honolulutraffic.com v. Fta ( 2014 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    HONOLULUTRAFFIC.COM; CLIFF              No. 13-15277
    SLATER; BENJAMIN J. CAYETANO;
    WALTER HEEN; HAWAII’S                      D.C. No.
    THOUSAND FRIENDS; THE SMALL             1:11-cv-00307-
    BUSINESS HAWAII                              AWT
    ENTREPRENEURIAL EDUCATION
    FOUNDATION; RANDALL W. ROTH;
    MICHAEL UECHI, DR.; THE                   OPINION
    OUTDOOR CIRCLE,
    Plaintiffs-Appellants,
    v.
    FEDERAL TRANSIT
    ADMINISTRATION; LESLIE ROGERS,
    in his official capacity as Federal
    Transit Administration Regional
    Administrator; PETER M. ROGOFF, in
    his official capacity as Federal
    Transit Administration
    Administrator; U.S. DEPARTMENT OF
    TRANSPORTATION; RAY LAHOOD, in
    his official capacity as Secretary of
    Transportation; THE CITY AND
    COUNTY OF HONOLULU; WAYNE
    YOSHIOKA, in his official capacity as
    Director of the City and County of
    2            HONOLULUTRAFFIC.COM V. FTA
    Honolulu Department of
    Transportation,
    Defendants-Appellees,
    and
    FAITH ACTION FOR COMMUNITY
    EQUITY; THE PACIFIC RESOURCE
    PARTNERSHIP; MELVIN UESATO,
    Intervenor-Defendants–Appellees.
    Appeal from the United States District Court
    for the District of Hawaii
    A. Wallace Tashima, Senior Circuit Judge, Presiding
    Argued and Submitted
    August 15, 2013—San Francisco, California
    Filed February 18, 2014
    Before: Mary M. Schroeder, Stephen Reinhardt,
    and Andrew D. Hurwitz, Circuit Judges.
    Opinion by Judge Schroeder
    HONOLULUTRAFFIC.COM V. FTA                            3
    SUMMARY*
    National Environmental Policy Act / Jurisdiction
    The panel affirmed the district court’s dismissal of
    plaintiffs’ claims under the National Environmental Policy
    Act and Section 4(f) of the Department of Transportation Act
    arising from litigation challenging the construction of a high-
    speed rail project in Honolulu, Hawaii.
    The panel held that it had appellate jurisdiction under
    either 28 U.S.C. § 1292(a)(1), as an appeal from the grant or
    refusal of injunctive relief, or 28 U.S.C. § 1291, as an appeal
    of a final judgment. The panel also held that the
    Environmental Impact Statement’s identification of the
    project objectives, and analysis of alternatives, satisfied the
    National Environmental Policy Act’s requirements. The
    panel further held the defendants did not violate Section 4(f)
    of the Department of Transportation Act where the
    defendants did not adopt a Managed Lanes Alternative or bus
    rapid transit alternative, and where defendants made a good
    faith and reasonable effort to identify known archeological
    sites along the proposed project route and developed an
    appropriate plan for dealing with such sites that may be
    discovered during construction.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4             HONOLULUTRAFFIC.COM V. FTA
    COUNSEL
    Nicholas C. Yost (argued) and Matthew G. Adams, Dentons
    US LLP, San Francisco, California, for Plaintiffs-Appellants.
    Robert G. Dreher, Acting Assistant Attorney General, Brian
    C. Toth, David Glazer, and David C. Shilton (argued),
    Attorneys, Kathryn B. Thomson, Acting General Counsel,
    Paul M. Grier, Assistant General Counsel for Litigation, Peter
    J. Plocki, Deputy Assistant General Counsel for Litigation,
    United States Department of Justice, Washington, D.C.;
    Timothy H. Goodman, Senior Trial Attorney, United States
    Department of Transportation, Washington, D.C.; Dorval R.
    Carter, Jr., Chief Counsel, Nancy-Ellen Zusman, Assistant
    Chief Counsel, Joonsik Maing and Renee Marler, Attorney-
    Advisors, Federal Transit Administration, Washington, D.C.,
    for Defendants-Appellees Federal Transit Administration, et
    al.
    Robert D. Thornton (argued), Special Deputy Corporation
    Counsel, City and County of Honolulu, Nossaman LLP,
    Irvine, California; Edward V.A. Kussy, Special Deputy
    Corporation Counsel, City and County of Honolulu,
    Nossaman LLP, Washington, D.C.; John P. Manaut and
    Lindsay N. McAneeley, Special Deputies Corporation
    Counsel, City and County of Honolulu, Carlsmith Ball LLP,
    Honolulu, Hawaii; Donna Y.L. Leong and Don S. Kitaoka,
    Deputy Corporation Counsel, City and County of Honolulu,
    Honolulu, Hawaii, for Defendants-Appellees The City and
    County of Honolulu and Michael Formby.
    William Meheula (argued), Meheula & Devens LLP,
    Honolulu, Hawaii, for Intervenors-Defendants-Appellees.
    HONOLULUTRAFFIC.COM V. FTA                    5
    Elizabeth S. Merritt, Deputy General Counsel, National Trust
    for Historic Preservation, Washington, D.C., for Amicus
    Curiae National Trust for Historic Preservation.
    OPINION
    SCHROEDER, Circuit Judge:
    I. INTRODUCTION
    This litigation represents a challenge to the construction
    of a 20-mile, high-speed rail system (the “Project”) from the
    western portion of Oahu through the downtown area of
    Honolulu, Hawaii. Honolulu has been unsuccessfully
    struggling to cope with traffic congestion since the mid-
    1960s. That was when Congress passed the Urban Mass
    Transportation Act of 1964, later amended in the Federal-Aid
    Highway Act of 1978, which mandated the creation of
    Metropolitan Planning boards to develop long-range plans for
    efficient public transportation. See 49 U.S.C. §§ 5303 and
    5304. Honolulu is now reportedly the second-most congested
    metropolitan area in the nation. Courtney Subramanian, Top
    10 U.S. Cities with the Worst Traffic, Time (May 7, 2013),
    newsfeed.time.com/2013/05/07/top-10-u-s-cities-with-the-
    worst-traffic/.
    In earlier decades, Honolulu developed plans for a rail
    system and later for a bus system that never came to fruition.
    Its efforts are documented in the Environmental Impact
    Statement (“EIS”) that was prepared for the project we deal
    with in this case. A survey in 2004 showed broad public
    support for the concept of a rail system, and in 2005 the
    Legislature provided the funding mechanism for such a
    6             HONOLULUTRAFFIC.COM V. FTA
    system. The construction of an elevated, high-capacity rail
    system from the University of Hawaii campus at Manoa,
    through downtown Honolulu, to an agricultural area known
    as Kapolei is now underway.
    Plaintiffs are a consortium of interest groups and
    individuals opposing the Project. They filed the action in
    2011 against the Federal Transit Administration (“FTA”), the
    U.S. Department of Transportation (“DOT”), the City and
    County of Honolulu, and various federal and local
    administrators. Plaintiffs raise challenges under the National
    Environmental Policy Act (“NEPA”), 42 U.S.C.
    §§ 4321–4347, the National Historic Preservation Act
    (“NHPA”), 16 U.S.C. §§ 470 to 470x-6, and Section 4(f) of
    the Department of Transportation Act, 49 U.S.C. § 303. The
    litigation reflects the controversies that continue over the
    method and route of mass transit on Oahu.
    The district court granted summary judgment to
    Defendants on the NEPA claims, the NHPA claims, and all
    but three of the Section 4(f) claims, thereby permitting
    construction to continue on the first three phases. Plaintiffs
    appeal. In addition, the court enjoined construction of the
    fourth phase of the Project pending a remand to the agency on
    the remaining Section 4(f) claims. There is no appeal with
    respect to Phase 4.
    We first deal with Defendants’ objection to appellate
    jurisdiction, and we then affirm on the merits.
    HONOLULUTRAFFIC.COM V. FTA                     7
    II. BACKGROUND
    Federal law requires long-range planning for a federally
    funded transportation system in order to identify local
    purposes and stating federal objectives.
    On December 7, 2005, the FTA published its Notice of
    Intent (“2005 NOI”) to prepare an EIS and Alternatives
    Analysis (“AA”) for transit service in Oahu’s corridor linking
    Kapolei with Waikiki and the University of Hawaii campus
    at Manoa. An AA is required for federal funding under the
    Department of Transportation’s New Starts Program. See
    49 U.S.C. § 5309. The AA process proceeded in three steps.
    First, on October 24, 2006, the City prepared an
    “Alternatives Screening Memo” identifying the Project’s
    purpose and need as providing improved mobility in the
    highly congested east-west transportation corridor; providing
    faster, more reliable public transportation services in the
    corridor than those currently operating in mixed-flow traffic;
    providing an alternative to private automobile travel;
    improving mobility for travelers; improving transportation
    system reliability; and improving transportation equity for all
    travelers. It identified several alternatives to consider for
    meeting the City’s objectives, including No Build, a Fixed
    Guideway alternative (public transportation using a separate
    right-of-way), Transportation Systems Management
    (improvements to the existing transportation system,
    including optimizing bus service), and a Managed Lanes
    Alternative (“MLA”) (a new roadway for buses and other
    high-occupancy vehicles), and several others.
    Second, the City prepared an Alternatives Analysis
    Report for the Honolulu City Council. That report evaluated
    8             HONOLULUTRAFFIC.COM V. FTA
    the alternatives that had survived the City’s screening
    process, concluding that the Transportation Systems
    Management alternative would not offer community or
    environmental benefits. It also identified several concerns
    with the MLA, including the possibility of congestion on
    local roadways near entrances and exits to managed
    lanes, project costs and eligibility for federal funding,
    and integration of managed lanes with transit service. The
    Report concluded that the Fixed Guideway alternative was
    the most effective alternative in accommodating longer
    corridor transit trips and increased work commutes, reducing
    travel time, and consuming the least energy.
    Third, the City Council formed a “Transit Advisory Task
    Force” to “review the AA and [] make findings and
    recommendations to assist the Council in the selection of a
    Locally Preferred Alternative.” 49 U.S.C. § 5309(d)(2)(A)(i)
    (requiring selection of a locally preferred alternative pursuant
    to NEPA). The City Council passed an ordinance in January
    2007 selecting an elevated Fixed Guideway system as its
    preferred alternative, stating that “a fixed guideway system is
    the best selection for the long-term needs and demands of our
    growing island population.”
    On March 15, 2007, the FTA published a Notice of Intent
    to prepare an EIS (“2007 NOI”). The NOI requested public
    comment on five possible transit technologies: light rail, rapid
    rail (steel-wheel-on-steel-rail), rubber-tire guided, magnetic
    levitation, and monorail. Experts appointed by the City
    Council reviewed responses to that request, as well as twelve
    responses from transit vehicle manufacturers, and selected
    steel-wheel-on-steel-rail as the technology for the Project.
    Honolulu voters subsequently approved a City Charter
    Amendment establishing such a system.
    HONOLULUTRAFFIC.COM V. FTA                       9
    The City and the FTA then prepared a draft EIS and a
    final EIS (“FEIS”). The FEIS evaluated a No Build option
    and three development alternatives, including a Fixed
    Guideway option from Ala Moana Center to Kapolei via the
    airport, that was ultimately selected as the preferred
    alternative. The FEIS stated that other alternatives had been
    eliminated because Fixed Guideway best met the Project’s
    purpose and need and because the City Council had selected
    it as the locally preferred alternative pursuant to 49 U.S.C.
    § 5309(d)(2)(A)(i).
    The Project’s proposed route would bring it close to
    several historic sites. The Project thus implicated Section
    4(f) of the Department of Transportation Act, which requires
    that the use of land of a historic site may be approved only if
    “(1) there is no prudent and feasible alternative to using the
    land;” and (2) the 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). “Use” is construed broadly, applying not
    only to areas physically taken, but also to those “significantly,
    adversely affected by the project.” Adler v. Lewis, 
    675 F.2d 1085
    , 1092 (9th Cir. 1982).
    The draft EIS for the Project had been subject to a public
    review period that engendered many comments concerning
    both the chosen system and the impact on historic sites. The
    FEIS analyzed more than 40 historic sites as potentially
    affected. Because the MLA would have had a lesser impact
    on historic sites than the alternative chosen for the Project,
    numerous commenters objected to the FEIS’s rejection of the
    MLA.
    10            HONOLULUTRAFFIC.COM V. FTA
    The FEIS’s final “Section 4(f) Evaluation,” relating to
    historic sites, concluded that most of the sites would not be
    used or would be subject only to de minimis use.
    Specifically, the FEIS concluded that the Project would use
    the Chinatown Historic District and the historic Dillingham
    Transportation Building, because stations would be
    constructed on those properties, but would not use Mother
    Waldron Park because the proximity of the Project route to
    that site would not directly affect its design or public use.
    On January 18, 2011, the FTA issued a Record of
    Decision (“ROD”) approving the Project. The ROD included
    a finding that there is no feasible and prudent alternative to
    the Project’s use of the Chinatown Historic District and the
    Dillingham Transportation Building. The ROD also found
    that the MLA failed to meet the Project’s “Purpose and Need”
    because it would not support forecasted population and
    employment growth and would provide little transit benefit at
    a high cost.
    Plaintiffs filed this action on May 12, 2011, seeking to
    enjoin construction on the ground that the FEIS and the ROD
    approving the Project did not comply with the requirements
    of NEPA, Section 4(f), and the regulations implementing
    those statutes. After the parties filed cross-motions for
    summary judgment, the district court in November 2012
    issued an order dismissing all of the NEPA and NHPA
    claims.
    As to the Section 4(f) claims, the district court granted
    summary judgment for Plaintiffs on three, ruling injunctive
    relief was appropriate. The Project includes four phases,
    defined geographically. The three Section 4(f) claims on
    which Plaintiffs prevailed affect only Phase 4. The court held
    HONOLULUTRAFFIC.COM V. FTA                           11
    that Defendants had failed to complete reasonable efforts to
    identify above-ground Traditional Cultural Properties
    (“TCPs”) prior to issuing the ROD. The court also held that
    Defendants had failed adequately to consider the Beretania
    Street Tunnel alternative prior to eliminating it as imprudent,
    and that Defendants had failed adequately to consider
    whether the Project will constructively use Mother Waldron
    Park.
    After holding a hearing on the appropriate remedy for the
    Section 4(f) claims, the district court issued its judgment,
    which it described as its “final Judgment, which shall include
    partial injunctive relief,” on December 27, 2012. The
    judgment incorporated the prior orders granting summary
    judgment to Defendants on all the NEPA and NHPA and
    most of the Section 4(f) claims, and to Plaintiffs on three of
    the Section 4(f) claims. The court enjoined construction of
    Phase 4 pending remand of the three Section 4(f) claims to
    the FTA. The court instructed the agency to “complete their
    identification of above ground TCPs within the corridor,
    reconsider their no-use determination for Mother Waldron
    Park . . . ” and “fully consider the prudence and feasibility of
    the Beretania tunnel alternative . . . .”1
    1
    The order provided in full as follows:
    After briefing, hearing, and disposition of this case
    on the merits, see HonoluluTraffic.com v. Fed. Transit
    Admin., 
    2012 WL 1805484
    (D. Hawaii 2012) (partial
    grant of summary judgment); Order on Cross-Motions
    for Summary Judgment, filed Nov. 1, 2012 (“Summary
    Judgment Order”), the parties and the court addressed
    the appropriate remedy. The parties submitted
    additional briefing on the scope of any remedies,
    including any equitable relief. The remedy phase was
    12           HONOLULUTRAFFIC.COM V. FTA
    fully argued and heard on December 12, 2012. After
    due consideration of those arguments, briefs, and the
    record, the court now enters its final Judgment, which
    shall include partial injunctive relief, as set forth below.
    As reflected in its prior orders, the court granted
    summary judgment to Plaintiffs on three of their § 4(f)
    claims – claims arising under § 4(f) of the Department
    of Transportation Act, 49 U.S.C. § 303. The court
    granted summary judgment to Defendants on all other
    claims raised by Plaintiffs, which include Plaintiffs’
    remaining § 4(f) claims, all claim[s] arising under the
    National Environmental Policy Act, 42 U.S.C. § 4321
    et seq., and all claims arising under § 106 of the
    National Historic Preservation Act, 16 U.S.C. § 470f.
    In entering its partial permanent injunction, the court
    has considered the well-recognized equitable factors
    that apply, see, e.g., Monsanto Co. v. Geertson Seed
    Farms, 
    130 S. Ct. 2743
    , 2756 (2010), and finds that, to
    the extent Defendants[’] actions are enjoined, the four-
    factor test, on balance favors Plaintiffs, including:
    (1) irreparable injury[;] (2) the inadequacy of monetary
    relief; (3) the balance of hardships; and (4) the public
    interest.
    IT IS, THEREFORE, ADJUDGED that this
    matter is remanded to the Federal Transit
    Administration, but without vacatur of the Record of
    Decision, to comply with the court’s Summary
    Judgment Order.
    DEFENDANTS, their officers, agents, servants,
    employees, and attorneys; and all other persons who are
    in active concert or participation with them, are hereby
    restrained and enjoined from conducting any
    construction activities and real estate acquisition
    activities in Phase 4 of the Honolulu High-Capacity
    Transit Corridor Project (the “Rail Project”). This
    injunction on Phase 4 construction activities shall
    HONOLULUTRAFFIC.COM V. FTA                           13
    Since the district court granted summary judgment to
    Plaintiffs on three of the claims affecting Phase 4, and
    granted Plaintiffs’ request to enjoin construction of that phase
    pending further agency proceedings, Plaintiffs do not appeal
    the injunction. There is no cross-appeal. Phase 4 is thus not
    involved here.
    terminate 30 days after Defendant Federal Transit
    Administration files with the court notice of
    Defendants’ compliance with the Summary Judgment
    Order and evidence of such compliance, unless
    Plaintiffs file an objection within said 30-day period
    specifying how the Federal Transit Administration has
    failed to comply with the Summary Judgment Order.
    If such objection is timely filed, this injunction shall
    remain in effect pending the court’s resolution of
    Plaintiffs’ objection(s).
    This injunction shall not prohibit, and Defendants
    may prepare, Phase 4 engineering and design plans,
    conduct geotechnical training, and conduct other
    preconstruction activities, including any activities that
    are appropriate to complete the additional analysis
    required by the Summary Judgment Order. This
    injunction shall not apply to Phases 1 through 3 of the
    Rail Project.
    Within 150–180 days of the issuance of this
    Judgment, and every 90 days thereafter, Defendants
    shall file a status report setting forth the status of
    Defendants’ compliance efforts with the terms of the
    Summary Judgment Order. Either by stipulation of all
    parties or upon noticed motion, Defendants may apply
    to except any activity otherwise prohibited by this
    injunction from its terms.
    In the exercise of its discretion, the court
    determined that each party shall bear its own costs.
    14               HONOLULUTRAFFIC.COM V. FTA
    Plaintiffs timely appeal the dismissal of the remainder of
    their claims. Plaintiffs contend that the district court should
    not have dismissed the NEPA claims, or Plaintiffs’ other
    Section 4(f) claims.
    Defendants have filed a motion to dismiss for lack of
    appellate jurisdiction, arguing that the judgment was not an
    appealable final order.
    We consider the jurisdictional issue first.
    III.      DISCUSSION
    A. Jurisdiction
    Defendants challenge our appellate jurisdiction,
    contending that the judgment is not appealable as a final
    judgment under 28 U.S.C. § 1291 (authorizing appeals as of
    right from district court judgments). Defendants argue that
    the statute does not apply because the judgment not only
    granted summary judgment for the government on the bulk of
    the claims that Plaintiffs now appeal, but also granted
    summary judgment for Plaintiffs on three Section 4(f) claims
    and enjoined Phase 4 of construction pending reconsideration
    of the claims by the agency on remand. A remand does not
    finally dispose of a claim, but ordinarily does confer appellate
    jurisdiction for purposes of a government appeal. See Alsea
    Valley Alliance v. Dep’t of Commerce, 
    358 F.3d 1181
    ,
    1184–86 (9th Cir. 2004).
    Here, Defendants could have appealed the remand order
    but did not. Plaintiffs are not even aggrieved by it. Since no
    party wants us to review the remand of the Section 4(f)
    claims, the remand should not defeat our jurisdiction to
    HONOLULUTRAFFIC.COM V. FTA                       15
    review the unquestionably final dismissal of the remainder of
    the claims. We have said that the final judgment rule “deals
    in practice, not theory.” Sierra Forest Legacy v. Sherman,
    
    646 F.3d 1161
    , 1175 (9th Cir. 2011). As a practical matter,
    the work of the district court as to the dismissed claims is
    complete, and review of those claims is appropriate under
    § 1291.
    Moreover, even if the judgment were not appealable as a
    matter of finality, it would be reviewable under § 1292(a)(1)
    as an appeal from the grant or refusal of injunctive relief.
    Indeed, this litigation has always been about injunctive relief,
    i.e., stopping construction of the rail system. This is apparent
    when we look back on the nature of the underlying dispute
    and the district court’s resolution of it. When Plaintiffs
    initiated litigation in 2011, their complaint in its title said it
    sought “injunctive and declaratory relief.” In the body of the
    complaint, Plaintiffs requested injunctive relief requiring
    Defendants to halt progress on the Project, withdraw the
    ROD, and withhold re-approval until the requirements of
    NEPA and Section 4(f) had been met and all reasonable
    alternatives had been considered. The district court’s entry of
    summary judgment in favor of Defendants on the NEPA
    claims thus denied Plaintiffs’ request for injunctive relief on
    all of the dismissed claims.
    Defendants’ jurisdictional argument concerns the lack of
    technical finality of the order under § 1291. The argument
    does not mention § 1292(a)(1), which Plaintiffs correctly
    point out is an alternative basis for appellate jurisdiction in
    this case. Work on the rail system is going forward and the
    issues need to be resolved. Since all of Plaintiffs’ claims
    were for injunctive relief, we have appellate jurisdiction
    under § 1292(a)(1). We hold that we have jurisdiction under
    16            HONOLULUTRAFFIC.COM V. FTA
    either § 1292(a)(1) or § 1291 (or both). We therefore turn to
    the merits of Plaintiffs’ claims.
    B. NEPA Claims
    Plaintiffs’ challenges under NEPA are directed principally
    to the choice of the steel-wheel-on-steel-rail Fixed Guideway
    system. Plaintiffs contend that the district court erred in
    granting summary judgment on their NEPA claims because
    Defendants (1) unreasonably restricted the Project’s purpose
    and need, and (2) did not consider all reasonable alternatives
    as required under that Act and its regulations.
    An EIS must state the underlying purpose and need for
    the proposed action. See 40 C.F.R. § 1502.13. Courts
    evaluate an agency’s statement of purpose under a
    reasonableness standard, 
    id., and in
    assessing reasonableness,
    must consider the statutory context of the federal action at
    issue, see League of Wilderness Defenders v. U.S. Forest
    Serv., 
    689 F.3d 1060
    , 1070 (9th Cir. 2012). Agencies enjoy
    “considerable discretion” in defining the purpose and need of
    a project, but they may not define the project’s objectives in
    terms so “unreasonably narrow,” that only one alternative
    would accomplish the goals of the project. Nat’l Parks &
    Conservation Ass’n v. Bureau of Land Mgmt., 
    606 F.3d 1058
    ,
    1070 (9th Cir. 2010). The EIS would then become merely a
    foreordained formality. 
    Id. Plaintiffs claim
    the EIS
    objectives were too narrow.
    The FEIS describes the Project’s purpose as follows:
    (1) “to provide high-capacity rapid transit in the highly
    congested east-west transportation corridor between Kapolei
    and University of Hawaii Manoa;” (2) “to provide faster,
    more reliable public transportation service in the study
    HONOLULUTRAFFIC.COM V. FTA                      17
    corridor than can be achieved with buses operating in
    congested mixed-flow traffic;” (3) “to provide reliable
    mobility in areas of the study corridor where people of
    limited income and an aging population live;” (4) “to serve
    rapidly developing areas of the study corridor;” and (5) to
    “provide additional transit capacity [and] an alternative to
    private automobile travel, and [to] improve transit links
    within the study corridor.” It describes the need for transit
    improvements as follows: (1) “Improve corridor mobility;”
    (2) “Improve corridor travel reliability;” (3) “Improve access
    to planned development to support City policy to develop a
    second urban center;” and (4) “Improve transportation
    equity.”
    The purpose was defined in accordance with the
    statutorily mandated formulation of the transportation plan
    that preceded the FEIS. That plan was the 2004 Oahu
    Metropolitan Planning Organization, Regional Transportation
    Plan (“2004 ORTP”). The stated objectives comply with the
    intent of the relevant federal statutes. Specifically, the Safe
    Accountable Flexible Efficient Transportation Equity Act: A
    Legacy for Users (“SAFETEA-LU”) provides that a
    federally-funded transportation plan’s purposes may include
    “achieving a transportation objective identified in an
    applicable . . . metropolitan transportation plan.” See
    23 U.S.C. § 139(f)(3). The 2004 ORTP had concluded that
    a high-capacity, high-speed transit project connecting west
    Oahu with downtown Honolulu was necessary to implement
    Oahu’s land use policies. It also identified a Fixed Guideway
    system as a central component of that plan. Moreover, the
    statute authorizing the federal New Starts transportation
    program states that it is in the interest of the United States to
    foster transportation systems that maximize safe, secure, and
    efficient mobility of individuals, minimize environmental
    18            HONOLULUTRAFFIC.COM V. FTA
    impacts, and minimize fuel consumption, 49 U.S.C.
    § 5301(a), and that one of the purposes of the program is to
    provide financial assistance to state and local governments in
    order to improve mobility for elderly and economically
    disadvantaged individuals, 49 U.S.C. § 5301(f)(4). The
    Project’s stated objectives are consistent with all these
    purposes.
    Viewed in its statutory context, the Project’s objectives
    are not so narrowly defined that only one alternative would
    accomplish them. The statement of purpose and need is
    broad enough to allow the agency to assess various routing
    options and technologies for a high-capacity, high-speed
    transit project. The district court therefore properly
    concluded that it is reasonable, stating: “Because the
    statement of purpose and need did not foreclose all
    alternatives, and because it was shaped by federal legislative
    purposes, it was reasonable.”
    NEPA also requires an EIS to discuss, among other
    things, alternatives to the proposed action. 42 U.S.C.
    § 4332(2)(C). The range of alternatives that an EIS must
    consider is “dictated by the nature and scope of the proposed
    action.” Friends of Yosemite Valley v. Kempthorne, 
    520 F.3d 1025
    , 1038 (9th Cir. 2008). “Judicial review of the range of
    alternatives considered by an agency is governed by a ‘rule of
    reason’ that requires an agency to set forth only those
    alternatives necessary to permit a ‘reasoned choice.’” State
    of Cal. v. Block, 
    690 F.2d 753
    , 767 (9th Cir. 1982). “An
    agency is under no obligation to consider every possible
    alternative to a proposed action, nor must it consider
    alternatives that are unlikely to be implemented or those
    inconsistent with its basic policy objectives.” Seattle
    HONOLULUTRAFFIC.COM V. FTA                       19
    Audubon Soc’y v. Moseley, 
    80 F.3d 1401
    , 1404 (9th Cir.
    1996).
    Plaintiffs contend that the EIS did not properly consider
    all reasonable alternatives and should have considered
    alternatives the state had earlier rejected. In this case, the EIS
    did not expressly consider alternatives that had earlier been
    ruled out in the screening process conducted by the state.
    Plaintiffs therefore argue that the City and the FTA
    improperly relied on the AA process to exclude certain
    alternatives such as the MLA and light rail from detailed
    consideration.
    We have held, however, that an agency does not violate
    NEPA by refusing to discuss alternatives already rejected in
    prior state studies. Laguna Greebelt, Inc. v. Dep’t of Transp.,
    
    42 F.3d 517
    , 524, n.6 (9th Cir. 1994). Under applicable
    federal regulations, a state-prepared AA may be used as part
    of the NEPA process as long as it meets certain requirements,
    including that (1) the federal lead agency furnished guidance
    in the AA’s preparation and independently evaluated the
    document, 23 U.S.C. § 139(c)(3), and (2) the AA was
    conducted with public review and a reasonable opportunity to
    comment, 23 C.F.R. § 450.318(b)(2)(ii)–(iii).
    The City prepared the AA with the benefit of public
    comment and federal guidance. The district court cited
    evidence in the record that the FTA furnished guidance
    during the AA’s preparation and independently evaluated it,
    including letters between the City and the FTA about funding
    for alternatives considered in the AA, the ROD’s approval of
    the AA, internal FTA discussions about AA logistics, and the
    FTA’s indication that it would review the AA prior to
    publication. The district court also pointed to the many
    20            HONOLULUTRAFFIC.COM V. FTA
    opportunities for public comment that generated over 3,000
    comments from the public on the AA before the City selected
    the locally preferred alternative. The district court properly
    concluded that Defendants did not err in relying on the AA
    prepared by the state to help identify reasonable alternatives
    as part of the NEPA process.
    Plaintiffs’ real quarrel with the process is that it failed to
    consider Plaintiffs’ proposed three-lane MLA alternative.
    The MLA alternative proposed construction of lanes
    dedicated for use by buses, high-occupancy vehicles, and toll-
    paying single-occupant vehicles, managed to maintain free-
    flowing speeds between Waiawa Interchange and Iwilei.
    Variations of the alternative included a two-lane plan versus
    a three-lane plan, and reversible lanes to allow higher
    capacity during peak hours. The Defendants did consider a
    two-lane alternative that the FEIS specifically addressed and
    rejected for cost reasons. The three-lane MLA plan would
    have been even more costly. The district court determined
    that the estimates in the AA analysis were reasonable, and the
    Director of the City and County of Honolulu’s Department of
    Transportation Services specifically stated that the three-lane
    alternative would increase costs.
    Plaintiffs contend on appeal, as they did before the district
    court, that Defendants should have used a Tampa, Florida
    project for purposes of cost comparison, and should not have
    assumed that the MLA would be ineligible for federal
    funding. However, the City Council’s Transit Advisory Task
    Force had concluded that the AA’s cost estimates were “fairly
    and consistently prepared, and that they may be used for both
    planning and cost comparisons,” and that the Tampa project
    was not a good cost comparator because of the many
    HONOLULUTRAFFIC.COM V. FTA                    21
    differences between the two projects. The district court
    correctly ruled this was not unreasonable.
    Plaintiffs finally maintain that Defendants arbitrarily and
    capriciously excluded the light-rail alternative from the EIS.
    Here too, Defendants properly relied on the AA process to
    eliminate alternatives, including corridor-wide light rail and
    light rail in the downtown portions of the corridor. The FEIS
    explained that those alternatives lacked feasability and
    desired capacity:
    Corridor-wide at-grade light-rail transit was
    rejected because it would have required
    conversion of traffic lanes to rail throughout
    the corridor, thereby substantially reducing
    roadway capacity since no abandoned or
    undeveloped alignments are available in the
    study corridor. At-grade light-rail would have
    required either the acquisition and removal of
    buildings throughout the corridor or the
    conversion of two or more traffic lanes.
    The EIS’s identification of the project objectives and
    analysis of alternatives satisfied NEPA’s requirements.
    C. The Dismissed Section 4(f) Claims
    The Department of Transportation Act is intended to
    preserve historic sites as far as practicable. Section 4(f)
    allows a federal project “requiring the use of land of an
    historic site” to be approved 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
    22            HONOLULUTRAFFIC.COM V. FTA
    refuge, or historic site resulting from the use.” 49 U.S.C.
    § 303(c). An alternative is not prudent if, among other things,
    it “compromises the project to a degree that it is unreasonable
    to proceed with the project in light of its stated purpose and
    need.” 23 C.F.R. § 774.17.
    Plaintiffs contend that the FTA’s approval of the Project
    violated Section 4(f) by (1) failing to adopt the MLA or bus
    rapid transit alternative in order to avoid the use of historic
    sites; and (2) failing fully to identify and evaluate Native
    Hawaiian burial sites before approving the Project.
    Defendants concluded that the MLA and bus rapid transit
    alternatives were not prudent because they did not meet the
    Project’s stated purpose and need. The record supports the
    reasonableness of that conclusion. The MLA failed to meet
    the purposes of the Project because, according to the City and
    FTA’s expert analysis, it would actually increase transit
    times, would not improve corridor mobility or travel
    reliability, and would not reduce congestion, support planned
    concentrations of future population and employment growth,
    or substantially improve service or access to transit for
    transit-dependent communities. Buses would still have to
    operate in mixed traffic, and would not alleviate roadway
    congestion. Moreover, there was no identified funding source
    for bus rapid transit.
    Plaintiffs point to a study showing that the MLA would
    reduce drive times even for people who never used the lanes.
    They contend that Defendants acted arbitrarily and
    capriciously by ignoring that evidence. That evidence,
    however, was contrary to the studies by the government. The
    FTA is entitled to rely on the opinions of its own experts, and
    HONOLULUTRAFFIC.COM V. FTA                     23
    thus its decision was not arbitrary or capricious. See Marsh
    v. Or. Natural Res. Council, 
    490 U.S. 360
    , 378 (1989).
    The FTA was not required to further document its
    determination that the MLA and bus rapid transit alternatives
    were imprudent. It did not have to make explicit findings as
    to all the data presented. Section 4(f) itself does not require
    any formal findings, and the implementing regulations
    require only “sufficient supporting documentation to
    demonstrate why there is no feasible and prudent avoidance
    alternative.” See 23 C.F.R. § 774.7; see also Adler v. Lewis,
    
    675 F.2d 1085
    , 1095 (9th Cir. 1982) (disregarding possible
    technical deficiencies in a Section 4(f) evaluation because
    “[w]hether or not the reports and studies use the ‘magic’
    terminology, there has been a reasonable and thorough
    review”); Hickory Neighborhood Def. League v. Skinner,
    
    920 F.2d 159
    , 163 (4th Cir. 1990) (holding that the rejection
    of an alternative as imprudent was amply supported by the
    record, even though it was not expressly stated). The FTA
    was entitled to rely on the findings and studies that preceded
    the decision to construct the Project.
    Plaintiffs also contend that Defendants should have
    completed their Section 4(f) identification and evaluation of
    Native Hawaiian burial sites before approving the Project.
    Federal regulations require that Section 4(f) property be
    identified and evaluated for potential use “as early as
    practicable in the development of the action when alternatives
    to the proposed action are under study.” 23 C.F.R.
    § 774.9(a). Sites are identified as eligible so long as they are
    included in, or eligible for inclusion in the National Register
    of Historic Places. See C.F.R. §§ 774.11(f), 774.17. The
    process for identifying historic sites for the National Register
    is outlined in Section 106 of the National Historic
    24            HONOLULUTRAFFIC.COM V. FTA
    Preservation Act. 16 U.S.C. § 470f (“Section 106”). Section
    106 requires the agency official to “make a reasonable and
    good faith effort to carry out appropriate identification
    efforts.” 36 C.F.R. § 800.4(b)(1).
    Plaintiffs argue that Defendants’ failure to completely
    identify all Section 4(f) sites prior to approval of the Project
    constituted an improper “phased” approach to the required
    identification and evaluation. See N. Idaho Cmty. Action
    Network v. U.S. Dep’t of Transp., 
    545 F.3d 1147
    (9th Cir.
    2008) (finding a violation of Section 4(f) where an agency
    approved a project when analysis had only been conducted
    for one of the project’s four phases and the remaining phases
    would be analyzed only after the project had begun). In this
    case, Defendants did not conduct Archaeological Inventory
    Surveys (“AIS”) to identify undiscovered burial sites along
    the entire twenty-mile length of the Project prior to its
    approval, even though it is likely that construction may
    disturb some of such sites.
    Yet there was a good reason for Defendants’ reluctance to
    conduct the surveys. The exact route and placement of the
    support columns had not yet been determined, and the
    surveys themselves were likely to disturb burial sites. Any
    changes to the plans would then result in repetition of the
    surveys and more disturbance to burial sites than would
    otherwise be necessary. Instead, Defendants commissioned
    an Archeological Resources Technical Report, which used
    soil survey data, archeological records, land survey maps, and
    field observations to identify unknown burial sites and predict
    the likelihood of finding additional burial sites during
    different phases of the Project. Additionally, Defendants
    entered into a programmatic agreement with the State
    Historic Preservation Officer, the Advisory Council on
    HONOLULUTRAFFIC.COM V. FTA                    25
    Historic Preservation, and other federal entities outlining the
    procedures for burial sites that are discovered during
    construction, including requiring archaeological inventory
    surveys prior to the final engineering and design phase of the
    Project and providing specific protocols for addressing
    burials or other archaeological resources that are discovered.
    See 73 Fed. Reg. 13368–01, 13379–80 (2008)
    (recommending such an agreement as “appropriate and
    desirable”).
    Burial sites are eligible for Section 4(f) protection only
    insofar as they are identified under the Section 106 process
    for identifying historic sites. Defendants need only “make a
    reasonable and good faith effort” to identify those sites as
    required by Section 106. 36 C.F.R. § 800.4(b)(1); See also N.
    Idaho Cmty. Action 
    Network, 545 F.3d at 1159
    (noting that a
    Section 4(f) evaluation necessarily requires the agency to
    follow the Section 106 identification process); City of
    Alexandria v. Slater, 
    198 F.3d 862
    , 871 (D.C. Cir. 1999)
    (noting that a Section 4(f) evaluation is predicated on
    completion of a Section 106 identification process).
    Defendants have made a good faith and reasonable effort to
    identify known archaeological sites along the proposed
    Project route and have developed an appropriate plan for
    dealing with sites that may be discovered during construction.
    Defendants have not violated Section 4(f).
    CONCLUSION
    The judgment of the district court dismissing Plaintiffs’
    NEPA and Section 4(f) claims is AFFIRMED.