1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1999

Concerned Citizens v. Slater

Precedential or Non-Precedential:

Docket 98-7462

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Recommended Citation

"Concerned Citizens v. Slater" (1999). 1999 Decisions. Paper 129.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/129
Filed 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 Transportation 

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 Judge 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 

 2 
OPINION OF THE COURT 

BECKER, Chief Judge. 

Highways and historic districts mix like oil and water, 

and when a new highway must go through an historic area, 

historic preservationists and federal and state highway 

officials are likely to clash over the preferred route. 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 not approve 

 any program or project . . . which requires the use of 

 any . . . land from an historic site of national, 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 program includes 

 all possible planning to minimize harm to such . . . 

 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 historic 

district that was nominated to the National Register 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 residents 

who formed the Concerned Citizens Alliance, sued the U.S. 

Department of Transportation, the Federal Highway 

Administration ("FHWA"), and the Pennsylvania Department 

of Transportation ("PennDoT") in the District Court over the 

defendants' selection of a bridge alignment that would send 

traffic through Danville along Factory Street after it exited 

the new bridge. 

The plaintiffs contend that the defendants failed to 

comply with the requirements of Section 4(f)(2) by 

arbitrarily and capriciously selecting the Factory Street 

 3 
Underpass alignment as the preferred alternative. The 

plaintiffs also submit that the defendants ignored the 

conclusion of the Advisory Council on Historic Preservation 

("ACHP") that the Mill Street alternative would minimize 

harm to the Danville Historic District. Although both 

alternatives pass through the Historic District, plaintiffs 

maintain that the defendants failed to adequately support 

their conclusion that the Underpass alternative was

preferable. Additionally, the plaintiffs allege that the 

defendants violated both Section 4(f) and the National 

Environmental Policy Act ("NEPA"), 42 U.S.C.S 4321 et 

seq., by failing to evaluate in detail an alternative that 

would include, in addition to rebuilding the current bridge, 

building a second bridge upstream to allow traffic to reach 

the nearby connection to Interstate 80 without going 

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. First, we 

consider the level of deference the FHWA owes to the ACHP, 

which is an expert agency created to comment on federallyassisted projects involving historic properties, and whether 

the appropriate deference was given. Second, we evaluate 

whether the defendants acted arbitrarily in concluding that 

the Factory Street Underpass alternative would inflict the 

least amount of harm on the Historic District. Third, we 

determine whether the defendants violated NEPA. We 

conclude that, although the views of the ACHP are entitled 

to deference, the ACHP cannot mandate a particular 

outcome. Rather, we must carefully review the record to 

assure that the views of the ACHP were in fact considered 

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 arbitrarily or 

capriciously in selecting the Factory Street Underpass 

alternative. Finally, we agree with the District Court that 

the plaintiffs' NEPA claim is without merit. We therefore 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 Riverside. 

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

center of Danville and provides access to Interstate 80 a few 

miles northwest of Danville. In 1983, defendants FHWA and 

PennDoT decided to replace the old Danville-Riverside 

Bridge, which was becoming unsafe. 

Some twelve options were put on the table. The 

alternatives relevant to this appeal included the"No-Build" 

alternative, the Mill Street alternative ("MS alternative"), the 

Factory Street At-Grade alternative ("FSAG alternative"), the 

Factory Street Underpass alternative ("FSU alternative"), 

and the Mill Street plus Bypass alternative ("MS&B 

alternative"). Originally, the goal of the bridge replacement 

project was just that: to replace the bridge. Therefore, the 

FHWA initially refused to consider the MS&B alternative, 

since it involved not only replacing the existing DanvilleRiverside 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 many 

shops and businesses are located, is the main commercial 

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 traffic 

congestion to restore the economic health of Mill Street. The 

MS&B alternative was therefore placed on the table,

although it never received detailed evaluation. 

The Evaluation of Project Need listed twenty objectives 

that the bridge replacement project was to fulfill. These 

included replacing the deteriorating bridge; minimizing 

vehicle delay and traffic congestion on Mill Street; 

maintaining a link between Danville and Riverside through 

the year 2013; managing traffic congestion on Factory 

Street; restoring the Mill Street neighborhood, quality of 

life, and business district; and minimizing pedestrians' 

exposure to traffic. 

Importantly, both Mill Street and Factory Street are in 

the Historic District. The Final Environmental Impact 

Statement ("FEIS") describes the collection of commercial, 

civic, and residential structures along Mill Street as dating 

"from the mid-nineteenth century to the early twentieth. 

The two and three story buildings are predominantly

 5 
Italianate in style with features including blind arches, 

corbelling, bracketed and highly decorative roof and 

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 architectural 

styles are represented including Federal, Greek Revival, 

Italianate, Second Empire, Victorian Eclectic, Queen Anne, 

Shingle and Georgian Revival." Factory Street, which is a 

smaller street one block west of Mill Street, contains mostly 

residences--both historic and non-historic--and boasts 

"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 West 

Market Street neighborhood." 

Currently, bridge traffic flows along Mill Street and 

travels the length of the Historic District, although to avoid 

the congestion, some traffic cuts west on West Market 

Street to access Factory Street, which eventually connects 

up with Route 54. The FSU alternative would realign traffic 

coming off the bridge on the Danville side by routing traffic 

down Factory Street and through a 345-foot "cut-andcover" underpass that would begin between Front and

Market Streets and end between Market and Mahoning 

Streets. The MS alternative would replace the bridge but 

maintain the current traffic flow along Mill Street. The 

FSAG alternative would simply route traffic onto and 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 analyses. As 

we detail below, Section 4(f) requires the FHWA to ensure 

that there are "no prudent and feasible" alternatives that 

would avoid using historic properties, and, in the absence 

of a feasible alternative, to undertake "all possible planning 

to minimize harm" to the Danville Historic District. In 

performing its 4(f) analysis, the FHWA garnered input from 

the ACHP and the Pennsylvania Historical and Museum

Commission ("PHMC"). Both historical groups notified the 

FHWA that they preferred the MS alternative. In a letter 

dated January 14, 1994, the ACHP complained that the 

FSU alternative, which was favored by FHWA and which 

 6 
included the underpass, would destroy vistas, landscaping, 

and pedestrian and vehicle circulation patterns, and would 

create an overwhelming visual intrusion in the form of large 

retaining walls. The ACHP also feared that the increased 

traffic on Factory Street would create noise and fumes that 

would be out of character in that part of the district. Noting 

that Mill Street was the traditional gateway into the town, 

the ACHP felt that traffic was not out of character there, 

and that the MS alternative was thus the "least harm" 

alternative under 4(f)(2). 

In response to the ACHP's concerns about the FSU 

alternative, PennDoT retained Mary Means & Associates, a 

private consulting firm with expertise in urban design and 

economic analysis of historic areas, to evaluate the MS and 

FSU alternatives. The Means firm wrote a report that 

acknowledged that the FSU cut-and-cover alternative would 

in fact do irreparable damage to the town, but concluded 

that the FSU option would cause the least damage to the 

long term viability of the Historic District. The Means 

Report also stated that the MS alternative failed to 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 process, 

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 alternatives listed 

above (and more), but concluded that only four merited 

detailed study as reasonable and prudent options: the FSU 

alternative, the MS alternative, the FSAG alternative, and 

the No-Build alternative. The FHWA did not perform a 

detailed study of the MS&B alternative, since the Agency 

deemed that alternative unreasonable. 

The FHWA ultimately selected the FSU alternative. The 

ACHP and the FHWA signed a Memorandum of Agreement 

("MOA") which stated that the FSU alternative had been 

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 alternative 

 7 
would best minimize harm to the Historic District by (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 structure 

than the MS alternative would. The ROD also deemed the 

Mill Street alternative undesirable because the Mill Street 

traffic would detract from the atmosphere in the historic 

downtown area. 

Since construction on the bridge was scheduled to begin 

in July 1998, the plaintiffs, who continued to object to the 

selection of the FSU alternative, moved for a temporary 

restraining order and a preliminary injunction in late May 

1998.1 The district court denied the motions.2 On the same 

day, the parties also filed cross-motions for summary 

judgment. In response to the defendants' motion, the 

plaintiffs attached a letter from the ACHP dated June 29, 

1998, explaining that its decision to sign the MOA did not 

constitute a retraction of its earlier statement that it 

preferred the MS alternative. The District Court granted the 

defendants' motion to strike the ACHP letter from the record.3 

It also denied plaintiffs' motion for a permanent injunction, 

and then granted summary judgment for the defendants. 

_________________________________________________________________ 

1. At oral argument in February 1999, the parties represented that 

construction on the bridge had not yet begun. 

2. Shortly thereafter, the plaintiffs simultaneously filed an 

interlocutory 

appeal from the denial of the TRO and a motion for an injunction 

pending appeal. A panel of this court denied plaintiffs' motion for an 

injunction pending appeal and dismissed the appeal from the denial of 

the TRO. 

3. The plaintiffs contend that the District Court abused its discretion in 

striking the ACHP letter from the record, since that 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 not concurrence on 

the selected alternative." We need not decide whether the District Court 

abused its discretion in striking the document because, even factoring in 

the ACHP's continued opposition to the FSU alternative, we still conclude 

that the FHWA did not act arbitrarily in selecting that alternative. 

 8 
This appeal followed, over which we have jurisdiction 

pursuant to 28 U.S.C. S 1291. The plaintiffs seek the 

cessation of preparatory construction activities and a 

remand to FHWA with instructions to comply with Section 

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 decision de 

novo, while "applying the appropriate standard of review 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 below. 

II. Discussion 

A. The Requirements of Section 4(f) 

Because the Danville-Riverside Bridge replacement 

project is a federal-aid project that will, under any proposed 

alternative, "use" at least one historic structure in 

Danville's Historic District,4 the project must satisfy 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 agencies 

that have special expertise when an agency undertakes 

major federal action affecting the quality of the human 

environment). Section 4(f) mandates that the protection of 

historic properties, parks, recreation areas, and wildlife 

refuges be given paramount importance in transportation 

planning. As discussed above, it does so by requiring the 

Secretary of Transportation to use non-historic property 

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 taking, 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, 675 F.2d 1085, 1092 

(9th Cir. 1982)); Department of Transportation Order No. 5610.1A, 

P 9(c)(1), 36 Fed. Reg. 23681 (1971). 

 9 
4(f)(1), and to minimize harm to the historic property once 

it is determined that such land must be used, see Section 

4(f)(2). It is undisputed that only Section 4(f)(2) is at issue 

in this case, since each alternative before the FHWA 

involved a "use" of at least one historic structure in the 

Historic District.5 

Under Section 4(f)(2), the Secretary of Transportation 

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 balancing process 

 which totals the harm caused by each alternate route 

 to section 4(f) areas and selects the option which does 

 the least harm. The only relevant factor in making a 

 determination whether an alternative route minimizes 

 harm is the quantum of harm to the park or historic 

 site caused by the alternative. Considerations that 

 might make the route imprudent, e.g., failure to satisfy 

 the project's purpose, are simply not relevant to this 

 determination. If the route does not minimize 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 79, 85-86 

(5th Cir. 1976). 

_________________________________________________________________ 

5. Although the No-Build alternative would not"use" any historic 

property, the plaintiffs do not argue that the defendants violated 4(f)(1) 

by failing to select the No-Build alternative. Section 4(f)(1) 

specifically 

requires that the Secretary must select an alternative that does not use 

historic property unless that alternative is infeasible. Here, because the 

No-Build alternative would not accomplish any of the Project Needs, it is 

clear why the plaintiffs do not argue that this alternative was feasible. 

Likewise, while the No-Build alternative was considered in the 

defendants' 4(f)(2) analysis, we conclude below that 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 technically 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-Build alternative as the 

preferred option. 

 10 
In a Section 4(f) challenge, the plaintiff bears the 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 Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), 

the Supreme Court made clear that while the Secretary of 

Transportation's decision is entitled to a presumption 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 court 

must decide whether the Secretary's ultimate decision was 

arbitrary, capricious, or an abuse of discretion. See Citizens 

Against Burlington, Inc. v. Busey, 938 F.2d 190, 204 (D.C. 

Cir. 1991) (applying arbitrary and capricious review to 

Secretary's Section 4(f)(2) determination); Coalition on 

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 65-66 (D.C. Cir. 

1987) (same). This assessment requires an evaluation of 

whether the decision was based on consideration of the 

relevant factors and whether there was a clear error of 

judgment. See Overton Park, 401 U.S. at 416. The Section 

4(f)(2) balancing process "permits the Secretary to engage in 

a broad consideration of the `relative harm' arising from 

various alternates [sic]." Coalition on Sensible Transp. Inc. v. 

Dole, 642 F. Supp. 573, 603 (D.D.C. 1986), aff'd, 826 F.2d 

60 (D.C. Cir. 1987). 

The plaintiffs--who believe that the FSU alternative is not 

the alternative that would cause the least harm to the 

Danville Historic District--claim that the defendants have 

violated Section 4(f)(2) in three ways. First, they allege that 

the FHWA "completely ignore[d]" the ACHP's conclusion 

that the MS alternative was preferable. Second, plaintiffs 

contend that each of the defendants' stated reasons for 

selecting the FSU alternative deserves no weight, and that 

nothing in the administrative record supports the 

conclusion that the FSU alternative best minimizes harm. 

Third, they argue that the defendants arbitrarily excluded 

from detailed consideration an alternative that might have 

imposed the least harm on the Historic District--the MS&B 

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

abuse of discretion the Secretary's decision that the FSU 

alternative would do the least harm to Section 4(f)

resources. 

B. Section 106: Deference to the Advisory Council on 

 Historic Preservation 

The initial basis on which plaintiffs contend that the 

defendants' actions were arbitrary and capricious is that 

the defendants failed to take into consideration the 

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 comments of 

the ACHP when contemplating an undertaking that will 

affect a site or structure listed in the National Register. As 

a preliminary matter, we must determine what level of 

deference the Secretary owes to the ACHP's assessment of 

the impacts of the MS and FSU alternatives on the Danville 

Historic District. 

The ACHP is an expert federal agency created by 

Congress pursuant to the National Historic Preservation 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 of 

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 ACHP 

will factor into our analysis of whether the Secretary's 

calculus was arbitrary or capricious. 

Both courts and the relevant regulations suggest that 

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 requiring 

that the Agency "consider" the ACHP's comments). Though 

the text of Section 106 does not specify what the Advisory 

Council's "opportunity to comment" on a project entails, 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 (noting that 

 12 
Section 106 is silent on the proper disposition of a 

disagreement between the Advisory Council and the agency 

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 opportunity to 

comment, "the Federal agency may adopt any course of 

action it believes is appropriate. While the Advisory 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 federal 

agencies anything more than a duty to keep the Advisory 

Council informed of the effect of federal undertakings and 

to allow it to make suggestions to mitigate adverse impacts 

on the historic sites under its protection." See 970 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 advisory 

only and do not bind the Corps to a particular course of 

action, the Corps might decide not to require mitigation 

measures even if the Advisory Council should recommend 

them."); Illinois Commerce Comm'n v. Interstate Commerce 

Comm'n, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988) (noting 

that Section 106 is a "stop, look, and listen" provision 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 25480 

(S.D. Ala. Oct. 20, 1986) (holding that the agency complied 

with Section 106 when its responses to ACHP comments 

indicated that it took the comments into consideration even 

though it ultimately disagreed with them), aff'd, 835 F.2d 

803 (11th Cir. 1988).6 

_________________________________________________________________ 

6. One court has suggested that judgments made by the ACHP deserve 

"great weight." Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 858 

(9th Cir. 1982). However, Pierce cited no case or statute in support of 

its 

"great weight" language, and we can find no support for its conclusion. 

 13 
Counseled by the congressional inclusion of Section 106 

in the NHPA, we acknowledge historic preservation as a 

highly important societal interest. As a civilization, we 

suffer a terrible loss if we do not make every reasonable 

effort to preserve our heritage, which may be enshrined in 

bricks and mortar as well as in books and documents. We 

think, however, that Congress was delivering this message 

primarily to the federal agencies, rather than trying to 

instruct federal appellate courts to inject some subtle (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 construction 

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 ACHP's 

own regulations are clear that the acting federal agency 

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 properties is 

not obligated to give the ACHP's opinion so much weight 

that it is foreclosed from making its own decision, though 

it must make clear in the record that the ACHP's comments 

were taken seriously. 

The ACHP opined that "the Mill Street alignment best 

avoids or reduces the effects of this project on the Danville 

Historic District and should be considered the preferable 

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 would 

create "harmful visual impacts"; and that the underpass 

would destroy important topographical, landscape, and 

circulation systems that contribute to the Historic District's 

character and significance. Although they acknowledge the 

correctness of the proposition that the ACHP's concurrence 

in the selected alternative is not required by statute, 

plaintiffs (in effect) nonetheless contend that because the 

 14 
FHWA did not agree with the ACHP that the MS alternative 

imposed the least harm, the FHWA must have acted 

capriciously. 

We address their contention under our proper standard 

of review. Despite the plaintiffs' assertions that the 

defendants ignored the ACHP's comments and thus acted 

arbitrarily in selecting the FSU alternative, the 

administrative record reveals that the defendants seriously 

took into consideration the ACHP's objections. First, the 

record shows that the ACHP has been heavily involved in 

this project. A number of letters and memoranda that 

passed between the parties--either written by the ACHP 

itself or by FHWA and PennDoT--indicate that the 

defendants were aware of the importance of trying to 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 crucial 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 for the 

MS alternative); A 652 (Mary Means letter) (making 

revisions in draft report based on work session with 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. The record 

thus demonstrates that the defendants considered the 

ACHP's comments, and at least to some degree integrated 

those comments into the decisionmaking process both

substantively and procedurally. Section 106 does not 

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 examine the 

substantive basis for the defendants' disagreement with the 

views of the ACHP. 

 15 
C. Did the Secretary Act Arbitrarily and Capriciously 

 Under 4(f)(2)? 

In addition to their concern about the way the defendants 

treated the ACHP's opinion, the plaintiffs submit that there 

is no support in the administrative record for choosing the 

FSU alternative as the "least harm" alternative, and that 

the defendants therefore acted arbitrarily in choosing that 

alternative as the bridge replacement plan. Specifically, the 

plaintiffs argue that the defendants ignored the noise, air 

quality, vibration, traffic, and visual impacts that the FSU 

alternative would have on the Historic District; that the 

Means Report does not support defendants' position 

because it focused on the economic health of the town 

rather than its historic preservation; and that Mary 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 concerns; 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 alternative will 

destroy the Factory Street "streetscape" and will create a 

visual intrusion in the form of retaining walls around 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 element 

of the Historic District that would be completely altered by 

the underpass. Based on National Park Service guidelines, 

which acknowledge that intangibles like streetscapes and 

layouts of roads are important to the integrity of historic 

districts, see U.S. Dep't of Interior, National Park Service, 

National Register Bulletin #15, How to Apply the National 

_________________________________________________________________ 

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 that comprise the 

affected area. 

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

that the plaintiffs are correct that the defendants must 

consider more than the individual buildings and structures 

in an historic district when analyzing the impact of a 

project. 

In the instant case, however, the record reflects that the 

defendants have considered the effect of the FSU alternative 

on the extant streetscape. First, the underpass itself is an 

attempt to minimize the effect of increased above-ground 

traffic on Factory Street. It not only eliminates traffic on a 

portion of Factory Street, but it also eliminates it at the 

most important--and beautiful--intersection in the Historic 

District: the intersection of Factory and West Market Streets.8 

Second, the planned mitigation measures in the FEIS and 

MOA will reduce the change imposed on the streetscape 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, features 

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 street, the 

presence of safety fencing and vehicle barriers will still be 

intrusive, and the underpass will, by definition, change the 

streetscape of much of Factory Street. We agree. However, 

the street-level surface of the underpass will offer some 

aesthetic benefits, and the plaintiffs' criticism, while valid, 

must be placed in the entire balancing calculus. 

The plaintiffs' second argument is not unlike theirfirst: 

that the defendants have ignored that the FSU alternative 

would alter the existing character of Factory Street. As the 

plaintiffs correctly note, "Adverse effects on historic 

properties include, but are not limited to: . . .[i]ntroduction 

of visual, audible, or atmospheric elements that are out of 

_________________________________________________________________ 

8. The FEIS states that the "focal point" of Market Street "is the 

intersection of Market and Factory Streets." 

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

C.F.R. S 800.9(b)(3). The plaintiffs characterize Factory 

Street as quiet and residential, in contrast to Mill Street, 

where heavy traffic is to be expected. To some extent, 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 historic 

structures facing Factory Street is currently a residence, 

although a number of other historic structures, such as 

carriage houses and garages, front Factory Street. 9 

The Secretary did not ignore this character-altering 

drawback to the FSU alternative; indeed, the Means Report 

acknowledges that the FSU alternative will affect the 

character of Factory Street, and balances it against 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 amount of 

traffic composed of cars and trucks that cut from Mill 

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 existing 

character of historic Mill Street in choosing the FSU 

alternative. 

Third, the plaintiffs claim that the FSU alternative will 

isolate the part of West Market Street that lies west of 

Factory Street from the rest of the Danville Historic District 

by making it hard for pedestrians to cross Factory Street. 

We do not think that this argument has much to commend 

it. The cross streets of Mahoning, Market, and Front will 

_________________________________________________________________ 

9. There are four large residential structures at the 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 Street 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 Mill Street, in secondand third-story apartments over small stores and shops at street level, 

whereas six people reside on Factory Street. Two residences facing 

Factory Street would be "used" under the FSU alternative. One building 

is a non-contributing (that is, non-historic), multi-family dwelling; the 

other residence is a contributing structure at 9 Factory Street. 

 18 
remain open to local traffic and existing sidewalks will be 

maintained. While portions of the west side of Factory 

Street will be slightly less accessible to pedestrians under 

the FSU alternative, this factor is not a critical one in 

determining whether the defendants acted arbitrarily. 

2. Traffic 

The plaintiffs also complain about the increased traffic 

volume on Factory Street that will occur under the FSU 

alternative. According to the plaintiffs, traffic would 

increase 400% on Factory Street under the FSU alternative. 

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, traffic on 

West Market between Factory and Mill Streets is expected 

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 Mill Street 

traffic, thus failing to abate traffic problems on either 

Factory or Mill Streets. However, under the FSU alternative, 

the traffic volume on Mill Street would decrease 

substantially. Therefore, though the FSU alternative 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 alternative. 

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 otherwise. As 

for exhaust, the defendants calculated the expected carbon 

monoxide levels at seventeen sites and determined that 

none of the predicted concentrations would exceed National 

Ambient Air Quality Standards. While plaintiffs appear to 

be correct that the defendants did not study the impact of 

the predicted carbon monoxide levels on the historic 

structures on Factory Street, we do not believe that this 

omission alone renders the defendants' judgment arbitrary. 

 19 
Regarding noise, it is clear that the defendants performed 

ample noise studies at fourteen selected sites on Market, 

Mill, and Factory Streets, and three sites in Riverside. 

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 the 

seventeen sites would equal or exceed abatement levels. 

Under the FSU alternative, the levels at eight of the 

seventeen sites would equal or exceed abatement levels. 

Comparing the alternatives by site, the decibel level is 

expected to be louder in 2013 under the MS alternative for 

eight sites, and louder under the FSU alternative for six 

sites. 

The plaintiffs note that the FSU alternative would 

increase the noise impact from its present levels at nine of 

seventeen sites by 2013. They fail to note that the MS 

alternative would increase the noise impact from its present 

levels at all seventeen of the sites. Only one site will be 

directly impacted by portal noise under the FSU alternative; 

the structure on that site will be relocated. The plaintiffs 

also express concern that the underpass will eliminate only 

a small amount of noise relative to the intrusion it imposes 

on the area. However, the District Court found that there 

were "four large residential structures" at the intersection of 

Factory Street and West Market Street (all four of which are 

contributing structures to the Historic District) and that the 

noise impacts at the intersection of Factory and Market 

would be significantly lower under the FSU alternative than 

the MS alternative, since those four structures would be 

shielded from Factory Street noise by the underpass. In 

sum, from a noise standpoint, the FSU alternative is quite 

clearly the preferable choice. 

Although the plaintiffs do not indicate that they are 

concerned about the effects of vibration on historic 

structures under the various alternatives, the record 

indicates that the FSU alternative will ameliorate vibration 

effects both on Factory Street and on Mill Street. The 

defendants calculated that the FSU alternative would result 

in "vibration magnitudes at the residences on Factory 

Street and Market Street which are less than existing 

vibration magnitudes." They reached this conclusion by 

 20 
noting that the new underpass increases the current

pavement surface area by 58%. Since vibration energy is 

dissipated through pavement, the increase in traffic 

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 vibration on Mill 

Street "threatens the long-term life of the historic 

commercial structures that line the downtown's central 

artery" and that the reduced vibration on Mill Street under 

the FSU alternative makes "redeveloping second story 

space" along Mill Street "more attractive." It also concludes 

that PennDoT's vibration studies "do not indicate a

significant deterioration in terms of livability near 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 taken under 

the FSU alternative covers .1 acre, whereas the structure to 

be taken under the MS alternative covers .3 acres. The 

defendants submit that it is better to take a smaller 

structure than a larger one. Case law teaches that the 

evaluation of harm requires a far more subtle calculation 

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 plaintiffs 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 capricious), 

and the record discussion of the two buildings in the FEIS 

does not indicate that they differ significantly in historical 

worth. 

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

structure that would be taken under the MS alternative, as 

a multi-family residential structure. The FEIS states, "The 

two story frame dwelling which dates from the late 19th 

century is in good condition, but has fair historical integrity 

due to the application of aluminum siding." The FEIS 

describes 9 Factory Street (which would be destroyed under 

the FSU alternative) as a two story dwelling with the rear 

dating from c. 1857 and the front from the late 19th 

century; the statement describes No. 9 as "fair in both 

condition and integrity." Although it would have been 

helpful for the record to contain more detailed historical 

evaluations, we cannot hold that 9 Factory Street is of such 

different historical value that it was arbitrary for the 

defendants to select the alternative that would require No. 

9 to be taken. 

5. The Means Report 

Finally, plaintiffs allege that the Means Report, which 

concluded that the FSU alternative was the preferred 

choice, was excessively concerned with the economic

benefits that Mill Street businesses would reap under the 

FSU alternative. They imply that this focus on economics 

prevented an unbiased analysis of the historic harm that 

the FSU alternative would inflict on the Factory Street area. 

In support of their argument, the plaintiffs point to 

language in the Means Report stating that "from a longterm economic vitality perspective, [the FSU Alternative] is 

the better of the two PennDoT configurations under active 

consideration." The plaintiffs contrast that conclusion 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 skeleton of 

this remarkably intact 19th century town, it is highly 

probable that it will foreclose any hope of a bypass." 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

 22 
permitted the favorable economics of the FSU alternative 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 negative 

impact on the town's economic vitality and the overall 

community character of the Historic District." (emphasis 

added). The Means Report, which we find to be thorough 

and sensitive, by no means ignored the impact of each 

alternative on the historic properties. 

6. Affirmative Reasons for Selecting the FSU Alternative 

In addition to considering the FSU alternative's 

drawbacks, the defendants laid out in the administrative 

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 alternative 

will physically and visually separate traffic from the Historic 

_________________________________________________________________ 

10. While we need not decide whether the economic perspective is 

permissible, the notion that economic vitality will keep the historic 

character of Mill Street intact (whereas ignoring the economic health of 

the district might lead to further disintegration of 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. Between 1993 and 

1996, the DRC contributed financially to twenty projects involving 

storefront, signage, and facade improvements. The merchants formed the 

DRC partly because the future success of the Mill Street business 

district turns on the district's ability to present a "pleasant, small 

town, 

main street environment in an historic architectural setting." They 

believe that the best way for Danville to achieve that kind of setting is 

by 

reducing traffic on Mill Street. It thus may be true that it is in both 

the 

historic and economic interests of Danville to reduce 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. 
 23 
District, especially on Factory and West Market Streets. 

This traffic currently runs the length of the Historic District 

on Mill Street. Under the No-Build and MS alternatives, 

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 Street 

would not be free from traffic. The FSU alternative would 

thus better manage traffic by limiting the number of 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 traffic on Mill 

Street, an area that is as much a part of Danville's Historic 

District as Factory Street is. The Means Report discusses 

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 line" Mill 

Street. Ninety people currently live on Mill Street, and one 

of the goals of the project is to "restore the residential 

component of the Mill Street neighborhood." In balancing 

the harms and benefits of the various alternatives, the 

defendants justifiably concluded that the FSU alternative 

would do much good for Mill Street on an historic level. 

7. Conclusion 

For all of the foregoing reasons, the administrative record 

supports the FHWA's finding that the FSU alternative will 

minimize harm to the Danville Historic District. Even if we 

were to conclude that the MS and FSU alternatives would 

impose a comparable amount of harm to Danville's Historic 

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 among 

alternatives which cause substantially equal damage to 

parks or historic sites."). The defendants performed 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 selecting 

the preferred alternative. They also considered the more 

intangible benefits and harms to Mill and Factory Streets 

 24 
under the competing alternatives. As the foregoing 

discussion demonstrates, they considered and responded to 

the comments of the ACHP. Therefore, they did not violate 

Section 106. And as that discussion also demonstrates, it 

was not arbitrary and capricious for the FHWA to select 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 failing 

to consider the MS&B alternative in detail in the FEIS 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 Neighborhood 

Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir. 1990) 

(Hickory I) (acknowledging that Section 4(f)(2) contains 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 terms mean 

in the 4(f)(2) context. Under Section 4(f)(1), an alternative is 

not a prudent alternative if there are truly unusual factors 

present, if the cost or community disruption resulting from 

the alternative reaches extraordinary magnitudes, or if the 

alternative presents unique problems. See Overton Park, 

401 U.S. at 413. We believe that we should apply a similar 

"feasible and prudent" determination to the world of 

alternatives that must be considered under 4(f)(2). See 

Louisiana Envtl. Soc'y, 537 F.2d at 86 ("Although there is 

no express feasible and prudent exception to subsection (2), 

the act clearly implies that one is present."). 

We note in this regard that 4(f)(1) sets a very high 

standard for excluding alternatives that do not use

historically significant property, since Congress has 

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 

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

property will necessarily be used, as is the case here. We 

therefore hold that the Secretary must consider every 

"feasible and prudent" alternative that uses historically 

significant land when deciding which alternative will 

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 feasible and 

prudent alternatives should be under 4(f)(2). We also 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, which 

would require defendants to build another bridge upstream 

to siphon off "through" traffic that now passes through 

Danville on its way to a remote location, would minimize 

the harm to the Historic District by leaving Factory 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 undeserving 

of inclusion in the balancing-of-harms test mandated by 

Druid Hills. In the FEIS, the defendants offered four 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 whether 

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 bypass. 

The plaintiffs rejoin that most of the responses came from 

local traffic, so that the results were skewed downwards, 

though it is not clear in the record that most of the 

respondents were traveling locally. A 809 (charting purpose 

of respondent's trip but not destination).11 A determination 

_________________________________________________________________ 

11. The plaintiffs are concerned that the proportion of tractor-trailer 

responses (which comprised 2% of the total responses) is not 

 26 
that 75% of traffic would continue to use the DanvilleRiverside Bridge calls into serious question the usefulness 

of the bypass alternative in drawing traffic away from 

Danville. See, e.g., Hickory Neighborhood Defense League v. 

Skinner, 910 F.2d 159, 164 (4th Cir. 1990) (Hickory II) 

(Secretary may reject as imprudent alternatives that will 

not solve or reduce existing traffic problems). 

Second, the defendants cited the cost of the project as 

high enough to render the MS&B alternative imprudent. 

The defendants believed that, for financial reasons, only 

one structure could be built, and that building a bypass 

upstream would foreclose the most important part of the 

project, which was to replace the Danville-Riverside Bridge. 

They stated, "There is not, at this time, funding allocated 

and programming scheduled to allow the study and 

construction of a bypass bridge." While no cost studies 

were performed on the MS&B alternative, it is reasonable to 

assume that the costs required to build not only another 

bridge but also to lay over a mile of roadway and to cover 

condemnation, litigation, planning, engineering, and 

building costs for that roadway might total many times 

what would be required to rebuild the Danville-Riverside 

Bridge. Overton Park held that an agency may not exclude 

an alternative as imprudent under 4(f)(1) based on cost 

unless the costs would be of "extraordinary magnitudes." 

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 require 

that two bridges be built instead of one, and that an 

_________________________________________________________________ 

representative of the makeup of current bridge traffic. Plaintiffs 

calculate 

that trucks actually account for 12.5% of all bridge traffic. 

Nevertheless, 

even if we assume that there were additional responses by truck drivers 

such that the proportion of trucks in the survey was 12.5%, and that 

each of the additional responses stated that the truck driver would use 

the bypass, the survey would have demonstrated that only 33% of 

current bridge users would choose the bypass. We believe that a 33% 

predicted use rate still calls into question the usefulness of the bypass 

alternative. 

 27 
additional 5,500 feet of road be laid, forcing construction 

that would impact the environment and communities near 

the second bridge site. Fourth, the defendants argued 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 extraordinary, the 

problematic results of the use survey and the community 

and environmental disruption that would result from the 

additional construction combine to suggest that the MS&B 

alternative was neither prudent nor feasible. In the 4(f)(1) 

context, courts have held that an accumulation of smaller 

problems that, standing alone, would not individually 

constitute unique problems may together comprise 

sufficient reason for rejecting an alternative as imprudent. 

See Committee to Preserve Boomer Lake Park v. Department 

of Transp., 4 F.3d 1543, 1550 (10th Cir. 1993) ("Although 

none of these factors alone is clearly sufficient justification 

to reject the alternatives in this case, their cumulative 

weight is sufficient to support the Secretary's decision."); 

Hickory II, 910 F.2d at 163 (holding that a cumulation of 

problems may be sufficient reason to reject an alternative 

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 rate, the 

impact of the added construction, and the enormously 

increased costs, all of which, taken together, make the 

MS&B alternative imprudent for minimizing harm under 

4(f)(2). We therefore hold that the defendants did not violate 

the requirements of Section 4(f) by failing to consider the 

MS&B alternative in greater detail. 

E. NEPA 

While 4(f)(2) ensures that the Secretary puts his thumb 

on the scales in favor of protecting historic properties, 

NEPA, 42 U.S.C. S 4321 et seq., governs the procedures 

surrounding the requisite balancing. Under NEPA, 

Congress directed all agencies of the federal government to 

 include in every recommendation or report on

 proposals for legislation and other major Federal 

 28 
 actions significantly affecting the quality of the human 

 environment, a detailed statement by the responsible 

 official on-- 

 (i) the environmental impact of the proposed action, 

 (ii) any adverse environmental effects which cannot 

 be avoided should the proposal be implemented, 

 (iii) alternatives to the proposed action, 

 (iv) the relationship between local short-term uses of 

 man's environment and the maintenance and 

 enhancement of long-term productivity, and 

 (v) any irreversible and irretrievable commitments of 

 resources which would be involved in the proposed 

 action should it be implemented. 

 Prior to making any detailed statement, the responsible 

 Federal official shall consult with and obtain the 

 comments of any Federal agency which has jurisdiction 

 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 device that 

promotes the fulfillment of NEPA's goal, which is to "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 before it 

detailed information on significant environmental impacts 

when it makes its decisions and guarantees that this 

information is available to a larger audience. See Inland 

Empire Pub. Lands Council v. United States Forest Serv., 88 

F.3d 754, 758 (9th Cir. 1996). "NEPA exists to ensure a 

process, not to ensure any result." Id. ; see also Baltimore 

Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 

 29 
462 U.S. 87, 97 (1983) (NEPA requires an agency to take a 

"hard look" at the potential environmental consequences of 

proposed projects before taking action); Laguna Greenbelt, 

Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th 

Cir. 1994) (NEPA does not mandate particular substantive 

results, but instead imposes only procedural requirements). 

Under NEPA, an agency decision "to go forward with a 

major federal action after the agency has prepared and 

considered an Environmental Impact Statement, requires 

the court to determine whether all necessary procedures 

were followed, to consider de novo all relevant questions 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. Oregon 

Natural Resources Council, 490 U.S. 360, 376-77 (1989) 

(stating that courts are to review factual disputes that 

implicate substantial agency expertise under the arbitrary 

and capricious standard). We make "a pragmatic judgment 

whether the [EIS's] form, content and preparation foster 

both informed decision-making and informed public 

participation," and "[o]nce satisfied that a proposing agency 

has taken a `hard look' at a decision's environmental 

consequences, [our] review is at an end." City of Carmel-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 than 

considering it in conjunction with the MS alternative--and 

therefore rejected the bypass as not meeting the primary 

purpose of the bridge replacement project. As discussed 

above, the plaintiffs believe that the combined MS&B 

alternative would most successfully achieve the goals of the 

project: to replace the bridge and to limit the traffic volume 

on Mill Street. To the extent that FHWA did consider the 

MS&B alternative, the plaintiffs argue, FHWA rejected it on 

the ground that funding was not available for both a new 

bridge and a bypass, and the plaintiffs allege that lack of 

 30 
present funding is an improper reason to reject a viable 

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 rejected the 

alternative under Section 4(f)(2): the origin and destination 

study indicated that the great majority of traffic would 

continue to use the Danville-Riverside Bridge rather than 

the bypass; it would vastly increase the scope and 

construction costs of the project; the FSU alternative alone 

would satisfy the needs of the project; and it would cause 

greater social and environmental impacts than the MS 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 Cir. 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.2d at 713 

(stating that the EIS should "go beyond mere assertions" 

and should devote substantial treatment to "all reasonable 

alternatives"). A number of courts recently have addressed 

the extent to which federal agencies must consider 

alternatives under NEPA. These courts have concluded that 

where the agency has examined a breadth of alternatives 

but has excluded from consideration alternatives that 

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, 575-76 

(9th Cir. 1998) (upholding the defendants' consideration of 

alternatives under NEPA as sufficient to permit a reasoned 

choice); Friends of the Boundary Waters Wilderness v. 

Dombeck, 164 F.3d 1115, 1129 (8th Cir. 1999) (upholding 

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 were deemed 

impractical for failing to meet the goals of the project, and 

adequately explained why increased visitor use was not a 

viable goal). 

In the instant case, the defendants sufficiently explained 

why the MS&B alternative was not feasible and why it did 

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not warrant a highly detailed examination. The plaintiffs' 

argument that the MS&B alternative possibly could help 

achieve the two project goals of replacing the bridge and 

reducing Mill Street congestion encounters the same

responses that the FHWA offered under Section 4(f): low 

use rate and excessive construction and environmental 

costs. In addition, in arguing for the MS&B alternative, 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 consider 

alternative sites where plaintiffs failed to allege specific 

evidentiary facts showing that the alternative sites were 

reasonable and viable). 

In Druid Hills, the court concluded, "Although the EIS 

does not contain what some may feel is a detailed and 

careful analysis of the relative environmental merits and 

demerits of the proposed action and possible alternatives, 

we find no sufficient basis in the record to disturb the 

district court's conclusion that appellees adequately 

analyzed the alternatives." Id. at 713; see also City of 

Carmel, 123 F.3d at 1151 (upholding a "reasonably 

thorough" FEIS). There is necessarily a limit to the 

thoroughness with which an agency can analyze every

option, see Morongo Band, 161 F.3d at 575 (noting that, 

without parameters and criteria, an agency could generate 

countless alternatives), and our standard of review is quite 

deferential, see Corridor H Alternatives, Inc. v. Slater, 166 

F.3d 368, 374 (D.C. Cir. 1999). We conclude that the 

defendants adequately considered the MS&B alternative 

and its attendant flaws before rejecting it as infeasible. We 

therefore will affirm the District Court's grant of summary 

judgment for the defendants on the NEPA issue as well. 

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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