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Consejo de Desarrollo Economico de Mexicali, A.C. v. United States

THOMAS, Circuit Judge. This case involves a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and in-junctive relief. A motions panel of our Court granted a temporary injunction halting work on the project pending appeal. After the initial oral argument and based on intervening legislation, the United States filed a motion to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. We held a second oral argument to consider the motion. After consideration of the extensive briefing and arguments of the parties, we conclude that the environmental and other statutory claims are moot and that the district court lacked subject matter jurisdiction over the remaining claims. We vacate the injunction of the project pending appeal and remand the case to the district court with instructions to dismiss it. I Colorado Poet Laureate Thomas H. Fer-ril described the West by saying: “Here is the land where life is written in water.” The legacy of the West is one of continual, and often bitter, controversies about water rights, both above and below the surface. In the West, “whiskey is for drinking; water is for fighting over,” Mark Twain is said to have observed. Our water dispute brings us to the Mexican-California border and the plans of the United States Bureau of Reclamation to prevent the All-American Canal from seeping water — seepage upon which thousands of Mexicans rely. The All-American Canal is one of the world’s largest irrigation canals, carrying water from the Colorado River to the Imperial Valley in California. The Imperial Valley lies between the Mexican boundary and the Saltón Sea, bounded on the east by sandhills and on the west by the foothills of the San Diego Mountains. The canal is the valley’s only source of water. The All-American canal replaced the Alamo canal, which diverted water a short distance north of the Mexican border, but transported water mostly through Mexico before it re-crossed the border into the Imperial Valley. In the 1920’s, considerable sentiment arose to have a canal that was entirely contained within the boundaries of the United States — perhaps in furtherance of the notion of character Noah Cross (slightly paraphrased), that “either you bring the water to California, or you bring California to the water.” In any event, the concept of an “all-American” canal was born. The All-American Canal System was authorized under the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, codified at 43 U.S.C. § 617. Construction of the canal by the United States Bureau of Reclamation commenced in 1934 following the construction of the Hoover Dam, with the project reaching completion in 1942. The design was aimed to have the water transported entirely within the United States. The new canal, as designed, flowed only in the United States. However, water often refuses to be confined by our artificial restraints. Thus, although the canal’s surface water remained in the United States, its seepage did not — recharging the Mexicali Aquifer and providing a reservoir of groundwater to the Mexicali Valley on the other side of the border. The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. The complaint alleges that the roughly 1.3 million people who live in the Mexicali Valley depend on the groundwater from the aquifer, which irrigates thousands of acres of farmland. Prior to 1901, the aquifer was recharged by the Colorado and Alamo rivers. Because it was unlined, the construction of the Alamo Canal did not impact the recharge of the aquifer. Congress considered the idea of lining the All-American Canal, but ultimately decided on an earthen and porous design that did allow seven percent of the volume to seep into northern Mexico. Seepage from the All-American Canal first caused widespread flooding in the Mexicali Valley until mechanisms were put in place to harness the water. The residents and businesses of the Mexicali Valley have since expended considerable resources to create an infrastructure of pumping facilities and conveyance equipment that deliver the water for drinking and irrigation. As a result, the complaint alleges that a large metropolitan community has developed in reliance on the water. In 1944, the United States and Mexico entered into a treaty designed to govern the allocation of Colorado River water between the two nations. See Treaty Between the United States of America & Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande [“1944 Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8,1945). The Treaty came in the context of a developing set of domestic authorities designed to regulate the use of Colorado River water known collectively as the “Law of the River.” After the first World War, as Congress began considering further ways to capture and regulate Colorado River water, the states constituting the Upper Basin of the river (Colorado, Utah, New Mexico and Wyoming) grew concerned that states in the Lower Basin (Arizona, Nevada and California) would begin to claim appropriation rights to the water. See Maricopa-Stanfield v. United States, 158 F.3d 428, 430 (9th Cir.1998). The Colorado River Compact of 1922 apportioned 7.5 million acre feet of water annually to the Lower Basin states to forestall any disputes. See Act of August 19, 1921, art. 2, 43 Stat. 171, reprinted in Ariz.Rev.Stat. § 45-1311. The Boulder Canyon Project Act of 1928 (“Canyon Project Act”) then apportioned that 7.5 million acre feet among the Lower Basin states. See Maricopa-Stanfield, 158 F.3d at 430. To deliver the allocations called for in the Act, the Canyon Project Act authorized the construction of the All-American Canal. See 43 U.S.C. § 617. The apportionment between the Lower Basin states has also been the subject of a series of Supreme Court decisions and decrees, culminating in Arizona v. California, 547 U.S. 150,126 S.Ct. 1543, 164 L.Ed.2d 271 (2006) (“Consolidated Decree”). The Treaty requires the United States to deliver 1.5 million acre feet of Colorado River water to Mexico annually at designated diversion points on the international land boundary as specified in the Treaty. The Treaty also commits the United States to delivering an additional 200,000 acre feet in any year in which there is a surplus of Colorado River water in excess of the amount required to satisfy other obligations. The Treaty then states that “Mexico shall acquire no right beyond that provided by this subparagraph by the use of the waters of the Colorado River system, for any purpose whatsoever, in excess of the 1,500,000 acre feet ... annually.” 1944 Treaty at Art. 10. The Treaty commits the United States to constructing the works necessary to deliver these waters to the diversion points. The Treaty considered the All-American Canal to be one of the mechanisms for delivery. The Treaty committed to the International Boundary and Water Commission (“Boundary Commission”) the authority to resolve disputes arising under the Treaty. Id. at Art 2, 24(d). In 1973, the Boundary Commission issued “minute 242” addressing the problem of the salinity of the Colorado River. See Agreement Confirming Minute No. 242 of the International Boundary and Water Commission, U.S. and Mex., 24 U.S.T.1968 (Aug. 30, 1973). The minute acknowledged that there was no existing agreement governing groundwater issues in the border area between the two nations. The agreement also stated that “[w]ith the objective of avoiding future problems, the United States and Mexico shall consult with each other prior to undertaking any new development of either the surface or the groundwater resources, or undertaking substantial modifications of present developments, in its own territory in the border area that might adversely affect the other eountry.” Id. In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act (“Settlement Act”) which authorized the Secretary of the Interior (“Secretary”) to select one of three options for recovering the seepage lost through the All-American Canal. Pub.L. No. 100-675, 102 Stat. 4000, § 203. The choices included constructing a parallel lined canal, lining the existing canal, or constructing seepage recovery facilities such as a well-field between the All-American Canal and the border. The Secretary also considered a no action option. The Settlement Act explained that “significant quantities of water currently delivered into the All American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals.” Id. at § 201. The conserved water was to be used to meet the growing needs of California consumers, as well as to settle water rights claims brought by several Native American groups. Id. at § § 106, 204. The Imperial Irrigation District (“HD”), with whom the Secretary contracts to manage the All-American Canal, and the Metropolitan Water District of Southern California (“MWD”) would deliver the additional water to consumers. Id. at § 202. The Secretary then undertook several environmental studies to consider the impact of the All-American Canal lining project (“Lining Project”) and issued a final environmental impact statement (“FEIS”) and record of decision (“ROD”) in 1994. The FEIS was noticed in the Federal Register at that time. 59 Fed.Reg. 18,573 (Apr. 19, 1994). After consideration of all the alternatives, the ROD selected the parallel lined canal option and the Bureau of Reclamation approved the ROD on July 29,1994. Thereafter, the United States engaged in a diplomatic interchange with Mexico and the Mexican section of the Boundary Commission. There is some dispute as to the nature and extent of that exchange. The United States claims that it engaged in an extensive consultation progress; Mexico, as amicus, complains of cursory and insufficient consultation. The Lining Project lay dormant, however, because the Settlement Act required that the project be paid for by entities benefitting from the conserved seepage and not by the United States. Settlement Act at § 203. While the plan was dormant, the Bureau of Reclamation conducted a reexamination of the FEIS in 1999, but determined that no new significant information changed the initial analysis and thus a supplemental environmental impact statement (“SEIS”) was not required. By 2002, the State of California was using over five million acre feet of Colorado River water per year, 600,000 acre feet above its 4.4 million acre feet allotment under the terms of the Canyon Project Act and Consolidated Decree. Awareness of the size of this usage led to an intensive effort by the region’s water users to assist California in reducing its historical overuse of Colorado River water. This effort led to a series of agreements in 2003 between the United States, the MWD, Coachella Valley Water District, IID, San Diego County Water Authority (“SDCWA”), the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of Mission Indians, the San Luis Rey River Indian Authority, and the City of Escondido & Vista Irrigation District (the “Allocation Agreement”). The Allocation Agreement provided how the conserved seepage water would be allocated. One aspect of the agreement was that the State of California would pay for the Lining Project. With the project back on track, the Bureau of Reclamation asked the United States Fish and Wildlife Service (“FWS”) to confirm as a biological opinion a conference opinion the FWS had issued on February 8, 1996, regarding the Lining Project’s impact on the Peirson’s Milk Vetch, a threatened plant species. FWS so confirmed the opinion on September 9, 2004. On July 19, 2005, this action was filed in the District of Nevada seeking to enjoin the Lining Project. The Plaintiffs consisted of Consejo de Desarrollo Económico de Mexicali, A.C. (“Consejo”), a Mexican community group, and two American non-profit environmental groups (“Environmental Plaintiffs”) (Citizens United for Resources and the Environment [“CURE”] and Desert Citizens Against Pollution [“Desert Citizen”]). The City of Calexico, California, (“Calexico”) later intervened as a plaintiff as to one count of the complaint. The parties stipulated to, and the district court approved, the intervention of multiple entities on the side of the defense, including the Imperial Irrigation District, the San Diego County Water Authority, the Central Arizona Water Conservation District, the State of Nevada, the Southern Nevada Water Authority, and the Colorado River Commission of Nevada. The court also has been aided at various points in the proceedings by other interested parties and amici. After the district court dismissed a number of counts in the original complaint, the Plaintiffs filed an amended eight-count complaint on February 23, 2006, seeking declaratory and injunctive relief. The first four counts were brought by Consejo, on behalf of a class of beneficial users of the Mexicali Aquifer and the All-American Canal on the Mexican side of the border. Count One alleged an “unconstitutional deprivation of property without due process of law in violation of the class’ substantive and procedural rights.” Count Two alleged a constitutional tort pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), based on the “usurpation of water rights owned by the well owners and water users in the Mexicali Valley” by the Secretary and the Commissioner of the Bureau of Reclamation. Count Three alleged that the “application of water rights priorities in the present context is subject to the doctrines of equitable apportionment or equitable use,” and that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley.” Count Four alleged that the “Secretary and Commissioner are estopped from operating the All-American Canal” in any manner that would block the seepage that has recharged the Mexicali Aquifer for the preceding 63 years. All of the Plaintiffs joined in Count Five, which alleged a violation of the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”). In this count, the Plaintiffs argued that the Secretary and Commissioner failed to prepare a SEIS despite the existence of significant new circumstances bearing on the proposed project. The Plaintiffs argue that five new circumstances warrant preparation of a SEIS: (1) the discovery of the Andrade Mesa Wetlands in Mexico and its importance as a habitat for the endangered Yuma Clapper Rail after preparation of the FEIS; (2) the anticipated transborder socio-eco-nomic impacts from the water loss, which has been altered and exacerbated since the FEIS by demographic changes and the passage of NAFTA; (3) new reports suggesting possible unexplored impacts on the Saltón Sea; (4) alterations in the project plan with regard to human safety mechanisms designed to prevent drowning; and (5) changes in the air quality condition of the effected region. The district court later granted Plaintiff in Intervention status to Calexico as to this count. The final three counts were brought by the Environmental Plaintiffs. Count Six alleged violations of the Endangered Species Act. Specifically, the amended complaint alleged that Bureau of Reclamation failed to reinitiate consultations with the FWS as required despite new information about wetlands habitat and the species therein — namely, the Yuma Clapper Rail and the Peirson’s Milk Vetch — which came to light after the FEIS and biological opinions in existence had been issued. Count Seven alleged an unlawful taking of a listed migratory bird in violation of the Migratory Bird Treaty Act. Count Eight alleged violations of environmental requirements that were made a part of the Settlement Act. The amended complaint also alleged that no amount of damages would be sufficient and thus equitable relief was necessary. Subsequent to the filing of the complaint in this case, on November 18, 2005, the Bureau of Reclamation issued a biological analysis for the Lining Project regarding the Potential Species Impact in the Republic of Mexico and transmitted it to the FWS. The FWS informed the Bureau of Reclamation by memorandum dated January 11, 2006, that, in its opinion, consultation with FWS was not required by the ESA when the impacts being considered take place in foreign territory. One day later, on January 12, 2006, the Bureau of Reclamation issued a Supplemental Information Report (“SIR”) which determined that no substantial changes, significant new information, or circumstances existed that would require the Bureau of Reclamation to issue a SEIS. The Plaintiffs moved for summary judgment as to Count Five (NEPA violations) and CURE moved for summary judgment as to Count Six (Endangered Species Act violations). The Defendants opposed those motions and cross-moved for summary judgment on those claims. The Defendants also moved to dismiss counts 1-4 and 6-8 of the amended complaint for lack of standing, and contended in addition that claims five, seven and eight were time barred. On June 23, 2006, the district court granted the motion to dismiss Consejo with respect to Counts 1-4 and 6-8, but denied the motion to dismiss CURE with respect to Counts 6-8. The order also held that Counts Seven and Eight were time-barred and that Count Five was time-barred with respect to any challenge to the 1994 FEIS, but not with respect to any challenge to the Bureau of Reclamation’s failure to produce a SEIS. On July 3, 2006, the district court denied The Plaintiffs’ motion for summary judgment as to Count five and CURE’S motion for summary judgment as to Count Six and granted The Defendants’ cross-motions on both those counts. Judgment was entered on July 3, 2006. The Plaintiffs filed timely appeals from the judgment. The Plaintiffs then filed a motion in the district court for an injunction pending appeal, which was denied. The Plaintiffs filed a motion for an injunction pending appeal with this Court, which was granted by a motions panel of the Court. After we heard oral argument on the merits of the appeal in December 2006, Congress enacted and the President signed into law the Tax Relief and Health Care Act of 2006, Pub. Law No. 109-432, 120 Stat. 2922 (“2006 Act”). Contained within the 274-page omnibus tax bill were sections directly affecting the Lining Project. In pertinent part, the 2006 Act provided that: (a) ... Notwithstanding any other provision of law, upon the date of enactment of this Act, the Secretary shall, without delay, carry out the All American Canal Lining Project identified — (1) as the preferred alternative in the record of decision for that project, dated July 29, 1994; and (2) in the allocation agreement allocating water from the All American Canal Lining Project, entered into as of October 10, 2003. (b) ... (1) ... Subject to Paragraph (2), if a State conducts a review or study of the implications of the All American Canal Lining Project as carried out under subsection (a), upon request from the Governor of the State, the Commissioner of Reclamation shall cooperate with the State, to the extent practicable, in carrying out the review or study. (2) Restriction of Delay. — A review or study conducted by a State under paragraph (1) shall not delay the carrying out by the Secretary of the All American Canal Lining Project. Id. at § 395. Section 397 of the 2006 Act provides that: The Treaty between the United States of America and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, and supplementary protocol signed November 14, 1944, signed at Washington February 3, 1944 (59 Stat. 1219) is the exclusive authority for identifying, considering, analyzing, or addressing impacts occurring outside the boundary of the United States of works constructed, acquired, or used within the territorial limits of the United States. Id. at § 397. Following the effective date of the 2006 Act, the United States filed a motion to remand this case to the district court with instructions that Counts Five through Eight of the amended complaint be dismissed as moot and for an order vacating the injunction pending appeal imposed by the motions panel. The Plaintiffs vigorously opposed the motion, and we heard argument on the motion. II If legislation passing constitutional muster is enacted while a case is pending on appeal that makes it impossible for the court to grant any effectual relief, the appeal must be dismissed as moot. Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir.2006). Here, the government contends that enactment of the 2006 Act renders the statutory environmental claims contained in Counts 5-8 of the amended complaint moot. In those counts, the Environmental Plaintiffs allege that the Lining Project cannot proceed until the government complies with NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act. A In examining the impact of the 2006 Act on this case, we employ our usual methodology in statutory construction. As always, our starting point is the plain language of the statute. Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). “[W]e examine not only the specific provision at issue, but also the structure of the statute as a whole, including its object and policy.” Id. If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to interpretation unless “the legislative history clearly indicates that Congress meant something other than what it said.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc). If the statutory language is ambiguous, we consult legislative history. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999). The government underscores the provisions of the 2006 Act that direct the Bureau of Reclamation to proceed with the Lining Project “without delay” and “notwithstanding any other provision of law.” 2006 Act, § 395(a). The government contends that the import of this language is to exempt the Lining Project from compliance with any other federal law. Assuming it uses constitutional means, Congress may exempt specific projects from the requirements of environmental laws. See Sierra Club v. USFS, 93 F.3d 610, 613-14 (9th Cir.1996); Mt. Graham Coalition v. Thomas, 89 F.3d 554, 556-58 (9th Cir.1996); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1457-61 (9th Cir.1992); Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1432 (9th Cir.1989) (noting that Congress may “moot a pending controversy by enacting new legislation”). Our first task in examining the statute is to determine whether Congress intended that result. The fact that the 2006 Act used the phrase “notwithstanding any other provision of law” is not dispositive. United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir.2007) (en banc). Indeed, “[w]e have repeatedly held that the phrase ‘notwithstanding any other provision of law' is not always construed literally.” Or. Natural Res. Council v. Thomas, 92 F.3d 792, 796 (9th Cir.1996). Rather, when the phrase is used, we have determined its reach by “taking into account the whole of the statutory context in which it appears.” Novak, 476 F.3d at 1046. In viewing the statutory context, we attempt “to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section,” Estate of Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir.1993), mindful that “[t]he cardinal principle of statutory construction is to save and not to destroy,” id. Placing the “notwithstanding” language of the 2006 Act in context, we are guided by the further statutory language that the Lining Project proceed “without delay” “upon the enactment of this Act.” 2006 Act § 395(a). If Congress had intended for the Lining Project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all. The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding “without delay” “upon the enactment of this Act.” The Environmental Plaintiffs allege in their complaint that the Lining Project violates various federal environmental statutes and cannot proceed until the government complies with those strictures. Thus, application of the cited statutes cannot be reconciled with the language of the 2006 Act. Under those circumstances, when Congress has directed immediate implementation “notwithstanding any other provision of law,” we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation. Mt. Graham Red Squirrel, 954 F.2d at 1456. That is not to say the agency may act lawlessly in completing the project. See Or. Natural Res. Council, 92 F.3d at 797 (rejecting the idea that the phrase “notwithstanding any other provision of law” “require[d] the agency to disregard all otherwise applicable laws,” other than the environmental statutes at issue). Rather, we have applied a common sense construction of the phrase to refer to those laws that would delay the commencement of a project in derogation of express Congressional directive to proceed immediately or, in this case, “without delay.” Applying these principles to the case at hand, we must conclude as a matter of statutory construction that the 2006 Act renders the challenges to commencement of the Lining Project based on NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act (contained in Counts Five through Eight of the amended complaint) moot. Each of those claims, if relief were to be granted, would delay commencement of the Lining Project. Congress has instructed otherwise, “notwithstanding any other provision of law.” Therefore, we must construe the 2006 Act as exempting the Lining Project from the identified statutory claims. If valid, the 2006 Act thus exempts the Bureau of Reclamation from the challenges contained in Counts 5-8 of the amended complaint. B Having determined the 2006 Act’s statutory reach, we turn to the Plaintiffs’ other objections to the application of the 2006 Act to the instant case. The Plaintiffs contend that the 2006 Act (1) violates the Tenth Amendment, (2) invades the judiciary’s Article III powers, (3) violates the Equal Protection Clause, and (4) deprives them of protected constitutional interests without due process of law. None of these arguments is persuasive. 1 The Plaintiffs argue that the 2006 Act violates the Tenth Amendment because it requires the Bureau of Reclamation to commandeer California’s resources to carry out the project given that the Settlement Act directs that “[n]o federal funds are authorized to be appropriated to the Secretary for construction of [the canal].” Pub.L. No. 100-675, § 203(e)(1), 102 Stat. 4000 (Nov. 17,1988). As with all claims, we must satisfy ourselves that we have jurisdiction. We must determine independently that the Article III requirement of a live case or controversy has been met, even if the issue has not been raised by the parties. See American Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006). If a “live” controversy does not exist, the case is moot. Id. (citing City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)). Here, the Plaintiffs argue that if the 2006 Act goes into effect, it will require the commandeering of California’s financial resources. However, California has already agreed to appropriate its financial resources to the Lining Project. See The Allocation Agreement. Therefore, the controversy the Plaintiffs seek to litigate by this challenge — whether the United States may appropriate California’s resources — no longer exists. Accordingly, we hold that this claim is moot and we therefore lack jurisdiction to reach its merits. 2 The Plaintiffs also contend that the 2006 Act violates the principle of separation of powers by dictating a specific result in a pending judicial case. Congress may change the substantive law governing a pending case so long as it does not “direct any particular findings of fact or application of law, old or new, to fact.” Robertson, 503 U.S. at 438, 112 S.Ct. 1407. However, “[t]he constitutional principle of separation of powers is violated where (1) Congress has impermissibly directed certain findings in pending litigation, without changing any underlying law, or (2) a challenged statute is independently unconstitutional on other grounds.” Ecology Ctr. v. Castaneda, 426 F.3d 1144, 1148 (9th Cir.2005) (internal quotation marks and citations omitted). This type of controversy and claim is not new. We have considered similar challenges in the context of planned government action, and concluded that similar legislation did not violate the principle of separation of powers. Ecology Ctr., 426 F.3d at 1148-49; Mt. Graham Red Squirrel, 954 F.2d at 1457-58; Stop H-3 Ass’n, 870 F.2d at 1431. As in the legislation underpinning our prior decisions, the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers. 3 The Plaintiffs next claim that the 2006 Act violates the Equal Protection Clause by selectively denying Latinos their fundamental life and property interests in a healthy environment because the effected Imperial Valley region has a large Latino population. They argue that strict scrutiny applies to the legislation since it discriminates against Latinos as a suspect class and that the Act cannot survive strict scrutiny review. We need not reach the merits of this claim because, on the record before us, Desert Citizen does not have standing to bring it. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw Envt’l Serv. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Here, Desert Citizen fails the first of these three elements. It has not demonstrated that any of its members would have standing to bring this claim in their own right. Desert Citizen’s argument, that it is being discriminated against on the basis of a suspect class' — namely, Latinos — requires that its members are also members of that class. Nothing in the record indicates that they are. We further note that nothing in the record indicates that representing the interests of Latinos is germane to Desert Citizen’s organizational purpose. Accordingly, Desert Citizens does not have organizational standing to bring this claim. 4 Desert Citizen also challenges the 2006 Act as violating its procedural due process rights by depriving its members of life and property interests in a healthy environment without due process of law. This challenge is based on the asserted failure of Congress to comply with its own procedural rules in adopting §§ 395 and 397 of the 2006 Act. We need not decide here whether the right to a healthy environment is of constitutional magnitude. Cf. Stop H-3, 870 F.2d at 1430 & n. 21. Even assuming, arguendo, that it is, the procedural decision of Congress, discharging its function as a lawmaking body, not to hold a hearing on general legislation is a question not subject to judicial review. “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). “A controversy is nonjusticiable — i.e., involves a political question-where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663(1962)). However, “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Here, Article I of the Constitution provides that “[ejach House may determine the Rules of its Proceedings.” U.S. Const., art. I, § 5. In short, the Constitution textually commits the question of legislative procedural rules to Congress. Thus, whether Congress decides to hold a hearing on legislation applicable to the general public is a non-justiciable political question beyond our power to review. 5 Given that the 2006 Act passes constitutional muster on the claims raised by the Plaintiffs, we must give it full effect as we have construed it. Therefore, we conclude that, in light of the 2006 Act, we cannot fashion effective relief and the challenges raised in Counts 5-8 based on alleged past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act are moot. Ill The remaining claims asserted by Con-sejo in Counts 1-4 based on various property rights and common law theories are not affected by the 2006 Act. However, for various reasons, the district court lacked subject matter jurisdiction over those claims. A The district court lacked subject matter jurisdiction over Consejo’s first claim, that its members were deprived of property without due process of law. Assuming, without deciding, that Consejo’s members had a cognizable property interest, its remedy for an alleged takings claim is under the Tucker Act, 28 U.S.C. § 1491. A takings claim is premature until the plaintiffs have exhausted their rights under the Tucker Act. Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This restriction is jurisdictional. “The simple fact is that we have no jurisdiction to address the merits of takings claims where Congress has provided a means for paying compensation for any taking that might have occurred.” Bay View, Inc. on behalf of AK Native Village Corps. v. Ahtna, Inc. 105 F.3d 1281, 1285 (9th Cir.1997). Consejo appears to be claiming that the Lining Project may be enjoined because it infringes on its members’ property rights. However, as we noted in Bay View, “the government is not prohibited from taking private property; indeed the eminent domain clause contemplates that the government will take private property as needed for public purposes, so long as it pays compensation.” Id. at 1284. In short, jurisdiction over Consejo’s takings claim lies in the Court of Federal Claims, not the District of Nevada. B The district court also lacked subject matter jurisdiction over Consejo’s Bivens claims. In Count Two of the amended complaint, Consejo seeks to enjoin various individual government officials, based on Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities. In a paradigmatic Bivens action, a plaintiff seeks to impose personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir.2003). “[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 (9th Cir.2000). Therefore, the Supreme Court has refused to extend Bivens remedies from individuals to agencies. FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Here, Consejo has sued various Federal officials in their official capacities. It seeks to enjoin official action. Consejo does not claim damages based on the past unconstitutional acts of Federal officials in their individual capacities. Therefore, the district court lacked subject matter jurisdiction over the claim because the United States has not consented to its officials being sued in their official capacities. C Consejo’s third and fourth claims (apportionment and estoppel) seek equitable remedies based on common law property rights. However, because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims. The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A waiver of sovereign immunity by the United States must be expressed unequivocally. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). As a general matter, purported statutory waivers of sovereign immunity are not to be liberally construed. Id. at 34, 112 S.Ct. 1011. The only waiver of the sovereign immunity of the United States cited by Consejo is the Administrative Procedure Act. Section 702 of the APA states that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.... The United States may be named as a defendant in any such action ... Provided, That any mandatory or injunc-tive decree shall specify the Federal officer or officers ... personally responsible for compliance. 5 U.S.C. § 702 (emphasis added). However, as we have noted, “[d]espite the breadth of this language, the statute does not confer jurisdiction independent of some other specific statute.” Office of Governor, Territory of Guam v. Dep’t of Health and Human Servs., Admin. on Dev. Disability, 997 F.2d 1290, 1292 (9th Cir.1993). In Califano v. Sanders, 430 U.S. 99, 107 n. 6, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court noted that the § 702 language must be read in conjunction with § 703, which suggested that the APA remedies under § 702 “look[ed] to outside sources of jurisdictional authority.” By itself, § 702 does not impose any substantive duties on agencies or government officials. It is a procedural statute that requires another relevant statute to form the legal basis for the complaint that the government has acted unlawfully. See Wright, Miller & Cooper, 14A Federal Practice and Procedure § 3659 (3d ed.2006). Here, Consejo’s counts three and four rely not on relevant statutes that the Bureau of Reclamation is alleged to have violated, but rather on Consejo’s members’ common law water rights. In count three, Consejo alleges that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley,” but it does not state from where that duty derives. In count four, Consejo only alleges that “[t]he Secretary and Commissioner are es-topped from operating the All-American Canal Project differently” than before. Absent any relevant statute on which to judge the legality of the agency’s actions, § 702 is inapplicable and cannot be invoked as a waiver of sovereign immunity. Therefore, Consejo’s equitable claims of apportionment and estoppel are barred by sovereign immunity. Because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims. IV In sum, the 2006 Act renders the claims based on past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act moot. The district court lacked jurisdiction over Consejo’s takings claim, which must be asserted before the Court of Federal Claims. Consejo’s remaining claims are barred by sovereign immunity. We remand this case to the district court with instructions to dismiss Counts 5-8 as moot and to dismiss Counts 1-4 for lack of subject matter jurisdiction. We vacate the injunction pending appeal previously entered by the motions panel. Given our decision, we need not and do not reach any other questions raised by the parties or relied upon by the district court. All pending motions are denied as moot. VACATED and REMANDED with instructions. . Chinatown (Paramount 1974). . The Plaintiffs make two additional claims that we do not address. First, the Plaintiffs contend that if the currently-planned project proceeds it will violate the 2006 Act itself, because the Act calls for implementation of the preferred alternative as determined by the 1994 ROD, but the plan has changed since then — namely, the 1994 plan called for human safety ridges on the canal to prevent drowning while the 2006 plan calls for ladders. Because the complaint never alleged violations of the 2006 Act — indeed, it could not have — that claim is not properly before us. Likewise, Desert Citizen claims that the 2006 Act still requires compliance with the air quality commitments made in the 1994 FEIS and ROD. We agree and the government does not dispute this point. Desert Citizen has not alleged that Reclamation is not in compliance with those commitments. To the extent Desert Citizen’s claim is that the project is or will be in violation of the 2006 Act if it does not so comply, that claim is similarly not before us. . Although the Bureau of Reclamation, being a Federal agency, is not subject to the strictures of the Equal Protection Clause, "In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court indicated that the Fifth Amendment’s Due Process Clause, subjects the federal government to constitutional limitations that are the equivalent of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause commands that no state shall deny any person the equal protection of the laws. U.S. CONST. amend. XIV, § 1.” Stop H-3 Assn, 870 F.2d at 1429 n. 18. We therefore read Desert Citizen’s challenge as a Fifth Amendment claim. . This contention is based on the claim that minority communities are often exposed to greater environmental hazards than non-minority communities. See Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158 F.3d 92, 130 (2d Cir.1998) (citing Michele L. Knorr, Environmental Injustice, 6 U. Balt. J. Envtl. L. 71, 77-84 (1997) (summarizing evidence of discrimination against minority and low-income communities with respect to pollution and hazardous waste disposal); Edward P. Boyle, Note, It’s Not Easy Bein’ Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L.Rev. 937, 968 (1993) ("A substantial amount of evidence shows that environmental discrimination is a national phenomenon.”); Rachel D. Godsil, Note, Remedying Environmental Racism, 90 Mich. L.Rev. 394, 397 (1991) ("A host of studies have concluded that minorities are exposed to a higher level of pollution of all forms than are whites.”); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, Nat'l. L.L, Sept. 21, 1992, at S2 (concluding from results of study that "federal government, in its cleanup of hazardous sites and its pursuit of polluters, favors white communities over minority communities under environmental laws meant to provide equal protection for all citizens”)). . We consider this claim brought exclusively by Plaintiff Desert Citizens as Plaintiff Conse-jo has failed to sufficiently argue this claim in its brief. . Because it is an interlocutory order pending appeal, see Fed. R.App. P. 8(a), our order vacating the injunction pending appeal shall become effective immediately upon the filing of this opinion, regardless of when the mandate issues.

Safeco Insurance Co. of America v. City of White House

OPINION BOGGS, Circuit Judge. Safeco Insurance Company of America and Eatherly Construction Company appeal from two final orders of the district court. Appellants believe that the district court made several errors in the case, which involves an alleged breach of contract by Eatherly. Also, the contract incorporated EPA regulations that Appellants believe violated the Constitution by imposing improper race-based preferences. A jury found that Appellants did not prove that Eatherly did not breach the contract; the district court ruled that the regulations, as it found them to exist, did not violate the Constitution. The City of White House cross-appeals from the district court’s order awarding White House damages for the breach but denying it prejudgment interest. We vacate the judgments below and remand for further proceedings. I. Background to the Appeal A. Bid and Execution of Contract In January 1987, the City of White House, Tennessee (‘White House”) advertised for bids on Contract III, Job No. 78-16 (“the Project”), for the construction of a sanitary sewer system for White House. On March 12, 1987, White House opened the bids. Eatherly Construction Company, a Tennessee partnership, submitted the low bid, priced at $2,643,749.10. Moore Construction Company submitted the second-lowest bid, at $2,998,029.56, see Safeco Ins. Co. v. City of White House, Tennessee, 36 F.3d 540, 543 (6th Cir.1994) (“Safeco I”)—$345,280.46 higher than Eatherly’s bid. White House chose Ea-therly, the low bidder. On March 12, 1987, Safeco Insurance Company of America, a Washington corporation, executed a “Bid Bond.” In return for a payment of five percent of the amount bid by Ea-therly, Safeco pledged to act as surety for any agreement between Eatherly and White House. The EPA had already offered a grant to White House to help pay for the Project. To receive the grant, White House had to ensure compliance with several EPA requirements. Thus, White House selected the low bidder “subject to concurrence by the U.S. Environmental Protection Agency.” Further, the contract documents incorporated EPA’s standard and supplemental requirements (titled “Contractors on Federally Assisted Wastewater Facilities Construction Requirements”). One EPA mandate provided that, “A contractor must comply with the following provisions in its award of subagreements .... (d) The requirement for small, minority, women’s and labor surplus area business in [40 C.F.R.] § 33.240.” Another contract document stated that: It is the policy of the Environmental Protection Agency (EPA) to require its grantees to award a fair share of suba-greements to small and minority and women’s businesses on contracts ans [sic] subagreements performed under EPA construction grants. This requirement is contained in 40 Code of Federal Regulations Part 33 Section 240. The contract also provided that, if Ea-therly chose to subcontract part of the project, it must submit to the EPA — and to White House, within 10 days after the bid opening — “evidence of the positive steps taken to utilize small, minority, and women’s businesses.” On April 9, 1987, Eatherly executed the contract and returned it to White House, which executed the contract on April 16, 1987. On that day, Safeco agreed to act as surety on a “Payment Bond” (guaranteeing that Eatherly would pay its subcontractors and pay for materials and labor) and a “Performance Bond” (guaranteeing White House that Eatherly would perform). The contract provided that, within 90 days of execution, White House would issue a Notice to Proceed. Thus, White House had until July 15, 1987, to issue the Notice. To verify compliance with the contract terms (including the EPA requirement), the contract required Eatherly to document its compliance, and it permitted White House to reject the bid if Ea-therly did not comply. On June 17, 1987, Eatherly informed White House that Ea-therly was withdrawing its bid pursuant to its belief that the contract allowed withdrawal after 90 days from the date of bid opening. See Safeco I, 36 F.3d at 543. On July 16, 1987, White House awarded the contract to Moore Construction Company, the second lowest bidder, for its original bid plus $20,000 for an increase in the price of materials. See ibid. On July 23, 1987, White House wrote to Safeco to demand payment under the Bid Bond. White House contended that Eatherly failed to comply with the EPA requirements; Eatherly contended that it complied with all requirements and that it did not breach the contract by withdrawing the bid. Faced with these conflicting arguments, Safeco sought a declaratory judgment resolving its liability to White House. B. Initial Proceedings in District Court In November 1987, Safeco filed a complaint in federal court seeking a declaratory judgment regarding the extent of its liability under the Bid Bond. On information and belief, Safeco related Eatherly’s contentions that Eatherly complied with the contract requirements; that White House neither unconditionally accepted the bid nor unconditionally awarded the contract; and that the contract permitted Ea-therly to withdraw the bid. Because Safe-co (a Washington corporation) named White House (Tennessee) and Eatherly (Tennessee) as defendants, it asserted federal jurisdiction based on diversity. In its answer, White House asserted counterclaims and cross-claims against Safeco and Eatherly for damages under the Bid Bond and Performance Bond, and White House cross-claimed against Eatherly for breach of contract. Continuances, motions, a magistrate judge’s report, and orders followed. The district court adopted the magistrate judge’s report that held that Eatherly and White House had a contract, but that material issues of fact remained regarding whether Eatherly breached it by failing to make a good-faith effort to comply with the EPA regulations. In 1990, Chief District Judge Nixon, as he was then, realigned the parties to align Eatherly with Safeco. To preserve diversity, Judge Nixon dismissed without prejudice Eatherly, which he found dispensable. Eatherly reacted by filing an action in state court against Safeco and White House. See Safeco I, 36 F.3d at 544. Safeco asked District Judge Nixon to stay the federal case, but he denied the motion. White House filed a motion for summary judgment claiming that Eatherly committed anticipatory breach by withdrawing its bid after the contract arose. District Judge Nixon granted the motion. He awarded damages of $352,847.08, pre-judgment' interest of $207,358.03, and attorney’s fees and costs. C. Safeco I and its Aftermath Safeco appealed to this court. On October 3, 1994, this court issued its decision in Safeco Insurance Company v. City of White House, Tennessee, 36 F.3d 540 (6th Cir.1994) (“Safeco 7”). We held that the district court had subject matter jurisdiction because it did not err by dismissing Eatherly. See id. at 544-46. Next, we held that a contract bound Eatherly and White House. See id. at 546-47. We reversed the district court’s finding that Eatherly breached the contract. We explained that EPA approval served both as “a promise and condition for Eatherly.” Id. at 548. “Eatherly was under a duty to seek EPA approval, and yet EPA approval was itself a condition of Eatherly’s duty to perform.” Ibid. The opinion concluded by explaining the district court’s error: The issue of breach, then, centers on whether Eatherly exercised good faith in its attempts to comply with the EPA’s requirements. If Eatherly made a good faith effort to comply with the EPA’s regulations, and the EPA nonetheless withheld approval, Eatherly would have satisfied its obligations under the contract, and Eatherly would have no duty to perform further. Exactly what constitutes a good faith effort is a difficult question that involves a factual determination.... The analysis is complicated by the question of whether Eatherly withdrew its bid too early and whether Eatherly should have made further attempts to obtain EPA approval.... Thus, on the issue of breach, there is clearly a genuine issue of material fact concerning Eatherly’s good faith. Ibid. Upon remand, the parties began preparing for trial. On June 12, 1995, the Supreme Court issued its opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), which applied strict scrutiny to federal racial classifications governing construction projects. On June 30, Safeco moved for summary judgment, arguing that the EPA regulations violated the Constitution in light of Adarand and thus that the “contractual obligation is unenforceable.” On August 8, the district court granted White House’s motion for a pre-trial ruling on damages. The court held that “the principal measure of damages in this case is, as this Court previously held [before Safeco I], the difference between the Ea-therly Construction Company bid and the second low bidder’s contract price.” In September, the district court permitted the EPA, through DOJ, to intervene on the side of White House. In October, the court permitted Eatherly to intervene on the side of Safeco. Eatherly sought relief, claiming that, on their face and as applied, the regulations violated the “Equal Protection component of the Due Process Clause,” and that the court should find the regulations void for vagueness. Cf. Adarand, 515 U.S. at 217-18, 115 S.Ct. 2097 (equating the equal protection obligations imposed by the Fifth Amendment with those of the Fourteenth Amendment). On March 20, 1996, the district court disposed of several motions. The court denied Safeco and Eatherly’s motions for summary judgment. It granted EPA and White House’s motions for partial summary judgment regarding the regulations’ facial validity and lack of vagueness. The court explained that the regulations “do not trigger strict scrutiny analysis because they merely seek to ensure that minority firms are fairly notified of and considered for subcontracting opportunities. The regulations establish no set-asides, numerical goals, penalties, or financial incentives.” The court denied summary judgment for EPA and White House regarding the constitutionality of the regulations, as applied. On December 16, 1996, the court delivered another ruling. Cognizant of the impending jury trial, the court ruled as follows: (1) The court, not the jury, would decide as a matter of law whether Eatherly suffered the unconstitutional application of the EPA regulations. (2) Safeco had the burden of proof regarding excuses for Eatherly’s non-performance on the contract claim. (3) The jury would decide two issues: (a) “Whether Eatherly ... breached the Contract by failing to satisfy its good faith obligation under the Contract to obtain EPA approval by complying with the EPA regulation incorporated in the Contract.” (b) “WThether it would have been futile for Eatherly Construction to have attempted to obtain EPA approval during the 28 day period following its purported ‘withdrawal of its bid’ (until July 15,1987).” (4) The court would not reconsider its order adopting the measure of damages. (5)The parties must accept the holding of Safeco I that a contract existed. Safeco and Eatherly objected to the jury instructions and interrogatories; the court overruled the objection. District Judge Nixon presided over a jury trial that lasted from April 15 to April 18, 1997. The jury found that Safeco did not prove that Ea-therly acted in good faith, or that it would have been futile for Eatherly to attempt to obtain approval during the remaining 28 days. In August 1997, the court issued a memorandum and order. In the order, it adopted the jury findings. The court ruled, as a matter of law, that “the EPA did not require or induce Eatherly to award contracts on the basis of race.” The district court held that, even if the regional EPA Project Officer had a personal belief about the policy, she did not enforce that belief on Eatherly. It found that, as applied, the regulation did not violate the Constitution. In separate memoranda and orders, the district court awarded White House the previously-assessed damages ($352,847.08), but denied its request for pre-judgment interest. The court ruled that, although Tennessee law provided that White House may receive interest as a matter of right, equity dictated that Safeco should not have to pay interest, because it did not alone cause the ten-year delay that resulted in the large interest balance. The judge permitted White House to file an application for costs and attorney’s fees. Safeco and Eatherly appealed from the final judgments. White House cross-appealed from the order denying an award of pre-judgment interest. II. Burden of Proof Regarding Eatherly’s Alleged Breach of Contract Although the issues in this appeal range from the constitutionality of a purported race-based preference to the availability in Tennessee of pre-judgment interest, those issues are subordinate to the question of whether Eatherly breached its contract with White House. In 1987, Safeco precipitated twelve years of litigation by requesting a declaratory judgment regarding its liabilities under bonds relating to the Project. White House responded by seeking damages under the bonds and claiming that Eatherly breached the contract. In Safeco I, we decided that a contract existed and that the finder of fact should decide on remand whether Eatherly breached the contract by failing to take good-faith efforts to comply with contractual provisions regarding EPA approval. See Safeco I, 36 F.3d at 548. Appellants’ constitutional challenges serve merely as an affirmative defense to the asserted breach, and the matters involving damages, costs and attorney’s fees, and pre-judgment interest also have relevance only if Eatherly breached the contract. Therefore, we first review the proceedings that resulted in a judgment that Eatherly breached the contract. Safeco contends that the district court propounded jury interrogatories that unfairly imposed the burden of proof on Safeco and Eatherly rather than on White House. Safeco also believes that the district court erred by refusing to instruct the jury on Safeco’s proposed defense that Eatherly had a good-faith belief that it could withdraw its bid. Tennessee law governs the burden of proof in diversity actions. See, e.g., In re Bendectin Litigation, 857 F.2d 290, 312 (6th Cir.1988), cert. denied sub nom. Hoffman v. Merrell Dow Pharm., Inc., 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989). This court reviews de novo a district court’s jury instructions. See, e.g., Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir.1998). This court reviews for abuse of discretion a district court’s use of jury interrogatories. See United States v. H.M. Branson Distrib. Co., 398 F.2d 929, 936 (6th Cir.1968); cf. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.1998) (reviewing for abuse of discretion a court’s formulation of jury interrogatories); First Nat'l Bank v. Lustig, 96 F.3d 1554, 1576 (5th Cir.1996) (same). A. The Jury Interrogatories The district court submitted two questions to the jury: 1. Do you find that Safeco Insurance Company has proved that Eatherly Construction Company complied with its obligation under the contract to obtain EPA approval by complying with the regulation incorporated in the contract which required Eatherly Construction Company to make a good faith effort to solicit MBE, SBE, and WBE [Minority, Small, and Women’s Business Enterprise] participation and to document its efforts to do so? Then your answer, yes or no. 2. Do you find that Safeco Insurance Company has proved that it would have been futile or impossible for Eatherly Construction acting with reasonable diligence to have obtained EPA approval during the remaining 28-day period following its announcement that it was withdrawing its bid? Answer, yes or no. Safeco objected to the interrogatories and requested a general verdict; the judge overruled the objection. Safeco believes that White House should have borne the burden of proving that Eatherly failed to comply with the contractual obligation. Safeco also contends that the second interrogatory imposed an unprecedented burden. In 1987, Safeco initiated the proceedings by filing for a declaratory judgment. In its complaint, Safeco did not ask for a declaration of its lack of liability— rather, it asked for a determination of its liability under the Performance Bond. White House counter-claimed against Safe-co and Eatherly, asserting their liability under the Performance and Bid Bonds, and it cross-claimed against Eatherly for breach of contract. Although Safeco brought its complaint under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, Tennessee law governs the burden of proof for the non-federal matters. Cf. American Eagle Ins. Co. v. Thompson, 85 F.3d 327, 331 n. 3 (8th Cir.1996) (drawing this proposition from a Third Circuit case). Under Tennessee law, the burden of proof in a declaratory judgment action mirrors that of “ordinary actions at law or suits in equity.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 417 (Tenn.1997) (quoting 2 WalteR H. Anderson, Actions for Declaratory Judgments § 375 (2d ed.1951)). The interrogatories forced Safe-co to prove that Eatherly did not breach the contract. As this court commanded in Safeco I, the remand involved the question of whether Eatherly breached by failing to perform: “Eatherly was under a duty to seek EPA approval, and yet EPA approval was itself a condition to Eatherly’s duty to perform.” Safeco I, 36 F.3d at 548. We observed that Tennessee contract law requires parties to make good-faith efforts to fulfill their contractual obligations, whatever the nature of the obligations. Thus, we explained, “[t]he issue of breach, then, centers on whether Eatherly exercised good faith in its attempts to comply with the EPA’s requirements.... [O]n the issue of breach, there is clearly a genuine issue of material fact concerning Eatherly’s good faith.” Ibid. Under Tennessee law, a party seeking to recover on a contract has the burden of showing that the other party breached the contract. See Life Care Ctrs. of America, Inc. v. Charles Town Assocs. Ltd. Partnership, 79 F.3d 496, 513-14 (6th Cir.1996); cf. Stash, Inc. v. Palmgard Int’l, Inc., 937 F.Supp. 531, 534 n. 8 (D.Md.1996) (discussing declaratory judgment actions) (“It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action.”) (quotation omitted). White House correctly observes that Tennessee law requires parties to prove affirmative defenses, and White House claims that the interrogatories address Safeco’s affirmative defenses of impossibility of performance and nonperformance of a condition precedent. White House fails to realize that if the answers to the interrogatories resolved nothing but those two purported affirmative defenses, the jury never decided whether Eatherly breached the contract, which was the sole issue impelling the remand. Also, White House cites inapposite cases. In Tennessee contract actions, if a plaintiff claims that a defendant breached a contract, the defendant may assert the affirmative defense that the plaintiff failed to comply with a condition precedent to the defendant’s duty to perform; if the defendant asserts this defense, he bears the burden of proof. Here, however, Eatherly had an unconditional duty to seek EPA approval. Ea-therly’s compliance served as a condition precedent for White House, and if EPA denied approval in the face of a good-faith effort by Eatherly, then EPA’s denial excused Eatherly’s duty to perform. Cf. Safeco I, 36 F.3d at 548 (interpreting the contract). In the proceedings below, White House asserted that Eatherly did not adequately seek EPA approval — by this assertion, White House thus claimed that Eatherly breached. Had the jury ruled that Eatherly made a good-faith effort to perform its contractual duty, Eatherly could then assert an affirmative defense — i.e., that EPA’s intransigence excused Eatherly’s nonperformance. Thus, the district court erred by placing the burden of proof on Safeco, and both interrogatories suffer from this flaw. Safeco further objects to the second interrogatory because it required Safeco to prove the futility of Eatherly’s obtaining EPA approval during the 28 days between Eatherly’s withdrawal and the deadline for White House to issue the Notice to Proceed. The second interrogatory serves only to elicit circumstantial evidence of Eatherly’s good faith (e.g., if Eatherly could have obtained approval during the 28 days, perhaps it had not tried very hard before it withdrew its bid). We recognize that Safeco I mentioned that, “Of course, good faith does not require the doing of a futile act; but the issue of whether further efforts at compliance were futile needs to be decided by a trier of fact.” Safeco I, 36 F.3d at 548. The first interrogatory subsumes the second, however, as the first asks whether Eatherly acted in good faith. The court erred by propounding the second interrogatory, as it imposed the burden of proof on the wrong party. At best the second interrogatory was superfluous; at worst it misled the jury regarding the standard of “good faith.” On remand, White House might point to the 28-day period of inaction as evidence of a lack of good faith, see Part II.B infra, but, as a matter of law and logic, Safeco and Ea-therly cannot prove that it would have been “impossible” for them to obtain approval during that time—one cannot prove with certainty that the EPA would not have approved the project during those days. B. Safeco’s Proposed Jury Instruction The district court rejected Safeco’s proposed amendment to the jury instructions. Apparently, Safeco sought to preface the second interrogatory with an instruction or interrogatory (the record is unclear) that, “If you find that Eatherly Construction Company did not in good faith believe that they could withdraw, then they would have to prove it was possible to go forward.” Safeco intended this as a good-faith affirmative defense unrelated to the contractual obligation to make a “good-faith” effort to comply with the EPA regulations. Safeco wanted an instruction that, if the jury found that Eatherly believed, in good faith, that it had the right to withdraw its bid 90 days after the bid opening, the jury should ignore the 28 days between the bid withdrawal and the deadline for White House to issue a Notice to Proceed. If the jury so found, it would ignore the second interrogatory about “futility.” The court did not add the instruction. If Eatherly had a reasonable, good-faith belief that the contract permitted it to withdraw its bid after 90 days, the court should have instructed the jury as a matter of law to disregard Eatherly’s actions after it withdrew the bid. “A good faith disagreement over the meaning of an ambiguous contractual provision does not constitute a breach of contract.” Boiler Supply Co., Inc. v. Lunn Real Estate Investments, Inc., No. 01A01-9605-CH-00246, 1998 WL 684599, at *4 (Tenn.Ct. App. July 1, 1998) (unpublished). If Eatherly had a reasonable belief that it could withdraw and terminate the contract, it did not have a duty to continue to attempt to comply with another contractual provision (i.e., the EPA regulations). Ea-therly’s belief about withdrawal does not excuse Eatherly’s duty before withdrawal to obtain EPA approval, however, so Ea-therly’s belief about withdrawal affects only the second interrogatory, and not the first. This issue did not receive adequate attention below. First, Safeco appears to have objected on the wrong grounds. At a bench conference, Safeco’s attorney admitted that, “I know it’s [the proposed instruction] not a defense, but it’s part of the story.”' Second, the court did not explain its decision. Third, the parties did not refer to evidence about Eatherly’s belief and the contract’s language although, admittedly, the setting did not appear to lend itself to such a presentation. Finally, Safeco should have asked the court to rule, as a matter of law, that a good-faith disagreement existed regarding the contract. Because our decision vacates the prior judgment, Appellants will have the chance to correct this error and properly request the instruction. Appellants will bear the burden of proving Eatherly’s reasonable, good-faith belief that the contract permitted Eatherly to withdraw its bid after 90 days. The court should instruct the jury that, if Appellants convince the jury that Eatherly had a good-faith belief that it could withdraw its bid after 90 days, the jury should disregard the 28-day period between the withdrawal of the bid and the deadline for White House to issue the Notice to Proceed. If some contractual provisions created in Eatherly a good-faith belief that Eatherly could withdraw its bid (without breaching the contract) after a certain date then, after that date, Eatherly did not have a duty to make a good-faith effort to comply with other, unrelated provisions. III. Matters Involving the EPA and its Minority Subcontractor Hiring Requirements The previous section explored some issues implicated by White House’s claim that Eatherly breached the contract. If Eatherly did not make a good-faith effort to comply with the terms of the contract (ie., to obtain EPA approval), it breached the contract. The EPA’s involvement, however, introduces additional complexity. As discussed at pages 684-87 infra, the nature of the contract’s incorporated EPA requirements remains unclear; after more than a decade of litigation, the parties cannot agree what actions the EPA required of Eatherly. Also, the parties dispute whether the judge or jury should have decided what standard the EPA used to assess Eatherly’s compliance. Further, the Supreme Court’s decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), raises the possibility that the EPA requirements facially, or as applied to Ea-therly by an EPA Project Officer, imposed an impermissible racial classification. Safeco has raised this as an affirmative defense to the claim of breach, arguing that, even if the finder of fact decided that Eatherly did not make a good-faith effort to comply with the EPA requirements, the court should hold the requirements unconstitutional and decline to enforce them. Cf. Shelley v. Kraemer, 334 U.S. 1, 19-20, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Because the EPA regulations, as applied to Eatherly, bear little resemblance to their text in the Federal Register, we begin by reciting the facts, to show the complexity faced by the district court throughout the course of this litigation. A. Eatherly’s Attempts to Comply with the EPA Requirements As discussed at pages 677-78 supra, the contract between Eatherly and White House incorporated an EPA regulation. Between March 12 and June 17, 1987, Eatherly took some steps to comply with the EPA requirements regarding subcontracting with small, minority, and women’s businesses (hereinafter called “MBE” to accord with the parties’ practice, as they dispute only Eatherly’s compliance with the minority business provisions). 1) Background of the EPA MBE Regulation In 1983, EPA promulgated its final rules for “Procurement Under Assistance Agreements,” which were published in 40 C.F.R. Part 33. See Procurement Under Assistance Agreements, 48 Fed.Reg. 12,-922 (1983). Subpart B governed “Procurement Requirements.” Section 33.240 provided as follows: 33.240 Small, minority, women’s, and labor surplus area businesses. (a) It is EPA policy to award a fair share of subagreements to small, minority, and women’s businesses. The recipient must take affirmative steps to assure that small, minority, and women’s businesses are used when possible as sources of supplies, construction and services. Affirmative steps shall include the following: (a)(1) Including qualified small, minority, and women’s businesses on solicitation lists; (a)(2) Assuring that small, minority, and women’s businesses are solicited whenever they are potential sources; (a)(3) Dividing total requirements, when economically feasible, into small tasks or quantities to permit maximum participation of small, minority, and women’s businesses; (a)(4) Establishing delivery schedules, where the requirements of the work permit, which will encourage participation by small, minority, and women’s businesses; (a)(5) Using the services and assistance of the Small Business Administration and the Office of Minority Business Enterprise of the U.S. Department of Commerce, as appropriate; and (a)(6) If the contractor awards suba-greements, requiring the contractor to take the affirmative steps in paragraphs (a)(1) through (a)(5) of this section. (b) [Reserved]. (c) EPA encourages recipients to procure supplies and services from labor surplus area firms. 48 Fed.Reg. at 12,929. The Eatherly-White House contract contained a slightly-modified version of these regulations. Until 1983, EPA regions established “goals for MBE or WBE participation.” 48 Fed.Reg. at 12,923. EPA stated that it used the goals “as a tool to determine whether the affirmative steps [of 40 C.F.R. § 33.240] were adequately carried out....” Ibid. The 1983 ruling altered procedures to permit EPA recipients (here, White House), to “use their own goals, State goals, or other standards.” Ibid In 1986, EPA issued a “Guidance” for its “fair share policy” in wastewater treatment construction grants. The Guidance anticipated that each State would establish a “fair share objective” and allocate the goal to particular construction projects. If a State had not established a goal for a specific grant project, the EPA recipient 0e.g., White House), “should establish an objective which it considers reasonable and achievable based on a number of factors such as the availability of minority and women-owned businesses in the geographic area where the project is being built.” Nothing in the Joint Appendix shows that Tennessee or Wfiiite House ever established fair share objectives for the state or for specific projects; in fact, the evidence suggests that Wfiiite House took no steps to evaluate a fair share objective. Nancy Barron, who served from 1986-1988 as EPA MBE Project Officer for the State of Tennessee, declared that, “There was no fair share goal negotiated on this project [the Project], and no numerical goal that either Wfiiite House or the prime contractor was expected to meet.” 2) The MBE Regulation as Applied to Eatherly Barron, the MBE Project Officer, declared that, when no fair share objective numerical goal existed, she made a subjective evaluation of a contractor’s efforts to comply with EPA policy. “In situations like this, I evaluated a prime contractor’s effort at compliance with the EPA’s policies and regulations by whether it made a good-faith effort to solicit WBE/MBE participation, not on whether any particular level of WBE/MBE participation was achieved.” In contrast, Appellants contend that Barron conditioned project approval on the hiring of at least one MBE. Robert Eatherly owns and manages Ea-therly Construction Company. James Stacey, an Eatherly employee, had the responsibility of guaranteeing compliance with the MBE regulations. No local MBE candidates had the qualifications necessary to perform the subcontracting work on a pumping station; Eatherly chose Collier Construction, a non-MBE firm. Eatherly also chose to subcontract out work on pavement replacement, road boring, and gravity sewer lines. From Ed Walker, White House’s engineer, Stacey obtained a list of MBEs that might perform the paving and secondary service line work. Apparently, the Tennessee Department of Economic and Community Development had compiled the list (the “master list”). From the master list, Stacey selected all MBEs located within driving distance of the Project and with the qualifications necessary to perform the subcontracted work. Those limits reduced the names to ten firms. Via certified mail, on March 30, 1987, Stacey invited the ten firms to bid on the subcontracting work. On April 1, Stacey had a telephone conversation with Barron. Barron informed Stacey that Ea-therly had failed to comply with the EPA regulations within the ten-day period required by the contract. Because Barron found Stacey cooperative, Barron did not inform White House of this error. Stacey told Barron about the mailing, and Barron asked for a written list of the ten firms. Barron also suggested that, to obtain more names, Stacey contact Cecil Conley of the Tennessee Office of Minority Business Enterprise. On April 6, Stacey mailed Barron a handwritten copy of the ten names. Although the original list contained ZIP codes, as did the certified mail receipts, Stacey did not copy the ZIP codes onto the handwritten list. In his letter, Stacey told Barron that he would inform her of the responses from the MBEs. Stacey received no responses to his mailings. Further, the post office returned three letters to Eatherly. Stacey telephoned one MBE from the list, Robert Crutchfield, who turned down the job because he had too much other work. Stacey telephoned another MBE from the list, HMC Contractors. Because of other work, HMC would not commit to the job, but told Stacey it would reconsider after Eatherly started work on the Project. On April 27, Barron called Stacey to obtain a status report. Again, she told him to call Conley to obtain another list of MBEs. She also asked Stacey to document all the steps he had taken, all responses to his letters, whether he made follow-up phone calls, and whether any firms expressed interest. Later, in a deposition, Barron admitted that she did not inform Stacey of her belief that the absence of ZIP codes rendered inadequate the handwritten list. Stacey told her that Collier, the non-MBE pumping subcontractor, agreed to subcontract $20,000 of work to an MBE. On June 8, White House sent Eatherly a letter expressing unease with Eatherly’s failure to obtain EPA approval for the MBE requirements; White House asked Safeco to give the matter its “closest attention.” Safeco I, 36 F.3d at 543. On June 10, Stacey, Barron, and White House’s attorney, David Amonette, participated in a conference call. Stacey claims that he told Barron that HMC might give Eatherly a commitment, and that Barron asked for a signed agreement between HMC and Ea-therly. Amonette claims that Stacey said that Eatherly intended to use HMC. Barron claims that Stacey said he had a tentative commitment, but no price. Barron says that she told Stacey that, if he confirmed the commitment in writing, she would approve the Eatherly contract, and she asked him to send the confirmation by Federal Express. That day, Amonette mailed a letter to Stacey to confirm Ea-therly’s intentions to use HMC, and to express his “understanding from our phone conversation with Mrs. Barron ... that upon receipt of your letter she would confirm that your company has the authority to proceed.” Stacey did not send the letter. He explained that, because he could not reach an agreement with HMC regarding price, he did not want to commit in writing to subcontract with HMC. Barron confirms that Stacey told her this on June 15. He did not call or write Amonette. On June 17, Robert Eatherly met with Amonette, the Mayor, and some others. Eatherly asked what else he could do to obtain EPA approval, but White House representatives did not offer any advice. Believing that construction industry custom and the contract permitted him to withdraw starting 90 days after he submitted his bid, Eatherly withdrew the bid. He testified that he withdrew the bid to permit Eatherly to commit to other contracts that it had a better chance of obtaining; that no one challenged his right to withdraw; and that the Mayor responded, “I don’t blame you for withdrawing.” Of course, Eatherly took no further action to comply with the EPA regulations. July 15, 1987, the 90-day deadline for Eatherly to comply with the EPA regulations, came and went. Following Barron’s directive after Eatherly withdrew its bid, White House had awarded the contract to Moore Construction Company, the second-lowest bidder. Claiming that Eatherly committed an anticipatory breach, White House demanded that Safeco comply with its promise on the Bid Bond. Safeco filed the declaratory judgment action. B. Legal Matters Implicated by the EPA Requirements The contract incorporated EPA requirements that affect the litigation in two separate ways. First, the breach of contract claim requires elucidation of the requirements: as we held in Safeco /, under Tennessee law, Eatherly had a good-faith duty to comply with its contractual obligations, which included obtaining EPA approval. Second, in response to the breach of contract claim, Appellants have asserted the affirmative defense that the EPA requirements imposed an unconstitutional race-based preference. Obviously, as the first step in resolving these two matters, one must know precisely what the EPA required of Eatherly. 1) Identifying the Appropriate Finder of Fact Before trial, the district court had concluded that “genuine issues of material fact exist with respect to whether EPA’s regulations were constitutionally applied .... ” It thus refused to grant summary judgment on this issue for EPA and White House. In another pre-trial ruling, it decided to withhold the question from the jury, ruling that, “The legal determination as to whether specified conduct violates the Constitution is not within the province of the jury.” After trial, the district court made “findings of fact” (consisting only of a narrative of the evidence offered at trial), and delivered its “conclusions of law,” including the following: “[Although Nancy Barron .,. may have held a personal opinion on one aspect of promoting inclusiveness that went beyond official EPA policy, she did not act upon that opinion and require or induce Ea-therly to award contracts on the basis of minority status.” We believe that the jury, and not the judge, should have decided the factual question about the nature of the standard of compliance required by Barron. (Safe-co injected unnecessary confusion by casting this complaint as a request that the jury decide whether Barron unconstitutionally applied the regulation.) The district court called the issue one of “material fact,” but decided the issue itself because it implicated constitutional issues. It seems that the jury should have decided whether Barron imposed a standard of good-faith-effort-to-solicit (as opposed to a standard of good-faith-effort-to-hire, or even one of compulsory hiring), and the district court then could have ruled whether Barron’s practice constituted an unconstitutional racial classification. Cf. Curtis v. Oklahoma City Public Schools Bd. of Educ., 147 F.3d 1200, 1211 n. 13 (10th Cir.1998) (discussing role of jury in First Amendment cases involving government employers). In the somewhat-related field of qualified immunity, even in circuits where judges rule on the reasonableness of state actors, juries still decide issues of material fact. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 828 (3rd Cir.1997). 2) The District Court’s Description of the EPA Requirements After choosing to interpret the standard applied by Barron, the district court phrased its finding in the negative, writing that Barron did not “require or induce Eatherly to award contracts on the basis of minority status.” This comment does not answer the question of what standard Barron in fact imposed; this omission makes it difficult to review the district court’s conclusion that Barron did not unconstitutionally apply the regulation. Even after a searching review of Barron’s depositions and declarations, we have difficulty ascertaining what standard she applied (and, relatedly, conveyed to Eatherly) in deciding whether Eatherly’s actions satisfied her. In fact, the record contains evidence that suggests that Barron in fact required more than a sincere attempt to solicit MBE subcontractors. Ambiguities in the testimony and exhibits permit the conclusion that she conditioned approval on documentation of Eatherly’s commitment to hire, not of Eatherly’s attempt to solicit, an MBE subcontractor. Further, her testimony appears inconsistent about both the degree of documentation she wanted from Eatherly, and the extent to which she disclosed these requirements to Eatherly. 3) Conflating the Breach of Contract Issue with the Racial Preference Issue On remand, the district court should correct the aforementioned errors and should ensure that the constitutional analysis remains distinct from the breach of contract analysis. The breach of contract analysis involves Eatherly and its duty to make good-faith efforts to comply with the EPA requirements. Eatherly had a duty to comply only with those requirements made known to Eatherly, however. Thus, for purposes of deciding whether Eatherly made a good-faith effort to gain EPA approval, the district court should limit the investigation of the “EPA requirements” to the text of the contract, the regulations incorporated by the contract, and the requirements communicated to Eatherly by representatives of the EPA and White House. Eatherly had no duty to satisfy the subjective, unexpressed views of Nancy Barron. We mention this because the record reveals that the trial exposed the jury to statements by Barron that expressed her interpretation of the EPA regulations. To the extent she did not convey it to Eatherly, Barron’s subjective interpretation of the regulations has relevance only for resolving whether she applied the regulation unconstitutionally — a matter distinct from the question of whether Ea-therly made a good-faith effort to comply with the terms of the contract. 4) Constitutionality of the EPA Regulation Because we hold that the district court erred by itself deciding how Barron applied the regulation and by phrasing its finding only in the negative, we cannot review its judgment about the constitutionality of the regulations. To provide guidance on remand, we discuss the matter insofar as the record permits. a) Standing Although no party mentions whether Appellants have standing to challenge the constitutionality of the statute, this court must assure itself of jurisdiction. If we assume for the sake of argument that the regulations impose a racial preference and force contractors to hire MBEs, Appellants must still demonstrate that they suffered an injury. See Bras v. California Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 748 (1996). Unlike the affirmative action plans often struck down by courts, the EPA regulations do not (apparently) exempt MBE contractors from the requirements of compliance. All contractors face the same burden in finding subcontractors, so white contractors do not suffer a competitive disadvantage (this assumes, of course, that one cannot subcontract to oneself). Compare, as a representative example, Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1518-19 (10th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995), which found that a bidder had standing because “minority and women-owned prime contractors may use their own work to satisfy MBE and WBE participation goals.” Id. at 1518; see also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 706 (9th Cir.1997) (finding standing where the challenged law exempted MBEs from goal and “good-faith” requirements). Appellants have standing. The alleged failure to comply with the regulations did not result in the loss of a bid to an advantaged competitor, but did result in the loss of a contract and the institution of a suit. Further, even if the assumed-unconstitutional regulations do not place one contractor at a competitive disadvantage with other contractors, the regulations place white subcontractors at a disadvantage. “A person required by the government to discriminate by ethnicity or sex against others has standing to challenge the validity of the requirement, even though the government does not discriminate against him.” Monterey Mechanical, 125 F.3d at 707; see also Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350-51 (D.C.Cir.1998) (echoing this proposition, casting it as a matter of third-party standing), reh’g denied, 154 F.3d 487 (D.C.Cir.1998); cf. Lutheran Church, 141 F.3d at 349-50 (finding injury-in-fact where compliance with governmental racial hiring preferences caused “economic harm by increasing the expense” of running the business). Satisfied that Safeco and Eatherly may challenge the regulations, we turn to the requirements imposed by White House and EPA. b) The EPA Requirements White House and EPA repeatedly emphasize that the requirements do not impose a numerical quota, but that they instead ask only for a “good-faith effort,” and thus cannot impose a racial classification. We do not believe that this assertion, standing alone, insulates the EPA requirements from scrutiny. First, the contract incorporates (and reprints some of) the EPA regulation. The regulation’s text nowhere contains the phrase “good-faith effort.” Rather, the regulation declares that, “It is EPA policy to award a fair share of subagreements to small, minority, and women’s businesses.” 40 C.F.R. § 33.240(a) (emphasis added). “Fair share” implies that the outcome must meet an implicit goal — a goal derivable from one’s calculation of “fair share,” but almost certainly non-zero. Cf. Bras, 59 F.3d at 875 (“While the Code and Order do not expressly state that public utilities must adopt any particular programs such as bidding preferences or set-asides, they clearly have the practical effect of requiring them to do so.”); Miami Tele-Communications, Inc. v. City of Miami, 743 F.Supp. 1573, 1580 n. 8 (S.D.Fla.1990) (finding an implicit racial preference in a minority intern-hiring set-aside linked to “the racial and ethnic composition of the city”). From the beginning, the regulation anticipated that grant recipients (here, White House) would “use their own goals, State goals, or other standards” 48 Fed. Reg. at 12923 (emphasis added). The relevant EPA Guidance directed each recipient to implement the “fair share objective” by establishing an “objective which it considers reasonable and achievable based on a number of factors such as the availability of minority and women-owned businesses in the geographic area where the project is being built.” Used thus, “objective” means an objective, not subjective, standard by which to measure compliance. Second, the text commands that recipients “take affirmative steps to assure that small, minority, and women’s businesses are used when possible.... ” 40 C.F.R. § 33.240(a) (emphases added). To this end, the regulation lists several “affirmative steps,” but the steps exist to fulfill the goal of using — not merely soliciting or conducting outreach towards — MBEs. Cf. J.A. 1092 (reprinting “Attachment No. 9” to the contract) (“[T]he [successful] bidder must submit to the EPA ... evidence of the positive steps taken to utilize small, minority, and women’s businesses.”). Thus, the regulation anticipates the formulation of numerical objectives (through recipients’ “fair share objectives”), or at least the creation of subcontracting “goals.” The government cannot omit the word “quota” and thereby insulate its regulations from scrutiny. See Lutheran Churchr-Missouri Synod v. FCC, 154 F.3d 487, 491-92 (D.C.Cir.1998) (rejecting argument that “a regulation constitutes a racial classification only if it requires or obliges someone to exercise a racial preference”) (“Although an analysis of the degree of government pressure to grant a racial preference would no doubt be significant in evaluating whether a regulation survives strict scrutiny, it is the fact of this encouragement — a fact that no one denies — that makes this regulation [an affirmative action hiring program] a racial classification.”); Monterey Mechanical, 125 F.3d at 710-11; Bras, 59 F.3d at 874 (“The Code and Order are not immunized from scrutiny because they purport to establish ‘goals’ rather than ‘quotas.’ We look to the economic realities of the program rather than the label attached to it.”). But see Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir.1992) (construing “fair share” language as requiring only good-faith solicitation efforts and not requiring “particular set-asides,” and thus not objectionable unless implementing regulations impose unconstitutional conditions.) The parties discuss “good-faith efforts” regarding MBE subcontractors because, even though that phrase does not seem to appear in the official EPA documents (at least those referenced by, or reprinted in, the contract), Nancy Barron claimed to apply that standard to Eatherly. Barron admitted that neither Tennessee nor White House (the EPA recipient) established a “fair share goal” for the project. She claimed that, “In situations like this, I evaluated a prime contractor’s effort at compliance with the EPA’s policies and regulations by whether it made a good-faith effort to solicit WBE/MBE participation, not on whether any particular level of WBE/MBE participation was achieved.” This court cannot find provisions in the contract or regulation that anticipated that, in the absence of a “fair share goal,” an EPA official would resolve matters on a case-by-case basis. Safeco contends that, rather than apply a standard of “good-faith attempt to solicit,” EPA actually required the hiring of MBE subcontractors. Such a requirement would appear to impose a race-based preference, requiring strict scrutiny. Government actions might still incur strict scrutiny if they forced contractors to make a good-faith effort to “solicit” MBE subcontractors, but did not “require or induce” the contractors to hire MBEs. If not for the district court’s factual finding — which the jury will re-visit on remand — that Barron did not require Eatherly to hire MBEs, this case might fall on all fours with Lutheran Church. There, the D.C. Circuit wrote that affirmative action hiring incentives that “indisputably pressure— even if they do not explicitly direct or require — [radio] stations to make race-based hiring decisions” require strict scrutiny. Lutheran Church, 154 F.3d at 491. That opinion expressly did not reach the question “[w]hether the government can encourage — or even require — an outreach program [which the court contrasted with ‘actual hiring’] specifically targeted on minorities.” Id. at 492. Perhaps the reasoning underlying Lutheran Church, Monte-rey Mechanical and Bras dictates that the government imposes a racial classification when it compels all contractors to solicit minority subcontractors. After all, such a policy would impose compliance costs on contractors and will harm white subcontractors if it imposes a racial preference. Lutheran Church’s standard appears to justify the application of strict scrutiny whenever the government “encourage[s]” racial preferences, Lutheran Church, 154 F.3d at 492, and the “good faith” requirement certainly has the effect of increasing hiring of MBEs. We do not resolve the above issues, but present them as a guide for the district court. Although explicit racial preferences must withstand strict scrutiny, the government may not avoid searching review merely by invoking the phrase “good-faith effort to solicit.” Such a phrase masks factual contingencies with a large potential impact. EPA’s definition of “good faith” may impose an onerous burden. For example, EPA could conceivably require a contractor to act in “good faith” by mailing bid invitations to every minority subcontractor in the continental United States and by submitting notarized reports, in triplicate, that list the responses, analyze the bids in exhaustive detail, and painstakingly justify the reasons for selecting non-MBE subcontractors. Documentation requirements and the geographic scope of solicitation — both of which are implicated in the instant appeal — represent elements that the court should consider before evaluating whether the requirements “indisputably pressure[d],” Lutheran Church, 154 F.3d at 491, Eatherly to hire MBEs. Also, although White House and EPA appear to contend that “solicitation” merely compels “outreach,” the record suggests that EPA interpreted the regulation in accordance with its plain meaning, requiring an outcome resulting in the hiring of an MBE subcontractor. See, e.g., note 9 supra. The government commands more than “solicitation” when it mandates that, in the case of “competitive” bids between MBE and non-MBE subcontractors (and “competitive” seems far more vague than “identical”), it expects the contractor to “utilize” the MBE subcontractor. See Barron Decl. at ¶ 12. Outreach efforts may or may not require strict scrutiny. See, e.g., Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352 (11th Cir.1999) (ruling that “strict scrutiny is generally inapplicable” to outreach efforts that target one race). But, where “outreach” requirements operate as a sub rosa racial preference — that is, where their administration “indisputably pressures” contractors to hire minority subcontractors— courts must apply strict scrutiny. See Lutheran Church, 154 F.3d at 491; Sussman v. Tanoue, 39 F.Supp.2d 13, 26 (D.D.C.1999) (distinguishing benign from suspect “outreach” programs, emphasizing that the latter “lead[ ] to racial preferences in hiring decisions”; also, considering whether the administering agency has enforcement or disciplinary authority over the party making the hiring decision). Once a court establishes that the government imposes a racial classification, the court must apply strict scrutiny regardless of the strength of the perceived adverse impact of the classification. See, e.g., Walker v. City of Mesquite, Tex., 169 F.3d 973, 981 (5th Cir.1999). IV. Proceedings After Remand A. Damages The question of damages arose at a hearing held before the appeal of Safeco I. During the hearing, White House offered to present evidence of its damages, and Safeco objected, claiming, “We didn’t realize that this was an aspect of the proceeding before this Court today and are not prepared to go forward with it.” The judge asked if Safeco intended later to offer proof, and Safeco responded ambiguously, “The difference between the two bids — the difference is what it is. I mean, there is really no dispute as to the difference .... ” One may interpret this as does White House, as conceding the issue of damages, or one may see it as does Safeco, as declining a futile challenge to White House’s arithmetic calculation of its claimed measure of damages. After this exchange, White House called the Mayor, who testified only about the difference in the two bids. On May 14, 1993, the district court granted White House’s motion for summary judgment. The court wrote, “Upon review of the evidence presented at the oral argument and the record in this case, the Court finds that White House is entitled to a judgment against Safeco in the principle [sic] amount of $352,847.08 [and pre-judgment interest and costs and attorney’s fees].” Safeco appealed. This court upheld the district court’s ruling that a contract existed, but we vacated the judgment and remanded for proceedings regarding whether Eatherly breached. See Safeco I, 36 F.3d at 548. The district court scheduled a trial, and Safeco filed a “Pre-Trial Conference Argument,” in which it challenged the calculation of damages. The court granted White House’s competing motion and ruled that “the principal measure of damages in this case is, as this Court previously held in its Order entered May 17,1993, the difference between the Eatherly ... bid and the second low bidder’s contract price.” The court did not submit the damages question to the jury; after the trial, in the final judgment, it explained that, “in keeping with the law of the ease, this Court enters judgment for that principal amount of damages against Safeco Insurance Company.” It appears that the “law of the ease” does not bar appellate review of the award of damages in the court below. This court did not reach the issue of damages in Safeco I, but it vacated the “judgment and award of attorney fees,” Safeco I, 36 F.3d at 548, and affirmed only “the district court’s conclusion that a contract existed.” Ibid. Further, the law of the case did not bar reconsideration by the district court of the damages. Cf. Kavorkian v. CSX Transp., Inc., 117 F.3d 953, 959 (6th Cir.1997) (“Our remand for a new trial rendered it unnecessary for us to consider the issue of damages, and the failure of the mandate to discuss the issue of damages meant that the district court was free to submit that issue to the jury.”); Gaines v. Dougherty County Bd. of Educ., 775 F.2d 1565, 1569 (11th Cir.1985) (explaining why law of the case did not bar appellate review of court’s denial of attorney’s fees). This court has set forth the applicable law: Unquestionably, the district court, exercising diversity jurisdiction over a breach of contract claim involving a contract provision whereby the parties concurred that the agreement would be governed by Tennessee law, was required to apply the Volunteer state’s law regarding proof of damages. Under Tennessee law, the purpose of awarding damages in breach of contract actions is to compensate for damages actually incurred by placing the plaintiff in the position he would have occupied had the contract been fulfilled in accordance with its terms, not to provide a windfall for the plaintiff. The plaintiff bears the burden of proving damages, and without adequate proof, there can be no award of damages in any amount. Grantham and Mann, Inc. v. American Safety Prods., Inc., 831 F.2d 596, 601 (6th Cir.1987) (citations omitted). The district court may have provided a windfall for White House, which bears the burden of proving damages. Safeco offered evidence that EPA gave White House an additional grant of $375,811 “due to a bid overrun.” This grant suggests that the damages award gives a windfall to White House. Tennessee does not apply the collateral source rule to contract actions. See Drewry v. Continental Cas. Co., No. 03A01-9111-CH-417, 1992 WL 60876, at **5-6 (Tenn.Ct.App. Mar.30, 1992); cf. United States v. City of Twin Falls, Idaho, 806 F.2d 862, 873-74 (9th Cir.1986) (concluding that Idaho would not apply the collateral source rule to preclude offsets for EPA grants for an Idaho waste treatment project), cert. denied sub norm., City of Twin Falls, Idaho v. Envirotech Corp., 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987). The district court erred by refusing to consider evidence that White House received a compensatory EPA grant. Safeco’s other claims appear to lack merit. Even if Moore charged White House for increased material costs, the bid price would not reflect those later costs. Because the court based the damages on the bid price, subsequent charges would not affect Safeco. As for Moore’s alleged breach of EPA violations, this conflates the issue of breach with that of damages. Safeco should have pled this as an affirmative defense, but it expressly limited its “equitable” arguments to the calculation of damages. Finally, Safeco must do more than demand that White House have rebid the project after Eatherly withdrew. Had Eatherly never submitted a bid, no evidence suggests that White House would not have chosen Moore as low bidder. The expense and delay of rebidding the Project may have yielded no lower bid; after all, Moore had an incentive to make its lowest feasible bid during the first bidding. On remand, the district court should place the burden on White House to establish that it suffered damages and that an award would do no more than restore it to the position it would have occupied had Eatherly performed. This inquiry will require the parties to discuss, and the court to decide, the effect of the EPA grant and the EPA regulation that White House alleges will requires White House to reimburse EPA if White House triumphs. See note 11 supra. Appellants also appeal the award of costs and attorney’s fees, and White House cross-appeals the denial of pre-judgment interest. Because we remand for a new trial, and because resolution of those issues (if they re-arise) will not require an inquiry similar to the one necessary for assessing damages, we express no opinion on the district court’s rulings awarding costs and attorney’s fees to White House and denying White House pre-judgment interest. B. Further Proceedings On remand, a jury will decide 'whether Eatherly satisfied its obligation to make good-faith efforts to comply with its contractual duties; specifically, the jury will determine whether Eatherly attempted in good faith to obtain EPA approval. To assess Eatheriy’s good faith, the jury should limit its inquiry to the requirements known to Eatherly — namely, the contract provisions, any regulations incorporated in the contract, and the instructions conveyed to Eatherly by representatives of White House and EPA. Because White House asserts that Eatherly breached, White House bears the burden of proof. If Appellants convince the jury that Eatherly had a good-faith belief that the contract permitted withdrawal after ninety days, Eatheriy’s actions after withdrawal would have no relevance for assessing its efforts to comply with the EPA regulations. If Appellants fail to convince the jury of Ea-theriy’s good-faith belief in withdrawal, the jury may use the 28-day period as relevant evidence of Eatheriy’s failure to make a good-faith effort to obtain EPA approval. Regardless of the jury’s decision, White House retains the burden of proof on breach, and Appellants should not have to prove that it would have been “futile” for Eatherly to obtain EPA approval in the 28-day period. Of course, if the jury finds that Eatherly undertook good-faith efforts to satisfy its contractual obligations, Appellants prevail and the constitutional and damages issues become moot. Second, the jury will decide how EPA applied the requirements to Eatherly. This finding of fact will require the jury also to consider Barron’s subjective interpretation of the requirements. This finding of fact will involve at least three components: what EPA intended Eatherly to do to satisfy EPA, how Eatherly had to document its actions, and how EPA would evaluate whether Eatherly complied. Using this finding of fact, the district court will decide whether EPA’s actions in applying the requirements were constitutional. If the jury finds that Eatherly breached, and the court finds that the EPA requirements did not violate the Constitution, the court should hold a hearing to assess damages against Eatherly. At the hearing, Appellants may present evidence of the EPA grant, and White House may argue the import of the EPA regulation that allegedly requires repayment of the grant. We express no opinion as to the district court’s rulings on costs and attorney’s fees, and on pre-judgment interest. C. Conclusion The judgments of the district court are VACATED and the ease is REMANDED for further proceedings consistent with this opinion. . At one point during litigation, White House and Safeco stipulated to different figures, assigning Eatherly a bid of $2,643,289.10 and Moore a bid of $2,989,029.50, for a difference of $345,740.40. The parties do not explain why they chose these figures (the Moore stipulation appears to transpose digits). When White House presented its proof of damages, it gave amounts of $2,643,749.10 and $2,996,-596.18, and calculated a difference of $352,-847.08. The district court eventually awarded White House the sum of $352,847.08. . One judgment forces Safeco, as surety, to pay damages to White House. As Eatherly observed in its motion to intervene, Safeco might bring an indemnification action against Eatherly. Thus, Eatherly has an interest in appealing the award against Safeco. . For example, Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn.Ct.App.1990), cited by White House, supports this proposition. Two of the other cited cases, Covington v. Robinson, 723 S.W.2d 643, 646 (Tenn.Ct.App.1986), and Investors Acceptance Co. v. James Talcott, Inc., 61 Tenn.App. 307, 454 S.W.2d 130, 140 (Tenn.Ct.App.1969), stand for a related point that, if a plaintiff sues a defendant for nonperformance, the plaintiff must show that the plaintiff satisfied any implied conditions precedent to the defendant's performance. . In 1996, EPA deleted Part 33. See Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations, 61 Fed.Reg. 6,066 (1996). Slightly modified, the requirements once listed in 40 C.F.R. § 33.240 still govern assistance agreements with state and local governments. See 40 C.F.R. § 31.36(e). . Conley testified that he did not remember receiving any telephone calls, messages, or letters from Eatherly or Stacey. . For example, the invitation for bids provided that, "No bidder may withdraw his bid within ninety (90) days after the actual date of opening thereof to allow the Owner to complete its financing arrangements.” One could read this to permit withdrawals after 90 days. . At least, no party asserts that the regulations exempt MBE contractors, and the EPA documents in the Joint Appendix do not exempt MBE contractors. . That failure appears to violate the EPA requirements, which directly govern grant recipients (e.g., White House), and, via incorporation in the contract, indirectly govern contractors. The EPA Guideline required recipients to establish "fair share objectives.” . The difference seems slim; how can one "solicit” in good faith but not violate the regulations by choosing not to hire the MBE? One possible answer: "solicitation” requires only outreach, while hiring requires commitment. Thus, if a contractor had the choice of an MBE and a non-MBE subcontractor with equivalent bids, the contractor may choose the non-MBE subcontractor and still comply with a "solicitation” requirement. Barron appears to have required more, stating that, if Eatherly had received competitive bids from an MBE and a non-MBE subcontractor, Eatherly would have had to use the MBE subcontractor. See Barron Decl., J.A. 1119 at ¶ 12; Barron Testimony, J.A. 925. . Cf. Taxman v. Board of Educ., 91 F.3d 1547, 1549 (3rd Cir.1996) (en banc) (answering in the affirmative the question of "whether the Board of Education of the Township of Piscataway violated [Title VII] when it made race a factor in selecting which of two equally qualified employees to lay off"), cert, dismissed, - U.S. -, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997). . In Safeco’s briefs submitted in its first appeal, Safeco challenged the calculation of damages. ■ . White House cites several contrary cases, each distinguishable and not controlling. White House also claims that an EPA regulation will require it to reimburse EPA. See 40 C.F.R. § 35.945(d). The regulation does not clearly apply, however, and White House should address this argument to the district court. . Also, Appellants argue that Barron acted "ultra vires” in applying her subjective interpretation of the EPA requirements. Presumably, Appellants mean that the trial should not have involved Barron at all: if Eatherly had a good-faith duty to comply with the contractual provisions, and if the contract does not mention Barron's subjective judgment, Barron's subjective judgment has no relevance to a determination of whether Ea-therly made a good-faith effort to comply with the contract. We do not find this argument preserved from the judgments below, and thus do not pass on it today. We note that Appellants may raise the argument in future proceedings, and we believe that the district court may best decide whether the argument has force.

International Paper Co. v. Town of Jay

JOHN R. BROWN, Senior Circuit Judge: The International Paper Company (“IP”), an industry operating in the town of Jay, Maine (“the Town” or “Jay”), brought suit to invalidate and enjoin enforcement of a municipal ordinance (“the Ordinance”) which regulated the emission of pollutants by Jay industries, including IP. IP claimed that the Ordinance placed undue restrictions upon its bargaining power in a labor dispute with striking unions and violated various federal and state laws. In a comprehensive opinion, 736 F.Supp. 359 (D.Me. 1990), the district court granted judgment on the pleadings in the Town’s favor, Fed. R.Civ.P. 12(c), and this appeal follows. Concluding that IP could not have prevailed at trial under any conceivable set of facts asserted by the pleadings, we affirm primarily on the firm footing of the district court’s opinion, as supplemented by this opinion. How It All Began In June 1987, two unions representing 1,200 workers at the Jay, Maine, pulp and paper processing facility of IP went on strike. IP managed to continue operations at the mill by hiring replacement workers. In August, the Jay Board of Selectmen, which mostly included striking IP employees, enacted two ordinances, neither of which is involved in the present appeal. One of the ordinances prohibited IP from housing replacement workers at the mill, while the other authorized town officials to oversee enforcement of various federal, state, and local environmental laws and regulations at the mill. Apparently in response to a lawsuit filed by IP to invalidate these ordinances, again unrelated to this appeal, the Board repealed them voluntarily- In November 1987, the town’s legal counsel, at the Board’s behest, drafted the Jay Environmental Control and Improvement Ordinance (the Ordinance). This third Ordinance — the subject of IP’s present attack — is an elaborate regulatory scheme. Its primary requirement is that Jay industries and businesses obtain such a permit from a special planning board before they may discharge pollutants. In order to obtain a permit, an applicant must comply with local environmental regulations contained in the Ordinance. In December the Board proposed that the Ordinance be put to a public referendum. Two public hearings followed, and the town enacted the Ordinance by referendum vote on May 21, 1988. The strike was resolved in IP’s favor after commencement of this suit. A second referendum followed, where Jay citizens rejected a proposal to repeal the Ordinance. The Ordinance remains the law of Jay. IP’s amended complaint lists several counts, all of which were dismissed below on various motions. IP appeals the district court’s Rule 12(c) dismissal of Counts I, II, and III, which present the following contentions: (1) the Jay Ordinance imper-missibly interfered with.IP’s collective bargaining rights in the 1987-88 strike, curtailing self-help and frustrating the operation of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq.; (2) the Ordinance represents an abuse of governmental powers depriving IP of its Equal Protection and Due Process rights guaranteed by the Fourteenth Amendment to the United States Constitution; and (3) the Ordinance violates Maine’s conflicts of interest statute, 30 M.R.S.A. § 2251 (1978), and Maine common law. Standard of Review We review the district court’s grant of the Town’s Fed.R.Civ.P. Rule 12(c) motion de novo, as if we were considering the Town’s motion anew. See Frissell v. Rizzo, 597 F.2d 840, 845 (3d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979). Like the trial court, therefore, we accept as true all material allegations of the amended complaint, and construe them in favor of the complaining party, IP. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988). Finally, we cannot uphold the district court’s action “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claims which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957); Rivera-Gomez, 843 F.2d at 635. See also, Barber v. M/V BLUE CAT, 372 F.2d 626, 629 (5th Cir.1967). NLRA Preemption IP first attacks the Jay Ordinance on the ground that it violates the policy of Congress, implicit in the NLRA, to leave certain unregulated self-help weapons in a labor dispute, such as lockouts, strikes, and the hiring of replacement workers, to the “free play of economic forces.” Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396, 403 (1976). IP urgently stresses that the Supreme Court’s opinion in Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986), should control this appeal. According to Golden State, the crucial inquiry posed by the “free play” argument is whether the state or municipal action complained of “frustrates the effective implementation” of the NLRA. Id. at 615, 106 S.Ct. at 1399, 89 L.Ed.2d at 624 (quoting Machinists, 427 U.S. at 148, 96 S.Ct. at 2357, 49 L.Ed.2d at 408). Because it is critical to IP’s approach, we think Golden State warrants detailed discussion. In Golden State, a company which operated taxicabs in the Los Angeles area applied to the city for renewal of its operating franchise. The city’s Board of Transportation Commissioners initially recommended renewal of the franchise. While the application was pending, the cab company’s drivers went on strike, halting its operations. The City Council consequently delayed action on the renewal application and ultimately defeated a motion to extend the franchise, allowing it to expire. During discussion on the application, the Council reached a consensus “for rejection of the extension with a possibility for reopening the issue if the parties settled their labor dispute before the franchise expired. ...” Id. at 611, 106 S.Ct. at 1397, 89 L.Ed.2d at 621. The Supreme Court, applying the Machinists preemption principle, held the City Council’s action illegal. The Machinists doctrine, the Court stated, “precludes state and municipal regulation ‘concerning conduct that Congress intended to be unregulated.’ ” Id. at 614, 106 S.Ct. at 1398, 89 L.Ed.2d at 623 (quoting Metropolitan Life Insur. Co. v. Massachusetts, 471 U.S. 724, 749, 105 S.Ct. 2380, 2394, 85 L.Ed.2d 728, 746 (1985)). The Court determined that the city’s effective “positive durational limit” on the labor dispute amounted to an impermissible entry “ ‘into the substantive aspects of the bargaining process to an extent Congress has not countenanced.’ ” Id. at 616, 106 S.Ct. at 1399, 89 L.Ed.2d at 624-25 (quoting Machinists, 427 U.S. at 149, 96 S.Ct. at 2357, 49 L.Ed.2d at 409). By conditioning the franchise grant on settlement of the strike, the Court held, the City Council infringed on the free play of economic forces. Such a trespass constituted a direct, tangible interference with the labor dispute and was preempted by the NLRA. Id. at 619, 106 S.Ct. at 1401, 89 L.Ed.2d at 627. As the trial court correctly determined, the instant case is easily distinguishable from Golden State. IP’s proposal to apply that case here would require an unprecedented extension of the Machinists doctrine and NLRA preemption. See 736 F.Supp. at 366. First, while IP focuses exclusively on the actions of the Jay Board of Selectmen, the Board did not enact the environmental Ordinance. The citizens of Jay by referendum voted in the proposed Ordinance after holding two public hearings. The Board’s role, however important, was limited to directing that the bill be drafted and proposing it to the citizens of Jay. In contrast, in Golden State the Los Angeles City Council took direct unilateral action against the employer to pressure it to submit to striking employees’ demands. IP would have this Court invalidate the Jay Ordinance on the tenuous “but-for” basis that the Ordinance would not have become law had the Board not proposed it. We are unwilling to construe Golden State so broadly as to require inquiry, on the facts of this case, into the motives of the selectmen prior to the Board’s drafting and proposing the Ordinance. In any event, we prefer not to rest our holding on this ground, for we are unwilling to apply Golden State to such state action which only remotely affects the bargaining powers of the parties to a labor dispute. While the Court in Golden State may have retreated from its prior steadfast position that only state actions passed with the intent of directly altering the substantive outcome of a labor dispute should be preempted, it remains the law that actions which regulate activity only peripherally related to labor policy, without placing conditions on the conduct of the parties to the dispute, are not subject to preemption. See id. 475 U.S. at 612, 106 S.Ct. at 1397, 89 L.Ed.2d at 622. In Golden State, the City Council expressly conditioned the employer’s franchise renewal on the settlement of the labor dispute. Id. at 619, 106 S.Ct. at 1401, 89 L.Ed.2d at 627. The nexus between the City’s action and the parties’ collective bargaining positions was indisputable, and the City’s placement of conditions on renewal of the employer’s operating franchise forced its hand in the dispute. On the other hand, reading IP’s complaint in its most favorable light, there is no reasonable, conceivable set of facts suggested by IP to convince either the trial court or this Court that the Jay Ordinance forced IP to accede to the unions’ demands. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84. The Ordinance’s effect on IP’s bargaining position is no more direct than that of the state statute regulating hospital cost increases in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). There we held that the statute was not preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 141 et seq., because it only indirectly prejudiced a nurses’ union’s bargaining position. Id. at 45. Examining the implications of the union’s argument, identical to IP’s here, the Court stated: [I]n any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Id. (emphasis added). See also, Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 824 F.2d 672 (8th Cir.1987); Washington State Nurses Ass’n v. Washington State Hosp. Comm’n, 773 F.2d 1044 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986) (rejecting similar preemption challenges). IP’s is the extreme contention contemplated and expressly rebuffed in Massachusetts Nursing Ass’n. Furthermore, the present allegations are not significantly different from those ás-serted by the union in Massachusetts Nursing Ass’n even though IP charges that environmental health and safety was merely a pretext for the Board’s actual plan to pressure IP. The fact that the Jay Ordinance is the product of a popular referendum robs this argument of its thunder and leads us to restate our belief that indirect intrusions into collective bargaining, such as “[c]lean air and water laws, selective cutting requirements in forest operations, industrial safety standards, [and] tax increases," are rarely preempted by labor statutes such as the LMRA and the NLRA. 726 F.2d at 45 (emphasis added). Thus, we refuse IP’s invitation to extend Golden State to a situation which amounts at best only to a remote, indirect trespass on the employer’s effective bargaining powers. Equal Protection and Substantive Due Process IP’s claim that the Ordinance represents an abuse of governmental powers and deprives IP of the Equal Protection and Due Process rights guaranteed it by the Fourteenth Amendment to the United States Constitution is similarly without merit. The trial court applied the rational basis test and found that the Ordinance is not constitutionally infirm since it is rationally related to legitimate municipal ends. We agree. Social or economic legislation such as the Jay Ordinance, which purports to protect the health and safety of Jay citizens, is presumed to be valid and not violative of the Due Process or Equal Protection Clauses “if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3354, 87 L.Ed.2d 313, 320 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186, 195 (1981). Moreover, the Court is obliged to give governments wide latitude in creating social and economic legislation such as the Ordinance: “the federal courts do not sit as arbiters of the wisdom or utility of these laws.” Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367, 370 (11th Cir.1987) (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715, 726, 66 L.Ed.2d 659, 672 (1981)). Without circumstances to induce heightened judicial scrutiny, which are totally absent here, we are entitled to presume the Ordinance to be valid and are not required to delve into the motivations of the Board members who proposed and drafted the Ordinance. The district court’s thorough analysis here needs no improvement: while courts may look to legislators’ motives where a suspect or quasi-suspect classification is subjected to discrimination or a fundamental right is infringed, see e.g., Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Establishment Clause); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (race discrimination), absent these circumstances, we “ ‘will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.’ ” International Paper, 736 F.Supp. at 364 (quoting United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672, 683 (1968)). Once again, in consideration of the critical role that Jay’s citizens played in enacting the Ordinance we are satisfied in concluding that the selectmen’s motives are not subject to scrutiny. As the district court stressed, “[t]he referendum, referred to as ‘the people’s veto’ in the Maine Constitution ... serves as a political cheek on possible Selectman bias and, therefore, further limits the need for judicial scrutiny of illicit personal motives of municipal officers.” Id. Focusing upon the Ordinance itself, there cannot be any doubt that it serves the legitimate governmental interest of controlling the discharge of pollutants into the air, water, and ground, and that its regulatory means are logically related to its stated purpose of protecting “the public health, safety and welfare of the inhabitants of the Town of Jay and ... the Town of Jay’s environment.” Jay Environmental Control and Improvement Ordinance § 1-102. We conclude that IP did not demonstrate or even suggest any conceivable Conley set of circumstances which could have overcome the presumption of validity which the Ordinance enjoys. IP’s 42 U.S.C. § 1983 substantive due process and equal protection claims were therefore properly dismissed. Conflict of Interest Finally, IP argues that the Ordinance is void under Maine’s conflicts of interest statute and the state’s common law. IP argues that each of the Jay Board members had at least an indirect pecuniary interest in passing the Ordinance, and therefore the district court should have allowed IP’s claim under this statute to go forward. The complaint contains no allegations that the Board members’ “pecuniary interest” fits within the statutory definition, however, which provides that a conflict of interest is present where the official is: ... an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity to which the question relates ... [and] only where the official is directly or indirectly the owner of at least 10% of the stock of the private corporation or owns at least a 10% interest in the business or other economic entity. 30 M.R.S.A. § 2251(4). IP’s failure to allege that any member of the Board satisfies this provision is fatal to its statutory claim. Maine common law notions of conflicts of interest sufficient to merit the invalidation of a municipal ordinance are broader than § 2251, but not as broad as IP would have us interpret them to be. All of the eases upon which IP relies involve the conferring of a pecuniary benefit to be gained directly and personally from the municipal action. See, e.g., Tuscan v. Smith, 130 Me. 36, 153 A. 289 (1931) (voiding a lease entered into by Town selectmen where the Chairman of the Board had a direct financial interest in the affairs of the lessee); Hochberg v. Borough of Freehold, 40 N.J.Super. 276, 123 A.2d 46 (1956) (invalidating a zoning ordinance amendment where a planning board member’s business stood to benefit directly from the new ordinance). Compared to these traditional instances of voidable municipal actions, IP’s argument is an entirely different animal. IP suggests that the Jay selectmen had a conflict in proposing the environmental Ordinance because of the indirect pecuniary interest they held in seeing the labor dispute resolved in the unions’ favor. The benefits which were presumed to inure to the individual Jay selectmen were hardly certain, and in fact did not come about, unlike the clear advantages present in the cited cases. Established precedent does not support the attenuated construction of Maine common law IP proposes, and we refuse to make such an extension here. In light of the foregoing discussion, we conclude that the district court was clearly correct in disposing of all of the matters presented in this appeal by way of Rule 12(c) dismissal. Affirmed. . Rule 12(c) provides, in pertinent part: (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings____ Fed.R.Civ.P. 12(c). . This general rule does not apply when the statute involves suspect classifications such as race, alienage, or national origin, or "quasi-suspect" classifications such as gender and illegitimacy, or if the statute affects personal and fundamental rights. Id. 473 U.S. at 440-41, 105 S.Ct. at 3254-55, 87 L.Ed.2d at 320-21. The Jay Ordinance does not single out and govern any suspect or quasi-suspect classifications of persons; nor does it abridge any fundamental right. . Maine’s conflicts of interest statute is found at 30 M.R.S.A. § 2251 (1978), and provides in relevant part: 1. Voting. The vote of a body is voidable when any official in his official position votes on any question in which he has a direct or an indirect pecuniary interest. . We also agree with the district court that the plain language of the statute makes the vote taken by the Board voidable rather than void, and leaves discretion whether to uphold such actions to the courts. 736 F.Supp. at 367. Furthermore, taking the allegations in the complaint as true, we agree with the district court that under the circumstances the environmental Ordinance would not have invoked application of the statute because of the important factor of the participation of the citizens of Jay, first in passing the Ordinance by referendum and later in rejecting its repeal in a subsequent referendum. See id. Considering the loose foundation for IP’s claim of an actionable “conflict” and the democratic participation of the Jay citizenry, the district court properly dismissed this claim.

Adler v. Lewis

J. BLAINE ANDERSON, Circuit Judge: The plaintiffs, numerous environmental organizations and one private citizen, appeal from the district court’s judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants. This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (1-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between 1-5 in Seattle and 1-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive “lidded” sections in Seattle and Mercer Island. Access to and from the facility is provided by several interchanges throughout its length: to Interstate 5, the western terminus of the project, by a major interchange with the center lane ramp terminating at the existing South Dearborn Street, and at another major interchange at the project’s eastern terminus, an already completed portion of 1-90, tying the facility into Interstate 405, the major north-south highway facility east of Lake Washington. I. BACKGROUND The facts pertinent to this appeal are here recited briefly, but for a complete understanding of this case’s litigation, see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), Lathan I, the district court opinion on remand, Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972), and the second appeal to this court, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), Lathan II. This court, in Lathan I, reversed the trial court’s denial of a preliminary injunction, holding, inter alia (1) that the State and Federal defendants were to prepare an environmental impact statement (EIS) for the project pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq. (1970), and (2) that the displaced persons relocation plan prepared by defendants was insufficient to provide assurances of adequate housing to comply with the Uniform Relocation Act, 84 Statute 1894 (URA). An injunction was entered by the district court pursuant to this court’s instruction, specifying that the defendants were enjoined from acquiring the right-of-way pending compliance with “applicable federal law.” Lathan I, 455 F.2d at 1122. Subsequently, a partial EIS was prepared (for the segment between 1-5 in Seattle and Mercer Island — “Seattle Segment”) and a new relocation plan. Following the ruling of the district court, this court in La-than II affirmed, finding the Environmental Impact Statément (EIS) and § 4(f) statements inadequate. The Lathan II court, however, reversed a portion of the district court’s' decision and ordered that a new public hearing be held for the entire length of the 1-90 project between 1-5 and 1-405, pursuant to 23 U.S.C. § 128. In addition, this court ordered that an EIS consistent with the requirements of NEPA was to be the basis of the public hearing, and continued the injunction pending com- • pliance. No issue was raised regarding the district court’s determination that the defendants had complied with the requirements of the URA based on the new relocation plan. After Lathan II, WDOT prepared a new draft EIS covering the entire uncompleted portion of the 1-90 project to serve as the basis for new public hearings under § 128(a). Three public hearings were held during January and February 1976. Following these hearings, it was clear that conflict existed regarding the size of the then ten-lane plan between the .State and local affected jurisdictions. In an effort to resolve those conflicts, negotiations were initiated between the State of Washington DoT and the cities of Seattle, Mercer Island, and Bellevue, King County, and METRO concerning further project development. As a result of these negotiations, an interjurisdictional consensus was reached in December 1976. This Memorandum of Agreement (MOA) provided for an eight-lane plan, continued incorporation of all environmental protection measures which had previously been incorporated into the larger project, and an independent study to be undertaken of various “transit access” provisions at both termini of the 1-90 project (Seattle on the West and Bellevue on the East), with the parties subsequently seeking Federal funds to finance the access project. A Final EIS for the eight-lane project was prepared by WDOT and submitted to the Secretary of Transportation on April 12, 1977, including a separate report addressing the § 4(f) Involvements of the project. Judge Thompson, Jr., following agreement by the parties, wrote to the Secretary of Transportation requesting a decision. September 7, 1978, the Secretary issued his § 4(f) findings in the “§ 4(f) Determination,” that there were no feasible and prudent alternatives to the use of the § 4(f) lands and that the project included all planning to minimize harm to such § 4(f) lands. Secretary Adams approved the project encompassing the entire uncompleted portion of the 1-90 project between 1-5 and the 1-405 based upon the FEIS and “§ 4(f) Analysis” in his “Decision Document” dated September 20, 1978. The Final Environmental Impact/§ 4(f) Statement was approved and adopted by the Federal Highway Administration (FHWA) on September 22, 1978. Defendants moved on October 3, 1978 to dissolve the injunction entered after Lathan I and requested the district court to enter an order establishing a schedule to control the course of future litigation in the consolidated cases. The parties stipulated, notwithstanding other issues in the case, that WDOT should proceed with necessary safety improvements within the 1-90 corridor, including removing the “bulge” in the Lacey V. Murrow floating bridge. During the course of discovery proceedings, many parties plaintiff in the consolidated actions were dismissed. The pretrial order framed issues under NEPA, Federal Aid Highway Act 23 U.S.C. §§ 128(a), 134(a), and 138, the Clean Air Act, 42 U.S.C. § 1983, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. Trial was to the court in June 1979. The parties submitted Proposed Findings of Fact and Conclusions of Law as the court requested. On August 27, 1979, the court entered its Judgment dissolving the injunction and ruling for the defendants, based upon its Findings of Fact and Conclusions of Law dated August 22, 1979. II. DISCUSSION A. District Court Duty to Take a “Hard Look” We summarily dispose of appellants’ assertion that the district court erred in “mechanically” adopting findings of fact and conclusions of law. There is virtually nothing in this record to support the bald assertion. The evidence is, however, that the court studied the findings and conclusions submitted by both parties and that some were completely rewritten or substantially modified. The principles we apply are well established and we see no need to reiterate them once again. See, Hagans v. Andrus, 651 F.2d 622 (9th Cir.), cert. denied, Hagans v. Watt, - U.S. -, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); Mayview v. Rodstein, 620 F.2d 1347 (9th Cir. 1980); Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979); and Photo Electronics Corp. v. England, 581 F.2d 772 (9th Cir. 1978). Appellants’ argument that the district court did not conduct an objective review is based upon a letter by the court to the federal Secretary of Transportation. Appellants contend the court had a “personal commitment to seeing the project through to completion, . . . [the judge had] made [a] personal written plea to Secretary Adams, urging him to expedite required approvals.... ” Brief of Appellants at 13. From our analysis, there is nothing in the record to indicate the trial court acted with bias toward the defendants and their program. (RT 734). The judge remarked that he had written to the Secretary, requesting him “to approve this thing or not approve it, or at least make a decision on it ...” (RT 734). The bold assertions of one-sidedness by appellants are not supported by the record. The appellants also contend- the district court failed to independently review the appellees’ administrative actions by ignoring central issues and excluding relevant evidence. These assertions relate to the adequacy of the EIS and the section 4(f) statement, and will be considered within the discussions of these issues, respectively. B. 4(f) Determination Appellants raise several questions pertaining to the Secretary of Transportation’s compliance with the Department of Transportation Act of 1966, § 4(f), 49 U.S.C. § 1653(f) (1970). The national policy, announced in § 4(f) and in identical language of § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), is to take “special effort ... to preserve the natural beauty of the countryside and public parks and recreation lands. . . . ” Section 4(f) provides: “It is hereby declared to be the national jiolicy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or 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 park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.” 49 U.S.C. § 1653(f). The issues raised by appellants parallel the questions involved in judicial review as announced by the Supreme Court in the leading case, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In discussing § 4(f), the Court rejected both the substan-' tial evidence test and the de novo review of whether the decision was “unwarranted by the facts.” Though the Secretary’s decision is entitled to a presumption of regularity, the reviewing court still engages in a substantial inquiry because the presumption does not “shield his action from a thorough, probing, in-depth review.” 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The opinion enunciates three questions for the reviewing court to consider. First, the court must examine whether the Secretary acted within the scope of his authority. Analyzing this facet of the review, the court must determine if, on the facts, the Secretary’s decision can reasonably be said to be within the small range of choices Congress specified, and whether the Secretary could have reasonably believed in that, particular case there were no feasible and prudent alternatives, or that the alternatives involved unique problems. 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V) requires the determination actually made not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” to avoid being set aside by the reviewing court. Second, in examining the decision, the reviewing court must evaluate whether “the decision was based on a consideration of the relevant facts and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-4, 28 L.Ed.2d at 153. The third and final inquiry is whether the Secretary’s action followed the necessary procedural requirements. Appellants have not voiced any objection to the Secretary’s compliance with procedural requirements. Instead, the issues presented are: (1) whether the Secretary relied on improper considerations in his § 4(f) determination, (2) the correctness of the conclusion that there were no feasible and prudent alternatives, and (3) whether there was a failure to incorporate all possible planning measures to minimize harm. 1. Application Section 4(f) is triggered only when the Secretary of Transportation is asked to approve a transportation program or project seeking to employ federal funds, which requires the “use” of land from a public park, recreation area, wildlife or waterfowl refuge, or from an historic site. The labeling of property as “used” or “not used” is the prerequisite to further examination and to compliance with the provisions of § 4(f). This phase of § 4(f) was not discussed by the Court in Overton Park. It was not disputed that the highway, slated to dissect Overton Park by separating the zoo from the rest of the park, would be a “use” within the meaning of the statute; it was acknowledged. Here, the assertion is the Secretary incorrectly concluded that, of the 50 potential sites, 29 were “not used,” and, as a result, failed to examine § 4(f)’s two requirements with respect to those sites. Appellants argue some of these 29 sites are closer to the project than the site classified as used in Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). Though correct in discussing Stop H-3 for the interpretation of “use,” appellants do not correctly characterize the opinion as emphasizing the proximity between the project and the threatened site as the crucial factor. This court discussed the geographic closeness of Pohaku Ka Luahine (the protected site, a petroglyph rock) to H-3 (the proposed highway), not merely in terms of distance, but rather its utility or importance as a site would be impaired by the highway’s location, and hence was “used.” Similarly, in Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972), the court found a campground to be used, within the meaning of § 4(f), when encircled by the proposed highway project. There would be an adverse impact on the campground from the highway since its isolation would be interrupted. 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. Department of Transportation Order No. 5610.1A, para. 9(c)(1), 36 Fed.Reg. 23681 (1971). Even off-site activities are governed by § 4(f) if they could create sufficiently serious impacts that would substantially impair the value of the site in terms of its prior significance and enjoyment. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972). The importance of this analysis is obvious since absent a determination of “use,” the section’s provisions do not apply. An analogy can be drawn between this classification and the initial determination that a project is one which “significantly affects the quality of the human environment” involving preparation of an environmental impact statement (EIS) as per the National Environmental Policy Act of 1969 (NEPA), § 102(2)(c), 42 U.S.C. § 4322(2)(c) (1970). The threshold test requiring preparation of NEPA’s impact statement is met when a plaintiff alleges “facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality.” Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817, n.5 (9th Cir. 1973), cert. denied, 416 U.S. 974, 94 S.Ct. 2002, 40 L.Ed.2d 564 (1974), overruled on other grounds, Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552, n.3 (9th Cir. 1977). 2. Secretary’s Determination This court, in reviewing the Secretary’s decision, “must satisfy itself that the Secretary evaluated the highway project with the mandate of § 4(f) clearly in mind.” Stop H-3, 533 F.2d at 445; Overton Park, 401 U.S. at 416, 91 S.Ct. at 828, 28 L.Ed.2d at 154. The combined Final Environmental Impact/Section 4(f) Statement recites the standard applied here for determining use: “A site is considered ‘used’ whenever land from or buildings on the site are taken by the proposed project, or whenever the pro])osed project has significant adverse air, water, noise, land, accessibility, aesthetic, or other environmental impacts on or around the site, as per the Stop H-3 Association v. Coleman [opinion].” FEIS, vol. IV at 4. Using this standard, the Secretary concluded that of the 50 potential § 4(f) sites, only 18 were used. The FEIS/§ 4(f) document was used as a basis for the Secretary’s decision; we examine it to determine if consideration was given according to § 4(f) mandates. Appellants’ argument that the Secretary incorrectly determined that only 21 of the 50 sites were “used,” is not supported by references to the record of particular sites that should have been classified as adversely affected, i.e., “used.” We independently found the differences in the number of sites discussed in these documents, but believe the failure to specifically discuss the four sites in the “§ 4(f) Determination” and in the Secretary’s “Decision Document” is not significant nor dispositive. All 50 sites, “used” and, “unused,” were thoroughly investigated during this long and tedious process. All sites are treated extensively in the “§ 4(f) Analysis.” We read all three documents together as no one of them alone, fully satisfies the commands of § 4(f). As noted above, the “§ 4(f) Analysis” provides the standard the Secretary applied in determining “use,” the “§ 4(f) Determination” cites alternatives considered, the conclusion that there is no feasible and prudent alternative to the use of 18 sites, and recites efforts to minimize harm. The “Decision Document” records the decision of the Secretary that no alternatives are feasible and prudent to “the use of the parks and historic sites required for the project, and that all possible planning to minimize harm to the affected areas has taken place,” and his “decision to approve construction of 1-90 as proposed by the Washington State Department of Transportation.” Id., “Decision Document,” at 5 and 1, respectively. We first examine the “use” classification applying the Overton Park analysis and then the Secretary’s § 4(f) conclusion by the same standard. Looking to the scope of the Secretary’s authority, any conclusion utilizing an appropriate standard relative to the 50 sites would satisfy the first segment as being within the “small range of choices the Secretary could make.” The second part of the question concerning the Secretary’s authority encompasses whether he could have reasonably believed that only 18 of the 50 were used. Attention is given in the “§ 4(f) Analysis” to all 50 sites, detailing possible environmental effects from this project. This section appears reasonably complete, discussing such factors as noise, air quality, aesthetics, access and more. The Secretary, in his “Decision Document,” states in part, “In making my decision, I have before me the EIS, including the submission pursuant to section 4(f), and other elements of the administrative record.” “Decision Document,” p. 3. He lists several other reports he has reviewed in making his decision. The Secretary concludes the paragraph, “I have considered both the adverse and beneficial impacts of alternatives and the measures which will be taken to minimize the adverse impacts.” The district court found the Secretary could have reasonably believed that less than the 50 sites were used. We agree. These findings are not clearly erroneous. The Secretary determined “use” based on the studies before him, which considered relevant facts concerning environmental impacts. Moving to the Secretary’s “§ 4(f) Determination,” relative to the alternatives to using the 18 sites, we review it under the same standard, Overton Park. The Supreme Court clarified the meaning attached to “feasible and prudent alternatives.” Recognizing that “feasible” allows for little administrative discretion, the Court considered it to mean, as a matter of “sound engineering it would not be feasible to build the highway along any other route.” Overton Park, 401 U.S. at 411, 91 S.Ct. 821, 28 L.Ed.2d 150, citing 114 Cong.Rec. 19915 (1968) (statement by Rep. Holified.) Whether alternative, feasible routes would be “prudent” was not intended to focus on cost and community disruption unless the results reached “extraordinary magnitudes” or was not prudent because there were “truly unusual factors present in a particular case.” Overton Park, 401 U.S. at 413, 91 S.Ct. at 822, 28 L.Ed.2d at 151. The Secretary concluded that there was no feasible and prudent alternative to the use of the 18 sites. Appellants argue he based his decision on irrelevant factors and an inadequate and outdated “§ 4(f) Analysis.” Appellees assert the Secretary’s conclusion is properly based on findings of fact not clearly erroneous, including (1) other alternatives would still require “use” of § 4(f) lands, (2) other corridors would cause severe community disruption, (3) design alternatives involve their own § 4(f) involvement and would not serve the function of the project, and (4) even the no-build alternative would perpetuate congestion. Though most alternatives appear to deal with the composite project, the “§ 4(f) Determination” states, “the alternatives ■ discussed here are generally common to all or to a number of the § 4(f) lands associated with the proposed project.” “§ 4(f) Determination” at 1. The Secretary’s decision is entitled to a presumption of regularity. Absent argument by appellants pointing to the record and demonstrating with specificity the alleged errors of judgment or irrelevant factors that formed the basis for his decision, we are not inclined to make their case for them. Even if the decision of the Secretary be different from the one this court would make if it were our responsibility to choose, we will not substitute our judgment for that of the Secretary. We have not been directed to any portion in the record demonstrating an erroneous decision and, as a result, find no grounds to disturb the Secretary’s conclusion that there are no feasible and prudent alternatives to the use of such § 4(f) lands. Once the Secretary determines that § 4(f) lands will be adversely impacted and finds there are no feasible and prudent alternatives to such use, he must address the final portion of § 4(f) which requires a finding that “such program includes all possible planning to minimize harm to such park . . . resulting from such use.” 49 U.S.C. § 1653(f)(2). Appellants assert § 4(f) requires all measures “technically possible ... be implemented” if there is no feasible and prudent alternative to the use of protected lands. This statement goes beyond where this court is willing to venture and is not required by the Act nor existing precedent. Other circuits, in addressing this question, have said that implied within the statement “all measures,” is the condition that such efforts to minimize harm be feasible and prudent, or reasonable. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976); Citizens to Preserve Overton Park v. Volpe, 335 F.Supp. 873, 883 (W.D.Tenn.1972) (§ 4(f) requires “all reasonably possible planning”). See generally, D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972); and Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 700-701 (2d Cir. 1972). Such a reading fully considers the practicalities involved and yet maintains the strict command of the section’s language. Monroe County characterizes the section as creating an “affirmative duty” to minimize the damage to parkland as: “[a] condition precedent to approving] such a taking for highway purposes where federal lands are involved; and the Secretary must withhold his approval unless and until he is satisfied ... full implementation of such planning ... is an obligated condition of the project.” Id., 472 F.2d at 701. This second phase of § 4(f) is discussed by the District of Columbia Circuit which concludes it involves far more than merely calculating the number of acres to be asphalted. D.C. Federation, 459 F.2d 1231. The Court emphasized, “the location of the affected acres in relation to the remainder of the parkland may be a more important determination than the number of acres affected.” Id., 459 F.2d at 1239. It is also important to note the bifurcated analysis of the two considerations of § 4(f). The Fifth Circuit has discussed the completely unconnected nature of the two § 4(f) considerations: “[t]he significant difference between . . . subsections (1) and (2) assays is that considerations which might make an alter-' hate imprudent (such as displacement of persons or businesses or a Title 6 problem) are simply not relevant to determining whether a different path would minimize harm to the [value of the protected lands].” Louisiana Environmental Society, 537 F.2d at 86. Inquiry under subsection (2) of § 4(f) requires a balancing of the harm to the site by the proposed project, with the harm to the same site by another alternative or a plan to implement mechanisms to diminish that particular harm. There may be, as appellants assert, some “technical” deficiencies or some actions may not be “technically” correct (the four sites discussed in the “§ 4(f) Analysis” yet not discussed in the Secretary’s final decision). However, even under the exacting § 4(f) requirements, the judicial branch may not “fly speck,” if it appears, in its review, that all factors and standards were considered. Whether or not the reports and studies use the “magic” terminology, there has been a reasonable and thorough review of a voluminous record accumulated over a span greater than ten years, which includes extensive public contribution. Substitution of the 180-acre greenbelt is important here as a measure to minimize harm, though it is not per se dispositive of compliance with the second prong of § 4(f). Even with some of the deficiencies pointed out by the appellants, considering the entire plan and the record as a whole, we are of the opinion that § 4(f) standards have been satisfied. When considering all other alternatives, i.e., the conceptual ones, no-build, nonstructural, corridors north or south, design alternatives, rail transit and safety improvements, as the Secretary did, the conclusion is there has been reasonable compliance, even with the minor deficiencies pressed by appellants. There is a foundation in the record for the reasonable belief that no feasible and prudent alternatives exist and that all possible planning to minimize harm has been undertaken. The district court so found and we agree. As to several areas of the project, the Secretary’s approval was conditional. ■ We are satisfied the project will proceed subject to those conditions. The Secretary and the agencies, both Federal and State, have complied with the prior directives of this court in Lathan I and II, and the mandates of § 4(f). C. NEPA Issues The third argument appellants raise before this court involves the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, et seq. (hereinafter NEPA). NEPA requires the preparation of an environmental impact statement (EIS) under § 102(2)(c), when a federal agency recommends “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(c). One purpose of the EIS is to “provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences.” Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974). In addition, preparation “provide[s] the public with information on the environmental impact of a proposed project, as well as encouragefsj public participation in the development of that information.” Id. 1. Standard of Review The appropriate standard for review of the adequacy of an EIS is well established in this circuit as that set forth in § 706(2)(D) of the Administrative Procedure Act: whether the EIS was prepared “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D) (1976). See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d at 1282; Lathan II, 506 F.2d at 692-3. The determination of adequacy is essentially pragmatic. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam). Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts “reasonably set[s] forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision.” Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979). See Columbia Basin Land Protection Assn. v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981); Coalition for Canyon Preservation, 632 F.2d at 782; Trout Unlimited, 509 F.2d at 1283. Preparing an EIS requires the exercise of judgment; however, a court in its review may not substitute its judgment, but instead is limited to ensuring that the agency has considered the environmental consequences of its action. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, et al., 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Lathan II, 506 F.2d at 693. We note initially, compliance with one environmental statute does not assure compliance with another. In Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982), we discussed the commands found in the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and those in NEPA. In the case of historic buildings, each statute “mandates separate and distinct procedures, both of which must be complied with . . . . ” Id. at 859. Similarly, a finding of compliance or noncompliance with § 4(f) of the Department of Transportation Act does not mandate the identical conclusion as to NEPA provisions. 2. Public Hearing Appellants raise five subissues concerning NEPA compliance. We summarily reject their first argument that the public hearing was inadequate since not conducted with an “approved, final EIS.” This court, in Lathan II, did not direct such a document to be the basis of a new hearing. Circulation of even a deficient draft EIS may be sufficient so long as it does not frustrate the goal of obtaining informed agency and public comment. National Wildlife Federation v. Adams, 629 F.2d 587 (9th Cir. 1980); Lathan II, 506 F.2d at 693. See also, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-1023 (9th Cir. 1980). Regulations require the draft EIS to be circulated to enable informed comments at the public hearing. 23 CFR § 177.12. 3. Segmentation Appellants argue in their next subissue that the proposed project did not involve an “adequate highway segment.” The leading case in this circuit is Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975), which set forth criteria that, when found, demonstrated the portion was suitable for consideration in an EIS for that highway segment. The four considerations are: (1) the section must be as long as practicable to permit consideration of environmental matters on a broad scope, (2) the section must have independent utility, (3) the length of the highway selected must assure an adequate opportunity for the consideration of alternatives, and (4) the segment should fulfill important state and local needs. Id. at 1109-1111; Lange v. Brinegar, 625 F.2d 812 (9th Cir. 1980). In determining whether there was sufficient evidence to establish compliance with NEPA for the segment, we are bound by the findings of the trial court unless they are clearly erroneous. Id. at 815; Sessions, Inc. v. Morton, 491 F.2d 854, 858 (9th Cir. 1974). Appellants question only the first two criteria. We have examined the record, including the Findings of Fact and Conclusions of Law made by Judge Thompson. An adequate discussion of the Daly criteria is found, including that the termini of the project are both major cross-roads (1-5 and 1 — 405) and population centers (Seattle and the City of Bellevue). The court found the project would be able to serve its purposes without the construction of additional facilities, and that there were no pending proposals for major federal action regarding related projects. The Connecticut Street Viaduct had not reached the stage of a “project” and hence did not require the preparation of an EIS. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Supreme Court stated the mere contemplation of future action was not sufficient to require preparation of an EIS. In this case, the EIS covered an adequate highway segment. 4. Alternatives Appellants assert the state defendants failed to develop alternatives and thereby violated NEPA. Section 4332(2)(C)(iii) requires alternatives to the proposed action be included in the EIS. However, this court has held the alternatives discussion to be subject to “reasonableness.” Life of Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The three alternatives complained of by the appellants are discussed by the trial court. The withdrawal and substitution alternatives are considered in the FEIS in six variations. In addition, two studies discussing this option are incorporated in the technical appendix. It is further evident that the local jurisdictions (Seattle, Bellevue, Mercer Island and King County) unanimously voted not to withdraw and substitute the funds elsewhere. Neither the Mayor’s second alternative nor the interim High Occupancy Vehicle study aid appellants’ argument. The Mayor’s 2-2-2 alternative was merely a variant of another fully discussed alternative which Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975), concludes does not have to be addressed. The interim HOV study was not an alternative to the project, but rather improvements to occur before construction begins. We find the range of alternatives considered was sufficient to permit a reasoned choice, and complies with NEPA as the trial court found. Appellants have not shown the district court was clearly erroneous in its determination that the discussion of alternatives in the EIS was reasonable. See Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Daly, 514 F.2d at 1111. 5. Planning Data Base Appellants’ fourth subissue is that the transportation plan developed pursuant to 23 U.S.C. § 134 was not based on correct and accurate data. It is recognized that administrative consideration of evidence creates gaps between the time the record is closed and the decision is made. Vermont Yankee, 435 U.S. at 555, 98 S.Ct. at 1217, 55 L.Ed.2d at 486. There is an end “to the period during which an agency must reopen the record to consider new facts.” Nance v. Environmental Protection Agency, 645 F.2d 701, 708 (9th Cir.), cert. denied, sub nom. Crow Tribe of Indians v. E.P.A., - U.S. -, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The standard applied regards administrative action as being “judged by the information then available to it.” Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216, 55 L.Ed.2d at 485. In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), we stated that even if a study contained information relating to environmental effects which would be of assistance to those commenting on an EIS, the mere fact that it is not included “is not enough to sustain a finding that the Secretary violated NEPA by acting prior to the issuance of the study.” Id. at 1281. In evaluating whether the EIS should have been delayed to await the new study, the factors to consider are: (1) the consequences of delay, (2) the present state of information relative to environmental factors, and (3) the relevance and degree of probative value of the information. Id. The trial court found the demographic data unavailable, considered the above-mentioned factors, and concluded the preliminary information would not have significantly altered the conclusions already in the FEIS. We agree. We do not view this case as one requiring the reopening of the decision-making process to review later available data. 6. Impacts Appellants’ final subissue involving NEPA concerns the adequacy of the discussion of impacts in the EIS. Under this heading, appellants object in five areas because they believe the impacts were “inadequately discussed.” What is required of an EIS is “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Trout Unlimited, 509 F.2d at 1283. When the question is the adequacy of the consideration, we examine to determine whether consideration of those factors was “arbitrary or capricious.” Nance, 645 F.2d at 712. We have examined the EIS and conclude, as did the trial court, that the impacts of the project on city traffic, air quality, noise, aesthetics, and the social and economic effects were adequately considered. The issue of relocation housing was the subject of a stipulation between the parties and will not be addressed here. The EIS analyzes the effects of increased noise, including a chart demonstrating an increase in 10 decibels is perceived to be twice as loud as the sound if reduced 10 decibels. Appellants argue the EIS is inadequate because it “ignored” three other impacts: energy consumption, effects of locating a ventilation facility in a residential neighborhood, and impacts on drivers using the project. The FEIS discusses the anticipated increases in both fuel, gasoline and diesel, and electricity from the construction and operation of the subject project. Appellants have failed to direct us to impacts, both significant and probable, to result from the project that render the EIS inadequate. The FEIS before us identifies and discusses the significant environmental impacts in sufficient detail and we agree with the conclusion of the district court, NEPA has been satisfied. D. § 1983 Appellants’ final argument is that the district court erred in dismissing their claim for relief under 42 U.S.C. § 1983. The district court is correct in remarking that defendant State officials must be sued in their individual capacity in an action for monetary damages. Edeiman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We have not found, in reviewing the record and pleadings, a request for relief in the form of damages. Nonetheless, the trial court’s dismissal can be upheld. Following our independent review, we find there is neither a basis in the arguments of the appellants nor in the record to support a § 1983 claim. III. CONCLUSION We have reviewed the action of the district court which, following a “hard look” at the record, dissolved the injunction. We find that action proper and further affirm the findings that the stringent § 4(f) standards and the procedures of NEPA have been satisfied by the appellees. In addition, appellants’ claim for relief under § 1983 was appropriately dismissed. AFFIRMED. . The organizations include: CARHT (Citizens Against R. H. Thompsen Freeway), Central Seattle Community Council Federation, Montlake Community Club, Ravenna Bryant Community Association, Mt. Baker Community Club, Les-chi Improvement Council, Friends of the Earth, Inc., Washington Environmental Council, Madrona Community Council, Seattle Urban League, and the Metropolitan Democratic Club. See footnote 7 and accompanying text. . The one remaining individual plaintiff is Diane Halverson. See footnote 7. . The original Federal defendants included Neil Goldschmidt, the United States Secretary of Transportation, and Russell R. Train, the Environmental Protection Agency Administrator. The district court entered a summary judgment dismissing the defendant EPA and all issues raised under the Clean Air Act, 42 U.S.C. §§ 740Í, et seq. prior to trial. The original state defendants included William A. Bulley, the Secretary of the Washington Department of Transportation, and the Washington Transportation Commission (the authority within WDOT responsible ultimately for determining transportation policies of the State and approving State funding for all highway projects). . Section 4(f) refers to that section in the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970). See subsequent discussion in part B of this opinion. . The Washington Department of Transportation (WDOT) supplied the Lathan II court, along with its briefs on appeal, a new draft EIS for the “Seattle Segment.” The court in La-than II declined to consider the adequacy of this document and remanded the matter to the district court. . METRO is the Municipality of Metropolitan Seattle, the public agency which operates the transit system in King County. . During the pendency of the appeal in Lathan II, a new action (Adler v. Brinegar) was filed seeking an injunction against the 1-90 project, alleging the same violations of NEPA, § 4(f) and § 128(a), as in the Lathan case. On defendants’ motion, the cases were consolidated for trial in the district court. . The plaintiffs were dismissed for failure to appear at depositions which the court had previously ordered them to attend. As a result, none of the original plaintiffs in the Lathan case remain (only the organizations included as plaintiffs/intervenors remain of the Lathan case) and only one individual plaintiff remains in the Adler case. . See footnote 3. . For a thorough discussion of § 4(f), including legislative history, see Gray, Section 4(0 of the Department of Transportation Act, 32 Md. L.Rev. 326 (1973). . Hereinafter, “§ 4(f) Analysis,” Volume IV: Environmental Analysis for 4(f) Determination. . It is not evident from the “§ 4(f) Determination” (see infra, note 13) nor the Decision Paper on 1-90, Seattle, Washington, by the Secretary of Transportation, September 20, 1978, what standard the Secretary applied, though we presume he applied a correct standard until the contrary is proven. The Secretary cites to the FEIS/§ 4(f) Analysis in his “§ 4(f) Determination” which further supports the conclusion he applied the standard there enunciated. It must be noted, the Decision Paper on 1-90 (hereinafter “Decision Document”) includes discussion of both § 4(0 and NEPA. As a result of this overlap, we look more closely at the “§ 4(0 Analysis" and the “§ 4(0 Determination” for resolution of the § 4(0 issues. . Department of Transportation, Federal Highway Administration Section 4(f) Determination, King County, Washington, Interstate Route 90 Freeway [September 7, 1978] (hereinafter “§ 4(f) Determination,” approved the project and found no feasible and prudent alternative to the use of certain land. This thirteen-page document further excludes from the conclusion of use, five sites that the Environmental Analysis for 4(f) Determination, vol. IV of the Final Envir. Impact/Section 4(f) Statement had included as used. FEIS, vol. IV at 161-163 (hereinafter, “§ 4(f) Analysis”). The Secretary concluded that the proposed 1-90 project would use: Sturgus Park, Judkins Playground, Luther Burbank Park, Lake Washington, Lacey V. Murrow Memorial Bridge and Plaza, Laurence J. Colman Elementary School and Playground, Colman Playground and Playground Building, Our Lady of Mount Virgin Church, LaTumer House, Mount Baker Ridge Tunnels, Residence at 1371 31st Avenue South, Apartment House at 2415 S. Irving Street, Residence at 2231 60th Avenue Southeast, Jeffrey Martine House, and the Residences at 8107 and 8115 Southeast 28th Street. The Secretary excluded Jose’ Rizal Park, Lincoln Landing Park, Sweyolocken Park, Residence at 1323 Hiaw.atha Place South and the Residence at 1409 Lakeside Avenue South. Both the district court and the appellants discuss the figure involving use as “21”— though the number found in vol. IV of the Final Envir. Impact/Section 4(f) Statement is 23 (the last site includes 2 residences). . Appellees assert appellants’ concern over irrelevant factors is confused because their support for the position comes from the “Decision Document” rather than the “§ 4(f) Determination." . This opinion should not be read broadly as commending the method of discussing alternatives employed here, but rather as a statement relating to the function of the appellate process and the responsibilities of the participants thereto. Absent support, bold assertions that factors considered were not truly unusual and therefore did not justify a conclusion of non-prudence, warrant little attention. . Additionally, the definition of a final EIS under 23 CFR § 771.3 states it is the same as the draft EIS, but includes “appropriate revisions to reflect comments received from circulation of the draft EIS and the public hearing process.” . 23 U.S.C. § 134 provides that proposed projects should be “based on a continuing comprehensive transportation planning process carried on cooperatively” by the State and local communities in the area, and that proposed projects take due consideration of their social, economic and environmental effects. Though this section is not part of NEPA, appellants bring the two together by asserting the inadequate transportation plan data was used in the EIS, though more current and accurate data was available.

Adler v. Lewis

SNEED, Circuit Judge, Concurring: I concur in the majority opinion, save for section II.B. With respect to it I concur in its result and add these observations. I. Under section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970), the Secretary of Transportation, as Judge Anderson points out, may not approve any highway project which uses parkland unless (1) there is no feasible and prudent alternative to the use of such land, and (2) the project includes all possible planning to minimize harm to the park resulting from its use. A project which does not take parkland by condemnation nonetheless may “use” the park, provided the proximity of the project to the park impairs its value in terms of its prior significance and enjoyment. Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir. 1976) (Hawaiian stone monument with religious significance); Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972) (alpine campground encircled by highway); D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971) (parkland under bridge over Potomac). Application of section 4(f), therefore, requires a three-part test: (1) Does the project use (either by actually taking or by impairing the significance and enjoyment of) a public park? (2) Is there a feasible and prudent alternative to such use (typically, not building the highway or choosing a different route)? (3) If there are no reasonable and prudent alternatives, does the project include all possible planning to minimize harm? II. APPLICATION TO 1-90 SEATTLEBELLEVUE CORRIDOR The Secretary here complied with the requirements of section 4(f). The Secretary’s “4(f) Analysis” properly determined that more than twenty of the fifty potentially protected sites would be “used” by the proposed highway. The Secretary’s “4(f) Determination,” when considered in conjunction with the planned “greenbelt,” adequately established that no feasible and prudent alternative to the proposed corridor exists, and that the project includes all possible planning to minimize harm to affected parkland. Although a small number of the more than twenty sites listed as “used” in the “4(f) Analysis” are not discussed in the “4(f) Determination,” the final Environmental Impact Statement, dated March 9, 1978, does in fact consider these sites rather exhaustively, and indicates that planning to minimize harm to them took place. The admonition that we must avoid “fly-speeking” environmental impact statements, Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc); Isle of Hope Historical Association, Inc. v. United States Army Corps of Engineers, 646 F.2d 215, 220 (5th Cir. 1981); Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 611 (9th Cir. 1981) (dissent); Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir. 1980), is also appropriate in this context. While the decision makers conducting the 4(f) review might have organized their analysis in a better manner, the documentation read as a whole requires that we affirm. The conclusion that all possible planning to minimize harm has been undertaken is strengthened by the fact that affirmative actions to enhance the project environmentally constitute a prominent feature of the project. The size, topography, and measures for revegetation incorporated in the planned greenbelt will greatly.mitigate the loss of parkland from the project. Together with other planning incorporated in the section 4(f) documentation, the conclusion that all possible planning to minimize harm is proper. Section 4(f) has been satisfied. . This prong gives section 4(f) teeth. An alternative is “feasible” unless “as a matter of sound engineering it would not be feásible to build the highway along any other route.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). A route is “prudent,” despite greater economic costs or community disruption, unless the costs or disruption reach “extraordinary magnitudes” or there are “truly unusual factors” present in a particular case. See id. at 413, 91 S.Ct. at 822. The reason that Overton Park makes it so difficult to uphold a finding that no “feasible and prudent alternative” exists is explained therein. Under usual circumstances, building a highway through a park will always be the least disruptive and cheapest route for the government. The purpose of section 4(f) is to protect parkland from highway use in spite of the “reasonableness” of such use in the absence of the statute. Id. at 411-13, 91 S.Ct. at 821-22. . See note 13 supra (majority opinion).

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