Valley Community Preservation Commission v. Mineta

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

JUN 23 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VALLEY COMMUNITY
PRESERVATION COMMISSION, a
New Mexico non-profit corporation;
GERALD JOE FORD; ROYCE
GRIGGS; and TROY OMNESS,

Plaintiffs-Appellants,
v. No. 03-2016
NORMAN MINETA, Secretary, U.S.
Department of Transportation; MARY
PETERS, Administrator, Federal
Highway Administration; and
REUBEN THOMAS, Division
Administrator, Federal Highway
Administration, New Mexico Division,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-02-1306 LH/WWD)

Andrea Carol Ferster (Heather Anderson, Steven Sugarman, and Kelly Mack
Cassels with her on the briefs), for Plaintiffs-Appellants.

Matthew J. Sanders (Thomas L. Sansonetti, David Sett, and Robert H. Oakley
with him on the brief), for Defendants-Appellees.
Before TACHA, HENRY, and ANDERSON, Circuit Judges.

HENRY, Circuit Judge.

The Valley Community Preservation Commission and three individual

plaintiffs (“Plaintiffs”) appeal the district court’s denial of their motion for

preliminary injunction and injunction pending appeal challenging the Federal

Highway Administration (“FHWA”)’s approval of plans to reconstruct a 37.5 mile

segment of Highway US 70 in southeast New Mexico. The Plaintiffs argue that

the FHWA violated Section 4(f) of the Department of Transportation Act, 49

U.S.C. § 303(c), by failing to conduct the necessary reviews and investigations to

determine whether the project will entail a “use” of historic properties protected

under Section 4(f) prior to approving the project for construction. We exercise

jurisdiction pursuant to 18 U.S.C. § 1292(a)(1) and affirm.

As plaintiffs seek an injunction, we review the district court’s denial of

relief for abuse of discretion, considering the well-established four-part standard

for injunctive relief. We begin by summarizing the rather distended factual

situation in this case. Next, we provide some background on the relevant statutes

and regulations and the standard of review. Finally, we address the four

preliminary injunction factors, giving particular emphasis to the likelihood of

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success on the merits.

I. FACTUAL BACKGROUND

Highway US 70 runs though New Mexico from the southern portion of the

Arizona/New Mexico state line to the near east-central New Mexico/Texas state

line. The 37.5 mile segment of US 70 at the center of this litigation connects

Ruidoso Downs and Riverside in the Hondo River Valley. This stretch of

highway has been designated the “Billy the Kid National Scenic Byway” by the

FHWA and is known for its “rich historic associations and its exceptionally

striking scenery, including historic homesteads, rural landscapes, roadside fruit

stands, and a network of ‘acequias’ (historic irrigation ditches) that are an integral

part of the area’s history and culture.” Aplts’ Br. at 1. Unfortunately, this stretch

of US 70 is also known for its alarmingly high accident rate: prior to the current

expansion project, the New Mexico State Highway and Transportation

Department (“NMSHTD”) reported that this portion of highway had an accident

rate “twice the state average for rural undivided highways” and a fatality rate

“more than double the national average.” Aples’ Supl. App. vol. II, at 172 (Final

Environmental Impact Statement).

In 1999, the NMSHTD prepared a report entitled “U.S. 70: Initial Corridor

Study Report,” which considered a number of alternatives to alleviate traffic

problems and improve highway safety on US 70. The NMSHTD’s

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recommendations included a proposal to expand the 37.5 mile segment of US 70

between Ruidoso Downs and Riverside, known as the “Hondo Valley Project.”

The FHWA first addressed the potential impact of the Hondo Valley Project

on historic and cultural resources in a Draft Environmental Impact Statement

(“EIS”), published on May 4, 2001. The Draft EIS considered three alternatives

to improve highway safety on US 70: 1) a no-build alternative; 2) an enhanced

two-lane alternative with “the addition of passing lanes . . . , the addition of

acceleration and deceleration lanes at major driveways . . . , the addition of center

turn lanes . . . , and the addition of continuous, consistent-width shoulders,”

Aples’ Supl. App. vol. I, at 36; and 3) a four-lane alternative in which the existing

two-lane highway would be reconstructed as a continuous four-lane highway.

Proposals to by-pass US 70 through the creation of alternative routes were

eliminated from further consideration after the FHWA determined that “the

development of alternative routes would not substantially reduce the safety

problems with the existing alignment of US 70.” Id. at 33.

Initial investigations established that the project would impact portions of

eighteen acequias, seventeen archeological sites, and fifteen buildings. The Draft

EIS recommended additional investigations for six of the archeological sites, but

did not recommend further investigations of any of the buildings or acequias,

concluding that the identified buildings “are either not sufficiently old to be

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considered eligible for the National Register of Historic Places, or they do not

maintain sufficient integrity to convey their historic significance and are therefore

not eligible.” Id. at 100. The Draft EIS also concluded that “individual

functioning acequias are not eligible for inclusion on the National Register as

historic properties,” id. at 99, and that “the project will retain the integrity of the

Rio Hondo system,” id. at 100, thus alleviating any Section 4(f) concerns related

to the acequias.

Following the publication of the Draft EIS, the Parsons Brinckerhoff

Archeology Group prepared a Cultural Resources Survey of the US 70 corridor

between Ruidoso Downs and Riverside at the request of the FHWA. The survey

included an account of the properties in the corridor, whether each was potentially

eligible for the National Register, and whether each would be affected by the

Hondo Valley Project. The survey did not uncover any potentially eligible

properties that would be affected by the project. The FHWA sought comments

from the New Mexico State Historic Preservation Office (“SHPO”) regarding the

determinations in the Cultural Resources Survey. Based on the survey and

consultations with the SHPO, the FHWA issued a Supplemental Draft EIS on

November 15, 2001. The Supplemental Draft EIS evaluated seventeen buildings,

structures, and landscapes that either are or may be eligible for the National

Register and concluded that none would be affected by the project. The FHWA

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solicited additional comments from the SHPO and other agencies following the

publication of the Supplemental Draft EIS, and Parsons Brinckerhoff prepared a

Supplemental Cultural Resources Survey. The findings of that survey were

included in the Final EIS, issued by the FHWA on January 29, 2002.

The Final EIS concluded that the Hondo Valley Project would not affect

any Section 4(f)-protected properties or resources. The FHWA published this

final determination in a Record of Decision (“ROD”) on March 15, 2002, and the

SHPO concurred in the FHWA’s finding that no 4(f)-protected properties would

be used by the construction project. The ROD approved Alternative 3, the four-

lane alternative, for construction, despite acknowledging that the enhanced two-

lane alternative was the environmentally-preferred option, “[b]ecause of the

greater safety benefits of Alternative 3 and consistency with adopted State policy

to provide four lanes on US 70.” Aplts’ App. vol. II, at 532 (ROD).

The FHWA also voluntarily committed in the ROD “to develop[ing] a

programmatic agreement with SHPO, the National Trust, and other groups

interested in being a consulting party with respect to implementation of the

project.” Id. at 538. The FHWA, the NMSHTD, the Advisory Council on

Historic Preservation, 1 and the New Mexico SHPO signed a Programmatic

1
The Advisory Council on Historic Preservation is an independent federal
agency charged with exclusive authority for developing regulations pertaining to
(continued...)

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Agreement on July 12, 2002; concurring parties included the National Trust for

Historic Preservation, the New Mexico Heritage Preservation Alliance, the

Mescalero Apache Tribe, and St. Anne’s Episcopal Church. The Valley

Community Preservation Commission and Gerald Ford, both plaintiffs in this

case, were given the opportunity to participate in the Programmatic Agreement as

concurring parties, but declined to do so.

On September 4, 2002, Plaintiffs applied for a temporary restraining order

and preliminary injunction in the United States District Court for the District of

Columbia to halt construction on the Hondo Valley Project. They argued that the

widening of the highway will “require massive cuts into the slopes and huge fill

slopes supported by retaining walls” and that “[a]s a result, the Project will have

unavoidable adverse impacts on historic properties.” Aplts’ Br. at 2.

Furthermore, Plaintiffs alleged that the FHWA violated Section 4(f) of the

Department of Transportation Act, 49 U.S.C. § 303, by “failing to undertake

investigations necessary to identify the Project’s foreseeable impacts to historic

properties prior to the issuance of the Record of Decision approving the Project

for construction.” Id. at 3. The District Court for the District of Columbia

refused to enter a TRO and granted the FHWA’s motion to transfer the case to the

1
(...continued)
Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, and
ensuring compliance with that Act.

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District of New Mexico. See Valley Cmty. Pres. Comm’n v. Mineta, 231 F. Supp.

2d 23 (D.D.C. 2002) (Valley Cmty. I). The District Court for the District of New

Mexico denied the Plaintiffs’ motion for preliminary injunction and injunction

pending appeal, adopting and supplementing the opinion of the D.C. District

Court and finding that Plaintiffs did not have a likelihood of success on the

merits. See Valley Cmty. Pres. Comm’n v. Mineta, 246 F. Supp. 2d 1163 (D.N.M.

2002) (Valley Cmty. II). Construction on the Hondo Valley Project has been

ongoing since September 26, 2002.

II. LEGAL BACKGROUND

A. Standard of Review

1. Preliminary Injunction

The standard of review in this case is somewhat bifurcated. First, we

review district court’s denial of a motion for preliminary injunction for abuse of

discretion. Davis v. Mineta, 302 F.3d 1104, 1110-11 (10th Cir. 2002). “A district

court abuses its discretion where it commits a legal error or relies on clearly

erroneous factual findings, or where there is no rational basis in the evidence for

its ruling.” Id. at 1111 (internal citations omitted).

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

following four factors:

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 (1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied;
(3) the threatened injury to the movant outweighs the injury to the other
party under the preliminary injunction; and (4) the injunction is not
adverse to the public interest.

Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). If a plaintiff establishes

that the latter three factors “tip strongly” in his or her favor, the likelihood of

success inquiry is modified somewhat, and the plaintiff may establish likelihood

of success “by showing that questions going to the merits are so serious,

substantial, difficult, and doubtful as to make the issue ripe for litigation and

deserving of more deliberate investigation .” Greater Yellowstone Coalition v.

Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003) . “Because a preliminary

injunction is an extraordinary remedy, the right to relief must be clear and

unequivocal.” Id.

2. Administrative Procedure Act

In analyzing the Plaintiffs’ likelihood of success on the merits, we must

examine the FHWA’s compliance with Section 4(f). “At this point, a second

layer of review comes into play, because defendants’ agency actions are

themselves examined under a highly deferential, ‘arbitrary and capricious’

standard.” Davis, 302 F.3d at 1111.

As Section 4(f) does not provide an independent cause of action, judicial

review is available only through Administrative Procedure Act, 5 U.S.C. § 706,

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which provides that “agency action must be set aside if the action was ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law’ or if

the action failed to meet statutory, procedural, or constitutional requirements.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971) (citing

5 U.S.C. § 706(2)(A), (B), (C), (D) (1964 ed., Supp. V)). As we have noted,

“Overton Park instructed reviewing courts to conduct a three-tiered inquiry of the

Secretary of Transportation’s decision to fund a highway across land covered by §

4(f).” Comm. to Pres. Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1549

(10th Cir. 1993). This three-tier inquiry involves determining: 1) “whether the

Secretary acted within the scope of his authority under § 4(f);” 2) “whether the

Secretary’s ultimate decision was ‘arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law,’” and 3) “whether the Secretary’s action

followed the necessary procedural requirements.” Id. (internal quotation marks

omitted).

B. Section 4(f) and Section 106

All federally funded highway projects must comply with a number of

federal environmental protection and historic preservation laws, including Section

106 of the National Historic Preservation Act, 16 U.S.C. § 470f; Section 4(f) of

the Department of Transportation Act of 1966, 49 U.S.C. § 303(c); and the

National Environmental Policy Act, 42 U.S.C. § 4332(C). Although Plaintiffs

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originally alleged violations of both the National Environmental Policy Act and

Section 4(f) of the Department of Transportation Act, this appeal challenges only

the FHWA’s compliance with Section 4(f). Section 4(f) provides, in relevant

part, that

[t]he Secretary may approve a transportation program or project (other
than any project for a park road or parkway under section 204 of title
23) requiring the use of publicly owned land of a public park, recreation
area, or wildlife and waterfowl refuge of national, State, or local
significance, or land of an historic site of national, State, or local
significance (as determined by the Federal, State, or local officials
having jurisdiction over the park, area, refuge, or site) only if–

(1) there is no prudent and feasible alternative to using that land; and

(2) the program or project includes all possible planning to minimize
harm to the park, recreation area, wildlife and waterfowl refuge, or
historic site resulting from the use.

49 U.S.C. § 303(c).

Section 4(f) restrictions apply anytime a proposed highway construction

project entails a “use” of a Section 4(f)-protected property. A “use” of a

protected property may be “direct” (“[w]hen land is permanently incorporated into

a transportation facility”) or “constructive” (“when the transportation project does

not incorporate land from a section 4(f) resource, but the project’s proximity

impacts are so severe that the protected activities, features, or attributes that

qualify a resource for protection under section 4(f) are substantially impaired.”).

23 C.F.R. § 771.135(p)(1)(i), (p)(2).

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 The procedure for determining what sites merit protection under Section

4(f) is set forth in FWHA regulations at 23 C.F.R. § 771.135. Pursuant to these

regulations, a structure qualifies for Section 4(f) protection if it is either on or

eligible for the National Register of Historic Places. Id. § 771.135(e). The

Section 4(f) evaluation must be conducted during the planning process, and in any

event, the final Section 4(f) determination must be presented in the Final EIS or

the ROD. See id. § 771.135(b) (“Any use of lands from a section 4(f) property

shall be evaluated early in the development of the action when alternatives to the

proposed action are under study.”); § 771.135(l) (“For actions processed with

EISs, the Administration will make the section 4(f) approval either in its approval

of the final EIS or in the ROD.”).

In order to determine what sites merit protection under Section 4(f), the

FHWA relies in large part on reviews conducted pursuant to Section 106 of the

National Historic Preservation Act. Section 106 provides a process through

which effected historic sites are identified, while Section 4(f) limits the

circumstances in which the sites identified through the Section 106 review

process can be “used.” Therefore, although Plaintiffs expressly challenge only

the FHWA’s compliance with Section 4(f), Section 106 is also relevant to this

litigation. See City of Alexandria v. Slater, 198 F.3d 862, 871 (D.C. Cir. 1999)

(“[W]e have observed that compliance with section 4(f) is predicated upon

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completion of the section 106 process.”).

Section 106 of the National Historic Preservation Act provides
that before a federal agency may authorize the expenditure of funds for
a federal or federally assisted undertaking, it must first consider the
effects of such an undertaking on “any district, site, building, structure,
or object that is included or eligible for inclusion in the National
Register [of Historic Places].”

Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 370 (D.C. Cir. 1999)

(quoting 16 U.S.C. § 470f). This consideration involves identifying all historic

properties within a designated “area of potential effects” for the project in

consultation with the SHPO. The “area of potential effects” is “the geographic

area or areas within which an undertaking may directly or indirectly cause

alterations in the character or use of historic properties, if any such properties

exist.” 36 C.F.R. § 800.16(d). Unlike Section 4(f), Section 106 is essentially a

procedural statute and does not impose a substantive mandate on the FHWA. See

City of Alexandria, 198 F.3d at 871.

III. DISCUSSION

We now turn to the four preliminary injunction factors. Because the

appropriate standard for evaluating the Plaintiffs’ likelihood of success on the

merits depends on whether the other three factors are satisfied, we look first to

the three equitable or “harm” factors: 1) the harm that the Plaintiffs will suffer if

the injunction is denied; 2) the balancing of the harm that the FHWA will suffer if

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the injunction is granted; and 3) the harm to the public interest. We then address

the Plaintiffs’ likelihood of success on the merits.

A. Harm to Plaintiffs, Balancing of Harm to Defendants, and Public
Interest

Plaintiffs contend that “the district court never addressed the remaining

equitable factors bearing on the issuance of injunctive relief.” Aplts’ Br. at 48.

However, while the district court did address the Plaintiffs’ likelihood of success

on the merits in greater detail than the other three factors, it nevertheless

concluded that Plaintiffs “have met none of the requirements for a preliminary

injunction.” Valley Cmty. II, 246 F. Supp. 2d at 1177. We now examine the

equitable factors and hold that while the Plaintiffs may suffer some harm as a

result of the denial of the injunction, the district court correctly concluded that the

balance of harms and the public interest weigh in favor of the FHWA.

1. Harm to Plaintiffs

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

parkland or historic sites that will occur if the Secretary of Transportation does

not (1) consider every prudent and feasible alternative to using the land, and (2)

make all possible plans to minimize the harm, if use is required.” Davis, 302 F.3d

at 1115. Environmental harm is, by its nature, generally irreparable. Id. An

individual plaintiff can establish that he or she will suffer harm from a

construction project by demonstrating “adequate proximity to and use of” the land

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in question. Id. The Plaintiffs have certainly established adequate proximity in

this case. Plaintiffs live in the area and use the land in question; in fact, many of

the historic acequias at issue in this case are actually located on land owned by

the Plaintiffs. Any damage to the land or structures along U.S. 70 as a result of

the project is likely to cause the Plaintiffs irreparable harm. Moreover, even

assuming that the FHWA’s determination that the project will not use any

protected properties is correct, the Plaintiffs’ enjoyment of their land will

undoubtedly suffer somewhat as a result of the greater proximity of a major

highway.

2. Balancing of Harm to Defendants

The FHWA has already invested a substantial amount of money in this

construction project. Over $52 million was invested between August 1, 2002, and

February 12, 2003. According to a declaration by the NMSHTD’s Design

Compliance Engineer for the Hondo Valley Project, a suspension of construction

would cost $144,000 per day, or $4,320,000 per month. A permanent termination

of the project would cost $11,537,000, including demobilization and clean-up

costs. Given these figures, it is clear that the FHWA will suffer significant

financial harm if the injunction is granted.

While these costs cannot be ignored, financial concerns alone generally do

not outweigh environmental harm. See Citizens to Preserve Overton Park, Inc.,

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401 U.S. at 412-13 (“Congress clearly did not intend that cost and disruption of

the community were to be ignored by the Secretary. But the very existence of the

statutes [i.e., Section 4(f)] indicates that protection of parkland was to be given

paramount importance.”). We have previously accorded less weight to financial

harms relative to environmental harms when the financial harms are “self-

inflicted.” See Davis, 302 F.3d at 1116 (noting that “it appears that many of these

costs [of delay] may be self-inflicted. . . . [because] the state entities involved in

this case have ‘jumped the gun’ on the environmental issues by entering into

contractual obligations that anticipated a pro forma result.”).

Whether the financial harm the FHWA will suffer if the injunction is

granted outweighs the harm the Plaintiffs will suffer if it is not seems to turn on

the merits of the case. If the FHWA did not comply with Section 4(f), but rather

“jumped the gun” and began construction before completing the necessary

environmental reviews, then the environmental harm faced by the plaintiffs may

outweigh the FHWA’s financial harm. If the FHWA complied with all relevant

environmental laws and correctly determined that the project will not use a

Section 4(f)-protected property, then the balancing of harms weighs in favor of

the defendants. The Plaintiffs have not, therefore, established that the balancing

of the harms tips strongly in their favor.

3. Public Interest

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 There are conflicting public interest values at play in this case. On the one

hand, the public interest is served by safer highways and increased economic

development. On the other hand, the public interest is served by strict compliance

with environmental laws and the preservation of historic and cultural resources.

In Davis v. Mineta, we held that “the public interest associated with completion of

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

with the relevant environmental laws.” 302 F.3d at 1116. However, in that case,

“the proposed highway construction ha[d] not yet begun, and so we [we]re not

confronted with equities in favor of completion of a partially-completed project.”

Id. In this case, we are dealing with a partially-completed project, and as such,

the public interest in favor of continuing the project is much stronger. This

litigation also involves a stretch of road with an exceedingly high accident rate.

The well-recognized “important public interest in safety on the roads and

highways,” Dixon v. Love, 431 U.S. 105, 114 (1977), therefore weighs in favor of

completing the construction project.

B. Likelihood of Success on the Merits

As the Plaintiffs have failed to show that each of the three equitable

requirements for a preliminary injunction tips strongly in their favor, we now

proceed to review the likelihood of success on the merits. Turning to the merits

of the case, we must consider Plaintiffs’ argument that the FHWA acted

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arbitrarily and capriciously in reaching the determination that the Hondo Valley

Project would not use any Section 4(f)-protected properties. Specifically, they

contend that 1) the FHWA failed to undertake the requisite studies needed to

identify and evaluate all protected properties prior to issuing the ROD; and 2) the

FHWA employed an inadequate area of potential effects when conducting its pre-

ROD studies. These two inquiries are closely related, as the Plaintiffs’ argument

concerning the unlawful deferral of the Section 4(f) determination rests on the

proposition that the Section 106 reviews conducted prior to the publication of the

ROD failed to comply with Section 4(f) because the area of potential effects was

too narrowly drawn.

1. Failure to Undertake the Requisite Studies Needed to Identify and
Evaluate 4(f)-Protected Properties Prior to Issuing the ROD

Section 4(f) regulations clearly require the FHWA to make the requisite

Section 4(f) evaluations prior to issuing an ROD approving a proposed

construction project and to present these determinations in the Final EIS or the

ROD. See 23 C.F.R. § 771.135(b), (l). The threshold question in this case is,

therefore, whether the FHWA conducted adequate reviews of the cultural

resources and historic properties along the US 70 corridor prior to determining in

the ROD that the Hondo Valley Project would not “use” any 4(f)-protected

properties.

The Plaintiffs argue that much of the required evaluation was unlawfully

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deferred until after the ROD. In making this argument, they rely on the fact that

the consultations surrounding the Programmatic Agreement produced a list of 113

properties potentially eligible for the National Register that were not fully

evaluated prior to the issuance of the ROD. These properties were apparently not

evaluated during the earlier stages of the project because they were outside the

area of potential effects used during the Section 106 review process. As further

support, the Plaintiffs reference a letter sent to the FHWA by the Advisory

Council on Historic Preservation suggesting that the FHWA’s “no effect”

determination was in error.

a. City of Alexandria and Corridor H

In considering the Plaintiffs’ argument that the FHWA unlawfully deferred

the required evaluations of 4(f)-protected properties, the parties and both the D.C.

and New Mexico district courts place a significant amount of emphasis on two

cases from the District of Columbia Circuit addressing the timing of Section 4(f)

reviews–Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999),

and City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999). Corridor H

concerned a plan to build a new segment of highway in West Virginia. The

FHWA issued an ROD prior to conducting the requisite Section 106 reviews to

identify historic sites potentially impacted by the project. The court held that the

FHWA had failed to comply with Section 4(f) by deferring these reviews until

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after the issuance of the ROD, despite the fact that the ROD stated that approval

of the project was contingent upon successful completion of the Section 106

review process. Id. at 371-73.

City of Alexandria, decided after Corridor H, addressed a challenge to the

FHWA’s approval of plans to replace the Woodrow Wilson Memorial Bridge.

In contrast fo Corridor H, City of Alexandria held that the FHWA had complied

with Section 4(f) because it “identified historic properties along the corridor and

documented its findings prior to approval in both a Memorandum of Agreement

and a Section 4(f) Evaluation.” 198 F.3d at 873. The fact that the FHWA

“deferred [] the identification of sites that might be impacted by a small number

of ‘ancillary activities’” was not sufficient to establish a Section 4(f) violation.

Id.

We agree with the holding of both district courts that this case is analogous

to City of Alexandria and factually distinguishable from Corridor H. See Valley

Cmty. II, 246 F. Supp. 2d at 1174; Valley Cmty. I, 231 F. Supp. 2d at 34 (noting

that “[t]he agency’s actions in this case are more akin to City of Alexandria than

Corridor H.”). Corridor H is somewhat analogous to this case in that both cases

involve the adoption of a Programmatic Agreement by the FHWA; however, that

is where the similarities end. In Corridor H, the FHWA did not perform the

necessary Section 106 reviews prior to issuing the Final EIS and the ROD, and

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adopted the Programmatic Agreement as an alternate means of complying with

Section 4(f). In essence, the Programmatic Agreement was adopted instead of

performing the Section 106 review process and completing the Section 4(f)

determination, in violation of 23 C.F.R. § 771.135(b).

Based on the record in this case, we cannot conclude that the FHWA

delayed all necessary reviews until after the issuance of the ROD. It appears the

agency made significant efforts to evaluate historic properties along the US 70

corridor for National Register eligibility and to determine whether the Hondo

Valley Project would adversely affect such properties. The FHWA performed

extensive reviews prior to issuing the Final EIS and the ROD and adopted the

Programmatic Agreement for the more limited purpose of analyzing

“determinations of effect on any previously unidentified cultural resources and

potential impacts to identified cultural resources that may be affected by any

design changes and construction activities.” Aplts’ App. vol. II, at 538. As

detailed in the facts above, the agency issued a Draft EIS, a Cultural Resources

Survey, and a Supplemental Draft EIS prior to publishing its final determination,

consulting with the SHPO throughout the process. Thus, the District Court for

the District of Columbia correctly concluded, “[t]he agency has not postponed the

entire section 106 process but has merely provided for the contingency that

section 4(f)-properties may be discovered as the construction progresses.” Valley

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Cmty. I, 231 F. Supp. 2d at 34-35. This is very similar to the agency action that

the D.C. Circuit upheld in City of Alexandria. Plaintiffs have failed to establish

that the FHWA declined to follow the necessary procedural requirements by

adopting the Programmatic Agreement and deferring the evaluation of certain

properties until after the issuance of the ROD.

b. The Advisory Council on Historic Preservation’s March 29 Letter

As further support for their argument that the FHWA failed to comply with

Section 4(f), the Plaintiffs rely on a March 29, 2002, letter from the Advisory

Council on Historic Preservation to the FHWA. In the letter, the Advisory

Council

question[ed] the validity of the earlier no effect and no adverse effect
determinations made by FHWA, and concurred in by the New Mexico
State Historic Preservation Officer (SHPO), since they were carried out
under the terms of the Substitution Agreement Between the Advisory
Council and the New Mexico SHPO . . . which expired in April 1999.

Aplts’ App. vol. III, at 599 (Letter from Advisory Council on Historic

Preservation, dated March 29, 2002). Based on these “overarching flaws” in the

process, the Advisory Council concluded that “FHWA will need to reevaluate all

previous findings and determinations related to this undertaking to ensure that the

procedures set forth in our regulations are properly met.” Id. 2

2
As an initial matter, we must decide whether we may properly consider
the March 29, 2002, Advisory Council letter. Defendants argue that because the
(continued...)

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 Our consideration of the letter does not lead us to conclude that the

FHWA’s determination of “no effect” was in error. First, the concern over the

expiration of the Substitution Agreement between the Advisory Council and the

New Mexico SHPO is resolved by a subsequent letter from the Advisory Council

to the SHPO. 3 See Aples’ Supl. App. vol. II, at 443 (Letter from Advisory

Council on Historic Preservation, dated May 8, 2002). That letter states:

Since Federal agencies have submitted numerous projects to the New
Mexico SHPO subsequent to the expiration of the Substitution
Agreement, we believe that it is necessary to clarify the status of
Section 106 reviews concluded during this period. It is our opinion that
the outcomes reached . . . between April 1999 and March 2002 . . . shall

2
(...continued)
March 29 letter was not included in the administrative record, it is beyond the
court’s scope of review. See American Mining Congress v. Thomas, 772 F.2d
617, 626 (10th Cir. 1985) (noting that “[a]ny exception to th[e] general rule
against the use of extra-record materials must be extremely limited.”). Plaintiffs
counter by arguing that the document falls within the established exception for
“evidence coming into existence after the agency acted [that] demonstrates that
the actions were right or wrong.” Id.
The document was necessarily absent from the administrative record
because it came into existence after the issuance of the ROD. The District Court
for the District of Columbia considered the March 29 letter in denying the
Plaintiffs’ motion for a temporary restraining order. We review the district
court’s decision regarding whether to consider extra-record materials for abuse of
discretion, see Northcoast Envt’l Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.
1998), and hold that the district court did not abuse its discretion in considering
the March 29 letter.
3
While this letter was also not part of the administrative record in this
case, in light of our decision to consider the March 29 letter, we see no reason not
to consider the May 8 letter as well. As the Plaintiffs point out, both parties have
relied on documents that were not part of the administrative record. See Aplts’
Reply Br. at 22 n.7.

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 be binding and evidence satisfactory compliance with the requirements
of Section 106, unless the New Mexico SHPO or Council have received
a timely and substantive objection from the public.

Id.

The Plaintiffs counter the May 8 letter by arguing that it did not relate

specifically to the Hondo Valley Project and that the Council did in fact receive

timely objections from the public. We acknowledge that the May 8 letter does not

speak to the other concerns articulated by the Advisory Council in the March 29

letter. Taking into account the May 8 letter, however, we do not believe that the

expiration of the Substitution Agreement alone is evidence of failure to comply

with Section 4(f).

Moreover, the other primary concern reflected in the Advisory Council’s

March 29 letter, “that FHWA did not initiate the consultation process for this

undertaking pursuant to 36 C.F.R. Section 800.3,” also does not establish that the

agency erred. Id., vol. III, at 599. As the D.C. District Court acknowledged,

“section 800.3 does not mandate consultation with the public in the instance

where it has been determined that the undertaking ‘does not have the potential to

cause effect on historic properties.’” Valley Cmty. I, 231 F. Supp. 2d at 36

(quoting 36 C.F.R. § 800.3(a)(1)). We agree with that district court’s finding that

the FHWA was “not mandated to adhere to the findings of the [Advisory

Council], as they had determined that there would not be any use of historic

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properties.” Id. We further note that the FHWA did attempt to address the

Advisory Council’s concerns through the Programmatic Agreement, which the

Advisory Council agreed to and signed in July 2002, approximately four months

after voicing its concerns in the March 29 letter. Thus the concerns raised in the

Advisory Council’s March 29 letter do not alter our conclusion that the FHWA

complied with Section 4(f).

2. Definition of the Area of Potential Effects

Plaintiffs’ other major argument concerns the definition of the area of

potential effects employed during the Section 106 review process. As described

in Part II(B) above, the “area of potential effects” is “the geographic area or areas

within which an undertaking may directly or indirectly cause alterations in the

character or use of historic properties, if any such properties exist.” 36 C.F.R. §

800.16(d). Plaintiffs contend that the area of potential effects, as defined by the

FHWA, was “presumptively invalid,” Aplts’ Br. at 34, and that as a result, the

FHWA’s conclusion that no Section 4(f)-protected properties would be used was

“[a]rbitrary and [c]apricious.” Id. at 33.

Establishing an area of potential effects requires a high level of agency

expertise, and as such, the agency’s determination is due a substantial amount of

discretion. See Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (“Resolving

these issues requires a high level of technical expertise and is properly left to the

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informed discretion of the responsible federal agencies. Absent a showing of

arbitrary action, we must assume that the agencies have exercised this discretion

appropriately.”) (internal citation omitted).

Specifically, the Plaintiffs argue that the area of potential effects a) was

arbitrarily set at 150 feet, thus excluding many structures within 200 feet of the

roadway; b) excluded many properties that may suffer adverse effects as a result

of vibration impacts and/or traffic noise; and c) “focused exclusively on the

footprint of the structures themselves, and did not consider the larger property

boundaries for these buildings, including any natural or topographical features

associated with these buildings.” Aplts’ Br. at 42.

a. Exclusion of structures within 200 feet of the roadway

The FHWA adopted a variable area of potential effects of between 150 and

500 feet from the edge of the existing US 70. For much, if not most of the

roadway, it appears that an area of potential effects of 150 feet was used. 4

Plaintiffs argue that this restrictive area of potential effects resulted in a failure to

evaluate the impact of the project on over one hundred buildings located within

200 feet of the roadway. Essentially, Plaintiffs contend that the FHWA should

4
During a field inspection, “the visibility of the current roadway from the
properties below the highway profile was assessed, and if the current roadway
was not visible from the property and if the new roadway would still not be
visible from that property, then the [area of potential effects] was reduced to 150
ft from the edge of pavement.” Aplts’ App. vol II, at 537-38.

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have established an area of potential effects of 200 feet instead of 150 feet.

The FHWA selected the 150-foot variable area of potential effects in

consultation with the SHPO, as set forth in Section 106 regulations at 36 C.F.R.

§§ 800.4(a). The FHWA explains that “[t]he [area of potential effects] was

defined by the area FHWA reasonably believed might be impacted by the Project

once it was built, and included considerations for noise, visual effects, and

vibrations.” Aples’ Br. at 35. The determination of the area of potential effects

took into account both direct and indirect potential effects of the project and

varied “throughout the corridor depending on the type of resource and the nature

of [the] potential effect.” See Aplts’ App. vol. II, at 454.

Having carefully reviewed the pertinent regulations, the record before us,

and the district court’s findings, we conclude, for substantially the same reasons

as the district court, that “these variable APEs were based on a consideration of

the relevant factors and that there has not been a clear error or judgment.” Valley

Cmty. II, 246 F. Supp. 2d at 1173.

b. Vibration and noise impacts

Next, the Plaintiffs argue that the 150-foot area of potential effects failed to

take into account indirect effects, including vibration impacts resulting from

blasting activities and noise impacts resulting from traffic on US 70, that might

rise to the level of a constructive use. Having examined the record, we conclude

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that Plaintiffs have not established that the Hondo Valley Project will use any

Section 4(f)-protected properties, either directly or constructively.

The FHWA regulations explicitly address vibration impacts, distinguishing

between vibration impacts that result from construction activities and vibration

impacts that result from the operation of a facility. Vibration impacts resulting

from construction activities are not considered a “use” under Section 4(f)

provided “[v]ibration levels from project construction activities are mitigated,

through advance planning and monitoring of the activities, to levels that do not

cause a substantial impairment of the section 4(f) resource.” 23 C.F.R. §

771.135(p)(5)(ix). In this case, the FHWA adopted a vibration monitoring

program to include “monitoring before and during project construction, and visual

inspections of potentially affected buildings to determine pre-construction

conditions and to identify any structural damage that occurs during construction.”

Aples’ Supl. App. vol. II, at 183 (Final EIS). The plan provided for repair of any

damage resulting from construction. We are satisfied that this monitoring

program comports with the regulations so as to avoid a constructive use as a

result of construction-related vibrations.

The Plaintiffs’ contention that traffic noise may result in a constructive use

is also without merit. The Plaintiffs suggest that the new four-lane highway will

result in a permanently increased traffic volume; however, there is no evidence to

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support this assertion. In fact, the Final EIS concluded that “[t]raffic volumes on

US 70 are expected to be similar with all three alternatives,” including the no-

build alternative. Id. The Plaintiffs have not established that “[t]he projected

noise level increase attributable to the project substantially interferes with the use

and enjoyment of a noise-sensitive facility of a resource protected by section

4(f),” 23 C.F.R. § 771.135(p)(4)(i), thus we cannot conclude that the FHWA

failed to evaluate indirect effects of the project that may result in a constructive

use.

c. Consideration of properties in their entirety

Finally, the Plaintiffs argue that the FHWA adopted too narrow a focus by

limiting its analysis to buildings and structures and failing to consider “larger

property boundaries” and “character-defining features in the identification of the

historic buildings within the project’s area of potential effects.” Aplts’ Br. at 42.

The District of New Mexico found “nothing in the record to support Plaintiffs’

argument that Defendants focused mostly on buildings themselves and did not

consider natural and topographical features that are part of an historic site.”

Valley Cmty. II, 246 F. Supp. 2d at 1174. We agree with this assessment of the

record.

The FHWA’s Supplemental Draft EIS explained that “[e]ligible buildings

include the building and its immediate environment, including all acreage

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historically associated with the building that is within the current property

boundary and any historic landscape feature considered to be contributing to the

eligibility of the building.” Aplts’ App. vol. II, at 456-57. Similarly, the ROD

noted that “[t]he boundaries as well as the character-defining features of each

property were considered in the evaluation process for visual effects.” Id. at 538.

The Plaintiffs suggest that this language is simply “lip-service” and that the

schematic drawings appended to the Cultural Resources Survey “confirm, by

omission” that the focus was on the buildings and not the surrounding

environment. Aplts’ Br. at 42. We cannot conclude from the fact that some

schematic drawings focused on the buildings themselves that the FHWA did not

take into account the environment and character-defining features of the

properties within the area of potential effects. The Plaintiffs have thus failed to

demonstrate that the FHWA’s decision to apply a 150-foot area of potential

effects was arbitrary and capricious or an abuse of discretion.

III. CONCLUSION

Having found that the Plaintiffs failed to satisfy the requirements for a

preliminary injunction, we AFFIRM the district’s court denial of Plaintiffs’

motion for preliminary injunction and injunction pending appeal.

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