PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1649

SAVE OUR SOUND OBX, INC.; MARK HAINES; JER MEHTA; GLENN 

STEVENS; DAVID HADLEY; THOMAS ASCHMONEIT; RICHARD 

AYELLA,

 Plaintiffs – Appellants,

v.

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL 

HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, in his official 

capacity as Division Administrator for the Federal Highway Administration; 

JAMES H. TROGDON, III, in his official capacity as Secretary of the North 

Carolina Department of Transportation,

 Defendants – Appellees,

and

DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE 

ASSOCIATION,

 Intervenors/Defendants – Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Elizabeth City. Louise W. Flanagan, District Judge. (2:17-cv-00004-FL)

Argued: December 11, 2018 Decided: January 23, 2019

Before NIEMEYER, DUNCAN, and QUATTLEBAUM, Circuit Judges.
2

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge 

Niemeyer and Judge Quattlebaum joined.

ARGUED: David Ari Schnitzer, GIBSON, DUNN & CRUTCHER LLP, Washington, 

D.C., for Appellants. Thekla Hansen-Young, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C.; Colin Justice, NORTH CAROLINA DEPARTMENT OF 

JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Michael K. Murphy, 

Kyle N. Guest, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for 

Appellants. Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy 

Assistant Attorney General, Andrew C. Mergen, Robert J. Lundman, Carter F. Thurman, 

Appellate Section, Environment and Natural Resources Division, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C.; Josh Stein, Attorney General, 

OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North 

Carolina; Scott T. Slusser, Special Deputy Attorney General, Mollie Cozart, Assistant 

Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North 

Carolina, for Appellees North Carolina Department of Transportation, Federal Highway 

Administration, John F. Sullivan, III, and James H. Trogdon, III. Kimberley Hunter, 

Nicholas S. Torrey, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, 

North Carolina, for Appellees Defenders of Wildlife and National Wildlife Refuge 

Association.
3

DUNCAN, Circuit Judge:

Appellants Save Our Sound OBX, Inc. and its members, residents and vacationers 

from North Carolina’s Outer Banks, (collectively “SOS”) challenge the decision of the 

North Carolina Department of Transportation (the “NCDOT”), the Federal Highway 

Administration (the “FHWA”), and their administrators (collectively “the Agencies”) to 

replace a segment of North Carolina Highway 12 (“NC-12”) with a bridge across the 

Pamlico Sound (the “Jug-Handle Bridge”). The district court granted the Agencies’ 

motion for summary judgment, finding that they did not violate the National 

Environmental Policy Act (the “NEPA”), 42 U.S.C. § 4321 et seq., or the Department of 

Transportation Act (the “DTA”), 49 U.S.C. § 301 et seq., when they approved the bridge. 

SOS challenges that ruling on appeal. For the reasons that follow, we affirm.

I.

This case involves a segment of NC-12, which is the main roadway passing

through the Outer Banks of North Carolina. State and federal agencies have been 

working for several years to update and improve NC-12 because of its susceptibility to 

weather damage and erosion.

Like many highway construction projects, the NC-12 project required cooperation 

among state and federal agencies. For instance, in North Carolina, NCDOT has authority 

over highway construction, while FWHA supplies federal funds for highway projects. 

The agencies tasked with improving NC-12, including NCDOT and FHWA, formed a 

Merger Team to coordinate decisionmaking and regulatory compliance for the NC-12 
4

project.1

 The Merger Team was responsible for ensuring that the NC-12 project 

complied with the requirements of NEPA and the DTA, among other regulations.

SOS challenges certain agency decisions in the NC-12 project under NEPA and 

the DTA. Accordingly, we first provide a brief overview of the requirements of those 

statutes before turning to the specific facts and procedural history of this appeal.

A.

The first statute at issue in this appeal is NEPA. Pursuant to NEPA, 42 U.S.C. 

§ 4321 et seq., and its implementing regulations, government agencies considering 

certain projects must evaluate whether the project would have a significant impact on the 

environment by preparing an Environmental Assessment (an “EA”). Id. § 4332(C); 40 

C.F.R. § 1508.9; see id. § 1508.18 (defining the types of federal actions to which NEPA 

applies). If the project would have a significant impact, the agency must prepare an 

Environmental Impact Statement (an “EIS”). 42 U.S.C. § 4332(C). The agency is 

responsible for ensuring that the EIS complies with various regulatory requirements. See

40 C.F.R. § 1502.1 et seq. For instance, the EIS must “provide full and fair discussion”

of any significant environmental impacts of a proposed action. 40 C.F.R. § 1502.1. 

 1 The Merger Team was comprised of representatives from NCDOT, FHWA, the 

U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, the U.S. 

Environmental Protection Agency, the National Marine Fisheries Service, the National 

Park Service, the North Carolina Department of Cultural Resources, the North Carolina 

Wildlife Resources Commission, and three divisions of the North Carolina Department of 

Environmental and Natural Resources (the “NCDENR”) (now named the North Carolina 

Department of Environmental Quality)--the Division of Water Resources, the Division of 

Coastal Management, and the Division of Marine Fisheries.
5

Additionally, the agency must “[r]igorously explore and objectively evaluate all 

reasonable alternatives” that could “avoid or minimize adverse impacts.” Id.

§§ 1502.1, 1502.14. The agency is permitted, however, to identify a preference among 

alternatives based on non-environmental considerations, such as economic factors or the 

agency’s statutory mission. Id. § 1505.2(b). If the agency has a preferred alternative, 

NEPA requires the agency to identify that preference in the EIS. Id. § 1502.14. NEPA 

also requires the agency to prepare a supplemental EIS (an “SEIS”) if significant new 

information or environmental changes come to light after the agency prepares an EIS. Id.

§ 1502.9(c). After the agency makes its final decision about which alternative to pursue, 

it publishes a record of decision (an “ROD”) explaining its choice. Id. § 1505.2.

We now turn to the second statute at issue: the DTA. The DTA contains 

substantive requirements for government transportation projects. 49 U.S.C. § 301 et seq. 

Relevant here, the so-called “§ 4(f)” requirements2 concern transportation projects that 

require the use of publicly owned land of a wildlife refuge or a significant historic site. 

Id. § 303(c). Historic sites include structures “included in, or eligible for inclusion in,” 

the National Register of Historic Places. 23 C.F.R. § 774.17. The Secretary of 

Transportation may only approve such projects if there is no “feasible and prudent”

alternative to using that land and the “project includes all possible planning to minimize 

harm . . . resulting from the use.” Id. § 303(c). If there is no feasible and prudent

 2 The DTA explains that “[t]he requirements of [49 U.S.C. § 303] are commonly 

referred to as section 4(f) requirements” in reference to a previous version of the statute. 

49 U.S.C. § 303(f)(1).
6

alternative, the Secretary may only approve the alternative that “[c]auses the least overall 

harm in light of the [DTA’s] preservation purpose.” 23 C.F.R. § 774.3(c). Relevant 

considerations in selecting the least harmful alternative include whether harm to the land 

can be mitigated, whether harm to the land affects the attributes qualifying that land for 

protection, and whether the alternative meets the needs of the project. Id.

B.

Having established the relevant framework, we consider the facts of this case. 

SOS’s claims in this litigation concern the Agencies’ environmental analysis under 

NEPA and the DTA with respect to a segment of NC-12 that passes from the southern 

edge of Bodie Island to the village of Rodanthe. For this segment, the Merger Team was 

responsible for preparing EAs and EISs pursuant to NEPA and for determining which 

proposed plan for the project was the least environmentally-damaging practicable 

alternative (the “LEDPA”) pursuant to section 404 of the Clean Water Act, 33 U.S.C. 

§ 1344, among other requirements.

3

 See 40 C.F.R. § 230.10 (setting out the LEDPA 

requirement).

In 2008, the Merger Team issued an EIS and § 4(f) evaluation (the “2008 EIS”) 

for improving NC-12. For the segment at issue here, the 2008 EIS included discussion of 

several alternatives, including a proposed bridge in the Pamlico Sound near Rodanthe 

 3 Section 404 of the Clean Water Act regulates activities involving “the discharge 

of dredged or fill material” into navigable waters. Id.
7

(the “Bridge South alternative”) and proposals involving beach nourishment. An EA in 

2010 (the “2010 EA”) further developed these alternatives.

The Merger Team released an updated EA in 2013 (the “2013 EA”) to account for 

environmental changes after the 2010 EA, including the effects of Hurricane Irene in 

2011. The 2013 EA identified four alternatives for the segment at issue: (1) the so-called

Jug-Handle Bridge, a bridge extending out into the Pamlico Sound (also referred to in the 

environmental analyses as the “Bridge on New Location”);

4 (2) an easement bridge on 

the existing NC-12 location; (3) beach nourishment; and (4) an easement bridge 

combined with beach nourishment. The Merger Team did not study the beach 

nourishment alternatives in depth in the 2013 EA because, at a 2011 meeting, it had 

already determined not to pursue them after experts reported on a “high erosion rate and a 

lack of sand supply.” J.A. 843. In the 2013 EA, the Merger Team identified the 

easement bridge as its preferred alternative under NEPA. However, certain members of 

the Merger Team objected to finding that the easement bridge was the LEDPA under the 

Clean Water Act, citing concerns about its location within the surf zone, additional 

permits associated with erosion setback requirements, and its impact on a nearby wildlife 

refuge. See J.A. 1745–47.

In the meantime, environmental groups Defenders of Wildlife and the National 

Wildlife Refuge Association (intervenors here, collectively the “Environmental Groups”) 

brought suit in federal court to challenge the Agencies’ NEPA and § 4(f) determinations 

 4 The Jug-Handle Bridge was a modified version of the Bridge South alternative 

that was introduced in the 2008 EIS and further developed in the 2010 EA.
8

with respect to a different segment of NC-12 in the Outer Banks--the Bonner Bridge, 

which connects Bodie Island and Hatteras Island to the north of Rodanthe. See Defs. of 

Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014). The Environmental 

Groups and the Agencies eventually reached an agreement in 2015 (the “Settlement”).5

 

The Settlement required NCDOT to identify the Jug-Handle Bridge as its preferred 

alternative for the segment of NC-12 at issue in this case. It also required NCDOT to 

seek Merger Team concurrence that the Jug-Handle Bridge was the LEDPA. In doing so, 

it stated that nothing in the Settlement “requires or should be interpreted to predetermine 

the choice” of the Jug-Handle Bridge as the final selected alternative. J.A. 1090. In 

exchange, the Environmental Groups dismissed the Bonner Bridge suit and agreed not to 

challenge the Agencies in court if the Jug-Handle Bridge was determined to be the 

LEDPA and was ultimately selected in the ROD for this project.

After a 2015 meeting, the Agencies identified the Jug-Handle Bridge as their 

preferred alternative. Following public comment and detailed studies, the Merger Team 

determined that the Jug-Handle Bridge was the LEDPA. In 2016, the Merger Team 

released a revised EA (the “2016 EA”) to evaluate the environmental impacts of the JugHandle Bridge and its associated construction activities. Later that year, the Merger 

Team issued an ROD (the “2016 ROD”) formally approving the Jug-Handle Bridge.

In addition to authorizing construction of the Jug-Handle Bridge, the 2016 ROD 

also addressed concerns relating to a shipwreck in the proposed bridge’s path known as 

 5 NCDENR was also a party to the Settlement and is represented on the Merger 

Team, though it is not a defendant here.
9

the Pappy’s Lane Wreck. The shipwreck is eligible for listing on the National Register of 

Historic Places. Because of the shipwreck’s historical significance, the 2016 ROD 

ordered a data recovery project on the shipwreck, which later uncovered evidence that the 

shipwreck was a World War II assault vessel. The Merger Team has not yet determined 

how it will respond to this new information.

C.

We now turn to the procedural history of this litigation, which began when SOS 

sued the Agencies on February 2, 2017. A month later, the Environmental Groups 

intervened in the suit in support of the Agencies. In its complaint, SOS alleged, as 

relevant here, that the Agencies’ approval of the Jug-Handle Bridge violated NEPA 

because that decision was predetermined by the Settlement. To show evidence of 

predetermination, SOS moved to supplement the administrative record before the district 

court to include documents related to the negotiation of the Settlement on the grounds 

that those documents were before the Agencies when they made their decision to select 

the Jug-Handle Bridge. The district court denied this motion.

Later, SOS moved to amend its complaint to add claims related to construction 

impacts in Rodanthe and to the Pappy’s Lane Wreck. Specifically, SOS contended that 

the Agencies’ environmental analyses did not adequately consider the effects of 

construction or the historic significance of the Pappy’s Lane Wreck. The district court 

granted the motion as to construction impacts but denied it as to the shipwreck.
10

SOS, the Agencies, and the Environmental Groups each filed cross-motions for 

summary judgment on the issue of whether the Agencies’ environmental analyses 

violated NEPA or the DTA. The district court granted the Agencies’ and Environmental 

Groups’ motions for summary judgment and denied SOS’s motion.

SOS appeals the district court’s grant of the Agencies’ motion for summary 

judgment and its denial of SOS’s motion to amend its complaint. SOS contends that the 

Agencies were not entitled to summary judgment because the Agencies’ environmental 

analyses violated NEPA. It also contends that the district court erred in denying SOS’s 

motion to amend its complaint with claims related to the Pappy’s Lane Wreck. We 

discuss SOS’s NEPA claims and its motion to amend its complaint, in that order.

II.

SOS contends that the Agencies violated NEPA when they selected the JugHandle Bridge for the NC-12 project. “We review a grant of summary judgment de 

novo,” Defs. of Wildlife, 762 F.3d at 392, and, accordingly, review the Agencies’ actions 

directly, pursuant to the Administrative Procedure Act (the “APA”). The APA directs us 

to overturn agency actions if they are “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Our precedent also guides 

the scope of our review of the sufficiency of an agency’s NEPA analysis. Nat’l Audubon 

Soc’y v. Dep’t of Navy, 422 F.3d 174, 185, 199 (4th Cir. 2005). In conducting this

review, “we must make a searching and careful inquiry into the facts” and examine

whether the decision was based on consideration of the relevant factors. Id. at 185 
11

(citation and internal quotation marks omitted). However, we do not “second-guess 

agency decisions, so long as the agency has given a hard look at the environmental 

impacts of its proposed action.” Id. at 199.

Under this standard of review, we affirm because the Agencies did not violate 

NEPA in approving the Jug-Handle Bridge. We consider SOS’s arguments that the 

Agencies’ environmental analyses violated NEPA because (1) the Agencies failed to 

prepare an SEIS with regards to the Jug-Handle Bridge and beach nourishment 

alternatives before issuing the 2016 ROD, (2) the Agencies failed to adequately consider 

the impacts of construction, and (3) the Settlement impermissibly predetermined the 

Agencies’ choice of the Jug-Handle Bridge.

A.

First, SOS contends that the Agencies’ NEPA analysis was deficient because the

Agencies should have prepared an SEIS before approving the Jug-Handle Bridge in the 

2016 ROD. NEPA requires an agency to prepare an SEIS if “[t]he agency makes 

substantial changes” to a proposed action that implicate environmental concerns or if

“[t]here are significant new circumstances or information” that would affect the 

environmental impacts of the proposed action. 40 C.F.R. § 1502.9(c). To merit an SEIS, 

the changes “must present a seriously different picture of the environmental impact of the 

proposed project.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 

(4th Cir. 1996) (citation and alterations omitted).
12

We review an agency’s decision not to prepare an SEIS in two steps, consistent 

with our standard of review under NEPA. Id. At step one, we “determine whether the 

agency took a hard look at the proffered new information.” Id. If the agency concludes 

after a preliminary inquiry that the “environmental effect of the change is clearly 

insignificant,” its decision not to prepare an SEIS satisfies the hard look requirement. 

Hodges v. Abraham, 300 F.3d 432, 446 (4th Cir. 2002). For instance, in Hodges, we held 

that an agency took a hard look at the environmental consequences of its change in plans 

when it explicitly evaluated those consequences and determined that they were not 

significantly different from those discussed in a prior EIS. Id. at 447. We also noted that 

the plaintiff in that case “failed to identify any particular risk arising from” the change 

that had not already been addressed in the agency’s environmental analyses. Id. Next, at

step two of the SEIS inquiry, we review whether the agency’s decision not to prepare an 

SEIS after taking a hard look was arbitrary or capricious. Hughes River, 81 F.3d at 443.

SOS contends that an SEIS was necessary (1) to evaluate the environmental 

effects of the Jug-Handle Bridge alternative because it was different from options that 

had previously been evaluated and (2) to reconsider alternatives that involved beach 

nourishment pursuant to new information about sand availability and beach erosion rates. 

We address each contention in turn and affirm the district court’s determination that no 

SEIS was required. Neither of these changes are sufficiently different from the 

circumstances initially evaluated in the EIS to merit an SEIS. The Agencies’ decision not 

to prepare one after taking a hard look at the changes was therefore not arbitrary or 

capricious.
13

i.

Contrary to SOS’s contention, the Agencies were not required to prepare an SEIS 

with respect to the Jug-Handle Bridge alternative. SOS argues that the final alignment of 

the Jug-Handle Bridge alternative (that is, its path across the Pamlico Sound and its 

connection points with the shore) was significantly different from previously evaluated 

alternatives. Specifically, SOS contends that the bridge’s alignment changed 

significantly because the alternative evaluated in the 2008 EIS was “amorphously 

defined” and because the alternative evaluated in the 2010 EA (to which the 2013 EA, 

2016 EA, and 2016 ROD refer) was “not comparable” to the Jug-Handle Bridge. 

Appellant’s Br. at 35, 36. It argues that these differences render prior environmental 

analyses of those alternatives insufficient to evaluate the environmental effects of the 

Jug-Handle Bridge as approved in the 2016 ROD. We disagree and conclude that the 

Agencies complied with NEPA when they decided that an SEIS was not warranted by 

these changes.

At step one, the Agencies took a hard look at changes in the bridge’s alignment in 

the 2016 EA. The 2016 EA describes the similarities and differences between the JugHandle Bridge as proposed in 2016 and the versions evaluated in the 2013 EA, the 2010 

EA, and the 2008 EIS. For instance, it explains that the Agencies decided to shift the 

alignment of the bridge to avoid areas of “dense submerged aquatic vegetation” that fell 

in the path of previous versions of the bridge. J.A. 1198. The 2016 EA also explains that 

the Jug-Handle Bridge’s alignment reduces effects on the community as compared with 
14

previous versions because it requires a narrower right-of-way. Because the Agencies 

went into detail in their comparison between the Jug-Handle Bridge and previous 

versions of the bridge, their coverage satisfies the hard look requirement. See Hodges, 

300 F.3d at 446–47.

And, at step two, because the Agencies took the requisite hard look and neither 

their environmental analyses nor SOS identify any particular differences that would merit 

an SEIS, their decision not to prepare an SEIS was not arbitrary or capricious. See

Hughes River, 81 F.3d at 443. An SEIS is only required when changes to a project 

present a “seriously different picture of the environmental impact.” Id. (alterations and 

citation omitted). Based on the discussion presented in the 2016 EA, which compared the 

different versions of the bridge, it was not arbitrary or capricious for the Agencies to 

determine that the Jug-Handle Bridge’s final alignment did not present a “seriously 

different picture,” id., than the 2008 EIS, the 2010 EA, or the 2013 EA. The Agencies 

explained how the Jug-Handle Bridge was different from previous versions of the bridge, 

and their explanations do not implicate any significant environmental concerns. 

Accordingly, their decision not to prepare an SEIS was not arbitrary or capricious.

ii.

Similarly, the Agencies were not required to prepare an SEIS to reevaluate the 

feasibility of alternatives that involved beach nourishment. SOS contends that the 

Agencies failed to adequately reconsider beach nourishment after new erosion projections 

were released and after a 2014 emergency beach nourishment project in the area 
15

successfully repaired damage from Hurricane Sandy. According to SOS, this new 

information showed that coastal conditions had changed such that erosion would no 

longer threaten beach nourishment and that adequate sand was in fact available to 

complete the project.

However, the Agencies took the requisite hard look at these new circumstances in 

the 2016 EA. See Hughes River, 81 F.3d at 443. The 2016 EA notes that while erosion 

projections in the Rodanthe area did decrease, erosion rates in Rodanthe remained 

“amongst the highest rates along the North Carolina coast.” J.A. 1218. It also discusses 

the 2014 emergency beach nourishment project in detail and considers updated 

information about coastal conditions in the area. Specifically, it notes that the 2014 

emergency beach nourishment project was “essentially one round of nourishment in one 

part of [NC-12].” J.A. 1227. Finally, it concludes that the Agencies thoroughly 

considered the environmental effects of beach nourishment when they originally 

evaluated those alternatives in the 2008 EIS. This detailed discussion satisfies the hard 

look requirement. See Hodges, 300 F.3d at 446–47.

And after taking that hard look, the Agencies’ decision not to prepare an SEIS was 

not arbitrary or capricious. See Hughes River, 81 F.3d at 443. SOS cites improved 

erosion rates and an increased supply of sand as new factors that the Agencies should 

have considered when deciding whether to prepare an SEIS. However, erosion and sand 

supply were not the Agencies’ only reasons for initially rejecting beach nourishment in 

the 2008 EIS. The Agencies also cited independent concerns such as inadequate 

protection against future breaches, risks of overwash, and incompatibility with the 
16

mission of a neighboring wildlife refuge. It was not arbitrary or capricious for the 

Agencies to decline to reconsider beach nourishment alternatives in an SEIS when the 

new information proffered by SOS did not implicate all of the Agencies’ independently 

adequate reasons for initially rejecting beach nourishment.

Accordingly, the Agencies were not required to prepare an SEIS to consider the 

alignment of the Jug-Handle Bridge or to consider beach nourishment alternatives. Their 

environmental analyses therefore do not violate NEPA in this respect.

B.

SOS also contends that the Agencies’ environmental analyses violate NEPA 

because they do not adequately consider the environmental effects of construction in the 

Rodanthe area. Specifically, SOS argues that the effects of construction traffic and haul 

roads are not adequately addressed in the 2016 EA and that any discussion of these issues 

in the 2008 EIS is irrelevant because that document focuses on a larger area.

NEPA requires agencies to consider all “significant environmental impacts,” 40 

C.F.R. § 1502.1, which can include impacts caused by the use of construction roads and 

increased traffic. See, e.g., Arlington Coal. on Transp. v. Volpe, 458 F.2d 1323, 1332 

(4th Cir. 1972) (explaining that NEPA applies to highway construction projects). 

Accordingly, if construction roads and traffic are expected to affect the environment near 

an agency project, the agency must provide “full and fair discussion” of those effects and 

incorporate them into its comparison of alternatives. 40 C.F.R. § 1502.1.
17

Here, the Agencies adequately considered the effects of construction traffic as a 

result of the Jug-Handle Bridge in the 2016 ROD. Specifically, the Agencies explained 

that a temporary construction easement would be necessary to support traffic during 

construction but noted that “[t]he land affected will be restored after construction is 

completed.” J.A. 1559. While the 2016 ROD does not compare the construction traffic 

effects of the Jug-Handle Bridge with those of other proposed alternatives, the Agencies 

did perform that comparison in the 2013 EA and the 2016 EA and still found the bridge 

to be the LEDPA. The Agencies also specifically considered the environmental effects of 

haul roads in the 2008 EIS.6

We therefore cannot say that the Agencies did not provide “full and fair 

discussion” of the effects of construction traffic or haul roads when they selected the JugHandle Bridge among alternatives. See 40 C.F.R. § 1502.1. Accordingly, the Agencies 

did not violate NEPA here, and we affirm the district court.

 6 To be sure, that discussion did not explicitly consider haul roads in the Rodanthe 

area. However, it is unclear from the record whether the Agencies actually plan to use 

haul roads for the Jug-Handle Bridge project. See, e.g., J.A. 214 (containing a 

declaration from an NCDOT engineer stating that NCDOT and its contractor decided not 

to pursue a previously-discussed haul road in connection with a barge because shallow 

water depths would make it impracticable). Regardless, NEPA does not compel the 

Agencies to specifically consider the environmental impacts of haul roads so long as they 

adequately examine the environmental consequences of the Jug-Handle Bridge project, 

including construction impacts, as a whole. See 40 C.F.R. § 1502.2(b) (“Impacts shall be 

discussed [in the EIS] in proportion to their significance.”).
18

C.

Finally, SOS contends that the Agencies violated NEPA because their choice of 

the Jug-Handle Bridge did not follow from their NEPA analysis but, rather, was a 

predetermined result of the Settlement. NEPA “prohibits agencies from preparing an EIS 

simply to ‘justify [] decisions already made.’” Nat’l Audubon Soc’y, 422 F.3d at 199 

(quoting 40 C.F.R. § 1502.2(g)) (alteration in original). That is because, under NEPA, 

agencies that have yet to issue a final decision may not “commit resources prejudicing 

selection of alternatives,” 40 C.F.R. § 1502.2(f), nor may they take any action that would 

“[l]imit the choice of reasonable alternatives,” 40 C.F.R. § 1506.1(a). An EIS based upon 

a predetermined choice that a certain alternative will be selected would violate these 

principles because it would not allow the agency to fully consider all alternatives.

We conclude that the Agencies’ choice of the Jug-Handle Bridge was not 

impermissibly predetermined. We consider, in turn, the Agencies’ objective 

environmental analyses, the language of the Settlement, and the role of documents 

generated during negotiation of the Settlement.

i.

First, SOS contends that flaws in the Agencies’ environmental analyses reveal that 

their choice of the Jug-Handle Bridge was predetermined by the Settlement. In alleging 

that the environmental analyses were inadequate, it primarily relies upon arguments that 

we have already discussed--namely, that the Agencies failed to fully consider the new 

alignment of the bridge, the feasibility of beach nourishment alternatives, and the effects 
19

of construction traffic and haul roads. SOS contends that these flaws exist because the 

Agencies prematurely decided to choose the Jug-Handle Bridge after the Settlement.

Under our precedent, “the evidence we look to in determining whether 

[predetermination] has taken place consists of the environmental analysis itself.”7

 Nat’l 

Audubon Soc’y, 422 F.3d at 199. In National Audubon Society, in reviewing allegations 

that an agency had settled on a certain outcome before preparing its EIS, we declined to 

look to the agency’s internal documents and emails. Id. Instead, we limited the scope of 

our inquiry to the agency’s objective environmental analysis, reasoning that “[w]here an 

agency has merely engaged in post hoc rationalization, there will be evidence of this in its 

failure to comprehensively investigate the environmental impact of its actions and 

acknowledge their consequences.” Id. Accordingly, our analysis focuses on whether an 

agency’s objective environmental analyses demonstrate evidence of predetermination.

Here, when we examine Agencies’ environmental analyses, we cannot say that 

they violated NEPA by selecting the Jug-Handle Bridge following the Settlement. To be 

sure, the Agencies changed their preferred alternative from the easement bridge to the 

Jug-Handle Bridge following the Settlement. But that change alone does not mean that 

the Agencies’ choice was predetermined, particularly where members of the Merger 

Team had expressed concerns about the easement bridge as far back as 2013. And when 

we look to the Agencies’ environmental analyses here, those analyses satisfied NEPA’s 

 7 We note that some circuits look beyond the objective environmental analysis for 

evidence of predetermination. See, e.g., Forest Guardians v. U.S. Fish & Wildlife Serv., 

611 F.3d 692, 716–17 (10th Cir. 2010) (declining to adopt the Fourth Circuit’s rule).
20

requirements. See discussion supra Sections II.A., II.B. We do not see, and SOS cannot 

identify, any evidence that the Agencies “fail[ed] to comprehensively investigate” and 

evaluate the environmental impacts of the Jug-Handle Bridge or the other alternatives. 

Nat’l Audubon Soc’y, 422 F.3d at 199. The EAs and EIS prepared by the Agencies do 

not, on their faces, show evidence of predetermination.

SOS cites to cases from the Ninth and Tenth Circuits to contend that courts have 

found predetermination based on contractual commitments made by an agency before the 

NEPA process was complete. See Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002) 

(holding that a contract requiring a consultant to recommend that a project had no 

significant environmental impact before actually preparing an EA violated NEPA); 

Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir. 2000) (same, regarding a contract 

requiring an agency to make a proposal for a specific alternative before preparing an EA). 

However, these cases are distinguishable because they involved contracts that agencies 

entered into before conducting any environmental analysis at all; in contrast, the 

Settlement here, which the Agencies and the Environmental Groups entered into in 2015, 

was preceded by a number of environmental analyses, including the 2008 EIS, the 2010 

EA, and the 2013 EA. And when we examine each of these environmental analyses, we 

find no evidence of predetermination warranting reversal.

ii.

Although circuit precedent limits our predetermination inquiry to the 

“environmental analysis itself,” id., SOS nonetheless urges us to consider the Settlement 
21

as evidence that the Agencies’ choice was predetermined. But even if we look to the 

Settlement, that document does not support SOS’s claim. The Settlement only required 

NCDOT to identify the Jug-Handle Bridge as its preferred alternative and to seek Merger 

Team concurrence that the Jug-Handle Bridge was the LEDPA. These conditions do not 

require the Agencies to select the Jug-Handle Bridge as the final approved alternative for 

this project. For instance, it remained possible that the Agencies’ environmental analyses 

would demonstrate that the Jug-Handle Bridge was not the LEDPA. Additionally, the 

Agencies’ preferences alone could not bind the entire Merger Team, which was 

ultimately responsible for approving the final alternative, because the parties to the 

Settlement comprise only three of the ten state and federal agencies represented on the 

Merger Team.8

 This does not constitute predetermination.

iii.

SOS also urges us to consider external documents generated during the negotiation 

of the Settlement as evidence of predetermination and to reverse the district court’s denial 

of SOS’s motion to include these documents in the record. We decline to do so because 

the district court did not abuse its discretion in denying this motion. See Fort Sumter 

Tours, Inc. v. Babbitt, 66 F.3d 1324, 1335–36 (4th Cir. 1995) (explaining that we review 

 8 To be sure, the parties to the Settlement represented three of the four Lead 

Agencies tasked with decisionmaking if the Merger Team could not reach consensus. 

But, as discussed, the Settlement only required those agencies to seek concurrence that 

the Jug-Handle Bridge was the LEDPA; it did not require them to go beyond the 

objective environmental analysis to choose the Jug-Handle Bridge if it was not, in fact, 

the LEDPA.
22

a district court’s decision whether to expand the administrative record for abuse of 

discretion).

Federal courts base their review of agency decisions on “the ‘whole record’ 

compiled by the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 

419 (1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders, 

430 U.S. 99 (1977). We may supplement the record as presented by the agency if the 

“bare record” does not reveal the agency’s reasoning or if it appears that the agency acted 

in bad faith. Id. at 420. Otherwise, “inquiry into the mental processes of administrative 

decisionmakers is usually to be avoided.” Id.

Here, the record as presented by the Agencies reveals their reasoning, as we have 

discussed, and the district court found no evidence that the Agencies acted in bad faith. 

The district court also determined that there was no evidence that the Agencies actually 

reviewed the documents put forth by SOS as part of their decision to approve the JugHandle Bridge. We hold that the district court did not abuse its discretion by denying 

SOS’s motion to supplement the record, and accordingly, our review is limited to the 

record as compiled by the Agencies.

SOS contends that, even if we cannot consider these documents as part of the 

administrative record, we should nevertheless consider them as extra-record evidence. It 

is true that “in the NEPA context, courts generally have been willing to look outside the 

record when assessing the adequacy of an EIS or a determination that no EIS is 

necessary.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 201 (4th Cir. 

2009). However, we have explained that extra-record evidence in that context is 
23

primarily useful “to inform the court about environmental factors that the agency may not 

have considered.” Id. (emphasis added). Here, the proffered documents would do 

nothing to aid the court’s understanding of the environmental concerns at issue, as they 

concern the legal terms of the Settlement between the Agencies and the Environmental 

Groups. Therefore, the district court properly excluded them, and we decline to consider 

them now.

There is superficial appeal in suggesting that the Agencies’ choice was 

predetermined because the Settlement yielded a preferred alternative. However, that 

conclusion is not legally or factually supported by the record. Legally, our analysis is 

cabined to the environmental analysis itself, with which we find no issues meriting 

reversal. And factually, we see no evidence that the Merger Team was forced to approve 

the Jug-Handle Bridge.

In sum, the Agencies did not violate NEPA when they approved the Jug-Handle 

Bridge because they were not required to prepare an SEIS, they adequately evaluated the 

effects of construction traffic, and they did not rely on a predetermined choice among 

alternatives. We therefore affirm the district court’s grant of summary judgment in favor 

of the Agencies.

III.

Finally, SOS contends that the district court erred when it denied SOS’s motion to 

amend its complaint with claims related to the Pappy’s Lane Wreck. Specifically, SOS 

alleges that the Agencies violated § 4(f) by approving a transportation project that 
24

threatens to harm the land of a site of historic significance because the Jug-Handle Bridge 

will pass above the wreck--the site of a World War II vessel.

We review a district court’s denial of a motion to amend the complaint for abuse 

of discretion. See Laber v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006) (en banc). 

However, if the district court denied such a motion on the grounds that the amendment 

would have been futile, we review its legal conclusions de novo. United States ex. rel. 

Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014).

A party “may amend its pleading once as a matter of course” before the opposing 

party files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After that time, a party may 

only amend its pleading with the consent of the opposing party or with leave of the court, 

and “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 

15(a)(2). Courts may deny leave to amend a pleading if the amendment would have been 

futile. Laber, 438 F.3d at 426. A proposed amendment is futile when it is “clearly 

insufficient or frivolous on its face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 

(4th Cir. 1986). A proposed amendment is also futile if the claim it presents would not 

survive a motion to dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

Here, the district court found that SOS’s proposed amendment would be futile for 

two alternative reasons. First, it determined that, to the extent that SOS sought to assert 

that the 2016 EA was no longer valid in light of new information about the shipwreck, 

that claim would be unripe where the Agencies had not yet made a decision concerning 

the significance of the new information. Second, it determined that, to the extent that 

SOS sought to assert that the 2016 EA was inadequate when issued, that claim would fail 
25

because it would ask the Agencies to consider information that was not discovered until 

after the 2016 EA was issued. For the reasons that follow, we affirm the district court’s 

denial of SOS’s motion to amend its complaint.

First, to the extent that SOS’s proposed amendments contend that the Agencies 

failed to consider new information about the shipwreck, those amendments would be 

futile because they would raise a claim that is not yet ripe for review.9

 Courts may only 

review “final agency action,” 5 U.S.C. § 704, and challenges to agency decisions that are 

yet to be made are not ripe for review. See Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 

2013) (holding that a claim is only ripe when it involves a formalized administrative 

decision). Here, the Agencies have not yet made a final decision about the significance 

of new information revealing that the shipwreck was a World War II assault vessel. 

Therefore, any claim that the Agencies did not properly account for this information 

would be unripe, and any amendment seeking to add such a claim would be futile.

Second, SOS contends on appeal that it is challenging the adequacy of the 2016 

ROD’s treatment of the Pappy’s Lane Wreck rather than the Agencies’ failure to consider 

new information about the shipwreck’s significance. Specifically, SOS contends that, 

because the Agencies knew that the shipwreck was eligible for listing on the National 

 9 SOS appears to have abandoned this argument on appeal. See Appellants’ Br. at 

53 (contending that the district court “fundamentally misread [SOS’s] motion” when it 

denied it on ripeness grounds because “[t]he [new] allegations were about the 

inadequacies of the [2016] ROD and the process leading up to that document”) 

(emphasis added). Nevertheless, we discuss it because it implicates concerns related to 

the argument that SOS does raise on appeal regarding the adequacy of the 2016 ROD 

when issued.
26

Register of Historic Places, they were not authorized to build a bridge in its path unless 

they determined that there was “no prudent and feasible alternative to using that land” 

and that the “project include[d] all possible planning to minimize harm . . . resulting from 

the use.” See 49 U.S.C. § 303(c).

However, as the district court explained, SOS cannot contend that it was

challenging the adequacy of the 2016 ROD’s treatment of the shipwreck when its claims 

“rest[] upon recent discovery that the Pappy[’s] Lane Wreck contains a World War II 

vessel.” Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., No. 2:17-CV-4-FL, 2017 

WL 7048561, at *5 (E.D.N.C. Dec. 5, 2017). Instead, the Agencies satisfied regulatory 

requirements when, based on what they knew about the Pappy’s Lane Wreck, they 

ordered data recovery and decided that the shipwreck did not merit preservation in place. 

Arguments that the Agencies should have gone further are grounded in new information 

and, therefore, not reviewable until the Agencies issue a final decision, as discussed 

above. We therefore affirm the district court’s denial of SOS’s motion to amend its

complaint.

IV.

We affirm the district court because the Agencies did not violate NEPA or the 

DTA when they issued the 2016 ROD selecting the Jug-Handle Bridge and because the 

district court did not abuse its discretion when it denied SOS’s motions to supplement the 

administrative record and to amend the complaint.

AFFIRMED