honolulutraffic.com v. Fta

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.