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. e du/thir dc ir c uit_1999/129Filed May 14, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-7462

CONCERNED CITIZENS ALLIANCE, INC.; JOSEPH KREMPASKY, Appellants

v.

RODNEY SLATER, Secretary, U.S. Department of Transportation; KENNETH R. WYKLE, Administrator, Federal Highway Administration; BRADLEY L. MALLORY, Secretary, Pennsylvania Department of Transportatio n

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 98-cv-00107) District Judge: Honorable Malcolm Muir

Argued: February 9, 1999

Before: BECKER, Chief Judge, McKEE, Circuit Judges LEE, District Judge.*

(Filed May 14, 1999)

ANDREA C. FERSTER, ESQUIRE (ARGUED) 1100 Seventeenth Street, N.W.

10th Floor Washington, DC 20036

Counsel for Appellants

___________________________________________________ ______________

*Honorable Donald J. Lee, United States District Ju dge for the Western District of Pennsylvania, sitting by designation.PAUL W. EDMONDSON, ESQUIRE

General Counsel
ELIZABETH S. MERRITT, ESQUIRE (ARGUED)
Associate General Counsel
LAURA S. NELSON, ESQUIRE
Assistant General Counsel
National Trust for Historic
Preservation 1785 Massachusetts Avenue, NW Washington, DC 20036

Counsel for Amici Curiae

DAVID BARASCH, ESQUIRE United States Attorney
DULCE DONOVAN, ESQUIRE (ARGUED) Assistant United States Attorney Suite 217 Federal Building

228 Walnut Street Harrisburg, PA 17108

PAUL A. TUFANO, ESQUIRE

General Counsel
JOHN M. HRUBOVCAK, ESQUIRE
Assistant Counsel
ROBERT J. SHEA, ESQUIRE
Assistant Chief Counsel
ANDREW S. GORDON, ESQUIRE
Chief Counsel Commonwealth of Pennsylvania Department of Transportation
Office of Chief Counsel 555 Walnut Street, 9th Floor Harrisburg, PA 17101-1900

Counsel for Appellees

2OPINION OF THE COURT

BECKER, Chief Judge.

Highways and historic districts mix like oil and wa ter, and when a new highway must go through an historic area, historic preservationists and federal and state hig hway officials are likely to clash over the preferred ro ute. Such controversies take on a legal cast as the result of Section 4(f) of the Department of Transportation Act, 49 U. S.C. S 303(c)(2) (amended by and codified at 23 U.S.C. S 138), which provides:

[T]he Secretary [of Transportation] shall no t approve any program or project . . . which requires the use of any . . . land from an historic site of nati onal, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such progra m includes all possible planning to minimize harm to su ch . . . historic site resulting from such use.

Id.

The situs of the present controversy is Danville, Pennsylvania, a picturesque county seat overlooking the Susquehanna River. Danville, which contains an hist oric district that was nominated to the National Registe r of Historic Places in 1994, is joined with Riverside, the town across the river, by a deteriorating bridge. In the early 1980s, federal and state agencies decided that the bridge had to be replaced. The plaintiffs, Danville area r esidents who formed the Concerned Citizens Alliance, sued th e U.S. Department of Transportation, the Federal Highway Administration ("FHWA"), and the Pennsylvania Depar tment of Transportation ("PennDoT") in the District Court over the defendants' selection of a bridge alignment that wo uld send traffic through Danville along Factory Street after it exited the new bridge.

The plaintiffs contend that the defendants failed t o comply with the requirements of Section 4(f)(2) by arbitrarily and capriciously selecting the Factory Street

3Underpass alignment as the preferred alternative. T he

plaintiffs also submit that the defendants ignored the conclusion of the Advisory Council on Historic Pres ervation ("ACHP") that the Mill Street alternative would min imize harm to the Danville Historic District. Although bo th alternatives pass through the Historic District, pl aintiffs maintain that the defendants failed to adequately s upport their conclusion that the Underpass alternative was preferable. Additionally, the plaintiffs allege tha t the defendants violated both Section 4(f) and the Natio nal Environmental Policy Act ("NEPA"), 42 U.S.C.S 4321 et seq., by failing to evaluate in detail an alternati ve that would include, in addition to rebuilding the curren t bridge, building a second bridge upstream to allow traffic to reach the nearby connection to Interstate 80 without goin g through the center of Danville. The District Court granted summary judgment for the defendants on all grounds, and this appeal followed.

We devote our attention to three critical issues. F irst, we
consider the level of deference the FHWA owes to th e ACHP, which is an expert agency created to comment on fed erallyassisted projects involving historic properties, an d whether the appropriate deference was given. Second, we eva luate whether the defendants acted arbitrarily in conclud ing that the Factory Street Underpass alternative would infl ict the
least amount of harm on the Historic District. Thir d, we
determine whether the defendants violated NEPA. We conclude that, although the views of the ACHP are e ntitled to deference, the ACHP cannot mandate a particular outcome. Rather, we must carefully review the recor d to
assure that the views of the ACHP were in fact cons idered and any concerns it raised were answered. We also conclude, based on the entire administrative record , that they were, and that the defendants did not act arbi trarily or capriciously in selecting the Factory Street Underp ass alternative. Finally, we agree with the District Co urt that the plaintiffs' NEPA claim is without merit. We the refore will affirm the judgment of the District Court.

I. Facts and Procedural History

The Danville-Riverside Bridge carries Pennsylvania Route 54 across the Susquehanna and links Danville to Riv erside.

4Route 54 (in the form of Mill Street) passes throug h the

center of Danville and provides access to Interstat e 80 a few miles northwest of Danville. In 1983, defendants FH WA and PennDoT decided to replace the old Danville-Riversi de Bridge, which was becoming unsafe.

Some twelve options were put on the table. The alternatives relevant to this appeal included the"N o-Build" alternative, the Mill Street alternative ("MS alter native"), the Factory Street At-Grade alternative ("FSAG alternat ive"), the Factory Street Underpass alternative ("FSU alternat ive"), and the Mill Street plus Bypass alternative ("MS&B alternative"). Originally, the goal of the bridge r eplacement project was just that: to replace the bridge. There fore, the FHWA initially refused to consider the MS&B alterna tive, since it involved not only replacing the existing D anvilleRiverside Bridge but also building another bridge 1 .2 miles upstream to siphon off "through" traffic to reduce the number of cars and trucks passing through Danville' s Historic District. However, Mill Street, on which m any shops and businesses are located, is the main comme rcial street in the district, and in response to comments from the Mill Street business community, the FHWA broadened the stated purpose of the project to include reducing t raffic congestion to restore the economic health of Mill S treet. The MS&B alternative was therefore placed on the table, although it never received detailed evaluation.

The Evaluation of Project Need listed twenty object ives that the bridge replacement project was to fulfill. These included replacing the deteriorating bridge; minimi zing vehicle delay and traffic congestion on Mill Street ; maintaining a link between Danville and Riverside t hrough the year 2013; managing traffic congestion on Facto ry Street; restoring the Mill Street neighborhood, qua lity of life, and business district; and minimizing pedestr ians' exposure to traffic.

Importantly, both Mill Street and Factory Street ar e in the Historic District. The Final Environmental Impa ct Statement ("FEIS") describes the collection of comm ercial, civic, and residential structures along Mill Street as dating "from the mid-nineteenth century to the early twent ieth. The two and three story buildings are predominantly

5Italianate in style with features including blind a rches,

corbelling, bracketed and highly decorative roof an d storefront cornices, columns and window hoods." The FEIS also describes the buildings on West Market Street, a street linking Mill and Factory Streets: "A range of archi tectural styles are represented including Federal, Greek Rev ival, Italianate, Second Empire, Victorian Eclectic, Quee n Anne, Shingle and Georgian Revival." Factory Street, whic h is a smaller street one block west of Mill Street, conta ins mostly
residences--both historic and non-historic--and boa sts "large, stately buildings" that were "the homes of Danville's wealthy industrialists who shaped the iron industry as well as the architectural character of the present day W est Market Street neighborhood."

Currently, bridge traffic flows along Mill Street a nd travels the length of the Historic District, althou gh to avoid the congestion, some traffic cuts west on West Mark et Street to access Factory Street, which eventually c onnects up with Route 54. The FSU alternative would realign traffic coming off the bridge on the Danville side by routi ng traffic down Factory Street and through a 345-foot "cut-and cover" underpass that would begin between Front and Market Streets and end between Market and Mahoning Streets. The MS alternative would replace the bridg e but maintain the current traffic flow along Mill Street . The FSAG alternative would simply route traffic onto an d along Factory Street without directing traffic through an underpass.

In considering the various alternatives, the FHWA engaged in the requisite Section 4(f) and NEPA anal yses. As we detail below, Section 4(f) requires the FHWA to ensure that there are "no prudent and feasible" alternativ es that would avoid using historic properties, and, in the absence of a feasible alternative, to undertake "all possib le planning
to minimize harm" to the Danville Historic District . In performing its 4(f) analysis, the FHWA garnered inp ut from the ACHP and the Pennsylvania Historical and Museum Commission ("PHMC"). Both historical groups notifie d the FHWA that they preferred the MS alternative. In a l etter dated January 14, 1994, the ACHP complained that th e FSU alternative, which was favored by FHWA and whic h

6included the underpass, would destroy vistas, lands caping,

and pedestrian and vehicle circulation patterns, an d would create an overwhelming visual intrusion in the form of large retaining walls. The ACHP also feared that the incr eased traffic on Factory Street would create noise and fu mes that would be out of character in that part of the distr ict. Noting that Mill Street was the traditional gateway into t he town,
the ACHP felt that traffic was not out of character there,
and that the MS alternative was thus the "least har m" alternative under 4(f)(2).

In response to the ACHP's concerns about the FSU alternative, PennDoT retained Mary Means & Associat es, a private consulting firm with expertise in urban des ign and economic analysis of historic areas, to evaluate th e MS and FSU alternatives. The Means firm wrote a report tha t acknowledged that the FSU cut-and-cover alternative would in fact do irreparable damage to the town, but conc luded that the FSU option would cause the least damage to the long term viability of the Historic District. The M eans Report also stated that the MS alternative failed t o relieve the serious congestion and turning movements caused by
the constant truck traffic in an older downtown.

Pursuant to NEPA, and as part of the decisional pro cess, the FHWA prepared first a Draft and then a Final Environmental Impact Statement ("EIS," "DEIS," or " FEIS"), both of which contained the required Section 4(f)
evaluations. The EIS considered all of the alternat ives listed above (and more), but concluded that only four meri ted detailed study as reasonable and prudent options: t he FSU alternative, the MS alternative, the FSAG alternati ve, and the No-Build alternative. The FHWA did not perform a detailed study of the MS&B alternative, since the A gency deemed that alternative unreasonable.

The FHWA ultimately selected the FSU alternative. T he ACHP and the FHWA signed a Memorandum of Agreement ("MOA") which stated that the FSU alternative had b een chosen and prescribed several measures to mitigate its impacts. The FHWA subsequently signed a Record of Decision ("ROD"), memorializing the FSU alternative as the selected alignment for the project. In its Section 4(f) analysis, the ROD concluded that the FSU alternativ e

7would best minimize harm to the Historic District b y (i)

physically and visually separating traffic from the Historic District; (ii) reducing traffic on Mill Street; and (iii) requiring the demolition of a smaller contributing historic s tructure
than the MS alternative would. The ROD also deemed the
Mill Street alternative undesirable because the Mil l Street traffic would detract from the atmosphere in the hi storic

downtown area.

Since construction on the bridge was scheduled to b egin in July 1998, the plaintiffs, who continued to obje ct to the selection of the FSU alternative, moved for a tempo rary restraining order and a preliminary injunction in l ate May
1998.1 The district court denied the motions.2 On t he same day, the parties also filed cross-motions for summa ry judgment. In response to the defendants' motion, th e plaintiffs attached a letter from the ACHP dated Ju ne 29, 1998, explaining that its decision to sign the MOA did not
constitute a retraction of its earlier statement th at it preferred the MS alternative. The District Court gr anted the
defendants' motion to strike the ACHP letter from t he record.3 It also denied plaintiffs' motion for a permanent i njunction, and then granted summary judgment for the defendant s.

___________________________________________________ ______________

1. At oral argument in February 1999, the parties r epresented that construction on the bridge had not yet begun.

2. Shortly thereafter, the plaintiffs simultaneousl y filed an interlocutory appeal from the denial of the TRO and a motion for an injunction pending appeal. A panel of this court denied plaint iffs' motion for an injunction pending appeal and dismissed the appeal from the denial of

the TRO.

3. The plaintiffs contend that the District Court a bused its discretion in striking the ACHP letter from the record, since tha t letter clarifies the ACHP's current position on the FSU alternative. The ACHP points out that its decision to sign the MOA did not indicate its concurrence in the FSU alternative, but rather bound the defendants to the mitigation measures contained therein. Indeed, the defendants concede that the MOA "asks for concurrence on mitigation measures no t concurrence on
the selected alternative." We need not decide wheth er the District Court abused its discretion in striking the document beca use, even factoring in the ACHP's continued opposition to the FSU alternat ive, we still conclude that the FHWA did not act arbitrarily in selecting that alternative.

8This appeal followed, over which we have jurisdicti on

pursuant to 28 U.S.C. S 1291. The plaintiffs seek t he cessation of preparatory construction activities an d a remand to FHWA with instructions to comply with Sec tion 4(f) and NEPA. When, as here, we are reviewing an administrative agency's final decision under S 706 of the Administrative Procedure Act, 5 U.S.C. S 701 et seq ., we review the district court's summary judgment decisi on de novo, while "applying the appropriate standard of r eview to the agency's decision." See Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir. 1997). The appropriate standards of review of the agency's decisions are explained belo w.

II. Discussion

A. The Requirements of Section 4(f)

Because the Danville-Riverside Bridge replacement project is a federal-aid project that will, under a ny proposed alternative, "use" at least one historic structure in Danville's Historic District,4 the project must sat isfy the requirements of Section 4(f) of the Department of Transportation Act, 23 U.S.C. S 138 ("Section 4(f)" ), as well as the requirements of NEPA, 42 U.S.C. S 4332(2)(C) (mandating an EIS and consultations with federal ag encies that have special expertise when an agency undertak es major federal action affecting the quality of the h uman environment). Section 4(f) mandates that the protec tion of historic properties, parks, recreation areas, and w ildlife refuges be given paramount importance in transporta tion planning. As discussed above, it does so by requiri ng the Secretary of Transportation to use non-historic pro perty unless there is no other feasible alternative, see Section

___________________________________________________ ______________

4. Both courts and the Department of Transportation have explained
what "use" means in this context. "The term`use' is to be construed broadly, not limited to the concept of a physical t aking, but includes areas that are significantly, adversely affected by the project." See Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 583 (9th Cir. 1998) (quoting Adler v. Lewis, 6 75 F.2d 1085, 1092 (9th Cir. 1982)); Department of Transportation Orde r No. 5610.1A, P 9(c)(1), 36 Fed. Reg. 23681 (1971).

94(f)(1), and to minimize harm to the historic prope rty once

it is determined that such land must be used, see S ection 4(f)(2). It is undisputed that only Section 4(f)(2) is at issue in this case, since each alternative before the FHW A
involved a "use" of at least one historic structure in the
Historic District.5

Under Section 4(f)(2), the Secretary of Transportat ion must perform a balancing test when weighing the alternatives under consideration. We agree with the Eleventh Circuit's explication that

[S]ection 4(f)(2) requires a simple balancin g process which totals the harm caused by each alterna te route to section 4(f) areas and selects the option which does the least harm. The only relevant factor in making a
determination whether an alternative route m inimizes harm is the quantum of harm to the park or h istoric site caused by the alternative. Consideratio ns that might make the route imprudent, e.g., failur e to satisfy the project's purpose, are simply not releva nt to this
determination. If the route does not minimiz e harm, it

need not be selected.

Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d 700, 716 (11th Cir. 1985) (citations omitted); see also Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 7 9, 85-86 (5th Cir. 1976).

___________________________________________________ ______________

5. Although the No-Build alternative would not"use" any historic property, the plaintiffs do not argue that the defe ndants violated 4(f)(1) by failing to select the No-Build alternative. Sect ion 4(f)(1) specifically requires that the Secretary must select an alternat ive that does not use historic property unless that alternative is infeas ible. Here, because the No-Build alternative would not accomplish any of th e Project Needs, it is clear why the plaintiffs do not argue that this alt ernative was feasible.

Likewise, while the No-Build alternative was consid ered in the defendants' 4(f)(2) analysis, we conclude below tha t there is an implicit "reasonable and prudent" requirement in Section 4(f )(2). See infra at Part II.D. Therefore, while the No-Build alternative tec hnically would impose the least harm on historic property under 4(f)(2), the plaintiffs do not argue that it was arbitrary not to select the No-Bu ild alternative as the preferred option.

10In a Section 4(f) challenge, the plaintiff bears th e burden

of showing by a preponderance of the evidence that the Secretary acted improperly in approving the use of protected property. See Ringsred v. Dole, 828 F.2d 1300, 1302 (8th Cir. 1987) (citing Louisiana Envtl. Soc'y , Inc. v. Dole, 707 F.2d 116, 119 (5th Cir. 1983)). Under Cit izens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), the Supreme Court made clear that while the Secreta ry of Transportation's decision is entitled to a presumpt ion of regularity, a court nevertheless must subject the Secretary's decision to "probing, in-depth" review. See id. at

415.

When reviewing a Section 4(f)(2) determination, a c ourt must decide whether the Secretary's ultimate decisi on was arbitrary, capricious, or an abuse of discretion. S ee Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 20 4 (D.C. Cir. 1991) (applying arbitrary and capricious revie w to Secretary's Section 4(f)(2) determination); Coaliti on on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 65-66 (D.C. Cir. 1987) (same). This assessment requires an evaluatio n of
whether the decision was based on consideration of the

relevant factors and whether there was a clear erro r of judgment. See Overton Park, 401 U.S. at 416. The Se ction 4(f)(2) balancing process "permits the Secretary to engage in
a broad consideration of the `relative harm' arisin g from various alternates [sic]." Coalition on Sensible Tr ansp. Inc. v. Dole, 642 F. Supp. 573, 603 (D.D.C. 1986), aff'd, 8 26 F.2d 60 (D.C. Cir. 1987).

The plaintiffs--who believe that the FSU alternativ e is not
the alternative that would cause the least harm to the
Danville Historic District--claim that the defendan ts have violated Section 4(f)(2) in three ways. First, they allege that the FHWA "completely ignore[d]" the ACHP's conclusi on that the MS alternative was preferable. Second, pla intiffs

contend that each of the defendants' stated reasons for selecting the FSU alternative deserves no weight, a nd that nothing in the administrative record supports the
conclusion that the FSU alternative best minimizes harm. Third, they argue that the defendants arbitrarily e xcluded from detailed consideration an alternative that mig ht have imposed the least harm on the Historic District--th e MS&B

11alternative. In light of these arguments, we will r eview for

abuse of discretion the Secretary's decision that t he FSU alternative would do the least harm to Section 4(f)

resources.

B. Section 106: Deference to the Advisory Council o n Historic Preservation

The initial basis on which plaintiffs contend that the defendants' actions were arbitrary and capricious i s that
the defendants failed to take into consideration th e comments of the ACHP. This consideration stems from 16 U.S.C. S 470f (also known as "Section 106"), under which the Secretary must take into consideration the comm ents of the ACHP when contemplating an undertaking that wil l
affect a site or structure listed in the National R egister. As a preliminary matter, we must determine what level of deference the Secretary owes to the ACHP's assessme nt of the impacts of the MS and FSU alternatives on the D anville
Historic District.

The ACHP is an expert federal agency created by Congress pursuant to the National Historic Preserva tion Act (codified at 16 U.S.C. S 470 et seq. (1994)) ("NHPA "). Under Section 106 of the NHPA, the ACHP must be given a "reasonable opportunity to comment" on the effect o f federally-assisted projects on historic properties. See id. We must decide what weight a federal agency must give to the ACHP's comments; the amount of deference owed the A CHP will factor into our analysis of whether the Secret ary's calculus was arbitrary or capricious.

Both courts and the relevant regulations suggest th at Section 106 imposes a limited set of obligations on federal agencies. See Waterford Citizens' Ass'n v. Reilly, 970 F.2d 1287, 1290 (4th Cir. 1992); 36 C.F.R. S 60.2(a); 36 C.F.R. S 800.6 (explaining the Section 106 process and req uiring that the Agency "consider" the ACHP's comments). Th ough the text of Section 106 does not specify what the A dvisory Council's "opportunity to comment" on a project ent ails, the Advisory Council's regulations and the legislative history demonstrate that the total response required of the agency is not great. See Waterford, 970 F.2d at 1290 (noti ng that

12Section 106 is silent on the proper disposition of a

disagreement between the Advisory Council and the a gency over the potential adverse effect of an undertaking ). Indeed, even the ACHP's own regulations, see 36 C.F.R. S 60 .2(a), state that after having given the ACHP an opportuni ty to comment, "the Federal agency may adopt any course o f action it believes is appropriate. While the Adviso ry Council comments must be taken into account and integrated into the decisionmaking process, program decisions rest with the agency implementing the undertaking." See id.

The Waterford court concluded, "There is thus no suggestion in either the statute or the legislative history that section 106 was intended to impose upon federa l agencies anything more than a duty to keep the Advi sory Council informed of the effect of federal undertaki ngs and to allow it to make suggestions to mitigate adverse impacts on the historic sites under its protection." See 97 0 F.2d at 1291; see also Vieux Carre Property Owners v. Brown , 948 F.2d 1436, 1447 (5th Cir. 1991) ("[B]ecause, as the Corps points out, the Advisory Council's comments are adv isory only and do not bind the Corps to a particular cour se of action, the Corps might decide not to require mitig ation measures even if the Advisory Council should recomm end them."); Illinois Commerce Comm'n v. Interstate Com merce Comm'n, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988) (no ting that Section 106 is a "stop, look, and listen" prov ision that merely requires that an agency acquire information before acting). We agree.

While the ACHP's recommendations do not and cannot control agency decisionmaking, the relevant agency must
demonstrate that it has read and considered those recommendations. See Coalition Against a Raised Expressway, Inc. v. Dole, No. 84-1219-C, 1986 WL 25 480 (S.D. Ala. Oct. 20, 1986) (holding that the agency complied with Section 106 when its responses to ACHP comment s indicated that it took the comments into considerat ion even though it ultimately disagreed with them), aff'd, 8 35 F.2d 803 (11th Cir. 1988).6

___________________________________________________ ______________

6. One court has suggested that judgments made by t he ACHP deserve "great weight." Preservation Coalition, Inc. v. Pie rce, 667 F.2d 851, 858 (9th Cir. 1982). However, Pierce cited no case or s tatute in support of
its "great weight" language, and we can find no support for its conclusion.

13Counseled by the congressional inclusion of Section 106

in the NHPA, we acknowledge historic preservation a s a highly important societal interest. As a civilizati on, we suffer a terrible loss if we do not make every reas onable effort to preserve our heritage, which may be enshr ined in
bricks and mortar as well as in books and documents . We think, however, that Congress was delivering this m essage primarily to the federal agencies, rather than tryi ng to instruct federal appellate courts to inject some su btle (and inevitably elusive) calibration into their process of reviewing historic preservation cases. Given the plethora of federal regulatory statutes that impose obligations on the judiciary to review administrative decisions, such a construc tion might lead to a hodge-podge jurisprudence.

We agree that the FHWA must take the ACHP's comments into account when balancing alternatives, and must demonstrate that it gave the ACHP's conclusion genuine attention: Congress did not create the ACHP so that it could be a toothless agency. However, the A CHP's own regulations are clear that the acting federal a gency need not agree with the ACHP's determination that a given
alternative is the "least harm" alternative. In sum , a federal agency undertaking a project affecting historic pro perties is not obligated to give the ACHP's opinion so much we ight that it is foreclosed from making its own decision, though
it must make clear in the record that the ACHP's co mments were taken seriously.

The ACHP opined that "the Mill Street alignment bes t avoids or reduces the effects of this project on th e Danville Historic District and should be considered the pref erable alignment." The ACHP reasoned that the proposed mitigation of the cut-and-cover section would not adequately minimize the effects of added traffic on the Factory Street neighborhood; that the FSU option wo uld create "harmful visual impacts"; and that the under pass would destroy important topographical, landscape, a nd circulation systems that contribute to the Historic District's character and significance. Although they acknowled ge the correctness of the proposition that the ACHP's conc urrence in the selected alternative is not required by stat ute, plaintiffs (in effect) nonetheless contend that bec ause the

14FHWA did not agree with the ACHP that the MS altern ative

imposed the least harm, the FHWA must have acted capriciously.

We address their contention under our proper standa rd of review. Despite the plaintiffs' assertions that the defendants ignored the ACHP's comments and thus act ed arbitrarily in selecting the FSU alternative, the
administrative record reveals that the defendants s eriously took into consideration the ACHP's objections. Firs t, the record shows that the ACHP has been heavily involve d in this project. A number of letters and memoranda tha t passed between the parties--either written by the A CHP itself or by FHWA and PennDoT--indicate that the defendants were aware of the importance of trying t o gain the ACHP's support for the FSU alternative. See, e. g., A 584 (letter from PennDoT) ("We concur that consultation with the State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation is crucia l for advancement of the preferred alternative."); A 589 (letter from FHWA) (scheduling a conference call to discuss ACHP's January 14 letter expressing a preference fo r the MS alternative); A 652 (Mary Means letter) (making revisions in draft report based on work session wit h PHMC and ACHP).

Second, after the ACHP first expressed its concerns , the defendants hired a consultant suggested to them by PHMC. Third, the ACHP and PHMC were involved in drafting the mitigation measures for the selected alternative. T he record
thus demonstrates that the defendants considered th e ACHP's comments, and at least to some degree integr ated those comments into the decisionmaking process both substantively and procedurally. Section 106 does no t require more. We do not, however, put this subject to rest with these comments about the ACHP's role; rather, in considering whether the Secretary acted arbitrarily and capriciously under Section 4(f)(2), we perforce exa mine the substantive basis for the defendants' disagreement with the
views of the ACHP.

15C. Did the Secretary Act Arbitrarily and Capricious ly

Under 4(f)(2)?

In addition to their concern about the way the defe ndants treated the ACHP's opinion, the plaintiffs submit t hat there is no support in the administrative record for choo sing the FSU alternative as the "least harm" alternative, an d that the defendants therefore acted arbitrarily in choos ing that alternative as the bridge replacement plan. Specifi cally, the plaintiffs argue that the defendants ignored the no ise, air quality, vibration, traffic, and visual impacts tha t the FSU alternative would have on the Historic District; th at the Means Report does not support defendants' position
because it focused on the economic health of the to wn rather than its historic preservation; and that Mar y Means
was biased toward the FSU alternative since she was later selected to implement part of the mitigation plans under
that alternative. We will address the first two con cerns; we find no merit in the plaintiffs' third claim, since Means drafted her report with no knowledge that she might later be retained as part of the mitigation design team, and we reject it summarily.

1. Factory Street and West Market Street

First, the plaintiffs claim that the FSU alternativ e will destroy the Factory Street "streetscape" and will c reate a visual intrusion in the form of retaining walls aro und the underpass.7 The ACHP concluded that the streetscape at the intersection of Factory and West Market Streets (under which the underpass would run) was an important ele ment of the Historic District that would be completely a ltered by the underpass. Based on National Park Service guide lines, which acknowledge that intangibles like streetscape s and layouts of roads are important to the integrity of historic districts, see U.S. Dep't of Interior, National Par k Service, National Register Bulletin #15, How to Apply the Na tional

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7. While the term "streetscape" does not appear in the NHPA or in the regulations promulgated thereunder, it is useful in a Section 106 analysis. We take it to refer to the visual impact of, and the interplay between, the natural and architectural elements tha t comprise the

affected area.

16Register Criteria for Evaluation 44 (Rev. 1991), we think

that the plaintiffs are correct that the defendants must consider more than the individual buildings and str uctures in an historic district when analyzing the impact o f a project.

In the instant case, however, the record reflects t hat the
defendants have considered the effect of the FSU al ternative on the extant streetscape. First, the underpass its elf is an attempt to minimize the effect of increased above-g round traffic on Factory Street. It not only eliminates t raffic on a portion of Factory Street, but it also eliminates i t at the most important--and beautiful--intersection in the Historic District: the intersection of Factory and West Mark et Streets.8 Second, the planned mitigation measures in the FEIS and MOA will reduce the change imposed on the streetsca pe of Factory Street. The measures create a cover section on top of the underpass, at street level, that will offer an open space in the Historic District. The landscaping and design of the cover will be developed in consultation with local officials, a citizens' advisory committee, and the State Historic Preservation Office, to be in keeping with the current character of Factory Street. Apparently, fe atures such as gas lamps and attractive landscaping are contemplated.

The plaintiffs submit that even if the top of the underpass were designed to mimic a functional stree t, the presence of safety fencing and vehicle barriers wil l still be intrusive, and the underpass will, by definition, c hange the streetscape of much of Factory Street. We agree. Ho wever, the street-level surface of the underpass will offe r some aesthetic benefits, and the plaintiffs' criticism, while valid, must be placed in the entire balancing calculus.

The plaintiffs' second argument is not unlike their first: that the defendants have ignored that the FSU alter native would alter the existing character of Factory Stree t. As the plaintiffs correctly note, "Adverse effects on hist oric properties include, but are not limited to: . . .[i ]ntroduction of visual, audible, or atmospheric elements that ar e out of

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8. The FEIS states that the "focal point" of Market Street "is the intersection of Market and Factory Streets."

17character with the property or alter its setting." See 36

C.F.R. S 800.9(b)(3). The plaintiffs characterize F actory Street as quiet and residential, in contrast to Mil l Street, where heavy traffic is to be expected. To some exte nt, the defendants agree with this characterization, noting in the FEIS that Factory Street is residential in nature. However, it appears from the record that only one of the his toric structures facing Factory Street is currently a res idence, although a number of other historic structures, suc h as carriage houses and garages, front Factory Street. 9

The Secretary did not ignore this character-alterin g drawback to the FSU alternative; indeed, the Means Report acknowledges that the FSU alternative will affect t he character of Factory Street, and balances it agains t other considerations. However, Factory Street's character may not be altered as drastically as the plaintiffs suggest , since Factory Street currently is exposed to a fair amoun t of traffic composed of cars and trucks that cut from M ill Street across Market Street onto Factory Street in order to avoid the heavy traffic on Mill Street. In addition , the Secretary took into account the benefits to the exi sting character of historic Mill Street in choosing the F SU
alternative.

Third, the plaintiffs claim that the FSU alternativ e will isolate the part of West Market Street that lies we st of Factory Street from the rest of the Danville Histor ic District by making it hard for pedestrians to cross Factory Street. We do not think that this argument has much to comm end it. The cross streets of Mahoning, Market, and Fron t will

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9. There are four large residential structures at t he intersection of Factory and West Market Streets, each of which has been deemed a contributing element to the Historic District. None of the four structures actually faces Factory Street. Moreover, Factory St reet has experienced some commercialization, since a number of buildings have been transformed into executive and professional offices . The Evaluation of Project Need records that ninety people reside on M ill Street, in secondand third-story apartments over small stores and sh ops at street level, whereas six people reside on Factory Street. Two re sidences facing Factory Street would be "used" under the FSU altern ative. One building is a non-contributing (that is, non-historic), mult i-family dwelling; the other residence is a contributing structure at 9 Fa ctory Street.

18remain open to local traffic and existing sidewalks will be

maintained. While portions of the west side of Fact ory Street will be slightly less accessible to pedestri ans under the FSU alternative, this factor is not a critical one in determining whether the defendants acted arbitraril y.

2. Traffic

The plaintiffs also complain about the increased tr affic volume on Factory Street that will occur under the FSU alternative. According to the plaintiffs, traffic w ould increase 400% on Factory Street under the FSU alter native. The defendants, by contrast, calculate that by the year 2013, traffic would have increased only 226%. Even if we assume that the plaintiffs' estimate is correct, tr affic on West Market between Factory and Mill Streets is exp ected under the FSU alternative to drop by the year 2013 from 525 cars at peak hours to 125 cars at peak, a 420% decrease. Under the MS alternative, cars and trucks would continue to detour onto Factory Street to avoid Mil l Street traffic, thus failing to abate traffic problems on either Factory or Mill Streets. However, under the FSU alt ernative,
the traffic volume on Mill Street would decrease substantially. Therefore, though the FSU alternativ e will increase traffic on Factory Street, it will reduce traffic on
other streets in the Danville Historic District. We therefore cannot hold that--based on traffic projections--it was arbitrary for the defendants to opt for the FSU alt ernative.

3. Noise, Exhaust, and Vibration

The plaintiffs argue that the defendants failed to consider
the increased traffic noise and exhaust fumes that the underpass would foster. The record suggests otherwi se. As for exhaust, the defendants calculated the expected carbon
monoxide levels at seventeen sites and determined t hat none of the predicted concentrations would exceed N ational Ambient Air Quality Standards. While plaintiffs app ear to be correct that the defendants did not study the im pact of the predicted carbon monoxide levels on the histori c structures on Factory Street, we do not believe tha t this omission alone renders the defendants' judgment arb itrary.

19Regarding noise, it is clear that the defendants pe rformed

ample noise studies at fourteen selected sites on M arket, Mill, and Factory Streets, and three sites in River side. Under the No-Build alternative, the noise levels at eleven of the seventeen sites would equal or exceed abatement levels. Under the MS alternative, the levels at eleven of t he seventeen sites would equal or exceed abatement lev els. Under the FSU alternative, the levels at eight of t he seventeen sites would equal or exceed abatement lev els. Comparing the alternatives by site, the decibel lev el is expected to be louder in 2013 under the MS alternat ive for eight sites, and louder under the FSU alternative f or six
sites.

The plaintiffs note that the FSU alternative would increase the noise impact from its present levels a t nine of seventeen sites by 2013. They fail to note that the MS alternative would increase the noise impact from it s present levels at all seventeen of the sites. Only one site will be directly impacted by portal noise under the FSU alt ernative; the structure on that site will be relocated. The p laintiffs also express concern that the underpass will elimin ate only
a small amount of noise relative to the intrusion i t imposes on the area. However, the District Court found that there were "four large residential structures" at the int ersection of Factory Street and West Market Street (all four of which are contributing structures to the Historic District) a nd that the noise impacts at the intersection of Factory and Ma rket would be significantly lower under the FSU alternat ive than the MS alternative, since those four structures wou ld be shielded from Factory Street noise by the underpass . In sum, from a noise standpoint, the FSU alternative i s quite clearly the preferable choice.

Although the plaintiffs do not indicate that they a re concerned about the effects of vibration on histori c structures under the various alternatives, the reco rd
indicates that the FSU alternative will ameliorate vibration effects both on Factory Street and on Mill Street. The
defendants calculated that the FSU alternative woul d result in "vibration magnitudes at the residences on Facto ry Street and Market Street which are less than existi ng vibration magnitudes." They reached this conclusion by

20noting that the new underpass increases the current

pavement surface area by 58%. Since vibration energ y is dissipated through pavement, the increase in traffi c presumably would be countered by the increased (and sunken) surface area of the underpass's pavement.

The Means Report compares the vibration effects on Mill and Factory Streets under current and future plans. The Report points out that the current level of vibrati on on Mill Street "threatens the long-term life of the histori c commercial structures that line the downtown's cent ral artery" and that the reduced vibration on Mill Stre et under the FSU alternative makes "redeveloping second stor y space" along Mill Street "more attractive." It also concludes
that PennDoT's vibration studies "do not indicate a significant deterioration in terms of livability ne ar the cutand-cover underpass." The record thus suggests that the FSU alternative will better ameliorate the impacts of
vibration on the Historic District.

4. Historic Structures to be Destroyed

The plaintiffs strongly object to the fact that the defendants calculated the square footage of the two historic structures to be relocated or destroyed (one under the FSU alternative and one under the MS alternative) and compared the footage when arguing that the FSU alternative was preferable. The structure to be tak en under the FSU alternative covers .1 acre, whereas the str ucture to
be taken under the MS alternative covers .3 acres. The
defendants submit that it is better to take a small er structure than a larger one. Case law teaches that the evaluation of harm requires a far more subtle calcu lation than merely totaling the number of acres affected. See District of Columbia Fed'n of Civic Ass'ns v. Volpe , 459 F.2d 1231, 1239 (D.C. Cir. 1971). Nevertheless, the plai ntiffs do not indicate why the smaller structure is the more historically significant (though it is their burden to show that the defendants' decision was arbitrary and cap ricious), and the record discussion of the two buildings in t he FEIS does not indicate that they differ significantly in historical

worth.

21The FEIS describes 2-4 Front Street, the historic

structure that would be taken under the MS alternat ive, as a multi-family residential structure. The FEIS stat es, "The two story frame dwelling which dates from the late 19th century is in good condition, but has fair historic al integrity due to the application of aluminum siding." The FEI S describes 9 Factory Street (which would be destroye d under the FSU alternative) as a two story dwelling with t he rear dating from c. 1857 and the front from the late 19t h century; the statement describes No. 9 as "fair in both condition and integrity." Although it would have be en helpful for the record to contain more detailed his torical evaluations, we cannot hold that 9 Factory Street i s of such different historical value that it was arbitrary fo r the defendants to select the alternative that would req uire No.

9 to be taken.

5. The Means Report

Finally, plaintiffs allege that the Means Report, w hich concluded that the FSU alternative was the preferre d choice, was excessively concerned with the economic benefits that Mill Street businesses would reap und er the FSU alternative. They imply that this focus on econ omics prevented an unbiased analysis of the historic harm that the FSU alternative would inflict on the Factory St reet area. In support of their argument, the plaintiffs point to language in the Means Report stating that "from a l ongterm economic vitality perspective, [the FSU Altern ative] is the better of the two PennDoT configurations under active consideration." The plaintiffs contrast that conclu sion with an acknowledgment in the Means Report that "if the Factory Street cut-and-cover alternative is built, not only does it do irreparable damage to the traditional sk eleton of this remarkably intact 19th century town, it is hig hly probable that it will foreclose any hope of a bypas s." From these two sentences, the plaintiffs argue that the Means Report acknowledged the serious damage the FSU
alternative would have on the Historic District but

22permitted the favorable economics of the FSU altern ative to

trump those historic concerns.10

While these points weigh in the balance, what is dispositive is that the Means Report concluded that "the Factory Street cut-and-cover will have the lesser n egative impact on the town's economic vitality and the over all community character of the Historic District." (emp hasis added). The Means Report, which we find to be thoro ugh and sensitive, by no means ignored the impact of ea ch alternative on the historic properties.

6. Affirmative Reasons for Selecting the FSU Altern ative

In addition to considering the FSU alternative's drawbacks, the defendants laid out in the administr ative record a number of affirmative reasons why the FSU
alternative will inflict less harm on the Historic District. First, the defendants concluded that the FSU altern ative will physically and visually separate traffic from the Historic

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10. While we need not decide whether the economic p erspective is permissible, the notion that economic vitality will keep the historic character of Mill Street intact (whereas ignoring t he economic health of the district might lead to further disintegration o f Mill Street) might

well
be a relevant factor under the NHPA in a situation like this, where the
economic and historic health of Mill Street are so tightly linked. Indeed, revitalizing the economic health of Mill Street was one of the stated purposes of the project. Mill Street merchants and professionals, who are dedicated to restoring the historic architecture on Mill Street, see supra at Part I, have formed the Danville Revitalization Corporation ("DRC"), which is committed to making capital investments in the physical appearance of Mill Street buildings and facades. Be tween 1993 and 1996, the DRC contributed financially to twenty pro jects involving storefront, signage, and facade improvements. The m erchants formed the DRC partly because the future success of the Mill S treet business district turns on the district's ability to present a "pleasant, small
town,
main street environment in an historic architectura l setting." They believe that the best way for Danville to achieve t hat kind of setting is by reducing traffic on Mill Street. It thus may be tru e that it is in both

the
historic and economic interests of Danville to redu ce traffic on Mill

Street and to protect the historic architecture that lines the street. However,

as noted above, we need not decide the appropriateness of the economic perspective in this case.23District, especially on Factory and West Market Str eets.

This traffic currently runs the length of the Histo ric District
on Mill Street. Under the No-Build and MS alternati ves, cars would continue to use West Market and Factory Streets as a way to avoid the heavy traffic on Mill Street. Therefore, even under the MS alternative, Factory S treet
would not be free from traffic. The FSU alternative would thus better manage traffic by limiting the number o f cars using Market Street and taking traffic underground for a fair part of its trip through Danville.

Second, the defendants emphasize that the FSU Alternative will greatly reduce the crippling traff ic on Mill Street, an area that is as much a part of Danville' s Historic District as Factory Street is. The Means Report dis cusses the impact of Mill Street traffic as "contributing to buildings' physical decay," and "threaten[ing] the long-term
life of the historic commercial structures that lin e" Mill Street. Ninety people currently live on Mill Street , and one of the goals of the project is to "restore the resi dential component of the Mill Street neighborhood." In bala ncing the harms and benefits of the various alternatives, the defendants justifiably concluded that the FSU alter native would do much good for Mill Street on an historic l evel.

7. Conclusion

For all of the foregoing reasons, the administrativ e record supports the FHWA's finding that the FSU alternativ e will
minimize harm to the Danville Historic District. Ev en if we
were to conclude that the MS and FSU alternatives w ould impose a comparable amount of harm to Danville's Hi storic District, we would be bound to uphold the Secretary 's decision. These decisions are vested by law not in unelected judges but in the accountable Secretary. See Druid Hills, 772 F.2d at 716 ("The Secretary is free to choose a mong alternatives which cause substantially equal damage to parks or historic sites."). The defendants performe d a large number of studies on the various ways in which the alternatives would impact the Historic District and adequately weighed the results of the studies in se lecting the preferred alternative. They also considered the more intangible benefits and harms to Mill and Factory S treets

24under the competing alternatives. As the foregoing

discussion demonstrates, they considered and respon ded to the comments of the ACHP. Therefore, they did not v iolate
Section 106. And as that discussion also demonstrat es, it was not arbitrary and capricious for the FHWA to se lect the FSU alternative under Section 4(f)(2).

D. The MS&B Alternative

The plaintiffs' final argument under Section 4(f)(2 ) is that the defendants violated the statute in designating the MS&B alternative "imprudent" and thus arbitrarily f ailing
to consider the MS&B alternative in detail in the F EIS as a possible 4(f)(2) "least harm" alternative.

Courts have held that an alternative that minimizes harm under Section 4(f)(2) can still be rejected if that alternative is infeasible or imprudent. See Hickory Neighborhoo d Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir . 1990) (Hickory I) (acknowledging that Section 4(f)(2) con tains an implied "feasible and prudent" test); Druid Hills, 772 F.2d at 716; Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F .2d 79, 86 (5th Cir. 1976) (same). While the Supreme Court has articulated what "infeasible or imprudent" means in the 4(f)(1) context, it has not spoken to what those te rms mean in the 4(f)(2) context. Under Section 4(f)(1), an a lternative is not a prudent alternative if there are truly unusua l factors present, if the cost or community disruption result ing from the alternative reaches extraordinary magnitudes, o r if the alternative presents unique problems. See Overton P ark, 401 U.S. at 413. We believe that we should apply a similar "feasible and prudent" determination to the world o f alternatives that must be considered under 4(f)(2). See Louisiana Envtl. Soc'y, 537 F.2d at 86 ("Although t here is no express feasible and prudent exception to subsec tion (2), the act clearly implies that one is present.").

We note in this regard that 4(f)(1) sets a very hig h standard for excluding alternatives that do not use historically significant property, since Congress h as determined that the use of such property should be avoided wherever possible. The standard under 4(f)(2) for eliminating alternatives need not be quite so high, since by

25the time 4(f)(2) is reached, some historically sign ificant

property will necessarily be used, as is the case h ere. We therefore hold that the Secretary must consider eve ry "feasible and prudent" alternative that uses histor ically significant land when deciding which alternative wi ll minimize harm, but that the Secretary has slightly greater leeway--compared to a 4(f)(1) inquiry--in using its expertise as a federal agency to decide what the world of fea sible and prudent alternatives should be under 4(f)(2). We al so look for guidance to caselaw examining what "infeasible or imprudent" means in the 4(f)(1) context.

The plaintiffs argue that the MS&B alternative, whi ch would require defendants to build another bridge up stream to siphon off "through" traffic that now passes thr ough Danville on its way to a remote location, would min imize the harm to the Historic District by leaving Factor y Street intact while reducing Mill Street congestion. They also point out that the Means Report concluded, "Ideally, and most leaders we discussed it with agree, a bypass is the answer."

The defendants rejected the MS&B option without performing an in-depth analysis of it because they concluded the option was imprudent and thus undeser ving of inclusion in the balancing-of-harms test mandate d by Druid Hills. In the FEIS, the defendants offered fo ur reasons why they had not evaluated MS&B thoroughly and why they had deemed the MS&B alternative imprudent and
infeasible.

First, the defendants performed a study that asked drivers who used the Danville-Riverside Bridge whet her they would use an upstream bypass. The 50% response rate resulted in 3,500 completed surveys, which the defendants felt was a sufficient sample size. Only 25% of the respondents indicated that they would use a byp ass. The plaintiffs rejoin that most of the responses ca me from local traffic, so that the results were skewed down wards, though it is not clear in the record that most of t he respondents were traveling locally. A 809 (charting purpose of respondent's trip but not destination).11 A dete rmination

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11. The plaintiffs are concerned that the proportio n of tractor-trailer responses (which comprised 2% of the total response s) is not

26that 75% of traffic would continue to use the Danvi lleRiverside Bridge calls into serious question the us efulness of the bypass alternative in drawing traffic away f rom Danville. See, e.g., Hickory Neighborhood Defense L eague v. Skinner, 910 F.2d 159, 164 (4th Cir. 1990) (Hickory II) (Secretary may reject as imprudent alternatives tha t will not solve or reduce existing traffic problems).

Second, the defendants cited the cost of the projec t as high enough to render the MS&B alternative impruden t. The defendants believed that, for financial reasons , only one structure could be built, and that building a b ypass upstream would foreclose the most important part of the project, which was to replace the Danville-Riversid e Bridge. They stated, "There is not, at this time, funding a llocated and programming scheduled to allow the study and construction of a bypass bridge." While no cost stu dies were performed on the MS&B alternative, it is reaso nable to assume that the costs required to build not only an other bridge but also to lay over a mile of roadway and t o cover condemnation, litigation, planning, engineering, an d building costs for that roadway might total many ti mes what would be required to rebuild the Danville-Rive rside Bridge. Overton Park held that an agency may not ex clude an alternative as imprudent under 4(f)(1) based on cost unless the costs would be of "extraordinary magnitu des." 401 U.S. at 413. Here, it appears that the costs of an additional bridge would meet the definition of "extraordinary."

Third, the defendants highlighted the impact of the additional construction that would be necessary to build
the MS&B alternative. The MS&B alternative would re quire that two bridges be built instead of one, and that an

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representative of the makeup of current bridge traf fic. Plaintiffs

calculate that trucks actually account for 12.5% of all bridg e traffic. Nevertheless, even if we assume that there were additional respon ses by truck drivers such that the proportion of trucks in the survey wa s 12.5%, and that each of the additional responses stated that the tr uck driver would use the bypass, the survey would have demonstrated that only 33% of current bridge users would choose the bypass. We be lieve that a 33% predicted use rate still calls into question the us efulness of the bypass
alternative.

27additional 5,500 feet of road be laid, forcing cons truction

that would impact the environment and communities n ear the second bridge site. Fourth, the defendants argu ed that there was no need for a bypass, as the FSU or MS alternative could fill the project needs on its own

.

Even if the cost increases would not be extraordina ry, the problematic results of the use survey and the commu nity and environmental disruption that would result from the additional construction combine to suggest that the MS&B alternative was neither prudent nor feasible. In th e 4(f)(1) context, courts have held that an accumulation of s maller problems that, standing alone, would not individual ly constitute unique problems may together comprise sufficient reason for rejecting an alternative as i mprudent. See Committee to Preserve Boomer Lake Park v. Depar tment of Transp., 4 F.3d 1543, 1550 (10th Cir. 1993) ("Al though none of these factors alone is clearly sufficient j ustification to reject the alternatives in this case, their cumu lative weight is sufficient to support the Secretary's dec ision."); Hickory II, 910 F.2d at 163 (holding that a cumulat ion of problems may be sufficient reason to reject an alte rnative as imprudent); Eagle Found., Inc. v. Dole, 813 F.2d 798, 805 (7th Cir. 1987) (same).

In sum, we cannot conclude that it was arbitrary to reject this alternative in view of the low predicted use r ate, the impact of the added construction, and the enormousl y increased costs, all of which, taken together, make the MS&B alternative imprudent for minimizing harm unde r 4(f)(2). We therefore hold that the defendants did not violate the requirements of Section 4(f) by failing to cons ider the MS&B alternative in greater detail.

E. NEPA

While 4(f)(2) ensures that the Secretary puts his t humb on the scales in favor of protecting historic prope rties, NEPA, 42 U.S.C. S 4321 et seq., governs the procedu res surrounding the requisite balancing. Under NEPA, Congress directed all agencies of the federal gover nment to

include in every recommendation or report on proposals for legislation and other major Fe deral

28actions significantly affecting the quality of the human

environment, a detailed statement by the res ponsible
official on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemente d,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-te rm uses of
man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commi tments of resources which would be involved in the pro posed action should it be implemented.

Prior to making any detailed statement, the responsible
Federal official shall consult with and obta in the comments of any Federal agency which has jur isdiction by law or special expertise with respect to any environmental impact involved.

Id. S 4332(2)(C).

The agency must also "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources .. . ." Id. S 4332(2)(E). The detailed statement, known as an Environmental Impact Statement ("EIS"), is the devi ce that promotes the fulfillment of NEPA's goal, which is t o "control the more destructive effects of man's technology on his environment." Township of Springfield v. Lewis, 702 F.2d 426, 429 (3d Cir. 1983) (citation omitted).

The way in which NEPA achieves that goal is a procedural one. NEPA ensures that an agency has bef ore it detailed information on significant environmental i mpacts when it makes its decisions and guarantees that thi s information is available to a larger audience. See Inland Empire Pub. Lands Council v. United States Forest S erv., 88 F.3d 754, 758 (9th Cir. 1996). "NEPA exists to ensu re a process, not to ensure any result." Id. ; see also Baltimore
Gas & Elec. Co. v. Natural Resources Defense Counci l, Inc.,

29462 U.S. 87, 97 (1983) (NEPA requires an agency to take a

"hard look" at the potential environmental conseque nces of proposed projects before taking action); Laguna Gre enbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517 , 523 (9th Cir. 1994) (NEPA does not mandate particular substa ntive results, but instead imposes only procedural requir ements).

Under NEPA, an agency decision "to go forward with a major federal action after the agency has prepared and considered an Environmental Impact Statement, requi res the court to determine whether all necessary proced ures were followed, to consider de novo all relevant que stions of law, and to examine the facts to determine whether the decision was arbitrary, capricious, and an abuse of discretion." See Concord Township v. United States, 625 F.2d 1068, 1073 (3d Cir. 1980); see also Marsh v. O regon Natural Resources Council, 490 U.S. 360, 376-77 (19 89) (stating that courts are to review factual disputes that implicate substantial agency expertise under the ar bitrary and capricious standard). We make "a pragmatic judg ment whether the [EIS's] form, content and preparation f oster both informed decision-making and informed public participation," and "[o]nce satisfied that a propos ing agency
has taken a `hard look' at a decision's environment al consequences, [our] review is at an end." City of C armel-bythe-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1150-51 (9th Cir. 1997) (citations omitted).

The plaintiffs contend that the EIS was inadequate because it failed to consider the MS&B alternative, and that the FHWA therefore violated NEPA. Specifically, the plaintiffs allege that the FHWA only considered the Bypass
alternative as a stand-alone alternative--rather th an considering it in conjunction with the MS alternati ve--and therefore rejected the bypass as not meeting the pr imary purpose of the bridge replacement project. As discu ssed above, the plaintiffs believe that the combined MS& B alternative would most successfully achieve the goa ls of the project: to replace the bridge and to limit the tra ffic volume
on Mill Street. To the extent that FHWA did conside r the MS&B alternative, the plaintiffs argue, FHWA reject ed it on the ground that funding was not available for both a new bridge and a bypass, and the plaintiffs allege that lack of

30present funding is an improper reason to reject a v iable

alternative.

The defendants respond that they considered the MS& B alternative in the DEIS and FEIS and rejected it as an unreasonable alternative for the four reasons it re jected the alternative under Section 4(f)(2): the origin and d estination study indicated that the great majority of traffic would continue to use the Danville-Riverside Bridge rathe r than the bypass; it would vastly increase the scope and construction costs of the project; the FSU alternat ive alone would satisfy the needs of the project; and it woul d cause greater social and environmental impacts than the M S or
FSU alternative would on its own.

NEPA requires the defendants to consider only
"reasonable" alternatives in the EIS. See Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1160 (9th Ci r. 1998) (holding that agency must look at "every reasonable alternative" but "set forth only those alternatives necessary to permit a reasoned choice"); Druid Hills, 772 F.2 d at 713 (stating that the EIS should "go beyond mere assert ions"
and should devote substantial treatment to "all rea sonable alternatives"). A number of courts recently have ad dressed the extent to which federal agencies must consider
alternatives under NEPA. These courts have conclude d that where the agency has examined a breadth of alternat ives
but has excluded from consideration alternatives th at would not meet the goals of the project, the agency has satisfied NEPA. See, e.g., Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569, 5 75-76 (9th Cir. 1998) (upholding the defendants' consider ation of alternatives under NEPA as sufficient to permit a r easoned choice); Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1129 (8th Cir. 1999) (uphol ding agency's decision where the FEIS had considered ten alternative plans of action based on visitor levels and effects of visitor use, eliminated two alternatives that we re deemed impractical for failing to meet the goals of the pr oject, and adequately explained why increased visitor use was not a viable goal).

In the instant case, the defendants sufficiently ex plained why the MS&B alternative was not feasible and why i t did

31not warrant a highly detailed examination. The plai ntiffs'

argument that the MS&B alternative possibly could h elp achieve the two project goals of replacing the brid ge and reducing Mill Street congestion encounters the same responses that the FHWA offered under Section 4(f): low
use rate and excessive construction and environment al costs. In addition, in arguing for the MS&B alterna tive, the plaintiffs have not offered a "specific, detailed counterproposal that had a chance of success." See City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986 ); Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th Cir. 1975) (holding that EIS did not have to consid er alternative sites where plaintiffs failed to allege specific evidentiary facts showing that the alternative site s were reasonable and viable).

In Druid Hills, the court concluded, "Although the EIS does not contain what some may feel is a detailed a nd careful analysis of the relative environmental meri ts and demerits of the proposed action and possible altern atives,
we find no sufficient basis in the record to distur b the district court's conclusion that appellees adequate ly analyzed the alternatives." Id. at 713; see also Ci ty of Carmel, 123 F.3d at 1151 (upholding a "reasonably thorough" FEIS). There is necessarily a limit to th e thoroughness with which an agency can analyze every option, see Morongo Band, 161 F.3d at 575 (noting t hat, without parameters and criteria, an agency could ge nerate countless alternatives), and our standard of review is quite deferential, see Corridor H Alternatives, Inc. v. S later, 166 F.3d 368, 374 (D.C. Cir. 1999). We conclude that th e defendants adequately considered the MS&B alternati ve and its attendant flaws before rejecting it as infe asible. We therefore will affirm the District Court's grant of summary judgment for the defendants on the NEPA issue as we ll.

The judgment of the District Court will be affirmed

.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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