FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTH IDAHO COMMUNITY ACTION 

NETWORK,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF

TRANSPORTATION; MARY E.

PETERS,* U.S. Secretary of

Transportation; UNITED STATES

FEDERAL HIGHWAY ADMINISTRATION; No. 08-35283

THOMAS J. MADISON, JR.,** D.C. No.

Administrator, U.S. Federal  2:05-CV-00273-EJL

Highway Administration; PETER OPINION HARTMAN,*** Division

Administrator, Idaho Division,

U.S. Federal Highway

Administration; EDWIN B. JOHNSON,

Field Operations Engineer, Idaho

Division, U.S. Federal Highway

Administration; UNITED STATES

FISH & WILDLIFE SERVICE; IDAHO

TRANSPORTATION DEPARTMENT; 

*Mary E. Peters is substituted for her predecessor, Norman Mineta, as

U.S. Secretary of Transportation, pursuant to Fed. R. App. P. 43(c)(2). 

**Thomas J. Madison, Jr., is substituted for his predecessor, Mary E.

Peters, as Administrator of the U.S. Federal Highway Administration, pursuant to Fed. R. App. P. 43(c)(2). 

***Peter Hartman is substituted for his predecessor, Steve Mareno, as

Division Administrator, Idaho Division, U.S. Federal Highway Administration, pursuant to Fed. R. App. P. 43(c)(2). 

14099
PAMELA LOWE,  Director, Idaho 

Transportation Department, 

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

August 25, 2008—Seattle, Washington

Filed October 6, 2008

Before: Thomas G. Nelson, Michael Daly Hawkins, and

Jay S. Bybee, Circuit Judges.

Per Curiam Opinion

** **Pamela Lowe is substituted for her predecessor, David S. Ekern,

as Director, Idaho Transportation Department, pursuant to Fed. R. App. P.

43(c)(2). 

14100 NORTH IDAHO COMMUNITY ACTION v. DOT
COUNSEL

Matthew K. Bishop, Western Environmental Law Center,

Helena, Montana, for the plaintiff-appellant. 

NORTH IDAHO COMMUNITY ACTION v. DOT 14103
Deborah A. Ferguson, Assistant United States Attorney,

Office of the United States Attorney for the District of Idaho,

Boise, Idaho, for appellee United States of America; Murray

D. Feldman, Holland & Hart, LLP, Boise, Idaho, for appellees

Idaho Transportation Department, et al. 

OPINION

PER CURIAM: 

Plaintiff North Idaho Community Action Network

(“NICAN”) appeals the district court’s grant of summary

judgment in favor of defendants United States Department of

Transportation (the “DOT”), Federal Highway Administration, and Idaho Transportation Department (collectively, the

“Agencies”). NICAN challenges a proposed highway construction project on a portion of U.S. Highway 95 located in

northern Idaho. NICAN claims that the Agencies violated the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4321 et seq., and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). We affirm in part, reverse

in part, and remand with instructions. 

FACTS AND PROCEDURAL HISTORY

U.S. Highway 95 (“US-95”) currently runs through the

heart of downtown Sandpoint, Idaho, and is the only highway

that ties northern Idaho to southern Idaho. The proposed highway construction project (the “Project”) will improve US-95

in and around Sandpoint. 

The Project will be funded and constructed in four separate

phases. The first, second, and fourth phases involve widening

the existing highway to four lanes. The third phase involves

realigning an approximate two-mile stretch of US-95 to create

a byway that will route the highway to the east of Sandpoint

14104 NORTH IDAHO COMMUNITY ACTION v. DOT
and remove through-traffic from the downtown Sandpoint

area. Because the Agencies deem the third phase to be the

most important phase of the Project, the Agencies have proceeded with that phase first. 

In September 1999, the Agencies approved a final environmental impact statement (the “1999 EIS”) for the Project. In

May 2000, the Agencies issued a record of decision (the

“ROD”) for the Project. In the ROD, the Agencies selected

the “Sand Creek Byway” as the preferred alternative for the

third phase of the Project. As initially planned in the 1999

EIS, the Sand Creek Byway involved constructing two miles

of new two-lane highway along the east side of Sand Creek,

building a partial interchange/bridge structure over Sand

Creek and Bridge Street, and building a full diamond interchange at the junction of US-95 and State Highway 200. 

In April 2005, the Agencies released an environmental

assessment (the “2005 EA”) that included various changes to

the Project design described in the 1999 EIS. These changes

all relate to the third phase of the Project, the Sand Creek

Byway, and were made in response to input from various

members of the local community. The changes include traffic

design modifications—such as building additional off-ramps

and adding a third lane for safer merging—as well as aesthetic

improvements and mitigation measures—such as constructing

a pedestrian and bicycle pathway along Sand Creek and building three artificial habitat enhancement areas in Sand Creek.

The 2005 EA concluded that the changes to the Project design

would not have significant impacts beyond those already considered in the 1999 EIS. Based on this conclusion, the Agencies issued a Finding of No Significant Impact (“FONSI”). 

In August 2006, the Agencies prepared an environmental

reevaluation (the “2006 Reevaluation”) covering the Project.

The 2006 Reevaluation set forth additional changes to the

Project design and assessed possible environmental effects of

those changes. The majority of the changes involve dredging

NORTH IDAHO COMMUNITY ACTION v. DOT 14105
Sand Creek and will result in the removal of approximately

17,035 cubic yards of material from Sand Creek. The 2006

Reevaluation concluded that there was no additional significant impact and that neither a supplemental environmental

impact statement (“SEIS”) nor an environmental assessment

(“EA”) was required. 

In July 2005, after the Agencies released the 2005 EA and

issued its FONSI determination, but before the Agencies prepared the 2006 Reevaluation, NICAN filed suit in the district

court challenging the Agencies’ approval of the Project. On

the parties’ cross-motions for summary judgment, the district

court granted summary judgment in favor of the Agencies and

against NICAN. 

NICAN moved for an injunction pending appeal, which the

district court denied. NICAN then sought and obtained an

injunction pending appeal from a motions panel of this court.

After oral argument in this expedited appeal, we lifted the

injunction and allowed construction of the Sand Creek Byway

to commence. This Opinion sets forth the explanation for our

decision. 

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo. Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv.,

475 F.3d 1136, 1140 (9th Cir. 2007). The Administrative Procedure Act (“APA”) provides authority for the court’s review

of decisions under NEPA and Section 4(f) of the Department

of Transportation Act, 49 U.S.C. § 303(c). See Pit River Tribe

v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006);

Alaska Ctr. for the Env’t v. Armbrister, 131 F.3d 1285, 1288

(9th Cir. 1997). Under the APA, a reviewing court may set

aside agency actions that are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). As this court recently explained: 

14106 NORTH IDAHO COMMUNITY ACTION v. DOT
Review under the arbitrary and capricious standard

is narrow, and we do not substitute our judgment for

that of the agency. Rather we will reverse a decision

as arbitrary and capricious only if the agency relied

on factors Congress did not intend it to consider,

entirely failed to consider an important aspect of the

problem, or offered an explanation that runs counter

to the evidence before the agency or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise. 

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)

(en banc) (internal quotations and citations omitted). 

DISCUSSION

I. NEPA

“NEPA ‘is our basic national charter for protection of the

environment.’ ” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir.

2008). Although NEPA does not impose any substantive

requirements on federal agencies, it does impose procedural

requirements. See Lands Council, 537 F.3d at 1000. Through

these procedural requirements, NEPA seeks to make certain

that agencies “ ‘will have available, and will carefully consider, detailed information concerning significant environmental impacts,’ and ‘that the relevant information will be

made available to the larger [public] audience.’ ” Id. (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

349 (1989)). 

NICAN argues that the Agencies violated NEPA’s procedural requirements by (a) failing to consider alternatives to

changes to the Project set forth in the 2005 EA, (b) failing to

disclose and assess in the 2005 EA the impacts of dredging

Sand Creek, (c) failing to consider a tunnel alternative for the

Project, (d) failing to consider the impacts the Project will

NORTH IDAHO COMMUNITY ACTION v. DOT 14107
have on historical properties, and (e) failing to prepare a supplemental environmental impact statement. We address each

of these claims in turn. 

A. Failure to Consider Alternatives

NICAN argues that the Agencies violated NEPA by failing

to consider alternatives to the various changes to the Project

design set forth in the 2005 EA. We disagree. 

[1] NEPA requires the agencies to “study, develop, and

describe appropriate alternatives to recommended courses of

action in any proposal which involves unresolved conflicts

concerning alternative uses of available resources.” 42 U.S.C.

§ 4332(2)(E). This “alternatives provision” applies whether an

agency is preparing an environmental impact statement

(“EIS”) or an environmental assessment (“EA”), and requires

the agency to give full and meaningful consideration to all

reasonable alternatives. Native Ecosystems Council v. U.S.

Forest Serv., 428 F.3d 1233, 1245 (9th Cir. 2005). However,

“an agency’s obligation to consider alternatives under an EA

is a lesser one than under an EIS.” Id. at 1246. Thus, whereas

with an EIS, an agency is required to “[r]igorously explore

and objectively evaluate all reasonable alternatives,” see 40

C.F.R. § 1502.14(a), with an EA, an agency only is required

to include a brief discussion of reasonable alternatives. See 40

C.F.R. § 1508.9(b). 

NICAN does not dispute that the Agencies adequately

explored and evaluated reasonable alternatives to the Project

in preparing the 1999 EIS. NICAN also does not challenge

the Agencies’ selection, in the ROD, of the Sand Creek

Byway as the preferred alternative. Rather, NICAN argues

that the Agencies violated NEPA because they failed to consider alternatives to the various changes to the Project design

set forth in the 2005 EA. 

[2] In the 2005 EA, the Agencies considered and briefly

discussed two alternatives: the Project with the changes pro14108 NORTH IDAHO COMMUNITY ACTION v. DOT
posed in the 2005 EA, and the Project without the proposed

changes (i.e., proceeding with the Project as previously

described in the 1999 EIS). As discussed in Section I.E.

below, the changes to the Project proposed in the 2005 EA

will not result in significant environmental effects that were

not previously evaluated in the 1999 EIS. Under these circumstances, we hold that the Agencies fulfilled their obligations

under NEPA’s alternatives provision when they considered

and discussed only two alternatives in the 2005 EA. See

Native Ecosystems, 428 F.3d at 1245-49 (holding that the

agency complied with NEPA’s alternatives provision in preparing an EA where the agency considered only two

alternatives—a no action alternative and a preferred alternative); 40 C.F.R. § 1508.9(b) (requiring only a brief discussion

of reasonable alternatives in an EA). 

B. Failure to Disclose/Analyze Dredging

NICAN argues that the Agencies violated NEPA by failing

to disclose and assess in the 2005 EA, or a supplemental EA,

the impacts of dredging Sand Creek. We disagree. 

Prior to issuance of the 2005 EA, there were internal discussions within the Agencies regarding the possible need for

the excavation or dredging of Sand Creek. There also was,

however, a good deal of uncertainty within the Agencies

about whether dredging would be required and, if so, the

extent of that dredging. For example, the initial application to

the Army Corps of Engineers indicated a belief that no dredging would be required. And shortly before the 2005 EA was

issued, hydraulics engineers were still examining at least three

dredging alternatives, and the design remained “subject to

change.” 

The Agencies could not adequately or meaningfully evaluate the environmental impacts of any potential dredging until

they had more information, which depended at least in part on

ongoing discussions with the Army Corps of Engineers and

NORTH IDAHO COMMUNITY ACTION v. DOT 14109
the Clean Water Act permitting process. Once additional

information regarding the proposed dredging was available,

the Agencies performed the 2006 Reevaluation to analyze the

dredging and its projected impacts, and to determine whether

the new information required the preparation of a SEIS or a

supplemental EA. See Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000); Price Road Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505, 1510 (9th

Cir. 1997); 23 C.F.R. § 771.129(a) (1988). The Agencies concluded that the dredging would not have significant environmental impacts beyond those already considered, and thus

that neither a SEIS nor a supplemental EA was required. 

The Agencies’ use of the reevaluation process is substantially similar to that approved in Price Road, 113 F.3d at

1510, and we find no fault with the Agencies’ use of that process here. 

In Price Road, a freeway project initially contemplated two

below-ground enclosed tunnels but was revised to include two

fully-directional loop ramps instead of the tunnels. Id. at

1507-08. The Agencies considered, in an environmental

reevaluation, the environmental effects of the changes and

determined there were no discernible differences in the level

of environmental impacts beyond those previously considered. Id. at 1508. The agency thus did not prepare an EA or

EIS for the changes. Id.

[3] We noted that, while NEPA does not specifically

address how an agency should decide when changes require

a more formal EA or EIS, the Federal Highway Administration had specifically provided for reevaluations as a means to

determine whether or not the approved environmental document remains valid. Id. at 1509-10 (citing 23 C.F.R.

§ 771.129(c)). We thus concluded that if the agency, after the

requisite “hard look” in a reevaluation, determines that the

new impacts will not be significant (or not significantly different from those already considered), then the agency is in

14110 NORTH IDAHO COMMUNITY ACTION v. DOT
full compliance with NEPA and is not required to conduct a

supplemental EA. Id. at 1510; see also Highway J Citizens

Group v. Mineta, 349 F.3d 938, 959-60 (7th Cir. 2003) (holding that when a “known issue came into sharper focus after

the formal environmental documents were issued,” it was not

improper to use internal reevaluation to analyze the issue). 

[4] In the present case, the Agencies took the requisite

“hard look” at the impacts of dredging Sand Creek in the

2006 Reevaluation, and determined that there were no new

impacts that were significantly different than those already

considered and that neither a SEIS nor a supplemental EA

was therefore required. We hold that the Agencies did not act

arbitrarily or capriciously in making those determinations, and

that they complied with NEPA in their evaluation of the proposed dredging.1

C. Tunnel Alternative

NICAN argues that the Agencies violated NEPA by failing

to consider a new tunnel alternative for the Project. Again, we

disagree. 

[5] Agencies have a continuing obligation to consider new

information that comes to light, even after the issuance of an

EIS. See 40 C.F.R. § 1502.9 (c)(1)(ii) (requiring the agency to

prepare supplements to either draft or final environmental

impact statements if “[t]here are significant new circumstances or information relevant to environmental concerns and

1NICAN’s reliance on Idaho Sporting Cong., 222 F.3d at 566-67, is

misplaced. In that case, this court already had determined there were deficiencies in the agency’s EA and EIS. Rather than issue a revised EA and

EIS to address those deficiencies, the agency improperly attempted to

address the deficiencies through issuance of a supplemental information

report (“SIR”). In contrast, in the present case, as in Price Road, the

reevaluation process was used not in an attempt to correct deficiencies in

an EA or EIS, but instead to make an ex-ante decision about the need for

a SEIS or supplemental EA. 

NORTH IDAHO COMMUNITY ACTION v. DOT 14111
bearing on the proposed action or its impacts”); see also

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373-74

(1989) (“[A]n agency need not supplement an EIS every time

new information comes to light after the EIS is finalized. . . .

On the other hand, . . . NEPA does require that agencies take

a ‘hard look’ at the environmental effects of their planned

action, even after a proposal has received initial approval.”);

Friends of the Clearwater v. Dombeck, 222 F.3d 552, 558

(9th Cir. 2000) (“When new information comes to light the

agency must consider it, evaluate it, and make a reasoned

determination whether it is of such significance as to require

[a supplemental EIS].”) (internal quotation marks and citation

omitted); Hughes River Watershed Conservancy v. Glickman,

81 F.3d 437, 444-45 (4th Cir. 1996) (holding that the agency

violated NEPA by failing to take a “hard look” at new information regarding zebra mussel infestation). 

[6] This continuing obligation, however, extends only to

new information or circumstances regarding environmental

impacts that may not have been appreciated or considered

when the EIS was prepared. An agency is not required by

NEPA to consider new alternatives that come to light after

issuance of the EIS absent “substantial changes in the proposed action relevant to environmental concerns,” or “significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or

its impacts.” 40 C.F.R. § 1502.9 (c)(1); see 40 C.F.R.

§ 1502.14. 

[7] Here, the tunnel alternative is not new “information” or

a new “circumstance” regarding environmental impacts that

may not have been appreciated or considered when the 1999

EIS was prepared, and there is no substantial change in the

Project that is “relevant to environmental concerns.” Accordingly, we hold that the Agencies did not violate NEPA by fail14112 NORTH IDAHO COMMUNITY ACTION v. DOT
ing to consider the tunnel alternative when it was brought to

their attention in 2006.2

D. Impacts to Historic Properties

NICAN argues that the Agencies violated NEPA by: (1)

taking a “phased approach” to how the Project will impact

historic properties, and (2) failing to take a “hard look” at how

the construction and operation of the Project will impact the

Burlington Northern Railroad Depot (the “Depot”). We disagree and hold that the Agencies fully complied with NEPA

on this issue. 

[8] NEPA requires federal agencies to consider the environmental impact of major federal action. See San Carlos Apache

Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005)

(citing 42 U.S.C. § 4332(2)(C)); see also Coliseum Square

Ass’n, Inc. v. Jackson, 465 F.3d 215, 223-25 (5th Cir. 2006).

NEPA has no independent requirement that an agency examine, separate and apart from any environmental impacts, the

impact that a federal action will have on historic properties.

NICAN’s reliance on NEPA regulations requiring consideration of environmental impacts to support its historicproperty-impact argument is therefore misplaced. 

[9] Moreover, although an EIS is required to include “discussions” of “historic and cultural resources,” see 40 C.F.R.

§ 1502.16(g), the Agencies’ 1999 EIS complied with this

requirement. The 1999 EIS considered the impacts the Project

is anticipated to have on historic properties, primarily focusing on the impacts of the Sand Creek Byway alternative ver2Moreover, because the tunnel alternative was not raised and identified

until June 2006, well after the notice and comment periods for the 1999

EIS and the 2005 EA closed, any objection to the failure to consider that

alternative has been waived. See Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752, 764-65 (2004) (holding that objections to the failure to consider

alternatives beyond those evaluated in the EA were forfeited by failure to

identify additional alternatives during notice and comment period). 

NORTH IDAHO COMMUNITY ACTION v. DOT 14113
sus a through-town couplet alternative. The Agencies

ultimately chose the Sand Creek Byway alternative, in part

because the through-town couplet alternative potentially

would have impacted numerous historic sites, whereas the

Sand Creek Byway alternative only would potentially impact

the Depot and some underground sites.3

The 1999 EIS recognized possible noise and vibration

impacts, noted general steps that would be taken to minimize

impacts, and indicated that additional surveys and mitigation

measures would be undertaken after selection of the preferred

route. The 2005 EA included a more detailed noise analysis

following testing and modeling, which concluded that there

were no significant adverse effects from the Project.4 The

2005 EA also described various mitigation procedures to protect the Depot from other construction activities, including the

changes to the Project and ongoing monitoring, developed in

consultation with the State Historic Preservation Officer

(“SHPO”).5

[10] We hold that the broad overview in the 1999 EIS of

the Project’s impacts on historic properties, coupled with the

specific, detailed analysis of the impacts of the Sand Creek

Byway, and mitigation measures to minimize those impacts,

was more than sufficient to meet NEPA’s requirements in

relation to historic properties.6

3These underground sites could be protected by simply preserving anything unearthed off-site. 

4We defer to the Agencies’ interpretation of these data. Lands Council,

537 F.3d at 993-94. 

5

In determining whether the potential construction effects would likely

be significant, the Agencies are permitted to take into account mitigation

measures which reduce the impact of construction. See Wetlands Action

Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir.

2000). 

6The sufficiency of the Agencies’ analysis under Section 4(f) of the

Department of Transportation Act, 49 U.S.C. § 303(c), is discussed separately in Section II.A. below. 

14114 NORTH IDAHO COMMUNITY ACTION v. DOT
E. Failure to Prepare a SEIS

[11] An agency is not required to prepare a SEIS every

time new information comes to light. See Marsh, 490 U.S. at

373. Rather, a SEIS is required only if changes, new information, or circumstances may result in significant environmental

impacts “in a manner not previously evaluated and considered.” Westlands Water Dist. v. Dep’t of Interior, 376 F.3d

853, 873 (9th Cir. 2004) (citation omitted). To assist the

agency in determining whether a SEIS is required, an agency

may prepare an environmental report (such as a reevaluation)

or an EA. See 23 C.F.R. §§ 771.119(a), 771.129, 771.130(c).

[12] Here the agencies prepared both an EA and a reevaluation. In these documents, the Agencies considered the changes

to the Project and the impacts of those changes. Although the

changes would have somewhat different impacts from those

previously analyzed in the 1999 EIS, the Agencies determined

that those impacts were not significant or adverse enough to

require a SEIS. 

NICAN argues that the Agencies acted arbitrarily and

capriciously by failing to prepare a SEIS regarding the

changes to the Project discussed in the 2005 EA and the 2006

Reevaluation. NICAN contends that a SEIS was required

because of impacts to wetlands, cumulatively significant

impacts, controversial or uncertain impacts, and adverse

impact on historic sites. See 40 C.F.R. § 1508.27(b) (discussing factors which should be considered in evaluating intensity

of impact). We disagree and hold that a SEIS was not

required. 

As modified, the Project affected only an additional 0.32

acres of wetlands, which was also mitigated by construction

of 1.1 acres of additional wetland area in a different location.

See Wetlands Action Network, 222 F.3d at 1121 (holding that

an agency can consider mitigation effects that minimize the

impacts of a project in determining the significance of the

NORTH IDAHO COMMUNITY ACTION v. DOT 14115
project’s environmental impact). Further, the changes to the

Project relating to the Depot were in response to requests by

the SHPO to mitigate and protect the Depot from adverse

effects, and were not adverse consequences in and of themselves. Cf. Enos v. Marsh, 769 F.2d 1263, 1373-74 (9th Cir.

1985) (holding that it was not arbitrary and capricious for the

agency to find no adverse effect on archeological sites when

that finding was consistent with the opinion of a SHPO). 

Moreover, the uncertainty and controversy relied on by

NICAN are not directed to the changes in the Project, but to

the Sand Creek Bypass alternative itself. That alternative was

discussed and evaluated in the 1999 EIS, and any challenge

to the selection of that alternative has been waived. Cf. Dep’t

of Transp., 541 U.S. at 764-65 (holding that objections to the

failure to consider alternatives beyond those evaluated in the

EA were forfeited by failure to identify additional alternatives

during notice and comment period). 

Finally, the Agencies sufficiently considered the cumulative impacts of the Project. In the 1999 EIS, the Agencies discussed and analyzed the environmental impacts of the Project

as initially proposed. In the 2005 EA and 2006 Reevaluation,

the Agencies determined that the changes to the Project did

not significantly impact the environment in a way not previously considered. NICAN has pointed to nothing that convinces us that these determinations by the Agencies were

inaccurate, let alone arbitrary or capricious. 

[13] We hold that the Agencies’ determination that the

changes to the Project would not significantly impact the

environment in a way not previously considered, and that a

SEIS therefore was not required, was not arbitrary or capricious. See Marsh, 490 U.S. at 373-74; see also Westlands

Water Dist., 376 F.3d at 873. 

14116 NORTH IDAHO COMMUNITY ACTION v. DOT
II. Alleged Violations of Section 4(f) of the Department

of Transportation Act

All federally funded highway projects must comply with

not only federal environmental protection laws, such as

NEPA, but also with historic preservation laws, including

Section 106 of the National Historic Preservation Act, 16

U.S.C. § 470f (“§ 106”), and Section 4(f) of the Department

of Transportation Act of 1966, 49 U.S.C. § 303(c) (“§ 4(f)”).

Section 106 is a procedural statute that describes the process by which a project’s impacts to historical sites are identified. It provides that before a federal agency may authorize

the expenditure of funds for a federal or federally assisted

project, the agency must first consider the effects of the project on “any district, site, building, structure, or object that is

included in or eligible for inclusion in the National Register.”

16 U.S.C. § 470f. 

Section 4(f), in contrast, imposes a substantive mandate.

See 49 U.S.C. § 303(c). It allows a federal project “requiring

the use of land of an historic site” to be approved only if “(1)

there is no prudent and feasible alternative to using that land;

and (2) the program or project includes all possible planning

to minimize harm to the park, recreation area, wildlife and

waterfowl refuge, or historic site resulting from the use.” 49

U.S.C. § 303(c) (emphasis added). 

NICAN argues that the Agencies violated § 4(f) by (a) failing to survey, identify, and evaluate § 4(f) properties for all

four phases of the Project, and (b) determining that a § 4(f)

analysis was not required because the construction and operation of the Project would not result in “use” of the Depot. We

examine each of these claims in turn. 

A. Failure to Evaluate § 4(f) Properties for all Four

Phases of the Project

NICAN argues that the Agencies violated § 4(f) by failing

to survey for, identify, and evaluate the impacts on historic

NORTH IDAHO COMMUNITY ACTION v. DOT 14117
properties for all four phases of the Project as required by

§ 106 and § 4(f). 

The Agencies concede that they have taken a phased

approach and have conducted a detailed § 106 identification

process and § 4(f) evaluation only with respect to the Sand

Creek Byway phase of the Project, and have not done so with

respect to the remaining three phases of the Project. Further,

the Agencies correctly point out that the regulations governing the § 106 process allow a phased approach to identifying

historic properties in some circumstances. See 36 C.F.R.

§ 800.4(b)(2); 36 C.F.R. § 800.8(a)(1). 

[14] However, § 4(f) and its regulations require that the

§ 4(f) evaluation be completed before an agency issues its

ROD. See 23 C.F.R. § 771.135(b) (“Any use of lands from a

section 4(f) property shall be evaluated early in the development of the action when alternatives to the proposed action

are under study.”) (emphasis added); 23 C.F.R. § 771.135(i)

(2007) (stating that evaluation of alternatives to using § 4(f)

property should be presented in an EIS or EA); 23 C.F.R.

§ 771.135(l) (stating that if an EIS is required for a project,

the agency should conduct the § 4(f) analysis in the EIS or

ROD).7 And because the § 4(f) evaluation cannot occur until

after the § 106 identification process has been completed, the

§ 106 process necessarily must be complete by the time the

ROD is issued. See, e.g., 49 U.S.C. § 303(d)(2) (allowing the

Secretary to find § 4(f) de minimis impact only if that determination has been developed in the consultation process

required under § 106). 

The District of Columbia Circuit reached the same conclu7These regulations were in effect at the time of the Agencies’ decision

in this case. They have been removed and replaced with similar ones as

of April 11, 2008. 23 C.F.R. § 774.9 (a) & (b) still provide that § 4(f)

properties must be evaluated early while alternatives are under study, and

that the § 4(f) approval should appear in the EIS or ROD. 

14118 NORTH IDAHO COMMUNITY ACTION v. DOT
sion in a markedly similar case, Corridor H Alternatives, Inc.

v. Slater, 166 F.3d 368 (D.C. Cir. 1999). In Corrider H, the

agency approved a plan for building a lengthy highway corridor, which was divided into fourteen segments. Id. at 371.

The EIS selected an alternative that required the agency to

identify historic properties in each segment in sequence and

provided that no work would proceed where the treatment of

historic properties had not been finalized. Id. The ROD,

approving the selected alternative, recognized that the § 4(f)

evaluation could not be conducted until the § 106 identification process was completed. Id. at 371-72. 

The District of Columbia Circuit held that the agency was

required to complete the § 4(f) process for the entire corridor

project before issuing the ROD. See id. at 372-74 (citing 23

C.F.R. § 771.135); see also Valley Cmty. Pres. Comm’n v.

Mineta, 373 F.3d 1078, 1087-88 (10th Cir. 2004) (“Section

4(f) regulations clearly require the FHWA to make the requisite Section 4(f) evaluations prior to issuing an ROD approving a proposed construction project.”); Benton Franklin

Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784,

788-89 (9th Cir. 1983) (criticizing agency for failing to complete Section 4(f) analysis earlier).8

[15] We hold, consistently with the District of Columbia

Circuit’s decision in Corrider H, that an agency is required to

complete the § 4(f) evaluation for the entire Project prior to

issuing its ROD. 

8The Agencies’ reliance on City of Alexandria v. Slater, 198 F.3d 862

(D.C. Cir. 1999), is misplaced. In Slater, the agency identified historic

properties along the entire project corridor, and documented its findings

in a Memorandum of Agreement and a § 4(f) evaluation; the agency

deferred only the determination of whether some ancillary construction

activities might also impact § 4(f) properties. Id. at 873. In contrast, here

the Agencies concede that they have conducted the § 106 identification

process and § 4(f) evaluation only as to the Sand Creek Byway phase of

the project, and have not conducted the necessary identification and evaluation for the other phases of the Project. 

NORTH IDAHO COMMUNITY ACTION v. DOT 14119
[16] The Agencies concede that they have taken a phaseby-phase approach, that they have not completed the § 4(f)

evaluation for the entire Project, and that they already have

issued the ROD. The Agencies have accordingly violated

§ 4(f). We therefore reverse the district court’s grant of summary judgment on this issue. 

B. “Use” of the Depot

In the 1999 EIS, the Agencies performed a § 4(f) evaluation with respect to the Depot. The Agencies concluded that

there was no feasible and prudent alternative to the use of the

Depot and that the proposed action included all possible planning to minimize harm to the Depot, thus allowing the Project

to proceed. See 49 U.S.C. § 303(c)(1). 

NICAN does not challenge the Agencies’ § 4(f) evaluation

contained in the 1999 EIS. Instead, NICAN argues that the

Agencies acted arbitrarily and capriciously when they determined that modifications to the Project set forth in the 2005

EA will not “use” the Depot for purposes of § 4(f), and that

a formal § 4(f) evaluation was therefore not required in relation to those modifications. 

The modifications at issue came about as a result of the

Agencies’ agreement with the SHPO to perform certain

repairs and make certain improvements to the Depot. The

agreed-to repairs include removing the sandstone water table

course, replacing missing bricks, repointing all masonry

joints, and reconstructing a concrete curb and walkway at the

west side. The agreed-to improvements include paving the

Depot access road and parking areas, adding lighting to the

pedestrian parking area, and building a handicap access ramp

and brick pathway connecting the parking area to the Depot.

These “modifications” will not have an “adverse effect” on

the Depot, but are instead improvements that inure to the benefit of the Depot. See 49 U.S.C. § 303(c), (d)(2). And,

although occurring on Depot property, these improvements do

14120 NORTH IDAHO COMMUNITY ACTION v. DOT
not “permanently incorporate[ ] [the land] into a transportation facility” to bring it within the parameters of § 4(f). See

23 C.F.R. § 771.135(p)(1) (2000);9see also Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 533 (9th Cir.

1994) (holding that properties were not actually or constructively used in a proposed project where the project would

not “substantially impair the current features, activities and

attributes” of parklands and bike paths). These improvements do not, therefore, involve a “use” of the Depot property

under § 4(f). See 49 U.S.C. § 303(c), (d)(2); 23 C.F.R.

§ 771.135(p)(1) (2000). 

Other modifications to the Project—such as installing a

construction fence and mesh grating, and excavating a trench

—involve activities that are temporary and minor, that have

been approved by the SHPO, and from which the land will be

fully restored. These activities also do not, therefore, involve

a “use” of the Depot property under § 4(f). See 23 C.F.R.

§ 771.135(p)(7) (describing when a temporary occupancy is

so minimal it does not constitute a “use”). 

[17] We hold that the Agencies did not act arbitrarily or

capriciously in determining that the modifications to the Project discussed in the 2005 EA would not “use” the Depot property within the meaning of § 4(f). 

III. Remedy

Although we conclude the Agencies violated § 4(f) by failing to conduct the § 4(f) evaluation for the entire Project prior

to issuing the ROD, we find it unnecessary to enjoin the entire

Project while the Agencies complete the necessary evaluation.

All parties agree that the § 4(f) evaluation has been completed

with respect to the Sand Creek Byway phase of the Project.

9This was the regulation in effect at the time of the Agencies’ decision;

it has now been removed and repromulgated in substantially the same

form at 23 C.F.R. § 774.17 (2008). 

NORTH IDAHO COMMUNITY ACTION v. DOT 14121
The Sand Creek Byway has independent viability, beginning

and ending at points on existing US-95, and the Sand Creek

Byway will accomplish many goals of the overall Project. 

[18] On the unique facts of this case, we conclude that the

scope of injunctive relief should be limited to precluding the

Agencies from commencing construction of the remaining

three phases of the Project until the § 4(f) evaluation has been

fully completed. See, e.g., Sierra Club v. Bosworth, 510 F.3d

1016, 1034 (9th Cir. 2007) (after noting that some projects

were already approved and in operational stages, limiting

injunctive relief to projects that were approved after initiation

of the lawsuit and giving the district court discretion to also

exclude some projects that were approved later but already at

or near completion); Nat’l Parks & Conservation Ass’n v.

Babbitt, 241 F.3d 722, 739 (9th Cir. 2001) (limiting the scope

of injunctive relief to two components of vessel management

plan). We therefore remand to the district court with instructions to enter an appropriate injunction in accordance with our

decision. See Nat’l Parks, 241 F.3d at 740.10

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED WITH INSTRUCTIONS. Each party to bear

its own costs on appeal. 

10Nothing in this decision shall be deemed to preclude NICAN or any

other interested party from challenging the Agencies’ § 106 identification

process and § 4(f) evaluation, once completed, with respect to the remaining phases of the Project. 

14122 NORTH IDAHO COMMUNITY ACTION v. DOT