additional information, which also

contributed to the re-evaluation” of the preferred alternative.

J.A. 1812. This “additional information” consisted of what

Defendants characterized as “substantial evidence that a public

vehicular thoroughfare existed across the length of the project

area before the Refuge and Seashore were established.” J.A.

3
An agency must “prepare a concise public record of
decision.” 40 C.F.R. § 1505.2. The Record of Decision must
“[s]tate what the decision was[,]” id. § 1505.2(a), “[i]dentify
all alternatives considered . . . specifying the alternative or
alternatives which were considered to be environmentally
preferable[,]” id. § 1505.2(b), and “[s]tate whether all
practicable means to avoid or minimize environmental harm from
the alternative selected have been adopted, and if not, why they
were not[,]” id. § 1505.2(c). Until an agency issues its Record
of Decision, “no action concerning the proposal shall be taken
which would: (1) [h]ave an adverse environmental impact; or (2)
[l]imit the choice of reasonable alternatives” for the project.
Id. § 1506.1(a).

16
1814. Defendants explained that “[t]his new information changes

[the] FHWA analysis required by Section 4(f).” J.A. 1814.

To support their assertions regarding the history of the NC

12 right-of-way, Defendants created a document titled “NC 12

Right-of-Way Timeline.” J.A. 1834–48. In the spring of 2009,

Defendants distributed this document at a meeting with

representatives of state and federal agencies involved in the

Project. The meeting agenda for that day indicates that

Defendants planned to designate the Road North/Bridge South

Alternative as the new Preferred Alternative. 4 J.A. 1811.

During that meeting, a representative from the

Environmental Protection Agency (“EPA”) put forth the idea of

first building the replacement for the Bonner Bridge and then

examining the rest of the Project “in more detail when future

4
The Road North/Bridge South Alternative was first
introduced in the 2005 Supplemental Draft Environmental Impact
Statement/4(f) Evaluation. As discussed ante at 12, it involved
a complicated mix of a new bridge west of Hatteras Island near
Rodanthe, a road both in the existing easement and well into the
Refuge, several dunes, and a new bridge parallel to the Bonner
Bridge. Defendants’ stated reasons for favoring this
alternative in 2009 were (1) improved public access to the
Refuge; (2) consistency with the historic landscape; (3) ability
to mitigate significant impacts on the “wildlife features of the
Refuge;” (4) substantial cost difference; (5) less impact on
waterfowl; and (6) shorter construction timeframe and fewer
construction impacts. J.A. 1821–23.

17
conditions are more known.” J.A. 1886. The EPA representative

characterized this idea as “adaptive management[.]” 5 J.A. 1886.

Not everyone at the meeting was completely on board with

this idea, however. Specifically, Pete Benjamin, a

representative with the U.S. Fish and Wildlife Service stated

that “he was trying to decide if adaptive management was

appropriate for this project” but had reservations regarding

“whether or not [the agencies] could identify in the future a

solution through the Refuge that is legal from the perspective

of all of the agencies involved.” J.A. 1887. He went on to say

that the agencies “need[ed] more than just the ‘hope’ [of

finding] an appropriate future solution.” J.A. 1887. After the

meeting, Mr. Benjamin sent NCDOT a letter explaining that the

information that Defendants presented to the meeting

participants “contained many incorrect statements and findings

5
Adaptive management is “a set of policy tools” directed at
“ensuring the sustainability” of natural resources within
distinct ecosystems. J.B. Ruhl et al., The Practice and Policy
of Environmental Law 140 (2d ed. 2010). It allows agencies to
“‘continually research[], monitor[], and evaluat[e] the
ecological conditions of ecosystems’” and to modify their
efforts to restore those ecosystems based on that research. Id.
(quoting U.S. Gen. Accounting Office, Ecosystem Management,
Additional Actions Needed to Adequately Test a Promising
Approach 49 (1994). Agencies may use adaptive management to
mitigate adverse environmental impacts. See, e.g., Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517
(D.C. Cir. 2010). But adaptive management is not a method
through which agencies can defer decisionmaking about how a
resource will be used. See id. at 505-06, 516.

18
that have the potential to improperly influence decision-making

as the process moves forward.” J.A. 1892. He took issue with

Defendants’ assessments regarding the environmental impact on

the Refuge, and he expressed the belief that “NCDOT cannot

demonstrate that it has a right to move its easement for NC-12

to any other location within the Refuge.” J.A. 1896.

Notwithstanding such reservations, Defendants began to

pursue yet another new multi-phase alternative—one that differed

from the previously studied alternatives. In October 2009, FHWA

released a “Revised Final Section 4(f) Evaluation” (“2009

Section 4(f) Evaluation”). This document provided the public

with its first notice of “the new Preferred Alternative—the

‘Parallel Bridge Corridor with NC 12 Transportation Management

Plan.’” J.A. 1904. Defendants explained it as follows:

This alternative would replace the current [Bonner
Bridge] with a new bridge located to the west of the
existing bridge (Phase I). The replacement bridge
location in the Refuge is limited to the area
necessary to safely construct and tie-in the new
bridge to NC 12. Under the Parallel Bridge Corridor
with NC 12 Transportation Management Plan Alternative,
later phases of actions to manage NC 12 through 2060
would be decided based on actual conditions existing
on Hatteras Island at the point in time that
additional action becomes necessary. These later
phases could consist of, but would not be limited to,
one or more components of any of the alternatives
already studied as part of the environmental review
process[.]”

J.A. 1904-05 (emphasis added).

19
 FHWA also explained that “[b]ased on . . . newly obtained

information,” its determinations regarding the applicability of

Section 4(f) had changed. J.A. 1907. Specifically, FHWA stated

that Section 4(f) applied only to the Pea Island National

Wildlife Refuge “as a historic property[,]” rather than “as a

refuge.” 6 J.A. 1913-14. FHWA based this assertion on evidence

that it claimed “demonstrate[d] that the Federal and State

governments preserved the Hatteras Island area with an

understanding that vehicular passage would be accommodated, and

that the vehicular passage has not been fixed to one location.”

J.A. 1913.

FHWA went on to state that “the history indicates that the

Refuge, transportation facility and existing Bonner Bridge were

concurrently and jointly planned and developed by the Federal

and State governments working together to preserve the land for

6
The distinction between a refuge and a historic property
can be significant. For example, before making a finding of de
minimis impact regarding refuge property, the Secretary must
provide an opportunity for public review and comment. 49 U.S.C.
§ 303(d)(3). There is no similar requirement for historic
sites. 49 U.S.C. § 303(d)(2). See also 23 C.F.R. §
774.5(b)(1)(iii) (imposing no public participation requirement
beyond the minimal encouragement of public involvement included
in the National Historic Preservation Act and 36 C.F.R. §
801.8). Also, refuges are presumed to be significant resources
unless the official with jurisdiction over the property makes an
express determination to the contrary. 23 C.F.R. § 774.11(c).
Historic sites, on the other hand, are considered significant
only if they are included in, or are eligible for, the National
Register of Historic Places. 23 C.F.R. § 774.11(e).

20
wildlife while maintaining a means for safe and efficient

vehicular transportation.” J.A. 1913. The 2009 Section 4(f)

Evaluation explained that “it is FHWA’s revised determination

that Section 4(f) is not applicable to the Refuge (as a refuge),

as the impacts resulting from relocating NC 12 from its current

alignment through the Refuge would not be considered a use as

defined in 23 C.F.R. § 774.17.” J.A. 1913. FHWA concluded that

it “is not required to make a specific Section 4(f) approval for

use prior to approving the project.” J.A. 1913.

On May 7, 2010, Defendants issued an Environmental

Assessment 7 that “identifie[d] and assesse[d] changes that have

occurred since the approval of the Final Environmental Impact

Statement/Final Section 4(f) Evaluation on September 17, 2008.”

J.A. 2151. The Environmental Assessment broadly described the

Project as “the construction of a bridge to replace the Herbert

7
An Environmental Assessment is “a concise public document”
intended to “provide 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)(1); see also Friends of Back Bay v. U.S. Army Corps of
Eng’rs, 681 F.3d 581, 584 (4th Cir. 2012) (noting that an EA is
used “[t]o determine whether a particular action meets the
threshold of significantly affecting environmental quality” such
that an agency is required to complete an Environmental Impact
Statement pursuant to 40 C.F.R. § 1502.3) (internal quotation
marks omitted). An Environmental Assessment is “more limited”
than an Environmental Impact Statement in its analysis of the
potential environmental impacts. Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 757 (2004).

21
C. Bonner Bridge in Dare County, the demolition and removal of

Bonner Bridge, and improvements to NC 12 between the community

of Rodanthe and Oregon Inlet.” J.A. 2151. The Environmental

Assessment was intended to provide the public with notice under

NEPA of “the new Preferred Alternative, eventually titled the

Parallel Bridge Corridor with NC 12 Transportation Management

Plan[.]” J.A. 2178.

In approximately seven short pages of text and three maps,

Defendants explained that the new preferred alternative would

consist of multiple phases. The first phase would be the

construction of a new Oregon Inlet bridge “as soon as possible,”

J.A. 2177, and in a slightly different location from that which

had previously been evaluated. Defendants clarify in their

appellate brief that “the replacement bridge would use the

existing Highway 12 easement.” Appellees’ Br. at 37 (citing

J.A. 2493). The amorphously titled “Later Phases”—also

sometimes referred to as the “NC 12 Transportation Management

Plan”—“would be finalized through commitments made in the Record

of Decision.” J.A. 2182–83.

The Environmental Assessment went on to explain that, with

respect to the “Later Phases,” the “Parallel Bridge Corridor

with NC 12 Transportation Management Plan Alternative

(Preferred) does not specify a particular action at this time on

Hatteras Island beyond the limits of Phase I because of the

22
inherent uncertainty in predicting future conditions within the

dynamic coastal barrier island environment.” J.A. 2182.

Rather, “the alternative addresses the study and selection of

future actions on Hatteras Island . . . through a comprehensive

NC 12 Transportation Management Plan.” J.A. 2182.

The Environmental Assessment does not contain a

“transportation management plan” as that term is typically

understood. 8 Rather, it contains approximately four pages that

describe how the “plan” consists of “a comprehensive coastal

monitoring program,” J.A. 2183, “[e]nvironmental [r]eview for

[f]uture [p]hases,” J.A. 2185, and the “[s]election of [f]uture

[p]hases for [i]mplementation,” J.A. 2185. Defendants’ “plan”

8
The term “transportation management plan” refers to a
comprehensive document that “lays out a set of strategies for
managing the work zone impacts of a project.” Transportation
Management Plan Examples—FHWA Work Zone, http://www.ops.fhwa.
dot.gov/wz/resources/final_rule/tmp_examples.htm. (saved as ECF
opinion attachment). A reasonable reader might expect to find
such a document somewhere in the record, given statements made
in the Record of Decision, such as: “The Transportation
Management Plan will guide the implementation of future phases
of the project through 2060.” J.A. 2497. “The NC 12
Transportation Management Plan . . . provides a detailed plan to
closely monitor the coastal conditions for environmental changes
over the next 50 years along with changes in associated road
maintenance activities.” J.A. 2497–98. “The NC 12
Transportation Management Plan then describes the process for
decision-making regarding the future phase actions.” J.A. 2498.
Some of these statements also appear in the EA. See J.A. 2182–
83.

23
is simply to decide what to do with the remainder of NC 12 on

Hatteras Island at some point in the future. 9

Defendants claimed that “[b]y actively monitoring the

conditions and delaying decisionmaking, the environmental

impacts can be better quantified, minimized, and mitigated.”

J.A. 2182. Defendants also stated that “[t]his process is

somewhat analogous to a tiered NEPA study, in that the entire

end-to-end impacts have been studied but the detailed selection

of a portion of the action is being delayed.” J.A. 2182.

On December 20, 2010, FHWA issued a Record of Decision that

authorized NCDOT to construct, and FHWA to substantially fund,

the Project described in the revised Section 4(f) Evaluation and

the Environmental Assessment. The Record of Decision explains

that the Project “is a mix and match of the Parallel Bridge

Corridor alternatives assessed in the 2008 [Final Environmental

Impact Statement].” J.A. 2488. “It calls for Phase I (Oregon

Inlet bridge) to be built as soon as possible, followed by

construction of later phases whose details would be determined,

9
It seems that Defendants may already be proceeding with
future phases. See J.A. 2682, N.C. Dep’t of Transp., Bonner
Bridge Public Workshops Handout (2011) (“NCDOT has started work
on long-term solutions for [breached locations along N.C. 12 in
northern Rodanthe and the Pea Island National Wildlife Refuge],
which combined are considered Phase II of the Bonner Bridge
Replacement Project.”); see also J.A. 2693 (discussing NCDOT’s
plan to issue contracts for the two breach sites in August and
December 2012).

24
reevaluated, and documented through interagency collaboration as

project area conditions warrant.” J.A. 2488.

The Record of Decision also contains a section that

responds to comments made by government agencies regarding the

new preferred alternative. The Army Corps of Engineers

submitted a comment noting that the Final Environmental Impact

Statement (on which the Environmental Assessment was based)

“would confine future NC 12 maintenance in the Refuge, including

storm-related maintenance, to the existing NC 12 easement, after

the issuance of the Record of Decision for the project.” J.A.

2586–87. Defendants responded as follows:

The proposal in Section 4.6.8.6 of the Final
Environmental Impact Statement to confine future NC 12
maintenance activities within the existing easement
applied only to the Phased Approach Alternatives,
which were developed with the requirement that all
work within the Refuge must be confined within the
existing easement. That requirement does not exist
with the NC 12 Transportation Management Plan.

J.A. 2587 (emphasis added).

Given the foregoing, this Court understands the Project as

follows: Construction of a new two-lane bridge that runs

parallel to the existing Bonner Bridge and uses the existing NC

12 easement, followed by “the study and selection of future

actions on Hatteras Island beyond the limits of Phase I through

a comprehensive NC 12 Transportation Management Plan[,]” J.A.

2497, with the purpose of said Plan being to “guide the

25
implementation of future phases of the project through 2060,”

J.A. 2497, and with future phases not necessarily confined to

the existing NC 12 easement, J.A. 2587.

C.

Plaintiffs sued on July 1, 2011, and the parties filed

cross-motions for summary judgment in July and September of

2012. On September 16, 2013, the district court granted

Defendants’ motion and denied Plaintiffs’ motion. Defenders of

Wildlife v. N.C. Dep’t of Transp., 971 F. Supp. 2d 510, 513

(E.D.N.C. 2013).

1.

Regarding Plaintiffs’ NEPA claim, the district court

explained that Defendants did not violate NEPA by issuing an

“EIS [that] only covers the Bonner Bridge replacement, with

future studies planned for later construction phases along the

NC 12 corridor.” Id. at 526. It also noted that the bridge

project can stand alone “due to concerns as to changing

conditions and weather events impacting the shoreline on

Hatteras Island.” Id. at 524.

To reach this determination, the district court analyzed

whether the Project violated FHWA’s NEPA regulations pertaining

to segmentation, which require that a project have logical

termini and independent utility and not restrict the selection

of future phases. The district court explained that “the

26
factual circumstances surrounding this case are unique[,]” id.

at 525, and that “the northern end of Hatteras Island

constitutes a logical terminus for the Project” due to the

constantly changing conditions on Hatteras Island, id. at 524.

The district court also stated that the Project “is a reasonable

expenditure independent of additional transportation

improvements,” and that the fact “that NC 12 requires

maintenance . . . does not ruin the substantial utility of

replacing a bridge that is reaching the end of its service

life.” Id. at 525–26. Finally, the district court determined

that “no particular action is automatically triggered in later

phases” by the construction of the bridge alone. Id. at 526

(internal quotation marks omitted).

2.

The district court also held that Defendants did not

violate Section 4(f). First, the district court determined that

“FHWA properly relied on the joint planning exception with

respect to the Refuge.” Id. at 534. The district court

concluded that the “[f]ederal and state governments preserved

the Hatteras Island area with an understanding that vehicular

passage would be accommodated, and that the vehicular passage

has not been fixed to one location[.]” Id. In reaching this

determination, the district court relied on the following

evidence: (1) the depiction of an unimproved road through the

27
Refuge on a 1942 Coast Guard map; (2) a 1939 application for a

ferry permit that describes ferry service beginning in 1926; (3)

photos of ferries carrying cars; (4) North Carolina highway maps

from 1944 and 1949; (5) 1938 reports from the manager of the

Refuge that refer to a “public road;” (6) a 1951 U.S. Senate

debate in which North Carolina Senator Willis Smith “asserted

the State’s ownership of the road;” (7) Public Law 229, which,

in 1951, authorized DOI to grant an easement to North Carolina

for a road; (8) a 1954 quitclaim deed granted by North Carolina

to the federal government covering any interest in the land,

with the exception of “a previously granted 100-foot easement;”

and (9) a 100-foot easement granted by DOI to North Carolina in

1954 for construction and maintenance of NC 12. Id. 533–34.

The district court also briefly addressed the substantive

requirements of Section 4(f) and concluded that FHWA had

complied with them. Specifically, the district court determined

that no prudent alternative existed, that the “[selected]

alternative will cause the least overall harm,” and that “FHWA .

. . conducted all possible planning to minimize harm.” Id. at

535.

This appeal followed. Plaintiffs argue that the district

court erred in its determinations regarding: (1) whether

Defendants engaged in improper segmentation in violation of

NEPA; (2) the applicability of the joint planning exception to

28
Section 4(f); and (3) whether Defendants complied with the

substantive requirements of Section 4(f). We turn now to a

description of the law governing these issues.

II.

A.

At the outset, we must correct a major error on which the

district court’s analysis was based: The district erroneously

defined the scope of the Project when it noted that “the current

[Environmental Impact Statement] only covers the Bonner Bridge

replacement, . . . .” Id. at 526. This statement contradicts

the entire record, and in making it, the district court invented

a project that Defendants’ NEPA documents under review expressly

disown. 10

10
Although it acknowledged the existence of future phases,
the district court analyzed the Project as if it consisted of
only the replacement bridge over the Oregon Inlet, and it
concluded that such a Project did not violate NEPA's anti-
segmentation principles. As discussed below, we reject the
district court’s approach because it was based on a project
other than the one described in the record. We note that the
district court’s analysis may have been appropriate if
Plaintiffs had, for example, demonstrated that none of
Defendants’ studied alternatives for NC 12 south of the bridge
could be constructed as a matter of fact. If that were the
case, then the replacement bridge would be required to connect
“logical termini,” 23 C.F.R. § 771.111(f)(1), have “independent
utility,” 23 C.F.R. § 771.111(f)(2), and “[n]ot restrict
consideration of alternatives for other reasonably foreseeable
transportation improvements,” 23 C.F.R. § 771.111(f)(3). We do
not pass upon the correctness of the district court’s illegal
(Continued)
29
 Since at least 2002, Defendants have made plain that the

purpose of the Project is to “[p]rovide a new means of access

from Bodie Island to Hatteras Island for its residents,

businesses, services, and tourists prior to the end of the

Bonner Bridge’s service life.” J.A. 2486. This purpose cannot

be fulfilled by the bridge alone because the entire northern

part of Hatteras Island is occupied by the Seashore and the

Refuge. The bridge is essentially worthless without a means of

conveying motorists from its southern terminus to the Village of

Rodanthe, which is the northernmost point where the residents,

businesses, and services on Hatteras Island are located. See,

e.g., J.A. 2493 (stating in the Record of Decision that

“[b]uilding Phase I alone would not meet the purpose and need of

the project”).

As Defendants stated in their Record of Decision, the

Project “is a mix and match of the Parallel Bridge Corridor

Alternatives assessed in the 2008 [Final Environmental Impact

Statement].” 11 J.A. 2488. According to the Record of Decision,

segmentation analysis because nothing in the record on appeal
indicates that Defendants cannot construct at least one of their
previously studied alternatives.
11
To recap, these five alternatives were titled: (1)
Parallel Bridge Corridor With Nourishment; (2) Parallel Bridge
Corridor With Road North/Bridge South; (3) Parallel Bridge
Corridor With All Bridge; (4) Parallel Bridge Corridor With
(Continued)
30
the Project “calls for Phase I (Oregon Inlet bridge) to be built

as soon as possible, followed by construction of later phases

whose details would be determined, reevaluated, and documented

through interagency collaboration as project area conditions

warrant.” J.A. 2488.

It is true that the Project’s only definite component at

this time is the construction of a “Parallel Bridge” across

Oregon Inlet within the existing easement. Beyond that, the

“plan” is to “delay[] decision-making,” ostensibly “because of

the inherent uncertainty in predicting future conditions within

the dynamic coastal barrier island environment.” J.A. 2497.

Nonetheless, Defendants have clearly committed themselves to

doing something between the southern terminus of the bridge and

Rodanthe—they simply have not (at least publicly) chosen what.

One way to resolve this case would be to remand all of it

to the district court with instructions to fully evaluate the

actual Project that Defendants proposed. However, “[a]n

appellee may defend, and this Court may affirm, the district

Phased Approach/Rodanthe Bridge (Preferred); and (5) Parallel
Bridge Corridor With Phased Approach/Rodanthe Nourishment. The
2008 Final Environmental Impact Statement also included the two
alternatives that consisted of a long bridge in Pamlico Sound:
(1) Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus;
and (2) Pamlico Sound Bridge Corridor With Intersection Rodanthe
Terminus.

31
court’s judgment on any basis supported by the record.” Sloas

v. CSX Transp., Inc., 616 F.3d 380, 388 n.5 (4th Cir. 2010).

Because both parties have adequately briefed and argued the

issues using the properly defined Project, we proceed to our

analyses of the NEPA and Section 4(f) arguments in this case.

B.

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). We review a grant of summary judgment de novo,

Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th

Cir. 2005), taking the facts in the light most favorable to the

non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

255 (1986).

Because the district court’s grant of summary judgment

disposed of cross-motions for summary judgment, “we consider

each motion separately on its own merits to determine whether

either of the parties deserves judgment as a matter of law.”

Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir.

2007) (internal quotation marks omitted). In considering each

motion, we “resolve all factual disputes and any competing,

rational inferences in the light most favorable to the party

opposing that motion.” Rossignol v. Voorhaar, 316 F.3d 516, 523

(4th Cir. 2003) (internal quotation marks omitted).

32
 The Administrative Procedure Act (“APA”) governs our review

of agency actions under NEPA and Section 4(f). See N.C.

Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th

Cir. 2012); Hickory Neighborhood Def. League v. Skinner, 893

F.2d 58, 61 (4th Cir. 1990). A reviewing court may set aside an

agency action that was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law[.]” 5

U.S.C. § 706(2)(A); see Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752, 763 (2004); Marsh v. Or. Natural Res. Council, 490

U.S. 360, 375–76 (1989). “This inquiry must ‘be searching and

careful,’ but ‘the ultimate standard of review is a narrow

one.’” Marsh, 490 U.S. at 378 (quoting Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Our

review is de novo, “without deference to the district court’s

resolution of the issue.” Friends of Back Bay v. Army Corps of

Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012).

III.

A.

The National Environmental Policy Act of 1969, 42 U.S.C. §§

4321–4370f, “establishes a ‘national policy [to] encourage

productive and enjoyable harmony between man and his

environment,’ and was intended to reduce or eliminate

environmental damage and to promote ‘the understanding of the

33
ecological systems and natural resources important to’ the

United States.” Pub. Citizen, 541 U.S. at 756 (2004) (quoting

42 U.S.C. § 4321). All actions undertaken by a federal agency

“with effects that may be major and which are potentially

subject to Federal control and responsibility[,]” and all

“projects and programs entirely or partly financed, assisted,

conducted, regulated, or approved by federal agencies” must

comply with both NEPA and the regulations promulgated by the

Council on Environmental Quality. 12 40 C.F.R. § 1508.18.

NEPA mandates “a set of ‘action-forcing’ procedures that

require that agencies take a ‘hard look’ at environmental

consequences, . . . and that provide for broad dissemination of

relevant environmental information.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation

marks and citation omitted). Because NEPA “does not mandate

particular results, but simply prescribes the necessary

process[,]” it “prohibits uninformed—rather than unwise—agency

12
The Council on Environmental Quality is the executive
agency responsible for promulgating regulations that implement
NEPA. See 42 U.S.C. § 4342; Exec. Order No. 11,991, 42 Fed.
Reg. 26,967 (May 25, 1997). Courts give “substantial deference”
to the Council on Environmental Quality’s regulations. Nat’l
Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th Cir.
2005) (quoting Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)).
Additionally, each federal agency must ensure that it complies
with NEPA, and FHWA has established its own regulations for this
purpose. See 23 C.F.R. § 771.101.

34
action.” Id. at 350–51. “[T]he broad dissemination of

information mandated by NEPA permits the public and other

government agencies to react to the effects of a proposed action

at a meaningful time.” Marsh, 490 U.S. at 371.

Under NEPA, for every “major Federal action[] significantly

affecting the quality of the human environment,” the agency

involved must prepare “a detailed statement” that discloses and

evaluates, among other things, “the environmental impact of the

proposed action,” unavoidable adverse effects of the proposed

action, and “alternatives to the proposed action.” 42 U.S.C. §

4332(2)(C). Every Environmental Impact Statement must “provide

full and fair discussion of significant environmental impacts”

arising from the reasonable alternatives. 40 C.F.R. § 1502.1.

An agency’s comparative evaluation of alternatives to the

proposed action “is the heart of the environmental impact

statement” because it “sharply defin[es] the issues and

provid[es] a clear basis for choice among options by the

decisionmaker and the public.” 40 C.F.R. § 1502.14. Therefore,

agencies must “[r]igorously explore and objectively evaluate all

reasonable alternatives[.]” Id. § 1502.14(a). The assessment

of the environmental impacts is the “scientific and analytic

basis for the comparison[]” of alternatives. 40 C.F.R. §

1502.16. “[A]gencies must measure the indirect and cumulative

environmental effects of proposed actions. . . . Conclusory

35
statements that the indirect and cumulative effects will be

minimal or that such effects are inevitable are insufficient

under NEPA.” N.C. Wildlife Fed’n, 677 F.3d at 602 (citation

omitted).

“NEPA does not require agencies to adopt any particular

internal decisionmaking structure.” Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, 462 U.S. 87, 100 (1983). But NEPA

does require agencies to follow a particular decisionmaking

process. For example, Environmental Assessments and

Environmental Impact Statements must be completed “before

decisions are made and before actions are taken.” 40 C.F.R. §

1500.1(b); see also id. § 1500.1(c) (stating that “the NEPA

process is intended to help public officials make decisions that

are based on understanding of environmental consequences”).

Also, NEPA imposes a continuing obligation on agencies to

consider the environmental impacts of a proposed action, even

after a Final Environmental Impact Statement has been issued.

An agency must issue a supplemental Environmental Impact

Statement if the agency “makes substantial changes in the

proposed action that are relevant to environmental concerns” or

if “[t]here are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i), (ii).

36
 This case implicates the regulations pertaining to illegal

segmentation of the analysis of environmental impacts as well as

those pertaining to the permissible “tiering” of the analysis of

impacts. We discuss each in turn below.

B.

Agencies may not engage “in segmentation, which involves

‘an attempt to circumvent NEPA by breaking up one project into

smaller projects and not studying the overall impacts of the

single overall project.’” Webster v. U.S. Dep’t of Agric., 685

F.3d 411, 426 (4th Cir. 2012) (quoting Coal. on W. Valley

Nuclear Wastes v. Chu, 592 F.3d 306, 311 (2d Cir. 2009)).

Specifically, “[p]roposals or parts of proposals which are

related to each other closely enough to be, in effect, a single

course of action shall be evaluated in a single impact

statement.” 40 C.F.R. § 1502.4(a). Proposed projects are

considered “connected if they: (i) Automatically trigger other

actions which may require environmental impact statements[;]

(ii) Cannot or will not proceed unless other actions are taken

previously or simultaneously[; or] (iii) Are interdependent

parts of a larger action and depend on the larger action for

their justification.” Id. § 1508.25(a)(1). Agencies must also

assess “[c]umulative actions,” and “[s]imilar actions” with

“common timing or geography” in the same impact statement. Id.

§ 1508.25(a)(2)–(3).

37
 FHWA’s anti-segmentation regulations are designed to

“ensure meaningful evaluation of alternatives and to avoid

commitments to transportation improvements before they are fully

evaluated[.]” 23 C.F.R. § 771.111(f). Each action evaluated

must:

(1) Connect logical termini and be of sufficient
length to address environmental matters on a broad
scope;
(2) Have independent utility or independent
significance, i.e., be usable and be a reasonable
expenditure even if no additional transportation
improvements in the area are made; and
(3) Not restrict consideration of alternatives for
other reasonably foreseeable transportation
improvements.

Id. § 771.111(f)(1)-(3).

To evaluate whether a project connects logical termini,

courts look to the purpose and need of the project as stated in

the Environmental Impact Statement. See Indian Lookout Alliance

v. Volpe, 484 F.2d 11, 18 (8th Cir. 1973) (“If the major

objective of a proposal is to connect two cities by expressway,

then these two termini should determine the proper scope of the

[Environmental Impact Statement].”). Additionally, logical

termini are often obvious because of their connection to

“crossroads, population centers, major traffic generators, or

similar highway control elements.” Conservation Law Found. v.

Fed. Highway Admin., 24 F.3d 1465, 1472 (1st Cir. 1994).

38
 The independent utility test also determines whether

related actions or projects must be evaluated in a single

Environmental Impact Statement. Webster, 685 F.3d at 426.

Courts inquire into “whether each project would have taken place

in the other’s absence. . . . If so, [the projects] have

independent utility and are not considered connected actions.”

Id. When determining whether an action has independent utility,

courts consider the benefits and uses that will occur as a

result of that action, even if no other construction is done in

the area. For example, in James River v. Richmond Metropolitan

Authority, this Court upheld a determination that Richmond’s

Downtown Expressway and I-195 had independent utility because

each segment independently allowed traffic to access parts of

the downtown area and other major highways more easily. 359 F.

Supp. 611, 636 (E.D. Va. 1973), aff’d per curiam, 481 F.2d 1280

(4th Cir. 1973). See also Save Barton Creek Ass’n v. Fed.

Highway Admin., 950 F.2d 1129, 1141–42 (5th Cir. 1992) (holding

that one portion of a highway loop had independent utility

because, standing alone, the project alleviated traffic,

improved access to residential, commercial, and recreational

areas, and connected to major roadways).

C.

By contrast, a tiered or multiphase NEPA analysis may be

appropriate for agencies that are “contemplating large or

39
complex projects.” Shenandoah Valley Network v. Capka, 669 F.3d

194, 196 (4th Cir. 2012). In fact, “[a]gencies are encouraged

to tier their environmental impact statements to eliminate

repetitive discussions of the same issues and to focus on the

actual issues ripe for decision at each level of environmental

review . . . .” 40 C.F.R. § 1502.20.

A properly tiered analysis consists of “a broad

environmental impact statement” followed by “a subsequent

statement or environmental assessment . . . on an action

included within” the program or policy contemplated in the broad

statement. 40 C.F.R. § 1502.20 (emphasis added). The

subsequent statement “shall concentrate on the issues specific

to the subsequent action[,]” and it “need only summarize the

issues discussed in the broader statement[.]” Id.

Tiering may never be used to “avoid consideration of

reasonable alternatives by making a binding site-specific

decision at the programmatic stage without analysis, deferring

consideration of site-specific issues to a [subsequent

Supplemental Environmental Impact Statement].” ‘Ilio‘ulaokalani

Coal. v. Rumsfeld, 464 F.3d 1083, 1101 (9th Cir. 2006). And the

dividing line between illegal segmentation and permissible

tiering is an agency’s proposal “to make an irreversible and

irretrievable commitment of the availability of resources to a

project at a particular site.” California v. Block, 690 F.2d

40
753, 761 (9th Cir. 1982) (internal quotation marks omitted); see

also 42 U.S.C. § 4332(2)(C)(v).

D.

When reviewing a NEPA decision, a court “must not reduce

itself to a ‘rubber-stamp’ of agency action.” N.C. Wildlife

Fed’n, 677 F.3d at 601 (quoting Fed. Mar. Comm’n v. Seatrain

Lines, Inc., 411 U.S. 726, 746 (1973)). Rather, we must ensure

that the agency has “‘examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action.’” FCC

v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)

(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency’s

decision is arbitrary and capricious if the agency

relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.

State Farm, 463 U.S. at 43.

We may not substitute our “judgment for that of the

agency.” Fox Television Stations, 556 U.S. at 513 (internal

quotation marks omitted). “[O]ur task is to ensure that [the

agency] took a hard look at the environmental consequences of

the proposed action.” Webster, 685 F.3d at 421 (internal

quotation marks omitted). Consequently, “we ‘may not flyspeck

41
[the] agency’s environmental analysis, looking for any

deficiency, no matter how minor.’” Id. (quoting Nat’l Audubon

Soc’y, 422 F.3d at 186 (alteration in original) (internal

quotation marks omitted)). Nor may we seize on any “trivial

inadequacy in an [Environmental Impact Statement] as a reason to

reject an agency decision[.]” Nat’l Audubon Soc’y, 422 F.3d at

186. Our “totality of the circumstances approach means that

[we] must view deficiencies in one portion of an [Environmental

Impact Statement] in light of how they affect the entire

analysis.” Id.

E.

Plaintiffs argue that “Defendants violated the basic

principles of NEPA and engaged in illegal ‘segmentation’ by

issuing a [Record of Decision] that disclosed only one initial

segment of the Selected Alternative—a segment that will commit

them to significant future construction of a road and bridges

through a National Wildlife Refuge—while failing to disclose any

specific plans for that construction.” Appellants’ Br. at 20.

Defendants counter that “[n]othing in NEPA requires an

agency to authorize all phases of a proposed action evaluated in

an [Environmental Impact Statement] at the time it issues a

[Record of Decision].” Appellees’ Br. at 29. They maintain

that “the agencies have fully analyzed the entire project in an

[Environmental Impact Statement] and [Environmental

42
Assessment,]” by conducting “a full end-to-end study of

alternatives and associated impacts for the entire length of the

project, from the northern limit on Bodie Island to the southern

limit in the [V]illage of Rodanthe” and have thus not engaged in

segmentation. Appellees’ Br. at 29–30.

Illegal segmentation is distinct from approving only a

portion of a project that has been fully and adequately studied.

We agree with the Eleventh Circuit that NEPA does not require an

agency to “authorize all stages of a project in one [Record of

Decision].” Defenders of Wildlife v. U.S. Dep’t of the Navy,

733 F.3d 1106, 1116 (11th Cir. 2013). Nothing in NEPA prohibits

Defendants from authorizing only one part of the Project so long

as doing so does not commit them to a course of action that has

not been fully analyzed. To be sure, Defendants’ Record of

Decision does commit resources to the Project, and we perceive

no reason why Defendants cannot analyze the entire Project “in a

single impact statement.” 40 C.F.R. § 1502.4(a). But they are

not required to approve the entire Project in a single Record of

Decision so long as their NEPA documents adequately analyze and

disclose the impacts of the entire Project—including those

portions that have yet to be approved.

The parties agree that the studied alternatives are

feasible, i.e., that, as a matter of sound engineering judgment,

they can be built. And the record shows that Defendants have

43
adequately analyzed the impacts associated with the five

Parallel Bridge Corridor alternatives that could be implemented

to complete the Project: (1) Parallel Bridge Corridor With

Nourishment; (2) Parallel Bridge Corridor With Road North/Bridge

South; (3) Parallel Bridge Corridor With All Bridge; (4)

Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge

(Preferred); and (5) Parallel Bridge Corridor With Phased

Approach/Rodanthe Nourishment. Indeed, at oral arguments, even

Plaintiffs acknowledged that if Defendants had issued a Record

of Decision that committed to any one—or any combination—of

those alternatives, that action likely would have complied with

NEPA’s procedural requirements.

Accordingly, at least with respect to the previously

studied alternatives, Defendants have neither attempted to

“circumvent[] NEPA” nor refused to study “the overall impacts of

the single overall project.” Webster, 685 F.3d at 426 (internal

quotation marks omitted). Rather, they have conducted a full,

site-specific analysis. Thus, their decision to implement the

Project one phase at a time does not violate NEPA.

Plaintiffs press that the Record of Decision seems to

authorize the construction of future phases that have not yet

been analyzed and disclosed to the public. And certain aspects

of the record lend support to that position.

44
 For example, the Record of Decision seems to anticipate the

possibility of “a separate NEPA process” that will take place

when Defendants finally decide what to do with the rest of NC

12. J.A. 2500. And the Revised Section 4(f) evaluation seems

to indicate that Defendants are contemplating the construction

of something that has not previously been studied or disclosed:

Under the Parallel Bridge Corridor with NC 12
Transportation Management Plan Alternative, later
phases of actions to manage NC 12 through 2060 would
be decided based on actual conditions existing on
Hatteras Island at the point in time that additional
action becomes necessary. These later phases could
consist of, but would not be limited to, one or more
components of any of the alternatives already studied
as part of the environmental review process . . . .

J.A. 1905 (emphasis added).

Although it is possible to read such statements as

Defendants’ attempts to commit to or authorize something outside

the scope of what their NEPA documents have analyzed and

disclosed, that is not how we view these isolated statements

made in the context of hundreds of pages of analysis. And

notwithstanding that the NC 12 Transportation Management Plan is

really nothing more than a plan to make a plan for the remainder

of NC 12, the public is clearly on notice that Defendants intend

to pursue the five studied alternatives that pass through

Hatteras Island and the Refuge—not the two alternatives that

avoid Hatteras Island altogether via construction of a bridge in

Pamlico Sound. And because Defendants have fully analyzed and

45
disclosed the environmental impacts associated with these five

legitimate alternatives, Defendants have complied with NEPA with

regard to all five.

Moreover, NEPA obligates agencies to continue to review the

environmental consequences of their actions, and we think it is

best to read Defendants’ statements that allude to a separate

NEPA process simply as an acknowledgement of this requirement.

If, for example, Defendants wait too long to implement the

future phases of the Project, conditions on Hatteras Island

could change so much that the current Environmental Impact

Statement no longer covers the alternatives that they studied.

If conditions change to such an extent, Defendants must issue a

supplemental Environmental Impact Statement prior to taking any

other action. 40 C.F.R. § 1502.9(c)(1)(i), (ii). Defendants’

statements in their Environmental Assessment and Record of

Decision that seem to anticipate changing conditions cannot and

do not shield them from NEPA’s procedural requirements.

In sum, Defendants have not violated NEPA by engaging in

unlawful segmentation with respect to the five studied parallel

bridge alternatives. We thus affirm the district court’s grant

of summary judgment on the NEPA issue. Our opinion may not,

however, be construed as an authorization to proceed outside the

scope of the previously studied alternatives, and Defendants’

doing so would almost surely violate NEPA.

46
 IV.

A.

Unlike NEPA, which “prohibits uninformed—rather than

unwise—agency action[,]” Robertson, 490 U.S. at 351, Section

4(f) of the Department of Transportation Act of 1966, 49 U.S.C.

§ 303, imposes substantive restraints on an agency’s action. 13

Under Section 4(f), the Secretary of Transportation

(“Secretary”) is permitted to approve a transportation project

that requires the

use of publicly owned land of a public park,
recreation area, or wildlife and waterfowl refuge . .
. or land of an historic site . . . only if . . .
there is no prudent and feasible alternative to using
that land; and . . . the program or project includes
all possible planning to minimize harm to the
[publicly owned land] resulting from the use[.]

49 U.S.C. § 303(c).

In other words, Section 4(f) property “may not be put to

non-park uses unless there is no feasible and prudent

alternative to the non-park use of the land.” Coal. for

Responsible Reg’l Dev. v. Brinegar, 518 F.2d 522, 525 (4th Cir.

13
The term “Section 4(f)” refers to this provision’s
original location in the Department of Transportation Act of
1966. Pub. L. No. 89-670, 80 Stat. 931 (1966). The text of
Section 4(f) has now been codified at both 23 U.S.C. § 138 and
49 U.S.C. § 303. The name “Section 4(f)” is no longer
indicative of the provision’s location, but the term is so
widely recognized that it continues to be used to avoid
“needless confusion.” 23 C.F.R. 771.107(e) n.2 (2013).

47
1975). 14 Further, the Secretary may approve a transportation

project that uses Section 4(f) property only if “the program or

project includes all possible planning to minimize harm to

the . . . wildlife and waterfowl refuge[.]” 49 U.S.C. §

303(c)(2).

The Secretary must perform a Section 4(f) evaluation and

comply with that provision’s other substantive requirements

before approving any use of Section 4(f) property. The same is

not required, however, if the “joint planning exception”

applies. Under the joint planning exception,

[w]hen a property is formally reserved for a future
transportation facility before or at the same time a
[Section 4(f) property] is established and concurrent
or joint planning or development of the transportation
facility and the Section 4(f) resource occurs,
then any resulting impacts of the transportation
facility will not be considered a use as defined in §
774.17.

23 C.F.R. § 774.11(i). In other words, for a transportation

facility that uses Section 4(f) property to escape the

substantive requirements of Section 4(f), two conditions must be

met. First, the property for the transportation facility must

14
The term “Section 4(f) property” refers to “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[.]” 23 C.F.R. § 774.17. A “‘use’ of Section 4(f)
property occurs[,]” among other things, “[w]hen land is
permanently incorporated into a transportation facility[.]” 23
C.F.R. § 774.17.

48
be “formally reserved . . . before or at the same time” as the

establishment of the Section 4(f) property. Id. Second, the

transportation facility and the Section 4(f) property must be

concurrently or jointly planned or developed. Id.

If Section 4(f) property will be used and no exception

applies, the Secretary must show that the project includes “all

possible planning to minimize harm” to the Section 4(f) property

and that “no prudent and feasible” alternatives are available.

49 U.S.C. § 303(c)(1)-(2).

The “all possible planning” prong of the analysis cannot be

met until a project’s design is complete. See D.C. Fed’n of

Civic Ass’ns v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir. 1971). If

all possible planning to minimize harm to the Section 4(f)

property has not been completed before the Secretary’s approval

of the project, the Section 4(f) evaluation is invalid because,

“[a]bsent a finalized plan . . ., it is hard to see how the

Department could make a meaningful evaluation of ‘harm.’” Id.

The Secretary must also find that there is “no prudent and

feasible alternative” to using the Section 4(f) property. 49

U.S.C. § 303(c)(1). An alternative is infeasible only when it

“cannot be built as a matter of sound engineering judgment.” 23

C.F.R. § 774.17(2); see also Overton Park, 401 U.S. at 411.

To find an alternative to using Section 4(f) property

imprudent, the Secretary must determine that the impacts or

49
adverse effects associated with that alternative are

extraordinary or unique. See id. at 413. The Secretary’s

regulations explain that an alternative is imprudent if:

(i) It compromises the project to a degree that it is
unreasonable to proceed with the project in light of
its stated purpose and need;
(ii) It results in unacceptable safety or operational
problems;
(iii) After reasonable mitigation, it still causes:
(A) Severe social, economic, or environmental
impacts;
(B) Severe disruption to established communities;
(C) Severe disproportionate impacts to minority
or low income populations; or
(D) Severe impacts to environmental resources
protected under other Federal statutes;
(iv) It results in additional construction,
maintenance, or operational costs of an extraordinary
magnitude;
(v) It causes other unique problems or unusual
factors; or
(vi) It involves multiple factors . . . that while
individually minor, cumulatively cause unique problems
or impacts of extraordinary magnitude.

23 C.F.R. § 774.17(3)(i)-(vi).

Imprudence may not provide cover for using Section 4(f)

land “unless ‘there [are] truly unusual factors present in a

particular case or the cost or community disruption resulting

from alternative routes reach[] extraordinary magnitudes.’”

Hickory Neighborhood Def. League, 893 F.2d at 61 (quoting

Overton Park, 401 U.S. at 413). See also, Monroe Cnty.

Conservation Council, 472 F.2d at 700 (“[A] road must not take

parkland, unless a prudent person, concerned with the quality of

the human environment, is convinced that there is no way to

50
avoid doing so.” (footnote omitted)). And a state may not use

“self-imposed restrictions” on financing mechanisms to render an

alternative imprudent. Coal. for Responsible Reg’l Dev., 518

F.2d at 526.

The Secretary’s Section 4(f) evaluation of the entire

project must be completed before the Record of Decision is

issued and before work on the project begins. Corridor H

Alternatives, Inc. v. Slater, 166 F.3d 368, 373 (D.C. Cir.

1999); see also 23 C.F.R. § 774.9(a) (“The potential use of land

from a Section 4(f) property shall be evaluated as early as

practicable . . . when alternatives to the proposed action are

under study.”).

Further, the Secretary may not reduce the number of prudent

and feasible alternatives that are available by fragmenting the

evaluation and approval of a single project into separate parts.

Instead, the Secretary must evaluate each project as a whole,

not “phase-by-phase.” N. Idaho Cmty. Action Network v. U.S.

Dep’t of Transp., 545 F.3d 1147, 1159 (9th Cir. 2008). The

Secretary’s determination that there are no feasible and prudent

alternatives must “include sufficient supporting documentation

to demonstrate why there is no feasible and prudent avoidance

alternative and shall summarize the results of all possible

planning[.]” 23 C.F.R. § 774.7(a).

51
 If there are no feasible and prudent alternatives to using

Section 4(f) property, the Secretary may select only the

alternative that “[c]auses the least overall harm in light of

[Section 4(f)’s] preservation purpose.” 23 C.F.R. §

774.3(c)(1). This determination involves balancing several

factors, including: (1) the “ability to mitigate adverse

impacts”; (2) the relative severity of the harm after

mitigation; (3) the relative significance of the Section 4(f)

property; (4) the “views of the official(s) with jurisdiction

over each Section 4(f) property;” (5) the “degree to which each

alternative meets the purpose and need for the project;” (6)

“[a]fter reasonable mitigation, the magnitude of any adverse

impacts to resources not protected by Section 4(f);” and (7)

“[s]ubstantial differences in costs among the alternatives.” 23

C.F.R. § 774.3(c)(1)(i)–(vii).

B.

In reviewing an agency’s Section 4(f) determination, we

must conduct a “thorough, probing, indepth review” to ensure

that the Secretary’s determination complies with Section 4(f)’s

requirements. Monroe Cnty. Conservation Council, 472 F.2d at

700 (internal quotation marks omitted). First, we consider

whether the Secretary acted within the scope of his or her

authority when conducting the Section 4(f) evaluation. Overton

Park, 401 U.S. at 415. This requires examining whether the

52
Secretary could have reasonably believed that no feasible and

prudent alternatives to using Section 4(f) property existed.

Id. at 416. Second, the reviewing court must consider whether

the Secretary’s choice to use Section 4(f) property was

“‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’” Id. (quoting Administrative

Procedure Act, 5 U.S.C. § 706(2)(A) (1964)). This determination

requires us to review whether the Secretary’s “decision was

based on a consideration of the relevant factors” and whether

the factors actually support the Secretary’s determination.

Hickory Neighborhood Def. League, 893 F.2d at 61-62 (internal

quotation marks omitted). Finally, we must also determine

whether the Secretary followed all procedural requirements.

Overton Park, 401 U.S. at 417.

C.

1.

Plaintiffs contend that the district court erroneously

applied the joint planning exception to the Project. They argue

that when the Refuge was created, NC 12 had not yet been

formally reserved and that it was not jointly or concurrently

planned.

Because the joint planning exception applies only when a

transportation facility is “formally reserved . . . before or at

the same time,” as a Section 4(f) property, 23 C.F.R. §

53
774.11(i), the only relevant evidence is that which sheds light

on the status of NC 12 on or before April 12, 1938, the date of

the executive order establishing the Refuge. Yet some of the

evidence on which the district court relied in deeming the joint

planning exception applicable—the 1942 Coast Guard map, the

North Carolina highway maps from 1944 and 1949, the 1951 Senate

debate, the public law from 1951 authorizing DOI to grant an

easement to North Carolina, the 1954 quitclaim deed, and the

1954 easement—prove nothing about the status of NC 12 when the

Refuge was established. In other words, this evidence is wholly

insufficient to support the application of the joint planning

exception here.

All we are left with, then, is a 1939 application for a

ferry permit that describes ferry service beginning in 1926,

photos of ferries carrying cars, and some 1938 reports from the

Refuge’s manager that refer to a “public road.” None of this

evidence demonstrates that NC 12 had been formally reserved as

of April 12, 1938. At best, it shows that cars were crossing

Oregon Inlet and perhaps driving on a “public road” sometime in

1938.

Moreover, formal reservation “before or at the same time,”

alone, even if it had been shown—and it was not—cannot support

the application of the joint planning exception. Instead, the

evidence must also show that “concurrent or joint planning or

54
development” of NC 12 and the Refuge occurred. Id. But the

evidence in the record here shows no such thing. Indeed, the

only evidence that pertains to the planning of NC 12 is the 1951

public law authorizing DOI to grant an easement to North

Carolina, North Carolina’s 1954 quitclaim deed, and DOI’s 1954

easement. Because these substantially postdate the

establishment of the Refuge, they cannot possibly show

“concurrent or joint planning or development” of NC 12 and the

Refuge.

Having sifted through the remainder of the record, we find

nothing on which we could affirm the district court’s

application of the joint planning exception. In other words,

Defendants have fallen far short of demonstrating that there is

“no genuine dispute as to any material fact” that would entitle

them to summary judgment on this issue. Fed. R. Civ. P. 56(a).

That being said, it is possible that a careful reading of

the condemnation proceedings used by the United States to

acquire the Refuge contain something indicating that NC 12 was

formally reserved and concurrently or jointly planned at the

same time that the Refuge was established. But that will

require an odyssey into the facts of the condemnation

proceedings and pertinent North Carolina property law that we

refuse to undertake in the first instance.

55
 Accordingly, we reverse the district court’s application of

the joint planning exception and remand the issue for further

proceedings consistent with the detailed instructions in this

opinion’s conclusion.

2.

Despite the fact that the district court determined that

the joint planning exception applied and that the Project was

therefore not subject to Section 4(f)’s substantive

requirements, the district court nevertheless analyzed whether

Section 4(f)’s substantive requirements had been met. Because a

Section 4(f) analysis is irrelevant if the joint planning

exception applies, we will not engage in such an inquiry here.

Of course, should the district court determine that the joint

planning exception is inapplicable, it must examine the record

to determine whether FHWA complied with the substance of Section

4(f).

V.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment regarding Plaintiffs’ NEPA challenge,

and we reverse the district court’s grant of summary judgment

regarding Plaintiffs’ Section 4(f) challenge.

We remand this case for further proceedings in accordance

with this opinion. Specifically, the district court must

56
examine the record to determine whether Section 4(f)’s joint

planning exception applies. The only evidence relevant to this

inquiry is that which pertains to the status of NC 12 when the

Refuge was established. The district court may not apply the

joint planning exception unless it determines that NC 12 was

both formally reserved before or at the same time that the

Refuge was established and jointly planned or developed with the

Refuge.

Should the district court conclude that the joint planning

exception does not apply, it must then determine whether FHWA

has complied with the substantive requirements of Section 4(f).

The district court must determine whether FHWA conducted “all

possible planning to minimize harm” to the Refuge, and it must

determine whether FHWA acted in an arbitrary and capricious

manner when it determined that no prudent and feasible

alternative to the use of Refuge property for the Project

existed. 15 Finally, if the district court determines that FHWA’s

determination regarding the lack of prudent and feasible

alternatives was not arbitrary and capricious, it must determine

15
We note that the district court may need to consider
whether Defendants’ compliance with Section 4(f) can be fully
determined before Defendants have committed to and disclosed the
particulars of the future phases.

57
whether FHWA has selected the alternative that causes the least

overall harm to the Refuge.

To the extent the district court previously analyzed the

substantive requirements of Section 4(f), we expressly vacate

that analysis and instruct the district court to follow the

legal framework set forth in this opinion, make the

determinations enumerated above, and engage in the requisite

“thorough, probing, indepth review” to ensure that the

Secretary’s determination complies with Section 4(f)’s

requirements. Monroe Cnty. Conservation Council, 472 F.2d at

700.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

58