Conservation Alliance of St. Lucie County, Inc. v. U.S. Department of Transportation , 847 F.3d 1309 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15791
________________________
D.C. Docket No. 2:14-cv-14192-DMM
CONSERVATION ALLIANCE OF ST LUCIE COUNTY, INC.,
a Florida Not-For-Profit Corporation,
TREASURE COAST ENVIRONMENTAL DEFENSE FUND,
a.k.a. Indian Riverkeeper,
Plaintiffs - Appellants,
versus
U.S. DEPARTMENT OF TRANSPORTATION,
SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL HIGHWAY ADMINISTRATION,
VICTOR MENDEZ,
Administrator of the Federal Highway Administration,
JAMES CHRISTIAN,
Division Administrator of the Florida Division
of the Federal Highway Administration,
Defendants - Appellees,
CITY OF PORT ST. LUCIE,
Intervenor Defendant.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2017)
Before MARCUS, DUBINA, and WALKER, * Circuit Judges.
MARCUS, Circuit Judge:
When the City of Port St. Lucie sought to build a new bridge spanning the
North Fork St. Lucie River (NFSLR), it was required to work with the Federal
Highway Administration (FHWA) and the Florida Department of Transportation
(FDOT) to choose an acceptable location for that bridge. The selection process
was complicated by the fact that each of the proposed paths for the new bridge
impacted “publicly owned land of a public park, recreation area, or wildlife and
waterfowl refuge” that is protected under § 4(f) of the Department of
Transportation Act. 49 U.S.C. § 303(c). Under § 4(f), the Secretary of
Transportation may approve projects that use § 4(f) lands only if the agency first
determines that there is no feasible and prudent alternative to using that land. Id. at
§ 303(c)(1). If there are no such alternatives, the agency must conduct “all
possible planning” to minimize harm to the protected lands. Id. at § 303(c)(2).
*
Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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The Federal Highway Administration and the City worked in concert with
many federal, state, and local agencies to conduct a lengthy analysis of the
sociocultural, economic, and environmental impacts each alternative carried in its
wake before making a selection. The agencies also collaborated on a mitigation
plan to remedy the adverse effects of the preferred alternative. Ultimately, all of
the agencies involved in the review agreed on a path for the new bridge that would
use approximately two acres of § 4(f) land.
Plaintiff-appellants Conservation Alliance of St. Lucie County, Inc., and
Treasure Coast Environmental Defense Fund, Inc., are two environmental
organizations that challenge the FHWA’s selected alternative. They claim that the
FHWA abused its discretion in not selecting their proffered alternative that, when
built with a spliced-beam construction, would avoid all use of § 4(f) lands. After
examining this alternative, the FHWA determined that spliced-beam construction
would cause significantly greater harm to non–§ 4(f) wetland areas and, therefore,
deemed the spliced-beam construction “imprudent.” It also concluded that
Appellants’ favored path was imprudent because it would cause “severe social
impacts.” That path would require the construction of a new six-lane roadway
running diagonally through an established residential neighborhood, which would
result in residential and commercial relocations, would create substantial visual
and noise impacts, would require the relocation of a retirement community’s
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access road, and would have the potential to affect neighborhoods with a higher
than average number of minority households. Ultimately, the FHWA rejected
Appellants’ favored alternative as “imprudent.” Appellants now claim that these
determinations were arbitrary and capricious.
We recognize that § 4(f) sets a high bar that an agency must clear before it
may approve a project that affects any § 4(f) lands. Here, however, the FHWA
cleared that bar. “[S]evere and immitigable social impacts” associated with
Appellants’ preferred alternative would be sustained in order to avoid the use of
barely two acres of parkland in parks with nearly 10,000 acres in total. What’s
more, the FHWA worked with federal, state, and local agencies to develop
ambitious mitigation plans that include the addition of nearly 110 acres to the
affected parks. The FHWA was thorough and careful in its analysis and thoughtful
in its determination, and we can discern neither an arbitrary or capricious action
nor an abuse of discretion. Accordingly, we affirm.
I.
A.
The City of Port St. Lucie, some one hundred and fifteen miles north of
Miami, has grown rapidly in the past twenty-five years, nearly tripling in
population from about 56,000 residents in 1990 to about 164,000 residents in 2010.
The best predictions are that its population will exceed 225,000 by 2035.
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Currently, only two bridges within the City cross the North Fork St. Lucie River:
the bridge at Port St. Lucie Boulevard and the bridge at Prima Vista Boulevard.
Those bridges link the communities on the east and west sides of the river and
provide the only means of east-west emergency evacuation in case of a natural
disaster like a hurricane for residents east of the NFSLR. The existing traffic
crossing those two bridges now well exceeds the bridges’ capacities.
Indeed, the City recognized the need for a third crossing of the NFSLR as
early as 1980, and it was determined that merely widening the two existing bridges
would not provide the necessary traffic relief. The general location for the new
crossing was set between the two existing bridges, and in June 2008 the City
conducted a study to identify an appropriate corridor for the bridge (the “Corridor
Report”). After consulting advisory groups and the Federal Highway
Administration, the City concluded that Corridor 5 (the “Crosstown Parkway
Corridor”) was “the only location for a crossing that met the purpose and need for
the project.”
After selecting the Crosstown Parkway Corridor for the project, the City
conducted another report (the “Alternatives Report”) that examined ten alternative
sites within Corridor 5: a Multimodal Alternative (which involved influencing
travel behaviors and incentives), a Transportation System Management Alternative
(which involved operational and intersection improvements), and eight build
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alternatives (which involved new crossings of the NFSLR). Both the Corridor
Report and the Alternatives Report were reviewed by the Environmental Technical
Advisory Team, which for this project included the FHWA, the U.S. Army Corps
of Engineers (“Army Corps”), the U.S. Environmental Protection Agency (EPA),
the U.S. National Marine Fisheries Service (NMFS), the U.S. Fish and Wildlife
Service (FWS), the U.S. Coast Guard (USCG), the South Florida Water
Management District (SFWMD), the Florida Department of Environmental
Protection (FDEP), the Florida Fish and Wildlife Conservation Commission
(FWC), the Florida Department of Economic Opportunity, the Florida Department
of State, the Miccosukee Tribe, the Natural Resources Conservation Service, and
the St. Lucie Transportation Planning Organization (TPO). The reports were also
posted in the FDOT’s online Environmental Screening Tool. No comments were
submitted on the reports, which were accepted by the FHWA on March 24, 2009.
The City determined that the Multimodal Alternative, the Transportation System
Management Alternative, and two of the eight build alternatives did not meet the
project’s purpose and need. The FHWA reviewed the City’s reports and concluded
that, “due to the sensitive social and environmental character of the project area
and to ensure a comprehensive comparison and evaluation of alternatives, the
remaining six build alternatives would be carried forward as potential viable
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alternatives for evaluation.” The six build alternatives are depicted below in
Figure 1.
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Figure 1. Project Build Alternatives
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The FHWA, as the lead federal agency, then began preparing an
Environmental Impact Statement (EIS), as it was required to do by the National
Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970),
codified at 42 U.S.C. § 4321 et seq., and which was to be conducted by the City.
In compiling the Draft EIS, the City considered obvious concerns, including social
and economic impacts, physical-resource impacts, visual impacts, natural-resource
impacts, and cumulative impacts associated with the alternatives. An analysis
under § 4(f) of the Department of Transportation Act, Pub. L. No. 89-670, 80 Stat.
931, 934 (1966), codified as amended at 49 U.S.C. § 303(b)–(c), was also
mandated, because three properties within the project area -- the North Fork St.
Lucie River Aquatic Preserve (AP), the Savannas Preserve State Park (SPSP), and
Kiwanis Park1-- are “park[s], recreation area[s], wildlife and waterfowl refuge[s],
or historic site[s]” that are protected under § 4(f). 49 U.S.C. § 303(c). These
analyses were compiled into a Draft EIS that the FHWA approved and made
publicly available on July 1, 2011. The § 4(f) properties in relation to the build
alternatives are depicted below in Figure 2.
1
The AP includes 2,972 acres of surface water area along sixteen river miles of the river. Build
alternatives that require piers in the AP thus use protected land, because the bases of the piers use
land in the AP. The SPSP includes three separate parcels of land: the original SPSP located east
of U.S. 1, the former NFSLR Buffer Preserve located west of U.S. 1, and the Miller Tract located
west of Fort Pierce. Together, these areas total 7,186 acres. Kiwanis Park is a neighborhood
park that is owned and maintained by the City. Neither the FHWA’s preferred alternative nor
Appellants’ proffered alternative uses land in the Kiwanis Park.
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Figure 2. Section 4(f) Properties within the Project Area
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As the project sponsor, the City was tasked with the responsibility of
selecting a Locally Preferred Alternative (LPA). On November 17, 2011, after a
lengthy evaluation process, the City, the FDOT, and the TPO selected build
Alternative 1C as the LPA. On January 23, 2012, the Port St. Lucie City Council
adopted Alternative 1C as the LPA. On July 16, 2012, the FDOT wrote to the
FHWA to formally request that it identify Alternative 1C as the preferred
alternative, and on July 30, 2012, the FHWA concurred in the selection of
Alternative 1C.
The FHWA then revised the Draft Environmental Impact Statement into a
Final Environmental Impact Statement that was issued in June 2013 and was
approved for public circulation on November 14, 2013. The Final EIS was
subsequently incorporated into the FHWA’s final Record of Decision. The Final
EIS recounted the considerable efforts taken by the City and the FDOT to select an
LPA and restated the analyses that had previously been reported in the Corridor
Report, the Alternatives Report, and the Draft EIS. It analyzed each build
alternative carefully, and it also considered different methods of bridge
construction. While one method -- spliced-beam construction -- would have
resulted in Appellants’ favored Alternative 6A avoiding all use of § 4(f) land, the
FHWA determined that spliced-beam construction was imprudent due to its
substantially larger impact on non–§ 4(f) wetland habitats.
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The FHWA concluded that each build alternative used some § 4(f) land and,
therefore, that no feasible and prudent avoidance alternatives existed. Notably,
Appellants’ favored Alternative 6A was not an avoidance alternative because it
would use 0.01 acres of the Aquatic Preserve through the placement of piers in the
riverbed. It was also deemed imprudent due to its “severe social impacts.”
Although Alternative 6A would swing far to the north to avoid running through the
Savannas Preserve State Park, its northerly route would require constructing a new
six-lane roadway that would run diagonally through an established residential area
where no road currently exists. The FHWA concluded that the new road’s
negative impacts on community cohesion and local mobility were significant
enough to render this alternative imprudent.
The Federal Highway Administration then considered various alternatives to
determine which one resulted in the least overall harm. Based on its own analyses
and on the reports generated by the City, and after coordination with the public,
stakeholders, and regulatory and cooperating agencies including the FDOT, the
FDEP, and the TPO, the FHWA eliminated four of the six build alternatives,
including Alternative 6A, “due to the magnitude of their impacts to non-Section
4(f) resources after reasonable mitigation.” The FHWA then concluded that, of the
remaining two options, Alternative 1C was the option with the least overall harm
to § 4(f) lands. Although Alternative 1C would use 0.02 acres of the AP and 2.14
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acres of the SPSP after mitigation, the FHWA concluded that it had “the least
overall net harm” because “[i]t ha[d] fewer social impacts than any other build
alternative, it ha[d] the least number of residential relocations, and it require[d] no
business relocations.”
Following the selection of the Preferred Alternative, additional avoidance
and mitigation efforts were developed in coordination with the Army Corps, the
EPA, the NMFS, the SFWMD, the FDEP, and the FWS. Together, the agencies
developed a Proprietary Mitigation Plan that offered compensatory mitigation for
obtaining an easement to cross state-owned lands and a Regulatory Mitigation Plan
that focused on compensating for unavoidable impacts to natural resources.
These plans included general efforts to reduce the impact on § 4(f) lands,
such as reducing the width of the typical bridge section from 143 feet to 103 feet,
which decreased the use of the SPSP by 0.07 acres (to 2.14 acres). They also
included remedial efforts, such as water-quality improvement projects,
rehabilitation of riverbed land, and the addition of 108.55 acres of land to the
SPSP. The plans also included substantial improvements to the Halpatiokee Canoe
and Nature Trail, because Alternative 1C would block access to the head of the
trail. The FHWA and the Florida Department of Environmental Protection agreed
on a mitigation plan that would relocate the trail access point approximately 1,000
feet to the south of its present location. In addition, the plan included
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improvements to and maintenance of the currently unimproved trails that pass
through floodplain wetlands and are inundated or flooded for most of the year.
The FDEP agreed that these plans would compensate fully for the impacts of
Alternative 1C and indeed would provide substantial benefits to the SPSP by
increasing the park by 108.55 acres. The FDEP also entered into a Memorandum
of Understanding with the City stating that the City would provide the listed
mitigation efforts in exchange for an easement to cross the North Fork St. Lucie
River.
Alternative 1C was officially designated the “Preferred Alternative” in the
FHWA’s final Record of Decision that was signed on February 24, 2014. In that
decision, the FHWA concluded that “unique or unusual factors are involved in the
use of alternatives that avoid Section 4(f) properties, and the cost, social,
economic, and environmental impacts, or community disruption resulting from
such alternatives reach extraordinary magnitudes.” There were no feasible and
prudent alternatives to using land from the AP and the SPSP, and the Preferred
Alternative -- Alternative 1C -- “ha[d] the least net harm to Section 4(f) resources.”
Final agency approval was thus given to Alternative 1C.
B.
Conservation Alliance of St. Lucie County (“Conservation Alliance”) is a
nonprofit corporation whose mission is “to protect the water, soil, air, native flora
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and fauna upon which all the Earth’s creatures depend on for survival.” Many of
its members regularly visit the Halpatiokee Trail to hike, sightsee, and take
pictures. Treasure Coast Environmental Defense Fund, Inc., also known as the
Indian Riverkeeper, is a nonprofit whose mission is “to protect and restore the
waters of North America’s most diverse estuary, the Indian River Lagoon, its
tributaries, fisheries and habitats.” Its members regularly use the AP, the SPSP,
and the Halpatiokee Trail for recreational purposes.
On May 12, 2014, Conservation Alliance and Indian Riverkeeper
(hereinafter collectively referred to as “Conservation Alliance”) filed a complaint
in the United States District Court for the Southern District of Florida against the
United States Department of Transportation (DOT), DOT Secretary Anthony Foxx,
the Federal Highway Administration, FHWA Administrator Victor Mendez, and
FHWA Florida Division Administrator James Christian (hereinafter collectively
referred to as the FHWA), seeking declaratory and injunctive relief. Specifically,
Conservation Alliance alleged that the FHWA had arbitrarily and capriciously
failed to identify Alternative 6A as a feasible and prudent alternative to Alternative
1C. It also claimed that, if constructed using a spliced-beam bridge construction,
“Alternative 6A Spliced” would completely avoid the use of § 4(f) properties and
thus should have been selected over Alternative 1C.
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Conservation Alliance moved for summary judgment on March 16, 2015,
and the FHWA cross-moved for summary judgment on May 12, 2015. In the
interim, the City of Port St. Lucie moved to intervene in the case; that motion was
denied. Instead, the City participated as an amicus curiae supporting the FHWA’s
motion for summary judgment. A hearing on the motions for summary judgment
was held on October 6, 2015, and on November 5, 2015, the district court granted
the FHWA’s motion and denied Conservation Alliance’s motion. The district
court reasoned that the FHWA “acted within the scope of its authority and
reasonably concluded that neither alternative 6A or 6A with a spliced beam
construction method was a prudent alternative.” Further, the FHWA’s “ultimate
conclusion that Alternative 1C [would] cause the least overall harm [was] not
arbitrary and capricious.” Because the court could “discern no clear error in
judgment,” final summary judgment was entered for the FHWA.
Conservation Alliance timely appealed.
II.
“We review a grant of summary judgment de novo and apply the same legal
standards as the district court.” Citizens for Smart Growth v. Sec’y of Dep’t of
Transp., 669 F.3d 1203, 1210 (11th Cir. 2012). “When confronted with claims
brought under the [Administrative Procedure Act], we may only set aside agency
action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
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accordance with law.’” Id. (quoting 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) (quotation and alteration omitted). In order to determine whether the
agency’s decision was arbitrary and capricious, we “must consider whether the
decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971); see also Black Warrior Riverkeeper, Inc. v. U.S. Army
Corps of Engineers, 833 F.3d 1274, 1285 (11th Cir. 2016) (“Our inquiry is limited
by law to whether the agency’s decision was based on a consideration of the
relevant factors and, ultimately, whether it made a clear error of judgment.”). This
inquiry is “searching and careful, [but] the ultimate standard of review is a narrow
one.” Overton Park, 401 U.S. at 416.
In reviewing the FHWA’s actions, our focus is “on the administrative
record, not the district court’s opinion.” Citizens for Smart Growth, 669 F.3d at
1216. As a result, “we need accord no particular deference to the district court’s
conclusions,” and “[w]hile the Secretary’s decision is entitled to a presumption of
regularity, that presumption does not ‘shield his action from a thorough, probing,
in-depth review.’” Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772
F.2d 700, 714 (11th Cir. 1985) (quoting Overton Park, 401 U.S. at 415). But
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“[a]lthough the judicial inquiry should be penetrating, the court is not empowered
to substitute its judgment for that of the Secretary.” Id.Section 4(f) of the Department of Transportation Act and § 138 of the
Federal-Aid Highway Act, Pub. L. No. 89-575, 80 Stat. 771 (1966), codified as
amended at 23 U.S.C. § 138, “are clear and specific directives.” Overton Park, 401
U.S. at 411. Together, they provide prescriptions for the construction of federally
funded roads and highways through public lands. In particular, § 4(f) of the
Department of Transportation Act “evidences Congress’[s] response to growing
public concern over the preservation of our nation’s parklands, recreation areas,
wildlife and waterfowl refuges, and historic sites (also referred to as section 4(f)
properties).” Druid Hills, 772 F.2d at 713–14. By enacting § 4(f), “Congress
determined that section 4(f) properties should be accorded paramount
consideration in connection with all federally financed transportation projects.” Id.
at 714. The legislators enacted so high a bar because
in most cases considerations of cost, directness of route, and community
disruption will indicate that parkland should be used for highway
construction whenever possible. . . . [T]here will always be a smaller outlay
required from the public purse when parkland is used since the public
already owns the land and there will be no need to pay for right-of-way.
And since people do not live or work in parks, if a highway is built on
parkland no one will have to leave his home or give up his business.
Overton Park, 401 U.S. at 411–12 (footnote omitted).
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Section 4(f) is codified at 49 U.S.C. § 303(c). Regarding the approval of
new programs and projects, it says:
[T]he Secretary may approve a transportation program or project . . .
requiring the use of publicly owned land of a public park, recreation area, or
wildlife and waterfowl refuge of national, State, or local significance, or
land of an historic site of national, State, or local significance (as determined
by the Federal, State, or local officials having jurisdiction over the park,
area, refuge, or site) only if --
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize
harm to the park, recreation area, wildlife and waterfowl refuge, or
historic site resulting from the use.
49 U.S.C. § 303(c); see also 23 U.S.C. § 138(a). The Supreme Court has
recognized that the language of § 4(f) is “a plain and explicit bar to the use of
federal funds for construction of highways through parks -- only the most unusual
situations are exempted.” Overton Park, 401 U.S. at 411. We must, therefore, put
a thumb on the scale in favor of alternatives that avoid § 4(f) lands. In order to do
so, this Court has developed a three-part test to review an agency’s compliance
with the statute:
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?
Second, we inquire whether the Secretary’s ultimate decision was arbitrary,
capricious, or an abuse of discretion. Third, we ask if the Secretary followed
the necessary procedural requirements.
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Citizens for Smart Growth, 669 F.3d at 1216 (citations omitted). Compliance with
procedural requirements was not raised in either party’s brief; only the first two
inquiries are raised in this appeal.
A.
We begin our analysis, then, with the FHWA’s unambiguous determination
that there were no feasible and prudent alternatives to the use of § 4(f) lands.
“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.” Id. When analyzing
avoidance alternatives under § 4(f)(1), “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.
(citation omitted).
Regulations promulgated by the Secretary of Transportation define a
“feasible and prudent avoidance alternative” as one that “avoids using Section 4(f)
property and does not cause other severe problems of a magnitude that
substantially outweighs the importance of protecting the Section 4(f) property.” 23
C.F.R. § 774.17. More specifically, “[a]n alternative is not feasible if it cannot be
built as a matter of sound engineering judgment.” Id. An alternative is not prudent
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;
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(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 in paragraphs [ ](i) through [ ](v) of this
definition, that while individually minor, cumulatively cause unique
problems or impacts of extraordinary magnitude.
Id.In this case, the Final Environmental Impact Statement candidly
acknowledged that “all build alternatives, including the Preferred Alternative, use
at least one Section 4(f) property; therefore, no feasible and prudent avoidance
alternative exists.” In making that determination, the Final EIS included a § 4(f)
analysis with an extensive discussion of avoidance alternatives for both the SPSP
and the AP. The FHWA’s determination that no feasible and prudent avoidance
alternatives existed included the rejection of Appellants’ favored Alternative 6A
Spliced as imprudent. Although this alternative was feasible, it was rejected for
two distinct reasons: first, because spliced-beam construction was an imprudent
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construction method for the project; and second, because the path that Alternative
6A would follow was imprudent.
The Final EIS carefully considered different methods of construction and the
impact they would have on § 4(f) lands. Pile-bent construction, which involves the
installation of a series of piles using a top-down construction method, would
require the placement of piers in the riverbed -- thus using land within the AP.
Spliced-beam construction, which uses multiple prestressed concrete beams to
span longer lengths, does not require piers in the riverbed but would require
placing footings in the wetlands on the banks of the river that are fifteen times
greater than the supports required for pile-bent construction. Using spliced-beam
construction would allow Alternative 6A to completely span the AP and thus avoid
§ 4(f) land but, on account of the larger footings, it would use more than 67 times
as much wetland acreage as pile-bent construction (0.1012 acres versus 0.0015
acres). The FHWA’s preferred Alternative 1C could likewise avoid using the AP
if built with spliced-beam construction, but it would use 34 times as much adjacent
wetland acreage as pile-bent construction (0.5188 acres versus 0.0154 acres).
Notably, both the Florida Department of Environmental Protection -- the agency
with jurisdiction over the AP and the SPSP -- and the South Florida Water
Management District “expressed a preference for piers in the AP over additional
impacts to any adjacent wetlands.” The agencies’ preference for piers in the AP,
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combined with the fact that the overall impact on adjacent wetland habitats was so
much greater with spliced-beam construction, was sufficient reason to deem that
construction method imprudent. This conclusion was neither arbitrary nor
capricious.
Moreover, Alternative 6A was ultimately rejected as imprudent with any
construction because it would have “severe social impacts on both sides of the
NFSLR.” In considering the various alternatives, the § 4(f) analysis examined six
build alternatives as well as several alternatives that would avoid a new crossing of
the NFSLR, thereby avoiding the AP. The § 4(f) analysis cross-referenced other
sections of the Final EIS that discussed the City’s evaluation process. Notably, this
process included a scoring system that was designed by the FHWA, the City, and
the FDOT. The system included five categories, each with different point totals
reflecting their weight in the analysis: (1) meeting the project purpose and need (0–
20 points); (2) social and community impacts (0–10 points); (3) natural
environment impacts (0–10 points); (4) physical impacts (0–5 points); and
(5) project cost (0–5 points). Scoring was done first by an independent team of
consultants and then by a panel of officials from the City, the FDOT, and the TPO.
Alternative 1C received the highest score on both rounds -- 43/50 and then 39/50 --
while Alternative 6A received the second-highest scores -- 37/50 and then 36/50.
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This thorough scoring contributed to the City’s selection of Alternative 1C as the
LPA.
The FHWA’s concerns with Alternative 6A stemmed from the route’s
construction of a new six-lane highway through an established residential
neighborhood. As a result of the new road, Alternative 6A would require the
second-highest commercial relocations. It would result in the highest number of
properties with noise impacts that could not be benefited by a noise wall and would
create a “substantial visual impact west of the NFSLR.” In fact, it would
diagonally bisect neighborhood streets that are laid out on a grid system, thus
creating substantial numbers of dead ends, cul-de-sacs, redirected roads, and
continuity cuts. It was also the only alternative with the “potential for affecting
neighborhoods with a higher than average number of minority households.” Of the
residential relocations that Alternative 6A would require, 36 percent would be
minority households -- the highest percentage of all build alternatives. Alternative
6A would also require relocation of the access road into the La Buona Vita
retirement community, which “would change traffic flows within the community,
increasing noise and visual impacts.” This analysis yielded sound reasons for the
FHWA to doubt the prudency of Alternative 6A. Under 23 C.F.R. § 774.17, an
alternative is not prudent if it “involves multiple factors . . . that while individually
minor, cumulatively cause unique problems or impacts of extraordinary
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magnitude.” Noting that the “series of negative impacts” that were detailed
“would have a collective adverse social impact to the neighborhoods on both sides
of the NFSLR,” the FHWA found Alternative 6A to be imprudent “even if design
and construction issues were resolved.”
Appellants nevertheless claim that the FHWA abused its discretion because
the record did not establish that the cost or community disruption resulting from
Alternative 6A “could possibly or logically rise to the level of ‘extraordinary
magnitude’ and ‘unique problems’ as required to overcome the Overton Park bar.”
Based on the analysis we have detailed, we disagree -- the FHWA acted well
within its discretion in concluding that the cumulative harms rendered Alternative
6A imprudent. And to the extent that Appellants suggest that Overton Park’s
standard replaced or is different from the prudence standard found in § 4(f), that
argument is not supported by Overton Park itself. While Overton Park recognized
that “protection of parkland [is] to be given paramount importance,” it also
acknowledged that “Congress clearly did not intend that cost and disruption of the
community were to be ignored.” Overton Park, 401 U.S. at 412–13. See also, e.g.,
Safeguarding the Historic Hanscom Area’s Irreplaceable Resources, Inc. v. Fed.
Aviation Admin., 651 F.3d 202, 208 (1st Cir. 2011) (“The Court’s mention of
‘truly unusual,’ ‘extraordinary,’ and ‘unique’ circumstances was intended as a
gloss on the application of section 4(f) in a particular type of situation. Those
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descriptive terms were never meant to displace the statutory directive that the
agency determine whether an alternative is ‘prudent.’”); Eagle Found., Inc. v.
Dole, 813 F.2d 798, 804–05 (7th Cir. 1987) (“Overton Park was being emphatic,
not substituting ‘unique’ for ‘prudent’ in the text of § 4(f).”).
Moreover, the fact that the FHWA did not expressly use the terms
“extraordinary magnitude” or “unique problems” does not render its conclusions
arbitrary or capricious. In Citizens for Smart Growth, we concluded that an
agency’s thorough and detailed explanations “will not be found lacking simply
because they did not include the terms ‘extraordinary’ or ‘unique.’” Citizens for
Smart Growth, 669 F.3d at 1217. We are not alone in this conclusion. See, e.g.,
Comm. to Preserve Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1550–51
(10th Cir. 1993) (“The mechanical use of such language in the supporting
documents is unrelated to the documents’ substantive merit.”); Hickory
Neighborhood Defense League v. Skinner, 910 F.2d 159, 162 (4th Cir. 1990)
(“[T]he fact that the Secretary did not use the terms ‘unique’ and ‘extraordinary’
does not compel a finding that he did not comply with section 4(f) and the dictates
of Overton Park.”); Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir. 1982)
(“Whether or not the reports and studies use the ‘magic’ terminology, there has
been a reasonable and thorough review of a voluminous record.”). In this case, the
FHWA’s analysis was neither arbitrary nor capricious. It fell well within the
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FHWA’s discretion to determine that neither Alternative 6A nor Alternative 6A
Spliced was a feasible and prudent alternative to the use of § 4(f) lands in the face
of the substantial adverse impact.
B.
Having concluded that the FHWA acted within the scope of its authority in
deciding that no feasible or prudent avoidance alternatives existed, we are required
to examine whether the FHWA’s ultimate selection of Alternative 1C as the least-
harm alternative was arbitrary, capricious, or an abuse of discretion. See Citizens
for Smart Growth, 669 F.3d at 1216. Section 4(f)(2) requires that, if a
determination is made that there is no feasible or prudent alternative, the project
must include “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)(2).
Regulations promulgated by the Secretary of Transportation clarify that
“[a]ll possible planning means that all reasonable measures identified in the
Section 4(f) evaluation to minimize harm or mitigate for adverse impacts and
effects must be included in the project.” 23 C.F.R. § 774.17. For cases involving
“public parks, recreation areas, and wildlife and waterfowl refuges,” such measures
may include, inter alia, “design modifications or design goals; replacement of land
or facilities of comparable value and function; or monetary compensation to
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enhance the remaining property or to mitigate the adverse impacts of the project in
other ways.” Id. To evaluate the reasonableness of possible remedial measures,
the agency must consider the preservation purpose of the statute and:
(i) The views of the official(s) with jurisdiction over the Section 4(f)
property;
(ii) Whether the cost of the measures is a reasonable public expenditure in
light of the adverse impacts of the project on the Section 4(f) property and
the benefits of the measure to the property, . . . and
(iii) Any impacts or benefits of the measures to communities or
environmental resources outside of the Section 4(f) property.
Id. Notably, “[a]ll possible planning does not require analysis of feasible and
prudent avoidance alternatives, since such analysis will have already occurred in
the context of searching for feasible and prudent alternatives that avoid
Section 4(f) properties altogether.” Id.Under the Secretary of Transportation’s regulations, the option that does the
“least possible harm” is determined by balancing the following factors:
(i) The ability to mitigate adverse impacts to each Section 4(f) property
(including any measures that result in benefits to the property);
(ii) The relative severity of the remaining harm, after mitigation, to the
protected activities, attributes, or features that qualify each Section 4(f)
property for protection;
(iii) The relative significance of each Section 4(f) property;
(iv) The views of the official(s) with jurisdiction over each Section 4(f)
property;
(v) The degree to which each alternative meets the purpose and need for the
project;
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(vi) After reasonable mitigation, the magnitude of any adverse impacts to
resources not protected by Section 4(f); and
(vii) Substantial differences in costs among the alternatives.
23 C.F.R. § 774.3(c)(1). This is “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.” Druid Hills, 772 F.2d at 716. Unlike the § 4(f)(1) analysis,
“the 4(f)(2) analysis requires the Secretary to consider alternatives that would use
4(f) lands.” Citizens for Smart Growth, 669 F.3d at 1216. As this Court has
previously recognized, § 4(f)(2) means that “[i]f the route does not minimize harm,
it need not be selected. The Secretary is free to choose among alternatives which
cause substantially equal damage to parks or historic sites.” Druid Hills, 772 F.2d
at 716.
The FHWA was not arbitrary or capricious in its designation of Alternative
1C as the least-harmful alternative. The § 4(f) evaluation in the Final
Environmental Impact Statement included a least-harm analysis as required by
§ 4(f)(2). This section again relied on other portions of the Final EIS, and it
measured the harms associated with the various build alternatives against the seven
factors drawn from 23 C.F.R. § 774.3(c)(1). First, it considered the ability to
mitigate adverse impacts to each § 4(f) resource. All of the alternatives were equal
on this point, because the mitigation plan provided for the addition of 108.55 acres
to the SPSP that would more than counterbalance the acreage used by any
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alternative. Second, it considered the relative severity of the remaining harm to the
protected areas after mitigation. Again, all of the alternatives were equal, because
the mitigation plan would result in a net improvement to natural resources. Third,
it considered the relative significance of each § 4(f) property -- all of the affected
properties are important natural communities that provide recreational
opportunities, and the AP is additionally an important fish habitat. Fourth, it
considered the views of the officials with jurisdiction over the AP and the SPSP --
in this case, the Florida Department of Environmental Protection, which “agreed
that the mitigation plan compensates fully for the impacts and provides substantial
benefits to the SPSP.” Fifth, it considered the degree to which each alternative
would meet the project’s purpose and need and concluded that Alternative 1C met
the project’s purpose and need more efficaciously than any other alternative.
The least-harm analysis devoted the most time to the sixth factor, the
magnitude of adverse impacts from each build alternative on non–§ 4(f) properties
after reasonable mitigation. The report concluded that Alternative 1C would result
in “considerably less overall non-Section 4(f) impacts compared with all other
build alternatives,” because it would not pass near or through any existing
neighborhoods on the east side of the river and would be aligned with existing
streets on the west side of the river. While it was the only alternative that would
affect the Halpatiokee Trail, the FDEP endorsed a mitigation plan that would
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relocate the trail entrance and improve the trails, which are “unimproved” or
“inundated/flooded most of the year.” In sharp contrast, Alternative 6A “would
result in the most harm to non-Section 4(f) resources compared with all other build
alternatives.” As we have already detailed at some length, it would have “the most
severe and immitigable social impacts to communities on both sides of the
NFSLR” because it would bisect an established residential area, thereby creating
substantial adverse impacts on community cohesion and local mobility as well as
substantial visual and noise impacts. Alternative 6A was also the only alternative
that “ha[d] the potential for affecting neighborhoods with a higher than average
number of minority households.” Finally, on the seventh factor, costs were
determined to be substantially similar for all of the alternatives. Based on these
considerations, Alternatives 1F, 2D, 6A, and 6B were eliminated from
consideration, leaving only Alternatives 2A and 1C. Alternative 1C was ultimately
selected as the least-harm alternative.
This analysis was careful and thoughtful rather than arbitrary and capricious.
Section 4(f)(2) does not require the FHWA to avoid parkland at all cost, and the
agency could reasonably determine that the severe social costs associated with
adopting Alternative 6A far outweigh the social costs of Alternative 1C. While it
is true that impacts to § 4(f) resources are greater for Alternative 1C after
mitigation -- 2.16 total acres compared to Alternative 6A’s 0.01 acre -- a parcel of
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2.14 acres in the SPSP constitutes less than 0.03 percent of the SPSP’s 7,186 acres,
and a parcel of 0.02 acres in the AP constitutes less than 0.00068 percent of the
AP’s 2,972 acres. And in exchange for using SPSP land, the mitigation plan
includes the acquisition of 108.55 new acres (1.5 percent of total acreage) of
wetland area for the SPSP. Moreover, the FDEP -- the agency with jurisdiction
over the AP and the SPSP -- worked with the FHWA to evaluate the effects of the
alternatives and to design the mitigation plan, which it agrees will fully
compensate for any harm done by Alternative 1C. When the “[c]ollective
operational, visual, noise, cohesion, mobility, [ ] access impacts to
neighborhoods,” and impacts on non–§ 4(f) lands are taken into account, it was
reasonable for the FHWA to conclude that Alternative 6A would pose more harms
than Alternative 1C. The FHWA’s least-harm analysis was sufficient, its rationale
was clearly explained, and its conclusions were reasonable, rather than arbitrary or
capricious.
Finally, as required by § 4(f)(2), the FHWA’s planning included careful
consideration of reasonable measures to mitigate harm. The Final EIS’s § 4(f)
evaluation included an eight-page section titled “Measures to Minimize Harm.” In
it, harm-minimization efforts were analyzed with respect to each build alternative --
not just for Alternative 1C. This section first discussed harm-minimization
strategies that could be implemented for all build alternatives, which included,
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inter alia, a reduction in bridge width over natural habitats, use of a top-down
construction method, placement of bridge piers to avoid restricting water
movement, use of storm-water management systems, use of retaining walls, use of
noise-minimization techniques, and use of specialized equipment. The harm-
minimization section then considered measures to minimize harm for each
individual build alternative. The spliced-beam construction method was analyzed
as a potential minimization measure for Alternatives 1C and 6A. It was, again,
rejected because “[t]he amount of land used for spliced beam support structures
would be far greater than pile bent support structures,” causing harm to
neighboring wetland habitats.
As part of its planning, the FHWA worked with the City, the Army Corps,
the EPA, the NMFS, the SFWMD, and the FDEP to develop a compensatory
mitigation strategy that includes two separate focal points. The Proprietary
Mitigation Plan would provide compensatory mitigation for obtaining an easement
to cross state-owned lands, while the Regulatory Mitigation Plan would provide
compensatory mitigation for “unavoidable direct and indirect impacts to wetlands
. . . , [sovereignty submerged lands], and navigable and non-navigable waters, as
required under federal and state regulations.” Collectively, these plans include
four water-quality improvement projects, the addition of nearly 110 acres to the
affected parkland, rehabilitation of trails and other recreational opportunities, and
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the maintenance of all acquired lands by the FDEP. The beneficial effects of these
efforts well exceed the potential negative impacts of Alternative 1C, and the care
with which they were considered evinces a careful and thorough analysis.
We recognize -- as did the FHWA -- that § 4(f) requires a thumb on the scale
in favor of alternatives that avoid the use of § 4(f) lands. On this ample record,
however, we conclude that the FHWA was not arbitrary or capricious in choosing
Alternative 1C. The FHWA made its calculus carefully, giving thoughtful
consideration to a wide variety of factors, and it worked with many agencies, even
those that once opposed the project, to develop remediation plans that mitigate
harms to the affected areas. Accordingly, we AFFIRM the district court’s grant of
final summary judgment to the FHWA.
AFFIRMED.
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