Citizens for Smart Growth v. Secretary of the Department of Transportation

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11056 FEB 6, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:07-cv-14122-JEM

CITIZENS FOR SMART GROWTH,
a Florida Non Profit Corporation,
ODIAS SMITH,
an individual,
KATHIE SMITH,
an individual,

llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,

versus

SECRETARY of the DEPARTMENT OF TRANSPORTATION,
J RICHARD CAPKA,
ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION,
DIVISION ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION, FLORIDA DIVISION,
FLORIDA DEPARTMENT OF TRANSPORTATION,
SECRETARY STEPHANIE C. KOPELOUSOS,

llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
 ________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(February 6, 2012)

Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.

WILSON, Circuit Judge:

This appeal concerns the actions and decisions of the Federal Highway

Administration (“FHWA”) and the Secretary of the Florida Department of

Transportation (“FDOT”) during the planning and development of the Indian

Street Bridge Project in Martin County, Florida. Appellants Odias Smith, Katie

Smith, and Citizens for Smart Growth (collectively, “Citizens”) brought suit under

the Administrative Procedure Act, 5 U.S.C. §§ 701–706, alleging that FHWA and

FDOT violated both the National Environmental Protection Act of 1969

(“NEPA”), 42 U.S.C. §§ 4321–4347, and Section 4(f) of the Department of

Transportation Act (“Section 4(f)”), 49 U.S.C. § 303, during development of the

project. Citizens also requested an injunction to stop construction of the bridge.

The district court granted summary judgment in favor of FHWA and FDOT and

*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.

2
denied the injunction. After review of the extensive 10,000-page administrative

record in this case, we affirm the district court.

I. Background

In 1998, FDOT began the planning and decision process that led up to the

construction of the Indian Street Bridge in Martin County. Responding to Martin

County’s desire for an additional crossing of the St. Lucie River for traffic relief

and evacuation purposes, FDOT began investigating possible improvements to the

State Road 714 corridor. FDOT presented the findings of this investigation in the

Feasibility Study Report (“Feasibility Study”) of 1998. The Feasibility Study

considered one corridor—the existing four-lane Palm City Bridge on State Road

714—and evaluated three alternatives within this corridor: a No-Build Alternative,

a Six-Lane Alternative, and an Eight-Lane Alternative. The study concluded that

widening the bridge would require taking Section 4(f) properties, possibly exceed

noise maximums, potentially negatively impact the environment, and possibly

affect Superfund sites along the corridor. Additionally, only the Eight-Lane

option provided the level of service required in design year 2026, but this option

was barred by FDOT policy regarding lane maximums on state highways. The

Feasibility Study concluded that the No-Build Alternative was the “best”

3
alternative of those examined but recommended that other alternatives (including

an additional bridge crossing) be considered to address the traffic concerns.

FDOT then prepared the New Bridge Crossing Alternative Corridor Report

(“Corridor Report”), released in March 2001. The Corridor Report examined

seven potential corridors for a river crossing and one tunnel alternative and

evaluated each option on the basis of cost, traffic service levels, engineering

factors, environmental impacts (noise, air quality, wetlands impact, endangered

species impact, and potential contamination), and socio-economic factors (public

opinion, Section 4(f) impacts, future development, sustainability, and community

cohesion). As part of this analysis, the Corridor Report also took into account that

the Martin County Metropolitan Planning Organization had unanimously endorsed

the Indian Street Corridor and voted to prohibit widening State Road 714. The

Corridor Report concluded that Corridor Three, the Indian Street Crossing, was

the best alternative because it had scored highest on the evaluation matrix.

Following the completion of the Corridor Report, the FHWA prepared a

Draft Environmental Impact Statement (“EIS”) as required by NEPA; distributed it

to federal, state, and local agencies for notice and comment; and published it in the

Federal Register. Citizens submitted an alternative (“Citizens’s Alternative”)

during this comment period, proposing a combination of traffic management

4
mechanisms and road improvements rather than construction of a new bridge.

Appellees analyzed Citizens’s Alternative, but they ultimately rejected it because

it did not provide another corridor across the river—desirable for emergencies and

evacuations—or reduce traffic to the extent desired. On July 6, 2006, FHWA

issued the Final EIS (“FEIS”), which incorporated by reference the findings of the

Feasibility Study and the Corridor Report. On October 19, 2006, FHWA signed a

Record of Decision (“ROD”), responding to the comments to the FEIS and

approving the project. The Feasibility Study, Corridor Report, FEIS, and ROD

were made available to the public.

Citizens filed suit on April 20, 2007, alleging that Appellees violated NEPA

and Section 4(f) in their development of the Indian Street Bridge Project. On

October 1, 2009, Citizens’s motion for a preliminary injunction was denied. Both

parties moved for summary judgment, and on April 30, 2010, the district court

granted summary judgment in favor of FHWA and FDOT and denied the motion

for an injunction. All other pending motions were dismissed. The project

received funding from the American Reinvestment and Recovery Act on February

9, 2010, and construction of the bridge is now underway.

II. Jurisdiction

5
 This suit was brought under the Administrative Procedure Act (“APA”),

which provides for judicial review of federal agency actions and allows federal

courts to enjoin authorities of the United States government. See 5 U.S.C. §§ 701,

702. Citizens seeks only injunctive relief against the Secretary of FDOT. The

Secretary argues that this court lacks jurisdiction to enjoin a state official in an

action based on the APA because FDOT is not a federal agency.

Our jurisdiction over a state official in an action like this one is a complex

legal question and presents an issue of first impression in this circuit. Other

circuits that have addressed this question have focused on whether a highway

project constitutes a major federal action or whether the state and federal projects

are sufficiently interrelated. Sw. Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 243

F.3d 270, 277 (6th Cir. 2001) (“If we conclude that the highway corridor

constitutes a ‘major federal action,’ then we have the authority to instruct the

district court to enjoin the state from further construction on the highway.”); Fund

for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir. 1992) (“Nonfederal

defendants may be enjoined if federal and state projects are sufficiently

interrelated to constitute a single federal action for NEPA purposes.” (quotation

marks omitted)).

6
 While we agree with the Secretary of FDOT that the APA does not apply to

state agencies, we decide that jurisdiction over the Secretary may be exercised in

the circumstances of this case. The Secretary admits that “FDOT’s substantial role

is well documented in the Administrative Record.” And, the Secretary calls FDOT

a “party working in tandem with federal agencies.” Given these circumstances,

and the fact that the plaintiffs have only sought injunctive relief against the

Secretary, we find the district court properly exercised its jurisdiction over the

Secretary in this case.1

III. Standard of Review

We review a grant of summary judgment de novo and apply the same legal

standards as the district court. See Wilderness Watch & Pub. Emps. for Envtl.

Responsibility v. Mainella, 375 F.3d 1085, 1087–88 (11th Cir. 2004). When

confronted with claims brought under the APA, we may only set aside agency

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). This standard is “exceedingly

deferential.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008).

1
We question whether it would even be necessary for the Secretary to be a party to this
case in order for an injunction to bind the Secretary. See Fed. R. Civ. P. 65(d)(2)(A), (C) (stating
that an order granting an injunction binds the parties and “other persons who are in active concert
or participation” with the parties provided they have actual notice).

7
 To determine whether an agency decision was arbitrary and
capricious, the reviewing court must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment. This
inquiry must be searching and careful, but the ultimate standard
of review is a narrow one. Along the standard of review
continuum, the arbitrary and capricious standard gives an
appellate court the least latitude in finding grounds for
reversal; administrative decisions should be set aside in this
context only for substantial procedural or substantive reasons
as mandated by statute, not simply because the court is
unhappy with the result reached.

Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541–42 (11th Cir. 1996) (quotation

marks and ellipses omitted).

IV. NEPA

The National Environmental Protection Act sets forth review procedures

that federal agencies must engage in before taking any “major” actions. 42 U.S.C.

§ 4332. Section 102(2)(C) of NEPA requires that to evaluate the proposed action

an agency must prepare an EIS that includes “a detailed statement of (i) the

environmental impact of the proposed action, (ii) any adverse environmental

effects which cannot be avoided should the proposal be implemented, (iii)

alternatives to the proposed action, (iv) the relationship between local short-term

uses of man’s environment and the maintenance and enhancement of long-term

productivity, and (v) any irreversible and irretrievable commitments of resources

8
which would be involved in the proposed action should it be implemented.”

Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th

Cir. 1985) (citing 42 U.S.C. § 4332(2)(C)). The requirements of NEPA are purely

procedural and do not mandate any specific outcome; agencies may make a

decision that preferences other factors over environmental concerns as long as

they have first adequately identified and analyzed the environmental impacts. Van

Antwerp, 526 F.3d at 1361. A court reviewing NEPA compliance may only ask

whether the agency took a “hard look” at environmental consequences. Druid

Hills, 772 F.2d at 709. A challenging party has the burden of showing by a

preponderance of the evidence that the agency did not comply with NEPA’s

procedures. Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974).

A. Incorporation of Local Planning Documents

Citizens argues that it was improper of FHWA to rely upon FDOT’s

Feasibility Study and Corridor Report when preparing the FEIS. However, circuit

precedent holds that incorporation of local planning documents is permissible and

that references to such documents can satisfy the requirements of NEPA. See

Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 438 (5th Cir. Unit

B Feb. 1981) (“The reference to the [regional planning document] contained in the

. . . EISs was sufficient to satisfy the procedural and substantive requirements of

9
NEPA.”).2 Furthermore, the Council on Environmental Quality Guidelines

instruct that “[a]gencies shall incorporate material into an environmental impact

statement by reference,” 40 C.F.R. § 1502.21 (emphasis added), and encourage

joint federal and local action, see 40 C.F.R. § 1502.5(b).

Citizens also contends that use of the local planning documents was

impermissible because FHWA failed to participate in the preparation of the

documents. In support of its position, Citizens points to 23 C.F.R.

§ 771.109(c)(5), which states that a local agency “may prepare the EIS and other

environmental review documents with the Administration furnishing guidance,

participating in the preparation, and independently evaluating the document.”

However, the Feasibility Study and the Corridor Report are not NEPA

environmental review documents; they are support documents that were

referenced in an environmental review document: the FEIS. See 23 C.F.R.

§ 771.111(a)(2). “Publicly available documents . . . produced by, or in support of,

the transportation planning process . . . may be incorporated directly or by

reference into subsequent NEPA documents” and require review by the FHWA

2
In Piedmont Heights, the court explained that because the regional planning documents
“were readily available to the public,” the agency was “not required to reiterate facts and figures”
already made public. 637 F.2d at 438. Following this reasoning, because Appellees made the
Feasibility Study and Corridor Report available to the public, they were able to satisfy their
NEPA obligations by incorporating those documents by reference rather than republishing the
already-public information.

10
only “as appropriate.” 23 § C.F.R. 450.212(b). We find no error in FHWA’s

incorporation of the local planning documents in the FEIS.

B. Purpose and Need Statement

Citizens contends that FHWA adopted an impermissibly narrow Purpose

and Need Statement that foreclosed consideration of a sufficiently wide array of

alternatives. NEPA’s only requirement regarding the Purpose and Need Statement

is that it “briefly specify the underlying purpose and need to which the agency is

responding in proposing the alternatives including the proposed action.” 40

C.F.R. § 1502.13. “[A]gencies must look hard at the factors relevant to the

definition of purpose” and “should take into account the needs and goals of the

parties involved in the application.” Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190, 196 (D.C. Cir. 1991). “[A]n agency may not define the objectives

of its action in terms so unreasonably narrow that only one alternative from among

the environmentally benign ones in the agency’s power would accomplish the

goals of the agency’s action, and the EIS would become a foreordained formality.”

Id. “Nor may an agency frame its goals in terms so unreasonably broad that an

infinite number of alternatives would accomplish those goals and the project

would collapse under the weight of the possibilities.” Id.

11
 The FEIS stated that the purpose of the study was “to evaluate and

comprehensively examine various alternatives for an additional crossing of the

South Fork of the [St. Lucie] River in Martin County, Florida.” It also explained

that an additional crossing was desired to accommodate infrastructure needs,

satisfy transportation demands, and facilitate emergency response and evacuation.

Although Citizens objects to FHWA’s limitation of the scope of the statement to

cover only a Southern crossing of the river, we find FHWA’s rationale—that an

existing bridge across the river serves mainly the central and northern parts of the

county—to be reasonable. In sum, we find FHWA’s consideration of the relevant

factors to be sufficient and the Purpose and Need Statement to be not unduly

narrow.

C. Review of Environmental Impacts

Citizens alleges the following deficiencies in the FEIS: inadequate review

of alternatives, failure to take a “hard look” at direct effects, and insufficient

consideration of cumulative and indirect impacts.

First, Citizens asserts that Appellees failed to complete a detailed analysis

of all alternatives because it relied upon conclusions of local planning documents

to reject some alternatives prior to the preparation of the FEIS. As explained

above, the reliance on local planning documents was appropriate. Regarding

12
Citizens’s contention that too few alternatives were considered in the FEIS,

NEPA’s requirement that alternatives be considered is “bounded by some notion

of feasibility.” Druid Hills, 772 F.2d at 713 (citation and quotation marks

omitted). Agencies only have to consider “reasonable alternatives,” and we

evaluate their choices against a “rule of reason.” Id. NEPA does not impose any

minimum number of alternatives that must be evaluated. See N. Buckhead Civic

Ass’n v. Skinner, 903 F.2d 1533, 1541–43 (11th Cir. 1990) (finding that an EIS

with only two alternatives studied in detail was sufficient); Tongass Conservation

Soc’y v. Cheney, 924 F.2d 1137, 1140–42 (D.C. Cir. 1991) (finding that agency

complied with NEPA when thirteen of fourteen alternatives were eliminated as

unreasonable and only one alternative was discussed in detail in the EIS). Here,

Appellees considered three alternatives in the FEIS—the Indian Street Bridge

Alternative, the No-Build Alternative, and the Traffic System Management

Alternative—and also analyzed Citizens’s Alternative in depth. Reviewing

Appellees’ choice and analysis of alternatives presented in the EIS under a rule of

reason, we find Appellees’ consideration of alternatives to be “sufficient to permit

a reasoned choice.” N. Buckhead Civic Ass’n, 903 F.2d at 1541.

When alternatives are rejected from consideration in an EIS, there is no duty

to perform in-depth analyses of these alternatives. 40 C.F.R. § 1502.14(a) (stating

13
that agencies shall “[r]igorously explore and objectively evaluate all reasonable

alternatives,” but when alternatives have been rejected from consideration,

agencies need only “briefly discuss the reasons for their having been eliminated”

(emphasis added)). Because Appellees’ choice to exclude the alternatives that it

did was appropriate, Appellees had no duty to conduct an in-depth analysis of

those rejected alternatives in the FEIS. Appellees, by discussing in the FEIS their

analysis of the expected environmental effects of the corridors and the relative

impact of the various alternatives on cost, traffic service, engineering,

environmental, and socio-economic factors, more than fulfilled NEPA’s

requirement to “briefly discuss” the rejected alternatives.

Second, Citizens alleges that Appellees failed to take a “hard look” at the

direct environmental effects of the proposed action, as required by 40 C.F.R.

§ 1502.16(a). Citizens argues that one arbitrary and capricious act of Appellees

regarding their study of direct impacts was the choice to continue with

environmental studies after the EIS was completed. In making this argument,

Citizens urges us to conclude from the fact that studies are ongoing that they could

not have been developed to an appropriate extent when the EIS was created.3

3
Citizens also argues that Appellees violated the requirement that the “draft EIS shall
also summarize the studies, reviews, consultations, and coordination required by environmental
laws or Executive Orders to the extent appropriate at this stage in the environmental process.” 23

14
However, a commitment to ongoing studies alone is not necessarily indicative of

an insufficient EIS. See City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123

F.3d 1142, 1167 (9th Cir. 1997) (finding that an agency with only a “conceptual”

mitigation plan that intended to continue compliance efforts had satisfied

Executive Order 11990 because it had complied “to date”). Because we do not

find the scheduling choice alone to be arbitrary or capricious, we turn to examine

the alleged substantive deficiencies of the EIS.

Citizens points to specific studies to illustrate its claim that Appellees failed

to adequately evaluate direct environmental impacts of the proposed action.

Under the Magnuson-Stevens Fishery Conservation and Management Act of 1996

(“MSFCMA”), 16 U.S.C. §§ 1801–1883, federal agencies are required to prepare

an Essential Fish Habitat Assessment and consult with the National Marine

Fisheries Service prior to taking an action that would adversely impact an essential

fish habitat, 50 C.F.R. § 600.920. Appellees did so, but Citizens alleges that the

study area selected to review cumulative effects—the drainage basin of the South

Fork of the St. Lucie River—was too narrow, and thus the assessment was

C.F.R. § 771.123(c). Citizens’s argument glosses over the “to the extent appropriate” caveat of
that regulation and fails to acknowledge the instructions of 23 C.F.R. § 771.133: “If full
compliance [with other environmental regulations] is not possible by the time the final EIS . . . is
prepared, the final EIS . . . should reflect consultation with the appropriate agencies and provide
reasonable assurance that the requirements will be met.” A commitment to continue with
ongoing environmental reviews would embody exactly this kind of assurance.

15
insufficient. Appellees respond that the basin area selected for review of

cumulative impacts was the only basin into which another bridge also drained, and

thus the only area where cumulative impacts could potentially occur. This

rationale is hardly indicative of arbitrary and capricious decision making.4

Citizens also asserts that Appellees did not comply with Executive Orders

11988 and 11990 because Appellees’ analyses lacked detail and were overly

conclusory.

Executive Order 11988, entitled “Floodplain Management,” requires
federal agencies taking action in or affecting a floodplain to think
twice. The agency must consider the project’s effects on the
floodplains and possible alternatives, and may proceed only if it finds
that the only practicable alternative requires sitting in the floodplain.
In designing its plan the agency must take steps to minimize potential
damage to the floodplain.

City of Carmel-by-the-Sea, 123 F.3d at 1166 (quotation marks and footnote

omitted). Executive Order 11990, entitled “Protection of Wetlands,” provides

“similar protection” regarding wetlands. Sierra Club v. Hassell, 636 F.2d 1095,

1100 (5th Cir. Unit B Feb. 1981). Section Four of the FEIS contains a detailed

discussion of floodplains and wetlands. Both the floodplains and wetlands

4
Citizens also contends that Appellees acted in error by failing to consider alternatives to
the action, but an analysis of alternatives is not mandatory under the Act. See 50 C.F.R.
§ 600.920(e)(3) (listing mandatory contents of assessment); 50 C.F.R. § 600.920(e)(4) (listing
additional information—including an analysis of alternatives—to be included “[i]f appropriate”).

16
subparts of Section Four discuss harm-minimization plans. The floodplains

subpart concludes that because the area along the river is prone to flooding, there

is no practicable alternative to locating the bridge in a floodplain. The wetlands

subsection explains that due to the nature of bridge construction and the terrain

around the St. Lucie River, there are no practicable alternatives to impacting

wetlands. Overall, we find this analysis, as well as the discussions of other direct

impacts, satisfactorily thorough and neither arbitrary nor capricious.

Third, Citizens contends that Appellees’ review of cumulative and indirect

impacts was insufficient. Indirect impacts are reasonably foreseeable long-term

effects of the proposed action. 40 C.F.R. § 1508.8(b). “Cumulative impact is the

impact on the environment which results from the incremental impact of the action

when added to other past, present, and reasonably foreseeable future actions

regardless of what agency (Federal or non-Federal) or person undertakes such

other actions.” Id. § 1508.7 (quotation marks omitted). Appellees discuss both

types of impacts in the subsection of the FEIS entitled “Indirect and Cumulative

Impacts.” That subsection discusses the cumulative impacts on current and

existing growth, emergency response and evacuation, wildlife, essential fish

habitats, and water quality, as well as proposed transportation projects. The FEIS

also noted that no other major construction projects pending in the area had

17
obtained permit applications. The FEIS discussion of these matters, therefore, was

sufficient.

Citizens alleges that Appellees’ indirect impacts assessment is faulty

because it fails to consider the change that would result from the project’s

stimulation of commercial interests in a previously residential area. However, in

their review of indirect impacts of the project, Appellees found that other

commercial uses in the study area were already being planned or developed.

Therefore, Appellees concluded that any induced commercial growth would not

constitute a change to the area. Citizens also objects to the area selected for the

study of induced growth but fails to explain why Appellees’ choice was erroneous.

Determining the geographic extent of an analysis area is the kind of task “assigned

to the special competency of the appropriate agencies,” and such a determination

can only be overturned by a showing of arbitrariness or capriciousness in the

decision making. See Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S. Ct. 2718,

2732 (1976). Furthermore, the FEIS recognized that commercial uses were in

development or in the planning stages for development along the project’s

corridor. Appellants cannot demand a more detailed response to their challenge

without identifying precise geographic areas or instances of induced growth,

18
considering that the project is already underway. Here, the FEIS’s finding that no

land use change is expected to occur adequately addresses Appellants’ concerns.

In their study of cumulative effects, Appellees found that because no other

construction projects were listed on the Martin County Five-Year Capital

Improvements Plan as pending in the project area, no cumulative impacts could be

expected. Citizens argues that referencing to the Five-Year Plan was an error and

that Appellees should have consulted the Martin County Long-Range Plan instead.

However, Appellees determined that because the projects on the Long-Range Plan

were listed far before their actual development, any analysis of the cumulative

impacts of the Long-Range Plan projects would be mostly speculative.5 We have

held that agencies cannot be “forced to analyze the environmental impact of a

project, the parameters and specifics of which would be a mere guess.” City of

Oxford v. FAA, 428 F.3d 1346, 1356 (11th Cir. 2005).

Ultimately, Citizens argues that Appellees should have used different and

better methodologies for reviewing environmental impacts of the project.

However, we do not review an agency’s compliance with NEPA by asking

whether it made the optimal choices; NEPA does not require perfection. See

5
See 23 U.S.C. § 135(f) (“Each State shall develop a long-range statewide transportation
plan, with a minimum 20-year forecast period . . . .”) (emphasis added).

19
Druid Hills, 772 F.2d at 708–09. Appellees’ compliance with NEPA may not

have been perfect, but it was sufficient.

D. Need for a Supplemental Environmental Impact Statement

The Indian Street Bridge has four phases that were originally planned to be

completed contemporaneously, but FDOT announced on May 1, 2009 that one

phase will commence prior to the others. Citizens now attempts to argue that

Appellees erred by not completing a Supplemental Environmental Impact

Statement (“SEIS”) investigating the impacts of phasing.6 However, Citizens did

not raise this issue in its Amended Complaint.7 Instead, Citizens alleged in its

Amended Complaint that an SEIS was necessary because Citizens had submitted

its Alternative, which included information and proposals about traffic modeling

systems. Citizens’s argument on appeal—that the decision to utilize phasing must

be examined further in an SEIS—is substantially different than that alleged in its

Complaint, and we will not consider a claim not detailed in the plaintiff’s

pleadings. See Maniccia v. Brown, 171 F.3d 1364, 1367 n.1 (11th Cir. 1999).

6
A SEIS is required when the agency “makes substantial changes in the proposed action
that are relevant to environmental concerns; or [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).
7
Citizens filed a motion to amend its Complaint to include the argument it now raises;
Appellees opposed the motion as untimely. The district court denied the motion as moot when it
entered its May 3, 2010 summary judgment order.

20
 V. Section 4(f)

Section 4(f) of the Transportation Act allows the Secretary of

Transportation to approve a federal highway project using the land of a public

park, recreation area, wildlife refuge, or historic site only if “(1) there is no

prudent and feasible alternative to using that land; and (2) the program or project

includes all possible planning to minimize harm to the park, recreation area,

wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C.

§ 303(c).

Section 4(f)(1) requires that the Secretary must make a finding that no

feasible or prudent alternatives to the use of Section 4(f) lands exist. “An

alternative is feasible if it can be built as a matter of sound engineering.” Druid

Hills, 772 F.2d at 715. An alternative is prudent unless there are “truly unusual

factors present in a particular case or the cost or community disruption resulting

from alternative routes reached extraordinary magnitudes” or the alternative routes

present “unique problems.” Id. (alteration omitted). When evaluating alternatives

during a Section 4(f)(1) review, the Secretary need not consider options that

impact Section 4(f) lands because “[a]n alternate route that also impacts upon

parks and historic sites is not an alternative to the use of such property.” Id.

(quotation marks omitted).

21
 If the Secretary determines that there are no feasible or prudent alternatives

to using Section 4(f) property for the project, the Secretary must then comply with

the mandate of Section 4(f)(2) to minimize harm to parks and historic sites. This

requires “a simple balancing process which totals the harm caused by each

alternate route to section 4(f) areas and selects the option which does the least

harm.” Id. at 716. Unlike 4(f)(1), the 4(f)(2) analysis requires the Secretary to

consider alternatives that would use 4(f) lands. See id.

We use a three-part test to review the Secretary’s compliance with Section

4(f). First, we ask whether the Secretary acted within the scope of his authority:

did he construe his authority to approve projects to be limited to situations where

no feasible and prudent alternatives to the use of 4(f) property existed, and could

he have reasonably believed that no such alternatives existed? Druid Hills, 772

F.2d at 714. Second, we inquire whether the Secretary’s ultimate decision was

arbitrary, capricious, or an abuse of discretion. Id. Third, we ask if the Secretary

followed the necessary procedural requirements. Id. “[T]he Secretary’s decision

is entitled to a presumption of regularity,” but “that presumption does not shield

his action from a thorough, probing, in-depth review.” Id. (quotation marks and

22
citation omitted). Our review of the Secretary’s actions focuses on the

administrative record, not the district court’s opinion.8 Id.

Citizens argues that the brevity of the statements in the FEIS regarding

Section 4(f) compliance reveals that the Secretary had no reasonable basis to

believe that no prudent alternatives to the project exist. Citizens cites to Stop H-3

Ass’n v. Coleman, 533 F.2d 434, 445 (9th Cir. 1976), for the proposition that

conclusory or unsupported statements do not satisfy the Secretary’s 4(f) burden.

However, in Stop H-3, the Secretary’s position was that Section 4(f) “was

altogether inapplicable,” and the court found that “[i]n the light of that

consistently recorded position, it is not possible, with factual accuracy, to

conclude that the Secretary evaluated [the proposed highway] with the explicit

directives of 4(f) firmly in mind.” 533 F.2d at 445. The factual situation here is

radically different: the FEIS itself contains a lengthy discussion of 4(f) impacts

and also references the Corridor Report, which provides even more analysis of the

alternatives’ effects on 4(f) lands. Unlike in Stop H-3 where the court found that

the Secretary could not have evaluated the project with the directives of Section

8
Citizens challenges the sufficiency of Appellees’ Section 4(f) analyses (in the
administrative record), upon which the Secretary based his Section 4(f) determinations.
Therefore, our discussion of Section 4(f) compliance in this case centers on whether Appellees’
Section 4(f) analyses and determinations were adequate.

23
4(f) in mind, the thorough discussion of Section 4(f) impacts indicates a

mindfulness of Section 4(f) not present in Stop H-3. Because the analysis in the

instant case does in fact demonstrate consideration that each of the alternatives

was not feasible and prudent within the context of Section 4(f), the facts do not

support Citizens’s arguments that the Secretary’s review was cursory.

Citizens also contends that the reasons for rejecting alternatives as

imprudent were insufficient because the Secretary failed to point to extraordinary

or unique circumstances, as mandated by Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 413, 91 S. Ct. 814, 822 (1971). We disagree. Some of the

corridor alternatives did not avoid the use of 4(f) lands, so they did not need to be

considered during the Section 4(f)(1) inquiry. See Druid Hills, 772 F.2d at 715.

Some of the alternatives were rejected because they did not fulfill the purpose and

need of the project. This circuit has long maintained that failure to meet a

project’s purpose can render an alternative imprudent. See Druid Hills, 772 F.2d

at 715–16. The remainder of the alternatives were rejected due to extraordinarily

high costs, unacceptable or severe environmental impacts, or both, which are

sufficient foundations for finding that the alternatives were imprudent. See 23

C.F.R. § 774.17 (stating that an alternative is not prudent if: it “compromises the

project to a degree that it is unreasonable to proceed with the project in light of its

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stated purpose and need”; causes severe “social, economic, or environmental

impacts,” “disruption to established communities,” or “impacts to environmental

resources protected under other Federal statutes”; “results in additional

construction, maintenance, or operational costs of an extraordinary magnitude”; or

“involves multiple factors in . . . this definition, that while individually minor,

cumulatively cause unique problems or impacts of extraordinary magnitude”).9

FHWA’s explanations are sufficient and will not be found lacking simply because

they did not include the terms “extraordinary” or “unique.” See Comm. to Pres.

Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1550–51 (10th Cir. 1993)

(explaining that the “mechanical use” of magic words “is unrelated to the [4(f)]

documents’ substantive merit”); Hickory Neighborhood Def. League v. Skinner,

910 F.2d 159, 162–63 (4th Cir. 1990) (holding that it was unnecessary for the

Secretary to use the terms “unique” and “extraordinary” in the § 4(f) analysis).

Furthermore, “an administrative decision ‘of less than ideal clarity’ will be upheld

‘if the agency’s path may reasonably be discerned.’” La. Envtl. Soc., Inc. v. Dole,

707 F.2d 116, 123 (5th Cir. 1983) (citing Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 285–86, 95 S. Ct. 438, 442 (1974)). Based on the

9
FHWA’s March 2005 Section 4(f) Policy Paper, in effect at the time the Indian Street
Bridge Project was approved, was codified in substantially similar form at 23 C.F.R. § 774.17.

25
record, we do not find that the Secretary acted arbitrarily or capriciously in making

his determination that the alternatives rejected were imprudent, and we find

sufficient evidence that the Secretary could have reasonably believed that there

were no feasible or prudent alternatives.10

Finally, Citizens argues that FHWA failed to comply with the procedural

requirements of Section 4(f). Because Citizens did not raise this issue below, we

cannot consider it now. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue not

raised in the district court and raised for the first time in an appeal will not be

considered by this court.” (citations omitted)).

The district court’s denial of injunctive relief and grant of summary

judgment in favor of FHWA and FDOT is

AFFIRMED.

10
Citizens additionally asserts that the Secretary should have considered a broader range
of environmental factors and completed more detailed studies when making his prudence
determinations. We find the large number of factors considered to be sufficient to make a
reasoned decision. Although it may be true that a wider review would be optimal, this does not
amount to a reason to overturn a satisfactory 4(f) determination.

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