Datasets:

neelsurya

/

envirocases

like 0

Citizens' Committee to Save Our Canyons v. United States Forest Service

EBEL, Circuit Judge. This case centers around privately and publicly owned lands located in Northern Utah and the interactions between Defendant-Appellee United States Forest Service and Plaintiffs-Appellants Citizens’ Committee to Save Our Canyons, the Wasatch Mountain Club, William Thompson, and Gavin Noyes (collectively SOC) regarding development plans for the Snowbird Ski and Summer Resort. At issue is whether the Forest Service complied with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. § 1601 et seq., in carrying out two transactions involving Snowbird. In one transaction, the Forest Service approved, as part of a larger plan, the construction of large resort facility on Hidden Peak, a mountain owned by the federal government but used by Snowbird pursuant to a special use permit. In another transaction, the Forest Service transferred to Snowbird small fractions of-land in return for land adjacent to other federal property. Both of these transactions occurred while Snowbird was undertaking operations to improve its resort capacity. SOC alleges that the Forest Service’s handling of these transactions was arbitrary and capricious in several respects. It contends that the Forest Service authorized the land exchange (called the Interchange) without first giving sufficient public notice, and that the Forest Service did not receive an equal value of land in exchange. In addition, it argues the Forest Service did not consider a sufficient number of alternatives before authorizing the Hidden Peak structure. Finally, it claims the Forest Service improperly amended an existing forest plan to allow for the Hidden Peak building. The United States District Court for the District of Utah rejected SOC’s arguments, and, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I. Background Snowbird owns and operates a ski resort located twenty-five miles southeast of Salt Lake City, Utah. All parties agree that Snowbird is a ski resort of some significance, and during the 1998-99 ski season over 380,000 people visited the resort. The resort itself is comprised of 881 acres of private land (called the Mineral Basin) and 1,674 acres of public land located within the Wasatch-Cache National Forest (“WCNF”). In 1979, the Forest Service issued a special use permit to Snowbird that allowed the resort to establish ski operations on national forest land. Because of its special use permit, Snowbird is required to submit periodically a master development plan outlining its long-range plans for the resort and the public lands it utilizes. A. Master Development Plan In 1997, Snowbird submitted a master development plan (MDP) to the Forest Service. In the MDP, Snowbird proposed extensive changes to its resort operations. In addition to calling for a general upgrade in operations, increased snowmaking equipment, additional chair lifts, and improved hiking trails, the MDP proposed the construction of a 78,000 square-foot conference center and resort facility on an area known as Hidden Peak, which is within the public property Snowbird uses pursuant to a special use permit. The facility proposed by Snowbird would be considerably larger than the existing ski tram and 1,700 square foot ski patrol and skier service center currently located on Hidden Peak. Under Snowbird’s proposal, the new structure would essentially replace the two existing structures and would contain space for “a restaurant, lounge, meeting rooms, an interpretive area, retail space, ski patrol quarters, restrooms, snowcat garages, and a maintenance area.” In its MDP, Snowbird argued that the larger structure was needed because the limited nature of the existing Hidden Peak facilities adversely affected the resort in a number of ways. Ski and equipment rental offices, as well as restaurants, currently sit below Hidden Peak at the base of the resort, making Hidden Peak less amenable to skiers. In addition, although considered a world class facility in many regards, in recent years Snowbird has been unable to meet all the requests for its services and facilities. In 1997, for example, Snowbird turned away 19 percent of conference requests because of space limitations. The limited space on Hidden Peak also adversely affects activities across the resort, limiting skier circulation and making general use of the resort less efficient. Because Hidden Peak is located on land owned by the federal government, any substantial structures on the region require Forest Service approval, which, in turn, implicates NEPA. On May 17, 1997, the Forest Service began the NEPA process by announcing its intent to prepare an Environmental Impact Study (EIS) examining Snowbird’s proposal and by sending a scoping document, which outlined Snowbird’s proposal and solicited public comments to over 1,000 individuals and organizations. In addition, on July 19 and 30, 1997, Snowbird held a public open house to discuss its proposal. A year later, in October 1998, the Forest Service published a draft EIS (DEIS) that consolidated several possible courses of action, including a no-action alternative, the Snowbird-proposed 78,000 square-foot structure, a considerably smaller, 22,000 square-foot structure, and the preferred alternative, a middle-sized structure ranging from 22,000 to 50,000 square-feet. In addition to discussing the proposed alternatives, the Forest Service outlined, as required by NEPA, alternatives that it had analyzed but not considered in detail. These “rejected alternatives” included a proposal to locate the Hidden Peak development at a different resort area altogether and a proposal to maintain the current sized structure, though with internal upgrades. The Forest Service justified not examining these alternatives in detail on the grounds that they would not meet the needs identified in the MDP. In addition, the DEIS pointed out that the current Hidden Peak buildings violated an existing provision of the WCNF Forest Plan prohibiting structures that might interfere with mountain views from being built on Hidden Peak. An amendment to the existing Forest Plan, the DEIS. explained, would be necessary to accommodate any Hidden Peak structure, even the existing structures. On December 12, 1999, the Forest Service issued a final EIS (FEIS) and a Record of Decision (ROD) authorizing the construction of the Forest Service’s preferred alternative, which, among other things, authorized the construction of “a building not to exceed 50,000 square feet” and amended the existing Forest Plan to permit the structure. B. Mineral Interchange The proposal for a new structure on Hidden Peak specifically dealt with Snowbird’s proposed development on federal land. However, the MDP submitted by Snowbird also detailed activities it planned to undertake on its private land (land known as the Mineral Basin), regardless of whether the Hidden Peak structure received Forest Service approval. Within the Mineral Basin are relatively small fragments of federally owned land known as mineral survey fractions. In 1998, while the Forest Service studied Snowbird’s MDP and Hidden Peak proposals, Snowbird approached the Forest Service and asked it to enter a transaction known as an interchange (the Interchange). Under Snowbird’s proposed interchange, the Forest Service would give Snowbird the fractions of land it owned in the Mineral Basin in exchange for 6.71 acres of land known as the “War Eagle” property. The Forest Service eventually approved this transaction in December 1998. Because the Forest Service concluded that under existing regulations the transaction did not pose a significant risk of impacting the environment, it “categorically excluded” the Interchange from NEPA review. Conflicting surveys, however, left the exact size of the land transferred by the government unclear, with government surveys placing the size at 1.98 acres, but surveys by Snowbird suggesting .over nine acres may have been transferred by the Forest Service. Although the Forest Service was considering the Interchange while simultaneously studying the MDP, the DEIS issued by the Forest Service in October 1998 did not mention the Interchange, though the FEIS, issued a year later, did. The land received by Snowbird as a result of the Interchange took on added significance when Snowbird pressed forward with plans to develop the property it previously owned in the Mineral Basin. Prior to the Interchange, Snowbird owned the vast majority of land in the Mineral Basin. As part of its development plans for this property, Snowbird planned to construct two chairlifts (Mineral Lifts A and B), regardless of whether the Hidden Peak structure was approved or the Interchange occurred. Following the Interchange, however, Snowbird — which now owned all relevant land in the Mineral Basin — proposed an alignment for Mineral Lifts A and B that passed over land received from the Interchange. Had the Interchange not occurred, the chairlifts still could have been constructed, but their alignment would have been different. SOC, a nonprofit environmental group, soon challenged both the Interchange and the Hidden Peak structure. Initially, SOC filed an administrative appeal before the Forest Service. But on March 13, 2000, the Forest Service rejected this appeal, and SOC then filed suit in the district court on May 3, 2000. On July 27, 2000, the district court granted Snowbird’s motion to intervene as a defendant. Before the district court, SOC alleged that the Forest Service violated NEPA in several respects. First, it contended that the Forest Service violated NEPA by amending the Forest Plan and approving the Interchange without public comment. Second, it claimed that the Forest Service did not consider an appropriate range of alternatives when examining the Hidden Peak structure. Specifically, SOC argued that the Forest Service should have examined in more detail either constructing a facility smaller than 22,000 feet or not building a structure on Hidden Peak at all. Third, it asserted that the Forest Service acted arbitrarily and capriciously by not considering the Interchange and MDP/Hidden Peak proposal in a single .EIS. In addition, SOC contended that the Forest Service acted arbitrarily and capriciously in classifying its amendment to the Forest Plan as “nonsignificant.” SOC also claimed the Forest Service acted arbitrarily and capriciously when going forward with the Interchange because the Forest Service used inaccurate surveys in assessing the value of the land. On April 10, 2001, the district court rejected SOC’s arguments. In particular, it concluded that: the Forest Service properly classified the Interchange as being categorically excluded from NEPA review; the Interchange and MDP were not connected actions; the Forest Service did not act arbitrarily and capriciously in concluding that the interchanged parcels were of approximately equal value; the Forest Service considered a sufficient range of alternatives when looking at the Hidden Peak project; and the Forest Plan amendments allowing for the Hidden Peak structure could be construed as nonsignificant. Following the district court’s order, SOC filed a motion with this court seeking an injunction pending appeal. SOC specifically asked that this court enjoin any construction in the Mineral Basin that might impact land transferred in the Interchange and enjoin all construction on Hidden Peak. As to the Mineral Basin, this court ruled that construction in the Mineral Basin area could continue, so long as there was “no surface disturbance of the mineral sliver underlying the lift cable.” Because Snowbird stipulated it would not begin construction on the Hidden Park building during the pendency of this appeal, we enjoined construction on that facility. The court also granted Snowbird’s request for an expedited appeal. C. Standard of Review We apply “a deferential standard” when reviewing the Forest Service’s actions, reversing only if its actions are “arbitrary, capricious, otherwise not in accordance with the law, or not supported by substantial evidence.” Hoyl v. Babbitt, 129 F.3d 1377, 1382 (10th Cir.1997); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). We give no deference, however, to the district court’s decision, which we review de novo. Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.1989). II. The Interchange SOC challenges the Forest Service’s handling of the Interchange on a number of grounds. First, SOC alleges that the Forest Service acted arbitrarily and capriciously by concluding that the Interchange qualified for a “categorical exclusion” exempting NEPA review. In particular, SOC contends that the Forest Service 1) failed to adequately explain its basis for subjecting the Interchange to a categorical exclusion and 2) misapplied the categorical exclusion it invoked. Second, SOC asserts that the Forest Service did not adequately notify interested and affected parties before implementing the Interchange. Finally, SOC argues that the Interchange was arbitrary and capricious because the land received by the Forest Service in the exchange was not approximately equal to the land it gave up. The district court rejected all of SOC’s claims, and we affirm. A. Categorical Exclusion 1. NEPA Overview Before turning to SOC’s categorical exclusion argument, it is important to understand, generally speaking, the role categorical exclusions play in the larger NEPA framework. The Supreme Court has noted that the National Environmental Policy Act has “twin-aims.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983): First, NEPA forces government agencies to “consider every significant aspect of the environmental impact of a proposed action.” Id. (internal quotation marks omitted). Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts. Id.; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (observing that NEPA “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision”). This circuit and the Supreme Court have repeatedly emphasized, however, that NEPA does not mandate any particular substantive outcome. See Robertson, 490 U.S. at 350, 109 S.Ct. 1835; Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1034 (10th Cir.2001); Comm. to Preserve Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1554 (10th Cir.1993). As we recently observed, “[NEPA] does not require agencies to elevate environmental concerns over other appropriate considerations ... it requires only that the agency take a ‘hard look’ at the environmental consequences before taking a major action.” Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1207 (10th Cir.2002); see also Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th Cir.1997) (discussing hard look requirement). When a government agency prepares to take an action “significantly affecting the quality of the human environment,” this “hard look” at potential environmental impacts is accomplished through an EIS. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4. An EIS is a detailed document that identifies the potential impacts a proposal may have.on the environment. Friends of the Bow, 124 F.3d at 1213. Within the EIS, the government agency must discuss the purpose and need for the proposed action, environmental impacts resulting from the actions, unavoidable adverse environmental impacts, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and the amount of resources that must be devoted to the proposed action. 42 U.S.C. § 4332(2)(C)(i)-(v); 40 C.F.R. § 1502.10. The preparation of an EIS occurs in several stages. Initially, an agency announces its intent to study a proposed action through a process called scoping, during which the agency solicits comments and input from the public and other state and federal agencies with the goal of identifying specific issues to be addressed and studied. 40 C.F.R. § 1501.7. After assessing the input from the scoping process, the government then prepares a draft Environmental Impact Statement (DEIS), id. § 1502.9(a), which is then presented to the public and other government agencies for notice and comment. Id. § 1503.1(a). After evaluating the feedback received during the notice and comment process, the agency prepares a FEIS. Id. § 1502.9(b). If after preparing either a DEIS or FEIS, the proposed action substantially changes in a way “relevant to environmental concerns,” or if new information comes to light about environmental impacts, an agency must prepare a supplemental EIS (SEIS). Id. § 1502.9(c)(1). Prior to deciding to prepare an EIS, however, an agency may prepare a less detailed document called an Environmental Assessment (EA). See id. § 1508.9. An EA is used by an agency to decide “whether to prepare an environmental impact statement or a finding of no significant impact.” Id. 1508.9(a)(1). If, after completing an EA, an agency properly determines that a proposed project will not significantly impact the human environment, then the government agency issues a finding of no significant impact (FONSI) and the action may proceed, subject to administrative and judicial review. See Friends of the Bow, 124 F.3d at 1214; Comm. to Preserve Boomer Lake, 4 F.3d at 1554; see also Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1160 (9th Cir.1998) (describing the interaction between an EIS, EA, and FONSI.) In certain circumstances, however, an agency need not follow the detailed NEPA procedures described above. Under regulations promulgated by the Council on Environmental Quality (CEQ), an agency is not required to prepare either an EIS or EA if the proposed action does not “individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4. By and large, the federal regulations delegate to individual agencies the responsibility for defining what type of actions may be categorically excluded from NEPA review. See 40 C.F.R. § 1507.3(b)(2)(ii) (requiring agencies to set “[s]pecific criteria” for what actions “normally do not require either an environmental impact statement or an environmental assessment”); West v. Sec’y. of the Dep’t. of Transp., 206 F.3d 920, 927 (9th Cir.2000); Rhodes v. Johnson, 153 F.3d 785, 788-89 (7th Cir.1998). Once an agency establishes categorical exclusions, its decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious. Friends of Richards-Gebaur v. Fed. Aviation Admin., 251 F.3d 1178, 1187 (8th Cir.2001); Alaska Ctr. for the Env’t. v. United States, 189 F.3d 851, 857 (9th Cir.1999); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir.1996). When reviewing an agency’s interpretation and application of its categorical exclusions under the arbitrary and capricious standard, courts are deferential. Alaska Ctr., 189 F.3d at 857 (“We agree [with the Fourth and Fifth Circuits] that an agency’s interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms uses in the regulations.”); Rhodes, 153 F.3d at 789 (characterizing the “Forest Service’s interpretation of its own implementing procedures [for categorical exclusions] as Forest Service regulations” entitled to “substantial deference”); W. Houston Air Comm. v. Fed. Aviation Admin., 784 F.2d 702, 705 (5th Cir.1986); City of Alexandria v. Fed. Highway Admin., 756 F.2d 1014, 1020 (4th Cir.1985) (“So long as no project required to be included under the statute is excluded under the regulations, we should defer to the agency’s interpretation of its own regulations.”). 2. “Essentially The Same” Categorical Exclusion In this case, the Forest Service, pursuant to its authority under 40 C.F.R. § 1507.3(b)(2)(ii), concluded that the Interchange fell within a categorical exclusion exempting land exchanges from NEPA review “where resulting land uses remain essentially the same.” Forest Service Handbook (FSH) 1909.15 § 31.1b(7). SOC first challenges the Forest Service’s decision to invoke this categorical exclusion on the grounds that the agency did not explain its basis for concluding that the Interchange fell within the “essentially the same” category. The record, however, suggests that the Forest Service did issue a decision memo in this case explaining its actions, and, in any event, the record explains the Forest Service’s reasoning in concluding that the interchanged land was essentially the same and thus qualified for the categorical exclusion. We find no merit to SOC’s argument in this regard. SOC also contends that the administrative record fails to support the Forest Service’s decision to classify the Interchange as falling within the “essentially the same” categorical exclusion. According to SOC, prior to the Interchange, the government’s lands were relatively undeveloped. Following the Interchange, however, the federal lands were incorporated into a bustling and burgeoning ski resort, SOC argues. In deciding to go forward with the Interchange, however, the Forest Service rejected this “development” argument, and its reason for doing so is sufficiently supported by the record to prevent reversal under an arbitrary and capricious standard of review. It noted that the existing federal lands were already subject to skiing activity, and, therefore, transferring ownership to Snowbird would not alter its essential use or character. Indeed, according to the Forest Service’s assessment, “Prior to the interchange, the federal parcels were undeveloped and proposed to remain undeveloped after the interchange ... Backcountry skiers have used Mineral Basin for years.” The Forest Service also noted that, regardless of whether the Interchange occurred, Snowbird intended to develop the surrounding Mineral Basin properties, which constituted the vast majority of land in the Basin and which already engulfed the federal tracts subject to the Interchange. Consequently, irrespective of whether the Interchange transpired, the federal lands would be surrounded by development. Given these facts, we cannot conclude that the Forest Service acted arbitrarily or capriciously when it concluded that activity on the federal lands exchanged in the Interchange would remain “essentially” the same. B. Notice of Interchange SOC devotes a substantial portion of its brief to challenging the notice the Forest Service provided to the public and interested parties once it decided to implement the Interchange. SOC correctly points out that, under applicable regulations, “If a proposed action has been categorically excluded from documentation in an EIS or an EA ... [,] interested and affected persons must be informed in an appropriate manner of the decision to proceed with the proposed action.” FSH 1909.15 § 32.1. We find SOC’s claim that these guidelines were violated unconvincing. SOC invokes a number of different arguments to challenge the notice provided by the Forest Service. First, SOC points out that the Forest Service and Snowbird never revealed the pending interchange, even while soliciting comments on the MDP and preparing the extensive DEIS. SOC further alleges that, according to public statements in the DEIS, only private land would be impacted by the towers and lines between the towers for Mineral Lifts A and B, when, in fact, a portion of the lines would span over land transferred to Snowbird by the federal government as part of the Interchange. Moreover, by not informing interested parties, SOC contends the Forest Service violated existing FSH guidelines. To the extent SOC claims it did not receive notice of the Interchange either before or after it was formally implemented, its argument is undercut by the record, which strongly suggests that SOC learned that the Forest Service was considering the Interchange during the July 6, 1998 meeting between Snowbird and representatives from the SOC and the Sierra Club. A letter from a Snowbird official to a Forest Service supervisor, describing what occurred at the meeting, for example, explains that one of the “primary” reasons the meeting was held was to “inform SOC about the land exchange of mineral fractions” and notes a “considerable amount of time was taken to detail the location and acreage of the mineral fractions ... in Mineral Basin.” In addition, it is undisputed that once the Forest Service formally decided to implement the Interchange, the Forest Service mailed a copy of its decision to an officer of SOC. Although SOC now asserts that the officer did not actually receive the copy because he moved, there is no evidence in the record suggesting that SOC informed the Forest Service of the officer’s new address or that the letter was returned to the Forest Service. Yet even if these steps were not adequate to apprise SOC of the action, the record demonstrates that SOC learned, in fact, of the Interchange and protested the action. (See Letter from SOC to Jack Craven, United States Forest Service Director of Lands, dated Nov. 4, 1999.) Under these circumstances, we do not believe that SOC has shown that it has suffered any injury from the alleged lack of notice about the Interchange, and we cannot conclude that the notice provided to SOC was arbitrary or capricious under the FSH guideline, to which we give considerable deference. Having received notice of and protested the Interchange, SOC’s argument essentially amounts to a claim that other interested members of the public did not receive notice. SOC, for instance, devotes a large portion of its argument to contending that the Forest Service failed to inform the “general public of the land exchange” during the DEIS process and did not make a general public announcement of the Interchange after deciding to implement the decision. We have explained, however, that the doctrine of prudential standing requires that even a plaintiff who meets the constitutional requirements for standing must also assert “its own rights, rather than those belonging to third parties.” Sac, Fox Nation v. Pierce, 213 F.3d 566, 573 (10th Cir.2000) (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Moreover, a plaintiff cannot assert “a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens.” Warth, 422 U.S. at 499, 95 S.Ct. 2197. Here, SOC’s generalized claims that the Forest Service failed to provide adequate notice to the public appear to fall below the prudential standing threshold. See Martin v. Occupational Safety & Health Review Comm’n, 941 F.2d 1051, 1058 (10th Cir.1991) (“CF & I’s advance notice of the Secretary’s interpretation is fatal to its due process claim because CF & I lacks standing to challenge the regulation on behalf of others without notice.”). Even assuming that SOC could overcome the constitutional and prudential standing obstacles facing this argument, it would lose on the merits, for the record demonstrates that “interested and affected parties,” such as adjacent landowners and state and local officials, were notified in advance that the Forest Service was considering implementing the Interchange and asked to comment on the proposal. Further, after the Forest Service decided to implement the Interchange, these same individuals received a copy of a decision memo approving the Interchange. In light of these actions, we cannot conclude that the Forest Service acted in an arbitrary or capricious manner. C. Value of Interchanged Lands Finally, SOC claims that, regardless of whether the Forest Service complied with the categorical exclusion requirements, the Forest Service acted arbitrarily and capriciously in authorizing the Interchange because it relied on inaccurate data when approximating the value of the mineral fractions it transferred to Snowbird. Specifically, SOC alleges that the Forest Service relied upon inaccurate survey data that estimated the Forest Service was only exchanging 1.98 acres of land, when, in reality, SOC argues, a survey by Snowbird indicated that the Forest Service was exchanging 9.39 acres of “developa-ble land” for 6.71 acres of land. In addition, SOC argues that the land received by the Forest Service in the Interchange was a “dump” and unsafe for public use. We find SOC’s claims unavailing. The Small Tracts Act authorizes the federal government to interchange National Forest System land with a private party, as long as the interchanged lands are “of approximately equal value.” 16 U.S.C. § 521d. As federal regulations explain, one of the purposes of allowing the interchange of mineral fractions—the type of land at issue in this case—is to allow the government to “resolve land disputes and management problems” associated with federal lands. 36 C.F.R. § 254.30. When deciding whether mineral fractions may be interchanged, the federal regulations require the Forest Service to engage in a two-step process. The Service must first determine that the mineral fractions have specific characteristics allowing them to be interchanged. In order to qualify for an interchange, the Forest Service must conclude that the land “[c]annot be efficiently administered because of size, shape, or location,” that the land is or could be occupied by adjoining land owners, and that if sold “separately or aggregated in one transaction,” the land “do[es] not exceed 40 acres.” Id. § 254.34(a)(1)-(3). Once it is established that the mineral fractions may be conveyed, the Forest Service must examine three criteria to decide if the land should be conveyed. First, the Forest Service must consider whether the “mineral fractions are interspersed among and are more or less an integral part of private land holdings.” Id. § 254.34(b)(1). Second, the Forest Service must consider whether it would be too costly to survey the property in order to develop an effective management plan. Id. § 254.34(b)(2). And third, the Forest Service must examine how the parcels to be interchanged will affect the land within which they are interspersed. Id. § 254.34(b)(3). Any land that is interchanged cannot exceed $150,000 in value, and all interchanges must be in the “public interest.” Id. § 254.35(c),(e). Federal regulations also offer guidance at to what constitutes “approximately equal value” in an interchange. Id. § 254.42. As defined by the relevant regulation, “Approximately equal value is a comparative estimate of value of lands involved in an interchange where elements of value, such as physical characteristics and other amenities, are readily apparent and substantially similar.” Id. § 254.31. The regulations indicate that the Forest Service should consider the “size, shape, location, physical attributes, functional utility, proximity of other similar sites, and amenities in the immediate environs.” Id. § 254.42. However, because interchanges usually involve land that is relatively small in size, interchanges do not require “a formal appraisal.” Id. § 254.31. Considering these regulations in light of the Interchange at issue in this case, we cannot conclude that the Forest Service’s determination that the exchanged lands were of approximately equal value was arbitrary or capricious. To the extent SOC attacks the surveys the Forest Service relied upon in determining “approximately equal value,” its argument ignores the general rule that courts defer to “the expertise and discretion of the agency to determine proper testing methods.” Sierra Club v. United States Dep’t. of Transp., 753 F.2d 120, 128 (D.C.Cir.1985); see also Custer County Action Ass’n, 256 F.3d at 1036 (noting that the “the mere presence of contradictory evidence does not invalidate” an agency determination) (internal quotation marks omitted); Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.1993) (noting that NEPA does not require a court to resolve disputes among competing scientific schools). Moreover, the record in this case does not support the claim that the Forest Service acted arbitrarily or capriciously in conducting the Interchange. For instance, the Forest Service’s Decision Memo concerning the Interchange recognized that discrepancies existed over the exact size and shape of the parcels at issue. The record also demonstrates that the Forest Service knew Snowbird’s survey estimated that the federal mineral fractions were substantially larger than surveys conducted by the Bureau of Land Management, but reasoned that the “cost of doing a field survey would far exceed the value of the mineral fractions and in some ways defeat the Small Tracts Act with regard to mineral fractions.” At the same time, however, it recognized that it could not rely upon Snowbird’s survey, as that survey was not considered ’ “official.” See 36 C.F.R. § 254.43 (setting standards for surveys Forest Service may use). To remedy this problem, the Forest Service chose to interchange all the mineral fractions surrounded by Snowbird, a process that is apparently relatively common where mineral fractions are involved. The alternative, explained Forest Service officials, would be too costly, especially because the mineral fractions in dispute “[were] small, mostly located on steep terrain and surrounded by private lands, and largely inaccessible to the public.” Given that SOC does not contest that the mineral fractions at issue were worth less than $150,000 and difficult to manage, and given that the Forest Service was aware that it could be interchanging as much as nine acres of land, the Forest Service’s actions cannot be considered arbitrary or capricious. SOC’s additional claim that the Interchange did not involve land of approximately equal value because the property received by the government was a “dump” and “dangerous” simply overstates the record. The documents cited by SOC—a 1992 study reveal that the “dangerous condition”-a mining shaft—was closing in on itself and would likely be closed within one to two years. The “debris” referenced by SOC likely came, again according to the document Snowbird cites, from a mining camp that closed in the early 1900s, and this debris was labeled as having potential “cultural interest.” In addition, the same study suggested that the property was being used for recreational and hunting activities and found no hazardous materials on the site. When these facts are combined with the Forest Service’s conclusion that the land received by the Forest Service “adjoins other public land and is of a size, shape, and location which would facilitate public use of this and surrounding National Forest System lands,” we do not find that the Forest Service acted arbitrarily or capriciously. Accordingly, for all the foregoing reasons, we reject SOC’s challenges to the Forest Service’s decision to implement the Interchange. III. Interchange and the MDP SOC contends the Forest Service violated NEPA because the Interchange and the proposals outlined in the MDP were “connected actions” that should have been considered in a common EIS. CEQ regulations require that “connected” or “closely related” actions “be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(1). One of the primary reasons for requiring an agency to evaluate “connected actions” in a single EIS is to prevent agencies from minimizing the potential environmental consequences of a proposed action (and thus short-circuiting NEPA review) by segmenting or isolating an individual action that, by itself, may not have a significant environmental impact. See Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1108 (9th Cir.2000); Northwest Res. Info. Ctr., Inc. v. Nat'l. Marine Fisheries Serv., 56 F.3d 1060, 1068 (9th Cir.1995); see also Hirt v. Richardson, 127 F.Supp.2d 833, 842 (W.D.Mich.1999) (discussing how the “connected action” regulation is one part of a larger “ ‘impermissible segmentation’ rule”); David R. Mandelker, NEPA Law and Litigation § 9.04(2) (West 2001) (discussing how the connected action regulation addresses segmentation problems). Under the applicable regulations, an action will be considered “connected” or “closely related” with other actions in three situations: 1) the action automatically triggers another action requiring an environmental impact statement; 2) the action “cannot or will not proceed unless other actions are taken previously or simultaneously;” or 3) the action is an “interdependent part[ ]” of a larger action and depends on that larger action for its justification. 40 C.F.R. § 1508.25(a)(1)(i)-(iii); see Thomas F.P. Sullivan, ed. emeritus, Envt’l Law Handbook 510 (16th ed., Government Institutes 2001). Often, courts find two proposed actions connected where one action could not occur but for the occurrence of the other. Compare, e.g., Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985) (finding sale of timber and construction of road necessary to access the timber to be connected actions requiring a single EIS) with Northwest Res. Info. Ctr., 56 F.3d at 1069 (finding transportation and flow improvement plans could exist without one another). By contrast, we recently explained that, “[p]ut simply, projects that have independent utility are not connected actions under 40 C.F.R. § 1508.25(a)(1)(iii).” Custer County Action Ass’n, 256 F.3d at 1037 (internal quotation marks omitted); see also Wetlands Action Network, 222 F.3d at 1118 (“[W]e have rejected claims that actions were connected when each of the two projects would have taken place with or without the other and thus had independent utility.” (internal quotation marks omitted)); South Carolina v. O’Leary, 64 F.3d 892, 899 (4th Cir.1995) (holding that actions are not “connected” when they are “independent and separable”). In this case, the record indicates that the MDP and the Interchange were sufficiently independent that they cannot be considered connected actions. According to the record, “only a negligible portion of the land [in the Mineral Basin] is in the National Forest System.” The record suggests that Snowbird, with interest in the overwhelming majority of Mineral Basin land, would have developed this area regardless of whether the Interchange occurred. Had the Interchange not occurred, for example, Snowbird could have simply shifted the alignment of Mineral Lifts A and B to avoid crossing over the federal lands. Similarly, according to the record, the “scattered nature and small size” of mineral fractions meant that the “alignment of the lifts and roads could avoid any federal parcels.” Moreover, the record suggests that “the need and the appropriateness of the interchange [was] not dependent on what Snowbird plan[ned] to do with the private property because the scattered mineral fractions were difficult and impractical to manage.” Indeed, the Forest Service indicated in the administrative record that it “would have entertained other possibilities to interchange these fractions had any been proposed.” Consequently, on the record before us, the Interchange and the MDP do not satisfy the regulatory definition for “connected” actions. IV. Consideration of Alternatives SOC also challenges that Forest Service’s EIS for not considering an appropriate number of alternatives when evaluating Snowbird’s proposal for erecting a new Hidden Peak facility. SOC attacks the Forest Service’s actions through a two-prong argument. First, SOC contends that the Forest Service inappropriately read the EIS’s statement of purpose as focusing exclusively upon building a structure on Hidden Peak. Second, having made this error, SOC alleges, the Forest Service then failed to evaluate the possibility of building a smaller structure on Hidden Peak or, alternatively, placing facilities off peak. We disagree. A. Standards One of the key provisions of NEPA and its corresponding regulations is that government agencies must “include in every recommendation or report on proposals” detailed statements analyzing “alternatives to the proposed action.” 42 U.S.C. § 4332(c)(iii). According to CEQ regulations, considering alternative actions “is the heart of the environmental impact statement.” 40 C.F.R. § 1502.14; see also All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir.1992). As a result, agencies must “[Vigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14. “To comply with the National Environmental Policy Act and its implementing regulations, [agencies] are required to rigorously explore all reasonable alternatives ... and give each alternative substantial treatment in the environmental impact statement.” Custer County Action Ass’n, 256 F.3d at 1039; see also Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999) (explaining reasonable alternatives). Not only must an agency “rigorously explore and objectively evaluate all reasonable alternatives,” agencies must also “briefly discuss the reasons” for having eliminated other alternatives. 40 C.F.R. § 1502.14(a). As court opinions and the CEQ regulations make clear, however, an agency is only required to consider “reasonable alternatives.” Id. § 1502.14. In determining whether an agency considered reasonable alternatives, courts look closely at the objectives identified in an EIS’s purpose and needs statement. See Colo. Envtl. Coalition, 185 F.3d at 1174-75. Where the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give substantial weight to the goals and objectives of that private actor. See City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1506 (D.C.Cir.1994); La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985). Nevertheless, courts will not allow an agency to define the objectives so narrowly as to preclude a reasonable consideration of alternatives. Davis v. Mineta, 302 F.3d 1104 (10th Cir.2002) (holding that a statement of objectives would be unreasonably narrow if it would permit only one particular crossing across a river in order to improve traffic flow). Once an agency appropriately defines the objectives of an action, “NEPA does not require agencies to analyze ‘the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective.” All Indian Pueblo Council, 975 F.2d at 1444 (quoting City of Aurora v. Hunt, 749 F.2d 1457, 1467 (10th Cir.1984)). Instead, we apply a “rule of reason test” that asks whether “the environmental impact statement contained sufficient discussion of the relevant issues and opposing viewpoints to enable the Forest Service to take a hard look at the environmental impacts of the proposed expansion and its alternatives.” Colo. Envtl. Coalition, 185 F.3d at 1174. Alternatives that “do not accomplish the purpose of an action are not reasonable” and need not be studied in detail by the agency. Custer County Action Ass’n, 256 F.3d at 1041. B. Alternatives In this case, SOC does not directly challenge the Forest Service’s stated objectives in evaluating Snowbird’s overall master development plan, which included upgrading or replacing outdated facilities, improving circulation throughout the resort, balancing and making more efficient terrain use, and maintaining a “vigorous forest” and “quality recreational experience.” Rather, SOC argues that the Forest Service inappropriately restricted the range of alternatives it considered by not fully exploring alternatives that could have accomplished these goals without requiring a large structure on Hidden Peak. All the Forest Service proposals, SOC contends, contained “colossal structure!»” that would dwarf the existing Hidden Peak structures and obstruct the view of Hidden Peak. The Forest Service, however, considered alternatives that had differences in size spanning over 56,000 square feet. Besides the no-action alternative, which would have left the smaller existing structures in place with minor alterations, it considered a 22,000 square foot structure, Snowbird’s proposal for a 78,000 square foot building, and the preferred alternative, which called for a structure ranging between 22,000 square feet and 50,000 square feet. Contrary to SOC’s claim, the Forest Service did not breach the “rule of reason” by refusing to study in detail alternatives that would have limited the structure’s size to between 1,600 square feet and 22,000 square feet or moved the structure off-peak altogether. See Colo. Envtl. Coalition, 185 F.3d at 1174. As the record illustrates, proposals calling for smaller structures on Hidden Peak, or removing the Hidden Peak structure to another location altogether, were impractical and failed to satisfy the objectives of the project, which, again, were to improve the recreational use in the area while balancing environmental interests. See Custer County Action Ass’n, 256 F.3d at 1041. Evidence in the record suggests, for example, that moving the structure to nearby resort areas could have interfered with site-specific plans governing those regions, and that developing another resort would have undercut the investment at Snowbird already made by the Forest Service. According to documents in the record, locating skier services at the base of the resort or in the mid-mountain region, as opposed to the mountain’s peak, would not have improved skier circulation, particularly because Hidden Peak is at the center of activity on the mountain and feeds Snowbird’s three primary skiing areas, nor would it have met the need to respond to user desires, nor were there available feasible alternative locations. Finally, there is some suggestion in the record that placing the structure at the base of the mountain or in the mid-mountain region could create additional negative visual impacts. Likewise, building a structure underground (so as to avoid impairing the ridge line altogether), the Forest Service noted in its analysis, would generate substantially greater adverse environmental effects than any of the proposed alternatives, and was not regarded as technologically or economically feasible. The Service also reasoned that by building on a site where structures already exist, it could minimize environmental impacts in other regions. Indeed, even in its filings before the district court, SOC appeared to recognize that placing a structure on Hidden Peak was not, per se, objectionable. SOC emphasized, for example, that it was fully prepared to accept a 7,000 square foot structure on the Peak. Additionally, the Forest Service concluded that anything smaller than 22,000 square foot structure would not “meet skier needs,” thereby negating the proposal’s goal of increasing efficiency and recreational balance in the area. Having reviewed the record, we cannot conclude that the Forest Service’s finding on this score was arbitrary or capricious. See Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1181 & n. 13 (9th Cir.2000); Colo. Envtl. Coalition, 185 F.3d at 1175. Nor did the Forest Service’s consideration of the various alternative structures ignore, as the SOC’s argument at times implies, the impact that placing a structure on Hidden Peak would have upon views of the mountain. As maps in the record demonstrate, the Service analyzed in detail how the proposed structures, including the no-action alternative, which would have left the existing structures on the mountain, would have affected the views of Hidden Peak. The Forest Service concluded that the building proposed in the preferred alternative, even though much larger than the existing structures on Hidden Peak, could blend in better with Hidden Peak’s ridge line and “could potentially improve the visual impact of the peak.” Given that the existing box-shaped structure, which was constructed in 1971, simply sits atop Hidden Peak, while the proposed structure, though larger, would be rounded to blend in with the contour of the Peak, we cannot find the Forest Service’s conclusion arbitrary or capricious. Custer County Action Ass’n, 256 F.3d at 1029-30. Accordingly, we reject SOC’s claims that Forest Service considered an impermissible range of alternatives. V. Amendment to the Forest Plan Finally, SOC challenges the Forest Service’s decision to amend the Wasatch-Cache Forest Plan to allow for the construction of a structure on Hidden Peak. Specifically, SOC contends that the Forest Service did not give adequate notice to the public in amending the Forest Plan. SOC further argues that the Forest Service ignored or misapplied relevant factors when characterizing its proposed amendment as nonsignificant. We disagree. A. Procedures NFMA provides that once enacted, forest plans may “be amended in any manner whatsoever.” 16 U.S.C. § 1604(f)(4). If an amendment to a forest plan would be “significant,” however, then NFMA mandates substantial public involvement, planning, and input, requiring, in essence, the Forest Service “to conduct the same complex planning process applicable to promulgation of the original plan.” Sierra Club v. Cargill, 11 F.3d 1545, 1551 (10th Cir.1993) (Seymour, J., dissenting); see 36 C.F.R. § 219.10(f). Among other things, for significant amendments, NFMA requires the Forest Service to “mak[e] plans or revisions available to the public at convenient locations in the vicinity of the affected unit for a period of at least three months before final adoption.” 16 U.S.C. § 1604(d). Neither NFMA, nor its accompanying regulations, specify what constitutes a “significant” amendment to a forest plan. See Cargill, 11 F.3d at 1548 (noting that regulations give “little guidance as to when a change is significant”). Indeed, applicable regulations “expressly commend[ ] the determination of the significance of an amendment to the Forest Supervisor’s judgment.” Id. According to the regulations, “Based on an analysis of the objectives, guidelines, and other contents of the forest plan, the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan.” 36 C.F.R. § 219.10(f) (emphasis added). If the Forest Supervisor concludes that an amendment is nonsignifi-cant, “[he] may implement the amendment following appropriate public notification and satisfactory completion of NEPA procedures.” Id. (emphasis added). Although the Forest Supervisor has wide discretion in deciding whether an amendment is significant, the FSH outlines factors the Supervisor must consider when assessing the significance of a proposed amendment, including 1) the timing of the proposed change relative to the expiration or next scheduled revision of the Forest Plan (the shorter the remaining life of the plan, the less significant the amendment); 2) “the location and size of the area involved in the change” in comparison to the “overall planning area”; 3) the long-term significance of the project relative to the goals and objectives of the forest plan; and 4) the impact of the amendment on “management prescription” — whether the change applies only to a specific situation or whether it likely will affect future decisions as well. FSH 1909.12 § 5.32(3)(a)-(d). Like the other issues in this case, when reviewing whether an agency properly classified an action as nonsignificant, we will only reverse the agency’s classification if it “is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Cargill, 11 F.3d at 1548. B. Notice SOC alleges that the Forest Service breached its duty under NFMA to notify the public before instituting the amendment. Specifically, SOC charges that the Forest Service only gave notice of the amendment “for the first time” in the FEIS and Record of Decision (ROD) announcing the construction of the Hidden Peak structure. SOC asserts that this announcement violated NEPA and NFMA because it denied the public an opportunity to “comment” on the proposed amendment. Additionally, SOC contends that previous allusions to the possibility of amending the Forest Plan were “merely vague references to a potential future action that gave the public no idea of the scope or nature of the purportedly impending Forest Plan amendment.” We find SOC’s argument unpersuasive. SOC is correct in asserting that NFMA requires public notice for any amendment, significant or otherwise. Forest Guardians v. Thomas, 967 F.Supp. 1536, 1561 (D.Ariz.1997). It is debatable, however, how “public” this notice must be before the Service implements a nonsignificant amendment. SOC is unable to point to any specific language either in the FSH, NFMA, or NEPA expressly requiring that the specific language of a nonsignificant amendment be published before the Forest Service implements the amendment. While NFMA speaks in terms of “public notice,” 16 U.S.C. § 1604(f)(4), and the regulations speak of “public notification,” 36 C.F.R. § 219.10(f), these terms do not, in themselves, necessarily mandate “public comment,” and, as discussed when considering categorical exclusions, public comment is not required to satisfy all NEPA procedures. We need not resolve, however, the precise contours of the Forest Service’s notice obligations in this context, for applying the deferential arbitrary and capricious standard of review, we find that NEPA’s disclosures during the DEIS process provided sufficient notice and opportunity for public comment. During this process, for instance, the Forest Service discussed how any structure on Hidden Peak would violate existing Forest Plan guidelines and would require “[a] WCNF Forest Plan amendment to the site’s [Visual Quality Objective].” Additionally, even under the no-action alternative, an amendment would be required because the existing Hidden Peak structures violated the Forest Plan’s guidelines, the document explained. Moreover, by placing the discussion of the amendment in the DEIS, the Forest Service gave the general public an opportunity to comment on the proposed amendment. See 40 C.F.R. § 1503.1(a) (explaining agencies’ duties to invite and to respond to public comments on draft environmental impact statements). Under these circumstances, we believe the Forest Service supplied sufficient notice to the public of the proposed amendment. C. Significance of Amendment SOC also argues that the Forest Service did not analyze adequately the factors identified in the FSH as relevant to deciding whether an amendment is significant. It is true, as SOC argues, that the ROD’S explicit discussion of the amendment’s significance was relatively terse: We have concluded that this is a nonsignificant amendment to the Forest Plan because the affected area (one small area, about 160 acres, adjacent to Snowbird’s permit area and a mountain peak within the current permit area visible from certain viewpoints in the area) is a very limited area in the context of the overall planning area (the WCNF). In addition, the change does not alter the long-term relationship between levels of goods and services projected by the Forest Plan nor change the desired future condition of the land. SOC’s argument mistakenly assumes that the Forest Service’s amendment can be found arbitrary and capricious because the ROD did not indicate expressly that it was applying the factors outlined in the FSH. As the Seventh Circuit has explained, however, a court reviewing an agency’s decision under the arbitrary and capricious standard “ ‘is to uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ ” Bagdonas v. Dep’t of Treasury, 93 F.3d 422, 426 (7th Cir.1996) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)), and the court concludes “ ‘that the agency examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’ ” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962))); cf. Double J. Land & Cattle Co. v. United States Dep’t of Interior, 91 F.3d 1378, 1383 (10th Cir.1996) (“When an agency makes a decision, the grounds upon which the agency acted must be clearly disclosed in, and sustained by, the record.” (internal quotation marks omitted)). Although we will not “supply[ ] a reasoned basis for the agency’s action that the agency itself has not given,” Rapp v. United States Dep’t of Treasury, 52 F.3d 1510, 1515 (10th Cir.1995), the agency’s “statement of reasons need not include detailed findings of fact but must inform the court and the petitioner of the grounds of decision and the essential facts upon which the administrative decision was based.” Bagdonas, 93 F.3d at 426 (internal quotation marks omitted). Applying this standard of review, we conclude that, although the Forest Service did not explicitly identify the four factors the FSH indicates “are to be used” when determining whether a forest plan amendment is significant, FSH 1909.12 § 5.32(3), a review of the ROD and the administrative record demonstrates that the Forest Service considered the FSH factors when deciding whether to authorize a new building on Hidden Peak and amend the Forest Plan. As an initial matter, we observe that the Forest Service devoted a significant amount of energy to debating the appropriateness of the Hidden Peak structure and its potential visual impacts. In the ROD, for example, the Forest Service explained that “[t]he Hidden Peak structure was the most difficult aspect” of its review of Snowbird’s MDP. Turning more specifically to the FSH factors, we first note, as SOC concedes in its brief, that the ROD clearly addressed the “location and size,” “long-term significance,” and “management prescription” factors. The ROD, for example, considered the location and size of the project, observing that although the new structure would be larger than the existing buildings on Hidden Peak, the Forest Service had deliberately reduced the sized of the project to minimize “scenic impact,” that the Peak was a small area relative to the larger forest, that the Peak’s existing structures already impaired visual quality, and that “modern design concepts and materials [would] maintain if not improve the visual impact of the peak.” The ROD also emphasized that only the Hidden Peak structure would be exempted from the visual quality requirements and would not “set a precedent for similar development elsewhere,” a finding directly related to the “management prescription” factor. Finally, the ROD considered facts relevant to the “plans and objectives” factor, noting that constructing the building would help meet one of the Forest Plan’s goals, efficient recreation use. As SOC points out, the discussion of timing (i.e., the timing of the proposed amendment relative to the expected life of the Forest Plan) is less clear. The ROD, however, noted that “the WCNF Forest Plan was finalized in 1984 and approved in 1985, which suggests that the proposed amendment was fairly far removed from the adoption of the Plan. Moreover, the FEIS, issued in November 1999, a month prior to the ROD, noted that the Forest Service was in the process of revising the underlying Forest Plan and that, rather than amending the existing Plan, any required changes could be “incorporated into the new Forest Plan.” “Any Forest Plan amendment or revision,” the FEIS further explained, “would be stipulated in the ROD.” Thus, under these circumstances, we conclude that the Forest Service adequately considered the FSH timing factor. Therefore, we reject SOC’s contention that the Forest Service did not adequately consider the factors that the FSH indicates should be used when assessing the significance of a forest plan amendment. VI. Conclusion The district court’s decision is AFFIRMED in all respects. Accordingly, we hereby VACATE the injunctions imposed pending appeal. . Under NFMA, the Secretary of Agriculture is required to develop forest plans that provide for the "coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness" activities. 16 U.S.C. § 1604(e). These plans must strive to balance these competing interests while also preserving forests’ environmental features. See 36 C.F.R. § 219.1(b). . Federal regulations define mineral survey fractions as "small parcels of National Forest System lands interspersed with or adjacent to lands transferred out of Federal ownership under the mining laws.” 36 C.F.R. § 254.31. . An interchange is a transaction where the federal government and "another person exchange lands or interests in lands of approximately equal value without formal appraisal.” 36 C.F.R. § 254.31: . The physical structure supporting the lifts remains on private property. . Alternatively, as all the parties acknowledge in supplemental briefing they filed with this court, Snowbird could have applied for an easement allowing its lift lines to transverse the federally owned lands. . In the opening pages of its brief, Snowbird alleges that four issues presented by SOC on appeal were waived for having not been raised properly during the administrative appeal. In particular, Snowbird argues SOC did not allege 1) that the Forest Service’s "use of the exterior-boundary description" was improper; 2) that the Interchange "automatically triggered” other actions; 3) that the purposes and needs in the EIS were read too narrowly; and 4) that the Forest Service should have considered "off-peak” alternatives. After reading through the record, we find that items 1, 2, and 4 were expressly raised in the administrative appeal. See Kentucky Heartwood, Inc. v. Worthington, 20 F.Supp.2d 1076, 1091 (E.D.Ky.1998). Arguably, SOC did not raise expressly the "automatically trigger” claim, but it did raise the larger "connected action” claim. See Wilderness Soc'y v. Bosworth, 118 F.Supp.2d 1082, 1100 (D.Mont.2000). Because our resolution of the larger connected action claim does not turn on the "automatically trigger” issue, the alleged waiver is not important to our discussion. In a similar vein, the Forest Service contends SOC "raised for the first time on appeal” the argument that the "Forest Service was required to send notification of the proposed interchange to individuals .. who had commented on the Draft EIS for Snowbird's Master Development Plan.” After reviewing the record, we agree with the Forest Service that this argument was not raised below. Though we reference this argument later, it is not central to the way we resolve the larger notice claim. . It is worth noting, however, that CEQ regulations require that agencies "provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” 40 C.F.R. § 1508.4; Southwest Centr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1446 (9th Cir.1996). . Courts have treated categorical exclusions under the Forest Service Handbook (FSH) as agency regulations because the categorical exclusions "are published in the Federal Register, and [are] subject to public comment and review.” Rhodes, 153 F.3d at 788 (citation omitted). Indeed, CEQ regulations specifically require that the categorical exclusion criteria be published in the Federal Register. See 40 C.F.R. § 1507.3(a), (b)(2)(h) (explaining that categorical exclusions should be published in the Federal Register); 57 Fed. Regulation. 43,180, 43,207-43,210 (Sep. 18, 1992) (publishing FSH categorical exclusions). . To bolster this argument, SOC references an exhibit, appended to its opening brief on appeal, containing a letter addressed to "Forest Supervisors,” which explains that land uses cannot be considered "essentially the same” "where federal tract land will likely be developed.” . SOC begins its argument by claiming that the Interchange was a major federal action that was not eligible for a categorical exclusion and that required disclosure under NEPA. Because, however, the Forest Service did not act arbitrarily or capriciously by concluding that the interchanged land fell within a categorical exclusion, this line of argument is closed. . However, the towers and their accompanying construction would remain entirely on private land. . SOC claims that this meeting could not possibly be adequate notice because Snowbird officials, as opposed to Forest Service personnel, conducted the meeting. As discussed above, the FSH procedures require that “interested and affected persons must be informed in an appropriate manner of the decision to proceed with the proposed action." FSH 1909.15 § 32.1. The regulation does not define how parties should be informed or who should do the informing. In light of the deference we give to agencies’ interpretations of their categorical exclusion categories, see Alaska Ctr., 189 F.3d at 857; Rhodes, 153 F.3d at 789, we cannot conclude that this Snowbird-led meeting was inadequate. . Though CEQ regulations only explicitly apply the connected action standard to the EIS context, courts and commentators suggest the rule also applies in the EA context. See, e.g., Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1118 (9th Cir.2000); Thomas F.P. Sullivan, ed. emeritus, Environmental Law Handbook 510 (16th ed., Government Institutes 2001). . CEQ regulations also suggest that an agency should consider similar actions in a common environmental study when they “have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.” 40 C.F.R. § 1508.25(a)(3). . SOC appears also to be making an argument that the Forest Service improperly segmented the Interchange from the rest of the MDP. However, its "improper segmentation” argument is conclusory and very brief, consisting of a single three line paragraph in its opening brief and a blended argument in its reply brief. Although there are differences between a "connected action" argument and a "segmentation” argument, for many of the same reasons already expressed, we find the segmentation argument to be without merit. . All sides concede that erecting any of the proposed alternatives on Hidden Peak violates existing visual quality objectives. . Although the FSH states that the four criteria discussed above "are to be used” in deciding if a plan is significant, it states that "[o]ther factors may also be considered, depending on the circumstances.” FSH 1909.12 § 5.32(3). . SOC claims that the notice in the DEIS was deficient because no one specifically commented on amending the Forest Plan to allow for a Hidden Peak structure. The Forest Service, however, received extensive comments on the proposals to build a Hidden Peak structure. Given that constructing any structure on Hidden Peak would require amending the Plan, commentators likely felt that the amendment issue was subsumed by the larger question of what type of structure, if any, should exist on Hidden Peak. Approval of a structure and amendment to the Forest Plan went hand-in-hand. . We by no means endorse the Forest Service's failure to identify and apply expressly the four factors that the FSH indicates "are to be used when determining whether a proposed change to a forest plan is significant.” FSH 1909.12 § 5.32(3) (emphasis added).

Village of Gambell v. Hodel

ALARCON, Circuit Judge: The People of the Village of Gambell, et al. (hereinafter the Villages), appeal from an order of the district court of Alaska denying consolidated motions for a preliminary injunction. The requested injunction would prohibit exploration for oil and gas on two tracts leased to appellees/inter-venors, Arco Alaska, Inc. and Amoco Production Co., et al. (hereinafter the Oil Companies), by the United States Department of the Interior on federally owned lands in the outer continental shelf of Alaska. We must determine whether the district court abused its discretion in failing to issue a preliminary injunction notwithstanding its determination that the Villages had a “strong likelihood of success on the merits” in light of the presumption of harm flowing from a violation of a statute and the facts in the record showing the possibility of a significant restriction of subsistence use. We conclude that the district court abused its discretion in denying a preliminary injunction because it failed to give proper weight to Congress’s expressly stated policy of protecting the subsistence needs and culture of Native Alaskans against the harm which may result from the lease of public lands in the outer continental shelf. PERTINENT FACTS This matter is again before this court following our decision in People of the Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.1984) (hereinafter Gambell I). In Gambell I, the People of the Village of Gambell and the People of the Village of Stebbins brought an action in the district court to enjoin the sale of leases located in federally owned outer continental shelf land in Lease Sale 57. The Secretary of the Interior (hereinafter the Secretary) had offered to sell the leases for oil and gas exploration pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356 (as amended 1980) (hereinafter the Lands Act). Bids were submitted by the oil companies. Lease Sale 57 consists of approximately 2.4 million acres in the Norton Sound Basin twenty-five miles off the western shore of Alaska. In Gambell I the Villages presented two arguments to the district court in support of their request for ’an injunction. First, the Villages contended that the sale of leases for oil and gas exploration would interfere with their aboriginal hunting and fishing rights. Second, they asserted that the Secretary failed to evaluate the impact of such laws on the subsistence culture of Native Alaskans as required by section 810 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (1980) (hereinafter the Conservation Act) prior to conducting the sales. The district court denied the Villages’ motion for a preliminary injunction and granted the Secretary’s motion for summary judgment. The district court held that the Villages’ aboriginal hunting and fishing rights and their rights protected under section 810 of the Conservation Act did not extend to the outer continental shelf outside the territorial boundaries of Alaska. In his briefs before this court in Gambell I, the Secretary argued that if this court “ ‘[sjhould ... find it appropriate to order the Secretary to carry out the procedures of section 810, there is no need to undo what has already been done. The proper role for the court is to simply maintain the status quo while the Secretary does whatever is necessary to comply.’ ” (Appellants’ Reply Brief at 4, quoting Brief for Federal Appellees (Gambell I), at 49). The oil companies made a similar but more specific recommendation in their brief in Gambell 1. “ ‘If this court should hold that § 810 of ANILCA applies to the OCS [outer continental shelf], the appropriate remedy would be ... to enjoin further activities until the Secretary completes the procedures required by the statute, if irreparable harm is shown, see Weinberger v. Romero-Barcelo, 456 U.S. 305 [102 S.Ct. 1798, 72 L.Ed.2d 91] (1982).’ ” (Appellants’ Reply Brief at 4, quoting Brief of Appellee Arco Alaska, Inc. (Gambell I), at 49). We held in Gambell I that the Villages’ claims to an aboriginal right to hunt and fish in Norton Sound and in the waters in the outer continental shelf were extinguished by the Alaska Native Claims Settlement Act (hereinafter Claims Settlement Act), 43 U.S.C. §§ 1601-1628 (1971), but that in section 810 of Title VIII of the Conservation Act, Congress provided protection for subsistence uses of the fish and wildlife in the waters and ice over the outer continental shelf by requiring the Secretary to evaluate the effect of a lease sale on subsistence use. Gambell I, 746 F.2d at 579-82. In reversing the district court’s orders in Gambell I, we gave the following direction to the district court: Appellants ask that the lease sale be voided because the Secretary has not complied with the requirements of section 810. Appellees contend that the Secretary has substantially complied with the requirements of the section, albeit acting under other statutes, and if he has not, the proper remedy is to maintain the status quo unless and until the Secretary complies with section 810, citing California v. Watt, 683 F.2d 1253, 1266 (9th Cir.1982), reversed on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). These arguments raise factual and legal issues that have not been but should be considered initially by the district court. Gambell I, 746 F.2d at 582-83. Gambell I was argued before this court on October 7, 1983. On April 17, 1984, while the matter concerning Lease Sale 57 was still under submission to this court, the Secretary held a sale of leases on Lease Sale 83 in the outer continental shelf lands in the Navarin Basin off the shore of Alaska. This court filed its opinion in Gambell I on November 2, 1984. Due primarily to delays requested by the Secretary, the decision in Gambell I did not become final until mandate issued on March 2, 1985. On April 3, 1985, the People of the Villages of Gambell and Stebbins brought a motion for preliminary injunction to halt exploratory activities on Lease Sale 57. On April 25, 1985, the People of the Village of Gambell and the intertribal organization of Nunam Kitlutsisti filed a separate action to enjoin future exploratory activities on Lease Sale 83 and to rescind the authority previously granted to the Oil Companies in that portion of the outer continental shelf. Lease Sale 83 consists of approximately 37 million acres and is located in the water of the Bering Sea in the outer continental shelf due west of St. Mathews Island, approximately 250 miles from the mainland of Alaska. This separate complaint was based on precisely the same grounds alleged in the prior action (Gambell I) concerning Lease Sale 57: i.e., that the Secretary failed to comply with section 810 of the Conservation Act prior to authorizing exploratory activities in the waters over the outer continental shelf.' The district court consolidated these matters for the hearing on the Villages’ motion for a preliminary injunction. The district court applied the “traditional” test for determining whether injunctive relief is warranted, and denied the request for a preliminary injunction. The district court first explained that the Secretary did not comply with the requirements of section 810 of the Conservation Act because he failed to evaluate the subsistence impacts of the leases with the mandate of that law clearly in mind. After finding that “delay in the exploration of the OCS [outer continental shelf] may cause irreparable harm to this nation’s quest for new oil resources and energy independence,” the court nonetheless concluded: (1) Movants have established a strong likelihood of success on the merits. (2) The balance of irreparable harm does not favor the movants. (3) The public interest favors continued oil exploration, for the reason that the national interest favors OCS [outer continental shelf] oil exploration and such exploration will not cause the type of harm, a restriction in subsistence uses or resources, that ANILCA was designed to prevent. On May 30,1985, the district court issued a minute order sua sponte stating that: The court has been informed that its denial of plaintiffs’ motion for preliminary injunction will be appealed to the Ninth Circuit. In order to expedite the appeal, and for the reasons stated in this court’s earlier order, the court indicates that it will not entertain a motion for stay pending appeal. On June 6, 1985, a motions panel of this court issued an order denying the Villages’ emergency motion for an injunction pending appeal. The Secretary and the Oil Companies were ordered to file, within seven days, a hold harmless agreement “that will protect appellants from any consequences resulting from significant restrictions upon subsistence uses by appellants of their lands.” The motions panel retained jurisdiction of this matter for “the purpose of reimposing a temporary stay should the panel disapprove the form and substance of the hold harmless agreement.” The hold harmless agreement was approved by the motions panel on June 21, 1985. DISCUSSION Our review of a motion for a preliminary injunction is “very limited.” Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984). “The decision to grant or deny is within the discretion of the trial court and will only be reversed if that discretion has been abused or if the decision is based on erroneous legal standards or clearly erroneous findings of fact.” Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). A. Applicability of the Traditional Test This court has recognized two sets of standards for evaluating a claim for injunctive relief. We refer to one as the “traditional” test and the other as the “altemative” test. American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir.1983). In American Motorcyclist Ass’n we described the traditional test as follows: The traditional equitable criteria for determining whether an injunction should issue are (1) Have the movants established a strong likelihood of success on the merits; (2) does the balance of irreparable harm favor the movants; (3) does the public interest favor granting the injunction?” Id. 965. “The ‘alternative’ test permits the moving party to meet its burden by demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in its favor.” Id. (citing Benda v. Grand Lodge of IAM, 584 F.2d 308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975)). We have concluded, however, that the traditional and the alternative tests are “not really two entirely separate tests, but that they are merely extremes of a single continuum.” Benda v. Grand Lodge of IAM, 584 F.2d at 315. Accord, Regents of University of California v. ABC, 747 F.2d 511, 515 (9th Cir.1984); Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). We have also noted that “[t]he differenee between the two formulations is insignificant. Therefore, we accept either as satisfactory.” Benda, 584 F.2d at 315. Because the district court employed only the traditional test, we will review the findings under that formulation. See Regents of University of California v. ABC, 747 F.2d at 515-16 n. 4 (where the district court made a finding that the public interest favored the issuance of the preliminary injunction, this court reviewed the district court’s findings under the traditional standard). B. Likelihood of Success on the Merits The Villages argue that the district court properly determined that they had established “a strong likelihood of success on (die merits” on their claim that the Secretary could not have substantially corn-plied with the provisions of the Conservation Act because he did not have its man¿ates “clearly in mind.” The district court correctly concluded that an administrative decision compelled by a land preservation statute must be made with the requirements imposed by Congress clearly in mind. See Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 445 (9th Cir.) (“a court reviewing the Secretary’s 4(f) decision must satisfy itself that the Secretary evaluated the highway project with the mandates of section 4(f) clearly in mind”), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). Accord, Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). Prior to Lease Sale 57 and Lease Sale 83, the Secretary did not have the requirements of Congress in mind because it was his contention that section 810 of the Conservation Act did not apply to land beneath the water of the outer continental shelf off the coast of Alaska. Section 810(a) of the Conservation Act provides in pertinent part as follows: In determining whether to ... lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes. 16 U.S.C. § 3120(a) (1982) (emphasis added). Therefore, in determining whether to approve Lease Sale 57 or Lease Sale 83, the Secretary did not evaluate the effect of such leases on subsistence uses and needs of the Native Alaskans who are part of the Villages. We agree with the district court’s determination that the Secretary failed to comply with the mandatory requirements of section 810(a). In Kunaknana v. Clark, 742 F.2d 1145 (9th Cir.1984), we said that section 810(a) “requires the agency to evaluate the effects upon subsistence needs of leasing the particular tracts tentatively se-lected____” Id. at 1151. After Gambell I, it is clear that section 810(a) does apply to public lands in the outer continental shelf. The Secretary contends, however, that his compliance with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321-4337 (1976) (hereinafter the Environmental Act or NEPA) and the Lands Act is sufficient to satisfy the evaluation provisions of section 810(a) of the Conservation Act. The Secretary asserts that “[T]here is no additional requirement that the agency decision maker have one statute in mind rather than another when he takes the action.” This argument completely ignores this court’s observation in Gambell I that section 810 was enacted because “the Secretary and the state [of Alaska] failed to heed Congress’s admonition [that they take any action necessary to protect subsistence needs of Alaskan Natives].” Gambell I, 746 F.2d at 580. The uncontradicted facts in this matter establish that the Secretary deliberately ignored the specific requirements of section 810(a) prior to the lease sales because of his erroneous belief that its provisions did not apply to the outer continental shelf. Nevertheless, we are now told that the Secretary complied with the Conservation Act prior to the lease sales because in meeting the requirements of the Environmental Act and the Lands Act he inadvertently considered the needs of the subsistence users. If we were to adopt this surprising contention, we would render section 810(a) superfluous and assume that its enactment was an idle act. “We should not and do not suppose that Congress intended to enact unnecessary statutes.” Jackson v. Kelly, 557 F.2d 735, 740 (10th Cir.1977). It is quite true that section 810(a) makes reference to the Environmental Act. Section 810(b) provides as follows: If the Secretary is required to prepare an environmental impact statement pursuant to [Section 102(2)(c) of the National Environmental Policy Act], he shall provide the notice and hearing and include the findings required by subsection (a) of this section as part of such environmental impact statement. 16 U.S.C. § 3120(b) (1982) (emphasis added). It is clear to us from this language that Congress intended that the section 810(a) requirement that the Secretary evaluate and make findings concerning subsistence needs supplements any overlapping duties which he may have under the Environmental Act. In support of his contention that compliance with the Lands Act and the Environmental Act constitutes substantial compliance with the requirements of section 810(a) of the Conservation Act, the Secretary refers us to Life of Land v. Brinegar, 485 F.2d 460, 474 (9th Cir.1973), cert. denied, 416 U.S. 961, 94 S.Ct. 199, 40 L.Ed.2d 312 (1974), Citizens Airport Comm. v. Volpe, 351 F.Supp. 52 (E.D.Va.1972), Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 356 (8th Cir.1972), Cape Henry Bird Club v. Laird, 484 F.2d 453, 454 (4th Cir.1973), and Missouri ex rel. Ashcroft v. Dep’t. of Army, 526 F.Supp. 660, 667 (W.D.Mo.1980), aff'd, 672 F.2d 1297 (8th Cir.1982). These authorities do not support the Secretary’s contention that compliance with either the Lands Act or the Environmental Act constitutes de facto compliance with the Conservation Act. In Brinegar, we held that an environmental impact statement prepared pursuant to the Environmental Act may be considered as the finding of no adverse environmental effect required under section 16(c)(4) of the Airport and Airways Development Act of 1970 because each statute contains virtually the same requirements. 485 F.2d at 474. In Citizens Airport Comm., the district court noted, in passing, that “[t]he fact that the impact statement was prepared for the purpose of satisfying NEPA does not prevent its being used to satisfy the requirements of § 1716 [of the Airport and Airways Development Act of 1970, 49 U.S.C. § 1701 et seq.] if, in fact, it contains all of the findings demanded by that provision.” 351 F.Supp. at 59. In Environmental Defense Fund, Inc. v. Froehlke, the court held that if an agency complies with the Environmental Act, it will “ ‘automatically take into consideration all of the factors required by the Fish and Wildlife Act and it is not reasonable to require them to do both separately.’ ” 473 F.2d at 356 (quoting Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 749, 754 (E.D.Ark.1971), vacated on other grounds, 342 F.Supp. 1211 (E.D.Ark.1972)). We have no quarrel with the proposition that if the environmental concerns expressed in one statute are “automatically” taken into consideration on complying with the requirements of another Act of Congress, it would not be reasonable for the courts to insist on separate reports. As noted above, however, it was the failure of the Secretary to protect subsistence needs under existing administrative authority which compelled Congress to enact section 810(a). Gambell I, 746 F.2d at 580. We previously have held that “compliance with one environmental statute does not assure compliance with another.” Adler v. Lewis, 675 F.2d at 1096. Where each statute mandates separate and distinct procedures, compliance with the requirements of one does not compel the conclusion that the provisions of the other statute were considered. Id. Neither the Environmental Act nor the Lands Act sets forth procedures to ensure the protection of subsistence needs and uses. In contrast, the Conservation Act was created “to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.” Conservation Act § 101(c), 16 U.S.C. § 3101(c) (1982). As we noted in Gambell I, “Congress found that continuation of the opportunity of rural Alaskans to make subsistence use of fish and wildlife ‘is essential to [their] existence’.” Id. at 580 (quoting Conservation Act § 801(1), 16 U.S.C. § 3111(1) (1980)). The separate and distinct procedures set forth in section 810(a) of the Conservation Act were enacted to fulfill that purpose. The Environmental Act and the Lands Act do not, by their terms, seek to advance the same Congressional goals. For purposes of resolving the issues presented in reviewing the denial of a preliminary injunction, we conclude that the district court did not err in its determination that there was a strong likelihood that the Villages would succeed at trial on the merits in their legal contention that substantial compliance with the Environmental Act and the Lands Act would not constitute automatic or substantial compliance with the Conservation Act. The district court also concluded that the Villages had a strong likelihood of success on the merits of their contention that the Secretary violated the notice, hearing, and findings requirements of section 810(a)(1)-(3) in connection with Lease Sale 57. We agree. Under section 810(a)(l)-(3), the Secretary is prohibited from leasing public lands without complying with the notice and hearing procedures if the agency concludes that the proposed action “may significantly restrict subsistence uses.” Kunaknana v. Clark, 742 F.2d at 1151. After receiving this court’s opinion in Gambell I, the Secretary conducted a post-sale study concerning Lease Sale 57. That report contains the finding that while the lease and exploration stages will not significantly restrict subsistence, development and production “may significantly restrict subsistence uses in certain areas.” We made it clear in Kunaknana that under the express language of section 810(a)(3), the Secretary was required to comply with the notice and hearing requirements of the statute to determine inter alia whether “ ‘such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of the public lands.’ ” 742 F.2d at 1150-51 (quoting section 810(a)(3)). The Secretary argues that he was not required to comply with the notice and hearing requirements of section 810(a)(1)-(3) prior to the sale of the leases with respect to the significant restriction of subsistence use that may develop at the production stage. The Secretary relies on Secretary of Interior v. California, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). His reliance is misplaced. First, in Secretary of the Interior v. California, the Supreme Court did not concern itself with a construction of section 810(a)(1)—(3) of the Conservation Act. The Court was faced with the question whether section 307(c)(1) of the Coastal Zone Management Act applies prior to a lease sale. Id. at 315, 104 S.Ct. at 658. As the district court in the instant matter correctly noted, the decision of the Supreme Court that the Coastal Zone Management Act did not apply to lease sales was premised on the fact that Congress had recognized “four distinct statutory stages to developing an offshore oil well.” Id. at 337, 104 S.Ct. at 669. The four steps set forth in the Lands Act are as follows: 1. The planning of a five-year nationwide leasing program. 43 U.S.C. § 1344. 2. The lease sale. 43 U.S.C. § 1337(a). 3. Exploration. 43 U.S.C. § 1340. 4. Development and production. 43 U.S.C. § 1351. In the Conservation Act, however, Congress has expressly provided for a specific and detailed procedure to be followed in evaluating the impact on subsistence use of the lease of public land for exploratory activities. As this court pointed out in Kunaknana v. Clark, section 810(a) of the Conservation Act requires a hearing before a lease shall be effected if such lease “or other use, occupancy or disposition of such [public] lands” may significantly restrict subsistence use. 742 F.2d at 1150-51. “It is a basic rule of statutory construction that a specific statute controls over a general statute. HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 838-39, 67 L.Ed.2d 1 (1981). If we were to hold that the more general statute controls over the specific one, we would effectively eliminate the specific statute.” Edward D. Rollert Residuary Trust v. C.I.R., 752 F.2d 1128, 1133 (6th Cir.1985). The district court did not err in determining, for purposes of ruling on the Villages’ motion for a preliminary injunction, that the Villages had demonstrated a strong likelihood of success on the merits of their contention that the Secretary failed to comply with the notice and hearing requirements of the Conservation Act concerning Lease Sale 57. We are satisfied that there is a strong likelihood of success on the merits of the Villages’ argument that the specific procedural requirements of section 810(a)(1)—(3)—which are triggered by the threat of a significant restriction of subsistence use—were intended by Congress to serve as an exception to the general provisions of the Lands Act. C. Balance of Irreparable Harm Notwithstanding its determination that the Secretary violated the procedural requirements of section 810(a) of the Conservation Act, the district court denied the Villages’ request for a preliminary injunction. The district court’s ruling is not consistent with the law of this circuit. An injunction is the appropriate remedy for a substantive procedural violation of an environmental statute. See Thomas v. Peter son, 753 F.2d 754, 764 (9th Cir.1985). “Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.” Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984). In Save Our Ecosystems v. Clark, we also noted that “[o]nly in a rare circumstance may a court refuse to issue an injunction when it finds a NEPA violation.” Id. at 1250. “ ‘It does not appear that any lower court, much less the Supreme Court, has ever found in a proceeding on the merits that federal actions violating NEPA could continue in opposition to the statutory mandates.’ ” Id. at 1250 n. 15 (quoting Plater, Statutory Violations and Equitable Discretion, 70 Cal.L.Rev. 524, 575 (1982)). Mindful of the law in this circuit, the district court concluded that there were unusual circumstances in the instant matter which made the issuance of an injunction “inappropriate.” However, the court did not articulate the unusual circumstances upon which it relied to excuse its duty to issue an injunction in light of its determination that there was a strong likelihood that the Villages would prevail in their contention that section 810(a) of the Conservation Act had been violated. Instead, the court found as follows: (1) That delay in the exploration of the OCS may cause irreparable harm to this nation’s quest for new oil resources and energy independence. Expedited exploration as a policy is stated in OCSLA. See 43 U.S.C. § 1332(3); (2) That exploration will not significantly restrict subsistence resources; and (3) That the Secretary continues to possess power to control and shape the off-shore leasing process. Therefore, if the ANILCA subsistence studies require alteration of the leasing conditions or configuratuion the Secretary will be able to remedy any harm caused by the violation. The district court relied upon Forelaws on Board v. Johnson, 743 F.2d 677 (9th Cir.1984) and Alaska v. Andrus, 580 F.2d 465 (D.C.Cir.), vacated in part on other grounds as moot, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). These cases do not support the district court’s conclusion that these factors justify the denial of an injunction under the circumstances of this case. Notwithstanding a violation of the Environmental Act, this court refused to issue an injunction in a matter over which it had original jurisdiction because such relief would interfere with the operation of 20-year contracts, most of which were then in the third year of their term. Forelaws on Board v. Johnson, 743 F.2d at 685. Here, however, the injunction was sought prior to the sale of any leases in the outer continental shelf; therefore, the issuance of an injunction, at the time it was requested, would not have interfered with a long-term contractual relationship. The first well on Lease Sale 83 was not spudded until June 2, 1985. The Villages’ consolidated requests for injunctive relief were denied on May 23, 1985. Had the district court issued a preliminary injunction when it was first requested, no leases would have been made until the requirements of the Conservation Act were met. Alaska v. Andrus is factually distinguishable and contrary to the law of this circuit. First, the D.C. Circuit Court apparently does not follow the Ninth Circuit rule that injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances. See Thomas v. Peterson, 753 F.2d at 764 (“absent ‘unusual circumstances,’ an injunction is the appropriate remedy for a violation of NEPA’s procedural requirements”); Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089, 1090 (9th Cir.1975) (the policies underlying an environmental protection statute (NEPA) “weight the scale in favor of those seeking the suspension of all action until the Act’s requirements are met”). The Ninth Circuit rule was not discussed in Alaska v. Andrus. Instead, the D.C. Circuit followed a rule which restricts the availability of an injunction against an ongoing project to cases where it is necessary primarily “to preserve for the relevant decisionmaker the full opportunity to choose among alternatives that is contemplated by NEPA.” Alaska v. Andrus, 580 F.2d at 485. This court has found “unusual circumstances” in cases which have upheld the denial of a preliminary injunction to enjoin a project from proceeding in violation of an environmental protection statute where irreparable harm to the environment would result if such relief were granted. Thomas v. Peterson, 753 F.2d at 764 n. 8. Similarly, in Alpine Lakes Protection Society v. Schlapfer, we denied a motion for an injunction pending appeal notwithstanding the presence of substantial questions concerning the Forest Service’s compliance with the Environmental Act, because the issuance of an injunction against the use of a logging road would prevent the removal of diseased trees and permit the spread of insect infection throughout the adjacent national forest lands. 518 F.2d at 1090. In American Motorcyclist Ass’n v. Watt, the plaintiffs filed an action to enjoin the Secretary’s plan to conserve and protect the fragile resources in the California desert from recreational use. 714 F.2d at 963-64. The plaintiffs alleged that the plan would prevent traditional recreational vehicle use of the California desert and diminish the number of motorcycle events. Id. The district court expressly found that “there was a danger of harm to the fragile desert resources of the [California Desert Conservation Area] if the Plan’s restrictions were lifted and plaintiffs were allowed to pursue increased motor vehicle use.” Id. at 966. We upheld the denial of a preliminary injunction in American Motorcyclist Ass’n v. Watt in the face of a strong showing on the merits that the Secretary of the Interior had violated procedural provisions of the Environmental Act, because of the presence of unusual circumstances, i.e. the damage to fragile desert resources. Id. at 966-67. We discussed the impact of the exception to the rule set forth in Alpine Lakes Protection Society v. Schlapfer, requiring the issuance of a preliminary injunction upon a showing of a violation of the procedural prerequisites of an environmental statute, and explained: “Alpine thus authorizes the court not only to weigh the relative hardship and harms to the parties, but to examine how the greater public interest may be affected in the unusual case where enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources.” American Motorcyclist Ass’n v. Watt, 714 F.2d at 966. In the matter before us the district court did not and could not make a finding that the issuance of a preliminary injunction preventing lease sales would endanger the subsistence uses and resources of the waters off the coast of Alaska. In fact, the Secretary’s lease sale plan poses the type of danger to the subsistence culture of Alaskan Natives that moved Congress to enact section 810(a) of the Conservation Act. In Gambell I, we expressed this view as follows: When Congress adopted the Claims Settlement Act it was aware that extinguishing Native rights might threaten subsistence hunting and fishing by Alaska Natives. The Senate version of the Claims Act included provisions directing the Secretary to protect subsistence uses on public lands. The Conference Committee eliminated this provision, but the Committee made it clear that it did so only because it concluded subsistence resources should be protected by the Secretary of Interior through the exercise of existing administrative authority. The Committee wrote: “The Conference Committee expects both the Secretary and the State to take any action necessary to protect the subsistence needs of the Natives.” See H.Conf.Rep. No. 746, 92d Cong., 1st Sess. 37, reprinted in 1971 U.S.Code Cong. & Ad.News 2247, 2250. Title VIII of the Conservation Act was enacted because the Secretary and the state failed to heed Congress’s admonition. Gambell I, 746 F.2d at 580. The record does not disclose any unusual circumstances which threaten the environment such as those which we recognized in Alpine Lakes Protection Society v. Schlapfer and American Motorcyclists Ass’n v. Watt, which would justify denial of a preliminary injunction where there is a strong likelihood that the Villages will succeed in demonstrating that the Secretary has violated a statute directed at preserving or conserving the environment. On the contrary, the Secretary’s leasing plan poses a threat to the preservation of the subsistence culture of Native Alaskans. Nor would the issuance of a preliminary injunction have interrupted the performance of long-term contracts as was the case in Fo-relaws on Board v. Johnson. We conclude, therefore, that the district court erred in finding that this is the type of rare or unusual case that justifies the denial of a preliminary injunction in the face of its conclusion that there is a strong likelihood of success on the merits. D. Public Interest As set forth above, the district court found that the public interest favored oil exploration in the outer continental shelf. This finding is not supported by a recitation of the facts relied upon by the district court that would demonstrate how the district court divined the public interest. The Secretary correctly observes that the purpose of the 1978 amendments to the Lands Act was to expedite the exploration and development of the Outer Continental Shelf in order to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade____ 43 U.S.C. § 1802 (as amended 1978). The Secretary continues to ignore, however, the fact that section 810(a) of the Conservation Act was adopted by Congress “to benefit the Natives” and to be “consistent with the Congressional policy established by section 802(1) that the management of the public lands shall cause the least adverse impact possible on rural residents who depend upon subsistence uses.” Gambell I, 746 F.2d at 581 (quoting 126 Cong.Record 29,279 (1980)). As our highest court noted in a different context, “[t]he choice between these two policy arguments is not ours to make; it has already been made by Congress.” Secretary of Interior v. California, 464 U.S. at 342, 104 S.Ct. at 672. Congress enacted section 810(a) in 1980 to protect the subsistence culture of Native Alaskans from exploration of the outer continental shelf that would impair their subsistence needs and uses. The Conservation Act defines subsistence uses as follows: [T]he customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade. 16 U.S.C. § 3113 (1982). The maintenance of this subsistence economy is requisite to the literal survival of these isolated Alaskan tribal villages. On St. Lawrence Island alone, 80 percent of all food consumed annually comes from the sea and land. A substantial portion of their cash income comes from carved walrus ivory. Moreover, even if the community’s physical survival is not placed in immediate jeopardy by disruptions from oil and gas exploration, the very social structure of the village is jeopardized. “A reduced availability of naturally recurring resources ... alterfs] the depth, breadth and strength of the clans, the organizational core of society.” Ronald L. Little and Lynn A. Robbins, Technical Report No. 89, Effects of Renewable Resource Harvest Descriptions on Socioeconomic and Sociocultural Systems: St. Lawrence Island, at 304 (emphasis added). Subsistence is nothing less than “a symbolic and organizational base for their spiritual life.” Id. at 360. The district court’s finding that the public interest favored oil exploration over the preservation of the subsistence culture of the Alaskan Natives violates the clearly expressed Congressional intent that lease sales shall not be conducted until the Secretary has evaluated the effect of the Oil Companies’ activities on the subsistence uses and needs of Native Alaskans. The by-products of oil and gas exploration such as potential oil spills, leakage, and noise pose the threat of disruption to subsistence economy sufficient to destroy irreparably the isolated and unique culture of the Native Alaskans. Id. at 330-74. This error of law compels reversal. E. Retroactivity The Secretary and the Oil Companies argue that our decision in Gambell I may not be applied retroactively to Lease Sale 83. This contention was not raised in the district court. Ordinarily, we “will not ... review an issue not raised below unless necessary to prevent manifest injustice.” International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). However, we have the discretion to review issues raised for the first time on appeal “if it would not cause the parties to develop new facts.” Whittaker Corp. v. Execuair Corp., 736 F.2d 1341, 1346 (9th Cir.1984). We will address the retroactivity issue because it does not involve a fact determination and because it is central to the case and important to the public. Commodity Futures Trading Comm’n v. Co Petro Marketing Group, Inc., 680 F.2d 573, 581 (9th Cir.1982). The Secretary and the Oil Companies rely primarily upon Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) to support their retroac-tivity argument. In Chevron Oil Co., the Supreme Court set forth the following test for determining whether to apply a court decision retroactively: First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, [citation omitted]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [citation omitted]. Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ [citation omitted], 404 U.S. at 106-07, 92 S.Ct. at 355-56. Applying the Chevron factors, we are persuaded that our decision in Gambell I should be applied retroactively. Although Gambell I established a new principle of law in construing section 810(a) of the Conservation Act as applicable to the outer continental shelf, our review of the prior history of section 810(a) of the Conservation Act and its stated purpose satisfies us that retroactive application of Gambell I would further the operation of a statute enacted by Congress expressly to protect subsistence uses and resources from any harmful effects resulting from oil exploration. No substantial inequitable results would occur from retroactive application. See Barina v. Gulf Trading & Transportation Co., 726 F.2d 560, 563 (9th Cir.1984) (a decision should not be applied retroactively if it would produce substantial inequitable results). The facts demonstrate unequivocally that the Secretary conducted Lease Sale 83 with knowledge that his right to do so without complying with the Conservation Act was in doubt in light of the fact that an appeal was then pending on Lease Sale 57. Any financial losses which may have been incurred by the Oil Companies were also incurred with full knowledge of the risks involved in expending money at a time when the validity of leases sold without compliance with the Conservation Act was pending before the court. Under the Chevron test, retroactive application of our prior decision in Gambell I is proper. F. Laches The Secretary and the Oil Companies assert that the Villages’ motion for a preliminary injunction of exploratory activities on Lease Sale 83 is barred by laches. This contention is predicated on the fact that this action to enjoin Lease Sale 83 was filed on April 25, 1985, more than one year after the notice of sale was published on April 17, 1984. We agree with the Villages that the district court properly rejected the laches claim. In order to prevail on this equitable defense, the Secretary and the Oil Companies must have demonstrated that the Villages unreasonably delayed in asserting a known legal right and that this delay caused the Secretary and the Oil Companies prejudice. See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980). We review the district court’s ruling concerning the defense of laches for an abuse of discretion. Id. We conclude that the Villages’ delay was reasonable for the following reasons: (1) On March 4, 1983, more than one year before the sale was held, the Village of Gambell gave the Secretary notice that it believed that section 810 of the Conservation Act applied to leases of public lands in the outer continental shelf by filing a claim for injunctive relief concerning Lease Sale 57. (2) On April 17, 1984, Lease Sale 83 was held. (3) On November 24, 1984, we issued our decision in Gambell I wherein we held that section 810 of the Conservation Act applied to leases in the outer continental shelf. Gambell I, 746 F.2d at 582. On May 10, 1983, prior to Lease Sale 83, a motions panel of this court had held that there was insufficient reason to enjoin lease sales in the outer continental shelf pending appeal of the denial of the preliminary injunction requested to prevent Lease Sale 57. (4) Thus, a challenge to Lease Sale 83 would have been useless. Under these circumstances, the district court did not abuse its discretion in holding that the delay was reasonable and did not cause the Secretary or the Oil Companies any prejudice which was not the result of a calculated risk. CONCLUSION The Secretary failed to evaluate the effect on subsistence uses and needs of the Alaskan Natives prior to Lease Sale 57 and Lease Sale 83 because of his belief that section 810(a) of the Conservation Act did not apply to the outer continental shelf. For purposes of reviewing the denial of a preliminary injunction, we conclude that the district court correctly determined that there was a strong likelihood that the Villages would succeed in their claim that the Secretary failed to comply with section 810 of the Conservation Act. The district court erred as a matter of law in concluding that these facts presented rare or unusual circumstances justifying a failure to follow the rule that a preliminary injunction should issue where a federal agency has violated the procedural requirements of an environmental protection or conservation statute. Under these facts, the issuance of a preliminary injunction would not have resulted in a belated interruption of long term contracts or interfered with any plan to preserve subsistence uses or to protect the environment. Instead, the Secretary’s plan involves exploitation of finite environmental resources and a potential threat to the subsistence culture of Alaskan Natives. The Conservation Act was amended in 1980 for the express purpose of compelling the Secretary to consider subsistence uses and needs in exploring and developing our oil resources in the public lands beneath the outer continental shelf. The public interest as expressed by Congress in the 1980 amendments to the Conservation Act requires that the uses and needs of the Alaskan Natives, and our national concern over survival of their culture, must prevail over our possible energy needs. Thus, the denial of a preliminary injunction was error because the court misapplied the law of the circuit concerning the “unusual circumstances” exception and failed to honor the announced policy of Congress favoring the rights of Alaskan Natives over this nation’s need to exploit the potential oil resources under the waters of the outer continental shelf off the shores of Alaska. The district court is directed to enter a preliminary injunction enjoining all activities in connection with Lease Sale 57 and Lease Sale 83 pending its determination of the consolidated claims for injunctive relief and pending resolution of the issues which it must address pursuant to the instructions of this court in Gambell I. In accordance with the stipulation of the parties, the hold harmless agreement will terminate as of the date that the Oil Companies inform this court that their 1985 drilling operation in Lease Sale 57 and Lease Sale 83 have terminated and that all drilling rigs and support craft have vacated the area. Reversed and Remanded. . On this appeal from consolidated motions for preliminary injunction, the Villages include The People of the Village of Gambell and The People of the Village of Stebbins, two Alaskan Native Tribes organized under the Indian Reorganization Act. Also included is Nunam Kitlutsisti, an intertribal organization representing subsistence users from 56 villages of the Yukon-Kuskokwi-an Delta in southwestern Alaska. . Appellees rely on Weinberger v. Romero-Barce-lo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) for the proposition that "[a] showing of threatened irreparable harm has always been the prime prerequisite for obtaining injunctive relief.” Brief for the Federal Appellees, p. 40. Romero-Barcelo is distinguishable from the matter before us in several important respects. First, Romero-Barcelo did not involve the tension between the requirements of the Conservation Act and the Lands Act. Instead, the narrow question before the Court in Romero-Barcelo was stated as follows: The issue in this case is whether the Federal Water Pollution Control Act (FWPCA or Act), 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq. (1976 ed. and Supp. IV), requires a district court to enjoin immediately all discharges of pollutants that do not comply with the Act's permit requirements or whether the district court retains discretion to order other relief to achieve compliance. 456 U.S. at 306-07, 102 S.Ct. at 1800-01. The Supreme Court observed that injunctive relief was not the only means of insuring compliance under the statute. The Court noted that "[t]he FWPCA itself, for example, provides for fines and criminal penalties. 33 U.S.C. §§ 1319(c) and (d).” Id. at 314, 102 S.Ct. at 1804. The Court construed the statute as permitting the district court "to order that relief it considers necessary to secure prompt compliance with the Act. That relief can include, but is not limited to, an order of immediate cessation." Id. at 320, 102 S.Ct. at 1807. Unlike the FWPCA, the in-junctive relief we grant is the only means of insuring compliance under section 810. In Romero-Barcelo, the Supreme Court contrasted the requirements imposed by Congress in the FWPCA with its construction of the Endangered Species Act (87 Stat. 884, 16 U.S.C. § 1531 et seq.) in Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed. 117 (1978). In TVA v. Hill, the Supreme Court held that an imminent violation of the Endangered Species Act required injunctive relief. Id. at 172-73, 98 S.Ct. at 2290-91. In Romero-Barcelo, the Court summarized its holding in TVA v. Hill as follows: Refusal to enjoin the action would have ignored the ‘explicit provisions of the Endangered Species Act.' 437 U.S., at 173 [98 S.Ct. at 2291]. Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act. Romero-Barcelo, 456 U.S. at 314, 102 S.Ct. at 1804 (emphasis added). It appears to us that in enacting section 810, Congress has chosen the protection of subsistence life over oil exploration. Thus, only the issuance of a preliminary injunction to compel compliance with the requirements of section 810 can uphold Congressional intent. "Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.” TVA v. Hill, 437 U.S. at 194, 98 S.Ct. at 1804. Secondly, Romero-Barcelo is not dispositive because in that matter the district court denied injunctive relief after a trial on the merits of the complaint for injunctive relief. This matter is before us on an interlocutory appeal. We do not know what evidence will be developed at trial. In the absence of a fully developed trial record, we cannot now decide whether a permanent injunction should issue in this matter. The fact, as noted by our dissenting colleague, that this court may visit this case again should not cause us to issue an advisory opinion or attempt to usurp the function of the district court. Congress has determined that interlocutory review is available to persons seeking review of an order granting or refusing an injunction. 28 U.S.C. § 1292(a)(1). The plaintiffs in this matter have properly exercised their rights.

Village of Gambell v. Hodel

DIMMICK, District Judge (dissenting). This is the second time this court has punted to the trial court. In the first appeal, Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.1984) (“Gambell I”) it was clear that the Secretary of Interior had violated an environmental statute by not complying with section 810 of the Alaska National Interest Lands Conservation Act (ANILCA). The court, however, did not direct the trial court to enter an injunction. Instead, the only guidance it gave to the trial court was for it to determine “the proper remedy.” Id. at 573. The trial court determined that, at this time, a proper remedy does not include a preliminary injunction. The majority now tells the trial court, on the same facts available in Gambell I, that the trial court erred and that it must enter a preliminary injunction. Nevertheless, the majority does not tell the trial court whether a permanent injunction must be issued, or whether post-sale compliance with section 810 is acceptable. Thus, this case will probably become a trilogy. Our review of the trial court’s decision denying the preliminary injunction is limited. Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (9th Cir.1984). The trial court’s decision to grant or deny an injunction is discretionary and will be reversed only if based on erroneous legal standards or clearly erroneous findings of fact. Sports Form, Inc. v. United Press International, 686 F.2d 750 (9th Cir.1982). I find that the trial court used the correct legal standard and that its findings of fact are supported by the record. Thus, I would affirm its discretionary decision to deny the preliminary injunction. I would also not apply Gambell I retroactively to Lease No. 83. I. The trial court found that while appellants were likely to succeed on the merits the balancing of the irreparable harms favored appellees, not appellants. It accordingly refused to issue a preliminary injunction. The majority, in reversing the trial court’s decision, advances a new rule: absent unusual circumstances, an injunction must be issued when an environmental statute has been violated. The Supreme Court, however, has rejected such a rigid approach to the issuance of an injunction. In Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Navy had violated the provisions of an environmental statute — the federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 (1982). The district court refused to enter an injunction pending compliance. The Court of Appeals for the First Circuit reversed holding that the district court was required to enter an injunction. Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.1981). The First Circuit stated that “regardless of the district court’s finding that the Navy’s dropping of ordinance caused no significant harm to the environment, it erred in failing to consider the judiciary’s ‘responsibility to protect the integrity of the ... process mandated by Congress____’” Id. at 861 (citations omitted). The Supreme Court reversed. The Court noted that the equitable remedy of an injunction requires flexibility and the exercise of discretion and that it should only be entered to protect a party from irreparable harm. Weinberger v. RomeroBarcelo, supra 456 U.S. at 312, 102 S.Ct. at 1803. The majority does not include this case in its analysis of when an injunction should be issued for the violation of an environmental statute. (See Majority Opinion, section C.) In my opinion it is binding precedent. While there is a presumption that irreparable harm flows from a violation of an environmental statute, Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), such a presumption is not irrebuttable. A party opposing the issuance of an injunction may present evidence showing that no irreparable harm will occur. Appellees have done exactly that. Appellees presented the trial court with substantial evidence showing that it was highly unlikely that exploratory activities would adversely affect subsistence resources. In addition, appellees presented evidence which showed that they would have suffered irreparable harm if a preliminary injunction had been issued. At the time the district court was deciding whether to enter a preliminary injunction, Exxon, Amoco, and ARCO had committed almost $70 million in support of their plans to explore Lease Tracts Nos. 57 and 83 during the summer of 1985. If the trial court had enjoined their exploration activities their money would have been lost. The permanent loss of $70 million constitutes substantial irreparable harm. In contrast, the appellants advanced two arguments to support the presumption of irreparable harm: (1) the danger of bureaucratic commitment and (2) speculative harm to the environment. The record amply supports the trial court’s conclusion that appellants would not suffer any significant harm. Thus, appellees successfully rebutted the presumption which favored appellants. Accordingly, the trial court did not err in refusing to grant the injunction. II. The Lease No. 83 sales were conducted six and one-half months before this court filed its decision in Gambell I. Appellants, who were aware of Lease Sale No. 83, did not file a suit advancing the ANILCA claim as they had done in Lease No. 57. Moreover, they did not challenge Exxon’s, ARCO’s or Amoco’s plans of exploration which were approved by the Department of Interior. Relying on these approvals, Exxon, ARCO, and Amoco committed over $60 million preparing for the 1985 drilling season. It was not until April 22, 1985, a full year after the lease sales were conducted and five months after Gambell I was decided that appellants filed a complaint arguing that Lease Sale No. 83 should also be voided. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court set forth three factors to be used for determining whether to apply a court decision retroactively. The majority concedes that Gambell I established a new principle of law. This weighs in favor of not applying Gambell I to Lease No. 83. I disagree, however, with the majority’s conclusions as to the other two factors. The majority concludes, without providing an adequate explanation, that the retroactive application of Gambell I would further the operation of the statute. Contrary to the majority’s assertion, the trial court specifically found that there is no reason to believe that any aspect of Sale No. 83 will restrict subsistence uses. Moreover, retroactive application of Gambell I is unnecessary to achieve the statute’s goals. Instead, those goals can be fully realized by a declaration that ANILCA evaluations must be published for future Alaska OCS sales and that the evaluations must be prepared for the exploration and development/production plans of all prior sales. Applying the third factor, the majority finds that no substantial inequitable results would follow from retroactive application. The majority views any financial loss which the appellees may have suffered as a calculated risk on their part because an appeal was pending in this court on Lease No. 57. I do not agree. As noted earlier, appellants did not object to Lease Sale No. 83. Nor did they file any objections to the plans of exploration which were approved. When the oil companies made their expenditures they were relying on a valid court judgment and relying on approved plans of exploration. To hold that those oil companies were taking a “risk” is an unfair characterization of the circumstances. To now apply a new legal principle which is unnecessary to advance the goals of a statute defies the concept of fair play. III. I believe this court, as in Gambell /, is not giving the trial court adequate guidance. In footnote 2 of its opinion, the majority states that “[i]n the absence of a fully developed trial record, we cannot now decide whether a permanent injunction should issue in this matter.” Such a statement leads me to ask: What additional facts are necessary? Can the appellants produce any additional evidence that will be relevant to the decision whether a permanent injunction should be issued? I think not. The majority holds that a violation of environmental statute, absent exceptional circumstances, requires that an injunction be issued. The majority finds that no exceptional circumstances exist here and that the Secretary of Interior has violated an environmental statute. Therefore, under the majority’s holding, a permanent injunction must be issued. This court should also tell the trial court what will constitute acceptable compliance. That is, will a section 810 analysis performed after a lease sale satisfy the statute’s requirements? This issue is critical because the Department of Interior complied with the requirements of section 810 but did so after the lease sale. If a post-sale section 810 analysis will not satisfy the statute’s requirements, the sales of Leases Nos. 57 and 83 must be voided. If a post-sale section 810 analysis is satisfactory, then the majority should clearly state this. Then the trial court, on remand, could determine whether the two studies done after the sale are adequate. Such a holding would not require that post-sale compliance would, always be satisfactory. Under the circumstances of this case, however, allowing post-sale compliance may well be appropriate. In future lease sales, post-sale analysis may not be satisfactory since the Department of Interior now has notice that it must comply with section 810 before such sales. The majority fails to address this issue. Consequently, the trial court will be forced once again, as it was after Gambell I, to decide a question of law. The losing party will appeal which will result in more delay and uncertainty as to the parties’ rights. Because this issue has not been resolved, we will, in all probability, see Gambell III before Rambo III. I therefore dissent, respectfully. . The majority promulgates this rule as if it were well settled. That is not the case. If it were this court in Gambell I would have directed the trial court to enter an injunction since it was evident at that time that an environmental statute had been violated and that no unusual circumstances existed. . The majority fails to specify what irreparable harms appellants will suffer and I fail to find any. . The three factors are: (1) does the decision establish a new principle of law; (2) will retroactive application of the decision further or retard its application; and (3) is it equitable to apply the decision retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). . The majority states that if it were to decide this issue it would be usurping the function of the district court. I cannot agree that providing the trial court with adequate guidance as to the proper application of the law can ever be characterized as usurping its function. . Less than six months after Gambell I was decided, the Department of Interior performed a section 810 analysis for Lease No. 57 finding that the sale would not significantly restrict subsistence uses. Less than one month after Gambell I, the Department performed an OCS Environmental Assessment which included a section 810 analysis for Exxon’s, ARCO's, and Amoco’s plans of exploration for tracts in Lease No. 83. In that assessment, the Department of Interior found that the exploration proposals of the three oil companies would not significantly restrict subsistence uses.

Concerned Residents of Buck Hill Falls v. Grant

OPINION OF THE COURT Before VAN DUSEN, ADAMS and WEIS, Circuit Judges. VAN DUSEN, Circuit Judge. This appeal challenges a December 31, 1974, order vacating approvals previously given for a project for the construction of a flood control dam (Pa-466), since the project violates the National Environmental Policy Act of 1969, 42 U.S.C. § 4321ff., and permanently enjoining defendants from taking any further action with respect to such construction until final approval by the appropriate Government officials after the filing and consideration of an environmental impact statement. As explained more fully below, an opinion filed on January 24, 1975, makes clear that the court concluded that there had been a substantive violation of § 5 of the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1005. The defendants appeal only from this conclusion that there has been a violation of 16 U.S.C. § 1005. We vacate the December 31, 1974, order only to the extent that it holds there has been a violation in the failure to apply to Dam Pa-466 only the benefits-costs determination required by 16 U.S.C. § 1005 and remand for further proceedings consistent with this opinion, including the filing and consideration of an environmental impact statement. The area near Canadensis, Pa., is located at the confluence of several of the rivers and creeks that wind through the Pocono Mountain region of northeastern Pennsylvania, and, during recent decades, has been the scene of recurrent floods that have exacted a heavy toll in both human life and property. To mitigate the threat posed by the flooding, local governmental authorities and the Soil Conservation Service (SCS) of the Department of Agriculture (USDA), acting under authority of the Watershed Protection and Flood Prevention Act of 1954, 16 U.S.C. § 1001 et seq. (P.L. 566), developed a Work Plan for the construction of four floodwater detention dams north and west of Canadensis. This appeal from a final injunction restraining responsible SCS and USD A officials from awarding a contract for the construction of one of those dams (Dam Pa-466), presents as the principal issue whether § 5 of P.L. 566, 16 U.S.C. § 1001 et seq., as interpreted and applied, requires as a prerequisite to federal assistance that the benefits of Dam Pa-466 exceed its costs. The floodwater detention dam at issue is a $2 million, 90-foot high, earthen structure proposed for construction along the Buck Hill Creek, a tributary of the Brodhead Creek. It is part of the four dam project originally envisioned for the Brodhead Creek area above Canadensis. A Work Plan prepared in March of 1961 described the project and provided, inter alia, that SCS would pay for the major portion of construction costs while the Monroe County Commissioners would acquire all necessary easements and rights of way (474a). The Work Plan also contained a cost/benefit analysis which ascribed to the project, evaluated as a whole, a benefit to cost ratio of 1.2 to 1. Pursuant to the Act, the 1961 Work Plan was transmitted to Congress where it was approved by resolutions of the Agriculture Committees of both Houses of Congress. See 16 U.S.C. §§ 1002, 1005(3). Due primarily to Monroe County’s failure to acquire certain rights of way from the Buck Hill Falls Co., little progress towards actual construction of the project was made during the years subsequent to 1961. In February of 1970, however, Buck Hill Falls Co. conveyed the necessary rights of way for a nominal consideration, subject to the condition that one of the four dams be deleted and Dam Pa-463 be modified as it was described in the 1961 Work Plan. These changes were incorporated into a Supplemental Watershed Work Plan issued in October of 1971. The Supplemental Work Plan contained an updated average annual cost/benefit analysis which fixed the benefit to cost ratio at 1.8 to 1. The project was again evaluated as a whole. SCS computed average annual cost by using a 3.25% discount rate. All but one of the dams now remaining in the Brodhead Creek Watershed Project have either been completed or are now under construction. The third dam, however, Pa-466, has drawn the opposition of plaintiffs, who commenced this class action on December 10, 1974, seeking an injunction against the awarding of a contract for the construction of the dam. In addition to asserting a claim under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., plaintiffs alleged that SCS’s decision to award the contract violated § 5 of P.L. 566, 16 U.S.C. § 1005(1), which authorizes federal participation in the construction of “works of improvement” only “[a]t such time as the Secretary [of Agriculture] and the interested local organizations have agreed on a plan for works of improvement and the Secretary has determined that the benefits exceed the costs.” In support of their claim, plaintiffs contended that under § 5, as interpreted and applied by SCS, Dam Pa-466, viewed in isolation, must exhibit benefits exceeding its costs, regardless of the cost/benefit ratio of the Watershed Project evaluated as a whole. Plaintiffs contended that separately evaluated, the costs of Dam Pa-466 exceeded its benefits. After conducting a five-day trial on the consolidated motions for preliminary and final injunctive relief, the district court, on December 31, 1974, entered an injunction carrying out its conclusions that filing of an environmental impact statement (EIS) was required and that the decision to construct Dam Pa-466 violated § 5 of P.L. 566. The district court expressly agreed with plaintiffs’ contention that separate cost justification is required for each dam in a multidam project. The court also concluded, inter alia that SCS had utilized an improperly low discount rate (3.25%) in violation of § 80 of the Water Resources Development Act, 42 U.S.C. § 1962d-17. This timely appeal followed. SCS does not challenge the district court’s determination that an EIS is required under the circumstances of this case. With respect to P.L. 566, however, SCS contends that neither its cost/benefit determinations nor its decision to use a 3.25% discount is subject to judicial review. On the merits, SCS argues that neither § 5 of P.L. 566 nor its own project evaluation procedures require separate cost/benefit justifications for individual structures in a multi-dam watershed project. In SCS’s view, all that was required under the circumstances of this case was that the benefits of the project, evaluated as a whole, exceed its costs. I. THE AVAILABILITY OF JUDICIAL REVIEW Our analysis of the availability of judicial review begins with the question of whether plaintiffs have standing to sue and with § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702. As interpreted by the Supreme Court, a person is “adversely affected or aggrieved within the meaning of a relevant statute” and hence has standing to sue under ’§ 10 if he alleges (1) that he has or will sustain some actual or threatened injury in fact resulting from the challenged agency action, and (2) that the alleged injury is to an interest “arguably within the zone of interests to be protected or regulated by the statute in question.” Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); see e. g., United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). The plaintiffs in this litigation are owners of property and residences situated in the area immediately surrounding the proposed dam. They have alleged that construction of the dam will diminish the value of their properties and impair their enjoyment of the area’s recreational and aesthetic resources. Such economic and conservational interests are clearly sufficient to satisfy the requirement of injury in fact. See, e. g., United States v. SCRAP, supra, 412 U.S. at 686, 93 S.Ct. 2405. In addition, we believe that the various interests asserted by plaintiffs are “arguably” within the zone of interests to be protected by P.L. 566. Our view is based on the apparent purpose of the Act to benefit the residents of areas affected by flood dangers. And it is further supported by the language of § 1 of the Act, 16 U.S.C. § 1001, which identifies as one of the purposes of the statute the goal of “preserving, protecting and improving the Nation’s land and water resources and the quality of the environment.” Although plaintiffs might have had some difficulty satisfying the Data Processing test, if our analysis were focused exclusively on the purposes of the cost/benefit requirement of § 5, we do not believe the scope of our inquiry is so circumscribed. Davis v. Romney, 490 F.2d 1360, 1365 (3d Cir. 1974), makes clear that we are to examine “the statute, not the particular provision purportedly violated, to ascertain whether plaintiffs were ‘aggrieved . . within the meaning of a relevant statute.’ ” See 5 U.S.C. § 702. Apart from the question of standing to sue, our inquiry into the availability of judicial review requires a separate examination of whether Congress has placed the agency’s action beyond the reach of judicial cognizance. Section 10 of the APA provides for judicial review of agency action “except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). As the party claiming the applicability of these exceptions to the general rule of reviewability, SCS bears the heavy burden of demonstrating by “clear and convincing evidence” that Congress intended to restrict access to the courts. Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 41 L.Ed.2d 377 (1975); Barlow v. Collins, 397 U.S. 159, 166-67, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); A. O. Smith v. FTC, 530 F.2d 515, 521 (3d Cir. 1976). For the reasons set forth below, we believe SCS has failed to meet that burden with respect to either cost/benefit analyses under P.L. 566 or the Secretary’s choice of discount rates under the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17. Section 5 of the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1005(3), requires that a copy of any plan for “works of improvement” and a justification therefor be transmitted to Congress whenever, inter alia, the estimated federal contributions to construction costs exceeds $250,000. The purpose of this requirement is made clear in § 2 of the Act, 16 U.S.C. § 1002, which states: “No appropriation shall be made for any plan involving an estimated Federal, contribution to construction costs in excess of $250,000, . . unless such plan has been approved by resolutions adopted by the appropriate committees of the Senate and House of Representatives: In SCS’s view, this statutory scheme vests all oversight responsibilities in the congressional committees and in Congress as a whole through the appropriation process. Thus, the argument continues, the Watershed Protection and Flood Prevention Act is a statute that implicitly “preclude[s] judicial review.” See 5 U.S.C. § 701(a)(1). The critical difficulty with SCS’s argument is that it rests on an invalid major premise — that the purpose of the legislative scheme is to give Congress exclusive jurisdiction to enforce the substantive requirements of the Act. SCS has pointed to nothing on the face of the statute or in its legislative history that indicates Congress viewed itself as the final arbiter of whether a project plan complied with the Act’s mandate that benefits exceed costs. The Act does not require the Secretary to prepare a written cost/benefit analysis. And the sections requiring committee approvals as a prerequisite to appropriations state only that the “plan and the justification therefor” must be transmitted to Congress. If Congress had intended to assume the duty of ensuring that benefits exceeded costs, we believe it would have explicitly required preparation and transmission to Congress of a written economic analysis. Further, review of economic data can be quite time-consuming and we are reluctant to impose the burden of such review on Congress where Congress may well have viewed the scheme it established as a means of freeing itself from the onus of individually authorizing watershed projects. Particularly because the approval requirement applies only to the bigger and more expensive projects, we believe Congress viewed the committee approval process essentially as a budget control measure, rather than as the exclusive means of ensuring SCS compliance with the substantive mandates of the Act. Cf. Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973); 40 U.S.C. § 606(a). Our conclusion is in harmony with the series of cases on which SCS principally relies, all of which arose under the Flood Control Act of 1936, 33 U.S.C. § 701a et seq. In each of those cases the courts refused to examine cost/benefit analyses prepared by the Corps of Engineers because Congress had specifically authorized the projects in question after receiving and reviewing the reports. Unlike P.L. 566, no substantive provision of the Flood Control Act of 1936 required an administrative official to determine that benefits exceeded costs before proceeding. More significantly, the individual projects in the cases cited to us were specifically authorized by Congress after consideration of their economic merits. P.L! 566, in contrast, does not provide for individual project authorization and no such authorization has been passed. We have also concluded that the Secretary’s choice of discount rates under § 80 of the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17, is subject to judicial review under appropriately limited standards. Section 80 authorizes use of the 3.25% discount rate employed by SCS in the October 1971 Supplemental Work Plan only if “the appropriate non-Federal interests [gave] . . . satisfactory assurances to pay the required non-Federal share of project costs . . . ” prior to December 31, 1969. Relying on Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn.1972), SCS contends that the “extent” of the Secretary’s discretion under this statute is so great that the determination of whether any “assurances” are “satisfactory” has been “committed to agency discretion by law” and hence is unreviewable. 5 U.S.C. § 701(a)(2). Cases falling within this “very narrow exception” are “rare” for the exception applies only “where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). In our view, this is not such a case. See Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968). The statute indisputably vests a broad discretion in the Secretary. But that discretion is not wholly without judicially discernible limits. Although the administrative and legislative history of the Act does not define the phrase “satisfactory assurances,” it does furnish at least some “law” against which a court can measure the Secretary’s determination. Furthermore, the subject matter requires no special expertise and is not of such a nature that judicial consideration is for any other reason impractical or inappropriate. II. THE MERITS The principal issue on the merits of this appeal is whether each individual dam in a multi-dam watershed project must have a benefit to cost ratio of greater than 1 to 1 before federal assistance in the construction of the dam is permissible. For the reasons set forth below, we conclude that multi-dam watershed projects may be cost analyzed as a single unit and that, under the circumstances shown in this record, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), to treat the dams in the Brodhead Creek project as a single unit. It is clear at the outset that nothing in the Act itself requires that each individual “work of improvement” proposed in a multi-unit watershed project have a favorable cost/benefit ratio. Section 5 of the Act provides in pertinent part: “At such time as the Secretary and the interested local organizations have agreed on a plan for works of improvement, and the Secretary has determined that the benefits exceed costs . . . the Secretary is authorized ... to participate in the installation of such works of improvement in accordance with the plan.” 16 U.S.C. § 1005(1). As we understand it, § 5 requires only that the benefits of every “plan” exceed the costs associated with implementing the plan; not that every segment of the plan be cost-justified when viewed in isolation. Furthermore, § 2 of the Act explicitly states that “[a] number of sub watersheds when they are component parts of a larger watershed may be planned together when the local sponsoring organizations so desire.” 16 U.S.C. § 1002. Although the Act may thus be read to permit the cost justification as a single unit of a group of dams that have been planned together (67a), plaintiffs contend that SCS’s own project evaluation manuals — The Watershed Protection Handbook (Handbook) and the Economics Guide for Watershed Protection and Flood Prevention (Guide)— mandate separate evaluations for individual dams. SCS vigorously disputes this interpretation of its own economic evaluation procedures. The Guide and the Handbook each establish a three-step project formulation and evaluation procedure. The required steps, as described in the Handbook, are as follows: 1. “Reach agreement with the sponsoring local organization on a minimum level of protection to solve the flood problems of the entire watershed community.” 2. “For each hydrologic unit having an essentially separate flood plain, develop the least costly system of measures . which are needed to achieve the agreed upon levels of protection . .” 3. “Evaluate the benefits that will accrue to each system.” It is apparent from the language quoted above that a group of separate measures may be treated as a unitary “system of measures” and may be evaluated together as long as the individual dams do not have “essentially separate flood plain[s]” and are designed to meet agreed upon levels of protection. This point is made particularly in the Guide which discusses the concept of “Evaluation Units” and states: “In project formulation consideration needs to be given to the interrelationship of structures. Such an interrelationship exists when a group of structures protect a common flood plain. Here the most economical system for attaining the agreed upon level of protection may be evaluated as a unit.” In reaching its conclusion that the Guide requires a separate cost/benefit justification for each dam in a multidam watershed project, the district court relied exclusively on a passage from Chapter 1 of the Guide. However, SCS interprets the language of that passage, which we have set out in the margin, in a manner that is consistent with the principle that interrelated structures may be evaluated together. And, in our view, that interpretation is reasonable and must therefore be accepted. See, e. g., Lucas Coal Co. v. Interior Bd. of Mine Operations App., 522 F.2d 581, 584 (3d Cir. 1975). To parry the thrust of the foregoing view of the evaluation procedures established in the Guide and the Handbook, plaintiffs point out that the Guide articulates a principle of - “maximizing net benefits” which appears to be applicable to all project evaluations. As explained in the Guide: “From an economic viewpoint, the optimum scale of project development is the point at which net benefits are at a maximum. Net benefits are maximized when the benefits added by the last increment of scale or scope of project development are equal to the cost of adding that increment.” Guide, Chap. 2, section II-c. In plaintiffs’ view, the principle of maximizing net benefits requires SCS to evaluate each dam in a multi-dam project. Unless each dam has a favorable cost/benefit ratio, they contend, the benefit to cost ratio of the project is reduced and the maximization principle is violated. We disagree. The principal difficulty with plaintiffs’ interpretation of the maximization principle is that it is seriously inconsistent with other sections of the Guide. By requiring SCS to make separate and independent evaluations of the component parts of a project of interrelated measures, plaintiffs’ construction would undermine the apparent purpose of permitting single evaluations of groups of measures. As we have stated in an analogous context, if plaintiffs’ view were adopted it would be “difficult to see how the number of separate [evaluations] could be kept to a minimum.” McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 869 (3d Cir. 1975). In addition, under plaintiffs’ interpretation, SCS might be required to reduce the desired level of protection whenever it became apparent that reaching the desired level would involve construction of a cost-inefficient dam. But nothing in the Guide suggests that the principle of maximizing net benefits invariably takes precedence over the goal of attaining agreed upon levels of protection. In SCS’s view, there is a limited exception to the policy of maximizing net benefits where dams are interrelated in the sense that they protect a common flood plain and meet the level of protection established by SCS and the appropriate local authorities in their work plan. Although the Guide is not a model of clarity in this regard, we think this construction is more reasonable than the interpretation offered by plaintiffs, since it avoids the difficulties described above. As long as the benefits of a group of structures exceed the costs of the group and the various structures are “interrelated” in the sense that they serve to protect a common area, no purpose required by Congress or the SCS procedures would be served by requiring that the structures be located and built in such a way that the benefits of each would exceed its costs. Further, the Guide explicitly permits an exception to the maximization principle where intangible benefits, incapable of monetary evaluation, are associated with the project. Guide, Chap. 1, section I-C-2. And the 1961 Work Plan indicates that such intangible benefits were considered in the process of project formulation (471a). Since we are dealing here with materials prepared by SCS officials and used by them on a continuing basis, their interpretation of the Handbook and the Guide should be given “controlling weight” under the circumstances of this case. McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 870 n. 32 (3d Cir. 1975); Budd Co. v. Occupational Safety & Health Rev. Com’n, 513 F.2d 201, 205 (3d Cir. 1975). As we stated in Lucas Coal Co. v. Interior Bd. of Mine Operations App., 522 F.2d 581, 584 (3d Cir. 1975): “An agency’s explication of its regulations if reasonable, ... is controlling despite the existence of other interpretations that may seem even more reasonable.” Moreover, plaintiffs seem to believe that SCS is bound to follow the principles and procedures developed in the Guide in every case. However, as we have already noted, P.L. 566 itself does not mandate such evaluations. And since the Guide and the Handbook are merely internal operating procedures, rather than regulations officially promulgated under the APA or otherwise, they do not prescribe any rule of law binding on the agency. Estrada v. Hill, 401 F.Supp. 429, 437-38 (N.D.Ill.1975); Brown v. Lynn, 392 F.Supp. 559 (N.D.Ill.1975); see McCullough v. Redevelopment Authority of Wilkes-Barre, supra, 522 F.2d at 867 & n. 27. In fact, the Guide itself commences with the observation that “no single procedure can be used in every watershed” and provides that alternative procedures may therefore be used. Thus, deviations from established procedures may be tolerated. For purposes of review, the Guide and the Handbook serve only'as indicia of whether the evaluation procedures adopted in a particular case are “arbitrary and capricious.” See Estrada v. Hill, supra. And on this record, we cannot say that the decision to construct Dam Pa-466 without making a separate cost/benefit determination was “arbitrary and capricious.” The two Work Plans clearly establish that Dam Pa-466 was in fact treated as part of a single “evaluation unit.” In addition, it appears that all of the dams protect “the common damage center of Canadensis” and thus are interrelated. In the second paragraph of Chapter 2-E of the Guide (670a), this wording is used: “A simple approach is to select first a group or combination of structures that will give the desired level of protection at the least cost, then test the total group for economic feasibility. ... If the ratio of benefits to costs for the selected group is favorable, and if mutually desired, the feasibility of adding successive increments to the system up to the point where benefits are maximized may be undertaken.” It is noted that this language discusses one approach and not the exclusive approach. The level of protection agreed upon in this case was determined after discussion and consideration of the cost of protection. Although the record does not state positively that any minimum level of protection was ever agreed upon, we think the record supports the contention of SCS that the level of protection provided by the three dams established in the amended 1971 Work Plan is the level of protection ultimately agreed upon by SCS and the local sponsors of the project. Accordingly, the order of December 31, 1974, will be vacated to the extent it enjoins construction of Dam Pa-466 as a violation of P.L. 566, and the case will be remanded for further proceedings consistent with this opinion. We believe the trial judge should feel free to reconsider his determination that satisfactory assurances were not given prior to December 31, 1969 (see pages 35-36, above, including note 14). . See 530a & 515a. In 1958, the County Commissioners and the Soil and Water Conservation Districts of both Pike and Monroe Counties applied for assistance under the Watershed Protection and Flood Prevention Act. The application was approved by the Governor of Pennsylvania and ultimately the planning of a watershed project was authorized by the Department of Agriculture. 16 U.S.C. § 1003. The impetus for the project was a flood in August of 1955 that claimed nine lives and caused extensive property damage in the Brodhead Creek area near (particularly north, west and south of) Canadensis. . The class consists of “all residents and visitors of the Buck Hill Falls area and others who use and enjoy the scenic and aquatic resources of the Brodhead Creek area of Monroe County, Pennsylvania.” See Concerned Residents of Buck Hill Falls v. Grant, 388 F.Supp. 394, 400 (M.D.Pa.1975). . The district court order reads as follows: “1. The project of the Defendants for the construction of Dam Pa-466 violates the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. and all approvals previously given for the project are hereby vacated. “2. The Defendants are hereby permanently enjoined from taking any further action with respect to the construction of Dam Pa-466, including, but not limited to, the awarding of a construction contract for the disturbance of any land at the site of the proposed dam, unless and until the project shall have been given final approval by the appropriate governmental officials after the filing and consideration of an environmental impact statement.” (54a-55a). In view of the time pressures existing when this order was entered, it is understandably not a model of clarity. The district court’s opinion filed January 24, 1975, makes it clear that the district court found a substantive violation of § 5 of the Watershed Protection and Flood Prevention Act. And the opinion concludes with the words “An order in conformance with this Opinion has been issued.” Concerned Residents of Buck Hill Falls v. Grant, 388 F.Supp. 394, 400 (M.D.Pa.1975). Construing the order in light of the opinion, we conclude that the December 31, 1974, order disposes of the claim under the Watershed Protection and Flood Prevention Act by vacating the Secretary’s approval of construction. . The district court also concluded that SCS had improperly computed the cost of the rights-of-way by using actual costs figures, rather than fair market values, and found that SCS figures failed to take account of the energy crisis. The court found it unnecessary to determine whether the Act required resubmission of the Plan to Congress in light of the changes made in 1971, and did not discuss a number of other challenges plaintiffs levelled at the methodology of the cost/benefit analysis. . As to the propriety of the 3.25% discount rate, see text below at page 35 and note 14. . The notice of appeal was filed March 3, 1975, the 60th day. F.R.A.P. 4(a), 26(a). . Supplemental briefs addressed to the issue of standing were filed by both parties in response to a request for such briefs made by the court at oral argument. We felt that the standing question was sufficiently related to the issue of reviewability and was sufficiently important that the parties should have the opportunity to express their views in writing. . Complaint, "1, 8-10. . SCS correctly points out that the phrases “and improving” and “and the quality of the environment” were not part of the Watershed Protection and Flood Prevention Act as originally enacted, but were added by § 201 of the Redevelopment Act of 1972, 86 Stat. 667. We attach no significance to this fact since we believe the added language is merely declaratory of the original purpose of the Act, and, in any event, is not crucial to our conclusion. . Individual project authorization is required under the Flood Control Act of 1936, for example. 33 U.S.C. § 701a et seq. . See, e. g., Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Sierra Club v. Froehlke, 345 F.Supp. 440 (W.D.Wis. 1972), aff’d, 486 F.2d 946 (7th Cir. 1973). Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941), is inapposite. That case involved a constitutional challenge to congressional authority under the commerce power to authorize construction of a dam on the Red River in Texas and Oklahoma. The court’s refusal to examine the validity of the project planning reports that led to the decision to proceed must be considered in that constitutional context. . General appropriations to SCS and project approval by the Agriculture Committees of both Houses of Congress are the only congressional action required as a prerequisite to expenditure of funds in this case. Appropriations acts generally cannot serve as a vehicle of substantive legislation or as a ratification of prior agency action. See Environmental Defense Fund v. Froehlke, 473 F.2d 346, 354-55 (8th Cir. 1972); Sierra Club v. Froehlke, 345 F.Supp. 440, 446 (W.D.Wis. 1972), aff’d, 486 F.2d 946 (7th Cir. 1973). We are unwilling to assume that Congress, without consideration of the constitutional issues, intended to invest congressional committees with the power to excuse violations of § 5 of the Act. Cf. Montgomery v. Ellis, 364 F.Supp. 517, 532 n. 7 (N.D. Ala. 1973) (dictum). . Although we have found it unnecessary to reach the merits of the Water Resources Development Act issue involved in this case, we believe it is appropriate, in view of the jurisdictional nature of the reviewability question, to discuss that issue at this juncture. . The opinion of the district court does not appear to explain the factual basis for its conclusion (page 409 of 388 F.Supp.) that satisfactory assurances were not obtained. Since the Monroe County Commissioners were vigorously negotiating for the rights of way during 1969 and exhibited a continuing interest in advancing the project during that period (427--29a), satisfactory assurances would appear to have been given if the agreement to grant the rights of way had been secured on or before December 31, 1969. Also, such assurances could have been given even without any final agreement by that date. Read in this context, their promise to provide the land could well be viewed as a “satisfactory assurance.” . See Citizens to Preserve Overton Park, supra at 410, 91 S.Ct. 814. . Handbook, § 105-0222 (603-04a); see Guide, Chap. 2, section I-B-2-b-c (665-66a). . Guide, Chap. 2, section II-D (669a); see Handbook, § 102.02 (574a), and note 20, infra. . “To facilitate construction and assure that any measures installed will provide benefits at least equal to their costs, benefits which will accrue to measures or groups of measures within a system should be identified. This requires that a number of separate evaluations be made in a given watershed, including those for subdivisions of the measures and subdivisions of the watershed. The physical interdependence of many measures, however, reduces the number of possible separate appraisals.” (Emphasis added.) Guide, Chap. 1, section I-c (658a). . Plaintiffs also rely on passages from Guide, Chap. 1, section II-A-3, and Chap. 2, I-C-l-b. We have considered those passages and concluded that they provide no support for plaintiffs’ position on this record. . Guide, Chap. 2, section II-D states: “Within a given purpose the first unit for evaluation should be the scale of development that will meet the minimum needs for that purpose. For example, if it has been determined that an irrigation project needs a firm water supply of at least 500 acre-feet annually, there is no point in evaluating a project that will supply but 250.” Guide, Chap. 2, section II-E states: “E. Planning a System of Single-Purpose Interdependent Structures “Usually, in planning projects, situations will be found where several proposed structures are interrelated in such a manner that each contributes to flood damage reduction in a particular reach or reaches of a flood plain, and removal of any one structure from the system will change the degree of protection afforded by the system. In this situation, the economic analysis can be handled in several ways, depending upon the amount of basic physical and economic data that will be available for analysis. “A simple approach is to select first a group or combination of structures that will give the desired level of protection at the least cost, then test the total group for economic feasibility.” . See generally Note, Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629 (1974). . Thus the fact that Chap. 13 of the Guide normally requires land to be valued for cost purposes at fair market value does not mean that, in some circumstances, actual cost figures cannot be used. . The 1961 Work Plan states: “The structures are all located above the common damage center of Canadensis where the principal damage occurs and were considered as one evaluation unit.” 482a. See also 512a, 514a. With one exception in 1961, where costs and benefits were computed on a dam-by-dam basis but no ratios were calculated (495a), the benefits and costs were compared on a project basis in both plans (460a, 473a, 494a, 507a, 514a). . 482a. Although the matter is not free from xdoubt, it appears that each dam in the project “contributes to flood damage reduction . in reaches of a flood plain” and it is undisputed that removal of Dam Pa-466 would reduce the overall degree of protection. Guide, Chap. 2, section II-E. See map at 530a. In the absence of evidence indicating that the structures protect a “discontinuous flood plain,” Guide, Chap. 2, section II-D, we cannot say it was an abuse of discretion to treat the dams as being functionally interrelated. . This wording refers to the desired level of protection, rather than the minimum level of protection. The references to the “minimum level of protection” in Handbook 105.0222 and Guide 2-D may be more relevant to the formulation of projects than to the administration of benefit/cost analysis. . The 1961 Work Plan states: “It was determined that . . [four dams] . . . would give the desired degree of protection.” We attach no significance to the fact that the level of protection was lowered by mutual agreement in 1971. The changes were effected at the request of the local sponsors and they ultimately agreed to proceed with the plan as amended.

Freeman v. Town of Hudson

HOWARD, Circuit Judge. Plaintiffs Charles and Daniela Freeman appeal the dismissal of their section 1983 suit against the Town of Hudson, Massachusetts, one of its agencies, and several state and local officials. The events giving rise to this suit grew out of an allegation that the Freemans had breached a conservation restriction appurtenant to their Hudson home. Like the magistrate judge and district judge, we conclude that the Freemans’ complaint does not plead facts sufficient to support any of their federal claims, and we therefore affirm the judgment. I. Background As the dismissal was entered pursuant to Federal Rule of. Civil Procedure 12(b)(6), we take the facts from the Free-mans’ complaint and draw all reasonable inferences in their favor. San Juan Cable, LLC. v. P.R. Tel. Co., 612 F.3d 25, 28 (1st Cir.2010). According to the complaint, what began as a dispute between neighbors turned into a concerted effort by the Town and the Commonwealth of Massachusetts to deprive the Freemans of their constitutional rights. The plaintiffs insinuate a common sentiment, if not a common objective, running through the defendants’ actions. For ease of-exposition, however, we dissever the allegations into smaller episodes. A. Conservation Commission Defendants In late fall of 2009, Hudson Police Sergeant Thomas Crippen, the Freemans’ neighbor, informed the Hudson Conservation Commission that the Freemans were building a tree house in a conservation restriction area (“Parcel B”) on their property. In response, the Commission ordered the Freemans to cease and desist from any further activity in Parcel B until a scheduled Commission meeting in early December 2009. The property had previously been subject to an Order of Conditions issued by the Commission in 2007. At the December meeting, Mr. Freeman conceded that the tree house was built in the conservation restriction area and agreed to move it. The Commission then questioned whether the Freemans were complying with state and local land-use laws relating to their property. Although the Commission had previously issued a Certificate of Compliance for the property (7 Freeman Circle) in 2008, a few weeks after the December meeting it determined that the Freemans had subsequently breached their obligations and that additional work was necessary to remedy the violations. As a consequence, in January 2010 the Freemans’ engineer presented a preliminary plan relating to remediation at 7 Freeman Circle. It appears that the Commission viewed this plan as insufficient, as it warned the Freemans that it would involve the Massachusetts Department of Environmental Protection (“DEP”) if the Freemans did not comply with its determinations. In June 2010 the Commission issued a new Order of Conditions for 7 Freeman Circle detailing what modifications were required. The Freemans appealed this order to DEP. Once involved in the case, DEP indicated that state enforcement would follow if the Freemans and the Commission could not resolve the issue at the local level. In response, the Freemans terminated their appeal of the Order of Conditions in September and began compliance work. Unaware that the Freemans had dropped the appeal, Commission Administrator Debbie Craig, accompanied by police escort, served Mr. Freeman a cease and desist order the same day that work began. For the next several days, members of the Commission ordered Mr. Freeman not to work on the property while they ascertained the legal status of the Freemans’ appeal. On each of these visits to the Freemans’ property, the Commission members were accompanied by Hudson Police officers. The Freemans allege that throughout this process the defendants displayed heavy-handed tactics toward them and their associates. At a January meeting, Commission Chairman Paul Byrne and Commission Member David Esteves spoke with open hostility toward Mr. Freeman. Moreover, Byrne and Craig spoke disparagingly about Mr. Freeman to third parties during the course of the ongoing dispute. Also, Esteves uprooted a portion of a silt fence on the Freemans’ property, claiming that it was installed incorrectly, although a subsequent determination indicated that the fence met all installation requirements. According to the complaint, this hostile attitude pervaded DEP thinking as well. The complaint includes emails written by Joseph Bellino, a DEP employee, to show that DEP officials lacked impartiality in dealing with the Freemans. The Freemans further contend that, while zealously enforcing land-use laws against them, the Commission took little or no action against the Freemans’ neighbors—the Crippens and the MacPhees. The Crippens had constructed a pool in the 100-foot buffer zone adjacent to Parcel B, and the MacPhees had cut down trees in Parcel B and laid down planks for a walking path. In neither ease did the Commission issue an order, and the Free-mans assert that these violations largely went uncorrected. B. Police Department Defendants In retaliation for the Freemans’ dispute with the Crippens, the Police Department defendants purportedly pursued trumped-up criminal charges against Mr. Freeman. After an unpleasant encounter with Mr. Freeman, neighbor Dana MacPhee spoke with Crippen and Hudson Police Captain David Stephens about Mr. Freeman’s conduct. .Without further investigating the matter, Stephens filed charges against Mr. Freeman for criminal harassment and threat to commit a crime. Although Mr. Freeman had committed no physical acts of violence, Stephens successfully argued to the court that Mr. Freeman should not be given notice of his probable cause hearing because he posed an imminent threat of violence to MacPhee. Stephens and Crippen both spoke with the prosecutor about the case on separate occasions. By January 2012, all charges had been dropped against Mr. Freeman. C. Building Commissioner Defendant Finally, the Freemans claim that Hudson Building Commissioner Jeff Wood selectively enforced zoning laws against Mr. Freeman, who had posted a sign advertising his company at a work site. The complaint avers that the posting of such signs is standard practice among contractors, but Wood issued a violation notice to the property- owner for displaying the sign. II. Discussion A. Standard of Review Our review of a district court’s dismissal of a complaint under Rule 12(b)(6) is de novo. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir.2011). As such, we are free to affirm an order of dismissal on any basis made apparent from the record. See Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008). In order to survive a motion to dismiss, the complaint must include “enough detail to provide a defendant with ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Ocasio-Hernández, 640 F.3d at 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While we need not give weight to legal conclusions contained in the complaint, “[n]on-conclu-sory factual allegations ... must [ ] be treated as true.” Id. B. Scope of the Record Before moving to the heart of the Free-mans’ appeal, we consider the question of which documents were properly before the district court when it decided the motion to dismiss. On a motion to dismiss, a court ordinarily may only consider facts alleged in the complaint and exhibits attached thereto, Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993), or else convert the motion into one for summary judgment. Id.; Fed.R.Civ.P. 12(d). Here, the Free-mans appended twenty-five exhibits to their complaint. Subsequently, both parties submitted a flurry of extrinsic exhibits for the district court’s consideration on the motion to dismiss. The court took account of some documents but excluded others. The Freemans challenge the court’s decision not to consider six documents that they submitted, while simultaneously suggesting that the court relied on those very same documents in its order, presumably to the Freemans’ detriment. Under certain “narrow exceptions,” some extrinsic documents may be considered without converting a motion to dismiss into a motion for summary judgment. Watterson, 987 F.2d at 3. These exceptions include “documents the authenticity of which are not disputed by the parties; ... official public records; ... documents central to plaintiffs’ claim; [and] ... documents sufficiently referred to in the complaint.” Id. The plaintiffs’ submissions do not fit into any of these enumerated categories. The Freemans sought to have the court consider excerpts from the depositions of MacPhee and Stephens, given in connection with a separate civil suit, as documents sufficiently referred to in the complaint. While the complaint does make passing reference to testimony from MacPhee and Stephens, the proposed exhibits consist of excerpts that are unrelated to any matter discussed in the complaint, and therefore cannot be taken as referenced therein. The mere mention of the depositions in the complaint does not amount to sufficient reference. See Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985) (“[Limited quotation does not constitute incorporation by reference.”). The Freemans also claim that three submissions should have been considered as public records. These include a transcript of 911 calls and two Hudson Police incident reports. The Freemans ask us to adopt the expansive view that any document held in a public repository falls within the category of extrinsic materials that may be considered. It is true that, when reviewing a motion to dismiss for failure to state a claim, a court may “consider ‘matters of public record.’ ” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011). But there are limits to that license. Many documents in the possession of public agencies simply lack any indicia of reliability whatsoever. In that regard, they are unlike official records, such as birth or death certificates and other similar records of vital statistics. The Freemans cite no authority—other than Watterson—for their broad interpretation, and we have found none. Rather, the phrase “official public records” when used in the present context, appears limited, or nearly so, to documents or facts subject to judicial notice under Federal Rule of Evidence 201. Watterson, in holding that a court could consider public records on a motion to dismiss, relied on the Ninth Circuit case Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir.1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). The public record at issue in that case was a state administrative proceeding, id. at 1282, and the Ninth Circuit used the term “public records” synonymously with a document susceptible to judicial notice. Id. (citing Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979) (“We are mindful, too, that when passing on a motion attacking the legal efficacy of the plaintiffs statement of his claim, the court may properly look beyond the complaint only to items in the record of the case or to matters of general public record.”)). Our cases applying Watterson may not have endorsed this view explicitly, but the results have been consistent with this approach. See, e.g., San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 471 n. 2 (1st Cir.2012) (taking notice of state court decisions); Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 45, 47 n. 1 (1st Cir.2009) (taking notice of a state court decision); Parker v. Hurley, 514 F.3d 87, 90-91 (1st Cir.2008) (taking notice of statewide curricular standards); Greene v. Rhode Island, 398 F.3d 45, 49 (1st Cir.2005) (taking notice of federal statutes). Other than invoking the label “public records,” which is too broad a term to rely on, the Freemans make no developed argument as to why documents such as the 911 transcripts and police incident reports, which would not be subject to judicial notice, are either categorically or in this instance eligible to be considered on a motion to dismiss. They thus have waived any other claim that the documents may be considered. The Freemans’ brief contains no argument at all with respect to the final exhibit at issue, which is a photograph. Any issue regarding this exhibit is thus also waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). We must iron out one more wrinkle on this topic, involving the Freemans’ superficial assertion in their brief that “the district court mentioned facts from these exhibits in its decision.” This simple allegation could have non-trivial consequences. Reliance on facts beyond the complaint’s allegations might require converting the motion to dismiss into a motion for summary judgment. See Fed. R.Civ.P. 12(d). Although we could ignore this question as insufficiently briefed, see Zannino, 895 F.2d at 17,’ we are also satisfied that neither the magistrate judge’s Report and Recommendation nor the district court’s Order touch on facts outside the complaint. We therefore proceed to a 12(b)(6) analysis. C. Freemans’ Section 1983 Claims 42 U.S.C. § 1983 grants individuals the right to sue those acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia ... [for] the deprivation of any rights, privileges, or im-mtmities secured by the Constitution and laws.” 42 U.S.C. § 1983. To prevail, a plaintiff must show that' “the challenged conduct [is] attributable to a person acting under color of state law” and that “the conduct must have worked a denial of rights secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.1997). 1. Municipal Liability The Freemans face additional requirements in order to establish a section 1983 claim against the Town and the Commission. “A municipality cannot be held liable solely because it employs a tortfeasor .... ” Monell v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, a plaintiff must show that the violation occurred as a result of the municipality’s “policy or custom.” Id. at 694, 98 S.Ct. 2018. A single decision by a municipal policymaker constitutes official policy “only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). When determining whether a deci-sionmaker exercises final authority, “[c]ourts must look to state law, including Valid local ordinances and regulations,’ for descriptions of the duties and obligations of putative policymakers in the relevant area at issue.” Walden v. City of Providence, 596 F.3d 38, 56 (1st Cir.2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). The Freemans have advanced only a “final authority” theory of municipal liability. The complaint, however, references no state or local laws establishing the policymaking authority of any individual or group of individuals. The complaint alleges misconduct from many separate actors, but gives no guidance about which acts are properly attributable to the municipal authority. Absent this information, the complaint fails to state more than re-spondeat superior liability on the part of the Town and the Commission. This is not enough to support a section 1983 action against a municipality, Monell, 436 U.S. at 691, 98 S.Ct. 2018, and the district court correctly dismissed the claims against the Town and the Commission. We turn, then, to the claims against the individual defendants. 2. Equal Protection The Freemans allege that Conservation Commission members Byrne and Esteves, Administrator Craig, and Building Inspector Wood violated the equal protection clause of the fourteenth amendment by selectively enforcing local laws against them. An equal protection claim requires “proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to'injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir.1995) (citations omitted). Claiming no membership in a protected class, the complaint argues that the defendants arbitrarily and unfavorably singled out the Freemans as a “class of one.” To prevail on such a claim, the Freemans must show that they were “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The complaint fails to meet the “similarly situated” test, obviating any discussion of the rational basis requirement. We- have held that class-of-one claims require “an extremely high degree of similarity between [the plaintiffs] and the persons to whom they compare themselves.” Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007). In the land-use context, this means more .than “point[ing] to nearby parcels in a vacuum and leaving] it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated.” Id. a. Conservation Commission Defendants According to the complaint, Craig, Byrne and Esteves abridged the Free-mans’ equal protection rights by treating them differently from their neighbors, the Crippens and the MacPhees. While the properties of all three abut the same protected area, the similarities essentially end there. Their actions in relation to Parcel B differed in key respects, making them inapt comparators. The Commission determined that the Freemans had committed a number of violations, some of them within Parcel B and specifically governed by the Conservation Easement. By contrast, the complaint alleges that the Crip-pens drained pool water into a buffer zone and that the pool encroached into the buffer zone. These allegations fail to demonstrate that the Crippens and Freemans were “similarly situated in all relevant respects.” Barrington Cove Ltd. P’ship v. Rhode Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.2001). In the same vein, the Freemans’ allegations that the MacPhees were allowed to plant inappropriate flora, cut down certain trees and install removable planks for a walkway fail to establish a claim for relief. The Conservation Easement—which the district court considered—allowed for certain plant cutting and trail maintenance. The Free-mans, meanwhile, conceded that their tree-house violated the same Conservation Easement. Indeed, the complaint does not allege that either the Crippens or the Mac-Phees were in violation of the Conservation Easement. Against this backdrop, the Freemans cannot demonstrate that they were similarly situated to their neighbors, and their equal protection claim against the Conservation Commission defendants necessarily fails. b. Building Commissioner Wood The complaint also alleges that Building Commissioner Wood violated Mr. Freeman’s equal protection rights by selectively enforcing zoning laws against a customer who displayed Mr. Freeman’s business sign. To the extent that this conduct concerned not Mr. Freeman’s rights but those of Mr. Freeman’s customer, the action cannot be maintained. While Mr. Freeman conceivably suffered some economic harm as a result of Wood’s actions—the lost value of advertising his work in the community—this alone typically does not give rise to third-party standing. True, an “isthmian exception” does permit one to assert another’s rights in circumstances where “some barrier or practical obstacle deters a third party from asserting its rights.” Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir.2005); see also Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (stating that, in order to assert third-party standing “there must exist some hindrance to .the third party’s ability to protect his or her own interests”). Here, however, there is no allegation that the customer is incapable of asserting his or her own rights, and therefore we lack jurisdiction over this claim. Moreover, to the extent that the complaint may be read to allege an interference with Mr. Freeman’s property interest in a display license granted him by his customer, the claim does not fare any better. The complaint’s failure to do more than conclusorily state that the Freemans were both similarly situated to and treated differently from unspecified “other contractors” is insufficient to survive the defendants’ motion to dismiss. 3. Substantive Due Process 'The Freemans claim that the conduct of Town officials and DEP employee Bellino were so outrageous as to constitute substantive due process violations. Substantive due process is said to “protect individuals from particularly offensive actions on the part of government officials, even when the government employs facially neutral procedures in carrying out those actions.” Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir.2006). Such claims are limited to government action that, by its very nature, “shock[s] the conscience,” id., and we reserve it for “truly horrendous 'situations.” Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.1992). Evidence that officials “exceeded] [their] authority under the relevant state statutes” does not automatically trigger the due process clause. Amsden v. Moran, 904 F.2d 748, 757 (1st Cir.1990) (internal quotation marks and citations omitted). In this case, neither the complaint as a whole nor any of its allegations meet the burden of establishing a substantive due process violation. a. Conservation Commission Defendants Upon review, nothing in the actions of Byrne, Craig and Esteves reaches the level of conscience-shocking behavior. The Commission retained jurisdiction over Parcel B at all relevant times and had the power to remedy environmental violations at 7 Freeman Circle. The Freemans disagree with the legal conclusions of the Commission and believe that the Commission reached these erroneous conclusions in bad faith. Even if this is true, “[s]uch a claim is too typical of the run of the mill dispute between a developer and a town planning agency, regardless ... of defendants’ alleged mental states, to rise to the level of a due process violation.” Creative Env’ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982). Our prior cases are replete with plaintiffs who, alleging comparable conduct, failed to sustain substantive due process claims. See, e.g., Mongeau v. City of Marlborough, 492 F.3d 14 (1st Cir.2007) (where a town official interfered in the zoning process for improper reasons); Licari v. Ferruzzi, 22 F.3d 344 (1st Cir.1994) (where a town revoked building permits due to alleged hostility and animus); PFZ Props., Inc. v. Rodriguez, 928 F.2d 28 (1st Cir.1991) (where a planning board refused to process construction drawings), rev’d on other grounds en banc, San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465 (1st Cir.2012). As in those cases, here the Freemans’ grievances do not support a substantive due process claim. b. Commonwealth of Massachusetts Defendant Bellino The Freemans contend that Belli-no, a DEP employee, exercised the muscle behind the Commission’s scheme; the threat of DEP enforcement “sledgehammer[ed]” the Freemans into compliance. But DEP is statutorily authorized to enforce applicable laws, see M.G.L. c. 131, § 40, and the Freemans appealed the June 2010 Order of Conditions to DEP, thereby ensuring its involvement. While DEP’s participation might have influenced the Freemans, that does not render such participation improper; Moreover, Bellino’s conduct throughout this process was not so “shocking or violative of universal standards of decency” as to give rise to a due process violation. Amsden, 904 F.2d at 757 (quoting Furtado v. Bishop, 604 F.2d 80, 95 (1st Cir.1979)). His communications to Town officials did evince a certain hostility toward the Freemans. The plaintiffs have not shown, however, that Bellino’s third-party communications affected their constitutional rights. .While these communications may have been in bad taste, they do not constitute violations of the Free-mans’ substantive due process rights. c. Police Department Defendants Finally, Mr. Freeman claims that the Police Department defendants violated his substantive due process rights by pushing unsupported criminal charges against him for personal reasons. Sifting through the many aspersions contained in the complaint, however, reveals only “a garden-variety claim of maliciqus prosecution.” Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir.1996). “ ‘[Substantive due. process may not furnish the constitutional peg on which to hang’ [a malicious prosecution tort].” Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.2001) (quoting Albright v. Oliver, 510 U.S. 266, 271 n. 4, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). While the complaint may be read to allege a plot on the part of Police Department officials and MacPhee to bring charges against Mr. Freeman, it also acknowledges that these charges were predicated on prior incidents between MacPhee and Mr. Freeman. Thus, while the Police Department defendants may or may not have acted with malice, they did not act in the absence of any evidence. Furthermore, none of the Police Department’s subsequent actions—failing to investigate further, obtaining an ex parte probable cause hearing, and discussing the case with the prosecutor—shock the conscience. If, as alleged, improper personal motivations caused the investigation to follow a certain course, that fact may form the basis for a claim of malicious prosecution, but not a due process violation. III. Conclusion For the foregoing reasons, the district court’s judgment dismissing the Freemans’ section 1983 claims is affirmed. . Byrne made a thinly veiled reference to Mr. Freeman's dishonesty by stating, "If I was a farmer, I would not put the fox in charge of the hen house because all the hens will disappear." . The complaint listed DEP as a defendant. The district court dismissed all claims against DEP, and the Freemans have not appealed that decision. .The most provocative email (between Belli-no and Craig) refers to the sale of the Free-mans’ home in the following terms: "1.175 million—A Bahgain !!!!! Of course that doesn’t include our $$$$$ [referring to a possible DEP fine]." . The complaint also alleges that Electrical Inspector Thomas Thorburn selectively enforced licensing requirements against the Freemans' electrician. The Freemans have not pursued this allegation on appeal. . We have not previously clarified the standard of review that governs a court’s determination that documents external to the complaint cannot be relied upon under Rule 12(b)(6). Because we would uphold the district court’s judgment pursuant to either de novo or abuse of discretion review, we need not reach the issue here. . The complaint also listed the Town of Hudson Police Department as a defendant. The district court, while dismissing all federal claims, did not specifically discuss the Police Department’s liability. However, the Free-mans have also failed to raise this issue on appeal, and therefore it is waived. . The Freemans admit to having constructed a treehouse in Parcel B. Additionally, the 2010 Order of Conditions found numerous violations relating to the placement of fences and walls, the amount of fill on the property, and the construction of other unauthorized structures. . The parties’ briefs suggest that a malicious prosecution claim against the Police Department defendants is pending in state court.

Mayes v. City of Dallas

TATE, Circuit Judge: The plaintiff Mayes owns a home within a historic preservation district in Dallas, Texas, created by city ordinance. No alterations may be made to an exterior feature of property within the district without prior approval by city authorities. Mayes was denied permission to paint his brick home and to construct a walkway with pylons across his front lawn. Claiming deprivation of property rights in violation of the due process clause of the Fourteenth Amendment, Mayes brings this suit and challenges the application of the city historic preservation regulation to prevent his making the alterations in question, further praying for damages and for injunctive relief. After bench trial, the district court dismissed the suit, with findings of fact not here challenged. On his appeal, the plaintiff Mayes contends solely that the city’s exercise of its zoning power in the interests of historic preservation offended due process, because, as to the denial of the alterations in question, the applicable city ordinances did not provide objective, specific standards that would prevent the arbitrary exercise of this zoning power by city authorities. We affirm, finding that under Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir.1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976), the city ordinances at issue comport with Fourteenth Amendment due process requirements. I. The 1960 Revised City Code of Dallas provides for the creation by ordinance of an “historic overlay district” in order “to preserve landmarks and areas exemplary of architectural, cultural, economic, social and historical value,” if the district or landmark meets certain specified requirements. Dallas City Code, § 51-4.501(a). Thereafter, a person “shall not alter an exterior feature of a historic landmark that is governed by this section or an ordinance establishing a historic overlay district” without first complying with a certificate of appropriateness procedure. Id. 501(b)(1). This procedure involves an application to a city department for a certificate authorizing the alteration; a review by its staff, a historical-overlay-district task force committee, and a city Landmark Committee; and recommendation by the latter to the City Planning Commission. The purpose of the review is to assure that the proposed alteration in the historic district meets preservation and district criteria specified in the Dallas City Code and in the ordinance that created the historic district. The district task force committees and the Landmark Committee are composed of people with some particular preservation expertise. The City Planning Commission may approve, deny, or conditionally approve the application for a certificate of appropriateness to make the proposed alteration. Any person dissatisfied with the Commission’s final action may appeal within ten days to the City Council, which may decide the issue free of binding effect of the Commission’s final action. By ordinance passed February 3, 1982, the regulations for the Swiss Avenue Historic District were re-enacted. Ordinance No. 17285. The órdinance sets forth detailed preservation criteria as to existing or new construction, including spacing, landscaping, setback and height restrictions, minimum lot width and depth and coverage (e.g., no more than 25% of the lot to be covered by structures), fencing, facades, color schemes, front entrances and porches, embellishment and trim, and detailing in construction. II. The plaintiff Mayes acquired his home in the Swiss Avenue Historic District in 1982. He does not dispute that he was required to obtain a certificate of appropriateness before making any alteration, if the alteration was indeed within those specified by the City Code and the Swiss Avenue Ordinance. A municipality has the constitutional power to regulate the use of private property in the interest of historic preservation. Penn Central Transportation Company v. City of New York, 438 U.S. 104, 132-34, 98 S.Ct. 2646, 2662-64, 57 L.Ed.2d 631 (1978). On their face, as Mayes concedes, the present municipal historic preservation ordinances satisfy requisite due process criteria as being of general application to well-defined geographic areas, supervised by a regulatory body of professional qualifications, with governing legislative criteria provided, and an administrative procedure adequate to assure that the regulatory powers be exercised in accord with the legislative criteria, Maher v. City of New Orleans, supra, 516 F.2d at 1060-1064. See also Annotation, validity and construction of statute or ordinance protecting historical landmarks, 18 A.L. R.4th 991 (1982). On his appeal the plaintiff Mayes contends that nevertheless, with regard to the specific alterations for which he was denied approval, the Dallas ordinances did not set forth objective, articulated standards sufficient to prevent the arbitrary exercise of governmental power, without legislative direction, by the committees and agencies entrusted with approving eertificates of appropriateness. Mayes’ complaint of the lack of objective standards relates (a) to the denial of a certificate to permit him to paint his brick home and (b) to the refusal to approve his construction of a brick walkway across his front lawn with upstanding brick pylons. As to (a), the application of Mayes to paint his brick house was denied because the natural color and textures of the brick were “a strong, positive, aesthetic attribute of the house, and should be maintained,” and because there were no other houses on the block with painted brick. As to (b), approval of the brick walkway and pylons was denied because Mayes had constructed it without prior application for a certificate of appropriateness, and because neither the color of the bricks nor the protruding pylons were “appropriate” within the guidelines established by the ordinance creating the Swiss Avenue Historic District. In rejecting Mayes’ attack upon the historic preservation regulation, the district court found that the city ordinances in question “provide adequate legislative direction to the Commission to enable it to perform its functions consonant with due process.” We agree. The regulations themselves, it is true, do not specifically prohibit the painting of old-brick residences, nor the construction of pylons protruding above the lawn surfaces. Nevertheless, other provisions of the guidelines do provide articulated standards adequate to provide “structure and guidelines,” Maher, supra, 516 F.2d at 1063, to the administrative body charged with enforcing them, as well to prevent unreviewable “unfettered authority,” id., to be exercised by that agency with regard to the rulings now questioned by Mayes. The Swiss Avenue Historic District ordinance, supra cit., provides, in § 5.1, that the color of a building “must harmonize with the structure’s facade as well as complement the overall character of the District.” § 5.2 provides, “All building facade material shall be architecturally and historically appropriate.” Under § 2.2(2), “the finish texture [of all walkways] shall be compatible with ... walkways of surrounding structures.” The introduction to § 2.2, which provides detailed regulation as to landscaping, notes as a governing principle, “[t]he open expanse of front yards and the quantities of planting within them serves as a transitional area between public and private space permitting easy viewing of the architectural detail and can serve to unify and beautify the streetscape.” Finally, § 6.1 requires that “[t]he manner in which materials are used ... and the fashion in which elements such as columns ... are utilized shall be compatible and harmonize with the existing structures in the block.” These legislative principles provide adequate articulation and guidelines that justify the city commission's rulings with regard to the three matters complained of: To satisfy due process, guidelines to aid a commission charged with implementing a public zoning purpose need not be so rigidly drawn as to prejudge the outcome in each case, precluding reasonable administrative discretion. Maher, supra, 516 F.2d at 1062. As in Maher, the ordinance is precise where possible — such as in delineating the district, and in defining the nature of the alterations that require approval, including the principles and often specific criteria by which alterations are to be determined as appropriate or not — , while the regulatory process is accomplished through personnel with proper professional qualifications, and an elaborate decisionmaking and appeal process provides for ultimate review by the City Council. 516 F.2d at 1062-63. In substance, with many specific exemplars, the Swiss Avenue regulations require that alterations be historically and architecturally appropriate in accordance with the existing character of the district, and that they harmonize with the structure to be altered and with the district itself. With regard to the three rulings here questioned by the plaintiff Mayes, the record shows not only, as previously noted, that they were in accord with guideline principles specified in the historic preservation ordinance, but also that these principles were consistently so applied by the regulatory body. Conclusion The plaintiff Mayes has thus not shown either (a) that the regulations themselves did not provide reviewable articulated standards that justified these rulings, or (b) that the standards were arbitrarily applied against him. We therefore AFFIRM the district court judgment dismissing his suit. AFFIRMED. . The Swiss Avenue Historic District was initially created in 1973. Since then, the city agency has never granted a certificate of appropriateness to allow the painting of any natural brick within the district. Some painted brick houses do, however, exist in the Swiss Avenue Historic District, including one in the next block from Mayes'. With one exception, however, these houses were painted prior to the district's creation, and they are allowed to be repainted as a part of routine maintenance. The one exception is a house that was painted without a certificate of appropriateness. The owner was fined but was not required to remove the paint because removal might have damaged the brick. . The legislation in Maher provided as legislative standard only that the city commission was directed to preserve buildings with "architectural and historical value.” 516 F.2d at 1060. However, despite this generality, the Maher court found that the evident purpose of the legislation and “other fertile sources,” such as old city plans and historic documents, were "readily available to promote a reasoned exercise of the professional and scholarly judgment of the Commission.” 516 F.2d at 1063. The plaintiff Mayes points out that these historical sources are, in the present case, lacking to provide guidance to the city commission's exercise of its regulatory preservation function. In the present case, however, the much more detailed regulations provided by the Swiss Avenue Historic District ordinance (described in part I and in the preceding paragraph of the text, supra) adequately serve a similar function.

WildEarth Guardians v. Provencio

The opinion filed March 13, 2019, and reported at 918 F.3d 620, is hereby withdrawn. A superseding opinion will be filed concurrently with this order. M. SMITH, Circuit Judge: Plaintiffs-Appellants (Plaintiffs) are environmental advocacy groups that challenged travel management plans implemented by Defendant-Appellee United States Forest Service (the Forest Service) to permit limited motorized big game retrieval in three Ranger Districts of the Kaibab National Forest. The district court granted the Forest Service's motion for summary judgment, concluding that the Forest Service complied with the Travel Management Rule, the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA). We affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Factual Background A. The Kaibab National Forest The Kaibab National Forest encompasses approximately 1.6 million acres of public land in northern Arizona, including Grand Canyon National Park. It is comprised of three noncontiguous Ranger Districts: the Williams Ranger District, the Tusayan Ranger District, and the North Kaibab Ranger District. The Williams Ranger District is the southernmost, covering 560,305 acres approximately thirty-five miles west of Flagstaff and sixty miles south of Grand Canyon National Park. It includes the Kendrick Mountain Wilderness, which extends into Coconino National Forest and features a diverse array of vegetation including Douglas firs, white firs, ponderosa pines, and aspens. The Williams Ranger District also serves as a habitat for a number of endangered species, including the Mexican spotted owl, the California condor, and the black-footed ferret. It contains six areas where spotted owls are known to live and breed, and three spotted owl critical habitats overlap the District. The Tusayan Ranger District, located just south of Grand Canyon National Park's south rim, encompasses 331,427 acres. It features varied terrain, from ponderosa pine forests to grasslands, and is home to a number of sensitive species, including bald eagles, goshawks, peregrine falcons, burrowing owls, bats, and voles. The North Kaibab Ranger District covers 655,078 acres immediately north of Grand Canyon National Park. Like the Williams and Tusayan Ranger Districts, the North Kaibab Ranger District boasts diverse terrain and vegetation, as well as sensitive animal species. Two federally listed endangered species-the Mexican spotted owl and California condor-live in the District, which the U.S. Fish and Wildlife Service has designated as critical habitat for the spotted owl. B. The Travel Management Rule In 2005, the U.S. Department of Agriculture promulgated a Travel Management Rule to "provide[ ] for a system of National Forest System roads, National Forest System trails, and areas on National Forest System lands that are designated for motor vehicle use." 36 C.F.R. § 212.50(a). As part of this system, "[d]esignated roads, trails, and areas [are] identified on a motor vehicle map," which also "specif[ies] the classes of vehicles" and "the times of year for which use is designated." Id. § 212.56. Motor vehicle use is prohibited on roads not so designated. Id. § 212.50(a). The regulations include a specific provision concerning the use of motor vehicles for dispersed camping and big game retrieval, which allows that in designating routes, the responsible official may include in the designation the limited use of motor vehicles within a specified distance of certain forest roads or trails where motor vehicle use is allowed, and if appropriate within specified time periods, solely for the purposes of dispersed camping or retrieval of a downed big game animal by an individual who has legally taken that animal. Id. § 212.51(b). The Forest Service's Southwestern Regional Office issued guidelines for implementation of the Travel Management Rule, including its motorized big game retrieval provision. The guidelines noted that "National Forests in the Southwestern Region provide hunting opportunities that are important to the public," and directed forests to identify designated routes for game retrieval "in close collaboration with the responsible State agency." They also suggested, pursuant to discussions with the Arizona Game and Fish Department, that motorized big game retrieval be allowed "up to three miles from a designated route" for bison and "up to one mile from a designated route" for elk and mule deer. The Forest Service crafted travel management plans for each of the three Ranger Districts in the Kaibab National Forest. It also prepared an Environmental Assessment (EA) for each plan to ascertain its environmental impact, but did not undertake a more rigorous Environmental Impact Statement (EIS). i. The Williams Ranger District In July 2010, the Forest Service released the EA for the Williams Ranger District's travel management plan, and subsequently issued a Decision Notice and Finding of No Significant Impact (DN/FONSI). The DN/FONSI generally "prohibit[s] motorized travel off of designated routes on the Williams Ranger District," but permits "the limited use of motor vehicles within one mile of all designated system roads (except where prohibited) to retrieve a legally hunted and tagged elk during all elk hunting seasons." It allows motorized big game retrieval of elk (but not bison) up to one mile off all designated open roads, so long as hunters make only "[o]ne trip that uses [the] most direct route and least ground disturbing." The designated open road system consists of 1,114 miles of roadway, a reduction from previous motor vehicle activity, when 1,460 miles of roads and 95 percent of the District were open to motor vehicle use. Several miles of the open roads pass through the spotted owl critical habitat. ii. The Tusayan Ranger District Previously, the Tusayan Ranger District contained more than 700 miles of roads open to motor vehicles, and a vast majority of the District was open to cross-country motor vehicle travel. The Forest Service's final DN/FONSI for the District designated 566 miles of road open to motor vehicles. The decision permits "[l]egally harvested elk [to] be retrieved during all legal elk hunting seasons" by motor vehicles within one mile of designated roads. Motorized retrieval of bison is not permitted, and the DN/FONSI limits use of motor vehicles when "conditions are such that travel would cause damage to natural and/or cultural resources," and mandated that "[m]otorized vehicles would not be permitted to cross riparian areas, streams and rivers except at hardened crossings or crossings with existing culverts." iii. The North Kaibab Ranger District Prior to implementation of a new travel management plan, 1,852 miles of road in the North Kaibab Ranger District were open to motor vehicle use, with 83 percent of the District open to cross-county travel. In September 2012, the Forest Service released an EA analyzing the District's new plan. Among other data, the EA noted that while "[c]ross-country motorized travel, whether to retrieve game or for other purposes, can adversely affect cultural resource sites if a vehicle is driven across a site," only thirty-eight bison and no elk were taken from the District in 2009. The Forest Service issued a DN/FONSI that designated 1,476 miles of open roads for motorized travel, including an additional 16 miles of unauthorized, user-created roads. Motor vehicles can be used to retrieve elk or bison during hunting seasons, under certain limiting conditions. Notably, the plan prohibits motorized retrieval of mule deer; the data indicated that far more mule deer-1,020-were harvested in the District in 2009 than bison or elk. The DN/FONSI also included guidance for monitoring and mitigation, as well as practices to limit the spread of invasive exotic weeds. II. Procedural Background The Districts' travel management plans-their motorized big game retrieval provisions in particular-were administratively appealed, and the Regional Forester upheld them. Plaintiffs then filed a complaint for declaratory and injunctive relief in the district court. They challenged the travel management plans for each of the three Ranger Districts, alleging violations of the Travel Management Rule, the Administrative Procedure Act (APA), NEPA, and the NHPA. After the parties filed and briefed cross-motions for summary judgment, the district court granted the Forest Service's motion and denied Plaintiffs' motion. It further denied the motions for summary judgment filed by Intervenors-Defendants-Appellees State of Arizona (the State) and Safari Club International (Safari Club) as moot. This timely appeal followed. STANDARD OF REVIEW AND JURISDICTION We review de novo a district court's order granting or denying a motion for summary judgment. Churchill County v. Norton , 276 F.3d 1060, 1071 (9th Cir. 2001). Under the APA, agency action can be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; see also WildEarth Guardians v. Mont. Snowmobile Ass'n , 790 F.3d 920, 932 (9th Cir. 2015) (Travel Management Rule reviewed under the APA); San Carlos Apache Tribe v. United States , 417 F.3d 1091, 1099 (9th Cir. 2005) (NHPA challenge reviewed under the APA); Churchill County , 276 F.3d at 1071 (NEPA challenge reviewed under the APA). We have jurisdiction pursuant to 28 U.S.C. § 1291. ANALYSIS I. The Travel Management Rule Plaintiffs argue that the Forest Service violated the Travel Management Rule by implementing plans that did not sufficiently limit motorized big game retrieval in the Districts. Although the Travel Management Rule generally prohibits off-road, motorized travel, it permits officials to designate "the limited use of motor vehicles within a specified distance of certain forest roads ... solely for the purposes of dispersed camping or retrieval of a downed big game animal." 36 C.F.R. § 212.51(b) (emphases added). As part of this designation process, the Forest Service must consider various criteria, including "public safety," "conflicts among uses of National Forest System lands," and "the need for maintenance and administration." 36 C.F.R. § 212.55(a). Plaintiffs contend that the Forest Service violated the Travel Management Rule by permitting off-road motorized vehicle use to collect downed game within one mile of every open road in the Districts, in purported violation of the Rule's mandate that such activity be "limited" and only on "certain" roads. We disagree. A. "Limited" First, Plaintiffs argue that "designating cross-country off-road motor vehicle use for one mile off both sides of every single open road on each Ranger District is not a 'limited' designation as contemplated by the Travel Management Rule." They note that the Forest Service's own regional office acknowledged as much when reviewing the North Kaibab Ranger District's plan proposal; the office commented, "Motorized [big game retrieval] is being proposed on all system routes which is not consistent with rule for 'limited use.' " The assistant NEPA coordinator of that District also questioned the scope of the plan, noting, "What I don't see is how this got you to your proposed actions, particularly the [motorized big game retrieval] on ALL roads with 1 mile corridor .... that's huge." In their brief, Plaintiffs include maps prepared by the Forest Service, which illustrate the extent of areas (in light blue) where motorized big game retrieval is allowed in the Tusayan and Williams Ranger Districts. These maps indicate, as Plaintiffs argue, that the plans permit motorized big game retrieval across a vast swath of the Districts' lands: As the district court correctly noted, however, Plaintiffs' focus on only the spatial limitation of the Districts' plans ignores the other restrictions on motorized big game retrieval. The North Kaibab Ranger District plan illustrates some of these additional limitations: restricting retrieval to legally hunted elk and bison ; permitting only one vehicle per harvested animal; requiring hunters to "use the most direct and least ground disturbing route in and out of the area to accomplish the retrieval"; and limiting the temporal period to the "appropriate season as designated by the [State], and for 24 hours following each season." The Williams and Tusayan Ranger Districts further exclude the retrieval of bison and require motor vehicles to cross streams and rivers only at designated crossings. We agree with the district court that "these limitations are a significant departure from the previous policy which did not limit the number of trips ..., did not limit the type of species which could be retrieved by motor vehicle, did not limit the distance traveled from system roads, and had no restrictions on seasons or weather conditions and no requirement for use of a direct route." Plaintiffs assert that "the nearly unlimited spatial allowance ... in and of itself[ ] violates the plain terms of the Travel Management Rule," but provide no authority for that proposition. Because we find no support for it in either case law or the applicable regulations, we conclude that the Forest Service did not abuse its discretion when it authorized plans that limit motorized big game retrieval based on factors other than geography. See 5 U.S.C. § 706(2)(A). As for the regional office's skepticism regarding the scope of retrieval permitted under the plans, "the fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decisionmaking process arbitrary and capricious," as agencies are "fully entitled" to "change[ ] their minds ... as long as the proper procedures were followed." Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Such apparent inconsistencies might serve as evidence of arbitrariness or capriciousness, see Barnes v. U.S. Dep't of Transp. , 655 F.3d 1124, 1134 (9th Cir. 2011) (noting that Home Builders "did not hold, however, that such preliminary determinations are irrelevant in any context"), but absent other evidence that the plans violated the Travel Management Rule, we do not find these comments particularly enlightening, especially since the Regional Forester ultimately upheld the designation decisions as to each Ranger District. Ultimately, as the district court concluded, "Plaintiffs have only identified dissatisfaction with the ultimate decisions made by the Forest Service in authorizing [motorized big game retrieval] in the three ranger districts." Although it is not unreasonable to interpret "limited use" spatially, Plaintiffs point to no statute, regulation, or ruling that requires a geographic limitation of this sort. The Districts' plans limit motorized big game retrieval as to timing, qualified species, and number of vehicles, which is a reasonable interpretation of the Rule. Given that much of the Districts' land was open to cross-country motorized travel prior to implementation of the plans, we conclude that the new restrictions constitute a "limited" use of motorized vehicles. B. "Certain" Next, the Rule allows motorized retrieval on "certain forest roads." 36 C.F.R. § 212.51(b). Plaintiffs argue that the word "certain" requires that it only be allowed on "some, but not all" roads. Because the plans permit retrieval within one mile of all designated roads, Plaintiffs conclude that they are unlawful. The Forest Service, however, correctly notes that while the word "certain" can mean "some, but not all," the more common definition of the term is "definite" or "fixed." See, e.g. , Webster's Third New International Dictionary 367 (2002) (listing the primary definitions of "certain" as "fixed, settled, stated" and "exact, precise"). Because the Forest Service limited motor vehicle use to a defined set of roads in each District, it complied with the Rule. Even if the proper interpretation of the word "certain" were ambiguous, the Forest Service's definition of "fixed" or "definite" is permissible, consistent with the text of the Rule, and entitled to deference. See Home Builders , 551 U.S. at 672, 127 S.Ct. 2518 ("An agency's interpretation of the meaning of its own regulations is entitled to deference 'unless plainly erroneous or inconsistent with the regulation.' " (quoting Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) )). C. "Sparingly" Lastly, Plaintiffs contend that the Forest Service failed to implement motorized big game retrieval "sparingly." Travel Management; Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264, 68,285 (Nov. 9, 2005) ("The Department expects the Forest Service to apply this provision sparingly , on a local or State-wide basis, to avoid undermining the purposes of the final rule and to promote consistency in implementation." (emphasis added)). They argue that "allowing motorized big game retrieval off of every single open road is not using [the Forest Service's] authority sparingly," and that the Forest Service erroneously concluded that the plans were sparing and limited because they permitted less motorized retrieval than under the prior policies that imposed no restrictions. This argument is unpersuasive. First, the word "sparingly" does not appear in the Rule, but instead in its preamble. We look to a preamble only when the regulation itself is ambiguous. El Comité Para El Bienestar de Earlimart v. Warmerdam , 539 F.3d 1062, 1070 (9th Cir. 2008). Accordingly, as the Forest Service correctly asserts, the preamble does not "impose a duty above and beyond the actual terms of the regulation." Moreover, Plaintiffs' argument fails for much the same reason as their "limited" argument above: it relies on a strictly spatial conception of "sparingly," while ignoring the other restrictions that the plans impose on motorized big game retrieval. Absent authority requiring a strictly geographic interpretation of the words "limited" and "sparingly," we conclude that the Forest Service did not violate the plain terms of the Travel Management Rule. II. NEPA A. Standing As a preliminary matter, Safari Club challenges whether Plaintiffs have standing to bring their NEPA claims. It observes that Plaintiffs' "standing declarant, Kim Crumbo, revealed that his own activities in the forests cause the very same impact that [they] seek to attribute to motorized big game retrieval," since Crumbo recounted "incidents during which he, on his bicycle, interfered with young goshawk and a goshawk pursuing its prey." Accordingly, Safari Club suggests that Plaintiffs cannot satisfy the redressability requirement for standing, see Salmon Spawning & Recovery All. v. Gutierrez , 545 F.3d 1220, 1226 (9th Cir. 2008), because Plaintiffs "themselves are a source of" the negative effects that they seek to analyze through an EIS, and so "[n]o change in process and no [EIS] analysis of motorized big game retrieval will prevent [Plaintiffs'] members from engaging in conduct that is the source of effects" that they seek to mitigate. Under Safari Club's reasoning, a hypothetical plaintiff challenging an EPA decision on a CO2-emitting power plant would lack standing just because she also happens to exhale carbon dioxide. This result would not only be absurd, but also contrary to our prior precedent, for we have held that the mere existence of multiple causes of an injury does not defeat redressability, particularly for a procedural injury. So long as a defendant is at least partially causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of multiple causes of the plaintiff's injury. WildEarth Guardians v. U.S. Dep't of Agric. , 795 F.3d 1148, 1157 (9th Cir. 2015). Safari Club also challenges Plaintiffs' NEPA standing based on their perceived motivation for bringing suit. Asserting that Plaintiffs' "goal in bringing this action was to use NEPA and the NHPA to force [the Forest Service] to reverse [its] authorization of motorized big game retrieval," it contends that "NEPA does not provide a cause of action" and that Plaintiffs lack prudential standing. Regardless of Plaintiffs' motivation in commencing this suit, however, if a group is "trying to protect the environment," then its "suit [ ] lies well within NEPA's zone of interests." Citizens for Better Forestry v. U.S. Dep't of Agric. , 341 F.3d 961, 976 (9th Cir. 2003) ; see also Havasupai Tribe v. Provencio , 906 F.3d 1155, 1166 (9th Cir. 2018). Accordingly, we conclude that Plaintiffs have standing to bring their NEPA claims. B. Legal Framework NEPA requires federal agencies, including the Forest Service, to assess the environmental impact of proposed actions that "significantly affect[ ] the quality of the human environment." 42 U.S.C. § 4332(C). It serves two fundamental objectives. First, it "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." And, second, it requires "that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Mont. Snowmobile , 790 F.3d at 924 (citation omitted) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ). In short, "NEPA's purpose is to ensure that 'the agency will not act on incomplete information, only to regret its decision after it is too late to correct.' " Friends of Clearwater v. Dombeck , 222 F.3d 552, 557 (9th Cir. 2000) (quoting Marsh v. Or. Nat. Res. Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ). We have admonished that "[w]e must ... strictly interpret the procedural requirements in NEPA ... 'to the fullest extent possible' consistent with the policies embodied in NEPA. '[G]rudging, pro forma compliance will not do.' " Churchill County , 276 F.3d at 1072 (fourth alteration in original) (citation omitted) (quoting Lathan v. Brinegar , 506 F.2d 677, 687, 693 (9th Cir. 1974) (en banc)). As part of this compliance, agencies must ensure "that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA." 40 C.F.R. § 1500.1(b). The Forest Service must prepare an EIS-a more thorough undertaking than an EA -if an action might significantly affect environmental quality. As we have explained, An EIS must be prepared if "substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor." Thus, to prevail on a claim that the Forest Service violated its statutory duty to prepare an EIS, a "plaintiff need not show that significant effects will in fact occur." It is enough for the plaintiff to raise "substantial questions whether a project may have a significant effect" on the environment. Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1212 (9th Cir. 1998) (alteration in original) (citations omitted) (quoting Idaho Sporting Cong. v. Thomas , 137 F.3d 1146, 1149-50 (9th Cir. 1998) ); see also Save the Yaak Comm. v. Block , 840 F.2d 714, 717 (9th Cir. 1988) ("[A]n agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to 'supply a convincing statement of reasons why potential effects are insignificant.' " (quoting Steamboaters v. FERC , 759 F.2d 1382, 1393 (9th Cir. 1985) )). The significance of an action depends on its context and intensity, the latter of which is assessed using a list of criteria enumerated in the relevant regulation. See 40 C.F.R. § 1508.27(a) - (b). C. Whether the Forest Service Needed to Prepare EISs Plaintiffs contend that "the presence of several significance factors indicating possible significant environmental consequences of the proposed actions" required the Forest Service to prepare EISs for each of the Districts' travel management plans. We analyze in turn each consideration to which they point. i. Impacts The first enumerated consideration in evaluating an action's intensity concerns "[i]mpacts that may be both beneficial and adverse," and notes that "[a] significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial." 40 C.F.R. § 1508.27(b)(1). "Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts." Id. § 1508.27(b)(7). Plaintiffs suggest that "the travel management plans for each Ranger District would have significant direct, indirect, and cumulative impacts," noting that both motorized vehicle use on open, designated roads and cross-country, off-road motorized vehicle use can have "significant detrimental effects ... on a variety of resources." The assertion that motorized big game retrieval can have detrimental effects on the environment is consistent with the information contained in the EAs prepared for the Williams and Tusayan Ranger Districts. Those EAs noted that "[t]he scientific literature documents a variety of negative effects of roads and motorized travel on wildlife," with [p]otential direct and indirect effects of roads and motorized travel on wildlife includ[ing] habitat loss, fragmentation, and degradation caused by roads and cross country motorized travel; roads can create barriers to movements of certain species; animals can be killed or injured as a result of being hit or run over by motor vehicles; human disturbance or harassment of animals caused by or facilitated by motorized travel; [and] shooting or harvest of animals facilitated by motor vehicle access to wildlife habitats. The Williams Ranger District EA further indicated that off-road vehicle use "in areas with sensitive or moist soils can create tracks, ruts and new user routes that may crush, displace, and/or destroy cultural materials (i.e. artifacts, features, traditionally used plants), and damage significant information that may contribute to our understanding of history." A particularly vexatious problem related to motorized vehicle use is the spread of invasive weeds. Each of the three EAs noted that vehicles are a common cause of weed introduction and spread, with the North Kaibab Ranger District EA reporting that "[t]he authorization of motorized big game retrieval will have an increased threat of invasive species spread as every vehicle that travels cross-country has the ability to serve as a vector and create disturbance." We do not disagree with Plaintiffs' assertion that motorized big game retrieval can have a negative effect on the environment. But we nevertheless conclude that the environmental impacts discussed in the EAs did not raise substantial concerns that necessitated the preparation of EISs. Plaintiffs might disagree with the Forest Service's substantive conclusions, but we see no indication that the agency failed to satisfy NEPA's procedural requirements-a crucial distinction that is lost in Plaintiffs' formulation of the issue. Plaintiffs' treatment of the spread of invasive weeds is illustrative. They tie the problem of weeds to another enumerated NEPA consideration that implicates "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas." Id. § 1508.27(b)(3). They note that "both the North Kaibab and Tusayan Ranger Districts immediately abut Grand Canyon National Park." The EAs agreed: they described Grand Canyon National Park as "internationally important," and noted the Tusayan Ranger District's "unique location" as "a gateway to one of the most famous national parks in the country." In that District's EA, the Forest Service acknowledged that recreation and hunting-activities facilitated by the travel management plan-"have the potential to introduce exotic plants" that "may then spread to adjoining lands, including the Grand Canyon National Park." The National Park Service, in a letter from the Acting Park Superintendent of Grand Canyon National Park, advised the Forest Service to "institute a buffer zone of 1-mile along the park boundary for any purpose including big-game retrieval, fuel-wood gathering, cross-county travel, etc.," due to "increased pressure from motorized vehicles at or near the southern park boundary over the past several years"-a recommendation that was not adopted in the Tusayan Ranger District DN/FONSI. Clearly, the EAs demonstrated that motorized big game retrieval risks the spread of invasive weeds, an undeniable environmental impact. In response, the Forest Service relies in part on questionable reasoning by focusing on the fact that the plans reduced negative impacts when compared with pre-plan activity. It notes that the plan eventually selected for the Tusayan Ranger District opted to limit the number of roads open to the public, which, the EA noted, "reduces the number of opportunities for noxious and invasive exotic weeds to be introduced and spread." "Thus," the Forest Service concludes, "contrary to [Plaintiffs'] argument, the Tusayan EA confirms that the Forest Service considered the issue and reasonably concluded that the decision will reduce, not increase, the spread of exotic plants." However, a conclusion, even a correct one, that a given action might reduce a potential impact does not alone indicate that the impact would not be significant. We have noted that the use of baselines is a helpful, and perhaps inevitable, tool in conducting environmental surveys. See Or. Nat. Desert Ass'n v. Jewell , 840 F.3d 562, 568 (9th Cir. 2016) ("The establishment of a 'baseline is not an independent legal requirement, but rather, a practical requirement in environmental analysis often employed to identify the environmental consequences of a proposed agency action.' " (quoting Am. Rivers v. FERC , 201 F.3d 1186, 1195 n.15 (9th Cir. 1999) )). But we have also determined that "simply because the Final Rule may be an improvement over the [previous] standard does not necessarily mean that it will not have a 'significant effect' on the environment" where the agency "has not explained why its rule will not have a significant effect." Ctr. for Biological Diversity v. NHTSA , 538 F.3d 1172, 1224 (9th Cir. 2008). The plans chosen by the Forest Service might reduce (even substantially reduce) the spread of noxious weeds in the Districts, but that alone does not address whether that reduced impact itself has a significant impact on the environment generally and Grand Canyon National Park in particular. Therefore, the Forest Service cannot rely solely on the reduction of adverse impacts to demonstrate that those impacts are not significant. But that the Forest Service occasionally conflates reduction with insignificance does not necessarily mean that it violated NEPA. To demonstrate, we once again go into the weeds. The Forest Service acknowledged that the North Kaibab Ranger District contained "several species of invasive weeds," which "are spread [ ] via roads and forest visitors." The plan that was eventually selected "reduce[d] the number of roads that can be traveled on by 376 miles," which, the EA found, would "lower the amount of invasive species seed introduced or spread." But notably, the EA continued: The authorization of motorized big game retrieval will have an increased threat of invasive species spread as every vehicle that travels cross-country has the ability to serve as a vector and create disturbance. Alternative 2 [the selected plan] authorizes motorized big game retrieval for only elk and mule deer. This is expected to lead to only a small increase in the potential for invasive species spread and disturbance when compared to Alternative 3 and should not generate any realistic impacts. This passage demonstrates that the Forest Service did not merely rely on the possibility of reduction, but also concluded that the plan would "not generate any realistic impacts"; in other words, that the effects would not be significant. Furthermore, as the district court noted, the EA mentioned that the North Kaibab Ranger District featured "projects focus[ed] on treating known infestations across the District, prioritizing the species and locations that pose the greatest threats," methods that had "proven successful in eradicating or reducing potentially serious noxious species threats." This language indicates that the Forest Service acknowledged a potential environmental impact, and then determined that, due to features of the travel management plan and other remediation efforts, it was unlikely to be significant. Contrary to Plaintiffs' argument, the Forest Service did not merely determine that the problem would be reduced; it also concluded that the impact would not be significant. Plaintiffs disagree with the EA's conclusion, but this is "a classic example of a factual dispute the resolution of which implicates substantial agency expertise." Marsh , 490 U.S. at 376, 109 S.Ct. 1851. We agree with the district court: "Plaintiffs' singular and conclusory statement that exotic plants might spread ... does not raise substantial questions that would trigger the need for an EIS." Similarly, although the Forest Service did not follow all of the recommendations made by Grand Canyon National Park's Acting Park Superintendent, this fact does not mean that it ignored a significant environmental impact. Agencies can thoughtfully consider suggestions but ultimately decide to reject them, and the presence of an articulated concern does not alone trigger the need to conduct an EIS. See Native Ecosystems Council v. U.S. Forest Serv. , 428 F.3d 1233, 1240 (9th Cir. 2005) ("NEPA permits a federal agency to disclose [ ] impacts without automatically triggering the 'substantial questions' threshold."). Here, the record indicates that the Forest Service explained why a buffer would not be employed ("We don't expect to use a buffer zone as many management actions will need to extend to the Forest Service-National Park boundary"), and further articulated means of remedying the risk of illegal motor vehicle use (such as "limit[ing] motorized big game retrieval during all elk seasons" and "work[ing] closely with Arizona Game and Fish Department to monitor and enforce illegal cross-country travel associated with hunting activities"). We find no indication in the record that the Forest Service did not adequately consider potential impacts, or that substantial questions remained that required the preparation of an EIS. The same conclusion ultimately applies to all of the environmental impacts that Plaintiffs highlight in their briefs: although Plaintiffs disagree with the EAs' factual conclusions, the Forest Service nonetheless considered the issues, gave them the requisite "hard look," and thus fulfilled their NEPA obligations. Save the Yaak , 840 F.2d at 717. In reaching its conclusions that none of the impacts cited by Plaintiffs were sufficiently significant to require the preparation of EISs, the Forest Service did not "rel[y] on factors Congress did not intend it to consider, 'entirely fail[ ] to consider an important aspect of the problem,' or offer[ ] an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting Earth Island Inst. v. U.S. Forest Serv. , 442 F.3d 1147, 1157 (9th Cir. 2006) ), overruled on other grounds by Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Instead, the evidence in the record indicates that, although the EAs acknowledged that motorized big game retrieval might have negative impacts on the environment, the Forest Service's determination that these impacts would not be significant evinced "a rational connection between the facts found and the conclusions made." Or. Nat. Res. Council v. Lowe , 109 F.3d 521, 526 (9th Cir. 1997). Therefore, its conclusions were not arbitrary and capricious, and the Forest Service did not violate NEPA by declining to prepare EISs based on the plans' environmental impacts. ii. Controversy and Uncertainty NEPA also requires the preparation of an EIS when an action's "effects on the quality of the human environment are likely to be highly controversial," and/or "are highly uncertain or involve unique or unknown risks." 40 C.F.R. § 1508.27(b)(4)-(5). "A project is 'highly controversial' if there is a ' "substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use ." ' " Native Ecosystems Council , 428 F.3d at 1240 (alteration in original) (emphases added) (quoting Blue Mountains , 161 F.3d at 1212 ); see also Wetlands Action Network v. U.S. Army Corps of Eng'rs , 222 F.3d 1105, 1122 (9th Cir. 2000) ("The existence of opposition to a use, however, does not render an action controversial."), abrogated on other grounds by Wilderness Soc'y v. U.S. Forest Serv. , 630 F.3d 1173 (9th Cir. 2011). "A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI casts serious doubt upon the reasonableness of an agency's conclusions." Nat'l Parks & Conservation Ass'n v. Babbitt , 241 F.3d 722, 736 (9th Cir. 2001) (citation omitted), abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). Additionally, because "[a]n agency must generally prepare an EIS if the environmental effects of a proposed agency action are highly uncertain," such preparation "is mandated 'where uncertainty may be resolved by further collection of data, or where the collection of such data may prevent speculation on potential ... effects.' " Barnes , 655 F.3d at 1140 (second alteration in original) (quoting Native Ecosystems Council , 428 F.3d at 1240 ). However, NEPA regulations "do not anticipate the need for an EIS anytime there is some uncertainty, but only if the effects of the project are 'highly' uncertain." Envtl. Prot. Info. Ctr. v. U.S. Forest Serv. , 451 F.3d 1005, 1011 (9th Cir. 2006). Plaintiffs contend that "the travel management plans for the Tusayan, Williams, and North Kaibab Ranger Districts present highly controversial and highly uncertain effects that involve unique or unknown risks," because "significant controversy exists as to the amount and type of motorized recreation that would be allowed across the three Ranger Districts." But Plaintiffs point to nothing in the record indicating the existence of a substantial dispute that casts doubt on the Forest Service's conclusions about environmental impacts. There may have been opposition to the plans, but mere opposition alone is insufficient to support a finding of controversy. The Forest Service "recognize[d] that elements of the Selected Alternative [ ] generated controversy," but concluded-apparently correctly-that there was "no substantiated scientific controversy over the effects as described." Plaintiffs assert that various questions raised during the EA process revealed a high level of scientific uncertainty, but the record belies that assertion. For example, as to the potential risks "based on the broad allowance of motorized big game retrieval," the Forest Service attempted to estimate hunting activity based on past data, and used this information to conclude that the impacts of motorized big game retrieval would be limited. Plaintiffs identity nothing in the record to suggest that the Forest Service's estimates were unduly speculative, or that it unreasonably relied upon these predictions. Plaintiffs also argue that there was "uncertainty regarding whether or not hunters will actually remove gut piles" when retrieving carcasses, which they must do "to protect California condors from lead poisoning." But although the Forest Service acknowledged that this issue might present a problem, the record also indicates that it considered the issue and reasonably concluded that it was unlikely to significantly impact the North Kaibab Ranger District's condors because the Arizona Game and Fish Department had provided to hunters, among other incentives, lead-free ammunition. The Forest Service also noted that "there would be decreased risk of human disturbance of scavenging condors as a result of a reduced open road system and substantially restricted motorized cross-country travel," and concluded that the North Kaibab Ranger District plan "is not likely to jeopardize the continued existence [of] California condors." Plaintiffs neither challenge nor address these conclusions, and instead rely on the mere existence of potential problems as evidence of significant uncertainty-a tactic that does not pass muster. See Native Ecosystems Council , 428 F.3d at 1240 ("Simply because a challenger can cherry pick information and data out of the administrative record to support its position does not mean that a project is highly controversial or highly uncertain."). iii. Precedent for Future Actions Another consideration for measuring an action's intensity for NEPA purposes is "[t]he degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration." 40 C.F.R. § 1508.27(b)(6). Although "EAs are usually highly specific to the project and the locale, thus creating no binding precedent," In Def. of Animals v. U.S. Dep't of Interior , 751 F.3d 1054, 1071 (9th Cir. 2014) (quoting Barnes , 655 F.3d at 1140 ), and the Forest Service here explicitly found that each of the three travel management plans was "not likely to establish a precedent for future actions with significant effects," Plaintiffs assert that this consideration is nonetheless implicated because "the Forest Service has [ ] made public statements indicating that what the Kaibab National Forest does, so too will other southwestern National Forests." It is true that the record contains evidence to this effect-including that the Coconino National Forest "will defer to the neighboring Kaibab National Forest's policy for [motorized big game retrieval] in units shared with the Williams Ranger District, regardless of how the Coconino proposes to apply the Travel Management Rule," and that the Prescott National Forest will "match them as best as we can"-but that does not mean that the Districts' plans bind or necessarily shape other forests' plans in such a way that they should be considered precedential, especially since any other forest's plan would be subject to its own NEPA analysis. Cf. Sierra Club v. Marsh , 769 F.2d 868, 879 (1st Cir. 1985) (determining that an action was precedential because "once Maine completes the causeway and port, pressure to develop the rest of the island could well prove irreversible"). In Oregon Wild v. Bureau of Land Management , a district court dealt with a similar situation, where a project was "part of a larger series of 'pilot projects' aimed at 'inform[ing] long-term planning' for management of [ ] lands in Oregon and California." No. 6:14-CV-0110-AA, 2015 WL 1190131, at *9 (D. Or. Mar. 14, 2015) (first alteration in original). There, as here, the most that could be concluded from such a minor precedential effect is that this consideration "supports the conclusion that an EIS is necessary"-but "the precedential factor alone is not dispositive." Id. ; see also Anderson v. Evans , 371 F.3d 475, 493 (9th Cir. 2004) (finding this factor "insufficient on its own to demonstrate a significant environmental impact" where an action is merely influential and not binding). Thus, this consideration alone did not require preparation of an EIS. iv. Threatened Species Finally, there is the issue of the Mexican spotted owl, a threatened species found in the Williams and North Kaibab Ranger Districts. The Forest Service must consider "[t]he degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973." 40 C.F.R. § 1508.27(b)(9). Plaintiffs point to portions of the record that raise the specter of adverse effects-including consultation letters between the Williams and North Kaibab Ranger Districts and the U.S. Fish and Wildlife Service regarding the owls-but they again ignore the Forest Service's overall conclusions. For example, the Williams Ranger District EA reported that some roads would pass through Mexican spotted owl critical habitats, which might result in "increased potential human disturbance." But the EA ultimately concluded that the selected plan would be "primarily beneficial," and would "not adversely affect Mexican spotted owl or Mexican spotted owl designated Critical Habitat." In a separate biological assessment, the Forest Service concluded that "[t]he effects determination for Mexican spotted owl and Mexican spotted owl critical habitat is may affect, not likely to adversely affect ," based on the determination [ ] that potential effects of the proposed action on the Mexican spotted owl would be primarily beneficial. Closing roads and restricting motorized cross-country travel under the proposed action would result in reduced motorized access to spotted owl habitat compared to current management and thus reduced risk of human disturbance to spotted owls, reduced impacts to habitat of spotted owls and their small mammal prey species, and reduced impacts to designated critical habitat. Notably, the U.S. Fish and Wildlife Service concurred in this determination. In short, although the Forest Service did not definitively conclude that no Mexican spotted owls would be adversely affected by the Districts' travel management plans, the record indicates that they sufficiently considered the issue and arrived at a reasonable conclusion that the effects would not be significant, thus obviating the need for an EIS. v. Summation In the end, we conclude that the Forest Service's determination that no EISs were needed as to the Districts' travel management plans was reasonable. The plans might have some precedential effect, there is a possibility that Mexican spotted owls might be affected, and exotic weeds might be spread by motorized big game retrieval, but the record ultimately supports the Forest Service's conclusion that these concerns do not rise to the level of significance that would require EISs. The Forest Service gave the requisite hard look and made determinations that were neither arbitrary nor capricious, and were consistent with the evidence before it. Absent substantial questions that would have mandated EISs, the Forest Service did not violate NEPA. III. NHPA Finally, Plaintiffs contend that the Forest Service violated the NHPA by failing to identify and evaluate the "high density of cultural resources" that might be damaged as a result of motorized travel in the Districts. The NHPA's purpose is to "foster conditions under which our modern society and our historic property can exist in productive harmony," 54 U.S.C. § 300101(1), and it requires federal agencies to "make a reasonable and good faith effort" to identify historic properties that might be affected by an action, and to "take [those potential effects] into account." 36 C.F.R. § 800.4(b)(1) ; see also 54 U.S.C. § 306108. "Like NEPA, '[s]ection 106 of NHPA is a "stop, look, and listen" provision that requires each federal agency to consider the effects of its programs.' " Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior , 608 F.3d 592, 607 (9th Cir. 2010) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv. , 177 F.3d 800, 805 (9th Cir. 1999) ). Plaintiffs assert that the Forest Service violated the NHPA in three ways: (1) by failing "to make a reasonable and good faith effort to identify and evaluate cultural properties"; (2) by "erroneously determin[ing] that 'Exemption Q' excuses NHPA consultation for the Tusayan and Williams Ranger Districts"; and (3) by arbitrarily making "a 'no adverse effect' determination for the North Kaibab Ranger District after admitting that cross-country travel damages cultural resources." We consider each argument in turn. A. Identification of Cultural Properties Section 106 of the NHPA requires the Forest Service to "make a reasonable and good faith effort to identify historic properties; determine whether identified properties are eligible for listing on the National Register ...; [and] assess the effects of the undertaking on any eligible historic properties found." Te-Moak Tribe , 608 F.3d at 607 (first alteration in original) (quoting Muckleshoot Indian Tribe , 177 F.3d at 805 ). It must also engage in consultation with the State Historic Preservation Officer (SHPO) to "[d]etermine and document the area of potential effects," "[g]ather information," and "develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties." 36 C.F.R. §§ 800.4(a), 800.6(a). Plaintiffs principally argue that the Forest Service failed to "make a reasonable and good faith effort" because it did not complete 100 percent surveys of potentially affected areas. The First Amended Programmatic Agreement Regarding Historic Property Protection and Responsibilities (Programmatic Agreement), which the parties agree provided the relevant guidelines, mandated that "[t]he level of need and extent of new field surveys or inspections will be proposed by a Professional Cultural Resource Specialist and approved by the Forest Archaeologist based on the guidelines provided in this section." Those guidelines included the use of "relevant information to assess the potential to affect historic properties and the expected nature and distribution of heritage properties that may be affected"; namely, "[t]he expected nature and severity of all associated impacts" and "[t]he expected nature and distribution of heritage resources." Based on the results of this "prefield research," the Resource Specialist and Forest Archeologist were directed to "determine the relative level of field survey to be conducted." The Programmatic Agreement called for "100% surveys" where "site density is expected to be high" and where "site densities are unknown and expected visitor use or impacts will be high." By contrast, "areas may be surveyed at less than 100%" where "known site density is low." Here, the record supports the Forest Service's conclusion that the Programmatic Agreement did not require 100 percent surveys. At the time the travel management plans were decided, the Forest Service had surveyed 42 percent of the Williams Ranger District, 23 percent of the Tusayan Ranger District, and 25 percent of the North Kaibab Ranger District. It concluded that no further surveying was required, based on the expected density of cultural resources and the nature and severity of impacts upon them. The record reinforces the determination that the expected impacts of the travel management plans would be low. After considering historic hunting data, the EAs concluded that less than 0.1 percent of each District's acreage would be impacted by motorized big game retrieval. However, the fact that "[t]he expected nature and severity of all associated impacts" might have been low does not necessarily mean that the Forest Service did not need to conduct 100 percent surveys, for the Programmatic Agreement required 100 percent surveys for high-density sites regardless of impact level. Accordingly, the Forest Service's obligation rested on "[t]he expected nature and distribution of heritage resources." The record is somewhat unclear as to the density of heritage resources in the areas open to motorized big game retrieval. Plaintiffs note that many of the Districts' cultural resources are close to the roads, but that does not necessarily speak to the density of resources because the Programmatic Agreement does not provide any benchmark or guidance as to what constitutes a high-density site. Ultimately, the lack of clarity weighs in the Forest Service's favor: it was not unreasonable for it to determine that the density was low or unknown, either of which would have excused 100 percent surveys. Thus, the Forest Service followed a reasonable interpretation of the Programmatic Agreement. B. Exemption Q The Programmatic Agreement's Exemption Q provided that "[a]ctivities not involving ground or surface disturbance (e.g., timber stand improvement and precommercial thinning by hand)" are "exempt from further review and consultation." Plaintiffs argue that the Forest Service arbitrarily relied on Exemption Q to excuse review of motorized big game retrieval in the Williams and Tusayan Ranger Districts. Once again, however, the record does not support Plaintiffs' assertions. We agree with Plaintiffs that invoking Exemption Q would have been inappropriate here. It is clear, and the Forest Service does not dispute, that motorized travel causes surface disturbance. But although the Forest Service's correspondence with non-party Center for Biological Diversity suggested that it applied Exemption Q, the record as a whole supports a contrary conclusion. The Forest Service consulted with both the Arizona SHPO and potentially affected tribes as to each District's travel management plan-consultations that would not have been required if Exemption Q had been applied. Moreover, the Forest Service made no other references to Exemption Q as part of the travel management plan decision process, which further supports the conclusion that it was not in fact invoked. Accordingly, the references to Exemption Q at most amounted to harmless error, as they had no effect on the NHPA consultation process. See 5 U.S.C. § 706 (requiring the court to take "due account ... of the rule of prejudicial error" when conducting APA review); Tucson Herpetological Soc'y v. Salazar , 566 F.3d 870, 880 (9th Cir. 2009) ("We have held that the harmless error doctrine 'may be employed only "when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached." ' " (quoting Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. , 378 F.3d 1059, 1071 (9th Cir. 2004) )). C. "No Adverse Effect" Determination Finally, Plaintiffs argue that the Forest Service's conclusion that motorized big game retrieval would have no adverse effect on cultural resources was arbitrary. But to buttress this assertion, Plaintiffs again cherry pick isolated segments from the record without considering their broader context. For example, the Cultural Resources Specialist Report prepared for the North Kaibab Ranger District noted that "[c]ross country motorized travel, whether to retrieve game or for other purposes, can adversely affect cultural resource sites if a vehicle is driven across a site," since "[v]ehicles can [ ] crush or displace artifacts and features impacting the physical integrity of the site and impairing or destroying scientific information that may contribute to the understanding of the history and prehistory of an area." But that same report also concluded as follows: Quantifying the potential for damage from big game retrieval is difficult. The results vary depending on the number of game retrieval trips annually, the location of those retrievals (high site probability areas versus low probability), site types found in the area, soil characteristics, routes used to access the game and weather conditions at the time of retrieval. However, the fewer number of motorized trips that occur, the lower the likelihood of encountering and impacting a site. ... Limiting cross-country travel will have a beneficial effect on cultural resources by reducing the potential for sites to be damaged. This alternative would restrict motorized big game retrieval to elk and bison. In 2009, 38 buffalo and no elk were taken .... While there is a possibility that cross-country game retrieval of either of these species could impact a cultural resource site, given the low number of takes each year, it is anticipated that the potential for adverse effects to a site would be negligible: 38 entries per year equates to less than .0099% of the acreage on the NKRD. The odds of adversely affecting a cultural resource site under these conditions are extremely low. (emphases added). In light of this ultimate conclusion, as well as the implementation of the suggested mitigation measures, it was not arbitrary for the Forest Service to conclude, based on the evidence before it, that adverse effects were unlikely. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ("[A]n agency rule would be arbitrary and capricious if the agency ... offered an explanation for its decision that runs counter to the evidence before the agency."). D. Summation The NHPA-and NEPA-"create obligations that are chiefly procedural in nature." San Carlos Apache Tribe , 417 F.3d at 1097 (quoting Pres. Coal., Inc. v. Pierce , 667 F.2d 851, 859 (9th Cir. 1982) ). Even if cultural resources might be harmed as a result of motorized big game retrieval, that fact alone does not indicate that the Forest Service violated the NHPA. The Forest Service conducted the required prefield work, consulted with the appropriate entities, and reached a determination consistent with the evidence before it-in short, satisfied its procedural obligations. CONCLUSION The travel management plans that the Forest Service implemented in the three Ranger Districts of the Kaibab National Forest limited motorized big game retrieval to certain roads and imposed additional restrictions to reduce the level and effect of motorized activity. In crafting the plans, the Forest Service investigated potential impacts on both the environment and historic properties and reasonably determined that no further action was needed. Accordingly, we conclude that the Forest Service followed the Travel Management Rule and fulfilled its procedural obligations under NEPA and the NHPA. AFFIRMED. The Rule's antecedents include executive orders issued by Presidents Nixon and Carter that sought to limit the damage to federal public lands caused by off-road vehicles. See Utah Shared Access All. v. Carpenter , 463 F.3d 1125, 1129-30 (10th Cir. 2006). In April 2009, the Forest Service issued an initial EA that analyzed the impact of the new travel management plan, as well as a subsequent DN/FONSI. In response to administrative appeals, that decision was reversed, and a new environmental survey undertaken. The resulting EA, issued in January 2011, reflected additional analysis and public comment. The State notes that additional, non-qualifying big game species can also be found in the Kaibab National Forest, including mule deer, pronghorn, and black bears. The same can be said for any inconsistencies between the final plans and the guidance provided by the Forest Service's regional officer, to which Plaintiffs point as evidence that the Rule was violated. Although, for example, the guidance suggested that retrieval of elk not be allowed "between one hour before sunrise and 10:00 am," that limitation was not a requirement , but merely a recommendation , and so a failure to implement it does not render the plans unlawful. "Before deciding whether to complete an EIS, government agencies may prepare a less formal EA which 'briefly provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.' " Anderson v. Evans , 371 F.3d 475, 488 (9th Cir. 2004) (quoting Tillamook County v. U.S. Army Corps of Eng'rs , 288 F.3d 1140, 1144 (9th Cir. 2002) ). This is because, as explained in the Williams Ranger District EA, "[v]ehicles driving through populations of invasive plants often get seed[s] entrapped in tire tread or undercarriages, move to another area and then drop seeds into a previously uninfested area." Two other enumerated considerations are relevant in this case: "[t]he degree to which the action may adversely affect ... objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources," and "[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment." 40 C.F.R. § 1508.27(b)(8), (10). However, the former consideration essentially depends on whether the Forest Service complied with the NHPA, while the latter hinges on the Forest Service's compliance with both the NHPA and the Travel Management Rule. Because we conclude that the Forest Service complied with both, we also conclude that no federal laws were violated, and no cultural resources adversely affected, such that EISs were required based on these considerations. "Historic property means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior." 36 C.F.R. § 800.16(l)(1). The Programmatic Agreement required 100 percent surveys "where site densities are unknown and expected visitor use or impacts will be high," so it would have been reasonable for the Forest Service to conclude that 100 percent surveys were not needed where densities were unknown and use impacts were low. The Forest Service claims that Plaintiffs' "brief does not identify where or how the Tusayan and Williams decisions purportedly relied on Exemption Q," and that their "responses to the non-party Center for Biological Diversity's administrative appeals of those decisions" contain only "an isolated reference to Exemption Q," but these assertions are misleading. In its response to the appeal regarding the Tusayan Ranger District, the Forest Service wrote that it "determined that motorized big game retrieval fell under Exemption Q of the PA, 'Activities not involving ground or surface disturbance (e.g., timber stand improvement and precommercial thinning by hand) ' and would have limited impacts similar to the examples cited in the exemption in the" Programmatic Agreement. That is more than a mere "isolated reference," as it implies that the Forest Service actually applied Exemption Q to the Tusayan Ranger District. This same language invoking Exemption Q appeared in the Forest Service's response regarding the Williams Ranger District. Curiously, although the Forest Service similarly argued in the district court that "the agency's decisions did not rely on Exemption Q," we note that the court concluded that Exemption Q did apply. On appeal, the Forest Service does not argue that the district court's conclusion on this point was correct, and we can affirm the court's ruling even though we agree with the parties that Exemption Q was not in fact applicable. See Applied Underwriters, Inc. v. Lichtenegger , 913 F.3d 884, 892 (9th Cir. 2019) ("We will affirm the district court's correct legal results, even if reached for the wrong reasons." (quoting Alcaraz v. Block , 746 F.2d 593, 602 (9th Cir. 1984) )). Amicus Curiae Rocky Mountain Elk Foundation filed a motion for leave to file an amicus brief in support of the Forest Service. We conclude that the proposed brief provides neither legal nor factual support to help resolve the issues on appeal, and so deny the motion.

Roman Catholic Bishop v. City of Springfield

LYNCH, Chief Judge. The Roman Catholic Bishop of Springfield (RCB) challenges the district court’s grant of summary judgment to the City of Springfield (City) and dismissal of RCB’s constitutional and statutory claims against enforcement of a City ordinance that created a single-parcel historic district encompassing a church owned by RCB. Under the ordinance, RCB cannot make any changes that affect the exterior of the church, including demolition, without the permission of the Springfield Historical Commission (SHC). RCB claims that the ordinance gives the SHC veto power over its religious decisionmaking, and in doing so violates its First Amendment rights to free speech and free exercise of religion; its rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000ec et seq.; and its rights under the Massachusetts state constitution. The district court, on cross-motions for summary judgment, found that some of RCB’s claims were not ripe for review and that its remaining claims failed as a matter of law. See Roman Catholic Bishop of Springfield v. City of Springfield (RCB), 760 F.Supp.2d 172 (D.Mass.2011). We conclude that only a limited claim is now ripe: namely, RCB’s claim based on the mere enactment of the ordinance. But those of RCB’s claims which depend on the potential consequences of compliance with the ordinance are not ripe for adjudication, because RCB has not yet devised its plans for the church nor submitted any application to the SHC. We reach this conclusion for reasons different from the district court’s. We reject the remaining ripe claim. We affirm in part and vacate in part the district court’s grant of summary judgment and dismiss RCB’s unripe claims without prejudice. I. The facts in this case are undisputed. A. Background RCB is a corporation sole, incorporated under the laws of Massachusetts. It is the legal entity through which the Roman Catholic Diocese of Springfield (“Diocese”) operates. The Diocese covers four counties in western Massachusetts, including the county that contains the City of Springfield. RCB owns a church in Springfield known as Our Lady of Hope (“Church”), which was built in 1925. It was designed by the Springfield architect John Donohue in the Italian Renaissance style. In 2001, the Church was deemed eligible for inclusion on the National Register of Historic Places, but it was never so placed. And until the events at issue in this case, it was never included in nor proposed to be included in a local historic district. In 2004, RCB began a process known as “pastoral planning,” which was designed to determine how to allocate the Diocese’s financial and human resources in the face of decreasing numbers of clergy and parishioners. The process was overseen by a committee of clergy and religious and lay members of the Diocese. Part of the committee’s duty was to seek and incorporate the views of members of the Diocese outside the committee itself. In August 2009, the committee issued its final report. The report recommended closing the Church and combining Our Lady of Hope Parish with another local parish. The Bishop of the Diocese accepted this recommendation, and services ceased at the Church as of January 1, 2010. According to Roman Catholic canon law, when a church goes out of service for religious worship, the Bishop comes under an obligation to protect the religious ornamentation in and on the building so that it is not put to “sordid” use. RCB identifies eight types of religious ornamentation on the exterior of the Church, including stone castings, inscriptions, and stained glass windows depicting religious scenes and symbols. Some of these features, such as friezes, are built into the structure and are not easily removable. All of these features are designed to communicate religious messages to those who observe them. RCB has established procedures for dealing with religious symbols when a church has been closed for worship. In order of preference, it will try to: (1) relocate the items to other locations within the Diocese; (2) relocate the items to other dioceses; or (3) place the items in storage. If none of these options are possible, the objects can be destroyed. When a closed church is sold or leased to a third party, RCB must first convert the church from religious use to “profane” (non-sacred) use in a process known as deconsecration. As part of the deconsecration process, RCB will include a clause in the sale or lease agreement obligating the purchaser or lessee either to refrain from putting the property to “sordid” use or to allow RCB to remove all religious symbols. If RCB elects to remove the religious symbols, it follows the steps outlined above. However, if the symbols are impossible or impracticable to remove (for instance, a frieze), RCB will cover them with concrete or other materials. Symbols that cannot be removed may also be destroyed — along with the building itself, if necessary — if RCB determines that destruction is necessary to avoid desecration. B. The Massachusetts Histone Districts Act (MHDA) The MHDA delegates to cities and towns in Massachusetts the authority to designate historic districts within their boundaries. The process of creating historic districts involves first creating a historical commission or a historic district study committee, see Mass. Gen. Laws ch. 40C, §§ 3-4; Springfield did the former when it constituted the SHC in the early 1970s. The SHC consists of seven members and four alternates, appointed by the mayor and subject to confirmation by the City Council. Under the MHDA, a municipality’s historical commission must investigate and report on proposed historic districts before such districts can be approved by the municipality. Id. § 3. A proposed district “may consist of one or more parcels or lots of land, or one or more buildings or structures on one or more parcels or lots of land.” Id. In assessing potential historic districts, a commission is to consider “the historic and architectural value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features involved, and the relation of such features to similar features of buildings and structures in the surrounding area.” Id. § 7. When the commission completes a preliminary report on a proposed district, it transmits the report to the municipality’s planning board and to the state historical commission. Id. § 3. Not less than sixty days later, the municipal commission must hold a public hearing on the report. Id. If the commission approves the proposal following the public hearing, it transmits a final report and proposed ordinance to the city council (or equivalent body). Id. A two-thirds vote of the city council is required to approve the district. Id. Once a historic district is approved, “no building or structure within [the] district shall be constructed or altered in any way that affects exterior architectural features” unless the historical commission first issues a certificate of appropriateness, a certificate of non-applicability, or a certificate of hardship. Id. § 6. Violation of this provision is punishable by a fine of between ten dollars and five hundred dollars per day of violation. Id. § 13. The statute defines “altered” as “includ[ing] the words ‘rebuilt’, ‘reconstructed’, ‘restored’, ‘removed’ and ‘demolished,’” and the word “constructed” as “includpng] the words ‘built’, ‘erected’, ‘installed’, ‘enlarged’, and ‘moved.’ ” Id. § 5. In order to obtain a certificate of appropriateness, hardship, or non-applicability, a property owner must file with the commission an application along with “such plans, elevations, specifications, material and other information ... as may be reasonably deemed necessary, by the commission to enable it to make a determination on the application.” Id. § 6. The SHC makes an application for these certificates, along with a list of its other requirements, available on the City’s website. The SHC holds public hearings on submitted applications, unless all parties entitled to notice waive the hearing. C. The Ordinance The news that the pastoral planning process would result in the closing of the Church provoked significant adverse reaction among many Our Lady of Hope parishioners. The parish was one of the two largest parishes slated for closing in Springfield, and parishioners were unhappy with the prospect of being merged into another parish. In the fall of 2009, a number of Our Lady of Hope parishioners and other local citizens began lobbying the City to designate the Church as a historic district. A member of the state House of Representatives from Springfield, Sean Curran, wrote to the SHC about the matter, stating that “the closing of the church is a tremendous blow to the [Our Lady of Hope] parish, but just as alarming is the loss of the church as an architectural jewel.” He urged the SHC to begin the historic district process “swiftly and without bureaucratic delay” in order to “save this beautiful building from the wrecking ball.” Curran appeared before the SHC at a public meeting on September 3, 2009, where he made the same request. At that time, the SHC voted unanimously to undertake a preliminary report on creating a new historic district that would include the Church. The SHC produced its preliminary report on September 17, 2009 — just two weeks after the initial meeting — outlining a proposal for the Our Lady of Hope Historic District (“District”). The proposal explained the historical and architectural reasons for creating the District. Significantly, it also stated another reason animating the proposal: the SHC noted that the Church was “slated to be closed”; that another Roman Catholic church in Springfield had recently been closed, sold, and demolished; and that the District “[wa]s being proposed to avoid the same possible fate for Our Lady of Hope.” The preliminary report proposed a single-parcel district covering only the Church and no other property. The report justified the boundaries by describing the non-historical nature of the surrounding properties. The proposal would create the first and, at the time, only single-parcel historic district in Springfield. Other multi-parcel historic districts in the City at the time contained various houses of worship. The District ultimately enacted by the City Council retained these proposed boundaries. On October 19, 2009, the SHC received a letter from the Massachusetts Historical Commission in response to its preliminary report, giving an “advisory recommendation” in favor of the District. Acting within the statutory sixty-day window, the SHC held a public meeting to discuss the proposal on December 14, 2009. RCB’s counsel appeared at this meeting to object to the creation of the District. He argued, inter alia, that creating the District would infringe RCB’s constitutionally protected rights to free speech and free exercise of religion and that it would violate RLUIPA. He also argued that the creation of the District was designed to intrude on the pastoral planning process at the behest of Our Lady of Hope parishioners who were angry at having their parish closed. Finally, RCB’s counsel asked that the SHC at a minimum seek a legal opinion as to the constitutional implications of approving the District. Despite these objections, and without seeking legal advice, at the close of the meeting the SHC voted unanimously to send a final report to the City Council. The City Council initially referred the proposal to a Council committee for study. On December 21, 2009, RCB wrote to each Council member, reiterating its arguments against the adoption of the District and asking the Council to seek a legal opinion on the constitutionality of the District. RCB pointed out that if the Church were designated as a historic district, it would inhibit future sale of the property, the proceeds of which would benefit the merged parish. Historic district designation would also impose on the Diocese, and specifically on the merged parish, the continuing costs of maintenance, insurance, and security for the Church. On December 29, 2009, the City Council held a public meeting on the proposal, even though it had not received a response from its study committee. RCB’s counsel attended the meeting and again objected to the creation of the District. During the meeting, one councilor called in the city solicitor and asked whether the City’s law department had reviewed the proposal. The solicitor said it had not and offered to discuss the proposal with the Council in executive session, but the Council declined. Also during this meeting, another council- or asked RCB’s counsel why parishioners had not had an opportunity to participate in the decision of whether to close the Church. When RCB’s counsel answered that they had, the councilor exclaimed, “That isn’t true!” In fact, members of the Diocese, which included Our Lady of Hope parishioners, had been invited to participate in the pastoral planning process. At the close of the meeting, the Council passed the ordinance creating the District (“Ordinance”). RCB sent a written protest to the City’s mayor, but the mayor signed the Ordinance into law the next day. The Ordinance went into effect on January 20, 2010, approximately three weeks after the last services were held at the Church. Since' the enactment of the Ordinance, RCB has taken no action with regard to the deconsecration, sale, or leasing of the Church, and it has not made any submissions to the SHC seeking permission to alter the Church’s exterior. As we explain, as a result of RCB’s failure to take further actions with regard to the Church site, certain of its claims lack the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPÁ or either the federal or state constitutions. II. RCB filed its complaint against the City in Massachusetts Superior Court on January 21, 2010, the day after the Ordinance went into effect. It asserted federal constitutional claims under 42 U.S.C. § 1983, federal statutory claims under RLUIPA, and state law claims under the Massachusetts Constitution and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 111. RCB sought, inter alia, temporary and permanent injunctions restraining the City from enforcing the Ordinance, a declaration that the Ordinance was void, and attorneys’ fees and costs. The City removed the case to the U.S. District Court for the District of Massachusetts on February 5, 2010. RCB moved for summary judgment on July 9, 2010, and the City cross-moved for summary judgment on August 13, 2010. On January 2, 2011, the district court issued its Memorandum and Order granting summary judgment to the City. RCB, 760 F.Supp.2d at 176. The court first found that certain of RCB’s claims were not ripe for adjudication. To make this determination, the court recharacterized the complaint by dividing RCB’s allegations “into two temporal facets: (1) violations that arise from the mere enactment of the single-parcel historic district, ... and (2) violations that arise from [RCB]’s resulting inability to deconsecrate church property.” Id. at 181. The court concluded that claims falling under the first heading were ripe for review because the Ordinance forced RCB to submit to a secular authority and subjected it to the “delay, uncertainty and expense” of the approval process. Id. at 181-82. On the other hand, it found that claims falling under the second heading were not ripe because RCB had not actually applied to the SHC to make any changes to the Church, so it was unknown whether RCB would be allowed to make the changes it desired. Id. at 182-84. As to the merits of the remaining federal claims, the court found, inter alia, that the burden the Ordinance imposed on RCB was not “substantial” under RLUIPA, id. at 185-88, and that the Ordinance did not violate the antidiscrimination provisions of RLUIPA, id. at 188-91. It then erroneously focused on the MHDA rather than the Ordinance, and it found that the MHDA was a neutral law of general applicability; therefore, under Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the statute’s incidental First Amendment burden on RCB was constitutionally acceptable, see RCB, 760 F.Supp.2d at 191-93. The court also found that RCB’s claim under the Massachusetts Constitution failed for the same reasons as did its claim under the “substantial burden” provision of RLUIPA. Id. at 195. RCB timely appealed on January 28, 2011. III. We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011). On an appeal from cross-motions for summary judgment, the standard does not change; we view each motion separately and draw all reasonable inferences in favor of the respective non-moving party. See OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir.2012). Neither party contends that there are any genuine issues of material fact that would justify remand for a trial. We must begin with the City’s argument that RCB’s claims are not ripe for review, since the ripeness inquiry involves, as one component, the question of whether this court has jurisdiction to hear the case. See Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 8 (1st Cir.2012) (per curiam). “[T]he doctrine of ripeness has roots in both the Article III case or controversy requirement and in prudential considerations.” Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir.2003). The “basic rationale” of the ripeness inquiry is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). There are two factors to consider in determining ripeness: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. We generally require both prongs to be satisfied in order for a claim to be considered ripe. Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.1995). The fitness prong of the ripeness test has both jurisdictional and prudential components. The former, “grounded in the prohibition against advisory opinions, is one of timing.” Sindicato Puertorriqueño, 699 F.3d at 8 (quoting Mangual, 317 F.3d at 59) (internal quotation mark omitted). It concerns whether there is a sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction in the federal courts. See id. The prudential component asks “whether resolution of the dispute should be postponed in the name of ‘judicial restraint from unnecessary decision of constitutional issues’; if elements of the case are uncertain, delay may see the dissipation of the legal dispute without need for decision.” Mangual, 317 F.3d at 59 (citation omitted) (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)); see also Ernst & Young, 45 F.3d at 535 (“This [fitness] branch of the test typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.”). The hardship prong, by contrast, is “wholly prudential.” Mangual, 317 F.3d at 59. It looks at “whether the challenged action creates a direct and immediate dilemma for the parties.” Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng., Inc. v. Int’l Bhd. of Elec. Workers, Local No. 2322, 651 F.3d 176, 188 (1st Cir.2011)) (internal quotation marks omitted). “Generally, a ‘mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.’ ” Id. (quoting Simmonds v. INS, 326 F.3d 351, 360 (2d Cir.2003)). The City argues that, because RCB has never submitted an application for a certificate of hardship, RCB cannot present any ripe claims based on the fact that the SHC might prevent RCB from implementing its religious protocols as to symbols on the exterior of the Church. RCB responds that the issues in this ease are purely legal rather than factual, so no further developments — including any developments that would result from submitting an application to the SHC — would alter the outcome. RCB also argues that it faces the hardship of having to seek the SHC’s permission for every future change to the Church’s exterior and that any required application for a certifícate of hardship would be futile due to the City’s demonstrated hostility to the Diocese’s plans for the Church. As to the first component of the fitness question, we conclude that one aspect of RCB’s complaint satisfies Article Ill’s case or controversy requirement: specifically, RCB’s claim that the enactment of the Ordinance itself burdens RCB’s religious practices and undermines its religious freedom. There is no doubt that the City intends to enforce the Ordinance against RCB and that RCB must submit several categories of its decision-making, otherwise governed by religious doctrine, to the SHC. RCB has already protested to the City regarding the practical effects of these facts on its ownership and potential disposition of Church property, including financial burdens. Under these circumstances, there is a live controversy between the parties. But the prudential component of the fitness prong, as well as the-entirely prudential hardship prong, present much closer questions as to the aspects of RCB’s claim concerning the potential future results of the application process. We do not agree with RCB that there are no further factual developments that could be relevant to the outcome of this case. Indeed, both the district court and the City have emphasized a key missing fact: RCB did not put in the record any specific plan for the sale and/or deconsecration of the Church. Nor does the record indicate that RCB made any such proposal to the City (via the Council or the SHC) before filing the instant lawsuit. Nothing has yet been presented to the SHC. Instead, RCB filed this lawsuit the very next day after the Ordinance went into effect. As such, the City has had no opportunity to demonstrate whether or not it will accommodate some, all, or none of RCB’s requests for changes to the exterior of the Church. Indeed, RCB has not settled upon any plan for future use of the property that would necessarily entail changes to the Church’s exterior. Without knowing what RCB can or cannot do with the Church under the Ordinance, we cannot know to what extent, if any, RCB will suffer from a burden on its religious practice. This uncertainty likewise casts doubt on RCB’s argument that any application to the SHC would be futile. The City has made it clear, both in the proceedings leading to passage of the Ordinance and throughout this lawsuit, that its purpose in passing the Ordinance was to prevent demolition of the Church. If RCB had proffered evidence that it in fact planned to demolish the Church, in accordance with the requirements of its deconsecration procedures, then RCB may have been able to make the futility argument. See Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir.1991) (stating, in zoning context, that futility may be sufficient to show ripeness where the plaintiff faces “a sort of inevitability ...: the prospect of refusal [of an application] must be certain (or nearly so),” not merely possible or even probable). But the City has not represented that it would deny all applications to alter the exterior of the Church in any way, and RCB has not offered evidence to suggest that the City would deny all such applications. Given this uncertainty, we cannot conclude that RCB’s claims premised on its feared inability to deconsecrate the Church according to its religious principles, as a result of future SHC decisions, are now fit for adjudication. In reaching this conclusion, we rely on traditional notions of ripeness. We do not rely, as did the district court, on specialized Takings Clause ripeness doctrine. In regulatory takings cases, a property owner must follow the procedures for requesting the applicable zoning relief, and have its request denied, before bringing a claim in court. Williamson Cnty. Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 190-91, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). But the Supreme Court has stated that this requirement “is compelled by the very nature of the inquiry required by the Just Compensation Clause.” Id. at 190, 105 S.Ct. 3108; see 13B Wright & Miller, Federal Practice & Procedure § 3532.1.1 (describing takings cases as comprising “[a] special category of ripeness doctrine”). Specifically, regulatory takings inquiries focus on the economic impact of a regulation on the subject property, and that impact is only apparent once there is a final zoning decision. See Williamson Cnty., 473 U.S. at 191, 105 S.Ct. 3108. The ripeness inquiry in takings cases also involves a question of the adequacy of alternative procedures to obtain just compensation. See Home v. Dep't. of Agric., — U.S.-, 133 S.Ct. 2053, 2062, 186 L.Ed.2d 69 (2013). Here, by contrast, the Ordinance’s effect on RCB’s free exercise rights may well become clear at a different point than that contemplated by takings law. While constitutional challenges to land use regulations may implicate Williamson County’s ripeness doctrine in some cases, we find no such necessary implication here. It is significant, in this respect, that the Ordinance is designed to apply only to the Church, unlike the neutral and generally applicable zoning or environmental ordinances that are almost always at issue when a regulatory takings claim is alleged. To the extent that RCB has argued that the mere existence of the Ordinance creates a ripe controversy, we find that its claims are ripe. With regard to this attack on the enactment of the Ordinance, RCB has credibly alleged that the requirement of submitting to the SHC’s authority presently imposes delay, uncertainty, and expense, which is sufficient to show present injury. See Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir.2012) (considering inability to use property as intended as a factor in the ripeness inquiry). Of course, the extent and significance of this alleged injury is a merits question. For the purposes of the ripeness inquiry, it is enough to note that it is self-evidently plausible that they exist. RCB also argues that the requirement of subjecting its religious decisions regarding deconsecration to secular administrators at all creates a present burden on its free exercise of religion. Cf. Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n. 13, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (concluding that constitutional separation-of-powers challenge to “veto power” of administrative board was ripe “even if the veto power has not been exercised to respondents’ detriment,” because “[t]he threat of the veto hangs over the [decision-makers subject to the veto power] like the sword over Damocles, creating a ‘here- and-now subservience’ ... sufficient to raise constitutional questions”). Finally, RCB points out that if it were to make any changes to the exterior of the Church without the SHC’s permission, it would be subject to a statutory fine for each day the changes persisted. See Mass. Gen. Laws ch. 40C, § 13. Under these circumstances, we conclude that RCB’s challenges to the enactment of the Ordinance satisfy the prudential fitness and hardship requirements of the ripeness test. Because these challenges rest solely on the existence of the Ordinance, no further factual development is necessary, and the Ordinance’s existence does confront RCB with a “direct and immediate dilemma.” Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng., 651 F.3d at 188). IV. We turn to the merits of the ripe claim, beginning with RCB’s RLUIPA arguments. A. RLUIPA “Substantial Burden ” RCB first argues that the Ordinance violates RLUIPA’s “substantial burden” provision, 42 U.S.C. § 2000cc(a), which states: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc(a)(l). The parties do not dispute that the Ordinance is a “land use regulation” within the meaning of the statute. RCB, 760 F.Supp.2d at 186. RLUIPA defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” 42 U.S.C. § 2000cc-5(7)(A), and it specifically provides that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise,” id. § 2000cc-5(7)(B). The district court correctly determined that deconsecration constitutes religious exercise under the statute. RCB, 760 F.Supp.2d at 186. The City concedes that point for purposes of this appeal. 1. Standard of Review The Supreme Court has not decided whether a district court’s ultimate conclusion as to the existence of a substantial burden under RLUIPA is an issue of fact or law, nor the appellate standard of review for this issue. Nor have the circuit courts answered the question. See, e.g., World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 539 (7th Cir.2009). Of course, if a district court had made subsidiary findings resolving disputed issues of fact, those findings would be subject to clear error review. But because this case was resolved on summary judgment, that situation is not before us. Rather, in the circumstances presented here — where there are no contested findings of fact, and where neither party argues that there are material issues of fact for trial — we view the question of whether a “substantial burden” exists as a question of law subject to de novo review. Among the reasons for our approach are two considerations. First, the corollary question of whether the government’s interest is compelling is generally treated as a question of law. See, e.g., McRae v. Johnson, 261 Fed.Appx. 554, 557 (4th Cir.2008) (per curiam); United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir.2002) (interpreting analogous RFRA provision). Second, in cases raising challenges under the Free Speech Clause of the First Amendment, we have stated that an appellate court “must conduct an ‘independent review of the evidence on the dispositive constitutional issue’ ... in order to safeguard precious First Amendment liberties.” Veilleux v. Nat’l Broad. Co., 206 F.3d 92, 106 (1st Cir.2000) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)); see AIDS Action Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 7 (1st Cir.1994) (“[W]here the trial court is called upon to resolve a number of mixed fact/law matters which implicate core First Amendment concerns, our review, at least on these matters, is plenary....”). We see no reason why this should not be true of RLUIPA claims, which are corollaries of First Amendment Free Exercise claims. 2. Content of “Substantial Burden ” RCB bears the burden of demonstrating that the enactment of the Ordinance imposes a “substantial burden” on its religious exercise. RLUIPA does not define “substantial burden,” although the background of the statute’s enactment provides some indication of Congress’s intended meaning. The pertinent background begins with Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, in which the Supreme Court held that the Free Exercise Clause does not relieve individuals of the obligation to comply with neutral laws of general applicability that burden their religious exercise. See id. at 879, 110 S.Ct. 1595. Congress responded to Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA), Pub.L. No. 103-141, 107 Stat. 1488. This statute purported to overturn Smith and reinstate the free exercise standard announced in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), which had required the government to demonstrate a compelling interest in order to justify a substantial burden on religious practices. See RFRA, Pub.L. No. 103-141, § 2(a)(4)-(5), (b)(1); Sherbert, 374 U.S. at 406-07, 83 S.Ct. 1790. The Court then struck down the RFRA as applied to the states and their subdivisions, holding it outside the scope of Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 519, 532, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress responded again by passing RLUIPA, this time relying on the Spending and Commerce Clauses and targeting only two areas of state regulation: land use and institutionalized persons. See Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). RLUIPA established the same rule for these two limited areas that Congress had attempted to apply more broadly in the RFRA: it prohibited state and local governments from placing a substantial burden on religious exercise unless the government could show that it had a compelling interest and that it had used the least restrictive means to achieve that interest. Compare RFRA, Pub.L. No. 103-141, § 3(b), with 42 U.S.C. § 2000cc(a)(l). The congressional record accompanying the passage of RLUIPA in the Senate indicates that the sponsors of the law intended the phrase “substantial burden” to be “interpreted by reference to Supreme Court jurisprudence.” 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy). The Supreme Court, however, has never provided a working definition of “substantial burden” in this context. As the Second Circuit has noted, Sherbert — one of the eases on which Congress relied in formulating its statutory test — approached the “substantial burden” question in terms of a choice between following one’s religion and obtaining government benefits (there, unemployment benefits), see 374 U.S. at 399-400, 83 S.Ct. 1790, a type of choice that does not accurately describe the situation in religious land use disputes. See Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir.2007). The First Circuit has not offered its own interpretation of “substantial burden” for RLUIPA land use purposes. The parties offer various abstract formulations to us. A number of other circuits have announced tests in terms of such abstract formulations, but the standards they have announced have not been consistent. See, e.g., Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir.2013) (“[A] plaintiff can succeed on a [RLUIPA] substantial burden claim by establishing that a government regulation puts substantial pressure on it to modify its behavior.”); Westchester Day Sch., 504 F.3d at 349 (formulating the question as whether “government action ... directly coerces the religious institution to change its behavior” (emphasis omitted)); Living Water Church of God v. Charter Twp. of Meridian, 258 Fed.Appx. 729, 737 (6th Cir.2007) (asking whether, “though the government action may make religious exercise more expensive or difficult, does the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004) (substantial burden is one that “place[s] more than an inconvenience on religious exercise” and is “akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly”); San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) (“[F]or a land use regulation to impose a ‘substantial burden,’ it must be ‘oppressive’ to a ‘significantly great’ extent.”); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003) (“[I]n the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.”). In the absence of Supreme Court guidance, we do not adopt any abstract test, but rather identify some relevant factors and use a functional approach to the facts of a particular case. We recognize different types of burdens and that such burdens may cumulate to become substantial. At least one circuit has moved in this direction, see World Outreach Conference Ctr., 591 F.3d at 539 (“[W]hether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question.”), and academic commentary has suggested the same, see R. Bernstein, Note, Abandoning the Use of Abstract Formulations in Interpreting RLUIPA’s Substantial Burden Provision in Religious Land Use Cases, 36 Colum. J.L. & Arts 283, 305-10 (2013) (explaining common factors that courts have considered in assessing “substantial burden” under RLUIPA, regardless of how the standard has been formulated). This approach involves consideration of the common-usage understandings of the term “substantial burden,” a term used in many areas of law without particular abstract formulations. A “burden” is “[s]omething that hinders or oppresses,” Black’s Law Dictionary 223 (9th ed.2009), or “something oppressive or worrisome,” Merriam-Webster’s Collegiate Dictionary 152 (10th ed.1993); see also “Burden/burthen, n.,” Oxford English Dictionary, available at http://www.oed.com/ viewdictionaryentry/Entry/24885 (“An obligatory expense, whether due on private account or as a contribution to national funds; often with the additional notion of pressing heavily upon industry and restraining freedom of action.”). Next, something is “substantial” when it is “important” or “significantly great,” Merriam-Webster’s Collegiate Dictionary 1174 (10th ed.1993); see also “Substantial, adj., n., and adv.,” Oxford English Dictionary, available at http://www.oed.com/ viewdictionaryentry/Entry/193050 (as to an action or measure, “having weight, force, or effect; effective, thorough”). A burden does not need to be disabling to be substantial. We do not agree with those courts that have suggested that nothing short of coercion to change or abandon one’s religious beliefs can meet the substantial burden test. On the other hand, we agree with the Second Circuit’s observation that RLUIPA does not mean that any land use restriction on a religious organization imposes a substantial burden — such a conclusion would stretch First Amendment jurisprudence too far, see Westchester Day Sck, 504 F.3d at 349-50, and moreover would be contrary to congressional intent, see 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (“This Act does not provide religious institutions with immunity from land use regulation....”) (joint statement of Sens. Hatch and Kennedy). We do identify some factors that courts have considered relevant when determining whether a particular land use restriction imposes a substantial burden on a particular religious organization, but we do not suggest that this is an exhaustive list. One factor is whether the regulation at issue appears to target a religion, religious practice, or members of a religious organization because of hostility to that religion itself. See Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 898 (7th Cir.2005) (noting that city had allowed rezoning of parcel owned by Protestant church but imposed additional processes on, and ultimately denied, Greek Orthodox church’s rezoning application for adjacent parcel); id. at 900 (warning of the “vulnerability of religious institutions — especially those that are not affiliated with the mainstream [Christian] sects ... to subtle forms of discrimination”); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532-33, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Another is whether local regulators have subjected the religious organization to a process that may appear neutral on its face but in practice is designed to reach a predetermined outcome contrary to the group’s requests. See, e.g., World Outreach Conference Ctr., 591 F.3d at 537-38 (finding that religious organization stated a RLUIPA substantial burden claim where city insisted that organization seek a permit it did not need, then used other processes to “pull[ ] the rug out from under” organization’s application, id. at 537); Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978, 989 (9th Cir.2006) (finding substantial burden where the religious organization “readily agreed to every mitigation measure suggested by [regulators], but the County, without explanation, found such cooperation insufficient,” and the “broad reasons” given for the county’s denials “could easily apply to all future applications” by the organization). Courts have also looked to whether the land use restriction was “imposed on the religious institution arbitrarily, capriciously, or unlawfully.” Westchester Day Sck, 504 F.3d at 350. This may occur where, for instance, local regulators disregard objective criteria and instead act adversely to a religious organization based on the objections of a “small but influential” group in the community. Id. at 346 (noting that “[mjany of the[ ] grounds” for zoning board’s denial of religious institution’s building permit application “were conceived after the [board] closed its hearing process, giving the school no opportunity to respond,” and that “the stated reasons for denying the application were not supported by evidence,” leading the district court to “surmise[] that the application was in fact denied because the [board] gave undue deference to the public opposition of the small but influential group of neighbors who were against the school’s expansion plans”). It may also occur where local regulators base their decisions on misunderstandings of legal principles. See Saints Constantine, 396 F.3d at 899-900 (describing “repeated legal errors” by the city, suggesting that errors were indicative of city either being “deeply confused about the law” or “playing a delaying game,” and warning of risks to religion where, as in zoning processes, “a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards”). Taken together, these factors reveal that the substantial burden analysis often “backstops the explicit prohibition of religious discrimination in” RLUIPA’s subsection (b) much in the same way as “the disparate-impact theory of employment discrimination backstops the prohibition of intentional discrimination.” Id. at 900. ■ Under the substantial burden framework, a court may block application of a land use regulation under RLUIPA’s subsection (a) where the context raises an “inference” of hostility to a religious organization, even when the evidence does not necessarily show the explicit discrimination “on the basis of religion” contemplated by subsection (b). Id. Several courts have been sensitive to these concerns. See, e.g., Westchester Day Sch., 504 F.3d at 350-51; World Outreach Conference Ctr., 591 F.3d at 535-38 (reversing dismissal of religious organization’s RLUIPA substantial burden claim, while affirming dismissal of organization’s RLUIPA discrimination claim). 3. De Novo Review of Substantial Burden Analysis We start with two bedrock observations: first, that a religious organization is protected from government burdens which are imposed based on the organization’s religious beliefs; and second, that the Ordinance at issue in this case cannot be viewed as a neutral law of general applicability in the Smith sense. As to the first issue, a government may not single out for special benefit or burden a religious group or institution solely because of its religious beliefs. See id. at 532. Here, nothing in the language nor the background of the Ordinance indicates that hostility to Catholicism or Catholics motivated the City’s decisionmaking process. The language of the Ordinance does not target deconsecration as such. By its terms, the Ordinance does not forbid the SHC from inquiring into the religious criteria that RCB uses to determine how it will apply its religious protocols, nor from second-guessing the religious conclusions reached by RCB as to what is sacred. In this respect, the Ordinance stands in contrast with at least some other historic zoning ordinances which expressly prohibit local historical commissions from interfering in liturgical decisions. See, e.g., First Covenant Church of Seattle v. City of Seattle, 120 Wash.2d 203, 840 P.2d 174, 178 (1992); cf. Sherbert, 374 U.S. at 402, 83 S.Ct. 1790 (“The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.”). But RCB has not alleged that the SHC will engage in these forbidden practices, nor has it argued that the SHC has historically done so with regard to any - other religious buildings. The Ordinance merely requires RCB to undertake an administrative process common to all historic districts. We will not assume that the SHC will use its authority to transgress these forbidden lines of challenging liturgical criteria or conclusions, without evidence that it has done so. As to the second issue, we do not-view the Ordinance as a “neutral law of general applicability” in the sense that the Supreme Court used the term in Smith. See 494 U.S. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in the judgment)); id. at 879-82, 110 S.Ct. 1595. Rather, the City, through the SHC and City Council, is vested with discretion to decide when to create a historic district. The strictures imposed as a result of historic district status do not apply automatically by statute to the general population, but apply once certain officials of the City decide that they will apply. Historic district or landmark ordinances are different from other types of zoning rules in that their entire purpose is to prevent only particular property owners in limited areas from changing the appearance of particular properties. In this sense, it can be said that the Ordinance is not “generally applicable.” One of the dangers of a discretionary system such as this one is the prospect that the government’s discretion will be misused. In this case, there were some troubling circumstances surrounding the City’s enactment of the Ordinance. For instance, the Ordinance was proposed after the news was released that RCB planned to close the Church, and it'was supported by parishioners opposed to the (otherwise unreviewable) closing decision and those sympathetic to their cause. The record does not indicate any interest in including the Church in a historic district before that decision in the late summer of 2009. See Lukumi, 508 U.S. at 540-41, 113 S.Ct. 2217 (noting significance of fact that ordinances regarding animal sacrifice were enacted in direct response to news that a Santería church would open in town). The SHC report acknowledges that part of the City’s intent in creating the District was to prevent RCB from following the same path it had taken with another local church, which had been closed, deconsecrated, and sold to a developer who demolished it. It was arguably because RCB might conclude that demolition of the Church' was required that the City chose to intervene. The SHC, City Council, and mayor pressed the Ordinance through the approval process quickly, in a matter of weeks, coinciding with the timeline of the Church’s closing (the Ordinance became law on December 30, 2009, and went into effect on January 20, 2010; the last services at the Church were held on January 1, 2010). The City’s officials took these actions without considering the Ordinance’s potential constitutional implications, despite repeated requests by RCB for a legal consultation and an offer by the City’s solicitor to provide legal advice. Cfi Saints Constantine, 396 F.3d at 899 (“The repeated legal errors by the City’s officials casts doubt on their good faith.”). The City Council did not even wait for the report of its own study committee before approving the District. At the City Council hearing, one councilor accused RCB’s counsel of lying about RCB’s decisionmaking process in closing the Church, suggesting dissatisfaction with that religiously motivated decision. Cf. Rector, Wardens, & Members of the Vestry of Saint Bartholomew’s Church v. City of New York, 914 F.2d 348, 355 (2d Cir.1990) (holding that landmarking laws can permissibly single out individual parcels, “absent proof of the discriminatory exercise of discretion ” in identifying such parcels (emphasis added)). In the end, however, these troubling facts surrounding the enactment of the Ordinance are not outcome determinative, because this exercise of discretion (that is, designating the Church as a single-parcel historic district) does not establish a process, apparently neutral, that in fact will result in the denial of any request that RCB may make to the SHC. See, e.g., World Outreach Conference Ctr., 591 F.3d at 537-38; Guru Nanak Sikh Soc’y, 456 F.3d at 989. The Ordinance requires only that RCB submit any plans to alter the exterior of the Church to the SHC. Should the SHC in fact prevent RCB, when it does have specific plans for the site, from undertaking any portion of its religious practice of deconsecration, the significance of the Ordinance’s background can be evaluated anew in the context of any later challenge. In addition to the two concerns outlined above, we evaluate the actual, tangible burdens that existence of the Ordinance imposes on RCB. RCB represented to the City Council that it must bear a financial burden of maintaining the Church, which falls on the newly merged parish and constrains RCB’s decisions about how to allocate the Diocese’s resources. But the mere existence of some expenses does not put “substantial pressure on [RCB] to modify its behavior.” Bethel World Outreach, 706 F.3d at 556. There are many scenarios under which RCB would be paying to maintain the Church, only some of which are fairly traceable to the Ordinance. Further, RCB did not submit evidence of the degree of these expenses, nor of the Church’s property value before or after passage of the Ordinance. See, e.g., First Covenant Church of Seattle, 840 P.2d at 183 (noting, in constitutional substantial burden analysis, evidence that landmark ordinance “reduce[d] the value of the Church’s property by almost half’). RCB does face statutory penalties if it makes any changes to the Church without the SHC’s permission, see Mass. Gen. Laws ch. 40C, § 13, but this possibility does not mean that the process of application to the SHC is itself burdensome. The Ordinance asks RCB only to delay the decisions it makes pursuant to its deconsecration plans while the SHC evaluates its application, a process that, according to the SHC’s own rules, should take no more than sixty days. In this case, all of the factors we have identified combine to show that RCB cannot, solely on its challenge to the enactment of the Ordinance, prove that it suffers a substantial burden on its religious exercise. Because we decide that RCB has not shown a substantial burden, we need not address the question of whether the Ordinance is “in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering” that interest. 42 U.S.C. § 2000cc(a)(l)(A)-(B). B. RLUIPA “Equal Terms” RCB also argues before this court that the Ordinance violates another provision of RLUIPA, the “equal terms” provision, which states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(l). RCB argues that the City violated this provision because the District was, at the time of its enactment, the only single-parcel historic district in Springfield. The circuits disagree as to the applicable comparator in a RLUIPA “equal terms” analysis. Compare Midrash Sephardi, 866 F.3d at 1230-31 (“natural perimeter” of inquiry is the universe of entities which qualify as “assemblies] or institution[s]”), with Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 264 (3d Cir.2007) (religious institution must show that a secular comparator is similarly situated in relevant respects). RCB does not point to any particular secular institution or class of institutions that was treated differently than was RCB. Rather, RCB compares itself to every secular institution in the City of Springfield, none of which are included in a single-parcel historic district. Under any reasonable interpretation of the equal terms provision, this argument fails. The MHDA empowers municipalities to choose how many parcels to include in any given historic district. The City has enacted a number of historic districts over the years, of varying sizes, and often including both secular and religious buildings. The City complied with the MHDA’s process for designating the District, as it presumably did in all other instances when it created historic districts. By analogy, the Supreme Court has recognized in a different context that landmark laws — which operate similarly to single-parcel historic districts — are not necessarily operating in a discriminatory manner when they single out particular parcels for special treatment: [L]andmark laws are not like discriminatory, or “reverse spot,” zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. In contrast to discriminatory zoning, which is the antithesis of land-use control as part of some comprehensive plan, the [landmark] law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city[.] Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 132, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (citation omitted). Likewise, the mere fact that a landmark designation or a single-parcel historic district applies only to a house of worship does not in itself constitute a targeting of religion that offends the First Amendment. See Saint Bartholomew’s, 914 F.2d at 354. The mere fact of the Ordinance’s existence does not demonstrate that RCB was treated on less than equal terms with nonreligious institutions, particularly where RCB does not point to any relevant comparators. C. First Amendment Claims 1. Free Exercise of Religion RLUIPA’s congressional record indicates that the sponsors of the law in the Senate intended the phrase “substantial burden” to be interpreted consonantly with the Supreme Court’s usage of the phrase in the First Amendment context. See 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy). Our analysis of RCB’s ripe First Amendment free exercise claim is thus similar to our analysis of the ripe “substantial burden” question under RLUIPA. Because we do not view the Ordinance as a neutral law of general applicability, we will assume, favorably to RCB, that it is subject to strict scrutiny. See Lukumi, 508 U.S. at 546, 113 S.Ct. 2217; Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 384-85, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990) (“Our cases have established that ‘[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.’ ” (alteration in original) (quoting Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989))). For the same reasons we have already explored, RCB has not shown that the mere existence of the Ordinance constitutes a substantial burden on its First Amendment right to the- free exercise of religion. Given the limited nature of the only ripe claim before us, the Supreme Court’s decision in Lukumi is not to the contrary. There, a municipality passed ordinances relating to animal sacrifice that were clearly designed to prevent adherents of Santería from taking part in a specific religious practice, for the stated purpose of prohibiting a religious exercise that a number of citizens considered to be “inconsistent with public morals, peace or safety.” 508 U.S. at 535, 113 S.Ct. 2217. The evidence as a whole revealed that “suppression of the central element of the Santería worship service was the object of the ordinances,” id. at 534, 113 S.Ct. 2217, which constituted “an impermissible attempt to target petitioners and their religious practices,” id. at 535,113 S.Ct. 2217. Here, by contrast, there is no evidence that suppression of Catholic religious practices was the object of the Ordinance. The text of the Ordinance requires only that RCB file an application with the SHC before making any changes to the exterior of the Church. The language of the Ordinance does not require RCB to perform or forego any particular practice, and it does not prohibit deconsecration or even closing of the Church outright. While the circumstances of the Ordinance’s enactment reveal that the Ordinance was motivated at least in part by a desire to prevent demolition of the Church — a possible outcome of RCB’s religious decisionmaking process— there is no evidence that this goal was rooted in “animosity to religion or distrust of its practices.” Id. at 547, 113 S.Ct. 2217. This is not to say, of course, that a government’s benign motives will always defeat a claim of substantial burden; a law passed without any evidence of animosity may still, by its objective terms, impose such a burden. But that is not this Ordinance. Again, the question of whether any future outcome of RCB’s submission of an application to the SHC might constitute a substantial burden is not properly before this court. We hold simply that the existence of the Ordinance itself is not an unconstitutional burden on RCB’s free exercise of religion. 2. Freedom of Speech RCB’s complaint alleged that the Ordinance violated its rights under the First Amendment’s Free Speech Clause. RCB alludes to that claim in its briefing before this court, but it does not develop the argument, instead using the free speech claim solely to bolster its argument that the free exercise claim should be subject to strict scrutiny as a “hybrid” claim. RCB has thus waived this issue on this appeal. See United States v. Zannino, 895 F.2d 1,17 (1st Cir.1990). We note, however, that the district court found that the free speech claim was unripe, because the question of whether the Ordinance interferes with RCB’s right to express itself through religious symbols on the Church would not be cognizable until the SHC acted on an application to remove any of those symbols. See RCB, 760 F.Supp.2d at 184. Since neither party asks us to disturb that ruling, we will not do so. D. Massachusetts State Constitutional Claims Finally, RCB argues that the enactment of the Ordinance violates its free exercise right under Article 46, Section 1 of the Amendments to the Massachusetts Constitution, which provides that “[n]o law shall be passed prohibiting the free exercise of religion.” In interpreting this provision, Massachusetts has rejected the Supreme Court’s Smith rule and retained the strict scrutiny standard even for laws that are neutral and generally applicable. Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233, 236 & n. 4 (1994). Because we have rejected RCB’s federal constitutional challenge as to that part of its claim which is ripe, RCB’s ripe state constitutional claim also fails, for the same reasons articulated above. V. RCB has presented a serious set of challenges. As the Supreme Court has stressed, the question of religious burdens is necessarily individualized and context-sensitive. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Accordingly, we have written narrowly today. Our analysis is grounded in the present facts of this case. VI. It appears from the district court’s decision that the court granted summary judgment to the City on all of RCB’s claims. See RCB, 760 F.Supp.2d at 195. This was, in part, erroneous. The claims that the district court found were unripe should have been dismissed without prejudice, not resolved on summary judgment. We will remand for the proper disposition of those claims. VII. The judgment of the district court is affirmed in part and vacated in part. The district court’s grant of summary- judgment to the City on Counts 5, 6, 7,, 10, 11, and 12 of RCB’s complaint is affirmed. We vacate the grant of summary judgment to the City on Counts 3 and 4 of the complaint and remand with instructions to dismiss those counts without prejudice. We vacate and remand with instructions to dismiss without prejudice Counts 1, 2, 8, and 9 of the complaint, to the extent these counts allege a challenge to the potential future effects of the application process under the Ordinance.. To the extent that Counts 1, 2, 8, and 9 allege, a challenge to the mere enactment of the Ordinance, the grant of summary judgment to the City is affirmed. Each party shall bear its own costs. . A corporation sole consists of only one person at a time, but the corporation may pass from one person to the next without any interruption in its legal status. Roman Catholic Bishop of Springfield v. City of Springfield (RCB), 760 F.Supp.2d 172, 177 n. 1 (D.Mass.2011). . Under canon law, a sordid use is one that is "detrimental to the good of souls,” including any use that involves "[t]he denunciation of the Catholic Church and the Catholic Faith, the desecration of Catholic objects of devotion and worship or even any disrespectful or casual treatment of such objects, and/or the proselytizing of Catholics.” See Roman Catholic Archbishop of Boston, A Corporation Sole’s Policy on the Sale of Church Buildings, available at http://www.bostoncatholic.org/ uploaded Files/BostonCatholicorg/Parishes_And_People/PolicyonSaleofChurch Buildings0711.pdf. . We see no support in the statute for RCB’s contention that this provision creates a criminal penalty. Rather, the statute specifies that enforcement of the MHDA is committed to a court sitting in equity. Mass. Gen. Laws ch. 40C, § 13. . The certificate most likely applicable to this case would be a certificate of hardship, the issuance of which depends on a commission determining whether, "owing to conditions especially affecting the building or structure involved, but not affecting the historic district generally, failure to approve an application will involve a substantial hardship, financial or otherwise, to the applicant and whether such application may be approved without substantial detriment to the public welfare and without substantial derogation from the intent and purposes of this chapter.” Mass. Gen. Laws ch. 40C, § 10(c). If the commission. makes such a finding, it "shall” issue a certificate of hardship. Id. In contrast, a commission "shall” issue a certificate of appropriateness when it determines "that [the proposed] construction or alteration ... will be appropriate for or compatible with the preservation or protection of the historic district,” id. § 10(a), or a certificate of nonapplicability when it determines that the proposed alteration “does not involve any exterior architectural feature, or involves an exterior architectural feature which is not then subject to review by the commission,” id. § 10(b). For ease, the remainder of this opinion will refer to a potential certificate of hardship, without intending to exclude the possibility that RCB might have applied for one of the two other types of certificates. . On May 4, 2010, just over four months after the City passed the ordinance at issue in this case, it passed another ordinance creating the City’s second single-parcel historic district, which also covered a church owned by RCB that was slated to be closed. . The complaint also named as defendants the mayor and the members of the City Council in their official capacities. The district court dismissed the claims against the individual defendants on the basis that they were actually claims against the City. RCB, 760 F.Supp.2d at 184. RCB does not challenge this decision on appeal. . The district court interpreted RCB’s claims as a challenge to the MHDA as applied through the Ordinance, rather than as a challenge to the Ordinance itself. RCB, 760 F.Supp.2d at 181 n. 6, 190, 192-93. This was the wrong focus. The MHDA delegates to municipalities the authority to create historic districts using certain types of procedures and general criteria. See Mass. Gen. Laws ch. 40C, §§ 3-4, 7. When a municipality passes an ordinance creating a historic district, it is exercising its considerable discretion under this delegated authority: it is not "codiffying] the City’s determination that the [MHDA] applies to” the subject properties. RCB, 760 F.Supp.2d at 181, n. 6. In this opinion we analyze RCB’s claims as challenges to the Ordinance itself, not to the MHDA. . The district court also briefly discussed, and rejected, RCB’s arguments under the federal Establishment Clause, the Fourteenth Amendment Due Process Clause, the Fourteenth Amendment Equal Protection Clause, and the Massachusetts Civil Rights Act. See RCB, 760 F.Supp.2d at 193-95. RCB does not press any of these arguments on appeal, and we do not address them. . Appellate briefing was stayed for over a year and a half as the parties attempted, unsuccessfully, to resolve their disputes in mediation. . Significantly, this court has recognized in the free speech context that ripeness in First Amendment cases is subject to particular rules sensitive to the nature of the rights at issue. See Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 9 (1st Cir.2012) (noting "the potential for ‘irretrievable loss’ often involved in cases where First Amendment rights are at stake” (quoting Sullivan v. City of Augusta, 511 F.3d 16, 31 (1st Cir.2007))); see also 13B Wright & Miller, Federal Practice & Procedure § 3532.1.1 ("First Amendment challenges to land use regulation are likely to be governed by the general — and somewhat relaxed — ripeness tests that apply to First Amendment claims in other contexts.”). Some courts have declined to apply this more relaxed standard to cases involving First Amendment (and RLUIPA) claims arising from local land use disputes. See, e.g., Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir.2008); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347-50 (2d Cir.2005). These courts have reached that conclusion by relying on Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). As we explain in the text, we do not believe that the situation here requires us to reach the question of whether Williamson County applies in this context. Thus, we do not resolve today the question of whether relaxed First Amendment ripeness standards apply generally to claims predicated on alleged Free Exercise violations, nor do we resolve the question of whether (and to what extent) Williamson County may apply to such claims. Instead we conclude that, under general principles of prudential ripeness, certain of RCB’s claims are not ripe for review. . Because we conclude that RCB’s claims based on its possible prospective inability to deconsecrate the Church fail the prudential component of the ripeness test, we need not address whether those claims would satisfy the constitutional component. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). . Like us, other circuits have found that the Williamson County analysis is sometimes in-apposite for non-Takings constitutional challenges to land use decisions. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 89-91 (2d Cir.2002) (First Amendment retaliation claim); Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir.1991) (procedural due process claim). But see Grace Cmty. Church, 544 F.3d at 617-18 (procedural due process claims are exception to the general application of Williamson County); Murphy, 402 F.3d at 350-51 (applying Williamson County to RLUIPA and First Amendment free exercise claims). . The City has not argued that a finding that the Ordinance violates RLUIPA would run afoul of the Establishment Clause. See Cutter v. Wilkinson, 544 U.S. 709. 713-14, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). . We note that, given the nature of historic district designations, the mere fact that the Ordinance is concerned with only one building, and that that one building is a church, does not in itself resolve the burden question. See Rector, Wardens, & Members of the Vestry of Saint Bartholomew’s Church v. City of New York, 914 F.2d 348, 354 (2d Cir.1990). It is the nature of the burden — not the character of the law — that controls our analysis. . The SHC’s report mentions that the Church was surveyed for possible inclusion in the National Register of Historic Places in 2001, but apparendy no action was taken between 2001 and 2009. . If the SHC does not act on an application within sixty days, it "shall” issue the requested certificate of hardship. . In the district court, RCB also argued that the Ordinance violated RLUIPA’s "nondiscrimination” and "unreasonable limitations” provisions. 42 U.S.C. § 2000cc(b)(2)-(3); see RCB, 760 F.Supp.2d at 191. RCB did not address those two provisions in its opening brief to this court, and the City argues that any claims based on those provisions are waived. We agree with the City. . We need not address the parties’ arguments as to what standard of scrutiny applies to a "hybrid” claim — that is, one that combines an alleged violation of the free exercise right with another alleged constitutional violation. Cf. Smith, 494 U.S. at 881-82, 110 S.Ct. 1595. . Because we conclude that RCB has not demonstrated a substantial burden on its religious exercise, we need not address the unsettled state law question of whether there can be a compelling state interest in the historic preservation of the exterior of a house of worship. See Soc'y of Jesus of New Eng. v. Bos. Landmarks Comm’n, 409 Mass. 38, 564 N.E.2d 571, 572 n. 2 (1990).

United States v. Brown

MARCUS, Circuit Judge: Barry L. Brown appeals his three misdemeanor convictions for violating National Park Service traffic regulations within a national seashore. These convictions resulted in imposition of a one-year term of probation and a total of $775 in fines. On appeal, he argues that the regulations under which he was convicted are facially unconstitutional and violate the separation-of-powers principle, pursuant to the non-delegation doctrine, because the regulations were promulgated by the Secretary of the Interior (“Secretary”) and not Congress. We review questions of constitutional law de novo. See Nichols v. Hopper, 173 F.3d 820, 822 (11th Cir.1999); Pleasant-El v. Oil Recovery Co., 148 F.3d 1300, 1301 (11th Cir.1998); see also St. Francis Hosp. Ctr. v. Heckler, 714 F.2d 872, 873 (7th Cir.1983) (“Deference to administrative expertise does not extend to judging the constitutionality of a statute or regulatory scheme.”). A facial challenge to a legislative act “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [a]ct would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); see also Jacobs v. The Florida Bar, 50 F.3d 901, 906 n. 20 (11th Cir.1995) (“[W]hen a plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law could never be constitutionally applied.”). Based on our plenary review of the record and careful consideration of the parties’ briefs and oral presentations, we conclude that the challenged regulations are not facially unconstitutional and accordingly affirm. The facts relevant to the purely legal issue raised in this appeal are undisputed and may be stated briefly. By information, Brown was charged with violating three misdemeanor National Park Service traffic regulations within a national seashore: (1) unlawfully operating a motor vehicle while under the influence of alcohol, to a degree that rendered him incapable of safe operation, in violation of 36 C.F.R. § 4.23 (“Count I”); (2) refusing to submit to a test of his breath for the purpose of determining blood alcohol or drug content, in violation of 36 C.F.R. § 4.23(c) (“Count II”); and (3) speeding, in violation of 36 C.F.R. § 4.21 (“Count III”). At a bench trial before the magistrate judge, the government presented evidence that after Brown was stopped by a park ranger for driving 52 miles per hour in a 35-mile-per-hour zone within the Gulf Islands National Seashore, the ranger determined, based on his observations during three field sobriety tests, that Brown was driving under the influence of alcohol. Brown refused the ranger’s request to submit to a breathalyzer. The magistrate judge found Brown guilty of all three offenses and sentenced him pursuant to 36 C.F.R. § 1.3. On Count I, Brown was sentenced to a one-year term of probation; and, as to all counts, he was ordered to complete -DUI school, perform 50 hours of community service work, and to pay a total of $775 in fines. On appeal to the district court, Brown argued that the federal regulations he had been charged with violating were unconstitutional because they were promulgated pursuant to an improper delegation of legislative authority and in violation of the separation-of-powers doctrine. The district court affirmed Brown’s convictions. This appeal followed. In this Court, Brown again contends that the regulations are facially unconstitutional because they violate the nondelegation doctrine in that Congress has unlawfully delegated to the Secretary the power to define crimes and set punishments for those crimes, a power that is inherently legislative in nature. Brown’s argument is twofold. First, he argues that, in delegating authority to the Secretary, Congress failed to provide sufficient guidance, or an “intelligible principle,” for the exercise of the Secretary’s discretion. Second, he asserts that Congress could not delegate to the Secretary the authority to enumerate, and set punishments for, prohibited behavior within the Park System. Because we find in this case that Congress, and hot the Secretary, provided the punishment for violations of the Secretary’s regulations, and because Congress set standards that are sufficiently specific to guide the Secretary when promulgating regulations which are “necessary and proper for the use, preservation, and management of the national parks, monuments and reservations of the United States,” as required by 16 U.S.C. § 3, we reject both aspects of Brown’s argument. Article I, section 1 of the Constitution provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.... ” U.S. Const, art. I, § 1. In Mistretta v: United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Supreme Court reiterated the long-established principle that “ ‘the integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.” Id. at 371-72, 109 S.Ct. at 654 (quoting Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892)); see also Loving v. United States, 517 U.S. 748, 758, 116 S.Ct. 1737, 1744, 135 L.Ed.2d 36 (1996) (“The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U.S. Const., Art. I, § 1, and may not be conveyed to another branch or entity.”). The nondelegation doctrine, however, does not prevent Congress from delegating to others “at least some authority that it could exercise itself.” Loving, 517 U.S. at 758, 116 S.Ct. at 1744; see also Mistretta, 488 U.S. at 372, 109 S.Ct. at 654 (emphasizing that thé Constitution does not prohibit Congress from obtaining assistance from coordinate branches). Thus, Congress may delegate authority to a coordinate branch when it lays “down by legislative act an intelligible principle to which the person- or body authorized to [exercise the delegated authority] is directed to conform.... ” Mistretta, 488 U.S. at 372, 109 S.Ct. at 655 (alteration in original) (emphasis added) (citing J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928)). Mistretta concerned the constitutionality of Congress’s delegation of the power to promulgate the Federal Sentencing Guidelines to the Federal Sentencing Commission. The Supreme Court summarized the “intelligible principle” test in these terms: a delegation of legislative power will be “constitutionally sufficient if Congress clearly delineates [1] the general policy, [2] the public agency which is to apply it, and [3] the boundaries of this delegated authority.” Id. at 372-73, 109 S.Ct. at 655 (internal quotation marks omitted). In Mistretta, the Court repeated the often quoted observation of Chief Justice Taft, writing in J.W. Hampton: “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” 276 U.S. at 406, 48 S.Ct. at 351. “The government does not bear an onerous burden in demonstrating the existence of an intelligible principle.” South Carolina Med. Ass’n v. Thompson, 327 F.3d 346, 350 (4th Cir.), cert. denied, — U.S. -, 124 S.Ct. 464, 157 L.Ed.2d 371 (2003). Applying the “intelligible principle” test, the Supreme Court has given Congress wide latitude in delegating its powers. With the exception of two 1935 cases invalidating statutes as unconstitutional delegations of power, see Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), the Court has upheld every challenge to a congressional delegation of power that has been presented to it. See Mistretta, 488 U.S. at 373, 109 S.Ct. at 655. “In the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which [Panama Refining ]. provided literally no guidance for the exercise of discretion, and the other of which [Schechter Poultry ] conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ” Whitman v. Am. Trucking Associations, Inc., 531 U.S. 457, 474, 121 S.Ct. 903, 913, 149 L.Ed.2d 1 (2001). Interpreting the nondelegation doctrine, we have held that Congressional legislation “which prescribes essential standards and basic legislative policy and delegates to an administrator authority for promulgation of rules and regulations is constitutionally permissible, provided the standards are ‘sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator ... has conformed to those standards.’ ” United States v. Sans, 731 F.2d 1521, 1527-28 (11th Cir.1984) (quoting United States v. Womack, 654 F.2d 1034, 1037 (5th Cir. Unit B 1981)). In Brown’s case, the first two prongs of the Mistretta test — the general policy and the public agency that is to apply the delegated authority — are essentially undisputed. First, Congress clearly specified a general policy and the goals for which the delegatee must aim when it created the National Park Service and instructed it, under the direction of the Department of the Interior, to promote and regulate the use of the Federal areas known as national parks, monuments, and reservations ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the.natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. § 1; see also 16 U.S.C. § 461 (“It is declared that it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States.”). We would be hard-pressed to find that the foregoing policy is too broad to pass constitutional muster under Mistretta’ s first prong. Cf. Nat’l Broad. Co. v. United States, 319 U.S. 190, 216-17, 63 S.Ct. 997, 1009-10, 87 L.Ed. 1344 (1943) (upholding delegation to Federal Communications Commission to make regulations “in the public interest”); Yakus, 321 U.S. at 422-23, 64 S.Ct. at 666-67 (upholding delegation to administrator to fix commodity prices that would be “fair and equitable”); New York Cent. Secs. Corp. v. United States, 287 U.S. 12, 24-25, 53 S.Ct. 45, 48, 77 L.Ed. 138 (1932) (upholding delegation to Interstate Commerce Commission to authorize mergers of railroad companies if it finds them “in the public interest”); see also Lichter v. United States, 334 U.S. 742, 778, 68 S.Ct. 1294, 1313, 92 L.Ed. 1694 (1948) (upholding delegation under Renegotiation Act to determine whether private parties earned “excessive profits” during wartime). Second, Congress unambiguously has designated the public agency which is to apply this policy: [t]he Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by [this section and sections 1, 2 and 4 of this title] shall be punished by a fine of not more than $500 or imprisonment for not exceeding six months, or both, and be adjudged to pay all cost[s] of the proceedings. 16 U.S.C. § 3; see also 16 U.S.C. § 462(k) (providing that Secretary, “for the purpose of effectuating the policy expressed in [section 461 of this title],” has the power to “make such rules and regulations not inconsistent with [sections 461 to 467 of this title] as may be necessary and proper to carry out the provisions thereof. Any person violating any of the rules and regulations authorized by said sections shall be punished by a fine of not more than $500 and be adjudged to pay all cost[s] of the proceedings.”). It is to the third Mistretta prong — Congress’s delineation of the boundaries of the Secretary’s delegated authority — that the crux of Brown’s argument is directed in this appeal. The Secretary, through the National Park Service, is empowered to “promote and regulate” national parks, but must do so in a manner that “conform[s] to the fundamental purpose of the said parks.” 16 U.S.C. § 1. Again, that con-gressionally-enumerated fundamental purpose is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Id. In order to promulgate a regulation, pursuant to 16 U.S.C. § 3’s grant of authority, the Secretary is required to. deem the regulation “necessary and proper for the use and management of the parks.” 16 U.S.C. § 3. Here, the Secretary did just that when he promulgated the traffic safety regulations, which are codified in Part 4 of Title 36 of the Code of Federal Regulations, and made them uniformly applicable to all national parks. When the Secretary passed these regulations, he noted that the National Park Service administers 337 park areas, which include some 8,000 miles of roads within the National Park System. See 52 Fed.Reg. at 10,670. “Although visitors to the National Park System use a variety of access methods, the vast majority continue to rely on motor vehicles and roadways to reach park areas and to circulate within them. Consequently, the NPS has major program responsibilities in the areas of road construction and maintenance, traffic safety and traffic law enforcement.” Id. Since motor vehicles are the preferred mode of transportation to access and tour the park system, and in light of traffic and safety concerns related to the regular use of cars in the parks, it is plain that the prohibition of both operating a motor vehicle while under the influence of alcohol and speeding in the national parks is altogether consistent with and promotes the relevant, clearly enumerated national policies. While the NPS vehicle and traffic safety regulations generally adopt state motor vehicle codes as the law governing the operation of vehicles within the national parks, in promulgating the regulatory scheme, the Secretary explained that Serviceivide traffic regulations were necessary: “NPS regulations supplementing [state motor vehicle] codes are limited to ones that are necessary to resolve visitor safety and/or resource protection concerns that cannot be satisfied on a Servicewide basis by applying and enforcing State vehicle code provisions.” Id. at 10,678. Moreover, the Secretary determined that the roads in national parks are altogether different in character from roads in the surrounding areas, in which state vehicle code provisions control: the parks’ roads are designed to blend into surroundings and enhance a visitor’s enjoyment of the park while non-park roads are primarily designed to get travelers from one place to another. Id. at 10,670. In short, the national policy Congress has pronounced in § 1 of Title 16 denotes the Secretary’s objective in passing regulations — to conserve scenery, historic objects, and wildlife in the national parks, and to provide for use of the parks in a manner that will not impair enjoyment for future generations. See 16 U.S.C."§ 1. The standard set out in § 3, “necessary and proper for the use and management of the parks,” defines the boundaries of the Secretary’s regulation- and rule-making authority. See 16 U.S.C. § 3. Moreover,'while Brown likens his case to the only two cases in which the Supreme Court has found a violation of the nondelegation doctrine, those cases are readily distinguishable. Although both Panama Refining and Schechter Poultry involved delegations of authority to criminalize activity, in Panama Refining the delegating statute did not declare any policy regarding the transportation of excess petroleum production, did not qualify the President’s delegated authority, and did not establish any criterion “to govern the President’s course.” 293 U.S. at 415, 55 S.Ct. at 246. And in Schechter Poultry, the delegating statute failed to establish any standards for the delegated legislative conduct, 295 U.S. at 541-42, 55 S.Ct. at 848. By contrast, here, Congress has delineated both a general policy and the public agency which is to apply it. Moreover, Congress has provided the Secretary with sufficient standards for the legislated authority by instructing the National Park Service, acting through the Secretary, to “promote and regulate” national parks “by such means and measures as to conform to the fundamental purpose of the said parks.” 16 U.S.C. § 1. The fundamental purpose, again, is enumerated as follows: “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same ... as will leave them unimpaired for the enjoyment of future generations.” Id. In sum, Congress has stated the legislative objective, has prescribed the method of achieving that objective, and has laid down standards to guide the Secretary’s determination of the occasions for the exercise of his rule- and regulation-making authority. Accordingly, Mistretta’s intelligible-principle standard is satisfied in this case. We now turn to Brown’s argument that because Congress has delegated the authority to define the contours of criminal conduct, it must satisfy a standard higher than the intelligible-principle standard. To the extent Brown suggests that Congress cannot delegate the power to define what conduct is criminal, we find his argument to be overstated. As the Supreme Court has plainly held, “[t]here is no absolute rule ... against Congress’ delegation of [the] authority to define criminal punishments.” Loving, 517 U.S. at 768, 116 S.Ct. at 1748. Rather, Congress may delegate the power to define by regulation what conduct is criminal “so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations ‘confin[e] themselves within the field covered by the statute.’ ” Id. (quoting United States v. Grimaud, 220 U.S. 506, 518, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911) and citing Touby v. United States, 500 U.S. 160, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991)). Here, Brown challenges Regulations 4.21 and 4.23, alleging that only the legislature has the authority to criminalize conduct, and, that the Secretary, by setting forth prohibited behavior and providing the punishment, unlawfully “legislated.” We disagree. In support of his argument, Brown relies on statements in Mistretta and Fahey, that characterize the statutes at issue in Schechter Poultry and Panama Refining as delegating power to make “federal crimes of acts that never had been such before,” Fahey, 332 U.S. at 249, 67 S.Ct. at 1554, and to create “new crimes in uncharted fields,” see Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. at 655 n. 7. However, the point of those statements was not that a higher constitutional standard applies to regulations with penal consequences, but rather that the delegations at issue in those cases were unconstitutional precisely because “Congress had failed to articulate any policy or standard that would serve to confine the discretion of the authorities to whom Congress had delegated power.” Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. at 656 n. 7 (emphasis added). In Yakus, the Court upheld a delegation of authority to fix maximum commodity prices and rents even though violation of the regulations was a criminal offense: The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct — here the [Office of Price Administration’s] rule, with penal sanctions, that prices shall not be greater than those fixed by maximum price regulations which conform to standards and will tend to further the policy which Congress has established. 321 U.S. at 424, 64 S.Ct. at 667 (emphasis added). There was no suggestion in Ya-kus that a more stringent standard for delegation applied. Indeed, as the Court observed long ago in J.W. Hampton, Congress frequently finds it necessary, in.order “to secure the exact effect intended by its acts of legislation,” to delegate authority to and vest discretion in executive officers “to make regulations directing the details of its [the legislation’s] execution, even to the extent of providing for penalizing a breach of such regulations.” 276 U.S. at 406, 48 S.Ct. at 351 (emphasis added); see also Samora v. United States, 406 F.2d 1095, 1098 (5th Cir.1969) (“It long has been established that Congress may validly provide a criminal sanction for the violation of rules or regulations which it has empowered the President or an administrative agency to enact.”). In the seminal nondelegation ease, Gri-maud, the Supreme Court upheld an administrative regulation made and promulgated by the Secretary of Agriculture under the authority conferred upon him by the Forest Reserve Acts. See Gri-maud, 220 U.S. at 522-23, 31 S.Ct. at 485. Those Acts authorized the Secretary of Agriculture to “make such- rules and regulations and establish such service as will insure the objects- of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction,” and provided that “any violation of the provisions of this act or such rules and regulations shall be punished” by a fíne of not more than $50.0 and imprisonment for not more than twelve months, or both. Id. at 515, 31 S.Ct. at 482. Under the authority of these Acts, the Secretary of Agriculture promulgated regulations proscribing the grazing of stock upon a forest reservation without a permit. See id. at 514-15, 31 S.Ct. at 481. The defendants in Grimaud were indicted for grazing stock-on a forest reservation without the necessary permit from the Secretary of Agriculture and challenged the validity of the act of Congress making it an offense to violate a regulation promulgated by the Secretary of Agriculture, oh the grounds that the codification constituted an unconstitutional delegation of legislative power to an administrative agency. See id. at 514, 31 S.Ct. at 482. The Court upheld the validity of the delegation, stating: From the beginning of the Government, various acts, have been passed conferring upon executive officers power to make rules and regulations- — -not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative’ power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions “power to fill up the details” by the. establishment of administrative rules and regulations, the violation of ivhich could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the " injury done. Id. at 517, 31 S.Ct. at 483 (emphasis added). Indeed, as the Court observed, to deny the legislature the ability to delegate its power to agencies to fill in the details of’ a legislative mandate would “stop the wheels of government.” Id. at 520, 31 S.Ct. at 484. The Court thus ruled that violation • of the stock-grazing regulation was made a crime not by the Secretary of Agriculture, but rather by those acts of Congress which provided that violations of such regulations would be criminally punishable. Thus, the Court concluded, there was no unlawful delegation of legislative power. See id. Similarly, here, it is not the Secretary but Congress that has prohibited violations of the Park Service regulations: The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service, and any violation of any of the rules and regulations authorized by this section and sections 1, 2 and of this title shall be punished by afine of not more than $500 or imprisonment for not exceeding six months, or both, and be adjudged to pay all cost[s] of the proceedings. 16 U.S.C. § 3 (emphasis added); see also United States v. Grace, 778 F.2d 818, 822-23 (D.C.Cir.1985) (“categorically” rejecting argument that National Park Service regulations, passed pursuant to 16 U.S.C. § 3, violated separation of powers; “[i]t is not the Park Service but the Congress that has criminalized violations of the Park Service regulations.”). Indeed, the Secretary’s authority to define by regulation what conduct is criminal in the national parks and forests, pursuant to delegated authority, has been upheld in a variety of circumstances. See, e.g., Grace, 778 F.2d at 820-21 (upholding Secretary’s promulgation of regulation permitting placement of presidential seal on reviewing stand for presidential inauguration on White House sidewalk, but prohibiting placement of stationary signs on same sidewalk); see also United States v. Hymans, 463 F.2d 615, 616 (10th Cir.1972) (upholding Secretary of Agriculture’s promulgation, pursuant to delegated authority, of regulations prohibiting indecent conduct in national forests); McMichael v. United States, 355 F.2d 283, 286 (9th Cir.1965) (upholding Department of Agriculture’s regulations making it a misdemeanor to operate motorized vehicles in certain areas of national forests). In sum, in Title 16, Congress delegated to the Secretary the authority to promulgate rules and regulations that were necessary and proper to effect Congress’s stated goal of preserving and managing national parks. Protection of the parks, wildlife, and visitors by prohibiting unsafe and drunk driving does not exceed the legislative grant of authority conferred in 16 U.S.C. § 3. Congress set out the Secretary’s powers and duties, announced intelligible principles, and created the penalties to be imposed for violations of the Secretary’s rules and regulations. Accordingly, we can find no unconstitutional delegation in this case. AFFIRMED. . Section 4.23, which prohibits the operation of a motor vehicle while under the influence of alcohol or drugs, provides the following, inter alia: (a) Operating or being in actual physical control of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or (2) The alcohol concentration in the operator’s blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph. (b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug. le) Tests. (1)At the request or direction of an authorized person who has probable cause to be Heve that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content. 36 C.F.R. § 4.23. . Section 4.21, which establishes speed limits for vehicles in various parts of national parks, forests, and public property, provides the following, inter alia: (a) Park area speed limits are as follows: (1) 15 miles per hour: within all school zones, campgrounds, picnic areas, parking areas, utility areas, business or residential areas, other places of public assemblage and at emergency scenes. (2) 25 miles per hour: upon sections of park road under repair or construction. (3) 45 miles per hour: upon all other park roads. ■ • ' (b) The superintendent may designate, a different speed limit upon any park road when a speed limit set forth in paragraph (a) of this section is determined to be unreasonable, unsafe or inconsistent with the purposes for which the park area was established. Speed limits shall be posted by using standard traffic control devices. (c) Operating a vehicle at a speed in excess of the speed limit is prohibited. (d) An authorized person may utilize ra-diomicrowaves or other electrical devices to determine the speed of a vehicle on a park road. Signs indicating that vehicle speed is determined by the use of radiomicrowaves or other electrical devices are not required. 36 C.F.R. § 4.21. . Title 16 U.S.C., section 459h-4 provides that the Secretary shall administer Gulf Islands National Seashore in accordance with Sections 1 and 2 to 4 of Title 16 and "may utilize such statutory authorities available to him for the conservation and management of wildlife and natural resources as he deems appropriate.” .Section 1.3, which enumerates penalties for violating the Park System’s traffic regulations, provides the following: (a) A person convicted of violating a provision of the regulations contained in Parts 1 through 7, 12* and 13 of this chapter, within a park area not covered in paragraphs (b) or (c) of this section, shall be punished by a fine as provided by law, or by imprisonment not exceeding 6 months, or both, and shall be adjudged to pay all costs of the proceedings. (b) A person who knowingly and willfully .violates, any provision of the regulations contained in parts 1 through 5, 7 and 12 of this chapter, within any national military park, battlefield site, national monument, or miscellaneous memorial transferred to the jurisdiction of the Secretary of the Interior from that of the Secretary of War by Executive Order No. 6166, June 10, 1933, and enumerated in Executive Order No. 6228, July 28, 1933, shall be punished by a fine as provided -by law, or by imprisonment -for not more than 3 months, or by both. (c) A person convicted of violating any provision of the regulations contained in parts 1 through 7 of this chapter, within a park area established pursuant to the Act of August 21, 1935, 49 Stat. 666, shall be punished by a fine as provided by law and shall be adjudged to pay all costs of the proceedings. 16 U.S.C. 462. (d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of this section, a person convicted of violating § 2.23 of this chapter shall be punished by a fine as provided by law. 16 U.S.C. 460. 36 C.F.R. § 1.3. . In Mistretta, the Court upheld this delegation because Congress specified: (1) the goals for which the Commission must aim; (2) the final product of the delegation; (3) specific factors the Commission must consider; and (4) limits on the Commission's power. Id. at 372-76, 109 S.Ct. at 655-57. Other factors the Court has identified when determining whether delegation is proper are: (1) the availability of judicial review, see Carlson v. London, 342 U.S. 524, 542-44, 72 S.Ct. 525, 535-36, 96 L.Ed. 547 (1952); (2) the rapidity of changes in the matter being regulated, see Yakus v. United States, 321 U.S. 414, 432, 64 S.Ct. 660, 671, 88 L.Ed. 834 (1944); (3) the complexity of the field, see Mistretta, 488 U.S. at 372, 109 S.Ct. at 655; and (4) the existence of "well-known and generally acceptable standards" in the field being regulated, see Fahey v. Mallonee, 332 U.S. 245, 250, 67 S.Ct. 1552, 1554, 91 L.Ed. 2030 (1947). . Decisions of the Fifth Circuit rendered on or before September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ).

Penn Central Transportation Co. v. New York City

Mr. Justice Brennan delivered the opinion of the Court. The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks — in addition to those imposed by applicable zoning ordinances — without effecting a “taking” requiring the payment of “just compensation.” Specifically, we must decide whether the application of New York City’s Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has “taken” its owners’ property in violation of the Fifth and Fourteenth Amendments. I A Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of éither the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. “ [Historic conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing — or perhaps developing for the first time — the quality of life for people/' New York City, responding to similar concerns and acting pursuant to a New York State enabling Act, adopted its Landmarks Preservation Law in 1965. See N. Y. C. Admin. Code, ch. 8-A, § 205-1.0 et seq. (1976). The city acted from the conviction that “the standing of [New York City] as a world-wide tourist center and world capital of business, culture and government” would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character. § 205-1.0 (a). The city believed that comprehensive measures to safeguard desirable features of the existing urban fabric would benefit its citizens in a variety of ways: e. g., fostering “civic pride in the beauty and noble accomplishments of the past”; protecting and enhancing “the city’s attractions to tourists and visitors”; “support[ing] and stimul[ating] business and industry”; “strengthen[ing] the economy of the city”; and promoting “the use of historic districts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city.” § 205-1.0 (b). The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties, but rather by involving public entities in land-use decisions affecting these properties and providing services, standards, controls, and incentives that will encourage preservation by private owners and users. While the law does place special restrictions on landmark properties as a necessary feature to the attainment of its larger objectives, the major theme of the law is to ensure the owners of any such properties both a “reasonable return” on their investments and maximum latitude to use their parcels for purposes not inconsistent with the preservation goals. The operation of the law can be briefly summarized. The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad based, 11-member agency assisted by a technical staff. The Commission first performs the function, critical to any landmark preservation effort, of identifying properties and areas that have “a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.” § 207-1.0 (n); see § 207-1.0 (h). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the ordinance’s criteria, it will designate a building to be a “landmark,” § 207-1.0 (n), situated on a particular “landmark site,” § 207-1.0 (o), or will designate an area to be a “historic district/’ §207-1.0 (h). After the Commission makes a designation, New York City’s Board of Estimate, after considering the relationship of the designated property “to the master plan, the zoning resolution, projected public improvements and any plans for the renewal of the area involved,” § 207-2.0 (g)(1), may modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. Thus far, 31 historic districts and over 400 individual landmarks have been finally designated, and the process is a continuing one. Final designation as a landmark results in restrictions upon the property owner’s options concerning use of the landmark site. First, the law imposes a duty upon the owner to keep the exterior features of the building “in good repair” to assure that the law’s objectives not be defeated by the landmark’s falling into a state of irremediable disrepair. See § 207-10.0 (a). Second, the Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring that decisions concerning construction on the landmark site are made with due consideration of both the public interest in the maintenance of the structure and the landowner’s interest in use of the property. See §§ 207-4.0 to 207-9.0. In the event an owner wishes to alter a landmark site, three separate procedures are available through which administrative approval may be obtained. First, the owner may apply to the Commission for a “certificate of no effect on protected architectural features”: that is, for an order approving the improvement or alteration on the ground that it will not change or affect any architectural feature of the landmark and will be in harmony therewith. See § 207-5.0. Denial of the certificate is subject to judicial review. Second, the owner may apply to the Commission for a certificate of “appropriateness.” See § 207-6.0. Such certificates will be granted if the Commission concludes — focusing upon aesthetic, historical, and architectural values — that the proposed construction on the landmark site would not unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Again, denial of the certificate is subject to judicial review.. Moreover, the owner who is denied either a certificate of no exterior effect or a certificate of appropriateness may submit an alternative or modified plan for approval. The final procedure — seeking a certificate of appropriateness on the ground of “insufficient return,” see § 207-8.0 — -provides special mechanisms, which vary depending on whether or not the landmark enjoys a tax exemption, to ensure that designation does not cause economic hardship. Although the designation of a landmark and landmark site restricts the owner’s control oyer the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City’s zoning laws, owners of real property who have not developed their property to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city block. See New York City, Zoning Resolution Art. I, ch. 2, § 12-10 (1978) (definition of “zoning lot”). A 1968 ordinance gave the owners of landmark sites additional opportunities to transfer development rights to other parcels. Subject to a restriction that the floor area of the transferee lot may not be increased by more than 20% above its authorized level, the ordinance permitted transfers from a landmark parcel to property across the street or across a street intersection. In 1969, the law governing the conditions under which transfers from landmark parcels could occur was liberalized, see New York City Zoning Resolutions 74-79 to 74-793, apparently to ensure that the Landmarks Law would not unduly restrict the development options of the owners of Grand Central Terminal. See Marcus, Air Rights Transfers in New York City, 36 Law & Contemp. Prob. 372, 375 (1971). The class of recipient lots was expanded to include lots “across a street and opposite to another lot or lots which except for the intervention of streets or street intersections f[or]m a series extending to the lot occupied by the landmark building [, provided that] all lots [are] in the same ownership.” New York City Zoning Resolution 74-79 (emphasis deleted). In addition, the 1969 amendment permits, in highly commercialized areas like midtown Manhattan, the transfer of all unused development rights to a single parcel. Ibid. B This case involves the application of New York City’s Landmarks Preservation Law to Grand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City’s most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style. The Terminal is located in midtown Manhattan. Its south facade faces 42d Street and that street’s intersection with Park Avenue. At street level, the Terminal is bounded on the west by Vanderbilt Avenue, on the east by the Commodore Hotel, and on the north by the Pan-American Building. Although a 20-story office tower, to have been located above the Terminal, was part of the original design, the planned tower was never constructed. The Terminal itself is an eight-story structure which Penn Central uses as a railroad station and in which it rents space not needed for railroad purposes to a variety of commercial interests. The Terminal is one of a number of properties owned by appellant Penn Central in this area of midtown Manhattan. The others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building and other office buildings along Park Avenue, and the Yale Club. At least eight of these are eligible to be recipients of development rights afforded the Terminal by virtue of landmark designation. On August 2, 1967, following a public hearing, the Commission designated the Terminal a “landmark” and designated the “city tax block” it occupies a “landmark site.” The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designation before the Commission, it did not seek judicial review of the final designation decision. On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in net rentals presently received from concessionaires displaced by the new building. Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal. Two separate plans, both designed by architect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval. The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal. The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building. The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of “appropriateness” as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. The Commission’s reasons for rejecting certificates respecting Breuer II Revised are summarized in the following statement: “To protect a Landmark, one does not tear it down. To perpetuate its architectural features, one does not strip them off.” Record 2255. Breuer I, which would have preserved the existing vertical facades of the present structure, received more sympathetic consideration. The Commission first focused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade and that one additional tower could do no further damage and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city and that a 55-story tower atop the Termiml would be far more detrimental to its south facade than the Pan-American Building 375 feet away. Moreover, the Commission found that from closer vantage points the Pan-American Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. In conclusion, the Commission stated: “[We have] no fixed rule against making additions to designated buildings — it all depends on how they are done .... But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addition’ would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curiosity. “Landmarks cannot be divorced from their settings— particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way — with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it.” Id., at 2251. Appellants did not seek judicial review of the denial of either certificate. Because the Terminal site enjoyed a tax exemption, remained suitable for its present and future uses, and was not the subject of a contract of sale, there were no further administrative remedies available to appellants as to the Breuer' I. and Breuer II Revised plans. See n. 13, supra. Further, appellants did not avail themselves of the opportunity to develop and submit other plans for the Commission’s consideration and approval. Instead, appellants filed suit in New York Supreme Court, Trial Term, claiming, inter alia, that the application of the Landmarks Preservation Law had “taken” their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. Appellants sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site, and damages for the “temporary taking” that occurred between August 2, 1967, the designation date, and the date when the restrictions arising from the Landmarks Law would be lifted. The trial court granted the injunctive and declaratory relief, but severed the question of damages fqr a “temporary taking.” Appellees appealed, and the New York Supreme Court, Appellate Division, reversed. 50 App. Div. 2d 265, 377 N. Y. S. 2d 20 (1975). The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of protecting landmarks and therefore that appellants could sustain their, constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property. The Appellate Division held that the evidence appellants introduced at trial — “Statements of Revenues and Costs,” purporting to show a net operating loss for the years 1969 and 1971, which were prepared for the instant litigation — had not satisfied their burden. First, the court rejected the claim that these statements showed that the Terminal was operating at a loss, for in the court’s view, appellants had improperly attributed some railroad operating expenses and taxes to their real estate operations, and compounded that error by failing to impute any rental value to the vast space in the Terminal devoted to railroad purposes. Further, the Appellate Division concluded that appellants had failed to establish either that they were unable to increase the Terminal’s commercial income by transforming vacant or underutilized space to revenue-producing use, or that the unused development rights over the Terminal could not have been profitably transferred to one or more nearby sites. The Appellate Division concluded that all appellants had succeeded in showing was that they had been deprived of the property’s most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property. The New York Court of Appeals affirmed. 42 N. Y. 2d 324, 366 N. E. 2d 1271 (1977). That court summarily rejected any claim that the Landmarks Law had “taken” property without “just compensation,” id., at 329, 366 N. E. 2d, at 1274, indicating that there could be no “talcing” since the law had not transferred control of the property to the city, but only restricted appellants’ exploitation of it. In that circumstance, the Court of Appeals held that appellants’ attack on the- law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a “reasonable return” on the “privately created and privately managed ingredient” of the Terminal. Id., at 328, 366 N. E. 2d, at 1273. The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central’s extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the construction of office buildings, were valuable to appellants and provided “significant, perhaps 'fair/ compensation for the loss of rights above the terminal itself.” Id., at 333-336, 366 N. E. 2d, at 1276-1278. Observing that its affirmance was “[o]n the present record,” and that its analysis had not been fully developed by counsel at any level of the New York judicial system, the Court of Appeals directed that counsel “should be entitled to present . . . any additional submissions which, in the light of [the court’s] opinion, may usefully develop further the factors discussed.” Id., at 337, 366 N. E. 2d, at 1279. Appellants chose not to avail themselves of this opportunity and filed a notice of appeal in this Court. We noted probable jurisdiction. 434 U.S. 983 (1977). We affirm. II The issues presented by appellants are (1) whether the restrictions imposed by New York City’s law upon appellants’ exploitation of the Terminal site effect a “taking” of appellants’ property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897), and, (2), if so, whether the transferable development rights afforded appellants constitute “just compensation” within the meaning of the Fifth Amendment. We need only address the question whether a “taking” has occurred. A Before considering appellants’ specific contentions, it will be useful to review the factors that have shaped the jurispru.dence of the Fifth Amendment injunction “nor shall private property be taken for public use, without just compensation.” The question of what constitutes a “taking” for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the “Fifth Amendment’s guarantee . . . [is] designed to bar' Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” Armstrong v. United States, 364 U. S. 40, 49 (1960), this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Gold-blatt v. Hempstead, 369 U. S. 590, 594 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely “upon the particular circumstances [in that] case.” United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958); see United States v. Caltex, Inc., 344 U. S. 149, 156 (1952). In engaging in these essentially ad hoc, factual inquiries,' the Court’s decisions have identified several factors that have particular significance.. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Cold-blatt v. Hempstead, supra, at 594. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e. g., United States v. Causby, 328 U. S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922), and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example. A second are the decisions in which this Court has dismissed “taking” challenges on the ground that, while the challenged government action caused economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute "property” for Fifth Amendment purposes. See, e. g., United States v. Willow River Power Co., 324 U. S. 499 (1945) (interest in high-water level of river for runoff for tailwaters to maintain power head is not property) ; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913) (no property interest can exist in navigable waters); see also Demorest v. City Bank Co., 321 U. S. 36 (1944); Muhlker v. Harlem R. Co., 197 U. S. 544 (1905); Sax, Takings and the Police Power, 74 Yale L. J. 36, 61-62 (1964). More importantly for the present case, in instances in which a state tribunal reasonably concluded that “the health, safety, morals, or general welfare” would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. See Nectow v. Cambridge, 277 U. S. 183, 188 (1928). Zoning laws are, of course, the classic example, see Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (prohibition of industrial use); Gorieb v. Fox, 274 U. S. 603, 608 (1927) (requirement that portions of parcels be left unbuilt); Welch v. Swasey, 214 U. S. 91 (1909) (height restriction), which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property. See Goldblatt v. Hempstead, supra, at 592-593, and cases cited; see also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 674 n. 8 (1976). Zoning laws generally do not affect existing uses of real property, but “taking” challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm. Miller v. Schoene, 276 U. S. 272 (1928), is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole. A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make “a choice between the preservation of one class of property and that of the other” and since the apple industry was important in the State involved, concluded that the State had not exceeded “its constitutional powers by deciding upon the destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public.” Id., at 279. Again, Hadacheck v. Sebastian, 239 U. S. 394 (1915), upheld a law prohibiting the claimant from continuing his otherwise lawful business of operating a brickyard in a particular physical community on the ground that the legislature had reasonably concluded that the presence of the brickyard was inconsistent with neighboring uses. See also United States v. Central Eureka Mining Co., supra (Government order closing gold mines so that skilled miners would be available for other mining work held not a taking): Atchison, T. & S. F. R. Co. v. Public Utilities Comm’n, 346 U. S. 346 (1953) (railroad may be required to share cost of constructing railroad grade improvement) ; Walls v. Midland Carbon Co., 254 U. S. 300 (1920) (law prohibiting manufacture of carbon black upheld); Reinman v. Little Rock, 237 U. S. 171 (1915) (law prohibiting livery stable upheld); Mugler v. Kansas, 123 U. S. 623 (1887) (law prohibiting liquor business upheld). Goldblatt v. Hempstead, supra, is a recent example. There, a 1958 city safety ordinance banned any excavations below the water table and effectively prohibited the claimant from continuing a sand and gravel mining business that had been operated on the particular parcel since 1927. The Court upheld the ordinance against a “taking” challenge, although the ordinance prohibited the present and presumably most beneficial use of the property and had, like the regulations in Miller and Hadacheck, severely affected a particular owner. The Court assumed that the ordinance did not prevent the owner’s reasonable use of the property since the owner made no showing of an adverse effect on the value of the land. Because the restriction served a substantial public purpose, the Court thus held no taking had occurred. It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a “taking” if not reasonably necessary to the effectuation, of a substantial public purpose, see Nectow v. Cambridge, supra; cf. Moore v. East Cleveland, 431 U. S. 494, 513-514 (1977) (Stevens, J., concurring), or perhaps if it has an unduly harsh impact upon the owner’s use of the property. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is the leading case for the proposition that a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a “taking.” There the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Because the statute made it commercially impracticable to mine the coal, id., at 414, and thus had nearly the same effect as the complete destruction of rights claimant had reserved from the owners of the surface land, see id., at 414-415, the Court held that the statute was invalid as effecting a “taking” without just compensation. See also Armstrong v. United States, 364 U. S. 40 (1960) (Government’s complete destruction of a materialman’s lien in certain property held a “taking”); Hudson Water Co. v. McCarter, 209 U. S. 349, 355 (1908) (if height restriction makes property wholly useless “the rights of property . . . prevail over the other public interest” and compensation is required). See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1229-1234 (1967). Finally, government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute “takings.” United States v. Causby, 328 U. S. 256 (1946), is illustrative. In holding that direct overflights above the claimant’s land, that destroyed the present use of the land as a chicken farm, constituted a “taking,” Causby emphasized that Government had not “merely destroyed property [but was] using a part of it for the flight of its planes.” Id., at 262-263, n. 7. See also Griggs v. Allegheny County, 369 U. S. 84 (1962) (overflights held a taking); Portsmouth Co. v. United States, 260 U. S. 327 (1922) (United States military installations’ repeated firing of guns over claimant’s land is a taking); United States v. Cress, 243 U. S. 316 (1917) (repeated floodings of land caused by water project is a taking); but see YMCA v. United States, 395 U. S. 85 (1969) (damage caused to building when federal officers who were seeking to protect building were attacked by rioters held not a taking). See generally Michelman, supra, at 1226-1229; Sax, Takings and the Police Power, 74 Yale L. J. 36 (1964). B In contending that the New York City law has “taken” their property in violation of the Fifth and Fourteenth Amendments, appellants make a series of arguments, which, while tailored to the facts of this case, essentially urge that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional. Before considering these, we emphasize what is not in dispute. Because this Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city, see New Orleans v. Dukes, 427 U. S. 297 (1976); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976) ; Village of Belle Terre v. Boraas, 416 U. S. 1, 9-10 (1974); Berman v. Parker, 348 U. S. 26, 33 (1954); Welch v. Swasey, 214 U. S., at 108, appellants do not contest that New York City’s objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. They also do not dispute that the restrictions imposed on its parcel are appropriate means of securing the purposes of the New York City law. Finally, appellants do not challenge any of the specific factual premises of the decision below. They accept for present purposes both that the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return, and that the transferable development rights afforded appellants by virtue of the Terminal’s designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In appellants’ view none of these factors derogate from their claim that New York City’s law has effected a “taking.” They first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their “air rights” above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has “taken” their right to this super-jacent airspace, thus entitling them to “just compensation” measured by the fair market value of these air rights. Apart from our own disagreement with appellants’ characterization of the effect of the New York City law, see infra, at 134-135, the submission that appellants may establish a “taking” simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, see Welch v. Swasey, supra, but also in approving those prohibiting both the subjacent, see Goldblatt v. Hempstead, 369 U. S. 590 (1962), and the lateral, see Gorieb v. Fox, 274 U. S. 603 (1927), development of particular parcels. “Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole — here, the city tax block designated as the “landmark site.” Secondly, appellants, focusing on the character and impact of the New York City law, argue that it effects a “taking” because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land-use regulations, which, like the New York City law, are reasonably related to the promotion of the general welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a “taking,” see Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (75% diminution in value caused by zoning law); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (87½% diminution in value); cf. Eastlake v. Forest City Enterprises, Inc., 426 U. S., at 674 n. 8, and that the “taking” issue in these contexts is resolved by focusing on the uses the regulations permit. See also Goldblatt v. Hempstead, supra. Appellants, moreover, also do not dispute that a showing of diminution in property value would not establish a “taking” if the restriction had been imposed as a result of historic-district legislation, see generally Maher v. New Orleans, 516 F. 2d 1051 (CA5 1975), but appellants argue that New York City’s regulation of individual landmarks is fundamentally different from zoning or from historic-district legislation because the controls imposed by New York City’s law apply only to individuals who own selected properties. Stated baldly, appellants’ position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a “taking” requiring the payment of “just compensation.” Agreement with this argument would, of course, invalidate not just New York City’s law, but all comparable landmark legislation in the Nation. We find no merit in it. It is true, as appellants emphasize, that both historic-district legislation and zoning laws regulate all properties within given physical communities whereas landmark laws apply only to selected parcels. But, contrary to appellants’ suggestions, landmark laws are not like discriminatory, or “reverse spot,” zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. See 2 A. Rathkopf, The Law of Zoning and Planning 26-4, and n. 6 (4th ed. 1978). In contrast to discriminatory zoning, which is the antithesis of land-use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city, and as noted, over 400 landmarks and 31 historic districts have been designated pursuant to this plan. Equally without merit is the related argument that the decision to designate a structure as a landmark “is inevitably arbitrary or at least subjective, because it is basically a matter of taste,” Reply Brief for Appellants 22, thus unavoidably singling out individual landowners for disparate and unfair treatment. The argument has a particularly hollow ring in this case. For appellants not only did not seek judicial review of either the designation or of the denials of the certificates of appropriateness and of no exterior effect, but do not even now suggest that the Commission’s decisions concerning the Terminal were in any sense arbitrary or unprincipled. But, in any event, a landmark owner has a right to judicial review of any Commission decision, and, quite- simply, there is no basis whatsoever for a conclusion that courts will have any greater difficulty identifying arbitrary or discriminatory action in the context of landmark regulation than in the context of classic zoning or indeed in any other context. Next, appellants observe that New York City’s law differs from zoning laws and historic-district ordinances in that the Landmarks Law does not impose identical or similar restrictions on all structures located in particular physical communities. It follows, they argue, that New York City’s law is inherently incapable of producing the fair and equitable distribution of benefits and burdens of governmental action which is characteristic of zoning laws and historic-district legislation and which they maintain is a constitutional requirement if “just compensation” is not to be afforded. It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a “taking.” Legislation designed to promote the general welfare commonly burdens some more than others. The owners of the brickyard in Hadacheck, of the cedar trees in Miller v. Schoene, and of the gravel and sand mine in Ooldblatt v. Hempstead, were uniquely burdened by the legislation sustained in those cases. Similarly, zoning laws often affect some property owners more severely than others but have not been held to be invalid on that account. For example, the property owner in Euclid who wished to use its property for industrial purposes was affected far more severely by the ordinance than its neighbors who wished to use their land for residences. In any event, appellants’ repeated suggestions that they are solely burdened and unbenefited is factually inaccurate. This contention overlooks the fact that the New York City law applies to vast numbers of structures in the city in addition to the Terminal — all the structures contained in the 31 historic districts and over 400 individual landmarks, many of which are close to the Terminal. Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole — which we are unwilling to do — we cannot conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. Doubtless appellants believe they are more burdened than benefited by the law, but that must have been true, too, of the property owners in Miller, Hadacheck, Euclid, and Goldblatt, Appellants’ final broad-based attack would have us treat the law as an instance, like that in United States v. Causby, in which government, acting in an enterprise capacity, has appropriated part of their property for some strictly governmental purpose. Apart from the fact that Causby was a case of invasion of airspace that destroyed the use of the farm beneath and this New York City law has in nowise impaired the present use of the Terminal, the Landmarks Law neither exploits appellants’ parcel for city purposes nor facilitates nor arises from any entrepreneurial operations of the city. The situation is not remotely like that in Causby where the airspace above the property was in the flight pattern for military aircraft. The Landmarks Law’s effect is simply to prohibit appellants or anyone else from occupying portions of the airspace above the Terminal, while permitting appellants to use the remainder of the parcel in a gainful fashion. This is no more an appropriation of property by government for its own uses than is a zoning law prohibiting, for “aesthetic” reasons, two or more adult theaters within a specified area, see Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), or a safety regulation prohibiting excavations below a certain level. See Goldblatt v. Hempstead. C Rejection of appellants’ broad arguments is not, however, the end of our inquiry, for all we thus far have established is that the New York City law is not rendered invalid by its failure to provide “just compensation” whenever a landmark owner is restricted in the exploitation of property interests, such as air rights, to a greater extent than provided for under applicable zoning laws. We now must consider whether the interference with appellants’ property is of such a magnitude that “there must be an exercise of eminent domain and compensation to sustain [it].” Pennsylvania Coal Co. v. Mahon, 260 U. S., at 413. That inquiry may be narrowed to the question of the severity of the impact of the law on appellants’ parcel, and its resolution in turn requires a careful assessment of the impact of the regulation on the Terminal site. Unlike the governmental acts in Goldblatt, Miller, Causby, Griggs, and Hadacheck, the New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment. Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects. First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission’s actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for .any comparably sized structure, nothing the Commission has said or done suggests an intention to prohibit any construction above the Terminal. The Commission’s report emphasized that whether any construction would be allowed depended upon whether the proposed addition “would harmonize in scale, material, and character with [the Terminal].” Record 2251. Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal. Second, to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. Although appellants and others have argued that New York City’s transferable development-rights program is far from ideal, the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have constituted “just compensation” if a “taking” had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation. Cf. Goldblatt v. Hempstead, 369 U. S., at 594 n. 3. On this record, we conclude that the application of New York City’s Landmarks Law has not effected a “taking” of appellants’ property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties. Affirmed. See National Trust for Historic Preservation, A Guide to State Historic Preservation Programs (1976); National Trust for Historic Preservation, Directory of Landmark and Historic District Commissions (1976). In addition to these state and municipal legislative efforts, Congress has determined that “the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people,” National Historic Preservation Act of 1966, 80 Stat. 915, 16 U. S. C. §470 (b) (1976 ed.), and has enacted a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance. See generally Gray, The Response of Federal Legislation to Historic Preservation, 36 Law & Contemp. Prob. 314 (1971). Over one-half of the buildings listed in the Historic American Buildings Survey, begun by the Federal Government in 1933, have been destroyed. See Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 Harv. L. Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank’s Building Plan Sets Off Debate on “Progress,” N. Y. Times, Jan. 17,1971, section 8, p. 1, col. 2. See, e. g., N. Y. C. Admin. Code § 205-1.0 (a) (1976). Gilbert, Introduction, Precedents for the Future, 36 Law & Contemp. Prob. 311, 312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation Law, Washington, D. C., May 1, 1971 (unpublished text, pp. 6-7). See N. Y. Gen. Mun. Law §96-a (McKinney 1977). It declares that it is the public policy of the State of New York to preserve structures and areas with special historical or aesthetic interest or value and authorizes local governments to impose reasonable restrictions to perpetuate such structures and areas. The consensus is that widespread public ownership of historic properties in urban settings is neither feasible nor wise. Public ownership reduces the tax base, burdens the public budget with costs of acquisitions and maintenance, and results in the preservation of public buildings as museums and similar facilities, rather than as economically productive features of the urban scene. See Wilson & Winkler, The Response of State Legislation to Historic Preservation, 36 Law & Contemp. Prob. 329, 330-331, 339-340 (1971). See Costonis, supra n. 2, at 580-581; Wilson & Winkler, supra n. 6 ; Rankin, Operation and Interpretation of the New York City Landmark Preservation Law, 36 Law & Contemp. Prob. 366 (1971). The ordinance creating the Commission requires that it include at least three architects, one historian qualified in the field, one city planner or landscape architect, one realtor, and at least one resident of each of the city’s five boroughs. N. Y. C. Charter § 534 (1976). In addition to the ordinance’s requirements concerning the composition of the Commission, there is, according to a former chairman, a “prudent tradition” that the Commission include one or two lawyers, preferably with experience in municipal government, and several laymen with no specialized qualifications other than concern for the good of the city. Goldstone, Aesthetics in Historic Districts, 36 Law & Contemp. Prob. 379, 384-385 (1971). “ 'Landmark.’ Any improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural character-isties of the city, state or nation and which has been designated as a landmark pursuant to the provisions of this chapter.” § 207-1.0 (n). “ 'Landmark site.’ An improvement parcel or part thereof on which is situated a landmark and any abutting improvement parcel or part thereof used as and constituting part of the premises on which the landmark is situated, and which has been designated as a landmark site pursuant to the provisions of this chapter.” §207-1.0 (o). ‘"Historic district.’ Any area which: (1) contains improvements which: (a) have a special character or special historical or aesthetic interest or value; and (b) represent one or more periods or styles of architecture typical of one or more eras in the history of the city; and (c) cause such area, by reason of such factors, to constitute a distinct section of the city; and (2) has been designated as a historic district pursuant to the provisions of this chapter.” §207-1.0 (h), The Act also provides for the designation of a “scenic landmark,” see §207-1.0 (w), and an “interior landmark.” See §207-1.0 (m). See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977). Although appellants are correct in noting that some of the designated landmarks are publicly owned, the vast majority are, like Grand Central Terminal, privately owned structures. If the owner of a non-ta-x-exempt parcel has been denied certificates of appropriateness for a proposed alteration and shows that he is not earning a reasonable return on the property in its present state, the Commission and other city agencies must assume the burden of developing a plan that will enable the landmark owner to earn a reasonable return on the landmark site. The plan may include, but need not be limited to, partial or complete tax exemption, remission of taxes, and authorizations for alterations, construction, or reconstruction appropriate for and not inconsistent with the purposes of the law. § 207-8.0 (c). The owner is free to accept or reject a plan devised by the Commission and approved by the other city agencies. If he accepts the plan, he proceeds to operate the property pursuant to the plan. If he rejects the plan, the Commission may recommend that the city proceed by eminent domain to acquire a protective interest in the landmark, but if the city does not do so within a specified time period, the Commission must issue a notice allowing the property owner to proceed with the alteration or improvement as originally proposed in his application for a certificate of appropriateness. Tax-exempt structures are treated somewhat differently. They become eligible for special treatment only if four preconditions are satisfied: (1) the owner previously entered into an agreement to sell the parcel that was contingent upon the issuance of a certificate of approval; (2) the property, as it exists at the time of the request, is not capable of earning a reasonable return; (3) the structure is no longer suitable to its past or present purposes; and (4) the prospective buyer intends to alter the landmark structure. In the event the owner demonstrates that the property in its present state is not earning a reasonable return, the Commission must either find another buyer for it or allow the sale and construction to proceed. But this is not the only remedy available for owners of tax-exempt landmarks. As the case at bar illustrates, see infra, at 121, if an owner files suit and establishes that he is incapable of earning a “reasonable return” on the site in its present state, he can be afforded judicial relief. Similarly, where a landmark owner who enjoys a tax exemption has demonstrated that the landmark structure, as restricted, is totally inadequate for the owner’s “legitimate needs,” the law has been held invalid as applied to that parcel. See Lutheran Church v. City of New York, 35 N. Y. 2d 121, 316 N. E. 2d 305 (1974). To obtain approval for a proposed transfer, the landmark owner must follow the following procedure. First, he must obtain the permission of the Commission which will examine the plans for the development of the transferee lot to determine whether the planned construction would be compatible with the landmark. Second, he must obtain the approbation of New York City’s Planning Commission which will focus on the effects of the transfer on occupants of the buildings in the vicinity of the transferee lot and whether the landmark owner will preserve the landmark. Finally, the matter goes to the Board of Estimate, which has final authority to grant or deny the application. See also Costonis, supra n. 2, at 585-586. The Terminal’s present foundation includes columns, which were built into it for the express purpose of supporting the proposed 20-story tower. The Commission’s report stated: “Grand Central Station, one of the great buildings of America, evokes a spirit that is unique in this City. It combines distinguished architecture with a brilliant engineering solution, wedded to one of the most fabulous railroad terminals of our time. Monumental in scale, this great building functions as well today as it did when built. In style, it represents the best of the French Beaux Arts.” Record 2240. Appellants also submitted a plan, denominated Breuer II, to the Commission. However, because appellants learned that Breuer II would have violated existing easements, they substituted Breuer II Revised for Breuer II, and the Commission evaluated the appropriateness only of Breuer II Revised. In discussing Breuer I, the Commission also referred to a number of instances in which it had approved additions to landmarks: “The office and reception wing added to Gracie Mansion and the school and church house added to the 12th Street side of the First Presbyterian Church are examples that harmonize in scale, material and character with the structures they adjoin. The new Watch Tower Bible and Tract Society building on Brooklyn Heights, though completely modern in idiom, respects the qualities of its surroundings and will enhance the Brooklyn Heights Historic District, as Butterfield Rouse enhances West 12th Street, and Breuer’s own Whitney Museum its Madison Avenue locale.” Record 2251. See N. Y. Real Prop. Tax Law §489-aa et seq. (McKinney Supp. 1977). Although that court suggested that any regulation of private property to protect landmark values was unconstitutional if “just compensation” were not afforded, it also appeared to rely upon its findings: first, that the cost to Penn Central of operating the Terminal building itself, exclusive of purely railroad operations, exceeded the revenues received from concessionaires and tenants in the Terminal; and second, that the special transferable development rights afforded Penn Central as an owner of a landmark site did not “provide compensation to plaintiffs or minimize the harm suffered by plaintiffs due to the designation of the Terminal as a landmark.” These statements appear to have reflected the costs of maintaining the exterior architectural features of the Terminal in “good repair” as required by the law. As would have been apparent in any case therefore, the existence of the duty to keep up the property was here — and will presumably always be — factored into the inquiry concerning the constitutionality of the landmark restrictions. The AppeEate Division also rejected the claim that an agreement of Penn Central with the Metropolitan Transit Authority and the Connecticut Transit Authority provided a basis for invalidating the application of the Landmarks Law. The record reflected that Penn Central had given serious consideration to transferring some of those rights to either the Biltmore Hotel or the Roosevelt Hotel. The Court of Appeals suggested that in calculating the value of the property upon which appellants were entitled to earn a reasonable return, the “publicly created” components of the value of the property — i. e., those elements of its value attributable to the “efforts of organized society” or to the “social complex” in which the Terminal is located — had to be excluded. However, since the record upon which the Court of Appeals decided the case did not, as that court recognized, contain a basis for segregating the privately created from the publicly created elements of the value of the Terminal site and since the judgment of the Court of Appeals in any event rests upon bases that support our affirmance, see infra, this page and 122, we have no occasion to address the question whether it is permissible or feasible to separate out the “social increments” of the value of property. See Costonis, The Disparity Issue: A Context for the Grand Central Terminal Decision, 91 Harv. L. Rev. 402, 416-417 (1977). Our statement of the issues is a distillation of four questions presented in the jurisdictional statement: “Does the social and cultural desirability of preserving historical landmarks through government regulation derogate from the constitutional requirement that just compensation be paid for private property taken for public use? “Is Penn Central entitled to no compensation for that large but unmeasurable portion of the value of its rights to construct an office building over the Grand Central Terminal that is said to have been created by the efforts of 'society as an organized entity’? “Does a finding that Penn Central has failed to establish that there is no possibility, without exercising its development rights, of earning a reasonable return on all of its remaining properties that benefit in any way from the operations of the Grand Central Terminal warrant the conclusion that no compensation need be paid for the taking of those rights? “Does the possibility accorded to Penn Central, under the landmark-preservation regulation, of realizing some value at some time by transferring the Terminal development rights to other buildings, under a procedure that is conceded to be defective, severely limited, procedurally complex and speculative, and that requires ultimate discretionary approval by governmental authorities, meet the constitutional requirements of just compensation as applied to landmarks?” Jurisdictional Statement 3^4. The first and fourth questions assume that there has been a taking and raise the problem whether, under the circumstances of this case, the transferable development rights constitute “just compensation.” The second and third questions, on the other hand, are directed to the issue whether a taking has occurred. As is implicit in our opinion, we do not embrace the proposition that a “taking” can never occur unless government has transferred physical control over a portion of a parcel. Both the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state that appellants are not seeking review of the New York courts’ determination that Penn Central could earn a “reasonable return” on its investment in the Terminal. Although appellants suggest in their reply brief that the factual conclusions of the New York courts cannot be sustained unless we accept the rationale of the New York Court of Appeals, see Eeply Brief for Appellants 12 n. 15, it is apparent that the findings concerning Penn Central’s ability to profit from the Terminal depend in no way on the Court of Appeals’ rationale. These cases dispose of any contention that might be based on Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that full use of air rights is so bound up with the investment-backed expectations of appellants that governmental deprivation of these rights invariably — i. e., irrespective of the impact of the restriction on the value of the parcel as a whole — constitutes a “taking.” Similarly, Welch, Goldblatt, and Gorieb illustrate the fahacy of appellants’ related contention that a “taking” must be found to have occurred whenever the land-use restriction may be characterized as imposing a “servitude” on the claimant’s parcel. Although the New York Court of Appeals contrasted the New York City Landmarks Law with both zoning and historic-district legislation and stated at one point that landmark laws do not “further a general community plan,” 42 N. Y. 2d 324, 330, 366 N. E. 2d 1271, 1274 (1977), it also emphasized that the implementation of the objectives of the Landmarks Law constitutes an “acceptable reason for singling out one particular parcel for different and less favorable treatment." Ibid., 366 N. E. 2d, at 1275. Therefore, we do not understand the New York Court of Appeals to disagree with our characterization of the law. When a property owner challenges the application of a zoning ordinance to his property, the judicial inquiry focuses upon whether the challenged restriction can reasonably be deemed to promote the objectives of the community land-use plan, and will include consideration of the treatment of similar parcels. See generally Nectow v. Cambridge, 277 U. S. 183 (1928). When a property owner challenges a landmark designation or restriction as arbitrary or discriminatory, a similar inquiry presumably will occur. Appellants attempt to distinguish these cases on the ground that, in each, government was prohibiting a “noxious” use of land and that in the present case, in contrast, appellants’ proposed construction above the Terminal would be beneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no “blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual.” Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964).. These cases are better understood as resting not on any supposed “noxious” quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy — not unlike historic preservation — expected to produce a widespread public benefit and applicable to all similarly situated property. Nor, correlatively, can it be asserted that the destruction or fundamental alteration of a historic landmark is not harmful. The suggestion that the beneficial quality of appellants’ proposed construction is established by the fact that the construction would have been consistent with applicable zoning laws ignores the development in sensibilities and ideals reflected in landmark legislation like New York City’s. Cf. West Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S. E. 881, 885-886, appeal dismissed for want of a substantial federal question, 302 U. S. 658 (1937). There are some 53 designated landmarks and 5 historic districts or scenic landmarks in Manhattan between 14th and 59th Streets. See Landmarks Preservation Commission, Landmarks and Historic Districts (1977). It is, of course, true that the fact the duties imposed by zoning and historic-district legislation apply throughout particular physical communities provides assurances against arbitrariness, but the applicability of the Landmarks Law to a large number of parcels in the city, in our view, provides comparable, if not identical, assurances. Appellants, of course, argue at length that the transferable development rights, while valuable, do not constitute “just compensation.” Brief for Appellants 36-43. Counsel for appellants admitted at oral argument that the Commission has not suggested that it would not, for example, approve a 20-story office tower along the lines of that which was part of the original plan for the Terminal. See Tr. of Oral Arg. 19. See Costonis, supra n. 2, at 585-589. We emphasize that our holding today is on the present record, which in turn is based on Penn Central’s present ability to use the Terminal for its intended purposes and in a gainful fashion. The city conceded at oral argument that if appellants can demonstrate at some point in the future that circumstances have so changed that the Terminal ceases to be “economically viable,” appellants may obtain relief. See Tr. of Oral Arg. 42-43.

Penn Central Transportation Co. v. New York City

Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Stevens join, dissenting. Of the over one million buildings and structures in the city of New York, appellees have singled out 400 for designation as official landmarks. The owner of a building might initially be pleased that his property has been chosen by a distinguished committee of architects, historians, and city planners for such a singular distinction. But he may well discover, as appellant Penn Central Transportation Co. did here, that the landmark designation imposes upon him a substantial cost, with little or no offsetting benefit except for the honor of the designation. The question in this case is whether the cost associated with the city of New York’s desire to preserve a limited number of “landmarks” within its borders must be borne by all of its taxpayers or whether it can instead be imposed entirely on the owners of the individual properties. Only in the most superficial sense of the word can this case be said to involve “zoning.” Typical zoning restrictions may, it is true, so limit the prospective uses of a piece of property as to diminish the value of that property in the abstract because it may not be used for the forbidden purposes. But any such abstract decrease in value will more than likely be at least partially offset by an increase in value which flows from similar restrictions as to use on neighboring properties. All property owners in a designated area are placed under the same restrictions, not only for the benefit of the municipality as a whole but also for the common benefit of one another. In the words of Mr. Justice Holmes, speaking for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), there is “an average reciprocity of advantage.” Where a relatively few individual buildings, all separated from one another, are singled out and treated differently from surrounding buildings, no such reciprocity exists. The cost to the property owner which results from the imposition of restrictions applicable only to his property and not that of his neighbors may be substantial — in this case, several million dollars — with no comparable reciprocal benefits. And the cost associated with landmark legislation is likely to be of a completely different order of magnitude than that which results from the imposition of normal zoning restrictions. Unlike the regime affected by the latter, the landowner is not simply prohibited from using his property for certain purposes, while allowed to use it for all other purposes. Under the historic-landmark preservation scheme adopted by New York, the property owner is under an affirmative duty to preserve his property as a landmark at his own expense. To suggest that because traditional zoning results in some limitation of use of the property zoned, the New York City landmark preservation scheme should likewise be upheld, represents the ultimate in treating as alike things which are different. The rubric of “zoning” has not yet sufficed to avoid the well-established proposition that the Fifth Amendment bars the “Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960). See discussion infra, at 147-150. In August 1967, Grand Central Terminal was designated a landmark over the objections of its owner Penn Central. Immediately upon this designation, Penn Central, like all owners of a landmark site, was placed under an affirmative duty, backed by criminal fines and penalties, to keep “exterior portions” of the landmark “in good repair.” Even more burdensome, however, were the strict limitations that were thereupon imposed on Penn Central’s use of its property. At the time Grand Central was designated a landmark, Penn Central was in a precarious financial condition. In an effort to increase its sources of revenue, Penn Central had entered into a lease agreement with appellant UGP Properties, Inc., under which UGP would construct and operate a multistory office building cantilevered above the Terminal building. During the period of construction, UGP would pay Penn Central $1 million per year. • Upon completion, UGP would rent the building for 50 years, with an option for another 25 years, at a guaranteed minimum rental of $3 million per year. The record is clear that the proposed office building was in full compliance with all New York zoning laws and height limitations. Under the Landmarks Preservation Law, however, appellants could not construct the proposed office building unless appellee Landmarks Preservation Commission issued either a “Certificate of No Exterior Effect” or a “Certificate of Appropriateness.” Although appellants’ architectural plan would have preserved the facade of the Terminal, the Landmarks Preservation Commission has refused to hp-prove the construction. I The Fifth Amendment provides in part: “nor shall private property be taken for public use, without just compensation.” In a very literal sense, the actions of appellees violated this constitutional prohibition. Before the city of New York declared Grand Central Terminal to be a landmark, Penn Central could have used its “air rights” over the Terminal to build a multistory office building, at an apparent value of several million dollars per year. Today, the Terminal cannot be modified in any form, including the erection of additional stories, without the permission of the Landmark Preservation Commission, a permission which appellants, despite good-faith attempts, have so far been unable to obtain. Because the Taking Clause of the Fifth Amendment has not always been read literally, however, the constitutionality of appellees’ actions requires a closer scrutiny of this Court’s interpretation of the three key words in the Taking Clause — “property,” “taken,” and “just compensation.” A Appellees do not dispute that valuable property rights have been destroyed. And the Court has frequently emphasized that the term “property” as used in the Taking Clause includes the entire “group of rights inhering in the citizen’s [ownership].” United States v. General Motors Corp., 323 U. S. 373 (1945). The term is not used in the “vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] . . . denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. .. . The constitutional provision is addressed to every sort of interest the citizen may possess.” Id., at 377-378 (emphasis added). While neighboring landowners are free to use their land and “air rights” in any way consistent with the broad boundaries of New York zoning, Penn Central, absent the permission of ap-pellees, must forever maintain its property in its present state. The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties. B Appellees have thus destroyed — in a literal sense, “taken”— substantial property rights of Penn Central. While the term “taken” might have been narrowly interpreted to include only physical seizures of property rights, “the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking.” Id., at 378. See also United States v. Lynah, 188 U. S. 445, 469 (1903); Dugan v. Rank, 372 U. S. 609, 625 (1963). Because “not every destruction or injury to property by governmental action has been held to be a 'taking’ in the constitutional sense,” Armstrong v. United States, 364 U. S., at 48, however, this does not end our inquiry. But an examination of the two exceptions where the destruction of property does not constitute a taking demonstrates that a compensable taking has occurred here. 1 As early as 1887, the Court recognized that the government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use. “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is nob — and, consistently with the existence and safety of organized society, cannot be — burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.” Mugler v. Kansas, 123 U. S. 623, 668-669. Thus, there is no “taking” where a city prohibits the operation of a brickyard within a residential area, see Hadacheck v. Sebastian, 239 U. S. 394 (1915), or forbids excavation for sand and gravel below the water line, see Goldblatt v. Hempstead, 369 U. S. 590 (1962). Nor is it relevant, where the government is merely prohibiting a noxious use of property, that the government would seem to be singling out a particular property owner. Hadacheck, supra, at 413. The nuisance exception to the taking guarantee is not coterminous with the police power itself. The question is whether the forbidden use is dangerous to the safety, health, or welfare of others. Thus, in Curtin v. Benson, 222 U. S. 78 (1911), the Court held that the Government, in prohibiting the owner of property within the boundaries of Yosemite National Park from grazing cattle on his property, had taken the owner’s property. The Court assumed that the Government could constitutionally require the owner to fence his land or take other action to prevent his cattle from straying onto others’ land without compensating him. “Such laws might be considered as strictly regulations of the use of property, of so using it that no injury could result to others. They would have the effect of making the owner of land herd his cattle on his own land and of making him responsible for a neglect of it.” Id., at 86. The prohibition in question, however, was “not a prevention of a misuse or illegal use but the prevention of a legal and essential use, an attribute of its ownership.” Ibid. Appellees are not prohibiting a nuisance. The record is clear that the proposed addition to the Grand Central Terminal would be in full compliance with zoning, height limitations, and other health and safety requirements. Instead, appellees are seeking to preserve what they believe to be an outstanding example of beaux arts architecture. Penn Central is prevented from further developing its property basically because too good a job was done in designing and building it. The city of New York, because of its unadorned admiration for the design, has decided that the owners of the building must preserve it unchanged for the benefit of sightseeing New Yorkers and tourists. Unlike land-use regulations, appellees’ actions do not merely prohibit Penn Central from using its property in a narrow set of noxious ways. Instead, appellees have placed an affirmative duty on Penn Central to maintain the Terminal in its present state and in “good repair.” Appellants are not free to use their property as they see fit within broad outer boundaries but must strictly adhere to their past use except where appellees conclude that alternative uses would not detract from the landmark. While Penn Central may continue to use the Terminal as it is presently designed, appellees otherwise “exercise complete dominion and control over the surface of the land,” United States v. Causby, 328 U. S. 256, 262 (1946), and must compensate the owner for his loss. Ibid. “Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired.” United States v. Dickinson, 331 U. S. 745, 748 (1947). See also Dugan v. Rank, supra, at 625. 2 Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross section of land and thereby “secure [s] an average reciprocity of advantage.” Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415. It is for this reason that zoning does not constitute a “taking.” While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another. Here, however, a multimillion dollar loss has been imposed on appellants; it is uniquely felt and is not offset by any benefits flowing from the preservation of some 400 other “landmarks” in New York City. Appellees have imposed a substantial cost on less than one one-tenth of one percent of the buildings in New York City for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the “taking” protection is directed. The Fifth Amendment “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.” Monongahela Navigation Co. v. United States, 148 U. S. 312, 325 (1893). Less than 20 years ago, this Court reiterated that the “Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S., at 49. Cf. Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 428-430 (1935). As Mr. Justice Holmes pointed out in Pennsylvania Coal Co. v. Mahon, “the question at bottom” in an eminent domain case “is upon whom the loss of the changes desired should fall.” 260 U. S., at 416. The benefits that appellees believe will flow from preservation of the Grand Central Terminal will accrue to all the citizens of New York City. There is no reason to believe that appellants will enjoy a substantially greater share of these benefits. If the cost of preserving Grand Central Terminal were spread evenly across the entire population of the city of New York, the burden per person would be in cents per year — a minor cost appellees would surely concede for the benefit accrued. Instead, however, appellees would impose the entire cost of several million dollars per year on Penn Central. But it is precisely this sort of discrimination that the Fifth Amendment prohibits. Appellees in response would argue that a taking only occurs where a property owner is denied all reasonable value of his property. The Court has frequently held that, even where a destruction of property rights would not otherwise constitute a taking, the inability of the owner to make a reasonable return on his property requires compensation under the Fifth Amendment. See, e. g., United States v. Lynah, 188 U. S., at 470. But the converse is not true. A taking does not become a noncompensable exercise of police power simply because the government in its grace allows the owner to make some “reasonable” use of his property. “[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.” United States v. Cress, 243 U. S. 316, 328 (1917); United States v. Causby, 328 U. S., at 266. See also Coldblatt v. Hempstead, 369 U. S., at 594. C Appellees, apparently recognizing that the constraints imposed on a landmark site constitute a taking for Fifth Amendment purposes, do not leave the property owner empty-handed. As the Court notes, ante, at 113-114, the property owner may theoretically “transfer” his previous right to develop the landmark property to adjacent properties if they are under his control. Appellees have coined this system “Transfer Development Rights,” or TDR’s. Of all the terms used in the Taking Clause, “just compensation” has the strictest meaning. The Fifth Amendment does not allow simply an approximate compensation but requires “a full and perfect equivalent for the property taken.” Monongahela Navigation Co. v. United States, 148 U. S., at 326. “[I]f the adjective ‘just’ had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just.’ There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken.” Ibid. See also United States v. Lynah, supra, at 465; United States v. Pewee Coal Co., 341 U. S. 114, 117 (1951). And the determination of whether a “full and perfect equivalent” has been awarded is a “judicial function.” United States v. New River Collieries Co., 262 U. S. 341, 343-344 (1923). The fact that appellees may believe that TDR’s provide full compensation is irrelevant. “The legislature may determine what private property is needed for public purposes — that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.” Monongahela Navigation Co. v. United States, supra, at 327. Appellees contend that, even if they have “taken” appellants’ property, TDR’s constitute “just compensation.” Appellants, of course, argue that TDR’s are highly imperfect compensation. Because the lower courts held that there was no “taking,” they did not have to reach the question of whether or not just compensation has already been awarded. The New York Court of Appeals’ discussion of TDR’s gives some support to appellants: “The many defects in New York City’s program for development rights transfers have been detailed elsewhere .... The area to which transfer is permitted is severely limited [and] complex procedures are required to obtain a transfer permit.” 42 N. Y. 2d 324, 334-335, 366 N. E. 2d 1271, 1277 (1977). And in other cases the Court of Appeals has noted that TDR’s have an “uncertain and contingent market value” and do “not adequately preserve” the value lost when a building is declared to be a landmark. French Investing Co. v. City of New York, 39 N. Y. 2d 587, 591, 350 N. E. 2d 381, 383, appeal dismissed, 429 U. S. 990 (1976). On the other hand, there is evidence in the record that Penn Central has been offered substantial amounts for its TDB/s. Because the record on appeal is relatively slim, I would remand to the Court of Appeals for a determination of whether TDR’s constitute a “full and perfect equivalent for the property taken/' II Over 50 years ago, Mr. Justice Holmes, speaking for the Court, warned that the courts were “in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 U. S., at 416. The Court’s opinion in this case demonstrates that the danger thus foreseen has not abated. The city of New York is in a precarious financial state, and some may believe that the costs of landmark preservation will be more easily borne by corporations such as Penn Central than the overburdened individual taxpayers of New York. But these concerns do not allow us to ignore past precedents construing the Eminent Domain Clause to the end that the desire to improve the public condition is,-indeed, achieved by a shorter cut than the constitutional way of paying for the change. A large percentage of the designated landmarks are public structures (such as the Brooklyn Bridge, City Hall, the Statue of Liberty and the Municipal Asphalt Plant) and thus do not raise Fifth Amendment taking questions. See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977 and Jan. 10, 1978, Supplement). Although the Court refers to the New York ordinance as a comprehensive program to preserve historic landmarks, ante, at 107, the ordinance is not limited to historic buildings and gives little guidance to the Landmarks Preservation Commission in its selection of landmark sites. Section 207-1.0 (n) of the Landmarks Preservation Law, as set forth in N. Y. C. Admin. Code, ch. 8-A (1976), requires only that the selected landmark be at least 30 years old and possess “a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.” Even the New York Court of Appeals conceded that “[t]his is not a zoning case. . . . Zoning restrictions operate to advance a comprehensive community plan for the common good. Each property owner in the zone is both benefited and restricted from exploitation, presumably without discrimination, except for permitted continuing nonconforming uses. The restrictions may be designed to maintain the general character of the area, or to assure orderly development, objectives inuring to the benefit of all, which property owners acting individually would find difficult or impossible to achieve .... “Nor does this case involve landmark regulation of a historic district. . . . [In historic districting, as in traditional zoning,] owners although burdened by the restrictions also benefit, to some extent, from the furtherance of a general community plan. “Restrictions on alteration of individual landmarks are not designed to further a general community plan. Landmark restrictions are designed to prevent alteration or demolition of a single piece of property. To this extent, such restrictions resemble 'discriminatory’ zoning restrictions, properly condemned . . . .” 42 N. Y. 2d 324, 329-330, 366 N. E. 2d 1271, 1274 (1977). The guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the Fourteenth Amendment. Although the state “legislature may prescribe a form of procedure to be observed in the taking of private property for public use, ... it is not due process of law if provision be not made for compensation.” Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 236 (1897). The Court’s opinion touches base with, or at least attempts to touch base with, most of the major eminent domain eases decided by this Court. Its use of them, however, is anything but meticulous. In citing to United States v. Caltex, Inc., 344 U. S. 149, 156 (1952), for example, ante, at 124, the only language remotely applicable to eminent domain is stated in terms of “the destruction of respondents’ terminals by a trained team of engineers in the face of their impending seizure by the enemy.” 344 U. S., at 156. In particular, Penn Central cannot increase the height of the Terminal. This Court has previously held that the “air rights” over an area of land are “property” for purposes of the Fifth Amendment. See United States v. Causby, 328 U. S. 256 (1946) (“air rights” taken by low-flying airplanes); Griggs v. Allegheny County, 369 U. S. 84 (1962) (same); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922) (firing of projectiles over summer resort can constitute taking). See also Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716 (1906) (stringing of telephone wire across property constitutes a taking). It is, of course, irrelevant that appellees interfered with or destroyed property rights that Penn Central had not yet physically used. The Fifth Amendment must be applied with “reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.” Boom Co. v. Patterson, 98 U. S. 403, 408 (1879) (emphasis added). “Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” 188 U. S., at 470. Each of the cases cited by the Court for the proposition that legislation which severely affects some landowners but not others does not effect a “taking” involved noxious uses of property. See Hadacheck; Miller v. Schoene, 276 U. S. 272 (1928); Goldblatt. See ante, at 125-127, 133. In Monongahela Navigation Co. v. United States, 148 U. S. 312 (1893), the Monangahela company had expended large sums of money in improving the Monongahela River by means of locks and dams. When the United States condemned this property for its own use, the Court held that full compensation had to be awarded. “Suppose, in the improvement of a navigable stream, it was deemed essential to construct a canal with locks, in order to pass around rapids or falls. Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of paying full compensation for all private property taken there can be as little doubt.” Id., at 337. Under the Court’s rationale, however, where the Government wishes to preserve a pre-existing canal system for public use, it need not condemn the property but need merely order that it be preserved in its present form and be kept “in good repair.” Appellants concede that the preservation of buildings of historical or aesthetic importance is a permissible objective of state action. Brief for Appellants 12. Cf. Berman v. Parker, 348 U. S. 26 (1954); United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896). For the reasons noted in the text, historic zoning, as has been undertaken by cities such as New Orleans, may well not require compensation under the Fifth Amendment. “It is true that the police power embraces regulations designed to promote public convenience or the general welfare, and not merely those in the interest of public health, safety and morals. . . . But when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured. . . . While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit, and indeed, suffer serious detriment, . . . so-called assessments for public improvements laid upon particular property owners are ordinarily constitutional only if based on benefits received by them.” 294 U. S., at 429-430. The fact that the Landmarks Preservation Commission may have allowed additions to a relatively few landmarks is of no comfort to appellants. Ante, at 118 n. 18. Nor is it of any comfort that the Commission refuses to allow appellants to construct any additional stories because of their belief that such construction would not be aesthetic. Ante, at 117-118. Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define “reasonable return” for a variety of types of property (farmlands, residential properties, commercial and industrial areas), but the Court must define the particular property unit that should be examined. For example, in this case, if appellees are viewed as having restricted Penn Central’s use of its “air rights,” all return has been denied. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). The Court does little to resolve these questions in its opinion. Thus, at one point, the Court implies that the question is whether the restrictions have “an unduly harsh impact upon the owner’s use of the property,” ante, at 127; at another point, the question is phrased as whether Penn Central can obtain “a ‘reasonable return’ on its investment,” ante, at 136; and, at yet another point, the question becomes whether the landmark is “economically viable,” ante, at 138 n. 36. The Court suggests, ante, at 131, that if appellees are held to have “taken” property rights of landmark owners, not only the New York City Landmarks Preservation Law, but “all comparable landmark legislation in the Nation,” must fall. This assumes, of course, that TDR’s are not “just compensation” for the property rights destroyed. It also ignores the fact that many States and cities- in the Nation have chosen to preserve landmarks by purchasing or condemning restrictive easements over the facades of the landmarks and are apparently quite satisfied with the results. See, e. g., Ore. Rev. Stat. §§271.710, 271.720 (1977); Md. Ann. Code, Art 41, § 181A (1978); Va. Code §§ 10-145.1 and 10-138 (e) (1978); Richmond, Va., City Code § 17-23 et seq. (1975). The British National Trust has effectively used restrictive easements to preserve landmarks since 1937. See National Trust Act, 1937, 1 Edw. 8 and 1 Geo. 6 ch. lvii, §§ 4 and 8. Other States and cities have found that tax incentives are also an effective means of encouraging the private preservation of landmark sites. See, e. g., Conn. Gen. Stat. § 12-127a (1977); Ill. Rev. Stat., ch. 24, § 11-48.2-6 (1976); Va. Code §10-139 (1978). The New York City Landmarks Preservation Law departs drastically from these traditional, and constitutional, means of preserving landmarks.

Preservation Coalition, Inc. v. Pierce

SNEED, Circuit Judge: The Preservation Coalition, Inc. (Coalition) filed this action contending that the Secretary of the Department of Housing and Urban Development (HUD), the Mayor of Boise, Idaho, and the Boise Redevelopment Agency (BRA) violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement (EIS) in 1979 for the Boise Downtown Center Redevelopment Project. The Coalition also contended that the defendants violated the National Historic Preservation Act (NHPA) by deciding to demolish or substantially alter seven buildings in the project that are currently listed on the National Register of Historic Places. The district court found that laches barred the NEPA claims, and, in the alternative, that the BRA reasonably concluded that an EIS was not necessary. It further found that defendants did not violate the NHPA. The Coalition appeals the NEPA findings. The National Trust for Historic Preservation (National Trust) has filed an amicus brief raising issues under the NHPA. The BRA insists that these issues are not properly before the court. HUD, on the other hand, in its brief addresses the NHPA issues on the merits. We hold that laches does not bar the NEPA claims but that under the circumstances of this case there was no violation of NEPA. Finally, we hold the NHPA issues are not properly before this court. I. FACTS In July 1969 HUD and the BRA entered into a loan and grant contract to fund an urban renewal project covering several blocks in downtown Boise (the R-4 contract). NEPA became effective January 1, 1970. On June 28, 1971 the defendants signed a similar loan and grant contract for additional downtown blocks (the R-5 contract). The BRA prepared environmental clearances on both the R-4 and R-5 contracts finding that the project would have no significant environmental impact; thus, no EIS was needed. HUD approved the BRA finding. Portions of the project site were cleared between 1972 and 1978, but no construction took place. In 1973 the area was reviewed to determine if buildings were eligible to be placed on the National Register. Seven buildings were placed on the National Register in 1974. In 1978, the Eastman Building was added to the Register. The BRA signed Memoranda of Agreement with the Advisory Council on Historic Preservation regarding the listed buildings in 1974 and 1979, respectively. In 1979, the BRA converted the funding for the project from urban renewal loan and grant funds to Community Development Block Grant (CDBG) funds by signing a “financial settlement” with HUD. At the same time, the BRA prepared a lengthy environmental assessment (EA) on the entire project. The study found that the project would have no significant environmental impact. HUD approved the finding, and the Coalition filed the instant action. II. LACHES Before reaching the merits, we must consider whether, as found by the district court, laches bars the NEPA claims. Laches must be invoked sparingly in environmental cases because ordinarily the plaintiff will not be the only victim of alleged environmental damage. A less grudging application of the doctrine might defeat Congress’s environmental policy. Furthermore, citizens have a right to assume that federal officials will comply with applicable law and to rely on that assumption. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 678 (9th Cir. 1975). See Cady v. Morton, 527 F.2d 786, 792 (9th Cir. 1975). Because application of laches is discretionary, the standard of review on appeal is whether the district court properly found (a) lack of diligence by the party against whom the defense is asserted, and (b) prejudice to the party asserting the defense. Coalition for Canyon Preservation, 632 F.2d at 779, citing Lathan v. Brinegar, 506 F.2d 677, 692 (9th Cir. 1974) (en banc). To support its finding of lack of diligence, the district court determined that the last “major federal action” occurred when HUD signed the R-5 contract in 1971 and that the Coalition failed to press its claim until September 24, 1979. See Chick v. Hills, 528 F.2d 445 (1st Cir. 1976); Sworob v. Harris, 451 F.Supp. 96 (E.D.Pa.1978), aff’d without opinion, Sworob v. Harris, 578 F.2d 1376 (3d Cir. 1978), cert. denied, Sworob v. Harris, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). The passage of eight years since the BRA and HUD signed the loan and grant contract was the rock on which the district court rested its finding of lack of diligence. We believe the district court accorded too much significance to the eight year period. The factors that should be considered in determining diligence in this type of case are (1) whether the party attempted to communicate its position to the agency before filing suit, (2) the nature of the agency response, and (3) the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal bases for challenging an agency action. Coalition for Canyon Preservation, 632 F.2d at 779 (citing City of Davis, 521 F.2d at 673). While each of these factors cannot be fitted precisely to the facts of this case, it should be pointed out that no buildings were placed on the National Register of Historic Places until 1974, that the Eastman Building was not so placed until 1978, and that the decision to demolish the Eastman Building was not made .until May 1979. Thereafter, the Coalition promptly complained to HUD about the need for an EIS before destroying an historic building. When HUD announced that no EIS was required, the Coalition immediately filed this action. These facts clearly indicate that 1971 is not the relevant date for determining whether the Coalition’s historic preservation and funding conversion arguments in support of its NEPA claim are barred by laches. The Coalition did not know that any historic building would be demolished until May 1979. The funding conversion occurred in the same year. Moreover, before bringing suit the Coalition told the BRA it opposed the project and its suit promptly followed a public meeting on the proposed destruction of the historic buildings. These facts demonstrate the degree of diligence required by Coalition for Canyon Preservation, 632 F.2d at 779. Furthermore, even with respect to those aspects of the project known in 1971 that the Coalition challenges, the BRA has not shown sufficient prejudice to invoke laches. Delay may be prejudicial if substantial work has been completed before the suit was brought, but even substantial completion is sometimes insufficient to bar suit. See, e.g., City of Davis, 521 F.2d at 670 n.11 (highway interchange 50% completed). Although the amount of money expended and work completed may indicate how difficult it would be to alter the plan of the project, Coalition for Canyon Preservation, 632 F.2d at 779, increased cost from delay is alone not sufficient to establish prejudice. In enacting NEPA Congress contemplated that some delay would necessarily occur in the process of identifying potential environmental harm. Id. at 780; see Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 868-69 (5th Cir. 1975). Here, however, although four square blocks were leveled for the Boise project in 1971, no construction has taken place. The project cannot be considered close to completion. Cf. City of Rochester v. United States Postal Service, 541 F.2d 967, 977 (2d Cir. 1976) (EIS required for post office 35% completed). It follows that laches bars none of the Coalition’s claims. III. NEPA A. Funding Conversion as a “Major Federal Action” Under NEPA NEPA requires Federal agencies to make detailed reports on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). We have held this standard met whenever substantial questions are raised as to whether a project may significantly degrade some human environmental factor. If an agency determines not to file an EIS, the reviewing court must consider whether the agency has reasonably concluded that the project will have no significant adverse environmental consequences. City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975); see Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981). The district court here found that the financial settlement that the BRA signed with HUD was not a major federal action. 1. Funding Conversion as Equivalent to Authorizing Construction of a Parking Garage The Coalition contends otherwise. It argues that since block grant funds will be used to build a 3000-car parking facility, for which purpose the urban renewal funds could not have been used, the conversion has caused all the environmental effects that ordinarily would be associated with construction of the parking garage. Thus, the conversion has, as would have had the construction of the garage, a significant environmental impact. This overstates the matter. While the urban renewal funds could not have been used for parking construction, a parking facility was nevertheless part of the original plan. Under that plan the BRA committed itself to raise funds for the parking facility to satisfy the state matching requirement. This had not been accomplished by 1978. The funding conversion simply removed a limit on the use of the federal money, but did not alter the planned scope of the project. A funding change does not resemble changing an industrial park to a neighborhood development, San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025-26 (9th Cir. 1973). Instead, like a grant of additional funds to cover increased land acquisition and relocation costs, id., the shift from urban renewal funds to CDBG funds does not affect the fundamental nature of the project, nor inject into it a new aspect which has never been considered. To the contrary, the parking facilities for whose construction CDBG funds will pay have always been considered essential. Any potential degradation of the environment flows, not from the funding conversion, but from the initial plans which included the parking facility. 2. Funding Conversion as a “Major Federal Action” Pursuant to HUD Regulations The Coalition next argues that the funding conversion from urban renewal to CDBG funds requires an EIS under HUD regulations. To evaluate this contention properly it is necessary to analyze HUD’s then-applicable environmental review procedures for the CDBG program which appear in Title 24, C.F.R. Part 58 (1979). Two sections of Part 58, §§ 58.19 and 58.20, are directly relevant. Section 58.19 covers environmental review of continuations of previous activities. Section 58.19(a) states that a project which is a continuation of a previously commenced activity for which previously conducted environmental reviews “are insufficient due to changed circumstances, including the availability of additional data . . ., must be subjected to an ... updated environmental review under this Part.” This review “shall be carried out with respect to the entire project to the extent that the entire project or portions of it could still be altered in light of environmental considerations.” 24 C.F.R. § 58.19(a) (1979). Section 58.19(c) provides, however, that if environmental review has been completed and circumstances, including available data, have not changed significantly, no new environmental review is required. Section 58.20 pertains to financial settlement of urban renewal projects. It makes additional requirements, beyond those for CDBG funding in general, applicable to applications for financial settlement of an urban renewal project prior to substantial completion thereof. Every such application becomes a “project” requiring environmental review. Section 58.20(a)(1) makes section 58.19(c), which permits, as indicated, forgoing of environmental review with respect to some continuations of previous activities, inapplicable to such applications. Furthermore, the environmental review must include an assessment of the environmental consequences of the financial settlement. See 24 C.F.R. § 58.20(a)(2). Taken together, these provisions require that we recognize that HUD erred in concluding that the BRA complied with HUD regulations by filing a statement that the funding conversion itself had no significant environmental impact. See Affidavit of Ryomi Tanino, Clerk’s Record Vol. II, Appendix E. The first paragraph of section 58.20 clearly states that it imposes additional requirements. Its requirements are additional to, but do not oust, those imposed by section 58.19 governing continuation of previous activities with respect to which changed circumstances, including additional data, have made a prior review insufficient. Thus, both section 58.20 and section 58.19 are applicable here. HUD regulations require not only an account of the impact of the financial settlement itself, 24 C.F.R. § 58.20, but also an updating of the environmental review where changed circumstances, totally independent of the financial settlement, make it desirable, see 24 C.F.R. § 58.19(a). That appellee’s environmental reviews in 1971 and 1975 were adequate under the regulations then in effect in no way renders the 1979 regulations inapplicable to appellee’s application for financial settlement. It cannot be denied that by 1979 the circumstances had changed from what they were in 1971 and 1975. See 24 C.F.R. § 58.19(a). The Eastman Building was added to the National Register in 1978. It also cannot be denied that the project in 1979 “could still be altered in light of environmental considerations.” Id. And, of course, it cannot be denied that there was a “financial settlement” with HUD in 1979. See 24 C.F.R. § 58.20. It follows that the procedures outlined by sections 58.19 and 58.20 must be followed. BRA indeed followed these procedures in preparing its 1979 environmental assessment, which it assumed was required by applicable federal regulations, HUD’s contrary interpretation notwithstanding. These procedures, however, do not lead irresistibly to imposing upon BRA the duty of preparing an EIS with respect to the 1979 funding conversion. The updated environmental review required by section 58.19(a) contemplates a new “clearance finding” that will take into account the information theretofore developed and the new factors. 24 C.F.R. § 58.19(b)(1). Preparation of the clearance finding is described in section 58.-15 which is captioned “Steps to commence environmental review process.” Section 58.16 governs completion of the environmental review process where a clearance finding under section 58.15 has determined that the request for release of funds for the project (and, necessarily, any related action whose review is required ancillary to the release of funds) is not an action which may significantly affect the environment. Under these circumstances, no EIS is required. 24 C.F.R. § 58.16. Here, BRA found precisely that the Boise project had no significant impact. Our task is to determine whether this finding under section 58.16 in the BRA’s 1979 environmental assessment was reasonable. Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). a. Effect of Destruction of National Register Building. The Coalition takes the position that the contemplated destruction or significant alteration of buildings listed on the National Register, without more, imprints BRA’s finding of no significant impact on the environment with the mark of unreasonableness. It cites WATCH (Waterbury Action, etc.) v. Harris, 603 F.2d 310 (2d Cir. 1979), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979), in support of its position. WATCH can be read in this fashion. Id. at 318, 326. We decline, however, to follow WATCH when read in this fashion. We regard the adoption of such a rule as inconsistent with at least the spirit of San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973). There we refused to regard amendatory contracts, which increased funding for the sole purpose of providing for the rising cost of land acquisitions and relocation of displaced residents, as “further major federal action” within the meaning of NEPA. Our refusal indicates that within this circuit federal action subsequent to the initiation of a project must be evaluated comprehensively and in terms of its relationship to the environmental effects of the entire project. Only then can it be determined whether the recent federal action amounted to “further major federal action.” Presently agencies prepare some 1,000 EISs and some 30,000 environmental assessments annually. U.S. Council on Environmental Quality, Environmental Quality— 1976, pp. 123, 132. The environmental assessment is an established part of NEPA environmental review. See, e.g., Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), and later appeal, 484 F.2d 448 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981) (“environmental clearance”); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 674 (9th Cir. 1975) (“negative declaration”). As a screening device, the environmental assessment allows agencies with limited resources to focus on truly important federal actions. We decline to remove this screen by imposing a per se rule. See Stewart & Krier, Environmental Law and Policy 754 (2d ed. 1978). Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977), is not inconsistent with our approach in this case. There it was held that the loan and grant contract’s provision that HUD approve all acquisitions and dispositions of property by the urban renewal authority established a continuing federal involvement sufficient to make the approval by HUD of the sale of a National Register building “further federal action.” Our approach to the “continuing involvement” of HUD is guided by HUD’s own regulations on CDBG funding rather than by a “continuing involvement” gloss on NEPA. Whether this gloss exists in this circuit need not detain us. HUD’s own regulations, in this instance, embody its substance in any event. Neither, moreover, requires that we adopt the per se rule of WATCH. It, therefore, becomes necessary to determine whether the district court erred in holding that the Boise project, at the time of the funding conversion, had “no significant impact” on the human environment under NEPA. The standard of review we must apply to an agency’s failure to prepare an EIS is whether the agency’s action was reasonable. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir. 1980) (updating prior review); Portela v. Pierce, 650 F.2d 210 (9th Cir. 1981); City and County of San Francisco v. United States, 615 F.2d 498 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975). But cf. Shea, The Judicial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 Boston College Envt’l Affairs L. Rev. 63 (1980) (Administrative Procedure Act requires “arbitrary and capricious” standard of review). b. Reasonableness of BRA’s Finding. We commence our review by recognizing, as we must, that NEPA requires federal agencies to preserve important historic and cultural aspects of our nation’s heritage. 42 U.S.C. 4331(b)(4) (1976). See Aluli v. Brown, 437 F.Supp. 602, 607 (D.Haw.1977), reversed in part, 602 F.2d 876 (9th Cir. 1979) (archaeological sites). Furthermore, judgments of historical significance made by the Advisory Council on Historic Preservation, the expert regulatory body concerned with preserving, restoring, and maintaining the historic and cultural environment of the Nation, Exec. Order No. 11,593, 36 Fed.Reg. 8921 (May 15, 1971), deserve great weight. However, compliance with the NHPA, even when it exists, does not assure compliance with NEPA. Each mandates separate and distinct procedures, both of which must be complied with when historic buildings are affected. Cf. Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 444-45 (9th Cir. 1976), cert. denied, Wright v. Stop H-3 Ass’n, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976) (NEPA compliance does not constitute NHPA compliance). Execution of a “Memorandum of Agreement” with the Advisory Council on Historic Preservation, on the other hand, does not relieve a federal agency of the duty of complying with the impact statement requirement “to the fullest extent possible,” 42 U.S.C. § 4332. There are, however, similarities between the demands and goals of NEPA and the NHPA. Both Acts create obligations that are chiefly procedural in nature; both have the goal of generating information about the impact of federal actions on the environment; and both require that the relevant federal agency carefully consider the information produced. That is, both are designed to insure that the agency “stop, look, and listen” before moving ahead. NHPA compliance will often be relevant to a determination of whether a threshold finding of no significant impact on the historic environment was reasonable. Nonetheless, unless agency regulations specifically mandate otherwise, each Act must be taken on its own terms. (1) Impact on Historic Environment. Turning to the particulars of this case, we find that the BRA carefully considered information about the Boise project’s impact on the historic environment, as shown in the list of documents attached to Mayor Richard R. Eardley’s July 27, 1979 letter to Gerald Huard, Acting Area Manager for HUD. With respect to the Eastman building, the BRA determined it to lack significance based on several factors: lack of a public perception of historic or other significance, the inadequacy of the comments and attached documents supporting the finding of significance in the Nomination Form, and the fact that the Eastman building’s colorably significant features were better represented in other buildings that were being retained. In particular, the BRA relied on a report by architect Ernest Lombard assessing the impact on the historic environment. With respect to the other historic buildings in the project area, the BRA determined that no features integral to the historic, cultural, or architectural significance of the buildings will be affected. On balance, the careful manner in which the BRA considered historic information and the thoroughness of its statement explaining its decision not to require an EIS convinces us that the BRA’s finding of no significant impact on the historic environment was reasonable. See Gribble, supra, at 1024-25. (2) Impact on Air Quality. While the massive documentation on air pollution compiled by the BRA demonstrates the care and thoroughness of its approach, the agency’s finding of no significant impact on air quality was seriously flawed. Since many of the “mitigations” proposed by the agency were not project or project-related modifications but potential actions to be taken by public and private bodies not controlled by the agency or the City of Boise, reliance on them to reduce the level of significance attached to the project was improper. The significance of the adverse environmental impact of a particular agency action cannot be obviated by pointing to the beneficial environmental impact of a different and unrelated action. For example, the fact that automobiles may eventually have to meet certain emission standards does not mean that a project which will greatly increase use of automobiles in a particular area no longer has an impact on that area’s environment. While it is true that the impact would be substantially mitigated by emission controls, it is also true that air quality would be improved to a greater extent by emission controls and no project at all. Of course, when the initial plans for a project indicate adverse environmental effects, modifications to the original design, including firm commitments by other parties to take mitigating actions, may eliminate or mitigate the project’s effects on air' quality. These modifications may make the preparation of an EIS unnecessary. When the compensatory action is to be undertaken by third parties, their commitments, while they need not be contractual, must be more than mere vague statements of good intentions. See City and County of San Francisco v. United States, 615 F.2d 498, 501 (9th Cir. 1980) (mutual action “well-coordinated” between city and Navy). While some of the mitigating factors considered by BRA failed to meet this standard, others are project-related changes closely planned with the City of Boise or for which BRA held firm commitments from the developer, Winmar. These include the City’s commitment to reduce new construction of parking in the redevelopment area by 8.5% from the number in the project description; to require parking in the project to be managed for short-term usage; and to undertake a van-pooling incentive program for municipal and other employees sufficient to increase current van-pooling ridership by 25%. The City is also committed to increasing transit usage during off-peak hours from the present 1982 estimated level of 35% of total transit usage to approximately 50% of total transit usage, an increase of 2,000 transit riders daily to the downtown area. Private auto travel to the downtown center would decrease correspondingly. The City will accomplish this goal with such specific measures as increased transit service to downtown and the mall area, provision of preferential treatment for transit along major downtown corridors (including transit rights-of-way, signal preemption, and bus turn lanes), incentive systems for transit usage by downtown employees and shoppers, and elimination of free parking in downtown for commuters. Absent the project, these changes would not have occurred. Thus, they are appropriate mitigating factors. Certain contractual obligations of the developer, Winmar, also meet the required standard. The Disposition and Development Agreement with BRA requires Win-mar to meet detailed design requirements for pedestrian access to encourage walking to the mall, to reduce employee automobile usage within the center through incentive programs, and to provide safe facilities for bicycle storage within the retail center. Limits on the number of parking spaces and the required use of short-term parking management techniques are embodied in the agreement. When considered together, these measures are sufficient to support the conclusion that the finding of no significant impact on air quality was reasonable. (3) Impact on Noise Level and Traffic Congestion. Appellants also contend that the project will have a significant impact on noise pollution and traffic congestion. We note at the outset that where a federal project conforms to existing land use patterns, zoning, or local plans, such conformity is evidence supporting a finding of no significant impact. Maryland-National Capital Park & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1036 (D.C.Cir.1973); Central Oklahoma Preservation Alliance v. Oklahoma City, etc., 471 F.Supp. 68, 78 (W.D.Okl.1979). The primary effect of the project here, as in Central Oklahoma, is “to reverse and mitigate existing adverse environmental trends and conditions by replacing an obsolete and deteriorating retail-commercial area with a new one.” Land use, in its broadest sense, is not altered; it merely will transpire in better surroundings. This strongly supports the environmental clearance approved by HUD. It avoids the impacts on air quality, water quality, wildlife, and noise such as are generated by dams, expressways, airports, or even new business districts. Central Oklahoma, supra, at 78. The developer and BRA are contractually obligated to cooperate in scheduling or modifying construction activities to reduce noise. The City will mitigate congestion from closing Idaho and Main streets by obtaining a written commitment from the Ada County Highway District to increase the priority of the downtown circulation plan for improving traffic flow around the project. The Mayor will not allow closure of Main or Idaho streets before reasonable and substantial progress on the downtown circulation plan has, in his judgment, occurred. Therefore, we conclude that the finding of no significant impact on noise level and traffic congestion was reasonable. IV. NHPA The National Trust for Historic Preservation in its amicus brief contends that section 470f of the National Historic Preservation Act, 16 U.S.C. § 470 et seq., applies to the Boise project. The National Trust contends that WATCH (Waterbury Action, etc.) v. Harris, 603 F.2d 310 (2d Cir. 1979), requires HUD to comply with the NHPA whenever it exercises any continuing control over a project that receives federal funds. Under the circumstances of this case we decline to reach the issue. The Coalition raised both the NEPA and NHPA issues in its complaint. The district court passed on both claims. The Coalition has appealed, and it has raised only issues relating to NEPA in its opening brief. The government has responded to the NEPA issues in detail, but contends that the National Trust, as amicus, cannot raise issues not raised by the parties. In its reply brief, the Coalition has again responded only to the NEPA issues. Normally, we should consider only issues raised in the opening brief. 9 Moore’s Federal Practice, ¶ 228.02[2. — 1] at 28-7 & n.2. Issues raised in the reply brief ordinarily should not be considered. Id. at ¶ 228.02[2.3] at 28-9. But see Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n.1 (9th Cir. 1970) (considering issues raised for the first time in a reply brief to avoid unduly harsh result). The party appealing generally is entitled to frame the issues; but exceptional circumstances may require that these rules be suspended. See, e.g., Consumers Union of United States, Inc. v. FPC, 510 F.2d 656, 662 & n.9 (D.C.Cir.1975). This is not such a case, however. Here the amicus was not involved below. It has no right to appeal the judgment. Moten v. Bricklayers, Masons, and Plasterers, International Union of America, 543 F.2d 224, 227 (D.C.Cir.1976). The issue it seeks to raise was raised by the parties below and disposed of by the district court’s judgment. Had the Coalition wished to preserve this issue on appeal, it could easily have done so. It did not. Consequently, it has waived the issue. Had the National Trust wished to raise the issue properly in this case, it could have intervened instead of appearing as amicus. It did not. Therefore, the issue is not properly before us. V. CONCLUSION Although the Coalition’s NEPA claims are not barred by laches, neither the conversion from urban renewal funds to CDBG funds in 1979, nor HUD regulations applicable to that conversion, nor the planned destruction of a building included on the National Register requires an EIS for the Boise project. Preparation of an environmental assessment in 1979 to evaluate new information leading to changed circumstances with respect to the project’s impact on the historic and cultural environment was required by then-applicable HUD regulations. However, the 1979 environmental assessment’s finding of no significant impact was reasonable. As modified by this opinion, the judgment of the court below is AFFIRMED. . Executive Order 11,593 requires federal agencies to institute procedures, in consultation with the Advisory Council on Historic Preservation, to assure that Federal agencies carry out their responsibilities of historic preservation under NHPA. Thus, cooperation with the Advisory Council is a regulatory mandate. Of course, Advisory Council decisions are of greater weight for NHPA purposes, where their role is prescribed by statute, than for NEPA purposes. See generally Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan.L.Rev. 473 (1981). . NEPA requires detailed statements on major federal actions significantly affecting the quality of the human environment, including the historic and cultural environment, 42 U.S.C. § 4332(C), whereas the NHPA requires federal agencies, prior to the approval of the expenditure of federal funds on any undertaking, to take into account the effect of the undertaking on National Register buildings, and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. 16 U.S.C. 470f. Thus, the NHPA mandate is much more narrowly focused. . See note 3 supra. The U.S. Supreme Court recently emphasized the procedural character of NEPA in Strycker’s Bay Neighborhood Council, Inc. v. Karlen et al., 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980). In overruling the Second Circuit’s finding that the EIS was insufficient, the Court held that a reviewing court is limited to ensuring that the agency has considered the environmental consequences of its action. The Supreme Court chided the court below for requiring HUD to “elevate environmental concerns over other, admittedly legitimate, considerations. Neither NEPA nor the APA provides any support for such a reordering of priorities by a reviewing court.” Id. at 438. . For example, HUD Handbook 1390.1, 38 Fed. Reg. 19182, which applies only to HUD’s own projects, requires an EIS for “any project which has an adverse effect on a property listed on, or nominated to the National Register of Historic Places.” Id. at 19189 (Appendix A-2). . Given the common interest and close cooperation of the City of Boise and its agency, the BRA, in implementing the downtown project, for purposes of mitigation efforts they are essentially the same entity. . Another circuit has noted that environmental effects of the kind ordinarily calling into play an EIS requirement could only be obviated by a showing that the effects were curtailed by modification of the project design. Maryland-National Capital Park & Planning Comm’n v. United States Postal Service, 487 F.2d 1029 (D.C.Cir.1973). This circuit has upheld a finding of no significant impact where traffic congestion to be caused by leasing a naval shipyard would be mitigated by the City expanding major traffic arteries into the shipyard. City and County of San Francisco v. United States, 615 F.2d 498 (9th Cir. 1980). There, the mitigating activities were not carried out by the agency alone (the Department of the Navy). However, they were to be carried out by the City in close cooperation with the Navy. Without the project, the arteries would not have been expanded. Moreover, plans for the reopening of the facility, including expansion of major arteries into the shipyard, had been “well-coordinated” with the City of San Francisco, the plaintiff. Thus, expansion of the arteries could properly be considered to mitigate traffic congestion caused by the project.

Stop H-3 Ass'n v. Coleman

OPINION Before KOELSCH, ELY and WALLACE, Circuit Judges. ELY, Circuit Judge: The Moanalua Valley, a beauteous natural wonder that many believe to be of great significance in Hawaiian history, lies on Hawaii’s Island of Oahu, directly in the path of a proposed Interstate Highway called H-3. The principal issue on this appeal is whether Moanalua qualifies for protection as an “historic site of State, or local significance” under section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970), and section 18 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970). (Both statutes, which are essentially identical, are hereinafter referred to simply as “section 4(f)”.) Relying on a published determination by the Secretary of the Interior that Moanalua is eligible for inclusion in the National Register of Historic Places, the appellants contend that section 4(f) applies. The appellees, who rely primarily on a determination by Hawaii State officials that Moanalua is only of “marginal” historic significance, argue that section 4(f) is inapplicable to the routing of H-3 through the Valley. Agreeing with the appellees, the District Court dissolved the injunctions that it had previously entered against construction of the highway. Stop H-3 Ass’n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974). We reverse. I. Statutory Background Public interest in preservation of the physical reminders of our Nation’s past has prompted Congress to implement a strong national policy in favor of historic preservation. See 16 U.S.C. §§ 461, 470; 23 U.S.C. § 138; 49 U.S.C. § 1653(f) (1970). In section 4(f), Congress has determined that historic preservation should be given major consideration in connection with all proposed highway construction programs that are to receive financial aid from the federal government. The statute provides, in declaring national policy, that “ . special effort should be made to preserve . historic sites.” The statute further provides that before the Secretary of Transportation [hereinafter “the Secretary”] may approve the use of Federal funds for a highway that will “use” land from “ . . .an historic site of national, State, or local significance as so determined by [the Federal, State, or local officials having jurisdiction thereof],” he must determine that no “feasible and prudent” alternative route exists. If there is no “feasible and prudent” alternative, the Secretary may approve the project only if there has been “ . . . all possible planning to minimize harm . . . ” to the historic site. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-18, 91 S.Ct. 814, 821, 28 L.Ed.2d 136, 150 (1971). The requirements are stringent. Congress clearly reflected its intent that there shall no longer be reckless, ill-considered, wanton desecration of natural sites significantly related to our country’s heritage. As one step toward implementing the national policy in furtherance of historic preservation, Congress, in the National Historic Preservation Act of 1966 [hereinafter “the NHPA”], 16 U.S.C. §§ 470 et seq. (1970), authorized the Secretary of the Interior to expand and maintain a national register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture, hereinafter referred to as the National Register . 16 U.S.C. § 470a(a)(l) (1970). The National Register, which includes properties of State and local, as well as national, historic significance, is intended to provide a “ . convenient guide to properties which should be preserved . . . H.R.Rep.No.1916, 89th Cong., 2d Sess., reproduced at 1966 U.S.Code Cong. & Admin.News pp. 3307, 3310. In the NHPA, Congress also created the Advisory Council on Historic Preservation [hereinafter “the Advisory Council”], which is composed of the head officials of certain Federal agencies and other persons, appointed by the President, who have experience and interests in the field of historic preservation. 16 U.S.C. § 470i (1970). The Advisory Council is responsible for coordinating the historic preservation efforts of Federal agencies, state governments, and other organizations, and for making recommendations on matters pertaining to the protection and preservation of historic sites. 16 U.S.C. § 470j (1970). To facilitate the identification of properties of State and local historic significance that qualify for inclusion in the National Register, the Secretary of the Interior has established certain “National Register Criteria.” These Criteria broadly provide, in pertinent part, as follows: The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and: (1) That are associated with events that have made a significant contribution to the broad patterns of our history; or (2) That are associated with the lives of persons significant in our past; or (3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (4) That have yielded, or may be likely to yield, information important in prehistory or history. 36 C.F.R. § 800.10 (1975). As defined in 36 C.F.R. § 800.3(f) (1975), the phrase “property eligible for inclusion in the National Register” means “any district, site, building, structure, or object which the Secretary of the Interior determines is likely to meet the National Register Criteria.” For the purposes of NHPA, the regulations place property that is eligible for inclusion in the National Register on an equal footing with property that is actually listed in the Register. See 36 C.F.R. §§ 800.4(a)-(b) (1975). II. The Factual Setting As planned, H-3 would constitute the third and final segment of Hawaii’s Interstate Highway System. It would be a six-lane, controlled-access highway extending for approximately fifteen miles across the southern half of Oahu, from near Pearl Harbor, on the Island’s leeward side, across the Koolau Mountains, to the Kaneohe Marine Corps Air Station, on the windward side. Two conventional highways, the Pali and Likelike Highways, now provide transKoolau routes, but according to some official projections, these highways will soon be inadequate to serve the growing population on Oahu’s windward side. The Moanalua Valley, which is privately owned, lies within Oahu’s interior. H-3’s projected route extends for approximately three miles along Moanalua’s narrow floor. Within Moanalua, H-3 would pass from within 100 to 200 feet of a large petroglyph rock that is known as Pohaku ka Luahine. In March, 1973, the Moanalua Gardens Foundation, a private, non-profit organization that is interested in Moanalua’s preservation, nominated both the Valley and Pohaku ka Luahine for inclusion in the National Register. On July 23,1973, the Interior Secretary named Pohaku ka Luahine to the National Register. 39 Fed.Reg. 6402, 6422 (1974). In October of 1973, the Interi- or Secretary’s Advisory Board on National Parks, Historic Sites, Buildings and Monuments considered the historic significance of Moanalua Valley. The Board noted that much of the information concerning Moanalua’s importance existed only within the private notebooks of oral traditions about the Valley that had been kept by the Valley’s former owner, Gertrude Damon, and that since the Damon notebooks had never been released by the Damon estate, they had never been subjected to rigorous scrutiny. Consequently, while the Board believed that Moanalua had not been conclusively demonstrated to be of national historic significance, it concluded that “[hjistorical, cultural, and natural values combined with outstanding potential for an environmental study area endow Moanalua Valley with an importance that makes its preservation clearly in the public interest.” On May 8, 1974, the Interior Secretary published a Notice in the Federal Register that Moanalua, along with a number of other properties, may be eligible for inclusion in the National Register of Historic Places and are therefore entitled to protection under section 1(3) and section 2(b) of Executive Order 11593 and other applicable Federal legislation. 39 Fed.Reg. 16175-76 (1974). Explaining his decision, then Interior Secretary Morton wrote in a letter to the Governor of Hawaii that while Moanalua was not of national historic significance, the Valley “possessed historical and cultural values of at least local dimensions and, therefore, could meet the less stringent criteria of the National Register for sites of local significance.” Thereafter, however, on August 5, 1974, the Hawaii Historic Places Review Board, a State body responsible for evaluating and nominating Hawaiian properties for inclusion in the National Register and for maintaining the Hawaii Register of Historic Places, met concerning Moanalua and determined that the Valley was only of “marginal” local significance, a classification that affords the Valley no protection from destruction. Since Pohaku ka Luahine had already been named to the National Register, the Federal Highway Administrator, in compliance with 36 C.F.R. § 800.4 (1975), requested the Advisory Council on Historic Preservation to comment concerning H-3’s potential impact on the petroglyph rock. The Advisory Council met on August 6th and 7th, 1974. Because the Interior Secretary had recently determined that Moanalua was eligible for inclusion in the National Register, the Council broadened its review of H-3 from that requested by the Federal Highway Administrator to include the highway’s potential impact on the Valley. The Advisory Council’s report, copies of which were furnished to the Secretary of Transportation and to the Secretary of the Interi- or, concluded that both Pohaku ka Luahine and the Moanalua Valley possessed “historical, cultural, and archeological significance warranting their preservation.” Notwithstanding the Advisory Council’s report and the Interior Secretary’s published determination that Moanalua “may be eligible” for inclusion in the National Register, the Secretary of Transportation concluded, in September of 1974, that “. the Valley does not come under the provisions of Section 4(f).” III. Discussion The District Court did not dispute the significance attached by the regulations to property that is eligible for inclusion in the National Register. The court wrote: [Djetermination by the secretary of interior that a property is eligible for inclusion in the National Register triggers all protections given to a property actually included until the eligibility is resolved. 389 F.Supp. at 1117. The court believed, however, that the Interior Secretary’s May 8,1974, Federal Register Notice, which stated that Moanalua “may be eligible” for inclusion in the Register, was not equivalent to a determination that the Valley “i's eligible.” We cannot accept this purported distinction. As noted above, the regulations define “eligible for inclusion” in the National Register as meaning “likely to meet the National Register Criteria.” We are absolutely unable to perceive any meaningful distinction between “may be eligible” and “is likely to meet the criteria” for inclusion in the National Register. Furthermore, in his Federal Register Notice, the Interior Secretary specifically stated that the “may be eligible” designation entitled the listed properties to protection under the relevant Executive Order and “other applicable Federal legislation.” This is the same protection that is provided under an “is eligible” determination. Finally, subsequent to the District Court’s decision in this case, the Interior Secretary has resolved any remaining doubts by publishing a new Federal Register Notice concerning Moanalua. This Notice specifically states that the Valley has been determined “to be'eligible for inclusion in the National Register.” 40 Fed. Reg. 23906-07 (1975). The District Court also concluded, and the appellees here contend, that since the Interior Secretary specifically determined Moanalua not to be of national historic significance, the question whether the Valley is significant in State or local history should be resolved solely by the Hawaii Historic Places Review Board. As previously noted, that Board has classified the Valley as being of only “marginal” historic significance. In our view, the District Court and the appellees have misconstrued section 4(f). Section 4(f) applies to all properties that “the Federal, State, or local officials having jurisdiction thereof” determine to be of “national, State, or local significance.” Under the NHPA, the Interior Secretary’s “jurisdiction” to determine historic significance is not limited to properties of national importance. In defining the National Register, the NHPA speaks in terms of properties “significant in American history, architecture, archeology, and culture,” 16 U.S.C. § 470a(a)(l) (1970). To us, it appears beyond dispute that such significance can be found in properties that relate only to the history of a particular region, state, or locality. See 36 C.F.R. § 800.10 (1975); H.R.No.1916, 89th Cong., 2d Sess. (1966) reproduced at 1966 U.S.Code Cong. & AdmimNews, p. 3307. Since the Interior Secretary is the only official authorized to name properties to the National Register, we have no doubt that he has “jurisdiction” to determine whether properties have state or local historic significance. Under section 4(f)’s disjunctive language, if any of the officials having jurisdiction to determine that a site has national, State, or local historic significance, so decides then section 4(f) applies. Consequently, the Interior Secretary’s determination that Moanalua is eligible for inclusion on the National Register as a site of local historic importance is not vitiated, and cannot be vitiated, by the State Review Board’s finding that the Valley has only “marginal” significance. See Named Individual Members v. Texas Highway Dept., 446 F.2d 1013, 1025-27 (5th Cir. 1971), cert. denied, 406 U,S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972) (section 4(f) applicable even though city officials had determined that city-owned parkland was of “secondary” importance to the construction of a freeway). In our court, the appellees have advanced three additional arguments which, if correct, might serve to validate the Transportation Secretary’s decision that section 4(f) does not apply to the Moanalua Valley. First, taking a position different from that adopted by the District Court, the appellees assert that, even though the Secretary of the Interior may have determined Moanalua to be eligible for inclusion in the National Register, that determination does not constitute a finding of Moanalua’s “historic significance” for the purposes of section 4(f). Appellees argue that section 4(f)’s application is narrowly restricted to properties that are actually included in the National Register or perhaps a similar state or local compilation of historic sites. We disagree. In our view, the Interior Secretary’s determination that Moanalua “is likely to meet” the established National Register Criteria constitutes a finding that the Valley has historic significance. A contrary conclusion would exalt form and ignore substance. In making this argument, appellees rely on two paragraphs of a letter written by former Interior Secretary Morton concerning his determination that Moanalua is eligible for inclusion in the National Register. Secretary Morton wrote that his determination of Moanalua’s eligibility for listing in the Register did not trigger the requirements of section 2(b) of Executive Order 11593 and that the Department of Transportation remained “. . . solely responsible for determining which provisions, if any, of the . . . Department of Transportation Act . . . are applicable” to H-3. We do not interpret Secretary Morton’s letter as broadly as do the appellees. Section 2(b) of Executive Order 11593 establishes special requirements for the protection of historic sites that are located on lands owned by the United States. Since Moanalua is privately owned, the section, under its own terms, does not apply. Furthermore, there is no question that, as Secretary Morton stated, the Secretary of Transportation, not the Secretary of the Interior, is responsible for making the initial determination whether section 4(f) applies to a particular highway project. In making that determination, however, the Transportation Secretary must ascertain whether the project will use land from a site of historic significance, as determined by the Interior Secretary, or state or local historic preservation officials. Moreover, as here, the Transportation Secretary’s decision is subject to judicial review. Appellees next assert that the Interior Secretary’s determination that Moanalua is eligible for inclusion in the National Register is invalid because the determination was not made in accordance with the procedures set forth in 36 C.F.R. § 800.4(a)(2) (1975). In pertinent part, that regulation reads: If [the Federal] Agency Official [responsible for a specific project] determines that a property [that will be adversely affected by the project] appears to meet the [National Register] Criteria, or if it is questionable whether the Criteria are met, the Agency Official shall request, in writing, an opinion from the Secretary of the Interior respecting the property’s eligibility for inclusion in the National Register. The Secretary of the Interior’s opinion . . . shall be conclusive for the purposes of these procedures. Appellees contend that, since the Secretary of Transportation, who was the agency official responsible for H-3, did not request the Interior Secretary to determine whether Moanalua was eligible for inclusion in the National Register, the Interior Secretary had no authority to make such a determination. Initially, we note that in making this argument appellees expose their own hands, some of which are not wholly clean. The regulation expressly and unambiguously provides that “if it is questionable” whether a property meets the National Register Criteria, the responsible agency official shall request the Interior Secretary’s opinion. It is manifest that throughout 1974 it was at least “questionable” whether Moanalua was eligible for the National Register. The Valley had been nominated for the Register as early as March, 1973, and in 1974, the Valley was the subject of studies by the Advisory Council and the State’s historic review board. On May 8,1974, the Interior Secretary published an official notice that the Valley “may be eligible” for the National Register. The Transportation Secretary here seeks to avoid the effects of his own, wholly inexcusable, noncompliance with the regulation. Furthermore, we find nothing in NHPA or the implementing regulations that would preclude the Interior Secretary from determining, on his own initiative, whether a property is eligible for inclusion in the National Register. Such could prove to be one of his most important and enduring contributions. The procedures set forth in 36 C.F.R. § 800.4 (1975) apply only to the special situation wherein a property not previously evaluated in the light of the National Register Criteria, is in imminent danger of alteration or destruction because of an on-going or proposed Federal project. Here, before the Interior Secretary acted, Moanalua had been nominated for inclusion in the Register by the Moanalua Gardens Foundation and had been studied by the Secretary’s Advisory Board on National Parks, Historic Sites, Buildings, and Monuments. We believe that the Interior Secretary’s determination was well within his power under the Congressional authorization conferred by the NHPA. Finally, appellees have suggested that the Transportation Secretary’s review and approval of the Environmental Impact Statement (EIS) pertaining to H-3, which includes some material concerning Moanalua’s historic significance, as well as discussions of several alternatives to H-3’s proposed route through the Moanalua Valley, constitutes compliance with section 4(f). Section 4(f) does not require the Transportation Secretary to set forth specific findings and reasons for approving a project that will use land from parks or historic sites. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417-19, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 154 (1971). Nevertheless, a court reviewing the Secretary’s 4(f) decision must satisfy itself that the Secretary evaluated the highway project with the mandates of section 4(f) clearly in mind. Id. at 416,91 S.Ct. at 823,28 L.Ed.2d at 154. On the administrative record, the Secretary’s consistent position was not that he had complied with section 4(f) but that the statute was altogether inapplicable. In the light of that consistently recorded position, it is not possible, with factual accuracy, to conclude that the Secretary evaluated H-3 with the explicit directives of 4(f) firmly in mind. Furthermore, we note that the EIS provides no evidence that the Secretary complied with section 4(f). While the document does contain some discussion of the advantages and disadvantages of several alternatives to H-3, as the roadway is now planned, the analyses do not attempt to demonstrate, or purport to establish, that each of the alternatives is not “feasible or prudent,” as those terms are defined within the context of section 4(f). Id. at 411-13, 91 S.Ct. at 821, 36 L.Ed.2d at 150. We conclude that the Secretary of the Interior has determined Moanalua to be eligible for inclusion in the National Register of Historic Places and that this determination entitles the Valley to the protections Congress has established for historic sites in section 4(f). We further conclude that the Secretary of Transportation did not comply with the requirements of section 4(f) before he approved Federal funding for H-3. IV. Other Issues Appellants contend that the Secretary also failed to comply with section 4(f) with respect to Pohaku ka Luahine, which, as we have heretofore noted, is included in the National Register. Because the petroglyph rock has once been moved and now rests a short distance from its original location, the District Court concluded that the rock, and its present surroundings, do not constitute an “historic site” for the purposes of section 4(f). 389 F.Supp. at 1116. After careful consideration, we cannot escape the conclusion that Pohaku ka Luahine, and its immediate environs, qualify for protection under section 4(f). It is clear that the rock was originally located in the Valley, and it is inseparably linked to historic events that there occurred long since. Consequently, so long as the rock remains in the Valley, even though it may stand a few feet from its original location, we believe that it forms the basis for an historic site. Further, we believe that H-3, which will pass near the rock, will “use” land from that historic site. See Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (a proposed highway that would encircle a public campground would “use” that campground). In the particular circumstances of this case, however, Pohaku ka Luahine’s fate, like its historic significance, is linked to that of the Moanalua Valley. If the Secretary validly determines that there is no “feasible and prudent” alternative to the alleged desecration of the Valley, there will be no such alternative to the use of the petroglyph rock. Consequently, if the Secretary makes such a determination, the 4(f) inquiry with respect to the rock must be whether there has been “all possible planning to minimize harm.” Appellants have presented three other issues to us. They contend that the EIS for H-3 and the 4(f) statement pertaining to the Pali Golf Course are inadequate and that the H-3 project is not grounded in a continuing comprehensive State and local transportation planning process, as is required by 23 U.S.C. § 134(a) (1970). Because of our decision as to Moanalua Valley and Pohaku ka Luahine, we believe that we should not consider these issues at this time. It is altogether possible that future developments will moot these issues. In the event that the Secretary does conclude that there is no “feasible and prudent” alternative to the routing of a multi-lane highway through Moanalua, the District Court will reconsider that conclusion and these other issues in the light of all information that will then be available. The District Court’s Order dissolving the injunctions against construction of H-3 is reversed. On remand, the District Court will enjoin construction of the highway until such time that the Secretary can demonstrate his full compliance with section 4(f) as the statute applies to Moanalua Valley and Pohaku ka Luahine and has made a determination in harmony with the statutory requirements. REVERSED AND REMANDED. . According to the Advisory Council on Historic Preservation, The historical and cultural significance of the [Moanalua] [V]alley stems from Hawaiian folklore and tradition and continues into the 20th century. The valley contains Kamanui, the valley of the great power, and Waolani, the valley of the spirits which was, in tradition, “the dwelling place of the gods.” The forest of the valley retains a traditional natural state associated with the legend and history of the area. The valley was the property of the royal house of Oahu, the scene of battles and other exploits which are extolled in the ancient Hawaiian chants, the Kahikilaulani. After King Kamehameha conquered the island of Oahu in 1796, the valley was the home of his supporters and eventually passed, in 1848, to . his grandson, King Kamehameha V, then to Princess Ruth Keelikolani in 1872, and, upon her death, to her cousin, Princess Bernice Pauhi Bishop who willed it, in 1883, to her friend, Samuel Mills Damon. . Advisory Council on Historic Preservation, Comments on an Undertaking by the Federal Highway Administration Having an Effect upon Pohaku ka Luahine and Moanalua Valley, Oahu, Hawaii (August 7-8, 1974) (hereinafter referred to as “Advisory Council, Comments ”). . Section 4(f) states: It is hereby declared to be the national policy 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) (1970). . The appellants are the Stop H-3 Ass’n, the Moanalua Valley Community Ass’n, the Kaiku Village Community Ass’n, Life of the Land, the Moanalua Garden Foundation, all of which are non-profit organizations chartered for the purposes of opposing the construction of H-3 or preserving the Moanalua Valley, and several named individuals. The National Wildlife Federation has filed a brief as amicus curiae, supporting the appellants. . Appellees are the Secretary of Transportation, the Hawaii Division Engineer for the Federal Highway Administration, and the Director of the Department of Transportation of the State of Hawaii. . The prolonged history of the present controversy in the District Court is thoroughly and carefully reviewed in the District Court’s Opinion. Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102, 1105-07 (D.Hawaii 1974). We have hitherto issued an injunction designed, pending the disposition of this appeal, to prevent irreversible damage or destruction of the natural environment involved in the controversy. That injunction will remain in effect pending the eventual disposition of the appeal and the issuance of a new injunction by the District Court in conformity with our conclusion. . The Advisory Council states that Pohaku ka Luahine, a large boulder marked with petroglyphs, is located in the center of Moanalua Valley . . . . Pohaku ka Luahine is the largest free-standing petroglyph boulder on the island of Oahu and measures some 11' X 8' X 6'. There are only ten known petroglyph sites on the island of Oahu and only three such free-standing petroglyph boulders in the entire State. The rock shows 22 carvings which have been identified as petroglyphs (rock carvings) of human figures and bird men which range in sizes up to approximately 20 inches. All these were carved or pecked into the boulder surface with crude stone tools and endless hours of labor. The rock carving is described by the State Historic Preservation Officer as a “superb artistic expression of form in a medium of hard rock, using the crudest of tools and an unknown duration of labor reason enough for ensuring the preservation of Pohaku ka Luahine.” [T]he ancient Hawaiians believed that natural phenomena — both animate and inanimate — possess spiritual form and being. In tradition, the rock is sacred. Advisory Council, Comments, supra note 1. . United States Department of the Interior, Memorandum from the Chairman, Advisory Bd. on Nat’l Parks, Historic Sites, Bldgs. & Monuments, to the Secretary of the Interior, October 3, 1973. . Section 1(3) of Exec.Order No. 11,593, 36 Fed.Reg. 8921 (1971), 16 U.S.C. § 470 (Supp. I, 1971), requires Federal agencies to establish procedures for the protection and enhancement of non-federally owned historic sites. Section 2(b) of the Order pertains only to historic sites located on federally-owned land. . Letter from Rogers C. B. Morton, Secretary of the Interior, to Governor Burns of Hawaii, May 13, 1974. . Hawaii Rev.Stat. §§ 6-16.1, 6-16.2(1 l)(g) (1974 Supp.). . The State’s review board acted on the basis of a motion from one of its members that, in view of “deficiencies and apparent inaccuracies in historical information” and “inconsistencies in legendary material that has been presented,” the Moanalua Valley “be given a marginal status.” The same member stated that his motion would not preclude the later submission of additional information that might qualify the Valley for a higher classification. Minutes of the Meeting of the Hawaii Historic Places Review Board, August 5, 1974. . United States Dept, of Transportation, Federal Highway Administration, Memorandum from the Associate Administrator for Right-of-Way and Environment to the Regional Federal Highway Administrator, San Francisco, September 19, 1974. . “Jurisdiction means the right to say and the power to act; and, as between agencies of the government, jurisdiction is the power of that particular agency to administer and enforce the law.” Carroll Vocational Institute v. United States, 211 F.2d 539, 540 (5th Cir.), cert. denied, 348 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657 (1954). The NHPA authorizes the Secretary “to expand and maintain” the National Register, and the only requirement for a property’s inclusion in the Register is that the property be “significant in American history, architecture, archeology, [or] culture.” 16 U.S.C. Sec. 470a(a)(l) (emphasis added). The Act does not distinguish in any way between properties of “national” significance and those of “state or local” significance. There is nothing whatsoever in the Act or its legislative history to indicate that the Secretary may name some properties to the Register — those of importance in the history of a region, state, or locality — only after obtaining the concurrence of state and local authorities. For the purposes of the Register, properties of national, state, and local significance are treated equally. They all are deemed significant in American history, and they should be. If it should be held that the Interior Secretary has no power to determine that properties have state or local historic significance, there would, in our view, be a virtual nullification of the NHPA and Section 4(f). Only properties of “national” significance would have any lasting protection from destruction. Whenever a city or state preferred a Federally-funded highway to an historic site, the local body could simply declare the site insignificant. Such a holding would be without precedent and would completely defeat Congress’s clear attempt to protect such properties by passing the NHPA and 4(f). The Advisory Council’s regulations, upon which the appellees have relied, undoubtedly support our interpretation of the Secretary’s power under the NHPA. Those regulations require Federal agency officials to request opinions from the Interior Secretary concerning a property’s eligibility for inclusion in the Register. The Secretary’s opinion is then said to be conclusive. 36 C.F.R. Sec. 800.4 (1975). The regulations do not require the concurrence of a state or local preservation official before the Secretary may conclude that a property is eligible for the Register. Further, in our view, there has been nothing irregular or precipitous about the Interior Secretary’s decision concerning the Valley with which we are concerned. The Secretary acted on the basis of an application submitted by the Moanalua Gardens Foundation, on forms provided by the Secretary for the purpose of making such nominations, and upon the expert recommendations of the Advisory Board on National Parks, Historic Sites, Buildings and Monuments and the Advisory Council on Historic Preservation. Indeed, the Secretary’s decision concerning the Valley followed essentially the same channels as did his determination concerning Pohaku ka Luahine, and not even the appellees have questioned the validity of the latter decision. . See also Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 386 (1973). Appellees contend that Named Individual Members 'is distinguishable from the instant appeal because there the city council did not find the park to be of no significance but only stated that the park was of “secondary” importance to the highway. We note that, somewhat similarly, the Hawaii Historic Places Review Board did not specifically find Moanalua to be of no historic significance. The Board classified the Valley as having “marginal” significance. See note 11 supra. As do the appellees here, the Highway Department in Named Individual Members argued that the local body’s action constituted a finding of no significance. Named Individual Members, 446 F.2d at 1026. Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 620-23 (3d Cir. 1971), presented a different issue. There, the question was whether certain forest lands, owned by the State of Pennsylvania, had ever been set aside by the State as parkland or for other public recreational uses. The court held that the Secretary of Transportation was entitled to rely on an opinion letter from the State’s Attorney General which stated that the lands had not been set aside for such purposes. . Section 4(f) focuses on Federal, not state or local, activities. It forbids the Secretary of Transportation from approving the use of Federal funds for highway projects not meeting the section’s requirements. The statute has no application to purely state or local construction efforts. Section 4(f) begins by requiring, as a matter of national policy, that special effort be made to preserve historic sites. In view of the section’s focus and obvious purpose, we simply cannot believe that either the Transportation Secretary or our court can ignore or avoid the Interior Secretary’s pronouncement concerning the Valley. We have concluded that under section 4(f) the Interior Secretary undoubtedly had the power, or jurisdiction, to investigate Moanalua, and while he decided that the Valley was not significant in the evolution of our history as a Nation, he nevertheless concluded that the Valley was likely of importance in our history as a people (i. e., significant in American history) and consequently declared the property eligible for the Register. His finding, when fitted into the mold of section 4(f), constitutes a finding of state or local significance. Congress’s use of the plural “officials” in section 4(f) supports our interpretation of the statute’s meaning. If the statute had read “as so determined by the Federal, State, or local official having jurisdiction thereof,” it could then be interpreted as meaning that only the appropriate state official could determine that a site has state significance, etc. That is not what the statute says. The legislative history of section 4(f) indicates that Congress inserted the language in question into the statute in order to broaden the statute’s applicability. There is no hint in either the committee reports or the floor debates that Congress was seeking, by using the language, to give state and local officials power to vitiate Federal determinations that park-lands or historic sites are significant. One of Congress’s objectives was to require the Transportation Secretary to apply the statute whenever state or local officials declare a property significant, regardless of what Federal officials might think of the site. Congress’s other goal was to guard against the situation wherein state or local officials decide that they would rather have a highway than a park or historic site and consequently declare the property to be insignificant. It is inconceivable that Congress intended that a local agency, by action or inaction, could disempower the Federal government, in a situation involving Federal funds, from preserving a site of historical American significance. In the Senate’s floor debate on the conference report pertaining to 4(f), Senator Yarborough asked Senator Randolph, who chaired the conference committee, the very question that concerns us: [Senator Yarborough], The question has been raised that, if the local authorities said that a site had no historic significance, engineers could ram a highway through regardless of a site’s being of historic significance. Is that correct? MR. RANDOLPH. No; they could not ram it through, as the Senator has said. MR. YARBOROUGH. Do the Secretary of Transportation and the highways officials of the Federal Government have the power to apply this provision of the bill as written even though the local officials say such a site has no significance? MR. RANDOLPH. Under their power to approve plans, specifications, and estimates they can review such decisions. * * * * * * MR. YARBOROUGH. * * * If you run a highway through a long, slender park . . you do not have to pay any tax money for right-of-way. Thus the city council, hard pressed for money, is seeking to run a highway right through the center of one of the best parks in the State. MR. RANDOLPH. We are not going to allow that. [Indicating that the Federal power is transcendent.] 114 Cong.Rec. 24036-37 (1968). The only commentator to consider the question also agrees with our interpretation of section 4(f): Historic sites present special problems. Unlike the other protected lands they need not be publicly owned. When they are not publicly owned, no presumption of a determination of significance can arise from the fact of public maintenance since normally only publicly owned property is publicly maintained. It is, on the other hand, customary for historic sites to be designated as such by someone such as a local or state landmarks commission, or by the United States Department of the Interior. Any such designation is presumably equivalent to a determination of significance for purposes of section 4(f). The determination may be made by any of the local, state or federal officials who can claim to have “jurisdiction thereof.” For these purposes “jurisdiction” may refer to more than merely political authority, although governing bodies having general jurisdiction over the land in question would be able to trigger the application of the last sentence of Section 4(f) by declaring their determination of the significance of land which they wish to protect. An agency which is authorized to decide that properties have historic importance may be regarded as having “jurisdiction” over determinations of historic significance. Some properties, for instance, are listed by the Secretary of the Interior in the National Register of Historic Places.129 It is inconceivable that a National Register property could be regarded as ineligible for protection under section 4(f), regardless of whether it was considered “significant” by the local or state governing bodies having political jurisdiction over the property. A similar triggering function may inhere in a local or state historic society, if it has official status to designate landmarks. It might also be found in a state parks or recreation commissioner with respect to local parks which he has the authority to classify for state purposes, although they may not be under his administrative control. (Emphasis added) Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 386 (1973). . Letter, supra note 9. . Our interpretation of Secretary Morton’s letter is supported by a subsequent letter from Nathaniel P. Reed, Assistant Secretary of the Interior, to Acting Governor Ariyoshi of Hawaii. Secretary Reed’s letter states, in pertinent part: As was explained in Secretary Morton’s May 13 letter to Governor Burns, our evaluation of the eligibility of Moanalua Valley for inclusion in the National Register was not made pursuant to Section 2(b) of Executive Order 11593, since the property is not in public ownership. * * * * * * I would like to reiterate . . . that once we assist an agency in making an evaluation on a property, it is the agency’s responsibility to assess its own legal obligations under Federal law. The Secretary of the Interior is not at liberty to exempt the Department of Transportation from that obligation. . The alternatives discussed range from not building H-3 but instead improving, in various ways, the existing Pali and Likelike Highways, to placing H-3 along different routes across Oahu. Appellants contend that the City of Honolulu, containing a major portion of Oahu’s population and undeniably having a vital interest in the trans-Koolua traffic flow, supports an alternative to the construction of H-3 which would add to the Likelike Highway a single, reversible-flow lane, to be used exclusively for public bus transportation. . The Secretary’s own procedures do, however, contemplate the preparation of combined “environmental impact/Section 4(f)” statements. See Dept, of Transportation, Federal Highway Administration, Policy and Procedure Memorandum 90-1, reproduced at 23 C.F.R. 15-26 (1974).

Stop H-3 Ass'n v. Coleman

WALLACE, Circuit Judge (concurring and dissenting): I concur that this case must be remanded but cannot agree with the route the majority takes to that end, nor with what it requires. The most troublesome issue for me in this case pertains to the petroglyph rock but since the majority reverses largely on the basis of the protection supposedly accorded the Moanalua Valley, I will treat those issues first. I. Moanalua Valley While all who legitimately attempt to preserve the beauty and historical significance of our environment are to be applauded, our responsibility as .judges, as I see it, is to determine whether the congressionally mandated procedures for protection require halting an approved construction project. Our review, thus, is a narrow one, not broadened by policy considerations we might inject if we were the Congress. Therefore, the sole issue in this case with respect to the valley is whether it is an historic site of national, state or local significance as determined by the federal, state or local officials having jurisdiction thereof. If so, construction of H-3 must be enjoined pending the special findings required of the Secretary of Transportation by the Department of Transportation Act of 1966 section 4(f), as amended, 49 U.S.C. § 1653(f), and the Federal-Aid Highway Act of 1966 section 15(a), as amended, 23 U.S.C. § 138 (the two sections are virtually identical and will hereafter be referred to together as “section 4(f)”). If not, the district court’s denial of an injunction on this ground must be affirmed. The facts are not seriously in dispute: the Secretary of the Interior has determined that the valley “may be eligible” for inclusion on the National Register of Historic Places; the Hawaii Historic Places Review Board determined that the valley had only “marginal” significance, an equivalent term for “no” significance, and was therefore not entitled to any protection under state historic site preservation laws. See Hawaii Rev.Stat. § 6-1 et seq. (1968, Supp.1973). The plaintiffs-appellants (appellants) assert a novel theory, rejected by the district court, which involves the use of a different statute out of context to find the bootstrap necessary to inject the Secretary of the Interior as the decision maker pursuant to section 4(f). The problem they must overcome is that the valley has no national historic significance. The local authorities did not find that it had local historic significance. Thus, they must show (1) the Secretary of the Interior found the valley had local historic significance and (2) he is an official allowed to make such a finding pursuant to section 4(f). Therefore, they pose the argument that the Secretary of the Interior has authority under the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq. (NHPA), to determine the state and local historic significance of places in passing on nominations to the National Register and is therefore one of the officials having jurisdiction over the valley whose determination of historic significance triggers section 4(f) protections. This is the argument relied upon by the majority in reversing the decision of the district court and with which I cannot agree. Turning to the statute appellants claim injects the Secretary of the Interior into section 4(f) decisions, I conclude that the Secretary had no authority based upon the facts of this case to place the valley on the National Register. Thus, even if appellants’ theory were accepted that the NHPA in some fashion allows the Secretary of the Interior to decide a site has local historic significance, it would avail them nothing based upon the record in this case. Section 101(a)(1) of the NHPA, 16 U.S.C. § 470a(a)(l), provides that the Secretary of the Interior is “to expand and maintain” the National Register. The Act does not expressly specify the procedure for determining which properties are to be listed on the National Register but a reasonable interpretation of all the available sources indicates that properties of state and local historic significance are not to be listed by the Secretary of the Interior unilaterally without an initial determination of significance by state officials. Supporting this view, section 101(a)(1) of the NHPA provides that the Secretary of the Interior shall grant funds to the states for statewide historic surveys to be conducted by the states. Executive Order 11593 promulgated to implement the NHPA provides that the Secretary of the Interior’s role under the Act is merely to encourage state and local officials to nominate federally-owned properties to the National Register, Executive Order 11593 § 3(a), 3 C.F.R. 154 (Supp.1971), 16 U.S.C. § 470, and to advise federal agencies in the identification of historic sites. Id. § 3(f). Of most significance is the notice published in the Federal Register by the Department of the Interior for the purpose of increasing “awareness of the means by which properties of State and local historical significance may be nominated for placement in the National Register . . . 39 Fed.Reg. 6402 (1974). It is critical to realize that this notice states that while under prior law (specifically, the Historic Sites Act óf 1935, 16 U.S.C. §§ 461 et seq.) the National Register included only nationally significant properties which were few in number, the NHPA “provides a means for States to nominate properties of State and local significance for placement in the National Register.” 39 Fed.Reg. 6402 (1974) (emphasis added). The notice then sets forth the procedures for nominations by state officials and the criteria to be used by the National Park Service in reviewing the nominations. 39 Fed.Reg. 6403-04 (1974). Nowhere in the NHPA, the Executive Order, or the applicable regulations is the Secretary of the Interior given the authority unilaterally to determine that a property has state or local historic significance. The appellants place great emphasis on regulations promulgated by the Advisory Council on Historic Preservation, an advisory body created by the NHPA, 16 U.S.C. § 470i. These regulations arguably confer some authority on the Secretary of the Interior to determine the state and local historic significance of properties but the regulations also restrict his part in the decision-making process and give no assistance to appellants’ contention that the Secretary of the Interior possesses unilateral decision-making authority. The regulations provide that even though the NHPA protects only properties actually listed on the National Register, properties merely “eligible” for listing should also be protected. To this end, the “Agency Official” of the federal agency contemplating an undertaking (here, the Secretary of Transportation) is given the burden of identifying the properties within the undertaking’s potential environmental impact which are listed or eligible for listing on the National Register. Only if, after consulting with the appropriate state historic preservation officer and applying the National Register criteria set forth in the regulations, the agency official determines that a property “appears to meet the Criteria, or if it is questionable whether the Criteria are met,” is he required to “request, in writing, an opinion from the Secretary of the Interior respecting the property’s eligibility for inclusion in the National Register.” 36 C.F.R. § 800.-4(a)(2) (Supp.1975). The Governor of Hawaii has designated the chairman of the state Department of Land and Natural Resources as the state liaison officer responsible for state activities under the NHPA. See 39 Fed.Reg. 6402 (1974). The Federal Highway Department Division Engineer consulted this official concerning the eligibility of the valley for listing on the National Register as a property of state or local significance and was informed by letter of March 6, 1974, that the valley clearly did not meet the National Register criteria. Appellants nevertheless argue that in this case the valley’s eligibility for National Register listing was at least “questionable,” especially in light of the Secretary of the Interior’s published determination that the valley “may be eligible” for listing. They claim that in these circumstances, the regulations clearly give the Secretary of the Interior “jurisdiction” within the meaning of section 4(f) to determine the valley’s local (not national) historic significance. But the regulations clearly put the initial burden of determining the eligibility of a site for National Register listing on the agency supervising the undertaking, here the Department of Transportation, and give the Secretary of the Interior no authority to make any determination until he has been asked for an opinion. Here the Secretary of Transportation consulted the appropriate state official who advised that the valley clearly was not eligible for listing. The Transportation Secretary never requested a ruling from the Secretary of the Interior and the Secretary of the Interior therefore had no authority under the regulations to make any determination with respect to the significance of the valley. It can be properly inferred that the Secretary of the Interior realized this was true when, in his letter to the Governor of the State of Hawaii, he deferred to the Secretary of Transportation’s exclusive authority to make any such determination. The majority does not confront this point directly but instead asserts that the failure of the Secretary of Transportation to seek the Secretary of the Interior’s opinion was “wholly inexcusable.” They argue that the valley’s significance was at least “questionable” in light of its “nomination” to the National Register by the private Moanalua Gardens Foundation and the studies of the valley by the state’s Historic Places Review Board and the national Advisory Council. Yet the local historic significance of the valley was not determined by the Advisory Council or the Secretary of the Interior until 1974, after the determination by the chairman of the state Department of Land and Natural Resources that the valley was clearly not eligible for National Register listing, after design approval of H-3 by the FHWA, and after the original complaint in this action was filed. Moreover, appellants have never alleged an abuse of discretion by the Secretary of Transportation in not seeking the Secretary of the Interior’s opinion. In these circumstances, especially in light of the determination of no historic significance by the state official whom the Secretary of Transportation is required to consult by the very regulation relied upon by appellants, the propriety of the failure of the Secretary of Transportation to seek the Interior Secretary’s opinion should not be in issue. However, even if appellants were correct, which they were not, and the Secretary of the Interior could be said to have “jurisdiction” of the valley pursuant to this regulation, the regulation itself does not apply to this case. The regulations were issued under the authority of Executive Order 11593 § 1(3), 3 C.F.R. 154 (Supp.1971), 16 U.S.C. § 470, which requires federal agencies to establish procedures to insure that federal activities contribute to the preservation and enhancement of non-federally owned historic sites. Thus, the Advisory Council in promulgating the regulations merely “recommends that Federal Agencies use these procedures as a guide in the development of their [own] required internal procedures.” 36 C.F.R. § 800.1(b)(2) (Supp.1975) (emphasis added). In this regard, the Department of Transportation had adopted its own internal procedures for historic preservation more than a year earlier. Policy and Procedure Memorandum 90-1, 37 Fed.Reg. 21809, 21812 (1972), 23 C.F.R. Pt. 1, App. A (Supp.1974). These procedures afforded NHPA protections only to properties actually listed on the National Register and not to those merely “eligible” for listing. The procedures gave the Secretary of the Interior no role in the identification of historic properties. The same memorandum also prescribed procedures for compliance with section 4(f). Specifically, “[t]he HA [in this case, the state highway department] shall request a determination of significance from the section 4(f) lands agency . . .” Id. H 6(c)(1). The memorandum does not elaborate on the identity of the “section 4(f) lands agency” but use of the singular “agency” negates appellants’ argument for concurrent “jurisdiction” of the Secretary of the Interior over historic sites of local significance. On December 2, 1974, the Department of Transportation promulgated new regulations which implicitly afford NHPA protections to properties merely eligible for listing on the National Register by requiring that the section 4(f) statement (if any) include evidence that the Advisory Council’s recommended procedures have been followed for such properties. 23 C.F.R. § 771.19(b) (Supp.1975). Significantly, however, the new regulations also provide that “[a] section 4(f) statement is not required when the Federal, State or local official having jurisdiction over a park, recreation area, refuge or historic site determines that it is not significant” (id. § 771.19(c)), apparently even if the property has been determined to be “eligible” for National Register listing by the Secretary of the Interior. To sum up, the Secretary of the Interior has no authority to make a unilateral determination of the local significance of an historic site for section 4(f) purposes. The majority’s final argument is that even if the Secretary of the Interior is not expressly given the authority unilaterally to determine a site’s local historic significance by any of the statutes, orders, or regulations cited by the appellants, none of those provisions preclude such power. I find no authority for nor could I endorse a doctrine that the Secretary of the Interior has all powers under the NHPA not expressly withheld from him. In my judgment, such a philosophy has extreme potential dangers. But even if I were to concede that the Secretary of the Interior has such authority, I do not think that he would be an official with jurisdiction to determine local historic significance of the valley within the meaning of section 4(f). Turning then to section 4(f) itself, it was originally enacted in 1966 as part of the Department of Transportation Act. The section provided in part: “[T]he Secretary [of Transportation] shall not approve any program or project which requires the use of any land from a public park, recreation area, wildlife and waterfowl refuge, or historic site unless . . . .” Act of October 15, 1966, Pub.L. No. 89-670, § 4(f), 80 Stat. 934. This section and section 15(a) of the Federal-Aid Highway Act of 1966, which had been similar, were amended in 1968 so as to be virtually identical. Act of August 23, 1968, Pub.L. No. 90-495, § 18, 82 Stat. 823. The new statute provides, with the major 1968 additions emphasized: (f) It is hereby declared to be the national policy 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) (referred to herein as “section 4(f)”). I think it clear from an examination of the language of the statute itself and the legislative history that whatever authority the Secretary of the Interior may have with respect to the valley under the NHPA, he is not an official with jurisdiction of the valley within the meaning of this statute. Before the 1968 amendment, the statute appeared to leave to the Secretary of Transportation, as the official who was to approve project or program plans, the determination whether land at issue indeed was a public park, recreation area, wildlife refuge, or historic site. See Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 621-22 (3d Cir. 1971). But the statute as amended in 1968 requires that a protected historic site have “national, State, or local significance” as determined by “the Federal, State, or local officials having jurisdiction thereof.” While the language may not be crystal clear, I think that the determination of the state or local historic significance of a privately-owned site such as the valley must be made by the state or local officials in charge of state or local historic preservation activities. See Pennsylvania Environmental Council, Inc. v. Bartlett, supra, 454 F.2d at 622-23; Environmental Defense Fund v. Brinegar, 6 E.R.C. 1577, 1593-94 (E.D.Pa.1974); Lathan v. Volpe, 350 F.Supp. 262, 267-68 (W.D.Wash.1972), vacated in part on other grounds sub nom. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974 ) (en banc). Appellants argue that the use by Congress of the plural “such officials” in section 4(f) demonstrates congressional recognition of the concurrent power of local and federal officials to determine the local significance of historic sites. However, the use of the plural could just as easily be an accommodation to state laws which may lodge historical preservation functions in more than one official. Further, a logical reading of that part of section 4(f) in the context of the question before us resolves the issue against appellants. The statute prohibits the Secretary of Transportation from approving any project “which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge [in three categories, i. e.] of national, State or local significance as determined by [three autonomous groups, i. e.] 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 . . . .” Applying logical canons of construction to this statute, it declares that each category of property is tied to its appropriate overseer insofar as jurisdiction and the rendering of at least the initial determination of significance are concerned. Each of the three categories is thus tied, respectively, to each of the designated officials; i. e., federal officials to property of “national” significance; property having state significance, to state officials; and property of local significance, to local officials. If this is true, the “as so determined by such officials” clause in section 4(f) would seem to me to require in this case a determination by the local (or perhaps state) officials as a condition precedent to bringing the section 4(f) protections into play. However, whatever ambiguity may appear from the language of the statute is resolved by the legislative history. The committee report accompanying the Senate version of the Federal-Aid Highway Act of 1968 (which included the amendments under discussion here) noted: “The importance of the involvement of local officials in route selection, the public hearing process, and the resolution and establishment of community goals and objectives cannot be overstated. . . . With respect to a number of proposals contained in S. 3418, as reported, local authorities would be vital participants.” S.Rep.No.1340, 90th Cong., 2d Sess. 11 (1968), reprinted in 1968 U.S.C. Cong. & Admin.News 3482, 3492. While this passage of the report does not refer specifically to the role of local officials in determining the local historic significance of sites under section 4(f), the intent of Congress is made clear by an exchange on the floor of the Senate during discussion of the bill reported by the Conference Committee where the amendment of section 4(f) provoked one of the longest discussions. Senator Randolph, the leader of the Senate conferees, during a lengthy discussion provoked by the amendment of section 4(f) explained the theory thusly: “[I]t is important that the local people have a leadership. They can properly understand the importance of places that someone from afar may not realize. The importance of such places can only be understood by local people.” 114 Cong.Rec. 24029 (1968) (emphasis added). Some of the Senators, particularly Senator Yarborough of Texas who remembered the Brackenridge-Olmos Park lands case, see Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972), voiced the concern that local officials might determine that a park important to the local people was not “significant” within the meaning of section 4(f) so as to avoid the section 4(f) protections and the possibility of having to obtain a costly privately-owned alternate right-of-way. Senator Randolph’s response to this concern was not the contention asserted by the appellants that the determination of local significance is not exclusively delegated to local officials by section 4(f). Indeed, he seemed to concede the exclusive authority of local officials by answering that the only protection against local approval of the use of parklands and historic sites was the Secretary of Transportation’s authority under Title 23 to use his independent judgment in approving or disapproving highway construction plans. 114 Cong. Rec. 24036-37 (1968). Senator Randolph’s interpretation of the amendment concerning the sole federal check on local determination of historical nonsignificance finds support in the most recent regulations promulgated by the Department of Transportation pertaining to section 4(f) procedures. The regulations provide that no section 4(f) statement is required where the official with jurisdiction determines that the property is not significant. But in that case, the regulations require: “The FHWA [Federal Highway Administration] Division Engineer shall review the agency’s non-significance determination to assure himself of the reasonableness of such determinations.” 23 C.F.R. § 771.19(c) (Supp.1975). Thus, there can be no reasonable doubt, in my judgment, that Congress did not intend the Secretary of the Interior to have authority to decide unilaterally whether local sites have historical significance. On the contrary, the legislative history of section 4(f) is clear: the protections extend to an historic site of state or local significance only if the state or local officials with authority to pass on historic values determine that a given site is significant. In this case, the state officials with such authority did not determine that the valley had historic significance, the Secretary of Transportation did not exercise his independent veto power and, therefore, no section 4(f) findings were required. II. The Petroglyph Rock The petroglyph rock presents a different problem. The rock was placed on the National Register of Historic Places by the Secretary of the Interior after being nominated by the state Historic Places Review Board. The Board’s nomination of the rock should be considered a finding of local historic significance by state officials with jurisdiction so as to trigger section 4(f) protections, assuming the other prerequisites are met. Besides “significance,” section 4(f) requires that the project “use” the historic site. The appellants alleged that H-3 would use the rock but the trial court made no findings on the issue and the point has not been argued during this appeal. Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972), requires a broad construction of the word “use” so as to require section 4(f) statements wherever there is a substantial question of adverse impact. In that case, we held that the encirclement of a public campground by the challenged highway was a “use” of the campground. In Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F.Supp. 627, 638-39 (D.Vt.1973), aff’d, 508 F.2d 927 (2d Cir. 1974), the court held that construction of a highway adjacent to a potential wilderness area was a “use” of that land. In both of these cases, however, the significance of the recreation area depended on its solitude and isolation which would be jeopardized by construction of the highway. In this case, on the other hand, the significance of the rock is primarily as an object of viewing and study which could actually be facilitated by the construction of the highway. This view is supported by the findings of the state Historic Places Review Board. The application for listing on the National Register attached great significance to the rock itself but did not give any weight to the rock’s particular location. On the contrary, the Board has found that the valley is only of “marginal” significance. On the record before us, I doubt whether the appellan s have established that the highway would “use” the rock within the meaning of section 4(f). Since the trial court made no findings on the issue, however, I would remand the case for a hearing and a determination by the district judge. Although we have held that the determination of “use” of a site by a highway is .a question of law and not fact, Brooks v. Volpe, supra, 460 F.2d at 1194, we cannot resolve the legal issue in the absence of evidence and findings on the effect of the highway on the rock. I am not of the opinion that any of the other issues raised by the appellants require reversal and therefore would reverse and remand only to the limited extent indicated above. . The letter stated in part: In response to a recent request from the Council, we provided such an evaluation of Moanalua Valley. It reflected the consensus of the Advisory Board and the professional judgment of the National Park Service that, although not of national significance, Moanalua Valley possessed historical and cultural values of at least local dimensions and, therefore, could meet the less stringent criteria of the National Register for sites of local significance. In making this assessment, we have discharged a responsibility vested in the Secretary of the Interior by the National Historic Preservation Act and section 3(f) of Executive Order 11593. I want to make clear that this assessment does not constitute a determination of prospective eligibility for National Register designation pursuant to section 2(b) of the Executive Order, and does not, therefore, have the effect of requiring consultation on this matter between the Secretary of Transportation and the Advisory Council on Historic Preservation. The Department of Transportation is, of course, solely responsible for determining which provisions, if any, of the Executive Order, the National Historic Preservation Act, the Department of Transportation Act, and the National Environmental Policy Act are applicable to this undertaking. I understand that pending litigation on at least some of these issues must be favorably resolved before work on the highway can proceed. I hope this letter has clarified the responsibilities and actions of the Interior Department in relation to those of the Advisory Council and the Department of Transportation. . The majority states at page 438, ante, that both the petroglyph rock and the valley were nominated by the Moanalua Gardens Foundation for National Register listing. The majority then argues in footnote 13, ante, that there was nothing irregular in the nomination of the valley and that the procedure was “essentially” the same as that leading to the National Register listing of the petroglyph rock, the validity of which the appellees do not challenge. While it is true that the valley was nominated by the Moanalua Gardens Foundation, the petroglyph rock was in fact nominated by Hawaii’s state Department of Land and Natural Resources. This not only undercuts the argument of the majority but is significant evidence supporting the position taken in this concurring and dissenting opinion. Further, the National Park Service form 10-300 (July 1969), upon which both nominations were made, includes an item 12, “State Liaison Officer Certification,” which reads in part: “As the designated State Liaison Officer for the National Historic Preservation Act of 1966 (Public Law 89-665), I hereby nominate this property for inclusion in the National Register and certify that it has been evaluated according to the criteria and procedures set forth by the National Park Service.” The inclusion of this item on the form is consistent with my reading of the NHPA as limiting the Interior Secretary’s statutory duty “to expand and maintain” the National Register to evaluation of nominations made in the first instance by designated state officials. Significantly, this item is at least partially filled in on the form nominating the petroglyph rock, including a designation of the title of the certifying officer as “Chairman and Member Board of Land and Natural Resources”; it is left completely blank on the form “nominating” the valley. That the Interi- or Secretary appreciated the significance of this difference no doubt explains why he placed the rock on the National Register, 39 Fed.Reg. 6422 (1974), but determined only that the valley “may be eligible” for such listing. Id. at 16175-76. . Appellants assert, on the other hand, that a declaration by local officials of a preference for a highway through a locally significant site does not obviate the need for the special findings required by section 4(f) before the highway can be built. Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1025-27 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), reversing 309 F.Supp. 1189, 1195 (W.D.Tenn.1970). These cases are distinguishable in that the sites involved were admittedly “of local significance”; the local officials nevertheless declared their preference for a highway. In this case, on the other hand, the local officials have not declared a preference for a highway through a locally significant site; they have determined that the site is not locally significant. The distinction is important because there are much greater local political constraints against declaring a locally important site “insignificant” than against declaring a preference for a highway. See Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 384-85 (1973). Finally, it is noteworthy that the appellants here have not directly attacked the local officials’ determination that the valley is not significant as an abuse of discretion or against the law. Their only contention is that the Secretary of the Interior’s contrary determination is enough to trigger the section 4(f) protections, a contention which I would reject.

Ely v. Velde

SOBELOFF, Senior Circuit Judge: This appeal calls upon us to consider an alleged conflict between several recently-formulated federal policies. On the one hand, there is a congressional commitment against federal interference with a state’s use of federal funds allocated to it for law enforcement; and, on the other, there are congressional mandates to all federal agencies to act so as to preserve and protect the natural environment and the historic and cultural foundations of the nation. Appellants, who are residents of the Green Springs area of Louisa County, Virginia, brought an action to halt the proposed funding and construction in their neighborhood of a Medical and Reception Center (“Center”) for Virginia prisoners. To this end, they sought to enjoin appellees Richard W. Velde and Clarence M. Coster, Associate Administrators of the Law Enforcement Assistance Administration (“LEAA”), from allocating to Virginia $775,000 of federal funds for the construction of the Center. The complaining residents prayed, in addition, for an injunction against Otis L. Brown, Director of the Virginia Department of Welfare and Institutions, to prevent him from locating the contemplated institution in Green Springs. The Complaint of the residents in the District Court alleges that the National Environmental Policy Act of 1970 (“NEPA”) requires both the LEAA and the State of Virginia to (1) take into account, in the funding and location of the Center, the possible effects the Center might have on the Green Springs natural environment and (2) prepare an “impact statement” detailing these possible effects, before proceeding with the funding and construction of the Center. A further claim of the residents was that the National Historic Preservation Act (“NHPA”) requires the LEAA and the State of Virginia to consider the .effect the proposed Center will have on certain historic properties in Green Springs, and to afford an opportunity to the Advisory Council on Historic Preservation to comment on the undertaking. Since none of the procedures outlined by NHPA and NEPA was observed in deciding upon the funding and location of the Center, the appellants charge the appellees with a violation of these two statutes. In defense of its admitted failure to comply with NHPA and NEPA, the LEAA relies upon certain provisions in Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (“Safe Streets Act”), pursuant to which the grant here at issue was approved. Its position is that the Safe Streets Act prohibits any interference or control of the states by the federal government in the spending of grants, except as expressly authorized by the statute. Thus the LEAA claims it may not look beyond its governing statute and is prohibited, in approving grants, from reading into that statute the requirements of NHPA and NEPA. For his part, appellee Brown, Director ■of Virginia’s Department of Welfare and Institutions, contends that NHPA and NEPA are addressed only to agencies of the federal government and that the state and its officials, even when spending federal funds, are not obliged to follow NHPA and NEPA. I The Green Springs area is aptly described in the District Court’s opinion: Green Springs is an area of land consisting of approximately 10,000 acres located in the Western part of Louisa County. It is a uniquely historical and architecturally significant rural community in that almost all of the homes were built in the nineteenth century and have been maintained in substantially the same condition ever since. Three of the homes, Boswell’s Tavern, Hawkwood and Westend, are on the National Register for Historic Places, as provided in [NHPA]. The proposed Center will consist of at least four concrete-faced buildings, a thirty-foot guard tower and a surrounding fence. It will, in addition, contain parking facilities for 150 cars. Appel-lee Brown estimated that the Center would use 40,000 gallons of water per day to support its projected population of 400 to 500 inmates and 74 correctional officers. The above facts would seem to warrant the application of the procedural requirements of both NHPA and NEPA. While neither the LEAA nor the Virginia Department of Welfare and Institutions complied with these two Acts, the Virginia agency seems to have given consideration to factors such as soil and water requirements. These factors are indeed “environmental” in a sense, but other environmental or cultural factors— the very ones accented in NHPA and NEPA — were not taken into account by either of the agencies in the decisions concerning the Center. In assessing the residents’ claims, the District Court thought it was faced with an irreconcilable conflict between the Safe Streets Act on the one hand and NHPA and NEPA on the other. The court sought to resolve the problems arising from the supposed conflict by applying two familiar rules of statutory construction. First, since the Safe Streets Act was enacted after NHPA, the court held that the later expression of Congress must prevail, thus precluding consideration of historic and cultural factors as prescribed by the earlier NHPA. However, as between NEPA and the Safe Streets Act, the District Court departed from the rule it previously applied and attributed prevailing force to the Safe Streets Act, despite the fact that. NEPA was the later enactment. The court accepted the LEAA’s interpretation which turned on an odd reading of the language of NEPA that commands all federal agencies to observe the procedural duties it imposes “to the fullest extent possible.” The argument advanced was that this phrase made the statute “discretionary,” while the duty of the LEAA to make grants was claimed to be “non-discretionary.” Reasoning from this categorization of NEPA as “discretionary” and the Safe Streets Act as “non-discretionary,” the court was persuaded to apply the rule of construction that in case of conflict, a discretionary statute must yield to a non-discretionary one. II We reject the appellees’ basic assumption that the Safe Streets Act is irreconcilable with NHPA and NEPA. The rules of thumb urged by the LEAA — namely that a later enactment controls earlier legislation and that a discretionary command must yield to a mandatory one — can be useful as aids in statutory construction. But they represent a last resort, to be invoked only when it is impossible to avoid a collision between two statutes and to effectuate both. Where reconciliation is possible,' these rules of thumb do not come into play. Normally there is a strong presumption against one statute repealing or amending another by implication; United States v. Welden, 377 U.S. 95, 102-103, n.12, 84 S.Ct. 1082, 12 L.Ed. 2d 152 (1964); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 84 L.Ed. 181 (1939) (there must be a “positive repugnancy between the new law and the old”). This circuit has similarly applied this approach several times. See, e. g., Fanning v. United Fruit Co., 355 F.2d 147 (4th Cir. 1966). “When two statutes present an apparent conflict, the proper approach is to ascertain the purposes underlying both enactments, not to dispose of the problem by a mechanical rule.” 355 F.2d at 149. See also Baines v. City of Danville, Va., 337 F.2d 579, 590-591 (4th Cir. 1964) (en banc), cert. denied, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1964). Close examination of the purposes and policies of the Safe Streets Act reveals no real antagonism to NHPA and NEPA such as would prevent effectuation of all three statutes. The LEAA insists that it is not obliged to comply — indeed it may not comply — with NHPA and NEPA because it has been disabled, when approving block grants, from imposing any conditions not found in the Safe Streets Act itself. Support for this proposition is claimed in the language and the policy inherent in the Safe Streets Act. In 42 U.S.C. § 3733, Congress specified that’: The [LEAA] shall make grants under this chapter to a State planning agency if such agency has on file with the [LEAA] an approved comprehensive State plan * * which conforms with the purposes and requirements of this chapter. (Emphasis added.) In addition, 42 U.S.C. § 3757 provides that grant funds under the Safe Streets Act can be withheld only if the LEAA finds that there has been a “substantial failure” of the grantee to comply with (1) the Safe Streets Act, (2) regulations and guidelines promulgated by the LEAA, or (3) the state comprehensive plan itself. The LEAA maintains that these two sections specify the only criteria that the states can be required to meet before they become entitled to a block grant. Thus, it is argued, the permissible areas of inquiry with regard to the states’ plans are similarly restricted. The LEAA urges that its reading of the Safe Streets Act is required by the unique policy underlying that Act. Characterizing this policy as a “hands off” approach to federal financial assistance to the states, the LEAA cites several statements by congressional proponents of the Safe Streets Act as indicative of an intention that the federal government play as small a role as possible in the individual states’ spending of allotted funds. Finally, the LEAA places additional reliance on 42 U.S.C. § 3766(a): Nothing contained in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other law enforcement agency of any State or political subdivision thereof. Reliance in the present case is misplaced, for it is plain that the LEAA has overdrawn the “hands off” policy of the Safe Streets Act. Properly read, neither the Act’s language nor its policy prohibits or excuses compliance with NHPA and NEPA. Ill The genesis of the “hands off” approach lies in considerations more subtle than a simple desire to give the states more latitude in the spending of federal money. The dominant concern of Congress apparently was to guard .against any tendency towards federalization of local police and law enforcement agencies. Such a result, it was felt, would be less efficient than allowing local law enforcement officials to coordinate their state’s overall efforts to meet unique local problems and conditions. Even more important than Congress’ search for efficiency and expertise was its fear that overbroad federal control of state law enforcement could result in the creation of an Orwellian “federal police force.” The above-quoted section 3766(a), which forbids federal control over local police and law enforcement agencies, was the congressional solution for these problems. The legislative history reflects the congressional purpose to shield the routine operations of local police forces from ongoing control by the LEAA — a control which conceivably could turn the local police into an arm of the federal government. Senator Eastland described the type of control over local police that was feared as [prescribing] the type of shoes and uniforms to be worn by local law enforcement officers, the type or brand of ammunition to be purchased and used by police departments and many other vital matters pertaining to the day-to-day operations of local law enforcement. Sen.Rep’t No. 90-1097, 90th Cong., 2d Sess., at 222 (1968). Congress could well have been justified in its concern and was reasonable in its reaction — the adoption of section 3766 (a). However, in the absence of unmistakable language to the contrary, we should hesitate to read the congressional solution to one problem — protection of local police autonomy — so broadly as unnecessarily to undercut solutions adopted by Congress to preserve and protect other societal values, such as the natural and cultural environment. It is not to be assumed lightly that Congress intended to cancel out two highly important statutes without a word to that effect. It is our conclusion that Congress, in enacting the Safe Streets Act, did not intend to forbid the LEAA from considering NHPA and NEPA. An LEAA requirement, in every comprehensive state plan and grant application, of enough information to assess the environmental and cultural impact of the proposed plan or grant, would not remotely approach the apprehended “control over any police force or other law enforcement agency.” The instant case presents a prime example. The decision as to the location of the proposed Center is far removed from the everyday activities of state and local police in Virginia. Moreover, it is a decision which, once made, would not invite continued supervision and control by the LEAA. This could not conceivably constitute a step towards the establishment of a “federal police force.” The object of the “hands off” policy in the Safe Streets Act would not be frustrated by LEAA’s compliance with NHPA and NEPA. We are bolstered in this conclusion by the LEAA’s practice of coordinating with other federal legislation. It has faithfully observed the common-sense duty, in the absence of irreconcilable conflict, to dovetail its statute with others. To this end, the LEAA’s own “Guide for Comprehensive Law Enforcement” requires that, in each state comprehensive plan, Separate subsections * * * set forth plan relationships with and procedures established to effect coordination with plans under (a) the Juvenile Delinquency Prevention and Control Act of 1968 (b) the Model Cities Program under the Demonstration Cities and Metropolitan Development Act of 1966 (c) the Highway Safety Act of 196 [6]; In addition, these' guidelines require the states, their subgrantees and contractors to comply with the Civil Rights Act of 1964 and the Justice Department’s regulations thereunder. Given this list of statutes recognized by the LEAA, none of which find explicit expression in the Safe Streets Act, it is anomalous for the LEAA to argue now that there is no room at the inn for NHPA and NEPA. Following the procedural requirements of these two acts would intrude less into state and local affairs than the above-mentioned statutes. Nor, in light of LEAA’s considerable existing coordination with other statutes do we see how compliance with NHPA and NEPA will undercut the sought-after efficiency to be found in state planning and control. Concluding, as we do, that the “hands off” character of the Safe Streets Act is not as sweeping as the LEAA contends, it follows that NHPA, with its unequivocal command to “any federal agency,” must be complied with by the LEAA. We conclude further that NEPA, no less than NHPA, must be followed here. The LEAA misconstrues the import of the language “to the fullest extent possible,” found in NEPA. The quoted language does not render the procedural requirements of NEPA “discretionary.” Rather, the words are an injunction to all federal agencies to exert utmost efforts to apply NEPA to their own operations. In short, the phrase “to the fullest extent possible” reinforces rather than dilutes the strength of the prescribed obligations. Judge J. Skelly Wright has recently written an exhaustive and convincing opinion in Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. July 23, 1971), concerning, in part, the strength of the mandate of NEPA. Although Calvert Cliffs did not deal with the Safe Streets Act, what Judge Wright said in construing the NEPA language “to the fullest extent possible,” is nonetheless highly pertinent to our case. Judge Wright said: We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA’s procedural requirements somehow “discretionary.” Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration “to the fullest extent possible” sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts. (449 F.2d at 1114.) In holding that NHPA and NEPA apply to block grants under the Safe Streets Act, we do not adopt the appel-lees’ argument that the proposed Medical and Reception Center, with its tall, concrete-faced buildings, its fence and its tower, could not possibly present a jarring contrast to the existing architecture and atmosphere in Green Springs. Neither do we endorse the appellants’ allegations that “[building] the penal facility on the Green Springs site will destroy the unique historical and architectural environment of that area.” The merits of. j the respective contentions are not the y issue before us. Indeed, the very pur- | pose of NHPA and NEPA was to place consideration of such issues in a federal administrative forum. It may be that, after observing the procedural requirements of NHPA and NEPA and consid-. ering the environmental and cultural factors as required by those two Acts, the LEAA will conclude that the appellants’ fears are unfounded or that weighing the apprehended damages and dangers from the Center against other relevant considerations, the plans should be allowed to proceed. Or, the LEAA, after con-¡ suiting Virginia authorities, may deem a' modification of the plans desirable andj feasible. We go no further than to di-j rect the District Court to order the* LEAA to proceed in the spirit instructively expounded by Judge Wright in Calvert Cliffs. ‘ If the LEAA, after following the precepts of NHPA and NEPA, makes a good faith judgment as to the consequences, courts have no further role to play. We note, however, that a federal agency obligated to take into account the values NHPA and NEPA seek to safeguard, may not evade that obligation by keeping its thought processes under wraps. Discretion to decide does not include a right to act perfunctorily or arbitrarily. That is the antithesis of discretion. The agency must not only observe the prescribed procedural requirements and actually take account of the factors specified, but it must also make a sufficiently detailed disclosure so that in the event of a later challenge to the agency’s procedure, the courts will not be left to guess whether the requirements of NHPA and NEPA have been obeyed. With regard to NEPA, the statutory-requirement of a “detailed statement * * * on the environmental impact of the proposed action” places a heavy burden on the LEAA. To enable a court to ascertain whether there has been a genuine, not a perfunctory, compliance with NEPA, the LEAA will be required to explicate fully its course of inquiry, its analysis and its.reasoning. IV We turn now to the case against appellee Brown, as Director of the Department of Welfare and Institutions for the State of Virginia. Appellants contend first that, under 42 U.S.C. § 1983, they are entitled to an injunction against the placement of the Center in Green Springs because Brown’s failure to consider the environmental and cultural impact of the proposed Center violated their statutory rights under NHPA and NEPA. The short answer to this contention is that NHPA and NEPA, by their very language, impose no duties on the states and operate only upon federal agencies. An ancillary argument of the complaining parties, not vigorously pressed, is that apart from NHPA and NEPA, the federal Constitution was violated by Brown’s “unreasonable and arbitrary action” in placing the proposed Center in Green Springs. We decline the invitation to elevate to a constitutional level the concerns voiced by the appellants. While a growing number of commentators argue in support of a constitutional protection for the environment, this newly-advanced constitutional doctrine has not yet been accorded judicial sanction; and appellants do not present a convincing case for doing so. Appellants baldly attempt to stretch rights, protected by law against infringement by federal agencies only, to cover the states and their officers in disregard of the plainly limited character of the legislation. They make their assertion without citation" of a single relevant authority and with no attempt to develop supporting reasons. The general concept of conservation and protection of the environment has, in the recent past, made vast advances, prompting the adoption of NHPA, NEPA and other legislation. But without any showing whatever, we are not free to lay upon the State of Virginia new obligations on constitutional grounds. Neither the statutes nor the Constitution confers rights on the appellants which are enforceable vis-a-vis the State of Virginia under 42 U.S.C. § 1983. V To summarize, we hold that the LEAA is duty-bound, in approving the grant at issue here, to comply with the procedural requirements of NHPA and NEPA. We reverse the judgment as to appellees Velde and Coster and we remand for the entry of an appropriate order in accord with this opinion. However, for the reasons stated above, the denial of an injunction against appel-lee Brown is affirmed. Affirmed in part, reversed in part, and remanded. . The LEAA is am agency created by the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 8701, et seq., charged with the administration of that Act, including the approval and allocation of federal grants to the states for various law enforcement purposes. ' See 42 U.S.C. §§ 3711, 3751-3769. . This sum is part of a “block grant” of $4,150,000 to be used by the State of Virginia for a variety of purposes. For an explanation of the term “block grant” see note 8, infra. . 42 U.S.C.A. § 4321, et seq. . Enacted in 1970, NEPA expresses a strong federal policy in favor of preserving the natural environment, including our “historic and cultural heritage.” 42 U.S.C. § 4331. To this end, Congress has directed that “to the fullest extent possible,” all laws, regulations and policies of the United States should be interpreted and administered in accordance with the policies of NEPA. 42 U.S.C. §. 4332(1). In addition to this generalized command, NEPA also imposes specific procedural requirements on “all agencies of the Federal Government.” They must, in connection with “other major Federal actions significantly affecting the quality of the human environment,” prepare a detailed statement of the impact the proposed action will have on the environment, including a discussion of alternatives to the proposed action. 42 U.S.C. § 4332(1) (C). Prior to the making of such an “impact statement,” the agency involved must consult with and obtain the comments of any other federal agency “which has jurisdiction by law or special expertise with respect to any environmental impact involved.” Id. . 16 U.S.C. § 470, et seq. . NHPA, enacted into law in 1966, reflects the congressional desire “that the historical and cultural foundations of the Nation should be preserved * •* * in order to give a sense of orientation to. the American people * * 16 U.S.C. § 470. The Act provides for the creation and maintenance of a “National Register” by the Secretary of the Interior. This National Register is a list of “districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture.” 16 U.S.C. § 470a. Prior to the expenditure of any federal funds in an undertaking which might have an effect on anything listed in the National Register, the head of the federal agency concerned must: (1) take such effect into account in approving the funds to be spent and (2) afford an opportunity to the Advisory Council on Historic Preservation to comment in regard to the undertaking. 16 U.S.C. § 470f. The Advisory Council on Historic Preservation, created by NHPA, advises the President and Congress, as well as state and federal agencies on matters relating to historic preservation. 16 U.S.C. § 470j. . 42 U.S.C. § 3701, et seq. . The Safe Streets Act, which was passed in 1968, is an effort to “assist State and local governments in strengthening and improving law enforcement at every level by national assistance.” 42 U.S.C. § 3701. To do so, the Act provides for planning grants to subsidize the formulation of comprehensive law enforcement plans for each state. See 42 U.S.C. §§ 3721-25. Once a state has submitted its comprehensive plan to the LEAA, and the LEAA finds that the plan “conforms with the purposes and requirements of [the Safe Streets Act],” the state then becomes eligible to receive action grants to carry out its comprehensive plan. 42 U.S.C. § 3733. At this stage, there are two types of action grants available, “block” grants and “discretionary” grants. Block grants are allocated to all eligible states solely on the basis of population and without regard to need. Discretionary grants, on the other hand, are “allocated as the [LEAA] shall determine.” 42 U.S.C. § 3766. Eighty-five percent of the money appropriated by Congress for law enforcement action grants is given to the states in the form of block grants. Discretionary grants comprise the remaining fifteen percent. Id. . Ely v. Velde, 321 F.Supp. 1088, 1089 (E.D.Va.1970). The proposed Center will be 3 miles from Boswell’s Tavern, 2 miles from Westend, and y2 mile from Hawkwood. . See notes 4 and 6, supra. . 42 U.S.C. § 4332. . In its brief, the LEAA concedes, however, that it “can and will comply” with both NHPA and NEPA with respect to its discretionary grants to the states. . See 114 Cong.Rec. 14,757-758, May 23, 1968 (remarks- of Senator Thurmond) ; 114 Cong.Rec. 14,753, May 10, 1968 (remarks of Senator Dirksen). . As the agency charged with the administration of the Safe Streets Act, LEAA professes that its interpretation of that Act is entitled to great weight and should not be overturned in the absence of arbi- ' trariness or a clear error of law. We are of the opinion that the LEAA’s interpretation is entitled to no such weight. The Safe Streets Act is' not the only statute under consideration here. What we are called upon to decide is the relationship of three statutes, eaeli of which creates an agency charged with its own administration. And the views of these three agencies on the points at issue here are not unanimous. The Council on Environmental Quality, as the agency created by NEPA, interprets its governing statute as binding on all federal agencies, “unless existing law applicable to the agency’s operations expressly prohibits or makes compliance impossible.” CEQ Guidelines, 36 Fed. Reg. 7724 (1971). Additionally, the Advisory Council on Historic Preservation, created by NHPA, has opined that the LEAA’s interpretation is in error. See Advisory Council on Historic Preservation, Issue Paper on Revenue Sharing and Historic Preservation, May 24, 1971. The Supreme Court has recognized that administrative practice is not entitled to special weight when, as here, it clashes with the interpretation given by other agencies to statutes they were created to administer. See United States v. Town-sley, 323 U.S. 557, 568, 65 S.Ct. 413, 89 L.Ed. 454 (1945). We therefore do not accord a presumption of correctness to the interpretation of the LEAA. - . See 114 Cong.Rec. 12824, May 10, 1968 (remarks of Senator Hruska). . Congressman Cellar, chairman of the committee that drafted the House version of § 3766(a), declared that this section should “dispel * * * any qualms about this bill having any tendency to set up a Federal police force * * 113 Cong.Rec. 21,083, August 2, 1968. Other Representatives articulated the same concern to which Congressman Cellar was responding. For example, Representative Hutchinson remarked, “I do not believe the American people want a federal policeman patrolling their streets.” 113 Cong.Rec. 21,188, August 3, 1967. See also Sen. Rep’t No. 90-1097, 90th Cong., 2d Sess., at 227 (1968). . Counsel for appellee Brown stated in oral argument that if federal funds for the Center were not forthcoming, Virginia would build the Center without them. While it might be said that this would frustrate the purposes of NHPA and NEPA, such a result would be the product of the congressional decision to have these two statutes apply only to federal agencies. In any case, Virginia’s unwillingness to comply with NHPA and NEPA would still not provide the LEAA an escape from its obligations. . LEAA, Guide for Comprehensive Law Enforcement, January, 1970. . Id. at 59. . Id. at 39. See 28 C.F.R. Part 42 for the applicable Justice Department regulations. Failure to comply with the regulations of the LEAA can result in the termination of grant fund payments. 42 U.S.C. § 3757. . 16 U.S.C. § 470f. The mandatory character of NHPA, as found by the District Court, is not disputed by any of the parties in this appeal. . We are aware that NEPA requires the ' preparation of an environmental impact statement only in connection with a “major federal action.” 42 U.S.C. § 4332 (2) (C). The LEAA has intimated that, since federal involvement in the proposed Center extends only to providing twenty percent of the construction costs, there is no “major federal action.” Even assuming that this degree of federal financial involvement would not qualify as a major federal action, we think that, in view of the LEAA’s overall involvement in the promotion and planning of the Center, as well as the cumulative impact of the proposed federal action, the NEPA definition of “major federal action” has been satisfied. See CEQ Guidelines, § 5(b), 36 Eed.Reg. 7724 (1971). . E. g., Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum.L.Rev. 612, 642-43 (1970) ; Roberts, The Right to a Decent Environment, 55 Cornell L. Rev. 674, 688-92 (1970) ; Note, Toward a Constitutionally Protected Environment, 46 Va.L.Rev. 458 (1970).

Valley Community Preservation Commission v. Mineta

HENRY, Circuit Judge. The Valley Community Preservation Commission and three individual plaintiffs (“Plaintiffs”) appeal the district court’s denial of their motion for preliminary injunction and injunction pending appeal challenging the Federal Highway Administration (“FHWA”)’s approval of plans to reconstruct a 37.5 mile segment of Highway U.S. 70 in southeast New Mexico. The Plaintiffs argue that the FHWA violated Section 4(f) of the Department of Transportation Act,- 49 U.S.C. § 303(c), by failing to conduct the necessary reviews and investigations to determine whether the project will entail a “use” of historic properties protected under Section 4(f) prior to approving the project for construction. We exercise jurisdiction pursuant to 18 U.S.C. § 1292(a)(1) and affirm. As plaintiffs seek an injunction, we review the‘district court’s denial of relief for abuse of discretion, considering the well-established four-part standard for injunc-tive relief. We begin by summarizing the rather distended factual situation in this case. Next, we provide some background on the relevant statutes and regulations and the standard of review. Finally, we address the four preliminary injunction factors, giving particular emphasis to the likelihood of success on the merits. I. FACTUAL BACKGROUND Highway U.S. 70 runs though New Mexico from the southern portion of the Arizona/New Mexico state line to the near east-central New Mexico/Texas state line. The 37.5 mile segment of U.S. 70 at the center of this litigation connects Ruidoso Downs and Riverside in the Hondo River Valley. This stretch of highway has been designated the “Billy the Kid National Scenic Byway” by the FHWA and is known for its “rich historic associations and its exceptionally striking scenery, including historic homesteads, rural landscapes, roadside fruit stands, and a network of ‘acequias’ (historic irrigation ditches) that are an integral part of the area’s history and culture.” Aplts’ Br. at 1. Unfortunately, this stretch of U.S. 70 is also known for its alarmingly high accident rate: prior to the current expansion project, the New Mexico State Highway and Transportation Department (“NMSHTD”) reported that this portion of highway had an accident rate “twice the state average for rural undivided highways” and a fatality rate “more than double the national average.” Aples’ Supl. App. vol. II, at 172 (Final Environmental Impact Statement). In 1999, the NMSHTD prepared a report entitled “U.S. 70: Initial Corridor Study Report,” which considered a number of alternatives to alleviate traffic problems and improve highway safety- on U.S. 70. The NMSHTD’s recommendations included a proposal to expand the 37.5 mile segment of U.S. 70 between Ruidoso Downs and Riverside, known as the “Hon-do Valley Project.” The FHWA first addressed the potential impact of the Hondo Valley Project on historic and cultural resources in a Draft Environmental Impact Statement (“EIS”), published on May 4, 2001. The Draft EIS considered three alternatives to improve highway safety on U.S. 70: 1) a no-build alternative; 2) an enhanced two-lane alternative with “the addition of passing lanes ..., the addition of acceleration and deceleration lanes at major driveways ..., the addition of center turn lanes ..., and the addition of continuous, consistent-width shoulders,” Aples’ SupLApp. vol. I, at 36; and 3) a four-lane alternative in which the existing two-lane highway would be reconstructed as a continuous four-lane highway. Proposals to by-pass U.S. 70 through the creation of alternative routes were eliminated from further consideration after the FHWA determined that “the development of alternative routes would not substantially reduce the safety problems with the existing alignment of U.S. 70.” Id. at 33. Initial investigations established that the project would impact portions of eighteen acequias, seventeen archeological sites, and fifteen buildings. The Draft EIS recommended additional investigations for six of the archeological sites, but did not recommend further investigations of any of the buildings or acequias, concluding that the identified buildings “are either not sufficiently old to be considered eligible for the National Register of Historic Places, or they do not maintain sufficient integrity to convey their historic significance and are therefore not eligible.” Id. at 100. The Draft EIS also concluded that “individual functioning acequias are not eligible for inclusion on the National Register as historic properties,” id. at 99, and that “the project will retain the integrity of the Rio Hondo system,” id. at 100, thus alleviating any Section 4(f) concerns related to the acequias. Following the publication of the Draft EIS, the Parsons Brinckerhoff Archeology Group prepared a Cultural Resources Survey of the U.S. 70 corridor between Ruido-so Downs and Riverside at the request of the FHWA. The survey included an account of the properties in the corridor, whether each was potentially eligible for the National Register, and whether each would be affected by the Hondo Valley Project. The survey did not uncover any potentially eligible properties that would be affected by the project. The FHWA sought comments from the New Mexico State Historic Preservation Office (“SHPO”) regarding the determinations in the Cultural Resources Survey. Based on the survey and consultations with the SHPO, the FHWA issued a Supplemental Draft EIS on November 15, 2001. The Supplemental Draft EIS evaluated seventeen buildings, structures, and landscapes that either are or may be eligible for the National Register and concluded that none would be affected by the project. The FHWA solicited additional comments from the SHPO and other agencies following the publication of the Supplemental Draft EIS, and Parsons Brinckerhoff prepared a Supplemental Cultural Resources Survey. The findings of that survey were included in the Final EIS, issued by the FHWA on January 29, 2002. The Final EIS concluded that the Hon-do Valley Project would not affect any Section 4(f)-proteeted properties or resources. The FHWA published this final determination in a Record of Decision (“ROD”) on March 15, 2002, and the SHPO concurred in the FHWA’s finding that no 4(f)-protected properties would be used by the construction project. The ROD approved Alternative 3, the four-lane alternative, for construction, despite acknowledging that the enhanced two-lane alternative was the environmentally-preferred option, “[bjecause of the greater safety benefits of Alternative 3 and consistency with adopted State policy to provide four lanes on U.S. 70.” Aplts’ App. vol. II, at 532(ROD). The FHWA also voluntarily committed in the ROD “to developing] a programmatic agreement with SHPO, the National Trust, and other groups interested in being a consulting party with respect to implementation of the project.” Id. at 538. The FHWA, the NMSHTD, the Advisory Council on Historic Preservation, and the New Mexico SHPO signed a Programmatic Agreement on July 12, 2002; concurring parties included the National Trust for Historic Preservation, the New Mexico Heritage Preservation Alliance, the Mes-calero Apache Tribe, and St. Anne’s Episcopal Church. The Valley Community Preservation Commission and Gerald Ford, both plaintiffs in this case, were given the opportunity to participate in the Programmatic Agreement as concurring parties, but declined to do so. On September 4, 2002, Plaintiffs applied for a temporary restraining order and preliminary injunction in the United States District Court for the District of Columbia to halt construction on the Hondo Valley Project. They argued that the widening of the highway will “require massive cuts into the slopes and huge fill slopes supported by retaining walls” and that “[a]s a result, the Project will have unavoidable adverse impacts on historic properties.” Aplts’ Br. at 2. Furthermore, Plaintiffs alleged that the FHWA violated Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, by “failing to undertake investigations necessary to identify the Project’s foreseeable impacts to historic properties prior to the issuance of the Record of Decision approving the Project for construction.” Id. at 3. The District Court for the District of Columbia refused to enter a TRO and granted the FHWA’s motion to transfer the case to the District of New Mexico. See Valley Cmty. Pres. Comm’n v. Mineta, 231 F.Supp.2d 23 (D.D.C.2002) (Valley Cmty. I). The District Court for the District of New Mexico denied the Plaintiffs’ motion for preliminary injunction and injunction pending appeal, adopting and supplementing the opinion of the D.C. District Court and finding that Plaintiffs did not have a likelihood of success on the merits. See Valley Cmty. Pres. Comm’n v. Mineta, 246 F.Supp.2d 1163 (D.N.M.2002) (Valley Cmty. II). Construction on the Hondo'Valley Project has been ongoing since September 26, 2002. II. LEGAL BACKGROUND A. Standard of Review 1. Preliminary Injunction The standard of review in this case is somewhat bifurcated. First, we review district court’s denial of a motion for preliminary injunction for abuse of discretion. Davis v. Mineta, 302 F.3d 1104, 1110-11 (10th Cir.2002). “A district court abuses its discretion where it commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling.” Id. at 1111 (internal citations omitted). In order to receive a preliminary injunction, a plaintiff must establish the following four factors: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001). If a plaintiff establishes that the latter three factors “tip strongly” in his or her favor, the likelihood of success inquiry is modified somewhat, and the plaintiff may establish likelihood of success “by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003). “Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Id. 2. Administrative Procedure Act In analyzing the Plaintiffs’ likelihood of success on the merits, we must examine the FHWA’s compliance with Section 4(f). “At this point, a second layer of review comes into play, because defendants’ agency actions are themselves examined under a highly deferential, ‘arbitrary and capricious’ standard.” Davis, 302 F.3d at 1111. As Section 4(f) does not provide an independent cause of action, judicial review is available only through Administrative Procedure Act, 5 U.S.C. § 706, which provides that “agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citing 5 U.S.C. § 706(2)(A), (B), (C), (D) (1964 ed., Supp. V)). As we have noted, “Overton Park instructed reviewing courts to conduct a three-tiered inquiry of the Secretary of Transportation’s decision to fund a highway across land covered by § 4(f).” Comm. to Pres. Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1549 (10th Cir.1993). This three-tier inquiry involves determining: 1) “whether the Secretary acted within the scope of his authority under § 4(f);” 2) “whether the Secretary’s ultimate decision was ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,’ ” and 3) “whether the Secretary’s action followed the necessary procedural requirements.” Id. (internal quotation marks omitted). B. Section 4(f) and Section 106 All federally funded highway projects must comply with a number of federal environmental protection and historic preservation laws, including Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f; Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c); and the National Environmental Policy Act, 42 U.S.C. § 4332(C). Although Plaintiffs originally alleged violations of both the National Environmental Policy Act and Section 4(f) of the Department of Transportation Act, this appeal challenges only the FHWA’s compliance with Section 4(f). Section 4(f) provides, in relevant part, that [t]he Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. 49 U.S.C. § 303(c). Section 4(f) restrictions apply anytime a proposed highway construction project entails a “use” of a Section 4(f)-pro-tected property. A “use” of a protected property may be “direct” (“[w]hen land is permanently incorporated into a transportation facility”) or “constructive” (“when the transportation project does not incorporate land from a section 4(f) resource, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify a resource for protection under section 4(f) are substantially impaired.”). 23 C.F.R. § 771.135(p)(1)(i), (p)(2). The procedure for determining what sites merit protection under Section 4(f) is set forth in FHWA regulations at 23 C.F.R. § 771.135. Pursuant to these regulations, a structure qualifies for Section 4(f) protection if it is either on or eligible for the National Register of Historic Places. Id. § 771.135(e). The Section 4(f) evaluation must be conducted during the planning process, and in any event, the final Section 4(f) determination must be presented in the Final ElSor the ROD. See id. § 771.135(b) (“Any use of lands from a section 4(f) property shall be evaluated early in the development of the action when alternatives to the proposed action are under study.”); § 771.135(0 (“For actions processed with EISs, the Administration will make the section 4(f) approval either in its approval of the final EIS or in the ROD.”). In order to determine what sites merit protection under Section 4(f), the FHWA relies in large part on reviews conducted pursuant to Section 106 of the National Historic Preservation Act. Section 106 provides a process through which affected historic sites are identified, while Section 4(f) limits the circumstances in which the sites identified through the Section 106 review process can be “used.” Therefore, although Plaintiffs expressly challenge only the FHWA’s compliance with Section 4(f), Section 106 is also relevant to this litigation. See City of Alexandria v. Slater, 198 F.3d 862, 871 (D.C.Cir.1999) (“[W]e have observed that compliance with section 4(f) is predicated upon completion of the section 106 process.”). Section 106 of the National Historic Preservation Act provides that before a federal agency may authorize the expenditure of funds for a federal or federally assisted undertaking, it must first consider the effects of such an undertaking on “any district, site, building, structure, or object that is included or eligible for inclusion in the National Register [of Historic Places].” Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 370 (D.C.Cir.1999) (quoting 16 U.S.C. § 470f). This consideration involves identifying all historic properties within a designated “area of potential effects” for the project in consultation with the SHPO. The “area of potential effects” is “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.” 36 C.F.R. § 800.16(d). Unlike Section 4(f), Section 106 is essentially a procedural statute and does not impose a substantive mandate on the FHWA. See City of Alexandria, 198 F.3d at 871. III. DISCUSSION We now turn to the four preliminary injunction factors. Because the appropriate standard for evaluating the Plaintiffs’ likelihood of success on the merits depends on whether the other three factors are satisfied, we look first to the three equitable or “harm” factors: 1) the harm that the Plaintiffs will suffer if the injunction is denied; 2) the balancing of the harm that the FHWA will suffer if the injunction is granted; and 3) the harm to the public interest. We then address the Plaintiffs’ likelihood of success on the merits. A. Harm to Plaintiffs, Balancing of Harm to Defendants, and Public Interest Plaintiffs contend that “the district court never addressed the remaining equitable factors bearing on the issuance of injunc-tive relief.” Aplts’ Br. at 48. However, while the district court did address the Plaintiffs’ likelihood of success on the merits in greater detail than the other three factors, it nevertheless concluded that Plaintiffs “have met none of the requirements for a preliminary injunction.” Valley Cmty. II, 246 F.Supp.2d at 1177. We now examine the equitable factors and hold that while the Plaintiffs may suffer some harm as a result of the denial of the injunction, the district court correctly concluded that the balance of harms and the public interest weigh in favor of the FHWA. 1. Harm to Plaintiffs “The substantive harm contemplated by § 4(f) is the actual harm to parkland or historic sites that will occur if the Secretary of Transportation does not (1) consider every prudent and feasible alternative to using the land, and (2) make all possible plans to minimize the harm, if use is required.” Davis, 302 F.3d at 1115. Environmental harm is, by its nature, generally irreparable. Id. An individual plaintiff can establish that he or she will suffer harm from a construction project by demonstrating “adequate proximity to and use of’ the land in question. Id. The Plaintiffs have certainly established adequate proximity in this case. Plaintiffs live in the area and use the land in question; in fact, many of the historic acequias at issue in this case are actually located on land owned by the Plaintiffs. Any damage to the land or structures along U.S. 70 as a result of the project is likely to cause the Plaintiffs irreparable harm. Moreover, even assuming that the FHWA’s determination that the project will not use any protected properties is correct, the Plaintiffs’ enjoyment of their land will undoubtedly suffer somewhat as a result of the greater proximity of a major highway. 2. Balancing of Harm to Defendants The FHWA has already invested a substantial amount of money in this construction project. Over $52 million was invested between August 1, 2002, and February 12, 2003. According to a declaration by the NMSHTD’s Design Compliance Engineer for the Hondo Valley Pi'oject, a suspension of construction would cost $144,000 per day, or $4,320,000 per month. A permanent termination of the project would cost $11,537,000, including demobilization and clean-up costs. Given these figures, it is clear that the FHWA will suffer significant financial harm if the injunction is granted. While these costs cannot be ignored, financial concerns alone generally do not outweigh environmental harm. See Citizens to Preserve Overton Park, Inc., 401 U.S. at 412-13, 91 S.Ct. 814 (“Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary. But the very existence of the statutes [i.e., Section 4(f)] indicates that protection of parkland was to be given paramount importance.”). We have previously accorded less weight to financial harms relative to environmental harms when the financial harms are “self-inflicted.” See Davis, 302 F.3d at 1116 (noting that “it appears that many of these costs [of delay] may be self-inflicted .... ■ [because] the state entities involved in this case have ‘jumped the gun’ on the environmental issues by entering into contractual obligations that anticipated a pro forma result.”). Whether the financial harm the FHWA will suffer if the injunction is granted outweighs the harm the Plaintiffs will suffer if it is not seems to turn on the merits of the case. If the FHWA did not comply with Section 4(f), but rather “jumped the gun” and began construction before completing the necessary environmental reviews, then the environmental harm faced by the plaintiffs may outweigh the FHWA’s financial harm. If the FHWA complied with all relevant environmental laws and correctly determined that the project will not use a Section 4(f)-protected property, then the balancing of harms weighs in favor of the defendants. The Plaintiffs have not, therefore, established that the balancing of the harms tips strongly in their favor. 3. Public Interest There are conflicting public interest values at play in this case. On the one hand, the public interest is served by safer highways and increased economic development. On the other hand, the public interest is served by strict compliance with environmental laws and the preservation of historic and cultural resources. In Davis v. Mineta, we held that “the public interest associated with completion of the Project -must yield to the obligation to construct the Project in compliance with the relevant environmental laws.” 302 F.3d at 1116. However, in that case, “the proposed highway construction ha[d] not yet begun, and so we [we]re not confronted with equities in favor of completion of a partially-completed project.” Id. In this case, we are dealing with a partially-completed project, and as such, the public interest in favor of continuing the project is much stronger. This litigation also involves a stretch of road with an exceedingly high accident rate. The well-recognized “important public interest in safety on the roads and highways,!’ Dixon v. Love, 431 U.S. 105, 114, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), therefore weighs in favor of completing the construction project. B. Likelihood of Success on the Merits As the Plaintiffs have failed to show that each of the three equitable requirements for a preliminary injunction tips strongly in their favor, we now proceed to review the likelihood of success on the merits. Turning to the merits of the case, we must consider Plaintiffs’ argument .that the FHWA acted arbitrarily and capriciously in reaching the determination that the Hondo Valley Project would not use any Section 4(f)-protected properties. Specifically, they contend that 1) the FHWA failed to undertake the requisite studies needed to identify and evaluate all protected properties prior to issuing the ROD; and 2) the FHWA employed an inadequate area of potential effects when conducting its pre-ROD studies. These two inquiries are closely related, as the Plaintiffs’ argument concerning the unlawful deferral of the Section 4(f) determination rests on the proposition that the Section 106 reviews conducted prior to the publication of the ROD failed to comply with Section 4(f) because the area of potential effects was too narrowly drawn. 1. Failure to Undertake the Requisite Studies Needed to Identify and Evaluate 4(f)-Protected Properties Prior to Issuing the ROD Section 4(f) regulations clearly require the FHWA to make the requisite Section 4(f) evaluations prior to issuing an ROD approving a proposed construction project and to present these determinations in the Final EIS or the ROD. See 23 C.F.R. § 771.135(b), (l). The threshold question in this case is, therefore, whether the FHWA conducted adequate reviews of the cultural resources and historic properties along the U.S. 70 corridor prior to determining in the ROD that the Hondo Valley Project would not “use” any 4(f)-protected properties. The Plaintiffs argue that much of the required evaluation was unlawfully deferred until after the ROD. In making this argument, they rely on the fact that the consultations surrounding the Programmatic Agreement produced a list of 113 properties potentially eligible for the National Register that were not fully evaluated prior to the issuance of the ROD. These properties were apparently not evaluated during the earlier stages of the project because they were outside the area of potential effects used during the Section 106 review process. As further support, the Plaintiffs reference a letter sent to the FHWA by the Advisory Council on Historic Preservation suggesting that the FHWA’s “no effect” determination was in error. a. City of Alexandria and Corridor H In considering the Plaintiffs’ argument that the FHWA unlawfully deferred the required evaluations of 4(f)-protected properties, the parties and both the D.C. and New Mexico district courts place a significant amount of emphasis on two cases from the District of Columbia Circuit addressing the timing of Section 4(f) reviews—Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C.Cir.1999), and City of Alexandria v. Slater, 198 F.3d 862 (D.C.Cir.1999). Corridor H concerned a plan to build a new segment of highway in West Virginia. The FHWA issued an ROD prior to conducting the requisite Section 106 reviews to identify historic sites potentially impacted by the project. The court held that the FHWA had failed to comply with Section 4(f) by deferring these reviews until after the issuance of the ROD, despite the fact that the ROD stated that approval of the project was contingent upon successful completion of the Section 106 review process. Id. at 371-73. City of Alexandria, decided after Corridor H, addressed a challenge to the FHWA’s approval of plans to replace the Woodrow Wilson Memorial Bridge. In contrast of Corridor H, City of Alexandria held that the FHWA had complied with Section 4(f) because it “identified historic properties along the corridor and documented its findings prior to approval in both a Memorandum of Agreement and a Section 4(f) Evaluation.” 198 F.3d at 873. The fact that the FHWA “deferred [ ] the identification of sites that might be impacted by a small number of ‘ancillary activities’ ” was not sufficient to establish a Section 4(f) violation. Id. We agree with the holding of both district courts that this case is analogous to City of Alexandria and factually distinguishable from Corridor H. See Valley Cmty. II, 246 F.Supp.2d at 1174; Valley Cmty. I, 231 F.Supp.2d at 34 (noting that “[t]he agency’s actions in this case are more akin to City of Alexandria than Corridor H.”). Corridor H is somewhat analogous to this case in that both cases involve the adoption of a Programmatic Agreement by the FHWA; however, that is where the similarities end. In Corridor H, the FHWA did not perform the necessary Section 106 reviews prior to issuing the Final EIS and the ROD, and adopted the Programmatic Agreement as an alternate means of complying with Section 4(f). In essence, the Programmatic Agreement was adopted instead of performing the Section 106 review process and completing the Section 4(f) determination, in violation of 23 C.F.R. § 771.135(b). Based on the record in this case, we cannot conclude that the FHWA delayed all necessary reviews until after the issuance of the ROD. It appears the agency made significant efforts to evaluate historic properties along the U.S. 70 corridor for National Register eligibility and to determine whether the Hondo Valley Project would adversely affect such properties. The FHWA performed extensive reviews prior to issuing the Final EIS and the ROD and adopted the Programmatic Agreement for the more limited purpose of analyzing “determinations of effect on any previously unidentified cultural resources and potential impacts to identified cultural resources that may be affected by any design changes and construction activities.” Aplts’ App. vol. II, at 538. As detailed in the facts above, the agency issued a Draft EIS, a Cultural Resources Survey, and a Supplemental Draft EIS prior to publishing its final determination, consulting with the SHPO throughout the process. Thus, the District Court for the District of Columbia correctly concluded, “[t]he agency has not postponed the entire section 106 process but has merely provided for the contingency that section 4(f)-properties may be discovered as the construction progresses.” Valley Cmty. I, 231 F.Supp.2d at 34-35. This is very similar to the agency action that the D.C. Circuit upheld in City of Alexandria. Plaintiffs have failed to establish that the FHWA declined to follow the necessary procedural requirements by adopting the Programmatic Agreement and deferring the evaluation of certain properties until after the issuance of the ROD. b. The Advisory Council on Historic Preservation’s March 29 Letter As further support for their argument that the FHWA failed to comply with Section 4(f), the Plaintiffs rely on a March 29, 2002, letter from the Advisory Council on Historic Preservation to the FHWA. In the letter, the Advisory Council questioned] the validity of the earlier no effect and no adverse effect determinations made by FHWA, and concurred in by the New Mexico State Historic Preservation Officer (SHPO), since they were carried out under the terms of the Substitution Agreement Between the Advisory Council and the New Mexico SHPO ... which expired in April 1999. Aplts’ App. vol. Ill, at 599 (Letter from Advisory Council on Historic Preservation, dated March 29, 2002). Based on these “overarching flaws” in the process, the Advisory Council concluded that “FHWA will need to reevaluate all previous findings and determinations related to this undertaking to ensure that the procedures set forth in our regulations are properly met.” Id. Our consideration of the letter does not lead us to conclude that the FHWA’s determination of “no effect” was in error. First, the concern over the expiration of the Substitution Agreement between the Advisory Council and the New Mexico SHPO is resolved by a subsequent letter from the Advisory Council to the SHPO. See Aples’ SupLApp. vol. II, at 443 (Letter from Advisory Council on Historic Preservation, dated May 8, 2002). That letter states: Since Federal agencies have submitted numerous projects to the New Mexico SHPO subsequent to the expiration of the Substitution Agreement, we believe that it is necessary to clarify the status of Section 106 reviews concluded during this period. It is our opinion that the outcomes reached ... between April 1999 and March 2002 ... shall be binding and evidence satisfactory compliance with the requirements of Section 106, unless the New Mexico SHPO or Council have received a timely and substantive objection from the public. Id. The Plaintiffs counter the May 8 letter by arguing that it did not relate specifically to the Hondo Valley Project and that the Council did in fact receive timely objections from the public. We acknowledge that the May 8 letter does not speak to the other concerns articulated by the Advisory Council in the March 29 letter. Taking into account the May 8 letter, however, we do not believe that the expiration of the Substitution Agreement alone is evidence of failure to comply with Section 4(f). Moreover, the other primary concern reflected in the Advisory Council’s March 29 letter, “that FHWA did not initiate the consultation process for this undertaking pursuant to 36 C.F.R. Section 800.3,” also does not establish that the agency erred. Id, vol. III, at 599. As the D.C. District Court acknowledged, “section 800.3 does not mandate consultation with the public in the instance where it has been determined that the undertaking ‘does not have the potential to cause effect on historic properties.’ ” Valley Cmty. I, 231 F.Supp.2d at 36 (quoting 36 C.F.R. § 800.3(a)(1)). We agree with that district court’s finding that the FHWA was “not mandated to adhere to the findings of the [Advisory Council], as they had determined that there would not be any use of historic properties.” Id. We further note that the FHWA did attempt to address the Advisory Council’s concerns through the Programmatic Agreement, which the Advisory Council agreed to and signed in July 2002, approximately four months after voicing its concerns in the March 29 letter. Thus the concerns raised in the Advisory Council’s March 29 letter do not alter our conclusion that the FHWA complied with Section 4(f). 2. Definition of the Area of Potential Effects Plaintiffs’ other major argument concerns the definition of the area of potential effects employed during the Section 106 review process. As described in Part 11(B) above, the “area of potential effects” is “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.” 36 C.F.R. § 800.16(d). Plaintiffs contend that the area of potential effects, as defined by the FHWA, was “presumptively invalid,” Aplts’ Br. at 34, and that as a result, the FHWA’s conclusion that no Section 4(f)-protected properties would be used was “[arbitrary and [ejapricious.” Id. at 33. Establishing an area of potential effects requires a high level of agency expertise, and as such, the agency’s determination is due a substantial amount of discretion. See Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (“Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies. Absent a showing of arbitrary action, we must assume that the agencies have exercised this discretion appropriately.”) (internal citation omitted). Specifically, the Plaintiffs argue that the area of potential effects a) was arbitrarily set at 150 feet, thus excluding many structures within 200 feet of the roadway; b) excluded many properties that may suffer adverse effects as a result of vibration impacts and/or traffic noise; and c) “focused exclusively on the footprint of the structures themselves, and did not consider the larger property boundaries for these buildings, including any natural or topographical features associated with these buildings.” Aplts’ Br. at 42. a. Exclusion of structures within 200 feet of the roadway The FHWA adopted a variable area of potential effects of between 150 and 500 feet from the edge of the existing U.S. 70. For much, if not most of the roadway, it appears that an area of potential effects of 150 feet was used. Plaintiffs argue that this restrictive area of potential effects resulted in a failure to evaluate the impact of the project on over one hundred buildings located within 200 feet of the roadway. Essentially, Plaintiffs contend that the FHWA should have established an area of potential effects of 200 feet instead of 150 feet. The FHWA selected the 150-foot variable area of potential effects in consultation with the SHPO, as set forth in Section 106 regulations at 36 C.F.R. §§ 800.4(a). The FHWA explains that “[t]he [area of potential effects] was defined by the area FHWA reasonably believed might be impacted by the Project once it was built, and included considerations for noise, visual effects, and vibrations.” Aples’ Br. at 35. The determination of the area of potential effects took into account both direct and indirect potential effects of the project and varied “throughout the corridor depending on the type of resource and the nature of [the] potential effect.” See Aplts’ App. vol. II, at 454. Having carefully reviewed the pertinent regulations, the record before us, and the district court’s findings, we conclude, for substantially the same reasons as the district court, that “these variable APEs were based on a consideration of the relevant factors and that there has not been a clear error or judgment.” Valley Cmty. II, 246 F.Supp.2d at 1173. b. Vibration and noise impacts Next, the Plaintiffs argue that the 150-foot area of potential effects failed to take into account indirect effects, including vibration impacts resulting from blasting activities and noise impacts resulting from traffic on U.S. 70, that might rise to the level of a constructive use. Having examined the record, we conclude that Plaintiffs have not established that the Hondo Valley Project will use any Section 4(f)-protected properties, either directly or constructively- The FHWA regulations explicitly address vibration impacts, distinguishing between vibration impacts that result from construction activities and vibration impacts that result from the operation of a facility. Vibration impacts resulting from construction activities are not considered a “use” under Section 4(f) provided “[vjibration levels from project construction activities are mitigated, through advance planning and monitoring of the activities, to levels that do not cause a substantial impairment of the section 4(f) resource.” 23 C.F.R. § 771.135(p)(5)(ix). In this case, the FHWA adopted a vibration monitoring program to include “monitoring before and during project construction, and visual inspections of potentially affected buildings to determine pre-construction conditions and to identify any structural damage that occurs during construction.” Aples’ Supl. App. vol. II, at 183 (Final EIS).. The plan provided for repair of any damage resulting from construction. We are satisfied that this monitoring program comports with the regulations so as to avoid a constructive use as a result of construction-related vibrations. The Plaintiffs’ contention that traffic noise may result in a constructive use is also without merit. The Plaintiffs suggest that the new four-lane highway will result in a permanently increased traffic volume; however, there is no evidence to support this assertion. In fact, the Final EIS concluded that “[tjraffic volumes on U.S. 70 are expected to be similar with all three alternatives,” including the no-build alternative. Id. The Plaintiffs have not established that “[t]he projected noise level increase attributable to the project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f),” 23 C.F.R. § 771.135(p)(4)(i), thus we cannot conclude that the FHWA failed to evaluate indirect effects of the project that may result in a constructive use. c. Consideration of properties in their entirety Finally, the Plaintiffs argue that the FHWA adopted too narrow a focus by limiting its analysis to buildings and structures and failing to consider “larger property boundaries” and “character-defining features in the identification of the historic buildings within the project’s area of potential effects.” Aplts’ Br. at 42. The District of New Mexico found “nothing in the record to support Plaintiffs’ argument that Defendants focused mostly on buildings themselves and did not consider natural and topographical features that are part of an historic site.” Valley Cmty. II, 246 F.Supp.2d at 1174. We agree with this assessment of the record. The FHWA’s Supplemental Draft EIS explained that “[eligible buildings include the building and its immediate environment, including all acreage historically associated with the building that is within the current property boundary and any historic landscape feature considered to be contributing to the eligibility of the building.” Aplts’ App. vol. II, at 456-57. Similarly, the ROD noted that “[tjhe boundaries as well as the character-defining features of each property were considered in the evaluation process for visual effects.” Id. at 538. The Plaintiffs suggest that this language is simply “lip-service” and that the schematic drawings appended to the Cultural Resources Survey “confirm, by omission” that the focus was on the buildings and not the surrounding environment. Aplts’ Br. at 42. We cannot conclude from the fact that some schematic drawings focused on the buildings themselves that the FHWA did not take into account the environment and character-defining features of the properties within the area of potential effects. The Plaintiffs have thus failed to demonstrate that the FHWA’s decision to apply a 150-foot area of potential effects was arbitrary and capricious or an abuse of discretion. III. CONCLUSION Having found that the Plaintiffs failed to satisfy the requirements for a preliminary injunction, we AFFIRM the district’s court denial of Plaintiffs’ motion for preliminary injunction and injunction pending appeal. . The Advisory Council on Historic Preservation is an independent federal agency charged with exclusive authority for developing regulations pertaining to Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, and ensuring compliance with that Act. . As an initial matter, we must decide whether we may properly consider the March 29, 2002, Advisory Council letter. Defendants argue that because the March 29 letter was not included in the administrative record, it is beyond the court’s scope of review. See American Mining Congress v. Thomas, 772 F.2d 617, 626 (10th Cir.1985) (noting that "[a]ny exception to th[e] general rule against the use of extra-record materials must be extremely limited.”). Plaintiffs counter by arguing that the document falls within the established exception for "evidence coming into existence after the agency acted [that] demonstrates that the actions were right or wrong.” Id. The document was necessarily absent from the administrative record because it came into existence after the issuance of the ROD. The District Court for the District of Columbia considered the March 29 letter in denying the Plaintiffs' motion for a temporary restraining order. We review the district court's decision regarding whether to consider extra-record materials for abuse of discretion, see Northcoast Envt'l Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998), and hold that the district court did not abuse its discretion in considering the March 29 letter. . While this letter was also not part of the administrative record in this case, in light of our decision to consider the March 29 letter, we see no reason not to consider the May 8 letter as well. As the Plaintiffs point out, both parties have relied on documents that were not part of the administrative record. See Aplts’ Reply Br. at 22 n. 7. . During a field inspection, “the visibility of the current roadway from the properties below the highway profile was assessed, and if the current roadway was not visible from the property and if the new roadway would still not be visible from that property, then the [area of potential effects] was reduced to 150 ft from the edge of pavement.” Aplts' App. vol II, at 537-38.

Presidio Golf Club v. National Park Service

BOOCHEVER, Circuit Judge: The Presidio Golf Club (“Club”) appeals the district court’s summary judgment in favor of the National Park Service, the Department of the Interior, and related federal government officials, in the Club’s action challenging the environmental and historic review process undertaken by the government and its concessioner, Arnold Palmer Golf Management Company, in connection with efforts to build a new public clubhouse at the Presidio Golf Course of San Francisco, near a century-old private Clubhouse which the Club seeks to preserve. The Club asserts violations of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), and the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (“NHPA”). The Park Service challenges the Club’s standing to sue under these statutes and the Administrative Procedures Act, 5 U.S.C. § 702. I. Facts In 1895, the San Francisco Golf Club received permission from the military to build the Presidio Golf Course on the grounds of the Presidio. The San Francisco Golf Club built the Presidio Golf Clubhouse in 1899 on private land abutting the Presidio, at the edge of the golf course. In 1919, the Presi-dio Golf Club, a California non-profit corporation, purchased the Clubhouse and has since maintained it as a private club. Military officers were permitted to join the Club at discounted rates, although in later years some instead used locker and lounge facilities at a cluster of buildings constructed in the 1950s by the Army near the private clubhouse (the “army golf course buildings”). By agreement, Club members and armed forces personnel together enjoyed exclusive use of the Presidio Golf Course until the Presidio was deactivated in 1994. At that time, the Presidio was transferred to the National Park Service, which opened the golf course to public use and curtailed the Club’s preferential access. In 1995, the Park Service contracted with Arnold Palmer Golf Management Company (“Palmer Golf’) to manage the golf course. The loss of preferential access to tee times by Club members significantly undercut the value of Club membership because, according to Palmer Golf, public demand “exceeds available tee times at the Presidio by a factor of 20 to 1.” In May 1996, the Park Service released to the public an Environmental Assessment (“EA”), which described plans for new public facilities at the golf course. Four of the existing Army golf course buildings were to be demolished, and replaced with a 6,000-square-foot public clubhouse. In November. 1996, the Club filed suit, seeking declaratory and injunctive relief. The Club contends that the Park Service failed to comply with NEPA by not preparing an adequate EA followed by an Environmental Impact Statement (“EIS”) evaluating the impact of the proposed new public clubhouse on the old private Clubhouse. The Club also contends that the Park Service did not comply with NHPA by failing to consider that the building of the public clubhouse may lead to the neglect and destruction of the old private Clubhouse, which is concededly eligible for inclusion in the National Register of Historic Places. The Park Service challenged the Club’s standing to sue under NEPA and NHPA On cross-motions for summary judgment, the district court held that the Club had standing because it is located in the vicinity of the proposed new clubhouse, and determined that the Park Service’s conclusions in the EA and its “finding of no significant impact” were neither arbitrary nor capricious. DISCUSSION II. Presidio Golf Club’s Standing The Park Service contends that the Club lacks standing to sue under both NEPA and NHPA. The “irreducible constitutional minimum” for standing in an Article III court requires: (1) that the plaintiff have suffered an “injury in facf’an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, -, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). In addition to the constitutional standing limitations, the courts have erected prudential barriers, “such as the general prohibition on a litigant’s raising another person’s legal rights, ... and the requirement that a plaintiffs complaint fall within the-zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The Park Service contends (A) that the Club lacks standing because any future injury to the club would be a purely economic competitive injury which is not within the zone of interests to be protected by NEPA or NHPA; (B) that the Club lacks standing in its representative capacity based on injury to its members; and (C) that any future injury would be “self-inflicted,” as well as “conjectural and speculative,” and therefore not fairly traceable to the actions of the defendant. A. Zone of interests The Park Service characterizes the Club’s claim as one solely for an alleged “competitive injury” to purely economic interests outside the zone of interests sought to be protected by NEPA and NHPA Purely economic interests do not fall within the zone of interests to be protected by NEPA or NHPA. Western Radio Services Co. v. Espy, 79 F.3d 896, 902-03 (9th Cir.) (“NEPA’s purpose is to protect the environment, not the economic interests of those adversely affected by agency decisions.”) (quotations omitted), cert. denied, — U.S. -, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). The APA, 5 U.S.C. § 702, grants federal court standing to any “person suffering-legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The Supreme Court has interpreted this to require that the “interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). “To find that the [plaintiffs interests] do not fall inside the ‘zone of interests’ protected by NEPA, we would have to find that (1) the [plaintiffs] interests are inconsistent with the purposes of NEPA, and that (2) the interests are so inconsistent that it would be unreasonable to assume that Congress intended to permit the suit.” Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir.1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996). The Club urges that its interests at stake are not merely economic but include such other interests as the preservation of their historic building and its surrounding environment, and that these interests fall within the zone of interests of environmental quality and historic preservation sought to be protected by the statutes. Because the zone of interests test is “not a demanding one,” Chief Probation Officers of Cal. v. Shalala, 118 F.3d 1327, 1331 n. 2 (9th Cir.1997), and the asserted interest need only be “arguably within the zone of interests to be protected or regulated by the statute,” Data Processing, 397 U.S. at 153, 90 S.Ct. 827 (emphasis added), a rough correspondence of interests is sufficient. The Park Service characterizes the Club’s purpose, defined in its incorporation papers, as limited to “socializing and gathering to play the sport of golf.” The 1919 Articles of Incorporation provide that the “purposes for which [the Club] is formed are to acquire, improve and maintain grounds and buildings for athletic purposes and to acquire and maintain a club house for social intercourse among its members.... ” NEPA’s stated purposes include: “To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the" environment and biosphere and stimulate the health and welfare of man....” 42 U.S.C. § 4321. Congress enacted NHPA based on its findings that “the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.” 16 U.S.C. § 470(b)(2). NHPA was enacted to “encourage the public and private preservation and utilization of all usable elements of the Nation’s historic built environment.” 16 U.S.C. § 470-1(5). The Club’s stated purpose to “improve and maintain grounds and buildings for athletic purposes” implies the corollary purpose of maintaining an environment, both natural and built, suitable for the game of golf and post-game activities. A golf club attempts to create a rustic enclave for the rest and relaxation of its members. These interests of the enterprise are aligned with those of NEPA, to “encourage ... enjoyable harmony between man and his environment” and to “stimulate the health and welfare of man.” 42 U.S.C. § 4321. Similarly, the historic Tudor Clubhouse provides far more than food, beverages, and shelter. It functions as a mock country man- or for the rustication of its members and, consistent with the purposes of NHPA, it is “preserved as a living part of ... community life.” 16 U.S.C. § 470(b)(2). NHPA’s goal to “encourage the ... private preservation and utilization of ... the Nation’s historic built environment” is also furthered. 16 U.S.C. § 470-1(5) (emphasis added). Therefore, the Club’s interests in maintaining its historic Clubhouse and the surrounding environment in a fashion suitable for the game of golf, are arguably within the zones of interests to be protected by NEPA and NHPA. The interests the Club seeks to protect in this litigation are not “inconsistent with the purposes of NEPA;” nor are the Club’s interests “so inconsistent that it would be unreasonable to assume that Congress intended to permit the suit.” Douglas County, 48 F.3d at 1500. B. Organizational standing A membership organization can sue in its representative capacity when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Com’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The Park Service contends that the Club cannot assert this claim on behalf of its members because the interests it seeks to protect are not germane to the organization’s purpose: “the stated purposes of the corporation do not include any environmental or historical objectives.” However, the individual members’ interests are largely identical to the organization’s goals of maintaining the Clubhouse for the members’ use in a manner suitable for the social and athletic activities surrounding the game of golf. The members are the actual beneficiaries of the rustic and historical ambience of the Clubhouse. • If the Club’s interest in maintaining the historical and environmental integrity of the Clubhouse falls within the zones of interests to be protected by NEPA and NHPA, so do the interests of its members. Further, courts have generally found the germaneness test to be undemanding. Humane Soc’y of the United States v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988) (as amended) (“It remains only to note that in thus characterizing the germaneness requirement as mandating mere pertinence between litigation subject and organizational purpose, we join a number of other courts which ... have declared it undemanding”) (collecting cases). Finally, there is no apparent reason why the participation of individual members should be necessary. The interests and claims asserted in this lawsuit on behalf of individual members are undifferentiated among members and similar to the interests and claims of the Club. The relief sought is to enjoin the project until its impact upon the Clubhouse has been adequately studied, and does not vary so as to require the individual participation of members; as it might were damages sought. C. Whether the injury is “fairly traceable” to the Park Service The Park Service contends that the injury asserted by the Club is not fairly traceable to the building of the public clubhouse. In its complaint, the Club quotes a letter from the Club’s President Michael St. Peter to the Park Service to explain the injury that it asserts will flow from the Park Service’s alleged procedural violations. St. Peter’s letter recalled the benefits the Club previously provided to the military, such as reduced rates, and explained that [i]n return the Government has accorded Presidio Golf Club members certain reciprocal benefits with respect to the use of the golf course. It is those benefits which provide the reason for golfers to join the Club. The Park Service has now severed the linkage. If there are no benefits with respect to a golfer using the golf course by virtue of Club membership, that membership loses its attraction. If members do not join the Club, it will go under. If it goes under, the historic Clubhouse will no longer be maintained and may well be demolished. The Park Service contends that it is highly “speculative and conjectural” that the Club will suffer any such injury as a result of the defendants’ alleged procedural violations. The Club’s description of the feared chain of events blames the loss of members on the new public clubhouse, and cites the loss of members as an essential step leading to the Club’s demise and the destruction or decay of the historic Clubhouse. As the district court noted, however, the Club had “already lost one-third of its members even before construction of the new clubhouse has begun,” and “[b]y the time of oral argument [in the district court], plaintiffs counsel attested that the Club had lost half of its members.” The district court determined that “the most reasonable inference is that the cause of plaintiffs economic problems is not the existence of a new public clubhouse, but the loss of the Club’s exclusive access to the golfc-ourse that occurred when the Presidio was transferred from the armyto the [Park Service].” The district court was correct to infer that the Club’s membership losses to date are attributable to the loss of semi-exclusive course privileges rather than the plan to build a new public clubhouse. The Park Service contends that because such injuries are not traceable to its plan to build the new clubhouse, the Club lacks standing to challenge the adequacy of the environmental assessment. It is likely, however, that once the new public clubhouse is completed, the Club will lose- more members, in particular those who joined the private club for its facilities, rather than its special rights to use of the golf course. Once most of the facilities are available at the new clubhouse, many more members may wish to stop paying private club membership dues. Such additional membership losses could well prove fatal to the Club, and constitute a future injury-in-fact that is fairly traceable to the Park Service’s alleged procedural violations. That injury would also be redressable by favorable court action here, because the cure for alleged deficiencies in the EA and the failure to prepare an EIS is further and adequate studies, which could lead to the modification or elimination of the plan to build the public clubhouse. D. Conclusion We conclude that the “interest sought to be protected by the complainant is arguably within the zone of interests to be protected” by NEPA or NHPA; that the Club can sue in its representative capacity; and that while it is a close question, the injury asserted by the Club is fairly traceable to the building of the public clubhouse. Accordingly, we hold that the Club has standing. III. Adequacy of the Environmental Assessment “When reviewing an administrative agency’s decision, we view the case from the same position as the district court.” Western Radio, 79 F.3d at 900. “An agency’s decision should be overturned if it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). “Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency.” Id. An EA must “[b]riefly provide sufficient evidence and analysis” to determine whether the agency must prepare an EIS or, in the alternative, issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1508.9(a)(1). A FONSI is a document issued in conjunction with an EA that “briefly present[s] the reasons why an action ... will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared.” Id. at § 1508.13. A. Alleged failure to consider alternatives adequately NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E). ‘An agency must look at every reasonable alternative, with the range dictated by the nature and scope of the proposed action.” Northwest Environmental Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir.1997) (quotations omitted). This court “review[s] an agency’s range of alternatives under a ‘rule of reason’ standard that requires an agency to set forth only those alternatives necessary to permit a reasoned choice.” Id. (quotations omitted). The Club asserts that the EA is inadequate because “it fails to consider any alternatives to a new clubhouse involving cooperative use of the historic Clubhouse.” While it may be true that the Park Service did not consider “cooperative use” arrangements as alternatives, it fulfilled its duties under NEPA by considering other reasonable alternatives. The EA circulated by the Park Service in May 1996 considers in detail three alternatives, including a “no action” alternative. The EA also considered the alternative of reusing the “Existing Private Clubhouse” in a short section entitled “Alternatives Considered but Rejected.” Several reasons were given for rejecting that alternative: Previous analysis has been conducted to review the advantages and disadvantages of purchasing the private clubhouse versus constructing a new facility. In general, the existing private clubhouse does not meet essential management needs and any required alterations and additions that would be needed to accommodate new uses would be prohibitively expensive. The clubhouse is too small for anticipated additional demand for the public course and would require land acquisition funds and a boundary adjustment. The Park Service also points out that the Club had long expressed its wish to remain a private club, which could have led the Park Service reasonably to believe that the Club would not have been receptive to “cooperative use” options. Responding to the suggestion “that [the] National Park Service should buy the private clubhouse,” the Park Service responded that the “Club has maintained throughout the four-year public review process for the Presidio GMPA/FEIS, and the subsequent public process undertaken by the [Park Service] for this Environmental Assessment, that they were not interested in béeoming a public facility.” This is supported by the affidavit of Stephen Crabtree, Regional Chief of Concession Program Management for the National Park Service’s Pacific West Region, which describes meetings with Club members at which they “expressed a steadfast desire to remain a private club,” and explains how previous analysis identified obstacles to purchasing the Clubhouse, such as the need to change the Presidio boundary, and the need for an act of Congress to acquire the land or pursue condemnation proceedings. The Park Service also considered the option of leasing the Club but rejected that option because the cost of retrofitting would be prohibitive, and because the covenants, conditions, and restrictions in the Club’s deed require the Club to remain private. Under the circumstances, the Park Service considered sufficient alternatives to permit a reasoned choice. B. Timing of the decision to build The Club contends that the Park Service decided to build the new clubhouse before preparing the EA to assess that decision. “NEPA requires consideration of the potential impact of an action before the action takes place.” City of Tenakee Springs v. Clough, 915 F.2d 1308, 1313 (9th Cir.1990). The Club enumerates seven instances in the voluminous record that it claims reveal that the Park Service “(consciously or unconsciously) tailored the NEPA process in such a manner that a FONSI was all but assured.” The Club cites as an example a letter stating that “NEPA compliance will end with the [Park Service] preparation and approval of a Finding of No Significant Impact (FON-SI).” The Club points to the EA schedule which lists the last step as “Approval by NPS” followed by an arrow pointing to a handprinted notation, “FONSI.” These examples and others cited by the Club simply reflect a confidence on the part of the Park Service that the proposed plan would be adopted, which is permissible. See Coalition Against a Raised Expressway, Inc. v. Dole, 835 F.2d 803, 808 (11th Cir.1988) (despite evidence that officials instructed researchers that “alternatives [to a project] should only be studied until they can be proven unfeasible,” court held it was allowable for the agency to express “confidence that the alternatives ultimately would turn out to be unfeasible”); Environmental Defense Fund, Inc. v. Corps of Eng’rs of United States Army, 492 F.2d 1123, 1129 (5th Cir.1974) (“letters [that] convey a spirit of confi dence on the part of the writer that the project would be found to be acceptable environmentally” found compatible with intent “to give the fullest possible consideration to the environmental consequences of the project under NEPA”). IV. Requirement of an Environmental Impact Statement A. Significance of impact NEPA provides that an EIS must be prepared on proposals for major federal actions significantly affecting the quality of the human environment. 40 C.F.R. § 1502.3. The term “significantly” is defined to require “considerations of both context and intensity.” Id. at § 1508.27. The term “intensity” “refers to the severity of impact,” which should be evaluated according to ten enumerated factors. Id. at § 1508.27(b)(l)-(10). The Club claims that the Park Service ignored five of the enumerated factors when assessing the significance of any impact on the Clubhouse and considering whether to prepare an EIS. For the reasons stated below, we hold that the Park Service did not act arbitrarily or capriciously with reference to these five factors. 1. Impact on historical resources The Club contends that the Park Service failed to consider the “degree to which the action may adversely affect districts [or] sites ... eligible for listing in the National Register of Historic Places.” 40 C.F.R. § 1508.27(b)(8). It did not. The May 1996 EA summarized studies of cultural environmental consequences at Table 2, which included comparisons between each alternative’s “[m]odifications to National Historic Landmark District” and “[disturbance of historic structures.” Further, the Park Service’s responses to public commentary on the EA indicate that new buildings “will be designed in a manner compatible with the Pre-sidio military architecture and therefore would not adversely impact the Presidio National Historic Landmark District.” 2. Unique characteristics of the geographic area The Club contends the Park Service failed to consider the “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, ... or ecologically critical areas.” 40 C.F.R. § 1508.27(b)(3). As described just above, the Park Service did take into account the proximity to historic resources, including the Clubhouse, and the EA is replete with considerations of the unique characteristics of the Presidio and its ecological resources. 3. Highly controversial The Club claims that the Park Service failed to consider the “degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). A review of the public comments and responses discloses mostly specific, localized concerns, such as the number of parking spaces and the use of non-native plants. In the regulations, the term “controversial” is modified by the term “highly,” apparently in recognition that not every controversy is worth consideration. Nevertheless, the Park Service’s responses to public comments reflect the agency’s commitment to considering suggestions of all types. 4. Uncertainty of impacts The Club contends that the Park Service failed to consider the “degree to which the possible effects on the human environment are highly uncertain or involve unique and unknown risks.” Id. at § 1508.27(b)(5). The Club points to the plummeting numbers on its membership rolls as proof that the effects of the proposed clubhouse are uncertain. The loss of members is not an uncertain effect of the public clubhouse, which is yet to be built, but is largely attributable to the loss of course privileges, as discussed above. Nevertheless, the Park Service did consider the impact of the project on the Clubhouse: “The [Park Service] has further determined that the new public facilities will not compete with the private club because it will not offer an expansive environment for exclusive recreation, socializing or evening banquets which the private club facilitates.” There is no indication that the effects on the.human environment wrought by replacing the Army golf course buildings with a new public clubhouse are unique, unknown, or highly uncertain. 5. Precedent for future action The Club claims the Park Service failed to consider the “degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.” Id. at § 1508.27(b)(6). The purpose of that section is to avoid the thoughtless setting in motion of a “chain of bureaucratic commitment that will become progressively harder to undo the longer it continues.” Sierra Club v. Marsh, 769 F.2d 868, 879 (1st Cir.1985). The Club theorizes that because the public clubhouse is the first new construction in the Presidio, it will establish a precedent for what constitutes a sufficient EA. The public golf clubhouse is a unique, independent project, however, and does not serve to establish any precedent. The Club has not shown that any similar or related projects are being contemplated. B. Reasonably foreseeable effects The Club alleges that the Park Service failed to take adequate account of the reasonably foreseeable effects of the new clubhouse on the historic private Clubhouse. After the Club voiced its concerns during the public comment phase of the EA, the Park Service specifically reviewed and considered the risk of competitive harms caused by the new public clubhouse to the old Clubhouse, as reported by the Park Service to state and local historic preservation officers: The proposed new clubhouse would not compete with the PGC clubhouse, as is suggested by the private PGC.... It would not duplicate the private PGC clubhouse in function. Indeed, its function would be the polar opposite. Whereas the PGC clubhouse serves private club members in an expansive environment (roughly 15,000 square feet according to an NPS estimate), offering an exclusive setting for recreation, socializing, and evening banqueting, the proposed clubhouse would be much smaller in scale, and open to any member of the public rather than exclusive and of limited membership.... Dining facilities at the proposed public clubhouse would be informal, and open only during daylight hours. Nevertheless, the Club faults the Park Service’s consideration of the issue as inadequate. “Agencies must consider only those indirect effects that are ‘reasonably foreseeable.’ They need not consider potential effects that are highly speculative or indefinite.” Sierra Club v. Marsh, 976 F.2d 763, 768 (1st Cir.1992). While we have found an adequate string of causation necessary to confer standing, it does not necessarily follow that such a highly attenuated chain of causation as the Club alleges would lead to injuries cognizable under NEPA. NEPA requires “a reasonably close causal relationship between a change in the physical environment and the effect at issue.” Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). We hold that it was neither arbitrary nor capricious for the Park Service not to take fuller account of the remote environmental effects on the historic private Clubhouse that might result from the economic impact of competition from the new public clubhouse. V. Due Consideration of the Club as an “Interested Person” The Club contends that the Park Service erred during the NHPA historic review process by failing to consider the Club an “interested person” and duly consulting with it. By letter of August 19, 1996, the Club requested that the Park Service accord it “interested party” status. The Park Service did not contact the Club until three weeks later, when it wrote to inform the Club that “[a]t this point in time, we do not believe that additional consultation with the [Club] is necessary.” The Park Service argues that it had no duty to include the Club as a consulting party because it issued a “Determination of No Adverse Impact” under NHPA. Instead, the Park Service maintains that its only duty was to consider-the Club’s views, which it believed were amply expressed in a series of detailed letters and comments at public hearings. Those comments included a ten-page letter from the Club’s counsel, Nicholas Yost, dated June 19, 1996; a seven-page letter from the Club’s consultant, Paul Sedway, dated June 17, 1996; an additional two-page letter from Yost, dated June 21, 1996; and live testimony from Yost, Sedway, and the Club’s president, Michael St. Peter, at the formal public hearing on the EA, which was held on June 19,1996. Order at 29 (citations omitted). We agree with the district court’s analysis of this issue: The [Park Service] argues that unless it found an adverse impact on the old Clubhouse, it only needed to consider the views of interested parties, and it did so. Compare 36 C.F.R. § 800.5(a) (in assessing whether a proposal has an effect on a historic property, agency must give “consideration to the views, if any, of interested persons”) with 36 C.F.R. § 800.5(e) (when an adverse effect on a historic property is found, the agency must consult with the [State Historic Preservation Officer], the [Advisory Council on Historic Preservation], and interested parties to seek ways to reduce the effect on the historic property). The Park Service’s responses to public comments, included in the Staff Report’s revised EA, reflects that the Park Service did in fact take into account, but disagreed with, the Club’s concerns: * * * Contrary to the private club’s suggestion, the [Park Service] finds that the proposed undertaking would not isolate the private Presidio Golf Club from the golf course and would not alter the character of the setting of the golf course which makes it eligible for the National Register. The proposed undertaking would simply replace the existing Army facility with a new federal facility that would support public play, and therefore maintain the duel [sic] private club and federal golf course facilities and relationship. New buildings will be designed in a manner compatible with the Presidio military architecture and therefore would not adversely impact the Presidio National Historic Landmark District. * * * * The [Park Service] has further determined that the new public facilities will not compete with the private club because it will not offer an expansive environment for exclusive recreation, socializing or evening banquets which the private club facilitates. * * * * It appears that the Park Service complied with NHPA by giving consideration to the views of interested parties, and was not required to “consult with ... interested persons” because no adverse effect on a historic property was found. 36 C.F.R. § 800.5(e). VI. The District Court’s Reliance upon a “Litigation Affidavit” The Club contends that the district court erred by relying upon the declaration of Stephen G. Crabtree, prepared for litigation purposes. Crabtree is the Regional Chief of Concession Program Management for the Park Service’s Pacific West Region. In 1992, he met with representatives of the Club to discuss the future of the Presidio golf course. The Club representatives expressed a “steadfast desire to remain a private club.” Crabtree’s declaration also describes discussions he had during the planning process with Don Neubacher, head of the planning team, “regarding the potential for use of the private clubhouse” in conjunction with the golf course. Crabtree’s description of the substance of those discussions, set forth in the margin here and quoted in full by the district court, explains what the EA refers to when it uses the term “previous analysis.” The Supreme Court has forbidden district courts from relying upon litigation affidavits and “post hoc ” rationalizations for agency action. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, “[t]he general rule prohibiting post hoc rationalizations is not without exceptions. In Overton Park, the Supreme Court expressly authorized the trial court to allow the Secretary of Transportation to ‘prepare formal findings’ in order to ‘provide an adequate explanation for his action.’ ” Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir.1984) (quoting Overton Park, 401 U.S. at 420, 91 S.Ct. 814). This court in Kunaknana noted that the Ninth Circuit has adopted “the more ‘enlightened’ approach which permits ‘explanation’ of agency decision-making” so as to provide a “satisfactory explanation of agency action [which] is essential for adequate judicial review.” 742 F.2d at 1149. Crabtree’s affidavit explained the Park Service’s prior analyses of the possibility of using the private clubhouse, and the district court found it helpful. The district court did not err in considering it. CONCLUSION While the issue of standing is a close one, we conclude that the Club had standing to contest the decision to construct a new clubhouse. We find that the Park Service’s EA was adequate and that its decision to proceed with the construction of the new clubhouse was neither arbitrary nor capricious. . Crabtree's explanation was as follows: We expected to need a facility able to serve all golfers and expected an increase in facility use. The private clubhouse building would have to be modified in order to provide appropriate public access and sufficient men's and women’s locker rooms and showers, day use food and beverage facilities, a pro shop, and so forth. Reception and lounge spaces were not desirable for our purposes. We discussed whether the building was large enough, whether the layout was adequate, what renovation would have to be done, and other constraints that posed difficulties in the context of use by the increased number of public golfers to be served. Based upon our discussion and consideration of these various factors, we determined that the existing building would require renovation. And, we expected such renovation to be costly. We expected some concern by the residential neighbors of the building to our expanded use and activity in the building. Additionally, we did not control the building and it was not being offered for our use. We expected that acquisition would require congressional authorization, and, or course, that we would have to pay fair market value for the property. Given these reasons and the club's clearly expressed desire to remain a private club, we determined that use of the private clubhouse was not a viable option worthy of a detailed analysis or worth pursuing as a practical matter.

Waterford Citizens' Ass'n v. Reilly

OPINION SPROUSE, Circuit Judge: The Waterford Citizens’ Association (Citizens’ Association), in an action for declaratory judgment, claimed that the Environmental Protection Agency (EPA) is obliged to reinstitute procedures mandated by section 106 of the National Historic Preservation Act (NHPA or the Act) before a contemplated expansion of an existing sewage system can go forward. The district court concluded that the decision was within the EPA’s discretion and dismissed the suit. We affirm the judgment, although on different grounds than those relied upon by the district court. I Waterford is a village of 350 residents located in Loudoun County, Virginia. Because of its Quaker and industrial past, its virtually unchanged appearance since the early 1800s, and the unspoiled landscape which surrounds the village, it is listed on the National Register of Historic Places. In 1970, the Loudoun County Sanitation Authority (Sanitation Authority) contracted for the construction of a sewage collector system and treatment works for Waterford. The sewer system was completed in 1978. Because the project was funded by the EPA and affected a site listed on the National Register, the Sanitation Authority and the EPA were required to comply with the provisions of the National Historic Preservation Act and the regulations promulgated pursuant to it. 16 U.S.C. §§ 470f, 470h-2(f). Section 106 of the Act requires federal agencies to give the Advisory Council of Historic Preservation (Advisory Council) an opportunity to comment on the effect a federal undertaking will have on a historic site. Pursuant to regulations issued under the NHPA by the Advisory Council, the EPA solicited comments regarding the impact of the proposed system upon the historic character of Waterford from the Advisory Council and the Virginia Historic Preservation Officer. The participants agreed that the sewer system would adversely affect the historic site by damaging the buildings and landscape during the construction period and by stimulating growth and development after its construction. When adverse consequences are identified, the Advisory Council’s regulations provide that the granting agency may enter into a Memorandum of Agreement (Agreement) in which it promises to follow appropriate procedures to mitigate those effects. 36 C.F.R. §§ 800.-5(e)(4) and 800.6(c)(1). Accordingly, the EPA, Virginia’s Historic Preservation Officer, and the Advisory Council executed such an agreement. The EPA agreed, inter alia, to ensure that the Sanitation Authority submit any revision of the sewer system’s final plan to the Virginia Historic Preservation Officer. The genesis of this litigation is the 1990 request (twelve years after the completion of the sewer system) of a developer to hook the sewer lines of a proposed townhouse development, located outside of the village boundaries, into Waterford’s sewer system. Although the treatment plant has unused capacity and the hookup will not necessitate an addition to the plant, the hookup will require additional sewer lines. Lou-doun County and the Sanitation Authority indicated that the request would be granted. The Sanitation Authority requested no additional grant money from the EPA for the expansion, nor did it consult with Virginia’s Historic Preservation Officer. The Advisory Council and the Virginia Historic Preservation Officer interpreted the proposed hookup as a revision of the system’s final plan, however, and concluded that it triggered anew the EPA’s obligation. Accordingly, they requested that the EPA comply with the agreement by directing the Sanitation Authority to submit the proposed revisions to Virginia’s Historic Preservation Officer for review, thus reopening the section 106 process. When the EPA refused, the Citizens’ Association filed suit in the United States District Court for the Eastern District of Virginia, asking for a declaratory judgment that section 106 of the NHPA requires the EPA to comply with its agreement by interceding in the proposed expansion of the sewer lines. The EPA responded to the complaint by moving to dismiss on the ground that the Citizens’ Association had failed to' allege standing. The court, however, granted the Association’s motion to amend its complaint on the same day, and the amended complaint alleges standing. The dismissal motion also contended that the complaint failed to state a claim because the EPA has no mandatory duty to “enforce” the Memorandum of Agreement. After a hearing, the court granted the EPA’s 12(b)(6) motion to dismiss, reasoning that because that decision was within the prosecutorial discretion of the EPA, the Citizens’ Association did not have standing to compel the EPA to implement the agreement. II We are . not certain that the district court invoked the doctrine of standing in the traditional sense. In any event, the Citizens’ Association clearly has standing to bring this issue to court. In considering the propriety of a Rule 12(b)(6) dismissal, the standard of review is whether the complaint, accepting the allegations as true, allows a recovery. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). Here, the Citizens’ Association has alleged a threatened injury which can be fairly traced to the conduct of the EPA and which can be redressed by a judicial decision. These are, of course, the two elements necessary to establish standing under Article III of the Constitution. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The Citizens’ Association also meets the test for organizational standing. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974 (4th Cir.1992). This court has recognized the standing of an organization to represent similar interests. See Ely v. Velde, 451 F.2d 1130 (4th Cir.1971). We nevertheless affirm the judgment of the district court. We note at the outset that the scope of the obligations imposed upon federal agencies by the enactment of section 106 is quite narrow. The affirmative duties are clearly stated: agencies “shall prior to the approval ... of the expenditure of any Federal funds on the undertaking ... take into account the effect of the undertaking ...” and “afford the Advisory Council ... an opportunity to comment_” 16 U.S.C. § 470f. In imposing these general obligations, Congress did not create a primary role for federal agencies to protect historic sites. Although the statute requires the EPA to evaluate the effect of the undertaking on the historical site, the language of the statute does not indicate what, if any, further action an agency should take. For example, the statute is silent on the proper disposition of a disagreement between the Advisory Council and the agency over the potential adverse effect of the “undertaking.” Nor does section 106 specify what the Advisory Council’s opportunity to comment on the project entails. The Advisory Council’s regulations and the legislative history, however, demonstrate that the total response required of the agency is quite limited. The Advisory Council has filled the interstices of the statute by defining how federal agencies may discharge their section 106 obligation. See 36 C.F.R. Part 800.1 et seq.; National Center for Preservation Law v. Landrieu, 496 F.Supp. 716, 742 (D.S.C.1980) (Advisory Council has discretion to promulgate regulations defining section 106 obligations), aff'd per curiam, 635 F.2d 324 (4th Cir.1980). Thus, a procedural regulatory scheme guides agencies contemplating a project, or, in the language of the statute, an “undertaking.” The final outcome of that process, however, demonstrates the limited obligation of the agency. Significantly, the regulations state that if the parties are unable to agree to an accommodation of interest, they may end the section 106 consultation process. 36 C.F.R. § 800.5(e)(6). Our review of the legislative history of section 106 substantiates our view that Congress did not intend this provision to impose general obligations on federal agencies to affirmatively protect preservation interests. The Advisory Council has only the authority for “reviewing plans for Federal undertakings and the undertakings of others involving Federal assistance or requiring a Federal license which affect sites, structures, and the like listed in the national register_” H.R.Rep. No. 1916, 89th Cong., 2d Sess., 1966 U.S.C.C.A.N. 3307, 3308. Section 106’s purposes are limited to ensuring that “the Federal agencies will not work at cross purposes with the goals of historic preservation” and to providing “a meaningful review of Federal or federally assisted projects which affect historic properties identified on the national register.” S.Rep. No. 1363, 89th Cong., 2d Sess. 8 (1966). These limited purposes are supported by the remarks of legislators considering section 106 which emphasize that the purpose of the provision is to promote a cooperative exchange of information. The Advisory Council will advise and report on measures which coordinate the efforts of government agencies and private parties in federal undertakings. 112 Cong.Rec. 25942 (1966) (statement of Rep. Saylor). Furthermore, the committee intended “to provide an opportunity for the Government to coordinate activities affecting historic preservation.” This was made necessary because “[gjovernment departments ... need to know what other departments are doing-” Id. (statement of Rep. Widnall). “[N]o Federal agency may make money available under ... programs ... which will affect a historically significant structure until account has been taken of these effects and until opportunity has been given the Advisory Council on Historic Preservation ... to comment on the plan.” Id. at 25940 (statement of Rep. O’Brien). There is thus no suggestion in either the statute or the legislative history that section 106 was intended to impose upon federal agencies anything more than a duty to keep the Advisory Council informed of the effect of federal undertakings and to allow it to make suggestions to mitigate adverse impacts on the historic sites under its protection. Rather than requiring agencies to independently protect historic preservation interests, it encourages them to do so by facilitating dialogue and consultation. We agree with the Court of Appeals for the District of Columbia that the provisions of NHPA “are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.” Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989). Here, the EPA, Virginia’s Preservation Officer, and the Advisory Council engaged in the consultation required by the statute and, pursuant to the regulations, entered into the Memorandum of Agreement. The specific section of the agreement at issue requires the EPA, .under certain circumstances, to take steps that reopen the section. 106 process. The Citizens’ Association concedes that, absent the agreement, the EPA would have no duty to reinstitute the section 106 procedures. It strenuously urges, however, that the agreement remained in effect—even after the completion of the original project, and that the EPA is therefore required to comply with its terms. According to the Citizens’ Association, the developer’s application to add new lines to the sewer system is subject to that agreement and therefore the section 106 consultation must be reopened. We have no doubt that the EPA was bound by the Memorandum of Agreement for the period of the undertaking. See National Center for Preservation Law v. Landrieu, 496 F.Supp. 716 (D.S.C.), affd per curiam, 636 F.2d 324 (4th Cir. 1980). In our view, however, the EPA’s obligations under it were extinguished by the completion of the sewer system. In effect, the Citizens’ Association asks us to rule that the obligation assumed in the agreement itself somehow satisfies the section 106 threshold requirement that an “undertaking” exists. We decline to do so. In our view, federal licensing or funding is required for there to be a statutory undertaking. The EPA’s obligation under the Memorandum of Agreement is simply not sufficient. The Citizens’ Association argues that an undertaking exists in this case because the EPA has a continuing opportunity—stemming from the agreement—to exercise authority. See McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 759 F.Supp. 908, 915 (D.D.C.1991) (undertaking exists where federal agency had veto power amounting to a licensure); WATCH v. Harris, 603 F.2d 310, 319 (2d Cir.) (undertaking exists where federal agency continuously approved funds) cert, denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 275 (3rd Cir.1983) (undertaking exists where federal agency had ongoing involvement with project). Our reading of these cases, however, leads us to conclude that they do not go as far as the Citizens’ Association argues, largely because they consider compliance with section 106 rather than with a Memorandum of Agreement, and also because they involve continuous, ongoing federal projects. We agree with the EPA that the obligation it assumed by executing the Memorandum of Agreement lasted only through the life of the original project. The language of section 106, the case law interpreting that language, and its legislative history indicate that the obligations of federal agencies under section 106 relate only to an ongoing “undertaking.” Although section 106 authorizes an agreement and although a resultant agreement is binding on the parties to it during the “undertaking,” the agreement does not, in turn, perpetuate responsibility extending beyond the term of the undertaking—here the construction of the original sewer project. The judgment of the district court is, therefore, affirmed. AFFIRMED. . The Waterford Citizens' Association is a nonprofit unincorporated group of village residents whose purpose is to preserve Waterford’s historic character. . The Citizens’ Association sued the parties to the agreement at issue — the EPA, the Advisory Council on Historic Preservation, and Virginia’s Department of Historic Resources; the court allowed the Loudoun County Sanitation Authority to intervene because a decision for the Citizens’ Association 6350 35 9 would affect its ability to expand the sewage system. . The system was conceived to eliminate the health hazards of the existing "system” of privately maintained septic tanks and cesspools. The new system is composed of 10,400 linear feet of eight inch diameter sewer lines, located largely within the village, and the treatment facility, located outside the village boundary near Catoctin Creek. . The project was funded by the EPA under the Federal Water Pollution Control Act, 33 U.S.C. § 1251. The EPA made the final grant payment to the Sanitation Authority in 1985. . Section 106, in its entirety, reads: Effect of Federal undertakings upon property listed in National Register; comment by Advisory Council on Historic Preservation The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. . See 16 C.F.R. Part 800. . The system was designed to serve the existing lots within the village boundaries and to provide sewer services for a population of 557. When the system was designed, it was anticipated that the development of vacant lots within the village limits would support a population of 557 people by the year 2000. The current population of the village is 350. . Nor do we believe that this dispute implicates the prosecutorial discretion of the EPA. As we explain below, the EPA is not obliged to enter into an Memorandum of Agreement. Once it has done so, however, it has voluntarily assumed an obligation that is enforceable for as long as it is involved in the project. See 36 C.F.R. § 800.6(c) (stating that an agency "shall carry out the undertaking in accordance with the terms of the agreement' and that failure to do so reinstitutes the agency’s section 106 obligation) (emphasis added). . An undertaking is a new or continuing project, activity, or program "under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency” which can change the character or use of a historic property. 36 C.F.R. § 800.2(o). The regulations require the agency to assess the negative effects of the project on the historic properties. 36 C.F.R. § 800.5. If the participants agree on how to mitigate any adverse effects, they may enter into a Memorandum of Agreement which will govern the construction of the "undertaking." 36 C.F.R. § 800.5(e)(4). The agency is then obliged to “carry out the undertaking in accordance with the terms of the agreement.” 36 C.F.R. § 800.-6(c)(1). . The Memorandum of Agreement states: The Environmental Protection Agency will insure that the grantee, the Loudoun County Sanitation Authority, will submit any revisions to the final plans for the sewer system project to the Virginia State Historic Preservation Officer for review and approval. If the Virginia State Historic Preservation Officer finds that the final plans significantly deviate from the plans originally approved by his office so as to be detrimental or to cause an adverse effect to the setting and integrity of the Waterford Historic District, he will so notify the Advisory Council on Historic Preservation and the Environmental Protection Agency, and the Section 106 consultation, pursuant to the National Historic Preservation Act of 1966, will be reopened to attempt to mitigate the adverse effect. The grantee will provide adequate plans and accompanying information to the Virginia State Historic Preservation Officer to facilitate his review. These plans and accompanying information will contain details of proposed actions, if any, affecting the trees, walls, and sidewalks within the Waterford Historic District.

Old Town Neighborhood Ass'n v. Kauffman

EASTERBROOK, Circuit Judge. Municipal officials want to widen Third Street in Goshen, Indiana. Groups believing that this project would damage or destroy buildings of historic or architectural significance filed this suit under three federal statutes: Sections 106 and 110 of the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470f and 470h-2(k); Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c); and § 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C). These laws specify steps that must precede certain federal decisions. Goshen insists that they have nothing to do with local projects. The district court did not dispute this proposition but found, after an evidentiary hearing, that federal participation was in the offing. The judge summarized his conclusions this way: Plaintiffs have shown a substantial likelihood ... that the Third Street project has been improperly “segmented” from a major federal undertaking — improvement of U.S. Highway 33 through downtown Goshen — that is subject to environmental and historic impact review. The evidence indicates that the City of Goshen, the Indiana Department of Transportation, and the Federal Highway Administration have reached an understanding that the City of Goshen should carry out its Third Street project without environmental and historic impact review, and then carry out a “swap” of Third Street and Main Street so that U.S. 33 and State Road 15 will be shifted to use the widened and improved Third Street. The defendants discussed such a scheme, never definitively rejected it, and have acted in a way that is consistent "with the scheme. In addition, the scheme makes a great deal of sense, at least from the standpoint of managing traffic through the city. It also offers the apparent advantage of sparing defendants from having to go through formal review of environmental and historic impacts of their desired course of action. 2002 U.S. Dist. LEXIS 23510 at *3-4, 2002 WL 31741477 (S.D.Ind. Nov. 15, 2002). The judge entered a preliminary injunction forbidding local, state, and federal officials from taking any further action to widen Third Street until they have complied with all three statutes. Goshen has appealed; Indiana and federal officials have not, nor have they filed briefs informing us about their positions with respect to the district court’s reasoning and relief. Yet unless the Federal Highway Administration accepts the district court’s view and treats Third Street as a federal undertaking, no findings will be made and no environmental analysis done; and, if not, Goshen will be perpetually banned from using local funds to carry out a local project. For purposes of Goshen’s appeal, we take as established all of the district court’s factual findings: that Goshen would like Route 33 to go through Third Street eventually; that local, state, and federal officials have discussed this possibility favorably; and that neither the state nor the federal government has definitively rejected the option. But it has not been formally proposed to or discussed with (let alone approved by) the senior federal officials who would be responsible for making the decision. No federal funds have been allocated. No concrete federal proposals have been made; no reports or recommendations on any proposals have been prepared. This is fatal to the plaintiffs’ claim under NEPA, which provides that “all agencies of the Federal Government shall — ... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on” five categories of information. 42 U.S.C. § 4332(2)(C). Because no federal official has prepared a “recommendation or report” on any proposal concerning Route 33, the time for an environmental impact statement has not arrived. See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Once a federal proposal has been made and an environmental assessment of some kind is required, a court may need to determine which subjects it must cover; this is the “segmentation” question, see Swain v. Brinegar, 542 F.2d 364 (7th Cir.1976) (en banc), to which the district court devoted much attention. But that lies in the future; the Supreme Court held in Kleppe that, until a formal proposal is made, no environmental study of any. particular scope is needed. And when the federal agency does make a proposal, decisions about its scope must be reviewed deferentially. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Courts may not make independent decisions, as the district judge did here. Until there is a concrete proposal, it is impossible to determine whether the federal agency has acted arbitrarily or capriciously in choosing the scope of the project and environmental study. The other statutes on which plaintiffs rely depend on federal licensing, ownership, or funding. Section 106 of NHPA says that: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. 16 U.S.C. § 470f. This statute sets conditions on the expenditure of federal funds and the issuance of federal licenses. As Goshen has not sought any federal support for the renovation of Third Street, no federal dollars have been obligated, and no federal license is required, it is unnecessary to satisfy these conditions. For its part, § 110 imposes duties, on federal agencies with respect to “historic properties which are owned or controlled by such agency.” 16 U.S.C. § 470h-2(a)(l). The district court did not find that the Federal Highway Administration owns or controls Third Street or any of the adjoining properties, so this law drops out. As for § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), this statute tells us that: The Secretary may approve a transportation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. No one has asked the Secretary of Transportation to approve any program or project related to Third Street in Goshen, so there was no need for the Secretary to consider whether any prerequisites for approval have been satisfied. Entities that proceed on their own dime need not meet conditions for federal assistance or approval. What concerned the district judge is the possibility that Goshen will seek reimbursement after the fact — either in cash or in money’s worth, such as a swap of Third Street for land now owned by the federal government. Once the historic structures have been razed, the Secretary could certify that the federal approval or expenditure does not affect any historic site; for none would be standing. That two-step would subvert the federal laws. It is not at all clear that decomposing the transaction into “local” demolition followed by federal ■ reimbursement could succeed. Does any statute authorize the Secretary or the Administrator to reimburse local government for the cost of a project after its completion? If there is such authority, however, a court may combine the stages, after the fashion of the step-transaction doctrine in tax law, into a sequence. If there really is an agreement that Goshen will prepay the costs of widening Third Street, following which the Secretary will approve reimbursement, then the federal government effectively is borrowing the construction costs from Goshen. Promising to repay borrowed money is just a particular way to obligate federal funds, no less subject to § 106, of NHPA than any other means to write a check. But if, as Goshen insists, there will never be federal reimbursement, there is no series of stages to be compressed into one transaction and no problem under these federal statutes. This means that the district court afforded plaintiffs the wrong relief. Instead of enjoining all construction work on Third Street until the federal government has jumped through the hoops needed to fund a federal project, the district court should have enjoined Goshen from seeking or accepting federal reimbursement. In other words, because thése federal laws do not apply to local projects funded by local tax revenues, and Goshen insists that the widening of Third Street is a genuinely local project, it satisfies all of the federal statutes just to hold the City to its representation. If Goshen files with the court a formal undertaking that will be embodied in an injunction (and thus enforceable through the contempt power) never to seek or accept any federal reimbursement, direct or indirect, for the cost of widening Third Street, the City should be allowed to proceed with the work. Before accepting the undertaking, the district court should ensure that it would not disrupt any federal plans that take precedence under the Supremacy Clause. But unless the state or federal government finds in the City’s undertaking a transgression of some other federal law, regulation, or undertaking, the City is entitled to opt out of federal reimbursement and the conditions attached to federal money. If the City balks at making an ironclad commitment, however, and if as a result federal reimbursement remains in prospect, then the City must keep the work on hold until the conditions of federal support have been satisfied. The preliminary injunction is vacated, and the case is remanded for further proceedings consistent with this opinion.

Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transportation Board

OPINION OF THE COURT ROTH, Circuit Judge: The Enola Branch is a 66.5 mile railroad line which was built in the early Twentieth Century and was known as one of the remarkable engineering feats of that time. Petitioner, Friends of the Atglen-Susqu-ehana Trail, Inc. (FAST), seeks judicial review of a final order of the Surface Transportation Board (STB) permitting abandonment of the Enola Branch. FAST challenges the manner in which the STB carried out its responsibilities under § 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f. In particular, FAST objects to the manner in which the STB identified and protected historic properties along the line, to the STB’s failure to consider evidence that the corridor as a whole was entitled to protection as a historic property, and to the manner in which the STB terminated consultation on a plan to protect historically eligible property. For the reasons that follow, we will vacate the STB’s decision and remand this matter to it for further consideration. I. REGULATORY BACKGROUND A. ABANDONMENT OF RAIL LINES FAST seeks review of the actions of the STB in the exercise of its exclusive regulatory jurisdiction over rail carriers and rail transportation, particularly its jurisdiction to permit a rail carrier to abandon or discontinue use of an existing rail line that might qualify as or contain historic property. We begin, therefore, with an overview of the relevant regulatory landscape. A rail carrier intending to abandon, and to be released from its obligations to retain or operate, any part of its railroad lines must file an application to do so with the STB and such abandonment must adhere to certain established procedures. See 49 U.S.C. § 10903(a)(1)(A); see also 49 U.S.C. §§ 10903-10907. The STB is empowered to exempt a transaction from the ordinary regulatory requirements if the STB finds that the ordinary procedures are not necessary to carry out federal transportation policy and that either the transaction is limited in scope or the full application procedures are not necessary to protect shippers from any abuses of market power. See 49 U.S.C. § 10502(a). The abandonment of a rail line or corridor will qualify as an exempt transaction if the carrier certifies that no local traffic has moved over the line for at least two years, that any traffic on the line can be rerouted over other fines, and that no formal complaints, regarding cessation of service on the fine, are pending or have been decided within that two-year period. See 49 C.F.R. § 1152.50(b). This process is intended to be an expedited one. The exemption, and therefore permission to abandon the rail line, becomes effective 30 days after publication of notice in the Federal Register. See 49 C.F.R. § 1152.50(d)(3); see also 49 U.S.C. § 10502(b) (“Any proceeding begun as a result of an application under this subsection shall be completed within 9 months after it is begun.”). An exempt abandonment remains subject to any conditions that the STB may impose upon it. If the STB agrees that a proposed abandonment is exempt and allows the abandonment to proceed under the expedited procedures, the STB must consider certain factors prior to permitting the abandonment to become final. See 49 C.F.R. § 1152.50(a)(2). First, the STB must consider and determine whether the rail properties to be abandoned are appropriate for use for public purposes. See 49 U.S.C. § 10905; 49 C.F.R. § 1152.28(a)(1). If the STB finds that the properties are appropriate for public use, the STB is authorized to impose conditions on the abandonment of the property by the carrier. Such conditions may include a prohibition on the disposal of the property for a period of 180 days unless the property is first offered, on reasonable terms, for sale for public purposes. See 49 U.S.C. § 10905; 49 C.F.R. § 1152.28(d). Second, the STB must consider possible interim trail use or rail banking, should any state, political subdivision, or qualified private organization be interested in acquiring or using the rail fine right-of-way in such a manner. See 16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29. Third, the STB must comply with the requirements of § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. The exemption procedures of § 10502 and § 1152.50 are intended to expedite the approval of the proposed abandonment by making it effective almost immediately, subject to any conditions imposed by the STB. Consideration of the § 106 historic preservation process, on the other hand, necessarily requires the STB to proceed more slowly. The fact that Congress has introduced a procedure which permits the slowing of the overall abandonment process reflects Congress’s intent to balance immediate, fast-track approval of the abandonment by the carrier with a more deliberate consideration of preservation of historically significant properties. See Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 695-96 (3d Cir.1999) (citing Illinois Commerce Comm’n v. ICC, 848 F.2d 1246, 1260-61 (D.C.Cir.1988) (describing § 106 as “stop, look, and listen” provision requiring an agency to acquire information before acting)). B. HISTORIC PRESERVATION Section 106 of the NHPA provides as follows: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. 16 U.S.C. § 470f. The NHPA is a procedural statute designed to ensure that, as part of the planning process for properties under the jurisdiction of a federal agency, the agency takes into account any adverse effects on historical places from actions concerning that property. See Mortis County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 278-79 (3d Cir.1983). The STB, as a federal agency, must adhere to § 106 in considering and approving exemption or abandonment of a rail line. See 36 C.F.R. § 800.2(a). The Advisory Council on Historic Preservation (ACHP) has promulgated regulations outlining the procedures to be followed by an agency in satisfying its responsibilities under § 106, codified at 36 C.F.R. Part 800. See Morris County Trust, 714 F.2d at 280 (“[T]he Advisory Council’s regulations are particularly persuasive concerning the proper interpretation of NHPA”) An agency is expected to consult with various interested parties throughout the § 106 process, including the State Historical Preservation Officer (SHPO), who is the state official appointed or designated, pursuant to § 101(b)(1) of the NHPA, 16 U.S.C. § 470a(b)(l), to administer the state historic preservation program. See 36 C.F.R. § 800.16(v); see also 16 U.S.C. § 470a(b)(3) (establishing the responsibilities of the SHPO). The agency, in consultation with the SHPO, must also involve the public in the process, see 36 C.F.R. § 800.3(e), and identify other parties that should be invited to participate in the process as consulting parties, including local governments and those parties that request to participate in the process. See 36 C.F.R. § 800.3(f)(l-3). The ACHP itself must be afforded a “reasonable opportunity to comment on such undertakings.” 16 U.S.C. § 470f; 36 C.F.R. § 800.1(a); see also Concerned Citizens, 176 F.3d at 695 (holding that the Council’s comments must be taken into account and integrated into the deci-sionmaking process). The ACHP regulations establish a three-step process: identification of historic properties; assessment of any adverse effects of the proposed undertaking on such properties; and creation of a plan to avoid, minimize, or mitigate those adverse effects. See 36 C.F.R. § 800.1(a). The agency, in consultation with the SHPO and other interested parties, may address multiple steps in one consultation as long as all parties are given an adequate opportunity to comment. See 36 C.F.R. § 800.3(g). In order to identify historic properties, the agency must apply the criteria established for the National Register of Historic Places (National Register) to identify properties and to determine whether they would be eligible for the National Register. See 36 C.F.R. § 800.4(c)(1). Significantly, the regulations provide that the “passage of time, changing perceptions of significance, or incomplete prior evaluations may require the Agency Official to reevaluate properties previously determined eligible or ineligible.” 36 C.F.R. § 800.4(c)(1). If the agency and the SHPO agree that the criteria for the National Register have been met, the property or portion thereof shall be considered eligible for the National Register for § 106 purposes. See 36 C.F.R. § 800.4(c)(2). If the agency and the SHPO agree that the criteria have not been met, the property is considered ineligible. See id. If the agency and the SHPO do not agree, or if the ACHP or the Secretary of the Interior so requests, the agency “shall” obtain a determination from the Secretary, acting through the Keeper of the National Register (Keeper), as to the historic eligibility of the property. See id. Other courts of appeals have held that this determination by the Secretary or the Keeper should be conclusive. See Moody Hill Farms Ltd. Partnership v. United States Department of the Interior, 205 F.3d 554, 558 (2d Cir.1999) (describing the independent authority of the Keeper, on behalf of the Secretary, to determine whether a property should be listed as historic); Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 441 n. 13 (9th Cir.) (noting that the Secretary’s opinion as to the historic eligibility of property is conclusive). If the agency finds that there are no historic properties that will be affected by the undertaking, the agency must document its findings and provide such documentation to the ACHP, the SHPO, and other consulting parties. The SHPO and the ACHP have 30 days to object to that finding; otherwise, the agency’s § 106 responsibilities are deemed completed. See 36 C.F.R. § 800.4(d)(1). If the agency finds that there are historic properties that may be affected, the agency must notify all consulting parties and invite their views on the effects of the proposed undertaking and their assessments of any adverse effects. See 36 C.F.R. § 800.4(d)(2). An adverse effect is found when the undertaking may alter, directly or indirectly, any of the characteristics that make a property historic and eligible for inclusion in the National Register. See 36 C.F.R. §§ 800.5(a)(1), 800.16(i). Such adverse effects include physical destruction of or damage to all or part of the property, alteration of the property, removal of property from its historic location, or a change in the character of the property’s use. See 36 C.F.R. § 800.5(a)(2). The regulations establish the steps that an agency must take in determining whether or not there are adverse effects and in notifying interested parties of its findings. See 36 C.F.R. § 800.5. However, agencies, as did the STB here, will often assume the occurrence of adverse effects to properties identified as historic. Once the agency finds (or assumes) the existence of adverse effects, the agency must continue consulting with the parties in order to resolve such adverse effects and to develop and evaluate alternatives or modifications to the undertaking that will avoid, minimize, or mitigate such effects. See 36 C.F.R. §§ 800.5(d)(2), 800.6(a). The agency must also notify the ACHP of the adverse effect finding and provide certain specified documentation. See 36 C.F.R. § 800.6(a)(1). The process then moves to the third and final step, the resolution of adverse effects and the development of a plan to avoid, minimize, or mitigate the adverse effects. At this stage, the SHPO and any other consulting parties may invite the ACHP to participate in the consultation; under certain circumstances, the ACHP must be invited to participate. See 36 C.F.R. §§ 800.6(a)(l)(i), (ii). The agency and the other consulting parties may also agree to invite new parties to consult. They are required to invite any organization that will play a specific role or assume special responsibility in any mitigation plan. See 36 C.F.R. § 800.6(a)(2). The ACHP has discretion at this stage to decide if it will consult formally. See 36 C.F.R. § 800.6(a)(l)(iii); see also 36 C.F.R. Part 800 App. A (setting forth criteria that the ACHP uses to determine whether formally to enter a particular § 106 review). Its decision determines how the agency must proceed. If the ACHP chooses not to join the consultation formally, section 800.6(b)(1) of the ACHP regulations controls. The agency consults with the SHPO and other consulting parties in devising a plan to avoid or mitigate the adverse effects. If the agency and the SHPO agree on a plan, they execute a Memorandum of Agreement (MOA), a copy of which must be submitted to the ACHP for its comments prior to the agency approving the undertaking. See 36 C.F.R. § 800.6(b)(l)(iv); see also 36 C.F.R. § 800.6(c)(l)(i). An executed MOA evidences the agency’s compliance with § 106 of the NHPA and governs the carrying out of the federal undertaking. See 36 C.F.R. § 800.6(c). If the agency and the SHPO fail to agree on a plan, the agency must ask the ACHP formally to join the consultation. See 36 C.F.R. § 800.6(b)(l)(v). If the ACHP again declines to consult formally, it must provide comments on the undertaking and on the status of the § 106 review, which the agency must consider in reaching any final decision as to mitigation. See 36 C.F.R. § 800.6(b)(l)(v); see also 36 C.F.R. § 800.7(c). If, at any point, the ACHP formally joins the consultation on mitigation, section 800.6(b)(2) controls. The ACHP must execute the MOA along with the agency, the SHPO, and any other consulting parties. See 36 C.F.R. § 800.6(b)(2); see also 36 C.F.R. § 800.6(c)(l)(ii). Any party that assumes a responsibility in carrying out the MOA may also be asked to be a signatory to the MOA. See 36 C.F.R. § 800.6(c)(2)(H). If, at any point during consultation, the agency, the SHPO, or the ACHP determines that further consultation will not be productive, any of them may, upon notice to the other consulting parties, terminate consultation. See 36 C.F.R. § 800.7(a). If the agency terminates the consultation, it must request and receive comment from the ACHP. See 36 C.F.R. § 800.7(a)(1). Comments from the ACHP are governed by § 800.7(c). The ACHP has 45 days from receipt of a request to provide comments on an agency’s termination of mitigation consultation, pursuant to § 800.7(a)(1), or on an agency’s statement that it is unable to reach an MOA through consultation with the SHPO alone, pursuant to § 800.6(b)(l)(v). See 36 C.F.R. § 800.7(c)(2). The agency must take these comments into account in reaching a final decision on the undertaking, see 36 C.F.R. § 800.7(c)(4), and the agency is required to document that it did so by explaining its decision and providing evidence that it considered the ACPIP’s comments. See 36 C.F.R. § 800.7(e)(4)(i); see also Concerned Citizens, 176 F.3d at 696 (stating that the “relevant agency must demonstrate that it has read and considered” the opinions and recommendations of the ACHP). This decision and explanation is to be provided to the ACHP, to all consulting parties, and to the public prior to the final approval and carrying out of the undertaking. See 36 C.F.R. §§ 800.7(c)(4)(i — iii). II. FACTS There is no dispute as to the underlying facts or the course of the regulatory proceedings in this matter. In October 1989, Conrail filed a Notice of Exemption with the ICC, seeking to abandon the Enola Branch, a 66.5-mile rail corridor running through Lancaster and Chester Counties, in Pennsylvania. Conrail certified that no traffic had moved over the line for two years. There is no suggestion that Conrail did not adhere to the filing and notice requirements for seeking an exemption. Lancaster County objected to Conrail’s petition, primarily seeking a public use or interim trail use and rail banking condition on the exemption. Although the County did not expressly raise § 106 or seek a historic condition on the abandonment, it did provide the following description of the rail line to the ICC: The Enola Branch railroad line itself is a historically significant resource. Pennsylvania Railroad President A.J. Cassett built the railroad line as a passenger route through Pennsylvania and Ohio in the first decade of this century. It was once a vital east-west freight line for southeastern Pennsylvania. The families of Italian laborers constructed the line and now inhabit the Quarryville area. The railroad corridor is designed and constructed to have little slope, so it either cuts into the ground or is elevated over most of its length. The project is known as one of the most remarkable engineering feats of its time. The physical impacts of the corridor on adjacent land owners is negligible. The line is very well designed with the landscape to limit obtrusiveness to the natural character of the area. It is said the earth moving involved in the project rivaled that of the construction of the Panama Canal. The ICC issued an Order on February 22, 1990 (1990 Order) in which it granted to Conrail the exemption, subject to three conditions: 1) that Conrail keep intact all the right-of-way underlying the track, including bridges and culverts, for a period of 180 days, to allow for the negotiation of a public use acquisition; 2) that Conrail comply with terms and conditions for implementing possible interim trail use and rail banking; and 3) “that Conrail take no steps to alter the historic integrity of the bridges on the line until completion of the section 106 process of the National Historic Preservation Act, 16 U.S.C. § 470.” Negotiations between Conrail and Lancaster County to preserve the line, either through sale for public use or for interim trail use and rail banking, proved unsuccessful, despite extensions well beyond the 180-day period provided for in the 1990 Order. The record indicates that the trail use plan fell through in part because FAST was unable to act as a financially responsible party for an interim trail use or to find a public sponsor, as required under 49 C.F.R. § 1152.29(a)(2). On April 19, 1993, the ICC denied Lancaster County’s request for a further extension of the negotiating period, vacated the trail use condition, and granted Conrail permission to abandon the line (1993 Order). The remaining condition on abandonment was for the preservation of historically significant properties, pending STB’s completion of the § 106 process. The 1990 Order only required preservation of the historic integrity of the bridges on the line. This limitation apparently was based on a 1989 telephone conversation between a member of the ICC’s Section of Environmental Analysis (SEA) and Pennsylvania’s SHPO, the Pennsylvania Historical and Museum Commission, Bureau for Historic Preservation (PHMC). In that conversation, the SHPO indicated that some or all of the 83 bridges on the line potentially were eligible for inclusion in the National Register but that it had not completed its review. The 1990 Order did not discuss or address the comments from Lancaster County about the historic significance of the line as a whole. The ICC also never sought a determination from the Secretary of the Interior or the Keeper as to the historic eligibility of the line as a whole or of other portions of the rail corridor. The 1990 Order made no final identification of eligible historic properties but limited the scope of possible historic properties to some or all of the bridges on the line, as initially identified by the SHPO in the telephone conversation. The ICC then followed its common practice of assuming that abandonment of the Enola Branch corridor would adversely affect the rail properties identified as historic, i.e., some or all of the 83 bridges. The ICC therefore proceeded to the third step in the § 106 process, development of a plan to avoid, minimize, or mitigate the adverse effects. The record does not indicate, however, that the ICC notified the ACHP of the presumptive finding of adverse effects. The final, mitigation stage of the § 106 process was also a long one. It was complicated by the fact that in April 1996, FAST petitioned the STB to reopen the proceedings and to broaden the § 106 condition to encompass the entire Enola Branch, as the eligible historic property to be preserved. In its petition, FAST relied on a letter dated February 24, 1994, from Brenda Barrett, director of the PHMC (the Pennsylvania SHPO), to Wendy Tippetts of an organization known as “TWO.” In that letter, Barrett stated that, in the opinion of the SHPO, the Enola Branch and the At-glen & Susquehana Branch both were eligible for listing in the National Register. The STB was sent a copy of the letter. The STB responded to the petition on October 2, 1997 (1997 Order) by ordering that 1) the proceeding was reopened, 2) the request by FAST to expand the condition to include the entire Enola Line was denied, and 3) the § 106 condition imposed in 1990 was modified to encompass only 32 bridges on the line and archaeological sites near 36 bridges as the properties eligible for listing in the National Register. In explaining its decision to deny FAST’s petition to expand the scope of the eligible historic property, the Board stated that Neither FAST nor the SHPO has provided any justification for the SHPO’s apparently changed position with regard to eligibility of the entire line in the National Register. Indeed, the SHPO letter submitted by FAST does not even acknowledge that the SHPO had ever reached a previous determination on this matter.... It is clear that the SHPO was originally concerned only with the eligibility of certain bridges and archaeological sites for section 106 purposes. The fact that certain items were included in the SHPO’s original opinion while others were excluded indicates that the SHPO did not originally consider the entire line eligible. FAST timely petitioned for reconsideration of the refusal to reopen the proceedings and to expand the identified eligible historic properties. With that petition pending, the parties proceeded along separate tracks. FAST and other interested parties requested that the STB formally submit the question of the historical significance of the Enola Branch line as a whole to the ACHP for referral to the Secretary of the Interior and the Keeper for a conclusive determination. When FAST received no response from the STB, FAST asked the ACHP to become involved in the process. The ACHP wrote to the STB in March 1998, asserting that the STB never notified the ACHP of its finding of adverse effects, never identified potentially interested parties to consult on the § 106 process, and never informed the ACHP as to how it identified eligible property. The ACHP requested that it be included in the § 106 process and that it be provided background documentation. The STB never responded to this letter. Meanwhile, the STB proceeded as if the first two steps of the § 106 process, identification of eligible properties and determination of adverse effects, had been concluded and the only remaining step was to devise a plan to mitigate the adverse effects on the bridges and archaeological sites that it had identified as eligible properties. The STB formally consulted with the SHPO and Conrail; the record does not indicate that the STB formally invited the ACHP to consult on the mitigation plan. In August 1998, the STB drafted an MOA, memorializing terms that had been agreed upon by the SHPO, Conrail, and the STB. The plan provided that 1) Conrail wrould perform recordation of five identified bridges to State Level Recordation Standards prior to the demolition of those bridges, 2) Conrail would provide funding in excess of $15,000 to the Railroad Museum of Pennsylvania for development of a 6-8 minute video outlining the history of the Enola Branch, 3) Conrail would convey segments of the abandoned line and bridges to local townships and would provide the municipalities with an agreed sum of money for future maintenance of those bridges. The MOA was submitted to the SHPO and Conrail for execution, to the ACHP for approval, as well as to FAST and the Historic Preservation Trust of Lancaster County (the Trust) for comments. In the transmittal letter to the ACHP, the STB for the first time broached the possibility of breaking off consultation, stating that “[i]f it appears that further consultation would not be productive, we will terminate consultation.” The SHPO declined to sign the MOA, citing the ACHP’s concerns that it had not been asked to consult in the development of the MOA; the SHPO withheld further review and signature of the plan until the STB had consulted with the ACHP. FAST stated specific objections to the draft MOA, noting FAST’s desire to preserve the line and to establish a trail on the corridor. FAST also objected to the manner in which public input had been gathered for the project. The ACHP, upon receipt of the draft MOA, asserted that the matter of the STB’s overall compliance with § 106 “remains unresolved” and that “serious shortcomings persist in STB’s evaluation of historic properties, solicitation of public input, evaluation of alternatives, and, development of a mitigation plan.” Further, the ACHP discussed the provisions in the § 106 regulations that provide for reevaluation of determinations of eligibility and for the possible involvement of the Secretary of the Interior. The ACHP concluded that “the eligibility issue regarding the historic significance of the entire Enola Branch Line will need to be resolved before we can consider the draft MOA.” The ACHP stated that only after receiving formal comments from the Keeper could the ACHP evaluate whether all possible effects had been considered. The ACHP also suggested a meeting among the STB, the SHPO, Conrail, and the ACHP. In its February 1, 1999, response, the STB described the manner in which it had carried out the identification process and asserted that the identification and effects phases of the § 106 process had been completed and need not be reopened. The STB specifically noted that changed perceptions or evaluations of what is historically significant and therefore eligible for the National Register may indeed justify reevaluation or reopening of proceedings but did not necessarily require such a result. Because the STB had found inadequate justification for reopening the identification stage, it continued to decline to do so. The STB solicited anew the ACHP’s comments on mitigation and the MOA. The ACHP, on February 26, 1999, formally referred the matter to the Secretary of the Interior and informed the STB that, pending receipt of the Keeper’s findings, it believed that the identification and evaluation requirements had not been met. The ACHP further asserted that, if the STB continued its efforts to finalize the draft MOA, it would be in violation of its statutory and regulatory obligations. In April 1999, the Keeper issued a determination that the entire 66.5-mile Enola Branch line was eligible for designation in the National Register. The determination stated: Constructed by the Pennsylvania Railroad between 1902 and 1906, the entire 66.5 mile Enola Branch Line is eligible for the National Register of Historic Places for its historic and engineering significance. Built as a significant component of the Pennsylvania Railroad system, the Enola Branch line was an important engineering feat of the early 20th century. The Enola Branch Line differed from other railroads of the period in that it was designed to have no contact with other vehicular routes, and it was to run almost completely level and in a straight line. This straight line, with low radius curves and very little change in grade, provided improved and efficient delivery of freight by rail. Building the line necessitated vast amounts of cutting and filling and the construction of numerous stone bridges and culverts built by skilled Italian stone masons. On August 13, 1999 (1999 Order), the STB denied FAST’s petition for reconsideration of the 1997 Order, holding that FAST had not made the required showing of material error, new evidence, or changed circumstances warranting reconsideration. The Board declined to give substantial weight to the one new piece of evidence, a letter to the Trust from the Curator of Transportation of the National Museum of American History. The STB found that the letter could have been presented earlier and noted that the Curator took no formal position in the matter. The STB also declined to reconsider the import of the TWO letter, noting that FAST still had not explained the discrepancy between that letter and the SHPO’s formal position on the record before the STB that the only issue remaining in the proceeding was mitigation. The STB similarly rejected the Keeper’s statement of eligibility, describing it as “pro forma.” The STB emphasized that its identification decision had been based on an agreement with the SHPO about the properties to be protected (all of the bridges, later narrowed to 32 bridges and 36 archaeological areas) and that under these circumstances, to restart the identification process to include the entire rail line “would add inexcusable delay to a process that has already taken much too long.” The STB then terminated the consultation process and removed the § 106 condition, subject only to Conrail’s compliance with the terms of the proposed, although unexecuted, MOA. In terminating consultation, the STB emphasized the steps it had taken throughout this process. It found that “further consultation would be fruitless.” It further noted the fact that the ACHP would not respond on the issue of mitigation, despite the STB’s request for it to do so, and “instead continues to seek to dictate the [STB’s] procedures and compel us to reopen this case and declare this entire rail line historic.” The STB considered the ACHP’s letters in January and February 1999 to be its comments and recommendátions on the undertaking and on termination of consultation; having taken them into account, the STB determined that it had complied with § 106 and that the process was complete. The record indicates that Conrail/Norfolk has consummated abandonment of the rah line, other than the bridges. According to Norfolk, it has been more than ten years since there was activity on the line and more than eight years since there was any railroad equipment or property on the land. All tracks, ties, rails, signage, and equipment have been stripped from the property. III. JURISDICTION The STB, as statutory successor to the ICC under the ICC Termination Act, had jurisdiction over Conrail’s petition to abandon the Enola Branch and could do so under the exempt procedures. See 49 U.S.C. §§ 10501(a)(1)(A), 10502(a)(1), 49 C.F.R. § 1152.50. We have exclusive jurisdiction to review a final order of the STB, pursuant to 28 U.S.C. §§ 2321 and 2342(5), provided that the petition for review was filed by the aggrieved party within 60 days of entry of the final order. See 28 U.S.C. § 2344. FAST filed the instant petition for review within 60 days of service of the Board’s 1999 Order. The STB and intervenor Norfolk did, however, raise two preliminary issues questioning our jurisdiction to review the STB’s order and the STB’s jurisdiction should this matter be remanded. A. WHICH ORDER IS BEING REVIEWED? The STB argues that FAST actually is challenging the 1990 Order that limited the scope of potentially historically eligible properties to the 83 bridges on the rail line. It is the STB’s position that direct judicial review of the 1990 Order is precluded by § 2344, which requires that a petition for review of final agency action be filed within 60 days. See 28 U.S.C. § 2344; see also ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 277, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987). Once that 60-day period has passed, an agency order is no longer subject to judicial review. See id. The STB contends that FAST is precluded from making any arguments that in any way address the manner in which the STB identified historic properties or its determination that only some bridges and archaeological areas are eligible for historic protection. The STB argues that we have jurisdiction to review only the plan for mitigation as to the bridges and the decision to terminate consultation. It suggests that we may not address any issues relating to the identification of historic properties. We disagree and conclude that we do have jurisdiction to review the entire matter, including those aspects of the STB’s decisions relating to the identification of eligible historic properties on the rail line. First, in the 1997 Order, the STB rejected FAST’s request that the preservation requirement imposed in the 1990 Order be broadened to apply to the entire Enola Branch line. However, the 1997 Order expressly stated that “[t]his proceeding is reopened.” When the STB “reopens a proceeding for any reason and, after reconsideration, issues a new and final order setting forth the rights and obligations of the parties, that order-even if it merely reaffirms the rights and obligations set forth in the original order-is reviewable on its merits.” BLE, 482 U.S. at 278, 107 S.Ct. 2360 (citing United States v. Seatrain Lines, Inc., 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947)). The STB urged that the reopening must be undérstood in context, that the proceeding was reopened only for the limited purpose of narrowing the scope of the historic condition. However, reopening a proceeding “for any reason,” even if only to reaffirm the original order, gives us jurisdiction to review every aspect of the reopening order. See BLE, 482 U.S. at 278,107 S.Ct. 2360. Reopening in this case, even if only to narrow rather than expand the original identification decision, makes the issues of identification reviewable. The STB cannot claim that identification was complete pri- or to 1997, yet still reopen the proceeding in order to consider some aspect of identification. That further consideration is subject to review, both as to whether it was proper to narrow the scope of the properties to be protected and also as to whether it was improper not to expand the scope of the protected properties. In short, the STB’s explicit order to reopen this proceeding meant reopening for all purposes, thereby bringing the issue of identification back into play and making it subject to review at this time. Second, FAST’s 1996 petition (resolved in the 1997 Order), seeking reopening of the proceedings for the purpose of reconsidering and expanding the identification decision, was based on a claim of new evidence or changed circumstances, particularly evidence of changed opinions and perceptions of .how much of the rail line would be eligible for the National Register. Where a motion to reopen is based on non-pretextual arguments about new evidence or changed circumstances, the refusal to reopen or reconsider a decision itself is reviewable for abuse of discretion. See BLE, 482 U.S. at 284, 107 S.Ct. 2360 (“If the petition that was denied sought reopening on the basis of new evidence or changed circumstances review is available and abuse of discretion is the standard.”); Fritsch v. ICC, 59 F.3d 248, 252 (D.C.Cir.1995) (interpreting BLE to permit merits review of a refusal to reopen where the motion is based on non-pretextual grounds of new evidence or changed circumstances); Friends of Sierra R.R., Inc. v. ICC, 881 F.2d 663, 666-67 (9th Cir.1989) (“The order denying [the] petition is subject to review only if the petition sought reopening on the basis of ‘new evidence’ or ‘substantially changed circumstances.’ ”). Even assuming that the STB’s 1997 Order declined to reopen for the purposes of expanding the historic condition, that refusal to reopen is itself subject to judicial review. Under BLE, we would have jurisdiction to determine whether the Board’s refusal to expand the condition was an abuse of discretion. The STB argues that FAST did not actually submit any new or newly discovered evidence because the opinions of the ACHP, the SHPO, the Keeper, and the Curator, regarding the historic eligibility of the entire line, were available all along and could have been presented earlier. The STB contends, therefore, that FAST actually sought reopening and reconsideration based on “material error,” the denial of which motion unquestionably would not be subject to judicial review. See BLE, 482 U.S. at 280, 107 S.Ct. 2360 (holding that “where a party petitions an agency for reconsideration on the ground of ‘material error,’ ... ‘an order which merely denies rehearing1 ... is not itself reviewable.”). The STB’s argument fails because it conflates the jurisdictional and merits analyses. Whether the evidence presented actually is new or newly discovered, as opposed to newly presented, goes to the merits of whether the refusal to reopen or reconsider a prior decision was proper or lawful. It does not go to the jurisdiction of the court of appeals to review that refusal. Jurisdiction and reviewability are based on the fact that the motion before the STB alleged the existence of new evidence or changed circumstances. See Friends of Sierra, 881 F.2d at 666 (“[W]e determine reviewability solely by examining the bases advanced in the petition to reopen.”). That basis for the motion, assuming it is not a pretext, is sufficient alone to confer jurisdiction to review the Board’s refusal to expand the identified historic properties and protect the entire rail line. From the record before us, we conclude that FAST sought reopening based on new evidence or changed circumstances, not material error, such that the refusal to reopen is subject to judicial review. FAST moved within 60 days for reconsideration of the 1997 Order, thus tolling the period for seeking judicial review of the 1997 Order until reconsideration was denied. The 1999 Order denied reconsideration of the refusal to reopen and the petition for review was filed within 60 days. We have jurisdiction, therefore, to review the 1997 Order through its denial by the 1999 Order. See BLE, 482 U.S. at 279, 107 S.Ct. 2360 (stating that a petition for reconsideration tolls the period for judicial review of the original order, which can be appealed directly after the petition for reconsideration is denied). B. THE STB’S JURISDICTION ON REMAND Norfolk, as intervenor on behalf of the STB, raises a different argument, going to the STB’s jurisdiction on remand. Norfolk suggests that, because it has abandoned the Enola Branch, the STB no longer would have jurisdiction on remand to make any determinations as to the historic status of the line as a whole or to impose mitigation conditions on any non-bridge property. It argues that any decision vacating the STB’s original identification decision and remanding the case to the STB would be futile because, beyond the bridges already identified, the STB would be without the power to impose any historic conditions on the abandoned line as a whole. It is true, generally, that once a carrier abandons a rail line, the line no longer is part of the national transportation system and the STB’s jurisdiction terminates. See Preseault v. ICC, 494 U.S. 1, 5-6 n. 3, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). Unless the STB attaches post-abandonment conditions to a certificate of abandonment or exemption, such as requirements under § 106, the authorization of abandonment ends the Board’s regulatory mission and its jurisdiction. See id.; Hayfield N. R.R. Co., Inc. v. Chicago & North Western Transp. Co., 467 U.S. 622, 633-34, 104 S.Ct. 2610, 81 L.Ed.2d 527 (1984). The determination of whether a railroad has abandoned a line hinges on the railroad’s objective intent to cease permanently or indefinitely all transportation service on the line. See Birt v. Surface Transp. Bd., 90 F.3d 580, 585 (D.C.Cir.1996) (citation and internal quotation marks omitted). Abandonment is considered consummated when the rail line is fully abandoned. See Consolidated Rail Corp. v. Surface Transp. Bd., 93 F.3d 793, 798 (D.C.Cir.1996). We reject Norfolk’s argument because there has been no STB finding that Norfolk consummated abandonment of the rail line as an entire property. Following the 1990 Order, Conrail removed all remnants of the railroad line from the property, including all tracks, ties, rails, signage, and equipment. According to Norfolk, it has been more than ten years since there was activity on the property, more than eight years since there was railroad equipment on the property, and more than seven years since Conrail attempted to negotiate converting the rail into a trail. But the historical eligibility of the line as a whole does not require the presence of the tracks and other railroad equipment. The historically eligible property, as found by the Keeper and urged by FAST, is the rail line itself, including the trail and all of the bridges. The issue is whether Norfolk has abandoned, sold, or otherwise disposed of any portion of that property, a point on which the record is silent. If, on remand, the STB concludes that Norfolk has disposed of some portion of the line, the STB will be without power to expand the historical condition to cover that property already sold. But the STB otherwise does have the power to expand the historical condition to cover all property not abandoned and to require Norfolk to preserve the status quo and not to sell or otherwise disturb or dispose of the rail line pending proper completion of the § 106 process. IV. HISTORIC ELIGIBILITY OF THE ENOLA LINE We now proceed to the merits of this petition, whether the STB erred in carrying out its statutory obligations under § 106. Our review is governed by the Administrative Procedure Act (APA), 5 U.S.C. § 706(2), which provides that a court of appeals may “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Consolidated Rail Corp. v. United States, 855 F.2d 78, 85 (3d Cir.1988) (applying § 706 to review of ICC decision). As we set out in Part I.B, swpra, the NHPA is a procedural rather than a substantive statute, designed to ensure that federal agencies take into account the effect on historic places of federally regulated undertakings. See Morris County Trust, 714 F.2d at 278-79. The statute represents a balance between the goals of historic preservation and the needs of business and community development. See id. at 280; 36 C.F.R. § 800.1(a). Our concern on review under the NHPA is less with the substantive results reached by the STB on the historic eligibility of the Enola Branch than with the procedures and reasoning the STB followed in reaching those results. See Morris County Trust, 714 F.2d at 280. We have agreed that § 106 is a “stop, look, and listen” provision, requiring an agency to acquire and consider information prior to making a decision and approving a federal undertaking. See Concerned Citizens, 176 F.3d at 695-96 (citing Illinois Commerce Comm’n, 848 F.2d at 1260-61). The issue, therefore, is whether the STB touched all the procedural bases in limiting the scope of the identified historic properties on the line to the 32 bridges and 36 archaeological areas, in refusing to expand that identification in 1997 and 1999, in unilaterally approving the mitigation plan outlined in the draft MOA and the 1999 Order, and in terminating consultation in the 1999 Order. We conclude that the STB did not touch all the bases. The STB’s decision to terminate the process as it did, and to provide only limited historic protection, must be vacated and this matter remanded to the STB for further proceedings. A. IDENTIFICATION Although there would appear to be a lack of constructive public dialogue in the whole of the § 106 identification process, FAST did not seek review of the 1990 Order at the time it issued, nor has FAST formally complained about the early stages of the § 106 identification. We will begin our analysis therefore with the events occurring after FAST’s 1996 petition to reopen and expand the historic condition. In the 1997 and 1999 Orders, the STB concluded that the TWO letter and the letter from the Curator were not new or newly discovered evidence in that both pieces of information were available prior to their submission to the STB in 1996. The STB also discounted the SHPO’s position as stated in the TWO letter because it was inconsistent with its formal position before the STB and the inconsistency was not explained. In addition, in the 1999 Order, the STB rejected the Keeper’s statement as “pro forma” and not justifying reopening the identification phase because doing so “would add inexcusable delay to a process that has already taken much too long.” The identification process must, however, be a fluid and ongoing one. “The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the Agency Official to reevaluate properties previously determined eligible or ineligible.” 36 C.F.R. § 800.4(c)(1) (emphasis added). The STB’s own regulations also permit it to reopen or reconsider a prior action because of new evidence or substantially changed circumstances. See 49 U.S.C. § 722(c). If we read § 722(c) together with § 800.4(c)(1), these provisions suggest that evidence of changed perceptions of historical significance constitutes evidence of substantially changed circumstances, thus permitting reopening or reconsideration. In the 1997 and 1999 Orders, however, the STB focused only on whether FAST had submitted new evidence; it did not consider whether FAST had submitted evidence of substantially changed circumstances. This ruling ignores the “changed circumstances” language of § 722(c). Furthermore, the STB failed to consider the Keeper’s statement that the entire Enola Branch line was eligible for designation in the National Register. The ACHP had taken the position that the Keeper’s findings were necessary before the identification process could be completed. Once the ACHP had brought the Keeper into the process, the Keeper’s conclusions had to be considered. As we noted in Part I.B, supra, the Keeper has been held to have independent authority to determine whether a property should be listed in the National Register. See Moody Hill Farms, 205 F.3d at 558. The STB ignored the Keeper’s determination because of its “untimeliness” and the STB’s concern that considering it would impose additional, inexcusable delay on the § 106 process. This consideration of late timing is, however, inconsistent with § 800.4(c)(1). If the passage of time can be a basis for reevaluation of the identification decision under the regulations, it cannot at the same time be a basis for refusing to consider evidence of changed perceptions of historical significance. By focusing on the timing of the Keeper’s statement and refusing to consider and address its merits, the STB introduced an improper consideration into the identification process. The fact that the STB and the SHPO had previously agreed that the bridges were the only properties that were historically eligible does not and cannot outweigh, without further explanation, the Keeper’s determination, whenever that determination was rendered. See Moody Hill, 205 F.3d at 558-59 (stating that the Keeper is not bound by the historic determinations of state and local authorities). The STB also dismissed the Keeper’s statement as “pro forma” and therefore not entitled to serious weight. However, the STB did not indicate in what way the statement was pro forma, nor did it indicate what additional information the Keeper should have presented in its evaluation. The Keeper’s evaluation included a lengthy paragraph describing the Enola Branch’s overall historic significance; the Board has not explained why the Keeper’s position was not entitled at least to some consideration. The STB is correct in contending that, because it and the SHPO initially did not disagree as to the scope of eligible properties, the STB was not required under the regulations to request a determination from the Secretary of the Interior or from the Keeper. Such a referral is required only if the STB and the SHPO do not agree. See 36 C.F.R. § 800.4(c)(2). However, that same regulation provides that the Secretary or the ACHP can request such a determination at any time, whether or not the STB and the SHPO disagree. See 36 C.F.R. § 800.4(c)(2). Given the authority of the Keeper, it must follow that once that determination has been obtained, it is entitled to some attention by the agency. Moreover, the fact that the SHPO’s position in the TWO letter in 1994, that the entire line was eligible for the National Register, appeared to be a change from its earlier position before the STB was not sufficient grounds for the STB not to consider that letter as evidence of changed perceptions. The STB argues that nothing in the statutes or regulations requires it to rethink its decisions whenever an affected party changes its mind. See Connecticut Trust for Histone Preservation v. ICC, 841 F.2d 479, 484 (2d Cir.1988). However, Connectimt Tnist involved a potential purchaser of the abandoned rail property that changed its mind about which portions of the line it wanted to purchase. See id. That is significantly different from a change of position by the SHPO, which is statutorily empowered to advise the STB throughout the § 106 process and is not an affected party in the same way as a would-be purchaser. The SHPO’s revised view as to the eligibility of the entire rail line may represent a changed perception of historic significance or be the result of a more complete evaluation of the property. The SHPO’s changed perception should have received some consideration on its merits and should not have been rejected out of hand as an unexplained change of heart. The STB similarly erred in not giving sufficient consideration to the views of the ACHP. While the ultimate decision on an undertaking remains with the agency implementing it, the ACHP must be afforded the opportunity to comment and its comments must be taken into account by the agency in rendering its decision. See Concerned Citizens, 176 F.3d at 695 (quoting Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287, 1290 (4th Cir.1992)). The agency must make clear that it considered the ACHP’s opinions, see Concerned Citizens, 176 F.3d at 696, instead of dismissing them as an attempt by the ACHP to “dictate” the STB’s procedures. The ACHP formally became involved in the § 106 process in March 1998, at the request of FAST, during the pendency of FAST’s motion for reconsideration. ACHP involvement was not required at the identification stage and the STB- did not err in not immediately seeking ACHP comments on identification. However, the ACHP is identified as a source of guidance and advice regarding the application of the regulations; it also is empowered to enter the § 106 process at any time that it determines that its involvement is necessary to ensure that the purposes and requirements of § 106 are met. See 36 C.F.R. § 800.2(b). Once the ACHP entered the proceedings, the STB, although not required to follow the comments and suggestions of the ACHP at any stage, was required to take these comments into account and to indicate that the comments were given genuine attention on their merits. The relevant “agency must demonstrate that it has read and considered those recommendations” and “it must make clear in the record that the ACHP’s comments were taken seriously.” See Concerned Citizens, 176 F.3d at 696. *• The record here shows that the ACHP’s comments were not taken seriously. In several letters to the STB following its decision to participate in the consultation, the ACHP raised its concerns about the way in which historically eligible properties had been identified and its desire to see further consideration of what properties on the rail line should be identified as historic. The STB did not respond to these concerns. Moreover, any delay in ACHP participation and comment may be attributed, at least in part, to the STB. The STB apparently did not, as required, notify the ACHP of its determination of adverse effects at the time of its initial presumptive finding of such effects in 1990. See 36 C.F.R. § 800.6(a)(1) (requiring notification of the ACHP upon a finding of adverse effects). The STB also did not involve the ACHP when requested to do so by FAST, sometime prior to March 1998. Instead, FAST was forced to contact the ACHP itself, pursuant to 36 C.F.R. § 800.6(a)(l)(ii). As a result, the ACHP did not become involved in the proceedings until March 1998. Finally, the STB never mentioned or gave any consideration to the detailed statement by Lancaster County, in its 1989 objection to Conrail’s Notice of Exemption, as to the historic significance of the line as a whole. The substance of this statement was similar to the comments made by the Keeper in its 1999 determination of eligibility. Although the County did not expressly request a historic condition on the abandonment of the line, its comments provided the STB with initial evidence as to the historical significance of the rail line as a linear source. Like any other evidence from an interested party, this was entitled to some consideration by the Board in identifying historic properties. However, the record does not reflect that the Board ever recognized or considered the merits of this statement. B. TERMINATION OF CONSULTATION FAST also challenges the manner in which the STB terminated the regulatory consultation. After declining to reconsider FAST’s request to expand the historic condition and protect the entire rail line, the STB unilaterally terminated consultation on mitigation, unilaterally terminated the entire § 106 process, and imposed the terms of the unexecuted MOA, finding that it “constitutes appropriate historic mitigation for the bridges at issue.” The terms of the MOA were established following negotiations among the STB, Conrail, and the SHPO; all three agreed to terms, including recordation of five bridges, funding of the film, transfer of certain bridge properties to local municipalities, and payment of money by Conrail for upkeep of those bridges. However, the SHPO declined to sign the MOA, citing the ACHP’s desire to consult in the process. At that point, the STB was required to invite the ACHP formally to participate in the consultation, and, if the ACHP declined to consult, to obtain the ACHP’s comments on the undertaking and on the proposed mitigation plan. See 36 C.F.R. §§ 800.6(b)(l)(v), 800.7(c)(2). The STB did submit a copy of the MOA to the ACHP for comment and approval; the ACHP expressly declined to comment on the MOA or the mitigation plan, focusing its comments instead on what it found to be deficiencies in the § 106 process generally and the need to reconsider identification. The STB certainly has the power to declare consultation at an impasse and to terminate, if it finds that further consultation would not be productive. See 36 C.F.R. § 800.7(a). However, the applicable regulations require that, if the STB does terminate consultation, it must give notice of that termination to the ACHP, see 36 C.F.R. § 800.7(a)(1); allow 45 days for ACHP comments on termination, see 36 C.F.R. § 800.7(c)(2); and take those comments into account, giving them genuine attention and consideration, in terminating consultation and reaching a final decision. See 36 C.F.R. § 800.7(c)(4). Only after receipt and consideration of those comments may the STB complete the termination of the process and implement a mitigation plan, provided that it expressly take such comments into account in rendering that final decision. See Concerned Citizens, 176 F.3d at 696. The STB did not meet these requirements for termination. We can understand the impatience of the STB to resolve this expedited abandonment. Nevertheless, when procedures are established by law, those procedures must be followed. Because the STB did not follow the required procedures, we conclude that it abused its discretion in implementing the MOA and in terminating the consultation. For these reasons, the 1997 and 1999 Orders will be vacated and this matter will be remanded to the STB. In determining to vacate and remand this matter, we in no way suggest that FAST is entitled to the relief it seeks. We take no position as to whether the entire Enola Branch is eligible for inclusion in the National Register or as to whether there is sufficient evidence of changed perceptions of historical significance or changed circumstances to justify preserving the entire line. We also take no position as to whether the mitigation plan favored by the STB is proper although we note that the ultimate decision is left to the STB after due consideration of comments from interested parties. See Concerned Citizens, 176 F.3d at 696. We also take no position as to whether consultation is at an impasse and whether the process properly should be terminated. We hold only that, on remand, the STB must conduct the § 106 process in accordance with the regulations. It must consider the comments and opinions of the Keeper, the ACHP, and other interested parties as to the scope of the eligible historic properties and as to a proper mitigation plan. If the STB again decides that further consultation is fruitless and that the § 106 process should be termination, it must follow the procedural track established by the regulations for termination. V. CONCLUSION For the foregoing reasons, the motion of the STB to dismiss the petition for review is denied. The petition for review is granted and the 1997 and 1999 Orders of the STB are vacated. This matter is remanded to the Surface Transportation Board for further proceedings consistent with this opinion. . The STB is the federal agency having exclusive jurisdiction over transportation by railroad. See 49 U.S.C. § 10501(a)(1). The STB is the successor agency to the Interstate Commerce Commission (ICC), which was abolished by Congress in 1995. See ICC Termination Act of 1995, § 101, P.L. 104-88, 109 Stat. 804, 49 U.S.C. § 701 note (1995). That act also established the STB, see 49 U.S.C. § 701, and provided that it would perform all the functions that previously were performed by the ICC as of the effective date of the act. See 49 U.S.C. § 702; see also ICC Termination Act of 1995, § 204, P.L. 104-88, 109 Stat. 804, 49 U.S.C. § 701 note. In this opinion, we will refer to the agency as the ICC before its abolition and as the STB afterwards. . Formerly 49 U.S.C. § 10906. . This would permit the railroad right-of-way to be used in some interim manner and to be preserved for future restoration or reconstruction and reactivation for railroad purposes. See 49 U.S.C. § 1247(d). . Conrail's assets have been acquired by, and divided between, two railroad operations, Norfolk Southern Corp. (Norfolk) and CSX Corp. The former Enola Line is now controlled by Norfolk, which intervened in this appeal on behalf of the STB. . At oral argument, counsel for FAST represented that FAST hired Tippetts as consultant in the efforts to preserve the corridor as historic property. Nothing has been presented to us explaining what "TWO” stands for. . The STB also questioned the applicability of the letter, noting that, although the caption of the letter contained the correct docket number, it referred to a project encompassing additional lines and counties. The STB stated that it "is unclear what this project entails.” The STB also noted that any information submitted by FAST in support of the eligibility of the entire line had not been supplied to Conrail or submitted for entry in the public record. . That letter, dated April 2, 1997, detailed the history of the line and called its significance "unquestioned.” The Curator stated that he could take "no formal position in such a legal proceeding,” but he stated that he supported the development of the line, intact, as a recreational and educational trail. . The STB emphasized several letters from the SHPO, post-1994, that appear to reflect this same view. . Norfolk raises the issue of the STB's jurisdiction for the first time on appeal. In opposing FAST's motion to reopen before the STB, Norfolk never suggested that the STB was without jurisdiction to expand the scope of the historical condition on the rail line. Yet if the STB would have had jurisdiction to expand the historical condition in the 1997 Order, it is not clear why the STB would lack jurisdiction to do the same on remand from our determination that the 1997 Order declining to reopen was in error. . The parties dispute the amount of deference or weight to be accorded to the ACHP's interpretation of its regulations. FAST relies on our statement in Morris County that "the Advisorj' Council’s regulations are particularly persuasive concerning the proper interpretation of NHPA.” See Morris County, 714 F.2d at 280. Norfolk points to the statements in Concerned Citizens that found no support for the conclusion that the ACHP’s judgments were entitled to great weight. See Concerned Citizens, 176 F.3d at 696 n. 6. FAST argues that Concerned Citizens was a case challenging the Federal Highway Administration’s compliance with § 4(f) of the Department of Transportation Act, in which the ACHP plays no role. By contrast, the instant case is a challenge to compliance with the ACHP’s own regulations under the NHPA. We need not resolve this matter because, even assuming that the ACHP's judgment is entitled only to minimal weight and that the agency merely must afford these comments some attention and consideration, see Concerned Citizens, 176 F.3d at 696, we conclude that the STB in the instant case did not accord the ACHP’s comments even that minimal degree of attention and consideration.

Muckleshoot Indian Tribe v. U.S. Forest Service

ORDER Pursuant to the opinion issued concomitantly with this order, we hereby enjoin any further activities on the land such as would be undertaken pursuant to the Huckleberry Mountain Exchange Agreement as executed by the United States and the Weyerhaeuser Company on March 28, 1997, until such time as the Forest Service satisfies its statutory obligations in a manner consistent with this Court’s opinion. OPINION PER CURIAM. Plaintiffs Muckleshoot Indian Tribe, Pil-chuck Audubon Society, and Huckleberry Mountain Protection Society • appeal the district court’s grant of summary judgment on consolidated challenges to a land exchange between the United States Forest Service and Weyerhaeuser Company. Plaintiffs contend that the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, and the National Historic Preservation Act (“NHPA”), 16 U.S.C. § § 470-470w. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. I. BACKGROUND Huckleberry Mountain, the land subject to the dispute in this case, is located in the Green River watershed in the Mt. Baker-Snoqualmie National Forest (“the Forest”) in the state of Washington. The Forest contains sixteen percent of the wilderness in the Pacific Northwest. Thirteen percent (259,545 acres) of the 1,983,774 acres within the National Forest boundary are privately owned, primarily by Weyerhaeu-ser and other large corporations. Most of the privately-owned lands are in the southern portion of the Forest, and are intermingled with federal lands in a checkerboard pattern of ownership that remains from the federal land grants to railroads a century ago. Motivated in large part by a desire to unify land ownership, the United States Forest Service (“the Forest Service”) and Weyerhaeuser Company (“Weyerhaeuser”) began negotiations for a series of land exchanges pursuant to 43 U.S.C. § 1716, which authorizes the exchange of public lands within the National Forest system where “the public interest will be well served” by the exchange. In the 1980s, the Forest Service negotiated a land exchange with Weyerhaeuser and the Burlington Northern Railroad Company involving lands near Huckleberry Mountain. Under the terms of the Alpine Lakes Exchange, as it became known, the United States conveyed a total of 21,676 acres of federally-owned Forest land to Weyer-haeuser and Burlington Northern in exchange for other property owned by the two companies. In the present appeal, plaintiffs challenge another land exchange between Weyerhaeuser and the Forest Service, the Huckleberry Mountain Exchange (“the Exchange”), in which the Forest Service again traded old growth forest lands in the Huckleberry Mountain area. Many of the parcels conveyed by the Forest Service in the Alpine Lakes Exchange are near or contiguous to federal lands that are part of the Exchange at issue in this appeal. Although land within the Huckleberry Mountain Exchange Area had been tentatively identified during the Alpine Lakes Exchange negotiations between 1984 and 1987, negotiations began anew in 1988 with a revised list of federal land under consideration for exchange. In July 1991, Weyer-haeuser and the Forest Service signed a Statement of Intent to enter into an exchange, which identified the parcels to be included in the exchange. Between 1992 and 1994, the Forest Service conducted surveys regarding wetlands, wildlife, rare plants, hazardous waste, cultural resources and other matters, and subsequently reduced the federal acreage proposed for transfer. The Forest Service initiated public consultation and comment and developed a list of six exchange alternatives. In July 1996, the Forest Service released a draft Environmental Impact Statement (“EIS”), pursuant to NEPA, 42 U.S.C. § 4332(2)(C), and mailed over 300 copies to interested parties. It then conducted three open meetings in communities near the Forest. Among those who provided comments on the Draft EIS was the Muekleshoot Indian Tribe (the “Tribe”). On November 26, 1996, the Forest Service issued a final EIS after receiving comments on the draft EIS. The EIS considered three alternatives: a “no action” alternative, and two closely related exchange alternatives. Concurrently, the Forest Service issued a Record of Decision that called for an implementation of the Exchange through a modification of “Alternative No. 3” as evaluated in the EIS. The Pilchuck Audubon Society and the Huckleberry Mountain Protection Society (collectively “the Societies”) and the Tribe lodged separate appeals of the EIS and the ROD with the Office of the Regional Forester. These appeals were denied on March 7, 1997. On March 28, 1997, pursuant to the ROD, Weyerhaeuser and the Forest Service executed an exchange agreement under which Weyerhaeuser conveyed to the United States 30,253 acres of land in and around Mt. Baker National Forest in return for 4,362 acres of land in the Huckleberry Mountain area. In addition, Weyerhaeuser donated to the United States 962 acres to the Alpine Lakes Wilderness and 1,034 acres for Forest Service management. The National Forest lands that Weyerhaeuser received included old growth, commercial grade timber. The Forest Service also exchanged to Weyer-haeuser intact portions of the Huckleberry Divide Trail, a site important to the Tribe and that the Forest Service found eligible for inclusion in the National Register for Historic Preservation. Weyerhaeuser gave the Forest Service lands that were, for the most part, heavily logged and road-ed. Weyerhaeuser intends to log the lands it received in the Exchange. In the spring of 1997, the Tribe and the Societies commenced separate actions in the district court seeking declaratory and injunctive relief to halt the Huckleberry Mountain Exchange. The district court consolidated the two actions and granted Weyerhaeuser’s motion to intervene because it was party to the Exchange. The combined action, brought pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06, alleged violations of the Federal Lands Policy and Management Act, 43 U.S.C. § 1701 et seq., the .General Exchange Act, 16 U.S.C. § 485; the Weeks Act, 16 U.S.C. § 516; the National Forest Management Act, 16 U .S.C. 1600 et seq.; NHPA, 16 U.S.C. § 470 et seq., and NEPA, 42 U.S.C. 4321 et seq. The Tribe also asserted that the government breached its duty of trust to the Tribe. The district court denied all of these claims. Plaintiffs appeal only their claims under NHPA and NEPA. The plaintiffs did not seek a stay of the district court’s, order pending appeal. The Exchange was finalized on March 12,1998. The United States has waived sovereign immunity in this case pursuant to 5 U.S.C. § 702. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the district court decided the case on a motion for summary judgment, we review that determination de novo. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir.1998). An agency’s factual findings should be “overturned only if they are arbitrary and capricious.” Sierra Club v. Clark, 756 F.2d 686, 691 (9th Cir.1985). II. THE NATIONAL HISTORIC PRESERVATION ACT CLAIMS The Muckleshoot Tribe is made up principally of descendants of tribes or bands that were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. The Tribe was organized pursuant to the Indian Reorganization Act of June 18, 1934. See United States v. State of Washington, 384 F.Supp. 312, 366 (W.D.Wash.1974). The United States, acting by and through the Secretary of the Interior and his duly authorized delegatees, has consistently recognized the Muckleshoot Tribe as the political successor in interest to certain of the Indian tribes, bands and villages that were parties to the Treaty of Point Elliott or the Treaty of Medicine Creek. Id. The Indian ancestors to the present Muckleshoot Tribe included people from villages on the Green and White Rivers that form part of the drainage for Huckleberry Mountain. The Tribe alleges that for thousands of years, the ancestors of present tribal members used Huckleberry Mountain for cultural, religious, and resource purposes — uses that continue to the present day. The Forest Service lands exchanged to Weyerhaeuser were part of the Tribe’s ancestral grounds. Section 10 of NHPA requires that, prior to any federal undertaking, the relevant federal agency “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register” and “afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.” 16 U.S.C. § 470f; see also Hoonah Indian Ass’n v. Morrison, 170 F.3d 1223, 1230 (9th Cir.1999); 36 C.F.R. § 800. The Exchange was such an undertaking. 36 C.F.R. § 800.2(o). We have held that Section 106 of NHPA is a “stop, look, and listen” provision that requires each federal agency to consider the effects of its programs. See Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir.1994). Under NHPA, a federal agency must make a reasonable and good faith effort to identify historic properties, 36 C.F.R. § 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. § 60.4; assess the effects of the undertaking on any eligible historic properties found, 36 C.F .R. §§ 800.4(c), 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. §§ 800.5(c), 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9(c). The Forest Service must confer with the State Historic Preservation Officer (“SHPO”) and seek the approval of the Advisory Council on Historic Preservation (“Council”). Additional NHPA provisions apply to Indian tribes. (A) Properties of traditional religious and cultural importance to an Indian tribe ... may be determined to be eligible for inclusion in the National Register. (B) In carrying out its responsibilities under Section 106, a Federal Agency shall consult with any Indian Tribe ... that attaches religious and cultural significance to properties described in Sub-paragraph (A). 16 U.S.C. § 470a(d)(6). The Tribe’s claims under NHPA can be divided into three categories. The Tribe first contends that the Forest Service failed to consult adequately with it regarding the identification of traditional cultural properties. The Tribe also contends that the Forest Service inadequately mitigated the harmful impact of the exchange on sites of cultural significance. Finally, the Tribe argues that the Forest Service violated NHPA by failing to nominate certain sites to the National Register. We conclude that the Forest Service has not satisfied NHPA’s mitigation requirements. A. Identification of Traditional Cultural Properties This Court has not yet had the opportunity to interpret the specific consultation requirements of NHPA. The regulations interpreting NHPA require that: [T]he Agency official, the State Historic Preservation Officer and the [Advisory] Council [on Historic Preservation] should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement.... When an undertaking may affect properties of historic value to an Indian tribe on non-Indian lands, the consulting parties shall afford such tribe the opportunity to participate as interested persons. Traditional cultural leaders and other Native Americans are considered to be interested person with respect to undertakings that may affect historic properties of significance to such persons. 36 C.F.R. § 800.1(c)(2)(iii). Although we confront somewhat different issues, Pueblo of Sandia v. United States, 50 F.3d 856, 860 (10th Cir.1995) is instructive. The Tenth Circuit concluded that the agency’s mailing of form letters soliciting information from knowledgeable parties, combined with an address to the All Indian Pueblo Council requesting the same detailed information solicited by the form letter did not satisfy section 470f. In Sandia, the Forest Service did not find any of the properties eligible for inclusion and withheld relevant information from the SHPO during the consultation process. Id. at 862. The court found that although none of the tribes provided the information specifically solicited by the letters and presentation, the statements of the Governor of the Sandia Pueblo, a religious leader, and a highly qualified anthropologist, all indicating that the land was sacred, and that the tribes were unlikely to reveal information on the use of these lands, were sufficient to require the agency to evaluate the property for inclusion in the National Register. Id. at 861. The court also determined that the agency had failed to perform the required “good faith consultation” with the State Historic Preservation Office, and reversed the district court order approving the federal action. Id. at 862. In the case before us, the record shows that the Forest Service researched historic sites in the Exchange area and communicated several times after the commencement of the public comment period with Tribal officials regarding the identification and protection of cultural resources that might be affected by the Exchange. The Forest Service initially identified only Mule Springs as eligible for listing in the National Register, and concluded that any adverse effect “may be negated through appropriately conducted data recovery.” Two years later, after considering the concerns of the Tribe, the Forest Service excluded Mule Springs from the Exchange and retained the Forest Service access road in a cost-share status. Because this site was excluded from the Exchange, the district court correctly concluded that the Tribe suffered no injury. The Forest Service initially concluded that the Huckleberry Divide Trail (“Divide Trail”) was ineligible for listing. After the SHPO suggested otherwise, the Forest Service reconsidered and found it eligible for listing but nonetheless included it in the lands exchanged to Weyerhaeuser. We discuss the Divide Trail in more detail below. The Tribe also contends that the Forest Service ignored its claims that numerous other places of historical importance were situated on the portions of Huckleberry Mountain proposed for exchange. The Tribe requested a study of its historical places and trails, but in response, the Forest Service, which had already carried out research in the area, simply requested the immediate disclosure of any information the Tribe possessed about those sites. The Tribe was unable, or unwilling, to provide information sufficient to persuade the Agency that it should reconsider its decisions. The Forest Service’s action is in tension with the recommendations of the National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties (“Bulletin 38”). Bulletin 38 provides the recognized criteria for the Forest Service’s identification and assessment of places of cultural significance. In Sandia, the Tenth Circuit’s finding that the agency had violated NHPA rested in part upon its finding that the agency failed to adhere to that document. 50 F.3d at 861. The Tribe urges us to find a comparable violation in this case. While the deviations from Bulletin 38 policies in this case are similar to those in Sandia, they appear not to be as egregious, and probably do not provide sufficient grounds to conclude that the Forest Service failed to comply with NHPA identification and consultation requirements. First, Bulletin 38 does not impose a mandatory procedure, but merely establishes guidelines. Contravention of those recommendations, standing alone, probably does not constitute a violation of NHPA. Second, in this case, unlike Sandia, the Forest Service continued to seek the requested information over a period of time, cf. Sandia, 50 F.3d at 861-62, and the Forest Service had previously conducted research of its own to identify relevant traditional cultural properties. Unlike in Sandia, there is no evidence that the Forest Service withheld information from the SHPO pertaining to historic sites, or failed to engage in good faith negotiations with SHPO. Cf. Sandia, 50 F.3d at 862. The record shows that the Forest Service resisted the Tribe’s requests for a formal study of cultural properties because it would impede the finalization of the Exchange. Given more time or a more thorough exploration, the Forest Service might have discovered more eligible sites. However, the record also shows that the Tribe had many opportunities to reveal more information to the Forest Service. Although the Forest Service could have been more sensitive to the needs of the Tribe, we are unable to conclude that the Forest Service failed to make a reasonable and good faith effort to identify historic properties. Because we are reversing on other grounds, and because the record shows that the Forest Service’s understanding and appreciation of the importance of the Huckleberry Mountain area to the Tribes grew over time, the Forest Service will have an opportunity to re-open its quest for and evaluation of historic sites on Huckleberry Mountain. B. The Effects of the Exchange The Tribe also claims that the Forest Service’s attempt to mitigate the adverse effect of transferring a portion of the Divide Trail, an important tribal ancestral transportation route, was inadequate. We agree. When an agency determines that a property is eligible for listing, it must assess the effects of any proposed undertaking on the eligible property, 36 C.F.R. § 800.4(e), “giving consideration to the views ... of interested persons.” 36 C.F.R. § 800.5(a). Interested persons include tribes. 36 C.F.R. § 800.1(c)(2). An undertaking has an “effect” when the undertaking “may alter characteristics of the property that may qualify the property for inclusion in the National Register ... [including] alteration to features of a property’s location, setting, or use.... ” 36 C.F.R. § 800.9(a). An “effect” is “adverse” when it may “diminish the integrity of the property’s location, ... setting ..., feeling, or association.” 36 C.F.R. § 800.9(b). Examples of “adverse effects” include physical destruction, the introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting, and transferring the property. Id. In 1995, the Forest Service re-evaluated the eligibility of the Divide Trail for listing. The Divide Trail is a 17.5 mile historic aboriginal transportation route. The Forest Service found that portions of the trail possessed “adequate integrity of location, setting and feeling” to satisfy the eligibility criteria of 36 C.F.R. § 60.4. In the proposed Exchange, a portion of the intact trail would be transferred to Weyerhaeu-ser, where it would likely be logged and rendered ineligible for listing. Transfer and destruction of historic property are “adverse” effects. See 36 C.F.R. § 800.9(b). The regulations offer three options to mitigate an otherwise adverse effect so that it is “considered as being not adverse,” two of which are implicated here. 36 C.F.R. § 800.9(c). First, an agency may conduct appropriate research “[w]hen the historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research....” 36 C.F.R. § 800.9(c)(1) (emphasis added). Second, an adverse effect becomes “not adverse” when the undertaking is limited to the “transfer, lease, or sale of a historic property, and adequate restrictions or conditions are included to ensure preservation of the property’s significant historic features.” 36 C.F.R. § 800.9(c)(3) (emphasis added). The Tribe insists that the Forest Service elected the wrong remedy. We agree. To mitigate the adverse effect of the Exchange, the Forest Service proposed to map the trail using a global positioning system and to photograph significant features along the trail. It rejected an easement or covenant because it concluded that it was too expensive and impractical to monitor Weyerhaeuser’s land practices, and because “only” 25 percent of the eligible miles of trail would be transferred out of federal ownership. It also rejected the imposition of conditions to prevent logging and other degradation. Although the Forest Service purports to have acted under (c)(3), photographing and mapping the trail are not “adequate restrictions or conditions” that “ensure preservation of the property’s significant historic features.” See 36 C.F.R. § 800.9(c)(3). The parties agree that the trail is likely to be logged if it is transferred. The Forest Service has already concluded that previously logged and “obliterated” portions of the trail are ineligible for listing. The district court determined erroneously that the Forest Service had proceeded under (c)(1) and concluded that the agency acted properly because any adverse effect may be “negated” if the historical and archeological value of the property can be preserved by conducting research on the site. The Forest Service did not, and could not, proceed under (c)(1). Under 36 C.F.R. § 800.9(c)(1), research is appropriate. mitigation where the historic property is of value only for “its potential contribution to archeological, historical, or architectural research.” The Muckleshoots value the Divide Trail for more than its “potential contribution to ... research.” The Forest Service insists that it acted properly, because the SHPO concurred in its proposal to document the trail, provided that it document the entire intact portion, regardless of ownership, and maintain the portions of the trail not being transferred. These “conditions” do not preserve the trail’s significant historic features. Moreover, in 1994, when SHPO first suggested that the Divide Trail probably was eligible for listing, it concluded that [i]n view of the unusual nature and remote location of the trail, documentation is probably not an effective mitigative measure. Rather, [SHPO] suggests execution of an easement or covenant attached to the transferring instrument. This easement would provide for the ongoing preservation of the Divide Trail and its setting after the land has been transferred. While we do not decide whether the Forest Service’s reasons for rejecting deed restrictions were valid, we note that it could have removed the trail from the Exchange as it did with Mule Springs. We conclude that documenting the trail did not satisfy the Forest Service’s obligations to minimize the adverse effect of transferring the intact portions of the trail. C. Nomination of Historic Sites Finally, the Tribe contends that the Forest Service violated the Preservation Act by failing to properly nominate the Divide Trail to the National Register. In light of our ruling, we need not address this issue. Upon remand, the Forest Service may wish to reconsider its treatment of the historic properties in the Exchange lands. III. NATIONAL ENVIRONMENTAL POLICY ACT CLAIMS NEPA requires federal agencies such as the Forest Service to prepare a detailed environmental impact statement (“EIS”) for “all major actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EIS must address the cumulative impacts of a project and consider adequate alternatives. In evaluating whether an agency’s EIS complies with NEPA’s requirements, we must determine whether it contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Neighbors of Cuddy Mountain, 137 F.3d at 1376. We review for an abuse of discretion. Id. The plaintiffs have raised several different claims under NEPA. The Tribe contends that the identification and analysis of cumulative environmental impacts in the Forest Service’s EIS did not meet the requirements of NEPA. The Societies contend that the EIS inadequately defined the purpose and need for the Huckleberry Land Exchange as required by NEPA, and did not identify or evaluate sufficient alternatives for the exchange. We consider each of these issues in turn. A. Assessment of Cumulative Impacts under NEPA We first address the Tribe’s contention that the Forest Service failed to consider the cumulative impact of the exchange. A cumulative impact is defined as: [T]he impact on the environment which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7. Regulations implementing NEPA require that a federal agency consider “[c]u-mulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(2). In City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th Cir.1997), we noted that an EIS must “cat-alogue adequately the relevant past projects in the area.” Id. at 1160. It must also include a “useful analysis of the cumulative impacts of past, present and future projects.” Id. This requires “discussion of how [future] projects together with the proposed ... project will affect [the environment].” Id. The EIS must analyze the combined effects of the actions in sufficient detail to be “useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.” Id. at 1160 (internal citations omitted). Detail is therefore required in describing the cumulative effects of a proposed action with other proposed actions. Neighbors of Cuddy Mountain, 137 F.3d at 1379; see also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-15 (9th Cir.1998). The Tribe contends that the EIS gives inadequate consideration to the cumulative impacts of logging on the 1984 Alpine Lakes Exchange lands, of existing logging and other disturbances in the Green River watershed, and of a future land exchange with the Plum Creek Timber Company that involves lands in the same vicinity as the Huckleberry Mountain Exchange. The district court held that the Forest Service did not need to consider the 1984 Alpine Lake Exchange because it was part of the baseline environment and, as such, was considered in the EIS for the Mt. Baker Snoqualmie National Forest Land and Resource Management Plan, as amended by the 1994 Northwest Forest Plan (“LRMP”). The district court also held that the Plum Creek exchange was “too uncertain” to require a discussion of cumulative effects. We do not agree with those conclusions. Appellees urge that because the final EIS for the Huckleberry Exchange is tiered to the LRMP, it sufficiently analyzes the cumulative impacts of the Exchange. “Tiering” is defined as: [T]he coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. 40 C.F.R. § 1508.28; see also 40 C.F.R. § 1502.20. We have previously interpreted the regulations to allow tiering only to another environmental impact statement. Blue Mountains Biodiversity Project, 161 F.3d at 1214; see also 40 C.F.R. § 1508.28. The Huckleberry Exchange EIS is tiered erroneously to the Forest Plan, not the EIS for the Forest Plan. Our review of the Forest Plan and its accompanying EIS reveals that those documents do not account for the specific impacts of the Exchange and do not remedy the Forest Service’s failure to account for the impacts of the Exchange in the Huckleberry Exchange EIS. See e.g., Resources Ltd. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993) (“specific analysis is better done when a specific development action is to be taken, not at the programmatic level.”). The LRMP EIS, prepared in 1990, was prepared before the Huckleberry Exchange lands were identified with any certainty. The concept of the Huckleberry exchange was mentioned only in a pool of possible projects that would help meet the goals of the Forest Plan. There was no detail concerning those projects and their impacts. The proposed Exchange simply was not concrete enough to allow for adequate analysis. Moreover, the LRMP EIS did not analyze the impact of increased logging on the parcels that had been transferred out of federal ownership in the 1984 Alpine Lakes Exchange. Many of those parcels are in the same vicinity as the old growth forest lands the Forest Service transferred to Weyerhaeuser. If we were to adopt the Forest Service’s approach, the cumulative impacts of land exchanges would escape environmental review. The problem is compounded by the very general and one-sided analysis of the cumulative impact information that the Huckleberry Exchange EIS does contain. While the district court was correct in observing that there are “twelve sections entitled ‘cumulative effects,’ ” these sections merely provide very broad and general statements devoid of specific, reasoned conclusions. For example, the cumulative impact statement regarding the impact of alternatives two and three on natural vegetation simply indicates the amount of land to be exchanged, and whether or not the land will be subject to commercial harvest. It then concludes: Under Alternatives two and three, the Forest Service would manage for non-harvest uses an additional 16,735 (16,876 under Alternative 3) acres of young forest and non-forest vegetation. Most of this acreage ... would over time develop greater species diversity and stand structure. The statement notably contains no evaluation whatsoever of the impact on natural resources of timber harvesting on the lands transferred to Weyerhaeuser, nor does it assess the possible impacts that such harvesting could have upon surrounding areas. The statement focuses solely on the beneficial impact the exchange will have on lands received by the Forest Service. All of those described benefits are contingent on appropriate Forest Service action and funds to promote the recovery of the harvested lands that it will acquire. This lopsided analysis is repeated in virtually every cumulative impact statement throughout the EIS. We hold that the cumulative impact statements that are provided in the EIS are far too general and one-sided to meet the NEPA requirements. See Neighbors of Cuddy Mountain 137 F.3d at 1379. The statements fall far short of a “useful analysis” as required by City of Carmel, 123 F.3d at 1160. See also Blue Mountains Biodiversity Project, 161 F.3d at 1214-15. The appellees also attempt to tier the Exchange EIS to the Green River Watershed Report to cure the deficiencies of the cumulative impact analysis of the Exchange EIS. Such reliance is impermissible under the NEPA regulations, which only permit tiering to prior EIS’s. 40 C.F.R. §§ 1502.20 and 1508.28. The analysis in the Green River Watershed Report, even if appropriately allowed as a tiering document, demonstrates the need for a more thorough cumulative impact analysis. The Green River Watershed Report explicitly states that the watershed area was degraded by logging prior to the Huckleberry exchange. The Report cautions that future exchanges should be sensitive to the need to avoid additional environmental degradation. Moreover, the Report covers only a portion of the area affected by the Exchange. The Huckleberry EIS should have analyzed the cumulative effects of the logging incident to this exchange upon that damaged watershed area in conjunction with the other degradation mentioned in that document. 40 C.F.R. § 1508.7; see also Neighbors of Cuddy Mountain, 137 F.3d at 1378. The EIS performs no such analysis. It fails to evaluate the near term impacts of Weyerhaeuser’s logging of old growth timber in any meaningful fashion. Therefore, even if the Exchange EIS could be tiered to the Watershed Report, the Watershed Report is only the starting point for the required analysis. It does not fill the gaps in the Exchange EIS. Plaintiffs also contend that the EIS failed to analyze adequately the cumulative effects of a future land exchange involving Plum Creek Timber Company that, according to plaintiffs, was “reasonably foreseeable” at the time the Exchange EIS was prepared. An agency must analyze the incremental impact of the action “when added to other past, present, and reason ably foreseeable future actions.... ” 40 C.F.R. § 1508.7 (emphasis added). The district court determined that the Plum Creek Exchange was too speculative to require analysis. Our review of the record suggests that the Plum Creek transaction was not remote or highly speculative. Rather, it was reasonably foreseeable and it should have been considered in the EIS. A summary of the proposed Plum Creek transaction already had been prepared by the Forest Service by 1995. On June 27, 1996, five months before the Huckleberry EIS was issued, Secretary of Agriculture Dan Glickman formally announced the proposed Plum Creek Exchange to the public. USDA Press Release (June 27, 1996), at 1. Moreover, the record reflects that the Forest Service was all but certain that the National Forest lands in the upper Green River Basin would be included in the Plum Creek exchange. The Huckleberry Exchange EIS was issued in November 1996. In July 1996, the Green River Watershed plan described the Plum Creek exchange, and in January 1997, two months after the Huckleberry Exchange EIS issued, a revised map showing lands to be exchanged in the Plum Creek Exchange was published. The Plum Creek Exchange was not too speculative in November, 1996, to be analyzed in the Huckleberry Exchange EIS. Given the virtual certainty of the transaction and its scope, the Forest Service was required under NEPA to evaluate the cumulative impacts of the Plum Creek transaction. See La Flamme v. Federal Energy Regulatory Comm’n, 852 F.2d 389, 401 (9th Cir.1988); Neighbors of Cuddy Mountain, 137 F.3d at 1379. In the absence of an EIS that takes into consideration the cumulative effects of the planned land sales and resultant environmental impacts, we cannot conclude that the Forest Service took the necessary “hard look” at the cumulative environmental impacts of the Huckleberry Exchange. See Blue Mountain, 161 F.3d at 1216. Nor can the Forest Service’s inappropriate use of tiering meet the requirements of the NEPA. While the LRMP EIS, which was completed in 1990, does mention the Plum Creek Exchange, it expressly indicates that at that time, its effects were too speculative to gauge. The tiering of documents that do not perform the required cumulative impact analysis falls far short of the standard articulated in Neighbors of Cuddy Mountain. In 1996, when the Huckleberry Exchange EIS was completed, the Plum Creek Exchange had moved well beyond mere speculation. The Forest Service abused its discretion in ignoring the impacts of that exchange. B. Failure to Consider an Adequate Range of Alternatives We also agree with the Societies’ contention that the Forest Service violated NEPA by failing to consider a range of appropriate alternatives to the proposed exchange. The Societies first contend that the EIS fails to properly specify the underlying purpose and need to which the proposal is responding as required by NEPA regulations. See 40 C.F.R. § 1502 .13 (requiring a statement that “shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action”). The EIS states that the purpose and need for the proposal is to “consolidate ownership and enhance future resource conservation and management by exchanging parcels of National Forest System and Weyerhaeuser land.” The Societies argue that this narrowly stated purpose fails to meet the requirements of section 1502.13 as it was interpreted in City of Carmel, where we held that “[t]he stated goal of a project necessarily dictates the range of reasonable alternatives and an agency cannot define its objectives in unreasonably narrow terms.” 123 F.3d at 1155. While the statement of purpose contained in the EIS, taken in complete isolation, would appear too narrow to meet the standards articulated in City of Car-mel, we note that the EIS expressly incorporates it within the LRMP’s stated purpose of “creat[ing] consolidated land ownership patterns where consistent management mandates, policies and objectives apply across large blocks of land.” Because the EIS’ statement of purpose makes clear that an exchange of land with Weyerhaeuser would foster the desirable consolidation of ownership of the checkerboard land holdings, it is reasonable and should be upheld. See Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 5.Ct. 616, 116 L.Ed.2d 638 (1991) (holding that agency’s stated objective should be upheld where reasonable). However, in the course of evaluating the options that would best achieve the stated purpose of the proposed action, the Forest Service failed to consider an adequate range of alternatives. The EIS considered only a no action alternative along with two virtually identical alternatives. The selected alternative, Alternative 3, differed from Alternative 2 only in that it re-labeled a portion of the lands Weyerhaeuser transferred to the Forest Service a donation rather than an exchange, and added 141 acres of donated land. In addressing the claims that the Forest Service erred in failing to mitigate the possible harms of the exchange, the district court concluded that there was no evidence that Weyerhaeuser would agree to plaintiffs’ proposed alternative of the Forest Service purchasing the Weyerhaeu-ser land rather than exchanging for it and that there was no evidence that the agency failed to consider, as required by Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1305 (9th Cir.1994), “a reasonably full range of alternatives.” Our review of the record, reinforced by the statements of Weyerhaeuser’s counsel at oral argument, compel us to reach the opposite conclusion. In this case, the Forest Service, after a process of “scoping” to collect the views of the public, initially considered five action alternatives and a no action alternative for the project. Three alternatives were eliminated from detailed study. Analyses were performed on the remaining two proposals and the no action plan. One of the alternatives that was preliminarily eliminated from detailed study would have placed deed restrictions on the land traded to Weyerhaeuser, requiring that the lands be managed under National Forest Service standards, rather than allowing Weyerhaeuser to log the land pursuant to the less stringent standards of Washington state law. That alternative was rejected on the grounds that it would decrease Weyerhaeuser’s incentive to trade. However, there is nothing in the record to demonstrate that the Forest Service even considered increasing Weyer-haeuser’s incentive to trade either by offering additional acreage, subject to deed restrictions, or by decreasing the amount of Weyerhaeuser land transferred in the Exchange. Although NEPA does not require the Forest Service to “consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives,” Seattle Audubon Society v. Moseley, 80 F.3d 1401, 1404 (9th Cir.1996), we are troubled that in this case, the Forest Service failed to consider an alternative that was more consistent with its basic policy objectives than the alternatives that were the subject of final consideration. In this case, the applicable regulation controlling implementation of the Federal Land Policy Management Act, 43 U.S.C. § 1701 et seq., pursuant to which the Exchange was transacted, dictates that the agency officer authorized to conduct a land exchange “shall reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of Federal lands to be exchanged, as appropriate.” 36 C.F.R. 254.3(h). A detailed consideration of a trade involving deed restrictions' or other modifications to the acreage involved is in the public interest and should have been considered. We also recognize that an agency’s discussion of alternatives must be “bounded by some notion of feasibility.” See Vermont Yankee Nuclear Power v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Counsel for Weyerhaeuser conceded at oral argument that the imposition of deed restrictions was a viable alternative to the Exchange Agreement of March 28, 1997. A “viable but unexamined alternative renders [the] environmental impact statement inadequate.” Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir.1985). Imposition of deed restrictions was a feasible alternative that could not be ignored. The plaintiffs also argue that the land could have been purchased outright with funds from the Federal Land and Water Conservation Fund. While the Forest Service itself cannot appropriate these funds, it can request them. The record reflects that such a request was never made, and indeed, this option was not even considered. The appellees respond that, because it was not clear that the funds would be available for such a purchase, the Forest Service had no obligation to consider it, as it constituted a “remote and speculative” alternative. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197. However, NEPA regulations state that agencies shall “include reasonable alternatives not within the jurisdiction of the lead agency.” 40 C.F.R. § 1502.14(c). This alternative clearly falls within the range of such reasonable alternatives, and should have been considered. We also note that in presenting the beneficial cumulative impacts of the exchange, the EIS frequently relies upon references to admittedly speculative funds that will be used by the Forest Service in restoring the forest lands that it gains through the transaction. We are troubled by this selective willingness to rely upon the availability of funding sources beyond the Forest Service’s direct control. The Forest Service also contends that because the purpose of the transaction was to carry out an “exchange” and not a purchase, it was not required to consider this alternative. Seattle Audubon Society, 80 F.3d at 1404 (holding that an agency is not required to examine alternatives inconsistent with its basic policy objectives). To the extent that Weyerhaeuser would have been exchanging its lands for federal monies rather than federal lands, we do not recognize such an inconsistency. NEPA “does not mandate particular results,” but “simply provides the necessary process” to ensure that federal agencies take a “hard look” at the environmental consequences of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). We conclude that in this case, the Forest Service failed to take the necessary hard look at the environmental impacts of the exchange and similarly failed to consider adequate alternatives to the proposed exchange. IV. MOOTNESS In this case, Weyerhaeuser (but not the United States) has contended that the appeal is moot because on March 12, 1998, the United States and Weyerhaeuser completed the Exchange through the conveyance of patents and deeds and Weyer-haeuser has secured permits to log from the State of Washington. The plaintiffs failed to obtain a stay of the district court’s order pending appeal, and Weyerhaeuser now alleges that it owns and conducts business operations on the land obtained from the United States, and has assumed the obligation, pursuant to the exchange agreement, of managing over 7,500 acres of its non-Exchange lands. According to Weyerhaeuser’s counsel at oral argument, Weyerhaeuser has already “destroyed” at least ten percent of the land it obtained through the exchange. Conveyance of property to another does not moot a case. National Forest Preservation Group v. Butz, 485 F.2d 408, 411 (9th Cir.1973). Federal courts are authorized to “void a property transaction” where necessary. National Wildlife Federation v. Espy, 45 F.3d 1837, 1342 (9th Cir.1995). Where the actions involved in a title transfer can be undone, this court will not find meritorious the defense of mootness. Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, (9th Cir.) cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Given our reluctance to invoke the doctrine of mootness, the facts that the exchange has occurred and that Weyerhaeu-ser has began to log pursuant to its state permits do not meet the “heavy” evidentia-ry burden that a party must carry in order to establish mootness. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). The only evidence properly before us simply illustrates that the property transfer has occurred. This evidence is insufficient to establish mootness. National Forest Preservation Group, 485 F.2d at 411; National Wildlife Federation, 45 F.3d at 1342. The fact that Weyerhaeuser may have “destroyed” a portion of the land does not alter the ability of the government to accept a reassignment of the property, if required. V. CONCLUSION We hold that the Forest Service failed to meet the requirements of NHPA and NEPA. Its attempt to mitigate the adverse effect of transferring portions of the Divide Trail by documenting the trail did not comport with the regulations. It did not adequately consider the cumulative impacts of the Huckleberry Exchange in conjunction with past or reasonably certain future transactions. To the extent it attempted an analysis of cumulative impacts, the analysis was one-sided. Finally, it did not consider adequate alternatives to implement the Exchange. In light of our ruling, we need not reach the questions of whether the district court properly excluded evidence or whether the Forest Service was required to nominate the Divide Trail. Our remand allows the Forest Service to reconsider whether it has located all of the historic properties on the lands it proposes to transfer out of federal ownership and what protections should be required. We REVERSE and REMAND to the district court with directions that it remand to the Forest Service for further proceedings consistent with this opinion. Given Weyerhaeuser’s representations that it has destroyed approximately ten percent of the property, and will continue to do so, we also enjoin any further activities on the land such as would be undertaken pursuant to the Huckleberry Mountain Exchange Agreement as executed on March 28, 1997 until such time as the Forest Service satisfies its NHPA and NEPA obligations. The injunction shall take effect immediately by virtue of a separate order filed concomitantly with this opinion. . Alternative two proposed an exchange of up to 6,273 acres of Forest Service lands for up to 32,010 acres of Weyerhauser lands. Alternative three would remove 1,885 acres from the exchange. That acreage, and an additional 141 acres, would be donated by Weyer-haeuser to the Forest Service contingent on the implementation of that alternative. Nine hundred sixty two acres of the donated parcel would be donated for inclusion in the Alpine Lakes Wilderness Area and 1,034 acres would be proposed for management without timber harvest emphasis. Under that alternative, Weyerhaeuser would also retain title to the subsurface mineral estates on lands transferred to the Forest Service. . The modifications removed 1,280 acres of federal lands located near the town of Green-water and 320 acres of federal land around Mule Springs, an important Tribal site; retained a cost-share status between the Forest Service and Weyerhaeuser for Forest Service Road 7125 to ensure continued tribal access to the site; and modified the terms of the mineral rights that Weyerhaeuser received. . Weyerhaeuser did not retain title to certain subsurface mineral estates as described in the EIS. Instead, it retained the rights to a portion of the royalties from any minerals leased or sold by the Forest Service on those lands. . The conclusions of the Advisory council in response to tribal allegations of procedural inadequacies captures the state of the record on this issue: Perhaps the Forest Service fell short in involving the Tribe in developing its identification strategy, but the record demon-states the [Agency] did make a reasonable and good faith effort to identify historic properties that may be affected by the Hucklebery Land Exchange .... no further effort to identify or evaluate historic properties should be required for this undertaking. . We note that, in proposing this mitigation, the Forest Service claimed that transferring a property "may be determined to have no adverse effect if conditions are included to ensure preservation of the. property’s historic values." (emphasis added). It misunderstands its obligations. Preserving a property’s historic values is not the same as preserving its "significant historic features.” . We also note that NHPA regulations suggest that when federal land with historic properties is sold or transferred, this "adverse effect” becomes "not adverse” if adequate restrictions or conditions are included to preserve the property’s significant historic features. See 36 C.F.R. § 800.9(c)(3). . Were we to construe the statement of purpose as limiting the transaction to land-for-land exchanges, it would certainly be too narrow to meet the standards for an appropriate statement of purpose as articulated in City of Carmel, 123 F.3d at 1155.

Moody Hill Farms Ltd. Partnership v. United States Department of the Interior, National Parks Service

WALKER, Circuit Judge. Plaintiffs-appellees, residents of the hamlet of Coleman Station in New York state, claimed in the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge) that the Keeper of the National Register of Historic Places, an officer of the National Park Service, acted arbitrarily and capriciously, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., when she denied plaintiffs-appellees’ petition to remove Coleman Station Historic District from the National Register. After the district court granted summary judgment to plaintiffs-appellees, see Moody Hill Farms Ltd. Partnership v. United States Dep’t of Interior, 976 F.Supp. 214, 222-23 (S.D.N.Y.1997), the Park Service appealed. At the heart of this case is a dispute between neighboring landowners about the future of Coleman Station, a hamlet in the Town of Northeast in Dutchess County, New York. Plaintiffs either are associated with Moody Hill Farms Limited Partnership, which operates a composting facility and organic farm on property within Coleman Station, or own farms within or adjacent to Coleman Station. The movement to list Coleman Station on the state and national registers of historic places was initiated by other landowners within Coleman Station who have made no secret of their opposition to Moody Hill Farms’ composting activities, which they see as a threat to the district’s traditional character. In 1993, the latter group succeeded in obtaining listing for Coleman Station on the New York State Register of Historic Places. The New York State Office of Parks, Recreation and Historic Preservation (“NYHP”), pursuant to federal regulation, simultaneously nominated Coleman Station for listing on the National Register, and Coleman Station was placed on the National Register. Soon thereafter, plaintiffs challenged the New York listing on procedural grounds in state court and succeeded in having the listing removed. Plaintiffs then petitioned the Keeper to have the national listing annulled. After the Keeper denied their petition, plaintiffs filed the present suit, alleging violations of the APA and their due process rights. With respect to the APA claim, the district court concluded that, because the criteria for the state and national registers are identical, eligibility for listing on the national register was destroyed once the state listing was voided. The district court further concluded that the procedural errors in the state listing contaminated the national nomination. Finally, the district court concluded that the Keeper erred in failing to consider an opinion by a Deputy Commissioner of the NYHP, forwarded along with plaintiffs’ petition to remove Coleman Station from the National Register, that the property may lack historic integrity. The district court also denied summary judgment to defendant on plaintiffs’ due process claim. We disagree with the district court’s conclusions regarding the APA claim. Because the Keeper has independent authority to determine the eligibility of properties and to add them to the National Register, the annulment of the state listing did not automatically void the national listing. Therefore, we reverse and remand-for entry of judgment for defendant-appellant. BACKGROUND The National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq., authorizes the Secretary of the Interior to expand and maintain a National Register of “districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering and culture.” Id. § 470a(a)(l)(A). The regulations governing the procedures for listing properties on the National Register are set forth at 36 C.F.R. pt. 60. Properties may be added to the National Register in several ways, including nomination by an approved state historic preservation program, as in this case, or by a federal agency, by an individual in a state where there is no approved historic preservation program, by act of Congress or Executive Order, or by a declaration by the Secretary of the Interior. All nominations to the National Register, except those made by Act of Congress, Executive Order, or declaration by the Secretary of the Interi- or, must be approved by the Park Service. See 36 C.F.R. § 60.1(b). On June 8, 1993, the New York State Review Board for Historic Preservation voted unanimously to nominate Coleman Station for listing on the state and national registers. The Review Board’s decision was sent to the NYHP, New York’s approved Historic Preservation Program, which, on August 12, 1993, approved the recommendation without written opinion and forwarded the nomination to the Keeper of the National Register. More than two months later, on October 25, 1993, property owners within the Coleman Station district received notification of the state listing. On August 31, 1993, the Park Service published notice in the Federal Register that Coleman Station was under consideration for entry in the National Register. On September 30, 1993, Coleman Station was listed in the National Register, and the Park Service notified the NYHP of the national listing. Approximately one year later, on December 30, 1994, the NYHP notified property owners within the district of the national listing. Following the state listing, plaintiffs filed an Article 78 proceeding in the New York Supreme Court in Dutchess County. They sought an annulment on various grounds, including that the state listing was accomplished in violation of the procedures set forth at N.Y. Comp. Codes R. & Regs. tit. 9, § 427.5. These regulations provide, inter alia, that the NYHP must notify each owner of privately owned property of a decision relating to the listing of a property on the State Register no later than 45 calendar days after the decision has been made. See id. § 427.5(f)(1). The regulations also provide that the NYHP must issue its decision in writing, setting forth the findings in support of the decision. See id. § 427.5(d). By opinion dated June 29, 1994, the state court held for plaintiffs that the NYHP’s failure to comply with these procedures vitiated the state listing. See In re Moody Hill Farms Ltd. Partnership v. New York State Office of Parks, Recreation and Historic Preservation, No. 94/0324, slip op. at 3-4 (N.Y.Sup.Ct. June 29, 1994). The state court did not reach the merits of whether Coleman Station met the criteria for eligibility for listing. Plaintiffs then petitioned the Keeper to delist Coleman Station from the National Register. In conformity with the regulations set forth at 36 C.F.R. § 60.15(c), plaintiffs filed their petition with the NYHP, which reviewed the petition and, at plaintiffs’ request, forwarded it to the Keeper. In a March 9, 1995, letter to plaintiffs, which was included with the materials sent to the Keeper, the NYHP set forth its analysis of the petition. Regarding the merits of Coleman Station’s eligibility for listing, the letter noted that questions had been raised at the meeting of the State Review Board regarding the historic integrity of the district that “should be evaluated by the Keeper of the National Register.” Regarding the procedural errors in the state listing, the letter concluded that [t]he allegations in the petition about “procedural deficiencies” do not appear to be a basis for removal. The State Court in the proceeding referred to in the petition found that the Agency failed to follow certain procedures relating to the listing on the State Register. These procedural errors are not related to the listing of Coleman Station Historic District on the National Register. In response to the other procedural issues raised in the petition, the Agency sent out notices of the listing on the National Register on December 30,, 1994, to all the property owners in the district; the federal rules do not require that notice be sent to property owners adjacent to a proposed district. By letter dated August 18, 1995, the Keeper notified plaintiffs that their petition to remove Coleman Station from the National Register was denied. The Keeper reviewed and rejected each of plaintiffs’ arguments. She explained that the district was worthy of listing according to the established criteria, and that the procedural errors in the state listing did not vitiate the national listing. Thus, although Coleman Station is no longer on the New York State Register of Historic Places, it remains on the National Register of Historic Places. At a February 2, 1995 meeting, the New York State Review Board for Historic Preservation tabled a motion to re-nominate Coleman Station for state listing. Votes were insufficient to pass a motion to re-nominate or to definitively defeat one. At stake in this litigation appears to be the risk that, if the national listing is upheld, Coleman Station’s state listing will be automatically restored without any further Board action. Under New York law, any property that is listed on, or even nominated to, the National Register is deemed listed on the state register. See N.Y.Comp.Codes R. & Regs. tit. 9, § 427.1. Although national listing does not burden private landowners in any respect, and requires only that federal agencies take into account the effect of any proposed action on protected property, see 36 C.F.R. § 60.2(a), state listing may impose burdens on landowners within a district, such as requiring them to prepare an Environmental Impact Statement in order to obtain state approval for modifications, see N.Y.Comp.Codes R. & Regs. tit. 6, § 617 (setting forth regulations under New York’s State Environmental Quality Review Act (“SEQRA”), N.Y.Envtl.L.' § 8-101 et seq.). DISCUSSION I. Plaintiffs’APA Claim Resolution of plaintiffs’ APA claim turns on a single legal question: does the Keeper have independent authority to determine whether properties are eligible for listing on the National Register and to name them to the National Register without the agreement of a State’s Historic Preservation Program? We find that the Keeper does have such independent authority and that, therefore, plaintiffs’ APA claim is without merit. We begin by looking at the regulations governing the listing of properties on the National Register. These regulations establish five mechanisms for the listing of a property: (1) Those Acts of Congress and Executive orders which create historic areas of the National Park System administered by the National Park Service, all or portions of which may be determined to be of historic significance consistent with the intent of Congress; (2) Properties declared by the Secretary of the Interior to be of national significance and designated as National Historic Landmarks; (3) Nominations prepared under approved State Historic Preservation Programs, submitted by the State Historic Preservation Officer and approved by the NPS; (4) Nominations from any person or local government (only if such property is located in a State with no approved State Historic Preservation Program) approved by the NPS and; (5) Nominations of Federal properties prepared by Federal agencies, submitted by the Federal Preservation Officer and approved by NPS. 36 C.F.R. § 60.1(b) (emphasis added). Where a nomination comes through a state historic preservation program, the regulations reserve final authority for the Park Service to determine whether the property will be added to the National Register. This reservation, combined with the Secretary of the Interior’s power to name a property for listing sua sponte, strongly supports the inference that the Keeper has independent authority to determine whether a property should be listed, even where a nomination initially comes through a state preservation program. Indeed, the regulations require that even where there is a disagreement within a state program about a property’s eligibility for listing, such nominations must be forwarded to the Keeper along with an explanation of the disagreement. See 36 C.F.R. § 60.6(p). Every circuit court to have considered the federal government’s authority under the National Historic Preservation Act and related statutes to determine a property’s eligibility for the National Register has concluded that the federal government is not bound by the determinations of local authorities. For example, in Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.1976), the state of Hawaii planned to build a federally-financed highway through a valley that a private citizens’ group sought to protect. The citizens’ group petitioned the Secretary of the Interior to place the valley on the National Register. The Secretary determined that the valley was eligible for listing on the basis of its local historic and cultural value. Subsequent to that determination, the Hawaii Historic Places Review Board, a state body responsible for evaluating and nominating Hawaiian properties for inclusion in the state and national registers, issued a finding that the valley was of only marginal local significance, a classification that would afford the valley no protection from destruction. See id. at 439-40. The question presented to the Ninth Circuit was whether the Secretary of the Interior (operating through the Keeper) had the authority to deem a property worthy of listing on the National Register on account of its state or local significance despite the state authorities’ determination that the property was of marginal or no local significance. See id. at 441. The Ninth Circuit upheld the authority of the Secretary. See id. at 441-43. Reviewing the history and purposes of the National Historic Preservation Act, the court noted that [t]he Act does not distinguish in any way between properties of “national” significance and those of “state or local” significance. There is nothing whatsoever in the Act or its legislative history to indicate that the Secretary may name some properties to the Register — those of importance in the history of a region, state, or locality — only after obtaining the concurrence of state and local authorities. For the purposes of the Register, properties of national, state, and local significance are treated equally. They are all deemed significant in American history, and they should be. If it should be held that the Interior Secretary has no power to determine that properties have state or local historic significance, there would, in our view, be a virtual nullification of the NHPA.... Only properties of “national” significance would have any lasting protection from destruction. Whenever a city or state preferred a Federally-funded highway to an historic site, the local body could simply declare the site insignificant. Such a holding would be without precedent and would completely defeat Congress’s clear attempt to protect such properties by passing the NHPA.... Id. at 441 n. 13 (emphasis in original). The court concluded that [s]ince the Interior Secretary is the only official authorized to name properties to the National Register, we have no doubt that he has “jurisdiction” to determine whether properties have state or local historic significance.... Consequently, the Interior Secretary’s determination that [a particular site] is eligible for inclusion on the National Register as a site of local historic importance is not vitiated, and cannot be vitiated, by the State Review Board’s finding that the [site] has only “marginal” significance. Id. at 441 (emphasis added). In Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1025-27 (5th Cir.1971), the Fifth Circuit considered whether § 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138, which applies to sites on or eligible for the National Register, gave the Secretary of Transportation final authority to determine a property’s significance for purposes of whether the property should be protected from highway construction. As in Stop H-3, the case arose due to a city’s expressed preference for a federally-funded highway over a park. The City Council had passed a resolution declaring the disputed property to be “of primary local significance as part of the right of way for the North Expressway and of secondary local significance as parts of park and recreation areas.” Named Individual Members, 446 F.2d at 1025-26 (emphasis omitted). The Fifth Circuit held that the City’s preference was not relevant, because in enacting § 4(f) of the Transportation Act Congress had already determined that the decision between parks of local significance and federally-funded highways should not be in the hands of local authorities. See id. at 1026. The fact that the City Council did not consider the property to be of significance as a park was not determinative of whether it was protected. That decision rested with the Secretary of Transportation, who was directed by the Transportation Act to work in conjunction with the Secretary of the Interior and other agency heads to develop transportation plans that “include measures to maintain or enhance the natural beauty of the lands traversed.” 23 U.S.C. § 138. Plaintiffs do not cite any legal authority, contrary to Stop H-S and Named Individual Members, to support the proposition that local authorities have the final word on a property’s eligibility for listing on the National Register. Instead, they rely on the argument that the procedural errors that occurred in the state listing process in this case render the national listing null and void. This argument assumes that the national listing process incorporates state procedural requirements whenever a property is brought to the Keeper’s attention by a state preservation program. We disagree. Nothing in the federal regulations governing the procedural requirements concerning the listing of properties on the National Register supports plaintiffs’ position that compliance with state procedural requirements is a predicate to national listing. These regulations provide, inter alia, that property owners within a district must be given at least 30 but not more than 75 days’ notice of the state’s intent to bring the nomination of a district before the State Review Board, and an opportunity to comment in writing. See 36 C.F.R. § 60.6(b), (d). Unless a majority of property owners objects by notarized statement to the nomination, notice that a property has been nominated for listing on the National Register must be published in the Federal Register within 45 days of the Keeper’s receipt of the nomination. See id. § 60.6(r). If a majority of property owners objects, the Keeper must review the nomination and make a determination of eligibility within 45 days of receipt of the objection. See id. § 60.6(s). If the property is listed in the National Register, the State Historic Preservation Officer, the official charged with forwarding nominations to the Keeper, is required to inform the property owners of the listing. See id. § 60.6(u). The method of notification depends upon the number of property owners within the district. See id. There is no time limit, however, for when notification of listing on the National Register must be given. The regulations also provide a mechanism for parties to petition the Keeper for the removal of a property from the National Register. See id. § 60.15. The grounds for removal include (1) the property no longer meets the criteria for listing due to loss or destruction; (2) additional information shows that the property does not meet the eligibility criteria; (3) errors in professional judgment were made regarding eligibility; or (4) there was prejudicial procedural error in the nomination or listing process. See id. There is no time limit following the listing of a property on the National Register governing when a party may petition for its removal. As the foregoing brief discussion suggests, these regulations establish a comprehensive set of procedural requirements that must be met for a property to be listed on the National Register upon the nomination of a state preservation program. However, nowhere in the regulations is there a requirement that state preservation programs also comply with state procedural requirements regarding nominations of properties for the national register. Although prejudicial error in the nomination or listing process is a ground for removal from the national register, see 36 C.F.R. § 60.15, we read this provision as relating to errors in the national nomination or listing process, not errors in the state nomination process. The effect of reading a requirement of compliance with state procedural rules into the federal scheme, it seems to us, would add unnecessary prolixity and could lead to a maze of disparate procedures for national listing from state to state. Accordingly, since there has been no allegation that the Park Service failed to comply with its own procedural requirements, plaintiffs’ procedural argument must fail. In the absence of any federal procedural failings, we do not find that the Keeper acted arbitrarily or capriciously, in violation of the APA, when she denied plaintiffs’ petition to remove Coleman Station from the National Register on account of NYHP’s failure to comply with state procedural requirements. Nor do we find that the Keeper failed to consider all relevant factors regarding the district’s eligibility, including the purported opinion by the NYHP official who transmitted plaintiffs’ removal petition to the Keeper that the district may lack historical integrity. We have reviewed the letter that plaintiffs argue conveys this opinion and find the district court’s observation that “[t]he letter stated that the boundaries may be defective and questioned the historic integrity of the district, the threshold requirement for National Register listing,” 976 F.Supp. at 223, to be clear error. Rather than expressing an independent view regarding the district’s integrity, the letter sets forth concerns that had been raised before the State Preservation Review Board, and recommends that the Keeper make an independent evaluation regarding the district’s eligibility. Finally, we reject plaintiffs’ contention that the state procedural flaw, even if it does not require delisting in some cases, required delisting in this case in the absence of an affirmative federal finding of eligibility for federal listing. Once the federal listing occurred, plaintiffs had the opportunity to seek to persuade the Keeper that the property does not meet the eligibility criteria, and the Keeper’s obligation, as we have noted, was to consider all relevant factors bearing on eligibility. The Keeper fulfilled this obligation. Though the end result is a national listing without an explicit finding of federal eligibility, that result does not contravene any federal requirement in a case such as this where the listing results from a state nomination, albeit one that was procedurally flawed. II. Plaintiffs’ Contention Under the Due Process Clause Having determined that plaintiffs’ APA challenge must fail, we turn to their contention that the district court’s judgment should be upheld on the alternate ground that the Keeper’s action violated their rights under the Due Process Clause. We have jurisdiction to consider any contention, supported by the record, that arguably supports the judgment. In exercising that jurisdiction, we may consider the legal sufficiency of the contention. In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court outlined the concerns that a court must weigh in evaluating a due process challenge. It stated that the evaluation of a due process claim generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. 893. “The first question in any due process inquiry is whether the plaintiff has a constitutionally protected interest.” DeMichele v. Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 789 (2d Cir.1999). To succeed on a claim of a procedural due process violation, “a plaintiff must establish that state action deprived him of a protected property interest.” Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 995 (2d Cir.1997). We reject plaintiffs’ due process' argument because national listing on its own does not impose any burdens on plaintiffs’ use of their property. National listing constrains only the ability of departments of the federal government to take action affecting a listed property without first considering the effect of that action on the property. See 36 C.F.R. § 60.2(a); Stop H-3, 533 F.2d at 437-38; Named Individual Members, 446 F.2d at 1021-22. Plaintiffs have not alleged that this constraint on federal action implicates their property interests. It is, rather, the burdens associated with listing on the New York register with which plaintiffs are concerned. These burdens include those imposed by New York’s SEQRA and the attendant risk that because plaintiffs’ property is subject to regulation under SEQRA, it will be less valuable in securing credit from lenders. Federal law is relevant to this scheme only because New York automatically adds to its register of historic places any property nominated to or deemed eligible for listing on the National Register. See N.Y.Comp. Codes R. & Regs. tit. 9, § 427.1. The fact that New York has chosen to tie its register to the national register, however, does not transform plaintiffs’ due process claim' — predicated on the burdens imposed by state law- — into a due process claim against the National Park Service. In the absence of any allegation that national listing on its own imposes a burden that affects plaintiffs’ property interests, plaintiffs’ due process claim against this defendant must fail. CONCLUSION The judgment of the district court is reversed and the case is remanded for entry of judgment for defendant-appellant. . For the purposes of this analysis, we will assume that the Stale Preservation Review Board’s failure to re-nominate Coleman Station for listing on the state register after the state court's annulment of the first state listing amounts to a statement by the Board that, in its opinion, the district was not eligible for listing.

Hoonah Indian Ass'n v. Morrison

KLEINFELD, Circuit Judge. These appeals relate to two timber sales, and raise questions under the Alaska National Interest Lands Conservation Act (ANIL-CA), and the National Historic Preservation Act (NHPA). Facts. The Forest Service gave notice of its intent to conduct timber sales in the Tongass National Forest in Southeast Alaska. 58 Fed. Reg. 21559-01, 37458-01 (1993). Two sales were proposed, called the Northwest Baranof and Eight Fathom, on Baranof Island north of Sitka, and on Chichagof Island around Hoonah. The timber sales were planned pursuant to the Tongass Timber Reform Act, 16 U.S.C. § 539d. This federal law speaks not to all national forests but only to one, the Tongass National Forest in Southeast Alaska. It commands the Secretary of Agriculture to sell enough wood from the Tongass National Forest, subject to certain qualifications, to satisfy market demand: a. Tongass National Forest timber supply; satisfaction of certain market demands. Subject to appropriations, other applicable law, and the requirements of the National Forest Management Act of 1976 (Public Law 94-588), except as provided in subsection (d) of this section, the Secretary shall, to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber from the Ton-gass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle. 16 U.S.C. § 539d(a). Final Environmental Impact Statements were published in February, 1996 for the Northwest Baranof project, and in May, 1996 for the Eight Fathom project. Hoonah Indian Association and Sitka Tribe brought this lawsuit and now appeal. Hoo-nah is among Alaska’s larger villages, about 800 people, and Sitka is among its largest cities (by Alaska standards), close to 9,000 people. The Native community in each town has a tribal government. Both towns are in Southeast Alaska. Though the towns are distinct from the tribal governments (Sitka is largely non-Native, with a substantial Tlingit minority), the tribal governments are referred to herein for convenience as Hoonah and Sitka. Sitka and Hoonah both argue that the timber sales would violate 16 U.S.C. § 3120’s limitation on dispositions affecting subsistence uses of public land. Sitka also argues that the Northwest Baranof sales would violate the National Historic Preservation Act, 16 U.S.C. § 470f. The tribal governments moved for summary judgment, which was denied. They sought injunctions, which were denied as well. The United States moved for clarification, noting that the Tribes had moved for a permanent, not preliminary, injunction. The district court granted the clarification, stating that its. order denying an injunction was a final decision. The Tribes appeal. Because there was no certification under Federal Rule of Civil Procedure 54(b), we lack jurisdiction to review the denial of summary judgment. See Datagate, Inc. v. Hewlett-Packard, 941 F.2d 864, 868 n. 1 (9th Cir.1991); Kraus v. County of Pierce, 793 F.2d 1105, 1106 (9th Cir.1986). We have jurisdiction to review denial of the injunction under 28 U.S.C. § 1292(a)(1). Analysis. I. Alaska National Interest Lands Conservation Act Claims. The ANILCA claim relates to what the statute calls “subsistence.” The Tribes say in their brief that “[i]n the lower 48 states, ‘subsistence’ is often associated with the grinding poverty present on many Indian reservations_ In Alaska ... ‘subsistence’ represents a source of great economic and cultural wealth.” What the subsistence issue is about in this case, concretely, is deer hunting. The evidence was that in Hoonah, the value of fish and game, especially deer, provide around a third of average household income. Basically people who successfully hunt enough deer need not buy much meat for cash. The subsistence issue is cultural as well as economic. By living on deer meat that they hunt, Tlingits provide for their subsistence as their ancestors did. Rural Alaskan subsistence is protected by a provision in the Alaska National Interest Lands Conservation Act (ANILCA). Though directed in large part toward land conservation rather than subsistence, ANIL-CA says in part that no permit or other use of public lands “which would significantly restrict subsistence uses shall be effected until” the agency head determines that such a restriction is “necessary, consistent with sound management principles for the utilization of public lands” and would “involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition.” 16 U.S.C. § 3120(a). A. “Necessary.” Hoonah and Sitka argue that, although the agency head purported to make the determinations ANILCA requires, he misinterpreted the statutory command and should have determined that the timber sales were neither “necessary” nor involved the “minimal” amount of lands necessary. The statute does not require the “necessary” finding except where a disposition “would significantly restrict subsistence uses.” 16 U.S.C. § 3120(a). The agency head found that these timber sales would not by themselves significantly affect subsistence uses, but would in combination with other timber sales, by the Forest Service and Native corporations, in the past, contemporaneously, and in the future. For the last two decades, both the Forest Service and the local Native corporations have sold rights to clear cut various areas around Hoonah and Sitka. This damages deer habitat. The deer are likely to leave areas with trees cut down and noisy with chain saws, and go to undisturbed woods. But there are a lot of deer in the area, even though timber harvesting has been extensive since the Russians colonized the area two centuries ago (they colonized it partly because it had extensive timber good for shipbuilding). The Tlingits have subsisted on deer hunting there, as well as fishing and trading, since time immemorial. The final environmental impact statements conclude that the impact of the timber sales at issue on the deer population would be “minimal.” The environmental impact statements conclude that the total deer habitat capabilities of the Northwest Baranof and Eight Fathom locations would decrease two and seven percent, respectively. We assume, as the parties have, but do not decide, that a sale which would not by itself significantly restrict subsistence uses, but which would in combination with other sales public and private, meets the statutory condition, “which would significantly restrict subsistence uses.” The Tribes’ argument about “necessary” is that the Secretary was not required by statute to sell any particular minimum amount of timber, just to “seek to provide a supply” meeting market demand. Because the Secretary is not compelled by law to provide a minimum amount, any significant restriction on subsistence use is not “necessary.” They correctly cite Alaska Wilderness Recreation and Tourism Ass’n. v. Morrison, 67 F.3d 723, 731 (9th Cir.1995), for the proposition that 16 U.S.C. § 539d(a) “envisions not an inflexible harvest level, but a balancing....” The Tribes’ argument would imply that, because there is no law requiring a set amount of timber harvesting, no restriction on subsistence uses is “necessary,” so any use significantly restricting subsistence uses would be prohibited. We agree with the United States’ argument that the word “necessary” does not have the effect of prohibiting timber sales that affect subsistence and are not required by law. The statute does not say that. The word “necessary” does not stand outside of a context, subject to definition only by a dictionary. The subsistence provision of the statute says “necessary, consistent with sound management principles for the utilization of public lands.” The words following the comma qualify and explain the statutory term “necessary.” The agency head is directed by Congress to consider consistency with “sound management principles for the utilization of the public lands” in connection with evaluating whether a significant restriction of subsistence uses is “necessary.” A significant restriction of subsistence uses might not be necessary to achieve compliance with law, yet necessary to conform to sound management principles for such “utilization.” If so, the statutory language would make it “necessary.” The Forest Supervisor found that “these actions are necessary, consistent with sound management of public lands.” His Record of Decision for the Northwest Baranof sale says that “a substantial component of the economy of Southeast Alaska is dependent on a viable timber industry,” and “there is a clear need” for the sale in order to “come closer to the objective of providing a three-year supply of timber to the existing dependent industry.” The Record of Decision for the Eight Fathom Sale is similar. The record establishes that these findings are not arbitrary and capricious. See Natural Resources Defense Council v. United States Dep’t of Interior, 113 F.3d 1121, 1123-24 (9th Cir.1997). The Tribes argue that because the Ton-gass Timber Reform Act is “subject to ... other applicable law,” 16 U.S.C. § 539d(a), the subsistence provision in 16 U.S.C. § 3120(a) controls. The argument is correct to the extent that the Tongass Timber Reform Act does not supersede the cited ANIL-CA provision. But the ANILCA subsistence provision also does not supersede the Ton-gass Timber Reform Act. The statutes do not conflict. Both apply. The subsistence provision of ANILCA says “necessary, consistent with sound management principles for the utilization of public lands.” The “utilization” to which “sound management principles” refers is multiple, including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness”: § 1604. National Forest System land and resource management plans (e) Required assurances In developing, maintaining, and revising plans for units of the National Forest System pursuant to this section, the Secretary shall assure that such plans - (1) provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960, and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.... The Supreme Court has instructed us emphatically, in an earlier reversal, that “Congress clearly did not” subordinate all other uses to subsistence uses: Congress clearly did not state in ANILCA that subsistence uses are always more important in development of .energy resources, or other uses of federal lands; rather, it expressly declared that preservation of subsistence resources is a public interest and established a framework for reconciliation, where possible, of competing public interests. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545-46, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (emphasis in original). The Tribes argue that we must construe the word “necessary” in light of the canon that ambiguous provisions in Indian legislation are construed “ ‘in favor of the Indians.’ ” Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976) (quoting Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 63 L.Ed. 138 (1918)). But they are mistaken in arguing that the “subsistence uses” provision is Indian legislation in the sense to which the doctrine refers. The doctrine is that “statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Bryan, 426 U.S. at 392, 96 S.Ct. 2102. Thus it has been held that a tax exemption statute, which would ordinarily be strictly construed in favor of the government, must be construed in favor of a dependent Indian tribe in a statute passed for its benefit, by analogy to the long established principle that ambiguities used in treaties with the Indians should not be construed against the tribes. Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 56 L.Ed. 941 (1912). The Tribes argue that ANILCA is Indian legislation entitled to the benefit of the doctrine, based on a remark Representative Udall, one of the sponsors, made in Congress in 1979. He said that the doctrine applied because the statute “was developed primarily for the benefit of Alaska Native residents of Alaska’s rural villages who are dependent on subsistence uses.” 125 Cong. Rec. 9904 (1979). Use of this sort of quotation puts us in mind of the remark that courts use legislative history “as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring, paraphrasing Judge Harold Leven-thal). The remarks of an individual legislator on the floor are not part of the statute passed by both houses and signed by the President, so they lack the force of law. Nor would those seeking to attribute a contrary purpose find no friends at the cocktail party. The report of the Senate Energy and Natural Resources Committee is at pains, every time it mentions rural subsistence, to make it clear that it is not speaking only of what Natives do, and is not speaking of what people in Alaska’s five largest cities do regardless of whether they are Native; it says the provision is for “Native and non-Native residents of ‘rural’ Alaska.” S. Rep. 96-413 at 5177 (1979), U.S. Code Cong. & Admin. News 1980 at 5070. We noted in Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312, 313 n. 1 (9th Cir.1988), that earlier drafts of the statute “protected only subsistence uses by Native Alaskans,” but “Congress broadened the preference to include all ‘rural residents’ ” to avoid state constitutional concerns. The fact that such good “legislative history” is available for both sides of the argument illustrates how easily it may be created by advocates of one position or the other during the legislative process who did not get their views into the statutory language, and also why it is so frequently a waste of time to use it to construe the statute. Better guidance is available from the words of the law duly passed and signed. The language that made it into the statute expressly states that it is for the benefit of rural subsistence users, regardless of whether they are members of tribes. Congress expressly rejected the proposition that the subsistence provision was only for Natives. The statute says that its purpose is to protect “subsistence uses by rural residents of Alaska, including both Natives and non-Natives.” 16 U.S.C. § 3111(1) (emphasis added). There could not be a plainer declaration that Congress was not passing Indian legislation. While many of those rural Alaskans who support themselves and their families largely by fishing, hunting and trapping are Native, quite a few are not. And many of the Native Alaskans who feed their families in significant part by hunting and fishing live in the larger towns and cities, not in the rural areas, so they do not get the benefit of the “rural residents” preference. That the legislation may benefit Natives more than others does not make it Indian legislation, any more than legislation affecting snowmobiles and river boats is Indian legislation because of the greater importance of snow-machines and boats than automobiles in the many villages unconnected with the highway system. Disparate impact on Natives does not make legislation “Indian legislation” for purposes of the doctrine that “statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Bryan, 426 U.S at 392, 96 S.Ct. 2102 (quoting Alaska Pacific Fisheries, 248 U.S. at 89, 39 S.Ct. 40). B. “Minimal lands.” In addition to requiring a determination that a disposition significantly affecting subsistence uses is “necessary, consistent with sound management principles,” ANILCA requires a determination that the use will involve “the minimal amount of public lands necessary:” (3) determines that ... (B) the proposed activity will involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition.... 16 U.S.C. § 3120(a)(3)(B). The Forest Supervisor determined that “[t]he amount of public land involved to implement the Selected Alternative is (considering sound multiple-use management of public lands) the minimum necessary.” The land had been harvested for trees many times in the two centuries since the Russians colonized it, and other alternatives would not substantially lessen risk to deer hunting. A more concentrated harvest would harm distribution of deer available for subsistence. But the Forest Supervisor conceded that there was another alternative that would harvest trees from fewer acres. The Tribes concede in their brief that “subsection (b) should not be read strictly to require the lowest number of acres of public lands in all cases.” In the Baranof sale, the fewest acres were involved in alternative 1, but the Forest Service designed a sale closest to alternative 2. The Tribes argue for alternative 3, not alternative 1, even though alternative 1 would affect fewer acres. Alternative 2 concentrated logging where there had been previous logging, and would use reconstructed roads. Alternative 3, preferred by the Tribes, would defer timber harvest in the areas closest to Sitka, leaving more deer closer to town. The reason the Forest Supervisor determined that the selected alternative involved the minimal land necessary was that (1) it was most consistent with sound multiple use management, (2) it had been harvested many times since the Russians colonized the area more than two centuries before, (3) the other alternatives would not substantially reduce risk to subsistence use, and (4) harvest could not be reduced in one area and concentrated in another without harming some other rural community’s subsistence use. Similar determinations were made for the Eight Fathom Sale. In addition, the Forest Supervisor noted that “[t]he Selected Alternative provides a balance of job and economic opportunities, timber volume, and increased timber productivity with consideration for resource concerns.” The Tribes argue for a subsistence-based construction of the statutory phrase “the minimal amount of public lands necessary.” They argue that the agency head must, under 16 U.S.C. § 3120(a), “select the alternative which minimizes, not necessarily the total acres of public lands, but the amount of land needed for subsistence purposes.” The language of the statute does not permit the construction urged by the Tribes. The statute says “minimal amount of public lands necessary to accomplish the purposes of such use, occupancy or other disposition.” The measure of what is “necessary” and what must be “minimal” in the statutory language is “the purposes of such ... disposition,” not minimization of impact on subsistence. The purpose of the disposition was to sell timber. That was consistent with what Congress required in the Tongass Timber Reform Act, and what the Forest Service management plan provided for. The Forest Supervisor’s decision necessarily considered quite a few effects of the timber sale: (1) fish habitat and water quality; (2) wildlife habitat and populations; (3) old growth; (4) marine environment; (5) subsistence; (6) recreation; (7) scenic quality; (8) economic and social quality; and (9) heritage resources. He made “Findings Required by Law” on: (1) National Forest Management Act; (2) Ton-gass Land Management Plan; (3) Alaska Regional Guide; (4) Clearcutting as the Optimal Method of Harvesting; (5) Clearcuts Over 100 Acres in Size; (6) Tongass Timber Reform Act; (7) Endangered Species Act; (8) Bald Eagle Protection Act; (9) Clean Water Act; (10) National Historic Preservation Act; (11) Federal Cave Resource Protection Act of 1988; (12) ANILCA Section 810 [16 U.S.C. § 3120] Subsistence Evaluation and Findings; (13) Executive Orders 11988 and 11990; (14) Coastal Zone Management Act; and (15) Federal and State Permits. He not only had to consider rural residents’ subsistence interests, but even such matters as the “high risk of dwarf mistletoe reinfection” of hemlock if a method other than clearcutting was used for timber harvesting. Subsistence uses by rural Alaskans are an important public interest to which the Forest Supervisor had to give careful attention. But they are not the only such interest. II. National Historic Preservation Act. This issue affects only the Northwest Baranof sale on Baranof Island outside of Sitka, not the Eight Fathom sale on Chichagof Island near Hoonah. From the time the Russians colonized what they called New Archangel, now Sitka, their relations with the Tlingits native to the area were hostile. American and British traders contributed to the hostility by trading with the Tlingits on better terms than the Russians, and supplying guns. In 1802, the Tlingits defeated the Russians and the Aleuts they forced to serve them, and took over the settlement. It took quite a while for the Russians to build up enough strength to try to take it back, but in 1804, Baranof assembled an entire fleet, and after a battle that lasted' seven days, reconquered the fort. The Tlingits retreated north. In addition to the historical materials in the record, this saga is discussed in P.A. Tikhmenev, A History of the Russian-American Company 65-75 (1861-63, Richard A. Pierce and Alton S. Donnelly trans.1978), and James R. Gibson, Imperial Russia In Frontier America 9-14 (1976). The National Historic Preservation Act issue has to do with whether the route or routes one elan of the Tlingits, the Kiks.adi, took should have been designated a cultural site and the timber sale should have been enjoined while the process for listing it proceeded. The Tlingit fort is a historic site in present-day Sitka, but the route or routes of the march were not designated. The applicable procedure under the Act, 16 U.S.C. §§ 470 et seq., is for State Historic Preservation Officers to identify and nominate properties for the National Register. 16 U.S.C. 470a(b)(3). The Act requires agencies, prior to undertaking projects on federal land, to “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. That language is carried over from the definitions section of the statute, defining “historic property” and “historic resource” as “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register....” 16 U.S.C. § 470w(5). In preparing the Environmental Impact Statement for the Northwest Baranof timber sales, Forest Service archaeologists identified 45 historic properties, and determined that 39 were eligible for inclusion in the National Register. The State Historic Preservation Office, charged with administering the NHPA, agreed with the Forest Service’s findings. The Forest Service, with the Tribe’s agreement, decided the 39 designated sites would not be affected by the timber sale. The route of the retreat after the Russian reconquest, called in the record the Kiks.adi Survival March, was not among the sites listed as eligible. The Sitka Tribe contends that the Forest Service’s procedure regarding identification of the “Kiks.adi Survival March” violated the National Historic Preservation Act. The Forest Service early in the process decided that the route of the survival march might be eligible for inclusion because of its cultural importance. The reason that it was ultimately not designated as a cultural site is that the Forest Service was unable to determine just where the Kiks.adi Survival March went. The Tribe argues that this was an arbitrary and capricious failure to designate, because oral history suggested multiple routes, at least one for the strong men and another for the women, children, and old people, and because it was arbitrary to require a site with observable physical identification. The regulations say that if the relevant agency official and state historic preservation officer “agree that the criteria are not met, the property shall be considered not eligible.” 36 C.F.R. § 800.4(e)(3). The Alaska State Historic Preservation Officer determined that the Survival March Trail was not eligible because it did not meet established criteria that “it have identified physical features” and that it be “a location where the people regularly returned to.” Her determination was based upon review of the materials submitted to her by a panel of experts. The Tribe did not appeal the State Historic Preservation Officer’s decision. It could have under 36 C.F.R. § 60.12. Failure to do so makes that decision unchallengeable for failure to exhaust administrative remedies, under 36 C.F.R. § 60.12(e). The Tribe did challenge the Forest Service’s environmental impact statement on the ground that the Forest Service did not recommend listing the Kiks.adi Survival March trail. Our review of that decision is limited to whether it was arbitrary or capricious. See Natural Resources Defense Council v. United States Dep’t of Interior, 113 F.3d 1121, 1123-24 (9th Cir.1997). The statute defines “historic property” and “historic resource” as “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register_” 16 U.S.C. § 470w(5). The words “district, site, building, structure or object” all connote something more concretely bounded and defined than a general area over which a group of people passed. The Tribe notes that 36 C.F.R. § 800.4(c)(1) requires agencies to “apply the National Register Criteria to properties that may be affected by the undertaking and have not been previously evaluated for National Register eligibility,” and argues that the Forest Service never applied the National Register Criteria to the Survival March routes. But the record shows that it did. The Forest Service made extensive efforts for close to three years to identify the Kiks.adi Survival March routes, by consulting with experts and considering tribal traditions and individuals’ recollections of what relatives had told them. There was no physical marking, no documentation, and no well established tribal consensus, to establish exactly what bear and deer trails, beaches, and other paths the retreating Kiks.adi had taken. The regulations require the agency official to “[s]eek information in accordance with agency planning processes from ... Indian tribes.” 36 C.F.R. 800.4(a)(iii). He did. The tribe could not tell him just where the retreating Kiks.adi passed. The Forest Service followed the regulations and used the National Register criteria, as the Tribe says it should have. Those criteria do not support the Tribe’s position. The National Register Bulletin entitled “How To Apply the National Register Criteria for Evaluation” says in the explanation of “site” that “when the location of a prehistoric or historic event cannot be conclusively determined because no other cultural materials were present or survive, documentation must be carefully evaluated to determine whether the traditionally recognized or identified site is accurate.” National Register Bulletin 15, p. 5. There was no original source doeumen-tation, and all the materials available were carefully evaluated, and did not confirm the accuracy of any suggested path. The criteria say that “[t]he actual location of a historic property, complemented by its setting, is particularly important in recapturing the sense of historic events and persons.” Id. at 44. The “actual location” of the Kiks.adi route is unknown, and the Tribe’s own submission called it a “symbolic” location as opposed to an “actual” one. The Tribe places great emphasis on research by a Mr. Hope, a tribal member who had not grown up knowing where the march went, but after research, thought he had a good conclusion, supported by what his grandfather had told him and what he thought would be feasible, about the route. Mr. Hope appears to have coined the term, “Kiks.adi Survival March.” The ages of the individuals are not in the record. But even if Mr. Hope’s grandfather were 100 years old in 1987 when Mr. Hope became interested, and could remember geographical details back to when he was 10, that would go back only 90 years, to 1897, which would be 93 years after the Kiks.adi retreat. Other tribal members disagreed with Mr. Hope’s theory, though eventually the Tribe decided to adopt it as its position. Importantly, the Tribe’s application says that the large number of people “would have necessitated being several routes taken so as to have enough food to eat along the way.” That makes perfect sense. It would be hard to kill enough deer or catch enough fish for 1,000 people unless they spread out. But if they did, there would not be any particular path, just a general direction through a large wilderness. That important things happened in a general area is not enough to make the area a “site.” There has to be some good evidence of just where the site is and what its boundaries are, for it to qualify for federal designation as a historical site. The Historian of the National Register of Historic Places wrote, in opposition to listing the Kiks.adi route, that his staff consistently rejected “nominating such a wide swath of land with little if any identified physical features.” The Historian noted that when trails had been designated, such as the Lewis and Clark Trail, only those particular rock formations, ruts, and other identified physical features where the trail was “confined to a very narrow corridor” were listed. That a general unbounded and imprecisely located area has important cultural significance is not enough. Abraham’s tomb is an identifiable site, but the wanderings of the Jews in the Sinai Desert after the Exodus did not leave any accurately identifiable path that could be a “site.” The Forest Service did not act arbitrarily and capriciously, on this record, in concluding that it could not identify a “site” as the Kiks.adi Survival March. Conclusion. The district judge correctly determined that because the Tribe could not prevail on the merits, and the Forest Service determinations were not arbitrary or capricious, the Tribe’s prayer for an injunction against the timber sales should be denied. The judgment of the district court is AFFIRMED. . § 3120. Subsistence and land use decisions (a) Factors considered; requirements. In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes. No such withdrawal, reservation, lease, permit, or other use, occupancy or disposition of such lands which would significantly restrict subsistence uses shall be effected until the head of such Federal agency - (1) gives notice to the appropriate State agency and the appropriate local committees and regional councils established pursuant to section 805 [16 U.S.C.S. § 3115]; (2) gives notice of, and holds, a hearing in the vicinity of the area involved; and (3)determines that (A) such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of the public lands, (B) the proposed activity will involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition, and (C) reasonable steps will be taken to minimize adverse impacts upon subsistence uses and resources resulting from such actions. (d) Management or disposal of lands. After compliance with the procedural requirements of this section and other applicable law, the head of the appropriate Federal agency may manage or dispose of public lands under his primary jurisdiction for any of those uses or purposes authorized by this Act or other law. . The word “which” in the statute might be read to refer to "such,” so that the condition, "which would significantly restrict subsistence uses" might be limited to “such" disposition, as opposed to that disposition in combination with others, private and public, past, present and future. We do not intimate that a timber sale that does not by itself significantly affect subsistence uses should be treated as though it does, if, for example, a Native corporation sale is planned on land adjacent to it, and in combination the two sales would adversely affect subsistence uses. We leave that question for a case in which it is raised. . In Amoco Production Co. v. Gambell, 480 U.S. 531, 555, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), the Supreme Court rejected our application of the rule of statutory construction for Indian legislation to another part of ANILCA: "we reject the Ninth Circuit’s reliance on the familiar rule of statutory construction that doubtful expressions must be resolved in favor of Indians. People of Village of Gambell v. Clark, 746 F.2d 572, 581 (9th Cir.1984). There is no ambiguity here which requires interpretation." The Court held that the rule of statutory construction did not permit disregard of clearly expressed Congressional intent. Id. That is the case here.

Sameric Corp. v. City of Philadelphia

OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION Sameric Corporation of Delaware (“Sameric”) appeals from the district court’s order of July 14,1997, granting summary judgment to the City of Philadelphia (the “City”) and various individual defendants. Sameric filed this action in November 1995 alleging that the City violated its federal and state constitutional rights by improperly designating Sameric’s theater as an historic building and subsequently denying Sameric a permit to demolish the theater. Samerie’s complaint alleged that, as a result of the defendants’ unlawful designation of the theater and subsequent denial of the demolition permit, its business was injured and it was forced to sell its properties, including the theater, at substantially less than fair market value. The district court had subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1367. We have jurisdiction to review the final order of the district court pursuant to 28 U.S.C. § 1291. II. FACTS AND PROCEDURAL HISTORY A. Philadelphia’s Historic Preservation Ordinance The Philadelphia Historical Commission (“Historical Commission”) is an instrumentality of the City which administers Philadelphia’s Historic Preservation Ordinance (the “ordinance”). The Historical Commission’s primary obligation is to “[designate as historic those buildings, structures, sites and objects which the Commission determines, pursuant to the criteria set forth in Subsection (5) of [Section 14-2007], are significant to the City.” Phila. Code § 14-2007(4)(a). The ordinance permits the Historical Commission to designate a building as historic where at least one of ten enumerated criteria is met. When a building is proposed for historic designation, the Historical Commission prepares a nomination form, which begins the process by which the Historical Commission considers buildings for designation. The nomination form details information regarding the building’s historic, architectural, and cultural features. The Designation Committee of the Historical Commission (the “Designation Committee”) is responsible for selecting which nominated buildings the Historical Commission will consider for historic designation. When the Designation Committee recommends a building for preservation, it presents its report and recommendation to the Historical Commission at a hearing on the matter. Pursuant to the ordinance, the owner of a building designated as historic may not demolish or alter that building without a permit from the Department of Licenses and In-speetions (“Department of Licenses”). See Phila. Code § 14-2007(7)(a). If an owner desires such a permit, it applies to the Department of Licenses, which then forwards the application to the Historical Commission for review. An owner may obtain the permit where it is suffering “financial hardship” or the building “cannot be used for any purpose for which it is or may be reasonably adapir ed.” Phila. Code § 14r-2007(7)(f). The ordinance requires the Department of Licenses to grant the application if the Historical Commission has no objection but to deny the application if the Historical Commission does object. See Phila. Code § 14-2007(7)(g). Upon the denial of such a permit, the owner may appeal to the Board of License and Inspection Review (the “Board of License Review”). See Phila. Code § 14-2007(10). B. Historic Designation of the Boyd Theater Prior to 1988, Samerie owned the Boyd Theater on Chestnut Street in Philadelphia. The Historical Commission began to consider the Boyd Theater as a candidate for designation as historic in 1984 or 1985 by reason of discussions between members of the Historical Commission and the City of Philadelphia Planning Commission. As a result, a staff employee of the Historical Commission prepared a nomination form for the Boyd Theater in January 1986. The nomination form detailed the Boyd Theater’s notable features and included photographs and citations to publications concerning the theater. The completed nomination form was forwarded to the Designation Committee, which held a meeting to consider the nomination. The Designation Committee decided unanimously to recommend to the Historical Commission that the Boyd Theater be designated as historic. Following this vote, the Historical Commission sent Samerie a letter on March 28, 1986, indicating the Commission’s intent to consider designating the theater. The letter notified Samerie that a hearing was scheduled for April 30, 1986, to consider the matter. At Sameric’s request, the Commission postponed this hearing six times. On January 27,1987, Samerie attempted to prevent the Historical Commission from considering the proposed designation by filing an action in equity in the Court of Common Pleas of Philadelphia County seeking a temporary restraining order against the Historical Commission. The Court of Common Pleas stayed the Historical Commission’s consideration of the proposed designation for 30 days. On January 30,1987, the Historical Commission removed the suit to the United States District Court for the Eastern District of Pennsylvania on the grounds that some of the claims arose under the Constitution. The district court then granted the Commission’s motion to dismiss Sameric’s complaint. See Sameric Corp. of Chestnut St., Inc. v. Philadelphia Historical Comm’n, Civ. A. No. 87-553, 1987 WL 7636, at *2 (E.D.Pa. Mar. 5, 1987). Following the district court’s dismissal of the complaint, the Historical Commission held a hearing on March 25, 1987, to consider the proposed designation of the Boyd Theater as historic. At the hearing, Commissioner David Brownlee, a member of the Designation Committee, presented the committee’s recommendation and report. Although, during the hearing, Sameric’s counsel repeatedly asked the Historical Commission to postpone the vote so that Samerie could present evidence, the Historical Committee voted to designate the Boyd Theater as historic, with only Commissioner John Street dissenting. Later that day, Samerie requested the Court of Common Pleas to vacate the Historical Commission’s decision and reschedule the hearing because the Commission did not properly notify Samerie of the hearing and because Samerie was not prepared to present certain evidence at the hearing. The court granted Sameric’s request and ordered the Historical Commission to reconvene to hear the matter again. See Sameric Corp. of Chestnut St. v. City of Philadelphia, Civ. A. No. 4525 (Ct. C.P. Phila. County Mar. 25, 1987). The Commission held the second hearing on April 2, 1987. At this hearing, Commissioner Brownlee again presented the Designation Committee’s recommendation for designation and described the theater as a superb example of art deco. The Commissioner then presented a slide show detailing particular features of the theater, both interior and exterior. The Designation Committee’s report emphasized that the building was an authentic example of art deco and that the building was “almost completely intact both on the interior and exterior.” App. 54-55. The president of Samerie, Merton Shapiro, then testified that many of the features which the Designation Committee emphasized, such as the ticket booth, entranceway floor, glass doors to the main lobby, mirrors, and the lobby ceiling, were not original. Shapiro presented slides of the building which illustrated the original appearance of the theater, both exterior and interior, and narrated the presentation, pointing out all the changes that he and others had made to the appearance of the theater. App. 163-69. Upon the completion of Shapiro’s presentation, Richard Tyler, the Executive Director of the Historical Commission, acknowledged that Shapiro’s presentation showed that there had been substantial changes to the appearance of the theater. Tyler also urged the Commission members to consider this evidence. App. 192. The Historical Commission also heard testimony on behalf of Samerie from a partner of an architectural firm regarding the authenticity of the Boyd Theater’s art deco style. App. 183-87. According to the architect, the theater was not an architecturally notable building in either its original or present form. , App. 184. In addition, the architect testified that of the 18 criteria enumerated in a scholarly treatise which identify the art deco style, the remaining portion of the Boyd Theater’s original facade included only five. App. 184. At the close of the evidence, the Historical Commission again voted to designate the Boyd Theater as historic, with only Commissioner Street again voting against the designation. C. The State Court Proceedings Following the designation of the Boyd Theater as historic, on April 24,1987, Sameric filed a complaint in equity in the Court of Common Pleas in Philadelphia County against the City challenging the designation of the theater. The parties agreed that Sam-eric’s suit should be construed as an appeal from the decision of a local agency pursuant to 2 Pa. Cons.Stat. Ann. § 752 (West 1995). See Sameric Corp. of Chestnut St., Inc. v. City of Philadelphia, 125 Pa.Cmwlth. 520, 558 A.2d 155, 156 n. 1. (1989). The Court of Common Pleas dismissed the action, and the Commonwealth Court affirmed, holding that the evidence regarding the exterior was sufficient to support the designation and that the designation of the interior was within the authority of the ordinance. See id. 558 A.2d at 156-57. On appeal, the Supreme Court of Pennsylvania originally held that the historic designation of the Boyd Theater amounted to a taking without just compensation in violation of Article I, Section 10, of the Pennsylvania Constitution. See United Artists Theater Circuit, Inc. v. City of Philadelphia, 528 Pa. 12, 595 A.2d 6 (1991). Thus, the court did not decide whether the designation was proper under the ordinance. One justice filed a concurring opinion stating that the designation was improper under the ordinance because it was based on the interior of the building; thus, he found it unnecessary and imprudent to reach the state constitutional issue. See id. at 28, 595 A.2d 6 (Cappy, J., concurring). The Supreme Court of Pennsylvania later granted rehearing and reconsidered the appeal. On rehearing, the court held that designating a privately owned building as historic did not automatically constitute an unconstitutional taking. See United Artists’ Theater Circuit, Inc. v. City of Philadelphia, 535 Pa. 370, 635 A.2d 612, 620 (1993) (hereinafter “United Artists’ II”). However, the court also found that the ordinance does not permit designation based upon a building’s interior, and therefore, the Historical Commission improperly designated the Boyd Theater to the extent the designation was based upon its interior. See id. 635 A.2d at 622. Because the court found it impossible to separate the evidence so as to decide whether there was sufficient evidence based only on the exterior of the theater to support its designation, the court vacated the Historical Commission’s designation of the Boyd Theater. See id. Insofar as we are aware, the Commission has not redesignated the building as historic. While the court in United Artists’ II did not in its opinion remand the case to the Common Pleas Court, according to Sameric it is seeking damages in the Common Pleas Court attributable to the designation of the Boyd Theater as historic. D. Sameric’s Application for a Demolition Permit On April 8,1987, six days after the Historical Commission designated the Boyd Theater as historic, Sameric filed an application for a demolition permit for the theater, which was transferred immediately to the Historical Commission for review. On April 9, 1987, the Architectural Review Committee of the Historical Commission held a brief hearing on Sameric’s application. The Historical Commission then postponed consideration of the application until August 26, 1987. At a series of meetings, the Historical Commission considered evidence and, on December 2,1987, it voted to deny Samerie’s application for a demolition permit. On February 2, 1988, the Historical Commission issued its Findings of Fact and Decision. Pursuant to the ordinance, the Department of Licenses denied the permit based upon the Historical Commission’s objection to it. See Phila. Code § 14-2007(7)(g). On December 15, 1987, Samerie appealed the denial of its application for a demolition permit to the Board of License Review. In April 1988, Samerie sold all of its theaters, including the Boyd, to United Artists Theater Circuit, Inc. Under the terms of the sale, Samerie retained its claims for damages resulting from the historic designation of the theater. After selling the property, Samerie abandoned its appeal of the denial of the permit. Thus, the Board of License Review never concluded its hearings or rendered a decision on Sameric’s appeal. E. The District Court Proceedings In November 1995, Samerie instituted this suit in the United States District Court for the Eastern District of Pennsylvania against the City, the Historical Commission, and various individual defendants who were the Executive Director and Commissioners of the Historical Commission, in their individual and official capacities. Consequently, in the course of this opinion, depending upon our context, our references to the City may include all of the defendants. Sameric’s complaint asserted claims pursuant to 42 U.S.C. § 1983 for violations of its federal substantive and procedural due process rights as well as a civil conspiracy claim against all defendants. In addition, Samerie alleged that the defendants violated various rights secured under the Pennsylvania Constitution. As a result of these alleged violations, Samerie asserts that its business was injured and that its property was reduced in value. In particular, Samerie alleges that beginning in late 1986, after the commencement of the designation proceedings, it was unable to obtain financing because the proposed designation of the theater would reduce the value of the property significantly. Thus, beginning in 1987, Samerie no longer could afford to obtain quality films for its theaters. Samerie contends that ultimately it was forced to sell its entire holdings because of its financial difficulties, and because of the historic designation it received substantially less than fair market value for the theater. The district court dismissed Sameric’s procedural due process claim in February 1996, but Samerie does not appeal from this dismissal. At the close of discovery, on July 14,1997, the district court granted the defendants’ motion for summary judgment on the remainder of Sameric’s claims. First, in an order from which Samerie does not appeal, the district court dismissed all claims against the Historical Commission because Samerie conceded that it was not a proper defendant. See Sameric Corp. of Del., Inc. v. City of Philadelphia, Civ. A. No. 95-7057, 1997 WL 399374, at *3 n. 5 (E.D.Pa. July 14, 1997). Second, the district court found that, as a matter of law, the City was within its authority to designate the Boyd based on its future cultural value if converted to live performance space. The district court’s subsequent holdings were based upon this finding. In particular, the district court held that (1) Samerie did not raise a genuine issue of material fact as to whether the defendants acted arbitrarily or with an improper motive in designating the Boyd Theater as historic; (2) the claims based upon the City’s subsequent denial of Sameric’s application for a demolition permit were not ripe; and (3) the individual defendants were entitled to immunity with respect to both the federal claims and those arising under the Pennsylvania Constitution. Samerie filed a timely notice of appeal from this order. III. DISCUSSION A Substantive Due Process Sameric’s complaint asserts a 42 U.S.C. § 1983 claim that the Historical Commission’s designation of the Boyd Theater as historic and its subsequent denial of the demolition permit violated Samerie’s substantive due process rights. According to Sam-eric, the defendants, in taking these actions, were motivated by the ultra vires purpose of obtaining a venue for live performances and, notwithstanding this purpose, they acted without factual support thus rendering their actions arbitrary and irrational. The district court granted defendants’ motion for summary judgment, holding that it was proper under the ordinance to designate the theater based upon its potential as a performance space and that Sameric therefore failed to establish that there was a genuine issue of material fact that the defendants acted either with an improper motive or without a rational basis. We exercise plenary review of the district court’s grant of summary judgment. See City of Erie v. Guaranty Nat’l Ins. Co., 109 F.3d 156, 159 (3d Cir.1997). We will affirm the summary judgment if, after a plenary review of the record, we find that there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). An issue is “genuine” if the evidence permits a reasonable jury to return a verdict for the non-moving party, accepting its evidence as true and drawing all justifiable inferences from the evidence in its favor. See Anderson, 477 U.S. at 248, 255, 106 S.Ct. at 2510, 2513. Section 1983 is not a source of substantive rights, but provides a remedy against state officials for violations of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985) (plurality opinion); Baker v. McCollan, 443 U.S. 137,144 n. 3, 99 S.Ct. 2689, 2694-95 n. 3, 61 L.Ed.2d 433 (1979). The initial inquiry in a section 1983 suit is (1) whether the conduct complained of was committed by a person acting under color of state law and (2) whether the conduct deprived the complainant of rights secured under the Constitution or federal law. See West v. Atkins, 487 U.S. 42, 48,108 S.Ct. 2250, 2254^55, 101 L.Ed.2d 40 (1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). To establish a substantive due process claim, a plaintiff must prove that it was deprived of a protected property interest by arbitrary or capricious government action. See Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir.1993). Because the defendants conceded in the district court that Sameric had a property interest sufficient to invoke the protections of substantive due process, the only issue on this point is whether the City unconstitutionally deprived Sameric of that interest. A substantive due process violation is established if “the government’s actions were not rationally related to a legitimate government interest” or “ “were in fact motivated by bias, bad faith or improper motive.’ ” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir.1993) (quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 683 (3d Cir.1991)); see also Independent Enters., Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir.1997) (government’s deliberate and arbitrary abuse of authority violates substantive due process); Bello v. Walker, 840 F.2d 1124, 1129-30 (3d Cir.1988) (same). The former inquiry is a question of law for the court whereas, if there is a genuine dispute of fact, the latter is a question for resolution by the jury. See Parkway Garage, 5 F.3d at 692. 1. Designation of the Boyd Theater a. Improper Motive Sameric alleges that the City designated the Boyd Theater based on its desire to procure live performance space, a consideration not within its authority under the ordinance, which thus was an improper motive. However, because the district court construed the ordinance to permit historic designation based on that consideration, the district court found that Sameric failed to establish a genuine issue as to whether the City acted with an improper motive. Sameric contends that the district court erred in its interpretation of the ordinance and therefore concludes that the district court erred in granting summary judgment because it based its determination upon an erroneous interpretation of the ordinance. Although we agree that the district court erred in its interpretation of the ordinance and its analysis of the allegedly improper purpose thereby is flawed, we will affirm the grant of summary judgment for the following reasons. Our disposition of this issue involves three inquiries: (1) whether the consideration of the potential uses and future cultural value of a building is improper under the ordinance; and, if so, (2) whether Sameric presented evidence which creates an issue of fact as to whether the Commission was motivated by such considerations; and (3) whether the Commission acted with an “improper purpose” under substantive due process principles in considering criteria unauthorized under state law. We will discuss these inquiries in turn. Under the ordinance, a building may be designated as historic if it: (a) Has significant character, interest or value as part of the development, heritage or cultural characteristics of the City, Commonwealth or Nation or is associated with the life of a person significant in the past; or (b) Is associated with an event of importance to the history of the City, Commonwealth or Nation; or, (c) Reflects the environment in an era characterized by a distinctive architectural style; or, (d) Embodies distinguishing characteristics of an architectural style or engineering specimen; or, (e) Is the work of a designer, architect, landscape architect or designer, or engineer whose work has significantly influenced the historical, architectural, economic, social, or cultural development of the City, Commonwealth or Nation; or, (f) Contains elements of design, detail, materials or craftsmanship which represent a significant innovation; or, (g) Is part of or related to a square, park or other distinctive area which should be preserved according to an historic, cultural or architectural motif; or, (h) Owing to its unique location or singular physical characteristic, represents an established and familiar visual feature of the neighborhood, community or City; or, (i) Has yielded, or may be likely to yield, information important in pre-history or history; or, (j) Exemplifies the cultural, political, economic, social or historical heritage of the community. Phila.Code § 14-2007(5). In addition, the ordinance announces the following purposes: (.1) preserve buildings, structures, sites and objects which are important to the education, culture, traditions and economic values of the City; ... (.5) strengthen the economy of the City by enhancing the City’s attractiveness to tourists and by stabilizing and improving property values; Phila.Code § 14-2007(l)(b). Relying on the first enumerated criterion and the first and fifth stated purposes, the district court found that the ordinance is “broad enough to protect the possible cultural and economic gains which could accrue from preserving a theater of this size.” Sameric Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374, at *4. Thus, the court found that to the extent the Commission based its decision upon economic and cultural interests, it acted permissibly under the ordinance and noted that the ordinance was “not so narrow that it precludes historic designation based on either the size of the theater or its suitability as a performance venue.” Id. We agree with the district court to the extent that it found that the ordinance permits consideration of cultural and economic factors. The plain language of the ordinance clearly refers to such considerations, see Phi-la. Code § 14-2007(l)(b)(.l) & (.5), and the ordinance declares a broad public policy to preserve the “historic, architectural, cultural, [and] aesthetic” merit of buildings. See Phi-la. Code § 14-2007(l)(a). In addition, the ordinance requires that the Historical Commission be composed of individuals with diverse expertise, emphasizing the concern for the culture, economy, and development of the City. See Phila. Code § 14-2007(3). We, however, cannot agree that the ordinance permits designation based upon the potential value of the theater if converted to a live performance venue. Under Pennsylvania law, “ ‘the power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist.’ ” United Artists’ II, 635 A.2d at 622 (quoting Pennsylvania Human Relations Comm’n v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731, 735-36 (1978)). Because we find that the plain language of the ordinance does not confer clear and unmistakable authority to designate a building based upon its potential, future cultural value, we hold that the Historical Commission does not possess such authority. The enumerated purpose of the statute which relates most directly to the culture of the City, see Phila. Code § 14-2007(l)(b)(.l), speaks in terms of the present importance of the building to the City’s culture. More importantly, the criteria enumerated in the ordinance conspicuously and consistently refer to the value of a building in the present tense. In particular, the first enumerated criterion for historic designation, upon which the City primarily relies, allows designation where the building “has significant ... value as part of the development ... of the City.” Phila. Code § 14-2007(5)(a). The City argues that this criterion encompasses a designation where, as here, the Historical Commission finds that a building, if converted to a use for which it is suitable, would further a plan for the development of the City. We disagree. While the “development” of the City necessarily refers to the future of the community, the ordinance only refers to the present value of a building, which is on its face limited to a consideration of the present condition of a building. The ordinance clearly permits the Historical Commission to consider the future in only one instance, which is not applicable here — the possibility that a building will yield important information. See Phila. Code § 14-2007(5)(i). Thus, the ordinance does not clearly permit the Historical Commission to consider potential uses of a building in evaluating its value. In addition, our interpretation follows the lead of the Pennsylvania Supreme Court’s interpretation of this ordinance. To our knowledge, the state court proceedings in this dispute, culminating in a decision by that court, have generated the only published judicial interpretation of this ordinance. It is axiomatic that the highest court of a state is the final arbiter of that state’s law. See West v. American Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). Thus, although the Pennsylvania Supreme Court has not addressed the precise issue which we now consider, we give great weight to its interpretation of this ordinance in United Artists’ II. We find that the district court’s interpretation is inconsistent with the Pennsylvania Supreme Court’s interpretation of the ordinance, namely that the Historical Commission has no authority to designate a building on the basis of its interior. In United Artists’ II, the court held that “[t]he Historical Commission is not explicitly authorized by statute to designate the interi- or of the building as historically or aesthetically significant.” United Artists’ II, 635 A.2d at 622. The court began its analysis by noting the “clear and unmistakable” language-standard in Pennsylvania administrative law. See id. The court then turned to the language of the ordinance and found that the only reference to the interior of the building in Phila. Code § 14-2007 is in the subsection which imposes upon the owner of a historic building the duty of care. See id. Because the language in that section concerns the interior only for the express purpose of supporting the exterior, the court found that it was beyond the Historical Commission’s authority to designate a building based upon its interior. See id. We find that, if the ordinance does not permit historic designation based upon an historic or aesthetic feature of the interior of a building, it necessarily does not permit designation based upon the cultural value or potential uses of the interior. This conclusion, in addition to our own interpretation of the plain language of the ordinance, leads us to the determination that the district court erred in its interpretation of the ordinance. This determination, however, does not end our inquiry. We also must consider whether Sameric established a genuine issue as to whether the Historical Commission was motivated by such a consideration, and, if such an issue exists, whether, as a matter of law, that motivation would constitute an “improper motive” under substantive due process jurisprudence. Citing primarily the testimony of one of the Commissioners, Barbara Kaplan, Sameric contends that it has produced evidence which creates a genuine issue of fact regarding the motivation of the Historical Commission in voting to designate the Boyd Theater. In her comments at the designation hearing and her deposition testimony, Commissioner Kaplan expressed her interest in the theater as cultural space, admitted that she considered potential uses of the theater, and stated that she was aware of the community’s need for live performance space. We have held that evidence regarding the intentions of single member of a zoning board can create á genuine issue of fact as to the board’s motive. See DeBlasio v. Zoning Bd. of Adjustment for the Twp. of W. Amwell, 53 F.3d 592, 602 (3d Cir.1995) (evidence that one member of the zoning board acted for personal reasons was sufficient to create a genuine issue as to whether the board’s decision was influenced by that member’s personal interest, and thus acted with an improper motive). Thus, given the evidence of Commissioner Kaplan’s motivation, we assume without deciding that this evidence creates a genuine issue of fact regarding whether the Historical Commission was motivated by the Boyd Theater’s potential use and cultural value as performance space. However, only issues of material fact preclude entry of summary judgment. As the Supreme Court has stated, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are, irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248,-106 S.Ct. at 2510. Because this motive is not improper under substantive due process law, this issue of fact is not material, and summary judgment was proper. On this issue, at the outset we note that Sameric has not established, or for that matter even alleged, that the Historical Commission’s decision to designate the building was motivated by personal gain, individuous discriminatory intent, or partisan political considerations, the presence of which we have found establish substantive due process claims based upon improper motive. See, e.g., DeBlasio, 53 F.3d at 601 (personal financial interest); Parkway Garage, 5 F.3d at 697 n. 6 (economic motivation); Bello, 840 F.2d at 1129 (partisan political or personal reasons); see also Grant v. City of Pittsburgh, 98 F.3d 116, 119 (3d Cir.1996) (alleging that the defendants were motivated by partisan polities in designating an area as historic as they intended to thwart plaintiffs’ development project so that the mayor would not receive credit for the resulting economic benefits). Rather, Sameric proffers that the City’s improper motive was its ultra vires reliance on procuring live performance space for the community. As discussed above, we find that the City did exceed its authority to the extent that it based its decision upon such a motivation. This error, however, is only one of law, and such an error is not sufficient in itself to establish a substantive due process claim. See Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944); Midnight Sessions, 945 F.2d at 684 (stating that federal courts are not in the business of granting federal “remedies for mere violations of state law”); Archie v. City of Racine, 847 F.2d 1211, 1216-18 (7th Cir.1988) (en banc) (holding that a violation of state law does not amount to a violation of due process). We recognize that, to prove a substantive due process claim, a plaintiff need not establish in every ease that the defendants sought to advance personal interests. See Parkway Garage, 5 F.3d at 697 n. 6. We find, however, that Parkway Garage does not lend Sameric support beyond that point. In Parkway Garage, the plaintiff alleged that the City violated its substantive due process rights by prematurely and unjustifiably terminating its lease and closing the garage that the plaintiff managed on the property. See id. at 689-91. While the City contended that its actions were in furtherance of the public safety to avoid the imminent collapse of the plaintiff’s parking garage, the plaintiff presented evidence that this alleged motivation was a pretext. See id. at 693-94. Rather, according to the plaintiff, the City was motivated economically because the property was more valuable to the City without the encumbrance of the plaintiffs lease. Thus, we held that if the plaintiff proved that the defendants were driven by the economic benefit to the City, such a motivation would establish an improper motive sufficient to sustain a substantive due process claim. See id. at 699. There is no allegation here that the City sought to advance its direct economic position in designating the theater. Thus, this case differs fundamentally from Parkway Garage in which the City owned property involved in the case. Taken in the light most favorable to Sameric, the evidence supports an inference that the Historical Commission considered the potential uses of the Boyd Theater, which the Commission believed could fill a void in the community. There is not sufficient evidence, however, that the City was in a position to realize the type of direct economic gain alleged in Parkway Garage. Thus, we find that Sameric has not produced evidence of an “improper motive.” b. Arbitrary and Irrational Government Action As an independent basis for its substantive due process claim, Sameric also alleges that the City acted arbitrarily and irrationally in designating the Boyd Theater. Relying again on its interpretation of the ordinance, the district court concluded that because a designation as historic may be based upon its “significant interest or value to the development of the City,” Sameric Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374, at *5, Sameric did not present evidence which creates a genuine issue of fact that the defendants lacked a rational basis for designating the Boyd Theater as historic. Sameric contends that because the district court based its holding on a misinterpretation of state law, we should reverse the grant of summary judgment. Again, although we agree that the district court erred in its interpretation of the ordinance, we find that Sameric has not produced sufficient evidence from which a jury could find arbitrary and irrational government conduct. We have held that, in the context of a land-use decision, “the deliberate and arbitrary abuse of government power violates an individual’s right to substantive due process.” Bello, 840 F.2d at 1129 (declining to define the “outer limits of the showing necessary to demonstrate” arbitrary and irrational governmental action because the plaintiff adduced evidence that the decision was based upon “partisan political or personal reasons unrelated to the merits of the application for the permits”); see also DeBlasio, 53 F.3d at 601. Government conduct is arbitrary and irrational where it is not rationally related to a legitimate government purpose. See Parkway Garage, 5 F.3d at 692; Midnight Sessions, 945 F.2d at 683; Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035 (3d Cir.1987). Our review of a locality’s land-use decision asks whether the locality “could have had a legitimate reason for its decision.” Pace, 808 F.2d at 1034, 1035 (citing Shelton v. City of College Station, 780 F.2d 475, 483 (5th Cir.1986) (en bane) (holding that “federal judicial interference with a state zoning board’s quasi-legislative decisions, like invalidation of legislation for ‘irrationality’ or ‘arbitrariness,’ is proper only if the governmental body could have no legitimate reason for its decision”)). Thus, in Pace, we found that summary judgment for the defendant was appropriate because the township “could have had rational reasons for” its land-use decision relating to the property owner’s development plan “and because th[e] complaint allege[d] no facts suggesting arbitrariness.” Id. at 1036. In holding that the plaintiff in Pace did not allege sufficiently a substantive due process violation, we also noted that it did “not present a case involving actions aimed at this developer for reasons unrelated to land use planning.” Id. at 1035. In Pace, we cited with approval Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.1982), which we again find persuasive. In Creative Environments, the plaintiff alleged that the town frustrated the plaintiffs development plans by “distorting” state law. See id. at 829. The court held that the plaintiff did not establish a constitutional violation and noted that “[t]his would be true even were planning officials to clearly violate ... the state scheme under which they operate.” Id. at 833 (footnote omitted). According to the court, the case was an average dispute between a property owner and the local zoning body and every developer’s challenge to a land-use decision necessarily involves some claim that the board exceeded or abused its legal authority. See id.; see also Anastasio v. Planning Bd. of Twp. of W. Orange, 209 N.J.Super. 499, 507 A.2d 1194, 1206 (App.Div.1986) (“Accordingly while the words ‘arbitrary and capricious’ may sound harsh, they are simply the standard of appellate review in particular cases.”). As in Pace, Sameric has not presented a claim that the City acted for reasons “unrelated to land use planning.” We again note that in undertaking this analysis, we consider the action without regard for whether it was sanctioned legislatively. See Snow-den, 321 U.S. at 11, 64 S.Ct. at 402. In Snowden, the plaintiff alleged that the state primary election board deprived him of due process and equal protection because it refused to certify him as a candidate, in violation of state law. See id. at 2-5, 64 S.Ct. at 398-99. In Snowden, the Court stated that [i]f the action of the Board is official action it is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. Its illegality under the state statute can neither add to nor subtract from its constitutional validity. Mere violation of a state statute does not infringe the federal Constitution. And state action, even though illegal under state law, can be no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature. Id. at 11, 64 S.Ct. at 402 (citations omitted). Because our substantive due process analysis does not depend on the legality vel non of the City’s action under state law, our inquiry here is essentially the inquiry in which we would engage if the City’s ordinance had provided explicitly for designation based upon the potential use of a building and such an ordinance was challenged on substantive due process grounds. In short, the proper inquiry is whether the City’s decision to designate the Boyd Theater based upon its potential use and cultural value if converted to live performance space is rationally related to land-use planning. We find that it is rationally related to the legitimate government objective of land-use planning for the City to designate buildings that have potential use to the community. We recognize that an ordinance conferring such authority would grant broad power to a local board, and in so holding we make no comment on the wisdom of such a rule, but decide only that we see no reason why conferring such authority would be constitutionally infirm under substantive due process law. As suggested above, Samerie’s allegations are very similar to those that the Court of Appeals for the First Circuit found insufficient in Creative Environments. As did the plaintiff in that case, Sameric presents a claim in the nature of an average dispute between a property owner and local zoning officials. Thus, as we have in the past, we emphasize here our reluctance to substitute our judgment for that of local decision-makers, particularly in matters of such local concern as land-use planning, absent a local decision void of a “plausible rational basis.” Pace, 808 F.2d at 1035. We decline to federalize routine land-use decisions. Rather, the validity of land-use decisions by local agencies ordinarily should be decided under state law in state courts. After all, surely it would be strange to hold that the City had no rational basis for designating the theater when the Common Pleas Court, the Commonwealth Court, and the district court all thought that its designation was valid. 2. Denial of Demolition Permit Sameric also alleges that the City violated its substantive due process rights in improperly denying its application for a demolition permit, although it does not state this claim separately from the claim based on the historic designation. Nonetheless, we, like the district court, will treat Sameric’s allegations regarding the denial of the demolition permit as if they asserted a separate factual predicate for a substantive due process violation. a. Ripeness . The district court granted summary judgment in favor of the defendants on the substantive due process claim based upon the City’s denial of a demolition permit, finding that such a claim was not ripe. In particular, the district court held that because Sameric did not complete its appeal of the denial, there was never a final denial of the permit application. We exercise plenary review over the district court’s ripeness determination. See Taylor, 983 F.2d at 1289. It is well established that, in cases involving land-use decisions, a property owner does not have a ripe, constitutional claim until the zoning authorities have had “an opportunity to ‘arrive[ ] at a final, definitive position regarding how [they] will apply the regulations at issue to the particular land in question.’ ” Id. at 1291 (quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119, 87 L.Ed.2d 126 (1985)). Thus, we have held that property owners’ constitutional claims based upon land-use decisions were premature where the owners or tenants were denied permits by the initial decision-makers but did not avail themselves of available, subsequent procedures. See Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir.1993) (owner was denied building permit by Development and Licensing Division, but did not appeal the denial to the Board of Adjustment or seek a variance); Taylor, 983 F.2d at 1289 (owner complained of the zoning officer’s revocation of tenant’s use permit where the tenant did not reapply, appeal to the zoning board, or seek a variance); Midnight Sessions, 945 F.2d at 686 (holding that the plaintiffs claim was not ripe where it did not appeal the denial of a certificate of occupancy to the review board). In Ademo and Taylor, the property owners challenged the denial and revocation of permits, respectively. In Ademo, the county approved the property owner’s building plan, of which compliance with zoning ordinances is a prerequisite, but denied the owner’s application for a building permit, citing noncomplianee with zoning ordinances. See Ademo, 6 F.3d at 976. In Taylor, the zoning officer revoked a tenant’s use permit because the tenant included false information in his application for the permit. The owner asserted that the basis for the revocation was a pretext and that the officer knew of the intended use for the property. See Taylor, 983 F.2d at 1289-90. Thus, in Ademo and Taylor the property owners alleged harm resulting from a land-use decision adverse to them. In both cases, we held that the claims were not ripe because the property owners or the tenant did not give the locality an opportunity to make a final determination regarding how to construe the applicable ordinances and apply them to the particular property. The same is true here, where Sameric claims that the local land-use decision was based on an erroneous application or interpretation of the local ordinance. In addition, as in Acier-no and Taylor, the applicable ordinance explicitly subjects the initial decision to review by another body, which owes no deference to the initial decision-maker. See Ademo, 6 F.3d at 972, 976; Taylor, 983 F.2d at 1292-93. Thus, we find that the Department oí Licenses’ denial was not the City’s final determination of Sameric’s rights to a demolition permit under the ordinance. Sameric urges that Ademo and Taylor are distinguishable, and therefore the ripeness requirement should not apply to its claim. According to Sameric, the property owners in those cases alleged harm resulting from the denial of a permit, whereas Sameric alleges harm resulting from the designation itself. We acknowledge that Sameric alleges harm resulting from the designation itself, but it also alleges that the City improperly denied its application for a demolition permit. To the extent Sameric’s substantive due process claim is based upon the latter, Ademo and Taylor apply, rendering that portion of Sameric’s claim not ripe. Sameric also contends that Blanche Rd. Corp. v. Bensalem Twp., 57 F.3d 253 (3d Cir.1995), where we refused to apply the finality requirement, applies here. We disagree. In Blanche Rd,., we further explained the confines of these cases requiring a final decision by the local authority regarding a land-use decision. There, the plaintiff claimed that the local authority abused its power in a conspiracy to halt the development of its property because of the authority’s distaste for its plan. After noting that Ademo involved a claim based upon the merits of the land-use decision, we found that the property owner’s claim in Blanche Rd. was substantively different because it was not based on the township’s adverse decision, but on its intentional and improper delay of the process. Inasmuch as an improper delay could result in damages notwithstanding the ultimate grant of a permit, we declined to apply the finality requirement because a review of the permit decisions was not necessary to resolve the dispute. See id. at 267-68. In addition, a portion of the owner’s claims related to two lots to which the owner never exercised its option to purchase and for which the owner never sought a building permit because it abandoned the development project. We held that if the owner’s allegations of intentional and improper delay were proven, even if the permit ultimately were granted, an arbitrary and intentional delay could cause damages. See id. at 268. Thus, we found that the plaintiffs claims were ripe, even to the extent they were based upon damages allegedly, suffered with respect to these two lots. See id. We reject Sameric’s argument that Blanche Rd. applies here. According to Samerie, the finality requirement should not apply because, as in Blanche Rd., a favorable decision by the Board of License Review would not have prevented Samerie from incurring the damages it now seeks to recover. Samerie admits, however, that the grant of the permit would have reduced its damages. Accordingly, to the extent that Sameric’s claims are based upon the City’s denial of a building permit, they are not ripe. Moreover, an ordinary lapse of time required for the processing of an appeal from the denial of a permit does not permit a plaintiff to recast a ease as a delay claim; for if it did the ripeness requirement effectively would be eliminated. We again stress the importance of the finality requirement and our reluctance to allow the courts to become super land-use boards of appeals. Land-use decisions concern a variety of interests and persons, and local authorities are in a better position than the courts to assess the burdens and benefits of those varying interests. See Taylor, 983 F.2d at 1291. Judicial review of the City’s denial of Sameric’s application for a demolition permit would be inappropriate because it would permit Samerie to have denied the City the opportunity to render a final decision regarding how to interpret and apply the ordinance. See id. at 1292. Thus, we find that the district court properly held that the claim based upon the denial of the demolition permit was not ripe. Ordinarily, because a ripeness determination concerns the justiciability of a claim, which the district court should resolve on a motion to dismiss rather than on a motion for summary judgment, where this court finds that the district court properly held that the plaintiffs claim is not ripe, this court should vacate the grant of summary judgment and remand to the district court with instructions to dismiss the claim. See Taylor, 983 F.2d at 1290 (citing Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir.1990)); see also Acierno, 6 F.3d at 971. Here, however, we see no reason to disturb the grant of the summary judgment as Sameric’s abandonment of its appeal from the denial of the demolition permit after it sold the property ensures that its claim based on the denial never can be ripe. Thus, in this case Sameric’s claim with respect to the denial of the demolition permit is not simply “premature,” see Taylor, 983 F.2d at 1287, rather, it never will ripen. We thus would require the parties to waste their time if we remanded the case for the district court to convert the summary judgment into an order of dismissal. b. Statute of Limitations Even if this claim were ripe, we would affirm the dismissal of Sameric’s claim based upon the denial of the demolition permit because it is barred by the statute of limitations. Although the City apparently raised this argument in its motion for summary judgment, the district court did not reach this issue in view of its conclusion that any claim based upon that denial was not ripe for judicial consideration. In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of limitations for personal injury. See Wilson v. Garcia, 471 U.S. 261, 276-78, 105 S.Ct. 1938, 1947-48, 85 L.Ed.2d 254 (1985); 287 Corporate Ctr. Assocs. v. Township of Bridgewater, 101 F.3d 320, 323 (3d Cir.1996). Thus, because Pennsylvania’s statute of limitations for personal injury is two years, see 42 Pa. Cons.Stat. Ann. § 5524 (West Supp.1997), Sameric’s due process claims are subject to a two-year statute of limitations. See Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.1985). A section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based. See de Botton v. Marple Twp., 689 F.Supp. 477, 480 (E.D.Pa.1988). According to the City, the very last date that a cause of action based upon the denial of the permit could have accrued was in 1988 when Sameric abandoned its appeal to the Board of License Review. Because Sameric did not institute this suit until 1995, the City concludes that the statute of limitations bars this action. Sameric contends, however, that the “continuing wrong” doctrine, which tolls the statute of limitations, renders its claim based upon the denial of the demolition permit timely. Under this doctrine, a federal cause of action based upon the defendant’s continuing conduct is timely provided that the last act of that continuing conduct is within the period for the commencement of an action specified by the statute of limitations. See 287 Corporate Ctr. Assocs., 101 F.3d at 324 (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). In applying the doctrine, this court focuses on the affirmative acts of the defendant. See id. Sameric urges this court to find that its claim was tolled by its challenges to the designation of the theater in the state court. Sameric bases its argument largely on the district court’s ruling, from which the City does not appeal, regarding the timeliness of its claims. The district court, ruling on a motion to dismiss in this case, held that Sameric’s substantive due process claims based upon the designation of the theater were not barred by the statute of limitations. See Sameric Corp. of Del., Inc. v. City of Philadelphia, Civ. A. No. 95-7057, 1996 WL-47973 (E.D.Pa. Feb. 2, 1996). The district court found that the cause of action accrued on April 14, 1987, the date on which the Historical Commission officially notified Sameric of the designation, but found that the “continuing wrong” doctrine tolled the running of the statute of limitations. See id. at *3. The district court held that because Sameric was diligent in pursuing its claim with respect to the invalidity of the designation and the defendants continuously opposed Sameric’s challenges in state court, the doctrine applied. Thus, Sameric’s complaint, filed on November 8, 1995, was timely because it was filed within two years from the end of the state court litigation on November 9,1993. See id. at *4. We cannot agree that the result is the same here. We acknowledge that an historic designation factually underlies every cause of action based upon the denial of a demolition permit required by the ordinance because a demolition permit is only necessary under the ordinance where a building has been historically designated. In that sense alone a claim based upon a denial of a demolition permit is dependent upon the designation. The ordinance establishes procedures regarding applications for demolition permits separate from those concerning the historic designation of a building. Moreover, because the ordinance sets forth separate standards for historic designation and for the issuance of a demolition permit, the propriety of the City’s denial of a demolition permit under the ordinance is independent from the propriety of the designation itself. Thus, a cause of action based upon an improper denial of a demolition permit exists regardless of the validity of the underlying historic designation. Although Sameric diligently objected to the designation of the theater in state court, it abandoned its appeal of the denial of the demolition permit sometime in 1988 after selling the theater to United Artists. In addition, Sameric instituted its state court proceedings challenging the historic designation of the Boyd Theater prior to the Historical Commission’s denial of its application for a demolition permit. Thus, because the two claims are independent, application of the “continuing wrong” doctrine, as urged by Sameric, would be inappropriate here as its diligence did not relate to pursuing the permit. To the contrary, it abandoned its attempt to obtain the permit many years before it filed this action. Based upon the foregoing, we hold that the “continuing wrong” doctrine does not apply to toll the running of the statute of limitations with respect to Samerie’s claim based upon the denial of its permit application. B. Pennsylvania Constitutional Claims Sameric’s complaint also alleges that the defendants’ conduct deprived it of “the equal protection and [its] rights, privileges and immunities” guaranteed under the Pennsylvania Constitution. App. 857. The defendants asserted a governmental immunity defense to these claims under the Political Subdivision Tort Claims Act (the “Act”), 42 Pa. Cons.Stat. Ann. §§ 8541-8564 (West 1982 & Supp.1997). According to the district court, the individual defendants were immune under the Act because they did not consider factors outside of their authority. Again, although the district court based its analysis upon an erroneous interpretation of the ordinance, we affirm its conclusion. The City is immune from Samerie’s claims arising under the equal protection and civil rights sections of the Pennsylvania Constitution because the Act grants it immunity from claims for monetary damages except with respect to eight specific types of tortious conduct, none of which is applicable here. See 42 Pa. Cons.Stat. Ann. § 8542(b) (specifying that liability may be imposed upon the local agency for damages resulting from the following acts: the operation of a motor vehicle; the care or custody of personal or real property of others in the possession of the agency; dangerous conditions resulting from trees, traffic controls or street lighting; dangerous conditions resulting from utility service facilities; dangerous condition of streets and sidewalks; and the care or custody of animals in the possession of the agency); Agresta v. Goode, 797 F.Supp. 399, 409 (E.D.Pa.1992). In fact, Sameric conceded during the district court proceedings that the Act barred the state constitutional claims asserted against the City. See Sameric Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374, at *7. We also find that the individual defendants are immune under the Act from Sameric’s state constitutional claims. Under the Act, individual defendants are immune from liability for acts within the scope of their employment to the same extent as their employing agency, see 42 Pa. Cons.Stat. Ann. § 8545, except that they are liable if their conduct amounts to actual fraud, crime, actual malice or willful misconduct. See 42 Pa. Cons.Stat. Ann. § 8550. “Willful misconduct,” as used in section 8550, requires evidence that the defendants actually knew that their conduct was illegal. See Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293-94 (1994); see also In re City of Philadelphia Litig., 938 F.Supp. 1264, 1271 (E.D.Pa.1996). Because there is insufficient evidence that the individual defendants actually knew that their conduct was illegal and no evidence at all that crime, fraud, or malice is implicated here, the district court properly granted summary judgment in favor of the individual defendants based upon immunity under the Act. IV. CONCLUSION For the foregoing reasons, we will affirm the district court’s grant of summary judgment to the defendants. . We use the term "building” throughout this opinion because this case involves a building. However, our discussion of the designation of a building under the ordinance also encompasses the designation of structures, objects, complexes of buildings, and districts which, for the most part, are treated equally under the ordinance. . The theater was also known as the Samerie Theater. . The district court held that Samerie was not entitled to a preliminary injunction to prevent the Historical Commission from considering the designation of the theater because Samerie was not subject to an immediate threat. According to the court, the convening of a hearing did not in itself pose a threat to Samerie. Further, the court found that the potential designation would not harm Samerie, as only the subsequent denial of a permit required by virtue of the designation would pose a threat to Samerie. . Because Sameric sold its assets to United Artists in April 1988, the appellant was changed from Sameric to United Artists while the case was on appeal to the Supreme Court of Pennsylvania. . The district court dismissed Sameric’s procedural due process claims for failure to state a claim. See Samerie Corp. of Del., Inc. v. City of Philadelphia, Civ. A. No. 95-7957, 1996 WL 47973, at *4 (E.D.Pa. Feb. 2, 1996). The district court held that Pennsylvania provided a judicial mechanism permitting Samerie to challenge the designation of the Boyd Theater. See id. In particular, the district court noted that the parties agreed that the state court action should be treated as an appeal of the designation. See id. . In the alternative, the district court held that the individual defendants were entitled to qualified immunity from the federal claims because they were following their own reasonable interpretation of the ordinance. Given our conclusion that Sameric has not established a violation of a constitutional right, we need not consider the immunity issue. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (stating that in considering whether a defendant is entitled to qualified immunity, a court first should consider whether the plaintiff has alleged a violation of a constitutional right). We note, however, that, in the context of land-use decisions, this court has recognized the importance of broadly granting immunity to members of local boards to allow them to make decisions without the threat of being sued by every disgruntled applicant. See Bass v. Attardi, 868 F.2d 45, 50 & n. 11 (3d Cir.1989) (citing Anastasio v. Planning Bd. of Twp. of W. Orange, 209 N.J.Super. 499, 507 A.2d 1194, 1208 (App.Div.1986)). . There is no dispute that the defendants herein are "persons” acting under color of state law. The City is subject to section 1983 liability for injuries caused by its official policies and customs, see Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978), and actions by the Historical Commission, one of its agencies, constitute such official policies, see Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). . The ordinance requires that the Historical Commission be composed, inter alia, of the Director of Commerce, the Chairman of the City Planning Commission, a real estate developer, a representative from a community development corporation, and a representative from a community organization. . Section 14-2007(8)(c) provides that [t]he exterior of every historic building, structure and object and of every building, structure and object located within an historic district shall be kept in good repair as shall the interi- or portions of such buildings, structures and objects, neglect of which may cause or tend to cause the exterior to deteriorate, decay, become damaged or otherwise fall into a state of disrepair. . Our conclusion that summary judgment was appropriate in this case is not at odds with the notion that the determination of whether defendants were motivated by bias, personal interest, or other improper motive is, if there is a genuine dispute of fact, a question of fact for the jury. See Parkway Garage, 5 F.3d at 692, 697 n. 6. Here, we conclude that the particular motive which Sameric alleged is not improper as a matter of law. . The majority of Sameric’s brief on this issue is devoted to arguing that the City's action in designating the theater was without factual basis and therefore amounts to arbitrary and irrational government conduct. Thus, Sameric reviews the "extensive” evidence presented against designation to the Historical Commission. We recognize that there is evidence to suggest that the Boyd Theater is not as architecturally significant as the Designation Committee presented. There is also evidence from which a jury could infer that the Historical Commission was predisposed to designate the theater. This argument, however, focuses on whether there was sufficient evidence to support the designation based upon criteria other than the potential cultural value of the Boyd if converted to a live performance space. This is not the appropriate inquiry here. . Our conclusion does not necessarily mean that Sameric will not receive damages by reason of the historic designation of its property as it explains in its brief that it "has intervened[in the Common Pleas Court] for the purpose of seeking an assessment of damages as a result of the decision by the Supreme Court of Pennsylvania” in United Artists’ II. Of course, we hasten to add our opinion does not depend on whether Sameric makes a recovery in the state court. . We again note that this finality requirement is not at odds with the notion that section 1983 claims are not subject to an exhaustion of remedies requirement. See Taylor, 983 F.2d at 1291 n. 10 (citing Williamson, 473 U.S. at 192-94, 105 S.Ct. at 3119-20). . We do not imply that our result would have been different if the administrative standard of review had been deferential. . Sameric instituted its state court challenge to the designation on April 24, 1987, see app. 845, and the Historical Commission denied its permit application on December 2, 1987. . Section 8545 states that [a]n employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. 42 Pa. Cons.Stat. Ann. § 8545. .Section 8550 states that the immunity, indemnity, and damage limitations of the Act do not apply [i]n any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct. 42 Pa. Cons.Stat. Ann. § 8550.

Boyd v. Roland

W. EUGENE DAVIS, Circuit Judge: Appellants appeal the district court’s denial of their request for a preliminary injunction and dismissal of their action. We issued an order on November 12, 1985, affirming the denial of the preliminary injunction but vacated the dismissal and remanded the case for further proceedings. We now give reasons for our ruling. This case centers around the demolition of the former North Mississippi Retirement Home which is located at 400 South Main Street in Grenada, Mississippi. Appellants own homes in Grenada located on South Main Street surrounding the retirement home. The construction of the building at issue was completed in 1919. It originally existed as a college, was later used as a hotel, and then was finally used as a retirement home. After the retirement home was closed, the building remained vacant for several years and fell into disrepair. In 1982, the All Saints Episcopal Church in Grenada decided to renovate the building to provide housing for the elderly and the handicapped. The church formed the Episcopal Housing Development Corporation of Grenada (EHD) and applied in June 1983 to the Department of Housing and Urban Development (HUD) for financing under Section 202 of the Housing Act of 1959. After applying for the loan, consultants to EHD sent a form notice to the acting Mississippi State Historic Preservation Officer (SHPO), Roger Walker, on June 15, 1983, outlining the proposed project and inviting comments or objections. On June 22, 1983, Walker responded by letter to EHD stating that the building appeared to be architecturally significant and requested additional information. Walker never received a response to this request. In September of 1983, HUD approved EHD’s loan application for $1,358,000. After the loan was approved, EHD hired Charlie Craig, an architect, to review the renovation potential of the retirement home. Craig concluded that the exterior of the building was in acceptable condition but the interior was unsafe. He estimated that restoration of the interior would cost $500,-000 more than the $1,358,000 loan from HUD. EHD was unable to obtain the additional funds from either the State of Mississippi or charitable foundations. Therefore, in early 1984, the decision was made to raze the building and erect a new one. In September of 1984, demolition of the building commenced. On June 27, 1985, a petition was filed by the appellants complaining that the new building would be architecturally inconsistent with the surrounding neighborhood and that the appel-lees, in conducting this project, had failed to comply with Section 106 of the National Historic Preservation Act (NHPA). By this time, the retirement home had been cleared away and construction of the new building had begun. Appellants sought a temporary restraining order and preliminary injunction prohibiting further funding or construction of the new building until the appellees complied with NHPA. On July 1, 1985, the district court held a hearing on the motion for a temporary restraining order. Following the hearing, the district court denied the request for a restraining order and preliminary injunction and. dismissed the case. Appellants immediately filed a notice of appeal. Section 106 of NHPA requires federal agencies to take into account the effect any federally assisted undertaking may have on any “district, site, building or object that is included in or eligible for inclusion in the National Register” of Historic Places. Appellants’ theory of the case is that the neighborhood surrounding the retirement home, consisting of approximately five blocks on Main Street, is eligible for listing as a historic district. This neighborhood is not listed on the National Register nor has it been officially determined eligible for listing, but the district court found that the “property on Main Street” is eligible because it meets the National Register criteria. Appellees do not contest this finding. We interpret the district court’s conclusion as agreeing with appellants that the neighborhood qualifies for listing in the National Register, which finding is supported by the record. However, the district court held that “eligible property” under NHPA was limited to property that had been determined eligible for listing in the National Register by a state or federal agency. Because no such determination had been made, the district court concluded that this neighborhood is not protected by NHPA. For the reasons that follow, we disagree with this conclusion. Before 1976, NHPA required federal agencies to consider the impact of a federally assisted undertaking only on property “included in the National Register.” However, Congress amended section 106 of the NHPA to require federal agencies to take into account the effect of a federally assisted undertaking on property “included in or eligible for inclusion in the National Register.” 16 U.S.C.A. § 470(f) (West 1985) (emphasis added). The regulations define eligible property as property “that meets the National Register criteria.” 36 C.F.R. § 800.2(f) (1985) (emphasis added). Before 1979, the regulations defined eligible property as any property “which the Secretary of the Interior determines is likely to meet the National Register criteria.” 36 C.F.R. § 800.3(f) (1978). A plain reading of section 106 and its regulations, as amended, persuades us that property qualifies as eligible property on the basis of literal eligibility under the National Register criteria. Consequently, we conclude that eligible property is not restricted to property that has been officially determined eligible for inclusion in the National Register. Other courts have reached this same conclusion. In Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425, 1437 (C.D.Cal.1985), the court concluded that: “What is an eligible property for purposes of NHPA turns upon the inherent historical and cultural significance of the property and not opinion of its worth by the Secretary of the Interior.” See also Hough v. Marsh, 557 F.Supp. 74 (D.Mass. 1982); WATCH v. Harris, 603 F.2d 310 (2d Cir.), cert. denied, sub nom., Waterbury Urban Renewal Agency v. Waterbury Action to Conserve our Heritage, Inc., 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979) (implicitly reaching this conclusion); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3d Cir.1983) (implicitly reaching this conclusion). Appellees cite two cases in support of the district court's ruling: Birmingham Realty Co. v. General Services Administration, 497 F.Supp. 1377 (N.D.Ala.1980); and Committee to Save the Fox Building v. Birmingham Branch of the Federal Reserve Bank, 497 F.Supp. 504 (N.D.Ala. 1980). We do not find the reasoning in these cases persuasive and disagree with them to the extent they are inconsistent with this opinion. Although we conclude that the neighborhood surrounding the retirement home on South Main Street is “eligible property” within the area of impact of the undertaking in this case and subject to the protection of NHPA, we nevertheless affirm the district court’s denial of appellants’ petition for preliminary injunction. A preliminary injunction should be granted only if: (1) there is a substantial likelihood that plaintiff will prevail on the merits, (2) there is a substantial threat that irreparable injury will result if the injunction is not granted, (3) the threatened injury outweighs the threatened harm to defendant, and (4) granting the preliminary injunction will not disserve the public interest. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir.1985). Given the progress of EHD’s project in this case, the district court did not abuse its discretion in denying the application for preliminary injunction. The dismissal of the action following the hearing on plaintiffs' application for injunction, however, was not warranted. The dismissal was premised on the erroneous legal conclusion that NHPA did not apply to the property at issue because its eligibility for inclusion on the National Register had not been officially determined. On remand the district court should permit appellants to amend their pleadings to seek whatever relief may be appropriate under the circumstances that now exist at the construction site and in the neighborhood. The court should then consider appellants’ amended complaint in light of our holding that the property at issue is protected by NHPA. Accordingly, the judgment of the district court is AFFIRMED in part, REVERSED in part and REMANDED for proceedings consistent with this opinion. . Section 106 of the National Historic Preservation Act provides: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C.A. § 470f (West 1985). . Because of our conclusion that the district court erred in its determination that appellants’ property was not subject to the protection of NHPA, we do not address appellant’s alternate contention, rejected by the district court, that the SHPO was not given adequate notice of the intention to tear down the retirement home.

Boyd v. Roland

ON PETITION FOR REHEARING Boyd, in his application for rehearing, calls our attention to the fact that the retirement home has been cleared away but construction had not commenced on this site at the time the hearing was held in the district court. Neither had the HUD loan been finally closed. Consequently, Boyd may well be correct that HUD could have declined to close the loan at the time of the district court hearing. The district court made no finding on this fact and we are unable to say that the district court could properly have denied the claim for injunction on the ground of mootness. The only ground on which the district court clearly bottomed its denial of injunc-tive relief was its interpretation of the National Historic Preservation Act. Because we have concluded that the district court’s interpretation of that statute is erroneous, we vacate the order denying a preliminary injunction. By doing so, we do not imply that an injunction should now be ordered. To the contrary, at argument before this panel counsel for Boyd conceded that during the pendency of the appeal construction on the project had progressed substantially and Boyd did not seek an order requiring destruction of that construction. Since that time, construction has most certainly progressed further which makes denial of injunctive relief more compelling. Except as stated above, the application for rehearing is DENIED.

Natural Resources Defense Council, Inc. v. City of New York

VAN GRAAFEILAND, Circuit Judge: These are appeals from orders of the United States District Court for the Southern District of New York, Duffy, J., granting the defendants’ motions for summary judgment and the judgment dismissing plaintiffs’ complaint. At issue is a project aimed at revitalizing a portion of the Times Square area in the City of New York. Long before the City fathers began to extol the sights and thrills of “The Big Apple”, they proclaimed the wonders of “The Crossroads of the World”, Broadway and 42nd Street and the Times Square area immediately to the north. Unfortunately for the City, in recent years the wonders which had attracted and thrilled millions of visitors began to disappear. When the City fathers looked at the area in 1981, this is what they saw: Since World War II, the Broadway-Times Square area has experienced a deterioration of building stock, land use, and street environment resulting in increasingly, unproductive use of potentially valuable land, and in the appearance of uses which threaten Times Square’s traditional public role. This decline was marked by a lack of significant construction in the area after World War II. During this time, fashionable hotels moved to Central Park South and to the east side of Midtown. The Times Square area hotels declined in quality and lost their prominent clientele. The area lost its monopoly on first-run movies. Falling patronage and sales forced high-quality restaurants and retail stores out of Times Square. In the place of these departed activities came more “action” movie houses, pornographic shops, shops catering to impulse buying, fast-food restaurants, soft-drink stands, topless bars, massage parlors, and pornographic book stores. In the 1970’s this resulted in private mortgage foreclosures, in rem takings, tax arrears, reduced tax collections, building deterioration, the replacement of buildings with parking lots and disassemblage of property- Today Times Square is a blighted urban area. The characteristics contributing to this blighted environment are the under-utilization of property in the area, high vacancy rates above the ground floor, the proliferation of pornographic uses, dilapidated store fronts, the number of lots in tax arrears, dirty and unsafe street conditions, and a high crime rate which requires increased allocation of police service to the area. These factors combine to reduce the attractiveness of the area to tourists and to most metropolitan residents and to threaten neighboring communities with the intrusion of blighting land uses. (Record of Decision and Findings and Determinations of the City of New York and the New York State Urban Development Corporation Respecting the Times Square Hotel Project, 5.) In 1972, defendant, John Portman, with the encouragement of the Mayor’s office of Midtown Planning and Development, decided to build a hotel on the west side of Broadway between 45th and 46th Streets. In August, 1973, Portman was granted a special zoning permit, a parking permit, and a zoning map change authorizing the proposed construction. Economic conditions deterred further progress until 1978, when a plan of cooperative public financing was devised. This involved ownership of the land by a subsidiary of the New York State Urban Development Corporation (UDC), a leaseback of the property to Portman, and a loan from the City to be funded by the United States Department of Housing and Urban Development (HUD). In August, 1978, the project was approved in concept by the New York City Board of Estimates. The Board authorized the Mayor to apply for a HUD grant of $15M, and increased this authorization to $21.5M in December, 1980. The City’s participation was conditioned upon UDC’s adoption of the project as a land use improvement project. On October 18, 1979, the Directors of UDC approved the general project plan and the initiation of UDC’s participation in the project. In the meantime, the Mayor’s office of Midtown Planning and Development oversaw the preparation of a 300-page Environmental Review covering the proposed project. Shortly after this document was completed and circulated, the City was advised that a theater on the project site known as the Helen Hayes Theatre was eligible for listing on the National Register of Historic Places. Pursuant to section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, and regulations thereunder, 16 C.F.R. §§ 800.1-.15, a Case Report relating to the Helen Hayes Theatre was submitted by the City to the New York State Historic Preservation Officer and the Advisory Council on Historic Preservation. On December 26, 1978, a Memorandum of Agreement was entered into permitting the demolition of the Helen Hayes Theatre. This Memorandum provided, among other things, for the possible use of parts of the theater in the hotel project and the use by preservation organizations of any other architecturally significant parts. On February 18,1981, the City inserted in the Federal Register a notice of intent to publish a Draft Environmental Impact Statement. The Draft Environmental Impact Statement was completed on May 22, 1981, and appropriate notice was published in the Federal Register on May 29,1981. A public hearing was held on July 10, 1981, and the Court has reviewed the 213-page transcript of the proceeding. On August 12, 1981, a final 500-page Environmental Impact Statement was completed, and notice of completion was published in the Federal Register on August 21, 1981. The Statement described the proposed project as follows: The proposed development is on the west side of Broadway between 45th and 46th Streets on a 74,300 square foot site. The design of the proposed project calls for a 50-story hotel with over 2,000 rooms, extensive convention and meeting facilities, restaurants and public areas, a 1,500-seat theatre and underground parking for 219 automobiles. The building will be open at street level to serve as an extension of Broadway Plaza, a pedestrian oriented project on the right-of-way of Broadway that the City is undertaking between 45th and 49th Streets. The building features a large open atrium around which the hotel rooms are situated. Shubert Alley, a feature of the theatre area between 44th and 45th Streets west of Broadway, will be extended under the hotel structure at street level northward to 46th Street. At street level there will be a sidewalk cafe extending onto Broadway Plaza and retail shops. Vehicle access will be provided by a through roadway between 45th and 46th Streets adjacent to the hotel entrance. Pedestrian access will also be available from Broadway Plaza and the Shubert Alley extension. Above the street will be two levels of retail space and the legitimate theater. The next three levels will provide meeting rooms, exhibition space and ballrooms. The main lobby will be above this meeting space and will include registration facilities, various restaurants and beverage facilities and retail shops. The atrium will extend 35 floors above this lobby to a revolving restaurant and lounge on the top floor. The hotel has been designed as a striking facility to be an attraction for City visitors. (Final Environmental Impact Statement Proposed Times Square Hotel at 1-1 [hereinafter cited as Final E.I.S.]). On October 6, 1981, plaintiffs brought two suits in New York State Supreme Court alleging that defendants had failed to comply with pertinent State statutes and regulations, particularly the New York State Environmental Quality Review Act. (N.Y.Envtl.Conserv.L. Art. 8 (McKinney 1973)). On October 7, 1981, the instant action, based largely on federal statutes and regulations, was commenced in the United States District Court for the Southern District of New York. On October 14, 1981, the State actions were removed to the district court for the purposes of joint trial. However, they were remanded at the time the district court dismissed most of the federal claims. On January 7, 1982, the complaints in the remanded State actions were dismissed in New York State Supreme Court and the dismissal was affirmed by the Appellate Division of the Supreme Court on February 23, 1982. On October 30, 1981 and November 4, 1981, plaintiffs moved for partial summary judgment. On November 13, defendants moved to dismiss the complaint. At the time these motions were made, there was uncertainty as to whether a theater adjoining the Helen Hayes Theatre, known as the Morosco Theatre, was eligible for inclusion in the National Register of Historic Places. This uncertainty was resolved on November 17,1981, when the Secretary of the Interior held in favor of eligibility. In making this determination, the Secretary specifically recognized that “differences of opinion exist on the eligibility of the Morosco Theatre.” While awaiting the Secretary’s determination, the parties stipulated that, if the Morosco Theatre was held to be eligible for registry, the parties would not object to an expedited consideration of the theatre’s status vis-a-vis the project by the Advisory Council on Historic Preservation, pursuant to 36 C.F.R. Part 800. Accordingly, when the Secretary’s decision was received, the matter was promptly referred to the Advisory Council, which held expedited hearings on November 19 and 20. A Memorandum of Agreement was executed on behalf of the Council, the City, and the New York State Advisory Council on Historic Preservation on the evening of November 20 and was signed by the Chairman of the Advisory Council on the evening of November 21. The Memorandum of Agreement provided that there were no feasible or prudent alternatives to demolition of the Morosco Theatre. It gave the City fifteen additional days to consider any possible practical alternatives to demolition and forbade any physical alteration of the Theatre during that period. Plaintiffs then moved to amend their complaint to attack the proceedings before the Advisory Council. Although plaintiffs attacked the substance of the Memorandum of Agreement and the proceedings which led to its execution, their principal contention was that the Advisory Council’s decision resulted from improper pressure emanating from the White House in Washington. On December 7, 1981, the district court handed down an opinion and order granting defendants’ motion to dismiss all of plaintiffs’ claims except the State claims that were remanded, one claim that involved issues of State and local law which was placed on the suspense calendar pending resolution of the parallel State court claims, and plaintiffs’ claim that the Morosco Memorandum of Agreement was consummated improperly. At the same time, the district court denied plaintiffs’ motion for a temporary injunction. An appeal to this Court followed. We remanded to the district court with instructions to issue a preliminary injunction. Recognizing, however, that continued delay of the project would entail considerable expense and that the very existence of the project might be at stake because the financial “package” for the project might collapse, we urged the district court to expedite final disposition of plaintiffs’ claims. In compliance with our suggestion, the district court ordered expedited discovery and tried the issues surrounding the Morosco Theatre Memorandum of Agreement on January 21 and 22, 1982. By an opinion and order dated February 11, 1982, the district court dismissed plaintiffs’ last claims. Another appeal followed, together with a motion for a temporary injunction. On February 18, 1982, this Court granted the injunction pending argument of the appeal on the merits which was expedited to February 23, 1982. Argument has been had, and, after due consideration, we now affirm the judgment and orders appealed from. DISCUSSION I Although the parties have submitted thousands of pages of affidavits, testimony, memoranda and briefs covering the plethora of claims asserted by appellants, the basic issue is whether an adequate showing has been made that demolition of the two theaters is necessary. Where, as here, there is federal action significantly affecting the quality of human environment, a detailed statement concerning alternatives to the proposed action is required. 42 U.S.C. § 4332(C)(iii). That statement need not contain an exhaustive discussion of alternatives and variables of alternatives; it is sufficient in scope and detail if it permits an intelligent choice. Monroe County Conservation Council v. Adams, 566 F.2d 419, 425 (2d Cir. 1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978). The only alternatives to demolition of the Helen Hayes Theatre and the Morosco Theatre would be to build over them or around them. The reasons why both of these alternatives were rejected are set forth in the Environmental Impact Statement: During the development of designs for the proposed project on the 45th-46th Street site at Broadway a number of different design concepts were examined in order to determine the feasibility of saving the theatres that presently occupy that site. Alternatives were examined that involved building around the theatres as well as building the hotel over them. The construction of the hotel on the site without using the area of the Helen Hayes Theatre results in a substantially smaller facility which can not provide the convention and meeting rooms required for a major convention hotel (a ballroom for a facility of this size requires at least 25,000 square feet). It also could not include a new theatre, and most of all it would preclude an atrium — the focus and distinguishing feature of the proposed hotel, which is expected to make it a major attraction of the Times Square area. Without these features, the project was judged unlikely to be the magnet that expands the functions of an area that currently has its greatest appeal only during theatre hours and is unable to retain the theatre going population for pre- or post-theatre activities. Analyses of the feasibility of building around and spanning the Helen Hayes Theatre indicated that the atrium concept could be retained, but the convention and meeting rooms would still be inadequate. In addition, the main hotel entrance would have to be on Broadway. This is logistically and urbanistically unsatisfactory, as it conflicts with the design of Broadway Plaza and precludes having the hotel’s pedestrian focus on Broadway, where it should be. In addition, there simply would not be sufficient land area left to properly serve pedestrians, passenger ears or taxis, and service trucks. Further, because of the location of the Helen Hayes Theatre, the major vertical element of the hotel design, i.e. the elevators, would be in a non-functional location and would render the entire structure logistically infeasible. Final E.I.S. at 6-4 to -5. The Environmental Impact Statement also points out: The building will be open at ground level so that pedestrians can move underneath the structure in a brightly lighted environment with cafes and shops. The openness on the site will compliment Broadway Plaza and will, in effect extend its pedestrian amenities and services. Final E.I.S. at 3-3. One need be neither an architect nor an engineer to recognize that this concept of an open pedestrian walkway is incompatible with the continued existence of two theater buildings occupying over 25,000 square feet of space in the walkway area. Significantly, even without the benefit of the Environmental Impact Statement’s alternative design studies, the New York State Historic Preservation Officer and the Advisory Council on Historic Preservation concluded that there were no feasible and prudent alternatives to the demolition of the Helen Hayes Theatre and that it was in the public interest to proceed with the proposed hotel project. This determination was the basis for the December 26, 1978 Memorandum of Agreement. See 36 C.F.R. § 800.6(b)(6). The Environmental Impact Statement disclosed, of course, that this Memorandum of Agreement had been entered into. Appellants contend that when the Morosco Theatre was declared eligible for National Registry, appellees should have prepared a supplemental Environmental Impact Statement. This argument was properly rejected by the district court. The Environmental Impact Statement pointed out that there were three theaters on the proposed site, the Helen Hayes, the Morosco, and the Bijou. Three pages of the Environmental Impact Statement were devoted to a description of the Morosco Theatre and its history. The Environmental Impact Statement’s discussion of alternatives did not deal only with the Helen Hayes Theatre, but with all three theaters. The same considerations which made the retention of the Helen Hayes Theatre infeasible also militated against the continued existence of the Morosco Theatre. A supplemental Environmental Impact Statement should be prepared if “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). Under the circumstances of this case, the Morosco Theatre’s eligibility for National Registry listing did not fall within the provisions of this regulation. See Inman Park Restoration, Inc. v. Urban Mass Transportation Administration, 414 F.Supp. 99, 118-19 (N.D.Ga.1976), aff'd 576 F.2d 573 (5th Cir. 1978). We have already noted that the New York State Historic Preservation Officer and the Advisory Council on Historic Preservation also determined that there were no feasible and prudent alternatives to the demolition of the Morosco Theatre. II Although the City fathers have been behind the proposed hotel project since it was first conceived in 1972, appellants contend that the Mayor decided to proceed without proper approval by the Board of Estimates. This claim was made in appellants’ State court actions which were remanded, and the dismissal of those actions in the State Supreme Court appears to be res judicata on this issue. See Winters v. Lavine, 574 F.2d 46, 54-56 (2d Cir. 1978); Reilly v. Reid, 45 N.Y.2d 24, 27-31, 407 N.Y.S.2d 645, 379 N.E.2d 172 (1978). Assuming for the argument that it was not, we believe that the district court did not err in rejecting appellants’ contention, and we affirm the dismissal of this claim substantially for the reasons stated in the district court’s opinion. III Appellants contend that the Memorandum of Agreement covering the Helen Hayes Theatre contained an “implicit condition” that the demolition of the Theatre would be justified only if there was a reasonable expectation that the project would be constructed. Relying on Portman’s expressed fears concerning the possible withdrawal of financial commitments, appellants contend that it would be a clear violation of this Memorandum of Agreement to permit demolition. The fears which Port-man expressed were based upon the continued harassment and delay resulting from appellants’ litigation. It comes with ill grace for appellants to now urge this same delay as grounds for halting the project. Appellants have made no showing that the project will not move ahead rapidly once appellants are no longer able to enjoin such progress. IV When an application for federal aid is made under the Housing and Community Development Act, 42 U.S.C. § 5301 et seq., the applicant must identify all affected properties which “as determined by the applicant” may meet the criteria for listing in the National Register of Historic Places. 42 U.S.C. § 5318(c)(7). The regulations governing the Advisory Council on Historic Preservation, 36 C.F.R. §§ 800.1-.15 provide that “[i]f either the Agency Official [the Mayor] or the State Historic Preservation Officer finds that a property meets the National Register Criteria or a question exists as to whether a property meets the Criteria, the Agency Official shall request a determination of eligibility from the Secretary of the Interior in accordance with 36 CFR Part 63.” 36 C.F.R. § 800.4(3). “A question on whether a property meets the Criteria exists when the [City] and the State Historic Preservation Officer disagree or when the [City] determines that a question exists.” 36 C.F.R. § 1204.2(c). Appellants contend that the City should have asked the Secretary of the Interior to determine whether the entire Times Square theater district was eligible for listing on the National Register of Historic Places. Putting aside the question whether any person could reasonably conceive of the entire Times Square area as an historic landmark, the record shows that, as of October 27, 1981, the only disputed properties were the Morosco Theatre, the Guild Embassy 5 Theatre, the Bijou Theatre, and the Picadilly Hotel. Moreover, although the parties stipulated that appellants might file National Register nomination forms with the Secretary of the Interior covering all four properties, appellants requested the Secretary to make a determination of eligibility only with respect to the Morosco Theatre. Appellants’ present insistence that the entire theater area should have been listed raises a question whether appellants are more interested in delaying the project than in preserving historic landmarks. In any event, the record establishes beyond dispute that the City had a 200-page Historic Analysis of the site of the proposed project made by Soil Systems, Inc. of Marietta, Georgia, which found that only the Helen Hayes Theatre was worthy of inclusion in the National Register. The Landmark Preservation Commission concurred. Moreover, and most importantly, it is undisputed that the City and the State Historic Preservation Officer did not disagree concerning the eligibility for national registration of the so-called theater district. Instead, they agreed that the entire district was not eligible for listing. We find no error in the district court’s summary dismissal of these claims. V Appellants’ final contention of significance concerns the Memorandum of Agreement covering the Morosco Theatre. When this matter was before this Court on a prior appeal, appellants asserted vigorously that undue influence from Washington deprived the Advisory Council on Historic Preservation of its ability to perform its delegated duties as an independent advocate for the preservation of the nation’s historic and cultural heritage. We remanded to the district court to permit discovery and a hearing, which have now been had. The district court found that the evidence showed a “thorough and reasoned consideration of the Morosco Theatre by the Advisory Council devoid of extraneous influences.” This finding is supported by the record. We find no merit in appellants’ contention that the hearings, expedited pursuant to stipulation, were not fairly conducted or that appellants were prevented from presenting their views. As already pointed out, the situation with regard to the Morosco Theatre was substantially the same as that of the Helen Hayes Theatre. Nevertheless, appellants’ architectural expert was given ample opportunity to present his proposed feasible alternative. The Council concluded that the proposed alternative was not feasible, and there was substantial basis for this determination. We discern no basis for complaint in the fact that the Council gave appellants and their allies an additional fifteen day period in which they might attempt to change the City’s well-reasoned position on the issue of feasibility. DISPOSITION We have considered all of the arguments presented by appellants on this appeal and find no merit in them. Accordingly, the judgment of the district court is affirmed. The temporary injunction staying demolition is vacated. AFFIRMED. The mandate shall issue forthwith.

Hart v. Denver Urban Renewal Authority

SETH, Circuit Judge. These are appeals from a judgment enjoining the defendants, Denver Urban Renewal Authority (DURA), and the United States Department of Housing and Urban Development (HUD), from proceeding with the sale of the Daniels and Fisher Tower in Denver, Colorado, to a local architectural firm, Luff/McOG, which plans to renovate the Tower into office space as part of the HUD-funded Skyline Urban Renewal Project. The injunction is to remain in effect until HUD complies with the procedures required for certain historically significant properties in accordance with the regulations of HUD based on those of the Advisory Council on Historic Preservation, 36 C.F.R. § 800 et seq. Both parties have appealed. The Skyline Urban Renewal Project, which called for renovation of a large area in downtown Denver, was officially approved by HUD on March 7, 1968, when HUD and DURA entered into a Project Loan and Capital Grant Contract. Included in the project area is the Daniels and Fisher Tower (Tower), built in 1911 as part of the Daniels and Fisher Department Store. The Tower was patterned after the Campanile in St. Mark’s Square, Venice. The department store building was demolished as part of the project, but the Tower was left standing. On December 2, 1969, the Tower was added to the National Register of Historic Places. The Register, established by the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. §§ 470 et seq., recognizes and preserves objects significant in American history, architecture, archaeology, and culture. The Project called for renovation of the Tower as commercial space. In furtherance of that plan, DURA purchased the Tower on April 16, 1970, and offered it for sale to area redevelopers. Two earlier other purchasers, after acceptance of their proposals by DURA, did not complete their contracts. On April 16, 1975, DURA and Luff/McOG, one of the defendants here, entered into an agreement for the purchase and sale of the Tower. It is this sale that was enjoined by the district court pending compliance with HUD regulations implementing NHPA, 36 C.F.R. §§ 800.1 et seq. Defendants below appeal the final order granting that injunction. Plaintiffs cross-appeal the trial court’s conclusions that NEPA and the regulations drafted under its authority do not apply. Plaintiffs’ cross-appeal is based on the premise that the district court reached the right decision for the wrong reasons. In granting the injunction, the court held neither NHPA nor NEPA applied, but rather the HUD-approved regulations under NHPA activated the procedural .requirements set out in NHPA. The plaintiffs would have us find not only the regulations but also the two Acts themselves are applicable here. In reviewing those two Acts, we must conclude that NHPA does not apply to this case. The relevant section reads: “The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking.” 16 U.S.C. § 470f. (Emphasis added). Plaintiffs read this section to require HUD to seek comment from the Advisory Council. However, the plain meaning of the words exempts the Tower sale from such a consideration. The Tower was not placed on the National Register until 1969, while the approval of the expenditure of Federal funds for the Skyline Urban Renewal Project was finalized by the signing of the loan and capital grant contract on March 7, 1968. The use of that contract date as the time at which this provision becomes effective has been established in other jurisdictions. See South Hill Neighborhood Ass’n v. Romney, 421 F.2d 454 (6th Cir.); St. Joseph Historical Society v. Land Clearance for Redev. Au., 366 F.Supp. 605 (W.D.Mo.); Kent County Council for Historic Preservation v. Romney, 304 F.Supp. 885 (W.D.Mich.). The analysis in each appears sound. The language of the Act is clear, particularly when compared to the comparable section of NEPA. The reading proposed by plaintiffs is strained and not in accordance with the plain meaning of the section. If in fact the key element is not approval, as the case law and the ordinary words suggest, but is the expenditure of funds, the last expenditure of federal funds involving the Tower occurred in September of 1970, when DURA purchased the Tower from a private owner. However, this is not the “expenditure” contemplated in the statute. Plaintiffs would have us use the date DURA entered into the sale contract with Luff/McOG in April 1975 as the critical date. However, no federal funds were to be expended in that sale, and thus there was no expenditure to be approved and the statute by its terms does not apply. Plaintiffs make one further argument to apply NHPA, arguing that major amendments to the plan in 1971 and 1972 invoke the Act’s provisions. The district court found the 1972 amendment, which involved a change in density allotment, had nothing to do with the Tower while the 1971 amendment, which called attention to the Tower’s listing on the National Register, became effective without HUD approval. Neither caused the Act to apply. We thus agree with the district court that NHPA did not require HUD’s solicitation of comments from the Advisory Council as to DURA’s agreement to sell the Tower to Luff/McOG. The issue as to the application of NEPA is not so clear. The pertinent statutory provision states: “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— * * * * * * “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, “(iii) alternatives to the proposed action, “(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332. Here the “plain meaning” is not so plain. Case law under this provision finds the catch phrases, “to the fullest extent possible” and “major Federal actions” subject to several interpretations. In determining legislative intent, the first phrase becomes significant. It has been interpreted by one court to establish a discretionary element in the Act which the court reads further as indicative of intent to apply the Act to overall environmental problems facing the Nation as a whole as opposed to demolition of specific historic buildings. St. Joseph Historical Society v. Land Clearance for Redev. Au., 366 F.Supp. 605 (W.D.Mo.). The majority, however, have read that phrase as subjecting a continuing project to the Act’s requirements until it reaches “. . . that stage of completion where the cost of abandoning or altering the proposed project clearly outweigh [sic] the benefits [of] compliance.” Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cited in Swain v. Brinegar, 517 F.2d 766 (7th Cir.). Although these two cases involved highway construction projects rather than urban renewal plans, the theory remains the same. They hold that as long as agency decisions remain to be made or are open to revision, the Act should be applied. It is at this point that the phrase “major Federal action” comes into play. The determination to be made in the instant case is whether the loan and capital grant contract’s requirement that HUD approve all acquisitions and dispositions of property by the DURA, section 108(A)(11), (12), (16) of that contract, establishes major Federal action sufficient to mandate compliance with the Act each time that approval is given. The district court held that all major Federal action taken here occurred before the Act was in effect. In order to do so, the court found the signing of the loan and capital grant contract as the only major Federal action involved in this urban renewal project. A review of case law interpreting the phrase “major Federal action” does not compel this restrictive conclusion. Judicial decisions in a variety of actions in which federal agencies and funds are involved have given a broad reading to the key phrase. Highway construction suits, challenged by defendants here as distinguishable simply because they deal with a highway being built rather than a Tower being renovated, have expressed the philosophy behind the Act to be long-range. In one, the date of design approval, the first of five established stages in highway construction and comparable to the signing of the loan and capital grant contract here, was rejected as the critical stage beyond which the court would not halt work to require reconsideration and the preparation of an Environmental Impact •Statement. (EIS). Arlington Coalition on Transportation v. Volpe, supra. Further, that court ruled that the determination as to whether that point had been reached must be resolved in favor of the statute’s applicability. Ibid. The court concluded that the continuing responsibility of the federal agency involved in approving specifications and estimates, along with the awarding of construction contracts, was sufficient major Federal action to require reconsideration of the plans and the filing of an EIS as required by NEPA. This continuing federal involvement has also been recognized in actions in which the court has found the federal agency in compliance. In reviewing the Secretary of the Interior’s actions in connection with construction of electric generating facilities, the Ninth Circuit found major federal actions subsequent to the National Project Participation Agreement, which was entered into prior to NEPA’s effective date. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir.). The approval of rights-of-way and easements for the coal-haul railroad and the approval of stack heights, considered by the court to be federal actions, were both given in 1971, which made them subject to the Act. At the same time, however, a draft EIS was being prepared which indicated consideration of environmental factors prior to each approval, so the court found the agency in compliance. The court emphasized the continuing nature of the compliance, stating: “. . . The fact that it is not practicable to reassess the basic course of action does not mean that an environmental impact statement need not be filed prior to a further major action taken pursuant to that basic course of action. . The focus must lie on the practicability of adherence to the requirements of § 102(2)(C) [§ 4332(2)(C)] as regards each major federal action contemplated, not on the project as an entirety.” Ibid., 1282-1283. (Emphasis the court’s). Several cases dealing specifically with urban renewal projects have adopted the theory just set forth. In a challenge to the complex area renewal project in the city of Boston for which no impact statement had been filed, the First Circuit remanded the case to the district court to make findings regarding the status of amendments to the contract made after NEPA’s effective date as major federal actions. Jones v. Lynn, 477 F.2d 885 (1st Cir.). The plan had been initially approved in 1967, but in 1970 the contract was amended to allow an authorized increase in the interest paid on temporary loan notes and in 1972 to increase the relocation grant and the temporary loan authorization. The court there rejected arguments that Congress intended to exempt projects whose plans had previously been approved from NEPA coverage, finding the “continuing responsibility” language of section 4331 as well as the “to the fullest extent possible” phrasing of section 4332 to indicate an environmental role for a federal agency as long as it remains meaningfully involved in a project. In another suit involving urban renewal in Boston, the district court found that with one-third of the original funding still to be disbursed, there was major federal action contemplated sufficient to justify the granting of a preliminary injunction halting demolition of the threatened buildings. Boston Waterfront Residents Ass’n, Inc. v. Romney, 343 F.Supp. 89 (D.Mass.). See also Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323 (S.D.N.Y.). With this ongoing project, the application of NEPA must be considered in relation to the particular matter or structure being evaluated. We are concerned with the historical value of a single structure in a very large project. This can certainly be separated from the other elements and the burden of compliance with the regulations compared with any interference or stoppage of the project or of substantial elements. HUD has treated this building separately in its negotiations and administratively as evidenced by the fact it was not demolished and has been contracted to be sold as a separate structure. This balancing is the theory of the cited highway cases and the Boston cases, and is certainly a realistic and practical view. This is what the trial court concluded. Furthermore, this is no more than what the HUD regulations contemplate. The judgment of the trial court is AFFIRMED for the reasons herein set forth.

Sac & Fox Nation of Missouri v. Norton

BRISCOE, Circuit Judge Plaintiffs Sac and Fox Nation of Missouri, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, the Governor of the State of Kansas, appeal the district court’s dismissal of their action. Plaintiffs sought to prevent the Secretary of the Interior from taking a tract of land in downtown Kansas City, Kansas, into trust on behalf of the Wyandotte Tribe of Oklahoma, and approving gaming activities on that tract of land under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701-19. The district court dismissed the action for failure to join the Wyandotte Tribe as a necessary and indispensable party. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse the district court’s dismissal. With respect to the merits of plaintiffs’ actions, which we reach because the district court issued alternative holdings, we conclude (1) Pub.L. 98-602 imposed a nondiscretionary duty on the Secretary to acquire land in trust for the Wyandotte Tribe; (2) the Secretary was not required to comply with the National Environmental Policy Act or the National Historical Preservation Act before acquiring land pursuant to Pub.L. 98-602 because the exercise of the Secretary’s duty to acquire the land was nondiscretionary; (3) the Secretary acted arbitrarily in determining that only Pub.L. 98-602 funds were used to acquire the tract of land in downtown Kansas City; and- (4) the Secretary erred in approving gaming activities on the acquired tract of land. We remand the case to the district court with directions to enter partial judgment .consistent with our holdings and to remand in part to the Secretary for further consideration of whether Pub.L. 98-602 funds were used for the acquisition. I. The underlying facts of this case are largely uncontroverted. Between 1795 and 1842, the Wyandotte Tribe (the Wyandottes) ceded much of their territory in southeastern Michigan and northern Ohio to the United States. This culminated with the signing of a March 17, 1842, treaty in which the Wyandottes ceded all of their remaining land in Michigan and Ohio in return for certain payments and a promised 148,000 acre reservation west of the Mississippi River. In December 1843, the Wyandottes acquired from the Delaware Nation of Indians thirty-six sections of land (23,040 acres) in Kansas situated at the point of the junction of the Missouri and Kansas Rivers (an area now known as Wyandotte County, Kansas). In 1850, the United States reimbursed the Wyandottes for the purchase of the Kansas land to fulfill its obligation under the 1842 treaty. In 1855, the Wyandottes entered into another treaty with the United States and agreed to dissolve the tribe, become United States citizens, and cede all of their lands to the United States, which in turn would divide the land among the former members of the tribe. The 1855 treaty contained one relevant exception to the Wyandottes’ cession agreement: “The portion now enclosed and used as a public burying-ground, shall be permanently reserved and appropriated for that purpose.” Admin. Record at 8. That tract, known as the Huron Cemetery, is the focal point of this litigation. The 1855 treaty resulted in the splintering of the Wyandottes into two groups— those who accepted citizenship and those who did not. Those who accepted citizenship and received portions of the ceded land are known as the “Absentee” or “Citizen” Wyandots. The small group (approximately 200) who did not accept citizenship and did not receive any of the ceded land were officially reconstituted by Congress in 1867 as the Wyandotte Tribe. The reconstituted tribe settled in Oklahoma on land that had formerly belonged to the Seneca Indians. In 1906, Congress approved an act granting authority to the Secretary of the Interior to sell the Huron Cemetery. Act of June 21, 1906, 34 Stat. 348. The sale never occurred, however, and in 1913, Congress repealed the authority to sell. Act of Feb. 13, 1913, 37 Stat. 668. In 1916, Congress appropriated $10,000 for the “preservation and improvement” of the Huron Cemetery “owned by the government of the United States, the use of which was conveyed by treaty to the Wyandotte Tribe of Indians.” Act of Sept. 8, 1916, 39 Stat. 844. In 1918, the United States and the City of Kansas City, Kansas, entered into a personal care contract for maintenance of the Huron Cemetery. The contract provided that the City of Kansas City would “forever” maintain and care for the cemetery, furnish police protection in and around the cemetery, and furnish electrical energy free of charge for maintenance of the electric lights inside the Huron Cemetery. See Pis. Br. at 16. In 1956, consistent with the then-favored policy of promoting assimilation of tribal members, Congress enacted a law providing “for the termination of Federal supervision over the trust and restricted property of the Wyandotte Tribe of Oklahoma and the individual members thereof, and for a termination of Federal services furnished to such Indians because of their status as Indians.” Admin. Record at 26 (Pub.L. No. 84-887, 70 Stat. 893 (1956)). In pertinent part, the law directed that the Huron Cemetery be sold by the United States. Title to the tract of land in Kansas City, Kansas, that was reserved for a public burying ground under article 2 of the treaty dated January 31, 1855 ... with the Wyandotte Tribe ... shall be transferred or sold ... and the proceeds from any sale of the land may be used to remove and reinter the remains of persons who are buried there, to move any monuments now located on the graves, and to erect at reasonable cost one appropriate monument dedicated to the memory of the departed members of the Wyandotte Tribe. Id. at 27. The sale of the Huron Cemetery never occurred. This was due, apparently in part, to litigation filed against the United States by a group of Absentee Wyandots and the City of Kansas City, Kansas. The result, under the language of the 1956 Act, was that the Wyandotte Tribe was never actually terminated. Id. at 29 (“Upon removal of Federal restrictions on the property of the tribe ..., the Secretary shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to the affairs of the tribe and its members has terminated.”). In 1978, Congress enacted a law reinstating to the Wyandotte Tribe all rights and privileges that it might have lost under the 1956 Act. Pub.L. No. 95-281, 92 Stat 246 (1978) (codified at 25 U.S.C. § 861). In 1984, Congress enacted legislation providing for the appropriation and distribution of money in satisfaction of judgments awarded to the Wyandottes by the Indian Claims Commission and the Court of Claims. See Pub.L. 98-602, 98 Stat. 3149 (1984). The judgments were compensation for lands in Ohio that the Wyan-dottes had ceded to the United States in the 1800s. Under the 1984 law, Congress directed that 20% of the allocated funds “be used and distributed in accordance with” a series of directives. Key among the directives, for purposes of this case, was one providing that “[a] sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.” Admin. Record at 77 (98 Stat. 3151). In 1988, Congress enacted the IGRA. Generally speaking, the IGRA prohibits gaming “on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988.” 25 U.S.C. § 2719(a). One exception allows gaming on trust lands acquired by the Secretary after October 17, 1988, if the “lands are located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988.” Id. § 2719(a)(1). The general prohibition of gaming on lands acquired by the Secretary in trust can also be avoided if the Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination. Id. § 2719(b)(1)(A). There are also other exceptions that are not relevant here.. Due to its meager financial resources and the dim prospects for gaming on its Oklahoma reservation, the Wyandottes began a series of efforts aimed at conducting gaming activities at various sites in Kansas. In the early 1990s, the Wyan-dottes attempted, unsuccessfully, to have the Secretary take into trust on behalf of the tribe a parcel of land in Park City, Kansas. In 1994-95, the Wyandottes attempted, again unsuccessfully, to claim they were entitled to receive as “excess property” a former federal courthouse located in downtown Kansas City, Kansas, near the Huron Cemetery. In April 1995, the Wyandottes authorized their chief to purchase four tracts of land in downtown Kansas City, Kansas, all of which abutted the Huron Cemetery. Included among those tracts was a .52 acre tract referred to by the parties as the “Shriner Tract,” upon which stands the former Shrine Temple. The tribal resolutions specifically referenced Pub.L. 98-602 (the law providing for the use of $100,000 in allocated funds to purchase land for the Wyandottes), and provided that the purchase of the property would use funds distributed to the Wyandottes under section 105(b)(1) of the statute. The resolution also announced the Wyandottes’ intent to conduct gaming on the property after its acquisition. On January 29, 1996, the Wyandottes filed with the Secretary a Fee to Trust Land Acquisition Application for the four tracts of land. The application indicated that the Wyandottes planned “to develop and operate a 50,000 square foot Class II and Class III gaming facility” on the land. Admin. Record at 96. On February 13, 1996, the Associate Solicitor for the Division of Indian Affairs at the Department of Interior issued an opinion that the provisions of Pub.L. 98-602 mandated the Secretary to acquire the tracts of land in trust on behalf of the Wyandottes. ApltApp. at 462. This opinion further concluded that, because the acquisition was mandated and thus non-discretionary, neither the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., nor the provisions of the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq., applied. Finally, the opinion concluded that the Huron Cemetery was a “reservation” for purposes of IGRA, and that the Wyandottes could conduct gaming on the property pursuant to 25 U.S.C. § 2719(a)(1), as long as they met the other applicable requirements of IGRA. The Associate Solicitor subsequently reaffirmed these conclusions in response to an inquiry from the Director of the Indian Gaming Management Staff for the BIA and challenges by the plaintiffs. In doing so, he emphasized that any future actions regarding the acquired property would require compliance with the NEPA and the NHPA. In mid-April 1996, the Wyandottes narrowed the scope of their acquisition request to the Shriner Tract. It is unclear from the record precisely why they did so. After reviewing the Associate Solicitor’s opinions, the Director of the -Indian Gaming Management Staff for the BIA recommended to the Assistant Secretary for Indian Affairs that the Shriner Tract be taken into trust for the Wyandottes. The Assistant Secretary concurred in the recommendation and directed the BIA Area Director for the Muskogee Area Office to take action. On June 12,1996, pursuant to applicable Department of Interior regulations, the Department of the Interior published in the Federal Register a Notice of Intent to take the Shriner Tract into trust for the benefit of the Wyandottes. See 25 C.F.R. § 151.12(b). The purpose of the notice was to allow interested parties to seek judicial review of the proposed action. On July 12, 1996, plaintiffs filed this action against the Secretary in federal district court challenging his decision to acquire the Shriner Tract in trust for the Wyandottes and his conclusion that the Wyandottes could lawfully conduct gaming on the acquired property under IGRA. Within hours of filing suit, plaintiffs sought and received a temporary restraining order (TRO) preventing the Secretary from taking the Shriner Tract into trust on behalf of the Wyandottes. The Wyandottes immediately moved to intervene to challenge the TRO. The Wyandottes also filed a notice of interlocutory appeal seeking to appeal the TRO. On July 15, 1996, this court dissolved the TRO, noting that documents submitted by the Wyandottes indicated that if the contract for sale of the Shriner Tract was not closed that same day, “the right of the Secretary to acquire that property in trust” would expire. Aplt.App. at 57. In order “to preserve the status quo,” this court dissolved the TRO “subject to the conditions which constitute the law of this ease, that the respective rights of the parties to obtain judicial review of all issues which have been raised in the complaint below shall be preserved, including standing of all parties, jurisdiction, compliance by the Secretary with all requirements of law, and the ultimate question of whether gaming shall be permitted on the subject land.” Id. at 58. Following the issuance of this court’s order, the Secretary consummated the proposed transaction by purchasing the Shriner Tract and taking it into trust on behalf of the Wyandottes. After engaging in limited discovery, plaintiffs filed a motion seeking to reverse the Secretary’s taking of the property into trust for the Wyandottes and to obtain a declaratory judgment that the Huron Cemetery was not a “reservation” of the Wyandottes for purposes of IGRA. The district court rejected plaintiffs’ motion and dismissed the action. In doing so, the district court concluded that “the Wyan-dotte Tribe [wa]s a necessary party to th[e] litigation under FED.R.CIV.P. 19(a),” and that “the Wyandotte Tribe [wa]s a sovereign entity capable of asserting sovereign immunity.” ApltApp. at 144. The court also concluded that, even though the Wyandottes voluntarily intervened as a defendant, there had been no clear or unequivocal waiver of sovereign immunity “as to either taking the Shriner Tract into trust or declaring the Huron Cemetery to be ‘reservation’ land.” Id. at 148. Further, the court concluded the Wyandottes were an indispensable party because (1) “[a]ny judgment against the Wyandotte Tribe in its absence would be extremely prejudicial to its land and economic interests,” (2) “[a] judgment issued absent the presence of the Wyandotte Tribe would only lead to litigation attacking the judgment, and thus could be considered inadequate,” (3) “there may be an alternative venue for tackling the issues of casino gambling on the Shriner Tract and the status of the Huron Cemetery” because the Secretary had “indicated that some statutory considerations may apply to future actions relating to the property” and “the negotiation and approval of gaming compacts remain[ed] to be done.” Id. at 149. The district court issued alternative holdings on the merits of all but one of the issues raised by the plaintiffs. First, the court agreed with the Secretary that he was required by Pub.L. 98-602 to acquire the Shriner Tract in trust for the Wyan-dottes. Second, the court rejected plaintiffs’ assertion that the Secretary acted arbitrarily or capriciously by failing to scrutinize whether Pub.L. 98-602 funds were actually used to purchase the Shriner Tract. The district court noted that the Secretary had accepted the representation of the Wyandottes on this matter and there was evidence in the record reflecting the Tribe’s commitment to use Pub.L. 98-602 funds for the purchase. Third, the court rejected plaintiffs’ argument that the Secretary acted improperly by acquiring the Shriner Tract without engaging in any NEPA or NHPA analysis. The court concluded that, because the Secretary was performing a nondiscretionary duty by taking the tract into trust for the tribe, neither the NEPA nor the NHPA applied to the decision. Finally, the district court refrained from deciding the question of whether the Huron Cemetery constituted a “reservation” for purposes of IGRA. In doing so, the court stated it was “convinced that the issue c[ould] be determined in another judicial forum under different circumstances which d[id] not require a court to ignore settled case law regarding sovereign immunity and the waiver of sovereign immunity.” Id. II. We begin by addressing whether the Wyandotte Tribe is a necessary and indispensable party to this action. “The question of whether an absent party is necessary and/or indispensable is resolved by applying Rule 19 of the Federal Rules of Civil Procedure.” Davis v. United States, 192 F.3d 951, 957 (10th Cir.1999); see Rishell v. Jane Phillips Episcopal Mem’l Med. Ctr., 94 F.3d 1407, 1411 (10th Cir.1996) (indicating that a court must determine whether the party in question is necessary under Rule 19(a) before proceeding to decide whether the party is indispensable under Rule 19(b)). A district court’s Rule 19 determinations are reviewed by this court under an abuse of discretion standard. Id. Any legal conclusions underlying a district court’s Rule 19 determinations, however, are reviewed de novo. Id. Rule 19(a) defines those persons who should be joined as parties to an action (and thus are considered necessary parties to the action): A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). It appears from the record that the district court based its Rule 19(a) ruling in large part upon assertions from the Wyandotte Tribe and the Secretary that the Wyandotte Tribe was a necessary party to this action. ApltApp. at 144. We conclude that application of Rule 19(a) demonstrates the Wyandotte Tribe is not a necessary party to this action. The first consideration under Rule 19(a) is whether, in the absence of the Wyan-dotte Tribe, complete relief could be accorded among the persons already parties to the action. In our view, the answer is clearly “yes.” Because plaintiffs’ action focuses solely on the propriety of the Secretary’s determinations, the absence of the Wyandotte Tribe does not prevent the plaintiffs from receiving their requested declaratory relief (i.e., a determination that the Secretary acted arbitrarily and capriciously (a) in taking the Shriner Tract into trust for the Wyandotte Tribe, (b) by failing to conduct an NEPA or NHPA review, (c) by failing to confirm that Pub.L. 98-602 funds were used, and (d) by concluding the Huron Cemetery was a “reservation” for purposes of IGRA). Moreover, we are not persuaded there is a likelihood of further lawsuits “involving essentially the same subject matter.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1604 at 45M:6 (2d ed.1986). The second consideration under Rule 19(a) is whether the Wyandotte Tribe claims an interest relating to the subject of this action and, if so, whether disposition of this action in the Wyandotte Tribe’s absence may as a practical matter impair its ability to protect that interest or subject any of the persons already parties to a substantial risk of inconsistent obligations. It is undisputed the Wyandotte Tribe has an economic interest in the outcome of this action. More specifically, the Wyandotte Tribe’s ability to conduct gaming activities on the Shriner Tract will survive only if all of the Secretary’s determinations regarding the Shriner Tract are upheld. The potential of prejudice to the Wyandotte Tribe’s interests is greatly reduced, however, by the presence of the Secretary as a party defendant. As a practical matter, the Secretary’s interest in defending his determinations is “virtually identical” to the interests of the Wyandotte Tribe. See Rishell, 94 F.3d at 1412; see also Washington v. Daley, 173 F.3d 1158, 1167-68 (9th Cir.1999) (concluding Indian tribes were not necessary parties to actions filed by State of Washington against Secretary of Commerce challenging regulation allocating groundfish catches to tribes, inasmuch as the Secretary and the tribes had virtually identical interests and the United States could therefore adequately represent the tribes); 3A James Moore, Moore’s Federal Practice ¶ 19.07[2.1], at 19-106 (2d ed.1995) (“the fact that the absent person may be bound by the judgment does not of itself require his joinder if his interests are fully represented by parties present”). Further, we are not convinced that the Secretary (or any other party to this suit) would be subjected to a substantial risk of multiple or inconsistent obligations in the absence of the Wyandotte Tribe. As noted above, nothing in the record indicates the possibility of additional lawsuits involving this same subject matter. See Wright, supra, § 1604 at 62 (“The key is whether the possibility of being subject to multiple obligations is real; an unsubstantiated or speculative risk will not satisfy the Rule 19(a) criteria.”). Even assuming, arguendo, the Wyandotte Tribe could be considered a necessary party under Rule 19(a), we are not persuaded the Wyandotte Tribe is an indispensable party under Rule 19(b). A necessary party can be considered an indispensable party only if, “in equity and good conscience,” a court should not allow the action to proceed in the party’s absence. Fed.R.Civ.P. 19(b). To make this determination, a court must balance the following four factors set forth in Rule 19(b): [Fjirst, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der. Fed.R.Civ.P. 19(b). Applying these factors, we conclude the district court abused its discretion in finding the Wyandotte Tribe was an indispensable party. With respect to the first factor, it is true that the Wyandotte Tribe has an economic interest in proceeding with gaming activities on the Shriner Tract. As previously noted, however, the potential of prejudice to that interest is offset in large part by the fact that the Secretary’s interests in defending his decisions are substantially similar, if not virtually identical, to those of the Wyandotte Tribe. Further, we note that the Wyandotte Tribe has filed pleadings at virtually all stages of this litigation and has consistently offered its views regarding why the Secretary’s actions were appropriate. Because the potential for prejudice is minimal, “we need not be concerned with the second factor, which addresses the availability of means for lessening or avoiding prejudice.” Ri-shell, 94 F.3d at 1412. With respect to the third factor, a judgment rendered in the Wyandottes’ absence would be adequate in our view because, regardless of the presence or absence of the Wyandottes, the claims in this action turn solely on the appropriateness of the Secretary’s actions, and the Secretary is clearly capable of defending those actions. Moreover, as noted above, the absence of the Wyandotte Tribe does not prevent the plaintiffs from obtaining the relief requested in their complaint. Finally, and perhaps most important, there does not appear to be any alternative forum in which plaintiffs’ claims can be heard. Although it is possible the Secretary might later require NEPA or NHPA compliance in order for the Wyandotte Tribe to take action with respect to the Shriner Tract, the instant action is the only opportunity for plaintiffs to challenge the remainder of the Secretary’s determinations. See Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir.1996) (noting that a court should be “extra cautious” before dismissing an action pursuant to Rule 19(b) if no alternative forum exists); Rishell, 94 F.3d at 1413 (noting that “[t]he absence of an alternative forum would weigh heavily, if not conclusively against dismissal”). In summary, we conclude the district court erred in characterizing the Wyan-dotte Tribe as a necessary and indispensable party and dismissing the plaintiffs’ action under Rule 19. III. We turn to the merits of plaintiffs’ action. Plaintiffs challenge the Secretary’s determinations that: (1) acquisition of the Shriner Tract was mandated by Pub.L. 98-602; (2) NEPA and NHPA analyses were unnecessary prior to acquisition of the Shriner Tract; and (3) only Pub.L. 98-602 funds were used to purchase the Shriner Tract. In addition, plaintiffs challenge the Secretary’s determination that the Huron Cemetery is a “reservation” for purposes of IGRA. Plaintiffs’ challenges are brought pursuant to the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706. Under the APA, we cannot set aside an agency decision unless it fails to meet statutory, procedural or constitutional requirements, or unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A)-(D); see Public Lands Council v. Babbitt, 154 F.3d 1160, 1166 (10th Cir.1998), aff'd 529 U.S. 728, 120 S.Ct. 1815, 146 L.Ed.2d 753 (2000). Although the district court passed upon all but one of the plaintiffs’ challenges to the Secretary’s decisions, we owe no deference to the district court’s decision. Rather, the scope of our review is de novo. Public Lands Council, 154 F.3d at 1166. Because the agency decisions at issue here involve interpretations of federal statutes, our review is guided by the principles announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question “always, is ... whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. But if the statute is silent or ambiguous, we are generally required to defer to the agency’s interpretation “if it is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. More specifically, if we find “an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” we must accept the agency’s interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843-44, 104 S.Ct. 2778. Alternatively, if we do not find an express delegation by Congress, but nevertheless perceive an implicit delegation to the agency on the particular question, we must accept a “reasonable interpretation made by the administrator of [the] agency.” Id. at 844, 104 S.Ct. 2778. Was acquisition of the Shriner Tract mandated by Pub.L. 98-602? Plaintiffs contend the Secretary violated the APA by concluding he had a nondiscretionary duty under Pub.L. 98-602 to acquire the Shriner Tract in trust for the Wyandotte Tribe. According to plaintiffs, the Secretary remained obligated “to satisfy the requirements of the trust statute, 25 U.S.C. § 465, and regulations, 25 C.F.R. §§ 151.1 et seq., and to exercise his discretion as required by law in processing any trust application” filed by Wyandotte Tribe pursuant to Pub.L. 98-602. Pis. Br. at 88. Generally speaking, the Secretary has broad discretion under the Indian Reorganization Act of 1934(IRA) (the “trust statute” referred to by plaintiffs), 25 U.S.C. § 465, to decide whether to acquires land in trust on behalf of Indian tribes. That statute authorizes the Secretary, “in his discretion, to acquire ... any interest in lands ..., within or without existing reservations, ... for the purpose of providing land for Indians.” Id. When the Secretary acts pursuant to the IRA, title to any such lands is “taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.” Id. To assist in deciding which lands to take into trust under the IRA, the Secretary has promulgated regulations (the “trust regulations” referred to by plaintiffs). See 25 C.F.R. §§ 151 et seq. In pertinent part, those regulations set forth a “Land acquisition policy,” which provides: (a) Subject to the provisions contained in the acts of Congress which authorize land acquisitions, land may be acquired for a tribe in trust status: (1) when the property is located within the exterior boundaries of the tribe’s reservation or adjacent thereto, or within a tribal consolidation area; or (2) when the tribe already owns an interest in the land; or (3) when the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing. 25 C.F.R. § 151.3(a). Notwithstanding the IRA and its implementing regulations, the Secretary concluded that his discretion regarding whether to acquire the Shriner Tract on behalf of the Wyandotte Tribe was curtailed by Pub.L. 98-602. The Secretary based his conclusion on Section 105 of Pub.L. 98-602, entitled “DISTRIBUTION TO WYANDOTTE TRIBE OF OKLAHOMA,” which provides in pertinent part: (b) Twenty percent of the funds allocated to the Wyandotte Tribe of Oklahoma pursuant to section 103(b) shall be used and distributed in accordance with the following general plan: (1) A sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe. :¡í >;< íjí í¡; # (c)(1) Except as provided in paragraph 2 and notwithstanding any other provision of law, the approval of the Secretary for any payment or distribution by the Wyandotte Tribe of Oklahoma of any funds described in subsection (b) ... shall not be required and the Secretary shall have no further trust responsibility for the investment, supervision, administration, or expenditure of such funds. (2) The Secretary may take such action as the Secretary may determine to be necessary and appropriate to enforce the requirements of this title. Admin. Record at 77 (98 Stat. 3151). In our view, the Secretary's interpretation is easily affirmed under the first test set forth in Chevron, i.e., “whether Congress has directly spoken to the precise question at issue.” 467 U.S. at 842, 104 S.Ct. 2778. Although subsection (b)(1) of Section 105 could be construed as ambiguous when examined in isolation, subsection (c)(1) resolves any potential ambiguities by indicating that, “notwithstanding any other provision of law, the approval of the Secretary for any payment ... by the Wyan-dotte Tribe ... of any funds described in subsection (b) ... shall not be required.” See United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (indicating that statutory terms are often “clarified by the remainder of the statutory scheme”). Subsection (c)(1) clearly indicates that the Secretary shall have no discretion in deciding whether to take into trust a parcel of land purchased by the Wyandotte Tribe with Pub.L. 98-602 funds. We therefore agree with the Secretary and the district court that, notwithstanding the provisions of the IRA, Pub.L. 98-602 imposed a nondiscretionary duty on the Secretary. Was NEPA or NHPA analysis necessary prior to acquisition of Shriner Tract ? Plaintiffs contend the Secretary violated the APA by determining it was unnecessary for the agency to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., or the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq., prior to acquiring 'the Shriner Tract in trust for the Wyandotte Tribe. In response, the Secretary contends analysis under the NEPA and the NHPA is unnecessary due to the mandatory nature of the acquisition. In other words, the Secretary contends, because there was no discretion involved in acquiring the Shriner Tract, NEPA and NHPA analysis would have been pointless. Both the NEPA and the NHPA require federal agency heads to take certain steps prior to engaging in certain actions. The NEPA delineates a procedure for federal agencies to follow when any “major federal action” they propose to undertake could pose potential environmental harms. Somewhat similarly, the NHPA requires federal agency heads to take into account the impact of any “Federal or federally assisted undertaking” on sites listed or eligible for listing in the National Register of Historic Places. See 16 U.S.C. § 470f. The NHPA also requires that the Advisory Council on Historic Preservation be given a reasonable opportunity to comment on such undertakings. Id. Because Pub.L. 98-602 affords the Secretary no discretion with respect to the Shriner Tract acquisition, we conclude the Secretary reasonably determined that no NEPA or NHPA analysis was required prior to the acquisition. Several circuits have held that NEPA compliance is unnecessary where the agency action at issue involves little or no discretion on the part of the agency. E.g., Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir.1995) (collecting cases demonstrating that nondiscretionary agency action is excused from the operation of NEPA); Sugarloaf Citizens Ass’n v. FERC, 959 F.2d 508, 513 (4th Cir.1992) (“Other Circuits have held that when an agency has no discretion to consider environmental values implementing a statutory requirement, its actions are ministerial and not subject to NEPA.”); Goos v. ICC, 911 F.2d 1283, 1296 (8th Cir.1990) (“Because the ICC has not been granted any discretion under section 1247(d) to base its issuance of an NITU or CITU on environmental consequences, we agree that it would make little sense to force the ICC to consider factors which cannot affect its decision.”); Milo Cmty. Hosp. v. Weinberger, 525 F.2d 144, 147 (1st Cir.1975) (finding that no EIS was necessary where “consideration of the factors that the appellant has characterized as ‘environmental considerations’ could not have changed the Secretary’s decision”). Although no courts have addressed whether NHPA compliance is necessary in such situations, we are persuaded that a similar rule should apply. Because of the operational similarity between the two statutes, courts generally treat “major federal actions” under the NEPA as closely analogous to “federal undertakings” under the NHPA. E.g., Ringsred v. City of Duluth, 828 F.2d 1305, 1809 (8th Cir.1987). In sum, because the Secretary exercised no discretion in acquiring the Shriner Tract, he reasonably concluded that NEPA or NHPA analysis would have been pointless, since neither could have had any impact on the acquisition. Were Pub.L. 98-602 funds used to purchase the Shriner Tract ? Plaintiffs contend the Secretary acted arbitrarily and capriciously, and against the clear evidence in the agency record, by accepting without scrutiny the Wyandotte Tribe’s representation that the Shriner Tract was purchased with only Pub.L. 98-602 funds. In response, the Secretary contends “[t]here is no reason to believe that the money used to purchase the Shriner tract was anything other than money available under Pub.L. 98-602.” Gov’t Br. at 41-42. Although the Secretary attempts to support his contention by citing various documents contained in the administrative record, the documents in fact suggest that nearly half of the funds used to acquire the Shriner Tract were non-Pub. L. 98-602 funds. First, the Secretary points to an April 12, 1995 resolution of the Wyandotte Tribe authorizing the fee-to-trust application. Although it is true the resolution indicates that Pub.L. 98-602 funds will be used for the proposed acquisition, it in fact states that the Tribe “will purchase the Kansas City Tract with a portion of the PL 602 set aside funds.” Admin. Record at 82 (emphasis added). The reference at best would indicate part of the monies set aside for tribal use in Pub.L. 98-602 would be used in this purchase. Second, the Secretary cites to an April 19, 1996, letter from the Wyandotte Tribe to BIA in which the Tribe outlines its plan for purchasing the Shriner Tract. Although the letter indicates “the Shriner’s land” will be purchased for $100,000 using funds “wired from the [Pub.L. 98-602] trust account maintained by the Mercantile Bank of Joplin, Missouri,” the letter goes on to state that “[t]he funds required for closing on the Shriner’s building [which the Tribe intended to purchase for $80,000] will be wired from another tribal account.” Id. at 269 (emphasis added). In other words, the letter seems to suggest that only the land, but not the building, was purchased with Pub.L. 98-602 funds. Another document cited by the Secretary, an internal e-mail message from one BIA employee to another, seems to suggest that at least some agency employees were aware that the Pub.L. 98-602 funds remaining and available to fund this purchase would not cover the entire purchase price of the Shriner Tract. Based upon these documents, which are not contradicted by any other documents in the record, we conclude the Secretary’s determination that only Pub.L. 98-602 funds were being used for the purchase was not supported by substantial evidence in the record. We therefore reverse with directions to the district court to remand the matter to the Secretary for further consideration of this issue. Is the Huron Cemetery a “reservation” for purposes of IGRA? The final, and indeed critical, issue raised by plaintiffs is whether the Secretary acted arbitrarily or capriciously in concluding that the Huron Cemetery constitutes a “reservation” for purposes of IGRA. The district court did not address the question of whether the Huron Cemetery constitutes a “reservation” for purposes of IGRA. Because the facts relevant to that issue are uncontroverted and the issue thus hinges on a question of statutory interpretation, we have discretion to decide it in the first instance and conclude that doing so is in the interests of judicial economy. E.g., United Food & Commercial Workers Union v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir.1998) (“Although we will generally decline to consider in the first instance issues not considered by the district court, we will make an exception where injustice might otherwise result, or where the issue presents only a question of law.”); Travelers Ins. Co. v. Pataki, 63 F.3d 89 (2d Cir.1995) (concluding that appellate court had discretion to decide in the first instance a question of law not reached by the district court). Plaintiffs contend the Secretary’s determination that the Huron Cemetery is a “reservation” for purposes of IGRA is wrong for several reasons. First, plaintiffs argue that when the land upon which the cemetery now rests was acquired by the Wyandottes from the Delawares, there was never any declaration that it was intended to be the Wyandottes’ reservation. Second, plaintiffs argue that nothing in the 1855 Treaty indicates that the United States or the Tribe intended for the cemetery to operate as a reservation. Third, plaintiffs contend that in enacting IGRA, Congress specifically distinguished between “reservation” and “lands held in trust” by the United States for a tribe. According to plaintiffs, Congress clearly intended for the term “reservation” to include only land that is actually used for the residence of tribal members (and, through use of the phrase “the Tribe’s reservation,” indicated that each Tribe would have only one reservation for purposes of IGRA). Plaintiffs argue that the cemetery does not fall within this definition because it is a free-standing public burial ground, situated more than 200 miles away from the Oklahoma reservation upon which the tribal members actually reside. Fourth, plaintiffs argue that the Wyandotte Tribe has not manifested tribal governmental jurisdiction over the cemetery. Finally, plaintiffs argue that the Secretary’s determination is contrary to public policy as expressed in IGRA. For example, plaintiffs contend, Congress intended by way of IGRA to provide “employment on reservation for tribal members, members who may be traditionally plagued by few employment opportunities unless they leave the reservation.” Pis. Br. at 59. Here, plaintiffs argue, “a casino located in downtown Kansas City, Kansas provides no on-reservation employment for members of the Wyandotte Tribe ..., who reside more than 200 miles away and would have to leave the Oklahoma reservation to work in the facility.” Id. at 59-60. In response, the Secretary contends that he construed the term “reservation,” as used in IGRA, in a manner consistent with its “usual meaning.” According to the Secretary, the phrase originally “referred to any land reserved from an Indian cession to the federal government,” Gov’t Br. at 52 (citing United States v. Winans, 198 U.S. 371, 378, 25 S.Ct. 662, 49 L.Ed. 1089 (1905)), but has since evolved “to include land set aside under federal protection, whether by executive order or otherwise, for the use of tribal Indians, regardless of origin.” Id. Under this definition, the Secretary contends, it is enough that the property at issue has been set aside for some purpose by the federal government, and there is no requirement that tribal members actually reside on the property. The Secretary contends the Huron Cemetery “falls squarely within this definition”: In 1848, the United States approved of, and in 1850, the United States paid for, the Wyandottes’ purchase of Kansas property in satisfaction of the United States’ 1842 promise to the Tribe that it would reserve Kansas lands for the Tribe. In 1855, the Tribe ceded that land to the United States, but the Treaty specifically excepted the Huron Cemetery from the cession. By expressly and unambiguously reserving the cemetery, the treaty gave it the same status as the whole parcel of land had before the cession and allotment. At the very least, as land reserved from an Indian cession to the federal government, the property would fall within the traditional definition of a “reservation.” Id. at 54 (citations omitted). Finally, the Secretary argues that the status of property as a “reservation” under IGRA “is not altered by the failure of a tribe to assert its jurisdiction over land or the assertion of such jurisdiction by others.” Id. at 54-55. Instead, the Secretary argues, “only explicit congressional action can alter a property’s reservation status.” Id. at 55. To resolve this issue, we again return to the Chevron framework. Because IGRA does not specifically define the term “reservation,” the parties agree, as do we, that Congress has not “directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Normally, under Chevron, the next step would be to determine whether the Secretary’s interpretation is based upon a permissible construction of the statute. Significantly, however, neither the Secretary nor the Department of the Interior in general is charged with administering IGRA. When Congress enacted IGRA, it established the National Indian Gaming Commission (Commission) and charged the Commission with the exclusive regulatory authority for Indian gaming conducted pursuant to IGRA. 25 U.S.C. § 2704. That authority includes “promulgating] such regulations and guidelines as it deems appropriate to implement the provisions” of IGRA. 25 U.S.C. § 2706(b)(10). Presumably, the Commission’s authority also includes interpreting any ambiguous phrases or terms contained in IGRA. Reviewing the record in this case, there is no indication that the Commission had any involvement in deciding whether the Huron Cemetery constituted a “reservation” for purposes of IGRA. To the contrary, the record indicates that a preliminary determination of the issue was first made by the Associate Solicitor for the Division of Indian Affairs. That determination was reviewed and adopted by the Director of the Indian Gaming Management Staff. Further, there is no indication in the record of any connection between the Indian Gaming Management Staff and the Commission. Finally, the determination was adopted by the Assistant Secretary for Indian Affairs. No documents indicate that the determination was reviewed by the Commission. Because the Secretary lacked authority to interpret the term “reservation,” as used in IGRA, we owe no deference to his interpretation. E.g., Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (refusing to defer to Secretary of Labor’s interpretation of specific provision of the Migrant and Seasonal Agricultural Worker Protection Act because Congress had not charged the Secretary with overseeing the statute); Passamaquoddy Tribe v. Maine, 75 F.3d 784, 793-94 (1st Cir.1996) (refusing to grant Chevron deference to Indian Gaming Commission’s interpretation of Maine Indian Claims Settlement Act of 1980 because the Secretary of the Interior, and not the Commission, was charged with administering the statute); cf. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) (refusing to sanction “ ‘unauthorized assumption by an agency of major policy decisions’ ”) (quoting American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965)). Instead, we proceed to decide for ourselves the meaning of the term “reservation,” as used in IGRA. “The starting point for our interpretation of a statute is always its language.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (citing Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). Unlike other federal statutes which contain specific definitions of the term “reservation,” e.g., 7 U.S.C. § 2012 (1994) (defining “reservation” as “the geographically defined area or areas over which a tribal organization ... exercises governmental jurisdiction”); 25 U.S.C. § 1452(d) (1994) (defining “reservation” to include “Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act”), neither the specific statute at issue here, nor IGRA in general, defines the term “reservation.” We therefore must infer, at least initially, that Congress intended “ ‘to incorporate the established meaning of the[ ] term[ ].’ ” Reid, 490 U.S. at 739, 109 S.Ct. 2166 (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981)). The parties disagree on the established meaning of the term “reservation.” The Secretary suggests its established meaning broadly refers to any parcel of land set aside by the federal government for Indian use. This position is arguably supported by language found in older Supreme Court cases, e.g., Spalding v. Chandler, 160 U.S. 394, 403, 16 S.Ct. 360, 40 L.Ed. 469 (1896) (indicating that the creation of a reservation confers upon the tribe “the right to possess and occupy the lands for the uses and purposes designated”), as well as by current dictionary definitions of the term. See Black’s Law Dictionary 1307 (6th ed.1990) (defining the term “reservation,” in part, as “[a] tract of land (under control of the Bureau of Indian Affairs) to which an American Indian tribe retains its original title to ownership or which has been set aside for its use out of the public domain”). In contrast, plaintiffs argue that the established common-law meaning of the term “reservation,” as used in the context of Indian tribes, refers to land set aside by the federal government for the occupation of tribal members. Plaintiffs’ position is supported by the leading treatise on Indian law, which indicates that “[t]he term ‘Indian reservation’ originally had meant any land reserved from an Indian cession to the federal government regardless of the form of tenure.” F. Cohen, Handbook of Federal Indian Law at 34 (1982 Edition). The treatise goes on to state: “During the 1850’s, the modern meaning of Indian reservation emerged, referring to land set aside under federal protection for the residence of tribal Indians, regardless of origin. By 1885 this meaning was firmly established in law.” Id. at 34-35. Without deciding which party’s view of the established meaning of the term “reservation” is correct, we conclude that the interpretation forwarded by plaintiffs is the one Congress intended to adopt when it enacted IGRA. As noted by plaintiffs, IGRA’s use of the phrase “the reservation of the Indian tribe” in 25 U.S.C. § 2719(a)(1), suggests that Congress envisioned that each tribe would have only one reservation for gaming purposes. See generally Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (“We consider not only the bare meaning of the word [at issue] but also its placement and purpose in the statutory scheme.”); King v. St. Vincent’s Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (“the meaning of statutory language, plain or not, depends on context”). Further, as pointed out by plaintiffs, IGRA specifically distinguishes between the “reservation” of an Indian tribe and lands held in trust for the tribe by the federal government. E.g., 25 U.S.C. § 2719(a)(l)-(2), (b)(1)(B). Under the Secretary’s proposed interpretation of the term “reservation,” the fine between the two would arguably be muddied. In other words, if the term “reservation” were to encompass all land held in trust by the government for Indian use (but not necessarily Indian residence), then presumably most, if not all, trust lands would qualify as “reservations.” In turn, all of those parcels could be used in the manner in which the Wyandotte Tribe seeks to use the Huron Cemetery and its surrounding tracts. Applying what we believe to be the proper definition of the term “reservation” for purposes of IGRA to the facts of this case, it is apparent that the Huron Cemetery does not fall within that definition. Although the Huron Cemetery was reserved by the federal government in the 1855 treaty, it is uncontroverted that the reservation was made strictly for purposes of preserving the tract’s status as a burial ground. It is further uncontroverted that, since the time of the 1855 treaty, the Huron Cemetery has not been used by the Wyandotte Tribe for purposes of residence. Rather, the tract, which is now separated by a significant distance from the actual reservation of the Wyandotte Tribe in Oklahoma, has consistently maintained its character as a public burial ground. For these reasons, we conclude the Secretary’s determination that the Huron Cemetery is a “reservation” for purposes of IGRA, and his resulting determination that the Shriner Tract can be used by the Wyandotte Tribe for gaming purposes under the IGRA (25 U.S.C. § 2719(a)(1)), was incorrect. As the Secretary correctly points out in his brief, these determinations are separate and distinct from whether he was required by Pub.L. 98-602 to acquire the Shriner Tract. Thus, our disagreement with these determinations of the Secretary does not necessarily negate the acquisition itself. IV. The following is a summary of our holdings. The district court erred in dismissing this action on the grounds that the Wyandotte Tribe was a necessary and indispensable party under Fed.R.Civ.P. 19. We therefore REVERSE the judgment of the district court dismissing this action. With respect to the Secretary's acquisition of the Shriner Tract in trust for the Wyan-dotte Tribe, we conclude that Pub.L. 98-602 precluded the normal discretion afforded the Secretary by the Indian Reorganization Act regarding land acquisitions. We further agree with the Secretary that, because the acquisition was nondiscretion-ary, NEPA and NHPA analysis was unnecessary. We conclude, however, that the Secretary’s determination that only Pub.L. 98-602 funds were used for the acquisition was not supported by substantial evidence in the record. Finally, we conclude the Huron Cemetery is not a “reservation” for purposes of IGRA. We therefore REMAND the case with directions to the district court to enter partial judgment consistent with our holdings, and to REMAND in part to the Secretary for further consideration of the question of whether Pub.L. 98-602 funds were used for the acquisition of the Shriner Tract. . According to the record, the spelling of the Tribe’s name has changed over the years. In the 1800s, it was spelled “Wyandot.” .By his opinion dated February 4, 1908, the United States Attorney General concluded the 1855 treaty did not dedicate the land in question to "the genera] public” for cemetery purposes, but rather "the evident intention” of the Wyandottes was "to continue the use of such grounds solely for the burial of their own dead.” 26 Op. Att'y. Gen. 491 (1908). . These members have retained the original spelling of the tribe’s name. . The 1855 treaty specifically afforded individual members of the tribe a limited time to apply for exemption from the provisions of the treaty. Thus, the tribe was never completely extinguished pursuant to the treaty. . In August 1978, the Indian Claims Commission awarded $561,424.21 to the Wyandotte Tribe. The award represented the Wyandotte Tribe's share of the additional compensation awarded to five tribes which ceded approximately three million acres in north central Ohio pursuant to the Fort Industry Treaty of July 4, 1805. Funds to cover the award were appropriated on October 31, 1978. In January 1979, the United States Court of Claims awarded $2,349,679.60 to the Wyandotte Tribe as additional compensation for approximately two million acres of land in northwestern Ohio ceded under an 1817 and an 1818 treaty. The funds to cover this award were appropriated on March 2, 1979. . In In re Sunflower Racing, Inc., 219 B.R. 587, 592 (Bankr.D.Kan.1998), the bankruptcy court in the District of Kansas noted that the Wyandotte Tribe’s "primary income [derived] from small farms and a convenience store on the reservation.” The court further noted that "[s]ince the Wyandotte reservation is located near a number of other tribal reservations conducting gaming without great success, reservation gaming is unattractive to the Wyandotte Tribe.” Id. . We note the Secretary has reversed his position on appeal and now concedes that the Wyandotte Tribe is not a necessary party for purposes of Rule 19(a). See Gov’t Br. at 26 ("In circumstances presented here, we believe (our position in the district court notwithstanding) that Rule 19 does not require dismissal of the challenge to the decision to take this property into trust for the Wyandottes.”) and 29 ("After further consideration, we believe that certain aspects of our Rule 19 argument in the district court were incorrect.’’). That leaves only the Wyandotte Tribe, which has filed a brief with this court discussing the issues on the merits, to assert that the district court’s Rule 19 determination was correct. . We also note that, despite their contentions that they are entitled to sovereign immunity and should be deemed a necessary and indispensable party under Rule 19, the Wyandottes have been heavily involved in defending this action and have filed a brief with this court addressing the merits of all the issues raised by plaintiffs. . Plaintiffs’ argument is based upon their assumption that Section 105(b)(1) of Pub.L. 98-602 applies only if funds allocated under that section are used to purchase a particular parcel of real property. In his appellate brief, the Secretary did not dispute this assumption. At oral argument, however, the Secretary attempted to assert that he concluded, prior to the acquisition, that Section 105(b)(1) required only that the majority of funds used for an acquisition were Pub.L. 98-602 funds. This assertion is not borne out by the record, nor by the arguments in the Secretary’s brief. We therefore disregard it. . Although the Commission is nominally part of the Department of the Interior, the Secretary conceded at oral argument that the Commission functions as an independent entity. In any event, Congress expressly indicated that it was only the Commission that had authority to oversee IGRA. For example, although Congress granted the Secretary interim authority to regulate Indian gaming, that authority was to cease at the point at which the Commission was organized and issued regulations. 25 U.S.C. § 2709. . At oral argument, the Secretary conceded that the Commission had no involvement in the determinations at issue in this case. . In his appellate brief, the Secretary cites to a footnote on the same page of this treatise, while omitting the main text of the treatise which is quoted above. Gov’t Br. at 52. By doing so, the Secretary omits the key phrase "for the residence of tribal Indians,” and attempts to suggest that a "reservation'' is land set aside by the federal government for Indian use. This is inconsistent with the treatise’s description of the "modern meaning” of the term "Indian reservation.” . At oral argument, there was some discussion concerning whether the language of the 1855 treaty may have allowed the Wyandotte Tribe to retain title to the Huron Cemetery. We find no support for such a conclusion. If the intent of the 1855 treaty was to allow the Wyandotte Tribe to retain title to the Huron Cemetery, there would have been no need to specify its intended use. In other words, if the Wyandottes had retained title, they could have done with the tract as they wished, and there would have been no need to outline the intended use in the 1855 treaty. In any event, we note the courts and Congress have consistently read the 1855 treaty as transferring title to the Huron Cemetery to the federal government.

Ely v. Velde

BUTZNER, Circuit Judge: Residents of the Green Springs section of Louisa County, Virginia, appeal from a denial of their application for an injunction to restrain the construction of a penal reception and medical center in their neighborhood until the requirements of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) have been met. The district court — ruling that the state had permissibly transferred federal funds from the penal center to other state projects, and finding no significant federal contact with the center — dismissed the complaint. While we conclude that the facts do not establish that the center has become an irrevocably federal project, we nevertheless hold that if it is to be constructed without compliance with federal environmental Acts, the state must reimburse the federal government for sums initially allocated to the center, but subsequently diverted to other state projects. We therefore reverse the judgment of dismissal, reinstate the complaint, and remand the case for further proceedings. I The factual background pertinent to this appeal is largely undisputed. In Ely 1 we ruled that the proposed federal contribution to the center’s financing was subject to NHPA and that it constituted a major federal action within the meaning of NEPA. We also concluded that the unfettered nature of block grants apportioned to the states by the Law Enforcement Assistance Administration (LEAA) under the Omnibus Crime Control and Safe Streets Act did not exempt federal participation from the requirements of either NEPA or NHPA. Consequently, we held that LEAA could not approve a grant of federal money for construction of the center until it complied with both environmental Acts. At that time, the state had not expended any federal funds on the center or drawn on the LEAA grant. Recognizing that nothing had been done to irretrievably characterize the center itself as a federal project, we declined in Ely I to enjoin the state defendants from proceeding with construction. Thus at the end of 1971, the state was free to relinquish its unexpended grant and begin construction on its own. The state, however, did not undertake the project independently. It elected to rely in part on federal financing. Early in 1972, the state legislature reappropriated unspent funds and appropriated new funds for constructing and equipping the center. The Appropriations Act reflected that the state expected to use “special revenues received from the Federal government” aggregating approximately $1,000,000 in addition to state funds. The source of the federal revenue was the LEAA grant which federal officials had approved after the state had submitted comprehensive plans that included construction of the center at Green Springs. In the meantime state penal officials cooperated with the LEAA to draft an environmental impact statement that would meet the requirements of NEPA. In July 1972, LEAA completed the statement and released it for circulation. Reaction of both federal and state agencies was adverse. Faced with the delay that the unfavorable reception of the environmental impact statement foretold, the state penal officials decided to request withdrawal of the federal grant. They believed that by using only state funds they could let bids at a moment’s notice unencumbered by the necessity of awaiting the satisfactory completion of the Acts’ requirements. At the same time, they were determined to retain the federal funds and reallocate them to other projects. In due course, the state notified the LEAA of its change in plans, and without objection by that agency, the federal funds originally approved for the center were reallocated to other programs in the penal system, including substantial expenditures for a jail in Norfolk, Virginia. II A Fifth Circuit case appears to be the only reported instance of attempted avoidance of NEPA by the transfer of federal funds. There the state, unable to comply with NEPA throughout the length of a highway in San Antonio, Texas, proposed to construct end segments with state and federal funds and the middle segment with state funds. Under the state plan, in which federal authorities acquiesced, the federal funds for the middle segment would be used for other highway construction. Rejecting the state’s proposal, the court pointed out that acceptance would “be giving approval to the circumvention of an Act of Congress.” The court continued, “[t]he supremacy of federal law has been recognized as a fundamental principle of our Government since the birth of the Republic. United States Constitution, Art. VI, cl. 2. The State may not subvert that principle by a mere change in bookkeeping or by shifting funds from one project to another.” While the facts in San Antonio differ from those in the case before us, the principles it expressed furnish sound precedent for our decision. Here, too, Acts of Congress will be subverted if the state builds the center in disregard of NEPA and NHPA while retaining the federal funds initially allocated for its construction. NEPA and NHPA cut across nearly all federal construction financing. They were designed to assure to the fullest extent possible that the expenditure of federal funds would not despoil the environment or adversely affect property which has been officially designated as historically or architecturally significant. A state’s avoidance of NEPA and NHPA, while retaining funds that were granted with the understanding that they would foster the Acts’ objectives, frustrates Congressional intent to preserve the quality of the nation’s environmental and cultural heritage. We are not persuaded by the state’s arguments that a lack of federal contacts or the peculiar nature of LEA A block grants frees the state to reallocate the center’s federal funds to other projects. Our earlier decision, Ely I, established that projects funded in part by block grants were subject to the requirement of NEPA and NHPA. That case also confirmed that federal contacts were sufficient to make LEAA’s participation in financing the center a major federal project. We find no occasion for relitigating these issues. Nor do we agree that the transfer of funds to new projects, as distinguished from existing projects, purges the state’s bookkeeping transaction. The selection of new projects for the center’s federal funds may make it impossible, as the state asserts, to prove that the federal funds released state funds for the center. But this argument misses the mark. The significant point is that the state is retaining federal funds that it obtained for the center on the premise that it would comply with federal environmental Acts, while at the same time it is planning to construct the center without compliance. It may well be that even if the state had never applied for funds for the center, its overall block grant would not have been diminished, because such grants are apportioned on the basis of population and the state could have proposed projects of a lower priority than the center to secure approval of equivalent funds. But this we believe is irrelevant. A block grant is not the same as unencumbered revenue sharing, for the grant comes with strings attached. The state voluntarily requested federal participation in the center and in this manner obtained construction funds conditioned upon compliance with NEPA and NHPA. The federal grant thus served national policy in two respects: it contributed to law enforcement in Virginia, and it encouraged preservation of environmental values at Green Springs. The state, we hold, is not entitled to use this money without fully observing both aspects of the national policy the grant was designed to promote. We conclude therefore that the district court erred in approving the state’s decision to retain the funds, bypass NEPA and NHPA, and build the center. Ill The center’s neighbors ask us to enjoin construction until the requirements of NEPA and NHPA are met. This is the remedy that was deemed appropriate by the San Antonio court, and the residents of the Green Springs section insist that it is the only remedy that will afford them the relief to which they are entitled. Were this a highway construction case we would not hesitate to grant an injunction. But here we believe that a less drastic remedy is suitable. Unlike the segment of a highway whose location has been approved, the construction of the center does not involve an inseparable relationship with other federally financed segments. LEAA’s approval of construction funds for the center involved only a single project. We conclude that the center had not become an irrevocably federal project at the time the state withdrew its request for funds for the following reasons: 1) construction had not then begun; 2) no part of the. federal grant was ever spent on any phase of the project; 3) unlike highways, no other federal project is closely related to construction of the center, nor is its construction an indispensable part of a larger project in which the federal government is participating. While the center itself is not branded as federal, the LEAA funds allocated for its construction were impressed with a commitment to preserve the environment of Green Springs. Consequently, the state cannot retain the fruits of federal partnership in this venture by transferring the funds to other projects. We hold, therefore, that the state independently can construct the center at Green Springs by renouncing federal aid, but it cannot couple its renunciation with retention of the federal aid. On remand the district court may choose from a wide selection of remedies. The state may wish to proceed with construction of the center, and it should be permitted to do so, provided it first reimburses the federal government for funds previously allocated to the center but subsequently diverted to other projects when it withdrew its request for federal funding. In lieu of reimbursement, the state may wish to reapply for federal aid, knowing that in this event LEAA must satisfy the requirements of NEPA and NHPA before construction may proceed. On the other hand, the state may desire to abandon its plan to use the Green Springs site for a penal facility. It should be permitted to do this without reimbursement, because abandonment will afford the residents of Green Springs relief similar to the injunction they seek, and LEAA has already acknowledged that the reallocation of the funds accords with the program it administers. The suggestion of these alternatives is not intended to preclude the district court from devising any other remedy that will promote the objectives of the Omnibus Crime Control and Safe Streets Act without thwarting the national policy declared by NEPA and NHPA. If, however, the state declines to undertake a course of action consistent with this opinion, the district court should permanently enjoin construction of a penal facility at Green Springs. The judgment of the district court dismissing the complaint is reversed, and the case is reinstated on the docket for further proceedings consistent with this opinion. . NEPA, 42 U.S.C. § 4321 et seq. (1970); NHPA, 16 U.S.C. § 470 et seq. (1970). . Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) (Ely I). . A description of LEAA block grants and application of the Omnibus Crime Control and Safe Streets Act of 1968 [42 U.S.C. § 3701 et seq. (1970)] to this case is set forth in Ely I. . We emphasized this point in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 n. 1 (4th Cir.), cert. denied sub nom., Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972), where we noted that “the problem of the effect of the state’s action on federal law was not before the court” in Ely I. . Appropriations Act of the General Assembly of Virginia, Ch. 804, § 28 [1972], Va. Acts 1252: “Item 71. Plans and programs, special revenues received from the Federal government. Out of this appropriation $300,000 in addition to the previous allocation of $775,000, shall be allocated to the State Board of Welfare and Institutions for the construction of a Classification Center and Hospital (first phase of the projected plan for a new State Penitentiary.)” . In its comprehensive plans and supplements the state described the purpose and function of the facility, its location, and the area of the tract on which it would be located. . The Department of the Interior wrote: “We find a number of procedural and substantive shortcomings in the draft environmental impact statement,” and reached the conclusion that federal assistance, including LEAA funds, “which would facilitate an intrusion upon the Green Springs historic area would be inconsistent with the national policy of preserving the Nation’s historic and cultural heritage.” Letter from Deputy Assistant Secretary of the Interior to the Assistant Administrator, Office of the General Counsel, LEAA, September 21, 1972. The Environmental Protection Agency complained that construction of the proposed facility “will have a significant adverse environmental impact on the historic and cultural character of the community. . . . ” and urged consideration of alternative sites. Letter from the Director, Office of Federal Activities, Environmental Protection Agency, to the Deputy Assistant Administrator, Office of the General Counsel, LEAA, November 2, 1972. The comments of various state agencies were summed up by the Director of the Division of State Planning and Community Affairs in a memorandum dated September 27, 1972, to the State Secretary of Administration, as follows: “In general, the agencies feel that it would be a serious mistake to locate the facility in the Green Springs area.” . On October 19, 1972, the Director of the Virginia Department of Welfare and Institutions wrote the Director of the Virginia Division of Justice and Crime Prevention requesting withdrawal of federal funds previously allocated to the center. In concluding iiis letter, he stated : “The above does not mean that we will not use federal funds allocated for corrections’ construction in other programs in the State. It is our intent that within the next couple of weeks to lay before you a plan as to the use of the funds allocated [in 1971 to the center] and that we will also include a plan for the use of FY 1972 funds which were in the plan for the Green Springs project. “I trust this letter is sufficient for you to formally notify the Law Enforcement Assistance Administration of our request to withdraw the application.” [brackets added] . Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971), hereinafter called Ban Antonio. Bee also Sierra Club v. Volpe, 351 F.Supp. 1002, 1007 (N.D.Cal.1972), which involved the waiver of federal funds for a state-federal highway project instead of the transfer of the funds. . San Antonio, 446 F.2d at 1027. . 42 U.S.C. § 4332 (1970); 16 U.S.C. § 470f (1970). See also LEAA Implementation of NEPA, 37 Fed.Reg. 4118 (1972); Proposed Rules [28 C.F.R. Part 19], 38 Fed. Reg. 32932 (1973). . See n. 9 supra. . See, e. g., Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied sub nom., Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Thompson v. Fugate, 452 F.2d 57 (4th Cir. 1971); Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972). . A similar distinction, between highways and airports was drawn in City of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir. 1972). The same court, in another case that did not involve a highway, commented on the problem caused when a non-federal participant of a federally financed project chooses to continue without federal aid. Silva v. Romney, 473 F.2d 287, 292 n. 8 (1st Cir. 1973).

Dine Citizens Against Ruining Our Env't v. Bernhardt

BRISCOE, Circuit Judge. In this case, we are asked to decide whether the Bureau of Land Management violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) in granting more than 300 applications for permits to drill horizontal, multi-stage hydraulically fracked wells in the Mancos Shale area of the San Juan Basin in northeastern New Mexico. Appellants sued the Secretary of the Department of the Interior, the Bureau of Land Management, and the Secretary of the BLM, alleging that the BLM authorized the drilling without fully considering its indirect and cumulative impacts on the environment or on historic properties. The district court denied Appellants a preliminary injunction, and we affirmed that decision in 2016. After merits briefing, the district court concluded that the BLM had not violated either NHPA or NEPA and dismissed Appellants' claims with prejudice. Appellants now appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand with instructions. I We summarized the underlying facts in the prior appeal. The San Juan Basin is a large geographic region in the southwestern United States, including part of New Mexico. Drilling for oil and gas has occurred in the Basin for more than sixty years, and the Basin is currently one of the most prolific sources of natural gas in the country. The Basin includes both public and private lands. Many of the public lands and resources fall under the jurisdiction of the Bureau of Land Management's Farmington Field Office in New Mexico, which manages these lands and resources under its published Resource Management Plan. In 2000, the BLM initiated the process of revising its existing RMP, which had been published in 1988. As part of this process, the BLM contracted with the New Mexico Institute of Mining and Geology to develop a "reasonably foreseeable development scenario," or RFDS, to predict the foreseeable oil and gas development likely to occur over the next twenty years. Based on historic production data and available geologic and engineering evidence, the RFDS estimated that 9,970 new oil and gas wells would be drilled on federally managed lands in the New Mexico portion of the San Juan Basin during this time period. Of these wells, the RFDS estimated that more than forty percent would be "Dakota, Mancos" gas wells-wells that could produce gas from both the Mancos geologic horizon and the Dakota geologic horizon that lies below it. The RFDS estimated that only 180 new oil wells would be drilled in the Mancos Shale, due to the fact that most reservoirs in the Mancos Shale were approaching depletion under then-current technologies, but it noted that there is excellent potential for the Mancos to be further evaluated. In 2003, the BLM issued its Proposed Resource Management Plan and Final Environmental Impact Statement ( [2003 EIS] ). In this document, the BLM referred to the predictions and analysis contained in the RFDS in order to assess four proposed alternatives for managing federal lands in the San Juan Basin, including the "balanced approach" the agency ultimately decided to adopt. Under this balanced approach, the BLM analyzed the cumulative impacts of an estimated 9,942 new wells in the San Juan Basin-approximately the same number predicted in the 2001 RFDS-by looking at, for instance, the likely air quality impacts from the drilling and operation of this many new wells in the region. The [2003 EIS] did not discuss specific sites or approve any individual wells, although it assumed the majority of new wells would be drilled in the high development area in the northern part of the managed area. The BLM issued its final RMP, adopting the Alternative D balanced approach, in December 2003. Diné Citizens Against Ruining Our Env't v. Jewell (Diné II ), 839 F.3d 1276, 1279-80 (10th Cir. 2016) (citations omitted). Although the 2003 EIS analyzed oil and gas drilling in the San Juan Basin generally, operators wanting to drill new wells in the area must seek and receive approval for specific drilling via an application for a permit to drill (APD) submitted to the BLM. When the BLM receives an APD, it prepares an environmental assessment (EA) examining the environmental impacts of the proposed drilling. The EA must include an analysis of the direct, indirect, and cumulative effects of the proposed drilling. See 40 C.F.R. §§ 1508.7, 1508.8. The EA process results in one of three outcomes: (1) a conclusion that the proposed action would result in a significant environmental impact, necessitating an EIS, (2) a conclusion that the proposed action would not result in a significant environmental impact-a "finding of no significant impact" (FONSI), or (3) a conclusion that the proposed action will not go forward. 43 C.F.R. § 46.325. Even if a proposed action will have significant effects, the EA may still result in a FONSI if it is tiered to a broader environmental analysis that fully analyzed those significant effects. Id. § 46.140(c). Beginning in 2010, the BLM began receiving APDs for drilling in the Mancos Shale. Development interest in the area increased quickly, and between early 2012 and April 2014, seventy new wells were completed in the Mancos Shale area. In 2014, recognizing the potential for additional Mancos Shale development, the BLM had a new RFDS prepared to evaluate the Mancos Shale's potential for oil and gas development. The 2014 RFDS estimates that full development of the Mancos Shale would result in 3,960 new wells. The 2014 RFDS predicts that new drilling in the Mancos Shale will be done largely, if not entirely, by horizontal drilling and multi-stage hydraulic fracturing. "A horizontally drilled well starts as a vertical or directional well, but then curves and becomes horizontal, or nearly so, allowing the wellbore [i.e., drilled hole] to follow within a rock stratum for significant distances and thus greatly increase the volume of a reservoir opened by the wellbore." Wyoming v. Zinke, 871 F.3d 1133, 1137 (10th Cir. 2017) (alteration in original) (quotations omitted). Hydraulic fracturing is a process designed to "maximize the extraction" of oil and gas resources. JA1912. Fluids, usually water with chemical additives, "are pumped into a geologic formation at high pressure." Id. When the pressure "exceeds the rock strength," it creates or enlarges fractures from which oil and gas can flow more freely. Id. After the fractures are created, a "propping agent (usually sand) is pumped into the fractures to keep them from closing." Id. As we noted previously, These new drilling techniques have greatly increased access to oil and gas reserves that were not previously targeted for development and have given rise to much higher levels of development in the Mancos Shale than the BLM previously estimated and accounted for. Moreover, horizontal drilling and multi-stage fracturing may have greater environmental impacts than vertical drilling and older fracturing techniques. Diné II, 839 F.3d at 1283. Hydraulic fracturing is common in the San Juan Basin and has been used there in some form since the 1950s. Horizontal drilling, however, is relatively new. At the time the 2003 EIS issued, "[h]orizontal drilling [wa]s possible but not [then] applied in the San Juan Basin due to poor cost[-]to[-]benefit ratio." JA746. The environmental impacts considered in the 2003 EIS were therefore based on the impacts associated with vertical drilling, not horizontal drilling. But the 2003 EIS noted that "[i]f horizontal drilling should prove economically and technically feasible in the future, the next advancement in horizontal well technology could be drilling multi-laterals or hydraulic fracturing horizontal wells." Id. Since the 2003 EIS issued, 3,945 of the 9,942 contemplated vertical wells have been drilled in the San Juan Basin. The BLM continues to receive and approve APDs for horizontal Mancos Shale wells. Appellants' initial petition in the district court challenged "at least 130" Mancos Shale APDs approved by the BLM. JA2449. Over the course of this litigation, Appellants amended their petition three times to account for additional granted APDs. Their final petition challenged "at least 351" APDs. JA2701. In 2015, Appellants filed their first Petition for Review of Agency Action (Petition) in district court, challenging the BLM's issuance of APDs as violative of NEPA and NHPA. Appellants named as defendants the Secretary of the United States Department of the Interior, BLM, and the Director of BLM (collectively, Federal Appellees). A group of oil companies (DJR Energy Holdings, LLC, BP America Production Company, American Petroleum Institute, Anschutz Exploration Corporation, and Enduring Resources IV, LLC), each of which owns leases or drilling permits in the Mancos Shale intervened as defendants (collectively, Intervenor Appellees). Appellants moved for a preliminary injunction, which the district court denied. See Diné Citizens Against Ruining Our Env't v. Jewell (Diné I ), No. CIV 15-0209, 2015 WL 6393843 (D.N.M. Sept. 16, 2015). This court upheld the denial on appeal. Diné II, 839 F.3d 1276. In district court, Appellants amended their Petition three times to add additional challenged APDs. Appellants' operative Third Supplemented Petition alleges, as relevant on appeal: (1) a NEPA violation for improperly tiering the EAs to the 2003 EIS; (2) a NEPA violation for failing to prepare an EIS or supplement an existing EIS; and (3) a NHPA violation for failing to complete Section 106 consultation. Appellants sought vacatur of all the challenged APDs and an injunction against all "future horizontal drilling or hydraulic fracturing in the Mancos Shale" until the BLM complied with NHPA and NEPA. JA2743. In April 2017, Appellants sought judgment in the district court. On April 23, 2018, the district court ruled against Appellants and dismissed their claims with prejudice. The district court made the following relevant rulings: (1) Appellants have standing to pursue their claims; (2) Appellants do not establish a NEPA violation; and (3) Appellants do not establish a NHPA violation. Appellants timely appealed, raising two issues. First, they contend that the BLM violated NHPA because it "failed to analyze the indirect and cumulative impacts of the challenged Mancos Shale drilling permits on cultural sites in the Greater Chaco Landscape." Aplts. Br. at 1 (footnote omitted). Second, they argue that the BLM violated NEPA because it "failed to analyze the cumulative impacts of the challenged Mancos Shale drilling permits on environmental resources in the Greater Chaco Landscape." Id. at 2. Appellants seek vacatur of the challenged APDs and a permanent injunction against "any further ground-disturbing activities on the challenged APDs until BLM complies with the NHPA and NEPA." Id. at 51. Federal Appellees assert, as they did in the district court, that Appellants lack standing to challenge the relevant agency actions. II The BLM is subject to two statutes relevant on appeal: the National Historic Preservation Act and the National Environmental Policy Act. "NHPA[ ] ... is a procedural statute requiring government agencies to stop, look, and listen before proceeding when their action will affect national historical assets." Coal. of Concerned Citizens to Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of Transp. (Concerned Citizens), 843 F.3d 886, 905 (10th Cir. 2016) (quoting Presidio Historical Ass'n v. Presidio Trust, 811 F.3d 1154, 1169 (9th Cir. 2016) ). NHPA was enacted "to foster conditions under which our modern society and our historic property can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations." 54 U.S.C. § 300101(1). NEPA is also a procedural statute. It requires agencies to "pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). NEPA has twin aims: First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir. 2010) (quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ). Neither NEPA nor NHPA "provide a private right of action," so we review the two decisions as "final agency action[s] under the" APA. Utah Envtl. Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008). We apply the same standard of review as the district court: the familiar "arbitrary and capricious" standard. Richardson, 565 F.3d at 704-05 ; 5 U.S.C. § 706(2)(A). An agency's decision is arbitrary and capricious if the agency: (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment. Richardson, 565 F.3d at 704 (citations and quotations omitted). "A presumption of validity attaches to the agency action and the burden of proof rests with [the parties] who challenge such action." Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (quoting Colo. Health Care Ass'n v. Colo. Dep't of Soc. Servs., 842 F.2d 1158, 1164 (10th Cir. 1988) ). Our deference to the agency is "especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise." Morris v. U.S. Nuclear Reg. Comm'n, 598 F.3d 677, 691 (10th Cir. 2010) (quoting Russell, 518 F.3d at 824 ). III Because standing is jurisdictional, we must first determine whether Appellants have standing to bring their claims. The district court concluded that Appellants have standing, and we review that determination de novo. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). When, as here, an organization sues on behalf of its members, the organization has standing if: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Federal Appelles do not argue that the interests Appellants seek to protect are not germane to the organizations' purposes, nor do they argue that the participation of individual members is required. Our standing inquiry is therefore limited to whether any of Appellants' members "have standing to sue in their own right." Id. We conclude that they do. To establish standing, a plaintiff must show: (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). At the summary judgment stage, Appellants must "set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and quotations omitted). A The injury-in-fact prong of our standing analysis "breaks down into two parts." Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996). Appellants must show that (1) "in making its decision without following [NEPA's] procedures, the agency created an increased risk of actual, threatened, or imminent environmental harm," and (2) "the increased risk of environmental harm injures [the litigant's] concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action." Id. Appellants have satisfied both requirements. 1 Under NEPA, "an injury of alleged increased environmental risks due to an agency's uninformed decisionmaking may be the foundation for injury in fact under Article III." Id. Here, the allegedly uninformed decisions Appellants challenge are the BLM's approval of hundreds of APDs in the Mancos Shale without considering the indirect and cumulative impacts to cultural sites and environmental resources. Aplts. Br. at 1-2. Appellants have sufficiently tied the BLM's challenged decisions to increased environmental risks. Eisenfeld, a member of San Juan Citizens and WildEarth, asserts that the "Mancos Shale APD authorizations ... impact[ ] the visual landscape, night sky, solitude and quiet, [and] public health and safety." JA343. Nichols, a member of WildEarth, states that "[w]ith the increase in oil and gas development has come light pollution, more truck traffic, drilling rigs sticking up from the land, smells, dust, and more industrialization." JA615. He asserts that recently, the impacts of Mancos shale oil development have become more visible, offensive, and degrading of [his] recreational enjoyment of public lands in the area. The new development has brought more drilling rigs, flaring, truck traffic, road building, pipeline construction, the construction and operation of more tanks and production facilities, and just overall more oil and gas industry presence in the area. JA607-08. These facts are sufficient to establish "an increased risk of environmental harm due to [the BLM's] alleged uninformed decisionmaking," and they satisfy the first prong of our injury-in-fact analysis. Lucero, 102 F.3d at 451. Federal Appellees argue that Appellants fail on this prong of the standing analysis because the 2003 EIS examined the effects of "drilling 9,942 wells using conventional techniques," and Appellants have not shown that the challenged Mancos Shale APDs "will increase the risk of environmental harm in a manner or to a degree not already considered." Fed. Aples. Br. at 26. This argument conflates the standing analysis with the merits analysis. As discussed, Appellants have submitted affidavits that show an increase in environmental harm from drilling activities in the Mancos Shale area; this satisfies the first prong of our injury-in-fact analysis. Whether that environmental harm is of a manner or to a degree not already considered in the 2003 EIS is a question that goes to the merits of Appellants' NEPA claim. Appellants, of course, need not prove the merits of their claim in order to establish standing. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 ("It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction...."). 2 Standing "also requires a plaintiff be among the injured." Lucero, 102 F.3d at 449. Therefore, Appellants "must be able to show that a separate injury to [their] concrete, particularized interests flows from the agency's procedural failure." Id. (citing Lujan, 504 U.S. at 572, 112 S.Ct. 2130 ). To demonstrate harm to a plaintiff's concrete interests, the plaintiff must "establish either its geographic nexus to, or actual use of the site where the agency will take or has taken action such that it may be expected to suffer the environmental consequences of the [challenged] action." Id. (quotations omitted). Appellants' members' affidavits show a geographic nexus to the affected areas sufficient to satisfy the second prong of our injury-in-fact analysis. Eisenfeld states that he "regularly visit[s] the greater Chaco region, including areas in and around Counselor, Lybrook, and Nageezi," and that he "intend[s] to go back [to Nageezi] in May and June of 2017." JA338. He also states that he has "visited hundreds of well sites in the [Greater Chaco] area, and ha[s] frequented lands where many other Mancos Shale wells are in view." JA342. Nichols regularly visits the Greater Chaco region "for recreational enjoyment." JA348. He describes visiting Pueblo Pintado, Chaco Culture National Historical Park (Chaco Park), Nageezi, and Pueblo Alto. Nichols "intend[s] to continue visiting the Greater Chaco region, including [Chaco Park] and its outliers, as well as public lands in the region, at least once a year for the foreseeable future," and had a trip planned for "late June 2017." JA351. Kendra Pinto, a member of Diné, lives in Twin Pines, New Mexico, which is "located along Highway 550, at the county line of San Juan and Rio Arriba." JA617. Beginning in 2013, she noticed a "major increase in Halliburton trucks along 550, and at the intersection of 7900 and 7950, trucks are staging right off the highway and even on the county road blocking traffic." JA618. She "pass[es] through areas that are very potent in natural gas odors," and has "seen the giant pillars of fire for the flaring the sites do." JA619. She states that "[t]he lights staged at well sites can be as bright as stadium lights." Id. Deborah Green, a member of NRDC, visits the Chaco Canyon area and Chaco Park at least once a year. She states that "[o]il and gas leasing and development in the Chaco Canyon area/region and [Chaco Park] adversely affect[ ] the quality of [her] visitor experience in the area, and if expanded, would do so even more." JA630. Along Highway 550, on the way to Chaco Park, Green has experienced air pollution from gas flares at wells and large amounts of exhaust from the oil and gas company trucks and heavy equipment; noise pollution from heavy truck traffic; and light pollution when drilling goes on around the clock and from gas flares, which are visible from the road for a long distance at night. Id. These affidavits establish that the BLM's challenged actions impair these individuals' actual, concrete interests because the affiants have a geographical nexus to and actually use the land in the allegedly affected area. Federal Appellees argue that the affidavits are insufficient for two reasons. First, they contend that Appellants have "challenged 337 individual agency actions," each of which "gives rise to a distinct claim," and that Appellants "must establish standing ... for each challenged APD approval." Fed. Aples. Br. at 23. Second, they argue that Appellants "fail to establish a geographical nexus to the challenged agency actions" because Appellants' affidavits all refer generally to the "greater Chaco region" or the "Mancos Shale formation." Id. at 26-27. Both arguments fail. As Appellants point out, we have previously rejected similar arguments. In Palma, the district court held that the plaintiffs did not establish an injury in fact because they submitted affidavits that "did not identify specific visits to each of the thirty-nine leases at issue." 707 F.3d at 1155. This holding, we concluded, misapplied the law. Id."Neither our court nor the Supreme Court has ever required an environmental plaintiff to show that it has traversed each bit of land that will be affected by a challenged agency action." Id. Rather, "[a] plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interest are harmed by a defendant's conduct has suffered injury in fact that is concrete and particularized." Id. at 1156. In Palma, an organization's member's affidavit was "sufficient" when "[h]e specified areas which he has visited, averred that these specific areas will be affected by oil and gas drilling, and stated his interests will be harmed by such activity." Id. The affidavits Appellants submitted in this case meet this standard. Further, maps in the record indicate the geographic proximity of challenged APD sites to specific areas referenced in Appellants' affidavits. Nichols attached to his declaration a map of the area around Chaco Park that shows the proximity of existing and new wells to Chaco Park and other locations affiants describe. This and other maps in the record indicate that challenged well sites are within twenty miles or less of Chaco Park, where Nichols and Green recreate; along Highway 550, the road to enter Chaco Park; and within several miles of Twin Pines, where Pinto lives, and Nageezi, where Eisenfeld and Nichols both recreate. Furthermore, Appellants in this case challenge the BLM's alleged failure to evaluate the indirect and cumulative impacts of the APDs, not merely the direct impacts of drilling to the area immediately surrounding the wellpads. Although Appellants' NEPA claim is in the form of challenges to numerous individual APDs, the allegedly affected area extends beyond the boundaries of the well sites and into the greater Chaco landscape. Affiants' descriptions of environmental harms including "air pollution from gas flares at wells," "exhaust from the oil and gas company trucks and heavy equipment," "noise pollution from heavy truck traffic," and "light pollution" from drilling and "gas flares," JA630, which they experience as they live and recreate in the affected area, are sufficient to place Appellants "among the injured." Lucero, 102 F.3d at 449. Appellants have shown through their members' affidavits that some of their members have a geographical nexus to, and actually use, land the BLM has exposed to an increased risk of environmental harm due to its alleged uninformed decisionmaking. Appellants have established an injury in fact for purposes of Article III. B To establish causation, an environmental plaintiff "need only trace the risk of harm to the agency's alleged failure to follow [NEPA]'s procedures." Lucero, 102 F.3d at 452. A NEPA injury "results not from the agency's decision, but from the agency's uninformed decisionmaking." Id. (first emphasis added). Federal Appellees argue that Appellants have not shown that "the relief sought-the vacatur of BLM's decisions approving these 337 APDs-will remedy their alleged injuries." Fed. Aples. Br. at 29. They assert that Appellants have not established that their environmental harms were caused by "the 337 challenged permits rather than ... the approximately 23,000 active oil and gas wells in the San Juan Basin that are not the subject of this action." Id. This argument fails. "In the context of a [NEPA] claim, the injury is the increased risk of environmental harm to concrete interests...." Lucero, 102 F.3d at 451 (emphasis added). In this case, Appellants' asserted injury is the increased risk of environmental harm from the additional wells, and it is undisputed that BLM has authorized more than 300 additional wells in the Mancos Shale. Appellants have alleged that the BLM did not comply with NEPA in granting the challenged APDs, and that its alleged failure resulted in "the agency's uninformed decisionmaking" as to these additional wells. Id. at 452. This is sufficient to establish causation. C Appellants must also establish that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (quotations omitted). Under NEPA, "a plaintiff need not establish that the ultimate agency decision would change upon [NEPA] compliance. Rather, the [Plaintiff must only show] that its injury would be redressed by a favorable decision requiring" compliance with NEPA procedures. Lucero, 102 F.3d at 452 (quotations and citations omitted). Here, Appellants challenge the BLM's decision to grant APDs without conducting the requisite NEPA analysis. A favorable decision ordering compliance with NEPA's procedures would "avert the possibility that the [BLM] may have overlooked significant environmental consequences of its actions," thereby redressing Appellants' alleged harms. Id. Appellants have established redressability. Because individual members of Appellants' organizations have suffered a concrete and particularized injury in fact that is fairly traceable to the BLM's alleged failure to comply with NEPA and could be redressed by a favorable decision, we conclude that Appellants have standing. IV Before analyzing the merits of Appellants' arguments, we first note the dramatic insufficiency of the record. Although Appellants challenge more than 300 individual agency actions, they have provided us with the complete record of the BLM's decisionmaking process for only a few of the challenged actions. We are therefore unable to evaluate the sufficiency of the BLM's NHPA and NEPA analyses for the vast majority of the challenged actions. See 10th Cir. R. 10.4(A) ("Counsel must designate a record on appeal ... that is sufficient for considering and deciding the appellate issues."); id. at 10.4(B) ("When the party asserting an issue fails to provide a record or appendix sufficient for considering that issue, the court may decline to consider it."). As to NHPA, the record indicates that the BLM considered impacts on historic properties in at least three documents for each APD: (1) a Cultural Resource Survey (CRS), (2) a Record of Review, and (3) a site-specific EA. Therefore, in order to evaluate the sufficiency of the BLM's NHPA analysis, we would need the complete EA, complete CRS, and complete Record of Review for each challenged APD. The record, however, contains portions of the BLM's NHPA analysis for only seventeen different sets of APDs. Further, the vast majority of the NHPA analyses in the record are only several-page excerpts, not the entire analysis. The record contains the complete EA, CRS, and Record of Review for only one set of challenged APDs: Kimbeto Wash Unit Wells 787H, 789H, and 791H. As to NEPA, the record indicates that the BLM's NEPA analysis was included in at least each site-specific EA and the 2003 EIS (to which each of the site-specific EAs tiered). Therefore, in order to evaluate the sufficiency of the BLM's NEPA analyses, we would need the complete 2003 EIS and the complete EA for each challenged APD. The record, however, only includes portions of twenty-seven EAs. And, as with the NHPA analyses, the vast majority of the EAs in the record are several-page excerpts, not the complete EA. From our count, the record contains only six complete EAs: EA 2012-0268, EA 2014-0272, EA 2015-0036, EA 2015-0066, EA 2016-0029, and EA 2016-0200/2016-0076. We are therefore able to analyze whether the BLM violated NEPA only as to those six EAs. "[O]ur cases addressing deficiencies in the appendix submitted by an appellant define a guiding principle...." Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1190 (10th Cir. 2018). Even when an appendix is deficient, if "the materials provided by the appellant permit us to reach a firm and definite conclusion regarding the merits of an individual argument or claim within the appeal," we often will address the argument or claim, although our rules do not require us to do so. Id. But if "we are forced to venture a guess as to the merits of an argument or claim, even 'an informed guess,' we will summarily affirm the district court's judgment." Id. (collecting cases). Applying these principles, we conduct our NHPA and NEPA reviews only as to those challenged actions for which we have the BLM's complete analysis. For NHPA, we evaluate the sufficiency of the BLM's analysis for Kimbeto Wash Unit Wells 787H, 789H, and 791H. For NEPA, we evaluate the sufficiency of the BLM's analysis for: (1) EA 2012-0268, (2) EA 2014-0272, (3) EA 2015-0036, (4) EA 2015-0066, (5) EA 2016-0029, and (6) EA 2016-0200/2016-0076. As to all other challenged agency actions, the record "is insufficient to permit assessment of [Appellants'] claim of error," and we affirm the district court. Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997). V Appellants contend that the BLM violated NHPA in three ways. First, they assert that the BLM arbitrarily defined an area of potential effects (APE) for each APD in a way that excluded cultural sites that might be indirectly affected by Mancos Shale development. This argument is premised on Appellants' assertion that the 2014 Protocol required the BLM to set a separate APE for indirect effects, which the BLM did not do. Second, Appellants argue that the BLM did not consider the cumulative effects of Mancos Shale development on relevant cultural and historic properties. Finally, Appellants contend that the BLM failed to consult with the State Historic Preservation Office (SHPO) as required by the 2014 Protocol. Each of these arguments fail. A Section 106 of NHPA sets forth specific processes federal agencies must perform to comply with NHPA. See 36 C.F.R. § 800.1(a). In general, the Section 106 process involves four steps. First, the agency defines the APE. 36 C.F.R. § 800.4(a). The APE is "the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Id. § 800.16(d). "Establishing an [APE] requires a high level of agency expertise, and as such, the agency's determination is due a substantial amount of discretion." Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078, 1092 (10th Cir. 2004). After defining the APE, the agency identifies historic properties within the APE. 36 C.F.R. § 800.4(b). A historic property is "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on" the National Register of Historic Places (NRHP). 54 U.S.C. § 300308. If the agency determines that no historic properties are present within the APE, it reports that finding and the NHPA process ends. 36 C.F.R. § 800.4(d)(1). If historic properties are present within the APE, the agency determines whether the proposed undertaking will adversely affect those properties. Id. § 800.5. An adverse effect exists "when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the [NRHP] in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association." Id. § 800.5(a)(1). Adverse effects include "reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative." Id. They also include the "[i]ntroduction of visual, atmospheric[,] or audible elements that diminish the integrity of the property's significant historic features." Id. § 800.5(a)(2)(v). If the agency determines that the undertaking may cause an adverse effect on the historic properties within the APE, it must "develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties." Id. § 800.6(a). The Section 106 process does not demand a particular result, however, because "Section 106 is essentially a procedural statute and does not impose a substantive mandate" on the agencies governed by it. Valley Cmty., 373 F.3d at 1085. Section 106 authorizes agencies to enter into a "programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings." 36 C.F.R. § 800.14(b). When a governing programmatic agreement is in place, compliance with the procedures in that agreement satisfies the agency's NHPA Section 106 responsibilities for all covered undertakings. Id. § 800.14(b)(2)(iii). The parties agree that two programmatic agreements governed the BLM's NHPA analyses of the APDs in this case: one agreement that went into effect in 2004 (the 2004 Protocol), and one that went into effect in 2014 (the 2014 Protocol). Therefore, we must resolve whether Appellants have shown that the BLM violated the requirements of the 2014 Protocol as to the single challenged APD properly before us. Although the compliance requirements for the 2014 Protocol are somewhat different than Section 106's requirements, the basic NHPA process is the same. The 2014 Protocol states generally that, "[i]n defining the APE, the BLM will consider potential direct, indirect, and cumulative effects to historic properties and their associated settings when setting is an important aspect of integrity, as applicable." JA1562. Relevant here, the 2014 Protocol states that "[t]he BLM will follow the established guidance on standard direct APEs for certain types of projects in Appendix B." Id. (italics omitted). Appendix B sets a "standard APE" for well pads of "the well pad and construction zone plus 100[ ] [feet] on each side from the edge of the construction zone." JA1594. The 2014 Protocol acknowledges that "[i]n certain circumstances, even though an undertaking may have a standard APE ..., the Field Manager, at the recommendation of the cultural resource specialist, may have justification to require a larger APE." Id. B Appellants argue that the BLM "failed to account for indirect impacts to cultural sites, as required by the NHPA and the Protocol." Aplts. Br. at 30. According to Appellants, "the Protocol requires BLM to consider a separate APE for indirect effects where '[t]he introduction of physical, visual, or audible elements has the potential to affect the historic setting or use' of cultural sites 'where setting is an important aspect of integrity.' " Id. at 31 (quoting JA1562). Appellants' argument fails because the 2014 Protocol merely allows for, it does not require, a separate indirect-effects APE. The 2014 Protocol acknowledges that "[t]he introduction of physical, visual, audible, or atmospheric elements has the potential to affect the historic setting or use of historic properties," and requires the BLM to "take this into account in defining the limits of an APE for indirect effects." JA1562 (emphasis added). Under the 2014 Protocol, "[t]he indirect APE shall include known or suspected historic properties and their associated settings where setting is an important aspect of integrity." Id. The 2014 Protocol continues: "Identification efforts outside of the APE for direct effects shall be at the approval of the BLM field manager, taking into account the recommendations of the BLM cultural resource specialist and the SHPO." Id. (emphasis added). In other words, the BLM need not set-or even consider-a separate indirect-effects APE when "physical, visual, audible, or atmospheric elements ha[ve] the potential to affect the historic setting or use of historic properties," as Appellants argue. JA1562. Rather, the 2014 Protocol only requires that the BLM take indirect effects into account as it exercises its substantial discretion in setting the APE. The 2014 Protocol therefore contains a default presumption that the direct and indirect APE will be the same and, to the extent the BLM will attempt to identify historic properties outside the direct-effects APE, those identification efforts will be at the approval of the BLM field manager. Moreover, the CRS, the Record of Review, and the EA for the Kimbeto Wash Unit wells indicate that the BLM looked to areas far outside the standard direct-effects APE to identify cultural properties. The EA includes a fulsome discussion of the potential for indirect impacts from the proposed project, including an analysis of visual resources. The EA notes that the proposed action is at least 8.5 miles "from the boundary of [Chaco Park]." Id. It acknowledges that "small portions of the pipeline fall within" two National Park Service designated Key Observation Points, but concludes that "[g]iven [the] distance ( [over] 11.5 miles) and low profile[,] the pipeline will not be visible." JA1949. The EA notes that the project's "well pad is within a mile of a few scattered residences," but concludes that it is "unlikely that the well pad will be visible from these residences due to area topography." JA1950. It also states that the "well pad will not visible from any designated recreation areas." Id. The EA also addresses the project's potential impact on night skies, noting that "[l]ight sources associated with drilling an oil and gas well include a light plant or generator, a light on top of the rig, vehicle traffic, and flaring." JA1951. The necessity for flaring and the duration of flaring varies widely from well to well and is difficult to predict. With the exception of a few yearly events, visitors are not allowed access to the canyon rim where the proposed action may be seen after sunset, minimizing the chance that visitors would see the direct light. While these lights could reduce the general darkness of the night sky as seen from [Chaco Park], it is likely the impact would be imperceptible. Id. Further, the EA notes that any potential light impacts "would be short-term." Id. The CRS and Record of Review also indicate that the BLM looked for historic sites in an area that extended far beyond the direct-effects APE. The CRS notes that a record search was conducted and "[n]o sites listed on the State Register of Cultural Properties or the [NRHP we]re located within a 1 mile [sic] of the project area." JA2173 (emphasis added). The BLM also conducted pedestrian surveys of a 108.01-acre area, although the CRS indicates only 25.76 acres in the APE. [Id. ] During the pedestrian surveys, "[w]hen cultural material was encountered, it was pin flagged and the archaeologists began an intensive search of the area to locate other material." JA2175. After eight "Fieldwork Dates," forty-six "Survey Person Hours" and thirty-nine "Recording Person Hours," the BLM's NHPA review identified four newly recorded cultural sites, one previously recorded site, and twelve isolated occurrences of cultural material. Id. The BLM ultimately determined that three of the five sites were ineligible for listing on the NRHP, and two were eligible but avoided. The BLM therefore recommended that the project go forward with mitigation requirements, including employee education, temporary barriers, and archaeological site monitoring. The CRS, Record of Review, and EA for the Kimbeto Wash Unit wells indicate that the BLM attempted to identify historic properties in an area far outside the standard direct-effects APE for well pads, and that the BLM considered the proposed drilling's possible visual impacts, including its impact on night skies. Given this analysis, especially considering that it far exceeded the analysis required by the 2014 Protocol, Appellants have failed to establish that the BLM violated NHPA by not adequately considering the indirect effects of the Kimbeto Wash Unit wells. C Appellants also argue that the BLM violated NHPA because it "failed to analyze the cumulative effects of developing hundreds of new APDs across this culturally significant landscape." Aplts. Br. at 38. Appellants' cumulative-effects argument fails because Appellants identify no historic properties within the APE the BLM set. In support of their cumulative-effects argument, Appellants cite to 36 C.F.R. § 800.5(a)(1), which states that "[a]dverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative." This regulation, however, addresses the BLM's application of "the criteria of adverse effect to historic properties within the [APE]." 36 C.F.R. § 800.5(a) (emphasis added). In other words, the cited language simply means that an undertaking can have adverse effects on historical properties within the APE, even if the undertaking only adversely affects the properties through "reasonably foreseeable effects caused by the undertaking that may ... be cumulative." Id. § 800.5(a)(1). Appellants, however, argue that the BLM abused its discretion by failing to analyze the cumulative adverse effects horizontal Mancos Shale wells might have "on the integrity of the historic setting for any number of cultural sites, [Chaco] Park, and the Greater Chaco Landscape." Aplts. Br. at 37. This argument ignores that § 800.5(a)(1) applies to the BLM's assessment of adverse effects on "historic properties within the [APE]." 36 C.F.R. § 800.5(a) (emphasis added). And the record indicates that the APE for the Kimbeto Wash Unit wells did not encompass the "cultural sites, [Chaco] Park, and the Greater Chaco Landscape," Aplts. Br. at 37, which Appellants argue would be negatively impacted by these cumulative effects. In sum, Appellants' cumulative-effects argument is premised on an APE different from the one the BLM defined. Appellants' argument therefore fails. D Appellants also argue that the BLM was required to consult with the SHPO because defining APEs for the challenged APDs was "complicated or controversial." Aplts. Br. at 35. In support, Appellants cite the 2014 Protocol's examples of "complicated or controversial" projects, contending that the APDs at issue qualify because " 'multiple applicants' [and] 'multiple Indian tribes' are involved." Id. (quoting JA1562). Appellants' SHPO consultation argument fails. The 2014 Protocol "specifies the manner in which the BLM works with SHPO," and "establishes a streamlined consultation process for most BLM undertakings." JA1552. It provides that "[t]he BLM will consult with SHPO on undertakings for which a standard APE ... has not been developed." JA1562. Appendix B indicates that if the BLM utilizes a standard APE for an undertaking, the "BLM and SHPO have consulted" as to that APE. JA1594 (emphasis added). The 2014 Protocol also states that the BLM will consult with the SHPO "where the APE is complicated or controversial," and gives examples of situations in which defining the APE may be complicated or controversial: "undertakings involving multiple agencies, multiple states, multiple applicants, and/or multiple Indian tribes." JA1562. The 2014 Protocol therefore establishes a default presumption that the BLM need not consult with the SHPO "on undertakings for which a standard APE" exists, such as the undertakings at issue in this case. JA1562. And in this case, the applicability of a standard APE also undermines a conclusion that the APE is complicated or controversial. Rather, the existence of a standard APE indicates that the BLM and the SHPO anticipated that the BLM would often have to define an APE for activities related to oil and gas drilling, such as well pads, pipelines, and roads. And, seeking to "streamline the consultation process" for these common undertakings, the BLM and the SHPO determined that a standard APE for these activities would suffice in most circumstances, and BLM-SHPO consultation in defining the specific APE would be unnecessary. JA1552; accord JA1562. We therefore reject Appellants' argument that the BLM abused its discretion by not consulting with the SHPO. Appellants fail to carry their burden of establishing that the BLM violated NHPA. The BLM's decision is entitled to a presumption of regularity, and it finds support in the record. Accordingly, we affirm the district court's dismissal of Appellants' NHPA claim. VI Appellants' NEPA argument is as follows: the environmental impacts of the horizontal Mancos Shale wells are both (1) different in kind from and (2) greater in magnitude than those considered in the 2003 EIS. Because of this, the 2003 EIS did not fully analyze the environmental impacts associated with horizontal Mancos Shale wells, so the BLM was not authorized to tier the EAs to the 2003 EIS, and the FONSIs the BLM issued were arbitrary and capricious. We conclude that, as to five EAs, Appellants have demonstrated that the BLM needed to-but did not-consider the cumulative impacts of water resources associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells. The BLM's issuance of FONSIs and approval of APDs associated with these EAs was therefore arbitrary and capricious and violated NEPA. A NEPA "requires federal agencies ... to analyze environmental consequences before initiating actions that potentially affect the environment." Utah Env't Cong. v. Bosworth, 443 F.3d 732, 735-36 (10th Cir. 2006). To comply with NEPA, agencies must prepare a detailed statement of the environmental impact of any "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In conducting its NEPA analysis, a federal agency must prepare, as relevant here, either "(1) an environmental impact statement [ (EIS) ], [or] (2) an environmental assessment [ (EA) ]." Bosworth, 443 F.3d at 736. An EIS "is required if a proposed action will 'significantly affect[ ] the quality of the human environment.' " Id. (alteration in original) (quoting 42 U.S.C. § 4332(C) ). "If an agency is uncertain whether the proposed action will significantly affect the environment, it may prepare a considerably less detailed [EA]." Id. Although less detailed than an EIS, the EA must still "include brief discussions of the need for the proposal, of alternatives ..., [and] of the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1508.9(b). Among the environmental impacts the EA must evaluate are "the cumulative impacts of a project." WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677, 690 (10th Cir. 2015) (quoting Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir. 2002)abrogated on other grounds by Diné Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276 (10th Cir. 2016) ). Cumulative impacts are "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." 40 C.F.R. § 1508.7. Cumulative impacts can result from "individually minor but collectively significant actions taking place over a long period of time." Id. If, after considering the necessary factors, the agency concludes the action is unlikely to have a significant environmental impact, it may issue a finding of no significant impact (FONSI) and proceed with the action. 40 C.F.R. § 1508.13. If the agency reaches the opposite conclusion, before proceeding with the action, it must prepare an environmental impact statement to thoroughly analyze the action's predicted environmental impacts, including its direct, indirect, and cumulative impacts. 42 U.S.C. § 4332(2)(C) ; 40 C.F.R. §§ 1508.11, 1508.25. However, even when a proposed action has "significant effects," the BLM may tier an EA to an existing EIS-and thereby reach a FONSI-if the EIS to which it tiers "fully analyzed those significant effects." 43 C.F.R. § 46.140(c). But if the "relevant analysis in the [EIS] is not sufficiently comprehensive or adequate to support further decisions, the [EA] must explain this and provide any necessary analysis." Id. § 46.140(b). "The role of a federal court under NEPA is to review the EIS, [or] EA, ... as the case may be, and 'simply ... ensure that the agency has adequately considered and disclosed the environmental impact of its actions.' " Concerned Citizens, 843 F.3d at 902 (third alteration in original) (quoting Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1256-57 (10th Cir. 2011) ). In conducting this review, we apply a "rule of reason standard" to determine whether claimed NEPA violations "are merely flyspecks, or are significant enough to defeat the goals of informed decision making and informed public comment." Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1163 (10th Cir. 2002). B Appellants first argue that the challenged APDs cause environmental impacts qualitatively different from those considered in the 2003 EIS because the APDs authorize drilling in the southern portion of the Mancos Shale, while the 2003 EIS "only evaluated development in the northern portion." Aplts. Br. at 42. Appellants' argument fails because the 2003 EIS evaluated the effects of drilling throughout the entire San Juan Basin-an area that includes the location of the challenged APDs. The 2003 EIS was developed to "analyze[ ] the environmental impacts of oil and gas leasing and development in the San Juan Basin in New Mexico." JA767. The "planning area" addressed in the 2003 EIS "includes all of San Juan County, most of McKinley County, western Rio Arriba County, and northwestern Sandoval County." JA768. All challenged APDs are within this area. The 2003 EIS denoted the northeastern portion of the planning area as a "high development area" for oil and gas production, but that area was so identified because "more than 99 percent of the federal oil and gas resources [we]re currently leased" in that area. JA778. Nothing in the 2003 EIS indicates that the BLM analyzed the environmental impacts of drilling on only the high development area. Indeed, the 2003 EIS's chapter on the affected environment contains a lengthy discussion of the cultural resources present in the Chaco Canyon. The record, therefore, does not support Appellants' assertion that the challenged APDs are in a geographic area not considered by the 2003 EIS. C Appellants also argue that the BLM has never fully analyzed the cumulative environmental impacts of drilling 3,960 horizontal wells in the Mancos Shale because those impacts exceed the environmental impacts evaluated in the 2003 EIS in two specific ways: air pollution and water use. As to air pollution, we conclude that Appellants have not provided us with a record from which we can assess the BLM's NEPA analysis. As to water use, we conclude that Appellants have shown that the BLM never considered the cumulative impact of the water use associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells for five specific EAs. We therefore reverse the district court's dismissal of Appellants' NEPA claims as to EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076. 1 Appellants' cumulative-impacts argument relies on one assumption the parties dispute: that the BLM's NEPA analysis must consider the impacts associated with all 3,960 wells the 2014 RFDS identified as possible if full-field Mancos Shale development occurs. We conclude that the 2014 RFDS made it reasonably foreseeable that 3,960 horizontal Mancos Shale wells would be drilled, and NEPA therefore required the BLM to consider the cumulative impacts of those wells in the EAs it conducted for subsequent horizontal Mancos Shale well APDs. The 2014 RFDS "collect[ed] and analyze[d] geological and engineering evidence[ ] ... to determine the potential subsurface development of the Gallup/Mancos play." JA1665. Based on this analysis, it estimated that full development of the Mancos Shale would result in 3,960 new wells. And, although it predicted "a five[-]year delay in significant activity" in the Mancos Shale area "due to unfavorable economics," it also predicted that well activity would "rapidly increase" once the economics became more favorable. JA1662. The BLM itself has relied on RFDSs to define the scope of "reasonably foreseeable" actions for the purposes of its cumulative-impacts analyses. For example, two of the EAs before us cite to the 2014 RFDS in their discussions of cumulative impacts. In describing the methodology used to analyze cumulative impacts, EA 2016-0029 and EA 2016-0200/2016-0076 discuss oil and gas development predicted in the 2014 RFDS, noting that the 2014 RFDS identified high, moderate, and low potential regions for oil development of the Mancos-Gallup Formation. Within the high potential region, full development would include 5 wells per section, resulting in 1,600 completions. Within the moderate potential region, full development would include one well per section, resulting in 330 completions. Within the low potential region, full development would include one well per township, resulting in 30 well completions. Additionally, the [2014 RFDS] predicted 2,000 gas wells could be development [sic] in the northeastern corner of the [BLM's Farmington Field Office]. JA1926; JA2096. The BLM also relied on the 2001 RFDS for projected drilling amounts in the 2003 EIS. The 2003 EIS states that the 2001 RFDS "form[ed] the basis for projected oil and gas development in the planning area over the next 20 years." JA769-70. Especially in light of the BLM's past reliance on the drilling projected in RFDSs, we conclude that once the 2014 RFDS issued, the 3,960 horizontal Mancos Shale wells predicted in that document were "reasonably foreseeable future actions." 40 C.F.R. § 1508.7 ; accord Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992) ("[A]s in other legal contexts, the terms 'likely' and 'foreseeable,' as applied to a type of environmental impact, are properly interpreted as meaning that the impact is sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision."). The BLM therefore needed to consider the cumulative environmental impacts associated with the reasonably foreseeable 3,960 horizontal Mancos Shale wells when it conducted EAs for the challenged APDs. Intervenor Appellees' arguments do not persuade us otherwise. First, we of course acknowledge that "full-field [Mancos Shale] development is not at issue in this case." Int. Aples. Br. at 38. But that does not excuse the BLM from NEPA's requirement that it "take a 'hard look' at the environmental consequences before" approving the challenged APDs. Balt. Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct. 2246. And, in this case, that involved considering the cumulative impacts of the 3,960 reasonably foreseeable horizontal Mancos Shale wells. See 40 C.F.R. §§ 1508.9(b), 1508.7. Second, we reject Intervenor Appellees' argument that the BLM did not need to consider the cumulative impact of the predicted 3,960 wells because "no operator has proposed to drill" all of those wells. Int. Aples. Br. at 40. Once the 2014 RFDS issued, it became reasonably foreseeable to the BLM that the projected wells would be drilled, so the BLM needed to consider the cumulative impact of all those wells, even if the wells were not going to be drilled imminently. 40 C.F.R. § 1508.7 ("Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." (emphasis added)). Finally, we reject Intervenor Appellees' argument that our conclusion here would "automatically foreclose authorization of all individual activities in the [planning] area" once the BLM initiates an RMP amendment process. Int. Aples. Br. at 42. Rather, our decision forecloses only those activities with environmental impacts-direct, indirect, or cumulative-that have not been considered in either a site-specific EA or a broader NEPA document to which the EA tiers. But that is the purpose of NEPA: to "require[ ] federal agencies ... to analyze environmental consequences before initiating actions that potentially affect the environment." Bosworth, 443 F.3d at 735-36. We conclude that the 3,960 horizontal Mancos Shale wells predicted in the 2014 RFDS were reasonably foreseeable after the 2014 RFDS issued. The BLM therefore had to consider the cumulative impacts of all 3,960 wells when it conducted its site-specific EAs. 2 Appellants argue that the air pollution caused by the horizontal Mancos Shale wells will exceed the air pollution amounts considered in the 2003 EIS. In support, Appellants point to a table that purports to "illustrate the total combined impacts of past, present, and reasonably foreseeable future development." Aplts. Br. at 43. Although the numbers in Appellants' table indicate that horizontal wells have a much greater environmental impact than do vertical wells, the numbers Appellants provide for the environmental impacts of vertical wells are not supported by the record. More importantly, the record does not contain the BLM's complete air pollution analysis, so we are unable to fully evaluate the air pollution argument Appellants make. Appellants' air pollution argument relies on the following assumptions: Well Type Construction Time Nox CO VOC PM10 (tpy) (tpy) (tpy) (tpy) Vertical 9 days 2.30 0.63 0.20 0.92 Horizontal 25 days 6.13 1.64 0.55 2.54 Id. at 44. Although these numbers support the conclusion that horizontal wells have a greater environmental impact than do vertical wells, these numbers are not supported either by the part of the record to which Appellants cite or by any other part of the record we could identify. First, Appellants cite to "JA2331-32 ( [pages 4-61-4-62 of the] 2003 EIS providing qualitative assessment of air quality impairment and violations of air standards)" and "JA2328-29 (emissions estimates based on developing 663 wells per year)" in support of the numbers they list for air pollution associated with vertical wells. Aplts. Br. at 44 n.22. The first cited portion of the 2003 EIS, however, analyzes the overall potential effect of contemplated drilling operations on air quality in the project area. Those pages do not analyze the air pollution contemplated by construction of vertical wells, as Appellants indicate they do. Moreover, there is no discernible connection between any of the numbers in this cited portion of the 2003 EIS and the numbers in Appellants' chart. The same is true of the other portion of the record Appellants cite: JA2328-29 (pages 4-58 and 4-59 of the 2003 EIS). That portion of the 2003 EIS provides an "estimation of emissions for each year" under Alternative B. JA2328. A table on the second cited page contains categories that match the categories in Appellants' chart-VOC, CO, Nox, and PM10. However, the table indicates that it depicts "Project Year 1 and Project Year 20 Annual Air Emissions Associated with Gas Production" under Alternative B. JA2329 (emphasis added). The numbers, therefore, do not represent air pollution associated with vertical well construction. And, once again, there is no discernible connection between any air pollution numbers in these pages and the vertical-well numbers in Appellants' table. Finally, Appellants indicate that the well construction time for a vertical well is nine days. Again, nothing in the part of the record to which Appellants cite supports that assertion. However, the 2003 EIS notes elsewhere that "the time to complete individual wells is generally between one and two months." JA2287 (emphasis added). This indicates that Appellants' cited nine days is incorrect. More fundamentally, the record does not contain crucial aspects of the BLM's NEPA analysis. Specifically, the record does not include the BLM's complete air pollution analysis. The 2003 EIS notes that "Appendix J includes the emissions estimates for Alternative D." JA2378. Appendix J also "presents data used to estimate annual air emissions" for each alternative. JA834. But Appendix J is not in the record. Further, from our review, no other part of the record includes data that would facilitate the comparison on which Appellants rely: the gross amount of NOx, CO, VOC, and PM10 created in the construction of a single vertical well. Those numbers might be in Appendix J-and they might even be the numbers Appellants include in their chart-but we have no way of determining that because Appendix J is not in the record. We therefore cannot evaluate whether, as Appellants argue, "the 3,945 existing vertically drilled and the reasonably foreseeable 3,960 horizontally drilled Mancos Shale wells exceed the total impacts predicted in the 2003 EIS." Aplts. Br. at 45. Appellants do not include the BLM's complete analysis of air pollution in the 2003 EIS, and therefore offer no way to compare the impacts contemplated by the 2003 EIS with the impacts that could result from 3,960 horizontal Mancos Shale wells. The BLM's NEPA analysis "is entitled to the presumption of regularity," Stiles, 654 F.3d at 1045, and Appellants have not carried their burden of demonstrating that the BLM acted arbitrarily or capriciously. 3 Appellants also argue that the total water used for drilling 3,960 horizontal Mancos Shale wells will exceed the water use contemplated in the 2003 EIS, and the BLM therefore abused its discretion in tiering the EAs to the 2003 EIS, issuing FONSIs, and approving APDs. We agree with Appellants that, as to five challenged EAs, the BLM did not consider the cumulative water use associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells. Therefore, as to these five EAs, the BLM's issuance of FONSIs and approval of APDs was arbitrary and capricious. Appellants' water-resources argument, like their air-pollution argument, is based largely on calculations in their comparison table. First, Appellants state that drilling a single horizontal well will use 1,020,000 gallons of water. In contrast, Appellants assert the 2003 EIS predicted that drilling a single vertical well would use 283,500 gallons of water. Appellants then multiply each of these numbers by the total number of wells (3,960 reasonably foreseeable horizontal wells; 3,945 already drilled vertical wells) and arrive at a total water consumption amount of over 5 billion gallons of water. According to Appellants, the 2003 EIS contemplated total water use of just over 2.8 billion gallons. Therefore, argue Appellants, when the 3,960 reasonably foreseeable horizontal Mancos Shale wells are taken into account, the projected water use increases by 82% over what the 2003 EIS considered. Although we note some discrepancies between Appellants' cited numbers and the numbers in the record, we reject Federal Appellees' argument that Appellants' water-resources calculations "do not withstand scrutiny." Fed. Aples. Br. at 33. Federal Appellees argue generally that water use could be decreased through "new strategies and technologies," Fed. Aples. Br. at 35 (quotations omitted), but they do not point us to any part of the record that contradicts Appellants' assertions that the cumulative water use associated with the reasonably foreseeable 3,960 wells dramatically exceeds the total water use contemplated in the 2003 EIS. We conclude that, regardless of the minor inaccuracies in their calculations, Appellants have established that the difference between the water use contemplated in the 2003 EIS and the water use associated with drilling the reasonably foreseeable horizontal Mancos Shale wells is more than a "mere[ ] flyspeck." Utahns for Better Transp., 305 F.3d at 1163. None of the five EAs before us considered the cumulative impacts of the water use associated with all 3,960 reasonably foreseeable horizontal Mancos Shale wells. The only discussion of water resources in EA 2015-0036 is as follows: [T]he operator would follow 'Pit Rule' guidelines and Onshore Order No. 1. Drilling operations would utilize a closed-loop system. Drilling of the horizontal lateral would be accomplished with water-based mud. All cuttings would be hauled to a commercial disposal facility or land farm. JA1241. Three other EAs (EA 2015-0066, EA 2016-0029, and EA 2016-0200/2016-0076) all list "Groundwater Resources" as an "issue considered but not analyzed." JA1305; JA1911-12; JA2082-83. Each of these EAs discusses the general process for hydraulic fracturing, then concludes that "[n]o impacts to surface water or freshwater-bearing groundwater aquifers are expected to occur from hydraulic fracturing of these proposed wells." JA1912; JA2083; accord JA1306 (containing the same substantive analysis with slightly different wording). EAs 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076 contain no discussion of the cumulative impacts related to water resources. EA 2014-0272 is the only EA that contains any discussion of the cumulative impacts on water resources. Its cumulative-impact analysis states: Reasonably foreseeable development within the Largo sub-watershed may include an estimated additional 1,811 oil and gas wells and related facilities. Surface-disturbing activities that would be associated with these actions may affect an estimated 6,756 acres ( [2003 EIS], page 4-7). The [2003 EIS] determined that the primary cumulative impacts on water quality would result from surface disturbance, which would generate increased sediment yields ( [2003 EIS] pages 4-123 and 4-124). Cumulative effects to water resources from the proposed action would be maximized shortly after construction begins and would decrease over time as reclamation efforts progress. The proposed action would cumulatively contribute approximately 20.0 acres of long-term disturbance in the watershed. Cumulative impacts to surface waters would be related to short-term sedimentation or flow changes. Surface-disturbing activities other than the proposed action that may cause accelerated erosion include-but are not limited to-construction of roads, other facilities, and installation of trenches for utilities; road maintenance such as grading or ditch cleaning; public recreational activities; vegetation manipulation and management activities; prescribed and natural fires; and livestock grazing. JA1141. This analysis of the cumulative impacts on water resources does not address the water consumption associated with the 3,960 reasonably foreseeable Mancos Shale wells. As to these five EAs, the BLM was required to, but did not, consider the cumulative impacts on water resources associated with drilling the 3,960 reasonably foreseeable horizontal Mancos Shale wells. The BLM therefore acted arbitrarily and capriciously in issuing FONSIs and approving APDs associated with these EAs. Federal Appellees make two additional arguments in support of the BLM's NEPA analysis, both of which we reject. Federal Appellees first argue that Appellants advocate "too narrow a definition of cumulative impact-one that would require specific, quantitative measurements of all potential effects." Fed. Aples. Br. at 33. Instead, argue Federal Appellees, the 2003 EIS analyzed cumulative impacts via a "broad, qualitative approach ... consistent with the purpose of [a] programmatic EIS." Id. This argument fails because the record indicates that (1) the BLM did quantify the cumulative water-resources impacts of proposed drilling in the 2003 EIS, (2) the BLM could have quantified the cumulative water-resources impacts of the horizontal Mancos Shale wells, and (3) water use is an important aspect of the environmental impacts associated with well drilling. First, the 2003 EIS quantified the total amount of water required for drilling operations in each considered alternative. Second, four of the five EAs we consider also included a quantitative measure of the amount of water the drilling operations for the proposed APDs would use. Finally, the 2003 EIS acknowledged that "[t]he primary issues and concerns regarding water resource problems caused by oil and gas development involve ... water consumption and use." JA2283. Likewise, the 2014 RFDS noted that "[t]he development of the Mancos play will require additional fresh water for stimulation purposes," and acknowledged that "horizontal completions ... require large volumes of water for hydraulic fracturing." JA1686. We therefore reject Federal Appellees' argument that the BLM could conduct an adequate cumulative-impacts analysis without quantifying the amount of reasonably foreseeable water use. The BLM had non-speculative figures that it could use to quantify the cumulative impact of the drilling, and the water-resources impacts were important. The BLM was therefore required to consider those impacts to comply with NEPA. SeeWyoming v. USDA, 661 F.3d at 1253 (rejecting the argument that an EIS failed to adequately consider cumulative impacts because "cumulative impacts that are too speculative or hypothetical to meaningfully contribute to NEPA's goals of public disclosure and informed decisionmaking need not be considered"); Utah Envtl. Congress v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007) ("An agency's decision will be deemed arbitrary and capricious if the agency entirely failed to consider an important aspect of the problem[ ].... [or] failed to base its decision on consideration of the relevant factors...." (internal quotations and alterations omitted)). We also reject Federal Appellees argument that "the site-specific APD EAs addressed cumulative drilling effects that differ in type and magnitude from those examined in the" 2003 EIS. Fed. Aples. Br. at 37. As discussed, the record indicates otherwise. None of the five EAs we consider contain any analysis of the cumulative impact to water resources from the 3,960 reasonably foreseeable horizontal Mancos Shale wells. And the record supports the conclusion that the water use associated with those 3,960 wells far exceeds the water use considered in the 2003 EIS. The 2003 EIS's water-resources analysis was therefore not "sufficiently comprehensive or adequate" to support the proposed drilling, and the EAs were required to "provide any necessary analysis." 43 C.F.R. § 46.140(b). Because they did not, the BLM violated NEPA. Appellants have established that the water use associated with drilling the 3,960 reasonably foreseeable horizontal Mancos Shale wells exceeded the water use contemplated in the 2003 EIS in a way that made the BLM's failure to consider the cumulative water impacts "significant enough to defeat the goals of informed decisionmaking and informed public comment." Utahns for Better Transp, 305 F.3d at 1163. We conclude that the BLM acted arbitrarily and capriciously in issuing FONSIs and approving APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076. VII Because we conclude that the BLM violated NEPA, we remand to the district court with instructions to vacate the FONSIs and APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076, and to remand those EAs to the BLM to conduct a proper NEPA analysis. "Under the APA, courts 'shall' 'hold unlawful and set aside agency action' that is found to be arbitrary or capricious." WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1239 (10th Cir. 2017) (quoting 5 U.S.C. § 706(2)(A) ). "Vacatur of agency action is a common, and often appropriate form of injunctive relief granted by district courts." Id."In the past, we have done all of the following when placed in a similar posture: (1) reversed and remanded without instructions, (2) reversed and remanded with instructions to vacate, and (3) vacated agency decisions." Id. (collecting cases). And remand to the agency is usually the appropriate decision in this situation. See Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1225-26 (10th Cir. 2002) ("[A] reviewing court normally remands when it finds an agency's decision not to conduct an EIS arbitrary or capricious."). Given our remand instructions to vacate, however, there is no need to also "enjoin any further ground-disturbing activities on the APDs" as Appellants request. Aplts. Br. at 51. Once the APDs are vacated, drilling operations will have to stop because "[n]o drilling operations, nor surface disturbance preliminary thereto, may be commenced prior to" APD approval. 43 C.F.R. § 3162.3-1(c). Because vacatur is "sufficient to redress [Appellants'] injury, no recourse to the additional and extraordinary relief of an injunction [is] warranted." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 166, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). VIII For the foregoing reasons, we affirm in part and reverse in part the judgment of the district court. We remand to the district court with instructions to vacate the FONSIs and APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076, and to remand those EAs to the BLM to conduct a proper NEPA analysis. Appellants are four environmental advocacy groups: (1) Diné Citizens Against Ruining Our Environment, comprised of Navajo community activists from the Four Corners region, (2) San Juan Citizens Alliance, concerned with social, economic, and environmental justice in the San Juan Basin, (3) WildEarth Guardians, based in Santa Fe, New Mexico and with members and offices throughout the western United States, and (4) Natural Resources Defense Council, with members throughout the United States, many of whom reside in New Mexico. The number of wells at issue on appeal is unclear. Although the district court ruled that twenty-eight challenged APDs are not final agency action and four others are moot-a ruling Appellants do not appeal-Appellants continue to assert that 362 APDs (the same number they argued throughout briefing in the district court) are at issue. Federal Appellees, for their part, assert that the challenged wells "number[ ] 337 as of October 17, 2018," but cite only to the district court's opinion in support. Fed. Aples. Br. at 18. Regardless, both of these requirements are met. Each organization has the goal of protecting the environment in some way. And nothing indicates that individual members would need to participate for the court to grant the relief Appellants request. Because "standing is determined at the time the action is brought," Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007), it does not affect our standing analysis that these dates are now past. Although we dismissed the appeal in Palma for lack of ripeness, Palma still informs our injury-in-fact determination. Because we concluded that the Palma plaintiffs had established a concrete and particularized injury, we went on to consider "not whether SUWA is a proper party to challenge BLM's decision, but when it can do so." 707 F.3d at 1157. But our determination that the Palma plaintiffs' harm was not ripe does not render obsolete our conclusion that their harm was sufficiently concrete and imminent. Palma therefore appropriately informs our injury-in-fact analysis here. The harms Appellants allege are the same for their NHPA claims (an increased risk of harm to Chaco Park and the surrounding area), and NHPA is also a procedural statute, so the standing analysis for NHPA is the same as for NEPA in this case. Appellants have established standing under NHPA because they allege a concrete and particularized injury in fact that is fairly traceable to the BLM's alleged failure to comply with NHPA and could be redressed by a favorable decision. It appears that many CRSs and Records of Review analyze the impacts on historic properties for more than one APD. And it appears that most, if not all, EAs analyze the impacts of more than one APD. Regardless, the record on appeal contains far fewer than all of the documents containing the BLM's NHPA analyses. We note that even as to these EAs, it is possible that the record does not contain the BLM's entire NEPA analysis. See, e.g., JA2143 (stating "Appendix D. Surface Reclamation Plan," but not containing any surface reclamation plan). However, because we do not identify-and the parties do not point to-any missing portion of these EAs relevant to the challenges Appellants raise on appeal, we conclude that the record is sufficient for us to evaluate Appellants' NEPA claims as to these EAs. Although Appellants acknowledge the existence and applicability of the 2004 Protocol, they make no NHPA arguments under the 2004 Protocol. Federal Appellees assert (without citation) that "[a]pproximately 221 of the challenged drilling permits were approved at the time the 2004 Protocol was operative, and approximately 163 permits fell under the 2014 Protocol." Fed. Aples. Br. at 12. All of Appellants' NHPA arguments, however, rely on the 2014 Protocol. Because we conclude that Appellants' NHPA challenge fails for other reasons, we need not address the effect Appellants' failure to argue that the BLM violated the 2004 Protocol might otherwise have on Appellants' NHPA challenges. Despite the BLM's extensive NHPA analysis for the Kimbeto Wash Unit wells, parts of the record indicate that the BLM may not have considered the cumulative and indirect impacts of other challenged APDs so thoroughly. For example, in discussing possible cumulative impacts, some EAs state simply that "[t]here would be no negative cumulative impact on cultural resources, as significant cultural sites would be avoided." JA1154; accord JA1267 (same); JA1333 (same). Depending on the circumstances-and whether this were indeed the only cumulative impacts analysis the BLM completed-this cursory analysis could be insufficient. However, other parts of the record contain more thorough indirect- and cumulative-effects analyses. Indeed, the apparent difference in the substance of the BLM's NHPA analyses for different APDs highlights the need to examine each of the BLM's challenged actions individually and with reference to a complete record of the BLM's NHPA analysis. And, of course, we cannot determine that the BLM's analysis was insufficient for one APD by examining the analysis the BLM conducted for a different APD. Indeed, Appellants criticize this aspect of the BLM's NHPA process, arguing that the BLM's APE definition "resulted in the agency excluding from its analysis all cultural sites likely to be adversely affected by noise, light, and air pollution." Aplts. Br. at 30. Amici All Pueblo Council of Governors and the National Trust for Historic Preservation in the United States argue that the BLM did not adequately consult with Native American tribes before approving the APDs. Appellants did not make this argument in district court, and we decline to consider it for the first time on appeal. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) ("[A]bsent extraordinary circumstances, we will not consider arguments raised for the first time on appeal."). "Tiering refers to the coverage of general matters in broader environmental impact statements ... with subsequent narrower statements or environmental analyses ... incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared." 40 C.F.R. § 1508.28. EA 2012-0268 was completed in June 2012, more than two years before the 2014 RFDS issued. Appellants' cumulative-impacts argument relies entirely on the 2014 RFDS's prediction of 3,960 horizontal Mancos Shale wells. Because Appellants provide no reason other than the 2014 RFDS that the BLM's NEPA analysis should have included the environmental impacts from 3,960 horizontal Mancos Shale wells, Appellants do not establish that the BLM violated NEPA as to EA 2012-0268. NOx is nitrous oxide; CO is carbon monoxide; VOC is volatile organic compound; and PM10 is particulate matter at 10 microns. Each is a form of air pollution. This portion of the 2003 EIS analyzes emissions associated with Alternative B-which the BLM did not select. Elsewhere, the 2003 EIS notes that air emissions under Alternative D, the selected alternative, would be "99.7% of that under Alternative B." JA782. Air emission estimates for Alternative B therefore could inform estimates for Alternative D. First, the average of 6,750 barrels of water per well on which Appellants base their vertical well calculations is the figure contemplated under Alternative A, which the BLM did not select. For Alternative D, the BLM's chosen alternative, the 2003 EIS predicted total water use of 7,000 acre-feet or an average of 0.70 acre-feet (228,095 gallons) of water for each well. And although the 2014 RFDS noted an average water use of 3.13 acre-feet (1.02 million gallons) for the 55 horizontal wells that had reported water use numbers, other figures to which Appellants cite in their water use comparison are not supported by the record. Specifically, Appellants indicate that three EAs "calculat[e] 966,000 gallons per horizontal well." Aplts. Br. at 44 n.21. Each of these three EAs, however, estimate that "23,000 barrels of useable water would be required to drill each well," but "approximately 10,000 to 11,000 barrels would be recovered for reuse," resulting in a net water use for these wells of 12,000 to 13,000 barrels, or 504,000 to 546,000 gallons. JA1071, JA1075, JA1083. 966,000 gallons is the amount of water in 23,000 barrels, indicating that Appellants ignored the EAs' prediction that water would be recovered for reuse. All five EAs referenced the 2003 EIS in their analysis of the cumulative impacts associated with air pollution, but not water use. We deny Navajo Allottees Alice Benally, Lilly Comanche, Virginia Harrison, Samuel Harrison, Dolora Hesuse, Verna Martinez, and Lois Phoenix's motion to file an amicus brief because "the matters asserted in [Navajo Allottees' amicus brief] are [not] relevant to the disposition of the case," Fed. R. App. P. 29(a)(3)(B).

Center for Biological Diversity v. Mattis

OPINION MURGUIA, Circuit Judge: The U.S. Department of Defense (the Government) approved the location, construction, and specifications for a military base in Okinawa, Japan. Individuals and organizations seek to protect a local animal population and cultural property from the base’s alleged adverse effects by bringing claims for declaratory and injunctive relief based on the Government’s alleged violations of Section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101(e), and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The plaintiffs allege the Government failed to “take into account” the base’s impact on their cultural, aesthetic, economic, and environmental interests. The district court dismissed the case, concluding that it lacked jurisdiction to hear the claims for declaratory relief because plaintiffs lacked standing to seek declaratory relief, and concluding that it could not hear the claim for injunctive relief because resolving that claim involved deciding a political question. We conclude that the plaintiffs have standing to bring their declaratory relief claims and that plaintiffs’ injunctive relief claim does not present a political question. We therefore affirm the district court’s conclusion that plaintiffs’ claims for declaratory relief do not present a political question; reverse the district court’s conclusion that plaintiffs lack standing to seek declaratory relief; and reverse the district court’s conclusion that plaintiffs’ claim for injunctive relief presents a political question. We remand to the district court for further consideration of plaintiffs’ claims for declaratory and injunctive relief. 1. Background and Procedural History A. The Okinawa Dugong The dugong is a species of marine mammal resembling a manatee. See Ctr. for Biological Diversity v. Hagel, 80 F.Supp.3d 991, 994 (N.D. Cal. 2015) (Okinawa Dugong III). Dugong populations are often small and isolated, and live only in saltwater. See generally 68 Fed. Reg. 70185 (Dec. 17, 2003). Dugongs have long lifespans, but do not reproduce at a high rate, and because of their exclusively plant-based diet may face difficulty in moving to new locations to find food. See id. at 70186. The dugong largely depends on seagrass communities for survival and must stay close to the coastal habitats where seagrass grows. See id. (noting that the dugong’s “close ties to the shore increase its chances of local extinction”). The same food sources are vulnerable to development on or soil runoff from coastal lands. See, e.g., Okinawa Dugong III, 80 F.Supp.3d at 997-98. Hunting and the fragility of the dugong’s habitat have taken a toll on its numbers: the United States lists the dugong as an “endangered” species under the Endangered Species Act (ESA), the World Conservation Union considers the dugong “vulnerable,” and Japan considers the dugong “critically endangered.” Id. at 995. Okinawa is the largest of the Ryukyu Islands in Japan. See Okinawa Dugong v. Gates, 543 F.Supp.2d 1082, 1084 (N.D. Cal. 2008) (Okinawa Dugong II). Okinawa has a culture and local mythology distinct in some ways from the Japanese mainland. See id. The dugong is significant within traditional Okinawan culture, and continues to hold special significance for at least some Okinawans. Okinawa Dugong III, 80 F.Supp.3d at 995. At present, the Okinawa dugong population is the northernmost dugong population in the world. The population is small— perhaps as few as 50 in number, according to a 1997 estimate by the Mammalogical Study of Japan — and located in the waters to the east of Okinawa. Id. at 995. Because of its significance in Okinawan culture, the Japanese government has designated the Okinawan dugong population for protection under Japan’s Law for the Protection of Cultural Properties. See Okinawa Dugong II, 543 F.Supp.2d at 1084. Under Japanese law, therefore, the dugong is a “natural monument” or “cultural property.” Id. The designation of the Okinawa dugong in this fashion provides the legal hook for the challenge at the heart of this appeal. Plaintiffs-appellants are individuals and organizations, including the Center for Biological Diversity, the Turtle Island Restoration Network, the Japan Environmental Lawyers Federation, and the Save the Du-gong Foundation (collectively, CBD). Among the plaintiffs-appellants are three individual Japanese citizens and four international environmental organizations. Okinawa Dugong III, 80 F.Supp.3d at 995. The individual plaintiffs reside in Japan, and either live on Okinawa or guide du-gong tours. Id. The organizations have members who allege aesthetic and environmental interests in the Okinawa dugong. Id. B. Diplomatic Framework for Okinawan Territory The Government’s interests in Okinawa include a longstanding security relationship with the Government of Japan. The United States military has maintained a presence on Okinawa from the close of World War II up to the present day. Okinawa Dugong II, 543 F.Supp.2d at 1084. The military has several bases in Okinawa. Okinawa Dugong III, 80 F.Supp.3d at 995-96. “Today, as throughout our Nation’s history, there is significant variation in the ownership status of U.S. military sites around the world.” United States v. Apel, — U.S. -, 134 S.Ct. 1144, 1151, 186 L.Ed.2d 75 (2014). The Government’s operation of military bases in Japan involves “complex and long standing treaty arrangements.” NEPA Coal. of Japan v. Aspin, 837 F.Supp. 466, 467 (D.D.C. 1993). From 1945 to 1972, the United States administered Okinawa, while Japan retained residual sovereignty. Okinawa Dugong III, 80 F.Supp.3d at 995. In 1972, after years of negotiations, Japan and the United States entered into a new arrangement, restoring full Japanese sovereignty over Okinawa. See The Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands, June 17, 1971, 23 U.S.T. 447 (the Okinawa Reversion Treaty); Okinawa Dugong III, 80 F.Supp.3d at 995-96; Okinawa Dugong II, 543 F.Supp.2d at 1084. Under the Okinawa Reversion Treaty, the United States ceased to administer Okinawa and the island chains, which became a prefecture of Japan, but the United States retained “the use of facilities and areas in” Okinawa. Okinawa Reversion Treaty, arts. I, ¶1, III, 23 U.S.T. 447; see Okinawa Dugong II, 543 F.Supp.2d at 1084. The United States continued to use Okinawan territory pursuant to two additional agreements: the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Jan. 19, 1960, 11 U.S.T.. 1632 (Security Treaty) and the Agreement Under Article VI of the [Security Treaty] Regarding Facilities and Areas and the Status of United States Forces in Japan, Jan. 19, 1960, 11 U.S.T. 1652 (Status of Forces Agreement). See Okinawa Dugong II, 543 F.Supp.2d at 1084. The Security Treaty and Status of Forces Agreement setup a bilateral Security Consultative Committee (Consultative Committee) consisting of two principals from each of the two nations: Japan’s Ministers of Defense and Foreign Affairs, and. the United States’ Secretaries of State and Defense. Id. at 1084-85. The Consultative Committee provides the forum for the two countries to consult when deciding what areas and facilities the United States will use for the defense purposes of the Security Treaty. Id. Article XXV of the Status of Forces Agreement also . establishes a “Joint Committee” — separate from the Consultative Committee — with one representative from each nation. The functions of the two committees appear broadly similar. In effect, this diplomatic framework is an agreement by the United States to provide security to Japan in exchange for the space to do so. To that end, Article III of the Status of Forces Agreement provides that “within the facilities and areas granted for use of the United States, the United States may take all measures necessary for the establishment,. operation, safeguarding, and control of assigned facilities.” This includes authority for the United States to control which individuals may access bases or facilities. One longstanding base is Marine Corps Air Station Futenma (MCAS-Futenma), which supports Marine air operations. Dugong v. Rumsfeld, No. C 03-4350 MHP, 2005 WL 522106, at *1 (N.D. Cal. Mar. 2, 2005) (Okinawa Dugong I); see Okinawa Dugong III, 80 F.Supp.3d at 996. MCAS-Futenma is located in Ginowan City, a site of growing urban development on Okinawa. Okinawa Dugong III, 80 F.Supp.3d at 996. The growth and resulting change in surrounding conditions since the base was first established has led Japanese officials to express concern about the effect of the base on the health and safety of Japanese citizens. Id. American officials have agreed the base’s current location poses challenges, and the two nations have engaged in efforts to relocate MCAS-Futenma since at least 1996. Id. The two countries’ efforts have focused primarily on moving the Okinawa base to a less densely populated area. Relocating MCAS-Futenma to a new site has taken a great deal of time and effort. See, e.g., Okinawa Dugong II, 543 F.Supp.2d at 1085-86. In 2006, the Consultative Committee released the “United States-Japan Roadmap for Realignment Implementation”' (the Roadmap) — a bilateral executive agreement between the two nations that agreed on a plan of action for, among other things, relocation of MCAS-Futenma. Id. at 1086. The Roadmap sets forth that Japan will build a replacement military base, the Futenma Replacement Facility (FRF), near Camp Schwab, a. military base already located adjacent to Oura and Henoko Bays. Okinawa Dugong III, 80 F.Supp.3d at 996. Officials from the two nations, selected the site after considering other potential base sites, including a sea-based location. See Okinawa Dugong II, 543 F.Supp.2d at 1085-86. Critical to the design of the FRF is a “V-shaped” set of runways built on top of landfill and extending into what are now the waters of the Oura and Henoko Bays. Okinawa Dugong III, 80 F.Supp.3d at 996, 996 n.4. The runways are approximately 1600 meters long, with additional space for “overrun.” Id. at 996. After the 2006 Road-map, no “serious” construction work occurred for the next seven years. Id. at 997. The FRF Project continued to be the subject of active diplomatic negotiations between Japan, and the United States. Id. This included attention to the environmental impact of the base on eastern Okinawa. In Japan, government officials prepared a draft environmental impact. statement (EIS) in 2009, and issued a final EIS in 2012. Id. The. Japanese EIS included attention'to “potential impacts on the du-gong” from the runways and other FRF construction. Id. The Japanese EIS concluded that there would be no adverse effects on the Okinawa dugong from the FRF'. C. Prior Decisions CBD filed suit against the U.S. Department of Defense and the Secretary of Defense in his official capacity in September 2003, CBD filed its suit after it became clear that the likely site of the FRF might have effects on the -Okinawa- dugong, but prior to Japan and the United States entering into the 2006 Roadmap. In its complaint, CBD alleged that the FRF was a serious threat to the Okinawa dugong. CBD rested its claims on Section 402 of the NHPA and the APA. NHPA Section 402 requires that United States agency officials “take into account the effect” of any Government undertaking “[pjrior. to the approval of any undertaking outside the United States that may directly and adversely affect” recognized cultural heritage sites or properties, “for purposes of avoiding or mitigating any adverse effect.” 54 U.S.C. § 307101(e). CBD alleged that the Government had failed to “take into account” the effect the FRF might have on the Okinawa dugong, violating NHPA Section 402. The Government first argued that NHPA Section 402 does not provide a cognizable basis for relief. The Government moved to dismiss on the basis that the dugong was not “property” implicated by NHPA Section 402 and that the protected status of the dugong under Japanese law was not “equivalent” to being on the United States’ National Register. See Okinawa Dugong I, 2005 WL 522106 at *6. The district court concluded that the NHPA could apply to the Government’s design and construction of the FRF. Id. at *18. The district court found that Japan’s cultural property protection law was equivalent to the United States’ National Register, implicating NHPA Section 402, and that the dugong was a property the NHPA protects. Id. at *7-12. The district court also held that the NHPA applied extrater-ritorially because the statute on its face “explicitly demonstrate^] Congress’s intent that it apply abroad where a federal ‘undertaking’ promises to have direct or adverse effects on protected foreign properties.” Id. at *18. The district court also ruled that relocation of MCAS-Futenma could be an “undertaking” for NHPA purposes, but that factual disputes precluded ruling on that question or on determining whether Japan’s role made the action un-reviewable under the act of state doctrine. See id. at *8, *10-11, *19-20. The parties had to develop the case further to allow for a conclusion on whether the FRF would actually have the potential to affect the dugong adversely and whether the Secretary of Defense had in fact discharged his NHPA Section 402 obligations. Id. at *16-18. After this decision, Japan and the United States announced the Roadmap, and CBD filed a second amended complaint. After development of the record, the parties filed cross-motions for summary judgment. In 2008, the district court ruled in favor of CBD on the cross-motions for summary judgment. Okinawa Dugong II, 543 F.Supp.2d at 1112. The district court held that the individual plaintiffs and most of the organizations had standing. Id. at 1096. The district court also dismissed a number of other threshold jurisdictional arguments from the Government, including arguments based on the lack of a “final agency action” under the APA, a failure of ripeness, the act of state doctrine, and Federal Rule of Civil Procedure 19’s requirement to join necessary and indispensable parties (here, Japan). Id. at 1096-1100. The Government did not raise the political question doctrine at that time. The district court then held that NHPA Section 402 applied to the Government because the FRF was a “federal undertaking” within the meaning of the statute and the undertaking might have adverse effects on the dugong. IcL at 1101-02. Having reached this conclusion, the district court interpreted the requirements of NHPA Section 402, which was an issue of first impression. Id. at 1102. The district court concluded that satisfying NHPA Section 402’s process must include, at a minimum: (1) identification of protected property, (2) generation, collection, consideration, and weighing of information pertaining to how the undertaking will affect the historic property, (3) a determination as to whether there will be adverse effects or no adverse effects, and (4) if necessary, development and evaluation of alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects. The person charged with responsibility for this basic process is the person with jurisdiction over the undertaking, and compliance with the process must occur before the undertaking is approved. In addition, a federal agency does not complete the take into account process on its own, in isolation, but engages the host nation and other relevant private organizations and individuals in a cooperative partnership. Id. at 1104. The district court concluded that the Government had failed to comply with NHPA Section 402 because the “record contains no evidence that a single official from [the Government] with responsibility for the FRF has considered or assessed the available information on the dugong or the effects of the FRF.” Id, at 1108. This, in turn, was a violation of the APA, because it was agency action “unreasonably delayed and unlawfully withheld.” Id. at 1112 (citing 5 U.S.C. § 706(1)). The district court ordered the Government to comply with NHPA Section 402. Id. The district court then ordered the case “held in abeyance until the information necessary for evaluating the effects of the FRF on the dugong is generated, and until defendants take the information into account for the purpose of avoiding or mitigating adverse effects to the dugong.” Id. The district court ordered the Government to submit additional information and documentation within 90 days, describing [1] what additional information is necessary to evaluate the impacts of the FRF on the dugong; [2] from what sources, including relevant individuals, organizations, and government agencies, the information will be derived; [3] what is currently known or anticipated regarding the nature and scope of Japan’s environmental assessment and whether that assessment will be sufficient for meeting defendants’ obligations under the NHPA; and [4] identifying the DOD official or officials with authorization and responsibility for reviewing and considering the information for purposes of mitigation. Id. The district court did not issue an appealable final order. Eventually, in February 2012, without motion from either party, the district court administratively closed the case, citing reported obstacles in FRF construction. The district court instructed the parties to reopen the proceeding via letter when the FRF Project’s likely outcome was more certain. After the district court’s 2008 decision in Okinawa Dugong II and the parties’ attempts to comply with the district court’s order, the U.S. Department of Navy engaged in an analysis pursuant to NHPA Section 402. Among other steps, the Navy (1) commissioned an independent study on the potential effects of the FRF on the Okinawa dugong, (2) engaged with the Government of Japan, (3) reviewed “multiple biological, environmental, and historical studies relating to the impact” of the project on the dugong, (4) reviewed Japan’s EIS, including comments, (5) reviewed CBD’s litigation materials, including the declaration of CBD’s expert, and (6) consulted with sixteen experts in diverse disciplines, including some recommended by CBD. The Navy in a draft report also suggested a number of mitigation measures to the Government of Japan “to avoid possible adverse impacts to the Okinawa dugong.” The Navy also identified mitigation measures to consider during operations of the base. The Government released its final report, the U.S. Marine Corps Recommended Findings (Marine Corps Findings), in April 2014. In its report, the U.S. Navy concluded that-the FRF would have no adverse impact on the Okinawa dugong population. The parties continue to dispute whether the Government actually discharged its NHPA Section 402 obligations. The Government subsequently filed a notice of completion of the NHPA process for the FRF. The Government submitted the Marine Corps Findings to CBD, but did not provide the district court or CBD with an administrative record or underlying documentation. In the interim, during 2013, the FRF construction project had “gained significant momentum.” Okinawa Dugong III, 80 F.Supp.3d at 997. The momentum included productive negotiations between the Government of Japan and the Governor of the Okinawa Prefecture. Id. CBD subsequently filed a supplemental complaint that alleged that limited construction work was underway, a fact to which both parties agreed as of 2Ó15. Since 2015, the FRF has had setbacks. Construction stopped in late 2015, before restarting, reflecting local political disputes relating to the FRF. Though construction appears to-be ongoing at this time, there is no reason to think completion of the base is imminent. D. Instant Federal Court Proceeding 1. Claims for Relief In its first supplemental complaint,-CBD brought a single claim for declaratory and injunctive relief, with several subparts. CBD stated that the Government’s failure to consult CBD as “interested parties” and failure to provide information to the public or seek public comment constituted violations of the “take into account” requirement of NHPA Section 402. CBD also alleged that failing to follow the NHPA requirements violated the APA, 5 TJ.S.C. § 706(2)(A), (2)(D). Finally, CBD alleged that the Government’s “conclusion that the construction and operation of the FRF will have no adverse effect on the Okinawa dugong” was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, within the meaning of the APA. In its prayer for relief, CBD asked for (1) “a judgment declaring” several violations of NHPA Section 402 and of the APA; (2) an order setting aside the Marine Corps Findings; (3) an order barring the Government from proceeding with the FRF project, including derivative procedural steps like permitting and construction approval, until the Government “complies with section 402 of the NHPA”; and (4) costs and fees. We will refer to the request for a declaratory, judgment and an order setting aside the Marine Corps Findings as CBD’s “claims for declaratory relief’ and the request for an order enjoining construction work as CBD’s “claim for injunctive relief.” 2. Motion to Dismiss and District Court, Order In September 2014, the Government moved to dismiss. At that point, the Government took the position that, all of CBD’s claims presented political questions, depriving the district court of jurisdiction. In February 2015, the district court granted the motion to dismiss, -but did so “on slightly different grounds than the Government requested].” The district court concluded that CBD’s requested in-junctive relief presented “nonjusticiable political questions.” Specifically, the district court ruled,that for the district court “to atop construction of a U.S. military facility overseas that has been approved by both the American and Japanese governments, and which is being built by the Japanese on their own sovereign soil, .runs afoul of the political question doctrine.” On CBD’s ciatos for declaratory relief, however, the district court declined to dismiss based on the political question doctrine, noting that these claims “arise in the context of a political case” but “do not present a non-justiciable political question.” The district court then concluded that even though the political question doctrine did not bar the claims 'for declaratory relief, CBD lacked standing to bring them because of “[t]he inability of this Court to fashion any injunctive or otherwise coercive relief to protect the dugong.” The district court concluded specifically that CBD could not show that a favorable judicial decision was likely to redress its injuries. The district court, having resolved both the injunctive and declaratory claims, dismissed the suit with prejudice. CBD timely appealed. II. Standard of Review We review de novo whether CBD has Article III standing, Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 907 (9th Cir. 2011), and the dismissal for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1039 (9th Cir. 2011). III. Order of Analysis The district court dismissed CBD’s claim for injunctive relief on political question grounds, and CBD’s ciatos for declaratory relief for lack of standing. Lack of standing deprives this court of Article III jurisdiction, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and the presence of a political question likewise deprives this court of jurisdiction. Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007). “Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). We analyze separately CBD’s standing for its declaratory and injunctive relief claims because “a plaintiff must demonstrate standing separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Likewise, the political question doctrine requires analysis on a claim-by-claim basis. See Alperin v. Vatican Bank, 410 F.3d 532, 547 (9th Cir. 2005) (“It is incumbent upon us to examine each of the claims with particularity.”). We therefore have four discrete threshold issues before us: standing for declaratory relief, standing for injunctive relief, whether declaratory relief presents a political question, and whether injunctive - relief presents a political question. The district court recognized the need to engage in a fresh analysis of standing, and not to rely on the facts as they stood at the outset of the litigation, See Quinn v. Anvil Corp., 620 F.3d 1005, 1012 (9th Cir. 2010). The district court, however, took a roundabout path to the standing question. Rather than confronting standing first, the district court, as noted above, discussed the political question doctrine for declaratory relief (finding no political question), then the political question doctrine for injunc-tive relief (finding the injunctive relief claim barred for presence of a political question), and then finally standing for declaratory relief (finding no standing for declaratory relief). We take a different approach. No GWEN All. of Lane Cty., Inc. v. Aldridge, 855 F.2d 1380, 1382 (9th Cir. 1988) (“When both standing and political question issues are before the court, the court should determine the question of standing first,”). We begin with standing for declaratory relief. IY. Discussion of Declaratory Relief A. Standing CBD alleges a procedural injury based on the NHPA, relying on the APA. Three elements form the “ ‘irreducible constitutional minimum’ of standing” to file suit in federal court. Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. CBD bears the burden to establish the elements of standing, which, when challenged in a motion to dismiss, are judged based on the allegations in its complaint. See Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014). 1. Injury-in-Fact A plaintiff shows a procedural injury-in-fact “when a procedural requirement has not been met, so long as the plaintiff also asserts a ‘concrete interest’ that is threatened by the failure to comply with that requirement.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003)). Congress cannot create an injury-in-fact or relax the injury-in-fact requirement. See Spokeo, 136 S.Ct. at 1547-48; see also Sausalito, 386 F.3d at 1197. A “concrete interest” implicated by a procedural requirement may reflect “aesthetic, conservational, and recreational” values and does not need to be an economic harm. Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Here, CBD alleges concrete aesthetic interests in the enjoyment of the Okinawa dugong. Two of the individual named plaintiffs also allege concrete economic interests through their tourism business. CBD also points to a procedural requirement, NHPA Section 402, and alleges the Government did not satisfy this requirement. The threat to CBD’s interests by the Government’s failure to satisfy the procedural requirement is clear because the requirement directly relates to “the effect of the undertaking on the property” within the meaning of NHPA Section 402. 54 U.S.C. § 307101(e). CBD therefore satisfies the first element of Article III standing. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 779 (9th Cir. 2006) (citing Friends of the Earth, 528 U.S. at 183, 120 S.Ct. 693) (finding injury-in-fact requirement met where plaintiffs pointed to use of affected area and activity that will lessen enjoyment of use). 2. Causation The next requirement of standing is whether the injury in question is “fairly traceable” to the conduct of the Government. The conduct of the Government for purposes of CBD’s challenge is the Government’s failure to “take into account” the effects of the FRF project on the dugong prior to the approval of a federal undertaking. A claim of procedural injury affects the standing analysis, and can relax some requirements. See Massachusetts v. E.P.A., 549 U.S. 497, 517-18, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Where, as here, claims rest on a procedural injury, “the causation and redressability requirements are relaxed.” California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781, 790 (9th Cir. 2014) (quoting Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001)). Causation in a NHPA case involves the take-into-account process for a federal undertaking. When analyzing the relevant undertaking in this case, we adopt the following description by the district court: DOD does not violate the NHPA by virtue of its bilateral participation in the design, site selection, construction and operation of a military facility that threatens a protected property. The NHPA violation arises instead from DOD’s failure to take into account information relevant for making a determination as to whether the military facility will adversely affect' the dugong and if so, how those effects may be avoided or mitigated. In other words, the challenged activity is not the undertaking itself, but the process by ivhich the effects of the undertaking are considered and assessed. Okinawa Dugong II, 543 F.Supp.2d at 1095 (emphasis added). In other words, we focus on causation by reference to the required NHPA process. CBD is not challenging entry into the 2006 Roadmap, or any specific approval, but whether the Government conducted the required take-into-account process. When, as of 2008, CBD was asking the Government to engage in the take-into-account process, its standing to challenge agency inaction was clear. At this stage in the litigation, the question is whether the action the Government took — the process detailed in and leading up to the Marine Corps Findings— satisfied NHPA Section 402 and APA standards for agency action. The relationship between causation and adverse effects remains intact, and the inquiry remains focused clearly on the process and not the result. CBD has shown causation and satisfied the second “irreducible” element of Article III standing. 3. Redressability The final standing question is whether CBD can establish redressability. It was on this ground that the district court in the decision under appeal concluded that CBD lacked standing to bring its claims. The plaintiff must show it is likely the injury “will be redressed by a favorable, decision.” Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693. “Plaintiffs alleging procedural injury can often establish redress[a]bility with little difficulty, because they need to show only that the relief requested — that the agency follow the correct procedures — may influence the agency’s, ultimate decision of whether to take or refrain from taking a certain action.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226-27 (9th Cir. 2008). In a project with many moving pieces, as well as several stops and starts, the details of the base’s construction and operation are susceptible to potential alteration and modification by the take-into-account process. Indeed, the take-into-account process of NHPA Section 402 envisions the process’ goal to be “avoiding or mitigating any adverse effect,” 54 U.S.C. § 307101(e), which implies that an undertaking will still be carried out. The Government, having concluded in the Marine Corps. Findings that no adverse effects are forthcoming, opposes standing based on the idea that no mitigation efforts are possible. The Government, for instance, notes practical obstacles to changing flight paths, storm water .management plans, or nighttime illumination. But this does not defeat standing, given the allegations in the operative complaint. If the Government has reached its conclusions about effects and mitigation after a sound NHPA Section 402 process, then it has complied with NHPA Section 402; the claim fails not for lack of standing but on the merits. If the Government has not followed NHPA Section 402, then these arguments are unavailing, because the underlying determinations about effects and mitigation lack validity. In concluding CBD lacked standing, the district court relied heavily on our decision in Salmon Spawning, 545 F.3d 1220. In Salmon Spawning, the State.Department sought to enter into a treaty with Canada regarding fisheries in the .waters off the Pacific Northwest (Fisheries Treaty), Id. at 1223. The State Department’s action triggered a consultation requirement under the, ESA, whereby the State Department had to request advice from either the National Marine Fisheries. ,. Service (NMFS) -or the Fish and Wildlife Service on the likelihood of the. action threatening endangered species with extinction. Id. The United States would not implement the Fisheries Treaty unless, the federal government had discharged relevant consultation requirements under domestic statutory law. See id. That consultation requirement required the NMFS to issue a biological opinion (BiOp), which in relevant part concluded that the Fisheries Treaty would not jeopardize any endangered species. See id. at 1223-24. The plaintiffs challenged the BiOp as arbitrary and capricious and claimed that implementation of the Fisheries Treaty was unlawful without a legally adequate consultation. Id. at 1224. The plaintiffs sought declaratory and in-junctive relief. See Salmon Spawning & Recovery All. v. Gutierrez, No. C05-1877RSM, 2006 WL 2620421, at *2 (W.D. Wash. Sept. 12, 2006), aff'd in part, rev’d in part and remanded, 545 F.3d 1220. In Salmon Spawning, we characterized the claim as.a challenge to “the biological foundation for the Treaty.” 545 F.3d at 1225. We concluded that “if the groups were successful in establishing that NMFS failed to comply with the procedural requirements of ESA § 7 in deciding whether the United States’ entrance into the Treaty would jeopardize listed species, the procedurally flawed consultation and defective BiOp could theoretically be set aside.” Id. at 1226. But we immediately noted that “a court could not set aside the next,, and more significant, link in the chain — the United States’ entrance into the Treaty. While the United States and Canada can decide to withdraw from the Treaty, that is a decision committed to the Executive Branch, and we may not order the State Department to withdraw from it.” Id. On that basis, we concluded that the plaintiffs could not show redressábility, even under the relaxed showing necessary for a procedural injury, because “[t]he agency action that the BiOp authorized was the United States’' entrance into the Treaty” and the court had no power to disturb the entrance into the Fisheries Treaty. Id. at 1227. Salmon Spawning suggests that to the extent CBD seeks declaratory relief aimed at challenging the 2006 Roadmap, or the decision to initiate the FRF Project, CBD lacks standing. Indeed, perhaps for this reason, the Government treats CBD’s challenge in this case as akin to the effort to invalidate the Fisheries Treaty in Salmon Spawning. As noted above, however, CBD’s claim concerns the take-into-account process of NHPA Section 402, Okinawa Dugong II, 543 F.Supp.2d at 1095, and CBD does not seek to invalidate any specific decision. Instead, CBD is seeking a declaration that the Government did not take into account the effects of the. FRF project on the dugong, as the Government was required to do under NHPA Section 402. Further, the district court overlooked a more limited challenge by the Salmon Spawning plaintiffs that we did sustain: a claim that the NMFS was obligated to “reinitiate” its analysis and consultation in light of new data. We concluded that Article III standing was satisfied, including redressábility, because the fact that it is uncertain whether reinitiation will ultimately benefit the groups (for example, by resulting in a “jeopardy” determination) does not undermine their standing. The asserted injury is not too tenuously connected to the agencies’ failure to reinitiate consultation. And a court order requiring the agencies to reinitiate consultation would remedy the harm asserted. Unlike the other claims, this claim is a forward-looking allegation whose remedy rests in the hands of federal officials and does not hinge on upsetting the Treaty. Salmon Spawning, 545 F.3d at 1229 (citation omitted). Here, CBD’s claim is similarly forward-looking and “does not hinge on upsetting” the 2006 Roadmap or the FRF Project. It is merely seeking that the Government discharge a statutory procedural requirement. If the Government has failed to do so, then the court can remedy the defect by ordering the Government to comply with its statutory obligations. Mayfield v. United States also does not provide a basis to defeat CBD’s standing here. 599 F.3d 964 (9th Cir. 2010). The plaintiff in Mayfield sought declaratory relief that aspects of the Foreign Intelligence. Surveillance Act (FISA) violated the Fourth Amendment of the United States Constitution. 599 F.3d at 966. Mayfield is distinguishable for three reasons. First, Mayfield’s claim was not procedural in nature, meaning that the redressábility analysis in his case was not characteristic of procedural injuries. CBD’s claims, as discussed, are procedural. Second, Mayfield’s relief was limited to declaratory relief because of a settlement. Id. at 968 (“The parties agreed that the sole relief that Mayfield could seek or that the court could award with regard to this claim would be a declaratory judgment.”). We concluded, “[T]he only relief that would redress this alleged Fourth Amendment violation is an injunction requiring the government to return or destroy such materials,” which was not within the scope of what Mayfield could seek. Id. at 972. CBD has not bargained away its right to seek injunctive relief, and for procedural injuries the lack of injunctive relief is not fatal to standing for declaratory relief. See Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir. 2015). Finally, in Mayfield, the likelihood of redress seemed minimal because there was no indication that the Government would “return the materials of its own volition, as it is under no legal obligation to do so, and has stated in its brief that it does not intend to take such action.” 599 F.3d at 972. But while the redress sought in Mayfield related to information the Government had no legal obligation to delete or return, here the redress relates to a legal requirement binding on the government, NHPA Section 402. A declaratory judgment finding that the Marine Corps Findings do not satisfy NHPA Section 402 would impose a legal obligation on the Government because a procedural requirement would stand unfulfilled. Unlike Mayfield, where a ruling would be of “no direct consequence” to the plaintiff, here CBD’s claims for declaratory relief, challenging the NHPA Section 402 process, are something a legally adequate NHPA Section 402 process could address. CBD in its complaint alleges that the Government would discharge its obligations under NHPA Section 402 by taking steps that include: a.Producing, gathering, and adequately considering the necessary information for taking into account all the effects of the FRF on the Okinawa dugong and for determining whether mitigation or avoidance measures are necessary and possible; b. Making this information and other documentation relevant to the section 402 “take into account” process available to the public; and c. Consulting with all interested parties, including Plaintiffs, and inviting public participation in the section 402 process. CBD alleges the Government has not taken these steps. An adequate process will benefit CBD, even for an ongoing project. CBD therefore has standing to pursue these claims. Further, the relevant controversy has not yet concluded. The Government asserts that the Japanese government “has completed its environmental analysis and finalized its stormwater management design, and is in the process of constructing the FRF.” But the FRF project has seen stops, starts, and modifications throughout its history. We cannot assume that the project is “finalized” and that a new NHPA Section 402 analysis — -if required— would not lead to changes, minor or major, to the details of the construction of the FRF. We especially cannot assume that it would affect details of the operation of the FRF, once completed. As we noted in a case involving a different provision of NHPA, we should not “pre-judge the outcome of any consultations” that may take place. Tyler v. Cuomo, 236 F.3d 1124, 1134 (9th Cir. 2000). “At this point ... it is impossible for us to know with any degree of certainty just what the end result of the NHPA process would be,” and under those circumstances we avoid “shortcutting the process which has been committed in the first instance to the responsible federal agency.” Id. (quoting Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 948 F.2d 1436, 1446-47 (5th Cir. 1991)) (noting the need to consider a range of outcomes and not merely a binary between no change or a completely altered approach). 4. Conclusion We conclude that CBD has standing to pursue declaratory relief, limited to whether the Government’s evaluation, information gathering, and consultation process pursuant to NHPA Section 402 discharged the Government’s obligations under the NHPA and .otherwise satisfied the requirements of the APA We turn now to whether CBD’s claims for declaratory relief present a political question. B. Political Question Doctrine “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803); see United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (noting that Marbury’s pronouncement has been “unequivocally reaffirmed” in “many decisions” of the Supreme Court since it was first written). Nonetheless, the duty is not a license for courts to issue opinions on every legal issue that may come before them. For instance, the prohibition “that the federal courts will not give advisory opinions”— called “the oldest and most consistent thread in the federal law of justiciability” — predates even the holding of Mar-bury. See Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (quoting C. Wright, Federal Courts 34 (1963)). Elsewhere, in Marbury itself, Chief Justice Marshall recognized that The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. Marbury, 5 U.S. (1 Cranch) at 170; see Alperin, 410 F.3d at 544. Marbury’s reference to questions “in their nature political” was an early glimpse of the “political question doctrine.” Today, the “political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). By its nature, the doctrine is a “narrow exception” to the judiciary’s “responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194-95, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821)). “The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Traditionally, courts determining whether a case presents a political question have consulted the following six factors: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the, potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217, 82 S.Ct. 691. The Supreme Court recently has placed more weight on the"first two factors: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department” or (2) “a lack of judicially discoverable and manageable standards for resolving” the question. Zivotofsky, 566 U.S. at 195, 132 S.Ct. 1421 (quoting Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993)) (analyzing only the first two Baker factors before concluding case did not present a political question); see Nixon, 506 U.S. at 228, 113 S.Ct. 732 (citing only to the first two Baker factors). Dismissal because of the presence of a political question is appropriate if “one of these [six] formulations is inextricable from the case at bar.” Baker, 369 U.S. at 217, 82 S.Ct. 691. This analysis requires close attention to the particular claims presented in each case. See Corrie, 503 F.3d at 982. Here, the claims seeking declaratory relief turn on interpretation of NHPA Section 402. If a political question bars CBD’s claims for declaratory relief, then that question must be inextricable in some way from the interpretation and application of NHPA Section 402. 1. First Baker Factor — Textual Commitment to Another Branch The district court found that CBD’s declaratory claims challenging the Government’s compliance with NHPA Section 402 did not implicate the first Baker factor, “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker, 369 U.S. at 217, 82 S.Ct. 691, We agree with the district court that evaluating CBD’s declaratory claims requires us “to apply the standards of the APA to the process employed by the [Government], not pass judgment on the wisdom of the Executive’s ultimate foreign policy or military decisions.” Okinawa Dugong III, 80 F.Supp.3d at 1005. For that reason, we conclude that no political question is present under the first Baker factor. To the extent that one considers the first Baker factor to implicate a broader deference to the political branches’ judgment in foreign affairs, that deference cuts in both directions. Here, Congress has expressed its intent regarding an aspect of foreign affairs. In this way, a reviewing court evaluating the Government’s compliance with NHPA Section 402 is “not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy ... should be.” Zivotofsky, 566 U.S. at 196, 132 S.Ct. 1421. Instead, a court must engage in the “familiar judicial exercise” of reading and applying a statute, conscious of the purpose expressed by Congress. See id. As further support for our conclusiqn, consider Japan Whaling Association, where the Supreme Court faced the question of whether the Secretary of Commerce had to certify publicly that Japan had diminished the effectiveness of an international convention on whaling. 478 U.S. at 223, 106 S.Ct. 2860. The Court considered whether the question might be political in nature, and concluded that the question’s clear political implications did not bring it beyond review: [T]he courts have the authority to construe treaties and executive "agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts.... We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize the premier-role which-both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this, responsibility merely because our decision may have significant political overtones. Id. at 230, 106 S.Ct. 2860. Finally, in its briefing, the Government seems to'veer close to arguing that NHPA Section 402 is an unconstitutional infringement on executive power. For instance, discussing injunctive relief, the Government invokes Earth Island Institute v. Christopher, 6 F.3d 648, 653 (9th Cir. 1993), where-we held the statute in question to be an- unconstitutional infringement on the President’s powers of diplomatic negotiation. But even if this were the Government’s argument, it would be of no relevance to our political question analysis because whether the statute.-is-an .unconstitutional infringement on the - President’s power is a merits issue, not an issue of subject-matter jurisdiction. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, — U.S. -, 135 S.Ct. 2076, 2083, 192 L.Ed.2d 83 (2015) (Zivotofsky II) (analyzing respective Constitutional powers of the executive and Congress, after first having determined that the case did not present a political question). We hold that the first Baker factor does not bar the claims for declaratory relief. 2. Second Baker Factor — Judicially Manageable Standards The second Baker factor concerns the-lack of “ ‘judicially discoverable and manageable standards.’ ” Alperin, 410 F.3d at 553. The Government relies on this’ factor to challenge our competence .to decide CBD’s claims. Acknowledging that the interpretation- of statutes is a “familiar judi-eial exercise,” Zivotofsky, 566 U.S. at 196, 132 S.Ct. 1421, the Government nonetheless argues that NHPA Section 402 “provides no substantive standard by which to review either the procedures the Secretary used to consider the impacts of the FRF or the substance of his conclusion.” Specifically, the Government argues, “legal tools are lacking here, because there are no applicable statutory or regulatory standards by which a court can review the Secretary’s implementation of Section 402 in this case.” This argument is unconvincing. For one, a statute does not need a regulatory gloss to have substantive standards. Courts can interpret statutes without the aid of regulatory interpretation. See POM Wonderful LLC v. Coca-Cola Co., — U.S. -, 134 S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014) (noting that in “a statutory interpretation case ... the Court relies on traditional rules of statutory interpretation. That does not change because the case involves multiple federal statutes. Nor does it change because an agency is involved. Analysis of the statutory text, aided by established principles of interpretation, controls.”) (citations omitted). Federal agencies retain a great deal of power to interpret ambiguous statutes. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (holding that an agency’s interpretation of an ambiguous statute continues to receive deference even when that interpretation is “inconsistent with its past practice”). We are unaware, however, of any requirement that a statute must have an agency interpretation before judicial construction is possible. Further, as CBD points out, courts decided cases involving NHPA Section 106, a similar provision relating to domestic undertakings, even before promulgation of any implementing regulations for Section 106. E.g., D. C. Fed’n of Civic Ass’ns v. Adams, 571 F.2d 1310, 1313 & n.8 (4th Cir. 1978) (applying Section 106 without looking to any regulations); Edwards v. First Bank of Dundee, 534 F.2d 1242, 1245 (7th Cir. 1976) (noting “substantive provisions” of Section 106). A court analyzing the Government’s compliance with NHPA Section 402 also has the aid of a clear legislative purpose and treaty framework to aid in the effort to craft appropriate standards. In this situation, “courts are capable of granting relief in a reasoned fashion” to plaintiffs. Alperin, 410 F.3d at 553. The second Baker factor does not bar CBD’s claims for declaratory relief. 3. Other Baker Factors As noted above, the remaining Baker factors, 369 U.S. at 217, 82 S.Ct. 691, are usually less significant than the first two. The district court analyzed each of these factors, and concluded that none rendered CBD’s declaratory relief inextricable from a political question. We agree. The case does not implicate the third Baker factor, “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” for essentially the same reasons as the second Baker factor: a federal court has standards to guide its resolution of the dispute. The fourth Baker factor, “the impossibility of a court’s undertaking independent resolution •without expressing lack of the respect due coordinate branches of government,” is unavailing because to abstain from giving effect to a federal statute is less respectful to Congress than reviewing the executive’s compliance. The sixth Baker factor, “the potentiality of embarrassment from multifarious pronouncements by various departments on one question,” is also not present, because the accuracy of the Marine Corps Findings and the adequacy of process under NHPA Section 402 are separate questions. Finally, we agree with the district court that “[declaratory relief would not be directed towards criticizing the policy decisions of the American and Japanese governments to construct the new base; rather, if granted, it would hold only that statutory procedures were not followed.” Okinawa Dugong III, 80 F.Supp.3d at 1011. The fifth Baker factor, “an unusual need for unquestioning adherence to a political decision already made,” is in some ways the most compelling factor in the circumstances of this case. The Government has expended considerable effort to build the FRF over decades. We have no basis to question the wisdom of that effort, or to seek to frustrate our nation’s foreign policy. See Coleman v. Miller, 307 U.S. 433, 455, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (noting the “considerations of extreme magnitude” characteristic of the nation’s “conduct of foreign relations”). Enforcing NHPA, however, does not intrude on foreign policy judgment, and it would be a “rare case” where prudential considerations of this kind might bar judicial resolution. Zivotofsky, 566 U.S. at 207, 132 S.Ct. 1421 (Sotomayor, J., concurring). Judicial scrutiny to enforce the obligations of binding domestic law is unlikely to alter or damage our nation’s longstanding bond with Japan. The Government’s efforts to comply with the district court’s 2008 order suggest that the amicable relationship between Japan and the United States can withstand scrutiny or reassessment of operational details, even years after the two nations entered into the Roadmap. The Government itself notes that the Marine Corps Findings submitted to CBD “are the product of a robust process that included active engagement with the Government of Japan and consideration of multiple studies, reports, and comments, including the Government of Japan’s [environmental impact assessment], the comments collected by the Government of Japan, and the declaration of CBD’s expert.” The Government emphasizes the care taken in every aspect of negotiations regarding the FRF Project. The Government points to “over twenty years of negotiation, design, and study” before construction commenced. Rather than counseling in favor of “unquestioning adherence,” however, the Government’s painstaking efforts render it more questionable why the NHPA take-into-account process is an undue burden. There is no reason to think that compliance with the NHPA process is beyond the Government’s ability, especially when the Government argues at length that it has provided a good-faith analysis of the environmental impacts of the new base. To declare that courts cannot even look to a statute passed by Congress to fulfill international obligations turns on its head the role of the courts and our core respect for a co-equal political branch, Congress. Interpreting and applying NHPA Section 402 does not prevent the military from planning and building bases. It requires only that the executive take into account certain procedural obligations, required by Congress, before it takes steps forward. The courts ■ may then look to whether the executive complied with its obligations. We may consider national security concerns with due respect when the statute! is used as a basis to request injunctive relief. This is not a 'grim future, and certainly no grimmer than one in which the executive branch can ask the court for leave to ignore acts of Congress. 4. Conclusion The Government’s core argument is that to allow CBD to proceed with its suit would “necessarily require the judicial branch ... to question the political branches’ decision” in completing the FRF. Corrie, 503 F.3d at 982. The district court rejected this argument, and was correct to do so. CBD’s claims for declaratory relief present no political question preventing judicial review. V. Discussion of Claim for Injunctive Relief We turn now to CBD’s claim for injunc-tive relief. Here, the district court concluded only that the claim presented a political question, and did not discuss standing. We begin with CBD’s standing for injunctive relief. See Aldridge, 855 F.2d at 1382. A. Standing As noted above, “a plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, 528 U.S. at 185, 120 S.Ct. 693. For the first two elements, injury-in-fact and causation, Spokeo, 136 S.Ct. at 1547, the analysis for injunctive relief mirrors the previous analysis of declaratory relief. This correspondence is, natural when the declaratory and injunctive claims emerge out of the same underlying allegations and violations. CBD alleges it has suffered a procedural injury to its concrete interests, and that the injury is traceable to the, Government’s conduct. CBD thus meets the injury and, causation requirements to have standing for its claim seeking injunctive relief. Like in the claims for declaratory relief, the redressability requirement is “relaxed” because the injury-in-fact is procedural. Cantrell, 241 F.3d at 682. Redressability, however, is a more relevant difference when comparing declaratory and injunctive relief because redressability depends on the relief envisioned. Here, CBD seeks injunctive relief via an order that the Government “not undertake any activities in furtherance of the FRF project, including granting permits or approvals for contractor entry to Camp Schwab and/or the proposed FRF project area, and that [the Government] rescind any such permits or approvals already granted; until it complies with section 402 of the NHPA[.]” The grant of injunctive relief in this case will result in (1) an adequate NHPA Section 402 process, with (2) some likelihood of protecting CBD’s interests. Courts often exercise power under the APA to grant injunctive relief analogous to the halt that CBD requests. E.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 815 (9th Cir. 1999) (per curiam) (enjoining further activities on specific area of land until the Forest Service discharged its obligations under NHPA and the National Environmental Protection Act, in part because of ongoing damage). Accordingly, CBD has satisfied the requirement of redressability. We hold that CBD has standing for its in-junctive claim. B. Political Question Doctrine The framework for analyzing whether CBD’s claims for declaratory relief presented a political question also applies to injunctive relief. The district court, analyzing the Baker factors, concluded that CBD’s claim for injunctive relief presented a political question. The district court rested its conclusion primarily on the second Baker factor, regarding the lack of judicially manageable standards. The district court also concluded that CBD’s claim likely presented a political question under the first Baker factor, a power belonging to another branch. The district court also cited to the fourth, fifth, and sixth Baker factors: respect for coordinate branches, the need for unquestioning adherence to a decision already made, and the potential embarrassment of varying pronouncements by several departments on one question. We consider all the Baker factors on appeal. The nature of the remedy sought is relevant to considering whether any of the Baker factors are inextricable from CBD’s claim. To obtain injunctive relief after prevailing on the merits, CBD would be required to show (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir. 2011) (per curiam) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)).. We have suggested that. “because the framing of injunctive relief may require the courts to engage in the type of operational decision-making beyond their competence and constitutionally committed to other branches, such suits are far more likely to implicate political questions.” Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992). 1. First Baker Factor — Textual Commitment to Another Branch When, confronting a statutory question touching on subjects of national security and foreign affairs, a court does not adequately discharge its duty by pointing to the broad authority of the President and Congress and vacating the field without considered analysis. See Baker, 369 U.S. at 211, 82 S.Ct. 691 (rejecting “sweeping statements to the effect that all questions touching foreign relations are political questions”); see also Zivotofsky, 566 U.S. at 201, 132 S.Ct. 1421 (noting judicial capacity and responsibility to engage in “careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute”). The inquiry under the first Baker factor requires far more specificity about the nature and source of the power exercised. See Baker, 369 U.S. at 211, 82 S.Ct. 691 (“[W]hether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation.”). Here, the district court noted that, decisions to “establish” a military' base are generally unreviewable. But it is not necessary to review the establishment or location of the base to consider whether to enjoin the Government from undertaking any activities in furtherance of the FRF project until it complies with NHPA Section 402. The district court erred by assuming otherwise. Like CBD’s claims for declaratory relief, the relevant question for CBD’s claim for injunctive relief is compliance with NHPA Section 402. After all, a court would have to find a violation of NHPA Section 402 prior to granting the injunctive relief CBD requests. Once a court finds a violation of a statutory requirement, the relief that follows is to vindicate what Congress has directed. The question then presented, whether injunctive relief should issue, is one courts often resolve after determining that a procedural violation took place. E.g., Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 1010 (9th Cir. 2013) (reversing summary judgment to defendant on a NHPA claim, and remanding with instructions to grant injunctive relief to plaintiffs). Appropriate injunctive relief arises from the act of statutory interpretation, and does not require the courts to engage in “operational decision-making beyond their competence.” See Koohi, 976 F.2d at 1332. Our chief concern under the first Baker factor is to avoid answering a question committed to a coordinate political department. See Zivotofsky, 566 U.S. at 195, 132 S.Ct. 1421; Nixon, 506 U.S. at 228, 113 S.Ct. 732; Baker, 369 U.S. at 217, 82 S.Ct. 691. In this case, determining whether to grant injunctive relief would not require a court to answer this kind of question. Whether an injunction should issue to remedy a violation of the procedural requirements imposed by NHPA Section 402 is a question constitutionally committed to the judiciary, not to the political branches, and a district court may exercise its equitable discretion to “order that relief it considers necessary to secure prompt compliance” with an act of Congress. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). To the extent a conflict arises from diverging intentions by the executive and Congress, we are competent to police these kinds of disputes, even when they implicate foreign policy matters. Zivotofsky, 566 U.S. at 201, 132 S.Ct. 1421. We conclude that there is no political question present under the first Baker factor. 2. Second Baker Factor — Judicially Manageable Standards The district court principally relied on the second Baker factor. On appeal, CBD argues that to affirm the district court’s reasoning would adopt, in practice, “[a] per se rule that any request for injunctive relief is nonjusticiable when foreign affairs or national security are at stake.” We agree that any similar per se rule would be out of step with Supreme Court precedent, and we reject the district court’s conclusion that CBD’s claim for injunctive relief implicates the second Baker factor. In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 26, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the Supreme Court applied the four-part standard for preliminary injunctive relief to determine whether the use of sonar in training exercises by Navy submarines was a strong enough government interest to outweigh harm to whales and other marine mammals that plaintiffs studied and observed. 555 U.S. at 26, 129 S.Ct. 365; see also id. at 20-31, 129 S.Ct. 365. The use of sonar was “essential to national security” — much like the weighty security interests the Government asserts in this case. Harm to marine mammals presented a similar set of non-economic interests. The Court found that the balance of the equities was not a “close question” and ruled in the Government’s favor. Id. at 26, 129 S.Ct. 365. Critically, however, the Supreme Court did not hold that the inquiry was a political question; it merely applied the injunctive analysis and ruled against the plaintiffs on the merits. When a court exercises its equitable discretion to weigh the considerations of injunctive relief for a plaintiff, whether granting or denying that relief, the exercise undoubtedly “can fully protect the range of public interests at issue” in the proceedings. Weinberger, 456 U.S. at 320, 102 S.Ct. 1798. The Government’s asserted interests are compatible with judicial resolution under the four-part injunction analysis because courts are able to weigh equitable considerations when security or foreign affairs interests are at stake. To hold otherwise would introduce an over-broad rule in conflict with controlling precedent. CBD’s claim for injunctive relief does not implicate the second Baker factor. 3.Third Baker Factor— Judicial Competence Considerations of the second and third Baker factors often closely relate because they involve “decisionmaking beyond courts’ competence.” Zivotofsky, 566 U.S. at 203, 132 S.Ct. 1421 (Sotomayor, J., concurring). As noted above, the weighing of interests in the context of injunctive relief is not an action beyond judicial competence. Assessing the equities of injunctive relief does not require “an initial policy determination of a kind clearly for nonjudicial discretion.” See Baker, 369 U.S. at 217, 82 S.Ct. 691. CBD’s injunctive claim does not implicate the third Baker factor. 4.Fourth, Fifth, and Sixth Baker Factors “Courts should be particularly cautious before forgoing adjudication of a dispute on the basis” of the final three Baker factors. Zivotofsky, 566 U.S. at 204, 132 S.Ct. 1421 (Sotomayor, J., concurring). We treat the last three Baker factors in tandem. See id. (discussing the last three Baker factors as one group); Alperin, 410 F.3d at 544 (noting that Baker’s “tests are more discrete in theory than in practice, with the analyses often collapsing into one another”). For the fourth factor, enjoining executive action based on a violation of a statutory requirement does not express a lack of respect for the executive; if anything, an injunction expresses respect for Congress by vindicating its legislative power. We also doubt that injunctive relief even implicates the sixth factor — the issuing of various “pronouncements.” An injunction here does not pronounce anything, and though it might imply internal conflict between the branches of government to outside observers, it does not speak on behalf of the United States. As with declaratory relief, this case provides a tempting candidate for reliance on the fifth factor, “an unusual need for unquestioning adherence to a political decision already made.” Baker, 369 U.S. at 217, 82 S.Ct. 691. The long-running diplomatic engagement between Japan and the United States on the construction of the base has already seen its fair share of twists and turns, and there is room to consider whether raising an additional obstacle at this time counsels against exercise of judicial power. Nonetheless, reliance on this ground is extraordinary, and we find it unnecessary in this instance. C. Conclusion We conclude that CBD has standing for its claim for injunctive relief and that the claim does not present a political question implicating any Baker factor. VI. Merits Because the district court itself did not grant preliminary injunctive relief, there is no stay or injunction in place on the Government’s base-related activities in' Japan. The Government did not move on the merits to dismiss CBD’s claim for in-junctive relief, and on appeal did not argue the merits, either. We may affirm “on any basis supported by the record even if the district court did not rely on that basis.” United States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992) (internal quotation marks omitted).' Nonetheless, the parties have presented to us threshold jurisdictional issues, and we act most prudently when we allow the district court to address the merits of claims in the first instance. See Zivotofsky, 566 U.S. at 201, 132 S.Ct. 1421. Based on the current state of the record, and in light of the traditional four-factor test for preliminary injunctive relief, there is no basis for issuing an injunction at this time. Winter, 555 U.S. at 20, 129 S.Ct. 365 (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”). Even assuming that a NHPA violation has taken place, under the traditional injunction test, the national security interests of the Government are likely to outweigh the interests CBD asserts. See id. at 32-33, 129 S.Ct. 365 (“Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security.”). But it is the district court’s task to weigh the Winter injunction factors carefully, in the first instance, and in light of the circumstances of this case. We note, however, that even if the district court were to rule in the Government’s favor on CBD’s claim for injunctive relief, this does not mean that CBD’s claims for declaratory relief necessarily must fail. See Steffel v. Thompson, 415 U.S. 452, 471, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (noting “Congress’ intent to make declaratory relief available in cases where an injunction would be inappropriate”); Olagues v. Russoniello, 770 F.2d 791, 808 (9th Cir. 1985) (Nelson, J., concurring in part and dissenting in part) (“Declaratory' relief is a separate remedy to be' awarded when warranted, even if an injunction under thé same circumstances would be denied.”). VII. Conclusion We reverse the district court’s dismissal of CBD’s declaratory relief claims because CBD has Article III standing for these claims. We affirm that the claims do not present a political question. We reverse the district court and hold that CBD has Article III standing to pursue injunctive relief and that its claims for injunctive relief do not present a political question. We remand to the district court for further proceedings. REVERSED and REMANDED. . At the time of the district court decisions in this proceeding, NHPA Section 402 was codified at 16 U.S.C. § 470a-2. In December 2014, after the district court decision now under appeal, NHPA Section 402 was moved to Title 54 of the U.S. Code, and the specific provision now is found at 54 U.S.C. § 307101(e). Act of Dec. 19, 2014, Pub. L. No. 113-287, 128 Stat. 3094, 3231 (Dec. 19, 2014). All references in this opinion to NHPA Section 402 refer to the same underlying provision as the statute cited in the district court decisions. . We note that the plaintiffs may face challenges in securing relief on the merits. . The National Trust for Historic Preservation also moved for leave to participate as an • amicus, which we granted. . The Government’s actual compliance with NHPA Section 402 is not at issue on appeal because the Government did not move the district court for dismissal under Federal Rules of Civil Procedure 12(b)(6) or 56. See infra, Part V. . CBD brings claims based on the NHPA. NHPA “is a procedural statute requiring government agencies to 'stop, look, and listen' before proceeding with agency action.” Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of the Interior, 608 F.3d 592, 610 (9th Cir. 2010). The default approach with procedural statutes of this variety is to recognize no private right of action, and to require a plaintiff to proceed under the APA. 5 U.S.C. § 702; see San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097-98 (9th Cir. 2005); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988). Plaintiffs who bring a cause of action under another provision of NHPA, Section 106, must do so under the APA. San Carlos Apache Tribe, 417 F.3d at 1098. The relevant provision of NHPA for this appeal, Section 402, requires that Prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that is on the World Heritage List or on the applicable country’s equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect. 54 U.S.C. § 307101(e). Nothing in NHPA Section 402 suggests the creation of any separate private right of action. NHPA’s procedural character therefore requires that CBD file suit under the APA. San Carlos Apache Tribe, 417 F.3d at 1096-97 (noting default presumption of no private right of action outside the APA). . CBD and other organizational plaintiffs derive their standing from their members, and those members allege similar interests to the individual plaintiffs, meaning standing is satisfied for all plaintiffs. See Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693. . On appeal, the Government notes its continuing objection to the 2005 and 2008 orders of the district court, arguing that the legal conclusions are not even the “law of the case” and reserving the right to move for reconsideration or further appellate review. Subject to any waiver considerations, the Government may still be able to challenge these orders' conclusions regarding: (1) a procedural right existing in NHPA Section 402, (2) NHPA Section 402 applying extraterritorially, and (3) the dugong’s protection under Japan’s Law for the Protection of Cultural Properties being equivalent to inclusion on the United States’ National Historic Register. Nonetheless, we do not construe the Government to be challenging the district court’s '2005 and 2008 rulings at this time, nor would it be proper to do so: the conclusions in those orders relate to the merits, and the motion ruled on here, filed under Rule 12(b)(1), solely concerns subject-matter jurisdiction. Accordingly, we assume for purposes of the appeal that NHPA Section 402 provides a procedural right, applies extratefritorially, and has relevance to the effects of the FRF on the dugong. Further; we note that NHPA’s extraterritorial application seems -logical, in light-of its purpose. See H.R. Rep. 96-1457, at 43 (1980), reprinted in 1980 U.S.C.C.A.N. 6378, 6406 (enacting NHPA Section 402 as part of the United States' obligations under the U.N, Convention Concerning the Protection of &e World Cultural and Natural Heritage, which sought “to establish an effective system of collective protection of the cultural and natural heritage of outstanding'universal value”), Any invocation of NHPA Section 402 before the courts would implicate some aspect of foreign affairs, and few acts of the United States overseas do not relate to the nation’s interests. . In the absence of case law governing NHPA Section 402, the more developed regime of Section 106 is a useful comparison point. NHPA Section 106 applies to federal domestic "undertakings" a set of procedural requirements broadly similar to those applied to federal "undertakings” overseas by NHPA Section 402. See 54 U.S.C. § 306108. In this Circuit, plaintiffs must bring procedural violations of NHPA Section 106 under the APA, and we have recognized Section 106 to provide procedural rights. San Carlos Apache Tribe, 417 F.3d at 1099. Section 106 also has a detailed set of regulations, 36 C.F.R. § 800.1-16, first promulgated in 1974. See Okinawa Dugong II, 543 F.Supp.2d at 1088-89. The statutory text of Section 106 imposes more rigorous requirements than Section 402, including an opportunity for comment by the Advisory Council on Historic Preservation. See 54 U.S.C. § 306108. Section 106 also has a robust set of regulations, with many consultation requirements, while Section 402 has no implementing regulations. Okinawa Dugong II, 543 F.Supp.2d at 1089.

Coalition of Concerned Citizens to Make Art Smart v. Federal Transit Administration of U.S. Department of Transportation

BRISCOE, Circuit Judge. Plaintiffs, a group of entities and individuals that own businesses or real property located on Central Avenue in Albuquerque, New Mexico, filed this action seeking to enjoin the City of Albuquerque (the City) from proceeding with construction of a rapid transit bus system along Central Avenue. Plaintiffs claim, in pertinent part, that the City and the Federal Transit Administration, from whom the City seeks federal funding for the project, violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the National Histoiic Preservation Act, 54 U.S.C. §§ 300101 et seq., in the course of planning the project. The district court denied plaintiffs’ request for a preliminary injunction. Plaintiffs have now filed an interlocutory appeal challenging that ruling. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm. I Central Avenue and its current public transit system Central Avenue in Albuquerque, New Mexico, is a major east-west street that was part of U.S. Route 66 until that highway was decommissioned in 1985. Currently) “[t]he Central Avenue corridor provides direct transit and vehicular access to two major employment/activity centers including the University of New Mexico (UNM) and the Albuquerque Downtown/Central Business District area.” App., Vol. 1 at 70-71. UNM’s central campus “is bounded on the south by Central Avenue.” Id, at 71. “Central Avenue [also] passes through the heart of the Downtown area and is within one to four blocks of almost every major building in the Central Business District.” Id. “[T]wo major entertainment districts,” Downtown and an area known as “Nob Hill,” are “located on Central Avenue and are popular, destinations for tourists and locals.” Id, Albuquerque’s bus system, known as ABQ RIDE, currently offers three transit routes that “serve Central Avenue: Route 66, Route 766 (Red Line), and Route 777 (Green Line).” Id, at 70. Routes 766 and 777 are part of what is known as “ABQ RIDE’s Rapid Ride system.” Id. These two routes operate in mixed-flow lanes, meaning that , the lanes serve both ABQ Ride buses as well as other types of vehicles. “Central Avenue is ABQ Ride’s highest ridership corridor.” Id. The ART Project In order “to improve transit service along Central Avenue, and to improve access to major activity and employment centers located” along Central Avenue, the City has proposed what is known as the “Albuquerque Rapid Transit (ART) [Project.” Id. “The ART system [will] include[ ] the construction of a rapid vehicle guide-way within the street median [on Central Avenue] and stations spaced at ½ to 1 mile intervals.” Id at 71. “All proposed construction [will be] within the operational right-of-way of Central Avenue,” id., with the exception of “narrow slivers of property at major intersections” that the City intends to acquire, id. at 75, “The traffic signal system for Central Avenue within the project limits will be modified to provide traffic signal priority for ART vehicles,” Id. at 72. ART buses will, depending upon the particular section of Central Avenue, operate either in mixed-flow traffic (meaning they will utilize the same lanes as other vehicles) or in their own exclusive lanes. Some sections of Central Avenue will feature two exclusive rapid vehicle lanes, while other sections will feature one bidirectional rapid vehicle lane. For example, “exclusive lanes for rapid vehicles will be constructed from Coors Boulevard to Louisiana Boulevard — a distance of 'approximately 8.75 miles.” Id. at 70. These rapid vehicle routes will replace Routes 766 and 777. In order to install the ART system, the City plans to make a number of changes to Central Avenue. These include, but are not limited to: • milling, overlaying, and restriping throughout the project construction limits; • removing some of the existing medians to accommodate rapid vehicle lanes; • reconstructing and reconfiguring landscaped medians at several locations; and • relocating existing street lights from medians to curb side in certain locations. Id. at 73. “Traffic will be affected by three aspects of the ,,. project.” Id, at 81. These include: (1) “the reduction of general purpose traffic lanes in” certain segments of Central Avenue; (2) “changes to the traffic signal system on Central Avenue to integrate a signal priority system for preferential rapid vehicle operations”; and (3) “median closures that will shift left-turns and U-turns at existing median openings -to signalized intersections.” Id. Thus, “[tjraffic capacity will be reduced in some segments” of Central Avenue “as a result of traffic lane reductions.” Id. at 75. Further, because “[t]he rapid vehicle lanes will have limited access to other vehicles, .,. access to the businesses and other development on Central Avenue will be less than currently exists.” Id. The City alleges, however, that “Reasonable aceess to all businesses will be maintained with left turn/U-turn access provided at signalized intersections.” Id. “In general, left turn/U-turn access [will be] spaced approximately every one quarter mile from Coors Boulevard to Louisiana Boulevard.” Id The ART project will pass “through four historic districts.” Id. at 86.- “The stations in these districts have been designed without canopies to avoid any visually prominent features.” Id “There are [also] 127 historic properties within the project [area] that are listed, eligible for listing, or have an undetermined eligibility to the [National Register of Historic Places].” Id. “No property from any of the historic buildings will be directly impacted or altered by the project.” Id. The City’s request for a Small Starts grant from FTA The Federal Transit Administration (FTA), a federal agency that is a division of the-United States Department of Transportation (DOT), administers the “Small Starts” program as part of its Capital Investment Grant Program, which supports locally planned transit projects. See 49 U.S.C, § 5309(b); 49 C.F.R. § 611.101. By statute, Congress has encouraged the use of “small start project[s] utilizing buses .,, in a defined corridor ... that emulate the services, provided by rail fixed guide-way public transportation systems.” 49 U.S.C. § 5309(a)(3), (h). There is conflicting information in the record concerning whether the City has submitted a Small Starts grant application to the FTA. According to the City, it did so on July 13, 2015, and its alleged purpose in doing so was to seek approximately $69,000,000 in Small Starts funds. Such funding, according to the City, would comprise approximately 55% of the estimated construction cost of $126.2 million. In contrast, the FTA asserts that the City has yet to file a formal Small Starts grant application. FTA Aplee. Br. at 13 n.2. Consequently, the FTA asserts, it “has not yet made a final decision whether to award a grant” to the City for the ART Project. Id. The City’s and FTA’s NHPA analysis Federal funding for the ART Project, should it occur, would subject the ART Project to analysis under the National Historic Preservation Act (NHPA), 54 U.S.C. § 300101 et seq. Specifically, Section 106 of NHPA imposes a procedural requirement that, before approving a “federally assisted undertaking,” a federal agency “shall take into account the effect of the undertaking on any historic property.” Id. § 306108. A “historic property” is any property that is “in, or eligible for inclusion in,” the National Register of Historic Places. Id. § 300308. The agency must consult with the relevant State Historic Preservation Officer (SHPO) to identify those properties, identify any adverse effects that a proposed project might have on them, and then evaluate modifications to the project that would avoid, minimize, or mitigate those adverse effects to the SHPO’s satisfaction. See 36 C.F.R. §§ 800.3-800.6; Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1085 (10th Cir. 2004). The City, aware that it intended at some point to seek federal funding for the ART Project, began the SHPO consultation process on June 4, 2014. The City was assisted in this process by Jeffrey Fredine, an environmental planner, historian, and cultural resource specialist who worked for a private consulting firm. On June 4, 2014, the City met with employees from the New Mexico Historic Preservation Department (HPD), which acts as the SHPO for purposes of NHPA. “That meeting included a discussion of the nature and extent of [the ART] Project and consideration of detailed drawings of ART, including changed lane configurations, streetscape improvements, and station construction, to understand what impact [the] ART [Project] would have.” App., Vol. 4 at 538. The SHPO “suggested that a variable [area of potential effect (APE) ] should be defined around each proposed station site based on the level of historic integrity at each location and the amount of previous documentation that exist[ed] for each area.” Id., Vol. 12 at 1705. On June 14, 2014, the City and the SHPO “conducted field reconnaissance of the entire [ART] [P]roject area,” id., Vol. 12 at 1705, in order “to assess firsthand how ART might affect historic resources,” id., Vol. 4 at 538. The City and SHPO determined that the ART Project would not physically touch or use any historic resource. But the SHPO nevertheless “identified eight areas of potential concern that could constitute or contribute to an historic district or cultural landscape.” Id., Vol. 12 at 1705. The City and the FTA ultimately “defined a variable APE for each specific [ART] station location.” Id., Vol. 12 at 1705. “Generally, the APE include[d] 300 feet on either side of intersections within the eight areas identified as having the most historic integrity within the [ART] [P]roject area, and 100 feet on either side of the intersections outside of these areas.” Id. at 1705-06. “The potential for possible effects to be considered” in those areas “would be in [the] visual impacts at the station locations and how that might affect the historic setting of a property.” Id., Vol. 24 at 3049-50. The SHPO ultimately agreed that this was the appropriate APE. The City then “conducted a detailed review of the APE to identify historic and cultural resources.” Id., Vol. 4 at 538. This review “process identified 138 historic or potentially historic properties in the APE that could be affected by [the] ART [Project].” Id. at 538-39. The City’s study culminated in a March 12, 2015 “Cultural Resources Inventory.” Id., Vol. 13 at 1731. On April 6, 2015, the FTA transmitted the Cultural Resources Inventory to the SHPO and asked the SHPO “to concur in [the] FTA’s finding that [the] ART [Project] would not have any adverse effect on any historic resource, primarily due to the lack of physical use on any historic property and limited scope of construction.” Id., Vol. 4 at 539. On April 8, 2015, the SHPO refused to concur, “citing concerns over the visual impact of three ART [Project] stations on surrounding historic districts.” Id. The FTA, the City, and the SHPO subsequently “met and discussed the ... SHPO’s concerns regarding visual impacts.” Id. The SHPO “made clear that its concerns were limited to the visual impact of the canopies over three specific stations — Rio Grande, 15th Street, and Walter Street— because of the historic significance and integrity of the surrounding neighborhood.” Id. On June 25, 2015, the FTA sent an “Addendum Cultural Resources Inventory” to the SHPO that “memorialized the commitment of the City and [the] FTA to eliminate the canopies at the three stations in response to address [the SHPO’s] concerns.” Id. “The letter included renderings of the redesigned stations.” Id. On July 7, 2015, the SHPO “issued a letter concurring with [the] FTA that [the] ART [Project] would not have any adverse effects on any historic or cultural resources.” Id. The ART Project — Categorical Exclusion The nature and amount of the Small Starts grant that the City is purportedly seeking from the FTA also subjects the ART Project to analysis under the National Environmental Policy Act (NEPA). More specifically, the FTA, before awarding any grant money, is required to assess the environmental impacts of the ART Project, consider alternatives with less environmental impact,- and evaluate whether the benefits of the project would exceed its impact on the environment. On or about August 17, 2015, the City applied to the FTA for a “documented exception from the requirement that the City or the FTA prepare an environmental impact statement (EIS) or environmental assessment (EA). In support of its application, the City prepared and submitted a “[Categorical Exclusion] Worksheet,” which was, in essence, “an extensive, 1,174-page environmental - review package.” Id. at 536. On August 26, 2015, the FTA sent a letter to the City informing it that the FTA had completed its review of the City’s application and “ha[d] determined that the proposed ART [P]roject me[t] the criteria for Categorical Exclusion [ (CE) ] in accordance with 23 CFR Part 771.118(d).” Id., Yol. 1 at 112. The FTA also confirmed that it had “determine[d] the project w[ould] result in a ‘no adverse effect’ on historic properties” under NHPA, and it noted that the “SHPO concurred with this determination on July 7, 2015.” Id. The FTA’s Letter of No Prejudice As noted, the FTA alleges that it “has not yet made a final decision whether to award a grant” to the City for the ART Project. FTA Aplee. Br. at 13 n.2. Nevertheless, on July 18, 2016, the FTA issued to the City a “Letter of No Prejudice” (LONP). Id. at 866. “The LONP provides the opportunity for the City immediately [to] spend up to $59 million dollars that is eligible for reimbursement by the FTA for the ART [Project.” Id. The plaintiffs The plaintiffs in this action, all of whom own businesses or property - located on Central Avenue in Albuquerque, New Mexico, include the following: • The Coalition of Concerned Citizens to Make Art Smart is an unincorporated association that was formed to “improve bus transit along Central Avenue [in Albuquerque, New Mexico,] without harming the businesses, shops, restaurants, neighborhoods and property values and to prevent the ART project from going forward as designed.” App., Vol. 1 at 42-43. • 2706 Central Ave., LLC, is a New Mexico limited liability company that owns property at the corner of Central Avenue and Girard Street in Albuquerque. Id. at 43. • Fox Plaza, LLC, is New Mexico limited liability company that owns a shopping plaza at the southwest comer of Central Avenue and Pennsylvania Street in Albuquerque. Id. • Julie Stephens owns and operates a consulting firm located in the Nob Hill area of Albuquerque in the Central Avenue corridor. Id. • Jean and Marc Bernstein are the owners of Flying. Star Restaurants. Id. One of their restaurants is located on the south side of Central Avenue in the Nob Hill area. Id. The complaint On April 4, 2016, plaintiffs filed á complaint for declaratory, statutory, and in-junctive relief against the FTA, the Regional Director for Region VI of the FTA (Robert Patrick), the Director of Planning and Program Development of the FTÁ (Donald Koski), the City, the mayor of the City (Richard Berry), and the Director of ABQ-RIDE Transit (Bruce Rizzieri). Count I of the complaint sought review under the Administrative Procedure Act (APA) of the FTA’s decision under NEPA to grant a CE in connection with the ART Project. Count II of the complaint alleged that the FTA and the City failed to properly consider and evaluate the impact the ART Project “would have on the historical integrity of Route 66 and its adjacent historic resources,” and that the FTA and the City thereby violated ... [NHPA].” Id. at 63. Count III of the complaint alleged that the City violated the New Mexico Prehistoric and Historic Sites Preservation Act by failing to “properly consider and evaluate the impact that the ART project would have on the historical integrity of Route 66 itself and the historic sites adjacent to it.” Id. at 64. Count IV of the complaint alleged that the City violated its own Complete Streets Ordinance because “[t]he ART [Pjroject does not balance the need to move vehicles efficiently with the other context sensitive outcomes the City was required to consider” under the ordinance. Id. at 66. Plaintiffs allege in their complaint that the ART Project will have a significant impact on both travel patterns and the human environment along Central Avenue. Id. at 54. In particular, plaintiffs allege that the ART project yvill have the following detrimental impacts: • The reduction of all eastbound and westbound traffic to single lañes “will significantly disrupt and alter traffic patterns throughout the Central Avenue corridor ... because those single Janes will become choked, forcing traffic ... into adjacent residential neighborhoods.... The result will be not just to snarl and divert traffic but to alter the quiet, residential character of neighborhoods adjacent to Central Avenue.” Id, at 48. • “[Existing ‘local’ buses that must travel along the remaining single lanes of east and west-bound non-ART traffic will not have space to move out of the lane of traffic when they receive or discharge passengers, resulting in what is likely to be a ¡‘blockade’ of traffic by the local buses.” Id. at 48-49. • “The redirection of traffic by the clogging of single lanes will direct traffic away from the restaurants, shops and businesses on Central that depend on vehicle access and presence in the neighborhood for their financial survival.” Id. at 49, • The “[elimination of most left turns on Central Avenue will necessarily eliminate convenient access to businesses, shops and restaurants along Central, reducing customer, volume and endangering the success of those businesses, shops and restaurants and the jobs of their employees.” Id. • The elimination of most left turns on Central Avenue will also. “forc[e]tmany delivery trucks and vans into residential areas to ‘circle’ back to delivery locations that they have had to pass.” Id. • “ART’s design for dealing with the elimination of most left turns is to encourage U-turns at the remaining left turns. This is not only dangerous but will hopelessly congest the intersections where the U-Turns must take place and will further force traffic into the adjoining residential neighborhoods.” Id. at 49-50; • ART’s design “to use ‘yellow lines’ to indicate that its two dedicated lanes are off-limits to other vehicles ... is unrealistic” and “will create an extraordinarily unsafe condition, particularly for drivers who approach Central from a side street and do not understand that they are forbidden to cross the yellow lines in order to cross Central to proceed in the direction they want to go.” Id. at 50. • ART’s design “will attempt to force pedestrians to cross Central [Avenue] at only three or four block intervals, thereby increasing jaywalking in areas where the median no longer exists and where ‘express’ ART buses will be passing in either direction along the two dedicated lanes in the center of Central. This will significantly magnify the danger of accidents and pedestrian injuries or fatalities.” Id. at 49. • ART’s inclusion of “six ‘midblock’ stations ... located'in the middle of Central Avenue” will “forc[e] pedestrians to cross halfway across Central and then walk the length of the station to reach the other ‘half of the cross-walk. It is probable that many pedestrians will simply jay-walk the second half of their crossing rather than walking the length of the station, thereby endangering themselves.” Li at 50. Motion for preliminary injunction .. On June 9, 2016, the plaintiffs filed a motion for preliminary injunction asking the district court “to preliminarily enjoin” the City and the FTA “from taking any actions in furtherance of’ the ART Project. Id. at 124. In support of their motion, plaintiffs argued' that they were substantially likely to succeed on the merits of their claims that (1) the FTA arbitrarily and capriciously granted the City a CE for the ART Project, (2) the FTA’s grant of a CE to the City was in violation of NHPA, (3) the ART Project violates the New Mexico Prehistoric and Historic Sites Preservation Act, and (4) the ART Project violates the City’s own Complete Streets ordinance. Id. at 176. The district court held a three-day evi-dentiary hearing on the plaintiffs’ motion from July 27 to 29, 2016. During that hearing, the plaintiffs “focused [exclusively] on the[ir] NEPA and NHPA claims.” Id. at 1054. On July 29, 2016, the district court issued a written memorandum opinion and order denying plaintiffs’ motion for preliminary injunction. In doing so, the district court concluded that the FTA’s CE and NHPA determinations were not arbitrary or capricious and that, consequently, the plaintiffs had failed to establish a substantial likelihood of success on the merits of their claims that the FTA violated NEPA and NHPA. The district court further concluded that plaintiffs had faded to establish irreparable harm, noting “that the ART lanes could be redesignated as general use lanes without much trouble” and that plaintiffs’ alleged economic injuries would be “compensable with monetary damages.” Id., Vol. 7 at 1063. Relatedly, the district court concluded that “the evidence show[ed] any harm w[ould] also not be ‘certain or great,’” and that plaintiffs failed to “provide! ] any specific numbers or hard projections ... to show how much business will be lost.” Id. In addition, the district court concluded that the balance of equities and the public interest weighed in favor of not granting a preliminary injunction. In that regard, the district court noted that “not allowing ART to go forward wfould] keep the City from building a project to revitalize the area and address pedestrian safety and improve transit efficiency,” and would also “lead to increased construction costs.” Id. at 1065. Finally, the district court concluded that “[a] preliminary injunction, on the whole, would be adverse to the public interest.” Id. at 1066. Notice of appeal On July 31, 2016, plaintiffs filed a notice of appeal from the district court’s memorandum opinion and order denying their motion for preliminary injunction. II . Plaintiffs raise six separate issues on appeal. Two of those issues deal with evi-dentiary rulings made by the district court in the course of denying plaintiffs’ motion for preliminary injunction. The remaining four issues address the merits .of the district court’s order denying the motion for preliminary injunction. As discussed below, we conclude that all of these issues lack merit. . Standards of review “We review the denial of a preliminary injunction for abuse of discretion.” Hobby Lobby Stores, Inc. v. Sebeliub, 723 F.3d 1114, 1128 (10th Cir. 2013), aff'd sub nom Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). “An abuse of discretion occurs where a decision is premised on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (quotation marks omitted). “Thus-, we review the district court’s factual findings for clear error and its conclusions of law de novo.” Id. As for the evidentiary rulings made by the district court in connection with denying the plaintiffs’ motion for preliminary injunction, we apply an abuse of discretion standard. See Monfore v. Phillips, 778 F.3d 849, 854 (10th Cir. 2015) (“Appellate courts review ‘evidentiary complaints only for abuse of discretion.”); Hancock v. Am. Tel. and Tel. Co., 701 F.3d 1248, 1262 (10th Cir. 2012) (“We review a district court’s ruling on ... a motion to strike [an affidavit or declaration] for abuse of discretion.”). The two evidentiary challenges In Issues II and V of their opening brief, plaintiffs challenge evidentiary rulings made by the district court in the course of ruling on their motion for preliminary injunction. Specifically, in Issue II, plaintiffs argue that the district court erred in striking their expert and lay declarations as inadmissible opinion evidence regarding the ART Project’s environmental impacts. In -Issue V, plaintiffs argue that the district court erred in excluding as irrelevant what they refer to as- the “de Garmo” email. For the reasons discussed below, we conclude that the district court did not abuse its discretion in either regard. 1) Striking of plaintiffs’ expert and lay declarations ■ Prior to the evidentiary hearing on plaintiffs’ motion for preliminary injunction, the federal defendants moved to strike both lay and expert declarations that were submitted: by plaintiffs in connection with their motion. ■ On July 15, 2016, the district court issued a written memorandum opinion and order granting the motion to strike the declarations to the extent they went beyond issues of standing and personal expressions of irreparable harm. In doing so, the district noted that its “role in this lawsuit [wa]s to review the FTA’s decision to grant the CE application based upon the materials before the FTA at the time of its decision and upon acceptable extra-record materials, if any.” App., Vol. 6 at 840. With respect to the lay declarations submitted by plaintiffs, the district court noted that - plaintiffs were arguing that such declarations “provide[d], through common sense, evidence that the FTA failed to consider ART’s impact on businesses and adjoining neighborhoods.” Id. at 841. The district court concluded, however, that “when it comes to a multi-facet-ed and complex project like the ART [P]roject, ... the proposed ‘common sense’ standard [was] unhelpful,” as well as “ambiguous and subjective at best,” Id. With respect to the two expert opinions challenged by the federal defendants (those of Dr. Gregory Rowangould and Paul Lusk), the district court noted that “the FTA was not required to rely on its own experts, but instead could rely on the City’s experts whose reports are included in the Preliminary Administrative Record.” Id. Further, the . district court noted that “Rowangould and Lusk, in their declarations, attacked] the reliability of the City’s methodology” and thus “disagreed] with the City’s experts.” Id. at 841-42. “Such a disagreement between experts on the correct methodology to utilize,” the district court concluded, “does not provide a sufficient reason to allow Rowangould and Lusk’s extra-record declarations.” Id. at 842. ; On appeal, plaintiffs argue that it was “clear error” for the district court to strike these declarations. Aplt. Br. at 34. As noted, however, the district court’s decision is not reviewed for clear error, but rather for an abuse of discretion. In any event, plaintiffs argue that our decision in Lee v. Air Force, 354 F.3d 1229 (10th Cir. 2004), supports their submission of the declarations and undercuts the district court’s decision to strike those declarations. Plaintiffs are wrong, however. In Lee, we held that in a NEPA-based action, “judicial review of agency action is normally restricted to the administrative record,” and that “consideration of extra-record materials is appropriate [only] in ‘extremely limited’ circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record,” Id. at 1242. To be sure, plaintiffs in this case assert that their' declarations “attempted to show, through common sense (Coalition plaintiffs) and expert opinion (Rowangould and Lusk) that there were numerous environmental impacts that ART would have that the FTA had failed to consider.” Aplt, Br: at 33, But plaintiffs make no attempt in their' appellate brief to identify what those impacts are. In its order striking the declarations, the 'district court noted that “the City’s reports in the Preliminary Administrative Record address[ed] many of the factors ... Plaintiffs assert[ed] the FTA did not consider, albeit in a manner which ... Plaintiffs disagree[d] with.” App., Vol. 6 at 840. These factors, the district court noted, included “impacts on traffic, access to businesses, pedestrian safety, bus ridership, and storm water issues as well as consideration of public comment." Id, The district court “note[d] that the Preliminary Administrative Record d[id] not appear to contain a study or analysis of the economic impact of ART on businesses.” Id. Nevertheless, the district court concluded that “the evidence in the [lay] declarations concerning a negative impact on businesses [wa]s unsubstantiated and, therefore, not helpful to the Court,” Id. at 840-41. Notably, plaintiffs make no reference to these conclusions at all, and therefore fail to demonstrate that the district court abused its discretion in -striking the lay declarations. As.for the two expert declarations, the district court, as noted, concluded that they simply “disagreed] with the City’s experts” and thus were not properly considered. Id. at 842. Again, plaintiffs make no attempt to address this rationale, let alone demonstrate that the district court abused its discretion in striking the expert declarations. In sum, plaintiffs have failed to establish that the district court abused its discretion in striking the lay or expert declarations. 2) Exclusion of the de. Garmo email At the evidentiary hearing, plaintiffs sought to admit an email message that Andrew de Garmo, the head of planning for the City’s transit department, sent to other ART Project officials on February 19, 2014, The email message read, in pertinent part: “I’ve been wrong on a crucial point, and I apologize for muddying the issues. A BRT project.does not need to have any dedicated lanes to qualify for Small Starts funding; it only needs to have >50% dedicated lanes to qualify for New Starts funding.” App., Vol. 21 at 2643, The district court excluded the email message on the grounds that it was not “sufficiently probative” under Federal Rule of Evidence 403. App., Vol. 25 at 3194-95. Plaintiffs argue on appeal that “the District Court’s failure to admit or consider the email was clear error.” Aplt. Br. at 41, As we have noted, however, the district court’s evidentiary ruling is not subject to review for clear error, but rather for an abuse of discretion, and plaintiffs make no attempt to argue that the district court abused its discretion. In any event, having reviewed the record, we conclude that the district court did not abuse its discretion in excluding the email message. Although plaintiffs argue that .the message “established the truth of the design, being unnecessary” and “went directly to the issues of balance of harms and the public’s interest in the event of an injunction,” we conclude that the email message was irrelevant to any of the preliminary injunction factors considered .by the district court. Aplt. Br. at 41. To begin with, the email message had no relevance to the question of whether the FTA properly complied with NEPA or NHPA. As for the balance of harms and public interest factors (which will be discussed in greater detail below), plaintiffs make no attempt to explain precisely how de Garmo’s email message could be relevant. At best, the message suggests that a key design feature of the ART Project— i.e., dedicated bus lanes down the median of Central Avenue — was unnecessary for the City to obtain federal funding for the ART Project, But it does not otherwise undercut the reasons forwarded by the City for designing and implementing the ART Project in the first place. The substantive challenges The remaining four issues raised by plaintiffs on appeal (Issues I, III, IV and VI) are substantive challenges to the district court’s decision to deny their motion for preliminary injunction. These four issues, all of which lack merit, will be addressed in the context of the standards outlined in Federal Rule of Civil Procedure 65(a) for the issuance of preliminary injunctions. Rule 65(a) authorizes district courts to issue preliminary injunctions. Generally speaking, a plaintiff “seeking a preliminary injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct 365, 172 L.Ed.2d 249 (2008). Likelihood of success on the merits “The very purpose of an injunction under Rule 65(a) is to give temporary relief based on a preliminary estimate of the strength of the plaintiffs suit, prior to the resolution at trial of the factual disputes and difficulties presented by the case.” 11A Charles-Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2948.3, at 213-14 (2013). Although “[t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success,” id. at 197, “[a]U courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.” Id at 201. As we have noted, the plaintiffs ultimately based their motion for preliminary injunction on two of the claims alleged in their complaint: (1) the claim in Count I that the FTA acted arbitrarily and capriciously in granting a CE in connection with the ART Project; and (2) the claim in Count II that the FTA violated NHPA by failing .to properly consider and evaluate the impact of the ART Project on the historical integrity of Route 66 and its adjacent historic resources. Both of these claims constitute challenges to final agency action under the APA. 1) The APA Because neither NEPA nor NHPA “provide a private right of action, we review” the two- FTA decisions as “final agency action[s] under the” APA. Utah Env’t Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008). “When courts consider such challenges, an agency’s decision is entitled to a presumption of regularity, and the challenger bears the burden of persuasion.” San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (citation omitted). But we “can set aside an agency decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). An agency’s decision will be deemed arbitrary and capricious “ ‘if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.’ ” Id. (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009)). 2) The NEPA-based claim NEPA “requires federal agencies ... to analyze environmental consequences before initiating actions that potentially affect the environment.” Utah Env’t Cong, v. D. Bosworth, 443 F.3d 732, 735-36 (10th Cir. 2006). Notably, NEPA “does not mandate particular results,” but rather “imposes only procedural requirements to ensure that [a federal] agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Winter, 555 U.S. at 23, 129 S.Ct. 365 (quotation marks omitted). Specifically, in conducting its environmental analysis under NEPA, a federal agency “must prepare one of the following: (1) an environmental impact statement [(EIS)], (2) an environmental assessment [ (EA) ], or (3) a categorical exclusion [ (CE) ].” Id. at 736. The “most rigorous” of these three options is the EIS. Id. An EIS “is required if a proposed action will ‘significantly affect[] the quality of the human environment.’ ” Id. (quoting 42 U.S.C. § 4332(C)).'“If an agency is uncertain whether the proposed action will significantly affect the environment, it may prepare a considerably less detailed [EA].” Id. Preparation of an EA helps the agency “determine whether a proposed project will create a significant effect on the environment” and thereby require preparation of an EIS. Id. Finally, “[i]n certain narrow instances, ... an agency is not required to prepare either an [EA] or an [EIS].” Id. “This occurs when the proposed action falls within a [CE], ie., those actions predetermined not to ‘individually or cumulatively have a significant effect on the human environment.’ ” Id. (quoting 40 C.F.R. § 1508.4). The role of a federal court under NEPA is to review the EIS, EA, or CE, as the case may be, and “simply ... ensure that the agency has adequately considered and disclosed the environmental impact of its actions.” Wyo. v. United States Dep’t of Agric., 661 F.3d 1209, 1256-57 (10th Cir. 2011) (quotation marks omitted). The district court in this case, applying these principles, rejected the plaintiffs’ assertion that the FTA failed to “take a ‘hard look’ at the City’s CE application and that the FTA’s decision to approve the CE application was arbitrary and capricious.” App., Vol. 7 at 1058. The district court noted that defendant “Donald Koski, [the] Director of Planning and Program Development of Region VI of the FTA,” testified at the evidentiary hearing “that his staff reviewed a draft of the CE application, communicated with the City regarding its project development request, consulted with the SHPO, and reviewed the final CE application as did [he].” Id. “Thesé actions,” the district court concluded, “demonstrate[d] that the FTA took the required ‘hard look’ at the CE application.” Id The district court also rejected the plaintiffs’ argument “that the FTA’s action was arbitrary and capricious because the City’s CE application did not consider economic impacts on businesses or traffic issues such as congestion and diversion of traffic to neighborhoods adjacent to Central Avenue.” Id. In doing so, the district court noted that “[tjhe City ... provide[d] the FTA with a business access technical supplement and a traffic assessment technical supplement in response to the CE worksheet’s request for information related to ‘economic environment’ and traffic patterns.” Id And “[t]hose supplements,” the district court noted, “indicate[d] that no business w[ould] lose access, congestion w[ould] be minimized with signalized left and u-turns, and that diversion into neighborhoods would amount to 250 vehicles daily.” Id. The district court also noted that “[t]he diversion number [wa]s supported by a traffic engineer’s expert opinion.” Id. The district court thus “conclude[d] that the FTA considered relevant factors, like economic environment and traffic patterns.” Id. at 1059. Lastly, the district court rejected the plaintiffs’ argument that the FTA should not have approved the CE “because there was a ‘substantial controversy on environmental grounds.’” Id The district court noted that although “[t]he CE application inelude[d] a' detailed summary of comments, including negative comments,” it concluded that “those comments d[id] not suggest ‘substantial controversy on environmental grounds.’ ” Id. More specifically, it noted that “[gjeneral concerns and even economic impacts are not ‘environmental grounds’ for purposes of 'assessing public controversy.” Id. “Moreover,” the district court noted, “the negative comments did not identify a substantial controversy over the size, nature or effect of the environmental impacts.” Id. at 1060. “Instead,” the district court noted, “many people complained about cost, access to businesses, lost parking, removal of the median, and preferred alignments,” none of which “meet'the legal test.” Id. In Issue I of their appeal, plaintiffs contend the district court erred in concluding “that the FTA could satisfy its ‘hard look’ requirement by examining the City’s submissions, rather than at the project’s environmental effects themselves.” Aplt. Br. at 17-18. In other words, plaintiffs argue, it “is impermissible under NEPA” for the FTA to rely exclusively on the City’s submissions. Id. at 31. But plaintiffs did not make this argument below, nor did they cite below the cases, they now cite in their appellate brief.. Indeed, this argument appears to be contrary to the arguments made by plaintiffs in their motion for preliminary injunction. In their preliminary injunction motion, plaintiffs argued that “[t]he FTA had all the evidence it needed to show that a CE was inappropriate for ART.” App., Vol. 2 at 211. More specifically, plaintiffs argued that “the data submitted by the City in its CE and grant applications, if the FTA had examined it, would have shown ... [t]hat ART would significantly impact Central’s traffic, congestion, neighborhoods and shops.” Id' But, plaintiffs argued, “[n]ot only did the FTA not give this data or the project itself a ‘hard look’ as NEPA requires[,] the FTA seems to have given it no look at all.” Id. As noted, the district court rejected this argument based upon the testimony presented at the evidentiary hearing. Because the argument that plaintiffs now assert — that it was impermissible for the FTA to rely exclusively on the City’s submissions — was not made below and is being asserted for the first time on appeal, “we would be well within the boundaries of our discretion to decline to consider [it].” Fish, 840 F.3d at 730. Even if we were to reach this new argument, we would conclude that it lacks merit. Notably, the primary case cited by plaintiffs in support of their argument, Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986), expressly recognizes that it is permissible for an -agency to “rely on" reports prepared by outsiders or applicants.” Id. at 642. To be sure, Van Abbema also cautions that “when such [outside] information is specifically and credibly challenged as inaccurate, the [agency at issue] has an independent duty to investigate.” Id. But the plaintiffs in this case did not challenge the City’s report as inaccurate. Instead, as noted above, they argued that it actually supported their position. Moreover, the district court in this case found, after hearing testimony from an FTA official, that the FTA agreed with the City’s report only after carefully and independently considering it. Thus, in the end, plaintiffs have failed to establish that the FTA was obligated- to conduct its own, independent investigation, or that it otherwise acted improperly in relying on the City’s report'. The only other challenge that plaintiffs mount to the district court’s analysis of their NEPA-based claim is, as outlined in Issue III of their appellate brief, that the district court erred in concluding that the controversy regarding the ART Project did not involve environmental concerns, In suppoi’t of this challenge, plaintiffs first point to 23 C.F.R. § 771.118, which is entitled “FTA categorical exclusions,” and provides, in pertinent part, as follows: (a) Categorical exclusions (CEs) are actions which meet the definition contained in 40 CFR 1508.4, and, based on past experience with similar actions, do not involve significant environmental impacts. They are actions which: do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts. (b) Any action which normally would be classified as a CE but could involve unusual circumstances will require FTA, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper. Such unusual circumstances include: (2) Substantial controversy on environmental grounds; 23 C.F.R. § 771.118(a), (b)(2). Plaintiffs in turn point to 40 C.F.R. § 1508.27, which defines the term “significantly” for purposes of NEPA, and states, in pertinent part: Significantly as used in NEPA requires considerations of both context and intensity: (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity: (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. 40 C.F.R. § 1508.27(b)(4), (5). Plaintiffs argue that “[t]he District Court apparently did not consider the mountain- of extrinsic evidence regarding the intensity of the controversy surrounding ART, presumably because the City had not disclosed the controversy to the FTA and because the FTA had not included in the Administrative Record the many hundreds of communications it had received in opposition.” Aplt. Br. at 35-36. Plaintiffs further.argue that “[t]he District Court did not explain what could be considered ‘environmental’ in the context of an urban BRT project, and ignored CEQ regulations that define environmental impacts as including ‘aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.’ ” Id. at 36 (quoting 40 C.F.R. § 1508.8(b)). The problem with plaintiff s’..arguments is that they ignore the CEQ’s definition of “human environment”: Human environment shall be interpreted comprehensively to include the natural and physical environment and the rela-' tionship of people with that environment. (See the. definition of “effects” (§ 1508.8).) This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment. 40 C.F.R. § 1508.14 (emphasis added). As we have noted in applying this" definition, “[i]t is well-settled that socioeconomic impacts, standing alone, do not constitute significant environmental impacts cognizable under NEPA.” Cure Land, LLC v. United States Dep’t of Agric., 833 F.3d 1223, 1235 (10th Cir. 2016). Instead, only when an action “ ‘will have primary impact on the natural environment’” will “‘secondary socio-economic effects ... be considered.’ ” Id. at 1235 n.10 (quoting Image of Greater San Antonio v. Brown, 570 F.2d 517, 522 (5th Cir. 1978)). And that problem is fatal to the plaintiffs, for the vigorous public opposition to the ART Project that plaintiffs point to was clearly founded on concerns other than the impact the ART Project would have on the natural environment. More specifically, as the district court noted in rejecting plaintiffs’ argument that there was a substantial controversy on environmental grounds, “the negative [public] comments” cited by plaintiffs concerned “cost, access to businesses, lost parking,-removal of the median, and preferred alignments,” none of which concerned the impact of the ART Project on the natural environment. App., Vol. 7 at 1059-60. -Thus, -in sum, plaintiffs have failed to establish that the district-court erred in analyzing the merits of their NEPA-based claim; 3) The NHPA-based claim “NHPA, like NEPA, is a procedural statute requiring government agencies to stop, look, and listen before proceeding when their action will affect national historical assets.” Presidio Historical Ass’n v. Presidio Trust, 811 F.3d 1154, 1169 (9th Cir. 2016) (quotation marks omitted). Of relevance here, Section 106 of NHPA “requires an agency-undertaking a project expected to adversely affect a public or private site listed on the National Register of Historic Places to ‘take into account the effect of the undertaking on any historic property.’ ” Id. at 1168 (quoting 54 U.S.C. § 306108). In fulfilling this statutory obligation, a federal agency must also comply with relevant NHPA regulations. For example, the agency must take into account the area of potential effects (APE), which is defined as “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.” 36 C.F.R. § 800.16(d). The agency must also, as relevant, consult with the SHPO in identifying the area of potential effects and determining the likely effect of the undertaking at issue. See 36 C.F.R. §§ 800.4(a)-(c), 800.5(a), 800.6(a), 800.16(f). We have emphasized that “[establishing an [APE] requires a high level of agency expertise, and as such, the agency’s determination is due a substantial amount of discretion.” Valley Cmty. Pres. Comm’n, 373 F.3d 1078, 1092 (10th Cir. 2004). In challenging the FTA’s and the City’s Section 1Q6 analysis as arbitrary or capricious, plaintiffs voiced a number of arguments in the district court. To begin with, plaintiffs complained that the FTA and the City failed to consider the full impact of the ART Project. For example, they “complain[ed] that the FTA defined the APE too narrowly and [they] argue[d] that the ART [P]roject w[ould] ‘directly or indirectly cause alterations in the character or use of historic properties’ beyond just the bus stations.” App., Vol. 7 at 1060 (quoting 36 C.F.R. § 800.16(d)). In addition, plaintiffs “argue[d] that the FTA ignored the fact that the ART [P]roject w[ould] introduce ‘visual, atmospheric or audible elements’ that w[ould] dimmish the historical nature of properties.” Id. (quoting 36 C.F.R. § 800.5(a)(2)(v)). Plaintiffs also argued that the City was required to “consider the cumulative impact of ART in determining whether ART w[ould] adversely affect historic resources.” Id. The district court rejected these arguments, stating as follows: The FTA, in consultation with the SHPO, defined the APE and considered potential effects of ART, and so concluded' that they would not have an adverse effect on any historic resource. Moreover, the eclectic nature of Central Avenue' does not lend itself to being designated a historic district. As Jeff Fredine[, a private environmental planner and historian cultural resources specialist hired by the City to perform the Section 106 consultation work on the ART Project,] testified, historic districts are comprised of a similarly aged and designed cluster of properties. This testimony is in line with David Rammer’s 2003 study, relied on by the City in its CE application: “Route 66, as an individual property type, through the current project area does not retain enough integrity to convey its historic significance and is recommended not eligible to the National Register of Historic Places (NRHP).” ABQ PAR 03011-12. Although, [sic] Rammer states that the Historic Preservation Department and others “should collectively address the possibility of nominating Route 66-relat-ed historic districts in urban areas” including in Albuquerque, that possibility has not been addressed and planners such as Fredine continue to concur with Rammer’s conclusion that Route 66 in Albuquerque, though historic and much loved by Albuquerqueans and tourists alike, would not be eligible for inclusion on the NRHP. Route 66 Resurvey Pt. 2, pg. 19-20. Indirect effects, like a change in the feeling -or setting of Central Avenue after the - ART :[P]rojeet is built, would also not necessarily affect the historic integrity of-Central Avenue when one considers the lack of cohesive design in properties. Id. at 1060-61. The plaintiffs also complained “that the FTA did not provide the SHPO with the City’s traffic study.” Id. at 1061. The district court summarily rejected this argument, noting that “[t]he SHPO knew what the ART design would be, including median stations,” and that the plaintiffs' “ha[d] not sufficiently established how a study showing a diversion of 250 cars per day and possible increased congestion at intersections in 2035 would affect the SHPO’s decision, which was based on a narrow APE and was concerned with visual issues.” Id. Lastly, plaintiffs argued below “that the FTA failed to engage the public or seek public comment as required by ... NHPA.” Id. The district court rejected this argument, noting that “[t]he City ... conducted public outreach which provided an opportunity to allow comment under ... NHPA.” Id. at 1062. More specifically, the district court noted that “the outreach included numerous one-on-one contacts with the public, door hangers, neighborhood meetings, other public meetings, and various other modes of outreach.” Id. Now, in Issue YI of their appellate brief, plaintiffs argue that “[t]he District Court abused its discretion by disregarding the law and disputed record evidence supporting” their three arguments. Aplt. Br. at 42. To’ begin with, the plaintiffs argue that the district court “misread[ ] ... the governing law” in “upholding] the FTA’s ‘narrow’ APE” on the grounds “that the [SHPO] concurred with the FTA on the scope of the APE.” Id. at 43. According to plaintiffs, “[w]hether a SHPO concurs with the APE is not the applicable legal standard for assessing the legal sufficiency of the APE.” Id. Instead, plaintiffs argue, 36 C.F.R. § 800.16(d) “requires the APE to be broad enough geographically to include ‘areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties.’ ” Id. at 44 (quoting 36 C.F.R. § 800.16(d) (emphasis added by plaintiffs)). “Moreover,” plaintiffs argue, 36 C.F.R. § 800.5(a)(1) “required the FTA to consider, [sic] not only indirect impacts, but also ‘reasonably foreseeable effects caused by the undertaking that may occur later in time, [or] be farther removed in distance or be cumulative.’” Id. (quoting 36 C.F.R. § 800.5(a)(1)). The district court, plaintiffs argue, “ignored the record evidence ... that the FTA defined the APE considering only direct impacts of the three small areas in the proximity of proposed ART stations,” and it also “disregarded] the fact that there exists no evidence or even claims by Appellees that they ever considered indirect and cumulative impacts resulting from ART.” Id. at 45 (emphasis in original). The problem with plaintiffs’ arguments is two-fold. First, plaintiffs are wrong in suggesting that the SHPO’s concurrence in the APE carries no weight. Indeed, the applicable regulations require the FTA to consult with the SHPO in determining the APE, see 36 C.F.R. § 800.4(a), and we have expressly cited the fact of an SHPO’s concurrence in upholding an APE, see Valley Cmty. Pres. Comm’n, 373 F.3d at 1091. Second, plaintiffs misread the record in asserting that the APE considered only the direct effects or impacts of the ART Project. The administrative record quite clearly establishes that the City and the FTA, with the concurrence of the SHPO, concluded that the ART Project would not have any direct effects or impact on historic properties. Thus, the APE focused on the indirect visual effects stemming from the ART Project, most notably the visual effects from the canopies of certain proposed bus stations. And the City modified the ART Project in certain respects to reduce the visual impacts of proposed ART stations in certain historic districts. Plaintiffs next argue, as part of Issue VI, that the district court “abused its discretion by shifting the burden of assessing adverse effects onto [them].” Aplt. Br. at 48, According to plaintiffs, they “pointed out [below] that one of the adverse effects that the FTA failed to consider by limiting the APE to direct impacts around the areas of the ART stations was the diversion of traffic from Central Avenue to adjacent neighborhoods including [four] historic districts.” Id. And that concern, plaintiffs argue, “is factually justified from the City’s own traffic study, which predicts 200-250 vehicles during a single peak PM hour will be diverted from Central Avenue at Edith Boulevard and Locust Street,” both of which “are parts of Huning Highland, a historic district on the National Register of Historic Properties.” Id. at 48-49. Plaintiffs assert that the district court “misstated the traffic diversion as vehicles per day instead of vehicles during a single peak hour.” Id at 49 (emphasis in original). The district court also, plaintiffs argue, “misstate[d] [their] legal burden and .the governing law by rejecting their concerns” about this diversion of traffic. Id. According to plaintiffs, “[t]here can be no legitimate dispute that the presence of diverted traffic into the adjacent historic districts will have some effect on them and the law required the FTA to consider whether such effects result in an ‘adverse effect.’ ” Id. at 50 (emphasis in original) (quoting 36 C.F.R. § 800.5), Because the FTA “did not consider traffic diversion at all,” plaintiffs argue, “it is beyond dispute that the FTA did not define the APE with sufficient expansiveness to have considered and assessed these effects directly, indirectly, or cumulatively on the historic districts.” Id. at 51. Plaintiffs are possibly correct on one point: the district court did arguably misstate the data regarding the number of vehicles, that would be diverted from Central Avenue by the ART Project. Although the district court stated that the diversion number would be 250 vehicles per day, the traffic modeling that was conducted by the City actually indicated that “[a] maximum of 250 vehicles during the PM peak hour (eastbound)” would be “diverted] from Central Avenue.” App., Vol. 8 at 1153. It is unclear from the record whether any non-peak hour diversions would occur. Thus, the figure stated by the district court may or may not be correct. The remainder of plaintiffs’ arguments, however, must be rejeóted. To begin with, the arguments that plaintiffs now make regarding diverted traffic flow are nowhere to be found in the brief they filed in support of their motion for preliminary injunction. Instead, they argued in that brief that “the FTA inappropriately limited the APE to areas adjacent to bus stations,” and “entirely disregarded ... destruction, alteration, character changes, and introduction of visual and atmospheric impact by the ART [P]roject.” App., Vol. 2 at 222. Because plaintiffs' arguments regarding diverted traffic flow were not asserted below, we are under no obligation to address them for the first time in this appeal. Moreover, even if we were to address these arguments, plaintiffs themselves misstate the record in suggesting that this diverted traffic would flow into, and negatively impact, four historic neighborhoods. To begin with, the City’s traffic modeling suggested that a portion of the 250 vehicles would “shift to a time outside of the peak hour.” Id. In other words, some of the 250 vehicles would not divert to other nearby roads at all, but instead would drive down Central Avenue at alternative times. Further, the City’s traffic modeling indicated that the remainder of the 250 vehicles would divert “from Central Avenue to parallel arterial streets,” most namely “the Lead Avenue/Coal Avenue one-way pair approximately 1/4 mile south of Central Avenue, and Lomas Boulevard, a six-lane principal arterial north of Central Avenue.” Id. And, the City’s modeling indicated, “[a]ccording to volume-to-capacity data Lomas Boulevard and Lead Avenue/Coal Avenue have adequate capacity to accommodate the traffic diverted from Central Avenue.” Id. Finally, nothing in the record indicates that the traffic actually diverted from Central Avenue during the “PM peak hour” will “directly or indirectly cause alterations in' the character or use of historic properties” on or near Central Avenue, as would be necessary to raise concerns under NHPA. 36 C.F.R. § 800.16(d) (defining APE). For these reasons, plaintiffs have failed to demonstrate a likelihood of establishing that the FTA erred in defining the APE, or that the district court erred in rejecting their arguments on this point. Plaintiffs also argue, again as part of Issue VI, that the APE was inaccurate because the ART Project “will not remain within the existing roadway footprint” and instead will require the City to “acquir[e] over an acre of property from both private and public property owners.” Aplt. Br. at 52. Relatedly, plaintiffs argue that the APE failed to take into account the fact that the ART Project will create “substantial subsurface disturbance with accompanying vibrational , and noise impacts to historic buildings and districts along the ART route resulting from the construction of ART.” Id. These arguments were not asserted by plaintiffs in the brief they filed with the district court in support of their motion for preliminary injunction, and thus we are under no obligation to address them in this appeal. Even if we were to address these arguments, we would conclude that they lack merit because plaintiffs have failed to describe why the APE would have been any different had the City and the FTA considered these two factors (i.e., the need for the City to acquire approximately an acre of property to complete the ART Project, or the vibrational. and noise impacts), and they also fail to establish that the FTA acted. arbitrarily or capriciously in failing to consider these factors. Or, as the City aptly argues, these arguments “rel[y] on the absence of overt discussion of the issue and not on any evidence that [the acquisition of property by the City for the ART Project or the] temporary construction vibrations will in fact be a problem” in terms of negatively impacting historic properties. City Aplee. Br. at 51. Plaintiffs next argue, as part of Issue VI, that it was an abuse of discretion for the district court to “defer[ ] to the conclusion of Jeff Fredine in his Cultural Inventory Addendum that Central Arenue/Route 66 is not eligible for placement on the National Register [of Historic Places].” Aplt. Br. at 53. Fredine’s conclusion, plaintiffs argue, “rests on [his] gross m'ischaracterization of a survey carried out by Route 66 Historian, Dr. David Rammer.” Id. To begin with, plaintiffs argue, the portion of Rammer’s survey that Fredine relied on actually addressed a section of Route 66 that is outside of Albuquerque. Id. at 53-54. “To make matters worse,” plaintiffs argue, “Rammer actually recommended [in his 2003 survey] that Route 66-related historic districts,” such as those inside the Albuquerque city limits, “should be nominated for eligibility.” Id. at 54 (emphasis in original). Plaintiffs again mischaracterize the record in making these arguments. During his direct testimony at the evidentiary hearing, Fredine explained that he and the City evaluated [Route 66] as a property itself in addition to Route 66-associated buildings, and what we found, which is consistent with previous research [including Rammer’s prior research], was that due to the adjustments that are common in urban environments, especially one the size of Albuquerque, that the historic integrity of Route 66 itself through the — through Albquerque was not— there was not enough remaining to make it eligible for the National Register [of Historic Places]. App., Vol. 24 at 3055. Fredine testified that, as “general background” material, id. at 3062, he relied on two surveys that Rammer had published, one in 1993 and an updated version in 2003, “document[ing] historic and architectural resources of Route 66 throughout New Mexico,” id. at 3056. Fredine noted that neither survey “listfed] Central [Avenue] or Route 66 through Albuquerque as a historic property or one that’s eligible for the National Register [of Historic Places].” Id. On cross-examination, Fredine acknowledged that the portion of Rammer’s survey that he relied on addressed rural areas of Route 66. Id. at 3071. When asked why he relied on that part of the survey in reaching conclusions about an area of Route 66 located in the city limits of Albuquerque, Fredine explained: Because [Rammer’s survey] spoke to a methodology he was following where development can impact historic integrity. And I believe I say something in [my] report to the effect of, you know, this may be why [Rammer] was focusing on rural areas other than urban areas. But my intent was to convey that we were looking at urban development as a . potential effect to the integrity of a historic resource. Id. at 3072. Fredine was asked on cross-examination to read a portion of Rammer’s surveys that stated “the Route 66 Preservation Program and NR staff should collectively address the possibility of nominating Route 66-related historic districts in urban areas.” Id. at 3073. Fredine was then asked whether Rammer was “saying something [in his surveys] that [wa]s quite different than what [Fredine] attributed to him in [his] report?” Id. at 3074. Fredine responded: I don’t feel that he [wa]s. I feel that [he was] saying there’s potential there and that it should be evaluated for a National Register nomination as a district. What I am referring to [in my report] is the process of impacts to historic integrity which can be by things like urbanization and that process that affect the contiguousness of those individual buildings that are eligible to the National Register. Id. Thus, in sum, Fredine provided a rational explanation for the conclusion he reached in his report (i.e., that Route 66, as it ran through Albuquerque, did not qualify as a historic district for purposes of NHPA), and the district court did not abuse its discretion in relying on that testimony. Finally, as part of Issue VI, plaintiffs argue that the district court abused its discretion by “disregard[ing] the record evidence establishing that neither the City nor the FTA consulted with the public in carrying out the Section 106 review.” Aplt. Br. at 55. According to plaintiffs, “Section 106 regulations make planning for involving the public and actually engaging the public mandatory.” Id. at 56 (citing 36 C.F.R. §§ 800.3(e), (f), 800.4). Yet, plaintiffs argue, “[n]o evidence exists that either the City or the FTA ever sought consultation from anyone other than tribes regarding impacts on historic properties.” Id. Plaintiffs’ arguments lack merit. To be sure, the applicable regulation states that “[t]he views of the public are essential to informed Federal decisionmaking in the section 106 process.” 36 C.F.R. § 800.2(d)(1). But, as the district court correctly noted, the “regulations do not specify the form of public outreach required under NHPA.” App., Vol. 7 at 1061. Instead, the regulation affords the “agency official” with discretion to “seek and consider the views of the public in a manner that reflects,” in pertinent part, “the nature and complexity of the undertaking and its effects on historic properties.” 36 C.F.R. § 800.2(d)(1). Further, and of particular importance here, the regulation states that “[t]he agency official may use the agency’s procedures for public involvement under [NEPA] ... if they provide adequate opportunities for public involvement consistent with this subpart.” 36 C.F.R. § 800.2(d)(3). Notably, the district court found, in rejecting these same arguments made by the plaintiffs, that “[t]he City ... conducted public outreach [that] provided an opportunity to allow comment under ... NHPA.” App. at 1062. In making this finding, the district court credited the testimony of Michael Riordan, the City’s Chief Operations Officer, who “testified the outreach included' numerous one-on-oné contacts with the public, door hangers, neighborhood meetings, other public meetings, and various other modes of outreach.” Id. To be sure, the district court found “that some people did not get the word” and “[m]any of those that did ... do not believe they were heard.” Id. Nevertheless, the district court found “that the City’s submissions to the FTA included sizeable numbers of [public] comments,” thereby allowing “[t]he FTA [reason to] conclude from the CE application that the City engaged in public outreach would have included comment required by ... NHPA.” Id. Plaintiffs fail to explain how the district court’s factual findings on this issue were clearly erroneous. Moreover, plaintiffs make no attempt to undercut the testimony of Riordan regarding the measures that were taken to elicit public comment. Consequently, there is no merit to their argument that the district court abused its discretion in reaching the conclusion that it did. In sum, then, plaintiffs have not established any error on the part of the district court in concluding that they failed to establish a substantial- likelihood of success on the merits of their NHPA-based claim. Irreparable harm The district court concluded that plaintiffs failed to “satisf[y] the irreparable harm requirement for a preliminary injunction.” App., Vol. 7 at 1064. In reaching this conclusion, the district court stated: Plaintiffs, in this case, have presented evidence that businesses and neighborhoods will be harmed by traffic congestion, safety issues, aesthetic and cultural loss, and loss of business. Indeed, testimony from witnesses Steve Paternoster, Anthony Anella, and Buck Buckner, for example, suggests a loss of business as a result of ART. However, Plaintiffs have not demonstrated that the asserted harms are irreparable. The City states in its briefing that the ART lanes could be redesignated as general use lanes without much trouble. Moreover, economic injuries are not irreparable, because they are typically compensable with monetary damages. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (“It is also well settled that simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compensable by monetary damages.”). Furthermore, the evidence shows any harm will also not be “certain or great.” No business will close and at least one lane of Central will be open during construction. Once ART is built, left-hand turns will be restricted but it is not expected they will not [sic] prevent customer access. Moreover, the evidence indicates that over all access will improve with ART. The witness testimony about business decline, while sincere, does not meet the legal test: Plaintiffs have not provided any specific numbers or hard projections, for example, to show how much business will be lost. Also, any loss of foot traffic during construction would be temporary and foot traffic is expected to actually increase after ART is built due to improved streetscape. In addition, the City will implement several mitigation actions during construction to minimize impact such as construction notices, low-or no-interest loans, and business consultants. In addition, conclusory assertions of aesthetic harm are not sufficient to establish irreparable harm. Id. at 1063-64. In Issue IV of their appellate brief, plaintiffs argue that the district court abused its discretion in relying on the City’s assertion “that the dedicated lanes could be repurposed as general traffic lanes.” Aplt. Br. at 37. According to plaintiffs, this was merely a statement in the City’s brief in opposition to plaintiffs’ motion for preliminary injunction, and was “entirely without support in the evidence.” Id. Plaintiffs are correct that the City’s brief in opposition to plaintiffs’ motion for preliminary injunction stated, without a citation to any evidence: “As an initial matter, construction of ART would not impose any irreparable injury for the simple reason that the ART lanes could be redesignated as general purpose lanes or turn lanes, with relatively modest changes, were the Court to find the project impermissible on some basis on the merits.” App., Vol. 4 at 564. The problem for plaintiffs, however, is that they failed to respond to this assertion in the reply brief that they filed with the district court in support of their motion for preliminary injunction. In that reply brief, plaintiffs briefly discussed the issue of irreparable harm, but made no mention of the City’s assertion that the ART Project lanes could be redesignated if necessary. Consequently, plaintiffs have waived this argument for purposes of appeal. Plaintiffs next argue in Issue IV of their appellate brief that the district court erred in concluding that their economic harms were ‘“compensable by monetary damages.’ ” Aplt. Br. at 37 (quoting App., Vol. 7 at 1063). According to plaintiffs, “[t]he District Court did not posit any legal theory on which [they] could recover damages,” and “[o]ther courts have routinely rejected arguments that even a theoretical theory for recovery of damages for environmental harm can be treated as a substitute for injunctive, relief in a NEPA case.” Id. Plaintiffs further argue that the district court improperly criticized them for failing to provide “specific numbers or hard projections” regarding the economic damages they might suffer as a result of the ART Project. Id. at 38. And plaintiffs argue that the district court improperly “speculated that the ART [P]roject might well improve businesses and other aspects of life along Central [Avenue].” Id. These arguments largely miss the central point of the district court’s irreparable harm analysis. Having- concluded that plaintiffs failed to establish a substantial likelihood of success on the merits of their NEPA and NHPA-based claims, the district court in turn concluded that the only potential harms identified by plaintiffs were largely economic in nature and mostly speculative at that. Under Tenth Circuit law, it is well established that “economic loss is usually insufficient to constitute irreparable harm.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011). Notably, plaintiffs make no attempt to demonstrate that this case is an exception to the general rule. As for plaintiffs’ assertion that the district court “speculated that the ART [Project might well improve businesses and other aspects of life along Central [Avenue],” what the district court actually said is that “the evidence indicate[d] that over all access w[ould] improve with ART.” App., Vol. 7 at 1063. Plaintiffs make no attempt to challenge this assessment of the evidence. For these reasons, we conclude that plaintiffs have failed to establish that the district court abused its discretion in concluding that plaintiffs failed to establish the existence of irreparable harm. Balance of harms and public interest factors The district court concluded that the balance of harms did not favor granting plaintiffs a preliminary injunction. In reaching this conclusion, the district court emphasized that “[plaintiffs’ harms ... reflected] personal preferences, but ... d[id] not meet the legal test.” Id. at 1065. “Furthermore,” the district court noted, “not allowing ART to go forward w[ould] keep the City from building' a project to revitalize the area and address pedestrian safety and improve transit efficiency.” Id. In addition, the district court noted that “the evidence sufficiently indicate[d] that delaying ART w[ould] lead to increased construction costs [of up to $7,500 per day] because the City w[ould] have to pay its contractors to keep them mobilized during cold weather and for any period of delay caused by an injunction.” Id. (quotation marks omitted). Lastly, the district court noted that “the City’s ... construction schedule [wa]s such that it w[ould] minimize impacts to businesses and residents, especially during peak shopping times during Christmas, Summerfest, Balloon Fiesta, and- State Fair,” Id The district court also concluded “that the public interest require[d], denying an injunction.” Id. at 1066. The district court explained that “[c]ompleting the ART [P]roject on time w[ould] address existing safety concerns sooner and save the public money due to construction delays,” and that “an injunction w[ould], in part, serve Plaintiffs’ private interests, i.e., their business and financial interests, rather than the public’s interest at large.” Id. The district court also “acknowledge^] that at least a majority of the City Council, the Mayor, and other elected officials ha[d] investigated the ART [P]roject and ha[d] determined that it [wa]s in the public’s interest.” Id. In Issue IV of their appellate brief, plaintiffs argue that the district court “misunderstood the ‘balance of harms’ and ‘public interest’ in the context of injunctive relief from NEPA violations.” Aplt. Br. at 39. To begin with, plaintiffs argue that it was wrong for the district court to rely on the City’s claim that it would lose $7,500 per day in contractual damages if an injunction were issued. In support, plaintiffs note that in Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002), we concluded, in the context of a NEPA-based claim, that delay costs that would be incurred by the Utah Department of Transportation (UDOT) if an injunction were issued in favor of plaintiffs “may [have] be[en] self-inflicted” by “state entities ... ‘jumping] the gun’ on the environmental issues by entering into contractual obligations that anticipated a pro forma result.” And the same is true in this case, plaintiffs argue, because “the City entered into contracts during the period that this Court had temporarily enjoined the City from proceeding.” Aplt. Br. at 40 (emphasis in original). But plaintiffs” arguments misstate the record in this case. On August 1, 2016, the same day the appeal was docketed, plaintiffs filed an emergency motion to stay the district court’s order and for emergency injunctive relief pending consideration of their appeal. Later that same day, we issued an order directing the City and the FTA to file written responses to plaintiffs’ emergency motion by August 2, 2016. The order also directed the City to “include in its response information on the nature and timing of any demolition or construction related to the ART project that is planned between now and the close of business on Wednesday, August 10, 2016.” Order at 1. Lastly, the order temporarily enjoined defendants “from taking any action on the ART project until further order of the court.” Id. at 2. On August 2, 2016, the City filed a written response to plaintiffs’ emergency motion, and also filed its own emergency motion for limited modification of the court’s August 1, 2016 order. In both pleadings, the City explained that at approximately 8:30 a.m. on August 1, 2016, prior to the issuance of our order, “the City executed a contract for certain pre-construction work” that was “non-destructive and temporary in nature.” -City’s Emergency Motion at 2. The City thus asked us to modify our August 1, 2016 order to allow this pre-construction work to begin. The City also stated in its response that, absent our issuance of an injunction, it intended to execute a contract authorizing construction work on August 22, 2016, and that it expected demolition or destructive work to start on September 3, 2016. On August 2, 2016, we issued an order granting the City’s emergency motion to modify the temporary injunction to allow the pre-construction work to proceed. Little more than two weeks later, on August 19,2016, we issued an order denying plaintiffs’ motion for stay and injunction pending appeal and vacating the temporary injunction that was entered on August 1, 2016. In light of this procedural history, there is no merit to plaintiffs’ assertion that the City entered into contracts during the period that we temporarily enjoined the City from proceeding. To the contrary, the City entered into the pre-construction contract prior to the issuance of our temporary injunction order, and it entered into the construction contract after we lifted the temporary injunction order and denied plaintiffs’ motion for stay and injunction pending appeal. Moreover, the key difference between Davis and the case at hand is that we concluded that the plaintiffs in Davis were likely to succeed on the merits of their NEPA claim, i.e., that UDOT officials erred in concluding that the highway construction project at issue would have no significant effect on the environment. Here, in contrast, plaintiffs have failed to establish a substantial likelihood of prevailing on either their NEPA-based claim or their NHPA-based claim. Thus, it was not necessarily improper in this context for the district court to take into account the additional costs that would be incurred by the City if an injunction were issued. Lastly, plaintiffs argue, as part of Claim IV of their appellate brief, that “[a]s to the related ‘public interest’ prong of the test for preliminary injunctive relief, this Court and others have consistently identified the strong public interest in the enforcement of NEPA.” Aplt. Br. at 41. While that is true, the fact remains that plaintiffs have failed to establish a substantial likelihood of prevailing on the merits of their NEPA-based claim. Consequently, they have failed to establish that the public interest would be served if a preliminary injunction were entered in their favor. .HI We AFFIRM the district court’s denial of a preliminary, injunction and REMAND the case for further proceedings. . On that same date, a separate group of Albuquerque citizens (often referred to in the pleadings as the “Bautista plaintiffs”) filed suit in New Mexico state court against the City, various City officials, the DOT, the FTA, and federal officials seeking to enjoin the ART Project. That complaint was removed to federal district court, but is not part of this appeal. . The hearing also simultaneously addressed a similar motion for preliminary injunction filed by the Bautista plaintiffs in their action, . "The Council on Environmental Quality (CEQ) is tasked with interpreting NEPA and establishing regulations governing agencies’ responsibilities under the statute.” Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1063 (10th Cir. 2015), "CEQ regulations require federal agencies to consider all of the reasonably foreseeable direct, indirect, and cumulative effects of an agency’s action.” Id. (citing 40C.F.R. §§ 1508.7, 1508.8). . As the City argues in its appellate response brief, "there is no mention [in the record] of traffic volumes as contributing to the historic significance of [the four] districts [at issue] or as having the potential to negatively affect their historic significance." City Aplee. Br. at 49,

Presidio Historical Ass'n v. Presidio Trust

OPINION McKEOWN, Circuit Judge: This appeal calls upon us to address the future development footprint of the historical heart of the Presidio of San Francisco (“Presidio”) — a former military base that is now a National Park and a National Historic Landmark. Like the city in which it sits, the Presidio is caught in the middle of competing forces: on the one hand, a strong commitment to preservation, and on the other, the inexorable tide of change, development, and economic pressures. The area of the Presidio at issue — the Main Post, sometimes referred to as the focal point of the Presidio — is managed by the Presidio Trust (the “Trust”), a wholly — owned government corporation created by the Presidio Trust Act. Omnibus Parks and Public Lands Management Act of 1996, Pub.L. No. 104-333, 110 Stat. 4097 (codified at 16 U.S.C. § 460bb app.) (“Presidio Trust Act” or “PTA”). The Trust is governed by both the Presidio Trust Act and the National Historic Preservation Act (“NHPA”). 54 U.S.C.A. § 300101 et seq. (West 2015). Under the Presidio Trust Act, the Trust must fulfill the dual statutory purposes of preserving the historic and natural character of the Presidio and making the Presi-dio financially self-sustaining. PTA §§ 101(5), (6), (7). To meet those directives, the Trust in 2002 adopted the Presidio Trust Management Plan (the “Plan”). The Trust amended the Plan for the Main Post district in 2011 (the “Update”). Among other things, the Update provided for extensive demolition and new construction on the Presidio’s Main Post, including a new lodge, an expansion of the Presidio Theatre, an addition to the Presi-dio Chapel, and an archaeology lab. This appeal is limited to the Update’s proposed new lodge adjacent to the Presi-dio’s Main Parade Ground. Labeling it as a “lodge” is something of a misnomer, because it is not a single, unitary structure. Instead, the design envisions twelve buildings totaling 70,000 square feet at a “maximum height of 30 feet above existing grade,” with each building connected by “open-air porches” and styled after the historic, Civil War-era Graham Street barracks that once stood in roughly the same location. For simplicity, we refer to this proposed development as “the lodge.” While the Trust envisioned the lodge as opening the park to more cultural, educational, and public uses and contributing to financial sustainability, critics allege the project contributes to commercialization of the park and undermines the Main Post’s historic character. Central to the appeal is whether the construction of a new lodge (70,000 square feet), offset by demolition of other buildings (94,000 square feet) in the Main Post, constitutes “replacement of existing structures of similar size in existing areas of development” under the Presidio Trust Act. PTA § 104(c)(3). We also address whether, in settling on the lodge location and design, the Trust complied with Section 110(f) of the NHPA, which requires that the Trust “to the maximum extent possible ... undertake such planning and actions as may be necessary to minimize harm to the landmark.” 54 U.S.C.A. § 306107. Because the Trust complied with its obligations under both statutes, we affirm the district court’s grant of summary judgment in favor of the Trust. Background The Presidio has been described as the birthplace of San Francisco and is noted for its diverse architectural styles and formal landscapes that illustrate the complex layering of construction over time. In the mid-twentieth century, the Presidio began a transition from a fully-functioning military base to the recreational preserve that it is today, starting with its designation as a National Historic Landmark District in 1962. In 1994, the National Park Service (“Park Service”) assumed control of the Presidio from the Army and managed the property under the Golden Gate National Recreation Area Act (“Golden Gate Act”), 16 U.S.C. § 460bb et seq. The Golden Gate Act sought to “preserve for public use and enjoyment certain areas of Marin and San Francisco Counties, California, possessing outstanding natural, historic, scenic, and recreational values, and ... to provide for the maintenance of needed recreational open space necessary to urban environment and planning.” Id. § 460bb. The Act limited new construction within covered lands to “reconstruction],” and specifically provided that “[a]ny ... structure which is demolished may be replaced with an improvement of similar size.... ” Id. § 460bb-2(i). Not long after, Congress revisited the Park Service’s responsibility for the entirety of the Presidio, in part out of a desire to reduce the government’s financial responsibility for maintaining the park. The result was the 1996 Presidio Trust Act, which divided the Presidio into two areas (Area A and Area B) and gave the newly formed Presidio Trust the authority to oversee, manage, and develop Area B of the park, roughly eighty percent of the area. PTA § 104(a). Specifically, the Trust is required to manage Area B in accordance with the Golden Gate Act and the Park Service’s “General Management Plan” for the Presi-dio, both of which require protecting the historic character and predominantly natural setting of the Presidio. Id. At the same time, the Trust Act imposed a duty to develop a management plan “designed to reduce expenditures ... and increase revenues to the Federal Government to the maximum extent possible.” Id. § 104(c). To incentivize the Trust to fulfill this latter goal, the Trust Act called for a fifteen-year phase-out of budgetary support, leaving the Trust responsible for making the Presidio financially self-sustainable. Id. § 105(b). As of 2013, the Presidio had achieved financial self-sustainability and no longer required subsidies from the federal government. In 2002, the Trust adopted a Plan to fulfill the directives of the Trust Act. For management purposes the Plan created seven planning districts. These districts adapted the earlier planning districts established by the Park Service, and were “based on each area’s historic uses; jurisdictional boundaries; human-made features such as roads, fences, and walls; and natural features and demarcations, including topography and vegetation.” Each district had a designated “planning concept” that would guide “future planning and building use decisions.” Like any part of the Trust’s Plan, these planning districts and their applicable planning concepts may be altered at a later date. Amendments to the Plan, however, are subject to statutory and administrative limitations and may require, for example, administrative review, public comment, or consultation with government agencies. PTA §§ 103(c)(6), 104(c). The Main Post district, number 1, was designated as “Mixed-Use/Visitor & Community Focus,” with a vision that it would be “the heart of the Presidio” and a “focal point for visitor orientation.” The Plan capped total building area in the Main Post district at 1,240,000 square feet. It also capped lodging space in the park at 51,000 square feet. This map outlines Areas A and B (including'the seven planning districts): Frustrated with the persistent “empty and uninviting” feel of the Main Post and its failure to achieve anticipated public visitation, the Trust began to consider a revision to the Plan as early as 2005. Because the Trust was interested in larger lodging options than anticipated in the original Plan, the Update required a formal amendment process, including an environmental review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, and a formal consultation under Section 106 of the NHPA. After several years and multiple iterations of environmental review, consultation, and public comment, the Trust released its Update in 2010. The following year, the Trust documented its decision-making process in a Record of Decision, and formally adopted the Update on February 23, 2011. The centerpiece of the Update — and the only component challenged in this appeal — is the lodge proposal. The proposal ultimately reflected a scaled-back approach that the Trust adopted after consultation with interested parties, including the Park Service, the California State Historic Preservation Officer, and the Advisory Council on Historic Preservation. The twelve small buildings of the lodge, which are aesthetically modeled after the historic Graham Street barracks, would be located on and adjacent to the footprint of Building 34 (a 31,824-square-foot, modern, non-historical building on the Main Parade that is slated for demolition under the Update). This parcel is adjacent to the Main Parade Ground, which the Trust converted from a parking lot to grassy, open space years ago. This setup is depicted in the following schematic: According to the Trust, this mitigatedesign concept would greatly increase the public amenities in the Main Post area while also “strengthening] the articulation ic open spaces. Compared with the Trust’s plans for the lodge before the proposal went through NEPA and NHPA consultation, the modified lodge design also does more to ensure that the “scale, massing, height, and design” are “compatible with the surrounding historic environment.” The lodge proposal was part of a more extensive plan within the Update, which contemplated approximately 146,500 square feet of construction: 24,000 square feet of already completed construction plus 122,500 square feet of new construction. The new construction included the 70,000 square feet for the lodge buildings, as well as additions to the Presidio Theatre, additions to the Presidio Chapel, an archaeolo-gy lab, and incidental new construction. In its final form, the Update slated approximately 148,010 square feet of buildings for demolition. Of those, 94,000 square feet are in the Main Post planning district. As part of the Doyle Drive Project, the Trust also included another 54,071 square feet of demolition from the nearby Crissy Field planning district (Buildings 605 and 606) and Letterman planning district (Building 1158) in its demolition calculations. This project will be a “partially tunneled and covered parkway that reestablishes a connection between Crissy Field and the Main Post.” The proposed construction and demolition projects in the Update netted out to a negative 1,510 square feet. The mathematical maneuver of totaling square footage from the Main Post planning district plus the nearby Crissy Field and Letterman planning districts meant that the Trust could say that the Update as a whole led to a net square footage decrease. Thus, according to the Trust, it met its statutory obligation because the new buildings would replace existing buildings of similar square footage. The Trust rooted its approach in what is termed the “banking” interpretation of Section 104(c)(3), under which the Trust could undertake new construction (“replacement”) so long as the square footage (“similar size”) of the new construction was offset by aggregate demolition from any developed part of Area B (“existing areas of development”). The Trust explicitly relied on the banking interpretation in adopting both the Plan and the Update, and it has been the Trust’s operative theory of new construction authority until the current litigation. After the Trust finalized the Update, the Presidio Historical Association and the Sierra Club (the “Associations”) filed suit, challenging the Update on the grounds that the new lodge violated applicable statutes. On cross-motions for summary judgment, the district court granted summary judgment to the Trust. The district court specifically disclaimed any reliance on the Trust’s banking interpretation of Section 104(c)(3) of the Presidio Trust Act: “In reaching a conclusion that the Trust acted within its statutory authority, the court need not decide (and does not hold) that the Trust can ‘bank’ square footage from any area of development or one planning district and use it as it chooses in another area or district.” Instead, the district court found Section 104(c)(3) ambiguous and held that the lodge proposal was well within any reasonable interpretation permitted by the statute. The district court also held that, whether Section 110(f) of the NHPA imposes procedural or substantive obligations on agencies, it could not “see what else the Trust could have done besides not build the hotel at all.” Finally, the district court concluded that the Trust complied with NEPA and was not required to re-circulate its Final Supplemental Environmental Impact Statement for public comment after making relatively modest changes to the lodge proposal. On appeal, the Associations raise claims only under the Presidio Trust Act and the NHPA — not NEPA — and have framed the questions on appeal as limited to the lodge construction. The district court had jurisdiction to review the Update as a final agency action under 28 U.S.C. § 1331 and 5 U.S.C. § 706(2), and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s decision on the motion for summary judgment. Turtle Island Restoration Network v. NMFS, 340 F.3d 969, 973 (9th Cir.2003). Analysis I. The Presidio Trust Act At the center of the dispute over the lodge proposal is interpretation of Section 104(c) of the Presidio Trust Act. This section requires the Trust to “develop a comprehensive program for management of those lands and facilities within the Presidio which are transferred to the administrative jurisdiction of the Trust.... Such program shall consist of— (1) demolition of structures which in the opinion of the Trust, cannot be cost-effectively rehabilitated, and which are identified in the management plan for demolition, (3) new construction limited to replacement of existing structures of similar size in existing areas of development PTA § 104(c). The Trust reads Section 104(c)(3) to permit new construction in any existing area of development so long as the new construction is offset by demolition in any existing area of development throughout the park — ie., the banking interpretation. In the course of litigation, the Trust also advanced a narrower interpretation of the statute that would permit new construction so long as it is offset by demolition in the same existing area of development — ie., what the Associations term the “banking lite” interpretation. The Associations take the position that Section 104(c)(3) limits new construction to replacement of demolished structures with “buildings of roughly the same size in roughly the same place”— essentially a building-by-building, or one-up, one-down, approach. We reject the Trust’s broader banking theory, but agree that the statute supports a variant of its narrower interpretation. The buildings scheduled for demolition within the same Main Post planning district (94,000 square feet) offset the lodge’s 70,000 square feet of new construction within close proximity to the demolished structures. We therefore hold that the lodge proposal qualifies as a “replacement of existing structures of similar size in [an] existing area[ ] of development.” PTA § 104(c)(3). Because the lodge is the only new construction at issue in this appeal, we need not concern ourselves with the calculations related to the remaining demolition and new construction contained within the Update. Nor do we explore the outer limits of what is permissible under the statute. Our reasoning rests on the familiar Chevron analysis because the Trust is a government entity with statutory authority to make binding policy regarding Area B of the Presidio. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648 (9th Cir.2004) (treating the precedential value of an agency’s statutory authority as determinative of whether Chevron applies). Under Chevron, we look first to the text of the statute to determine whether “Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. If the intent of Congress is not clear, then we consider whether the Trust’s interpretation is “based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. In reaching their preferred, albeit divergent, readings of “replacement of existing structures of similar size,” both sides start with the proposition that the statute is unambiguous. Yet the seemingly simple statute raises more questions than it answers and we conclude that it is ambiguous with respect to the scope of the Trust’s authority to undertake new construction. A dizzying array of square footage figures offered by the parties hints at deep underlying ambiguity, and nothing in the plain text of the statute — the common denominator for the purposes of our analysis— adds any clarity. See United States v. Ermoian, 752 F.3d 1165, 1168 (9th Cir. 2013) (“We begin, as any effort to interpret a statute must, with the text.”). We first consider the Associations’ position that the statute unambiguously mandates a rough one-up, one-down principle. This argument fails on a plain language reading of the statute. The Associations largely assume that the word size refers to square footage, but we note that size might also refer to a building’s volume, height, footprint, scale, massing, or some combination of factors that are simply not delineated by the statute and thus inevitably require interpretation and judgment calls on the part of both the Trust and this court. Additionally, the term similar, particularly as part of the phrase “similar size,” itself evokes a qualitative judgment, which is anathema to the notion of clarity at Chevron step one. The purported plain meaning of the word replacement does not fare any better. To be sure, the contours of its accepted meaning limit the realm of possibilities, requiring that there be a plausible' connection between the replacement and its predecessor. See Oxford English Dictionary (3d ed.2009) (defining replace as “to provide a substitute for” or “put an equivalent in place of’). But whatever inherent limiting effect the word replacement might impart, the narrow meaning is lost when the word is read in context. The statute refers to replacement of “existing structures” rather than an “existing structure.” PTA § 104(c)(3). Thus, this language does not preclude a building or groups of buildings from replacing other groups of buildings, making it increasingly difficult to be sure what must be compared for similarity, let alone how to compare it. The ambiguity of this phrase stands out in contrast with the Golden Gate Act, which employed similar, but far clearer, language limiting new construction. See 16 U.S.C. § 460bb-2(i) (prohibiting new construction generally but allowing “[a]ny ... structure which is demolished” to be “replaced with an improvement of similar size” (emphasis added)). Had Congress intended the Trust Act to maintain the same strictures that governed new construction in the Presidio under the Golden Gate Act, it presumably would have kept the singular form, which better supports a one-up, one-down principle. Schwenk v. Hartford, 204 F.3d 1187, 1201 n. 12 (9th Cir.2000) (“Where limiting language present in earlier statutes is not included in later legislation, it can be presumed that the omission was intentional.”). The Associations acknowledge that the phrase “replacement of existing structures of similar size” does not bind the Trust to put new construction in exactly the same place and make it exactly the same in appearance or even footprint as the prior structures. They assert only that the Trust must put new construction “roughly” in the same location as the demolished building and make it “roughly” the same size. The Associations further acknowledge that it might be possible under their interpretation to remove several buildings and replace them with one new building of similar aggregate size. This commonsense concession certainly embraces one plausible reading of the statute, but one can posit both narrower and more expansive definitions of the provision’s operative terms, which are inherently abstract and imprecise. The specificity that Chevron step one demands is simply lacking here. The statute also states that the new construction may only replace existing structures in “existing areas of development.” PTA § 104(c)(3) (emphasis added). The reference to “existing areas” would be rendered superfluous if the provision required the Trust to proceed on a building-by-building basis, since the building being replaced would necessarily have been in an existing area of development. See Marx v. Gen. Revenue Corp., — U.S. -, 133 S.Ct. 1166, 1177-78, 185 L.Ed.2d 242 (2013) (noting that a statutory interpretation that renders other statutory language superfluous is generally disfavored, particularly if there is another interpretation that gives effect to every clause and word of a statute). Reading the phrase “replacement of existing structures of similar size” in light of the phrase “existing areas of development” compounds the ambiguity of PTA § 104(c)(3). In sum, we are unconvinced by the Associations’ reading of the statute. Nor are we persuaded that the Trust’s banking interpretation passes the test at Chevron step one. The claim that the statute unambiguously mandates this interpretation is in considerable tension with the plain text of the statute. Put literally, the Trust’s reading would have the statute say that the Trust can undertake new construction to “replicate square footage, (in the aggregate) from buildings demolished in any area of the park where there is development.” This expansive formulation essentially reads out plausible, commonsense meanings of the words replacement and similar size. At Chevron step one, we determine whether Congress has spoken to the “precise question at issue.” Chevron, 467 U.S. at 842,104 S.Ct. 2778. The answer here is no. The statute is unclear. Notably, neither side presents a compelling argument for any definitive, unambiguous definition of what is required of the Trust. In the end, the most that can be said of the statute is that it grants some unspecified discretion to the Trust to undertake new construction projects within certain obscure strictures. In the face of an ambiguous statute, under the second step of the Chevron analysis, we defer to the Trust’s interpretation so long as it is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. We hold that the Trust’s expansive banking interpretation is impermissible because it is “manifestly contrary to the statute.” Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239, 124 S.Ct. 1741, 158 L.Ed.2d 450 (2004) (citation omitted). While the new construction authority granted by the Presidio Trust Act is indeed capacious, there are nevertheless limits to what the Trust can read into the Act’s delegation of authority. Util. Air Regulatory Grp. v. E.P.A., — U.S. -, 134 S.Ct. 2427, 2442-43, 189 L.Ed.2d 372 (2014) (“Even under Chevron’s deferential framework, agencies must operate ‘within the bounds of reasonable interpretation.’ ” (quoting City of Arlington v. F.C.C., — U.S. -, 133 S.Ct. 1863, 1868, — L.Ed.2d-(2013))). The key infirmity of the banking interpretation is that it imposes no discernible limits on the Trust’s development authority across the Presidio, and thus would lead to an “enormous and transformative expansion” of the Trust’s “regulatory authority without clear congressional authorization.” Id. at 2444. For example, nothing in the banking approach would prevent the Trust from demolishing all of the buildings in the Main Post district in order to offset the construction of a high-rise condominium complex across the Presidio in the heart of the relatively undeveloped South Hills area. Although the Trust points to the requirement that the new construction be in “existing areas of development” to disclaim any power to use the banking approach to undertake such a project, the “existing areas of development” language has no limiting effect where it is statutorily undefined and virtually every area of the Presi-dio (and certainly every planning district) contains at least some development. Even if the banking theory contained discernible limits, efforts to balance the “ledger” over time and space, while the Trust juggles multiple development projects over multiple years, would be a nightmare in practice. Taken at face value, the Trust’s theory would render the entire Area B of the Presidio subject to unspecified development under the Trust Act, so long as square footage from somewhere (or multiple somewheres) was replaced with square footage anywhere else in the Presidio. That the banking interpretation would permit unlimited authority puts it at odds with a major purpose of the Trust Act— i.e., to implement “sound principles of land use planning” and “protect[ ] the Presidio from development and uses which would destroy the scenic beauty and historic and natural character of the area and cultural and recreational resources[.]” PTA § 101(5). That is reason enough to conclude that the banking interpretation is impermissible. See Chem. Mfrs. Ass’n v. E.P.A., 217 F.3d 861, 867 (D.C.Cir.2000) (holding EPA’s interpretation of an ambiguous statutory provision unreasonable where it was inconsistent with the Clean Air Act’s purpose). Ultimately, any reasoned interpretation of the statute must account for the diversity of the Presidio’s landscape, the vastly different levels of development in different areas of the park, and the historic nature of the park. For instance, the South Hills planning district is a largely undeveloped natural area, albeit with some small buildings, while the Main Post and Letterman planning districts are relatively urban. The Trust adopted the planning districts in recognition of the reality that these districts had different “historical uses” and features. If nothing else, Section 104(c)(3) was designed to prohibit the wholesale re-purposing of remote corners of the Presi-dio that currently feature vastly different characteristics and disparate levels of development. Yet the banking interpretation permits just that — the Trust offers no effective limiting interpretation that would account for the Trust’s duty to preserve the existing architectural and natural diversity of the Presidio. The Trust’s banking interpretation cannot pass muster because it “entirely fail[s] to consider an important aspect of the problem” at hand. Michigan v. E.PA, — U.S. -, 135 S.Ct. 2699, 2707, 192 L.Ed.2d 674 (2015) (quoting Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In the face of its unsuccessful efforts to persuade the district court to embrace a broad reading of the statute, on appeal, the Trust advanced a new, narrower interpretation of Section 104(c)(3). The Trust asks us to read the statute to permit construction of new buildings where their aggregate square footage is offset by demolition within the same existing area of development. We understand the Trust’s alternative theory as asserting authority to offset new construction with demolition in some physical proximity of the new construction, regardless of the boundaries of the planning districts. Under this “banking lite” theory, the Trust argues that the lodge proposal — and, indeed, the Update’s new construction plans as a whole — are “more than offset[ ]” by the demolition in the immediately adjacent areas of development, including the demolition in the Main Post Update plus demolition of the nearby Buildings 605, 606, and 1158 in the Crissy Field and Letterman planning districts. The Trust views the three buildings outside the Main Post planning district as “still within the larger ‘existing area of development’ that includes the Main Post.” The Record of Decision, which adopted the Update, is predicated on the Trust’s banking interpretation. In contrast, the new “banking lite” theory — advanced for the first time on appeal in response to the district court’s rejection of the Trust’s effort to invoke Chevron — is nothing more than a convenient litigating position. “Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (citation omitted). The “banking lite” interpretation is not the product of any considered development, nor has the Trust’s theory been consistent throughout the administrative process. Because of the way it came about and its potentially broad reach, we decline to give the litigating position any special deference under Skid-more. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (“The weight of [an agency interpretation] will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade, if lacking power to control.”). The ultimate question is whether the lodge proposal falls within the statutory mandate that new construction projects are limited to “replacement of existing structures of similar size in existing areas of development....” PTA § 104(c)(3). See also 5 U.S.C. § 706(2). We conclude that it does. The new lodge construction is projected for 70,000 square feet, while the physically proximate planned demolition within the Main Post planning district alone amounts to over 90,000 square feet. As already explained, the term “replacement” is not confined to a one-for-one demolition/new construction meaning. Instead, replacement can include, collectively, construction of more than one structure offset by demolition of more than one structure, thus giving meaning to the plural language of “existing structures.” PTA § 104(c)(3) (emphasis added). Further, treating the “similar size” restriction as encompassing at least a comparison of the square footage of the relevant demolished buildings, without necessarily cabining its meaning to that unit of analysis, ties the statutory requirements together in a manner consistent with the statute’s language and purpose. Id. Finally, the phrase “existing areas of development” should be limited to development in areas physically proximate to the location of the building being replaced. Id. This interpretation harmonizes all of the elements of the statute. See Boise Cascade Corp. v. E.P.A., 942 F.2d 1427, 1432 (9th Cir.1991) (“Under accepted canons of statutory interpretation, we must interpret statutes as a whole.... ”). We conclude that the Trust’s Update with respect to the proposed lodge and the offsetting demolition in the Main Post area is consistent with Section 104(c)(3). Without doubt, the proposed lodge is physically proximate to the other Main Post demolition sites. Each of the buildings being “replace[d]” is within several hundred yards of the proposed lodge and falls within a similarly developed area of the Presi-dio. It does not matter that there may be more structures than before: the new buildings still replace the other buildings within the Main Post planning district. To be sure, there remains some leeway as to how far the statute extends, especially with respect to the requirement of physical proximity. But we need not delineate the outer limits of that extension nor consider whether proximity is defined by the boundaries of the planning districts. Although the Trust reached across district lines to justify proposed construction in addition to the lodge, that expanded construction effort is not before us. Thus, we do not reach the question of whether Buildings 605, 606, and 1158 (encompassing 54,071 square feet), which are within two different, but adjacent, planning districts, legitimately could be counted to offset other planned construction in the Main Post. All we decide here is that the lodge construction and demolition taking place within the Main Post satisfy the replacement, size, and proximity limitations of Section 104(c)(3). II. The National Historic Preservation Act Because the Presidio is a National Historic Landmark District, any project that alters the Presidio’s structures is subject to the provisions of the NHPA. 54 U.S.C.A. § 306101. The NHPA imposes two sets of obligations on federal agencies, depending on the features of the historic site at issue. To begin, Section 106 requires an agency undertaking a project expected to adversely affect a public or private site listed on the National Register of Historic Places to “take into account the effect of the undertaking on any historic property.” 54 U.S.C.A. § 306108. Congress created the Advisory Council on Historic Preservation (“Advisory Council”) to aid in the implementation of this task and to “recommend measures to coordinate activities of Federal, State, and local agencies ■ and private institutions and individuals relating to historic preservation[.]” Id. § 304102(a)(1). The Advisory Council has promulgated extensive regulations governing Section 106 consultation. See 36 C.F.R. §§ 800 et seq. These regulations require the undertaking agency to consult with other parties regarding whether the project poses any identifiable adverse effects, id. § 800.5, and to “seek ways to avoid, minimize or mitigate the adverse effects,” id. § 800.6(b)(1)®. A second requirement is that projects affecting government-owned sites and National Historic Landmarks, such as the Presidio, trigger the additional statutory requirements of Section 110, which was added to the statute in 1980. Pub.L. No. 96-515, 94 Stat. 2987 (1980) (codified as amended at 54 U.S.C.A. § 306101 et seq.). Section 110 sought to “clariffy] and co-dif[y] the minimum responsibilities expected of federal agencies in carrying out the purposes of the [NHPA][.]” H.R.Rep. No. 96-1457, at 36 (1980). For instance, agencies must seek to use historic properties available to them before embarking on construction or acquisition, 54 U.S.C.A. § 306101(a)(2), and must develop a preservation program for federally-owned properties, id. § 306102. National Historic Landmarks are subject to the specific requirements of Section 110(f), which reads, in relevant part: “Prior to the approval of any Federal undertaking that may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to the landmark.” Id. § 306107. In discharging its obligations under the NHPA, the Trust engaged in extensive Section 106 consultation -with multiple parties, including state historical preservation-officers, the Advisory Council, and the public. Ultimately, the Trust adopted recommendations made by the Park Service and interested entities to address and mitigate any adverse effects of the lodge. The Advisory Council and other consulting parties signed a memorandum of agreement confirming compliance with the required planning processes. See 36 C.F.R. § 800.6(c). In light of the extensive compliance efforts under Section 106, the Associations, not surprisingly, do not challenge that aspect of the Trust’s planning. However, they argue that the Trust failed to comply with the additional requirements of Section 110(f). According to the Associations, the Section 110(f) language relating to a) “min-imiz[ing] harm to the landmark” and b) “to the maximum extent possible,” imposes a heightened substantive standard against which the Trust’s final .decision must be judged. We disagree. Our court has consistently held that “the NHPA, like NEPA, is a procedural statute requiring government agencies to ‘stop, look, and listen’ before proceeding” when their action will affect national historical assets. Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.Bd 592, 607, 610 (9th Cir.2010) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999)); see also Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989) (“Our review of the statutory text [of the NHPA] persuades us that Congress intended these provisions to have a limited reach; they are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.”). Although these cases do not reference Section 110(f) specifically, they do post-date adoption of the section. Section 110(f) cannot be read in a vacuum. It builds on the general consultation process set out in Section 106, which the Associations acknowledge is a procedural “stop, look, and listen” requirement, but sets out a heightened procedural standard for National Historic Landmarks, calling for “planning and actions as may be necessary to minimize harm to the landmark.” 54 U.S.C.A. § 306107. The obligation referred to is the requirement to “undertake such planning and actions,” and to do so to the “maximum extent possible.” Id. Congress often requires agencies to consider a variety of alternatives on the theory that such consideration makes it more likely substantive results will follow. See Joseph L. Sax, The (Unhappy) Truth About NEPA 26 Okla. L.Rev. 239, 240 (1973) (“NEPA’s obvious, if unstated, assumption was that by requiring the agencies to explore, consider, and publicly describe the adverse environmental effects of their programs, those programs would undergo revision in favor of less environmentally damaging activities.”). Thus, Congress may mix substantive language with purely procedural constraints. Such is the case here: the directive “minimizing harm to the landmark” to the “maximum extent possible” reflects what Congress apparently hoped would result from heightened analysis. The only other circuit to confront the issue is in accord that Section 110(f) is not a substantive mandate. In addressing Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), the First Circuit held that “Section 4(f), unlike sections 106 and 110(f) [of the NHPA], imposes a substantive mandate.” Neighborhood Ass’n of the Back Bay, Inc. v. Fed. Transit. Admin., 463 F.3d 50, 64 (1st Cir. 2006). The legislative history confirms that Congress intended to impose only a “higher standard for agency planning in relationship to landmarks before the agency brings the matter to the council.” H.R.Rep. No. 96-1457, at 38 (1980) (emphasis added). Indeed, the legislative committee noted that, “[although [it] deleted a mandatory requirement that an agency first determine that ‘no prudent and feasible alternative to such undertaking exists,’ [it] [did] intend for agencies to consider prudent and feasible alternatives.” Id. (emphasis added). As with NEPA, it would be difficult to interpret this history as suggesting anything other than an intent to require agencies to canvass their options with a keen eye. We are not persuaded by the argument of amicus curiae National Trust for Historic Preservation that Congress clearly intended to model Section 110(f) on another statute that the courts have interpreted as substantive — Section 4(f) of the Department of Transportation Act. 49 U.S.C. § 303(c). Notably, Section 4(f), while including nearly identical language about minimizing harm, also includes a very important qualifier not present in the NHPA, namely that historic sites may be approved “only if ... there is no prudent and feasible alternative to using that land[.]” 49 U.S.C. § 303(c) (emphasis added). The First Circuit recognized this critical difference in declaring Section 4(f) to be a substantive mandate, in contrast to Section 110(f). Neighborhood Ass’n, 463 F.3d at 64. If anything, Congress’s decision to strip the mandatory language about exhausting prudent and feasible alternatives from the bill that eventually became Section 110(f), see H.R. Rep. 96-1457, at 38, is evidence of Congress’s intent to distinguish Section 110(f) from Section 4(f) of the transportation legislation. Schwenk, 204 F.3d at 1201 n. 12. Although court decisions interpreting other, similar statutes can be persuasive, our best guide to what this statute means is the text. The legislative history of Section 110(f) is icing on the cake. See City & Cnty. of S.F. v. U.S. Dep’t of Transp., 796 F.3d 993, 998 (9th Cir.2015) (noting that the first source to examine is the “plain words of the statute” and the last is “similar provisions within the statute as a whole and the language of related or similar statutes” (citations omitted)); Negusie v. Holder, 555 U.S. 511, 519-20, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (rejecting an analogy to a holding in a case interpreting another, similar statute where the language and design of the statute in the case at hand were distinguishable). In holding that Section 110(f) does not impose a substantive obligation, we do not mean that Congress failed to heighten the procedural hurdles an agency must satisfy with respect to projects affecting National Historic Landmarks. The Trust cannot rest on the fact that, by all indications, it complied with the letter of Section 106. Something more was required under Section 110(f). The best indication of what else was required can be found in the legislative history, which says that the agency should at least “consider prudent and feasible alternatives” to avoid adverse effects. H.R.Rep. No. 96-1457, at 38; see also 63 Fed.Reg. 20,495, 20,503 (Apr. 24, 1998). This obligation stands on top of the more general duty in the Section 106 consultation process to “seek ways to avoid, minimize or mitigate ... adverse effects.” 36 C.F.R. § 800.6(b). In short, the Trust was required to thoroughly consider— rather than simply identify and catalog— prudent and feasible alternatives to its proposed lodge design and in its planning process. We are satisfied that the Trust met this heightened standard within the planning process. The original lodge proposal changed dramatically over time, from a behemoth building to a smaller, historically appropriate collection of buildings. In its 2009 response to the Trust’s plans, the Park Service recommended that the Trust “[r]educe the footprint, scale, massing, and height of the proposed lodge; break up the mass into separate buildings ... or remove the lodge from the Main Post.” In response, the Trust broke the lodge into twelve separate buildings with spaces of ten to, twenty feet between them to preserve visual continuity between the Old and Main Parade Grounds, reduced the total square footage from its earlier proposals, and adopted at least a partially historically integrated design concept. The Trust also gave consideration to possible lodging in the existing Montgomery Street Barracks buildings, but found that the project was not feasible at the time. As late as 2010, in the final stages of its deliberation, the Trust gave extensive consideration to at least three lodging alternatives in its Final Supplemental Environmental Impact Statement, none of which included any new lodge construction. In the Trust’s judgment, arrived at through extensive public engagement, these no-lodge alternatives were insufficient for the purposes of the Main Post Update. Altogether, the Trust’s thorough consideration of lodging options in available existing properties was sufficient to satisfy its obligation to “use, to the maximum extent feasible, historic property available to the agency[.]” 54 U.S.C.A. § 306101(a)(2); see also 63 Fed.Reg. at 20,500 (“[An agency] has an affirmative responsibility to seek and use historic properties to the maximum extent feasible in carrying out its activities.”). Nothing in the record suggests that the Trust “relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Cascadla Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir.2015) (quoting Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)). The Park Service and the Trust disagreed about whether the goals of the Update could be accomplished without a new lodge. The Park Service concluded that a “new lodge at the Main Post is not the only means to ‘welcome visitors and animate the Main Parade’ ” and that “there are other ways to achieve this goal, such as through rehabilitation of existing buildings at the Main Post, the establishment of a Visitor Center, and programs.” Likewise, the Presidio Historical Association stated that its problems with the Update stemmed not from a lack of “hard work and creativity,” but from problems “at the level of the concepts themselves.” But under the terms of Section 110(f), the Trust was not obligated to agree with the Park Service’s or the Presidio Historical Association’s views — it had to give them full and reasoned consideration, which it did. Indeed, the Trust “incorporate^ the majority of the recommendations outlined in the [Park Service’s] report,” and offered reasoned explanations where it deviated from the Park Service’s preferred result. The Trust’s procedural undertakings surely meet the heightened standard of care imposed by Section 110(f) to undertake “to the maximum extent possible ... such planning and actions as may be necessary to minimize harm to the landmark.” 54 U.S.C.A. § 306107. Conclusion Because the Trust complied with the Presidio Trust Act and the NHPA, we affirm the district court’s grant of summary- judgment to the Trust with respect to the proposed 70,000 square feet of new lodge construction on the Main Post of the Presidio. We do not consider the Trust’s proposed replacement construction other than the lodge. AFFIRMED. . Unless otherwise noted, all citations to 54 U.S.C.A are drawn from West’s annotated 2015 edition of the United States Code. . The Park Service retained the remaining twenty percent of the park, denominated Area A, which runs along the coastline. . The two adjacent planning districts — the Crissy Field district, number 2, and the Letterman district, number 3 — were designated as "Mixed-Use/Visitor & Cultural Focus” and “Mixed-Use/Office & Residential,” respectively- . This number includes 59,417 square feet of new demolition plans; 32,259 square feet of new demolition (Buildings 204, 231, and 230) attributable to a related project renovating Doyle Drive; and 2,263 square feet of already completed demolition. . The key issue on appeal is posed as follows: "Does the Presidio Trust's 2010 management plan violate Section 104(c)(3) of the Presidio Trust Act ... by authorizing approximately 70,000 square feet of new construction on existing open space in the Main Post?” The second issue under the NHPA is likewise framed around the legality of the “plan to construct a new commercial hotel on the Main Post.” . The Trust argues that in all likelihood it would be prevented from undertaking such construction by other applicable statutes, such as NEPA, the NHPA, and the Golden Gate Act. Yet we are required to construe the Trust Act on its own terms, not in reference to or as part of a constellation of other independent statutory obligations. . Our approach to Skidmore deference vis-a-vis an agency’s litigating position has varied depending on the factual circumstances. Compare Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1095 (9th Cir.2008) (affording no deference to the government’s litigating position) with Andersen v. DHL Ret. Pension Plan, 766 F.3d 1205, 1212 (9th Cir.2014) (affording Skidmore deference to the government’s litigating position); Price v. Stevedoring Serv. of Am., Inc., 697 F.3d 820, 829-32 (9th Cir. 2012) (en banc) (affording Skidmore deference to the government’s litigating position). . The Trust left open the question of whether it will follow through in demolishing Buildings 40 and 41, which are located in the Main Post planning district and were counted in its 94,000 square feet demolition calculation. Even without these two buildings, which total 16,514 square feet, the rest of the planned demolition in the Main Post planning district would still exceed the 70,000 square feet of new lodge construction. . Unlike the more sweeping banking theory, this interpretation also imposes some foreseeable limits on the Trust's new construction authority that are more in keeping with the purposes of the Presidio Trust Act. The Trust could not, for instance, undertake isolated new construction in a remote corner of the park, because it would need to establish physical proximity to an existing area of development in which the purported "replacement” was located. This interpretation further reinforces the purposes of the Presidio Trust Act by allowing the Trust to draw new construction authority from physically proximate parcels that are already likely similar in character. It therefore prevents the Trust from fundamentally re-purposing certain areas of the part in one fell swoop, and generally preserves the architectural, historic and natural diversity of the Presidio as a whole. . Section 110(f) goes on to say that the responsible agency "shall afford the [Advisory] Council a reasonable opportunity to comment with regard to the undertaking.” 54 U.S.C.A. § 306107. The Associations do not assert that this portion of Section 110(f) is substantive, and the Advisory Council’s affirmation in the memorandum of agreement that the Trust had afforded it an "opportunity to comment on the Undertaking” is in any event sufficient to satisfy this obligation. . The Fifth Circuit has also held generally that NHPA is a procedural statute. See Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d 215, 225 (5th Cir.2006). Although it went on to note that Section 110(f) "imposes an affirmative duty on federal agencies to minimize harm to National Historic Landmarks where it finds that a project will adversely affect such landmarks,” the court did not reach that specific question because there was no adverse effect. Id. at 243-44. . These included: 1) “Lodging in Pershing Hall (Building 42) and dormitory rooms for visitors in Buildings 40 and 41”; 2) "Lodging in Pershing Hall and B & Bs in upper Fun-ston Avenue Officers' Quarters (Buildings 11-16)”; and 3) "Residences in Pershing Hall and dormitory rooms for visitors in Buildings 40 and 41.”

Coliseum Square Ass'n v. Jackson

DENNIS, Circuit Judge: In this case, we are called upon to decide whether the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370Í', and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470f-470x-6, require the United States Department of Housing and Urban Development (HUD) to cease federal funding for the St. Thomas Housing Development revitalization project in the City of New Orleans until the agency completes further evaluation of the project’s environmental and historic preservation impacts. Because it does not appear that HUD has acted arbitrarily, capriciously or contrary to law in its study, consideration, and findings regarding the project’s environmental impacts, we conclude that these statutes impose no further requirements on HUD at this time. I. A brief overview of the statutes and regulations creating the administrative framework, terminology and objectives helps to understand the case. After describing the bureaucratic order, we then turn to the factual and procedural background. A. 1. “NEPA establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment,’ and was intended to reduce or eliminate environmental damage and to promote ‘the understanding of the ecological systems and natural resources important to’ the United States.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). “ ‘NEPA itself does not mandate particular results’ in order to accomplish these ends.” Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Instead, NEPA imposes procedural requirements on federal agencies, requiring agencies to analyze the environmental impact of their proposals and actions. Pub. Citizen, 541 U.S. at 756-57, 124 S.Ct. 2204. NEPA’s central requirement is that federal agencies must: include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of longterm productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2); see also Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204. Federal agencies receive guidance in their preparation of this detailed “Environmental Impact Statement”, or “EIS”, from the Council of Environmental Quality (“CEQ”). Established by NEPA with the authority to issue regulations interpreting that statute, the CEQ has promulgated regulations determining what actions are subject to that statutory requirement. See 40 C.F.R. § 1500.3; see also Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204. According to these regulations, the agency may instead prepare a more limited document, called an Environmental Assessment (“EA”), if the proposed action is categorically excluded from the requirement to produce an EIS or does not clearly require the production of an EIS. Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(a),(b)). An EA, as compared to an EIS, should be a “concise public document ... that serves to ... [bjriefly provide sufficient evidence and analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a). “If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a ‘finding of no significant impact’ (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment.” Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). 2. “The National Historic Preservation Act (‘NHPA’), 16 U.S.C. §§ 47(M70x-6, ‘requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation ... to administer the Act.’ ” Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (citations omitted). Section 106 of the NHPA requires that: [t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking ... shall, prior to the approval of the expenditure of any Federal funds ..., take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. Like NEPA, the NHPA is procedural in nature. See, e.g., Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278 (3d Cir.1983). It does not itself require a particular outcome, but rather ensures that the relevant federal agency will, before approving funds or granting a license to the undertaking at issue, consider the potential impact of that undertaking on surrounding historic places. As such, courts have sometimes referred to Section 106 as a “stop, look, and listen” provision. Business and Residents Alliance of East Harlem v. HUD, 430 F.3d 584, 591 (2d Cir.2005) (citing Ill. Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988); Pres. Coal., Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982)). Much like the EA/EIS process under NEPA, section 106 upholds the NHPA’s objectives “neither by forbidding the destruction of historic sites nor by commanding them preservation, but instead by ordering the government to take into account the effect any federal undertaking might have on them.” United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th Cir.1981). When a project will adversely affect a National Historic Landmark, however, section llOf of the NHPA requires an agency to “undertake such planning and actions as may be necessary to minimize harm to such landmark” to the maximum extent possible and to allow the Advisory Council on Historic Preservation (“ACHP”) time to comment. 16 U.S.C. § 470h-2(f). “Federal regulations also have been promulgated to guide the historic preservation review process, including consultation with the [State Historic Preservation Officer, or ‘SHPO’] and an opportunity to comment by the [ACHP].” Vieux Carre Property Owners Residents and Associates, Inc. v. Pierce, 719 F.2d 1272, 1281 (5th Cir.1983) (citing to 36 C.F.R. §§ 800-100.13). B. 1. We now turn to the factual and procedural background of this case. The plaintiffs, Coliseum Square Ass’n, Inc., Smart Growth For Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association, and The Urban Conservancy, non-profit organizations representing citizens, residents and merchants in the City of New Orleans (“plaintiffs”), brought this action against HUD for judicial review, seeking declaratory judgment that HUD failed to comply with NEPA and NHPA in funding the St. Thomas Housing Development revitalization project and an injunction compelling HUD to withhold federal funds from the project until it fully complies with those statutes. The Housing Authority of New Orleans (“HANO”) was originally a named defendant. Although the district court granted plaintiffs’ motion to dismiss HANO from the case as a defendant, HANO later reentered the case as an intervenor. The St. Thomas Housing Development revitalization project calls for substantial demolition of the pre-existing St. Thomas Housing Development (StThomas) in New Orleans and, in its place, the construction of new low-income housing, new market rate housing, a senior care facility, and a shopping center. Prior to the beginning of the project, St. Thomas was a residential public housing complex within the Lower Garden District of New Orleans. Both the Garden District itself and many of the buildings in St. Thomas are listed on the National Register for Historic Places. St. Thomas, built between 1937 and 1949, consisted of 121 buildings (a total of 1510 residential units) covering 64 acres. By 1994, St. Thomas had become excessively run-down and crime-ridden. The Housing Authority of New Orleans initiated renewal efforts, which resulted in a plan to renovate the area covered by St. Thomas. In 1996, HUD granted the Housing Authority of New Orleans $25 million through the HOPE IV program for revitalizing St. Thomas; the project then did not contemplate retail stores but was limited to housing units. Because of its grant of federal funds, HUD became responsible for ensuring that its financing of the revitalization project complies with the requirements of NEPA and NHPA. In 1998, HANO enlisted a private developer, Historic Restorations, Inc. (“Historic Restorations”) to assist in improving the plan. An amended redevelopment plan, submitted to HUD in 2000, included construction of new low-income housing, new market rate housing, a senior care facility, and a 275,000 square foot shopping center, the last of which was to be built on nearby, formerly industrial land. Historic Restorations hired Citywide Testing (“Citywide”) to prepare environmental studies and documents for the project. By November 4, 1999, Citywide had completed studies and proposed findings for HUD in support of a proposed FONSI. By September 2000, HUD completed the initial Section 106 review required by the National Historic Preservation Act (“NHPA”), which examined the project’s impact on historical properties. Subsequently, the Housing Authority of New Orleans, the State Historical Preservation Officer, and the Advisory Council on Historic Preservation (a federal agency) signed a Memorandum of Agreement (“MOA”) for the project. Demolition began in October 2000. HUD also completed its NEPA review in May of 2001, after reviewing and adopting the proposed EA developed by Citywide and approved by HANO: after adopting the proposed EA/FONSI, HANO forwarded it to HUD. On May 21, 2001, the acting HUD officer noted, by hand and in the space provided, that HUD had reviewed and concurred in the proposed EA/FONSI. In July 2001, after both the MOA and environmental assessment were completed, Historic Restorations recommended that the retail component qf the project be scaled back from 275,000 square feet to 199,000 square feet and obtained a commitment from Wal-Mart to become the retailer. On September 4, 2001, after HRI publicly announced that Wal-Mart would be filling the retail space, the State Historic Preservation Officer asked to reopen the NHPA review. On September 6, 2001, all parties to the MOA agreed to reopen the NHPA process. HUD then undertook additional study, including a particular focus on the potential impact Wal-Mart might have on historic properties in the area. The additional investigation included consultation with all of the MOA’s signatories as well as with the City of New Orleans and its planning commission, the State of Louisiana, the general public (including St. Thomas residents), and the project’s opponents (including neighborhood groups and preservation agencies). As a result of that study, HUD expanded its assessment of the project’s Area of Potential Effects to cover parts of Uptown, Mid-City, and Fau-bourg Marigny as well as all of the Garden District, the Lower Garden District, Irish Channel, the Central Business District, and the Vieux Carre (better known as the French Quarter). In July 2002, two years after demolition had begun and the project’s residents had been relocated, plaintiffs filed suit. In response to the concerns raised in that complaint, HUD reopened its NEPA process to conduct further study. While the process was open, progress on the project was restricted to infrastructure work on the residential sections and work needed to address environmental conditions. After the supplemental investigation was complete, the proposed EA and FONSI went through a public comment period. On February 20, 2003, an amended MOA was signed and a new environmental assessment and FONSI were issued. 2. At oral argument we requested additional briefs from the parties regarding whether the case had been mooted because the project was either substantially complete or effectively terminated by the adverse effects of Hurricane Katrina. After reviewing those briefs, we are satisfied that this case is not moot and that we have subject matter jurisdiction. It is true that many significant parts of the project have been completed. The Wal-Mart shopping center has been finished and open for business since late 2004. As of late February 2005, most of the former St. Thomas housing project had been demolished. Only five buildings were left standing for future rehabilitation. The first phase of housing units had been completed; 98% of them had been rented and occupied. Infrastructure work for the entire housing portion of the site had been completed, and work had begun on ten subsidized units of offsite rental housing. The next phase, however, consisting of the construction of 73 mixed-income housing units, was expected to begin in March 2006. Work had not yet begun on rehabilitating the remaining five buildings from the St. Thomas housing project. The following construction was planned but not yet begun: 200 mixed-income rental units, 64 affordable rental housing units for the elderly, a 250-unit market rate rental retirement community, and 200 market rate condominium units; additional small-scale commercial ventures, which may be included in some of the new residential construction; and construction or rehabilitation of affordable rental housing (90 units) and affordable individually owned houses (50 units). Hurricane Katrina generally spared the existing housing units, and they are currently habitable. HANO indicates that it plans to finish the project, but it has not determined how Hurricane Katrina’s impact might change the its prior plans. The plaintiffs in the present case challenge far more than the building demolition called for by the project. Despite the completion of the Wal-Mart complex and other edifices, significant projected construction and renovation remain unfinished. Plaintiffs’ requested relief — declaratory judgments invalidating the existing MOA as well as the environmental assessment and FONSI, plus injunctions halting construction and requiring preparation of a proper and legal MOA and environmental assessment — could, if granted, eliminate or alleviate a multitude of their expressed environmental and historical preservation concerns. • Accordingly, we conclude that the case is not moot and proceed to consider the merits of the plaintiffs’ claims. Cf. Benavides v. Housing Authority of City of San Antonio, Tex., 238 F.3d 667, 670 (5th Cir.2001) (holding a demolition project to be moot where demolition was only 55% complete, but had progressed to the point where units were no longer habitable); Bayou Liberty Ass’n v. U.S. Army Corps, 217 F.3d 393 (5th Cir.2000) (holding the case to be moot where construction of the project had been entirely completed); Vieux Carre Property Owners, Residents, & Assoc., Inc. v. Brown, 948 F.2d 1436, 1446 (5th Cir.1991) (“as long as ... [the agency] has the ability to require changes that could conceivably mitigate any adverse impact the project might have ... [the project] remains a federal undertaking and NHPA review is required.”). None of the parties to this suit contend that Hurricane Katrina’s effects have rendered the project moot. II. An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Here, HUD based its FONSI upon the analysis contained within its EA; respondents argue that the issuance of the FON-SI was arbitrary and capricious because the EA’s analysis was flawed for numerous reasons that we address individually later in this opinion. Under NEPA, an agency is required to provide an EIS only if it will be undertaking a “major Federal actio[n],” which “significantly affect[s] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Under applicable CEQ regulations, a “[m]ajor Federal action” is defined to “includ[e] actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. “Effects” are defined to “include: • (a) [d]ireet effects, which are caused by the action and occur at the same time and place,” and “(b) [i]ndirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8. It is undisputed that HUD’s funding of the project is a major federal action. Thus, we must determine whether HUD acted reasonably and in accordance with law in deciding, based on its EA and FONSI, that its action had no direct or indirect effects that significantly affected the quality of the human environment. See Pub. Citizen, 541 U.S. at 763-64, 124 S.Ct. 2204. Plaintiffs first argue that HUD’s action in funding the project was not in accord with law in two respects: they assert that federal regulations automatically required HUD to produce an EIS based on the increased level of noise and the sheer number of dwellings affected by the project. In their remaining arguments, plaintiffs contend that HUD acted arbitrarily and capriciously or unreasonably because the evidence available to HUD mandated preparation of an EIS. A. Plaintiffs contend that CEQ regulations required HUD to prepare an EIS under the facts established by its own EA, and that HUD’s major federal action of funding the project before preparing an EIS was not in accordance with law. Contrary to plaintiffs’ argument, however, HUD’s interpretation and application of the regulations as permitting it to proceed without an EIS in this case were not arbitrary, capricious, or clearly contrary to law. When the interpretation and application of regulations by an agency and its opponents are not arbitrary and capricious nor clearly contrary to law we are required by NEPA and the Supreme Court’s decisions to accept the agency’s decision as being in accordance with law. See, e.g., N. Ind. Pub. Serv. Co. v. Porter County Chapter of Izaak Walton Leagtie of America, Inc., 423 U.S. 12, 15, 96 S.Ct. 172, 46 L.Ed.2d 156 (1975). HUD regulation 24 C.F.R. §§ 51.104(b)(2) requires the agency to prepare an EIS prior to approving “projects with unacceptable noise exposure[,]” that is, where sound levels reach 75 decibels or greater, based on a 24-hour weighted average of sound levels. See 24 C.F.R. §§ 51.104(b)(2). In its FONSI, HUD stated that the project is in compliance with noise abatement requirements, noting that the sound measurements fall within “acceptable” levels. In doing so, HUD relied on a September 2002 noise survey included in its EA which indicates that the noise exposure (the average day-night sound level at the site) reaches 60 decibels, within the “acceptable” range. Review of that study indicates that it used measurements taken over a 24-hour period within a carefully described area, and included an assessment of the possible effects of future increased traffic and the construction of retail buildings. Plaintiffs contend that in conducting the study HUD did not comply with its own September 1991 Noise Guidebook. The fact that HUD’s submitted study did not completely comply with the requirements of its Noise Guidebook is not, of itself, sufficient to show that its reliance on the study was not in accordance with law or arbitrary and capricious. In Lyng v. Payne, 476 U.S. 926, 937, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986), the Supreme Court held that “not all agency publications are of binding force” — in other words, the guidelines in question must be “the kind of agency law the violation of which is remediable at all.” Generally, to be legally binding on an agency, its own publications must have been “promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.” See, e.g., Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 67 L.Ed.2d 685, (holding Social Security Administration Claims Manual is not binding agency rule); Fano v. O’Neill, 806 F.2d 1262, 1264 (5th Cir.1987) (holding INS Operations Instructions not binding because “they are not an exercise of delegated legislative power and do not purport to be anything other than internal house-keeping measures.”); W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900-01 (9th Cir.1996) (holding that the court reviews noncompliance with an agency “pronouncement” only if it “actually has the force and effect of law.”); Gatter v. Nimmo, 672 F.2d 343, 347 (3d Cir.1982) (holding Veteran’s Administration publications not binding because they were not promulgated under the APA’s rulemaking requirements); Fed. Land Bank in Receivership v. Fed. Intermediate Credit Bank, 727 F.Supp. 1055, 1058 (S.D.Miss.1989) (holding that directive not promulgated according to APA procedure lacks force and effect of law); see also Davis Mountains, 116 Fed.Appx. 3, 9-10 (5th Cir.2004) (summarizing above case law and holding as result that the Air Force’s Handbook is not binding as it was not promulgated according to the APA’s procedural requirements). Where agency publications have not been so promulgated, the agency’s decision to analyze impacts by other methods is not an automatic violation of the law. As such, it is subject to review under the normal “arbitrary and capricious standard” used to review agency action under the APA. Davis Mountains, 116 Fed.Appx. at 9-10 (“Thus the Air Force retained discretion to analyze impacts on livestock by methods other than those contained in the Handbook, and we must address the adequacy of the Air Force’s chosen method according to the arbitrary and capricious standard”); see also Communities Against Runway Expansion, Inc. (CARE) v. F.A.A., 355 F.3d 678, 688 (D.C.Cir.2004) (holding that even though an executive order mandating agency consideration of environmental justice concerns created no private right of action for an agency’s failure to comply with that mandate, the court would review the agency’s action as an exercise of discretion under the APA and NEPA). Here, plaintiffs neither argue nor offer evidence that HUD’s guidelines were promulgated under the Administrative Procedure Act’s procedural requirements. Plaintiffs’s first argument therefore fails: HUD has not acted contrary to law by using methodology different from that contained in the Guidebook. Plaintiffs also argue that HUD “obviously skewed [the study] to measure disproportionally during the quietest times of the day and bring the overall average decibel level down.” Similarly, they appear to assert that HUD was arbitrary and capricious in not relying on the results of an extra-record noise survey completed in April 2001 by Citywide. They claim that HUD’s chosen methodology improperly and purposely skews the survey results by including a measurement at noon, but no measurements between 7:30 A.M. and 12:06 P.M. nor between 11:46 A.M. and 2 P.M. They offer conclusory allegations that HUD’s sampling survey produces distorted results and was conducted in that manner for the express purpose of avoiding the conclusion suggested by the extra-record Citywide survey. At best, this argument reflects only a disagreement over whether it was arbitrary and capricious for HUD to base its decision on the study documented in the record rather than extra-record evidence. There is simply no evidence of bad or improper motive by HUD in this instance. Nor do plaintiffs provide further evidence showing either that reliance on such a methodology is otherwise arbitrary and capricious or that HUD’s methodology was actually flawed, rather than simply different from plaintiffs preferred method. In fact, the Citywide study on which plaintiffs would urge reliance does not comply with HUD regulations, which the agency must obey, let alone the Noise Guidebook’s nonbinding requirements. The Citywide survey hardly amounts to persuasive evidence of noise levels that require an EIS under the HUD regulations. We may not, therefore, say that HUD arbitrarily and capriciously relied on the study’s results in determining that the noise levels did not trigger the automatic environmental impact statement requirement. Plaintiffs next argue that HUD’s funding of the project without preparing an EISs was contrary to a CEQ regulation mandating an EIS when a project will “remove, demolish, convert, or substantially rehabilitate 2,500 or more existing housing units ... or ... result in the construction or installation of 2,500 or more housing units.” 24 C.F.R. § 50.42(b)(2). Plaintiffs argue that this regulatory provision must be read expansively and cumulatively: that is, that each demolition of an old housing unit and each construction of a new housing unit should be counted cumulatively toward the 2,500 limit or trigger. Thus plaintiffs contend that, if a project proposes to destroy 1,250 old units and construct new 1,250 units in their place, an EIS is required because this would involve the destruction or construction of 2,500 units. HUD reads the regulation as disjunctively establishing two categories: demolition, conversion or rehabilitation of the old vis-a-vis construction or installation of the new; as applied to this case, HUD reasons that, since only 1,510 units are to be demolished or rehabilitated and only 1,282 are to be newly constructed or installed, the project does not reach the 2,500 unit trigger in respect to either category. Plaintiffs effectively concede this point. They do not argue or attempt to show that HUD’s interpretation is arbitrary and capricious. Instead, they contend, without explanation, that we should not defer to the agency’s reasonable interpretation as precedent would require, but that we ought to use our own judgment to declare that their interpretation of the regulation will be followed because it is simply the best. Even if we were to agree, however, we do not have the plenary authority to interpret the regulation in this kind of case as we personally deem best. “In situations in which ‘the meaning of [regulatory] language is not free from doubt,’ the reviewing court should give effect to the agency’s interpretation so long as it is ‘reasonable,’ that is, so long as the interpretation ‘sensibly conforms to the purpose and wording of the regulations.’” Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (quoting Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) and N. Ind. Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15, 96 S.Ct. 172, 46 L.Ed.2d 156 (1975)). Because the plaintiffs effectively concede that HUD’s interpretation of the regulation is not unreasonable, we conclude that the regulation does not require an EIS in this case and that HUD did not fail to act in accordance with law in this respect. B. The theme of plaintiffs’ remaining NEPA arguments is that HUD acted arbitrarily, capriciously, or in abuse of its discretion by failing to prepare an EIS although it knew or should have known that the reasonably foreseeable effects of the project would significantly affect the quality of the human environment in many different ways. We address each argument under a separate heading. Before we begin, we pause to reiterate that in attacking a decision not to prepare an EIS, “more than an allegation of deficiencies is necessary; the plaintiffs must prove the essential allegations of their complaint by a preponderance of the evidence.” La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1055 (5th Cir.1985) (Rubin, J., dissenting). “It is the burden of the plaintiffs to adduce evidence, not merely to make allegations or to rest on assumptions, establishing that the Corps was [arbitrary and capricious] in reaching the conclusion it did[J” Id. 1. Environmental Justice Executive Order 12898 instructs agencies to consider the environmental justice impacts of their actions. Exec. Order No. 12898, 59 Fed.Reg. 7629 § 6-609 (1994). The Order does not, however, create a private right of action. Thus, we review the agency’s consideration of environmental justice issues under the APA’s deferential “arbitrary and capricious” standard. See, e.g., Communities Against Runway Expansion, Inc. (CARE) v. F.A.A., 355 F.3d 678, 688 (D.C.Cir.2004). Leaving aside legalisms, we see in this record no administrative insensitivity to racial or economic inequality. Instead, we see a project that HUD perceived reasonably as a community effort, endorsed initially by some who now oppose it, to renovate a deteriorating public housing project for the ultimate and enduring benefit of the community. HUD’s environmental justice study, completed in September 2002, looked at the area in which the project is being built and determined that those who return to live in the “new” St. Thomas will benefit from safer, more sanitary living conditions and an improved economic environment. It considers the problems of displacement, including the fact that residents still living in the project would be eligible for relocation under the Uniform Relocation Act. Furthermore, HUD’s study reflected that St. Thomas residents had numerous complaints about the housing project and were at risk from pest infestations, asbestos, drug paraphernalia, lead exposure, and raw sewage. It notes, based on the comments received from then-residents, that many had complaints about the St. Thomas development and while some would stay there if conditions and amenities were improved, others would prefer to become home owners outside of the project. Over 200 lawsuits had been filed over lead exposure in the housing units, and that 99% of residents belonged to a minority group. The record also indicates that HUD received and responded to comments made at a public meeting by Mr. Brod Bagert, whose master’s thesis had been highly critical of the HOPE IV program, and of the broader “market revitalization” approach to improving urban areas. His comments and his study use the St. Thomas project as an example to attack that particular theory of urban planning. HUD responded to Mr. Bagert’s comments, indicating that while it understood the basis of his criticism of the HOPE IV approach to urban revitalization, the HOPE IV approach is clearly supported by Congressional mandate. Plaintiffs offer Mr. Bagert’s comments, and evidence of problems with residential relocations under the Uniform Relocation Act, for the proposition that HUD’s evaluation of the project’s impacts is entirely contradicted by the evidence. The record in front of us is hardly so clear cut, and certainly reveals that HUD gave attention to the issues plaintiffs raise, for all they disagree with the conclusions. Beyond their allegations and Mr. Bagert’s comments, which HUD clearly took under consideration, plaintiffs offer no evidence suggesting that the environmental justice study was arbitrary or capricious in its choice of methodology. We cannot, therefore, say that they have met their burden of showing that HUD’s consideration of environmental justice concerns was arbitrary and capricious. 2. Zoning The New Orleans City Council approved zoning changes for the project in November 2001 (for the retail portion) and in April 2002 (for the residential portion). In addition, implementing the St. Thomas revitalization project required the creation of a Tax Increment Financing District, which helps fund the project, and which was highly controversial with regard to its possible negative economic effect on local businesses near the project. In preparing the environmental assessment, HUD indicated only that the project was in compliance with local zoning ordinances by the time of the assessment, without indicating that such compliance actually required changing the local zoning laws. In addition, when describing the two twelve-story residential buildings and the 200,000 square-foot Super Wal-Mart retail center, HUD indicated on the environmental assessment form that the project was compatible with its surroundings in terms of land use, building type, height, bulk and mass, and density. Plaintiffs challenge HUD’s conclusion that local zoning changes implemented for the project do not create a significant environmental impact. First, plaintiffs assert that “[l]ocal zoning changes significantly impact the human environment[;]” but offer little support for their arguments. They offer Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir.1985), for the proposition that an EIS is automatically required where the project radically alters existing land use, but we find that case inapposite. There, the court held that the Federal Highway Administration and Army Corps of Engineers could not support its FONSI by relying on land use regulations to safeguard the land because the project would radically alter land use. Id. Here, although HUD does cite to its compliance with local zoning ordinances as support for its FONSI, we have no change so radical as to be akin to replacing an undeveloped wooded island with a marine terminal and industrial complex, as was proposed in Marsh. Thus Marsh offers us no such legal rule, nor do plaintiffs offer us support for drawing an analogy on the facts. The project in the case at bar, particularly the high-rise structures and the Wal-Mart center, is located on the Tchoupitoulas industrial corridor, and the remaining residential portion borders the nearby residential areas. Without further evidence supporting their allegations, we may not hold that HUD was arbitrary and capricious in determining that the zoning change of itself implied that the project would have a significant impact on the environment. Second, plaintiffs assert that the implementation of the Tax Increment Financing District was a highly controversial change, such that it requires an environmental impact statement under the regulations set out by the Council on Environmental Quality. See 40 C.F.R. § 1508.27(b) (identifying a project’s “highly controversial” nature as a factor to consider in evaluating the intensity of impacts). We have held that these factors listed in the regulation “do not appear to be categorical rules that determine by themselves whether an impact is significant.” Spiller, 352 F.3d at 243. “As such, all that would have to be shown is that all the factors were in some way addressed and evaluated; whether this was done in factor-by-factor fashion is irrelevant.” Id. Furthermore, “controversial” is usually taken to mean more than some public opposition to a particular use — rather it requires “a substantial dispute ... as to the size, nature, or effect of the major federal action.” See Center for Biological Diversity v. U.S. Fish & Wildlife Service, 202 F.Supp.2d 594, 657-58 (W.D.Tex.2002) (summarizing existing case law with regard to what constitutes a “substantial dispute” such that an environmental impact statement is required). Reviewing the record, the portions to which plaintiffs cite clearly reflect public opposition from local businesses to using the retail space to house a Wal-Mart, but do not attack the broader nature or effect of the project as a whole. The record clearly reflects that HUD addressed and evaluated this factor and plaintiffs do not adduce evidence suggesting that its evaluation was insufficient, but simply assert disagreement with the conclusion. Accordingly, they have not met their burden to show that HUD acted arbitrarily or capriciously. 3. Businesses Occupying Historic Buildings CEQ regulations require agencies to discuss economic factors where interrelated with NEPA environmental considerations; such factors include the impact on “uniqueness of historic resources” and “adverse impacts on National Register properties”. See 40 C.F.R. §§ 1508.14 (requiring examination of interrelated effects), 40 C.F.R. § 1508.27 (list of NEPA intensity factors contributing to the determination of “significant impact” on “uniqueness of historic resources” and “adverse impacts on National Register properties”). As a result, HUD built into its EA an assessment of the project’s impact on businesses occupying historic buildings. In reaching its FONSI on the issue, HUD relied on a broad range of information, including opinion polls, newspaper articles, and other studies — notably, the Lambert Advisory Report. This last indicates that Wal-Mart will reduce some sales from local businesses, but also suggests that Wal-Mart may actually help the area retain some revenue which had previously left the city in favor of suburban retail. Other documents in the record are equally clear in identifying both the increase in competition posed by Wal-Mart as well as its potential economic benefits to existing retailers. HUD’s administrative record also includes an inventory of area businesses (the “Blick inventory”), which is an admittedly “quick review” and contains errors, particularly in its characterization of what goods or services varying businesses provide. Plaintiffs argue that HUD’s reliance on the Blick inventory as “sole support” for its statement will not suffice in order to support a FONSI. Although their argument might have carried weight if the Blick inventory was HUD’s sole source of information, HUD in fact considered information from a wide range of sources, which led it to conclude that although the Wal-Mart will bring increased competition to the area, adding the business to the area was also likely to result in an increase in economic opportunities for local retailers. Furthermore, plaintiffs simply misstate the record when they assert that HUD entirely ignored the Lambert report. Finally, plaintiffs proffer an alternative, extra-record inventory of local businesses. Beyond simply restating that study’s conclusions, which are more favorable to their desired outcome, plaintiffs offer no evidence that would allow us to conclude that its methodology is any more reliable or its results any more robust than the studies HUD included in the administrative record. As a result, we cannot say that plaintiffs have met their burden in showing that HUD acted arbitrarily or capriciously. 4. Toxic and Hazardous Waste HUD regulations do not permit that agency to approve projects that are not located an acceptable distance from “hazards” unless appropriate mitigation measures are taken. 24 C.F.R § 51.202(a). “Hazards” are defined to include any “any stationary container which stores, handles or processes hazardous substances of an explosive or fire prone nature.” 24 C.F.R. § 51.201. Accordingly, HUD’s EA included an investigation into whether any such hazards threatened the St. Thomas project as a part of the process. It conducted two Phase I assessments, which identified certain toxic and hazardous waste issues, including both an underground storage tank containing petroleum products and a fuel pump, both located on the Wal-Mart site. A later Phase II assessment recommended methods for remediation, and in mitigation HUD required Historic Renovation, the developer, to set up an escrow account to ensure remediation. The environmental assessment openly discusses the presence of these hazards in the comments to the section on “toxic chemicals and radioactive materials.” Those remarks clearly reflect the need for a Phase II assessment, the presence of an underground storage tank, and the remediation requirements. HUD’s actions comply with their regulations, and are not arbitrary or capricious in this respect. Plaintiffs accuse HUD of violating its duty to disclose the existence of an underground storage tank by failing to disclose it in the section of the environmental assessment meant to identify “hazardous industrial operations”. Their brief charges that HUD purposely committed deception by not listing the hazards in that section, and did so with the sole purpose of avoiding the preparation of an EIS. They offer no evidence that HUD’s required remediation is insufficient to warrant a FONSI, nor any evidence to support their claims of bad faith. Nor do they offer any legal argument that the hazards must be listed in that specific section of the form, rather than in the location HUD placed it. In fact, the record reflects that the EA clearly reveals that the hazards are present and indicates the remediation planned to reduce the effects of those hazards. As a result, plaintiffs have not made any showing that HUD engaged in purposeful concealment or arbitrarily relied on the remediation measures in reaching its FONSI. 5. Lead Contamination 24 C.F.R. § 50.3(f)(1) requires that HUD must ensure its projects are free of “hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances” that would “affect the health and safety of occupants or conflict with with the intended utilization of the property.” In doing so, HUD must pay “particular attention” to industrial sites and other areas containing hazardous waste, using “current techniques by current professionals.” 24 C.F.R. §§ 50.3(f)(2), (3). As a part of its EA process, therefore, HUD considered whether the project area had significant lead contamination. We hold that the agency was not arbitrary or capricious in determining that the environmental impact from lead in the soil was not significant. The agency hired a contractor, PSI, to carry out the Phase II environmental assessment already mentioned above; as a part of that work, PSI took various soil samples. The contractor was particularly concerned with lead in the soil coming from underground storage tanks and old dry-cleaning facilities. When it tested the samples, PSI found that the levels of lead in the soil were below the health-based limit set by the Louisiana Department of Environmental Quality. Based on those results, HUD determined that the environmental impact from lead in the soil was not significant. HUD later received public comments on its separate environmental justice study from a soil expert, in response to a statement in that study that surface lead contamination in the project was not a problem. The expert stated that his soil surveys for lead contamination in New Orleans found that the St. Thomas community was one of “the most contaminated areas in the city” and “recommended concerted effort” to address the problem. On receipt of those comments, and in light of the PSI results, HUD asked C-K Associates, the contractor that had prepared the environmental justice study, about the effect of those remarks on the EA. C-K Associates responded by saying that although the expert was well-respected in his field, his methodology did not follow the standards HUD required for evaluating lead levels. Given that the PSI tests had shown lead levels below the permissible maximum and that the outside expert’s methods did not meet agency requirements, HUD maintained its conclusion that lead contamination at the site was not significant for the purposes of the EA. Plaintiffs disagree mightily with PSI’s technique and clearly prefer the outside expert’s methodology, urging that HUD arbitrarily and capriciously relied on PSI’s unsound techniques. The mere fact of HUD’s reliance on the PSI study is not arbitrary and capricious. We have held that “[an] agency is not required to ‘do it alone’ ” in reviewing the environmental impact of projects, and may employ outside consultants in preparing an environmental assessment. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 642 (5th Cir.1983). “The intent of the controlling regulations is that ‘acceptable work [completed by parties outside the agency] not be redone[.]’ ” Id. (citing 40 C.F.R. § 1506.5(a)). Furthermore, “an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); see also, Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir.2000); Sabine River, 951 F.2d 669, 678 (5th Cir.1992). An agency may not, however, “reflexively rubber stamp” information prepared by others. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 643 (5th Cir.1983) (citing Sierra Club v. Lynn, 502 F.2d 43, 58-59 (5th Cir.1974)); Sierra Club v. Sigler, 695 F.2d 957 (5th Cir.1983). On this record, we find that plaintiffs have not shown that either HUD’s reliance on PSPs study or PSI’s methodology were arbitrary and capricious. HUD’s administrative record, however, clearly reflects that when public comment called possible flaws in PSI’s methods or results, HUD inquired into the problem and, on consideration of the evidence, chose to continue to rely on PSI for sound reasons. In support, plaintiffs can only point to the results of the outside study and the soil expert’s comments. As C-K Associates noted, however, HUD could not rely on plaintiffs’ preferred method without violating its own standards. Furthermore, the soil expert’s comments state only that the project has the highest lead contamination in New Orleans, and do not contradict PSI’s findings that the lead-levels are within of health-based standards. Beyond their allegations and the above comparisons, plaintiffs offer no concrete evidence to support their arguments. Accordingly, we conclude that HUD was neither arbitrary nor capricious in relying on PSI’s conclusions in reaching its FONSI. 6. Traffic When studying the project’s potential effects, HUD looked at the possible impacts of increased traffic. A September 2001 traffic study examined streets and major intersections in the project — locations where it thought any increase would likely cause problems. A second study, carried out in December 2002, looked at the effect traffic increases would have in areas outside of that already covered by the original study. HUD also carried out noise and vibration studies, and included traffic as a factor in its environmental site assessments, environmental justice study, and mitigation requirements. The New Orleans Department of Public Works and the Regional Planning Commission also studied traffic impacts and concluded that the effects would not be significant. On the record before us, which includes all of the above, we hold that the agency did not arbitrarily or capriciously reach its FONSI with regard to traffic. Plaintiffs attempt to whittle away at HUD’s support for its findings. They assert that HUD relies solely on the December 2002 study to reach its conclusions. The 2002 study, they allege, covers only outlying areas and therefore cannot, alone, support HUD’s determination. Their characterization of the record is simply inaccurate: as recounted above, HUD relied on far more than just that study, and in fact made certain to incorporate traffic effects into its study of other potential impacts as well. Second, plaintiffs urge that the bare fact that HUD predicts a 67% increase in traffic should suffice for any impacts of that traffic to be automatically “significant” for NEPA purposes, will have per se significant effect. They offer us no legal authority for the proposition that a predicted increase should be considered de facto significant. Moreover, while plaintiffs allege a long list negative effects on health, safety, noise, pollution, vibration, and historic properties, they offer us no evidence as to what those effects would be, why they would be significant, or how HUD has failed to investigate them. In addition, the record described above belies the assertion that these effects have gone unstudied in HUD’s EA. As a result, we may not say that HUD’s decision was arbitrary and capricious in this regard. 7. Cumulative Impacts Plaintiffs argue, in effect, that HUD should be charged with constructive knowledge of significant foreseeable cumulative effects upon human environment that were discoverable upon reasonable investigation. They beg the question, however, by assuming without demonstrating with concrete supporting evidence that the significant effects they allege were reasonably foreseeable at the time of HUD’s EA/FONSI. The plaintiffs assume that it was reasonably foreseeable to HUD that the project would cause two types of significant environmental effects: 1) future unspecified impacts caused by the influx of additional national retailers attracted by Walmart’s presence and 2) future impacts of increased traffic from the above combined with future impacts by three other planned expansions in the area. Although the plaintiffs have not established either the foreseeability or the significance of these effects, we discuss them briefly: First, NEPA requires HUD to study a project’s reasonably foreseeable effects. Plaintiffs’ sole allegation is that HUD failed to study the detrimental effects of the eventual arrival of other, unknown national retailers into the area, following Wal-Mart’s wake. They offer nothing concrete to suggest that such changes will likely occur or are planned for in this particular project area, but rely on broad statistical data discussing general national trends. However, reasonable foreseeability under NEPA “does not include [such] ‘highly speculative harms[.]’ ” City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (citing Methow Valley Citizens Council, 490 U.S. at 356, 109 S.Ct. 1835). As a result, plaintiffs’ arguments fail. Second, after studying the anticipated effects of increased traffic, HUD decided that the project would not cause traffic levels that would significantly affect human environment. In reaching its decision, HUD relied on two traffic studies performed by a contractor in December 2000 and September 2001. The latter was performed specifically to incorporate the effects of known plans for other development projects in the area. HUD relied on the traffic studies’ projection of traffic conditions subsequent to completion of the St. Thomas revitalization project and the three other planned expansions. The studies indicated that traffic levels would remain well below capacity. HUD’s reliance on those results was not arbitrary, capricious or unlawful, and plaintiffs’ argument to the contrary lacks merit. In support of their position, plaintiffs cite to inconsistencies in background traffic measurements; noting that the September 2001 measurement for Jackson Avenue is lower by 3,600 cars than the December measurement, and arguing that the September 2001 measurement is purposely skewed in order to support the FONSI. First, plaintiffs provide nothing but conclusory allegations to support their claims of bad faith. Second, we note that HUD’s findings relied on a separate set of measurements, different from the challenged background traffic measurements, that specifically reflect the potential road conditions after the completion of the St. Thomas project and the four other planned activities. Furthermore, we note that even if the higher, December 2001 measurement for Jackson Avenue is taken as correct, the street is still predicted to operate at some 30,000 cars below capacity. As a result, we cannot say, on this record, that plaintiffs have adequately supported their allegations of significant foreseeable cumulative effects on human environment due to increased traffic caused by the project. 8. Mitigation In reaching its FONSI, HUD relied in part on the mitigation requirements contained in the MOA developed as a part of required NHPA planning. On examination, we find that HUD did not rely on them arbitrarily or capriciously. The MOA’s requirements were meant to alleviate adverse impacts on historic properties; many of its mitigation requirements focused on reducing the adverse effects on increased traffic on those properties. The measures are extensive, including “design review of new construction, rehabilitation of historic buildings, use of Belgian blocks to slow traffic at multiple intersections, and restriction of the entrance of truck traffic to Wal-Mart to Tchoupitoulas and Josephine Streets[.]” The MOA also requires the signatories to the MOA to ask the City to convene a traffic task force, seek funding for improvements to Jackson Avenue, and identify grants for local retailers. Furthermore, the MOA binds the Housing Authority of New Orleans and HRI to its terms. Any attempt to change it requires consultation with and approval by all signatories, including federal and state agencies set up to protect historic areas. To reiterate, HUD is bound to adhere to the MOA’s requirements, and may not relax or abandon them without the express authorization of all parties. Plaintiffs argue that the above requirements will not provide the predicted mitigation, and that HUD’s reliance on them is arbitrary and capricious. Plaintiffs characterize the mitigation as requiring merely letter-writing, mild research, and limited consultation. Furthermore, plaintiffs argue that the MOA has no teeth, as it can be changed at any time. Again, plaintiffs assume without demonstrating that such measures of mitigation are inherently unreliable and that an agency cannot reasonably base its decision to forgo an EIS, in part, upon them. The record before us, however, does not support their allegations. They have not, therefore, shown that HUD relied on those mitigation requirements arbitrarily or capriciously. 9. Evaluation of Project Costs and Benefits CEQ regulations state that “[a] significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1). Plaintiffs argue that HUD is required to produce an EIS even though the project has no significant negative environmental effects, so long as it has significant positive environmental effects. This court has rhetorically considered the question, but has not arrived at an answer. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 426-27 (5th Cir.1973) (disavowed on other grounds). We need not do so here, as HUD has not asserted nor have plaintiffs offered evidence of a significant positive environmental impact; HUD only indicates that when the overall benefits of the project are weighed against the temporary inconveniences of construction and any “partial long term market disruption[,]” the St. Thomas project “provides a very positive net benefit to the community.” Moreover, the other case in this circuit touching on the question can be distinguished on the grounds that it determines only whether an EIS need discuss positive benefits. Environmental Defense Fund v. Marsh, 651 F.2d 988, 993 (5th Cir.1981). Without more, we may not find HUD arbitrary and capricious in this regard. Plaintiffs also urge that HUD improperly subtracted the project’s positive environmental impacts from its negative environmental impacts, so that once significant negative effects became insignificant. The record before us is clear, however, that HUD has not engaged in any such weighing. Rather, it evaluated the potential negative effects and determined that they are not significant, either individually or cumulatively. Again, without further support, we may not say that HUD’s assessment was arbitrary and capricious. 10. Consideration of Context and Intensity Council on Environmental Quality regulations require an agency to consider both “context” and “intensity” when considering whether an effect is “significant”. 40 C.F.R. § 1508.27 (defining “significantly” as used in NEPA’s statutory language). In considering context, an agency must look at “the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” 40 C.F.R. § 1508.27(a). When evaluating intensity, agencies should consider ten areas, listed in 40 C.F.R. § 1508.27(b). This court has held that “the factors listed in the regulation do not appear to be categorical rules that determine by themselves whether an impact is significant.” Spiller, 352 F.3d at 243. Rather, the regulation provides a list of “relevant factors ... [for] gauging whether an impact is ‘intense’[.]” Id. An agency must only show that each factor was “in some way addressed and evaluated.” Id. First, with regard to intensity, our discussions in various sections above have repeatedly concluded that HUD built in context consideration to its examination of a wide range of impacts, particularly with regard to environmental justice, zoning, businesses occupying historic properties, and traffic. In addition, those same discussions touch on HUD’s consideration eight of the ten factors that Council on Environmental Quality regulations require agencies to consider regarding the intensity of a project. Plaintiffs allege that their mere presence is reason enough to require an environmental impact statement. As support, plaintiffs offer arguments that reiterate those discussed in the sections above. As noted, the listed factors do not constitute categorical rules such that their presence or absence means an impact is per se significant. See Spiller v. White, 352 F.3d 235, 243 (5th Cir.2003). HUD must therefore show only that it addressed and evaluated these factors, even if it did not do so in a “factor-by-factor fashion” Id. We have concluded, in the preceding subsections, that HUD has not acted arbitrarily and capriciously in its evaluation of the project’s context nor in its assessment of various individual intensity factors. Similarly, we now conclude that its overall evaluation of the project’s context and intensity as a whole neither arbitrary or capricious. Plaintiffs arguments on these points largely rehash the arguments they raised individually above, and we will not repeat our analysis of them here. Their only new arguments relate to traffic and to potential adverse effects on historic resources. They first argue is that the impacts of traffic were sufficiently controversial and uncertain that HUD was required to prepare an EIS. See 40 C.F.R. § 1508.27(b)(4). They adduce no evidence on this point, however, beyond their own opposition to the project and the same assertions we disposed on in our analysis supra, in discussing traffic impacts and cumulative impacts. As they have not met their burden of proof as to the broader controversy of traffic impacts, and since we above held that HUD’s consideration of traffic issues was neither arbitrary nor capricious, we now do not find HUD’s behavior arbitrary and capricious in this regard. Second, plaintiffs argue that HUD did not properly consider the project’s potential adverse effects on historic properties, as required by 40 C.F.R. § 1508.27(b). These arguments are similar to those they raise challenging HUD’s findings under the NHPA review process, discussed infra, and we reject them for the same reasons: HUD has prepared a valid Memorandum of Agreement that the consulting parties have agreed adequately resolves the project’s potential adverse effects on historic properties, and was not arbitrary and capricious in determining that no National Historic Landmarks were adversely affected. See 16 U.S.C. § 470h-2(i) (stating that the NHPA shall not “be construed to require the preparation of an environmental impact statement where such a statement would not otherwise be required” under NEPA.). 11. Conclusion Plaintiffs have raised numerous objections to HUD’s EA and FONSI, but plaintiffs have failed to demonstrate in any instance that HUD acted arbitrarily, capriciously, or contrary to the law in deciding that the project did not cause significant effects to human environment. III. Four National Historic Landmarks are located in the St. Thomas project’s Area of Potential Effects: the Garden District, the Vieux Carre, St. Al-phonsus Church, and St. Mary’s Assumption Church. Other historic properties are also located near and in the project site. Under NHPA § 106, HUD is required to consider the effects of its actions on these historic properties by the National Historic Preservation Act. As under NEPA, an agency’s actions under the NHPA are procedural, and our review of its decisions is conducted under the Administrative Procedure Act’s “arbitrary and capricious” standard. Vieux Carre Property Owners, Residents, & Assocs. v. Brown, 875 F.2d 458, 456 (5th Cir.1989). A federal agency, the Advisory Council of Historic Preservation (“ACHP”) has promulgated regulations that require federal agencies to examine whether a proposed project “has the potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a). Where an agency proposes a finding of no adverse effect, it indicates that the project has no effect on any historic property that “diminish[es] the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.” 36 C.F.R. § 800.5(b) (read in conjunction with (a)(1)). Such a finding triggers a “consulting party review”, described in 36 C.F.R. § 800.5(c). If the agency finds that historic properties will suffer adverse effects, the agency must consult with the ACHP and the State Historic Preservation Officer (“SHPO”) and other parties “to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or mitigate adverse effects on historic properties.” See 36 C.F.R. § 800.5(a) (requiring agencies to assess adverse effects); 36 C.F.R. § 800.6(a) (requiring consultation). If adverse effects are found, and the agency, the SHPO, and the ACHP (plus any other required parties) may agree on a method of resolving those effects, to be recorded in a Memorandum of Agreement that specifies the manner of resolution. 36 C.F.R. § 800.6(b)(l)(4). As in respect to environmental effects under NEPA, however, an agency has no duty to abandon or modify a project if the project is found to have an adverse effect that is not avoided or mitigated, but only to follow the mandated NHPA procedures. 36 C.F.R. § 800.6. There is an exception to that rule applicable to National Historic Landmarks, as specially designated historic properties. They are subject to more stringent requirements. When an agency action will cause a direct adverse effect to a National Historic Landmark, the agency has an affirmative duty under NHPA § HOf to minimize the harm done. See also 36 C.F.R. § 800.10(a) Plaintiffs raise two challenges to HUD’s compliance with the NHPA: 1) that HUD’s compliance with the NHPA § 106 process was defective and 2) that HUD had, and neglected to fulfill, a duty to minimize direct harm to National Historic Landmarks under NHPA § llOf. We deal with each in turn. A. Based on its finding that the St. Thomas project would result in some adverse effects, HUD went through the required consulting process with the SCHP, ACHP, and other required parties. HUD originally produced an MOA for the project in September 2000; no one challenges the fact that HUD was not a signatory to that document, and that as a result it may not have met the NHPA’s requirements. See 36 C.F.R. § 800.6(c)(l)(I). In September 2002, however, HUD reopened its NHPA review, which resulted in a second, final MOA. The second MOA covers more of the project than the first MOA, which covered the residential portions of the project and rehabilitation of the five remaining St. Thomas buildings. The second document covers all of the above, plus the Wal-Mart site and a nearby historic property, the Amelia Cotton Press. The document is signed by all necessary parties and contains various provisions meant to mitigate the project’s effects on historic properties. Plaintiffs argue that HUD’s failure to sign the first MOA taints the validity of the second MOA. They assert that the second document can only be taken to cover the Wal-Mart and the Amelia Cotton Press and that, as a result, HUD has not adequately considered adverse effects on historical properties arising from the residential and rehabilitation portions of the project. We are not persuaded. Plaintiffs offer no legal authority to suggest that the second MOA may not incorporate and bind the parties to, among other things, the same terms that had been included in the first, incomplete or deficient document. Second, a plain reading of the final MOA shows that it covers the effects of and mitigation for the entire project. Plaintiffs offer no evidence that the document is meant to be interpreted in the limited fashion they urge. Accordingly, we adhere to the general rule that, absent other evidence, “[a] memorandum of agreement executed and implemented pursuant to this section evidences the agency official’s compliance with section 106.” 36 C.F.R. § 800.6(e). Plaintiffs cannot, therefore, show that HUD was arbitrary or capricious in relying on the second, final MOA as proof of its compliance with the requirements of NHPA § 106. Plaintiffs’ second argument asserts that HUD was required to undertake the “consulting party review” process laid out in 36 C.F.R. § 800.5(c). This assertion, however, misreads the governing regulations. 36 C.F.R. § 800.5(c) only requires consulting party review where HUD proposes a finding of no adverse effect on any historic property within the project’s area of potential effects. Here, HUD made no such proposal; in fact, the agency found that there were adverse effects on certain historic properties such that it needed to consult with the ACHP and SHPO to produce an MOA. The situation simply did not meet the requirements triggering 36 C.F.R. § 800.5(c). Plaintiffs’s assert that a finding under NHPA § llOf of no adverse effects on National Historic Landmarks also triggers § 800.5(c)’s provisions, but offer no legal support for that reading, which conflicts with the plain language of the regulation. As a result, we conclude that HUD was not in violation of the NHPA’s procedural requirements in not conducting consulting party review under § 800.5(c). B. As noted above, NHPA § llOf imposes an affirmative duty on federal agencies to minimize harm to National Historic Landmarks where it finds that a project will adversely affect such landmarks. In conducting its assessment of whether the St. Thomas project would cause such adverse effects, HUD relies on the opinion letter it received from the National Park Service. That opinion letter was drafted by Cecil McKithan, a Park Service employee, after he visited the project site for that express purpose. In it, Mr. McKithan stated that the St. Thomas project would not adversely affect the National Historic Landmarks. HUD relied on that letter in reaching its determination that the project would have no adverse effect on National Historic Landmarks in the area. By October 2002, the State Historical Preservation Officer, the Advisory Council on Historic Preservation, and other consulting parties had expressed their objection to that determination. At that point, National Park Service contacted HUD at that point to let the agency know that it was reexamining its conclusion in response to those concerns. Mr. McKithan had by then retired, and the Park Service was reviewing his findings out of concern that it lacked sufficient information to support his determination. On December 16, 2002, however, the National Park Service withdrew its request for more time to assess the project’s impact, on the grounds that it had reexamined the materials before it. In doing so, the National Park Service stated that “HUD, in accordance with 36 C.F.R. § 800.10(c), appropriately sought National Park Service’s comments and relied on those comments in good faith[.]” It did not withdraw its statement that the project would have no adverse effect. By February 2003, both the SHPO and the ACHP, the very parties who had initially questioned HUD’s determination of no adverse effect with regard to NHLs, had again signed onto the MOA, indicating their agreement with that determination. See 36 C.F.R. §§ 110f(a) (noting that the results of the § HOf review process are to be incorporated into the NHPA § 106 process), 800.6(c) (a signed MOA evidences the agency’s official compliance with NHPA § 106). Plaintiffs challenge HUD’s conclusion that the project will have no significant impact on National Historic Landmarks, arguing that HUD was arbitrary and capricious in relying on the NPS’s recommendation since it knew that the Park Service’s recommendation was unsupported and incorrect. Essentially, they argue that the National Park Service’s request for additional time to reconsider its determination renders HUD arbitrary and capricious for relying on the National Park Service’s finding of no adverse impact. HUD may rely on the reasonable opinions of its own experts, however, and despite the reexamination, the National Park Service did not, as plaintiffs allege, withdraw its determination of no adverse effects. See Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (1989). Indeed, despite the significant consideration given to outside concerns, the National Park Service refused to rescind its decision. Without some further evidence pointing to flaws in the National Park Service’s decision-making process and conclusion, HUD was not arbitrary and capricious in relying on the National Park Service’s determination as support for its conclusion that the project would have no significant impact in this regard. IV. In addition to contesting HUD’s decisions based on it EA/FONSI and MOA, plaintiffs also challenge the district court’s disposition of various motions. They first appeal from the district court’s findings of ripeness and mootness with regard their challenges of the earlier versions of the environmental assessment/FONSI and MOA. A. Plaintiffs filed suit in July 2002, seeking declaratory judgment that HUD and The Housing Authority of New Orleans failed to comply with NHPA and NEPA and an injunction forcing HUD to withhold grant funds until The Housing Authority of New Orleans became compliant. In October 2002, plaintiffs filed a motion for partial summary judgment and permanent injunction. On February 21, 2003, the district court granted HUD’s motion for summary judgment, concluding in part that plaintiffs claims were not yet ripe for review because the court was “under the impression that the NEPA review was still pending.” HUD had, in fact, closed the reopened review on February 20, 2003, having again undertaken an environmental assessment and reached a FONSI; HUD, The Housing Authority of New Orleans, the SHPO, and ACHP entered an amended MOA on February 1, 2003. Plaintiffs challenge the district court’s disposition on summary judgment of their challenges to the first environmental assessment/FONSI and MOA completed for the St. Thomas redevelopment project, before those processes were reopened by HUD. A grant of summary judgment is reviewed de novo, “applying the same standard on appeal that is applied by the district court.” Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002) (citing Auguster v. Vermilion Parish School Board, 249 F.3d 400, 401 (5th Cir.2001)). In deciding whether a matter is ripe for review, the court must consider “both the fitness of the issue for the judicial determination and the hardship to the parties of withholding consideration.” Ab bott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In making its determination, the court should evaluate three factors: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The district court here determined that while the complaint clearly met the case or controversy requirement of Article III, “judicial review at [that] time [was] inappropriate in light of the reopened reviews[,]” particularly since “[t]he ordinary remedy for unsustainable agency findings under NEPA is to remand the matter to the agency ‘for further consideration.’ ” Accordingly, it held that at that time the claim would have inappropriately interfered with agency action, viz., the reopened NEPA and NHPA review processes. In considering the other two Ohio Forestry factors, it found that plaintiffs had “failed to demonstrate any hardship” would be suffered as a result of withholding review. Plaintiffs’ motion to the district court alleged that “infrastructure work is being [perjformed, which is eliminating the possibility of real consideration of alternatives to the present project,” and that “[d]elay of review will harm plaintiffs[’] ability to receive a true review of the Project’s impact on the human environment and historic properties.” A review of the record, however, indicates that the district court was given no further explanation or support for the statements beyond the allegations. Finally, the district court rightly noted that review at that time would entail judicial review of “an admittedly incomplete administrative record,” as the processes in question had been reopened. Given all of the above, the district court did not err in determining that the issue was not yet ripe for review: plaintiffs clearly had not made the showing necessary under the Ohio Forestry test, and their arguments fail before our court now for the same reasons. B. On March 31, 2003, plaintiffs amended their complaint to include the original environmental assessment/FONSI and MOA as well as the environmental assessment/FONSI and the MOA resulting from the reopened process. Plaintiffs then filed a second motion for summary judgment and for a permanent injunction on April 4, 2003, again alleging noncompliance with NEPA and the NHPA, and seeking to stop all work on the project until an environmental impact statement and Section 106 review had been properly completed. That same day, HUD, The Housing Authority of New Orleans, and HRI all filed motions for summary judgment on the grounds that the reopened review complied with NEPA and NHPA. On April 11, 2003, the court entered an order in the case denying the plaintiffs’ motion and granting HUD’s motion in part. In that order, the court dismissed all of plaintiffs’ claims arising under the NHPA. The court left open issues related to the first environmental assessment and FONSI insofar as they were necessary to determine awards of attorneys’ fees, but stated that “the relief for remedying a deficiency in the original environmental assessment/FONSI deficient [sic] is now moot.” In March 2004, the court dismissed all of plaintiffs’ remaining claims. In doing so, it held that the claims against the original MOA were moot, as they had been previously dismissed and were subject to the “law of the case” doctrine. In addition, the court held that challenges to the original environmental assessment/FONSI were moot and did not fall within the “capable of repetition, yet evading review” exception. Plaintiffs first argue that the claims against the original MOA are not made moot by the law of the case doctrine because the later MOA does not encompass the entire project. The law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 443, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). The doctrine applies not only to issues decided explicitly, but also to everything decided “by necessary implication.” Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989). We reject this argument for the reasons discussed supra; the second, final MOA is a comprehensive document and supercedes the original. Corrective action by an agency can moot an issue. See, e.g., Commissioner v. Shapiro, 424 U.S. 614, 622-23 n. 7, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976) (holding that proper service of new notice of deficiency and new notices of levy moots question as to whether prior actions were procedurally defective). Other circuits have found that subsequent agency action under NEPA moots a challenge to original compliance where there is no relief that would “undo” the harm. See Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin., 175 F.3d 1156, 1163 (9th Cir.1999) (“The ... complaints are stale because a final environmental impact statement was prepared and we can grant no relief that would ‘undo’ the operation of the [noncom-pliant agency action] during the period between issuance of the 1995 ROD and the final environmental impact statement.”); see also Wright & Miller, Federal Practice and Prooedure, § 3533.7 (“At any rate, self-correction again provides a secure foundation for mootness so long as it seems genuine.”); id. § 3533.2 (“Action by the defendant that simply accords all the relief demanded by the plaintiff may have the same effect as settlement. So long as nothing further would be ordered by the court, there is no point in proceeding to decide the merits .... [M]ootness arises from the fact that in one way or another, the parties have acted voluntarily to dispose of the plaintiffs original claim for relief.”) In reopening the NHPA process, HUD took the voluntary action required to address plaintiffs’ original claims. At the closure of that process, a second, final MOA was produced. As the St. Thomas project is no longer proceeding under the original version of the MOA, any remaining challenges to its validity have been mooted. The district court rightly disposed of claims against the final MOA in its April 13, 2003 ruling and, in its March 2004 ruling, explicitly recognizes the implicit results of that decision. Plaintiffs next argue that the district court erred in refusing to apply the “capable of repetition, yet evading review” exception to their challenges against the original environmental assessment/FONSI. This exception to the mootness doctrine applies where (1) the challenged action is too short to be fully litigated before it ceases and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Benavides, 238 F.3d at 671 (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Plaintiffs do not argue the second requirement at all. As to the first, they argue that HUD is likely to avoid review on other proposals, plans, or actions by using the tactic of reopening NEPA or NHPA review. It is not, however, inappropriate to permit agency reconsideration to moot an initially unripe claim where the behavior involved no longer plays a causal role in the harm alleged. See Ohio Forestry Ass’n, Inc., 523 U.S. at 734, 118 S.Ct. 1665. Here, HUD took corrective action when it reopened its NEPA review processes, which, despite its reconsideration, still yielded a FONSI; plaintiffs have not demonstrated that the original FONSI still plays a causal role in the various harms they assert under NEPA. Accordingly, the later challenges to the original environmental assess-menVFONSI and MOA were correctly denied as moot. V. Plaintiffs next challenge the district court’s April 11, 2003 rulings on their Rule 59 motion regarding (1) the completeness of the administrative record, (2) the prejudicial effect of the expedited briefing schedule, and (3) the application of an incorrect standard of review. Rulings on Rule 59(e) motions are reviewed for abuse of discretion. Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990). Unless the district court clearly abused its discretion in determining that plaintiffs’ motion neither established a manifest error of law or fact nor presented newly discovered evidence, the district court’s ruling should not be disturbed. Id. A. Plaintiffs attempt to introduce several pieces of extra-record evidence in arguing that HUD was arbitrary and capricious in issuing a FONSI. In their Rule 59(e) motion, they argued that the administrative record was created impermissibly in response to litigation and does not contain certain documents that should be part of the record. Among these documents are Mr. Bagert’s highly critical study of the HOPE IV program and the St. Thomas project in particular, a lead contamination study referred to by Dr. Mielke in his comments to the environmental assessment regarding lead contamination, and a Citywide Testing noise survey from April 20, 2000, which found high levels of noise. The district court refused to grant reconsideration on the issue on the grounds that plaintiffs had failed to show that any of the documents in the record were created post hoc or not relied on by HUD in its decision-making. It further noted that plaintiffs’ argument regarding the completeness of the record was “essentially a new vehicle for asserting the same arguments they made in opposition to summary judgment — ie., that HUD failed to adequately consider certain potential environmental impacts and ignored contrary information regarding these impacts.” Extra-record evidence may be admitted if necessary to determine whether an agency has adequately considered adverse environmental impacts. Sierra Club v. Peterson, 185 F.3d 349, 369-70 (5th Cir.1999); Sabine River, 951 F.2d at 678. A district court’s decision regarding the admissibility of extra-record evidence is reviewed for abuse of discretion. Davis Mountains Trans-Pecos Heritage Ass’n v. Federal Aviation Admin., 116 Fed.Appx. 3, 16 (5th Cir.2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998)) and referencing Davidson Oil Country Supply Co. Inc. v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir.1990) (“stating that ‘[t]he trial court’s discretion to admit or exclude evidence is generally broad’ ”). As our analysis supra records, HUD fulfilled its duty under NEPA: it identified the issue, assessed it, and reached a supported conclusion, and we find no error in the district court’s grant of the motion for summary judgment. While plaintiffs may disagree with the outcome, HUD’s environmental assessment did consider the issues raised, and included at least some of the information evidence plaintiffs urge was completely ignored, as has been discussed swpra. We agree with the district court’s assessment that the administrative record adequately supported HUD’s FONSI, and similarly hold that the district court did not abuse its discretion in denying plaintiffs’ Rule 59 motion in this respect. See Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). B. Plaintiffs second challenge to the district court’s denial of their Rule 59(e) motion alleges that they were prejudiced by the expedited briefing schedule, which was created as a result of HUD’s misstatements regarding important deadlines. On March 20, 2003, the district judge held a status conference, at which it set an expedited schedule for reviewing the newly issued environmental assessment/FONSI and MOA based on the fact that the closing on the Wal-Mart site was scheduled for April 15. The district judge notes that plaintiffs “consented to an expedited schedule and even took part in negotiating the details of that schedule.” HUD filed the Administrative Record on March 27, 2003; cross motions for summary judgment were filed April 4, 2003. Oppositions were filed on April 8, and oral argument held on April 10. In an April 3 phone conference, plaintiffs requested an additional court day (from Friday to Monday) in which to review the record; the district court denied the request. The scheduled closing was delayed, finally occurring in October 2003, due to the pendency of a state-court bond validation lawsuit in which plaintiffs were also participants. The district court did not abuse its discretion in denying the motion on this ground: all parties were subject to the same time constraints, plaintiffs helped develop and agreed to the expedited schedule, and further, the closing was delayed due to a lawsuit in which plaintiffs were also participating. C. Plaintiffs urge that the district court should have applied a more stringent standard of review to the NEPA process based on the fact that HUD’s administrative record amounts to post hoc rationalization of its decision to issue a FONSI. As a basis, plaintiffs cite to the fact that certain studies were completed after the environmental assessment process was reopened. Nothing in the record, however, suggests that the information HUD provided was completed to provide post hoc justification for the agency’s final environmental assessment/FONSI. Rather, the documents appear to be those relied on by HUD in reaching its determination after reopening the process. Furthermore, the reopened process led to changes in the project— notably, the imposition of additional traffic control measures. Since plaintiffs have not sufficiently demonstrated post hoc rationalization or prejudgment, the district court applied the proper standard of review; viz., “arbitrary and capricious.” VI. On December 18, 2002, the district court granted plaintiffs’ Rule 41(a)(2) motion to dismiss The Housing Authority of New Orleans from the case, conditioned on payment of The Housing Authority of New Orleans’s attorneys’ fees and costs. In early January 2003, The Housing Authority of New Orleans re-entered the case as an intervenor, to protect interests threatened by plaintiffs’ request for an injunction. In March 2003, the district court awarded The Housing Authority of New Orleans $1,800.50 in attorneys’ fees, covering those tasks related to the original suit and not useful to The Housing Authority of New Orleans in its role as intervenor. Plaintiffs’ final issue on appeal challenges that award. Rule 41(a)(2) motions for voluntary dismissal are not usually appeal-able, since it is presumed that plaintiffs obtained that which they sought. Yoffe v. Keller Indus., Inc., 580 F.2d 126, 129 (5th Cir.1978); see also, Briseno v. Ashcroft, 291 F.3d 377, 379 (5th Cir.2002); Mortgage Guar. Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 300 (5th Cir.1990). Under that rule, district courts have authority to attach conditions to such a dismissal in order to alleviate prejudice to the defendants, but such conditions should be tailored so that they only “alleviate the harm caused to the defendant.” Le-Compte v. Mr. Chip, Inc., 528 F.2d 601, 604-05 (5th Cir.1976). “[The Fifth Circuit has] left open the possibility that a rule 41(a)(2) dismissal with conditions imposed by the district court may constitute legal prejudice and thus render the dismissal appealable.” Briseno, 291 F.3d at 379 (citing Yoffe, 580 F.2d at 129-30). We review conditions placed on a Rule 41(a)(2) motion for voluntary dismissal for abuse of discretion. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). Appeal may be granted where 1) plaintiff is “legally prejudiced” by the attendant conditions and 2) has not “agreed to or legally acquiesced in those conditions.” Mortgage Guar., 904 F.2d at 300 (citing Yoffe, 580 F.2d at 130). Legal prejudice arises only where the district court’s conditions are “ ‘clearly unreasonable’ or ‘so outrageous as to demand a full appellate review.’ ” Yoffe, 580 F.2d at 131; see also, Mortgage Guar., 904 F.2d at 301. Awards of attorneys’ fees do not generally reach that level. See, e.g., Yoffe, 580 F.2d at 130-31; Mortgage Guar., 904 F.2d at 300-01 (Yoffe precedent makes arguments that such awards cause legal prejudice “difficult to sustain”). Plaintiffs challenge the rationale given for the district court’s conditions, arguing that they named The Housing Authority of New Orleans as a defendant because their arguments, in part, challenged an MOA to which the federal defendant, HUD, was not a signatory. The district court, however, correctly noted that plaintiffs’ counsel should have been familiar with the fact that the APA “does not provide private plaintiffs a route for reviewing the actions of nonfederal defendants such as [The Housing Authority of New Orleans].” The court notes that plaintiffs’ attorneys were also counsel in two other NEPA/NHPA suits where that principle was clearly stated: Vieux Carre Property Owners, Residents & Assoc., Inc. v. Brown, 875 F.2d 453, 458 (5th Cir.1989) and Hayne Blvd. Camps Preservation Ass’n, Inc. v. Julich, 143 F.Supp.2d 628, 631-32 (E.D.La.2001). Fees were awarded to The Housing Authority of New Orleans in the amount of $1,800.50, calculated to cover only those activities The Housing Authority of New Orleans undertook as a defendant, not those occurring after it became an intervenor. On those facts, the district court’s condition did not create legal prejudice for the plaintiffs: plaintiffs brought suit against both HUD and the Housing Authority of New Orleans, the APA contains no provision that at any time would have given plaintiffs a private cause of action against the Housing Authority of New Orleans, and from past experience, plaintiffs’ attorneys should have known that to be the case. Furthermore, the fees awarded were closely tied to the time and effort the Housing Authority of New Orleans had expended in defending itself against those claims. Accordingly, the District Court’s award of attorney’s fees is not an abuse of discretion. VII. For these reasons, we conclude that HUD’s decision that an EIS was not required was not arbitrary, capricious,, or contrary to law; that no further action is required of the agency at this time under NEPA or the NHLA; and that the district court committed no reversible error in its decisions or its handling of the case. Accordingly, HUD’s decision and the judgment of the district court are AFFIRMED. . On April 11, 2003, in ruling on cross-motions for summary judgment, the district court concluded that HUD’s environmental assessmenVFONSI and MOA were not "arbitrary and/or capricious in any respect.” Plaintiffs contend that the district court erred in this ruling: that HUD arbitrarily and capriciously concluded that the project would result in no significant environmental impact. Our review of the district court’s ruling on the cross-motions for summary judgment is de novo, "applying the same standard on appeal that is applied by the district court.” Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002) (citing Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 401 (5th Cir.2001)). Here, like the district court, we apply the "arbitrary and capricious” standard described above. . HUD regulations define "Acceptable” noise levels as "not exceeding 65 dB[J” "Normally Unacceptable” levels as "[a]bove 65 dB but not exceeding 75 dB[J” and "Unacceptable” levels as "[ajbove 75 dB.” 24 C.F.R. § 51.103, table. . As an example, the proffered extra-record survey took its measurements over a 12-hour period; 24 C.F.R. § 51.103(a), by contrast, requires measurements over a 24-hour period. . Mr. Bagert’s written report is outside the record. The district court denied plaintiffs’s request to add it as a supplement to the administrative record. Plaintiffs challenge that ruling by the district court’s decision only in response to its ruling on their Rule 59 motion, discussed infra. For the purposes of the immediate analysis, we are confined to the administrative record, which includes only Mr. Bagert's oral comments at a public meeting. . HUD attempts to argue that even though it did consider this issue, NEPA does not require such a examination of “purely economic” impacts. The merit of this argument is dubious, since, as plaintiffs note, the loss of businesses in the district relates to the amount of money available to maintain historic buildings. . Namely, the future expansion of the Morial Convention Center, the expanded terminal activities at the Port of New Orleans, and the development of the Saulet Apartment complex. . Namely, the following sections of 40 C.F.R. § 1508.27(b): (1) Impacts that may be both beneficial and adverse .... (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources. . These challenges arise out of the same cross-motions for summary judgment as the NEPA claims discussed supra. Plaintiffs contend that the district court erred in ruling that HUD arbitrarily and capriciously concluded that the project would result in no adverse effects to historic properties. Again, we review the district court de novo on this point. See Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002) (citing Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 401 (5th Cir.2001)). . Note that in many cases, as here, NHPA review is often built into the NEPA review process. See 36 C.F.R. § 800.8(c) (permitting such combination). . Defendants assert that plaintiffs may not appeal the question of attorneys’ fees because they were not brought before this court with a timely notice of appeal. Because plaintiffs are not entitled to attorneys’ fees even assuming, arguendo, that they have timely appealed the issue, we decline to decide the question here.

Neighborhood Ass'n of the Back Bay, Inc. v. Federal Transit Administration

DYK, Circuit Judge. The Neighborhood Association of the Back Bay, Inc. (“NABB”) and the Boston Preservation Alliance (“BPA”) (collectively “Plaintiffs”) brought suit against the Federal Transit Authority (“FTA”) and Massachusetts Bay Transportation Authority (“MBTA”), asserting that planned modifications to the Copley Square transit station violated historical preservation statutes. The United States District Court for the District of Massachusetts denied preliminary and final injunctive relief. Because we conclude that the plaintiffs have not established a violation of applicable federal or state statutes, we affirm. BACKGROUND This case primarily presents questions as to whether the FTA, in providing funding to the MBTA to make the Copley Square station compliant with the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 (2000), has violated various federal statutes designed to preserve historic properties. I. Under Title II of the ADA, 42 U.S.C. §§ 12131-12165 (2000), and its implementing regulations, 49 C.F.R. §§ 37.47-51, public transit authorities receiving federal funds are required to identify “key stations” in their transit stations and then make those stations accessible to wheelchair users. 42 U.S.C. § 12147. In 1992 the Copley Square station was identified by the MBTA as a key station, and plans were made to modify the station to make it wheelchair accessible. To make the station wheelchair accessible would require installation of new inbound and outbound elevators to transport wheelchair users. Under 49 U.S.C. § 5310, the FTA provides federal funds to state entities such as the MBTA to assist them in achieving compliance with the ADA. However, in providing funding, the FTA, like other federal agencies, must ensure that the funded projects comply with various federal statutes dealing with historic preservation, including two sections of the National Historic Preservation Act (“NHPA”) — 16 U.S.C. § 470f (“section 106”), and 16 U.S.C. § 470h-2(f) (“section 110(f)”). The FTA must also comply with Section 4(f) of the Department of Transportation Act of 1966 (“DOTA”), 49 U.S.C. § 303 (“section 4(f)”). The problem with the planned modifications to the Copley Square station lies in the fact that the station is adjacent to the Boston Public Library (“the Library”) and the Old South Church (“the Church”), both of which are designated as National Landmarks and are listed on the National Register of Historic Places. The Library and Church are located within the Back Bay Historic District, which is itself on the National Register of Historic Places, as is the existing inbound entrance headhouse to Copley station. The proposed modifications to the station would require use of part of the Library steps for the inbound elevator and construction of an outbound elevator adjacent to the Church. The plaintiffs contend that the proposed modifications would violate sections 106, 110 and section 4(f). Understanding plaintiffs’ contentions requires a description of these statutes, and the process by which the FTA sought to achieve compliance with their requirements. Section 106 of the NHPA requires federal agencies, “prior to the approval of the expenditure of any Federal funds on the undertaking” to “take into account the effect” a federal undertaking will have on “any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register” and to “afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.” The regulations under this section make clear that section 106 is applicable only when the proposed action would have an “adverse effect” on an historic property such as the Library and the Church. 36 C.F.R. § 800.5. Section 110(f) of NHPA provides that “[pjrior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark” the agency “shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.” A precondition to the application of section 110(f) is an action that “may directly and adversely affect” a Landmark property, such as the Church or Library. Section 4(f) provides that the Secretary of Transportation may approve a transportation project “requiring the use of ... land of an historic site ... only if: (1) there is no prudent and feasible alternative to using that land; and (2) the ... project includes all possible planning to minimize harm to the ... historic site.... ” 49 U.S.C. § 303(c) (“Section 4(f)”). The provision applies only if there is a “use” of an historic site. To comply with these statutes, the FTA must find that the state entity complies with each statute before disbursing federal funds for any transportation project, including an ADA accessibility project. But the FTA need not undertake separate reviews under each statute. 36 C.F.R. § 800.3(b). Furthermore, in determining compliance with these statutes a federal agency such as the FTA can rely on state agencies such as the MBTA, and on consultants. 36 C.F.R. § 800.2(a)(3). Here, the FTA, in concluding that the Copley Station project complied with all these statutes, relied on “information, analyses and recommendations” prepared by the MBTA. The MBTA, in turn, relied on consultants. II. The MBTA initially addressed the requirements of the ADA in 1995. The MBTA commissioned a consultant to perform a study, the “Schematic Design Report” (the “1995 Report”), that explored options for making these key stations accessible. The 1995 Report identified several options for locating elevators at the Copley Square station, and listed advantages and disadvantages of each. It identified four options for locating the outbound elevator: option A located the elevator in front of the Church, and options B, C, and D located it across the street from the Church. The report noted that option A “has the most serious historic adjacency issues” with respect to the Church, but that it created “[n]o major impacts on streetscape elements and infrastructure,” required little construction work, and was “[l]ocate[d] along the main path of access.” The report identified two potential locations for the inbound elevator: option E located the elevator adjacent to the existing historic wrought iron subway entrance on the Library steps, and option F located it about 150 feet away from the existing entrance without using the Library steps. Option E called for the construction of a matching structure on the other side of the existing entrance. The 1995 Report concluded that failure to build this matching structure would “seriously compromise the explicit symmetry of the [historic landmark] composition.” It also stated that option E “is problematic because it not only creates the very difficult task of imposing new structures along side the intricately detailed wrought iron headhouse, but also creates many interface problems with the Boston Public Library.” As for option F, the report noted that it had a lesser “streetscape and urban impact” than option E, “but place[d] the entrance in a remote location from the main entry to the station,” which raised questions of ADA compliance and also posed a number of engineering difficulties. At some point before May 28, 2002, the MBTA settled on option E (library steps), minus the matching structure, for the inbound elevator, and option A for the outbound elevator, locating the elevator in front of the Church. The matching structure for the inbound elevator was rejected because it would have .been positioned above the Library’s basement, making it impractical to anchor. Meetings were held with representatives of the Library and the Church; no objection was raised to the locations of the elevators. However, on August 22, 2003, plaintiff NABB by letter requested various changes to the project, including the locations for both inbound and outbound elevators. The letter requested that the inbound elevator be placed 150 feet away from the existing Library entrance (option F), rather than on the Library steps, and that the outbound elevator be placed across the street from the Church rather than directly in front of it. NABB did not then assert that the placement of the elevators violated federal statutory requirements. • The MBTA first addressed the requirements of the various federal historical preservation statutes when it requested that its preservation consultant prepare a report (the “Cardan Report”). Though entitled “Section 106 and 4(f) Review,” the Cardan Report only discussed section 106 and did not mention section 4(f) at all. Nor did the report address the requirements of section 110(f). The report described the project, including the planned elevator locations, and explained the effects of the project. The report concluded that “the primary effect of [the project] would be a visual one,” and that the selected designs “will not interfere with existing historic architectural structures.” The report did not discuss the alternative locations, but concluded that the planned locations and designs for the inbound and outbound elevators would not have an “adverse effect” within the meaning of section 106. On August 29, 2003, based on the Caro-lan Report, the MBTA sent a letter to the FTA stating that “[i]n view of these facts, it is our opinion that the project will have ‘No Adverse Effect’ on any historic resources.” The MBTA “requested] a determination of No Adverse Effect by FTA.” As the regulations require, the FTA by letter formally advised the Massachusetts Historic Commission (“MHC”) of the Copley Station improvement on January 23, 2004, and requested “[the MHC’s] concurrence in [the FTA’s] determination that this project will have no adverse effect on historic resources.” The parties appear to agree that this letter constitutes the FTA’s finding of “no adverse effect” under section 106.. The MHC concurred in the FTA’s finding of “no adverse effect” on January 29, 2004. As required by section 4(f) regulations, in a February 5, 2004, letter to the Department of the Interior (“DOI”), the FTA addressed the requirements of section 4(f); found that the project complied with .section 4(f); and requested the DOI’s concurrence in that finding. The FTA found that “[biased on our review of the attached documentation [including the Carolan Report, renderings and schematics] as well as consultation with the Massachusetts State Historic Preservation Officer (concurrence attached) we have determined that [in the language of section 4(f) ] there is no prudent and feasible alternative to the proposed project and that all possible measures to minimize harm have been included in the project planning.” The DOI concurred on May 10, 2004. In connection with an environmental assessment required by the National Environmental Policy Act (“NEPA”), the FTA on December 30, 2004, issued a “Finding of No Significant Impact” (“FONSI”) as required by NEPA. As part of this document the FTA further explained its conclusions with regard to 4(f). The FTA acknowledged that “[a]n element of the proposed project [the inbound elevator] ... will use land from the [Library],” and that the alternative of placing the elevator 150 feet away had not been presented in the [MBTA’s] earlier 4(f) evaluation [the Carolan Report]. However, the report concluded that this alternative was not “prudent and feasible” within the meaning of section 4(f) because it would not coincide with the circulation path of the public to the maximum extent practicable, as required by the ADA. The alternatives for the outbound elevator were rejected for engineering and passenger-flow reasons. III. Plaintiffs NABB and BPA filed suit under the APA on June 9, 2005, alleging that the FTA and MBTA violated sections 106 and 110(f) of NHPA, and section 4(f) of DOTA in approving the project. The plaintiffs also alleged that the MBTA had violated Massachusetts General Laws Chapter 161A, Section 5(k), which required the MBTA to afford parties a “timely opportunity” to participate in the development of “major transportation projects.” Following a hearing, the district court denied plaintiffs’ request for injunctive relief on November 8, 2005. On November 23, 2005, plaintiffs timely appealed. On December 28, 2005, the district court issued a Memorandum and Order setting forth its reasoning. While the district court primarily treated the plaintiffs’ request as if it were a motion for a preliminary injunction and thus examined likelihood of success, risk of irreparable harm, the balance of the hardships and the public interest, the district court’s Order and Memorandum also denied the permanent injunction. Addressing the likelihood of success, the district court rejected the plaintiffs’ argument that the FTA violated the procedural requirements of the section 106 regulations by failing adequately to document its “no adverse effect” finding, by failing to independently review the project, or by failing to consult with the requisite “consulting parties” in reaching the conclusion that there would be no adverse effect. The district court also concluded that plaintiffs had not established that the no adverse effect finding was arbitrary and capricious. Next, the district court rejected plaintiffs’ argument that section 110(f) was violated. The court held that section 110(f), which is triggered when an undertaking “may directly and adversely affect” a National Historic Landmark, does not apply when an agency properly determines a project has no adverse effect. The court then rejected plaintiffs’ contention that section 4(f) was violated. The court first addressed the proposed inbound elevator, and held that although the inbound elevator would “use” a historic landmark, the plaintiffs had failed to establish “prudent and feasible” alternatives to that use because the proposed alternatives failed to achieve the project’s purpose of complying with ADA requirements. As for the outbound elevator, the district court sustained the agency’s conclusion that the planned construction would not directly or constructively “use” a historic landmark, and thus section 4(f) did not apply. Finally, the court addressed the plaintiffs’ state law claim, and held that the MBTA had not violated section 5(k) because the MBTA had afforded the plaintiffs a timely opportunity to participate in the design process. Proceeding with the remaining “preliminary injunction” factors, the district court found that there was no risk of irreparable harm because the project would have no adverse effect on the properties; that the public interest would best be served by making the stations ADA accessible as soon as possible; and that the balance of hardships favored the MBTA and the public because further delays would be expensive and could disrupt the MBTA’s ADA accessibility plans. We have jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION Judicial review here is governed by the Administrative Procedure Act, 5 U.S.C. § 706, which requires that agency action be set aside if the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or if the action failed to meet statutory, procedural, or constitutional requirements. Precision of expression is not the hallmark of either the historic preservation statutes involved here or the regulations promulgated to implement those statutes. In view of this ambiguity, we defer, where appropriate, to the various agency views as to the applicable requirements. Under the Chevron doctrine, an agency’s interpretation of a statute is entitled to weight when the statute is silent or ambiguous. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We also owe deference to an agency’s interpretation of its own regulations. See United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001). Here, we owe Chevron deference to the statutory interpretations reflected in the regulations promulgated by the Advisory Council on Historic Preservation (“ACHP”) under sections 106 and 110, and promulgated by DOTA under section 4f. We also owe deference to the decision of the FTA interpreting the DOTA regulations, because the FTA is an agency within the DOT. See Cleveland Indians, 532 U.S. at 219, 121 S.Ct. 1433. We do not owe deference to the FTA’s interpretation of regulations promulgated by other agencies, such as the section 106 and 110(f) regulations. Nonetheless, we owe deference to the FTA’s no adverse effect finding under sections 106 and 110, since the FTA has jurisdiction to make the finding, even though it does not have interpretive authority. See Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (recognizing that “agency determinations within the scope of delegated authority are entitled to deference” even where the agency does not have interpretive authority and thus is not entitled to Chevron deference); see also Conservation Law Foundation v. Federal Highway Admin., 24 F.3d 1465, 1476-77 (1st Cir.1994) (holding that administrative decisions under section 4(f) are subject to a highly deferential standard of review). Underlying deference to agency action are assumptions that the agencies are better able to articulate the pertinent policies, and to reconcile the policies of potentially conflicting statutes. An equally important assumption is that the agencies will, in fact, carefully consider the policy issues and articulate their resolution with clarity. Here the goals of the historic preservation statutes potentially conflict with the mandates of the ADA. As we will see, the FTA, while adequately performing its assigned task, has fallen short of distinction in doing so, giving little more than the bare minimum attention to historic preservation issues. Of even greater concern, the agencies (ACHP, DOTA, ATBCB) charged with promulgating regulations interpreting the historic preservation statutes and reconciling them with the ADA have issued regulations that are in some respects cryptic and confusing. While we have been able to construe those regulations in the present case so as to resolve the matter at hand, the deficiencies in the existing regulations likely invite further litigation as to future projects. I. Compliance with Section 106 of NHPA The National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq., “requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation [“ACHP”] ... to administer the Act.” City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1508 (D.C.Cir.1994). Section 106 of the NHPA requires that the FTA or any other federal agency, in funding a project, take into account the effect of the undertaking [project] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subehapter a reasonable opportunity to comment with regard to such undertaking. The Library and Church are included in the National Register. Under such circumstances, the ACHP regulations require the FTA to determine whether the project will have an “adverse effect” on the historic properties. 36 C.F.R. § 800.5. If the agency finds an adverse effect, then the agency must follow procedures under section 800.6 designed to avoid or mitigate the adverse effects. 36 C.F.R. §§ 800.5(d)(2); 800.6(a),(b); 800.7 (“failure to resolve adverse effects”). See 36 C.F.R. § 800.8 (coordination with NEPA, including early 106 review). Section 106 is a procedural statute that requires agency decisionmakers to “stop, look, and listen,” but not to reach particular outcomes. Narragansett Indian Tribe v. Warwick Sewer Authority, 334 F.3d 161, 166 (1st Cir.2003). Plaintiffs argue that for various reasons the requirements of section 106 were not met. Plaintiffs first contend that the FTA committed procedural error during the process leading up to the “no adverse effect” finding. Plaintiffs complain that the FTA did not conduct an independent analysis of historical impacts of the undertaking and instead improperly relied on the determination of the Cardan Report and the MBTA. However, the regulations expressly permit an agency to “use the services of applicants, consultants, or desig-nees to prepare information, analysis and recommendations,” 36 C.F.R. § 800.2(a)(3); see also Narragansett Indian Tribe, 334 F.3d at 168 (“The regulations themselves explicitly contemplate the use of consultants to provide analyses for use in the § 106 process.”). Although the plaintiffs urge that there is no indication that the FTA made the required independent determination, there is no specific requirement in the statute, the regulations or the APA that the FTA provide detailed explanations for its decision or use any particular form of words signifying that it made an independent determination. Moreover, we are required to presume that the FTA abided by the statutory requirements in the absence of any showing that it did not do so. Bowen v. Am. Hosp. Assn., 476 U.S. 610, 626-27, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986); Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n. 9, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). As the district court found here, “[plaintiffs offer no credible evidence indicating that the FTA did not conduct an independent review, or that it ‘rubber stamped’ the MBTA’s conclusion of ‘no adverse effects.’ “ We also see no merit in plaintiffs’ contention that the documentation provided to the MHC by the FTA did not adequately explain the basis of the no adverse effect finding. They rely on regulations that require that the documentation “enable” reviewing parties “to understand [the] basis” of the adverse effect finding as required by the regulations. 36 C.F.R. § 800.11(a); see also 36 C.F.R. § 800.11(e) (requiring documentation to support an adverse effect finding). The plaintiffs’ primary contention is that the underlying documentation did not address alternative locations for the elevators, but there is nothing in the statute or regulations that requires the consideration of alternatives in making the no adverse effect determination. Plaintiffs’ fallback position is that the document did not consider elevator location at all in reaching the no adverse effects finding. This is not correct. The documents, including the Carolan Report, described in detail the basis for the finding and considered the location of the elevators in making the finding. Turning to the merits, the plaintiffs also contend that the no adverse effect finding is not sustainable. Again, we disagree. Plaintiffs argue that the regulations promulgated under section 106 compel a finding of “adverse effect.” Their principal contention is that locating the inbound elevator on the Library steps will have an adverse effect on the Library. The section 106 regulations, 36 C.F.R. § 800.5 (“Assessment of adverse effects”), set forth the criteria for determining whether an action will have an adverse effect. Section 800.5(a) provides that the “agency official shall apply the criteria of adverse effect to historic properties within the area of potential adverse effects.” Section 800.5(a)(1) (“Criteria of adverse effect”) provides: An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling or association .... (emphasis added). The FTA relied on various documents to support its no adverse effect finding, including its implicit conclusion that the integrity of the Library was not compromised. The plaintiffs argue that the 1995 Report would only support a finding of no diminishment if the original option E had been adopted (using matching headhouses on either side of the library) and that the report did not support such a finding with respect to the final plan that eliminated the matching headhouse. Plaintiffs correctly point out that the 1995 Report concluded that the elimination of the matching headhouse would “seriously compromise the explicit symmetry of the composition.” (Emphasis added) However, the 1995 Report was not addressed to federal statutory requirements, and the FTA primarily relied on the later Carolan report, which was prepared after the elimination of the matching headhouse, for this purpose. The Carolan Report described the historic setting of Copley Station at length, and concluded that the selected designs “will not interfere with existing historic architectural structures.” This report amply supports the agency’s conclusion that the inbound elevator would not have an adverse effect, i.e., that it would not “diminish the integrity” of the historical sites or “change the character” of features of the Library that contribute to its historical significance. The plaintiffs have failed to show that this finding, on which the FTA relied, was arbitrary or capricious. Plaintiffs also urge that, even if the FTA was not arbitrary and capricious in concluding that the proposed location of the inbound elevator would not “diminish the integrity” of the library, section 800.5(a)(2), which lists specific examples of adverse effects, compels an adverse effect finding. This section provides that: [a]dverse effects on historic properties include, but are not limited to: (i) Physical destruction of or damage to all or part of the property; (ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and provision of handicapped access, that is not consistent with the Secretary’s standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines.... Plaintiffs argue that locating the inbound elevator on the Library steps has an adverse effect on the Library because disturbing the Library steps constitutes “[plhysical destruction of or damage to all or part of the property” under subpart (i). This interpretation is inconsistent with the structure of the regulations. Under subpart (ii) adverse effects include “[alteration of a property, including ... provision of handicapped access ... that is not consistent with the Secretary [of the Interior’s] standards for the treatment of historic properties (36 C.F.R. part 68) and applicable guidelines.” 800.5(a)(2)(ii) (emphasis added). Thus, subpart (ii) effectively recognizes that alterations consistent with the Secretary’s regulations will not create an adverse effect if they are designed to secure handicapped access. In this respect the regulations are evidently designed to avoid potential conflicts with the requirements of the ADA. If sub-part (ii) is to be given its full effect, sub-part (i) cannot compel an adverse effect finding when a property is physically altered to secure handicapped access in a manner that could be said to “damage” the property. Rather, subpart (i) must be read to refer only to “damage” that does not come within the purposes enumerated in subpart (ii). In other words, alterations for the provision of handicapped access are governed exclusively by subpart (ii). We similarly reject the plaintiffs’ contentions that the placement of the inbound elevator could violate subsection (iv) (“[c]hange of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance”) and subsection (v) (“[i]ntroduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features”). Again, if the project complied with subsection (ii), it cannot be argued that it failed to comply with subsections (iv) and (v). We find no merit in plaintiffs’ confusing contention that there was an adverse effect within the meaning of subpart (ii) itself. Plaintiffs have not shown that the alterations to the Library steps are inconsistent with the Secretary of the Interior’s standards for the treatment of historic properties set out in 36 C.F.R. part 68. We finally reject plaintiffs’ argument that the placement of the outbound, elevator would have an adverse effect on Old South Church; and that placement of both elevators would have an adverse effect on the design of the Back Bay region of the city, which itself appears in the National Register of Historic Places; and that the rehabilitation of the existing wrought iron entrance would constitute an adverse ef-feet under subpart (ii). The FTA’s finding of no adverse effect encompassed the project as a whole, including both the inbound and the outbound elevator. The plaintiffs have failed to show that this finding was arbitrary or capricious. We conclude that the agency’s finding of “no adverse effect” must be sustained. II. Compliance with Section 110(f) Plaintiffs next argue that even if the “no adverse effect” finding was proper under section 106, section 110(f) was violated. Section 110 of the NHPA imposes more stringent procedural requirements when National Historic Landmarks are involved, and is involved here because both the Library and the Church are National Historic Landmarks. Section 110(f) provides: Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. The implementing regulation for section 110(f), 36 C.F.R. § 800.10, calls for the same procedures as section 106 (ie., the procedures specified in 36 C.F.R. §§ 800.6 and 800.7 requiring consultation with the ACHP), but further requires that the agency “invite the Secretary [of the Interi- or] to participate in the consultation where there may be an adverse effect” and requires that the ACHP “report the outcome of the section 106 process ... to the Secretary [of the Interior].... ” 36 C.F.R. §§ 800.10(e), (d). Unfortunately, in the course of the lengthy review process, the FTA did not directly address section 110(f). On appeal the FTA and MBTA urge that, nonetheless, the district court’s decision may be affirmed because section 110(f), like section 106, is only triggered when there has been an “adverse effect,” and that the section 106 “no adverse effect” finding (that we have already sustained) means that section 110(f) is inapplicable. Plaintiffs disagree. They point out that the heightened planning and consultation requirements of section 110 are triggered when an undertaking “may directly and adversely affect” a historic landmark. Plaintiffs urge that section 110(f) is triggered whenever there is a possible adverse effect, and that a no adverse effect finding is not the same as a finding that there is no possible adverse effect. We think the language of section 110(f) is ambiguous and that this ambiguity is not resolved by the legislative history speaking of the “higher standards” for compliance with section 110. That committee report language was not referring to a stricter standard for a section 110 adverse effect finding, but rather to the higher standard imposed once an adverse effect finding has been made. H.R.Rep. No. 1457, 96th Cong., 2d. Sess. 36-38, reprinted in U.S.C.C.A.N. 6378, 6399-6401 (“This section does not supercede Section 106, but complements it by setting a higher standard for agency planning in relationship to landmarks before the agency brings the matter to the Council.”). The ACHP’s regulations, to which we owe Chevron deference, require an adverse effect finding as a predicate to section 110(f)’s application. Section 800.10 of the regulations, which implements section 110(f), provides that “[w]hen commenting on [undertakings that may directly and adversely affect a National Landmark], the [ACHP] shall use the process set forth in §§ 800.6 through 800.7.” § 800.10(a). This process (set forth in §§ 800.6 through 800.7) repeatedly assumes that an adverse effect is present. Section 800.6 is titled “resolution of adverse effects” and contains no provision for the situation where an adverse effect is absent, while section 800.7 deals with “failure to resolve adverse effects.” In fact, during the section 106 review process, section 800.6 (“Resolution of Adverse Effects”) and 800.7 (“Failure to resolve adverse effects”) are triggered only after the agency finds that there is an adverse effect under section 800.5(d)(2). Logically, when the process of sections 800.6 and 800.7 is triggered by section 110(f), an adverse effect must be present because that process yields no result otherwise. Plaintiffs appear to urge that these regulations unreasonably interpret the statute to require a present effect, but in fact the regulations specifically contemplate situations in which an “adverse effect” finding may be based on future injury. Thus, for example, section 800.5(a)(1) provides that “[a]dverse effects may include reasonably foreseeable effects ... that may occur later in time.... ” Therefore, an agency’s “adverse effect” finding would also include the situation where there “may” be an adverse effect in the future. Construing section 110(f) to be triggered only upon a finding of adverse effect is therefore perfectly consistent with the use of the word “may” in section 110(f). Because we conclude section 110(f) is not implicated when there is no adverse effect, and the FTA properly concluded that the project would have no adverse effects, we reject plaintiffs’ argument that 110(f) was violated. III. Compliance with Section 4(f) Next, we turn to plaintiffs’ claim that the FTA’s approval of the Copley Station improvements violated section 4(f). Section 4(f), unlike sections 106 and 110(f), imposes a substantive mandate. 49 U.S.C. § 303(c) (2000). It imposes a dual requirement, providing that the Secretary of Transportation may approve a project “requiring the use of land of an historic site only if: (1) there is no prudent and feasible alternative to using that land; and (2) the project includes all possible planning to minimize harm to the ... historic site resulting from the use.” 49 U.S.C. § 303(c). The Supreme Court’s decision in Overton Park requires courts reviewing agency action under the APA for compliance with 4(f) to follow the traditional approach to review of administrative action. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citing 5 U.S.C. § 706(2)(A), (B), (C), (D) (1964 ed., Supp. V)). Plaintiffs argue that the FTA’s approval of the inbound and outbound elevator locations for the Copley Station project violates both sections 4(f)(1) and 4(f)(2). A. The Inbound Elevator 1. Section 4(f)(1) Plaintiffs first argue that the placement of the inbound elevator on the steps in front of the Library constitutes a direct “use” of an historic site for which there is a “prudent and feasible” alternative under section 4(f)(1). Since the defendants agree that the elevator “uses” the historic site, the only issue is whether there is a “prudent and feasible alternative.” In Overton Park, the Supreme Court drew a distinction between feasibility and prudence. A feasible alternative is one that can be built as a matter of sound engineering. 401 U.S. at 411, 91 S.Ct. 814; see also Druid Hills Civic Ass’n v. Federal Highway Admin., 772 F.2d 700, 715 (11th Cir.1985). Here, appellees do not contend that the alternative location, away from the library steps, could not be built. Rather, they maintain that that alternative is not “prudent.” It is well settled that an alternative is not prudent if it does not meet the transportation needs of a project. The transportation needs of the project include ADA compliance. The FTA determined that placing the handicap accessible elevator entrance 150 feet from the main entrance would create a segregated handicap entrance and violate ADA regulations. The FTA’s conclusion in this respect is not arbitrary or capricious. Guidelines promulgated under the ADA require that “accessible route[s] shall, to the maximum extent feasible, coincide with the route for the general public.” 49 C.F.R. pt. 37, app. A 4.3.2(1). With respect to “Key Stations” (such as Copley) “[t]he circulation path, including an accessible entrance and an accessible route, for persons with disabilities shall, to the maximum extent practicable, coincide with the circulation path for the general public.” 49 C.F.R. pt. 37, app. A 10.3.1(1), 10.3.2(2). These regulations respond to Congress’ concern that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2) (2000). While plaintiffs correctly point out that the regulations thus only require that the path coincide with that of the general public to the extent that this is “feasible” and “practicable,” we read those qualifications as directed only to engineering and cost considerations and not to concerns of historic preservation. Cf. Overton Park, 401 U.S. at 411, 91 S.Ct. 814. Rather, the ADA deals elsewhere with historic preservation issues, directing the Architectural and Transportation Barriers Compliance Board (“ATBCB”) to issue supplementary guidelines that include “procedures and requirements for alterations that will threaten or destroy the historic significance of qualified historic buildings and facilities as defined in 4.1.7(l)(a) of the Uniform Federal Accessibility Standards [“UFAS”].” 49 C.F.R. pt. 37, app. A, § 4.1.7. The ATBCB has adopted such guidelines, See 36 C.F.R. part 1191, app. B § 202.5. The DOT has adopted similar guidelines in the UFAS, section 4.1.7(a) of which provides that: [alterations to a qualified historic building or facility shall comply with [ADA accessibility requirements including the routing requirement] unless it is determined in accordance with the procedures in 4.1.7(2) that compliance with the requirements for accessibility routes ... would threaten or destroy the historic significance of the building or facility in which case the alternative requirements in 4.1.7(3) [providing for alternative “minimum requirements” for accessibility routes] may be used for the feature. Plaintiffs contend that placing the elevators on the side steps of the Library would “threaten or destroy” the historic significanee of the Boston Public Library. We need not in this case delineate the precise scope of the required “threaten or destroy” finding. It is sufficient for present purposes to conclude that a project that will not have an “adverse effect” under sections 106 and 110 cannot “threaten or destroy” the historic significance of the project for purposes of section 504 of the ADA. This is a situation in which the historic preservation statutes have spoken “more specifically to the topic at hand” than the ADA. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 121, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). There is no suggestion here, and it is indeed inconceivable, that the ADA was designed to be more protective of historical properties than the primary historical preservationist statutes themselves (sections 106 and 110). 2. Section 4(f)(2) We also reject plaintiffs’ contention that the FTA violated the requirement of section 4(f)(2) that it undertake “all possible planning to minimize harm to the ... historic site.... ” Although the language of 4(f) does not define the set of alternatives that must be considered when performing a 4(f)(2) balancing, we agree with our sister circuits that have held that an agency need only consider alternatives that are feasible and prudent. Here, as we have already discussed, plaintiffs have failed to establish that the agency failed to consider a prudent alternative to placing the inbound elevator on the Library steps (i.e. an alternative that would achieve ADA compliance). B. The Outbound Elevator We also reject plaintiffs’ argument that placement of the outbound elevator on the Church sidewalk triggers section 4(f). Section 4(f) is not triggered unless a project “uses” a historical site. Here, the parties appear to agree that the outbound elevator does not directly use a historic site. Plaintiffs nonetheless contend that placing the outbound elevator on the Church sidewalk constitutes a “constructive” use of an historic site. Under the regulations, a “constructive” use occurs if the impact of locating the project near the site is “so severe that the protected activities, features, or attributes that qualify [it] for protection under 4(f) are substantially impaired.” 23 C.F.R. § 771.135(p)(2). The regulations are ambiguous as to what constitutes a constructive use. However, the regulations provide that a constructive use does not occur when there is a finding of ‘no effect’ or ‘no adverse effect’ under section 106. 23 C.F.R § 771.135(p)(5)(i). Here, the FTA’s ‘no adverse effect’ finding related to the project as a whole, including the outbound elevator. In light of our conclusion that the “no adverse effect” finding was proper, the FTA’s finding that placement of the elevator on the Church sidewalk did not constitute a “use” of a historic site was not erroneous. IV. Compliance with State Law Finally, plaintiffs urge that the MBTA, in planning the Copley Station Project, violated Section 5(k) of Massachusetts General Law Chapter 161A. Subsection 5(k) directs the MBTA to issue regulations “necessary and appropriate to provide the following parties the timely opportunity to participate in the development of major transportation projects ... as defined by the directors.... ” Mass. Gen. Laws c. 161A, § 5(k). The relevant parties include “state, regional and local agencies and authorities affected by said projects ... [and] other public and private organizations, groups and persons who are affected by, and who have provided the board with reasonable notice of their desire to participate in the development of the design of [the] project.” Id. Although regulations have not been issued under the statute, we assume that the statute itself requires timely opportunity to participate. Although the MBTA urges that we decline to consider compliance with the Massachusetts statutes under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), we do not reach the immunity question. That question is not truly jurisdictional and thus need not be addressed before the merits of the state law claim. See Parella v. Retire ment Bd. of Rhode Island Employees’ Retirement System, 173 F.3d 46, 55 (1st Cir.1999) (holding that immunity is not a true restriction on Article III jurisdiction and therefore need not be addressed before the merits). Turning to the merits, we find no basis to conclude that the statutes were violated. The MBTA afforded public and private organizations the opportunity to comment and conducted several public meetings regarding the project. Furthermore, even assuming the plaintiffs had an individual right to participate and were “affected by” the project within the meaning of the statute, we agree with the district court that they were provided with sufficient opportunity to participate. The MBTA held a public meeting on July 21, 2003. Although the district court found that plaintiffs did not attend this meeting, the parties agree that they did. Plaintiff NABB also met with the MBTA twice more — once on August 5, 2003, when the design plans were 75 percent complete, and once on March 3, 2004, prior to final federal approval. The plaintiffs contend that the plan was essentially complete when they met with MBTA on August 5, 2003. The plan had by then reached the “75 percent” stage. But the record makes clear that the MBTA was still soliciting comments from the public at this stage, and final federal approval had not yet occurred. The July and August 5, 2003, meetings satisfy the statute’s requirement that the participation occur early enough to “permit comments to be considered prior to the final development of or commitment to any specific design for the project.” Mass. Gen. Laws c. 161A, § 5(k). We conclude that plaintiffs have failed to establish a violation of the Massachusetts statute. Similarly, we find no merit to plaintiffs’ contention that the federal regulations required earlier consultation with affected parties. See 36 C.F.R. § 800.1(a). CONCLUSION Having determined that neither the FTA nor the MBTA acted unlawfully, we conclude that the district court properly denied preliminary and final injunctive relief. For the foregoing reasons, we therefore affirm the district court’s judgment. Affirmed. . The regulations promulgated under section 106 provide that "[i]f the agency official proposes a finding of no adverse effect, the agency official shall notify all consulting parties [here including the MHC] ... [and] the [MHC] shall have 30 days from receipt to review the finding.” 36 C.F.R. § 800.5(c). If the MHC disagrees, further consultation is required. Id. at § 800(c)(2). . NEPA requires federal agencies to consider the environmental impacts of agency decisions. 42 U.S.C. §§ 4321-4370(e); 40 C.F.R. § 1500-1518 (2004). Federal agencies are required to prepare an Environmental Impact Statement ("EIS”) for any action that could significantly affect the quality of the human environment. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.27. Agencies file an Environmental Assessment ("EA”) in order to determine whether an EIS is required. 40 C.F.R. § 1501.4. If on the basis of the EA the agency determines an EIS is not required, the agency publishes a "Finding of No Significant Impact,” or "FONSI.” 40 C.F.R. § 1501.4(e). Here, the FTA prepared an EA and a FONSI. The FONSI found that "the proposed project will have no significant adverse impácts on the environment,” and thus that an EIS was not required. . In particular, the EA stated that option F (placing the inbound elevator 150 feet away from the existing entrance) was not "appropriate or feasible” because it created a segregated entrance for handicapped individuals, and would require the construction of a tunnel linking the passengers to the fare collection area, or the implementation of a "caged gate” system, which would require an MBTA station operator to periodically release batches of individuals from a caged area at the base of the elevator. The EA noted that eliminating the matching headhouse from option E increased the impact of the headhouse, but explained that retaining the headhouse was "infeasible from an engineering perspective." . See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 655-56, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (holding that the APA does not specifically require the agency to explain its decision when an informal adjudication is involved); Camp v. Pitts, 411 U.S. 138, 142 n. 3, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (holding that the APA’s requirement of a written explanation on the record applies only to adjudications required to be made on the record or to formal rulemaking). . Plaintiffs' argument that they should have been deemed consulting parties because they were interested in the project and that interest was well-known is also without merit. The regulations expressly require parties to make a written request to become consulting parties, and gives the agency and SHPO (here the MHC) the discretion to decide whether to grant the request. 36 C.F.R. § 800.3(c)(5). . Plaintiffs also point to various inaccurate statements in the 1995 Report. For example, the Report erroneously states that "the exi[s]ting steps will not be disturbed,” and that "option F locat[ed] the elevator in front of the Old Library.” Plaintiffs have not established that the FTA relied on these erroneous statements (which are contradicted elsewhere in the 1995 Report) in making its no adverse effect finding. . A recent amendment to section 4(f), dealing with projects whose "uses” of historic sites have only a de minimis impact on those sites, is not at issue in this case, because the 4(f) process in this case was concluded before the amendment’s adoption. See P.L. 109-59 (Aug. 10, 2005). . See also Valley Community Preservation Com'n v. Mineta, 373 F.3d 1078, 1084 (10th Cir.2004). . In one respect, there is a feasibility issue. Plaintiffs maintain that if the inbound elevator were to be placed on the library steps, creating a matching headhouse was a feasible and prudent alternative. The FTA's determination that the matching headhouse was not "feasible” because of engineering difficulties was not arbitrary and capricious. . City of Bridgeton v. FAA, 212 F.3d 448, 461 (8th Cir.2000) (an alternative "that does not effectuate the project's purposes is, by definition, unreasonable, and need not be evaluated in detail under 4(f)”); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 203 (D.C.Cir.1991); Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159, 164 (4th Cir.1990) (in approving highway project, Secretary may reject as imprudent alternatives that will' not solve or reduce existing traffic problems); Druid Hills, 772 F.2d at 715; Arizona Past & Future Found, v. Lewis, 722 F.2d 1423, 1428-29 (9th Cir.1983). . The FONSI explained that the "FTA did not consider this alternative to be prudent and feasible since it would not coincide with the circulation path of the general public [and thus would not comply with the ADA].” The attached Environmental Assessment, and the 1995 Report reached the same conclusion. . They also require that handicap entrances be situated to "minimize the distance which wheelchair users and other persons who cannot negotiate steps may have to travel compared to the general public.” 49 C.F.R. pt. 37, app. A, 10.3.1(1). . 49 C.F.R. pt. 37, app. A 4.3.2(1) ("accessible route[s] shall, to the maximum extent feasible, coincide with the route for the general public.”) (emphasis added); 49 C.F.R. pt. 37, app. A 10.3.1(1), 10.3.2(2) ("[t]he circulation path, including an accessible entrance and an accessible route, for persons with disabilities shall, to the maximum extent practicable, coincide with the circulation path for the general public.”) (emphasis added). . Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 702 (3d Cir.1999) (holding that a " 'feasible and prudent' determination [should be applied] to the world of alternatives that must be considered under 4(f)(2),” and that "the Secretary must consider every 'feasible and prudent alternative’ that uses historically significant land when deciding which alternative will minimize harm, but that the Secretary has slightly greater leeway' — compared to a 4(f)(1) inquiry — in using its expertise as a federal agency to decide what the world of feasible and prudent alternatives should be under 4(f)(2)”); Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir.1990) (acknowledging that 4(f)(2) contains an implied "feasible and prudent” test); Druid Hills, 772. F.2d at 716 (same); Louisiana Envtl. Soc’y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir.1976) (same); see also City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th Cir.2000) ("In reviewing an agency's choice among feasible and prudent alternatives [in its 4(f)(2) analysis], we again apply the arbitrary and capricious standard of review.”). . Plaintiffs also argue that the FTA should have considered the MBXA's implementation of Charlie Fare cards, which resulted in the elimination of automatic fare booths and, plaintiffs claim, could have allowed the elevator to deliver passengers directly onto the platform if option F had been implemented. We see no error in the FXA's failure to reopen proceedings to consider an alternative first suggested months after the review process was completed. . Plaintiffs' Motion for Injunction Pending Appeal is denied. FTA's Motion to Modify the Record, MBTA’s Motion to Supplement the Record, and related motions are denied.

Business & Residents Alliance v. Jackson

KATZMANN, Circuit Judge. The New York City Empowerment Zone was created pursuant to a Congressional act and was awarded $100 million in federal block grants to foster the revitalization of economically distressed areas. This case raises an issue of first impression: whether the Zone’s subsequent use of those federal funds in connection with individual projects triggers the historic preservation review process set forth in Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. The plaintiffs argue that it does, and therefore contend that construction of the East River Plaza project, a planned East Harlem retail shopping complex to which the Zone has allocated $5 million from the previously-awarded federal block grants, cannot go forward until a Section 106 review of the project is conducted. We hold that because all approval and funding decisions as to the East River Plaza project are made at the state and local level, Section 106 — which is triggered only when a federal agency has jurisdiction or licensing authority over the project at issue — is inapplicable here. We therefore affirm the district court’s grant of summary judgment to the defendants. I. A. 1. The New York City Empowerment Zone: Statutory and Administrative Background In the Omnibus Budget Reconciliation Act of 1993 (“OMBRA”), Pub.L. No. 103-66,107 Stat. 312 (1993), Congress provided for the creation of empowerment zones and enterprise communities to promote the “[rjevitalization of economically distressed areas through expanded business and employment opportunities.” H.R.Rep. No. 103-111, at 791 (1993), as reprinted in 1993 U.S.C.C.A.N. 378, 1021. As part of the OMBRA, Congress authorized the United States Department of Housing and Urban Development (“HUD”) to designate up to six urban empowerment zones that would each receive various tax incentives as well as up to $100 million in federal block grant funds from the United States Department of Health and Human Services (“HHS”) to stimulate economic and social renewal. Pub.L. No. 103-66 § 13761; 42 U.S.C. § 1397f; 60 Fed.Reg. 3034-01, at 3034. Congress further provided that local governments could nominate areas for empowerment zone status, and required any application for an empowerment zone to include a “strategic plan” that (A) describes the coordinated economic, human, community, and physical development plan and related activities proposed for the nominated area, (B) describes the process by which the affected community is a full partner in the process of developing and implementing the plan and the extent to which local institutions and organizations have contributed to the planning process, (C) identifies the amount of State, local, and private resources that will be available in the nominated area and the private/public partnerships to be used, which may include participation, by, and cooperation with, universities, medical centers, and other private and public entities, (D) identifies the funding requested under any Federal program in support of the proposed economic, human, community, and physical development and related activities, (E) identifies baselines, methods, and benchmarks for measuring the success of carrying out the strategic plan, including the extent to which poor persons and families will be empowered to become economically self-sufficient, and (F) does not include any action to assist any establishment in relocating from one area outside the nominated area to the nominated area, except that assistance for the expansion of an existing business entity through the establishment of a new branch, affiliate, or subsidiary is permitted if- (i) the establishment of', the new branch, affiliate, or subsidiary will not result in a decrease in employment in the area of original location or in any other area where the existing business entity conducts business operations, and (ii) there is no reason to believe.that the new branch, affiliate or subsidiary is being established with the intention of closing down the operations of the existing business entity in the area of its original location or in any other area where the existing business entity conducts business operationfs]. 26 U.S.C. § 1391(f)(2). Pursuant to this- application process, HUD designated the New York City Empowerment Zone — an area comprising certain sections of Upper Manhattan and the South Bronx — as one of the six initial urban empowerment zones. HHS, in turn, proceeded to make two $50 million grants, one in 1994 and, one in 1995, to the New York City Empowerment Zone. These grants were issued to entities that subsequently became known as the Empire State Development Corporation (“ESDC”), a New York State agency. The $100 million remains in an HHS “draw-down” account, from which ESDC can withdraw funds without advising HHS of the specific purpose for which the funds will be used. New York State and New York City also each pledged an additional $100 million to the New York City Empowerment Zone, to be paid over a ten-year period. Thus, the Zone ended up with a total investment pool of $300 million, drawn, equally from the federal, state, and city governments. Several local entities were created to manage the operation and funding of the Zone. The ESDC created the New York Empowerment Zone Corporation (“NYEZC”), which is charged with reviewing and monitoring the empowerment zone program. New York State holds 51% of the stock of NYEZC, and New York City holds the other 49%. In addition, the residents of Upper Manhattan created the Upper Manhattan Empowerment Zone Development Corporation (“UMEZDC”) to develop initiatives for, and administer funds to, their portion of the Zone. The Bronx Overall Economic Development Corporation (“BOEDC”) was similarly created for the South Bronx. Representatives from UMEZDC and BOEDC sit on the board of directors of the NYEZC, along with state and city representatives. In addition, an HUD representative participated as a non-voting director of the NYEZC until 2002, at which point HUD discontinued its participation. Two memoranda serve to document and clarify the relationships among the various entities described above. First, a Memorandum of Agreement among HUD, New York State, and New York City provides that the State and City shall submit semiannual reports and annual narrative summaries to HUD regarding actions taken in accordance with the strategic plan for the New York City Empowerment Zone, and that HUD shall make periodic findings on the continuing eligibility and validity of the designation of the Zone. It further provides that HUD may revoke the “empowerment zone” designation if it is determined that the Zone has (1) modified the boundaries of the area; (2) failed to make progress in achieving the benchmarks and goals of the Strategic Plan; or (3) not complied substantially with the goals of the Strategic Plan. This de-designation provision closely tracks the statutory language of 26 U.S.C. § 1391, which provides that designation of an empowerment zone can be revoked by HUD upon a determination that the state or local government “(A) has modified the boundaries of the area, or (B) is not complying substantially with, or fails to make progress in achieving the benchmarks set forth in, the strategic plan.” 26 U.S.C. § 1391(d)(2). . Second, a Memorandum of Understanding among New York State, New York City, the ESDC, NYEZC, UMEZDC, BOEDC, the Bronx Borough President, and the United States Representatives for the 15th and 16th Congressional Districts provides that the local entities — namely, UMEZDC and BOEDC — will select and develop project proposals for their respective regions of the Zone, and will then submit these proposals to NYEZC for approval. It further provides that when such projects are approved to receive Zone funding, ESDC is responsible for disbursing the appropriate federal block grant funds and the New York State-provided funds to NYEZC, and that the New York City Department of Business Services is responsible for disbursing the appropriate city funds to the NYEZC. NYEZC is then, in turn, to disburse such funds to UMEZDC or BOEDC, as applicable. 2. The East River Plaza project In 1996, defendant-appellee Tiago Holdings, LLC (“Tiago”), a real estate developer, proposed a large shopping center development project — to be known as East River Plaza^ — in East Harlem, a neighborhood that falls within the boundaries of the New York City Empowerment Zone and within the region covered by UMEZDC. The plans for East River Plaza called for a 500,000 square foot, four-story retail shopping complex, located between 116th and 119th Streets along the Franklin Delano Roosevelt Drive. At the time, the present occupant of that site was the vacant Wash-burn Wire Factory, which had been constructed during the early 1900s by descendants of Ichabod Washburn (an inventor of early wire production processes) and had ceased operations as of 1976. Tiago’s proposed plans for the East River Plaza required a demolition of the Washburn Wire Factory buildings. In connection with these plans, the New York State Office of Parks, Recreation and Historic Preservation conducted a historic resource review, and determined that the Washburn Wire Factory did not meet the criteria for inclusion in the National Register of Historic Places and that the East River Plaza project would have no impact on surrounding sites that might be eligible for inclusion in the National Register. The National Park Service of the United States Department of the Interior subsequently reviewed and affirmed New York State’s decision not to nominate the Washburn Wire Factory to the National Register. Tiago projected the cost of the East River Plaza project to be $160 million, and requested $15 million in loans from UMEZDC for the project. On September 10, 2001, the UMEZDC staff issued a written recommendation that this loan be granted, noting that East River Plaza was likely to enhance the physical revitalization of East Harlem, to spread new development activity eastward to East Harlem, and to create approximately 1,400 full-time jobs. On October 22, 2001, the Board of Directors of UMEZDC voted in favor of Tiago’s request for $15 million in financing, and authorized UMEZDC to submit the project to the NYEZC for funding approval. On November 16, 2001, NYEZC’s Board of Directors voted to approve the requested $15 million loan — projected to come equally from city funds, state funds, and the previously-awarded federal block grants, as is the NYEZC’s typical practice — in funding for East River Plaza. Thus, a total of $5 million in federal block grant money was slated for the project. On February 10, 2003, after the demolition of the Washburn Wire Factory began, one of the plaintiffs in this action contacted the president of UMEZDC to request that in light of the planned allocation of federal funds to the East River Plaza project, a historic preservation review pursuant to Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, be conducted for the project. It is undisputed, however, that no Section 106 review took place. B. The plaintiffs proceeded to file suit under Section 106 of the NHPA, seeking (1) a declaratory judgment that HUD and HHS were obliged to conduct a historic preservation review of the East River Plaza project pursuant to Section 106, given the planned use of $5 million in federal funds for the project; (2) an injunction enjoining NYEZC, UMEZDC, and Tiago from continuing with the demolition of the Washburn Wire Factory until a Section 106 review had been completed; and (3) legal fees and costs. The defendants opposed the plaintiffs’ motion for a preliminary injunction and filed a cross-motion to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By Memorandum and Order dated August 19, 2003, the district court denied plaintiffs’ motion for a preliminary injunction, finding that they had demonstrated neither a likelihood of success on the merits nor irreparable harm. After the issuance of this order, the remaining sections of the Washburn Wire Factory were demolished. On June 11, 2004, the district court issued a Memorandum and Order converting the defendants’ motion to dismiss into a motion for summary judgment, and granting the defendants’ motion on grounds that despite the likely usage of $5 million in federal block grant funds for the East River Plaza project, there was insufficient federal involvement or control over the project to trigger review under Section 106. This appeal followed. II. A. At the outset, we note the applicable standard of review. We review a grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party. See, e.g., Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.2004). Where, as here, no disputed issues of material fact exist, “our task is to determine whether the district court correctly applied the law.” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995) (internal quotation marks omitted). B. Before evaluating the merits of the plaintiffs’ claim under Section 106 of the NHPA, we pause to note that both the parties and the district court assumed that the NHPA provides the plaintiffs with a private right of action in this case. This Circuit has not yet addressed that issue, but because this is a statutory question rather than one of Article III jurisdiction, we need not resolve it where the case can otherwise be resolved in the defendants’ favor. See, e.g., Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 n. 4 (1st Cir.2003) (similarly declining to reach the question of whether a private right of action exists under the NHPA). For the reasons set forth below, we conclude that the case can be so resolved, and thus assume, without deciding, that the plaintiffs were entitled to bring this action pursuant to Section 106 of the NHPA. The NHPA, which was passed in 1966, has a fairly broad mandate, in keeping with the longstanding Congressional interest in historic preservation. See WATCH v. Harris, 603 F.2d 310, 320-26 (2d Cir. 1979). It “requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation.. .to administer the Act.” Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (internal quotation marks omitted). In this regard, Section 106 of the NHPA provides that The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. Section 106 is therefore primarily procedural in nature. See, e.g., Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278-79 (3d Cir.1983). It does not itself require a particular outcome, but rather ensures that the relevant federal agency will, before approving funds or granting a license to the undertaking at issue, consider the potential impact of that undertaking on surrounding historic places. As such, courts have sometimes referred to Section 106 as a “stop, look, and listen” provision. See, e.g., Illinois Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988); Pres. Coalition, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982). The plaintiffs argue that the planned allocation of $5 million in federal funds to the East River Plaza project automatically triggers a Section 106 review of the project. They point out that Section 301 of the NHPA defines an “undertaking” as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including. . .those carried out with Federal financial assistance.” 16 U.S.C. § 470w(7)(B). They contend that as a result, the East River Plaza project must be an undertaking for purposes of the NHPA. We note initially that under the definition set forth in Section 301, it is not entirely clear whether all projects carried out with federal financial assistance are “undertakings,” or whether only those projects that actually receive their funding “under the direct or indirect jurisdiction of a Federal agency” qualify as undertakings. Cf. Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 755 (D.C.Cir. 1995) (noting a similar ambiguity with respect to projects that require federal licenses). The definition of “undertaking” contained in the most recent NHPA regulations promulgated by the ACHP mirrors the definition set forth in Section 301, and thus does not clarify this issue. See 36 C.F.R. § 800.16(y) (defining “undertaking” as a “project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including.. .those carried out with Federal financial assistance”). It is, however, unnecessary for us to reach this question. Even assuming that the East River Plaza is an “undertaking” under the Section 301 of the NHPA solely by virtue of its planned receipt of federal block grant funds, Section 106 itself still applies only to two types of entities: first, any Federal agency “having direct or indirect. jurisdiction over a proposed Federal or federally assisted undertaking,” and second, “any Federal department or independent agency having authority to license any undertaking.” See Sheridan Kalorama, 49 F.3d at 755 (“[Hjowever broadly the Congress or the ACHP define ‘undertaking,’ § 106 applies only to: 1) ‘any Federal agency having. . .jurisdiction over a proposed Federal or federally assisted undertaking’; and 2) ‘any Federal... agency having authority to license any undertaking’ ” (quoting 16 U.S.C. § 470f)); see also Fowler, 324 F.3d at 759-60. Thus, unless either of the federal agency defendants — HUD and HHS — can be said to have jurisdiction or licensing authority over the East River Plaza project, Section 106 is inapplicable to the project. The plaintiffs have not attempted to claim that either HUD or HHS has the authority to license the East River Plaza project. Rather, the critical question is whether the project can be viewed as falling within the direct or indirect jurisdiction of HUD or HHS, given the project’s planned receipt of $5 million in federal funds. That question, in turn, requires us to determine the meaning of “direct or indirect jurisdiction.” The NHPA nowhere explicitly defines the phrase “direct or indirect jurisdiction.” Nor do the regulations that have been promulgated by the ACHP. See 36 C.F.R. § 800 et. seq. The text of Section 106 itself, however, provides an important clue as to the meaning of these words. In stating that “[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any state... shall, prior to the approval of the expenditure of any Federal funds on the undertaking .. .take into account the effect of the undertaking,” 16 U.S.C. § 470f (emphasis added), the text indicates that to have a qualifying level of jurisdiction over the undertaking, the federal agency must have some degree of power to approve or otherwise control the expenditure of federal funds on that undertaking. Indeed, the evident purpose of Section 106 is to ensure that before federal funds are expended on an undertaking, the federal agency has taken into account the undertaking’s potential impact on surrounding historic resources. See, e.g., Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989) (“[A]n agency with jurisdiction over a federal or federally-assisted project must comply [with Section 106] before approving funds for it”) (emphasis added); Sheridan Kalorama, 49 F.3d at 755-756. If the federal agency has no direct or indirect power to effectuate the results of the Section 106 review by making a resultant funding decision, then such a review will be merely an empty exercise. Here, based on a review of the particular statutory and administrative structure at issue, we conclude that neither HUD nor HHS has the power to control the expenditure of the federal block grant monies on the East River Plaza project. It is undisputed that HUD and HHS played no role in deciding to approve the total allocation of $15 million in NYEZC funds (including $5 million from the federal block grants) to the project. Rather, as set forth above, it was the staff of UMEZDC — the local development company for the Upper Manhattan portion of the New York City Empowerment Zone— that initially recommended the financing in question, after which point the UMEZDC Board of Directors voted to approve that funding. Thereafter, the proposal was submitted to the NYEZC, a corporation whose stock is held solely by New York City and New York State, for final approval. As such, the process by which these funds were allocated took place entirely at the state and local level. Indeed, the HUD officer with responsibility for the New York City Empowerment Zone during the relevant period submitted a sworn affidavit stating that HUD played no role in allocating or approving funds for the East River Plaza project, and that its involvement was limited solely to reviewing the project for compliance with the Zone’s overall strategic plan. HUD’s lack of participation in the funding process is fully consistent with the Memorandum of Agreement between HUD, New York State, and New York City, which does not provide HUD with such authority. Nor does HUD or HHS have the ability to block ESDC from proceeding to withdraw the $5 million in question from the HHS draw-down account that contains the federal block grants awarded to the New York City Empowerment Zone. This is underscored by the fact that, as set forth in the sworn affidavit of an HHS officer who has worked with empowerment zones since 1993, ESDC is not even required to notify HHS of the purpose for which it draws down funds from these block grants. Indeed, it is undisputed that no federal agency has the ability to specifically block the expenditure of $5 million in federal funds for the East River Plaza project. The plaintiffs suggest, however, that HUD still retains ultimate power over the $5 million in question — and therefore jurisdiction over the East River Plaza project— because of its ability to revoke the entire empowerment zone designation, and thereby take back the total remaining amount from the previously-awarded block grants. This argument cannot prevail because its underlying factual premise is inaccurate. It is certainly true that HUD has the power to revoke the empowerment zone designation altogether. But pursuant to both 26 U.S.C. § 1391(d)(2) and the Memorandum of Agreement among HUD, New York State, and New York City, HUD’s power to de-designate the New York City Empowerment Zone is very limited. It can do so only upon determining that (1) either the state or local government has modified the Zone’s boundaries; (2) either the state or local government is not complying substantially with the Zone’s strategic plan; or (3) either the state or local government has failed to make progress in achieving the benchmarks set forth in the Zone’s strategic plan. None of these findings could be triggered by the results of a Section 106 review of the East River Plaza project, even if such a review concluded — contrary to the previous determination of New York State Office of Parks, Recreation, and Historic Preservation — that the East River Plaza project was likely to have a negative impact on surrounding historic resources. Such a finding would plainly have no bearing on whether Zone’s boundaries had been modified. More importantly, such a finding would likewise be irrelevant to an assessment of the Zone’s level of compliance and progress with its strategic plan. As detailed in 26 U.S.C. § 1391(f), an empowerment zone’s strategic plan addresses issues such as the involvement of local institutions and the community in the development of the geographic area, the extent to which poor individuals and family individuals will be empowered to become economically self-sufficient as a result of such development, and the like. The plaintiffs do not contend, and the record includes no evidence indicating, that the East River Plaza project itself has deviated from these considerations, let alone that the New York City Empowerment Zone as a whole has done so. On the contrary, the record indicates that funding for the East River Plaza project was approved by the relevant local and state organizations precisely because of the project’s potential to create numerous jobs in the community and to promote the physical revitalization of East Harlem. It is likely for this reason that, when engaging in its limited review of the project for compliance with the Zone’s strategic plan, HUD made no finding that the project was in any way inconsistent with that plan. The plaintiffs have not shown how any result from a Section 106 review of the East River Plaza project — a review that would exclusively assess the project’s likely impact on surrounding historic resources, a factor not included in the Congressional list of considerations relevant to an empowerment zone’s strategic plan, see 26 U.S.C. § 1391(f) — could bring about the de-designation of the entire New York City Empowerment Zone. We thus reject the argument that either HUD or HHS has sufficient jurisdiction over the East River Plaza project to trigger a Section 106 review of the project. The plaintiffs alternatively argue that even if this Court finds that HUD and HHS lack sufficient jurisdiction over the project to trigger a Section 106 review, we should still deem such a review to be required under the regulations governing HHS block grants. They point out that under 45 C.F.R. § 96.30(a), the states must, “[ejxcept where otherwise required by Federal law or regulation,.. obligate and expend block grant funds in accordance with the laws and procedures applicable to the obligation and expenditure of its own funds” (emphasis added), and that when states in turn award at least $300,000 of such moneys to subgrantees, they are required under 45 C.F.R. § 96.31(b)(2) to ensure that the subgrantees are expending the funds in accordance with “applicable laws and regulations.” The plaintiffs contend that pursuant to these regulations, NYEZC and UMEZDC — in allocating $5 million in federal funds to the East River Plaza project — must themselves ensure that these moneys are expended in accordance with federal law, and that this obligation necessarily includes subjecting the project to the Section 106 review process. This argument, however, assumes its conclusion: that a Section 106 review of this project is in fact required by federal law (namely, the NHPA). For the reasons set forth above, we have concluded that no federal agency has jurisdiction over the East River Plaza project, and that Section 106 of the NHPA is therefore inapplicable to the project. Therefore, it does not violate federal law for a Section 106 review of this project not to occur. Cf. Lee v. Thornburgh, 877 F.2d at 1057-58 (holding that because Section 106 applies only to federal agencies, it does not apply where Congress has appropriated federal funds directly). Accordingly, we are unpersuaded by the plaintiffs’ argument that these regulations somehow independently mandate a Section 106 review in the absence of a federal agency with jurisdiction over the project. Finally, we note that our conclusion that Section 106 is inapplicable here is shared by the ACHP, the agency that is itself charged with overseeing the Section 106 review process. In its letter-brief to this Court, the ACHP concluded that an urban empowerment zone’s use of federal block grant funds in connection with individual projects does not trigger the requirements of Section 106, on the grounds that once an empowerment zone has been created and has received federal block grants, there is no federal involvement in the funding decisions for individual projects within the zone. This assessment — an agency opinion letter to which we owe respect under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) to the extent that it has the power to persuade, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) — accords with and provides further support for our conclusion. III. For the foregoing reasons, we hereby affirm the judgment of the district court granting summary judgment to the defendants. . That estimate has since risen to at least $200 million. . By the time the plaintiffs filed their suit, approximately 65% to 85% of the Factory had already been demolished. . The district court's conversion of the motion into one for summary judgment was done on the basis that all parties had submitted and relied upon extensive materials outside of the Complaint. Neither side has challenged this conversion on appeal and we therefore do not address it here. . In connection with the appeal, this Court requested and received a letter-brief from the Advisory Council on Historic Preservation (“ACHP”)-the agency that "issues regulations to implement section 106, provides guidance and advice on the application of the procedures of this part, and generally oversees the operation of the section 106 process,” 36 C.F.R. § 800.2(b)-on the issue of whether an urban empowerment zone’s use of block grant funds triggers a Section 106 review. We discuss this letter-brief infra. . The Ninth Circuit recently held that Section 106 of the NHPA does not give rise to a private right of action and that such challenges must instead be brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et. seq. San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir.2005). . For unspecified reasons, although UMEZDC voted in favor of the $15 million loan to the East River Plaza project in October of 2001, and the NYEZC approved that loan one month letter, the loan still had not closed as of March 15, 2004. On that date, therefore, the UMEZDC Boarcbof Directors formally rescinded the commitment to make the loan. Accordingly, at present no Zone funds are officially committed to the project. At oral argument, however, counsel for UMEZDC advised this Court that UMEZDC was likely to re-approve the $15 million loan in question in the very near future, and that the loan may well again .be divided equally among federal, state, and city funds, such that $5 million in federal funds will again be slated to the project. This Court thus proceeds to address this issue on the merits. . As of August 2003, approximately $57 million was estimated to remain in this draw-down account. . In this letter-brief, the ACHP thus expressly rejected the conclusory statement contained in an earlier letter by an ACHP director to one of the plaintiffs that "the Empowerment Zone Program administered by [HUD] is subject to review under Section 106 since the use of Federal funds facilitates redevelopment activities.” We share the ACHP's conclusion that this earlier letter lacked a sufficient level of explanation or analysis to warrant deference.

Preservation Coalition v. Federal Transit Administration

WINTER, Circuit Judge: The Federal Transit Administration (“FTA”), Niagara Frontier Transit Authority (“NFTA”), and New York State Urban Development Corporation, doing business as the Empire State Development Corporation (“ESDC”), appeal from Judge Skretny’s award of attorneys’ fees to ap-pellee as a prevailing party under the National Historic Preservation Act (“NHPA”). We reverse the award against the NFTA and the ESDC because the NHPA does not apply to them. We hold that the FTA is subject to an award of fees under the NHPA but remand for a recalculation of the award to limit it to work expended in obtaining the court-ordered Supplemental Environmental Impact Statement (“SEIS”). BACKGROUND The full factual and procedural background to this case is set forth in the district court’s prior decisions, Preservation Coalition v. FTA, 129 F.Supp.2d 538, and 129 F.Supp.2d 551 (W.D.N.Y.2000). We outline here those facts relevant to a resolution of the issues on the present appeal. a) The Project Appellants FTA, NFTA and ESDC were responsible for a development styled the Inner Harbor Project. The Project involved an area on Buffalo’s waterfront that included the terminus of the historic Erie Canal. As participants in a joint federal-state project, some or all of the appellants were required under various federal and state laws to consider.the Project’s impact on historic resources and to implement plans to mitigate any harm to those resources. The ESDC was the “lead agency” for environmental and historical review of the project. See Preservation Coalition, 129 F.Supp.2d at 541. However, the FTA, although in many ways a passive participant in the Project, was responsible for federal oversight and for the Project’s compliance with all relevant federal regulations. See, e.g., 16 U.S.C. § 470f (the NHPA requires that “[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”). The pertinent statutes are the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., the National Historic Preservation Act, 16 U.S.C. § 470, et seq., and Section 4(f) of the Transportation Act, 49 U.S.C. § 303(c). NEPA mandates that federal agencies “use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... preserve important historic, cultural, and natural aspects of our national heritage.” 42 U.S.C. § 4331(b)(4). The regulations implementing the NHPA require agencies involved in projects such as the present one to consult with state historic preservation officers (“SHPOs”), make reasonable and good faith efforts to identify historic properties, determine their eligibility for listing in the National Register of Historic Places, and assess the effects of a project on such properties. This consultation process is commonly referred to as the “Section 106” process after Section 106 of the NHPA. See 16 U.S.C. § 470f. Under regulations implementing Section 4(f) of the Transportation Act of 1966, a transportation project that impacts a historic site cannot be undertaken unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. See 23 C.F.R. § 771.135(a)(1). Under the so-called “archeological exception” to Section 4(f), these restrictions do not apply if the “archeological resource is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place.” 23 C.F.R. § 771.135(g)(2). Consultation with the SHPO is also required as part of the Section 4(f) process. See 23 C.F.R. § 771.135(e). Because appellants were aware that the Inner Harbor Project might impact historic resources, an archeological exploration of the site was commissioned to determine the likely extent of such resources. Preservation Coalition, 129 F.Supp.2d at 557. On December 18, 1998, following the completion of Stage II excavations of the Inner Harbor Project site, the Field Services Bureau of the State Office of Parks and Recreation and Historic Preservation (which serves as New York’s SHPO) concluded that the Inner Harbor Project would have “no adverse effect” on any historic structures. The SHPO’s finding of “no adverse effect” was premised in part on its conclusion that the Section 4(f) “archeology exception” applied to historic resources at the project site. 129 F.Supp.2d at 558. Significantly, the SHPO qualified its conclusions upon the yet-to-be-learned results of upcoming Stage III excavations. Id. While the Stage III excavations continued, appellants issued a Final Environmental Impact Statement (“FEIS”) for the Inner Harbor Project in February, 1999, and a Record of Decision (“ROD”) — the final document in the administrative process- — was issued on June 22,1999. The present dispute arose in May, 1999, after the issuance of the FEIS, when excavators discovered “a roughly eight foot section of the eastern portion of the Commercial Slip [Wjall [of the Erie Canal terminus] as rebuilt in the 1880s.” Id. at 559. On May 18, 1999, the SHPO informed the ESDC that the Commercial Slip Wall met the criteria for listing in the National Register of Historic Places, and on August 6, 1999, the SHPO informed the ESDC that it would not be feasible to preserve the Wall in an exposed condition. As an alternative to exposed preservation, the SHPO recommended that the ESDC conduct a detailed documentation of the Wall, rebury it, and provide appropriate historical interpretation of the Wall through marking and signage in the project design. On October 6,1999, appellee brought the present complaint, asserting claims under the NHPA, NEPA, and Section 4(f) of the Transportation Act. The complaint alleged that construction at the Inner Harbor Project site threatened the historic Commercial Slip Wall of the Erie Canal terminus and that appellants had violated various federal and state laws requiring both consideration of the impact of the Inner Harbor Project on historic resources and planning to mitigate harm to those resources. One of appellee’s principal claims was that the FEIS prepared by the appellants in February, 1999 was inadequate because it self-evidently failed to account for the subsequently discovered historic Commercial Slip Wall in May, 1999. See Compl. ¶¶ 33, 34, at 8. Appellee sought an injunction against appellants from further construction until they had fully complied with various environmental and historic preservation laws and regulations, including the NEPA, NHPA and Section 4(f) with regard to the Commercial Slip Wall, and a writ of mandamus requiring appellants to prepare an EIS or SEIS satisfying the requirements of these statutes. See Compl. 1HIE, F, at 11-12. Although the district court declined to issue an injunction, it found the FEIS inadequate and, on March 31, 2000, ordered appellants to prepare a SEIS to address the issues raised by the discovery of the Commercial Slip Wall. See Preservation Coalition, 129 F.Supp.2d at 576-77; see also id. at 570 (“This court finds that subsequent developments implicated ... significant issues in a way that was not adequately addressed in the FEIS.”). The district court also threatened appellants with an injunction if the SEIS was not prepared expeditiously. Id. at 577. About three months after the district court’s ruling and after publication of a draft SEIS- — a final SEIS was never issued — appellants agreed to halt all work at the Inner Harbor Project site for sixty days to consider revisions to the Project in line with the appellee’s concerns. Six months later, on December 14, 2000, the parties appeared before the district court with a settlement agreement embodied in a proposed Stipulation and Order. The Stipulation reflected an agreement among the parties that the Inner Harbor Project should include the Commercial Slip Wall and other historic structures. The Order, signed by Judge Skretny, dismissed appellee’s claims with prejudice and vacated the district court’s prior orders. However, the Stipulation obligated appellants to start the environmental and historical review process from scratch, including compliance with the relevant statutes. Appellants therefore had to produce a new FEIS for the Project, while appellee retained the right to bring new claims if it determined that the new FEIS violated federal law. The new FEIS would not, however, be subject to the timetable set out by the district court in its prior orders, because the Order had vacated them. The last provision of the Stipulation and Order addressed the question of costs and attorneys’ fees: STIPULATED AND AGREED that the plaintiff [i.e., appellee] shall submit its request for attorney’s fees and costs pursuant to the National Historic Preservation Act, 16 U.S.C. § 470(w)-4 to the Court by motion within 30 days after the entry of this Stipulation and Order and defendants shall respond thereto in accordance with a scheduling order to be issued by the Court. Preservation Coalition v. FTA, No. 99-CV-745S, slip op. at 2-3 (W.D.N.Y. Dec. 18, 1999) (Stipulation and Order of Discontinuance and Dismissal). The district court, over the objections of appellants, initially awarded appellee $118,031 in attorneys’ fees and a total of $6,470.62 in costs. See Preservation Coalition v. FTA No. 99-CV-745S, slip op. at 21 (W.D.N.Y. June 13, 2001) (Decision and Order). In subsequent rulings, the district court awarded appellee additional fees and costs in the amount of $42,291.79, see Preservation Coalition v. FTA, No. 99-CV-745S, slip op. at 10 (W.D.N.Y. Feb. 28, 2002) (Decision and Order), and found that appellants were jointly and severally liable for the fees and costs awarded to appellee, see Preservation Coalition v. FTA No. 99-CV-745S, slip op. at 10 (W.D.N.Y. May 28, 2002) (Decision and Order). This appeal followed. DISCUSSION Appellants argue on appeal that appellee cannot recover attorneys’ fees and costs because it is not a “prevailing party” as defined by the Supreme Court in Buckliannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 603-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Appellants also argue that even if we were to determine that appellee had “substantially prevailed,” it could not recover under the NHPA because the relief awarded — a court-ordered SEIS — is relief available exclusively under the NEPA, not NHPA. Thus, appellants contend, if appellee is entitled to fees, it must seek them under the Equal Access to Justice Act (“EAJA”). See 28 U.S.C. § 2412. NFTA and ESDC argue in addition that they cannot be liable for attorneys’ fees under the NHPA because they are not federal agencies. Appellee counters that the court-ordered SEIS satisfies Buclchannon because it worked a judicially sanctioned change in the legal relationship of the parties and that the award of fees under the NHPA was appropriate because the issues to be addressed in the SEIS were related wholly to the NHPA. See Preservation Coalition, 129 F.Supp.2d at 577 (requiring SEIS to address four issues related to the Commercial Slip Wall as well as the Coalition’s proposals to incorporate the Wall into final Project); see also Preservation Coalition, No. 99-CV-745S, slip op. at 7-8 (W.D.N.Y. June 13, 2001) (Decision and Order) (“Preservation Coalition brought the present Action to enforce the provisions of NHPA. It invoked NEPA and § 4(f) as [a] means of insuring that Defendants adequately consider the impact of the Inner Harbor Project on resources that it alleged were protected under NHPA ... To hold that Plaintiff is not entitled to attorney fees under [NHPA] because it prevailed on a claim under NEPA rather than a claim directly under NHPA would elevate form over substance. This case was not about water or air quality, noise pollution, traffic congestion or any of the multifarious components of the environment that NEPA is meant to protect. It was about historic resources.”). Appellee also argues that the NFTA and ESDC can be liable under the NHPA as non-federal actors because the fee-shifting provisions of federal statutes reach non-federal actors who are found to have violated federal law. “[W]e review a trial court’s decision whether to award attorneys’ fees to a prevailing party, and in what amount, under an abuse of discretion standard.” Cassuto v. Comm’r of Internal Revenue, 936 F.2d 736, 740 (2d Cir.1991) (citations omitted). “However, where an appellant’s contention on appeal regarding an award of attorneys’ fees is that the district court made an error of law in granting or denying such an award, the district court’s rulings of law are reviewed de novo.” Baker v. Health Mgmt. Sys., 264 F.3d 144, 149 (2d Cir.2001) (citation omitted); see also Christina A. v. Bloomberg, 315 F.3d 990, 992 (8th Cir.2003) (reviewing de novo “the legal question of whether a litigant is a prevailing party” (quoting Jenkins v. Missouri, 127 F.3d 709, 713 (8th Cir.1997))). a) “Prevailing Party” Status Under Buck-hannon The NHPA authorizes awards of attorneys’ fees, expert witness fees, and other costs to any person who “substantially prevails” in an action to enforce the provisions of the NHPA. 16 U.S.C. § 470w — 4. When Preservation Coalition brought this action, whether a plaintiff was a “prevailing party” or had “substantially prevailed” turned in this Circuit upon application of the so-called “catalyst theory” of recovery. See Union of Needletrades, Indus. & Textile Employees (UNITE) v. U.S. INS, 336 F.3d 200, 203 (2d Cir.2003) (citing cases). Under the catalyst theory, a court could award attorneys’ fees based solely upon a private agreement among the parties settling their dispute, even though no legal relief such as a consent decree had been obtained. See Buckhannon, 532 U.S. at 601, 121 S.Ct. 1835 (noting that under catalyst theory, a plaintiff was considered a “prevailing party” if its lawsuit brought about a voluntary change in defendant’s conduct). Under the catalyst theory, therefore, appellee would have been considered a prevailing party and entitled to all fees and costs associated with the litigation that resulted in the settlement agreement. In Buckhannon, however, the Supreme Court rejected the catalyst theory and held that the term “prevailing party” required a “ ‘material alteration of the legal relationship of the parties’ ” or a “court ordered ‘chang[e][in] the legal relationship between [the plaintiff] and the defendant.’ ” 532 U.S. at 604, 121 S.Ct. 1835 (quoting Tex. State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (alterations in Buckhannon)). As examples of the types of actions that would convey the necessary judicial imprimatur or sanction, the Court offered settlement agreements enforced through consent decrees and judgments on the merits. Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. As examples of the types of actions that would not convey the necessary imprimatur, the Court offered successful results obtained through private settlement agreements, non-dispositive victories such as surviving a motion to dismiss for lack of jurisdiction, prevailing over a motion to dismiss for failure to state a claim upon which relief could be granted, or receiving an interlocutory ruling that reversed a dismissal for failure to state a claim. See id. at 604-05 & n. 7, 121 S.Ct. 1835. In Buck-hannon itself, legislative action — not judicial action — provided the plaintiff the desired relief and mooted the underlying claims. Id. at 601, 121 S.Ct. 1835. We agree with appellants that, under Buckhannon — which was decided after the settlement was reached — -appellee is not entitled to recover the fees and costs associated with obtaining the Stipulation and Order that dismissed the case with prejudice. The effect of the Stipulation and Order was to vacate the district court’s orders providing for ongoing judicial involvement and to begin the environmental review process anew. This Stipulation and Order is functionally a private settlement agreement that the Supreme Court concluded does not provide prevailing party status to a plaintiff because, by its own terms, it eliminated the ongoing judicial oversight in favor of restarting the review process from scratch. See id. at 604-05 & n. 7, 121 S.Ct. 1835. However, a very different issue is presented by the question of whether appellee is entitled to recover for the fees and costs associated with obtaining the court-ordered SEIS. See Preservation Coalition, 129 F.Supp.2d at 577-78. Appellee contends that the ordering of the SEIS constitutes a “ ‘material alteration of the legal relationship of the parties,’ ” 532 U.S. at 604, 121 S.Ct. 1835 (quoting Garland, 489 U.S. at 792-93, 109 S.Ct. 1486), sufficient to confer prevailing party status under Buckhannon. Appellants argue that the SEIS was little more than “interlocutory relief unaccompanied by an enforceable final judgment or a consent decree” and therefore lacked the finality necessary for prevailing party status. Brief for Appellant FTA at 14. After Buckhannon, courts have split on the kinds of judicial actions that confer prevailing party status. The Eighth Circuit has interpreted Buckhannon narrowly and held that a plaintiff is a prevailing-party “only if it receives either an enforceable judgment on the merits or a consent degree.” Christina A., 315 F.3d at 993. The First Circuit, by contrast, has interpreted Buckhannon more broadly and focused on the “materiality of a judicial outcome” and “whether the result is purely procedural or whether it actually accomplishes something substantive for the winning party.” Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 17 (1st Cir.2003) (citations omitted). The First Circuit decision also observed that when interlocutory orders confer substantive relief they have often “been viewed as sufficient to carry the weight of a fee award.” Id. at 15. We agree with the First Circuit that Buckhannon does not limit fee awards to enforceable judgments on the merits or to consent decrees. While these orders were cited by the Court as examples of the types of actions that would convey the judicial imprimatur necessary to a fee award, broader language in Buck-hannon indicates that these examples are not an exclusive list. Rather, as noted, Buckhannon states that status as a prevailing party is conferred whenever there is a “court ordered ‘ehang[e][in] the legal relationship between [the plaintiff] and the defendant’ ” or a “ ‘material alteration of the legal relationship of the parties.’ ” 532 U.S. at 604, 121 S.Ct. 1835 (quoting Garland, 489 U.S. at 792, 109 S.Ct. 1486 (alterations in Buckhannon)). This language clearly encompasses a broader range of outcomes than the examples given and is consistent with how we have previously interpreted Buckhannon. See N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm’n, 272 F.3d 154, 158 (2d Cir.2001) (per curiam) (“The essence of being a prevailing party is achieving a material alteration of the legal relationship of the parties that is judicially sanctioned.”) (internal quotation marks and citation omitted). Accordingly, we conclude that appellee attained prevailing party status under Buckhannon when it obtained the court order requiring appellants to prepare a SEIS under threat of further injunctive relief. The SEIS was both judicially sanctioned and effectuated a substantive, material alteration in the legal relationship of the parties. b) Relief under the NHPA or the NEPA Having determined that the court-ordered SEIS made appellee a prevailing party, we turn next to whether the SEIS is judicially sanctioned relief under the NHPA or the NEPA. As noted, see supra note 1, the distinction is important because the NHPA contains a more liberal fee-shifting provision than the EAJA, which governs under the NEPA. Appellants contend that, while appellee is a prevailing party, it prevailed only under the NEPA because a SEIS is NEPA-based relief. Appellee counters that the substance of the SEIS concerned NHPA subject matter. The district court agreed with appel-lee, observing that appellants’ argument “elevate[s] form over substance.” Preservation Coalition, No. 99-CV-745S, slip op. at 8 (W.D.N.Y. June 13, 2001) (Decision and Order). However, the NHPA/NEPA distinction is statutory and cannot be summarily dismissed without more. But there is more because, for the reasons discussed below, NHPA regulations in effect during the relevant time period render appellee a prevailing party under the NHPA as well as the NEPA. Approximately two months after discovery of the Commercial Slip Wall and two months prior to the conclusion of the consultation process between the ESDC and SHPO, the Advisory Council on Historic Preservation issued new NHPA regulations that formally integrated NEPA procedures into the NHPA process. See 36 C.F.R. § 800.8 (effective June 17, 1999) (permitting agencies to meet their Section 106 NHPA requirements with steps taken to meet their NEPA requirements); see also 64 Fed.Reg. 27044, 27060 (May 18, 1999) (“Use of NEPA compliance to meet Section 106 requirements authorized. Agencies are authorized to use the preparation of Environmental Impact Statements and Environmental Assessments under the National Environmental Policy Act to meet section 106 needs in lieu of following the specified Council process. This is expected to be a major opportunity for agencies with well-developed NEPA processes to simplify concurrent reviews, reduce costs to applicants and avoid redundant paperwork.”). Under the current regulations, therefore, an agency may fulfill its NHPA obligations by either following the old, non-integrated Section 106 process, see 36 C.F.R. §§ 800.3-800.6, or through the new integrated NEPA/NHPA process, see 36 C.F.R. § 800.8. Consistent with the integration of NHPA and NEPA procedures, the regulations explicitly call for production of “supplemental environmental documents” in circumstances where an agency undertaking is modified following a final agency action: Modification of the undertaking. If the undertaking is modified after approval of the FONSI or the ROD in a manner that changes the undertaking or alters its effects on historic properties ... the agency official shall notify the Council and all consulting parties that supplemental environmental documents will be prepared in compliance with NEPA or that the procedures in §§ 800.3 through 800.6 will be followed as necessary. 36 C.F.R. § 800.8(c)(5) (effective June 17, 1999). Because neither party had addressed the new regulations in their briefs, we requested that they submit letter briefs on the question of whether the new regulations made the court-ordered SEIS a form of NHPA relief. Appellee answered in the affirmative, while appellants raised a number of objections. First, appellants questioned whether the discovery of the Commercial Slip Wall was a “modification of undertaking” significant enough to trigger Section 800.8(c)(5), see Letter Brief for Appellant FTA at 2 n.*, and whether the new regulations applied temporally, see Letter Brief for Appellants NFTA & ESDC at 1-2. In our view, discovery of the Wall effected a “modification of the undertaking” sufficient to trigger the regulation. As the district court described the event: The FEIS does not discuss the discovery of the Commercial Slip [W]all, any of the information that [the archeologist] acquired from experts regarding feasibility of preserving the Slip [W]all above ground, or the considerations that led SHPO and ESDC to decide that it is necessary to bury the [W]all. It is therefore impossible for this Court to make a reasoned decision, based on the FEIS and its exhibits, whether the Inner Harbor Project included all possible planning to mitigate harm to the Commercial Slip [W]all. A SEIS is therefore required to address this question .... [T]he Stage III excavations also impact on the determination that [other structures around the Wall] are ineligible for inclusion in the National Register.... [T]he Stage III discoveries must be at least taken into account, since they arguably affect that determination “in a significant manner” and “to a significant extent” not considered in the FEIS. The SEIS, therefore, must also address this issue. Preservation Coalition, 129 F.Supp.2d at 571 (internal citation omitted). Appellants also contend that the new regulations do not apply because the FEIS and other related consultations were completed prior to June 17, 1999, and while appellants only had the option of complying with the NHPA under the old, non-integrated Section 106 process. See Letter Brief for Appellants NFTA & ESDC, at 2 (“[Appellants] did not elect and, indeed, could not have elected, to utilize the alternative process set forth in [the new] regulations, since that option was not available at the time the section 106 process was undertaken and completed for the Project here.”). While it is true that the FEIS was completed in February, 1999, the subsequent discovery of the Commercial Slip Wall rendered it inadequate, resulting in consultations between the SHPO and ESDC that continued until August, 1999. Contrary to appellants’ argument, the language of the new regulations does not foreclose relying on the new, integrated NHPA process once there has been a “modification of the undertaking.” A SEIS therefore was a viable option for remedying the inadequacies of the FEIS by the time the consultations between the SHPO and ESDC concluded in August, 1999. Appellants’ remaining claims concern the power of the pertinent governmental bodies to integrate NEPA-based procedures into the NHPA. First, appellants contend that it was essentially illegal for the Advisory Council to issue regulations requiring an agency to prepare a SEIS to meet its NPIPA requirements. See Letter Brief for Appellant FTA at 3 (“Even if the regulations ever required any agency to prepare an SEIS or any other NEPA document, the Advisory Council has no authority to establish any such requirement.”). We note in passing the anomaly of one federal agency asking us to invalidate a regulation of another federal agency — a dispute that might have implications as to standing and the existence of a case or controversy. United States v. Nixon, 418 U.S. 683, 692-97, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (discussing barriers to justiciability of disputes between two executive branch officers). In any event, the Advisory Council’s regulation is clearly a reasonable response to a situation involving the interplay of two federal statutes. Barnhart v. Thomas, — U.S. —, 124 S.Ct. 376, 382, — L.Ed.2d — (2003) (stating that in determining whether agency action is within agency’s discretion, the “proper Chevron inquiry is ... whether, in light of the alternatives, the agency construction is reasonable” (referring to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). Second, appellants argue that the district court lacked the authority to order a SEIS because the decision to comply with the NHPA under the old, non-integrated Section 106 process or the new, integrated NHPA/NEPA process rests within the discretion of the relevant governmental agency. While we would likely agree with appellants that a court might not be authorized prospectively to order an agency to comply with the NHPA through one procedure rather than another, and that the language of Section 800.8(c)(5) leaves it to the agency to decide how to rectify the deficiencies in the FONSI or ROD when an undertaking is subsequently modified, a court nonetheless retains the authority to enforce regulations when it finds that an agency has failed to meet its regulatory and statutory obligations under the NHPA. In this case, the district court was confronted with an inadequate FEIS that had failed to take into consideration significant changes in, and modifications to, the Project plan. Under such circumstances, a district court’s ordering of a SEIS was appropriate in order to bring appellants into compliance with the NHPA. Although the SEIS was relief made available by the NEPA, it was also a form of NHPA relief under the June, 1999 regulations. Accordingly, appellee is entitled to recover attorneys’ fees and costs under the NHPA fee-shifting provisions for its expenses in obtaining the March 31, 2000 Order of the district court directing appellants to prepare the SEIS. See Preservation Coalition, 129 F.Supp.2d 538, 129 F.Supp.2d 551. However, under Buckhan-non, appellee is not entitled to recover expenses for activities after that date, because no court-ordered alteration of the parties’ legal relationship resulted from those efforts. The district court’s May 23, 2000 order compelling discovery (and other rulings subsequent to its March 31, 2000 SEIS order) resulted in the settlement and worked a procedural change between the parties rather than a material alteration of their legal relationship sufficient to warrant attorneys’ fees. See, e.g., Mr. & Mrs. R., 321 F.3d at 17 (focusing on the “materiality of a judicial outcome” and “whether the result is purely procedural or whether it actually accomplishes something substantive for the winning party.”). c) Liability ofNFTA and ESDC NFTA and ESDC contend that, as state agencies, they cannot be liable for the attorneys’ fees and costs at issue on this appeal. We agree. Non-federal agencies are not liable for violations of the NHPA. See W. Mohegan Tribe & Nation of N.Y. v. New York, 246 F.3d 230, 232 (2d Cir.2001) (“[T]he law makes it clear that the violations of the NHPA can only be committed by a federal agency.”) (citations omitted); Vieux Carre Prop. Owners, Residents & Assocs. Inc. v. Brown, 875 F.2d 453, 458 (5th Cir.1989) (“By its terms, only a federal agency can violate [the NHPA]”); Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir.1971) (holding that the NHPA imposes no duties upon state officials but only upon federal officials); Woonsocket Historical Soc’y v. City of Woonsocket, 120 R.I. 259, 387 A.2d 530, 532 (1978) (dismissing action against state officials under the NHPA because “[t]he mandate [of the NHPA] is directed towards heads of federal agencies and departments, not toward state or mu-nieipal officers”); cf. Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 762-63, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989) (holding that where there is no finding of liability under a federal statute, there can be no award of attorneys’ fees). While the district court implicitly conceded the NFTA and ESDC could not be liable under the NHPA, it nonetheless found the state agencies liable under the NEPA and Section 4(f) of the Transportation Act because appellee had asserted claims under these statutes. See Preservation Coalition, No. 99-CV-745S, slip op. at 9 (W.D.N.Y. June 13, 2001) (Decision and Order). Even though appellee asserted claims under these other statutes, the SEIS was ordered pursuant to the NHPA. The NFTA and ESDC, therefore, cannot be held liable for these NHPA-related fees and costs. CONCLUSION Appellee is entitled to attorneys’ fees as costs associated with obtaining the March 31, 2000 order compelling the SEIS. Ap-pellee is not, however, entitled to recover fees as costs incurred with regard to the Stipulation and Order that settled the litigation between the parties or for any fees incurred for work subsequent to the court’s March 31, 2000 order. Nor is ap-pellee entitled to recover fees and costs against the state agencies involved in this litigation. Accordingly, we vacate the award of fees against appellants NFTA and ESDC. We affirm the award against the FTS but remand for a recalculation consistent with this opinion. . Appellants speculate that appellee did not invoke the EAJA “because EAJA claims depend upon a showing that the agency’s position was not 'substantially justified’ and because the EAJA limits the rates that attorneys can claim.’’ Brief for Appellant FTA at 22 (quoting 28 U.S.C. § 2412(d)(1)(A)). . A fortiori, the EAJA also requires that the claimant be a “prevailing party” in order to recover. 28 U.S.C. § 2412(d)(1)(A). . We recently concluded that the terms "prevailing party” and "substantially prevails” are fundamentally the same for purposes of determining whether a plaintiff can recover under a fee-shifting statute. See Union of Needletrades, Indus. & Textile Employees (UNITE) v. U.S. INS, 336 F.3d 200, 206-08 (2d Cir.2003) (citing Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of Energy, 288 F.3d 452, 454-55 (D.C.Cir.2002)). . We are not persuaded by appellants' arguments regarding our recent decision in UNITE, 336 F.3d 200. In UNITE, plaintiffs obtained the voluntary cooperation of the INS in response to a FOIA request. We held that such voluntary cooperation did not entitle UNITE to prevailing party status because it had "fail[ed] to secure either a judgment on the merits, or a court-ordered consent decree.” Id. at 206. Appellants contend that UNITE precludes appellee from attaining prevailing party status because it obtained neither of these two specified outcomes. However, we do not read UNITE to require a full judgment on the merits (or a court-ordered consent decree) to entitle a party to counsel fees. The quoted passage appeared in a section of the UNITE opinion where we were contrasting the voluntary nature of the relief obtained by the plaintiffs with what were the two most likely outcomes had plaintiffs continued to litigate their dispute. Moreover, the sentence just prior to the quoted passage mentions not only a consent decree but also the fact that UNITE never "requested that the district court ... endorse, or retain jurisdiction over, a settlement agreement” as justifying the denial of prevailing party status. Id. Finally, UNITE favorably quoted New York State Federation of Taxi Drivers for the proposition that a plaintiff need only effectuate a " 'judicially sanctioned change in the legal relationship of the parties’ " to become a prevailing party. Id. at 207 (quoting N.Y. State Fed’n of Taxi Drivers, 272 F.3d at 158-59). This language is broad enough to encompass some court-ordered outcomes that are neither judgments on the merits nor consent decrees. .The Advisory Council is an independent federal agency created by the NHPA. 16 U.S.C. § 470L The NHPA authorizes the Advisory Council to "promulgate such rules and regulations as it deems necessary to govern the implementation of section 106.” 16 U.S.C. § 470s. . In this case, the final agency action occurred in February, 1999 with the issuance of the FEIS. The ROD — the final document in the administrative process — was issued on June 22, 1999. . A FONSI is frequently included in a FEIS.

Narragansett Indian Tribe v. Warwick Sewer Authority

LYNCH, Circuit Judge. .The Narragansett Indian Tribe appeals from the district court’s denial of a preliminary injunction against the Warwick Sewer Authority. The Tribe claims that the Authority is proceeding with a sewer construction project which risks desecration of ancestral burial sites. The Tribe argues that the Authority failed to consult adequately with the Tribe about the project, as required by § 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f (2000), and its attendant regulations, 36 C.F.R. Pt. 800 (2002). The district court denied the preliminary injunction. We affirm, because we find that the Tribe falls far short of the standards for a preliminary injunction. Indeed, it appears that the Authority has acted responsibly to comply with the NHPA and to avoid any adverse impact on important cultural artifacts. I. The district court held an evidentiary hearing on the preliminary injunction motion on November 15, 2002. The following facts are drawn principally from evidence presented there. The Authority has undertaken a construction project to link the eastern portion of Warwick, Rhode Island, to the city’s existing sewer system, requiring some 2.5 miles of sewer line. The parties agree that the entire project must comply with § 106 of the NHPA as a condition of federal funding it receives. Section 106 and its implementing regulations, discussed in greater detail below, require sponsors of federally funded undertakings to consider their impact on historically or archaeologically important areas. The regulations also require consultation with a state-designated historic preservation officer and, in some circumstances, with affected Indian tribes. In early 2000, the Authority retained Public Archaeology Laboratory, Inc. (PAL), a nonprofit consulting group founded by five archaeologists formerly associated with Brown University, to assist in ensuring the sewer project’s compliance with these mandates. Alan Leveillee, a registered professional archaeologist and co-founder of PAL, conducted an initial assessment survey of the project. Leveillee completed a preliminary report based on this investigation. He determined that most of the proposed sewer lines would run under existing roads in highly developed suburban areas, so that excavation was unlikely to encounter any remaining archaeological material of significance that had not already been disturbed. For these sections of the project, the report concluded that it would be sufficient to have archaeologists train construction supervisors, conduct periodic field checks, and remain on call in case unexpected materials of potential historical value were encountered. However, the report noted that several segments of the project had potentially greater archaeological sensitivity. Of particular relevance to this litigation, Leveil-lee identified a stretch of approximately 1,350 feet near the intersection of West Shore Road and Sandy Lane, adjacent to Buckeye Brook. In this area, the proposed sewer route ran through a relatively undisturbed wetlands area rather than under an existing roadway. Because of this difference, and the fact that Indian artifacts are often found along watercourses close to Narragansett Bay, such as Buckeye Brook, the report recommended that archaeologists stay on site to monitor all construction in this area. On January 10, 2001, Leveillee mailed copies of the preliminary report both to Rhode Island’s state historic preservation officer (known under § 106 as the “SHPO”) and to the Tribe’s historic preservation officer (the “THPO”). His cover letters stated: “Please provide any comments or concerns you may have. If you require additional information, please do not hesitate to call me at your convenience.” The Tribe never responded to this letter. In contrast, the SHPO wrote back to Leveillee on January 19, and sent copies of its response to the THPO, the Authority, and the project’s chief contractors. The SHPO concurred in most of Leveillee’s conclusions and proposals, but recommended that shovel test pits should be excavated in two of the more sensitive areas, including the one near Buckeye Brook, to “determine the presence or absence of cultural material.” PAL complied with the SHPO’s suggestion in the next phase of its inquiries, excavating nineteen test pits in the Buckeye Brook area. South of Buckeye Brook, this “intensive archaeological survey” found remains of an agricultural homestead that had been inhabited in the eighteenth and nineteenth centuries. PAL reported that “Native American cultural materials ... were recovered in low densities ... and represent incidental incursions,” indicating only “limited occupation” of the area by Native Americans. The test excavations uncovered 225 bone fragments; these were analyzed in the lab and all were found to be animal bones, most likely from the homestead’s food wastes. Leveillee and other PAL archaeologists prepared a detailed technical report elaborating on these findings. Le-veillee testified that further investigation would be required to determine the archaeological significance of the homestead. The report recommended instead that the sewer should be rerouted to avoid the homestead site entirely. The technical report was again sent to both the SHPO and the THPO in March 2002. The SHPO concurred in the report’s recommendations. The Tribe again did not respond. Based on the suggestion made by PAL and the SHPO, the Authority altered the sewer route in April 2002 to avoid the undisturbed area south of Buckeye Brook where the homestead site lies. The new underground route runs south down West Shore Road (which is also state highway Route 117), rather than alongside it, and then turns at the intersection to proceed west down Sandy Lane. West Shore Road was originally built in the early twentieth century and there has been further construction on it several times since. Although the Tribe did not comment on either of PAL’s reports, testimony at the hearing by both Leveillee and the Tribe’s deputy THPO, Douglas Harris, indicated that the Tribe did have contact with the Authority and PAL about the sewer project in both 2001 and 2002. According to Harris, this included a meeting with the executive director of the Authority early in the consultation process, and daily cell phone communication with PAL during the test excavations south of Buckeye Brook. At the construction site on October 18, 2002, Leveillee met with representatives of the THPO, the Authority, and the Army Corps of Engineers to discuss the non-archaeological topic of fish runs in the brook. After discussing the Tribe’s eon-cerns, Harris suggested that there might be Narragansett Indian burials in the area south of the brook. This was the first time the Tribe ever mentioned such a prospect. Harris said that he had been told by an eyewitness that human remains had been exposed during previous construction near there, but were immediately covered back up. Leveillee asked for the name of Harris’ informant, but Harris declined to provide it. Harris also showed Leveillee a mound of dirt with shell and glass fragments; Harris testified at the hearing that the mound “could be consistent with a burial.” The mound was located where the homestead lies, so its surroundings had already been investigated extensively and the sewer route was already changed to avoid the area. The only other evidence the Tribe presented in the case about burials near West Shore Road was the testimony of Max Brown, a 77-year-old Tribe member and retired construction worker. Brown said he had once worked on a project where a co-worker uncovered bones that “looked like an arm and a leg or [a] hand and a leg;” he did not approach or touch them and he left without finding out what the bones were or what his coworker did with them. When asked to identify the time of this incident, Brown stated that it “must have been the fifties, I guess.” As to location, he stated, “Well, I live down around there. I’ve worked so many places they all look the same. I can’t remember just which one is which, but I did — yeah, in them days I had dug up these bones.” Eventually, guided by questioning from the Tribe’s counsel, Brown marked a map of East Warwick with an “X” near the intersection of West Shore Road and Sandy Lane. Harris also testified that he had spoken to various other Tribe members about the history of the site, although there was no evidence about what they told him. Despite the dearth of specific information provided by the Tribe, Leveillee promptly notified the SHPO and the Authority of these new contentions in a letter on October 28, 2002. In light of the new information, he recommended that archaeologists should be on site to monitor all construction activity along West Shore Road near Buckeye Brook and Sandy Lane, rather than merely being on call as was the case elsewhere in the project. The SHPO agreed with this recommendation and wrote a letter to the Authority the next day so stating. Since then, construction in the area has been monitored by on-site PAL archaeologists. In addition, there is a protocol in place for the entire project, written by Leveillee, which dictates how supervisors are to deal with unanticipated discoveries of human remains or other significant materials. The letter from the SHPO also stated that “monitoring should be conducted in consultation with the [THPO] as required by the National Historic Preservation Act.” The Authority and the Tribe held some discussions, including a meeting on November 7, 2002, but they were unable to reach any agreement. The Tribe’s requests were made explicit. The Tribe wanted the Authority to hire Harris and perhaps other Tribe members to monitor construction. The Tribe has a standing agreement with the Rhode Island Department of Transportation under which THPO representatives are paid up to $25 an hour to serve as archaeological monitors, and apparently sought a similar arrangement with the Authority. The Authority indicated its willingness to have monitors from the Tribe in addition to the PAL archaeologists, but refused to pay them and wanted indemnification for any injuries a monitor might suffer while at the construction site. The meeting ended acrimoniously, and the same day the Tribe filed a complaint in district court seeking declaratory and in-junctive relief. The complaint relied on both Rhode Island law and the NHPA, but only the denial of preliminary injunctive relief under the NHPA is appealed. As the Tribe’s counsel explained at the district court hearing and at oral argument before this court, the injunctive relief sought is: (1) a requirement that the Authority consult with the Tribe pursuant to § 106; (2) a requirement that the Authority use a bucket with a flat blade rather than teeth for digging; and (3) a requirement that the Authority allow members of the Tribe to serve as monitors at the construction site, and pay these monitors for their services. The district court entered a temporary restraining order on November 14, 2002, under which the Tribe was permitted to monitor the project without pay, provided it indemnified the Authority. The preliminary injunction hearing was the next day, a Friday. On Monday, November 18, 2002, the district court denied the preliminary injunction and vacated the temporary restraining order. The Tribe brought this interlocutory appeal. See 28 U.S.C. § 1292(a)(1) (allowing interlocutory appeal when injunctions are denied). We were informed by counsel at oral argument that construction is continuing to proceed down West Shore Road. II. The Tribe has the burden to show that a preliminary injunction should have been granted under the familiar four-part test, which considers the likelihood of success on the merits, the potential for irreparable injury, the balance of equities for and against an injunction, and the effect on the public interest. See Bercovitch v. Baldwin Sch., 133 F.3d 141, 151 (1st Cir.1998); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). On appeal, this court affords “considerable deference” to the “judgment calls” the district court made in applying this test, while reviewing pure issues of law de novo and factual findings for clear error. Langlois v. Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir.2000); see Bercovitch, 133 F.3d at 151. Section 106 provides that planners of a federally supported project must “take into account” its effect on any area eligible for inclusion in the National Register of Historic Places. 16 U.S.C. § 470f; see id. § 470a(a) (National Register guidelines). In addition, the NHPA provides that planners “shall consult with any Indian tribe ... that attaches religious and cultural importance” to an eligible affected area. Id. § 470a(d)(6)(B). Congress often imposes a consultation requirement in statutes such as the NHPA, particularly when interaction with tribes is involved. See D.C. Haskew, Federal Consultation with Indian Tribes, 24 Am. Indian L. Rev. 21, 21 n. 3 (collecting statutes and regulations requiring consultation with tribes). The bare word “con- suit” standing alone, undefined, can lead to differing views and to conflicting judicial interpretations. See, e.g., Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 117-19 (1st Cir.2002); id. at 124-25 (Lynch, J., dissenting); Haskew, supra, at 41-55 (collecting and analyzing conflicting cases interpreting consultation requirements). Fortunately, the NHPA explicitly delegates authority to the Advisory Council on Historic Preservation (the “Council”) to promulgate regulations interpreting and implementing § 106. 16 U.S.C. § 470s. The Council has issued detailed regulations to give substance to § 106’s consultation requirements. 36 C.F.R. pt. 800; see 65 Fed. Reg. 77698 (Dec. 12, 2000) (revising regulations). This “complex consultative process” includes specified steps and time limits. Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49, 62 (1st Cir.2001). Of course, we defer to an authorized administrative agency’s reasonable elaboration of an ambiguous statutory term such as “consultation.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Section 106 is characterized aptly as a requirement that agency decisionmakers “stop, look, and listen,” but not that they reach particular outcomes. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999) (per curiam); see Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (requirements imposed by § 106 are procedural, not substantive); cf. Conservation Law Found. v. Busey, 79 F.3d 1250, 1271 (1st Cir.1996) (characterizing National Environmental Policy Act in similar terms). Under the Council’s regulations, the agency official is responsible for initiating consultation with tribes. 36 C.F.R. § 800.3(c). A tribe may become a consulting party when it considers a site that might be affected by the undertaking to have religious or cultural significance. Id. § 800.2(c)(2)(ii). Such a consulting tribe is then entitled to: a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects. Id. § 800.2(c)(2)(ii)(A). Each of these stages of consultation — initiating the process, advising on identification of properties, expressing views on assessing the undertaking’s effects on them, and participating in resolving those effects — is then spelled out in greater detail. See id. §§ 800.3-800.7. The Authority dutifully initiated consultation. In January 2001, the Tribe was provided with PAL’s determination that the project would not affect any significant artifacts or properties and was invited to comment on that conclusion. Under the regulations, the Tribe’s failure to respond within thirty days permitted the Authority to proceed. See id. § 800.4(d)(1). From January 2001 to October 2002, there was no further indication that the project had any impact on burials or Native American artifacts. The Tribe was nonetheless kept informed about ongoing investigation, by means of the March 2002 technical report and other communication. The Tribe’s own deputy THPO testified that he spoke daily with PAL during its field research in the Buckeye Brook area. Meanwhile, the Authority, PAL, and the SHPO worked together to identify the homestead site and reroute the project to avoid affecting it. The regulations allow the Tribe to take a role in the consultation process later, but not to turn back the clock. “If the SHPO/THPO re-enters the Section 106 process, the agency official shall continue the consultation without being required to reconsider previous findings or determinations.” Id. § 800.3(c)(4). Even if the Tribe validly “re-entered” consultation by raising its concerns at the on-site meeting, it cannot demand a reversal of the prior finding that the route down West Shore Road would not affect significant Native American archaeological material. The evidence that there may be burials under West Shore Road is gossamer thin. Cf. Guilbert, 934 F.2d at 8 (“[Tjhere was no compelling reason to believe that artifacts of historic significance existed on the ... property.”). The current route avoids the possible site that Harris pointed out to Leveillee, so that leaves Brown’s vague and uncorroborated testimony as the only indication of affected burials. PAL’s comprehensive analysis points the other way. Excavation along the route of an existing state highway, in the wake of previous road construction and utility installation, is unlikely to uncover previously undisturbed archaeological materials. Nevertheless, the Authority responded to the Tribe’s eleventh-hour objection with sensitivity. PAL promptly informed the SHPO of the Tribe’s information, and the Authority initiated the recommended on-site monitoring. Moreover, the Tribe concedes that consultation has continued since that time, and that the parties have agreed to meet again. Where no historic property has been identified, the Tribe has no basis under the NHPA to demand particular actions by the Authority. See Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 582 (9th Cir.1998) (tribal concurrence not necessary under NHPA where finding of no possible effect on historic properties is properly made); Native Ams. for Enola v. U.S. Forest Serv., 832 F.Supp. 297, 300 (D.Or.1993), vacated on other grounds, 60 F.3d 645 (9th Cir.1995) (regulations do not require consultation on significance under § 800.4(c) when no historic properties are found under § 800.4(b)). The Tribe is entitled to “identify its concerns,” to “advise,” to “articulate,” and to “participate.” 36 C.F.R. § 800.2(c)(2)(ii)(A). But consultation is not the same thing as control over a project. See Save Our Heritage, 269 F.3d at 62 (“[T]he choice whether to approve the undertaking ultimately remains with the agency.”); see also Davis v. Latschar, 202 F.3d 359, 361 (D.C.Cir.2000) (allowing undertaking to proceed because substance of objection was given full consideration). Because no historic property has been identified, the NHPA provides no grounds for an injunction regarding the use of a particular type of digging blade or payment for monitoring personnel. For these aspects of its requested relief, the Tribe has no possibility of any success on the merits (much less a likelihood of success). And because there is no tribal veto, the Tribe suffers no cognizable injury when its preferred remedy is not adopted (much less the required irreparable injury). The only remaining injunctive relief the Tribe requests is an order that consultation occur. But the facts show that the Authority has already fulfilled its consultation responsibilities and continues to do so. The Tribe’s arguments to the contrary are unavailing. In its appellate brief, the Tribe suggests that there is no evidence to prove that it actually received the initial January 2001 letter and report that initiated the § 106 process. However, Leveillee testified that the documents were mailed with return addresses and were never returned. The SHPO certainly received its copy. This gives rise to a rebuttable presumption, which the Tribe does nothing to rebut, that a properly-mailed document was received. 1 J.M. McLaughlin, Weinstein’s Federal Evidence § 301.06[5], at 301-28.5 (2d ed. 2003); cf. Univ. Emergency Med. Found. v. Rapier Invs., Ltd., 197 F.3d 18, 21 & n. 6 (1st Cir.1999) (discussing common-law “mailbox rule”). The Tribe also implies that the Authority acted impermissibly by hiring PAL to complete the archaeological assessments. There is no support for this contention, and we think just the opposite is true. The regulations themselves explicitly contemplate the use of consultants to provide analyses for use in the § 106 process. 36 C.F.R. § 800.2(a)(3). It is completely clear from the materials provided to the Tribe that PAL was acting as the Authority’s agent. By retaining experts and following their recommendations, the Authority demonstrated its commitment to historic preservation. The Authority retains legal responsibility for compliance with the NHPA, id., and no one is suggesting otherwise here. The Tribe’s most plausible argument on the merits relies heavily on Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir.1995), for the proposition that “a mere request for information is not necessarily sufficient to constitute the ‘reasonable effort’ section 106 requires.” Id. at 860. Even though a request for information is not necessarily sufficient, it might be, depending on the circumstances. We would take real inadequacies in the initial steps of identifying properties seriously, since they influence all that follows in the § 106 process. See Attakai v. United States, 746 F.Supp. 1395, 1405-06 (D.Ariz.1990). There are no such inadequacies here. Pueblo of Sandia is quite different from this case. First, the Authority extended more than a “mere request for information;” it provided the Tribe with reports on PAL’s findings, engaged it in other contact about the project, and solicited its comments. Second, the surrounding circumstances in Pueblo of Sandia led the court to conclude that the agency there, the United States Forest Service, had not engaged in reasonable or good faith efforts to determine if its undertaking would affect cultural properties. The Forest Service sent form letters to tribes asking for very detailed information in specific formats but providing no information in return; the tribes responded with relevant information indicating the presence of cultural properties, which the Forest Service ignored. 50 F.3d at 860-61. The Forest Service also withheld significant information from the SHPO there. Id. at 862. In contrast, the Authority and PAL took the slimmest evidence from- the Tribe very seriously and reported it to the SHPO here right away. Even if there were any possibility on the merits that the Tribe could demonstrate flaws in the consultation process — an assumption which we indulge only for the sake of argument — the facts do not show that irreparable injury would occur without a preliminary injunction. The route under West Shore Road avoids the potentially sensitive area south of Buckeye Brook and' proceeds through one where the discovery of artifacts is unlikely. Both PAL and the SHPO’s principal archaeologist testified that the type of digging blade used by the Authority is appropriate under the circumstances. PAL archaeologists are monitoring work and will continue to do so, and a protocol guides steps to be taken in the event that significant historic materials come to light. In sum, the Tribe has failed to carry its burden in two separate respects, proving neither likelihood of success nor irreparable injury. III. The Authority, conscious of its responsibility under the NHPA and state law to proceed with sensitivity to historic preservation concerns, sought expert advice from PAL at the very outset of this project. It adopted recommendations from PAL and the SHPO at every turn, including the decision to reroute construction to avoid the homestead site. It kept the Tribe informed. When the Tribe raised belated objections, they were taken seriously despite the paucity of evidence supporting them, and the Authority again adjusted its plans to accommodate them. In short, as the district court concluded, the Authority’s experts “did everything right, and they continue to do everything right” to comply with both the letter and the spirit of § 106. The district court’s denial of a preliminary injunction is affirmed. Costs are awarded to the Authority. . An affidavit was attached to the complaint, but it contained a vague report based only on inadmissible hearsay, and neither the affiant nor the alleged declarant testified at the hearing. . Presumably, Brown was the eyewitness Harris spoke of at the on-site meeting in October 2002, but the record does not make this clear. . At the request of the court, the parties have since reported that they intend to meet again to “engage in good faith efforts to consult,” but that they have not resolved the case. . Both the parties and the district court assumed that the NHPA gives the Tribe a private right of action in this case. Because this is a statutory question rather than one of Article III jurisdiction, we may bypass it where the case can otherwise be resolved in defendant’s favor. See Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59-60 (1st Cir.2003). We do so here. . The “agency official” in this case is the head of the Authority, who has been delegated responsibilities under § 106. See 36 C.F.R. § 800.16(k). . Ironically, the Tribe itself had hired PAL "quite often” in the past to help with archaeological projects. There is no question about PAL’s competence in the field.

Save Our Heritage, Inc. v. Federal Aviation Administration

BOUDIN, Chief Judge. The Federal Aviation Administration (“FAA”) authorized Shuttle America Airlines (“Shuttle America”) to provide scheduled passenger service to New York’s La-Guardia Airport (“LaGuardia”) from Hanscom Field (“Hanscom”), a general aviation airport that lies 15 miles northwest of Boston abutting the towns of Bed-ford, Concord, Lexington, and Lincoln. The petitioners — two preservationist organizations, three of the four towns (Bedford is an intervenor), and stewards of several nearby historic sites — seek review of the FAA decision on the ground that the agency did not adequately consider the adverse effect of the additional Shuttle America flights on historic and natural resources near Hanscom. Hanscom has been a major aviation facility since 1940, when the Commonwealth of Massachusetts first acquired the site to accommodate the U.S. Army Air Corps. In 1973 the Massachusetts Port Authority (“Massport”) converted a portion of the site into a general aviation facility serving corporate aviation, flight schools, air charter operations, light cargo, and private business and recreational flights. (The U.S. Air Force uses the remainder as Hanscom Air Force Base.) In 1995, there were about 95,000 general aviation and military flights (defined as a departure and an arrival) at Hanscom. In recent years, Massport and the FAA have expanded commercial passenger service at Hanscom, seeking to lessen congestion at Boston’s Logan International Airport. These steps have concerned community groups who fear that the increased noise, air pollution, and surface traffic from the additional flights will harm the natural and historic resources near Hanscom. These sites include Minute Man National Historic Park, Walden Pond, and the homes of eminent American authors such as Ralph Waldo Emerson and Louisa May Alcott. The main access road to Hanscom is a part of Route 2A, which runs through the heart of Minute Man National Park. In July 1999, Massport backed a plan to let Shuttle America — a commuter airline then operating out of several airports on the East Coast — provide scheduled passenger service at Hanscom. To this end, Shuttle America asked the FAA to add Hanscom to the list of airport destinations in its operating specifications. Massport asked the FAA to upgrade Hanscom’s operating certificate to a “full Part 139 certificate,” which allows use of planes with greater than 30 seats. See generally 14 C.F.R. Part 139 (2000). The FAA granted both requests in September 1999, and Shuttle America immediately commenced passenger service out of Hanscom, with four daily round-trip flights. The FAA determined that it did not need to perform an environmental analysis for the two approvals because they were categorically excluded from review under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. (1994). It also concluded that the categorical exclusion under NEPA obviated the need for consultation under Section 106 of the National Historic Preservation Act of 1966 (“NHPA”), 16 U.S.C. § 470f (1994). The Advisory Council on Historic Preservation, which is authorized to enforce NHPA, see 16 U.S.C. § 470s, questioned the FAA’s reading of NHPA, and petitioner Save Our Heritage unsuccessfully sought reconsideration and rehearing of both the Part 139 certification and the addition of Hanscom to Shuttle America’s operating specifications. However, no party sought timely judicial review of either of the FAA’s decisions; such review is now time-barred. 49 U.S.C. § 46110(a) (1994). In May 2000, Shuttle America applied for the operating specifications amendment at issue in this case — an amendment to add LaGuardia to its list of approved airport destinations. It proposed to make seven round-trip flights between Hanscom and LaGuardia, with the possibility of eventually expanding the service to ten flights a day. The FAA expressed doubt that NHPA consultation was required, but in light of the Advisory Council’s earlier concerns, it decided it would be “prudent” to consult provisionally with the Massachusetts Historical Commission, which the Commonwealth had designated as its NHPA consulting agency. After conducting an environmental analysis, the FAA proposed a finding that the additional flights to LaGuardia would have no potential adverse effect on historic properties. Petitioners Save Our Heritage and the Hanscom-area towns sent the FAA detailed criticisms of its proposed finding, and the Massachusetts Historical Commission also refused to concur. After providing additional documentation in an unsuccessful effort to persuade the Commission, the FAA terminated the consultation and, on October 27, 2000, issued the amendment (“the LaGuardia amendment”). Shuttle America began commercial service from Hanscom to LaGuardia with five round-trip flights per day, later reaching a peak of seven daily round-trip flights in January 2001. On direct review, 49 U.S.C. § 46110(a), petitioners now ask us to set aside and enjoin the LaGuardia amendment on the grounds the FAA decision violated NEPA, NHPA, and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1994) (originally codified at 49 U.S.C. § 1653(f) (1970)). The statutory requirements are described below. The gist of the FAA’s position is that its “effects” determination — that the addition of seven to ten flights a day would have no significant environmental impact — exempted the amendment from or otherwise satisfied these requirements. At the threshold, the FAA and supporting intervenors raise two objections to our consideration of the case. The first is that the petitioners lack Article III standing, and the second is that the petitions are effectively out-of-time attacks on prior agency orders. Because the first challenge is constitutional, we start with it. The basic requirements for Article III standing are that the petitioner is someone who has suffered or is threatened by injury in fact to a cognizable interest, that the injury is causally connected to the defendant’s action, and that it can be abated by a remedy the court is competent to give. What constitutes a “cognizable interest” can present vexing problems, see Chemerinsky, Federal Jurisdiction § 2.3, at 68-74 (3d ed.1999), but here the FAA and supporting intervenors concede that aesthetic and environmental injury are cognizable, see Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Rather, the objections to standing are threefold. The first, and least persuasive, is the suggestion that even if some individuals or organizations are adversely affected by the increased flights, none of the petitioners or identified members of petitioner organizations have shown that they are among those injured. Admittedly, a specified petitioner or identified member must be within the affected group. See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 U.S. 167, 181-84, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Here, the petitioners comprise nonprofit environmental or preservationist associations such as Save Our Heritage; the towns located near Hanscom; and at least two petitioners that own nearby historic sites: the Walden Woods Project, which owns part of the Walden Woods site and operates a Thoreau research and educational facility on it; and the Louisa May Alcott Memorial Association, which manages the writer’s home. It is sufficient for the case to proceed if at least one petitioner has standing, Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971-72 (1st Cir.1993). There is little reason to doubt that the two nonprofit landowners (Walden Woods Project and the Alcott Association) would be affected by both noise and air pollution, given their function and proximity to Hanscom; and it is likely, although unnecessary to decide, that the three towns themselves would have a direct interest, e.g., in traffic congestion. We need not resolve whether the petitioner associations have established standing based on the rather sparse allegations of injury to the interests of their individual members. See Int’l Union, United Auto., Aero. & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281-82, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). Next, the FAA says that there is no actual or threatened adverse effect on any petitioner because, according to the FAA’s findings, the small number of additional flights will have no significant environmental impact. At first blush, this appears to be a question of the merits rather than one of standing; the petitioners certainly allege substantial effects and challenge both the FAA’s contrary findings and the procedures used to reach them. We need not rule out the possibility of cases where the claim of impact is so specious or patently implausible that a threshold standing objection might be appropriate. See, e.g., Town, of Norwood, 202 F.3d at 406; Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 669 (D.C.Cir.1996). But beyond that, we think that the likelihood and extent of impact are properly addressed in connection with the merits and issues of harmless error. Breyer & Stewart, Administrative Law and Regulatory Policy 1107 (2d ed.1985); cf. Bell v. Hood, 327 U.S. 678, 681-84, 66 S.Ct. 773, 90 L.Ed. 939 (1946). A reasonable claim of minimal impact is enough for standing even though it may not trigger agency obligations. Third, the FAA points out that the order here under review did not increase the number of flights that Shuttle America is authorized to operate at Hanscom. Given prior orders that are now beyond review, Shuttle America was and is entitled to fly an unlimited number of flights to its other, already-approved airports regardless of the outcome of this case. Thus, says the FAA, the order permitting flights to LaGuardia cannot be the cause of the alleged injury to petitioners, because it could fly the same number of flights even if the order were overturned. If the same number of flights carrying the same number of passengers would be flown regardless of the present order, the order would hardly be the but-for cause of any impact due to more flights or ground traffic. But as a matter of common sense, Shuttle America likely sought authorization for LaGuardia because it would generate some additional traffic over and above its existing demand. Shuttle America has not shown or offered to show that the number of flights and the amount of car traffic would be identical even without the authorization. Petitioners asserting standing are not required to negate every possibility that the outcome might be the same under highly unusual circumstances. The FAA makes a separate and quite different threshold objection. It says that petitioners are making out-of-time attacks on prior orders. It points out that the statute imposes a 60-day limit on direct review, 49 U.S.C. § 46110(a), and, no petition for review having been filed within that time, it argues that it is not open to petitioners now to challenge the orders entered in September 1999 allowing Shuttle America to operate from Hanscom and Hanscom to handle commercial flights using larger planes. No doubt much of the impact on nearby natural and historic sites, assuming the allegations are true, stems from these earlier orders and not from the authorization to add a limited number of flights to La-Guardia. Nevertheless, the petitioners are entitled to claim that an additional impact will be felt from the now-authorized La-Guardia flights, over and above the effects of the prior orders. Whether or not the plausible added effects are so slight as to justify the shortcuts taken by the FAA is a merits issue yet to be addressed; but it does not make an attack on this alleged incremental impact an attack on the wrong order. Only to the extent that petitioners are actually seeking redress from the effects of the present orders are their petitions timely, and this limitation must be borne in mind in considering the arguments. Admittedly, there is some language in the briefs that appears to attack the earlier orders because of alleged infirmities in its findings or procedures. But the possibility that some of the petitioners’ arguments are time-barred does not defeat those actually directed to the more recent order. This brings us to the merits. Although the claims can be segmented in several ways, the underlying issues basically reduce themselves to two: whether the FAA erred substantively in concluding that the additional flights — up to ten new round trips a day — would have a de minimis environmental impact and whether, regardless of impact, the FAA erred procedurally in failing to consult further with governmental agencies concerned with historic preservation. We begin with the “substantive” issue which arises, in slightly different frameworks, under three different statutes. The most familiar is NEPA, which requires agencies to develop a detailed environmental impact statement (an “EIS”) before undertaking “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The NEPA regulations permit agencies to conduct a less demanding “environmental assessment” to determine whether an EIS is required; if not, the agency must explain its determination in a “finding of no significant impact.” 40 C.F.R. §§ 1501.4 (2000). In a regulation whose validity is not in dispute, the FAA effectively concedes that the LaGuardia amendment qualifies as a major federal action. Dep’t of Transp., Fed. Aviation Admin. Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts,” App. 4, ¶ 3(e). However, a categorical exclusion excuses the FAA from preparing either an EIS or an environmental assessment for “operating specifications and amendments thereto which do not significantly change the operating environment of the airport.” FAA 1050.1D, App. 4, ¶ 4(h). This exclusion is itself qualified by an “extraordinary circumstances” provision which requires at least an environmental assessment for an otherwise excluded action if the action is, inter alia, “likely to have an effect that is not minimal on properties protected under Section 106 of [NHPA] or Section 4(f) [of the Transportation Act of 1966],” or “likely to be highly controversial on environmental grounds.” FAA Order 1050.1D, ¶ 32. Petitioners rely on both of these exceptions and argue that the additional flights have more than minimal effects and were highly controversial. NHPA and Section 4(f) impose different requirements than NEPA, in the service of somewhat more focused interests; but the requirements of concern here — with one possible qualification regarding an obligation to consult — both turn (as with NEPA) on whether the agency action poses a plausible environmental threat. A brief description of the two statutes makes this clear. NHPA, heavily relied on by petitioners, is designed to protect certain “historic properties,” which indisputably include sites near Hanscom. Section 106 of the statute requires that prior to a proposed federal “undertaking,” the agency must “take into account the effect” on such properties and allow the Advisory Council on Historic Preservation a “reasonable opportunity to comment.” 16 U.S.C. § 470f. The act thus imposes both a substantive obligation to weigh effects in deciding whether to authorize the federal action and a procedural obligation to consult. See generally 36 C.F.R. Part 800 (2000). The grant of a permit such as the LaGuardia authorization can certainly qualify as an undertaking. 16 U.S.C. § 470w(7)(C); 36 C.F.R. § 800.16(y) (2000); see also Sugarloaf Citizens Ass’n v. Fed. Energy Reg. Comm’n, 959 F.2d 508, 515 (4th Cir.1992). But even if the approval of the LaGuardia flights is assumed to be an undertaking, the substantive obligation to “take into account the effect” of the flights on historic properties is beside the point if there is no potential adverse effect. See 36 C.F.R. § 800.3(a)(1) (2000). To that extent, the question under NEPA and under NHPA is the same: whether the FAA erred in finding that any impact of the newly authorized flights on the surrounding area was de minimis. The last of the three statutes — Section 4(f) of the Department of Transportation Act — is even more stringent where it applies. It protects certain public parks and historic sites, again indisputably including some near Hanscom, from any “transportation program or project” requiring the “use” of such park or land, unless certain quite restrictive tests have been met. To proceed in the teeth of such a “use,” the agency must find that there is no feasible alternative to using that land and that the program or project includes all possible planning to minimize harm. 49 U.S.C. § 303(c). At first blush, one might think that Section 4(f) could have nothing to do with authorizing new flights from an existing, physically unaltered airport; but the statute has been read to apply not only to a physical use or occupancy of protected parks or land but also to activities that will have a serious indirect impact on the protected park or land — a so-called “constructive use.” 23 C.F.R. § 771.135(p)(l)(iii) (2000); Moronga Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 583 (9th Cir.1998). Once again, the FAA’s finding that the LaGuardia flights would have only a de minimis effect would avoid the statute if the finding were to be upheld. Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). What, then, underpins the FAA’s finding of de minimis impact in this case? The starting point is that independent of the LaGuardia flights, Hanscom handled just under 100,000 flights in 1999, and the disputed LaGuardia flights would add, at a maximum, ten more flights per day. The more realistic estimate of seven flights, according to the FAA, would produce an annual increase in Hanscom flights of about 2.5 percent — a number that absent special circumstances would approach the trivial. This figure might at first appear to understate the potential environmental effect because most existing Hanscom flights are private aircraft, which are somewhat smaller and carry fewer passengers than even the modest 50 passenger turboprop planes used by Shuttle America. On the other hand, some of the resulting ground traffic occurs in non-peak periods where existing levels are light, and the new flights use turboprop aircraft considerably quieter than the corporate jets and other civilian aircraft currently using the airport. Thus, certain effects of the additional flights may be less than the already small percentage increase in the number of flights. But we need not rely on such inferences because here the FAA directly studied the three types of potential effects from the additional flights: noise, fuel emissions, and surface traffic from passenger travel to and from the airport. As background for considering the effects, the FAA extrapolated from MassPort’s 1995 Generic Environmental Impact Report (“the GEIR”), actually completed in 1997, which projected and extensively assessed the noise, emissions, and traffic effects of future Hanscom operations under zero, modest, and robust growth scenarios for commercial aviation. It also relied on a surface traffic study performed in 2000 for the adjacent Hanscom Air Force Base. The FAA summarized its findings in two letters (on September 15, 2000 and October 6, 2000) to the Massachusetts Historical Commission. The FAA first compared the actual number of flights in 1999 (prior to the LaGuardia authorization) with the GEIR’s 1999 projections under the modest growth scenario, and found that the GEIR’s forecast was nearly exact (approximately 99,000 flights). This both confirmed the accuracy of the GEIR and, since the GEIR indicated no significant environmental concerns under the modest growth scenario, showed that pre-amendment baseline conditions were acceptable. The FAA then conducted its own studies, which found that the additional La-Guardia flights would not exacerbate environmental conditions. As to noise, the FAA found that the additional flights would have a 1 percent or less increase in the 65 DNL dB noise contour, which indicates noise levels compatible with all land uses, see 14 C.F.R. Part 150, App. A, Tbl. 1 (2001), under a test in which a 17 percent increase is deemed significant. It also found that the 65 DNL dB noise contour would continue to remain “almost completely on airport property” and that most of Minute Man National Park and Walden Woods would fall outside the 55 DNL dB line. It thus concluded that the area around Hanscom “should not experience appreciable increases in aircraft noise or overflights” as a result of the added air traffic. For air quality effects, the FAA used a model that took account of emissions both from aircraft (accounting for factors such as equipment type and including take-off, taxi, and idling time) and surface vehicles (both passenger traffic and ground support equipment). The FAA concluded that the potential emissions associated with the La-Guardia flights were “below de minimis levels” as to both of the two critical ozone-producing pollutants and that the new flights would not undercut the state’s implementation plan for air quality. As for surface traffic, the FAA found that none of the flights would affect peak morning traffic and only one would affect peak evening traffic. Estimating that each flight would generate 70 additional vehicle trips, it concluded that, at worst, the peak evening flight would increase traffic at several intersections on Route 2A by only about 2.65 percent, which the FAA deemed minimal and within the GEIR projection already found to be tolerable. As for noise increase, it found that the increased traffic volume would raise the peak level by less than 0.3 dB, “which is not a perceptible increase.” See 23 C.F.R. § 771.135(p)(5)(iii) (2001). Remarkably, in their lengthy submissions, petitioners make no direct attack on the aircraft noise or air pollution conclusions. Petitioners say only that any reliance on the GEIR was “inappropriate” because it was prepared for “unrelated” operations and is out of date. But in fact, the FAA verified the GEIR’s accuracy by finding that the actual growth at Hanscom as of 1999 coincided almost exactly with the GEIR “modest growth” scenario whose environmental effects had already been considered. The FAA’s surface traffic analysis gets more attention, but even here their discussion is limited to a few pages and is confined to three brands of criticism: highly general claims that the agency’s analysis is inadequate {e.g., that the FAA should have discussed non-peak hour traffic or other intersections); criticisms of the agency’s factual assumptions {e.g., that the FAA underestimated the number of vehicle trips that each passenger would take); or abstract statements of disagreement by other entities {e.g., claims by the National Park Service that increased traffic would have “serious detrimental impacts”). Under settled doctrine, the FAA’s factual findings are conclusive if supported by substantial evidence, 49 U.S.C. § 46110(c), and its reasoning is tested for reasonableness under an arbitrary and capricious standard. 5 U.S.C. § 706(2)(A); Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718-20 (1st Cir.1999). Further, it is up to those who assail its findings or reasoning to identify the defects in evidence and the faults in reasoning. Lomak Petroleum, Inc. v. Fed. Energy Reg. Comm’n, 206 F.3d 1193, 1198 (D.C.Cir.2000). Where the agency is dealing with a very complicated and technical subject, this takes a lot of work by lawyers in culling the record and organizing the information for the reviewing court, but it can be done. Here, the FAA’s final assessment — that a tiny percentage increase in flights would have a de minimis effect — is presumptively inviting but, in principle, can be overcome by a sustained and organized rebuttal. Nothing offered by petitioners approaches such an effort. Gauzy generalizations and pin-prick criticisms, in the face of specific findings and a plausible result, are not even a start at a serious assault. There is one obvious concern, and it is not about the impact of this extremely modest increase in Shuttle America flights. Conceivably, Shuttle America or another airline could appear with a succession of new-destination proposals, each modest in size and in impact; and yet the cumulative effect of the FAA approvals could be major even though no one approval was significant in itself. Either a clear plan for such successive steps or proof that such a succession was foreseeable could conceivably require an overall prospective assessment. 40 C.F.R. §§ 1508.4, 1508.27(b)(7) (2000). But we are not faced with any such developed claim in this case, nor do the known facts suggest any such thing. At the time of Shuttle America’s application, commercial service at Hanscom had been a repeated failure, and there was no reason to believe, at that point, that demand would dramatically increase. Now, Shuttle America has reduced its operations and is under the protection of the bankruptcy court. If Shuttle America or other airlines undertake a series of proposed expansions, it will be time enough to consider whether new and projected activities need to be considered together. Petitioners say that even if the minimal effects finding stands, the FAA’s own regulations still required at least an environmental assessment under NEPA because the proposed action was “highly controversial on environmental grounds.” FAA Order 1050.1D ¶ 32(b). The FAA’s regulations, read literally, indicate that this test is met if the “action” in question is “opposed on environmental grounds by a Federal, State, or local government agency or by a substantial number of the persons affected.” FAA Order 1050.1D, ¶ 17. Although the federal and state agencies did not formally oppose the LaGuardia flights (instead simply asking for more study), the four adjoining towns flatly opposed the new flights. Citing a number of cases, the FAA argues that whether a project is environmentally controversial does not depend on whether vocal opponents exist but on whether reasonable disagreement exists over the project’s risk of causing environmental harm. See, e.g., Found. for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir.1982). Otherwise, says the FAA, projects could be bogged down by a “heckler’s veto” despite the lack of a genuine environmental threat. The FAA says that its own assessment here that the project is not objectively controversial is entitled to deference. The FAA’s approach certainly makes sense on policy grounds, but it is in some tension with the wording of its own regulation, which seems to make official opposition to the proposed “action” the trigger. By contrast, the decisions on which the FAA relies interpret “controversial” as used in other regulations, where the term modifies “effects” — phrasing more helpful to the FAA’s reading. See, e.g., id. (interpreting 40 C.F.R. § 1508.27(b)(4)). We need not decide whether the latitude allowed to the agency in interpreting its own regulations, see Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994), stretches to a reading that may make policy sense but appears at odds with the language. (Certainly the FAA might wish expressly to clarify its language for future cases.) Rather, we think that even if the “controversial” action regulation is read in petitioners’ favor, it makes no sense to remand for an environmental assessment where, as here, the FAA has already made a reasoned finding that the environmental effects are de minimis. In a nutshell, the failure to make a more formal assessment was harmless error. The doctrine of harmless error is as much a part of judicial review of administrative action as of appellate review of trial court judgments. Indeed, the Administrative Procedure Act, 5 U.S.C. § 706, says that in reviewing agency action, the court “shall” take due account of “the rule of prejudicial error,” ie., whether the error caused actual prejudice. And while many of the decisions involve harmless substantive mistakes, no less an authority than Judge Friendly has applied the harmless error rule to procedural error, as has the circuit that most often reviews agency action. Obviously, a court must be cautious in assuming that the result would be the same if an error, procedural or substantive, had not occurred, and there may be some errors too fundamental to disregard. But even in criminal cases involving constitutional error, courts may ordinarily conclude that an admitted and fully preserved error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Agency missteps too may be disregarded where it is clear that a remand “would accomplish nothing beyond further expense and delay.” Kerner, 340 F.2d at 740. We will assume that an environmental assessment and finding of no significant impact might look somewhat different in form and follow somewhat more complicated procedures than the study and findings by the FAA in this case. See generally 40 C.F.R. §§ 1501.4, 1508.9, 1508.13 (2000). But this case does not involve a simple refusal to study environmentally problematic consequences. On the contrary, even though only seven to ten flights a day are realistically at issue, the FAA examined each of the three principal possible negative effects and found each to be de minimis, and petitioners have provided no basis for serious doubt about those findings. Under these circumstances, the presence of “controversy” is beside the point. Ultimately, the entire NEPA process is designed to make certain that significant negative effects are taken into account. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-50, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Remanding for a differently named assessment, where the project’s negative consequences have already been analyzed and found to be absent and the findings have been disclosed to interested parties, is a waste of time. If there was error in denominating the assessment, it was patently harmless. The same is true of petitioners’ argument that the FAA committed a procedural error by failing to consult adequately with the Massachusetts Historical Commission. As already noted, NHPA imposes an obligation not only to take account of adverse effects of an “undertaking” on historic properties but also to permit the federal Advisory Council a “reasonable opportunity to comment.” This might sound like an obligation easily discharged, but that is far from the case. On the contrary, the Advisory Council’s regulations, once they are triggered, impose a complex consultative process. See generally 36 C.F.R Part 800 (2000). Although the choice whether to approve the undertaking ultimately remains with the agency, it must consult with the state historic preservation officer — here, the Massachusetts Historical Commission — and other “consulting parties” about adverse effects on historic properties, document any no-effect finding, and submit the effects issue to binding review by the Advisory Council if the state officer and the federal agency disagree. 36 C.F.R. §§ 800.4, 800.5 (2000). If adverse effects are established, even more complex steps are entailed. Understandably, agencies are loath to submit to this cumbersome process, and the NHPA regulation in effect at the time the FAA acted contained a categorical exemption from the consultation process where “the undertaking does not have the potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a)(1) (2000). No consultation was required for this decision. 64 Fed.Reg. 27,063 (1999). The FAA found that the LaGuardia flights had no such potential and, after some consultation with the state officer, discontinued the process, relying on the regulation’s exemption. As already explained, petitioners make nothing close to a colorable attack on the FAA’s finding that the ten or fewer La-Guardia flights in question would not adversely affect nearby historic sites in any substantial way. Nevertheless, petitioners argue that under section 800.8(a)(1) of the regulations, it is enough to trigger the consultation process that the FAA action is a “type of activity” — a change in operating specifications — that in some other case could have a potential adverse affect. The main support for this reading comes from the language in the overarching paragraph (section 800.3(a)) and the Advisory Council’s amendment of section 800.3(a)(1) following the FAA decision in this case, 65 Fed.Reg. 77,698, 77,726 (Dec. 12, 2000), both of which employ the “type of activity” language. The Advisory Council claims that the amendment reflects what the regulation always meant. Although it is not the most natural reading of the original regulation, a definitive judgment as to meaning would have to allow some deference to an agency’s clarification. See Thomas Jefferson Univ. 512 U.S. at 512, 114 S.Ct. 2381. At the same time, the current regulation could make the exemption useless to the FAA — at least, if the FAA continues to view “operating specifications” as the category to which “type” refers. One could easily think of some change in operating specifications- — -as to equipment, frequency or other variables — that could have a significant environmental effect. Of course, the current regulation does not define the notion of a “type”; conceivably, the FAA could still distinguish among “types” of amendments so as to preserve some role for the categorical exception. We need not resolve any of these questions. The consultative process under NHPA, like the process of creating an EIS or environmental assessment under NEPA, is intended in the end to identify and measure the adverse effects of a proposed action on a protected interest (historic properties for NHPA, the environment for NEPA) so that those effects can be considered by the responsible agency. Here, the FAA did make specific findings that the effects on the environment and on historic properties from ten or so daily flights, against the backdrop of nearly 100,000 flights a year, would be de min-imis. If the question were at all close and if plausible doubts had been raised, requiring a more elaborate assessment with more extensive consultation might serve some useful purpose. But neither is the case and, in these circumstances, the error (if there was one) is harmless. . The petition for review is denied. . The four Hanscom-area towns unsuccessfully sued in Massachusetts state court to enjoin Massport’s application on the ground that it violated promises made in Massport’s 1978 Hanscom Master Plan. Hanscom Area Towns Comm. v. Mass. Port Auth., CIV No. 99-04461-F (Mass.Sup.Ct.1999). . Since that time, Shuttle America has entered into Chapter 11 reorganization proceedings, but it continues to maintain one La-Guardia flight daily and has stated that it hopes eventually to reinstate its previous level of service. . Cotter v. Mass. Ass’n of Minority Law Enforcement Officers, 219 F.3d 31, 33 (1st Cir.2000), cert. denied, 531 U.S. 1072, 121 S.Ct. 762, 148 L.Ed.2d 663 (2001); Town of Norwood, Mass. v. Fed. Energy Reg. Comm’n, 202 F.3d 392, 405-06 (1st Cir.), cert. denied, 531 U.S. 818, 121 S.Ct. 57, 148 L.Ed.2d 24 (2000). . Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996). . FAA Order 1050.ID, which was in effect at the time of the LaGuardia amendment, is the FAA's formal rule for implementing all three statutes implicated in this case. 49 Fed.Reg. 28,501 (July 12, 1984). A proposed revision to the order is not relevant here. See 64 Fed.Reg. 55,526 (Oct. 19, 1999). . These noise contour lines demarcate the land area enclosed within a particular level of noise, measured in "day-night average sound level” ("DNL”) units, which represent the average decibel level at a particular location over a 24-hour period. . Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.1965) (Friendly, J.). See also Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 649 (D.C.Cir.1994) (failure to allow comment in hazardous waste standard case was harmless error); Illinois Commerce Comm’n v. ICC, 848 F.2d 1246, 1257 (D.C.Cir.1988) (order to prepare an environmental assessment or an EIS would be "a meaningless gesture”); Gerber v. Babbitt, 146 F.Supp.2d 1, 4-5 (D.D.C.2001) (failure in NEPA case to make site location and map public was harmless procedural error). . Assuming an adverse effect is found, the agency must consult with the state officer and other consulting parties to develop and evaluate mitigation measures. 36 C.F.R. § 800.6 (2000). The process is then completed either by a "memorandum of agreement” between the agency and the consulting parties, which then governs the federal undertaking, 16 U.S.C. § 470h-2(Z), or by termination of the consultation by the agency followed by the issuance of formal comments by the Advisory Council, 36 C.F.R. § 800.7 (2000). . Prior to the amendment, 36 C.F.R. § 800.3(a) (2000) read as follows: (a) The Agency Official shall determine whether the proposed Federal action is an undertaking ... and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.... (1) If the undertaking does not have the potential to cause effects on historic properties, the Agency Official has no further obligations under section 106. The amendment changed section 800.3(a)(1) to read "If the undertaking is a type of activity that does not have the potential to cause effects on historic properties...." 65 Fed. Reg. 77,698, 77,728 (Dec. 12, 2000).

Concerned Citizens Alliance, Inc. v. Slater

OPINION OF THE COURT BECKER, Chief Judge. Highways and historic districts mix like oil and water, and when a new highway must go through an historic area, historic preservationists and federal and state highway officials are likely to clash over the preferred route. Such controversies take on a legal cast as the result of Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c)(2) (amended by and codified at 23 U.S.C. § 138), which provides: [T]he Secretary [of Transportation] shall not approve any program or project ... which requires the use of any ... land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such ... historic site resulting from such use. Id. The situs of the present controversy is Danville, Pennsylvania, a picturesque county seat overlooking the Susquehanna River. Danville, which contains an historic district that was nominated to the National Register of Historic Places in 1994, is joined with Riverside, the town across the river, by a deteriorating bridge. In the early 1980s, federal and state agencies decided that the bridge had to be replaced. The plaintiffs, Danville area residents who formed the Concerned Citizens Alliance, sued the U.S. Department of Transportation, the Federal Highway Administration (“FHWA”), and the Pennsylvania Department of Transportation (“PennDoT”) in the District Court over the defendants’ selection of a bridge alignment that would send traffic through Danville along Factory Street after it exited the new bridge. The plaintiffs contend that the defendants failed to comply with the requirements of Section 4(f)(2) by arbitrarily and capriciously selecting the Factory Street Underpass alignment as the preferred alternative. The plaintiffs also submit that the defendants ignored the conclusion of the Advisory Council on Historic Preservation (“ACHP”) that the Mill Street alternative would minimize harm to the Danville Historic District. Although both alternatives pass through the Historic District, plaintiffs maintain that the defendants failed to adequately support their conclusion that the Underpass alternative was preferable. Additionally, the plaintiffs allege that the defendants violated both Section 4(f) and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 eb seq., by failing to evaluate in detail an alternative that would include, in addition to rebuilding the current bridge, building a second bridge upstream to allow traffic to reach the nearby connection to Interstate 80 without going through the center of Danville. The District Court granted summary judgment for the defendants on all grounds, and this appeal followed. We devote our attention to three critical issues. First, we consider the level of deference the FHWA owes to the ACHP, which is an expert agency created to comment on federally assisted projects involving historic properties, and whether the appropriate deference was given. Second, we evaluate whether the defendants acted arbitrarily in concluding that the Factory Street Underpass alternative would inflict the least amount of harm on the Historic District. Third, we determine whether the defendants violated NEPA. We conclude that, although the views of the ACHP are entitled to deference, the ACHP cannot mandate a particular outcome. Rather, we must carefully review the record to assure that the views of the ACHP were in fact considered and any concerns it raised were answered. We also conclude, based on the entire administrative record, that they were, and that the defendants did not act arbitrarily or capriciously in selecting the Factory Street Underpass alternative.. Finally, we agree with the District Court that the plaintiffs’ NEPA claim is without merit. We therefore will affirm the judgment of the District Court. I. Facts and Procedural History The Danville-Riverside Bridge carries Pennsylvania Route 54 across the Susquehanna and links Danville to Riverside. Route 54 (in the form of Mill Street) passes through the center of Danville and provides access to Interstate 80 a few miles northwest of Danville. In 1983, defendants FHWA and PennDoT decided to replace the old Danville-Riverside Bridge, which was becoming unsafe. Some twelve options were put on the table. The alternatives relevant to this appeal included the “No-Build” alternative, the Mill Street alternative (“MS alternative”), the Factory Street AWGrade alternative (“FSAG alternative”), the Factory Street Underpass alternative (“FSU alternative”), and the Mill Street plus Bypass alternative (“MS&B alternative”). Originally, the goal of the bridge replacement project was just that: to replace the bridge. Therefore, the FHWA initially refused to consider the MS&B alternative, since it involved not only replacing the existing Danville-Riverside Bridge but also building another bridge 1.2 miles upstream to siphon off “through” traffic to reduce the number of cars and trucks passing through Danville’s Historic District. However, Mill Street, on which many shops and businesses are located, is the main commercial street in the district, and in response to comments from the Mill Street business community, the FHWA broadened the stated purpose of the project to include reducing traffic congestion to restore ■ the economic health of Mill Street. The MS&B alternative was therefore placed on the table, although it never received detailed evaluation. The Evaluation of Project Need listed twenty objectives that the bridge replacement project was to fulfill. These included replacing the deteriorating bridge; minimizing vehicle delay and traffic congestion on Mill Street; maintaining a link between Danville and Riverside through the year 2013; managing traffic congestion on Factory Street; restoring the Mill Street neighborhood, quality of life, and business district; and minimizing pedestrians’ exposure to traffic. Importantly, both Mill Street and Factory Street are in the Historic District. The Final Environmental Impact Statement (“FEIS”) describes the collection of commercial, civic, and residential structures along Mill Street as dating “from the mid-nineteenth century to the early twentieth. The two and three story buildings are predominantly Italianate in style with features including blind arches, corbelling, bracketed and highly decorative roof and storefront cornices, columns and window hoods.” The FEIS also describes the buildings on West Market Street, a street linking Mill and Factory Streets: “A range of architectural styles are represented including Federal, Greek Revival, Italianate, Second Empire, Victorian Eclectic, Queen Anne, Shingle and Georgian Revival.” Factory Street, which is a smaller street one block west of Mill Street, contains mostly residences — both historic and non-historic — and boasts “large, stately buildings” that were “the homes of Danville’s wealthy industrialists who shaped the iron industry as well as the architectural character of the present day West Market Street neighborhood.” Currently, bridge traffic flows along Mill Street and travels the length of the Historic District, although to avoid the congestion, some traffic cuts west on West Market Street to.access Factory Street, which eventually connects up with Route 54. The FSU alternative would realign traffic coming off the bridge on the Danville side by routing traffic down Factory Street and through a 345-foot “cut-and-cover” underpass that would begin between Front and Market Streets and end between Market and Mahoning Streets. The MS alternative would replace the bridge but maintain the current traffic flow along Mill Street. The FSAG alternative would simply route traffic onto and along Factory Street without directing traffic through an underpass. In considering the various alternatives, the FHWA engaged in the requisite Section 4(f) and NEPA analyses. As we detail below, Section 4(f) requires the FHWA to ensure that there are “no prudent and feasible” alternatives that would avoid using historic properties, and, in the absence of a feasible alternative, to undertake “all possible planning to minimize harm” to the Danville Historic District. In performing its 4(f) analysis, the FHWA garnered input from the ACHP and the Pennsylvania Historical and Museum Commission (“PHMC”). Both historical groups notified the FHWA that they preferred the MS alternative. In a letter dated January 14, 1994, the ACHP complained that the FSU alternative, which was favored by FHWA and which included the underpass, would destroy vistas, landscaping, and pedestrian and vehicle circulation patterns, and would create an overwhelming visual intrusion in the form of large retaining walls. The ACHP also feared that the increased traffic on Factory Street would create noise and fumes that would be out of character in that part of the district. Noting that Mill Street was the traditional gateway into the town, the ACHP felt that traffic was not out of character there, and that the MS alternative was thus the “least harm” alternative under 4(f)(2). In response to the ACHP’s concerns about the FSU alternative, PennDoT retained Mary Means & Associates, a private consulting firm with expertise in urban design and economic analysis of historic areas, to evaluate the MS and FSU alternatives. The Means firm wrote a report that acknowledged that the FSU cut-and-cover alternative would in fact do irreparable damage to the town, but concluded that the FSU option would cause the least damage to the long term viability of the Historic District. The Means Report also stated that the MS alternative failed to relieve the serious congestion and turning movements caused by the constant truck traffic in an older downtown. Pursuant to NEPA, and as part of the decisional process, the FHWA prepared first a Draft and then a Final Environmental Impact Statement (“EIS,” “DEIS,” or “FEIS”), both of which contained the required Section 4(f) evaluations. The EIS considered all of the alternatives listed above (and more), but concluded that only four merited detailed study as reasonable and prudent options: the FSU alternative, the MS alternative, the FSAG alternative, and the No-Build alternative. The FHWA did not perform a detailed study of the MS&B alternative, since the Agency deemed that alternative unreasonable. The FHWA ultimately selected the FSU alternative. The ACHP and the FHWA signed a Memorandum of Agreement (“MOA”) which stated that the FSU alternative had been chosen and prescribed several measures to mitigate its impacts. The FHWA subsequently signed a Record of Decision (“ROD”), memorializing the FSU alternative as the selected alignment for the project. In its Section 4(f) analysis, the ROD concluded that the FSU alternative would best minimize harm to the Historic District by (i) physically and visually separating traffic from the Historic District; (ii) reducing traffic on Mill Street; and (iii) requiring the demolition of a smaller contributing historic structure than the MS alternative would. The ROD also deemed the Mill Street alternative undesirable because the Mill Street traffic would detract from the atmosphere in the historic downtown area. Since construction on the bridge was scheduled to begin in July 1998, the plaintiffs, who continued to object to the selection of the FSU alternative, moved for a temporary restraining order and a preliminary injunction in late May 1998. The district court denied the motions. On the same day, the parties also filed cross-motions for summary judgment. In response to the defendants’ motion, the plaintiffs attached a letter from the ACHP dated June 29, 1998, explaining that its decision to sign the MOA did not constitute a retraction of its earlier statement that it preferred the MS alternative. The District Court granted the defendants’ motion to strike the ACHP letter from the record. It also denied plaintiffs’ motion for a permanent injunction, and then granted summary judgment for the defendants. This appeal followed, over which we have jurisdiction pursuant to 28 U.S.C. § 1291. The plaintiffs seek the cessation of preparatory construction activities and a remand to FHWA with instructions to comply with Section 4(f) and NEPA. When, as here, we are reviewing an administrative agency’s final decision under § 706 of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., we review the district court’s summary judgment decision de novo, while “applying the appropriate standard of review to the agency’s decision.” See Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997). The appropriate standards of review of the agency’s decisions are explained below. II. Discussion A. The Requirements of Section h(f) Because the Danville-Riverside Bridge replacement project is a federal-aid project that will, under any proposed alternative, “use” at least one historic structure in Danville’s Historic District, the project must satisfy the requirements of Section 4(f) of the Department of Transportation Act, 23 U.S.C. § 138 (“Section 4(f)”), as well as the requirements of NEPA, 42 U.S.C. § 4332(2)(C) (mandating an EIS and consultations with federal agencies that have special expertise when an agency undertakes major federal action affecting the quality of the human environment). Section 4(f) mandates that the protection of historic properties, parks, recreation areas, and wildlife refuges be given paramount importance in transportation planning. As discussed above, it does so by requiring the Secretary of Transportation to use non-historic property unless there is no other feasible alternative, see Section 4(f)(1), and to minimize harm to the historic property once it is determined that such land must be used, see Section 4(f)(2). It is undisputed that only Section 4(f)(2) is at issue in this case, since each alternative before the FHWA involved a “use” of at least one historic structure in the Historic District. Under Section 4(f)(2), the Secretary of Transportation must perform a balancing test when weighing the alternatives under consideration. We agree with the Eleventh Circuit’s explication that [SJection 4(f)(2) requires a simple balancing process which totals the harm caused by each alternate route to section 4(f) areas and selects the option which does the least harm. The only relevant factor in making a determination whether an alternative route minimizes harm is the quantum of harm to the park or historic site caused by the alternative. Considerations that might make the route imprudent, e.g., failure to satisfy the project’s purpose, are simply not relevant to this determination. If the route does not minimize harm, it need not be selected. Druid Hills Civic Ass’n v. Federal Highway Admin., 772 F.2d 700, 716 (11th Cir.1985) (citations omitted); see also Louisiana Envtl. Soc’y, Inc. v. Coleman, 537 F.2d 79, 85-86 (5th Cir.1976). In a Section 4(f) challenge, the plaintiff bears the burden of showing by a preponderance of the evidence .that the Secretary acted improperly in approving the use of protected property. See Ringsred v. Dole, 828 F.2d 1300, 1302 (8th Cir.1987) (citing Louisiana Envtl. Soc’y, Inc. v. Dole, 707 F.2d 116, 119 (5th Cir.1983)). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court made clear that while the Secretary of Transportation’s decision is entitled to a presumption of regularity, a court nevertheless must subject the Secretary’s decision to “probing, in-depth” review. See id. at 415, 91 S.Ct. 814. When reviewing a Section 4(f)(2) determination, a court must decide whether the Secretary’s ultimate decision was arbitrary, capricious, or an abuse of discretion. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 204 (D.C.Cir.1991) (applying arbitrary and capricious review to Secretary’s Section 4(f)(2) determination); Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 65-66 (D.C.Cir.1987) (same). This assessment requires an evaluation of whether the decision was based on consideration of the relevant factors and whether there was a clear error of judgment. See Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The Section 4(f)(2) balancing process “permits the Secretary to engage in a broad consideration of the ‘relative harm’ arising from various alternates [sic].” Coalition on Sensible Transp. Inc. v. Dole, 642 F.Supp. 573, 603 (D.D.C.1986), aff'd, 826 F.2d 60 (D.C.Cir.1987). The plaintiffs — who believe that the FSU alternative is not the alternative that would cause the least harm to the Dan-ville Historic District — claim that the defendants have violated Section 4(f)(2) in three ways. First, they allege that the FHWA “completely ignore[d]” the ACHP’s conclusion that the MS alternative was preferable. Second, plaintiffs contend that each of the defendants’ stated reasons for selecting the FSU alternative deserves no weight, and that nothing in the administrative record supports the conclusion that the FSU alternative best minimizes harm. Third, they argue that the defendants arbitrarily excluded from detailed consideration an alternative that might have imposed the least harm on the Historic District — the MS&B alternative. In light of these arguments, we will review for abuse of discretion the Secretary’s decision that the FSU alternative would do the least harm to Section 4(f) resources. B. Section 106: Deference to the Advisory Council on Historic Preservation The initial basis on which plaintiffs contend that the defendants’ actions were arbitrary and capricious is that the defendants failed to take into consideration the comments of the ACHP. This consideration stems from 16 U.S.C. § 470f (also known as “Section 106”), under which the Secretary must take into consideration the comments of the ACHP when contemplating an undertaking that will affect a site or structure listed in the National Register. As a preliminary matter, we must determine what level of deference the Secretary owes to the ACHP’s assessment of the impacts of the MS and FSU alternatives on the Danville Historic District. The ACHP is an expert federal agency created by Congress pursuant to the National Historic Preservation Act (codified at 16 U.S.C. § 470 et seq. (1994)) (“NHPA”). Under Section 106 of the NHPA, the ACHP must be given a “reasonable opportunity to comment” on the effect of federally-assisted projects on historic properties. See id. We must decide what weight a federal agency must give to the ACHP’s comments; the amount of deference owed the ACHP will factor into our analysis of whether the Secretary’s calculus was arbitrary or capricious. Both courts and the relevant regulations suggest that Section 106 imposes a limited set of obligations on federal agencies. See Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287, 1290 (4th Cir.1992); 36 C.F.R. § 60.2(a); 36 C.F.R. § 800.6 (explaining the Section 106 process and requiring that the Agency “consider” the ACHP’s comments). Though the text of Section 106 does not specify what the Advisory Council’s “opportunity to comment” on a project entails, the Advisory Council’s regulations and the legislative history demonstrate that the total response required of the agency is not great. See Waterford, 970 F.2d at 1290 (noting that Section 106 is silent on the proper disposition of a disagreement between the Advisory Council and the agency over the potential adverse effect of an undertaking). Indeed, even the ACHP’s own regulations, see 36 C.F.R. § 60.2(a), state that after having given the ACHP an opportunity to comment, “the Federal agency may adopt any course of action it believes is appropriate. While the Advisory Council comments must be taken into account and integrated into the decisionmaking process, program decisions rest with the agency implementing the undertaking.” See id. The Waterford court concluded, “There is thus no suggestion in either the statute or the legislative history that section 106 was intended to impose upon federal agencies anything more than a duty to keep the Advisory Council informed of the effect of federal undertakings and to allow it to make suggestions to mitigate adverse impacts on the historic sites under its protection.” See 970 F.2d at 1291; see also Vieux Carre Property Owners v. Brown, 948 F.2d 1436, 1447 (5th Cir.1991) (“[B]e-cause, as the Corps points out, the Advisory Council’s comments are advisory only and do not bind the Corps to a particular course of action, the Corps might decide not to require mitigation measures even if the Advisory Council should recommend them.”); Illinois Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988) (noting that Section 106 is a “stop, look, and listen” provision that merely requires that an agency acquire information before acting). We agree. While the ACHP’s recommendations do not and cannot control agency decision-making, the relevant agency must demonstrate that it has read and considered those recommendations. See Coalition Against a Raised Expressway, Inc. v. Dole, No. 84-1219-C, 1986 WL 25480 (S.D.Ala. Oct.20, 1986) (holding that the agency complied with Section 106 when its responses to ACHP comments indicated that it took the comments into consideration even though it ultimately disagreed with them), aff'd, 835 F.2d 803 (11th Cir.1988). Counseled by the congressional inclusion of Section 106 in the NHPA, we acknowledge historic preservation as a highly important societal interest. As a civilization, we suffer a terrible loss if we do not make every reasonable effort to preserve our heritage, which may be enshrined in bricks and mortar as well as in books and documents. We think, however, that Congress was delivering this message primarily to the federal agencies, rather than trying to instruct federal appellate courts to inject some subtle (and inevitably elusive) calibration into their process of reviewing historic preservation cases. Given the plethora of federal regulatory statutes that impose obligations on the judiciary to review administrative decisions, such a construction might lead to a hodge-podge jurisprudence. We agree that the FHWA must take the ACHP’s comments into account when balancing alternatives, and must demonstrate that it gave the ACHP’s conclusion genuine attention: Congress did not create the ACHP so that it could be a toothless agency. However, the ACHP’s own regulations are clear that the acting federal agency need not agree with the ACHP’s determination that a given alternative is the “least harm” alternative. In sum, a federal agency undertaking a project affecting historic properties is not obligated to give the ACHP’s opinion so much weight that it is foreclosed from making its own decision, though it must make clear in the record that the ACHP’s comments were taken seriously. The ACHP opined that “the Mill Street alignment best avoids or reduces the effects of this project on the Danville Historic District and should be considered the preferable alignment.” The ACHP reasoned that the proposed mitigation of the cut-and-cover section would not adequately minimize the effects of added traffic on the Factory Street neighborhood; that the FSU option would create “harmful visual impacts”; and that the underpass would destroy important topographical, landscape, and circulation systems that contribute to the Historic District’s character and significance. Although they acknowledge the correctness of the proposition that the ACHP’s concurrence in the selected alternative is not required by statute, plaintiffs (in effect) nonetheless contend that because the FHWA did not agree with the ACHP that the MS alternative imposed the least harm, the FHWA must have acted capriciously. We address their contention under our proper standard of review. Despite the plaintiffs’ assertions that the defendants ignored the ACHP’s comments and thus acted arbitrarily in selecting the FSU alternative, the administrative record reveals that the defendants seriously took into consideration the ACHP’s objections. First, the record shows that the ACHP has been heavily involved in this project. A number of letters and memoranda that passed between the parties — either written by the ACHP itself or by FHWA and PennDoT — indicate that the defendants were aware of the importance of trying to gain the ACHP’s support for the FSU alternative. See, e.g., A 584 (letter from PennDoT) (“We concur that consultation with the State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation is crucial for advancement of the preferred alternative.”); A 589 (letter from FHWA) (scheduling a conference call to discuss ACHP’s January 14 letter expressing a preference for the MS alternative); A 652 (Mary Means letter) (making revisions in draft report based on work session with PHMC and ACHP). Second, after the ACHP first expressed its concerns, the defendants hired a consultant suggested to them by PHMC. Third, the ACHP and PHMC were involved in drafting the mitigation measures for the selected alternative. The record thus demonstrates that the defendants considered the ACHP’s comments, and at least to some degree integrated those comments into the decisionmaking process both substantively and procedurally. Section 106 does not require more. We do not, however, put this subject to rest with these comments about the ACHP’s role; rather, in considering whether the Secretary acted arbitrarily and capriciously under Section 4(f)(2), we perforce examine the substantive basis for the defendants’ disagreement with the views of the ACHP. C. Did the Secretary Act Arbitrarily and Capriciously Under 4(f)(2)? In addition to their concern about the way the defendants treated the ACHP’s opinion, the plaintiffs submit that there is no support in the administrative record for choosing the FSU alternative as the “least harm” alternative, and that the defendants therefore acted arbitrarily in choosing that alternative as the bridge replacement plan. Specifically, the plaintiffs argue that the defendants ignored the noise, air quality, vibration, traffic, and visual impacts that the FSU alternative would have on the Historic District; that the Means Report does not support defendants’ position because it focused on the economic health of the town rather than its historic preservation; and that Mary Means was biased toward the FSU alternative since she was later selected to implement part of the mitigation plans under that alternative. We will address the first two concerns; we find no merit in the plaintiffs’ third claim, since Means drafted her report with no knowledge that she might later be retained as part of the mitigation design team, and we reject it summarily. 1. Factory Street and West Market Street First, the plaintiffs claim that the FSU alternative will destroy the Factory Street “streetscape” and will create a visual intrusion in the form of retaining walls around the underpass. The ACHP concluded that the streetscape at the intersection of Factory and West Market Streets (under which the underpass would run) was an important element of the Historic District that would be completely altered by the underpass. Based on National Park Service guidelines, which acknowledge that intangibles like streetscapes and layouts of roads are important to the integrity of historic districts, see U.S. Dep’t of Interior, National Park Service, National Register Bulletin # 15, How to Apply the National Register Criteria for Evaluation 44 (Rev. 1991), we think that the plaintiffs are correct that the defendants must consider more than the individual buildings and structures in an historic district when analyzing the impact of a project. In the instant case, however, the record reflects that the defendants have considered the effect of the FSU alternative on the extant streetscape. First, the underpass itself is an attempt to minimize the effect of increased above-ground traffic on Factory Street. It not only eliminates traffic on a portion of Factory Street, but it also eliminates it at the most important — and beautiful — intersection in the Historic District: the intersection of Factory and West Market Streets. Second, the planned mitigation measures in the FEIS and MOA will reduce the change imposed on the streetscape of Factory Street. The measures create a cover section on top of the underpass, at street level, that will offer an open space in the Historic District. The landscaping and design of the cover will be developed in consultation with local officials, a citizens’ advisory committee, and the State Historic Preservation Office, to be in keeping with the current character of Factory Street. Apparently, features such as gas lamps and attractive landscaping are contemplated. The plaintiffs submit that even if the top of the underpass were designed to mimic a functional street, the presence of safety fencing and vehicle barriers will still be intrusive, and the underpass will, by definition, change the streetscape of much of Factory Street. We agree. However, the street-level surface of the underpass will offer some aesthetic benefits, and the plaintiffs’ criticism, while valid, must be placed in the entire balancing calculus. The plaintiffs’ second argument is not unlike their first: that the defendants have ignored that the FSU alternative would alter the existing character of Factory Street. As the plaintiffs correctly note, “Adverse effects on historic properties include, but are not limited to: ... [introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting.” See 36 C.F.R. § 800.9(b)(3). The plaintiffs characterize Factory Street as quiet and residential, in contrast to Mill Street, where heavy traffic is to be expected. To some extent, the defendants agree with this characterization, noting in the FEIS that Factory Street is residential in nature. However, it appears from the record that only one of the historic structures facing Factory Street is currently a residence, although a number of other historic structures, such as carriage houses and garages, front Factory Street. The Secretary did not ignore this character-altering drawback to the FSU alternative; indeed, the Means Report acknowledges that the FSU alternative will affect the character of Factory Street, and balances it against other considerations. However, Factory Street’s character may not be altered as drastically as the plaintiffs suggest, since Factory Street currently is exposed to a fair amount of traffic composed of cars and trucks that cut from Mill Street across Market Street onto Factory Street in order to avoid the heavy traffic on Mill Street. In addition, the Secretary took into account the benefits to the existing character of historic Mill Street in choosing the FSU alternative. Third, the plaintiffs claim that the FSU alternative will isolate the part of West Market Street that lies west of Factory Street from the rest of the Danville Historic District by making it hard for pedestrians to cross Factory Street. We do not think that this argument has much to commend it. The cross streets of Mahoning, Market, and Front will remain open to local traffic and existing sidewalks will be maintained. While portions of the west side of Factory Street will be slightly less accessible to pedestrians under the FSU alternative, this factor is not a critical one in determining whether the defendants acted arbitrarily. 2. Traffic The plaintiffs also complain about the increased traffic volume on Factory Street that will occur under the FSU alternative. According to the plaintiffs, traffic would increase 400% on Factory Street under the FSU alternative. The defendants, by contrast, calculate that by the year 2013, traffic would have increased only 226%. Even if we assume that the plaintiffs’ estimate is correct, traffic on West Market between Factory and Mill Streets is expected under the FSU alternative to drop by the year 2013 from 525 cars at peak hours to 125 cars at peak, a 76% decrease. Under the MS alternative, cars and trucks would continue to detour onto Factory Street to avoid Mill Street traffic, thus failing to abate traffic problems on either Factory or Mill Streets. However, under the FSU alternative, the traffic volume on Mill Street would decrease substantially. Therefore, though the FSU alternative will increase traffic on Factory Street, it will reduce traffic on other streets in the Dan-ville Historic District. We therefore cannot hold that — based on traffic projections — it was arbitrary for the defendants to opt for the FSU alternative. 3. Noise, Exhaust, and Vibration The plaintiffs argue that the defendants failed to consider the increased traffic noise and exhaust fumes that the underpass would foster. The record suggests otherwise. As for exhaust, the defendants calculated the expected carbon monoxide levels at seventeen sites and determined that none of the predicted concentrations would exceed National Ambient Air Quality Standards. While plaintiffs appear to be correct that the defendants did not study the impact of the predicted carbon monoxide levels on the historic structures on Factory Street, we do not believe that this omission alone renders the defendants’ judgment arbitrary. Regarding noise, it is clear that the defendants performed ample noise studies at fourteen selected sites on Market, Mill, and Factory Streets, and three sites in Riverside. Under the No-Build alternative, the noise levels at eleven of the seventeen sites would equal or exceed abatement levels. Under the MS alternative, the levels at eleven of the seventeen sites would equal or exceed abatement levels. Under the FSU alternative, the levels at eight of the seventeen sites would equal or exceed abatement levels. Comparing the alternatives by site, the decibel level is expected to be louder in 2013 under the MS alternative for eight sites, and louder under the FSU alternative for six sites. The plaintiffs note that the FSU alternative would increase the noise impact from its present levels at nine of seventeen sites by 2013. They fail to note that the MS alternative would increase the noise impact from its present levels at all seventeen of the sites. Only one site will be directly impacted by portal noise under the FSU alternative; the structure on that site will be relocated. The plaintiffs also express concern that the underpass will eliminate only a small amount of noise relative to the intrusion it imposes on the area. However, the District Court found that there were “four large residential structures” at the intersection of Factory Street and West Market Street (all four of which are contributing structures to the Historic District) and that the noise impacts at the intersection of Factory and Market would be significantly lower under the FSU alternative than the MS alternative, since those four structures would be shielded from Factory Street noise by the underpass. In sum, from a noise standpoint, the FSU alternative is quite clearly the preferable choice. Although the plaintiffs do not indicate that they are concerned about the effects of vibration on historic structures under the various alternatives, the record indicates that the FSU alternative will ameliorate vibration effects both on Factory Street and on Mill Street. The defendants calculated that the FSU alternative would result in “vibration magnitudes at the residences on Factory Street and Market Street which are less than existing vibration magnitudes.” They reached this conclusion by noting that the new underpass increases the current pavement surface area by 58%. Since vibration energy is dissipated through pavement, the increase in traffic presumably would be countered by the increased (and sunken) surface area of the underpass’s pavement. The Means Report compares the vibration effects on Mill and Factory Streets under current and future plans. The Report points out that the current level of vibration on Mill Street “threatens the long-term life of the historic commercial structures that line the downtown’s central artery” and that the reduced vibration on Mill Street under the FSU alternative makes “redeveloping second story space” along Mill Street “more attractive.” It also concludes that PennDoT’s vibration studies “do not indicate a significant deterioration in terms of livability near the cut- and-cover underpass.” The record thus suggests that the FSU alternative will better ameliorate the impacts of vibration on the Historic District. 4. Histone Structures to be Destroyed The plaintiffs strongly object to the fact that the defendants calculated the square footage of the two historic structures to be relocated or destroyed (one under the FSU alternative and one under the MS alternative) and compared the footage when arguing that the FSU alternative was preferable. The structure to be taken under the FSU alternative covers .1 acre, whereas the structure to be taken under the MS alternative covers .3 acres. The defendants submit that it is better to take a smaller structure than a larger one. Case law teaches that the evaluation of harm requires a far more subtle calculation than merely totaling the number of acres affected. See District of Columbia Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971). Nevertheless, the plaintiffs do not indicate why the smaller structure is the more historically significant (though it is their burden to show that the defendants’ decision was arbitrary and capricious), and the record discussion of the two buildings in the FEIS does not indicate that they differ significantly in historical worth. The FEIS describes 2-4 Front Street, the historic structure that would be taken under the MS alternative, as a multi-family residential structure. The FEIS states, “The two story frame dwelling which dates from the late 19th century is in good condition, but has fair historical integrity due to the application of aluminum siding.” The FEIS describes 9 Factory Street (which would be destroyed under the FSU alternative) as a two story dwelling with the rear dating from c. 1857 and the front from the late 19th century; the statement describes No. 9 as “fair in both condition and integrity.” Although it would have been helpful for the record to contain more detailed historical evaluations, we cannot hold that 9 Factory Street is of such different historical value that it was arbitrary for the defendants to select the alternative that would require No. 9 to be taken. 5. The Means Report Finally, plaintiffs allege that the Means Report, which concluded that the FSU alternative was the preferred choice, was excessively concerned with the economic benefits that Mill Street businesses would reap under the FSU alternative. They imply that this focus on economics prevented an unbiased analysis of the historic harm that the FSU alternative would inflict on the Factory Street area. In support of their argument, the plaintiffs point to language in the Means Report stating that “from a long term economic vitality perspective, [the FSU Alternative] is the better of the two PennDoT configurations under active consideration.” The plaintiffs contrast that conclusion with an acknowledgment in the Means Report that “if the Factory Street cut-and-cover alternative is built, not only does it do irreparable damage to the traditional skeleton of this remarkably intact 19th century town, it is highly probable that it will foreclose any hope of a bypass.” From these two sentences, the plaintiffs argue that the Means Report acknowledged the serious damage the FSU alternative would have on the Historic District but permitted the favorable economics of the FSU alternative to trump those historic concerns. While these points weigh in the balance, what is dispositive is that the Means Report concluded that “the Factory Street cut-and-cover will have the lesser negative impact on the town’s economic vitality and the overall community character of the Historic District.” (emphasis added). The Means Report, which we find to be thorough and sensitive, by no means ignored the impact of each alternative on the historic properties. 6. Affirmative Reasons for Selecting the FSU Alternative In addition to considering the FSU alternative’s drawbacks, the defendants laid out in the administrative record a number of affirmative reasons why the FSU alternative will inflict less harm on the Historic District. First, the defendants concluded that the FSU alternative will physically and visually separate traffic from the Historic District, especially on Factory and West Market Streets. This traffic currently runs the length of the Historic District on Mill Street. Under the No-Build and MS alternatives, cars would continue to use West Market and Factory Streets as a way to avoid the heavy traffic on Mill Street. Therefore, even under the MS alternative, Factory Street would not be free from traffic. The FSU alternative would thus better manage traffic by limiting the number of cars using Market Street and taking traffic underground for a fair part of its trip through Danville. Second, the defendants emphasize that the FSU Alternative will greatly reduce the crippling traffic on Mill Street, an area that is as much a part of Danville’s Historic District as Factory Street is. The Means Report discusses the impact of Mill Street traffic as “contributing to buildings’ physical decay,” and “threatening] the long-term life of the historic commercial structures that line” Mill Street. Ninety people currently live on Mill Street, and one of the goals of the project is to “restore the residential component of the Mill Street neighborhood.” In balancing the harms and benefits of the various alternatives, the defendants justifiably concluded that the FSU alternative would do much good for Mill Street on an historic level. 7. Conclusion For all of the foregoing reasons, the administrative record supports the FHWA’s finding that the FSU alternative will minimize harm to the Danville Historic District. Even if we were to conclude that the MS and FSU alternatives would impose a comparable amount of harm to Danville’s Historic District, we would be bound to uphold the Secretary’s decision. These decisions are vested by law not in unelected judges but in the accountable Secretary. See Druid Hills, 772 F.2d at 716 (“The Secretary is free to choose among alternatives which cause substantially equal damage to parks or historic sites.”). The defendants performed a large number of studies on the various ways in which the alternatives would impact the Historic District and adequately weighed the results of the studies in selecting the preferred alternative. They also considered the more intangible benefits and harms to Mill and Factory Streets under the competing alternatives. As the foregoing discussion demonstrates, they considered and responded to the com.ments of the ACHP. Therefore, they did not violate Section 106. And as that discussion also demonstrates, it was not arbitrary and capricious for the FHWA to select the FSU alternative under Section 4(f)(2). D. The MS&B Alternative The plaintiffs’ final argument under Section 4(f)(2) is that the defendants violated the statute in designating the MS&B alternative “imprudent” and thus arbitrarily failing to consider the MS&B alternative in detail in the FEIS as a possible 4(f)(2) “least harm” alternative. Courts have held that an alternative that minimizes harm under Section 4(f)(2) can still be rejected if that alternative is infeasible or imprudent. See Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir.1990) (.Hickory I) (acknowledging that Section 4(f)(2) contains an implied “feasible and prudent” test); Druid Hills, 772 F.2d at 716; Louisiana Envtl. Soc’y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir.1976) (same). While the Supreme Court has articulated what “infeasible or imprudent” means in the 4(f)(1) context, it has not spoken to what those terms mean in the 4(f)(2) context. Under Section 4(f)(1), an alternative is not a prudent alternative if there are truly unusual factors present, if the cost or community disruption resulting from the alternative reaches extraordinary magnitudes, or if the alternative presents unique problems. See Overton Park, 401 U.S. at 413, 91 S.Ct. 814. We believe that we should apply a similar “feasible and prudent” determination to the world of alternatives that must be considered under 4(f)(2). See Louisiana Envtl. Soc’y, 537 F.2d at 86 (“Although there is no express feasible and prudent exception to subsection (2), the act clearly implies that one is present.”). We note in this regard that 4(f)(1) sets a very high standard for excluding alternatives that do not use historically significant property, since Congress has determined that the use of such property should be avoided wherever possible. The standard under 4(f)(2) for eliminating alternatives need not be quite so high, since by the time 4(f)(2) is reached, some historically significant property will necessarily be used, as is the case here. We therefore hold that the Secretary must consider every “feasible and prudent” alternative that uses historically significant land when deciding which alternative will minimize harm, but that the Secretary has slightly greater leeway—compared to a 4(f)(1) inquiry-—in using its expertise as a federal agency to decide what the world of feasible and prudent alternatives should be under 4(f)(2). We also look for guidance to case-law examining what “infeasible or imprudent” means in the 4(f)(1) context. The plaintiffs argue that the MS & B alternative, which would require defendants to build another bridge upstream to siphon off “through” traffic that now passes through Danville on its way to a remote location, would minimize the harm to the Historic District by leaving Factory Street intact while reducing Mill Street congestion. They also point out that the Means Report concluded, “Ideally, and most leaders we discussed it with agree, a bypass is the answer.” The defendants rejected the MS&B option without performing an in-depth analysis of it because they concluded the option was imprudent and thus undeserving of inclusion in the balancing-of-harms test mandated by Druid Hills. In the FEIS, the defendants offered four reasons why they had not evaluated MS&B thoroughly and why they had deemed the MS&B alternative imprudent and infeasible. First, the defendants performed a study that asked drivers who used the Danville-Riverside Bridge whether they would use an upstream bypass. The 50% response rate resulted in 3,500 completed surveys, which the defendants felt was a sufficient sample size. Only 25% of the respondents indicated that they would use a bypass. The plaintiffs rejoin that most of the responses came from local traffic, so that the results were skewed downwards, though it is not clear in the record that most of the respondents were traveling locally. A 809 (charting purpose of respondent’s trip but not destination). A determination that 75% of traffic would continue to use the DanvilleRiverside Bridge calls into serious question the usefulness of the bypass alternative in drawing traffic away from Danville. See, e.g., Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159, 164 (4th Cir.1990) (Hickory II) (Secretary may reject as imprudent alternatives that will not solve or reduce existing traffic problems). Second, the defendants cited the cost of the project as high enough to render the MS&B alternative imprudent. The defendants believed that, for financial reasons, only one structure could be built, and that building a bypass upstream would foreclose the most important part of the project, which was to replace the DanvilleRiverside Bridge. They stated, “There is not, at this time, funding allocated and programming scheduled to allow the study and construction of a bypass bridge.” While no cost studies were performed on the MS&B alternative, it is reasonable to assume that the costs required to build not only another bridge but also to lay over a mile of roadway and to cover condemnation, litigation, planning, engineering, and building costs for that roadway might total many times what would be required to rebuild the Danville-Riverside Bridge. Overton Park held that an agency may not exclude an alternative as imprudent under 4(f)(1) based on cost unless the costs would be of “extraordinary magnitudes.” 401 U.S. at 413, 91 S.Ct. 814. Here, it appears that the costs of an additional bridge would meet the definition of “extraordinary.” Third, the defendants highlighted the impact of the additional construction that would be necessary to build the MS&B alternative. The MS&B alternative would require that two bridges be built instead of one, and that an additional 5,500 feet of road be laid, forcing construction that would impact the environment and communities near the second bridge site. Fourth, the defendants argued that there was no need for a bypass, as the FSU or MS alternative could fill the project needs on its own. Even if the cost increases would not be extraordinary, the problematic results' of the use survey and the community and environmental disruption that would result from the additional construction combine to suggest that the MS&B alternative was neither prudent nor feasible. In the 4(f)(1) context, courts have held that an accumulation of smaller problems that, standing alone, would not individually constitute unique problems may together comprise sufficient reason for rejecting an alternative as imprudent. See Committee to Preserve Boomer Lake Park v. Department of Transp., 4 F.3d 1548, 1550 (10th Cir.1993) (“Although none of these factors alone is clearly sufficient justification to reject the alternatives in this case, their cumulative weight is sufficient to support the Secretary’s decision.”); Hickory II, 910 F.2d at 163 (holding that a cumulation of problems may be sufficient reason to reject an alternative as imprudent); Eagle Found., Inc. v. Dole, 813 F.2d 798, 805 (7th Cir.1987) (same). In sum, we cannot conclude that it was arbitrary to reject this alternative in view of the low predicted use rate, the impact of the added construction, and the enormously increased costs, all of which, taken together, make the MS&B alternative imprudent for minimizing harm under 4(f)(2). We therefore hold that the defendants did not violate the requirements of Section 4(f) by failing to consider the MS&B alternative in greater detail. E. NEPA While 4(f)(2) ensures that the Secretary puts his thumb on the scales in favor of protecting historic properties, NEPA, 42 U.S.C. § 4321 et seq., governs the procedures surrounding the requisite balancing. Under NEPA, Congress directed all agencies of the federal government to include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Id. § 4332(2)(C). The agency must also “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources....” Id. § 4332(2)(E). The detailed statement, known as an Environmental Impact Statement (“EIS”), is the device that promotes the fulfillment of NEPA’s goal, which is to “control the more destructive effects of man’s technology on his environment.” Township of Springfield v. Lewis, 702 F.2d 426, 429 (3d Cir.1983) (citation omitted). The way in which NEPA achieves that goal is a procedural one. NEPA ensures that an agency has before it detailed information on significant environmental impacts when it makes its decisions and guarantees that this information is avail-, able to a larger audience. See Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir.1996). “NEPA exists to ensure a process, not to ensure any result.” Id.; see also Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (NEPA requires an agency to take a “hard look” at the potential environmental consequences of proposed projects before taking action); Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 523 (9th Cir.1994) (NEPA does not mandate particular substantive results, but instead imposes only procedural requirements). Under NEPA, an agency decision “to go forward with a major federal action after the agency has prepared and considered an Environmental Impact Statement, requires the court to determine whether all necessary procedures were followed, to consider de novo all relevant questions of law, and to examine the facts to determine whether the decision was arbitrary, capricious, and an abuse of discretion.” See Concord Township v. United States, 625 F.2d 1068, 1073 (3d Cir.1980); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (stating that courts are to review factual disputes that implicate substantial agency expertise under the arbitrary and capricious standard). We make “a pragmatic judgment whether the [EIS’s] form, content and preparation foster both informed decision-making and informed public participation,” and “[o]nce satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, [our] review is at an end.” City of Carmel-By-The-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1150-51 (9th Cir.1997) (citations omitted). The plaintiffs contend that the EIS was inadequate because it failed to consider the MS&B alternative, and that the FHWA therefore violated NEPA. Specifically, the plaintiffs allege that the FHWA only considered the Bypass alternative as a stand-alone alternative—rather than considering it in conjunction with the MS alternative—and therefore rejected the bypass as not meeting the primary purpose of the bridge replacement project. As discussed above, the plaintiffs believe that the combined MS&B alternative would most successfully achieve the goals of the project: to replace the bridge and to limit the traffic volume on Mill Street. To the extent that FHWA did consider the MS&B alternative, the plaintiffs argue, FHWA rejected it on the ground that funding was not available for both a new bridge and a bypass, and the plaintiffs allege that lack of present funding is an improper reason to reject a viable alternative. The defendants respond that they considered the MS&B alternative in the DEIS and FEIS and rejected it as an unreasonable alternative for the four reasons it rejected the alternative under Section 4(f)(2): the origin and destination study indicated that the great majority of traffic would continue to use the Danville-River-side Bridge rather than the bypass; it would vastly increase the scope and construction costs of the project; the FSU alternative alone would satisfy the needs of the project; and it would cause greater social and environmental impacts than the MS or FSU alternative would on its own. NEPA requires the defendants to consider only “reasonable” alternatives in the EIS. See Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1160 (9th Cir.1998) (holding that agency must look at “every reasonable alternative” but “set forth only those alternatives necessary to permit a reasoned choice”); Druid Hills, 772 F.2d at 713 (stating that the EIS should “go beyond mere assertions” and should devote substantial treatment to “all reasonable alternatives”). A number of courts recently have addressed the extent to which federal agencies must consider alternatives under NEPA. These courts have concluded that where the agency has examined a breadth of alternatives but has excluded from consideration alternatives that would not meet the goals of the project, the agency has satisfied NEPA. See, e.g., Moronga Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569, 575-76 (9th Cir.1998) (upholding the defendants’ consideration of alternatives under NEPA as sufficient to permit a reasoned choice); Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1129 (8th Cir.1999) (upholding agency’s decision where the FEIS had considered ten alternative plans of action based on visitor levels and effects of visitor use, eliminated two alternatives that were deemed impractical for failing to meet the goals of the project, and adequately explained why increased visitor use was not a viable goal). In the instant case, the defendants sufficiently explained why the MS&B alternative was not feasible and why it did not warrant a highly detailed examination. The plaintiffs’ argument that the MS&B alternative possibly could help achieve the two project goals of replacing the bridge and reducing Mill Street congestion encounters the same responses that the FHWA offered under Section 4(f): low use rate and excessive construction and environmental costs. In addition, in arguing for the MS&B alternative, the plaintiffs have not offered a “specific, detailed coun-terproposal that had a chance of success.” See City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir.1986); Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th Cir.1975) (holding that EIS did not have to consider alternative sites where plaintiffs failed to allege specific evidentiary facts showing that the alternative sites were reasonable and viable). In Druid Hills, the court concluded, “Although the EIS does not contain what some may feel is a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, we find no sufficient basis in the record to disturb the district court’s conclusion that appellees adequately analyzed the alternatives.” 772 F.2d at 713; see also City of Carmel, 123 F.3d at 1151 (upholding a “reasonably thorough” FEIS). There is necessarily a limit to the thoroughness with which an agency can analyze every option, see Mor-ongo Band, 161 F.3d at 575 (noting that, without parameters and criteria, an agency could generate countless alternatives), and our standard of review is quite deferential, see Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C.Cir.1999). We conclude that the defendants adequately considered the MS&B alternative and its attendant flaws before rejecting it as infeasible. We therefore will affirm the District Court’s grant of summary judgment for the defendants on the NEPA issue as well. The judgment of the District Court will be affirmed. . At oral argument in February 1999, the parties represented that construction on the bridge had not yet begun. . Shortly thereafter, the plaintiffs simultaneously filed an interlocutory appeal from the denial of the TRO and a motion for an injunction pending appeal. A panel of this court denied plaintiffs' motion for an injunction pending appeal and dismissed the appeal from the denial of the TRO. . The plaintiffs contend that the District Court abused its discretion in striking the ACHP letter from the record, since that letter clarifies the ACHP’s current position on the FSU alternative. The ACHP points out that its decision to sign the MOA did not indicate its concurrence in the FSU alternative, but rather bound the defendants to the mitigation measures contained therein. Indeed, the defendants concede that the MOA "asks for concurrence on mitigation measures not concurrence on the selected alternative.” We need not decide whether the District Court abused its discretion in striking the document because, even factoring in the ACHP’s continued opposition to the FSU alternative, we still conclude that the FHWA did not act arbitrarily in selecting that alternative. .Both courts and the Department of Transportation have explained what "use” means in this context. “The term' use’ is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project.” See Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 583 (9th Cir.1998) (quoting Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982)); Department of Transportation Order No. 5610.1A, ¶ 9(c)(1), 36 Fed.Reg. 23681 (1971). . Although the No-Build alternative would not "use” any historic property, the plaintiffs do not argue that the defendants violated 4(f)(1) by failing to select the No-Build alternative. Section 4(f)(1) specifically requires that the Secretary must select an alternative that does not use historic property unless that alternative is infeasible. Here, because the No-Build alternative would not accomplish any of the Project Needs, it is clear why the plaintiffs do not argue that this alternative was feasible. Likewise, while the No-Build alternative was considered in the defendants’ 4(f)(2) analysis, we conclude below that there is an implicit "reasonable and prudent” requirement in Section 4(f)(2). See infra at Part II.D. Therefore, while the No-Build alternative technically would impose the least harm on historic property under 4(f)(2), the plaintiffs do not argue that it was arbitrary not to select the No-Build alternative as the preferred option. . One court has suggested that judgments made by the ACHP deserve "great weight.” Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 858 (9th Cir.1982). However, Pierce cited no case or statute in support of its "great weight” language, and we can find no support for its conclusion. . While the term "streetscape” does not appear in the NHPA or in the regulations promulgated thereunder, it is useful in a Section 106 analysis. We take it to refer to the visual impact of, and the interplay between, the natural and architectural elements that comprise the affected area. . The FEIS slates that the "focal point" of Market Street "is the intersection of Market and Factory Streets.” . There are four large residential structures at the intersection of Factory and West Market Streets, each of which has been deemed a contributing element to the Historic District. None of the four structures actually faces Factory Street. Moreover, Factory Street has experienced some commercialization, since a number of buildings have been transformed into executive and professional offices. The Evaluation of Project Need records that ninety people reside on Mill Street, in second- and third-story apartments over small stores and shops at street level, whereas six people reside on Factory Street. Two residences facing Factory Street would be "used” under the FSU alternative. One building is a non-contributing (that is, non-historic), multi-family dwelling; the other residence is a contributing structure at 9 Factory Street. . While we need not decide whether the economic perspective is permissible, the notion that economic vitality will keep the historic character of Mill Street intact (whereas ignoring the economic health of the district might lead to further disintegration of Mill Street) might well be a relevant factor under the NHPA in a situation like this, where the economic and historic health of Mill Street are so tightly linked. Indeed, revitalizing the economic health of Mill Street was one of the stated purposes of the project. Mill Street merchants and professionals, who are dedicated to restoring the historic architecture on Mill Street, see supra Part I, have formed the Danville Revitalization Corporation ("DRC”), which is committed to making capital investments in the physical appearance of Mill Street buildings and facades. Between 1993 and 1996, the DRC contributed financially to twenty projects involving storefront, signage, and facade improvements. The merchants formed the DRC partly because the future success of the Mill Street business district turns on the district's ability to present a "pleasant, small town, main street environment in an historic architectural setting.” They believe that the best way for Danville to achieve that kind of setting is by reducing traffic on Mill Street. It thus may be true that it is in both the historic and economic interests of Danville to reduce traffic on Mill Street and to protect the historic architecture that lines the street. However, as noted above, we need not decide the appropriateness of the economic perspective in this case. . The plaintiffs are concerned that the proportion of tractor-trailer responses (which comprised 2% of the total responses) is not representative of the makeup of current bridge traffic. Plaintiffs calculate that trucks actually account for 12.5% of all bridge traffic. Nevertheless, even if we assume that there were additional responses by truck drivers such that the proportion of trucks in the survey was 12.5%, and that each of the additional responses stated that the truck driver would use the bypass, the survey would have demonstrated that only 33% of current bridge users would choose the bypass. We believe that a 33% predicted use rate still calls into question the usefulness of the bypass alternative.

Tyler v. Cisneros

CYNTHIA HOLCOMB HALL, Circuit Judge: Plaintiffs James B. Tyler, et al., are homeowners who live in an area of San Francisco immediately surrounding the site of a low-income housing project to be constructed with federal funds. Plaintiffs argue that defendants-the Department of Housing and Urban Development (“HUD”), City and County of San Francisco (“City”), Mission Housing Development Corporation (“Mission Housing”), and 1010 SVN Associates-failed to meet the terms of their own Memorandum of Agreement (“the Agreement”), which was designed to mitigate the project’s impact on plaintiffs’ homes. Because all but one of plaintiffs’ homes were eligible for inclusion on the National Register of Historic Places, plaintiffs sought a preliminary injunction against the project under the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, and the National Environmental Protection .Act (“NEPA”), 42 U.S.C. § 4332. The District Court denied the preliminary injunction and granted defendants’ motion to dismiss, holding that both the NHPA and NEPA claims were mooted by the federal agency’s disbursement of funds to the local agency. ■ The district court had subject matter jurisdiction under 28 U.S.C. § 1331 and the Administrative Procedure Act (“APA”), 5 U.S.C. § 703. This court has jurisdiction under 28 U.S.C. § 1291 to review the' district court’s judgment. We reverse and remand to the district court for further proceedings. I Background In 1994, Mission Housing began planning a low-income housing project to replace two fire-damaged commercial buildings in San Francisco’s Mission District. Mission Housing received federal funding under two programs-the Home Investment Partnerships Program (“HOME funds”) and the Housing Opportunities for People with AIDS Program (“HOPWA funds”). Both of these federal funding programs are administered by HUD, a defendant in this action. HUD committed $1,500,000. in HOME funds to the developer through the City Mayor’s Office of Housing, and it supplied $1,000,000 in HOPWA funds through the San Francisco Redevelopment Agency. Both of the federal funding pro-gramscontain environmental review requirements. See 24 C.F.R. Part 50, 24 C.F.R. Part 58. Pursuant to the delegation provision of 42 U.S.C. § 12838, the City assumed responsibility for NHPA and NEPA compliance before receiving the HOME funds. As to the HOPWA funds, HUD retained the responsibility for NHPA and NEPA compliance as required under 24 C.F.R. § 50.10. The City and HUD reviewed the housing project under both NHPA and NEPA. In the course of the NHPA review, the City determined that the project might have an adverse impact on properties eligible for inclusion on the National Register of Historic Places. In order to mitigate that impact and comply with Section 106 of the NHPA, the City and HUD entered into a Memorandum of Agreement with the federal Advisory Council on Historic Preservation and the State of California. The Agreement included procedures to incorporate public objections in order to ensure that the project remained compatible with the historical and architectural qualities of the surrounding homes. The City and HUD conducted the NEPA review concurrently with the NHPA review. In the course of the NEPA review, the City prepared an environmental assessment, which recommended that the Agreement be included as a condition to project approval. Based on this environmental assessment, the City published a Notice of Finding of No Significant Impact on the Environment (“FONSI”) along with a notice to the public of intent to release the HOME funds. This notice stated that no environmental impact statement would be required because the mitigation measures in the Agreement would adequately address any adverse effects on the environment. HUD then issued its own FONSI with respect to the HOPWA funds, similarly including the Agreement as a condition to project approval. The City then certified that it had fulfilled its NEPA and NHPA obligations and made a formal request for the release of HOME funds. The City and HUD accepted comments on the FONSIs they issued for the HOME and HOPWA funds. HUD formally released these funds to the City after determining that the City’s premature withdrawal of HOPWA funds did not warrant a different action. Between November 1995 and July 1996, Mission Housing submitted architectural plans to the various City planning agencies for review. Plaintiffs raised objections to the plans, urging that changes be made to minimize the project’s incompatibility with the surrounding neighborhood. The plans were approved notwithstanding these objections. On August 23, 1996, plaintiffs brought suit in the U.S. District Court for the Northern District of California, alleging violations of NHPA, NEPA, the APA, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983. The suit named HUD, the City, and Mission Housing as defendants. Soon after filing the complaint, plaintiffs filed a motion for a preliminary injunction, seeking to enjoin any further activity on the project. The defendants filed motions to dismiss the plaintiffs’ complaint. The district court denied plaintiffs’ motion for a preliminary injunction and granted defendants’ motions to dismiss. Tyler v. Cisneros, No. CV-96-03056-VRW, 1996 WL 723083 (N.D.Cal. Dec. 2, 1996). The district court ruled that the plaintiffs’ NHPA claims were moot because the NHPA contained an “implicit statute of limitations,” which barred assertion of NHPA claims as to both the HOPWA and HOME funds after HUD’s release of those funds to the City. 1996 WL 723083, at *4. The district court went on to rule that, even if there was no implicit statute of limitations in the NHPA, the plaintiffs’ claims would fail because HUD no longer exercised “continuing authority” over the funds. Id. at *5. Similarly, the district court ruled that the plaintiffs’ NEPA claims were moot because HUD had “ceased to exercise continuing authority over the Van Ness Project for NEPA purposes” once it had disbursed the HOPWA funds. Id. at *7. As to the HOME funds, the district court ruled that any NEPA enforcement action against HUD could only be brought during the mandatory fifteen-day “comment period” preceding allocation of the HOME funds. Id. at *8. The district court ruled that a lawsuit brought after the 15-day period could only be viable if HUD exercised continuing authority over the HOME funds following their allocation. Id. Because the plaintiffs’ lawsuit was brought after the fifteen-day period had expired, and because the district court ruled that HUD did not exercise continuing authority over the HOME funds, the district court dismissed this claim as moot. Id. Finally, the district court dismissed plaintiffs’ claims against the City as delegatee of the environmental review responsibilities under the HOME program. The court ruled that the grant recipients’ obligations under NEPA terminate when the federal agency decides to release funds. II Analysis A. Standard of Review A district court’s dismissal for failure to state a claim is reviewed de novo. See California CNG, Inc. v. Southern California Gas Co., 96 F.3d 1193, 1196 (9th Cir.1996). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The complaint must be construed favorably to the plaintiff, and the court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from well-pleaded facts. Walleri v. Federal Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir.1996). In reviewing district court decisions, this court may affirm on any ground having support in the record. See Gemtel Carp. v. Community Redevelopment Agency of Los Angeles, 23 F.3d 1542, 1546 (9th Cir.1994). B. Implicit Statute of Limitations under the NHPA The core requirement of the NHPA is contained in Section 106. This section provides the general process by which a federal agency must comply with the NHPA: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the ease may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. In dismissing the plaintiffs’ NHPA claims with regard to both the HOPWA and HOME funds, the district court concluded that, while Section 106 contained no express statute of limitations, it did contain something akin to an “implicit statute of limitations.” Tyler, 1996 WL 723083, at *4 (HOPWA funds), *5 (HOME funds). The district court noted that Section 106 required the federal agency to consider the effect of the undertaking “prior to the approval of any Federal funds.” Id. The court read this language to mean that: the federal agencies’ responsibilities are ‘cut-off and that a lawsuit may no longer be brought under NHPA, when HUD has exercised its authority to approve project funding, see Morris County Trust For Historic Preservation v. Pierce, 714 F.2d 271, 280 (3rd Cir.1983); WATCH v. Harris, 603 F.2d 310, 319 (2d Cir.1979), or when the recipient enters into a grant contract with HUD, see, e.g., Hart v. Denver Renewal Authority, 551 F.2d 1178, 1181 (10th Cir.1977). Id. at *4. However, the eases that the district court cites do not hold that there is an “implicit statute of limitations” that bars plaintiffs from bringing suit after federal funds are disbursed. Rather, these cases deal with the applicability of the NHPA to properties that were not included within NHPA’s ambit until after the initial release of federal funds. In Morris County Trust, 714 F.2d at 281-282, the Third Circuit held that Section 106 applied where HUD continued to fund a project after the NHPA was amended to cover the historical site at issue. In WATCH, 603 F.2d at 319, the Second Circuit held that Section 106 applied where a property became eligible for inclusion on the National Register before HUD had finally approved the expenditure of funds at each stage of the undertaking. Finally, in Hart, 551 F.2d at 1180, the Tenth Circuit held that Section 106 did not apply where a property was not eligible for inclusion on the National Register until after the approval of the expenditure of federal funds was finalized. A more common sense reading of Section 106 suggests that the “prior to” language merely refers to the timing of agency compliance. See 36 C.F.R. § 800.3(c) (“Section 106 requires the Agency Official to complete the section. 106 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license or permit.”). In other words, this language establishes the time during which the agency is required to conduct an NHPA review, not the time during which a plaintiff is required to bring a lawsuit. This is a more natural reading of Morris County, WATCH, and Hart, where the courts were dealing with the issue of whether the agency was required to conduct an NHPA review, not the issue of whether the plaintiffs’ claims were time-barred. Indeed,. construing Section 106 to bar all NHPA actions after the release of federal funds would run counter to the implied private right of action to file claims under the NHPA. See Boarhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3rd Cir.1991) (recognizing private right of action under NHPA). An implicit statute of limitations could create a situation where cases are dismissed as unripe before disbursement of federal funds and dismissed as moot after disbursement of federal funds, leaving virtually no window of opportunity for a private enforcement action. Furthermore, this court has never held that an implicit statute of limitations bars plaintiffs from bringing suit under the NHPA once federal funds have been disbursed. Rather, this court has applied the equitable doctrine of laches to resolve the timeliness of both NHPA and NEPA claims. In Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir.1994), this court applied the doctrine of laches to bar a lawsuit brought two years after the issuance of the challenged permit, where the plaintiffs failed to participate in the Section 106 or NEPA processes. The court specifically held that “the laches standard used in NEPA cases should apply to [plaintiffs] NHPA claim and that the district court erred in failing to rely upon this standard.” Id. at 906. The district court therefore erred in holding that the NHPA contained an implicit statute of limitations. C. Continuing Agency Authority under NEPA and the NHPA The district court went on to hold that, even if no implicit statute of limitations barred the plaintiffs’ claims, the claims were not justiciable because HUD had no continuing authority over the project and could not demand the changes necessary to redress plaintiffs’ grievances. This holding was in error. The plain language of the NEPA and NHPA regulations states that HUD may have some continuing authority because it is á party to the Agreement. Under NEPA, the Supreme Court has made clear that an environmental impact statement is adequate even where it does not require the agency to actually mitigate adverse environmental impacts or obtain assurances that third parties will do so. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 1847, 104 L.Ed.2d 351 (1989). However, the NEPA regulations state that, if an agency does decide to enter into a mitigation measure, that measure “shall be implemented.” The NEPA regulations provide that: Mitigation ... and other conditions established in the environmental impact statement or during [the agency’s] review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency. The lead agency shall: (a) Include appropriate conditions in grants, permits or other approvals. (b) Condition funding of actions on mitigation. 40 C.F.R. § 1505.3 (emphasis added). A similar rule applies under the NHPA. The Fourth Circuit in Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287 (4th Cir.1992) recognized that, while an agency is not required to enter into a Memorandum of Agreement, once it has done so, “it has voluntarily assumed an obligation that is en forceable...Id. at 1290 n. 8 (citing 36 C.F.R. § 800.6(c), which states that an agency “shall carry out the undertaking in accordance with the terms of the agreement” and that failure to do so requires the agency to resubmit the undertaking to the Advisory Council for comment). HUD had continuing authority over the project because the Agreement provided that: If any of the signatories to this Agreement believes that the terms of this Agreement cannot be carried out ... that signatory shall immediately notify the other signatories and request consultation to amend this Agreement. Thus, if HUD believed that the terms of the Agreement could not be carried out, it had the obligation to request consultation. However, HUD’s obligation did not extend further than the terms of the Agreement because the environmental review process was complete and the plaintiffs have no quarrel with the adequacy of those reviews. [Blue, at 15-16.] At most, the plaintiffs will be’ able to enforce an agreement whereby HUD is to engage in consultation. On remand, the district court should decide whether such consultation was indeed warranted. D. Liability of the City as Delegatee The district court dismissed plaintiffs’ NHPA and NEPA claims against the City with respect to the HOME funds, ruling that the City’s federal environmental review responsibilities ceased once federal involvement in the project ceased. Tyler, 1996 WL 723083, at *10. This ruling was erroneous: The statute authorizing delegation of HUD’s NHPA and NEPA review responsibilities also provides that the local official “consents to assume the status of a responsible Federal official under [NEPA and other federal laws] and ... consents ... to accept the jurisdiction of the Federal courts for the purpose of enforcement of his responsibilities as such an official.” 42 U.S.C. § 12838(c)(4). The district court interpreted 42 U.S.C. § 12838 narrowly, such that “the recipient agency’s responsibilities under NEPA are terminated and any challenge to the absence or adequacy of the environmental review is moot” once' the federal agency releases funds. Tyler, 1996 WL 723083, at *9. The district court relied on the fact that § 12838(c)(3) provides that a certification specify that a recipient “has fully carried out its responsibilities as described under subsection (a) of this section.” The court also reasoned that devolving environmental review responsibilities on grant recipients while imposing monitoring duties on the federal agency “creates an additional burden that did not exist before.” Id. at *10. The district court’s reasoning, however, is belied by the plain language , of the federal regulations. Title 24 C.F.R. § 58.77(d) imposes monitoring obligations on federal agencies that delegate environmental review responsibilities (though the plaintiffs do not allege any failure to monitor on the part of HUD). Furthermore, 24 C.F.R. § 58.77(b) specifically provides that “[p]ersons and agencies seeking redress in relation to environmental reviews covered by an approved certification shall deal with the responsible entity and not with HUD.” Not only does this provide for redress against the grant recipient as “responsible entity,” it also expressly contemplates redress in relation to “an approved certification.” See Atlantic Terminal Urban Renewal Area Coalition v. New York City Dept. of Envtl. Protection, 709 F.Supp. 502, 504 (S.D.N.Y.1989) (“[E]ven if HUD approves a grant for a project found not to conform to [NEPA], the applicant, not HUD, is answerable.”); Raleigh Heights Homeowners Protective Ass’n v. Reno, 501 F.Supp. 269, 273 (D.Nev.1980) (“It appears there exists a continuing duty of an applicant to insure that federal regulations are complied with even after the release of funds.”). Even if the City may be held liable under federal law after federal funds are disbursed, its liability under NEPA remains limited to failures to carry out the terms of the Agreement because, again, plaintiffs have no quarrel with the adequacy of the pre-disbursement reviews themselves. [Blue, at 15-16.] The district court already ruled that there could be no violation of the Agreement’s preambulatory language, which states that the comments of interested members of the public have been considered. Tyler, 1996 WL 723083, at *3. The plaintiffs do not appeal this ruling. Instead, the plaintiffs claim a violation of a stipulation in the Agreement that provides that the City shall take public objections into account and “consult as needed” with the objecting party, the State Historic Preservation Officer, or the Advisory Council for a period not to exceed 15 days. On remand, the district court should determine whether there was any such failure to carry out this stipulation. E. Standing Because, as discussed above, HUD and the City may remain liable under the Agreement, the district court should decide, as a threshold matter, whether the plaintiffs have standing to enforce the terms of the Agreement. The City argues that the Agreement is unenforceable by the plaintiffs because only parties to the Agreement have standing to enforce its breach. In support of this proposition, the City cites Citizens’ Comm. for Envtl. Protection v. United States Coast Guard, 456 F.Supp. 101 (D.N.J.1978). In that case, the court held that the plaintiffs could not enforce an Agreement entered into for purposes of NEPA when they were not signatories to it, nor mentioned in it. Id. at 115. Here,, however, the public’s right to bring objections is specifically mentioned in the Agreement. The district court should decide whether this right is sufficient to confer standing on the plaintiffs to bring suit to enforce the terms of the Agreement. Ill Conclusion The district court erred in holding that the NHPA contains an “implicit statute of limitations” and erred in holding that the plaintiffs’ claims were moot because HUD had no continuing authority under the terms of the Agreement. While HUD’s authority is limited, it does exist. Similarly, while the City’s obligations under the Agreement are limited, the federal regulations clearly provide a federal remedy for breach of those obligations. On remand, the district court should first address the issue of whether the plaintiffs have standing to enforce the terms of the Agreement. -If so, the district court should decide the extent of HUD’s and the City’s obligations to the plaintiffs under the Agreement and whether these obligations were breached. The district court should also decide how to allocate attorney’s fees depending on the resolution of these issues. REVERSED and REMANDED. . The State of California was dismissed as a defendant, and the parties do not challenge this order. . The district court also dismissed plaintiffs' APA, due process, and 42 U.S.C. § 1983 claims. Id. at *10-* 11. Plaintiffs do not appeal these rulings. . -Plaintiffs also claim a violation of the NHPA regulations that state that owners of " properties affected hy a project "shall be invited to participate as consulting parties ... when they so request.” 36 C.F.R. § 800.5(e)(1). However, this regulation merely governs the Section 106 review process, which, as the regulations make clear, is concluded when the Advisory Council accepts the Memorandum of Agreement. 36 C.F.R. § 800.6(a)(i).

Pueblo of Sandia v. United States

SEYMOUR, Chief Judge. The Pueblo of Sandia and various environmental groups brought suit for declaratory and injunctive relief against the United States and a National Forest Service supervisor, alleging that the Forest Service failed to comply with the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq., in its evaluation of Las Huertas Canyon in the Cibola National Forest. The Pueblo asserts that the New Mexico canyon contains numerous sites of religious and cultural significance to the tribe, qualifying the canyon as a “traditional cultural property” eligible for inclusion in the National Register of Historic Places. The Forest Service, however, concluded that the canyon did not constitute a traditional cultural property and instituted a new management strategy for it. The district court granted summary judgment for the Forest Service, finding that it had made a reasonable and good faith effort to identify historic properties. Because we conclude that the Forest Service’s efforts were neither reasonable nor in good faith, we reverse and remand. I. Las Huertas Canyon is located in the San-dia Mountains northeast of Albuquerque, New Mexico. Lying within the Cibola National Forest, the canyon is under the supervision of the Forest Service. The Sandia Pueblo reservation is nearby, and tribal members visit the canyon to gather evergreen boughs for use in significant private and public cultural ceremonies. ApltApp. at 109-11. They also harvest herbs and plants along the Las Huertas Creek which are important for traditional healing practices. Id. at 111. The canyon contains many shrines and ceremonial paths of religious and cultural significance to the Pueblo. Id. at 108-11. In July 1988, the Forest Service released a Draft Environmental Impact Statement (DEIS) detailing eight alternative management strategies for Las Huertas Canyon. After an extended comment period, the Forest Service selected a ninth alternative, Alternative I, as the preferred strategy. Alternative I required the realignment and reconstruction of the Las Huertas Canyon Road and additional improvements to the area, including the rehabilitation and expansion of several picnic grounds and the installation of sanitary facilities at other locations. Aplt. App. at 48. Voicing concerns that the strategy would adversely impact traditional cultural properties and practices in the canyon by encouraging additional traffic and visitation to the area, the Pueblo filed an administrative appeal of the decision. The Deputy Regional Forester affirmed the decision, altering the snow plowing and road closure provisions of Alternative I in response to complaints from other appellants. The decision became administratively final in January 1990 when the Chief of the Forest Service declined to review it. The Pueblo filed this suit in federal court, alleging numerous statutory violations. The Pueblo subsequently amended the complaint to plead a violation of the NHPA, 16 U.S.C. 470 et seq. The Pueblo alleged that the Forest Service failed to comply with section 106 of the NHPA when it refused to evaluate the canyon as a traditional cultural property eligible for inclusion on the National Register. The parties filed cross motions for summary judgment on the issue of NHPA compliance. By the time the district court heard the motions, the State Historic Preservation Officer (SHPO) had concurred in the Forest Service’s conclusion that certain specific sites near the roadway and picnic grounds were not eligible for the National Register. In a Memorandum Opinion and Order entered April 30, 1993, the district court noted that “[t]he administrative record is silent as to whether any of the sites found were evaluated [by the Forest Service] against the National Register Criteria as required by [the NHPA], and whether the sites met the criteria.” Memorandum Opinion and Order (April 30, 1993) at 11 (Order). The court accepted the SHPO’s concurrence as “evidence that the Forest Service met the substantive requirements with respect to the roadway and the picnic area.” Id. Although concerned that the Forest Service “does not appear to have taken the requirements of [the NHPA] very seriously,” the court relied on the agency’s assertion that it would diligently pursue information on the potential historic value of other individual sites within the canyon. Id. at 12. On that basis, the court granted summary judgment for defendants, and plaintiffs filed this appeal. On May 13, 1993, the SHPO concurred in the Forest Service’s final conclusion that “there is no evidence that there are Pueblo Indian traditional cultural properties in Las Huertas Canyon.” Aplee.Br., Addendum at 1, 3. Plaintiffs filed this appeal on June 19, 1993. Significantly, nine months later the SHPO withdrew his concurrence upon receiving evidence suggesting that traditional cultural properties existed in Las Huertas Canyon. Aplt.Supp.Br., Addendum 1. The SHPO stated: We were surprised to see the [affidavits of Dr. Elizabeth Brandt and Phillip Lauriano] since we had been informed that the Cibo-la National Forest had received no comments on [Traditional Cultural Properties] from the [All Indian Pueblo Council] or from any pueblos (cf. Report 1993-03-054, prepared by Dr. Joseph A. Tainter, dated April 29, 1993). Our previous consultations on this undertaking were based on Dr. Tainter’s report. This documentation is relevant to our consultations on this undertaking. I am concerned that our not having received the affidavits has affected our ability to consult appropriately under Section 106 of the National Historic Preservation Act. Id. The SHPO concluded that the withheld information had a substantial impact on the inquiry into the canyon’s eligibility for the Historic Register. He wrote: Much of our consultation, dating back to September of 1992, concentrated on determining what would represent a “reasonable” attempt to identify [Traditional Cultural Properties] that may be affected by the project. Bulletin 88 ... states that “a ‘reasonable’ effort depends in part on the likelihood that such properties may be present.” Mr. Lauriano’s statement, supported by the ethnographic overview provided by Dr. Brandt, indicates that Las Huertas Canyon is used for ceremonial purposes, contains plants and soils used in traditional ceremonies and contains traditional trails that lead to other [traditional cultural properties]. This information suggests that properties that may be eligible to the National Register of Historic Places may be affected by the proposed improvements to the Las Huertas Canyon Road and recreational facilities. It is my opinion that we do not have enough information to make a determination of eligibility. Id. Consequently, the SHPO recommended an ethnographic analysis of the canyon to further evaluate the possibility that it contained traditional cultural properties. Consistent with Bulletin 38, this analysis should include interviews with appropriate pueblo representatives, field inspections and documentation. I recommend that the Forest Service hire a professional ethnographer to conduct this analysis. An independent professional is most likely to be able to work out any impasse that may have developed between the pueblos and the Forest Service. I also believe that this procedure will give the Pueblos a reasonable opportunity to provide us with enough documentation to conduct a formal determination of eligibility as outlined in Bulletin 38. Id. (citations omitted). We review the district court’s summary judgment de novo. Housing Authority v. United States, 980 F.2d 624, 628 (10th Cir.1992). II. The NHPA requires the Forest Service to “take into account the effect of [any] undertaking on any district, site, budding, structure, or object that is included in or eligible for inclusion in the National Register.” NHPA, § 106, 16 U.S.C. § 470f (1993). Section 106 also mandates that the agency afford the Advisory Council on Historic Preservation “a reasonable opportunity to comment” on the undertaking. Id. The Advisory Council has established regulations for federal agencies to follow in complying with section 106. See 36 C.F.R. § 800. The process is designed to foster communication and consultation between agency officials, the SHPO, and other interested parties such as Indian tribes, local governments, and the general public. First, the Agency Official must review all existing information on the site, request the SHPO’s views on ways to identify historic properties, and seek information from interested parties likely to have knowledge about historic properties in the area. 36 C.F.R. § 800.4(a). In light of this information, the agency determines any need for further investigation. In consultation with the SHPO, the agency then must make a “reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register.” 36 C.F.R. § 800.4(b). Finally, for each property identified, the agency official and the SHPO must evaluate the property on the basis of the National Register criteria to determine its eligibility for inclusion. 36 C.F.R. § 800.4(c). The Pueblo claims that the sites within the Las Huertas Canyon are traditional cultural properties which are thus eligible for inclusion in the National Register. The Pueblo asserts that the Forest Service’s conclusion to the contrary stems from that agency’s failure to make a “reasonable and good faith effort” to identify historical properties. A. Reasonable Effort The Forest Service contends that it engaged in reasonable efforts to identify historic properties in Las Huertas Canyon. The record reveals that the Forest Service did request information from the Sandia Pueblo and other local Indian tribes, but a mere request for information is not necessarily sufficient to constitute the “reasonable effort” section 106 requires. Because communications from the tribes indicated the existence of traditional cultural properties and because the Forest Service should have known that tribal customs might restrict the ready disclosure of specific information, we hold that the agency did not reasonably pursue the information necessary to evaluate the canyon’s eligibility for inclusion in the National Register. During the assessment phase of the section 106 process, the Forest Service mailed letters to local Indian tribes, including the Sandia Pueblo, and individual tribal members who were known to be familiar with traditional cultural properties. Aplt.App. at 159-65. The letters requested detailed information describing the location of the sites, activities conducted there, and the frequency of the activities. Id. They also asked tribes to provide maps of the sites, drawn at a scale of 1:24,000 or better, as well as documentation of the historic nature of the property. Id. In addition to mailing form letters to the tribes and individuals, Forest Service officials also addressed meetings of the All Indian Pueblo Council and the San Felipe Pueblo. Aplt.App. at 177,181. The officials informed the groups that traditional cultural properties are eligible for inclusion in the National Register and requested the same specific information required in the letters. Id. None of the tribes or individuals provided the Forest Service with the type of information requested in the letters and meetings. We conclude, however, that the information the tribes did communicate to the agency was sufficient to require the Forest Service to engage in further investigations, especially in light of regulations warning that tribes might be hesitant to divulge the type of information sought. Prior to its final determination on April 29, 1993 that Las Huertas Canyon contained no traditional cultural properties, the Forest Service was aware of numerous claims to the contrary. As early as January 5, 1987, the Governor of the Sandia Pueblo informed the Forest Service that the Las Huertas Canyon was an area “of great religious and traditional importance to the people of Sandia Pueblo.” Aplt.App. at 130. The minutes of a Las Huertas Canyon Work Group meeting on March 10, 1987 reveal that the group knew that Native Americans used the canyon area for a number of ceremonial, religious, and medicinal purposes. Id. at 133. During the period of public comment on the eight alternatives, the Sandia Pueblo supported alternative C, which it believed would be most likely “to permit the Sandia members to perform secret, traditional activities in more seclusion.” Id. at 135. On August 9, 1989, the Regional Forester took the affidavit of Philip Lauriano, an elder and religious leader of the Sandia Pueblo. Mr. Lauriano listed several “long-standing religious and traditional practices” which take place in the canyon and alluded to sacred sites which it contains. Aplt.App. at 108-09. In 1992, Dr. Elizabeth Brandt, a highly qualified anthropologist who is an expert on the Sandia Pueblo, provided a detailed ethnographic overview of the tribe’s religious and cultural connections to the canyon. Dr. Brandt noted the canyon’s signifi-canee to the Pueblo as a source of herbs and evergreen boughs, which have been an integral part of certain Pueblo ceremonies for at least 60 years. Id. at 110-11. She also described certain ceremonial paths and sites in the canyon which “serve as gateways for access to the spirit world,” concluding that [t]hese sites and their functions would be significantly impaired if not totally destroyed as a result of the planned development of the Canyon, thus cutting off spiritual access for religious leaders and those responsible for the actions which occur at these shrines. These sites are critical to the religious practice, cultural identity, and overall well-being of the Pueblo. Id. at 111. Noting the secrecy which is crucial to Pueblo religious and cultural practices, Dr. Brandt expressed concern that the proposed development would allow the outside world to intrude upon and negatively impact these practices. Based on these factors, she concluded that “Las Huertas Canyon constitutes a Traditional Cultural District with multiple Sites for the Sandia Tribe.” Id. at 112. Furthermore, the Forest Service received communications clearly indicating why more specific responses were not forthcoming. At the meeting with the San Felipe Pueblo, tribal members indicated that “[t]hey did not want to disclose any specific details of site locations or activities.” Aplt.App. at 177. A representative of the Sandia Pueblo made the same claim at the All Indian Pueblo Council meeting. Id. at 181. Dr. Brandt also commented upon the Pueblo people’s general unwillingness “to divulge any information regarding their religious practices.” Id. at 113. This reticence to disclose details of their cultural and religious practices was not unexpected. National Register Bulletin 38 warns that “knowledge of traditional cultural values may not be shared readily with outsiders” as such information is “regarded as powerful, even dangerous” in some societies. Aplt. App. at 88. Joseph Tainter, an archeologist for the Forest Service, “acknowledged that [P]ueblos are often reluctant to provide such information” and promised confidential treatment of any communications. Id. at 181. The Work Study Group also noted that “[kjnowledge of Native American attitudes towards divulging information regarding Forest use and past experience by Forest Service cultural resources personnel indicates [sic] that general requests of tribes for information ... will go unanswered.” Id. at 134. Determining what constitutes a reasonable effort to identify traditional cultural properties “depends in part on the likelihood that such properties may be present.” National Bulletin 38, Aplt.App. at 86. Based on the information contained in the Lauriano and Brandt affidavits, the SHPO ultimately concluded that the “properties [ ] may be eligible to the National Register of Historic Places” but “we do not have enough information to make a determination of eligibility.” Aplt. Supp.Br., Addendum 1. We agree. The information communicated to the Forest Service as well as the reasons articulated for the lack of more specific information clearly suggest that there is a sufficient likelihood that the canyon contains traditional cultural properties to warrant further investigation. We thus hold that the Forest Service did not make a reasonable effort to identify historic properties. B. Good Faith Effort The Pueblo also claims that the Forest Service failed to make the requisite good faith effort to identify traditional cultural properties in Las Huertas Canyon. It bases this assertion on the fact that the Forest Service withheld relevant information from the SHPO during the required consultation process. The district court expressed concern about the Forest Service’s commitment to the section 106 process and placed great weight upon the SHPO’s concurrence in granting summary judgment. Thus, the withdrawal of that concurrence upon discovery of the withheld information suggests that the Forest Service did not put forth a good faith effort to identify historic properties. The regulations require that “[i]n consultation with the [SHPO], the Agency Official shall make a reasonable and good faith effort to identify historic properties.” 36 C.F.R. § 800.4(b). Indeed, consultation with the SHPO is an integral part of the section 106 process. See Attakai v. United States, 746 F.Supp. 1395, 1407 (D.Ariz.1990) (“[T]he regulations clearly require consultation with the SHPO.”) Affording the SHPO an opportunity to offer input on potential historic properties would be meaningless unless the SHPO has access to available, relevant information. Thus, “consultation” with the SHPO mandates an informed consultation. The Forest Service did not provide the SHPO copies of the Lauriano and Brandt affidavits until after the consultation was complete and the SHPO had concurred. See ApIt.Supp.Br., Addendum 1. In fact, the Forest Service informed the SHPO during consultation that “[consultations with pueblo officials and elders, and other users of the Las Huertas Canyon area, disclosed no evidence that the ... area contains traditional cultural properties.” Aplt.App. at 152. The SHPO’s initial concurrence was based on this report. ApIt.Supp.Br., Addendum 1. Once the SHPO acquired access to the withheld information, he withdrew his concurrence, noting the relevance of the documents and his concern that “our not having received [them] has affected our ability to consult appropriately under Section 106 of the [NHPA].” Id. Moreover, the regulations require that once the agency concludes that no historic properties are present, it must provide the SHPO documentation of that finding. 36 C.F.R. § 800.4(d). The Forest Service rendered its final decision that no traditional cultural properties exist in Las Huertas Canyon on April 29,1993. Aplee.Br., Addendum. The report was sent to the SHPO on May 4, 1993, prompting the SHPO’s concurrence nine days later. The relevant documents, i.e., the Lauriano and Brandt affidavits, were not communicated to the SHPO until January 14, 1994. Aplt.Supp.Br., Addendum 1. Thus, the Forest Service failed to provide documentation of its decision to the SHPO in a timely manner. Prior to the SHPO’s letter revealing that the Forest Service withheld relevant information, the district court expressed reservations about the Forest Service’s approach to the section 106 process. The court noted its concern “that the Forest Service does not appear to have taken the requirements of this Act very seriously.” Order at 12. Those reservations were partially alleviated by the fact that the SHPO had concurred, at that time, with part of the Forest Service’s new management plan. Id. at 11. By withholding relevant information from the SHPO during the consultation process, however, the Forest Service further undermined any argument that it had engaged in a good faith effort. We thus hold that the Forest Service did not make a good faith effort to identify historic properties in Las Huertas Canyon. Because we conclude that the Forest Service did not make a reasonable and good faith effort in its evaluation of Las Huertas Canyon, we REVERSE the judgment of the district court and REMAND for further proceedings in accordance with this opinion. . Sandia Pueblo alleged that the Forest Service’s approval of the Final Environmental Impact Statement (FEIS) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (NEPA); the National Forest Management Act, 16 U.S.C. §§ 1600 et seq. (NFMA); the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (CWA); the American Indian Religious Freedom Act, 42 U.S.C. § 1996 (AIRFA); and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (APA). The Pueblo abandoned the NFMA, AIRFA, and CWA claims and does not appeal the district court’s grant of summary judgment for defendants on the NEPA and APA claims. . The National Register Bulletin 38 provides that a traditional cultural property is "eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” ApltApp. at 82. . Although the record indicates that Dr. Brandt gave her affidavit on April 13, 1992, it is unclear when it was given to the Forest Service. The agency, however, refers to the Brandt affidavit in its brief, Aplee.Br. at 28 n. 11, and does not claim that it did not have the affidavit at the time it made its final decision that Las Huertas Canyon contained no traditional cultural properties. Therefore, we presume that the Brandt affidavit was a part of the record upon which the Forest Service based its April 29, 1993 decision. . Orel testimony establishes that the Pueblo have gathered evergreen boughs in Las Huertas Canyon for at least 60 years. Dr. Brandt notes, however, that the canyon has probably played a role in tribal religious and cultural practices for centuries as archeological evidence reveals that the Pueblo village has remained at essentially the same site since the 1300s. Aplt.App. at 112. . Dr. Brandt asserted that the safety of the Pueblo members might be implicated, stating that Pueblo members reported having been "placed at gunpoint by persons while gathering evergreens." Aplt.App. at 112. She also pointed to examples of shrines in other areas having been overrun or desecrated as a result of increased traffic and visitation. Id. . Although the letters containing the SHPO's concurrence and subsequent withdrawal of that concurrence were not a part of the record below, we take judicial notice of them on this appeal. See Clemmons v. Bohannon, 956 F.2d 1523, 1532 & n. 2 (10th Cir.1992) (Seymour, J., dissenting) (en banc) (judicial notice of government reports); see also Clappier v. Flynn, 605 F.2d 519, 535 (10th Cir.1979) (judicial notice of official governmental publications). . The SHPO has recommended that the Forest Service conduct a ethnographic analysis of Las Huertas Canyon. Consistent with Bulletin 38, this analysis should include interviews with appropriate Pueblo representatives, field inspections and documentation.... An independent professional [ethnographer] is most likely to be able to work out any impasse that may have developed between the Pueblos and the Forest Service. Aplt.Supp.Br., Addendum 1; see Aplt.App. at 88. We note that it is the role of the SHPO to recommend further actions to identify historic properties. See 36 C.F.R. § 800.4(a)(l)(ii).

Vieux Carre Property Owners Residents & Associations v. Brown

EDITH H. JONES, Circuit Judge: The City of New Orleans’ Vieux Carre Commission, the New Orleans City Planning Commission, and the New Orleans City Council all approved the site for a world-class aquarium and riverfront park in 1987. That year a group of landowners in the Vieux Carre National Historic Landmark District— the French Quarter — disgruntled with the “historic impact” of the project, filed suit to arrest its construction. Relying on the Rivers and Harbors Act, 33 U.S.C. § 403, which was designed to protect the navigable waterways of the United States, and the regulations found in 33 C.F.R. §§ 320 through 330, the plaintiffs have managed to survive two prior dismissals of their action by the district court by appeal to this court. Despite our reluctance to accept fully the reasoning of the district court, we find no barrier to terminating this litigation since no meaningful relief to the plaintiffs is presently possible. The park project, properly characterized as “inconsequential,” fell within the scope of the Corps’ nationwide permit process. Although the Corps’ conceded omission of compliance with its internal historical review regulation renders the park’s permit technically flawed, neither the regulations nor the RHA authorizes Vieux Carre to remedy that problem. I. The two previous opinions by this court have significantly narrowed the issues. Ultimately, the Vieux Carre’s fate is predetermined by the level of historic review properly imported into .the provisions of the Rivers and Harbors Act (RHA). Although the RHA might appear to constitute an odd vehicle to resolve a dispute over historic impact, the provisions of the Act are triggered because some structures involved in the project were built on the Bienville Street Wharf. The RHA prohibits all activities affecting the course, condition, location, or capacity of any navigable water unless authorized by a permit issued by the Army Corps of Engineers. Vieux Carre II, 948 F.2d at 1439 n. 2. Vieux Carre I determined that only the park (in contrast to the aquarium) segment of the project could obstruct navigable capacity in waters of the United States so that it alone required a permit from the Corps. Vieux Carre I, 875 F.2d at 462. That conclusion the Corps no longer contests. Not all permits are created equal, however; the burden on the Corps of assessing historical impact may vary considerably as a repercussion of the precise type of permit required. Specifically, the Corps is authorized to issue two types of permits, individual and general. Vieux Carre II, 948 F.2d 1436 n. 3; 33 CFR § 325.5(a). If an individual permit is necessary, the formal historic review consultation procedures mandated by Congress in Section 106 of the National Historic Preservation Act (NHPA) are triggered. Vieux Carre I, 875 F.2d at 464. The Corps concedes that this type of historic impact analysis was never undertaken. Nevertheless, a form of general permit that authorizes specific types of activities without prior particularized approval of the Corps — the nationwide permit — was designed to expedite endeavors with inconsequential effects on the RHA concerns. See 33 C.F.R. § 330.1 (stating that nationwide permits “are designed to allow certain activities to occur with little, if any, delay or paperwork”). Projects exempted from the individual permit requirement by virtue of the nationwide permit merely demand minimal, informal consideration of historical impact. Vieux Carre I, 875 F.2d at 465 (“nationwide permits authorizing truly inconsequential activities are not trigger[s]” of the NHPA). In the Corps’ judgment the construction of the park satisfied the criteria for sanction under the nationwide permit. The district court held on remand, that this conclusion was not arbitrary or capricious, and in accord with this court’s directive the district court further inquired whether the park project was “so inconsequential that it does not trigger NHPA.” Vieux Carre II, 948 F.2d at 1448. Inferring that the proper measure of whether an activity is consequential is its impact on navigation, the court held that since the park spawned no effect on navigation the Corps need not activate the procedures demanded by the NHPA. Although Vieux Carre challenges these conclusions in this appeal, its more cogent assaults address the district court’s deductions from these premises. Indeed, the crux of this protracted litigation assumes that the district court correctly resolved the NHPA question. Instead, the enigmatic question persists as to whether the § 330.5(a)(3) nationwide permit is — or ever was — valid “given that the Corps did not follow its own regulations at § 330.5(b)(9).” Vieux Carre II, 948 F.2d at 1449. Simply, the Corps’ “eonce[ssion] that it did not evaluate the historic impact of either phase of the project” violates even an interpretation of section 330.5(b)(9) demanding solely pro for-ma consideration. The district court held for the second time that the completion of the project rendered this difficulty moot. Once again, this decision did not technically comply with our instructions on remand. Nevertheless, the interpretation we ascribe to the Rivers and Harbors Act is of little more avail to the plaintiffs. II. We proceed in this trilogy by first affirming the district court’s careful treatment of the “appropriateness” of a nationwide permit and its assessment of the activities as “inconsequential.” The Corps determined that the riverfront park project fell "within § 330.5(a)(3) of its nationwide permit program. The court found that there was no construction beneath the wharf, and the dimensions of the wharf did not change. Critically, its maritime purpose as a general cargo wharf was preserved. Since an agency is afforded “substantial deference” when it interprets its own regulations, Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986), our inquiry is confined to whether this judgment was arbitrary or capricious. Considering that the Corps’ jurisdiction emanates from effects on navigable water, evaluating whether the park resulted in a deviation in the original plan or a different use for the wharf from the perspective of the wharfs maritime function is perfectly reasonable. Hence the changes affecting landward surface are not ineligible for authorization by means of a nationwide permit. Similarly, the district court properly .gauged “inconsequentiality” by reference to the project’s impact “on the RHA concerns,” i.e., the obstruction of navigable waters. See Vieux Carre I, 875 F.2d at 465. In this respect, the fact that the project had no effect on the ability of the wharf to function in its “navigational” capacity proves crucial. Finally, even if the decision on consequentiality should have considered the park’s historic impact separately from its impact on navigable waters, appellants have not carried their burden of demonstrating that the Corps’ decision was arbitrary and capricious. With the exception of an occasional reference to the increased traffic and congestion attributable to the development of the aquarium and park project, appellants failed to identify any specific relationship between the park’s development and historic preservation consequences for the French Quarter. Consequently, no justification is apparent for disturbing the district court’s conclusion that the Corps properly denominated the park project under its nationwide permit system. III. Because of the vitality of the Corps’ concession that it did not follow its own historical impact regulation, § 380.5(b)(9), the permit authorizing the park project, albeit appropriate, is defective. Compliance with section 380.5(b)(9), requiring the consideration of adverse historical impact by the district engineer, is a “condition” of activity licensed via the nationwide permit scheme. See 33 C.F.R. § 330.5(b) (“Conditions”). Since no individualized permit was ever sought for the park project, no valid authorization exists. 33 C.F.R. § 330.1 (“Failure to comply with a condition does not necessarily mean the activity cannot be authorized but rather that the activity can only be authorized by an individual or regional permit.”) “Without a valid and appropriate permit, the park project is unlawful under RHA § 10.” Vieux Carre II, 948 F.2d at 1443 n. 22. Although this corollary manifests a ring of importance, the “unlawful” shibboleth does not advance the cause of the Vieux Carre. Indeed, the fact that the park is illegal may expose others to draconian consequences, but the RHA statutory scheme does not assign enforcement prerogatives to these plaintiffs. The Vieux Carre cannot pursue an injunction to ameliorate the violation of RHA § 10. California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779-80, 68 L.Ed.2d 101 (1981) (RHA does not provide private right of action). Moreover, this court has already rejected the suggestion that the Corps could be compelled to enforce the statute. Vieux Carre I, 875 F.2d at 457 (“[N]o statute requires the Corps to enforce the RHA provision that Vieux Carre claims was violated here. In fact, 33 U.S.C. § 406[] explicitly vests that authority in the Attorney General.”) And patently the Attorney General may not be obliged to prosecute any offenders. Diamond v. Charles, 476 U.S. 54, 64-65, 106 S.Ct. 1697, 1704, 90 L.Ed.2d 48 (1986) (in American jurisprudence a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another). The Army Corps of Engineers is not, however, left unbridled. Other parties, concerned with exposure to criminal liability, must be motivated in the future to seek an after-the-fact permit. For example, a need or desire for new construction or a modification of the park project may arise. As section 401 makes it unlawful “to construct or commence the construction” of a structure without the designated approval, only the foolhardy would proceed in such a new venture in disregard of the statutory penalty. To issue such a “valid” permit, the Corps could not circumvent the historical review process. If the contemplated activity warranted the simplified approach of the nationwide permit only brief consultation would be implicated; otherwise, complete NHPA treatment would be necessary. IV. For these reasons, we AFFIRM the judgment of the district court. . See Vieux Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir.1991) (Vieux Carre II); Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown, 875 F.2d 453 (5th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990) (Vieux Carre I). . 33 U.S.C. § 403 et seq. . More precisely, this court held that the Corps’ conclusion that the aquarium project would not affect navigation was not arbitrary and capricious. Id. . 33 C.F.R. § 330.5(b)(9) (1986) provides in relevant part: That, if the activity may adversely affect historic properties which the National Park Service has listed on, or determined eligible for listing on, the National Register of Historic Places, the permittee will notify the district engineer. If the district engineer determines that such historic properties may be adversely affected, he will provide the Advisory Council on Historic Preservation an opportunity to comment on the effects on such historic properties or he will consider modification, suspension, or revocation in accordance with 33 C.F.R. § 325.7. . Vieux Carre I, 875 F.2d at 465. . The district court ventured to finesse this complication by reexamination of the issue. Applying an exception to the “law of the case” doctrine, the court concluded that the Fifth Circuit’s determination "that the Corps concedes that it did not evaluate the historic impact of either phase if the project”, see Vieux Carre I, 875 F.2d at 465, has no support in the record, thereby rendering it clearly erroneous. Upon reexamination, the district court held that the Corps had complied with the regulation. In particular, the court relied upon Colonel Brown, district engineer for the Corps, who testified that he and his staff had discussed the impact of the park project on the French Quarter and judged that no adverse impact would result. Although a review of the record in Vieux Carre I does leave the appropriate interpretation of the "concession” open to debate, the Corps had several procedures at its disposal five years ago to bring this misunderstanding to the attention of the original panel of this court. Without an unequivocal departure from the record, revision at this late date of settled issues is imprudent in light of the superior knowledge of the original panel of the context of the “concession,” and the risk of undermining the litigation decisions the parties adopted in reliance upon it. .The § 330.5(a)(3) nationwide permit provides in relevant part: The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or fill, or of any currently serviceable structure or fill constructed prior to the requirement for authorization, provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure or fill, and further provided that the structure or fill has not been put to uses differing from uses specified for it in any permit authorizing its original construction. 33 C.F.R. § 330.5(a)(3) (1986) (emphasis added). . Recall that any increased traffic and congestion would be relevant only to the extent it could be tied to the development of the park as the aquarium is beyond the jurisdiction of the Corps. See Vieux Carre I, 875 F.2d at 463. . These are criminal statutes. See 33 U.S.C. § 406 (persons violating this title are guilty of a misdemeanor punishable by a term of imprisonment not exceeding one year and a fine of $500-2,500). . "[T¡he removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney General of the United States.” 33 U.S.C. § 406. . Interestingly, it is the Department of Justice that has been defending the position of the Army Corps against the Vieux Carre. . Since the Corps cannot modify, suspend, or revoke a permit that does not exist, § 325.6(a) has no application. No need arises, therefore, to answer the difficult question whether or not permits "expire.” See Vieux Carre II, 948 F.2d at 1444.

Vieux Carre Property Owners Residents & Associations v. Brown

JUSTICE, District Judge, dissenting: I wholly agree with the majority opinion, save for its ultimate conclusion that no meaningful relief is now available to plaintiff-appellant Vieux Carre. Vieux Carre I plainly hold that Vieux Carre “has standing to assert its claim for a declaratory judgment against the Corps.” Vieux Carre Property Owners v. Brown, 875 F.2d 453, 459 (5th Cir.1989). The majority opinion is clearly contrary to Vieux Carre I in this respect, and apparently fails to give recognition to the law of the case doctrine. North Miss. Communications v. Jones, 951 F.2d 652, 656 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 184, 121 L.Ed.2d 129 (1992). I would reverse and remand this case, in order that Vieux Carre may pursue the remedy made available to it under Vieux Carre I.

Sugarloaf Citizens Ass'n. v. Federal Energy Regulatory Commission

OPINION ALEXANDER HARVEY, II, Senior District Judge: This appeal seeks a review of Orders of the Federal Energy Regulatory Commission (the FERC). By Order dated November 1, 1990, the FERC granted the application of the Northeast Maryland Waste Disposal Authority (the “Authority”) which sought certification of a resource recovery facility (the “Facility” or “Incinerator”) as a qualifying small power production facility (qualifying facility or “QF”) under § 210 of the Public Utility Regulatory Policies Act (PURPA), 16 U.S.C. § 824a-S. By Order dated January 24, 1991, the FERC denied rehearing. As intervenors in the FERC certification proceedings, Petitioners, the Sugarloaf Citizens Association, Karen Kalla, J. Houston Miller, Beverly Thoms, James and Faye Buchanan, the Taylorstown Community Association, and the National Trust for Historic Preservation, had requested that the FERC conduct a review of the environmental impact of the Facility under the National Environmental Policy Act (“NEPA”) and also of the impact of the Facility on historic structures under the National Historic Preservation Act (“NHPA”). The FERC denied these requests in its Order of November 1, 1990, ruling that certification under PURPA was neither a “major Federal action,” triggering review under NEPA, nor a federal “undertaking,” triggering review under NHPA. Petitioners subsequently filed a petition for a rehearing, which was also denied. Concluding that the agency determinations were reasonable under all the circumstances, we affirm the Orders of the FERC. I In order to address its solid waste disposal problems, Montgomery County planned the construction of a waste-to-energy facility which would preserve resources by producing energy without consuming natural resources. The County decided to locate the Facility in Dickerson, Maryland, adjacent to an existing generating station operated by Potomac Electric Power Company (“PEPCO”). To help defray the cost of waste disposal, the Facility was designed to utilize the heat produced by incinerating waste to generate electricity which would be sold to PEPCO. The Facility was to be owned and operated by the Authority. The Authority is an independent state agency created by the Maryland General Assembly in 1980 to assist jurisdictions like Montgomery County in the development of adequate waste disposal facilities, including those that provide for energy generation and resource recovery. The Facility was to be constructed and operated by the Authority in cooperation with the County. Petitioners assert that Dickerson, Maryland, the planned location of the Incinerator, is an environmentally sensitive and historically unique region. The 35-acre site near Dickerson lies in Montgomery County’s Agricultural Preserve, which includes the Sugarloaf Mountain Historic District. Sugarloaf Mountain is a registered National Natural Landmark. In asking the FERC to review the application under NEPA and NHPA, Petitioners expressed concerns that the Incinerator, in conjunction with the existing generating station operated by PEP-CO, would severely impact upon the historical, cultural, and recreational resources in the area. They press those arguments here. II PURPA was enacted by Congress in 1978 for the purpose of encouraging the development of cogeneration facilities and small power production facilities. To encourage this development, PURPA confers certain benefits on this type of facility. 16 U.S.C. § 824a-3. Qualifying facilities are exempt from most federal and state regulation of electric utilities. Moreover, a utility like PEPCO must provide electricity to such a facility and buy from such a facility electricity generated, at reasonable rates not to exceed “the incremental cost to the electric utility of alternative electric energy,” pursuant to rules determined to be necessary by the FERC for the encouragement of cogeneration and small power production. 16 U.S.C. § 824a-3(b). To achieve status as a “qualifying facility” and thereby receive PURPA benefits, a cogeneration or small power production facility cannot be owned by a person “primarily engaged in the generation or sale of electric power (other than electric power solely from cogeneration facilities or small power production facilities)” and the facility must meet “such [other] requirements ... as the Commission may, by rule, prescribe.” 16 U.S.C. §§ 796(17)(C) and (18)(B). The FERC has adopted extensive rules pursuant to this Congressional directive. See 18 C.F.R. § 292.203 through § 292.206 (1990). These rules detail the size and ownership restrictions set forth in PURPA and contain technical requirements concerning the types of fuel that may be used for a small power production facility. 18 C.F.R. § 292.204 (1990). Specifically, any facility that (1) has a power production capacity of less than 80 megawatts, (2) obtains 75 percent or more of its energy input from biomass, waste or renewable or geothermal resources, and (3) is not more than 50 percent owned by one or more electric utilities or electric utility holding companies is a qualified small power producer. 18 C.F.R. §§ 292.204, 292.206 (1990). So that the proposed Facility might qualify for benefits under PURPA, the Authority and PEPCO agreed by contract that the Authority would apply to the FERC for certification as a qualified small power producer. Certification is an optional procedure permitted by FERC regulations, whereby, upon application, the FERC will issue a certificate stating that a facility meets the criteria set forth in the regulations for a qualified small power producer. 18 C.F.R. § 292.207(b). However, the FERC regulations permit a facility to choose to by-pass the procedure for certification by the FERC and instead opt for self-certification. 18 C.F.R. § 292.207(a)(1). The regulations state that “[a] small power production facility which meets the criteria for qualification set forth in § 292.203 is a qualifying facility.” Id. (Emphasis added). On July 25, 1990, the Authority filed an application with the FERC setting forth grounds demonstrating that the Facility would meet the size, fuel use and ownership criteria for certification. Petitioners intervened on August 27, 1990, claiming that PURPA certification is subject to the requirements of NEPA, 42 U.S.C. §§ 4321 et seq., and also to the requirements of NHPA, 16 U.S.C. §§ 470 et seq. The County intervened in support of the application. Petitioners argued that, under NEPA and NHPA, the FERC was required before granting the requested certification to conduct detailed evaluations of the Facility’s potential impact on the environment and also its potential effect on historic sites. In its Order of November 1, 1990, the FERC granted certification to the Facility, ruling that certification under PURPA is neither a “major Federal action” which would trigger the review requirements of NEPA nor a federal “undertaking” which would trigger those of NHPA. After their motion for rehearing was denied, Petitioners appealed and have now asked this Court to review the FERC’s determinations. The FERC has opposed the petition for review, and has been joined in this appeal by the County and the Authority as Intervenors. III This Court has jurisdiction to review orders of the FERC under Section 313(b) of the Federal Power Act (FPA), 16 U.S.C. § 8251(b). Section 313(b) of the FPA provides that “the findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” Thus, this Court may set aside FERC’s Orders only if we conclude that they are unsupported by substantial evidence. Appomattox River Water Authority v. F.E.R.C., 736 F.2d 1000, 1002 (4th Cir.1984). The parties dispute the standard to be applied to an agency determination that its action is not a “major Federal action.” However, the cases cited by both sides indicate that when an agency makes the threshold determination that its actions do not constitute a “major Federal action,” the question concerning the applicability of NEPA is reviewed for reasonableness under the circumstances. (Emphasis added). Goos v. ICC, 911 F.2d 1283, 1291-92 (8th Cir.1990) (citing Minnesota Pub. Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974), and Winnebago Tribe v. Ray, 621 F.2d 269 (8th Cir.) cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980)). We apply that standard here. IV Under NEPA, an agency must include an environmental impact statement (EIS) in “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Only proposals for a “major” federal action therefore require review by an agency under NEPA. “Requiring an EIS for anything less would needlessly hinder the Government’s ability to carry on its myriad programs and responsibilities in which it assists, informs, monitors, and reacts to activities of individuals, organizations, and states, but in which the Government plays an insubstantial role.” NAACP v. Medical Center, Inc., 584 F.2d 619, 634 (3d Cir.1978). NEPA thus “focuses on activities of the federal government and does not require federal review of ‘the environmental consequences of private decisions or actions, or those of state or local governments.’ ” Goos, supra, 911 F.2d at 1293 (citations omitted). Regulations of the Council on Environmental Quality (CEQ) provide that “major Federal actions” include non-federal actions “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. “Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.” 40 C.F.R. § 1508.18(b)(4). This Court has explained that “a non-federal project is considered a ‘federal action’ if it cannot ‘begin or continue without prior approval by a federal agency’ [citations omitted]” and the agency possesses authority “to exercise discretion over the outcome.” Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir.1986), citing W. Rodgers, Environmental Law § 7.6, at 763 (1977). As stated by the Tenth Circuit, “the federal agency must possess actual power to control the non-federal activity.” Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988). Petitioners advance several related arguments in support of their contention that certification of the Incinerator by the FERC is a “Major Federal action.” Petitioners argue that “but for” the FERC certification the Incinerator project could not go forward under the existing agreement. In sum, Petitioners contend that the FERC’s certification is essentially a contractual prerequisite in this case to PEP-CO’s obligations to the Authority, and that such certification renders the project economically viable with a guaranteed buyer and tax-exempt financing. In its Order of November 1, 1990, the FERC held that its certification of this project was merely a ministerial act in which the agency exercised no discretion. Respondent and the Intervenors argue here that if the project meets the size, fuel, and ownership requirements, the FERC has no choice but to grant certification. The FERC further asserts that the certification process does not grant it control over the construction or operation of the Incinerator. Although no other court has decided the precise issue presented in this case, we note that the FERC itself has held that certification of a qualifying facility under PURPA is merely a ministerial act which presents no opportunity for consideration of any environmental impact. See Virginia Turbo Power Sys. — II, L.P., 51 Fed. Energy Reg. Comm’n Rep. (CCH) 1161, 079 (April 26,1990), reh’g denied, 51 Fed. Energy Reg. Comm’n Rep. (CCH) 11 61,356 (June 25, 1990), appeal dismissed sub nom. Andrews v. F.E.R.C., No. 90-3127 (4th Cir.1990). We conclude that the position taken by the FERC in these rulings and in this case is well supported by analogous authority. Other Circuits have held that when an agency has no discretion to consider environmental values implementing a statutory requirement, its actions are ministerial and not subject to NEPA. See Goos, supra, 911 F.2d 1283 (8th Cir.1990) (since the ICC had no discretion to consider environmental factors in deciding whether to issue a Notice of Interim Trail Use, its actions were ministerial and NEPA did not apply); South Dakota v. Andrus, 614 F.2d 1190 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980) (since Department of the Interior had no discretion to consider environmental factors in issuing a mineral patent, it was a ministerial act and not subject to NEPA); Atlanta Coalition on Transp. Crisis, Inc. v. Atlanta Regional Comm’n, 599 F.2d 1333 (5th Cir.1979) (because the Secretary of Transportation had no discretion in ratifying planning procedures and allocating funding, NEPA did not apply); NAACP v. Medical Center, Inc., 584 F.2d 619 (3d Cir.1978) (because the Department of HEW had no discretion to reject capital expenditures plan under the Social Security Act, its approval of the plan was a ministerial act and NEPA did not apply). Petitioners assert that all of the above cases involved situations in which the agency’s authority to consider environmental factors was statutorily limited by Congress. The provision of PURPA applicable here provides that a QF is a facility “which the Commission determines, by rule, meets such requirements (including requirements respecting fuel use, fuel efficiency, and reliability) as the Commission may, by rule, prescribe....” 16 U.S.C. § 796(17)(C). In prescribing rules for QF certification, the FERC did not include consideration of environmental factors among the requirements, but rather established a set of objective criteria relating to fuel use, size and ownership. 18 C.F.R. §§ 292.203, 292.204, 292.-206 (1990). It is thus apparent that a facility which meets these established criteria is automatically eligible for benefits under PURPA. 18 C.F.R. § 292.207(a)(1). Indeed, pursuant to the FERC regulations, the Facility was not even required to apply to the agency for certification but could have opted for selfcertification. Id. Accordingly, we conclude that the FERC does not have discretion to deny certification to any facility which meets the enumerated criteria and that its certification of this project was therefore merely a ministerial act. It is further apparent that the FERC does not have sufficient control over the Incinerator project to federalize it. The Tenth Circuit has held that for a major Federal action to exist “the federal agency must possess actual power to control the nonfederal activity.” Hodel, supra, 848 F.2d at 1089. In this particular case, the Authority could have lawfully disregarded PURPA criteria for certification and could have constructed the Facility in the absence of the FERC certification, in which event it would not have received PURPA benefits. The only action taken by the FERC in this case was its factual determination that this proposed Facility met the limited technical and ownership qualifications established by PURPA. More agency control than that which existed here is necessary before a project may be considered to be federalized for purposes of NEPA. See Maryland Conservation Council, Inc. v. Gilchrist, supra (NEPA requirements were triggered because federal approval was required before a county highway could be constructed through a park; agencies were required to consider environmental factors in their decision and had discretion whether or not to approve the construction of the road or to compel an alternative route); Sierra Club v. Hodel, supra (NEPA requirements were triggered because the agency had a statutory obligation to prevent unnecessary degradation of wilderness areas from the construction of a highway and the authority to require use of an alternative route). Petitioners’ argument that this project was federalized because it would not be accomplished “but for” the FERC certification does not withstand scrutiny. The only case cited by Petitioners that contains any language suggesting a “but for” test is Natural Resources Defense Council, Inc. v. Hodel, 435 F.Supp. 590, 599 (D.Or.1977), aff'd, 626 F.2d 134 (9th Cir.1980). There the District Court stated “that an essentially private project is ‘federalized’ for purposes of NEPA when federal action has enabled the project to come to fruition.” Id. at 599. In determining that the project, a long-range cooperative plan to meet the electrical power needs of the Pacific Northwest, was a “major Federal action” requiring preparation of an EIS, the Court relied on the fact that “federal investment in the [project was] in the billions of dollars.” Id. at 598. Furthermore, “[w]ithout federal peaking power and transmission systems and the services performed by [the federal agency], construction of these plants would be inconceivable in the absence of very substantial change.” Id. at 599. Petitioners attempt to analogize the circumstances here to cases in which the federal agency exercises financial control over the project. See Ely v. Velde (Ely II), 497 F.2d 252 (4th Cir.1974) (LEAA grant to nonfederal entity to build local prison subject to NEPA and NHPA); Proetta v. Dent, 484 F.2d 1146 (2d Cir.1973) (plant expansion by private corporation financed with federal loans is subject to NEPA). However, in this case, the FERC does little more than regulate the rates paid by utilities to the qualifying facility and does not control the financing, construction or operation of the project. Although the Facility receives an economic benefit, no direct federal funding or other substantial federal assistance is provided, and no licensing action is involved. Other arguments advanced by Petitioners are likewise without merit. We hold that the FERC’s determination that certification of the Facility was not a “major Federal action” under NEPA was reasonable under all the circumstances. V Section 106 of the NHPA requires a federal agency to engage in a review process to take into account effects on historic properties when it becomes involved in a federal “undertaking.” Specifically, Section 106 provides: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effeet of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. 16 U.S.C. § 470f. Regulations of the Advisory Council on Historic Preservation define an “undertaking” as a “project, activity, or program [that] must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency.” 36 C.F.R. § 800.2(o). Just as the FERC certification of this Facility is not a “major Federal action” under NEPA, so too such certification is not a federal “undertaking” under NHPA. The standard for triggering NHPA requirements is similar to that for the triggering of NEPA requirements. Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1484 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991). As various courts have explained, NHPA, “by its terms, has a narrow reach and is triggered only if a federal agency has the authority to license a project or approve expenditures for it.” Lee v. Thornburgh, 877 F.2d 1053, 1055 (D.C.Cir.1989); see also Edwards v. First Bank of Dundee, 534 F.2d 1242, 1245-46 (7th Cir.1976) (demolition of a privately owned building by a bank did not involve NEPA or NHPA where the activity was not federally funded and did not require a federal permit even though the bank was under the jurisdiction of the Comptroller of the Treasury); Ringsred v. Duluth, 828 F.2d 1305, 1309 (8th Cir.1987) (review and approval by Secretary of Interior of contracts for private construction of a parking ramp did not involve NEPA or NHPA because the Secretary had no legal or factual control over the ramp); Techworld Dev. Corp. v. D.C. Preservation League, 648 F.Supp. 106, 120 (D.D.C.1986) (in order for a local project to be transformed into a federal “undertaking” under the NHPA, the “federal agency must be substantially involved in the local project, either with its initiation, its funding, or its authorization”). Under the circumstances here, we agree with the FERC finding that its certification of this Facility was not a federal “undertaking,” and we accordingly conclude that its determination that NHPA was inapplicable was reasonable. VI For the above reasons, we affirm the Orders of the FERC in all respects. The FERC’s determination that certification of the Incinerator was neither a “major Federal action” nor a federal “undertaking” was reasonable under all the circumstances. AFFIRMED. . Montgomery County, Maryland ("Montgomery County") also intervened in the proceedings and supported the Authority’s application. . A "cogeneration facility" is one that generates electricity from steam or other forms of energy used for industrial, commercial, heating, or cooling purposes. 16 U.S.C. § 796(18)(A); 18 C.F.R. § 292.202(c). . The CEQ is a federal executive agency created by NEPA. 42 U.S.C. § 4342. CEQ regulations implementing NEPA, 40 C.F.R. Part 1500, are binding on all federal agencies, and CEQ’s interpretation of NEPA is entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 357-58, 99 S.Ct. 2335, 2340-41, 60 L.Ed.2d 943 (1979). . The Advisory Council on Historic Preservation was established by § 201 of NHPA, 16 U.S.C. § 470i. Section 211 of NHPA provides that “[t]he Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 470f of [NHPA].” 16 U.S.C. § 470s.

Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown

GARWOOD, Circuit Judge: This dispute focuses the Court’s attention on a private plaintiff’s enforcement of the National Historic Preservation Act (NHPA) against the United States Army Corps of Engineers (the Corps). Yieux Carre Property Owners, Residents & Associates, Inc. (the Yieux Carre), the plaintiffs-appellants in this case, is made up of landowners within the Vieux Carre National Historic Landmark District — popularly referred to as the French Quarter — on the Mississippi River in New Orleans, Louisiana. The Vieux Carre ultimately seeks to arrest the construction of an aquarium and riverfront park currently being erected on and just landward of the Bienville Street Wharf at the foot of Bienville Street. This appeal comes from the district court’s summary dismissal of the Vieux Carre’s suit on jurisdictional grounds. The Vieux Carre first claims that the Rivers and Harbors Act, 33 U.S.C. § 403(RHA) and the Corps’ regulations found in 33 C.F.R. §§ 320 through 330 (1987), require the Corps to issue a permit for the aquarium phase of the project, and that such permitting in turn requires the Corps to submit the project to the NHPA historic impact review process dictated by 16 U.S.C. §§ 470f and 470h-2(f). The Vieux Carre then claims that the park phase required an individual permit, but that even if it complied with the Corps’ nationwide permit that itself triggered section 470f and required the Corps to follow the historic impact review procedures detailed in 36 C.F.R. §§ 800 et seq. The Corps failed to submit any of the project to the NHPA review process. Thus, the Vieux Carre sued for a declaratory judgment against the Corps and an injunction against those developing or otherwise authorizing the project, namely, the Audubon Park Commission, the City of New Orleans, the Board of Commissioners of the Port of New Orleans, and the Board of Commissioners of the Orleans Levee District. We find that the dismissal of the Vieux Carre’s aquarium phase claim was proper, though for different reasons than those stated by the district court. We reverse the court’s dismissal of the Vieux Carre’s riverfront park claim against the Corps and remand for further legal and factual findings in relation to that claim. We affirm the court’s dismissal of the Vieux Carre’s request to enjoin the other appellees from proceeding with the project. Facts and Proceedings Below In July 1986, the Louisiana Legislature authorized the Audubon Park Commission — a local governmental entity then in charge of operating a New Orleans park and zoo — to acquire riverfront property for a world-class aquarium and riverfront park. As authorized by this legislation, in November 1986, an election was held in which New Orleans voters approved a millage tax necessary to fund bonds for construction of the project. No federal funds will be involved. Following local governmental approvals — including those by the City of New Orleans’ Vieux Carre Commission, the New Orleans City Planning Commission, and the New Orleans City Council — of the proposed site at the foot of Bienville Street, in April 1987, the Audubon Park Commission submitted tentative plans to the Corps to determine whether permitting would be required. The plans describe the project in two phases: Phase A involves construction of the aquarium just landward of and overlapping slightly onto the Bienville Street Wharf; Phase B shows a park on top of the wharf, reserving the riverward face of the wharf for continued maritime use. Near its landward edge, the Bienville Street Wharf sits atop a three-sided box levee that runs alongside the Mississippi River. The riverward vertical of the levee currently serves as the Ordinary High Water Line (OHWL) of the river, and as such is the Corps’ benchmark for determining its jurisdiction under the RHA. This riverward vertical of the levee consists of a concrete and steel bulkhead. In order to achieve a desirable factor of safety against enbankment failure, the foundation piles of the aquarium must be augmented by a new bulkhead, consisting of piles and sheet pile, installed just landward of the existing bulkhead. The new bulkhead admittedly will achieve the desired factor of safety. Though the existing bulkhead will be undisturbed, it appears that the primary available post-construction bulkhead support will be attributable to the new bulkhead. The second, riverfront park phase of the project calls for removal of large metal sheds atop the wharf and the placement of sod, trees, and benches. After reviewing the plans, the Corps concluded in May 1987 that its regulations did not require a permit for the aquarium because the entire project is to be built landward of the OHWL. Thus, the project is not within the navigable waterways of the United States and is therefore outside the Corps’ RHA jurisdiction. The Corps found that the park, which will be located atop the wharf completely riverward of the OHWL and therefore indisputably within the Corps’ jurisdiction, is already within a nationwide Corps permit promulgated under the RHA. It falls within this permit, the Corps asserts, because the plan submitted for review does not involve modifications that would change the dimensions of the wharf and because the riverward edge of the wharf would still be dedicated to maritime use. The Corps informed the Audubon Park Commission of its conclusions by letter dated May 14,1987. The Corps did not submit the project to the NHPA review process. The Vieux Carre filed this suit on August 6, 1987. Following an evidentiary hearing, the district court dismissed the suit, finding that the Vieux Carre had no direct right of action under the RHA, sections 10 and 14, 33 U.S.C. §§ 403, 408, to compel the Corps to require permitting, and that the Administrative Procedure Act (APA) does not provide for federal court review of these specific Corps decisions because they are committed to the Corps’ discretion. 5 U.S.C. § 701(a)(2). As of May 1988, the plans for the aquarium had been finalized and the foundation had been poured. We affirm the district court’s dismissal of the Vieux Carre’s requested injunction, finding that neither the APA nor the NHPA give a private plaintiff a right of action against any of the defendants other than the Corps. We reverse the district court on both of its findings as they pertain to the Vieux Carre’s claims against the Corps, but we approve the Corps’ determination that the aquarium phase of the project did not require a permit. We remand to the district court to determine whether the riverside park in fact falls within the claimed nationwide Corps permit, and, if so, whether, inter alia, the nationwide permitting of the park triggers the NHPA procedures. Jurisdiction The Vieux Carre correctly notes that this Circuit in Orleans Audubon Society v. Lee, 742 F.2d 901, reh’g denied, 750 F.2d 69 (5th Cir.1984), identified the APA as a route through which private plaintiffs can obtain federal court review of the decisions of federal agencies. As noted in Lee, this route also provides the Vieux Carre something of a way around the Supreme Court’s decision in California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), which held that according to the criteria announced in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), a private party has no implied right of action for violations of the RHA. Lee, 742 F.2d at 911, n. 18. We fail to understand, however, how APA-dictated reviewability of the Corps’ decisions allegedly violating the RHA gives the district court jurisdiction to enjoin such nonfederal entities as the Audubon Park Commission. The Vieux Carre has cited a recent Tenth Circuit case that allows plaintiffs to do approximately what the Vieux Carre attempts to do here. In Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), the court ruled that it could review federal agency action—of the Bureau of Land Management (BLM)—through the APA, and that it would simultaneously enjoin the county from proceeding with a road improvement project that the private plaintiff claimed endangered a wilderness study area. The court noted that by its terms the APA does not authorize suits against nonagency defendants who benefit from an agency’s violation of a statute; therefore, the plaintiff apparently lacked a right of action against the county. Still, the court allowed the injunction, reasoning that the county was a necessary party under Fed.R.Civ.P. 19(a) because the BLM was bound by statute to take any action required to protect wilderness study areas, and this would include impleading the county in order to enjoin it. As applied against the nonfederal appellees in this ease, Hodel’s reasoning is faulty for at least three reasons. First, such a holding obviously negates the Supreme Court’s decision in Sierra Club. As long as the private plaintiff joined the federal agency in the action, the former could reach a nonagency defendant even without having a cause of action against that party. Second, unlike the situation in Hodel as to the BLM, no statute requires the Corps to enforce the RHA provision the Vieux Carre claims was violated here. In fact, 33 U.S.C. § 406 explicitly vests that authority in the Attorney General. So, the Corps had no duty to implead or enjoin the Audubon Park Commission or the other nonfederal defendants, and a right of action against them cannot be manufactured in this way. Finally, it is implicit in Rule 19(a) itself that before a party will be joined as a plaintiff it must have a cause of action against the defendants, McNeil Construction Co. v. Livingston State Bank, 160 F.Supp. 809, 813 (D.Mont.1957), and before it will be joined as a defendant the plaintiff must have a cause of action against it. See Dunn v. Carey, 110 F.R.D. 439, 440 (S.D.Ind.1986) (citing to the language in Rule 19(a) that a party will not be joined if joinder deprives the court of subject matter jurisdiction), aff'd on other grounds, 808 F.2d 655 (7th Cir.1986); Melanson v. Rantoul, 421 F.Supp. 492, 501 (D.R.I.1976), aff'd on other grounds, 561 F.2d 409 (1st Cir.1977). In addition to Hodel, pre-Sierra Club Fifth Circuit cases discuss a private party’s right to enjoin a nonagency defendant for an alleged violation of the RHA provision at issue here. In Tatum v. Blackstock, 319 F.2d 397, 399-400 (5th Cir.1963), the Court allowed such an injunction under the authority of a 1928 Fifth Circuit case and a partial quotation from 33 U.S.C. § 406 (omitting the delegation of enforcement to the Attorney General). In a later opinion, this Circuit limited those cases to their facts: building a dam over a navigable waterway without first obtaining the consent of Congress or the approval of the Corps. Intracoastal Transportation, Inc. v. Decatur County, 482 F.2d 361, 366 n. 14 (5th Cir.1973). Regardless, these cases are substantially overruled by Sierra Club. We also observe that the Third Circuit, simply purporting to follow Sierra Club without discussing access through the APA, recently found that a private plaintiff has no right to enjoin or sue a nonagency defendant for damages under the RHA. Harmon Cove Condominium Ass’n v. Marsh, 815 F.2d 949, 953 (3d Cir.1987). It would not help the Vieux Carre to argue that the Corps violated the NHPA in addition to the RHA. Although courts have allowed private plaintiffs to enjoin non-agency defendants where agencies have not complied with the NHPA, these opinions do not explain how the right of action against the nonagency defendant arises. See, e.g., Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3d Cir.1983); cf. D. C. Federation of Civic Associations v. Adams, 571 F.2d 1310 (4th Cir.1978) (indicating that it would be willing to enjoin nonagency actions if it were not ruling that the agency had in fact complied with the NHPA). Rather than through APA review, a private right of action against an agency arises under 16 U.S.C. § 470w-4, which provides for the NHPA to be enforced “in any civil action brought in any U.S. District Court by any interested person.” See United States v. 162.20 Acres of Land, More or Less, 639 F.2d 299, 305, reh’g denied, 644 F.2d 34 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981). Courts that have considered the issue have explicitly ruled that this claim does not extend to actions against nonagency defendants. See, e.g., Edwards v. First Bank of Dundee, 534 F.2d 1242, 1245 (7th Cir.1976); Ely v. Velde, 451 F.2d 1130 (4th Cir.1971). By its terms, only a federal agency can violate section 470f. The Vieux Carre has no federal claim against appellees other than the Corps. Standing Against the Corps The APA, 5 U.S.C. § 702, grants federal court standing to any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The Supreme Court has interpreted this to require that the interest the plaintiff seeks to protect or advance in his complaint “is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). This Court generally applies this zone of interests test for standing. See, e.g., Baker v. Bell, 630 F.2d 1046, 1051 (5th Cir.1980). It is perhaps arguable that if the Vieux Carre sought review of the Corps’ actions as they relate only to the RHA, it would not have APA standing because appellant’s concern is historic preservation rather than the navigability of the Mississippi River. We need not and do not decide that issue. Even if the Vieux Carre is not within the RHA’s zone of interests, however, it may have standing if the NHPA is one of the “relevant statutes” implicated by the Corps’ complained of inaction. The D.C. Circuit, in Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 997 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980), noted that the Supreme Court has defined a section 702 “relevant statute” as a statute plaintiff alleges was violated. The Solomon court ruled that the National Environmental Policy Act (NEPA) was the statute allegedly violated where the parties did not dispute that an action of the General Services Administration had triggered the NEPA requirement to prepare an environmental impact statement. Similarly, in its complaint, the Vieux Carre alleges the Corps’ violations of the NHPA undiluted by any claimed prerequisite violations of the RHA, asserting that the Corps violated 16 U.S.C. § 470f because “the Corps’ review of preliminary plans and reservation of final approval for this project constitute the requisite federal assistance to compel application of the NHPA,” and because it did not submit the park phase to the section 470f process when it determined that the project fell under the nationwide permit created by 33 C.F.R. 330.5(a)(3). The Vieux Carre also asserts that the Corps violated its own regulation, 33 C.F.R. 330.5(b)(9), which directs it to evaluate the historic impact of certain projects that fall under nationwide permits. The Vieux Carre is arguably within the zone of interests sought to be protected by both the NHPA and this particular Corps regulation. Cf. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 2415 n. 13, 37 L.Ed.2d 254 (1973) (“zone-of-interests” test satisfied because environmental group plaintiffs have an environmental interest that the NEPA seeks to protect); Cady v. Morton, 527 F.2d 786, 791 (9th Cir.1975) (an interest in widely shared aesthetic and environmental concerns falls within the zone of interests to be protected by NEPA); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 105 (2d Cir.), cert. denied 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970). We therefore hold that the Vieux Carre’s historic preservation concerns are arguably within the zone of interests Congress sought to protect through the interrelation of the various statutes and regulations that the Vieux Carre has claimed were violated in this action. The Second Circuit made a similar finding in Volpe, in which it ruled that a resident citizens’ committee had standing to challenge the Corps’ issuance, without prior approval of the Secretary of Transportation or consent from Congress, of a permit to the State of New York to dredge and fill the Hudson River for construction of a proposed expressway. The Volpe court found that the plaintiffs were aggrieved within the meaning of at least three relevant statutes. Id. at 104. First, because part of the project was a causeway, the Corps should have secured consent for the project from the Secretary of Transportation as required by the Department of Transportation Act. Plaintiff’s environmental interests were within the zone of interests sought to be protected by this statute because the Act required the Secretary to consider historical values before approving a project under its jurisdiction. The Volpe court also found other, more directly relevant statutes that provided those plaintiffs with standing. These included the Hudson River Basin Compact Act, which instructed all agencies to consider the immense economic, natural, scenic, historic, and recreational value of Hudson River Basin resources before approving activities affecting the area. Finally, the court found that the plaintiffs had standing under the Corps’ own regulations, which directed it to evaluate factors such as environmental effects before issuing such permits. Id. at 105. In summary, although the Vieux Carre cannot enjoin the Audubon Park Commission’s project, it has standing to assert its claim for a declaratory judgment against the Corps. Consideration of Aquarium Plans The Vieux Carre argues that the Corps’ May 14, 1987 response to inquiries about necessary permits for the Audubon Park project triggered the historical impact evaluation procedures of the NHPA, 16 U.S.C. § 47Of, in four different ways: through the Corps’ continuing supervision over the aquarium phase of the project even if no license was required; through the allegedly erroneous determination that no license was necessary for the aquarium despite the requirements of the RHA; because an individual license should have been issued for the park phase; and, even if no new license were necessary, by its determination that the park fell under a nationwide permit. The proper interpretation of section 470f is therefore relevant to all four assertions. This provision of the NHPA provides: “The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.” (Emphasis added.) In effect, the Vieux Carre claims that the Corps’ reserved final approval of plans for the aquarium phase constitutes indirect jurisdiction requiring the Corps to subject the project to the requirements of section 470f. We disagree. This is simply too attenuated. Regardless of the projects arguably included in the first clause of the first sentence of section 470f, the second clause thereof makes it clear that the agency need not act unless it is about to approve an expenditure of federal funds or issue a license. The scant legislative history verifies this understanding of the scope of section 470f: “The committee agreed that Federal agencies having direct or indirect jurisdiction over various undertakings, either through Federal funding or through their licensing powers, should recognize these [preservation] values.” H.R. No. 1916, reprinted in 1966 U.S.Code Cong. & Admin. News, 3307, 3310. Although no cases have been found that interpret section 470f federal assistance as broadly as the Vieux Carre proposes, at least one gives it a very restrictive meaning. See Ringsred v. Duluth, 828 F.2d 1305, 1309 (8th Cir.1987), (equating section 470f federal assistance with the explicit triggering requirement for action under the NEPA — “major federal undertaking”). We conclude that section 470f is not triggered by either the Corps’ instructions for the project developers to submit final plans of the aquarium phase, or by its surveillance of the project to ensure that no permits become necessary. Significantly, circuit courts have ruled that federal environmental protection statutes do not enlarge the Corps’ jurisdiction. See, e.g., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 512 (10th Cir.1985) (stating that the Endangered Species Act does not enlarge the jurisdiction of the Corps under the Clean Water Act); United States v. Stoeco Home, Inc., 498 F.2d 597, 607 (3d Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975) (such statutes do not enlarge the Corps’ jurisdiction under the RHA). Permitting the Aquarium The parties do not dispute that an RHA section 10 permit is a “license” under section 470f. See 36 C.F.R. §§ 800.1(c)(2)(h) and 800.2(o) (1987). They do dispute whether the Corps was required to issue a section 10 permit for the aquarium phase. That section provides in relevant part: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier ... breakwater, bulkhead, jetty, or other structures in any port, ... navigable river, or other water of the United States ... except on plans recommended by the Chief of Engineers_” 33 U.S. C. § 403. Before looking at the regulations and case law on the scope of the Corps’ jurisdiction under the RHA, we must determine the applicable standard for our review of an agency’s jurisdictional determination. The APA, 5 U.S.C. § 706(2), allows courts to set aside agency actions, findings, and conclusions found to be: “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; “(B) contrary to constitutional right, power, privilege, or immunity; “(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; “(D) without observance of procedure required by law; “(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or “(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” The Supreme Court interpreted this statute in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 822-25, 28 L.Ed.2d 136 (1971), stating that review under the substantial evidence test is proper only when agency action is taken pursuant to a rulemaking provision of the APA itself, or when it is based on a public adjudicatory hearing. Id. 91 S.Ct. at 822-23. The Corps’ action in this case falls into neither of these categories. This Circuit, in Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983), considered its standard of reviewing an agency’s alleged failure to exercise its permitting jurisdiction as extensively as it should have. We held that under the APA’s section 706 and Volpe, we could overturn an agency’s determination of the extent of its jurisdiction only when the agency determination was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; that is, when the agency failed to consider relevant factors or made an error in judgment. Id. at 905. One year after Avoyelles, this Circuit applied the section 706(2)(A) arbitrary and capricious standard of review to an agency’s determination that it had no RHA-permitting jurisdiction. Lee, 742 F.2d at 907 n. 11 (citing to Avoyelles and section 706(2)(A-D)). Thus, the Lee Court carried Avoyelles one step further—applying the section 706(2)(A) arbitrary and capricious standard of review to pure jurisdictional determinations. Thus, this Court must decide whether the Corps’ determination that it had no permitting authority over the aquarium was arbitrary and capricious in light of RHA section 10 and the cases and regulations that define the scope of the Corps’ RHA section 10 jurisdiction. See 33 C.F.R. §§ 320-330. Section 322.3(a) requires the Corps to issue permits under section 10 for “structures and/or work in or affecting navigable waters of the United States,” but then states that certain activities are permitted instead by 33 C.F.R. § 330 as nationwide permits. “Navigable waters of the United States” is defined in 33 C.F.R. § 329. Section 322.-3(a) provides that structures and work must be permitted if they are in such waters, or “affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity.” The general definition of navigable waters is found in 33 C.F.R. § 329.4: “Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.” Section 329.11(a)(1) specifically identifies the boundaries of navigable waters in rivers and lakes as “all the land and waters below the ordinary high water mark,” which “on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.” Finally, section 329.3 states that precise definitions of “navigable waters of the United States” are dependent on judicial interpretation. Although no Fifth Circuit cases specifically approve section 329.11(a), other courts have explicitly approved the regulation as the proper limit of the Corps’ RHA section 10 jurisdiction, see, e.g., Swanson v. United States, 789 F.2d 1368, 1371 (9th Cir.1986); Buttrey v. United States, 573 F.Supp. 283, 297-98 (E.D.La.1983), and the regulation comports with the Supreme Court’s determination that federal regulatory power under the commerce clause “extends to the entire stream and the stream bed below ordinary high-water mark.” United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967). The Corps determined that the aquarium phase of the Audubon Park project was “beyond the ordinary high water line of the Mississippi River, i.e., all construction is landward of the box levee.” Because the Vieux Carre does not challenge the Corps’ treatment of this marker as the OHWL at the Bienville Street Wharf, and because the Vieux Carre stipulated that the foundation of the aquarium will be entirely landward of the existing levee, the second clause of RHA section 10 does not require permitting of the aquarium. We must therefore determine whether the Corps’ implicit conclusion that the aquarium project will not affect navigable capacity in waters of the United States — that is, will not create an “obstruction” under the first clause of RHA section 10 — is arbitrary and capricious. The Supreme Court has encouraged a broad interpretation of a section 10 “obstruction,” ruling that it includes not only activities causing a measurable fluctuation in the water level, but also clogging of the channel with deposits of inorganic solids. United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 889, 4 L.Ed.2d 903 (1960). This Circuit has held that canal dredging activities shoreward of the mean high tide line may constitute an obstruction to navigable capacity. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298-99 (5th Cir.1976) (citing United States v. Perma Paving Co., 332 F.2d 754 (2d Cir.1964), which found an obstruction where defendant had overloaded his riparian land and thereby caused shoaling in a navigable channel). The Vieux Carre asserts that two different aspects of the aquarium project will obstruct navigability in the Mississippi River: the circulation of water between the river and the aquarium and the possible failure of the bank at the box levee caused by construction of the aquarium. As to the first claimed “obstruction,” the Corps points out that project plans submitted to the Corps after its initial determination that a permit was not required contemplate an internal water flow system that will not circulate river water. The Vieux Carre cites no authority that such circulation would constitute an obstruction to navigable capacity even if it were still planned. The Vieux Carre's second claimed “obstruction” has more arguable substance. The administrative record shows that, prior to its initial determination that a permit was not required, the Corps was aware that the bank stability at the Bienville Street Wharf was about 1.0 or 1.1, though the Corps’ own standards for flood protection call for a 1.3 stability factor. The Corps’ correspondence states, however, that the floodwall (which is in place at the Bienville Street Wharf landward of the aquarium site) was built seventy feet further landward than otherwise necessary in order to compensate for low bank stability. Consequently, the Corps had no objection to the project. Correspondence in the administrative record indicates that this low bank stability is a preexisting condition. Thus, it is difficult to say that the aquarium constitutes an obstruction to navigable capacity. However, the Vieux Carre points out that in a letter dated May 19, 1987 (two days after the Corps’ initial determination that a permit was not required), a Corps official in its operations division stated that “[i]t is noted that the plans call for the addition of fill material to the bank landward of the existing box levee. This will further lower the safety factor of the existing bank.” A similar statement is found in an internal memorandum from an official in the Corps’ engineering division. Assuming that the administrative record shows unequivocally that the aquarium construction will to some extent decrease the stability of the existing box levee, or that most of the available post-construction bulkhead bank support will be attributable to the new bulkhead landward of the existing levee, this does not require the conclusion that the project will obstruct navigable capacity. This is true even if we further assume that the possible dangers that the record suggests could conceivably at some later time cause an effect on the riverward side of the existing box levee—such as if a bank failure toppled the wharf (much of which is concededly riverward of the box levee) into the river. The RHA’s first section 10 clause, which the Vieux Carre argues mandates a Corps permit for the aquarium, states that a party may not create an obstruction to the navigable capacity of any waters of the United States. The Corps’ regulations interpret this statute as requiring a Corps permit for activities that “affect” navigable waters—those that “affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity.” 33 C.F.R. § 322.3(a). The imprecise statutory language of section 10 leaves the Corps with quasi-legal authority to determine what “effects” constitute “obstructions” or “impacts” to navigable capacity. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985) (“[a]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress”); American Trucking Associations, Inc. v. I.C.C., 722 F.2d 1243, 1248 (5th Cir.1984) (“[e]ven if an agency’s interpretation would not be the one we would adopt if looking at a statute completely afresh, we ordinarily accept that agency’s interpretation of its own statute if the interpretation ‘has a reasonable basis in law’ ”). We find that it is reasonable for the Corps to determine that the possibility of minor or inconsequential effects within the OHWL does not impact or obstruct navigable capacity within the meaning of section 10. It appears that based on such an understanding of “impact” or “obstruction,” the Corps here made a jurisdictional determination that the aquarium construction’s mere possible future effects in navigable waters were neither sufficiently likely nor severe enough to make the aquarium’s construction—occurring entirely on land—an impact on or obstruction of navigable capacity within the meaning of section 10. We conclude that this decision is neither arbitrary, capricious, an abuse of discretion, nor otherwise contrary to law. Finally, the Vieux Carre claims that the Corps’ failure to exercise its permitting jurisdiction over the aquarium flew in the face of the 33 C.F.R. § 320.4 public interest review policies already discussed. In short, the Vieux Carre claims that because of the adverse impact on a historic district, the Corps’ failure to permit was arbitrary and capricious. This argument is unpersuasive. Even if such an adverse impact was obvious, this public interest review regulation is clearly intended as a prerequisite to a decision to permit an activity within the Corps’ jurisdiction, rather than a factor in the decision on whether jurisdiction exists at all. Permitting the Riverside Park The Corps admits that the park phase of the project comes under a nationwide permit, but maintains that such a permit is not subject to the historical impact review procedures of 16 U.S.C. §§ 470f and 470h~2(f). The Vieux Carre contends that (1) the park is not permitted by a nationwide permit and therefore requires an individual permit; (2) if a nationwide permit covers the park, making an individual permit unnecessary, that nationwide permit is a “license” triggering section 470f’s historic impact review procedures. The original Bienville Street Wharf, permitted by the Corps in 1930, could itself come within only one nationwide permit, that under the provisions of 33 C.F.R. § 330.3(b) for “[structures or work completed before December 18, 1968, or in wa-terbodies over which the district engineer had not asserted jurisdiction at the time the activity occurred provided, in both instances, there is no interference with navigation.” The Corps stipulated that the reconstruction of the wharf pursuant to the 1930 permit affected the navigability of the Mississippi River. Thus, the original wharf structure does not fall under a nationwide permit. That does not mean, however, that the park phase cannot fall under such a permit. Section 330.5(a)(3) grants nationwide permits for: “The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or fill, or of any currently serviceable structure or fill constructed prior to the requirement for authorization, provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure or fill, and further provided that the structure or fill has not been put to uses differing from uses specified for it in any permit authorizing its original construction. Minor deviations due to changes in materials or construction techniques and which are necessary to make repair, rehabilitation, or replacement are permitted.” This nationwide permit is subject to the section 330.5(b)(9) requirement that the district engineer give the advisory council an opportunity to comment if he determines that historic properties may be adversely affected by the repair, rehabilitation, or replacement. If the riverfront park does not fit within this section 330.5(a)(3) nationwide permit, it must be individually permitted because its location riverward of the box levee — the OHWL — places it within the navigable waters of the United States and the Corps’ jurisdiction under the second clause of RHA section 10. If an individual permit is necessary, the NHPA section 470f historic impact review procedures would concededly be triggered. Before discussing whether the park falls within the section 330.5(a)(3) permit, however, we address the relationship between nationwide permits and section 470f. The Yieux Carre asserts that even if we find that the park project is covered by the section 330.5(a)(3) nationwide permit, “a permit is a permit,” and nothing in the wording of section 470f indicates that some federal agency licensing is exempt from its requirements. The Corps’ regulations in fact state that permits are either “in the form of individual permits or general permits.” 33 C.F.R. § 325.5(a). A “nationwide permit” is simply “a type of general permit.” See 33 C.F.R. §§ 325.5(c)(2) and 330.1. Interpreting the Clean Water Act (CWA), similar in relevant part to the NHPA, the Tenth Circuit, in Andrews, 758 F.2d at 512-13, held that by allowing a party to proceed under a nationwide permit the Corps had triggered provisions of the CWA requiring agencies to issue environmental impact statements. In so holding, the court distinguished the CWA from the NEPA, which explicitly states that it is triggered by “major federal actions.” As noted above, however, the Eighth Circuit recently approved the parties’ treatment of the NHPA’s section 47Of “undertaking” requirement as “coterminous” with the NEPA’s “major Federal actions” triggering event. Ringsred, 828 F.2d at 1309; cf. Lee, 742 F.2d at 901 (referring throughout to activities falling under a nationwide permit as “exempt” from permitting requirements). The Tenth Circuit’s Andrews interpretation, if adopted for the NHPA, reflects the NHPA’s statutory purpose, which contemplates widespread agency responsibility for the protection of historic interests. See, e.g., 16 U.S.C. § 470(b)(4); H.R.Rep. No. 1916, 89th Cong., 2d Sess. 7, reprinted in 1966 U.S.Code Cong. & Admin.News 3307, 3309. It is also true to the NHPA statutory language itself. Section 330.5(b)’s incorporation of an accelerated historic review procedure as a precondition to a project falling under a section 330.5(a)(3) nationwide permit does not seem to help the Corps’ case. In addition to the fact that the Corps concedes that it did not evaluate the historic impact of either phase of the project, we note that through correspondence the Advisory Council has warned the Corps that section 330.5(b)(9) does not satisfy section 470f requirements. Indeed, regulations promulgated under the NHPA provide for counterpart regulations only under specific circumstances: “In consultation with the Council, agencies may develop counterpart regulations to carry out the section 106 process. When concurred in by the Council, such counterpart regulations shall stand in place of these regulations for the purposes of the agency’s compliance with section 106.” 36 C.F.R. § 800.15 (1987). The Corps’ position that nationwide permits do not trigger section 470f, however, has great practical appeal, especially in relation to the nationwide permit described in 33 C.F.R. § 330.5(a)(3), which unquestionably covers such activities as repainting and reroofing original structures. Congress clearly did not intend to require the Corps to subject such truly inconsequential projects to the procedural complexities of section 470f. See National Historic Preservation Act Amendments of 1980, H.R. No. 96-1457, 1980 U.S.Code Cong. & Admin. News 6378, 6408; cf. 162.20 Acres of Land, 639 F.2d at 302 n. 3. Such a literal construction of section 47Of is unreasonable and unintended, and as such is a result we must endeavor to avoid. See, e.g., United States v. Mendoza, 565 F.2d 1285, 1288, on reh’g, 581 F.2d 89 (5th Cir.1978) (citing “the celebrated” Rector of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), as the seminal case approving judicial avoidance of absurd but literal statutory constructions). Moreover, the applicability of section 470f should not be at the whim of the Corps’ subsequent “permit” label; such labeling does not alter congressional intent. And, as pointed out by the Corps, the nationwide permits of 33 C.F.R. § 330 are specifically designed to expedite activities with inconsequential effects on the RHA concerns. See 33 C.F.R. § 330.1 (stating that nationwide permits “are designed to allow certain activities to occur with little, if any, delay or paperwork”). Indeed, “[t]he purpose of the nationwide permit system is to allow certain types of [activities to go forward] without prior Corps approval.” Lee, 142 F.2d at 909; see also Andrews, 758 F.2d at 511. Consequently, 33 C.F.R. § 330.1 notes that some of its chapter’s nationwide permits require notification to the district engineer prior to commencement of the activity in question. Presumably, these are the more significant projects — those more likely to have measurable impacts on navigation. We hold that nationwide permits authorizing truly inconsequential activities are not triggering “licenses” under section 470f. We now turn to whether section 330.5(a)(3) authorizes such inconsequential activities, for we find that the regulation’s failure to require notification by the “permittee” to the Corps is not dispositive of the issue. This nationwide permit has not previously been interpreted by a federal court in a published opinion. The Corps apparently determined that the park constitutes a “rehabilitation” or “replacement” of the wharf, that the park plans do not deviate from the 1930 plans of the wharf except for minor deviations due to changes in materials or construction techniques that are necessary for the rehabilitation or replacement, and that the park is not a use differing from uses specified in the 1930 wharf permit. The reviewing court must determine whether the Corps’ interpretation of its own regulation is reasonable and consistent with the regulations themselves. Lyng v. Payne, 476 U.S. 926, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986). Because the district court did not address this issue, we remand for an interpretation of the scope of section 330.5(a)(3); a determination of whether the Corps’ finding that the riverfront park is covered by this nationwide permit (as the district court defines it) was arbitrary or capricious; and if the park is covered by section 330.5(a)(3), a ruling on whether the project is so inconsequential that it escapes section 470f’s historic impact review requirements. Finally, if the district court finds that the riverfront park does fall under section 330.-5(a)(3) and is inconsequential, it must also address the Vieux Carre’s argument that this nationwide permit is invalid because the Corps did not evaluate the park’s impact on historic properties as is required by the Corps’ own regulation — section 330.-5(b)(9). The Audubon Park Commission notified the Corps (so as to apparently trigger that regulation) when it submitted plans for the project and asked whether permits would be necessary. Conclusion Because we find that the Vieux Carre has no private right of action under the RHA, and that the APA grants judicial review only of federal agency actions, we affirm the district court’s dismissal of the Vieux Carre’s claims against all defendants except the Corps. We further hold that the Corps’ determination that the aquarium phase of the project was outside its RHA section 10 permitting jurisdiction reflects a reasonable interpretation of the statute and an evaluation of these specific facts that is neither arbitrary nor capricious. Finally, we remand to the district court for a ruling on whether the park phase falls within the nationwide permit in 33 C.F.R. § 330.5(a)(3). If the district court determines that the Corps’ interpretation of this nationwide permit regulation, or its finding that the park is within the regulation, is arbitrary and capricious, the project must be individually permitted because it is within the Corps’ RHA jurisdiction, and thus is subject to section 470f review. If, however, the district court sustains the Corps’ determination that the park phase does fall within this nationwide permit regulation, the court is to go on to determine whether the project is so inconsequential that it nevertheless escapes the historic preservation review requirements of NHPA section 470f; and if it does thus escape section 470f, the district court must address section 330.5(b)(9). Accordingly, the judgment of the district court is AFFIRMED in part and REVERSED, in part, and the cause is REMANDED for further proceedings consistent herewith. . The district court, however found that it did not have jurisdiction under the APA because the Corps’ decisions at issue are "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The courts have applied this APA reviewability exception primarily to situations in which agencies have chosen not to enforce or prosecute violations of their regulations, rather than to agency decisions on whether or not to approve activities governed by a statute that sets guidelines for determining when such approval should and should not be given. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Thus, because the NHPA, the RHA, and relevant Corps regulations dictate the circumstances in which the Corps is required to issue the permits in question here, we assume that the Corps' decision not to permit the aquarium or park is not immune from judicial review under section 701(a)(2). This case is distinguishable from Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949 (3d Cir.1987), in which the court refused to review the Corps' decision not to enforce the conditions of a previously issued RHA dredging permit. . The Hodel court relied in part on League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914 (9th Cir.1977), which allowed injunction of private developers by way of Fed.R.Civ.P. 20(a) permissive joinder. Noting that Rule 20(a) requires that the plaintiff must assert a right of relief against each defendant, the Ninth Circuit found that a local governmental entity’s violation of an interstate compact by granting illegal construction approvals to developers makes those approvals invalid and gives a "right of relief against the developers to prohibit any construction on their projects.” 558 F.2d at 917. Without approving or disapproving this holding, we conclude that such a private right of action does not arise against nonfederal developers when a federal agency violates the RHA. Any other conclusion, we believe, would be too at odds with Sierra Club. . We note, however, that regulations promulgated by the Corps to effectuate the RHA make a "public interest review” part of its permitting process. 33 C.F.R. § 320.4(a). This "general balancing process" includes a consideration of a proposed project’s cumulative effects on historic properties. And section 320.4(e) states that "[f]ull evaluation of the general public interest requires that due consideration be given to the effect which the proposed structure or activity may have on values such as those associated with wild and scenic rivers, historic properties and National Landmarks,....” The Vieux Carre could argue, then, that its concerns are within the zone of interests sought to be protected by the RHA. Cf. Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970) (similar provision under the Department of Transportation Act). . However, the Avoyelles opinion distinguishes situations in which "the court must determine whether the property falls under the agency's jurisdiction at all before it may determine whether the exercise of the agency’s jurisdiction is appropriate," id. at 906, citing as support Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976), which, citing Volpe, used the substantial evidence test to review the sufficiency of the factual predicate necessary for the agency’s exercise of its jurisdiction. The Natural Gas Act, however, rather than the APA, provided the Transcontinental Court with jurisdiction to review the Federal Power Commission’s action. . A May 22, 1987 letter from a Corps official to the Orleans Levee District states that "a bank failure could cause significant damage to the existing wharf, box levee, and facilities landward of the wharf,....” . The Vieux Carre has asserted that all of the challenged Corps decisions trigger the NHPA’s section 470h-2(f) in addition to section 470f. Section 470h-2(f) states: "Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.” Because we find that this section is inapplicable when a federal agency no more than issues a license or permit, we will not address this provision again.

Morris County Trust for Historic Preservation v. Pierce

OPINION OF THE COURT SEITZ, Chief Judge. Samuel R. Pierce, Secretary of the United States Department of Housing and Urban Development (hereinafter referred to as HUD), appeals an order of the district court permanently enjoining demolition of the Old Stone Academy by the Town of Dover Redevelopment Authority (TDRA) until HUD conducts a historical and cultural resource review pursuant to section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1976 & Supp.1982), and an environmental clearance pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1976). This court has jurisdiction under 28 U.S.C. § 1291 (1976). I. The following facts are undisputed. In 1968, HUD approved an Urban Renewal Plan submitted by the Town of Dover, New Jersey. Among its provisions, the Plan directed that all of the buildings along Dickerson Street would be demolished. Dickerson Street would then be widened, additional parking would be provided, and a new traffic pattern would be established for easy flow and access for the remaining commercial district on Blackwell Street. One of the buildings slated for demolition according to the plan is the Old Stone Academy. Constructed in 1829, just a few years after Dover’s incorporation and first development, the Old Stone Academy was the Town’s first general public building. In 1969, HUD and the Town of Dover signed a Loan and Capital Grant Contract pursuant to Title I of the Housing Act of 1949, 42 U.S.C. § 1450 (1976). The Contract provided the funds necessary to undertake the previously approved Urban Renewal Plan, and to carry out the slum clearance and redevelopment of the area. The Loan and Capital Grant Contract was closed out on April 16, 1982, after which time TDRA continued to be funded through a short-term, direct-financing Federal loan. Defendant TDRA is a body corporate and politic of the State of New Jersey, created by the Town of Dover and charged with implementing the Urban Renewal Plan for the Dickerson Street Urban Renewal Area Project. TDRA acquired ownership of the Stone Academy in December of 1978. On July 7, 1980, TDRA voted to execute the demolition of the building. Following several skirmishes with TDRA in the courts of the State of New Jersey, appellees Morris County Trust for Historic Preservation, et al. (MCTHP) filed a complaint in the United States District Court for the District of New Jersey. Based on allegations that HUD failed to comply with the environmental and historical review requirements of NEPA and NHPA concerning the proposed demolition of the Stone Academy, MCTHP requested that the demolition of the structure be enjoined until HUD complies with its various statutory and regulatory responsibilities. The parties consented, pursuant to Fed.R.Civ.P. 65(b), to the consolidation of the trial of the action on the merits with the plaintiffs’ application for a preliminary injunction. The district court, agreeing in large part with MCTHP’s contentions, entered an order enjoining the demolition of the Stone Academy until such time as HUD conducts a historical and cultural resource review pursuant to NHPA and an environmental clearance pursuant to NEPA. HUD filed a timely notice of appeal. II. NEPA Congress enacted NEPA in 1969 in order “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” 42 U.S.C. § 4321. NEPA is primarily a procedural statute, Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979), designed to ensure that environmental concerns are integrated into the very process of agency decision-making. Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1978); see Baltimore Gas & Electric Co. v. NRDC,-U.S.-,-, 103 S.Ct. 2246, 2251, 76 L.Ed.2d 437 (1983) (NEPA requires federal agencies to take a “hard look” at environmental consequences before taking a major action). An additional goal of NEPA is to inform the public that an agency has considered environmental concerns in its decision-making process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 142-43, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). To accomplish these ends, NEPA provides, inter alia, that it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— ****** (4) preserve important historic, cultural, and natural aspects of our national heritage. 42 U.S.C. § 4331(b) (emphasis added). The heart and soul of NEPA is the requirement that Federal agencies, before taking action that may have a significant effect on the environment, must prepare a detailed environmental impact statement (EIS). In the terms of the statute: The Congress authorizes and directs that, to the fullest extent possible ... (2) all agencies of the Federal Government shall— ****** (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C) (emphasis added). Once accomplished, an environmental review under NEPA does not necessarily dietate any substantive outcome: the statute is merely intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek v. Public Service Electric, 687 F.2d 732, 739 n. 13 (3d Cir. 1982). In the present case, it is undisputed that. HUD at no time prepared an environmental impact statement concerning the Dover Urban Renewal Project or considered whether an EIS was necessary. HUD argues that its inaction did not violate NEPA because the effective date of NEPA, January 1, 1970, succeeded the signing of the Loan and Capital Grant Contract by one year, and HUD’s approval of the Urban Renewal Plan by two years. The district court held, inter alia, that “NEPA [is] applicable to the ongoing Dickerson Street Urban Renewal Project because HUD has remained meaningfully involved in the Project after the date of its approval of the Urban Renewal Plan and the date of execution of the Loan and Capital Grant Contract.” In the district court’s view, HUD’s continuing involvement in the project constituted “major federal action” within the meaning of 42 U.S.C. § 4332(2)(C), thus triggering the environmental review provisions of the Act. Our standard of review of the district court’s holding is plenary. A. Major Federal Action HUD’s position is that in cases where the Federal government provides funding for an urban renewal project, major federal action occurs only when the Federal government initially approves the proposed plan or any major amendment to the plan. See 47 Fed.Reg. 56271 (Dec. 15, 1982) (current interim rule); 24 C.F.R. § 50.62 App. A (1982) (prior HUD regulations). HUD relies on several cases which so hold. See e.g., San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-25 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 107 (E.D.Pa.), aff’d without opinion, 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). By contrast, appellees suggest that the words “major federal action” also require compliance with NEPA at any stage of the implementation of a federally-assisted project where a Federal agency has authority to require alteration of building or design plans to enhance the environment. This construction of NEPA, adopted by the district court, also finds support in several cases. See People Against Nuclear Energy v. United States Nuclear Regulatory Commission, 678 F.2d 222, 231 (D.C.Cir.1982), reversed on other grounds sub nom, Metropolitan Edison Co. v. People Against Nuclear Energy, - U.S. -, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983); WATCH v. Harris, 603 F.2d 310, 318, 326 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1182 (10th Cir.1977); Jones v. Lynn, 477 F.2d 885, 890-91 (1st Cir.1973). In choosing between these suggested interpretations of “major federal action”, we begin by noting that NEPA neither provides a definition of major federal action, nor addresses the statute’s applicability to ongoing projects approved before the effective date of NEPA. The statute does say, however, that the environmental policies underlying NEPA should be implemented “to the fullest extent possible”, 42 U.S.C. § 4332, and that it is the “continuing responsibility” of the Federal government to preserve important historic, cultural, and natural aspects of our national heritage. 42 U.S.C. § 4331(b)(4). We think these statements, albeit indirectly so, support the district court’s holding that NEPA should be applicable to federally-assisted projects which were initiated prior to 1970 but which remain subject to the authority of a Federal agency to review the implementation of the project on a stage by stage basis. See Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 169, 171 (3d Cir.1976) (because NEPA places “continuing” responsibility on Federal government to consider environmental effects of Federal action, Federal agencies should continue to consider the environmental effects of an ongoing project until there has been an irretrievable commitment of resources); cf. NAACP v. Medical Center, Inc., 584 F.2d 619, 634 (3d Cir.1978) (when Federal agency may act to prevent the environmental consequences of another’s actions, responsibility for those consequences may be fairly considered that of the federal agency for purposes of major “federal” action under NEPA). Appellees’ interpretation of “major federal action” as including continuing Federal authority also finds support in regulations drafted by the Council on Environmental Quality. 40 C.F.R. § 1500 et seq. (1982). By virtue of Executive Order No. 11991, 3 C.F.R. 124 (1978), these regulations are binding on all federal agencies. People Against Nuclear Energy v. Nuclear Regulatory Commission, 678 F.2d at 231 n. 13 (CEQ guidelines made binding in order to establish uniform procedures for implementing NEPA and to eliminate inconsistent agency interpretations). Consequently, the Supreme Court has held that the CEQ guidelines are entitled to substantial deference in interpreting the meaning of NEPA provisions, even when CEQ regulations are in conflict with an interpretation of NEPA adopted by one of the Federal agencies. Andrus v. Sierra Club, 442 U.S. at 358, 99 S.Ct. at 2341 (CEQ’s interpretation given precedence over contrary interpretation of NEPA adopted by Department of Interior). Relevant regulations promulgated by CEQ provide that major federal action within the meaning of NEPA includes “new and continuing activities ... with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18(a) (1982) (emphasis added). Moreover, the guidelines also provide that “NEPA shall continue to be applicable to actions begun before January 1, 1970, to the fullest extent possible.” 40 C.F.R. § 1506.12 (1982) (emphasis added). In our view, these regulations provide impressive support for the district court’s interpretation of major federal action. The terms of Executive Order No. 11593, 36 Fed.Reg. 8921 (1971) provide further confirmation of the district court’s interpretation of “major federal action”. This Order states that, “[t]he Federal Government shall provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the nation. Agencies of the executive branch of the government ... shall (1) administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations ...” The requirement that Federal agencies administer properties under their control in accordance with historic preservation goals is substantially similar to the district court’s holding that an agency must comply with NEPA at any stage of an ongoing project when it may demand an alteration of the project to conform with environmental goals. Finally, we note that the district court’s interpretation of “major federal action” is consistent with the purpose of NEPA. By requiring Federal agencies to consider the environmental consequences of action for which they are responsible, Congress’ ultimate goal was to prevent environmental damage which is not justified by a countervailing federal interest. Cape May Greene, Inc. v. Warren, 698 F.2d 179, 188 (3d Cir.1983) (NEPA requires balancing between environmental costs and economic and technical benefits). Surely the environmental disturbance caused by a federally-assisted project is' no less significant because of the date of the planning of the project. Jones v. Lynn, 477 F.2d at 888. HUD does not argue that appellees’ suggested interpretation of NEPA would place undue administrative burdens on the urban renewal process. As HUD acknowledged at oral argument, the district court’s interpretation of NEPA would not necessarily require a Federal agency to prepare an entirely new EIS at each stage of an ongoing project which presents an opportunity for the Federal agency to alter the original plan. For example, an EIS would be unnecessary in cases where a more brief “environmental assessment” would suffice, or when federal action falls within a “categorical exclusion”. Also, in cases where an EIS or an environmental assessment has already been prepared with regard to a project, a new assessment or EIS would be necessary only when newly acquired information or an environmentally significant change in the project reveals that the prior assessment or EIS is no longer adequate. See 47 Fed.Reg. 56273 (December 15, 1982) (HUD interim rule implementing NEPA) (environmental assessment need be reevaluated and updated only when “the basis for the original environmental finding is affected by a major change requiring HUD approval in the nature, magnitude or extent of a project and the project is not yet complete”); Township of Springfield v. Lewis, 702 F.2d 426, 446 & n. 38 (3d Cir.1983) (courts must allow involved agencies leeway to make a reasoned determination that new studies and information do not require revising and recirculating an EIS). Finally, no environmental assessment or EIS need be prepared for those aspects of a project for which an irretrievable commitment of resources has already produced most of the environmental harm which an EIS would have anticipated. Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977); see Jones v. Lynn, 477 F.2d at 889 (NEPA only requires a meaningful review of Federal action). Based on our review of the statutory language of NEPA as well as its purpose and implementing regulations, we believe the district court did not err in interpreting the words “major federal action” to require compliance with NEPA at any stage of an ongoing, Federally-assisted project begun prior to 1970 at which a Federal agency has authority to alter the substance of that project. Such an application of NEPA is not retroactive, but prospective, since it seeks “to alter, within proper limits, the aspects of a proposal which have not yet been completed, and not to undo anything which has already proceeded to final [completion]” prior to the effective date of NEPA. Jones v. Lynn, 477 F.2d at 889. B. Continuing Authority The district court held that HUD exercised continuing authority over the Dover Urban Renewal Project after January 1, 1970 by virtue of the provisions of the Dover Loan and Capital Grant Contract. Section 108(A) of the Contract requires the local public agency, in this case TDRA, to furnish HUD promptly with documentary data concerning any proposed actions of the local agency pertaining to the project. According to Section 108(B) of the Contract, the purpose of the data submission requirement is to afford HUD the opportunity to “insure that the Local Public Agency shall not take any step which might, in the opinion of the Secretary, violate applicable Federal laws or regulations or provisions of [the] contract....” Section 108(B) authorizes HUD to inform the local agency in writing of its objection to a proposed step, and to refuse a requested payment if the agency proceeds without securing the prior approval of the Secretary of HUD. Section 108 of the Loan and Capital Grant Contract remained applicable in full until March of 1980, when HUD apprised local agencies, including TDRA, that they were no longer required to comply with the data furnishing provisions of that section. Subsequently, TDRA discontinued submitting data previously required by section 108. We agree with the district court that, at least until March of 1980, the Loan and Capital Grant Contract provided HUD with sufficient authority over the Dover Urban Renewal Plan to constitute major federal action. Specifically, every instance of data submission by TDRA, as required by section 108(A), provided HUD with an opportunity to alter the plan upon a determination that such action would be necessary for compliance with Federal laws or regulations. Thus, we hold that on at least one of the several occasions between January 1, 1970 and March of 1980 when it accepted data submitted by TDRA concerning the Dover Urban Renewal Project, HUD should have complied with the procedural requirements of NEPA and its implementing regulations. III. NHPA Congress enacted NHPA in 1966 in order to “accelerate [the] historic preservation programs and activities [of the Federal Government], to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist state and local governments and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities”. 16 U.S.C. § 470(b)(7) (Supp.1982). NHPA, like NEPA, is primarily a procedural statute, designed to ensure that Federal agencies take into account the effect of Federal or Federally-assisted programs on historic places as part of the planning process for those properties. In this regard, NHPA requires that Federal agencies shall, prior to the expenditure of any federal funds on [an] undertaking ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.” 16 U.S.C. § 470f. It is undisputed that HUD did not at any time take into account the effect of the Dover Renewal Plan on the Stone Academy, or afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the project. HUD’s position is that the NHPA language “prior to the approval of any federal funds on [an] undertaking” refers only to the original approval of an urban renewal plan and any major amendatory to the plan which requires HUD approval. See Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1180 (10th Cir.1977); South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969); cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970), San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 106 (E.D.Pa.1978). HUD argues that its failure to undertake an historic resource review with regard to the Stone Academy did not violate NHPA because the building was neither listed nor eligible for listing in the National Register for Historic Places until 1982, well after the date of original approval of the Dover Urban Renewal Plan, or of any major amendatory to the Plan. The district court adopted a somewhat broader interpretation of NHPA, holding that the statute applies at every stage where a federal agency retains authority to approve funding for, and to provide a meaningful review of federally assisted projects which affect historic properties. The court went on to say, inter alia, that “[a]s long as HUD retains the authority to make funding approvals and give continuous permission to acquire properties, demolish buildings, and change the Urban Renewal Plan, primarily under Section 108 of the Loan and Capital Grant Contract, Section 106 of the National Historic Preservation Act applies to require HUD and the Advisory Council on Historic Preservation to give weight to the impact which undertakings have upon historic places.” See WATCH v. Harris, 603 F.2d 310, 326 (2d Cir.1979); Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1339 (S.D.N.Y.1975). Again, our standard of review is plenary. A. Prior to the Approval of the Expenditure of Any Federal Funds We begin the task of discerning the proper interpretation of NHPA by noting that the language of NHPA could accommodate either of the different interpretations urged upon us. As the Second Circuit noted in WATCH: [Some of the language of NHPA suggests] that even a preliminary authorization [of Federal funds] amounts to a cutoff [date for the application of NHPA], Thus, the first sentence of § 106 states that a federal agency having jurisdiction over a “proposed Federal or federally-assisted undertaking” (emphasis added) shall consider its effect on listed properties. And the language “any” in the phrase “prior to the approval of the expenditure of any Federal funds” might refer to the initial funding only. On the other hand, the language also supports the interpretation that the preliminary approval is not a cut-off. The term “proposed” might simply be shorthand for “proposed or continuing”, and “any” might mean any expenditure of federal funds, not the expenditure of initial funds. Moreover, if the statute intended to establish a cutoff once an agency gave preliminary approval to expenditures, one might expect it to read “prior to the approval of the undertaking,” rather than prior to the approval of the expenditure of any Federal funds on the undertaking.” 603 F.2d at 320. Our review of the legislative history of NHPA also reveals no dispositive answer concerning the proper interpretation of the statute’s applicability to ongoing projects. See WATCH v. Harris, 603 F.2d at 320-323 (summarizing relevant legislative history). The legislative history of NHPA does indicate, however, that Congress designed the statute to draw a meaningful balance between the goals of historic preservation and community development. For example, the House Report accompanying the statute explains that NHPA is an “effort to establish the most effective preservation program possible ..: which is consistent with the necessity for progress within our communities.” H.R.Rep. No. 1916, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 3307, 3309. Later in the same Report, the aim of the statute is described as to strike a “meaningful balance ... between preservation of ... important elements of our national heritage and new construction to meet the needs of our ever growing communities and cities”. Id. The interpretation of NHPA adopted by the district court, that NHPA is applicable to an ongoing project at any stage where a Federal agency has authority to approve or disapprove Federal funding and to provide meaningful review of both historic preservation and community development goals, closely parallels the purpose of the statute. By contrast, the interpretation of NHPA suggested by HUD would have the applicability of NHPA turn on fortuitous elements unrelated to the policy goals of the statute, elements such as the date of an ongoing project’s initial approval and the possible existence of any major amendatories to the plan. The district court’s interpretation of NHPA is further corroborated by regulations drafted by the Advisory Council on Historic Preservation. These regulations, adopted by HUD, 47 Fed.Reg. 56269 (Dec. 15,1982), provide that “[a]s early as possible before an agency makes a final decision concerning an undertaking and in any event prior to taking any action that would foreclose alternatives or the Council’s ability to comment, the Agency Official shall take [appropriate] steps to comply with the requirements of Section 106 of the National Historic Preservation Act and Section 2(b) of Executive Order 11593.” Id. Significantly, Advisory Council regulations define “decision” as “the exercise of or the opportunity to exercise discretionary authority by a federal agency at any stage of an undertaking where alterations might be made in the undertaking to modify its impact upon National Register and eligible properties.” 36 C.F.R. § 800.2(h) (1982). “Undertaking” is defined by the Advisory Council as “any Federal, federally-assisted or federally-licensed action, activity, or program or the approval, sanction, assistance, or support of any non-Federal action, activity, or program. Undertakings include new and continuing projects ...” 36 C.F.R. § 800.2(c) (1982). Read together, these Advisory Council regulations require that NHPA be applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals. This stage by stage approach is almost identical to the interpretation of NHPA subscribed to by the district court, and almost wholly at odds with HUD’s suggested interpretation. As the Second Circuit noted in WATCH v. Harris, the Advisory Council’s regulations are particularly persuasive concerning the proper interpretation of NHPA, given Congress’ subsequent consideration of those regulations combined with its failure to change any construction provided for therein. 603 F.2d at 324; see Udall v. Tallman, 380 U.S. 1, 17-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1964). According to the Second Circuit, the Senate Report’s decision to append two reports of the Advisory Council to a 1976 amendment to NHPA suggests that Congress was aware of the Council’s regulations but chose not to change them. Id. at 325. At this later date, we have even more reason to believe that Congress has implicitly approved the Advisory Council’s interpretation of NHPA. The House Report accompanying certain 1980 amendments to NHPA demonstrates Congress’ knowledge and approval of certain of the Advisory Council regulations with which we are concerned today. The Committee also notes that the term “undertaking”, as it is used in other sections of the Act, is meant to be used in the same context as described in Section 106. The Advisory Council on Historic Preservation has adopted an acceptable definition within its regulations, published as 36 C.F.R. 800. The Committee intends that the council take a “reasonable effort” approach in guiding Federal agencies in carrying out their preservation responsibilities. This means that the degree of Federal involvement in an undertaking and the relation of that involvement to the effects on an historic property should both be considered when an agency determines the actions it will take, or which it requires an applicant to take, to comply with the provisions of this Act and its implementing regulations. H.R.Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Ad. News 6408. Although we are aware of the dangers of inferring Congressional intent from inactivity, we believe it is proper to do so where, as here, the interpretation adopted by the regulations in question is consistent with the purpose of the statute and its legislative history. See Merrill, Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-83, 102 S.Ct. 1825, 1841-42, 72 L.Ed.2d 182 (1982). HUD’s principal objection to the district court’s interpretation of NHPA is that it would convert “each review and funding action designed to ensure the integrity of the original project into a new opportunity to delay or halt the project; every action taken by HUD under the contract to make sure that the project is on course will present an opportunity to deflect it. Clearly, this is a construction of the statute which places too great an administrative burden on the urban renewal process.” See South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969) (making similar objection in NEPA case). The Second Circuit dismissed this objection in WATCH v. Harris by reasoning that “[sjurely the courts would respect reasonable agency procedures for updating past reviews. Similar requirements under NEPA have not proved unworkable.” 603 F.2d at 324 n. 30. Given this Court’s well-established tradition of refusing to place upon Federal agencies meaningless and otherwise unreasonable procedural burdens, see Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977) (NEPA case), we cannot but agree with the Second Circuit’s conclusion. B. Opportunity to Exercise Authority The district court held that, by virtue of Sections 108(A) and (B) of the Loan and Capital Grant Contract, HUD maintained continuing supervision over the implementation of the Dover Urban Renewal Project sufficient to trigger the requirements of NHPA. The district court made no attempt, however, to correlate the period during which sections 108(A) and (B) were effective with the status of the Stone Academy vis-a-vis the National Register for Historic Places. As originally enacted in 1966, NHPA required a historical review only of properties that were listed in the National Register. In 1976, however, Congress amended the statute to require Federal agencies to “take into account the effect of [a Federal or Federally-assisted project] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f (emphasis added). The Advisory Council’s regulations define “eligible property” as “any district, site, building, structure, or object that meets the National Register criteria.” 36 C.F.R. § 800.2(f) (1982). Although the Stone Academy was not actually entered in the National Register until May 21, 1982, we believe it met the National Register criteria in 1976, based on the Stone Academy’s 1982 inclusion in the National Register. Therefore, in evaluating the authority vested in HUD by the Loan and Capital Grant Contract, our task is to locate at least one occasion in 1976 or thereafter on which HUD could have demanded an alteration of the Urban Renewal Project. The record shows that between 1976 and 1980, the Town of Dover at regular intervals submitted data to HUD concerning proposals for implementation of the Dover Urban Renewal Plan. By the terms of sections 108(A) and (B) of the Loan and Capital Grant Contract, each of these occasions provided an opportunity for HUD to demand alterations in the Plan, and to withhold Federal funding if the demand was not met. Therefore, we hold that on at least one of these occasions, HUD should have complied with the procedural requirements of NHPA. Consequently, we believe it was not error for the district court to enjoin the demolition of the Old Stone Academy until HUD conducts a historical resource review pursuant to NHPA. IV. Conclusion TDRA has not argued that both NEPA and NHPA either cannot or should not be held applicable to the Old Stone Academy. Cf. WATCH v. Harris, 603 F.2d at 318 (noting argument); id. at 326 (Lumbard, J., concurring) (because NEPA applies to proposed demolition of historic building, no need to consider applicability of NHPA).Current regulations envision that both statutes may be applied simultaneously, and provide procedures by which a single document may often satisfy an agency’s responsibilities under both NEPA and NHPA. See 36 C.F.R. § 800.9 (1982); 40 C.F.R. §§ 1502.25, 1506.4 (1982). The district court’s order enjoining the demolition of the Old Stone Academy until such time as HUD conducts an historical and cultural resource review of the Academy pursuant to NHPA and an environmental clearance pursuant to NEPA, and presents those studies to the district court for approval upon notice to plaintiff, will be affirmed. . Previously, CEQ had been authorized by Executive Order No. 11514, § 3(h), only to issue nonbinding “guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment.” 3 C.F.R. § 904 (1966-70 Comp.); Andrus v. Sierra Club, 442 U.S. at 353 n. 10, 99 S.Ct. at 2339 n. 10. . CEQ guidelines define an environmental assessment as follows: “Environmental Assessment”: (a) means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. (2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary. (3) Facilitate preparation of a statement when one is necessary. (b) Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed actions and alternatives, and a listing of agencies and persons consulted. 40 C.F.R. § 1508.9 (1982). . CEQ guidelines define a “categorical exclusion” as follows. “Categorical Exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. 40 C.F.R. § 1508.4 (1982). . Thus, two prior cases in which this Court held that no EIS or environmental assessment was necessary because NEPA is not retroactive are distinguishable. See Pennsylvania Environmental Council v. Bartlett, 454 F.2d 613, 624 (3d Cir.1971) (NEPA does not apply to Federal program initiated before January 1, 1970; distinguishing NEPA cases in which discretionary federal administrative action takes place in stages, and some stages took place prior to January 1, 1970 while others remain); Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332, 335 (3d Cir.1972). Transcontinental Gas Pipeline Corp. v. Hackensack Meadowlands Development Commission, 464 F.2d 1358, 1366 (3d Cir.1972), cert. denied, 409 U.S. 1118, 93 S.Ct. 909, 34 L.Ed.2d 701 (1973), is different from the instant case because in Transcontinental, there was no federal funding of the regional development commission’s construction of a natural gas plant. . This Court on several occasions has reserved decision on the proper standard to apply in reviewing an agency decision not to prepare an environmental impact statement. E.g., Township of Springfield v. Lewis, 702 F.2d 426, 436 (3d Cir.1983). We need not resolve this issue in the present case, because HUD’s failure to follow the requirements of NEPA with regard to the Stone Academy, based on its erroneous interpretation of “major federal action”, would be sufficient to constitute unreasonable action, an abuse of discretion, or arbitrary and capricious action. Cf. NAACP v. Medical Center, Inc., 584 F.2d 619, 635 (3d Cir.1978) (Higginbotham, J., concurring) (because agency’s interpretation of “major federal action” satisfied even most rigorous possible standard of review, that of reasonableness, unnecessary to decide whether more deferential standard is controlling). . Because of our disposition of the NEPA issue, we need not consider whether other events occurring after January 1, 1970 constituted major federal action. We also need not consider whether HUD retained sufficient authority over the Dover Urban Renewal Project after March of 1980, by virtue of the continuing applicability of section 108(B) of the Loan and Capital Grant Contract, to constitute major federal action. See WATCH v. Harris, 603 F.2d 310, 317-18, 326 (2d Cir.1979); Wisconsin Heritages, Inc. v. Harris, 460 F.Supp. 1120, 1126 (E.D. Wisc.1978) (although much of HUD’s involvement in the project was terminated, its control over the remaining funds for demolition of the mansion is sufficient to impose further responsibility under NEPA). Finally, we need not address the district court’s ruling that HUD’s failure to comply with certain HUD regulations justifies the court’s award of injunctive relief. . The “steps” required by the Advisory Council regulations include, inter alia, identifying any properties included or eligible for inclusion in the National Register, and “in consultation with the State Historic Preservation Officer, [applying] the criteria of Effect (§ 800.3(a)) to determine whether the undertaking will have an effect upon the historical, architectural, archaeological, or cultural characteristics of the property that qualified it to meet National Register Criteria.” 36 C.F.R. § 800.4(a), (b). . We leave open the issue of the proper standard of review of an agency’s decision not to engage in any historical review of a project pursuant to NHPA, for essentially the same reason that we do not decide the standard of review under NEPA. See note # 5, supra. . Because of our resolution of this issue, we need not decide whether HUD retained sufficient discretionary authority over the Dover Urban Renewal Project after March of 1980 to render NHPA applicable to the Urban Renewal Project. We also do not address the appellees’ suggestions that other events constituted major amendments of the Urban Renewal Project. . See also 16 U.S.C. § 470h-2(i) (Supp.1982) (nothing in NHPA shall be construed to serve as an exemption from necessity of an environmental impact statement if it should otherwise be required); Preservation Coalition v. Pierce, 667 F.2d 851, 850 (9th Cir.1982) (NEPA and NHPA each mandate separate and distinct procedures, and both statutes must be complied with when historic buildings are affected by proposed Federal action). . HUD does not contest the portion of the district court’s order which requires HUD to present its environmental and historical studies to the district court for approval.

WATCH v. Harris

OAKES, Circuit Judge: An ongoing urban renewal project in the heart of a small New England city has evidently awakened in the minds and hearts of local citizens concern about the historical heritage that the project impinges upon. The citizens formed the plaintiff organization by the acronym WATCH, Waterbury Action to Conserve Our Heritage, Inc., and the organization brought suit against three individual federal officials, the Secretary, Regional Administrator, and Area Director of the United States Department of Housing and Urban Development, hereinafter collectively called HUD, and against the Waterbury Urban Renewal Agency (WURA), defendant below and appellant here. The Central Business District Renewal Project No. Conn. R-107 (the Project) contemplated the demolition of a number of buildings in a twenty-acre area. In seeking to stop that demolition WATCH below urged that defendants had not complied with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., and certain regulations of HUD and of the Advisory Council on Historic Preservation. In a careful and comprehensive opinion, the United States District Court for the District of Connecticut, T. Emmet Claire, Chief Judge, held that NEPA was applicable but that, because the loan and capital grant contract was executed before any affected properties were listed in the National Register, NHPA was not. He also held that subsequent regulations of the Advisory Council on Historic Preservation, supra note 1, could not apply because they would be “inconsistent” with NHPA, the underlying statute. Accordingly, the court granted WATCH’s motion for a preliminary injunction to restrain the defendants from proceeding with the Project. WURA appeals from the grant of the preliminary injunction. In a cross-appeal and pursuant to our certification of the issue under 28 U.S.C. § 1292(b), WATCH urges that NHPA is applicable to the Project. HUD does not appeal the grant of the injunction but has filed a memorandum disputing WURA’s arguments that NEPA does not apply or that if it does apply it conflicts with NHPA. The parties have now stipulated that the hearing before the district court on the preliminary injunction can be considered as a hearing on the merits. Cf. Fed.R.Civ.P. 65(a)(2). We commend counsel for this expediting and cost-saving agreement, which we assume that the district court will accept. Thus we need not discuss “probability of success,” “irreparable injury,” or other elements of the preliminary injunction test but will proceed to the merits of the legal issues. BACKGROUND The City of Waterbury, after workshop sessions, meetings, public hearings, and the like, adopted an urban renewal plan to rehabilitate an area of 20.6 acres in downtown Waterbury north of Interstate 84. On May 11, 1973, WURA and HUD executed a Loan and Capital Grant Contract (the Contract), pursuant to which HUD was to give WURA project loans aggregating in excess of $12,800,000 and a capital grant in excess of $11,500,000. The plan calls for demolition of 83 of some 113 buildings in the project area and for the construction of high rise, high density commercial and office space. The project is still far from completion. As of January 28,1977, 55% of the land had been acquired; 35% of the buildings had been demolished; although no land had been disposed of, project improvements were 25% complete; and relocation was 45% complete. As of November 28, 1978, 27 of the buildings scheduled for demolition remained standing. WURA’s executive director testified that as of November 1978, WURA had spent only $12 million of the total cost of the project; that WURA has not disposed of or agreed to convey some of the real estate on which the remaining buildings scheduled for demolition sit; that WURA has not even acquired certain property from private owners; and that a number of the remaining buildings scheduled for demolition are occupied by tenants of WURA. It is of some importance to the resolution of this case that under the Contract the work is done in phases, each of which requires HUD’s permission. Under Section 108(A) of the Contract, WURA is required promptly to submit to HUD documentary data with respect to any action that WURA proposes to take in carrying out the Project. Section 108(B) further provides: [HUD] may elect not to make a requested payment ... if, after [WURA] shall have furnished any item covered by and in accordance with Section 108(A) hereof, [WURA] shall have proceeded further with respect thereto without having been advised in writing by the Secretary to the effect that [HUD] has no objection to [WURA’s] so proceeding. Thus, the acquisition of properties, the demolition of buildings, and changes in the urban renewal plan all require HUD’s on-going permission. Section 108(B) explains that this permission is necessary to insure that the “Agency [WURA] shall not take any step which might, in the opinion of the Secretary [of HUD], violate applicable Federal laws or regulations . . . ” In the eyes of WATCH, the buildings in the project area possess historical interest because they are “of a classic turn-of-the-century main street type,” representing an eclectic collection of architectural styles including Renaissance revival, Richardsonian romanesque, Greek revival, and Italianate. The cultural, social, architectural, and historic significance of the neighborhood escaped the attention of the local citizenry— at least they were not moved by the writings of Ada Louise Huxtable — until December 1, 1976, when the Waterbury Commission on Aging suggested to the State Historic Preservation office that the H. H. Peck carriage house, located within the Project area, be considered for listing on the National Register of historic places. When on May 6, 1976, WURA forwarded to HUD’s area office HUD Form ECO-1 setting forth the applicant’s environmental information with respect to the project area, WURA stated that “[tjhere are no known significant historic, archaeological, or arehitectural sites or properties listed on, or being considered for nomination to, the National Register of Historic Places.” Similarly there were no responses to HUD’s legal advertisements on January 5, 1977, in two Waterbury newspapers that HUD was performing an environmental assessment of the Project and was inviting comment by January 20. On January 28, 1977, HUD completed its Special Environmental Clearance for the Project, observing that “[t]here are no properties listed or nominated to the National Register of historical places.” Based on this Clearance, HUD concluded that there was no significant environmental impact and that the processing of the Project could proceed. But HUD did not consult with the State Historic Preservation office (SHPO) about eligible properties before preparing the Clearance, and there was disputed testimony that it also did not consult about listed or nominated properties. Neither the ECO-1 nor the Clearance expressly considered alternatives to demolition of buildings designated for demolition in the Project area. HUD did not prepare an environmental impact statement for the Project area and did not consult with the national Advisory Council on Historic Preservation. However, on April 21, 1977, WURA did transmit information to HUD about the potential eligibility of the carriage house. On December 29, 1977, HUD wrote to the Department of Interior and expressed its finding that the house was not eligible but requested a determination from the Department. The Keeper of the National Register determined that the house was eligible on February 7, 1978. In late December, 1977, attorneys for members of WATCH who owned property in the Project area wrote to HUD demanding National Register eligibility determinations with respect to all the commercial buildings in the Project area. On January 18, 1978, HUD ordered a “freeze,” i. e., that no federally assisted acquisition, disposition, renovation, or demolition be conducted on any structure within the Project area until the area office had made a Register eligibility determination. The Advisory Council on Historic Preservation subsequently informed the HUD area office that it had become aware of the Project and requested an evaluation of the significance of the central business district. The State Historic Preservation officer on March 22,1978, also wrote to the HUD area office stating that he had made a field inspection in February and concluding that several portions of the area were eligible for inclusion, because the area was “a substantially intact 19th century commercial district,” one of the more complete 19th century downtown areas in Connecticut, and some of the buildings were “outstanding examples of their types.” The “freeze" lasted from January 18, 1978, to August 81, .1978, while HUD inspected the project and gathered data. In September, 1978, HUD terminated its attempts to obtain Register eligibility determinations and recommenced demolition. At this point SHPO informed the Deputy Assistant Secretary of HUD that it had not been consulted and suggested an immediate review of HUD’s decision not to seek an eligibility determination. WURA has evidently entered into a contract for the demolition of the remaining buildings scheduled for demolition. WATCH brought suit in October, 1978, and the district court granted a preliminary injunction on December 22, 1978. THE DECISION OF THE COURT BELOW AND CONTENTIONS OF THE PARTIES The district court held that the plaintiff WATCH had standing to sue, a decision which is not challenged on the appeal, and that the plaintiffs were not guilty of laches because the buildings about which they were concerned had not yet been demolished and because the plaintiffs could properly rely upon the federal agencies’ performing their statutory duties. This decision was surely correct in view of the public interest in preserving the historic sites that remain and the continuing nature of HUD’s supervision over acquisition, demolition, and other project activities, see note 4 supra. Compare Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir. 1975), with City of Rochester v. United States Postal Service, 541 F.2d 967, 977 (2d Cir. 1976). On the merits, Judge Clarie held that NHPA was inapplicable, that Advisory Council and HUD regulations, see note 1 supra, were either inapplicable or invalid, but that NEPA did apply. Judge Clarie concluded the NHPA was inapplicable because in 1973, when the contract here was executed, Section 106, 16 U.S.C. § 470f, provided that “[t]he head of any Federal agency . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking . take into account the effect of the undertaking on any district, site, building, structure or object that is included in the National Register.” Although the statute was amended in 1976 to refer to property “includ[ing] in or eligible for inclusion in the National .Register” (emphasis added), the language “prior to the approval of the expenditure of any Federal funds” remained. As Judge Clarie duly noted, a number of federal courts, in reviewing NHPA challenges to federally assisted urban renewal projects, have interpreted the “approval” language to mean the time when a grant and loan contract is executed. Because no properties in the Project area were listed when the Contract was signed, Judge Clarie reasoned, NHPA imposes no present duty upon HUD to consider the effect of the Project on eligible properties or properties listed after 1973. The court next addressed the applicability of HUD regulations. Pursuant to Executive Order 11593, 36 Fed.Reg. 8921 (1971), directing federal agencies to adopt procedures to assure that federal programs contribute to historic preservation, HUD incorporated by reference the guidelines which the Advisory Council on Historic Preservation had promulgated. See note 1 supra. Under the authority of NHPA, these guidelines originally established procedures for determining whether a federally assisted undertaking had an effect on a listed property. 38 Fed.Reg. 5388 (1973). Under the authority of Executive Order 11593 and NEPA as well as NHPA, the Advisory Council revised the regulations effective January 25, 1974. 39 Fed.Reg. 3366. The guidelines, which have not been subsequently amended, are published at 36 C.F.R. § 800. The district court noted that these revised guidelines differ from NHPA in two important respects. First, even prior to the 1976 amendment to § 470f, the Guidelines directed that the federal agency consider the effect of any proposed undertaking on properties “that are included in or eligible for inclusion in the National Register.” 36 C.F.R. § 800.4 (emphasis supplied). Second, the Guidelines mandate continuing compliance with the Act, even after the date of signing the Loan and Capital Grant Contract, as long as the federal agency retains any authority to make changes in the project which could alter its impact on historical and cultural properties. 36 C.F.R. § 800.3(c) and (g). WATCH v. Harris, No. H-7&-539 (D.Conn. Dec. 22, 1978), at 13. But the court concluded that these guidelines were inapplicable, noting that they did not require agencies to consider eligible properties until 1974, when the contract had already been executed. The court further stated that the guidelines, even if applicable, were invalid because they exceeded the scope of NHPA. Judge Clarie went on to find, however, that NEPA did apply. He reasoned that the granting of approval for acquisition or demolition of any property was a “major federal action” within the meaning of 42 U.S.C. § 4332 and pointed out that the courts have construed this language and that of 42 U.S.C. § 4331(b) to mean that a federal agency must comply with NEPA so long as it retains, as HUD did here, significant control over the project. The judge noted that HUD recognized its continuing responsibility when it imposed a “freeze” on the Project. He found that once new information (the potential eligibility of several structures for listing) was made available, HUD should have conducted a new “threshold” determination as to whether an environmental impact statement was required. If as a result of this threshold determination HUD had decided that Register-eligible properties would be affected, then a detailed environmental impact statement would be required under the case law. The judge also referred to the necessity for notice and public comment prior to the determination under this court’s decision in Hanly v. Kleindienst, 471 F.2d 823, 836 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), and to this court’s requirement that the agency give sound reasons for any determination that structures are not in fact Register-eligible or will not be adversely affected. City of Rochester v. United States Postal Service, supra, 541 F.2d at 973. WATCH seeks to uphold the district court decision in respect to NEPA but contends in respect to NHPA that the cases construing Section 106 to call for a cut-off date as of the date of the loan and capital grant agreement, note 8 supra, have been erroneously decided. In the view of WATCH, Section 106 “applies to require Advisory Council review as long as HUD retains the control to make approvals pursuant to the grant-loan Contract.” WATCH also argues that the guidelines of tile Advisory Council do apply because they are procedural, irrespective of any construction of the Act itself; because they were promulgated before HUD made its environmental assessment in 1977; and because the Handbook was adopted pursuant to NEPA and Executive Order 11593 as well as NHPA. In this appeal, WURA makes an argument that it could not have made in the district court. According to WURA, the district judge was clearly correct in construing NHPA to have an arbitrary cut-off date as of the time the contract was executed and in stating that the procedures of the Advisory Council, whether or not adopted by HUD, note 1 supra, could not affect this statutory interpretation. But, WURA argues, if NHPA is inapplicable, NEPA must also be inapplicable, for several reasons. First, notwithstanding the specific language in Section 101(b) of NEPA, supra note 12, WURA asserts that NHPA is the only federal statute applicable to historic preservation. Second, WURA relies upon a series of cases involving the air and water pollution acts and stating that where an act is the “functional equivalent” of NEPA, NEPA is not applicable. Third, WURA argues that if an environmental impact statement is required, NEPA is in conflict with NHPA and thus should not be enforced, under the Supreme Court decision in Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, 96 S.Ct. 2430, 99 L.Ed.2d 205 (1976) (holding that the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701, displaces NEPA where they are in direct conflict). WURA also argues that even if NEPA applies, HUD followed its own regulations; thus HUD’s determination that an environmental impact statement did not have to be prepared was not arbitrary, capricious, or otherwise not in accordance with law. On this appeal HUD now takes a position contrary to WURA, arguing that Congress has incorporated considerations of historic preservation into NEPA, that NHPA is not the functional equivalent of NEPA, and finally that there is no irreconcilable conflict between NHPA and NEPA that would justify exempting from the operation of Section 102(2)(C) of NEPA an urban renewal project which might have a significant effect on historic resources. DISCUSSION We take up the NHPA question first because if WATCH is correct that NHPA has been erroneously construed, both the supposed conflict that the court found between the statute and regulations and the supposed conflict that WURA urges between NHPA and NEPA disappear. We do this in recognition of the principle of statutory construction that “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Manean, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). A. NHPA Whether NHPA § 106, 16 U.S.C. § 470f, is applicable here depends upon whether the court below was correct in holding that the execution of the loan and grant contract was, within the meaning of the statute, “the approval of the expenditure of any federal funds on the undertaking . . . .” and the only such approval. If it were, then the “cut-off” date for compliance with NHPA was the tirtie of the execution of the loan and grant contract; and because no properties were nominated to, or even considered eligible for listing on, much less listed on, the National Register as of that date, NHPA would clearly not apply. But one might distinguish between a contract that upon execution constitutes final approval of all expenditures of federal funds and a contract such as the one involved here that provides for subsequent approval in stages or phases of specific expenditures which the initial contract has only preliminarily authorized. Without much discussion, the decided cases appear to have assumed that in either kind of contract the cut-off date is the time of execution. See note 8 supra. We conclude, however, that the provisions of NHPA do not cease to apply simply because an agency has preliminarily approved expenditures. Those provisions should apply until the agency has finally approved the expenditure of funds at each stage of the undertaking. Because our conclusion differs from that of most courts that have addressed the question, our reasoning must be stated with care. We begin with the language of the statute. The clues to its meaning, unfortunately, are few and ambiguous. Some do suggest that even a preliminary authorization amounts to a cut-off. Thus the first sentence of § 106 states that a federal agency having jurisdiction over a “proposed Federal or federally assisted undertaking” (emphasis added) shall consider its effect on listed properties. And the language “any” in the phrase “prior to the approval of the expenditure of any Federal funds” might refer to the initial funding only. On the other hand, the language also supports the interpretation that the preliminary approval is not a cut-off. The term “proposed” might simply be shorthand for “proposed or continuing,” and “any” might mean any expenditure of federal funds, not the expenditure of initial funds. Moreover, if the statute intended to establish a cut-off once an agency gave preliminary approval to expenditures, one might expect it to read “pri- or to the approval of the undertaking,” rather than “prior to the approval of the expenditure of any Federal funds on the undertaking.” Finally, it is possible to interpret the term “undertaking” as referring not simply to an urban renewal project but to each of the project’s several phases. Because we believe that the words of the statute are susceptible to either reading, we must look to other guides to ascertain the true congressional intent. In doing so, we must be cognizant of the principle that although legislative history may serve as a guide to the actual purpose of Congress in enacting a law, it is that purpose which we must keep uppermost in mind. Congress never explicitly considered the specific problem before us, so far as the recorded legislative history of the initial National Historic Preservation Act, Pub.L. No.89-665, Title I, 80 Stat. 915 (1966), and the 1976 amendments thereto, Act of Sept. 28, 1976, Pub.L.No.94 — 422, Title II, 90 Stat. 1320, disclose. Nevertheless the legislative history does shed light on the underlying problems that Congress attempted to meet and its method of meeting them; the history therefore helps “to manifest [congressional] purposes in their completeness .” Congressional interest in historic preservation has been longstanding. H.R.Rep.No. 1916, 89th Cong., 2d Sess., 1966 U.S.Code Cong. & Admin.News, pp. 3307, 3308. The Antiquities Act of 1906, 16 U.S.C. § 431 et seq., authorized the President to set aside national monuments on lands controlled by the United States. The Historic Sites Act, 16 U.S.C. § 461, adopted in 1935, declared that “it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States” and established the Advisory Board on National Parks, Historic Sites, Buildings, and Monuments. In 1949 Congress chartered the National Trust for Historic Preservation in the United States, a nonprofit corporation, “to facilitate public participation in the preservation of sites, buildings, and objects of national significance or interest,” and empowered it to accept and administer donated properties and funds. 16 U.S.C. § 468. And in 1965 Congress recognized that urban renewal projects might have an impact on historic sites because the Housing and Urban Development Act of that year permitted a project to relocate “within the project area a structure which the local public agency determines to be of historic value and which will be disposed of to a public body or a private nonprofit organization which will renovate and maintain such structure for historic purposes.” Pub.L.No.89-117, Title III, § 309(a), 79 Stat. 477 (1965) (prior to 1966 amendment). But it was not until a United States Conference of Mayors study by a special committee on historic preservation, entitled “With Heritage So Rich,” that Congress, in enacting NHPA, took the key step of protecting not only “nationally significant’ properties but also properties of “historical, architectural, or cultural significance at the community, State or regional level . against the force of the wrecking ball.” H.R.Rep.No.1916, supra, 1966 U.S.Code Cong. & Admin.News at p. 3309. The House Report emphasized the importance of focusing attention on the significance of such community, state or regional properties, specifically in “the urban renewal field,” and of striking a “meaningful balance . . . between preservation of these important elements of our heritage and new construction . . . .” Id. The proposed NHPA had a threefold purpose, according to the House Report: (1) to strengthen and expand the work being done under section 2(b) of the act of August 21, 1935 . . . and to establish a national register of sites, structures, and the like which are significant in American history, architecture, archeology, and culture; (2) to encourage local, regional, State, and National interest in the protection of such properties; and (3) to establish an Advisory Council on Historic Preservation charged with the duties of advising the President and the Congress on matters relating to preservation of such properties, recommending measures to coordinate public and private preservation efforts, and reviewing plans for Federal undertakings and the undertakings of others involving Federal assistance or requiring a Federal license which affect sites, structures, and the like listed in the national register referred to above. H.R.Rep.No.1916, supra, 1966 U.S.Code Cong. & Admin.News at pp. 3307-08. The legislative history of § 106 begins with S.3098, which Senator Edmund Muskie introduced on March 17, 1966. Section 202 of that bill provided: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted project in any State shall, prior to the approval of the expenditure of any Federal funds on the project, take into account the effect of the project on any site, building, or object of national significance that is included in the national register established under section 101(a) of this Act. The executive branch secured the introduction of S.3035 on March 2, 1966, but the bill contained no comparable provision. In a letter of June 7, 1966, to the Chairman of the Senate Committee on Interior and Insular Affairs, the Deputy Assistant Secretary of the Interior recommended that S.3035 be enacted in lieu of S.3098. He also recommended, however, the adoption of some of the provisions of S.3098, including Section 202, suggesting that the section be expanded to include all structures of historic significance that are included on the national register, not simply structures of national significance. After brief hearings on the bills, the Senate Committee on Interior and Insular Affairs reported out S.3035 with amendments. Section 106 of the reported bill repeated the language “prior to the approval of the expenditure of any Federal funds on the project,” expanded the protection to all historic properties, required the federal agency to report any effect on a listed property to the Advisory Council on Historic Preservation, and provided for a sixty-day waiting period, beginning at the time the report is made to the Advisory Council, “before Federal funds may be expended for the project concerned.” The Committee Report explained that Section 106 “is intended to insure that the Federal agencies will not work at cross purposes with the goals of historic preservation and provides for a meaningful review of Federal or federally assisted projects which affect historic properties identified on a national register.” S.Rep.No.1363, 89th Cong., 2d Sess. 8 (1966). With little general discussion and no discussion of § 106, the Senate passed the bill on July 11, see 112 Cong.Rec. 15165-69 (1966), and referred it to the House Committee on Interior and Insular Affairs. When the House Committee held hearings on July 15, the administration strongly objected to the waiting period requirement that the Senate Committee had added to the bill, reasoning: “A 60-day waiting period in these circumstances could seriously interfere with the execution of important Federal programs.” Letter from Wilfred H. Rommel, Assistant Director for Legislative Reference, Bureau of the Budget, to Hon. Wayne N. Aspinall, Chairman, House Committee on Interior and Insular Affairs (July 15, 1966), reprinted in 1966 U.S.Code Cong. & Admin.News, p. 3316. The House Committee accepted the administration’s suggestion that the Advisory Council simply be afforded a “reasonable opportunity to comment” with regard to the project, changed the word “project” to “undertaking,” and expanded the protection of § 106 to federal licensing agencies. The section, as reported by the House Committee, is identical to § 106 of NHPA as enacted. The House Committee Report contains some language that buttresses the strict cut-off interpretation of § 106. One of the responsibilities of the Advisory Council, the Report stated, was “reviewing plans for Federal undertakings and the undertakings of others,” H.R.Rep.No.1916, supra, 1966 U.S.Code Cong. & Admin.News, p. 3308 (emphasis added). The Report further explained that the bill “requires agencies [whose undertakings affect listed properties] to afford the Advisory Council an ample, fair, and reasonable opportunity to comment with regard to such proposed undertakings before they are commenced.” Id., 1966 U.S.Code Cong. & Admin.News, p. 3310 (emphasis added). But although this “proposal” language demonstrates a congressional commitment to delaying the initial federal funding of a program until the effect on listed properties has been assessed, it hardly demonstrates a converse commitment to rushing forward with the program once initial funding has been approved. Perhaps the legislative materials refer to “proposed” undertakings on the implicit assumption that a federal agency only has discretionary authority over the funding of a project once, at its inception. But sometimes, as here, the assumption is false. The Committee also recognized that the bill represented a balance of goals, “an effort to establish the most effective preservation program possible at this time which is consistent with . . . the necessity for progress in our communities.” Id., 1966 U.S.Code Cong. & Admin.News, p. 3309. On a more sensitive analysis, the legislative history reveals a determination to protect historic properties at every stage where the federal agency approves funding. The House considered the bill on September 19 and October 10 and passed it by voice vote on the latter date. The Senate agreed to the House amendments on the following day without discussion, and the President signed the bill into law on October 15, 1966. Apparently the only floor debate in which § 106 was even mentioned occurred on October 10. Representative John Young, repeating the House Report’s phrase, noted that the Advisory Council had the responsibility of “reviewing plans for Federal undertakings . . . .” 112 Cong.Rec. 25938 (1966). Representative Leo O’Brien, after explaining that the first purpose of the bill was to provide federal funds for local preservation, stated: “Second, the program would be reinforced by providing that no Federal agency may make money available under other Federal programs, such as urban renewal, which will affect a historically significant structure until account has been taken of these effects and until opportunity has been given to the Advisory Council . . to comment on the plan.” 112 Cong.Rec. 25940 (1966). WURA contends that O’Brien’s comment suggests that the accounting and notice requirements do not apply when “the federal money has already been appropriated.” But we find the comment more ambiguous; indeed, the omission of any reference to “approval” and the emphasis on expenditures militate somewhat in favor of the view that the accounting and notice requirements do apply to each approval of funding in a continuing program. Thus the direct legislative history of § 106 is inconclusive. Apparently Congress never explicitly considered the specific issue before us, whether “approval” and “undertaking” in § 106 should be interpreted as imposing that section’s accounting and notice requirements on funding approvals that occur after an initial approval of funding for a continuing program. WURA argues that the elimination of the sixty-day waiting period requirement indicates a congressional policy against delay once the agency has reviewed, and the Advisory Council has had the chance to review, the undertaking prior to the initial funding approval. But the actual policy might be more narrow — to forbid a fixed and substantial period of delay. Although our interpretation of § 106 does require more frequent agency reviews, the reviews need not cause delay in the project if the agency acts with foresight. We conclude that although Congress did not consider the narrow issue before us in 1966, it did intend in § 106 to provide “a meaningful review” of federally assisted projects which affect historic properties, S.Rep.No.1363, supra. We believe that our interpretation of § 106 provides a far more meaningful review than the strict cut-off interpretation. It is not without significance that the Advisory Committee itself came to interpret the Act as applying on a stage-by-stage basis. Note 9 supra. Generally speaking, an agency’s own interpretation of an act that it is charged with executing is entitled to some weight, provided that the interpretation does not directly conflict with the intent of Congress. An administrative construction is particularly persuasive if Congress considers but fails to change it. It is therefore interesting to review the legislative history of the 1976 amendments, Act of Sept. 28, 1976, Pub.L. No.94 — 422, Title II, 90 Stat. 1320, for the history suggests both that Congress might have specifically considered the Advisory Council procedures just noted and that it generally approved of a broad interpretation of NHPA § 106. The 1976 amendments greatly increased the federal funding of historic preservation, gave the Advisory Council on Historic Preservation independent agency status, and somewhat incidentally extended the protection of § 106 to eligible as well as listed properties. It may be significant that the Senate Report treated this extension as simply a “housekeeping" amendment, and hence of not overwhelming substantive importance. S.Rep.No.94-367, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 2442, 2450. Such a characterization is consistent with our interpretation of § 106. For if “approval” of expenditures may occur in the several stages of a project, it is somewhat less important whether a property is included or eligible. Even if the property must be included on the Register before § 106 applies, a phase-by-phase interpretation ensures that the impact on many eligible properties will be considered once they are listed. Appended to the Senate Report were two reports of the Advisory Council on Historic Preservation. The first noted the importance of adequate funding for inventory and explained that “[w]hen resources are not identified until late in project planning, or when there are insufficient funds to develop a feasible and prudent preservation plan, then historic resources are lost to so-called progress.” Advisory Council Report on S.327, supra note 5, 1976 U.S.Code Cong. & Admin.News, pp. 2454, 2455. The second Advisory Council report indicated that since 1966 the National Environmental Policy Act of 1969 and Executive Order 11593 had “expanded the Council’s review responsibilities, conducted pursuant to the Council’s procedures (36 C.F.R. 800), to include properties that are eligible for inclusion in the National Register” and therefore pointed out that amendment of Section 106 to protect eligible properties “would clarify and support the Council’s present project review activities.” Advisory Council Report on NHPA, supra note 1, 1976 U.S.Code Cong. & Admin.News, pp. 2458, 2461. The Senate Report’s appending of these Advisory Council reports suggests that Congress was aware of the Council’s regulations but chose not to change them. The sum and substance of all this is, we think, a congressional purpose, expanding over the years, to make certain that federal agencies give weight to the impact of their activities on historic preservation. Throughout Congress has recognized that it is necessary to identify the properties that are of state, community, or local significance, and this was one of the major purposes of the 1966 Act itself. The problems of identification were and remain considerable, as the 1976 legislative history recognizes. One would suppose that Congress, having these problems in mind, did not intend to adopt a strict cut-off date, at least as to grant and loan contracts such as this one where the federal agency gives its final approval to the expenditure of federal funds only in stages. And § 108(B) of the contract explains that one of the purposes of phased approval is to ensure that the local agency does not take any step which, in HUD’s opinion, might violate federal law. Such an interpretation of NHPA is entirely consistent with the regulations of the Advisory Council, the agency charged by NHPA to act; with Executive Order 11593; and with NEPA. The regulations we have already described. The Executive Order, promulgated in 1971, directed federal agencies, in consultation with the Advisory Council, to “institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, structures and objects of historical, architectural or archaeological significance.” 36 Fed.Reg. 8921 (May 15,1971), 1971 U.S.Code Cong. & Admin.News, p. 2545. And NEPA, as we have pointed out, supra note 12, explicitly includes historic preservation as an environmental objective and imposes a continuing responsibility of compliance. We are not persuaded by the cases, supra note 8, which have interpreted Section 106 of NHPA as imposing a “cut-off.” None of the cases carefully considered the distinction between initial approval and additional approvals in an ongoing undertaking. Nor is there any indication that either Congress or the Advisory Council believes that these cases supply a binding interpretation. Certainly the Advisory Council regulations, supra note 9, do not so indicate. And there is no reference in the legislative history of the 1976 amendments to the decided cases in the lower federal courts, supra note 8. Thus it would be very difficult to argue that Congress by silence adopted any judicial interpretation of the cut-off rule. Moreover, the mandate of NHPA as enacted in 1966 is quite broad, 16 U.S.C. § 470. We are no more willing to give a “crabbed interpretation” to Section 106 of the Act than the courts have been in respect to NEPA. Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 41, 449 F.2d 1109, 1117 (1971); see Chelsea Neighborhood Associations v. United States Postal Service, 516 F.2d 378, 385 (2d Cir. 1975); Hanly v. Mitchell, 460 F.2d 640, 647 (2d Cir.) (Hanly I), cert denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972); Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 419-20 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); see also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 131, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (recognizing that the promotion of the general public welfare by historic preservation in the form of landmarks regulation is a legitimate exercise of the state police power and holding that such regulation is not necessarily an unlawful taking requiring the award of compensation); United States v. Gettysburg Electric Railway, 160 U.S. 668, 682-83, 16 S.Ct. 427, 40 L.Ed. 576 (1896). We conclude that Section 106 as amended applies to require HUD and Advisory Council review as long as HUD retains the authority to make funding approvals pursuant to the grant and loan contract. Here, there is no question that HUD had not approved all stages of the funding in 1976, when the amendment to § 106 requiring consideration of eligible properties became effective, or in 1978, when the Keeper of the National Register determined that the H. H. Peck carriage house was eligible. Nor is there any question that HUD did not comply with § 106 if it was applicable, for even after the “freeze,” HUD did not consider the effect of the project on the carriage house and did not solicit the Advisory Council’s advice. We therefore hold that HUD’s conduct violated § 106 of NHPA. B. NEPA Our views with respect to NEPA accord with those of Judge Clarie, which we need not repeat at length here. We think that his decision accords with how the other federal courts have interpreted NEPA. Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977); Jones v. Lynn, 477 F.2d 885, 888-90 (1st Cir. 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1330-32 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Committee to Save the South Green v. Hills, No. H-76-328 (D.Conn. Nov. 5, 1976), 7 Envt’l L.Rep. 20061; Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1340 (S.D.N.Y. 1975); Boston Waterfront Residents Associ ation v. Romney, 343 F.Supp. 89 (D.Mass. 1972). Our own cases very clearly make NEPA applicable to the quality of life in the urban setting. City of Rochester v. United States Postal Service, supra, 541 F.2d at 973; Chelsea Neighborhood Associations v. United States Postal Service, supra; Hanly v. Mitchell, supra, 460 F.2d at 647. C. Other Questions Under our construction of NHPA, the other arguments of the parties are essentially mooted. WATCH’s arguments pertaining to HUD regulations and Advisory Council procedures are gratuitous. The premise of WURA’s arguments relative to NEPA, viz., that NHPA is inapplicable, is false; thus its arguments based on the supposed conflict must fail. Judgment affirmed. In accordance with the stipulation of the parties, we direct that the injunction be made permanent and that defendants be enjoined from the demolition of buildings scheduled therefor until defendants have complied with the requirements of NHPA and NEPA. . The HUD Handbook of Departmental Policies, Responsibilities and Procedures for Protection and Enhancement of Environmental Quality 1390.1, 38 Fed.Reg. 19182, 19185 (1973), provides: Any HUD action or undertaking which has an effect on a property listed on, or nominated to, the National Register of Historic Places will require Special Environmental Clearance and must comply with section 106 of the National Historic Preservation Act of 1966 and implementing procedures. As Judge Blumenfeld held in Committee to Save the South Green v. Hills, No. H-76-328 (D.Conn. Nov. 5, 1976), 7 Envt’l L.Rep. 20061, 20064, “implementing procedures” must refer to regulations promulgated by the Advisory Council on Historic Preservation under NHPA. After the phrase “implementing procedures,” the HUD Handbook states “(see Appendix L),” and the Handbook further explains, 38 Fed. Reg. 19182 n.4 (1973), that Appendix L is the Advisory Council’s Procedures for Compliance with NHPA § 106, published at 37 Fed.Reg. 24146 (1972). These original Advisory Council regulations required consideration of the effect of an undertaking only on listed properties. But new regulations published on February 28, 1973, required consideration of “nominated” properties as well. Despite the reference in the.HUD Handbook to Appendix L, which itself refers to the original guidelines, the Handbook probably intended to incorporate the revised 1973 guidelines, because the Handbook itself mentions “nominated” properties and postdates the 1973 guidelines. As if this were not complicated enough, the Advisory Council revised its procedures yet again on January 25, 1974, to apply to “eligible” properties, 39 Fed.Reg. 3366. The procedures, which have not been revised again, are codified at 36 C.F.R. § 800. Although HUD proposed to incorporate the thus-revised procedures, 39 Fed.Reg. 6816, 6819, § 50.11g (Feb. 22, 1974), it apparently has not done so. It has, however, again proposed to adopt present Advisory Council procedures to “clarify” HUD’s review requirements, 43 Fed.Reg. 35170, 35173 (1978). It is important to note that Handbook 1390.1 originally incorporated the Advisory Council procedures pursuant not only to NHPA but also to NEPA and Executive Order 11593, 36 Fed. Reg. 8921 (1971), 1971 U.S.Code Cong. & Admin.News, p. 2545, giving the Handbook somewhat broader authority than the district judge may have attributed to it. The legislative history of the 1976 NHPA amendments elucidates this point: With respect to the substantive work of the Council, Section 106 requires Federal agencies to provide the Council with a reasonable opportunity to comment on their undertakings that affect properties listed on the National Register of Historic Places. Since 1966, the National Environmental Policy Act of 1969 and Executive Order 11593 of 1971 have expanded the Council’s review responsibilities, conducted pursuant to the Council’s procedures (36 C.F.R. 800), to include properties that are eligible for inclusion in the National Register. Recognition of these existing responsibilities, by amendment of Section 106 to include “properties eligible for inclusion in the National Register,” would clarify and support the Council’s present project review activities. The Status of the Advisory Council on Historic Preservation under the National Historic Preservation Act of 1966: Report of the Advisory Council on Historic Preservation to the Senate Committee on Interior and Insular Affairs, June 1975, in S.Rep.No.94-367, 94th Cong., 2d Sess. 33, 1976 U.S.Code Cong. & Admin.News, pp. 2442, 2460-61. . As we understand it, the stipulation removes all such questions from the case. We note, however, that the district judge was surely correct in finding irreparable injury; demolition is generally irreparable. . The district court noted that there is some slight dispute about these figures but that the dispute is irrelevant to the merits. WATCH v. Harris, No. H-78-539 (D.Conn. Dec. 22, 1978), at 4 n.1. . Section 108 of the Contract provides in full: (A) Types of Project Data to Be Furnished. —The Local Public Agency will promptly furnish the. Secretary with such copies as he may reasonably require, for his use under this Contract, of the following items covering actions then proposed to be taken by the Local Public Agency in its carrying out of, and which pertain to, the Project: (1) Documentary data covering salary rate determinations made under State or local law with respect to architects, technical engineers, draftsmen, and technicians to be employed in the development of the Project; (2) Contract documents covering contracts of each type it proposes to enter into or upon which it proposes to seek bids or proposals; (3) Tabulations of bids or proposals it receives on contracts for which it seeks bids or proposals; (4) Documentary data covering its proposed awards of contracts; (5) Contract change orders and contract novations which it proposes to issue, and proposed contract assignments which it proposes to approve; (6) Documentary data covering its proposed determinations respecting liquidated damages and extensions of time under its awarded contracts; (7) Documentary data covering any Project work it proposes to undertake by so-called “force account”; (8) Reports of appraisals which are made at its instance with respect to land in the Urban Renewal Area to be acquired by it as a part of the Project, and similar reports with respect to Project Land to be disposed of by it; (9) Documentary data covering its proposed acquisitions of options to acquire land in the Urban Renewal Area as a part of the Project except where the option is for a nominal consideration and the land purchase price stated in the proposed option does not exceed the purchase price of such land, as theretofore concurred in by the Secretary; (10) Documentary data covering its proposed granting of options to others to acquire Project Land; (11) Proposed contract documents by which it proposes to contract to acquire land in the Urban Renewal Area as a part of the Project or proposes to contract to dispose of Project Land; (12) Documentary data covering its proposed acquisitions of land in the Urban Renewal Area as a part of the Project and covering its proposed dispositions and retentions of Project Land; (13) Documentary data covering its proposed determinations of fair value of Project Land to be disposed of by it; (14) Documentary data supporting the capital values it proposes to impute to Project Land to be leased by it to others or to be retained by it for use in accordance with the Urban Renewal Plan; (15) Documentary data covering its proposed arrangements respecting its temporary operation, utilization, or disposition of Project Land pending its preparation and ultimate sale, lease, or retention of Project Land for uses in accordance with the Urban Renewal Plan; (16) Documentary data covering its proposed clearance of buildings and structures from the Urban Renewal Area and covering its proposed utilization or disposition of such buildings and structures; (17) Documentary data covering any proposed changes in the Project, the Urban Renewal Area, the Urban Renewal Plan, or the Relocation Plans; (18) The proceedings which, from time to time, it proposes to take for the authorization, execution, issuance, and delivery of any Project Temporary Loan Obligations, Preliminary Loan Obligations, Project Definitive Loan Obligations, or Project Loan Payment Obligations; and (19) Other documentary data, not herein-before mentioned in this subsection, covering any proposed actions of the Local Public Agency pertaining to the Project. (B) Advice by Secretary to Local Public Agency Concerning Certain Proposed Actions by Latter. — Notwithstanding any other provisions of this Contract, the Government may elect not to make a requested payment on account of the Project Temporary Loan, any Project Definitive Loan, or the Project Capital Grant if, after the Local Public Agency shall have furnished any item covered by and in accordance with Section 108(A) hereof, the Local Public Agency shall have proceeded further with respect thereto without having been advised in writing by the Secretary to the effect that the Government has no objection to the Local Public Agency so proceeding (it being the purpose of this subsection, and of Section 108(A) hereof, to insure that the Local Public Agency shall not take any step which might, in the opinion of the Secretary, violate applicable Federal laws or regulations or provisions of this Contract, and to minimize thereby the possibility of violations which might render it impossible for the Government to make the Project Temporary Loan or any Project Definitive Loan or to pay the Project Capital Grant, as the case may be, or which might result in unnecessary and ineligible costs or unnecessary delays with respect to the Project). . This is not surprising. As indicated in the legislative history of the 1976 Amendments to NHPA, One result of the current funding situation is that the backlog of work to be done in identifying and preserving properties will continue to increase. If the program is left unchanged, in a few years such massive funding may be required to eliminate the backlog that it may not be possible to reach a state of parity with the needs. This would be a crucial problem because the current preservation movement has shifted from the preservation of nationally significant sites pursuant to the Historic Sites Act of 1935 and the preservation of individual sites of State or local importance under the 1966 Act to the conservation of basic elements of the human environment. This is particularly true in urban areas. Entire neighborhoods are now [1975] the focus for preservation, although they would not have met the older tests of outstanding historical or architectural merit. Areas of cultural significance, such as Chinatown in Honolulu, or Beale Street in Memphis, benefit from the present Federal preservation programs. In this manner, preservation becomes more relevant to a broader segment of American society and local enthusiasm for the program continues to increase. Federal participation should keep pace with this expanding base of support. Title II of S.327: A Report of the Advisory Council on Historic Preservation to the Senate Committee on Interior and Insular Affairs, June, 1975, in S.Rep.No.94-367, 94th Cong., 2d Sess. 28, 1976 U.S.Code Cong. & Admin.News, p. 2456 (emphasis supplied). . The State’s belated consideration of the carriage house is also not surprising, for interest in local historic preservation has become widespread only in recent years, and state historic preservation offices have been underfunded and understaffed. See S.Rep.No.94-367, supra note 1, at 6-7, 1976 U.S.Code Cong. & Admin. News, at 2444-45; and Advisory Council Report, supra note 5, in S.Rep.No.367, supra note 1, at 27, 1976 U.S.Code Cong. & Admin.News, at 2455-56 (“The National Register only lists about 10,000 properties at this time [1975] out of an estimated total in excess of 50,000 when the Register is complete. The major cause of this lag is lack of funds. . . . Given limited funds, the States have had to use most of their monies for ‘bricks and mortar’ preservation of already inventoried properties in imminent danger of loss.”). . Prior to 1976, § 106 provided in full: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal Department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f (1970). . The principal cases are South Hill Neighborhood Ass’n v. Romney, 421 F.2d 454, 462 (6th Cir. 1969), cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970); and Kent County Council for Historic Preservation v. Romney, 304 F.Supp. 885, 888 (W.D.Mich.1969). Subsequent cases invoking what may be called the “cut-off” principle have simply followed these cases. Hart v. Denver Urban Renewal Auth., 551 F.2d 1178, 1180 (10th Cir. 1977); Committee to Save the South Green v. Hills, supra, 7 Envt’l L.Rep. at 20064; Save the Courthouse Comm. v. Lynn, 408 F.Supp. 1323, 1335-36 (S.D.N.Y.1975); St. Joseph Historical Soc. v. Land Clearance for Redevelopment Auth., 366 F.Supp. 605, 608-09 (W.D.Mo.1973). Kent County appears to be the source of the “cut-off” principle. Responding to plaintiffs contention that each expenditure of federal funds invokes the protections of § 106, the judge noted that “prior to the expenditure” and “prior to approval of the expenditure” (the statutory language) reflect “two separate and distinct concepts.” 304 F.Supp. at 888. The judge then used the rather strong language: “This Court would have to be mad to place such a ludicrous interpretation on the simple clear language employed by Congress in § 470f.” Id. We suggest, however, that although each new expenditure of federal funds does not bring § 106 into play, each new approval of a phase of a plan might, if (as here) HUD’s approval is necessary before federal funds may be expended on that portion of the plan. None of the other cases discusses, let alone makes, this distinction; evidently none of the parties argued the specific point. (Some of the cases have conceded, however, that if an amendment to the general urban renewal plan increases the commitment of federal funds, a new “approval” has occurred within the meaning of § 106. Hart v. Denver Urban Renewal Auth., supra; South Hill Neighborhood Ass’n, supra; Save the Courthouse Comm., supra. . 36 C.F.R. § 800.3 provides: As used in these procedures: (c) “Undertaking” means any Federal action, activity, or program, or the approval, sanction, assistance, or support of any other action, activity or program, including but not limited to: (2) New and continuing projects and program activities: directly undertaken by Federal agencies; or supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance; or involving a Federal lease, permit, license, certificate, or other entitlement for use. (g) “Decision” means the exercise of agency authority at any stage of an undertaking where alterations might be made in the undertaking to modify its impact upon historic and cultural properties. The importance of this last definition is apparent from 36 C.F.R. § 800.4(a): Identification of resources. As early as possible and in all cases prior to agency decision concerning an undertaking, the Agency Official shall identify properties located within the area of the undertaking’s potential environmental impact that are included in or eligible for inclusion in the National Register. . 42 U.S.C, § 4332(2) provides in pertinent part: (2) all agencies of the Federal Government shall— (C) include in every recommendation or report on proposals for legislation or other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (iii) alternatives to the proposed action, Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved..... . Jones v. Lynn, 477 F.2d 885, 889 (1st Cir. 1973); Monroe County Conservation Council v. Volpe, 472 F.2d 693, 699 (2d Cir. 1972); Save the Courthouse Comm., supra, 408 F.Supp. at 1340. . Section 101(b) of NEPA, 42 U.S.C. § 4331(b), provides in part: In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (4) preserve important historic, cultural, and natural aspects of our national heritage . A mechanical difficulty with this argument is that HUD had not adopted the “eligibility” provisions of the Advisory Council Procedures in its Handbook 1390.1 as of the time this case was heard below, perhaps through oversight or because HUD considered adoption unnecessary in light of the 1976 amendments to NHPA. . Ordinarily, of course, we will not consider arguments not made in the court below. Ferkildsen v. Waters, 481 F.2d 201, 204-05 (2d Cir. 1973). . E. g., Environmental Defense Fund, Inc. v. EPA, 160 U.S.App.D.C. 123, 133, 489 F.2d 1247, 1257 (1973); Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 317, 486 F.2d 375, 384 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); International Harvester Co. v. Ruckeishaus, 155 U.S.App.D.C. 411, 446, n.130, 478 F.2d 615, 650 n.130 (1973). . Under the Interstate Land Sales Full Disclosure Act, a real estate developer is required to file a disclosure statement with HUD, and HUD must permit the statement to become effective unless it disapproves of it within 30 days. 15 U.S.C. §§ 1704, 1706(a). HUD could not possibly comply with the latter requirement if it also had to file a NEPA environmental impact statement before allowing the statement to go into effect. Therefore, the Court held, because there was a “clear and unavoidable conflict ., NEPA must give way.” Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426 U.S. 776, 788, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 205 (1976). See also United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 694, 93 S.Ct. 2405, 2418, 37 L.Ed.2d 254 (1973) (“NEPA was not intended to repeal by implication any other statute”). . See note 12 supra. . The Government reasons that the “functional equivalence” doctrine has been applied only to EPA activities under pollution control laws where the agency’s objective was to explore environmental factors that included those enumerated in NEPA;. that NHPA is not a “functional equivalent” of NEPA; and that even if it were, the doctrine cannot be invoked here because NHPA’s provisions do not apply and thus do not offer any “protection,” equivalent or otherwise. . One indication that Congress understands the distinction between approving an undertaking and approving expenditures on an undertaking is that Congress clearly provided for the former type of approval in the Department of Transportation Act of 1966: [T]he 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). . See 36 C.F.R. § 800.3(c)(2). . See Guiseppi v. Walling, 144 F.2d 608, 623, 624 (2d Cir. 1944) (L. Hand, J., concurring), aff'd sub nom. Gemsco, Inc. v. Wailing, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945); Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv.L.Rev. 370, 382-84 (1947). See also Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395, 74 S.Ct. 745, 95 L.Ed. 1035 (1951) (Jackson, J., concurring). . L. Hand, The Speech of Justice, 29 Harv.L. Rev. 617, 620 (1916). . The Antiquities Act of 1906 was a direct outgrowth of President Theodore Roosevelt’s concern with and appreciation of the preservation of America’s national heritage. W. Harbaugh, Power and Responsibility: The Life and Times of Theodore Roosevelt 331 (1961). . This policy carries over to the present. Title IV of the Housing and Urban Development Act of 1970, Pub.L.No. 91-609, 84 Stat. 1781 (1970) (amending inter alia 42 U.S.C. § 1500 et seq.), provides for grants to preserve historic sites. Grants for historic preservation are also provided in Title I of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301 et seq. We also note that the Internal Revenue Code provides some tax incentives for historic preservation. I.R.C. §§ 167(n) & (o), 191, 280B. . See 1966 U.S.Code Cong. & Admin.News, pp. 3318-19, reproducing the virtually identical June 10, 1966, letter from the Deputy Assistant Secretary of the Interior to the Chairman of the House Committee on Interior and Insular Affairs concerning the House versions of S.3035 and S.3098. . During hearings on the two bills before the Senate Committee on Interior and Insular Affairs on June 8, 1966, Gordon Gray, Chairman of the National Trust for Historic Preservation, expressed his concern that national monuments be protected against demolition, mutilation or alteration without the approval of the proposed advisory board. When Gray was informed that Section 202 of S.3098 responded to this concern, Gray perused the section and agreed, stating: “I think it meets my problem, Mr. Chairman, of making sure that Federal agencies do not destroy historic properties in their ongoing activities." Preservation of Historic Properties: Hearing on S.3035 and S.3098 before the Subcomm. on Parks and Recreation of the Senate Comm, on Interior and Insular Affairs, 89th Cong., 2d Sess. 24 (1966) (emphasis added). . Section 106 of the bill as reported provided in full: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted project in any State shall, prior to the approval of the expenditure of any Federal funds on the project, take into account the effect of the project on any district, site, building, structure, or object that is included in the National Register, and, if any such historical properties are affected, report such effect to the National Advisory Council on Historic Preservation established under title II of this Act for its consideration. There shall be a sixty-day waiting period, beginning on the date a report is made to the National Advisory Council on Historic Preservation, before Federal funds may be expended for the project concerned. . See also S.Rep.No.1363, 89th Cong., 2d Sess. 10 (1966) (§ 106 requires federal agencies to report projects with affect historic properties to the Advisory Council “before authorizing the expenditure of Federal funds on the project” (emphasis added)). . The use of the term “undertaking” rather than “project” might suggest that § 106 applies to continuing activities. But we should not place too much emphasis on the unexplained change of one word in a statute; indeed, the change might simply suggest that § 106 applies to federal activities of any scope or kind. . We recognize that insofar as our interpretation of § 106 requires agency review and notice to the Advisory Council whenever the agency approves the funding of any stage of a project, a project with many funding stages will require periodic reviews. But we do not believe that this “construction of the statute would place too great a burden on the urban renewal administrative process,” South Hill Neighborhood Ass’n, supra, 421 F.2d at 462. Surely the courts would respect reasonable agency procedures for updating past reviews. Similar requirements under NEPA have not proved unworkable. . Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (“the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction” (footnotes omitted)), Udall v. Taliman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); CAB v. Carefree Travel, Inc., 513 F.2d 375, 390 (2d Cir. 1975). See also ITT World Communications, Inc. v. FCC, 595 F.2d 897 (2d Cir. 1979), slip op. 1861, 1884, citing Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961), and Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933) (administrative practice “has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.”). Concededly the Advisory Council procedures published at 36 C.F.R. § 800 are based on the authority of Executive Order 11593 and NEPA as well as NHPA. The administrative construction is nevertheless entitled to some weight in interpreting NHPA, for the Advisory Council’s elaboration of “undertaking,” “effect,” and other terms of NHPA § 106 reveals an intent to define the scope of that statute’s protections. Moreover, even the Council’s 1972 procedures, adopted on the sole authority of NHPA, define “undertaking” broadly. 37 Fed.Reg. 24146 (1972). HUD, of course, is also charged with administering NHPA, for it is the federal agency with jurisdiction over this urban renewal project under § 106. Although HUD has not officially adopted the Advisory Council procedures in 36 C.F.R. § 800, it has proposed to do so. Thus HUD’s inaction in no way contradicts the Council’s interpretation of the statute. . See Udall v. Taliman, supra, 380 U.S. at 17-18, 85 S.Ct. 792. . The 1846 railroad terminal in Salem, Massachusetts, one of the first such stations in the country, was, the Advisory Council’s report noted, “demolished before its significance was recognized.” Advisory Council Report on S.327, supra note 5, 1976 U.S.Code Cong. & Admin.News, p. 2455. . The House Conference Report accepted the Senate five-year funding authorization and, without discussion, recommended approval of the Senate provisions recognizing the Advisory Council as an independent agency and making “all of the necessary changes in the National Historic Preservation Act of 1966 to accomplish this purpose . . . .” H.Conf.Rep.No. 94-1468, 94th Cong., 2d Sess. 19, 1976 U.S. Code Cong. & Admin.News, pp. 2462, 2466. The Report contains no other more direct reference to the amendment to § 106. . See Boys Markets, Inc. v. Retail Clerks, Local 770, 398 U.S. 235, 241-42, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970) (absent “persuasive circumstances evidencing a clear design" that congressional inaction amounts to acceptance of a judicial rule, the mere silence of Congress is not a sufficient reason for refusing to reconsider the rule), . We do note, however, that the district court slightly overstated the procedural obligations established by Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) (Hanly II), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). Hanly II did not, as the court suggested, require a federal agency to conduct a public hearing before making its threshold determination as to whether an environmental impact statement was required. But although we did not require “a full-fledged formal hearing" in every case, we did hold that the agency "must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency’s threshold decision." Id. at 836.

WATCH v. Harris

LUMBARD, Circuit Judge (concurring): I concur in making permanent the injunction granted by Chief Judge Clarie for the reasons stated in his succinct and thorough opinion. As HUD’s failure to file an environmental impact statement violated NEPA, I see no reason to consider the contentions of the parties with respect to NHPA.

Edwards v. First Bank

EAST, District Judge. Defendant First Bank of Dundee, an Illinois State Bank, (Bank) appeals from an order of the District Court preliminarily enjoining the Bank from demolishing its privately owned building, hereinafter referred to as the Brinkerhoff House, until such time as the Federal Deposit Insurance Corporation (FDIC) authorizes the Bank’s application for a change of location of its banking facilities to the Brinkerhoff House property, or receives an Environmental Impact Survey (EIS) and an advisory opinion from the Advisory Council on Historic Preservation. We reverse. Jurisdiction in the District Court is asserted under the Federal Deposit Insurance Corporation Act (FDICA), 12 U.S.C. § 264 et seq., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq. The pertinent background facts are: The Bank is an insured bank under the provisions of the FDICA, maintaining its main banking facility in East Dundee, Illinois, with a drive-in banking facility located some 900 feet distant across a stream in the Village of West Dundee (Village). Because of the present and anticipated future growth of its business, the Bank has determined that its present facility is entirely inadequate to service its business needs and the banking requirements of its customers. In response to those needs, the Bank purchased for an aggregate purchase price in excess of $200,000 two parcels of property adjacent to its drive-in facility. Upon one of the properties is located a structure well known in the Village as the Brinkerhoff House. The acquisition of these two parcels, together with the drive-in banking facility area, put the Bank in title to an entire platted block of real property, an amount of land sufficient for the construction of the proposed new bank building. The entire project is privately financed, and is without federal funding or assistance in any amount. The Brinkerhoff House is a three-story pioneer residence in the Village. Immediately prior to the Bank’s purchase, it was owned by the Board of Library Directors of the Township of Dundee (Library Directors) and served as the public library building from 1962 through April, 1965. In 1973, the Library Directors determined to sell the property and build a new library building. The House was vacated and since has been vandalized and is in disrepair. In November, 1973, pursuant to applicable law, the Library Directors publicly advertised the sale by publishing a notice thereof in a local newspaper and requesting bids for the property. The Bank submitted a bid to purchase the property at a price of $135,000. At a public meeting of the Library Directors, the bid of the Bank was accepted. An executory contract for sale was entered into and on April 1, 1975, pursuant to the terms of its contract, the Bank took title to the Brinkerhoff House property- During the entire negotiations for the purchase, it was common knowledge throughout the Village that the Bank contemplated the demolition of the Brinkerhoff House to prepare for the construction of its new building facility. Interested community members sought to save the Brinkerhoff House from demolition. The Bank offered to donate the structure to any organization which would sponsor its relocation for preservation and to contribute to the relocation enterprise the cost and expense of demolition. No individual or group of individuals accepted the Bank’s offer. On March 7,1975, more than a year after the Bank contracted to purchase the Brinkerhoff House property, a certain geographical area known as the Dundee Township Historical District was entered in the National Register of Historical Places (National Register) pursuant to the provisions of the NHPA. The Brinkerhoff House, as well as every other building within the Village, is located within this historic district. The House is not separately listed in the National Register and is not a national historic landmark, but it was separately listed in the National Register Nomination Form submitted with respect to the Dundee Township Historic District. The Bank was not a party to these proceedings. The plaintiffs-appellees (Edwards Group) instituted the cause in the District Court seeking to restrain the Bank’s demolition of the Brinkerhoff House alleging in substance that: The Brinkerhoff House is a pioneer residence in the Village of significant cultural and historically valued architecture, and is presently located within an area that has been entered in the National Register of Historic Places created by the NHPA. Further, the Bank has applied to the FDIC for permission to relocate its business premises in East Dundee to the full block space of property, a part of which is now occupied by the Brinkerhoff House, and intends to demolish the Brinkerhoff House if the change of banking facility location is approved. The Edwards Group then asserts the legal conclusion that NHPA and NEPA require the FDIC to make an environmental impact report and to obtain an opinion from the Advisory Council on Historic Preservation prior to approving the aforesaid request for change of location. The Edwards Group originally joined the Village as a party defendant and sought to restrain the Village from issuing a demolition permit to the Bank for the demolition of the Brinkerhoff House in clearance of the land for rebuilding. The District Court correctly dismissed the action against the Village. Bradford Township v. Illinois State Toll Highway Authority, 463 F.2d 537, 539 (7th Cir. 1972), cert. denied, 409 U.S. 1047, 93 S.Ct. 518, 34 L.Ed.2d 499 (1972); Biderman v. Morton, 497 F.2d 1141, 1146-47 (2d Cir. 1974); O’Brien v. Brinegar, 379 F.Supp. 289, 290 (D.Minn.1974); and Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). The Village has since duly issued to the Bank a permit for the demolition of the Brinkerhoff House. The District Court concluded that it had subject matter jurisdiction and the Edwards Group had standing, and denied the Bank’s motion to dismiss. Upon the joining of issues, the District Court on June 2, 1975 entered its order dated May 30, 1975, granting the preliminary injunction from which the Bank appeals. The Bank asserts four issues for review; however, we deem the decisive issue to be: Did the FDICA in conjunction with NEPA or NHPA confer jurisdiction on the District Court to enjoin the demolition of a privately owned structure? In order to appropriately reach that issue, we at the outset assume arguendo that the Edwards Group held the prerequisite legal standing as private individuals and association of individuals to assert their claim. Edwards Group’s Contentions: The Edwards Group contends that the FDICA § 1816, 12 C.F.R. §§ 303.3 and 304(g), requires the Bank to obtain permission from the FDIC to establish or move its main office or branch. Further, that among the considerations the FDIC must consider in acting upon the application of the Bank to move its office are the inconvenience and needs of the community to be served by the Bank. The Edwards Group correctly contends that the District Court has jurisdiction over the Comptroller of Currency (Comptroller) in the management of the provisions of FDICA, and the regulations thereunder. We believe they erroneously conclude that the District Court had jurisdiction to enjoin non-federal entities from directly frustrating or preempting the federal agencies’ responsibilities to prevent violation of the environmental and historical protections provided for under NEPA and NHPA, and the regulations thereunder. To support that contention, they rely upon the rationales and rulings in Billings v. Camp, 4 E.R.C. 1744 (D.D.C. Oct. 4, 1972) (not officially reported); Thompson v. Fugate, 347 F. Supp. 120 (E.D.Va.1972); and Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970). Their reliance upon those authorities is misplaced and we reject the contention. Discussion: Section 102 of the NEPA (42 U.S.C. § 4332) states in relevant part: . . all agencies of the Federal Government shall— U “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action.” Section 101 of the NHPA (16 U.S.C. § 470a) authorizes the Secretary of the Interior to maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, or culture. Section 106 of the NHPA (16 U.S.C. § 470f) requires any federal agency, assertedly in this case the Comptroller, under FDICA having (a) direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking, or (b) authority to license any undertaking, to take into account the effect of the undertaking on any district, site, building or structure included in the aforesaid National Register prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license. This court has noted in Bradford Township, supra at 540: “The declarations of a national environmental policy and a statement of. purpose appearing in these acts [NEPA and NHPA] are not sufficient to establish substantive rights.” Hence, the jurisdictional question before us is not whether the policies enunciated in the NEPA or NHPA might under some circumstances apply to the Brinkerhoff House, but rather whether the substantive provisions of these Acts may be applied to enjoin purely private activities which require no participation by any agency of the federal government. The basic flaw in the Edwards Group’s thesis, that the Bank’s private project of the demolition of its building is subject to the provisions of either NEPA or NHPA, is the total absence of any federal involvement; viz., “major Federal actions” (NEPA), “federally assisted undertaking” or “having authority to license any undertaking” (FDICA, as dictated by NHPA § 470f; (a) and (b), supra at page 9 hereof). To illustrate the fallacy of the Edwards Group’s reliance upon the rationales of Billings and Thompson, we pinpoint the absence in this case of two factors essential to the granting of the relief sought. First, the Bank’s undertaking or project of demolishing the structure in preparation to putting the real property to another use is not federally funded or assisted in any respect. Ely v. Velde, 363 F.Supp. 277, 285 (E.D.Va.1973): “In order for a project to be ‘federally assisted’ within the meaning of NHPA or a ‘major Federal action’ within the meaning of NEPA, it must be wholly or partially funded with federal money. It is this money which imparts a federal character to a project and gives rise to the necessity of meeting the statutory requirements of those two acts. Without such federal funds, the project remains local in nature.” O’Brien, supra at 290. See Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1028 (5th Cir. 1971); Silva v. Romney, 473 F.2d 287, 289-90 (1st Cir. 1973). Second, the Edwards Group has not chosen to join any federal officer as a party defendant. Bradford Township, supra; Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971); Gage v. Commonwealth Edison Co., 356 F.Supp. 80 (N.D.Ill.1972); O’Brien, supra; Biderman, supra; Movement Against Destruction v. Volpe, 361 F.Supp. 1360, 1383 (D.Md.1973), aff’d, 500 F.2d 29 (4th Cir. 1974). See Named Individual Members of San Antonio Conservation Society, supra. Lastly, it is manifest that the Bank’s project of demolishing the privately owned structure for clearance of the property to facilitate the construction of a new building is a private act over which the Comptroller has no authority, either expressed or implied under FDICA, and the regulations thereunder, either to grant or withhold the granting of a federal license to demolish a privately owned building. Any other reading of the express language of the Comptroller’s authority would constitute a legerdemain in which we will not engage. Whether or not the Comptroller will ultimately, within his discretionary consideration of the factors enumerated in § 1816,12 C.F.R. §§ 303.3 and 304(g), grant or withhold the granting of the Bank’s application to transfer its banking business location to any new structure which may ultimately be constructed upon the subject property is beside the point. In Billings, the plaintiffs sought to enjoin the Comptroller of Currency and Deputy Comptroller of Currency from granting an application to open a branch bank in an historic and architecturally significant locale until those defendants had complied with the provisions of NEPA. That action was directed against the Comptroller, and not the private bank seeking the authority, and involved a banking act (opening a branch office in a historical area) over which the Comptroller had jurisdiction under the Act. The situation in Billings is not presently before this court. In Thompson, the plaintiffs sought to enjoin the planning and construction of an urban highway through an historic area. The principal defendant was the Secretary of Transportation, a federal officer, with federal responsibilities for the administration of various federally funded or assisted highways. Thompson is manifestly inapplicable to the private enterprise involved in this case. The Edwards Group has cited other authorities in their brief which we have read and find of no bearing on the issues in this case. We conclude that the District Court: (1) Did not have subject matter jurisdiction of the Edwards Group’s claim against the Bank under the provisions of either NEPA or NHPA because of the total absence of federal funding or assistance; and (2) Did not have similar subject matter jurisdiction under FDICA, through the dictates of NHPA, (b) supra, and the regulations thereunder, because the Comptroller has no licensing authority under FDICA of the Bank’s management of its non-banking business properties, particularly the demolition of the Brinkerhoff House structure in order for the Bank to put its privately owned property to another use. The District Court’s order dated May 30, 1975, and entered on June 2, 1975, preliminarily restraining the Bank from engaging in its private act of demolishing the Brinkerhoff House structure until compliance with NHPA and NEPA was obtained, is reversed and the cause is remanded to the District Court for dismissal of the cause. Cost on appeal shall not be granted to any party. REVERSED AND REMANDED. . We entertain grave doubt that the Edwards Group has proper legal standing to assert their claim, however, we decline in this case to decide that issue. See O’Brien, supra at 290; and South Hill Neighborhood Association v. Romney, 421 F.2d 454, at 460-61 (6th Cir. 1969), cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970). . While the decided cases under the NHPA are relatively few in number, it is clear that the scope of the NHPA is no broader than that of the NEPA. See Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971).

Honolulutraffic.Com v. Federal Transit Administration

OPINION SCHROEDER, Circuit Judge: I. INTRODUCTION This litigation represents a challenge to the construction of a 20-mile, high-speed rail system (the “Project”) from the western portion of Oahu through the downtown area of Honolulu, Hawaii. Honolulu has been unsuccessfully struggling to cope with traffic congestion since the midl960s. That was when Congress passed the Urban Mass Transportation Act of 1964, later amended in the Federal-Aid Highway Act of 1978, which mandated the creation of Metropolitan Planning boards to develop long-range plans for efficient public transportation. See 49 U.S.C. §§ 5303 and 5304. Honolulu is now reportedly the second-most congested metropolitan area in the nation. Courtney Subramanian, Top 10 U.S. Cities with the Worst Traffic, Time (May 7, 2013), news-feed.time.eom/2013/05/07/top-10-u-s-eities-with-the-worst-traffic/. In earlier decades, Honolulu developed plans for a rail system and later for a bus system that never came to fruition. Its efforts are documented in the Environmental Impact Statement (“EIS”) that was prepared for the project we deal with in this case. A survey in 2004 showed broad public support for the concept of a rail system, and in 2005 the Legislature provided the funding mechanism for such a system. The construction of an elevated, high-capacity rail system from the University of Hawaii campus at Manoa, through downtown Honolulu, to an agricultural area known as Kapolei is now underway. Plaintiffs are a consortium of interest groups and individuals opposing the Project. They filed the action in 2011 against the Federal Transit Administration (“FTA”), the U.S. Department of Transportation (“DOT”), the City and County of Honolulu, and various federal and local administrators. Plaintiffs raise challenges under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 to 470x-6, and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The litigation reflects the controversies that continue over the method and route of mass transit on Oahu. The district court granted summary judgment to Defendants on the NEPA claims, the NHPA claims, and all but three of the Section 4(f) claims, thereby permitting construction to continue on the first three phases. Plaintiffs appeal. In addition, the court enjoined construction of the fourth phase of the Project pending a remand to the agency on the remaining Section 4(f) claims. There is no appeal with respect to Phase 4. We first deal with Defendants’ objection to appellate jurisdiction, and we then affirm on the merits. II. BACKGROUND Federal law requires long-range planning for a federally funded transportation system in order to identify local purposes and stating federal objectives. On December 7, 2005, the FTA published its Notice of Intent (“2005 NOI”) to prepare an EIS and Alternatives Analysis (“AA”) for transit service in Oahu’s corridor linking Kapolei with Waikiki and the University of Hawaii campus at Manoa. An AA is required for federal funding under the Department of Transportation’s New Starts Program. See 49 U.S.C. § 5309. The AA process proceeded in three steps. First, on October 24, 2006, the City prepared an “Alternatives Screening Memo” identifying the Project’s purpose and need as providing improved mobility in the highly congested east-west transportation corridor; providing faster, more reliable public transportation services in the corridor than those currently operating in mixed-flow traffic; providing an alternative to private automobile travel; improving mobility for travelers; improving transportation system reliability; and improving transportation equity for all travelers. It identified several alternatives to consider for meeting the City’s objectives, including No Build, a Fixed Guideway alternative (public transportation using a separate right-of-way), Transportation Systems Management (improvements to the existing transportation system, including optimizing bus service), and a Managed Lanes Alternative (“MLA”) (a new roadway for buses and other high-occupancy vehicles), and several others. Second, the City prepared an Alternatives Analysis Report for the Honolulu City Council. That report evaluated the alternatives that had survived the City’s screening process, concluding that the Transportation Systems Management alternative would not offer community or environmental benefits. It also identified several concerns with the MLA, including the possibility of congestion on local roadways near entrances and exits to managed lanes, project costs and eligibility for federal funding, and integration of managed lanes with transit service. The Report concluded that the Fixed Guideway alternative was the most effective alternative in accommodating longer corridor transit trips and increased work commutes, reducing travel time, and consuming the least energy. Third, the City Council formed a “Transit Advisory Task Force” to “review the AA and [ ] make findings and recommendations to assist the Council in the selection of a Locally Preferred Alternative.” 49 U.S.C. § 5309(d)(2)(A)(i) (requiring selection of a locally preferred alternative pursuant to NEPA). The City Council passed an ordinance in January 2007 selecting an elevated Fixed Guideway system as its preferred alternative, stating that “a fixed guideway system is the best selection for the long-term needs and demands of our growing island population.” On March 15, 2007, the FTA published a Notice of Intent to prepare an EIS (“2007 NOI”). The NOI requested public comment on five possible transit technologies: light rail, rapid rail (steel-wheel-on-steel-rail), rubber-tire guided, magnetic levitation, and monorail. Experts appointed by the City Council reviewed responses to that request, as well as twelve responses from transit vehicle manufacturers, and selected steel-wheel-on-steel-rail as the technology for the Project. Honolulu voters subsequently approved a City Charter Amendment establishing such a system. The City and the FTA then prepared a draft EIS and a final EIS (“FEIS”). The FEIS evaluated a No Build option and three development alternatives, including a Fixed Guideway option from Ala Moana Center to Kapolei via the airport, that was ultimately selected as the preferred alternative. The FEIS stated that other alternatives had been eliminated because Fixed Guideway best met the Project’s purpose and need and because the City Council had selected it as the locally preferred alternative pursuant to 49 U.S.C. § 5309(d)(2)(A)(i). The Project’s proposed route would bring it close to several historic sites. The Project thus implicated Section 4(f) of the Department of Transportation Act, which requires that the use of land of a historic site may be approved only if “(1) there is no prudent and feasible alternative to using the land;” and (2) the project includes “all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c). “Use” is construed broadly, applying not only to areas physically taken, but also to those “significantly, adversely affected by the project.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). The draft EIS for the Project had been subject to a public review period that engendered many comments concerning both the chosen system and the impact on historic sites. The FEIS analyzed more than 40 historic sites as potentially affected. Because the MLA would have had a lesser impact on historic sites than the alternative chosen for the Project, numerous com-menters objected to the FEIS’s rejection of the MLA. The FEIS’s final “Section 4(f) Evaluation,” relating to historic sites, concluded that most of the sites would not be used or would be subject only to de minimis use. Specifically, the FEIS concluded that the Project would use the Chinatown Historic District and the historic Dillingham Transportation Building, because stations would be constructed on those properties, but would not use Mother Waldron Park because the proximity of the Project route to that site would not directly affect its design or public use. On January 18, 2011, the FTA issued a Record of Decision (“ROD”) approving the Project. The ROD included a finding that there is no feasible and prudent alternative to the Project’s use of the Chinatown Historic District and the Dillingham Transportation Building. The ROD also found that the MLA failed to meet the Project’s “Purpose and Need” because it would not support forecasted population and employment growth and would provide little transit benefit at a high cost. Plaintiffs filed this action on May 12, 2011, seeking to enjoin construction on the ground that the FEIS and the ROD approving the Project did not comply with the requirements of NEPA, Section 4(f), and the regulations implementing those statutes. After the parties filed cross-motions for summary judgment, the district court in November 2012 issued an order dismissing all of the NEPA and NHPA claims. As to the Section 4(f) claims, the district court granted summary judgment for Plaintiffs on three, ruling injunctive relief was appropriate. The Project includes four phases, defined geographically. The three Section 4(f) claims on which Plaintiffs prevailed affect only Phase 4. The court held that Defendants had failed to complete reasonable efforts to identify above-ground Traditional Cultural Properties (“TCPs”) prior to issuing the ROD. The court also held that Defendants had failed adequately to consider the Beretania Street Tunnel alternative prior to eliminating it as imprudent, and that Defendants had failed adequately to consider whether the Project will constructively use Mother Waldron Park. After holding a hearing on the appropriate remedy for the Section 4(f) claims, the district court issued its judgment, which it described as its “final Judgment, which shall include partial injunctive relief,” on December 27, 2012. The judgment incorporated the prior orders granting summary judgment to Defendants on all the NEPA and NHPA and most of the Section 4(f) claims, and to Plaintiffs on three of the Section 4(f) claims. The court enjoined construction of Phase 4 pending remand of the three Section 4(f) claims to the FTA. The court instructed the agency to “complete their identification of above ground TCPs within the corridor, reconsider their no-use determination for Mother Waldron Park ...” and “fully consider the prudence and feasibility of the Beretania tunnel alternative. ...” Since the district court granted summary judgment to Plaintiffs on three of the claims affecting Phase 4, and granted Plaintiffs’ request to enjoin construction of that phase pending further agency proceedings, Plaintiffs do not appeal the injunction. There is no cross-appeal. Phase 4 is thus not involved here. Plaintiffs timely appeal the dismissal of the remainder of their claims. Plaintiffs contend that the district court should not have dismissed the NEPA claims, or Plaintiffs’ other Section 4(f) claims. Defendants have filed a motion to dismiss for lack of appellate jurisdiction, arguing that the judgment was not an ap-pealable final order. We consider the jurisdictional issue first. III. DISCUSSION A. Jurisdiction Defendants challenge our appellate jurisdiction, contending that the judgment is not appealable as a final judgment under 28 U.S.C. § 1291 (authorizing appeals as of right from district court judgments). Defendants argue that the statute does not apply because the judgment not only granted summary judgment for the government on the bulk of the claims that Plaintiffs now appeal, but also granted summary judgment for Plaintiffs on three Section 4(f) claims and enjoined Phase 4 of construction pending reconsideration of the claims by the agency on remand. A remand does not finally dispose of a claim, but ordinarily does confer appellate jurisdiction for purposes of a government appeal. See Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184-86 (9th Cir.2004). Here, Defendants could have appealed the remand order but did not. Plaintiffs are not even aggrieved by it. Since no party wants us to review the remand of the Section 4(f) claims, the remand should not defeat our jurisdiction to review the unquestionably final dismissal of the remainder of the claims. -We have said that the final judgment rule “deals in practice, not theory.” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir.2011). As a practical matter, the work of the district court as to the dismissed claims is complete, and review of those claims is appropriate under § 1291. Moreover, even if the judgment were not appealable as a matter of finality, it would be renewable under § 1292(a)(1) as an appeal from the grant or refusal of injunctive relief. Indeed, this litigation has always been about injunctive relief, i.e., stopping construction of the rail system. This is apparent when we look back on the nature of the underlying dispute and the district court’s resolution of it. When Plaintiffs initiated litigation in 2011, their complaint in its title said it sought “injunctive and declaratory relief.” In the body of the complaint, Plaintiffs requested injunctive relief requiring Defendants to halt progress on the Project, withdraw the ROD, and withhold re-approval until the requirements of NEPA and Section 4(f) had been met and all reasonable alternatives had been considered. The district court’s entry of summary judgment in favor of Defendants on the NEPA claims thus denied Plaintiffs’ request for injunc-tive relief on all of the dismissed claims. Defendants’ jurisdictional argument concerns the lack of technical finality of the order under § 1291. The argument does not mention § 1292(a)(1), which Plaintiffs correctly point out is an alternative basis for appellate jurisdiction in this case. Work on the rail system is going forward and the issues need to be resolved. Since all of Plaintiffs’ claims were for injunctive relief, we have appellate jurisdiction under § 1292(a)(1). We hold that we have jurisdiction under either § 1292(a)(1) or § 1291 (or both). We therefore turn to the merits of Plaintiffs’ claims. B. NEPA Claims Plaintiffs’ challenges under NEPA are directed principally to the choice of the steel-wheel-on-steel-rail Fixed Guideway system. Plaintiffs contend that the district court erred in granting summary judgment on their NEPA claims because Defendants (1) unreasonably restricted the Project’s purpose and need, and (2) did not consider all reasonable alternatives as required under that Act and its regulations. An EIS must state the underlying purpose and need for the proposed action. See 40 C.F.R. § 1502.13. Courts evaluate an agency’s statement of purpose under a reasonableness standard, id., and in assessing reasonableness, must consider the statutory context of the federal action at issue, see League of Wilderness Defenders v. U.S. Forest Serv., 689 F.3d 1060, 1070 (9th Cir.2012). Agencies enjoy “considerable discretion” in defining the purpose and need of a project, but they may not define the project’s objectives in terms so “unreasonably narrow,” that only one alternative would accomplish the goals of the project. Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir.2010). The EIS would then become merely a foreordained formality. Id. Plaintiffs claim the EIS objectives were too narrow. The FEIS describes the Project’s purpose as follows: (1) “to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and University of Hawaii Manoa;” (2) “to provide faster, more reliable public transportation service in the study corridor than can be achieved with buses operating in congested mixed-flow traffic;” (3) “to provide reliable mobility in areas of the study corridor where people of limited income and an aging population live;” (4) “to serve rapidly developing areas of the study corridor;” and (5) to “provide additional transit capacity [and] an alternative to private automobile travel, and [to] improve transit links within the study corridor.” It describes the need for transit improvements as follows: (1) “Improve corridor mobility;” (2) “Improve corridor travel reliability;” (3) “Improve access to planned development to support City policy to develop a second urban center;” and (4) “Improve transportation equity.” The purpose was defined in accordance with the statutorily mandated formulation of the transportation plan that preceded the FEIS. That plan was the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”). The stated objectives comply with the intent of the relevant federal statutes. Specifically, the Safe Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”) provides that a federally-funded transportation plan’s purposes may include “achieving a transportation objective identified in an applicable ... metropolitan transportation plan.” See 23 U.S.C. § 139(f)(3). The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified a Fixed Guideway system as a central component of that plan. Moreover, the statute authorizing the federal New Starts transportation program states that it is in the interest of the United States to foster transportation systems that maximize safe, secure, and efficient mobility of individuals, minimize environmental impacts, and minimize fuel consumption, 49 U.S.C. § 5301(a), and that one of the purposes of the program is to provide financial assistance to state and local governments in order to improve mobility for elderly and economically disadvantaged individuals, 49 U.S.C. § 5301(f)(4). The Project’s stated objectives are consistent with all these purposes. Viewed in its statutory context, the Project’s objectives are not so narrowly defined that only one alternative would accomplish them. The statement of purpose and need is broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project. The district court therefore properly concluded that it is reasonable, stating: “Because the statement of purpose and need did not foreclose all alternatives, and because it was shaped by federal legislative purposes, it was reasonable.” NEPA also requires an EIS to discuss, among other things, alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). The range of alternatives that an EIS must consider is “dictated by the nature and scope of the proposed action.” Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1038 (9th Cir.2008). “Judicial review of the range of alternatives considered by an agency is governed by a ‘rule of reason’ that requires an agency to set forth only those alternatives necessary to permit a ‘reasoned choice.’ ” State of Cal. v. Block, 690 F.2d 753, 767 (9th Cir.1982). “An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives.” Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir.1996). Plaintiffs contend that the EIS did not properly consider all reasonable alternatives and should have considered alternatives the state had earlier rejected. In this case, the EIS did not expressly consider alternatives that had earlier been ruled out in the screening process conducted by the state. Plaintiffs therefore argue that the City and the FTA improperly relied on the AA process to exclude certain alternatives such as the MLA and light rail from detailed consideration. We have held, however, that an agency does not violate NEPA by refusing to discuss alternatives already rejected in prior state studies. Laguna Greenbelt, Inc. v. Dep’t of Transp., 42 F.3d 517, 524, n. 6 (9th Cir.1994). Under applicable federal regulations, a state-prepared AA may be used as part of the NEPA process as long as it meets certain requirements, including that (1) the federal lead agency furnished guidance in the AA’s preparation and independently evaluated the document, 23 U.S.C. § 139(c)(3), and (2) the AA was conducted with public review and a reasonable opportunity to comment, 23 C.F.R. § 450.318(b)(2)(ii)-(iii). The City prepared the AA with the benefit of public comment and federal guidance. The district court cited evidence in the record that the FTA furnished guidance during the AA’s preparation and independently evaluated it, including letters between the City and the FTA about funding for alternatives considered in the AA, the ROD’S approval of the AA, internal FTA discussions about AA logistics, and the FTA’s indication that it would review the AA prior to publication. The district court also pointed to the many opportunities for public comment that generated over 3,000 comments from the public on the AA before the City selected the locally preferred alternative. The district court properly concluded that Defendants did not err in relying on the AA prepared by the state to help identify reasonable alternatives as part of the NEPA process. Plaintiffs’ real quarrel with the process is that it failed to consider Plaintiffs’ proposed three-lane MLA alternative. The MLA alternative proposed construction of lanes dedicated for use by buses, high-occupancy vehicles, and toll-paying single-occupant vehicles, managed to maintain free-flowing speeds between Waiawa Interchange and Iwilei. Variations of the alternative included a two-lane plan versus a three-lane plan, and reversible lanes to allow higher capacity during peak hours. The Defendants did consider a two-lane alternative that the FEIS specifically addressed and rejected for cost reasons. The three-lane MLA plan would have been even more costly. The district court determined that the estimates in the AA analysis were reasonable, and the Director of the City and County of Honolulu’s Department of Transportation Services specifically stated that the three-lane alternative would increase costs. Plaintiffs contend on appeal, as they did before the district court, that Defendants should have used a Tampa, Florida project for purposes of cost comparison, and should not have assumed that the MLA would be ineligible for federal funding. However, the City Council’s Transit Advisory Task Force had concluded that the AA’s cost estimates were “fairly and consistently prepared, and that they may be used for both planning and cost comparisons,” and that the Tampa project was not a good cost comparator because of the many differences between the two projects. The district court correctly ruled this was not unreasonable. Plaintiffs finally maintain that Defendants arbitrarily and capriciously excluded the light-rail alternative from the EIS. Here too, Defendants properly relied'on the AA process to eliminate alternatives, including corridor-wide light rail and light rail in the downtown portions of the corridor. The FEIS explained that those alternatives lacked feasability and desired capacity: Corridor-wide at-grade light-rail transit was rejected because it would have required conversion of traffic lanes to rail throughout the corridor, thereby substantially reducing roadway capacity since no abandoned or undeveloped alignments are available in the study corridor. At-grade light-rail would have required either the acquisition and removal of buildings throughout the corridor or the conversion of two or more traffic lanes. The EIS’s identification of the project objectives and analysis of alternatives satisfied NEPA’s requirements. C. The Dismissed Section 4(f) Claims The Department of Transportation Act is intended to preserve historic sites as far as practicable. Section 4(f) allows a federal project “requiring the use of land of an historic site” to be approved only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c). An alternative is not prudent if, among other things, it “compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need.” 23 C.F.R. § 774.17. Plaintiffs contend that the FTA’s approval of the Project violated Section 4(f) by (1) failing to adopt the. MLA or bus rapid transit alternative in order to avoid the use of historic sites; and (2) failing fully to identify and evaluate Native Hawaiian burial sites before approving the Project. Defendants concluded that the MLA and bus rapid transit alternatives were not prudent because they did not meet the Project’s stated purpose and need. The record supports the reasonableness of that conclusion. The MLA failed to meet the purposes of the Project because, according to the City and FTA’s expert analysis, it would actually increase transit times, would not improve corridor mobility or travel reliability, and would not reduce congestion, support planned concentrations of future population and employment growth, or substantially improve service or access to transit for transit-dependent communities. Buses would still have to operate in mixed traffic, and would not alleviate roadway congestion. Moreover, there was no identified funding source for bus rapid transit. Plaintiffs point to a study showing that the MLA would reduce drive times even for people who never used the lanes. They contend that Defendants acted arbitrarily and capriciously by ignoring that evidence. That evidence, however, was contrary to the studies by the government. The FTA is entitled to rely on the opinions of its own experts, and thus its decision was not arbitrary or capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The FTA was not required to further document its determination that the MLA and bus rapid transit alternatives were imprudent. It did not have to make explicit findings as to all the data presented. Section 4(f) itself does not require any formal findings, and the implementing regulations require only “sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative.” See 23 C.F.R. § 774.7; see also Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir.1982) (disregarding possible technical deficiencies in a Section 4(f) evaluation because “[wjhether or not the reports and studies use the ‘magic’ terminology, there has been a reasonable and thorough review”); Hickory Neighborhood Def. League v. Skinner, 910 F.2d 159, 163 (4th Cir.1990) (holding that the rejection of an alternative as imprudent was amply supported by the record, even though it was not expressly stated). The FTA was entitled to rely on the findings and studies that preceded the decision to construct the Project. Plaintiffs also contend that Defendants should have completed their Section 4(f) identification and evaluation of Native Hawaiian burial sites before approving the Project. Federal regulations require that Section 4(f) property be identified and evaluated for potential use “as early as practicable in the development of the action when alternatives to the proposed action are under study.” 23 C.F.R. § 774.9(a). Sites are identified as eligible so long as they are included in, or eligible for inclusion in the National Register of Historic Places. See 23 C.F.R. §§ 774.11(f), 774.17. The process for identifying historic sites for the National Register is outlined in Section 106 of the National Historic Preservation Act. 16 U.S.C. § 470f (“Section 106”). Section 106 requires the agency official to “make a reasonable and good faith effort to carry out appropriate identification efforts.” 36 C.F.R. § 800.4(b)(1). Plaintiffs argue that Defendants’ failure to completely identify all Section 4(f) sites prior to approval of the Project constituted an improper “phased” approach to the required identification and evaluation. See N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147 (9th Cir.2008) (finding a violation of Section 4(f) where an agency approved a project when analysis had only been conducted for one of the project’s four phases and the remaining phases would be analyzed only after the project had begun). In this case, Defendants did not conduct Archaeological Inventory Surveys (“AIS”) to identify undiscovered burial sites along the entire twenty-mile length of the Project prior to its approval, even though it is likely that construction may disturb some of such sites. Yet there was a good reason for Defendants’ reluctance to conduct the surveys. The exact route and placement of the support columns had not yet been determined, and the surveys themselves were likely to disturb burial sites. Any changes to the plans would then result in repetition of the surveys and more disturbance to burial sites than would otherwise be necessary. Instead, Defendants commissioned an Archeological Resources Technical Report, which used soil survey data, archeological records, land survey maps, and field observations to identify unknown burial sites and predict the likelihood of finding additional burial sites during different phases of the Project. Additionally, Defendants entered into a programmatic agreement with the State Historic Preservation Officer, the Advisory Council on Historic Preservation, and other federal entities outlining the procedures for burial sites that are discovered during construction, including requiring archaeological inventory surveys prior to the final engineering and design phase of the Project and providing specific protocols for addressing burials or other archaeological resources that are discovered. See 73 Fed.Reg. 13368-01, 13379-80 (2008) (recommending such an agreement as “appropriate and desirable”). Burial sites are eligible for Section 4(f) protection only insofar as they are identified under the Section 106 process for identifying historic sites. Defendants need only “make a reasonable and good faith effort” to identify those sites as required by Section 106. 36 C.F.R. § 800.4(b)(1); See also N. Idaho Cmty. Action Network, 545 F.3d at 1159 (noting that a Section 4(f) evaluation necessarily requires the agency to follow the Section 106 identification process); City of Alexandria v. Slater, 198 F.3d 862, 871 (D.C.Cir.1999) (noting that a Section 4(f) evaluation is predicated on completion of a Section 106 identification process). Defendants have made a good faith and reasonable effort to identify known archaeological sites along the proposed Project route and have developed an appropriate plan for dealing with sites that may be discovered during construction. Defendants have not violated Section 4(f). CONCLUSION The judgment of the district court dismissing Plaintiffs’ NEPA and Section 4(f) claims is AFFIRMED. . The order provided in full as follows: After briefing, hearing, and disposition of this case on the merits, see Honolulutraffic.com v. Fed. Transit Admin., 2012 WL 1805484 (D.Hawai’i 2012) (partial grant of summary judgment); Order on Cross-Motions for Summary Judgment, filed Nov. 1, 2012 ("Summary Judgment Order”), the parties and the court addressed the appropriate remedy. The parties submitted additional briefing on the scope of any remedies, including any equitable relief. The remedy phase was fully argued and heard on December 12, 2012. After due consideration of those arguments, briefs, and the record, the court now enters its final Judgment, which shall include partial injunctive relief, as set forth below. As reflected in its prior orders, the court granted summary judgment to Plaintiffs on three of their § 4(f) claims — claims arising under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The court granted summary judgment to Defendants on all other claims raised by Plaintiffs, which include Plaintiffs' remaining § 4(f) claims, all claim[s] arising under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and all claims arising under § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. In entering its partial permanent injunction, the court has considered the well-recognized equitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2756, 177 L.Ed.2d 461 (2010), and finds that, to the extent Defendants!)] actions are enjoined, the four-factor test, on balance favors Plaintiffs, including: (1) irreparable injury[;] (2) the inadequacy of monetary relief; (3) the balance of hardships; and (4) the public interest. IT IS, THEREFORE, ADJUDGED that this matter is remanded to the Federal Transit Administration, but without vacatur of the Record of Decision, to comply with the court’s Summary Judgment Order. DEFENDANTS, their officers, agents, servants, employees, and attorneys; and all other persons who are in active concert or participation with them, are hereby restrained and enjoined from conducting any construction activities and real estate acquisition activities in Phase 4 of the Honolulu High-Capacity Transit Corridor Project (the "Rail Project”). This injunction on Phase 4 construction activities shall terminate 30 days after Defendant Federal Transit Administration files with the court notice of Defendants’ compliance with the Summary Judgment Order and evidence of such compliance, unless Plaintiffs file an objection within said 30-day period specifying how the Federal Transit Administration has failed to comply with the Summary Judgment Order. If such objection is timely filed, this injunction shall remain in effect pending the court's resolution of Plaintiffs’ objection(s). This injunction shall not prohibit, and Defendants may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other preconstruction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order. This injunction shall not apply to Phases 1 through 3 of the Rail Project. Within 150-180 days of the issuance of this Judgment, and every 90 days thereafter, Defendants shall file a status report setting forth the status of Defendants' compliance efforts with the terms of the Summary Judgment Order. Either by stipulation of all parties or upon noticed motion, Defendants may apply to except any activity otherwise prohibited by this injunction from its terms. In the exercise of its discretion, the court determined that each party shall bear its own costs.

Safeguarding Historic Hanscom Area's Irreplaceable Resources, Inc. v. Federal Aviation Administration

SELYA, Circuit Judge. The area around the venerable towns of Lexington and Concord is commonly regarded as the birthplace of the American Revolution. The communities in that area, now fashionable Boston suburbs, are deservedly proud of both their storied history and their aesthetic advantages. When an affiliated arm of the state government — the Massachusetts Port Authority (Massport) — sought to modernize a mixed-use airport in the vicinity, a phalanx of preservationist organizations and concerned citizens treated the move as a call to arms. Massport nevertheless pushed ahead with its desired project and asked the Federal Aviation Administration (FAA) to authorize the demolition of an existing hangar and allow the development of a state-of-the-art fixed base operator (FBO) facility. The upshot was an epic battle fought with statutes, regulations, legal precedents, and expert reports. The results of this battle are now before us by way of a petition for judicial review of the FAA’s order permitting the project to proceed. The protagonists are ably represented, and the petitioners have raised a gallimaufry of issues involving the Department of Transportation Act, 49 U.S.C. § 303(e), the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. After careful consideration of the parties’ briefs and oral arguments, helpful submissions by amici, and an amplitudinous administrative record, we conclude that the painstaking process conducted by the FAA comported with its responsibilities under the dizzying array of applicable statutes and regulations. Accordingly, we deny the petition. I. BACKGROUND Laurence G. Hanscom Field (Hanscom) is a general aviation airport located in Bedford, Massachusetts. The area teems with a rich cornucopia of historically significant sites, including Minute Man National Historical Park and Walden Pond (a designated national historic landmark). During the middle of the twentieth century, the Army Air Corps leased and operated Hanscom. Later, the facility morphed into a joint military and civilian operation. Among other things, Hanscom now serves as a relief valve for Logan International Airport (the major airport in the Boston area), allowing Logan to concentrate on large-scale commercial flights. Massport is an independent state authority established under Massachusetts law, see 1956 Mass. Acts ch. 465, §§ 1-35, which has operated Hanscom’s civilian component since 1974. Massport has intervened in these proceedings and staunchly defends the FAA’s decision to allow the requested demolition and subsequent new construction. The focal point of the parties’ dispute is Hangar 24, which was originally built in Georgia, shipped to Massachusetts, and reconstructed at Hanscom in 1948. For several decades, Massachusetts Institute of Technology (MIT) leased the structure and used it as a research facility. In 2001, MIT deemed it unsuitable for that purpose. The hangar has been vacant ever since. Responding to a perceived demand for increased corporate aircraft services at Hanscom, Massport issued a request for proposals to redevelop the Hangar 24 site. In 2005, it blessed a proposal that contemplated replacing Hangar 24 with an FBO facility that would “provide service, maintenance, fueling, and shelter for general aviation aircraft.” Although the putative developer later withdrew, Massport clung to the concept and proceeded with preparations for the redevelopment of the Hangar 24 site as an FBO facility — a facility compatible with the needs of modern-day corporate aircraft. Massport’s proposed course of action not only required it to jump through a long line of statutory and regulatory hoops but also drew considerable opposition from concerned citizens and groups. The ensuing battle was waged on a variety of fronts. In July of 2006, a nonprofit organization, Save Our Heritage, Inc. (a petitioner here), requested that the Massachusetts Historical Commission (the Commission), see Mass. Gen. Laws ch. 9, §§ 26-27, evaluate Hangar 24 for possible inclusion on the National Register of Historic Places (the National Register). After mulling the matter, the Commission determined that Hangar 24 was eligible for listing only under Criterion A (association with significant historical events) and Criterion B (association with the lives of historically significant persons). See 36 C.F.R. § 60.4(a), (b). In light of this determination, the Commission asked Mass-port to study the hangar’s condition and to consider alternative uses, including possible rehabilitation for occupancy by the Massachusetts Air and Space Museum. This suggestion proved to be a dead end; after conducting a site inspection, the museum reported that Hangar 24 fell “far short of what would be necessary to make the museum a viable entity.” Around the same time, Massport hired an aviation consultant, HNTB Corporation, to prepare a condition assessment and feasibility study for Hangar 24. HNTB documented and described the hangar’s condition, and found it “functionally obsolete” and unsuitable for aviation use. Its report listed several alternatives for redeveloping the site. Federal law requires that, in order to remain eligible for funding, an airport must maintain a current layout plan approved by the FAA. 49 U.S.C. § 47107(a)(16)(B). In evaluating a layout plan, “[t]he FAA’s primary mission is to ensure the safety, security, and efficiency of the National Airspace System.” Exec. Order No. 13,180, 65 Fed.Reg. 77,493, 77,-493 (Dec. 11, 2000), as amended by Exec. Order No. 13,264, 67 Fed.Reg. 39,243 (June 7, 2002); see also 49 U.S.C. § 47101(a). No facility that adversely affects the safety, utility, or efficiency of the airport can be included in such a plan. 49 U.S.C. § 47107(a)(16)(C). The FAA became involved with the Hangar 24 project to fulfill these responsibilities. It engaged in a consultation process and prepared an environmental assessment (EA) effective as of June 18, 2010. The EA addressed the potential environmental impacts of Massport’s redevelopment proposal, as well as its effects on historic properties. In due course, the FAA approved the demolition and replacement of Hangar 24 as the only feasible and prudent alternative, found that replacing it would have no adverse effect within the meaning of the NHPA (save for the effect on Hangar 24 itself), and found no significant impact under the NEPA. The petitioners filed a timely petition for judicial review, see 49 U.S.C. § 46110, in which they challenge the FAA’s actions as noncompliant with the Transportation Act, the NHPA, and the NEPA. It is to these challenges that we now turn. II. ANALYSIS Our standard of review is familiar. We must uphold the FAA’s findings of fact as long as they are supported by substantial evidence. See id. § 46110(c). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Penobscot Air Sens., Ltd. v. FAA, 164 F.3d 713, 718 (1st Cir.1999) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)); see Allentown Mack Sales & Sen., Inc. v. NLRB, 522 U.S. 359, 377, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (explaining that “substantial evidence” standard “gives the agency the benefit of the doubt”). We review an agency’s compliance with section 4(f) of the Transportation Act in accordance with the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Under the APA, we may set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The same metric governs judicial review of agency action under both the NHPA, see Neigh. Ass’n of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 58 (1st Cir. 2006), and the NEPA, Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Agency action fails under this standard “if the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). A. Transportation Act. As a functional matter, section 4(f) of the Transportation Act, which refers explicitly to the Secretary of Transportation, authorizes federal agencies dealing with transportation matters to approve projects that entail the use of historically significant sites. 49 U.S.C. § 303(c). But this authority is not unbridled. Approval may be granted in a particular case only if two preconditions are met: “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm.” Id. These preconditions apply both when a proposal involves the physical use or occupation of a protected property thought to be historic and when a proposal involves indirect (but meaningful) effects on historic venues. Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 58 (1st Cir.2001). The EA prepared in connection with Massport’s proposal to demolish Hangar 24 explicitly considered four alternative courses of action: 1) “[d]o nothing”; 2) “[l]ocate a new hangar facility elsewhere on the airport”; 3) “[a]daptive reuse of Hangar 24”; and 4) “[rjeplace Hangar 24 as proposed by Massport.” The EA concluded that all of these alternatives were feasible, but that only the fourth was prudent. The petitioners dispute the FAA’s determination of what alternatives are or are not prudent. As a fallback, they question whether the FAA has engaged in sufficiently thorough planning to minimize harm to historic sites. We appraise these challenges sequentially. 1. Prudence. The doctrinal linchpin of the petitioners’ section 4(f) argument is their reading of the Supreme Court’s decision in Overton Park. In their view, Over-ton Park holds that, for the purpose of section 4(f), an alternative cannot be ruled out as imprudent absent a strong showing of aposematic conditions, manifested by “truly unusual factors,” “extraordinary” costs and community disruption, or “unique problems.” 401 U.S. at 413, 91 S.Ct. 814. The FAA’s section 4(f) analysis, the petitioners say, does not measure up to this benchmark. Like alchemists who would turn dross into gold, the petitioners cherry-pick isolated phrases from the Overton Park opinion and attempt to convert those phrases into a broad, inflexible holding. This wordplay will not wash. The Court’s mention of “truly unusual,” “extraordinary,” and “unique” circumstances was intended as a gloss on the application of section 4(f) in a particular type of situation. Those descriptive terms were never meant to displace the statutory directive that the agency determine whether an alternative is “prudent.” See Eagle Found., Inc. v. Dole, 813 F.2d 798, 804-05 (7th Cir.1987); see also Hickory Neigh. Def. League v. Skinner, 910 F.2d 159, 163 (4th Cir.1990) (explaining that a section 4(f) evaluation need not explicitly find “unique problems” when record confirms “compelling reasons for rejecting the proposed alternatives as not prudent”). Context drives .this point home. Over-ton Park involved a proposal to use publicly owned parklands for highway construction. 401 U.S. at 406, 91 S.Ct. 814. The Court reasoned that the cost of using public land will almost always be less than that of acquiring private property for alternate routes and that, in addition, building on public parkland will almost always prove less disruptive to the acquiring community because homes and businesses will not be displaced. Id. at 411-12, 91 S.Ct. 814. These verities “are common to substantially all highway construction.” Id. at 412, 91 S.Ct. 814 (emphasis supplied). If Congress had intended cost and community disruption “to be on an equal footing with preservation of parkland,” the Court declared, section 4(f) would have been unnecessary. Id. The explanation given by the Justices in Overton Park is situation-specific, and comparing this case to Overton Park is like comparing a plum to a pomegranate. The Overton Park language is tailored to fit situations in which, from a practical standpoint, there otherwise would be a perverse incentive in favor of using protected land for federal transportation projects. Cf. City of Dania Beach v. FAA, 628 F.3d 581, 587 (D.C.Cir.2010) (noting that Overton Park analysis was premised on public/private cost and disruption disparities and that it is this “automatic advantage” that calls for “exceptional agency push-back”). Here, however, no such perverse incentive exists. All of the feasible alternatives involve land that is already part of Hans-com (i.e., land that is already government-owned). There is no built-in impediment to preservation. It would, therefore, make no sense to wrest the quoted Overton Park language from its contextual moorings and superimpose it upon the statutory imperative. It is the statute that ultimately controls our inquiry. See Eagle Found., 813 F.2d at 804-05 (examining Overton Park against backdrop of section 4(f)’s language and concluding that an agency’s “reasons for using the protected land have to be good ones, pressing ones, well thought out”). Let us be perfectly clear. Without question, section 4(f) imposes significant obligations upon a reviewing agency. See Save Our Heritage, 269 F.3d at 58. But the petitioners’ attempt to festoon those obligations with magic words, selectively culled from the Overton Park opinion, distorts the statute and overreads the Court’s teachings. As a general matter, the agency’s obligations are what the statute says they are. Thus, our focus must be on the statute and its application to the facts at hand. See Hickory, 910 F.2d at 162-63. This brings us to the substance of the petitioners’ section 4(f) challenge. The starting point is the FAA’s determination that none of the three explored alternafives to the Massport proposal would be prudent. In the pages that follow, we examine the three rejected alternatives one by one. a. Do Nothing. The petitioners complain about the FAA’s analysis of the “do nothing” alternative. The agency rejected this alternative because “it would not meet Massport’s purpose to provide an additional location on the airport to service, maintain, fuel, and shelter general aviation aircraft.” “It is well settled that an alternative is not prudent if it does not meet the transportation needs of a project.” Back Bay, 463 F.3d at 65. The petitioners try to circumnavigate this principle on the ground that Massport never established any “need” for the Hangar 24 project. This evasion is easily thwarted. There are two existing FBO facilities at Hanscom. Perscrutation of the record reveals appreciable support for the proposition that a third FBO facility is needed. For example, Massport’s 2005 draft environmental status and planning report (ESPR), heavily relied on in the EA, supplies data indicating that, even though the total volume of operations at Hanscom decreased between 1990 and 2005, corporate aviation grew at a rate of 4.4 percent per year. Indeed, corporate aviation was “the only segment of general aviation that [was] growing at Hanseom” during that span. The ESPR projected that this pattern of growth would continue through 2010 and beyond. The ESPR described the methodology underlying its projections, and Massport compared the projections for 2005 with actual data for that year. The trend was evident: corporate aviation was experiencing continued growth at Hanseom, “which would increase the demand for [general aviation] hangars and associated facilities.” The ESPR also provided background information linking this trend to the need for a new FBO facility. Among other things, it related that “the majority of FBO activity involves servicing corporate general aviation activity,” creating a link from its corporate aviation growth predictions to the need for a third FBO facility. The FAA built on this information, noting in the EA that “FBO capacity is not monolithic” and that “FBOs most frequently try to differentiate their services from those of their competitors” by, say, specializing in servicing a particular type of aircraft. The FAA’s explanation that the apron and hangar facilities at the two existing FBO sites “have inadequate storage capacity for larger ... aircraft” illustrates the pertinence of this conclusion. In an effort to blunt the force of these data points, the petitioners insist that general aviation operations at Hanseom are in decline. This statistic misses the mark: the proposed FBO facility is not tethered to an anticipated increase in general aviation activity as a whole but, rather, to an anticipated increase in the narrower subset of corporate jet operations. Such an anticipated increase is adequately documented. To say more on this point would be supererogatory. Given the substantial evidence of a need for the Hangar 24 project, we conclude that the FAA’s rejection of the “do nothing” alternative as imprudent was neither arbitrary nor capricious. After all, doing nothing would fail to provide additional FBO services at Hanseom (and, thus, would fail to meet a demonstrated need). b. The East Ramp. In its alternatives analysis, the FAA rejected the possibility of locating a new FBO facility elsewhere at Hanseom. A major drawback of this alternative is that “Hanseom Field is approaching build-out,” leaving only the East Ramp and Hangar 24 as available sites for general aviation improvements. As between these two options, the FAA determined that locating the new FBO facility on the East Ramp “would not be the most efficient use of space” because of the ramp’s distance from the terminal area and the other two FBO facilities. Furthermore, “using the East Ramp for the FBO function ... would preclude this area from being developed for general aviation aircraft hangars that are already located in this area of the airport.” The FAA had other worries. The agency found the East Ramp alternative plagued by access problems, because it could not be reached without passing through a secure military facility. Mass-port was wary of this potential problem and investigated various road reconfiguration layouts that might help to alleviate it. None of those routes provided an obvious solution; each would require an easement of some sort, and many would pass over natural features such as rivers and wetlands, creating potential environmental issues. What is more, the EA expresses a concern that potential developers would be less enthusiastic about constructing an FBO facility in such a remote area of the airport, possibly preventing the completion of the project. Based on this collocation of factors, the FAA concluded that it would be more prudent to build the new FBO facility at Hangar 24 and use the East Ramp for general aviation aircraft hangars. This was a judgment call — and one that fell within the purview of the FAA’s expertise. The FAA’s determination as to whether a given alternative is prudent must be informed by the statutory dictates that “the safe operation of the airport and airway system is the highest aviation priority” and that “airport construction and improvement projects that increase the capacity of facilities to accommodate passenger and cargo traffic be undertaken to the maximum feasible extent so that safety and efficiency increase and delays decrease.” 49 U.S.C. § 47101(a)(1), (7); see City of Bridgeton v. FAA, 212 F.3d 448, 462 (8th Cir.2000) (expressing “doubt whether [section 4(f) ] mandates a rigid least-harm standard in airport expansion cases,” because such an approach would be at odds with the “congressional mandate” prioritizing safety and efficiency in airport operations); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). The petitioners concede that there is no site at Hanscom, other than the East Ramp, that might be a viable alternative to the Hangar 24 site. But they claim that the FAA’s evaluation of the East Ramp alternative fails adequately to quantify the supposed inefficiencies, lacks specifics regarding the terminal distance differential, and includes insufficient documentation of the access problem. In support, they cite Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir.1984), a case purportedly standing for the proposition that such a level of detail is required before a feasible alternative may be discarded as imprudent. The record refutes this claim. The FAA did not rely on taxi distance or access impediments alone to justify its decision but, rather, cited the combined effect of a number of considerations which weighed heavily against the East Ramp as a safe and efficient FBO site. An agency legitimately may invoke an accumulation of factors to rule out an alternative as imprudent. See Comm, to Pres. Boomer Lake Park v. Dep’t ofTransp., 4 F.3d 1543, 1550 (10th Cir.1993); see also Eagle Found., 813 F.2d at 805 (“A prudent judgment by an agency is one that takes into account everything important that matters. A cumulation of small problems may add up to a sufficient reason to use § 4(f) lands.”). Even the Stop H-3 court acknowledged the salience of this principle. See 740 F.2d at 1455. In the last analysis, “it is up to those who assail [the agency’s] findings or reasoning to identify the defects in evidence and the faults in reasoning.” Save Our Heritage, 269 F.3d at 60. The petitioners have not carried this burden. Although they decry the FAA’s appraisal of the East Ramp alternative, the FAA has presented a compelling articulation of the factors that contributed to its decision. The petitioners have not offered the “sustained and organized rebuttal,” id., that would be necessary to invalidate this articulation. c. Adaptive Reuse. We come now to the FAA’s evaluation of the third alternative: the possibility of adapting Hangar 24 to accommodate the FBO project. The FAA explained that “this alternative has significant disadvantages because of the hangar’s poor condition, relatively small size, and functional inadequacy.” The size of both the building and the doorway apei’ture would have to be increased dramatically in order to outfit the hangar for use by larger aircraft. Enumerating these and other considerations, the EA concluded that adaptive reuse “is expected to require substantial and impractical building modifications to allow the building to function for its intended use and bring the building into compliance with current environmental, structural, fire, safety, and energy codes.” This conclusion was reinforced by the HNTB study, which reported that any reconfigured version of Hangar 24 “would be inefficient to use and maintain ... and unusable as a hangar.” The study also noted that refurbishing Hangar 24, which “may or may not be structurally feasible,” would cost some $500,000 more than the estimated cost of constructing a brand new facility. In rebuttal, the petitioners assert that there is no data showing that Hangar 24 would require enlargement. This assertion is at best a half-truth; it is premised on the hypothesis that there is no demonstrated demand for facilities that can accommodate larger aircraft. This hypothesis is a slight variation on a previously rejected theme, see supra Part 11(A)(1)(a), but the variation is immaterial. As we have explained, the record contains substantial support for the assertion that demand for FBO services at Hanscom is likely to continue to increase. The record likewise reveals that the two existing FBO facilities cannot readily accommodate larger aircraft, and it further notes that the existing Hangar 24 structure is too small to be compatible with G5 business jets. This information is sufficient to undergird the FAA’s conclusion that enlargement of Hangar 24 would be required in any sensible reuse scenario. As evidence of the viability of adaptive reuse, the petitioners seize upon a suggestion that it might be feasible to raise the roof of Hangar 24 without demolishing the building. In support, they note that the roof had been raised once before and that the agency did not respond to this possibility (which first surfaced during the comment period). An agency is under no obligation to respond individually to each and every concern raised during the comment period. See Conservation Law Found, of New Engl., Inc. v. Andrus, 623 F.2d 712, 717 (1st Cir.1979). Here, moreover, the comment was not so compelling as to demand a direct response given the building’s overall condition and structural deficiencies. See 40 C.F.R. § 1508.9(a) (describing EA as “a concise public document” (emphasis supplied)). The petitioners’ critique of the FAA’s adaptive reuse analysis gains no traction from a claimed inconsistency between the FAA’s conclusion that Hangar 24’s door height would have to be increased and Massport’s commitment to maintaining an unobtrusive building profile when redeveloping the site. There is simply no reason to believe that a door-height increase would necessarily result in a building incompatible with surrounding structures. In the absence of concrete evidence to that effect, such conjecture is insufficient to undermine the FAA’s finding regarding the imprudence of adaptive reuse. See Save Our Heritage, 269 F.3d at 60 (“Gauzy generalizations and pin-prick criticisms, in the face of specific findings and a plausible result, are not even a start at a serious assault.”). We add that even if none of the factors cited by the FAA, standing alone, would justify its finding that adaptive reuse is imprudent, that finding would still be supported by the totality of the factors. In making judgment calls of this sort, an agency is both entitled and obliged to consider the totality of the circumstances. See, e.g., Eagle Found., 813 F.2d at 805. The whole is sometimes greater than the sum of the parts, and the considerations limned in the EA, taken together, provide a reasoned basis, adequately anchored in the administrative record, upon which the FAA could conclude — as it did — that adaptive reuse is not a prudent alternative. There is one loose end. As discussed in the EA and as considered during the consultation period, the reuse alternative encompassed a proposal that Hangar 24 be converted into an aviation museum. The FAA discussed this option “because of the significant interest expressed on the part of consulting parties and the public.” Though the proposal was sufficiently broad to include a number of potential museum developers, one of the most likely candidates — the Massachusetts Air and Space Museum — had already declared the site unsuitable. Ultimately, the agency rejected the museum possibility because such a use would not address perceived transportation needs and would present significant security concerns that made it “undesirable and impractical.” We find no error in this determination. See 49 U.S.C. § 47101(a)(1) (“[T]he safe operation of the airport and airway system is the highest aviation priority....”); see also Back Bay, 463 F.3d at 65. That ends this aspect of the inquiry. In this context, prudence is largely a matter of safety and efficiency; and the FAA’s determination that none of the three alternatives would be prudent was, on the record before it, well within the universe of reasonable outcomes. When that is true, it is not the place of a reviewing court to second-guess the agency. 2. Minimization of Harm. Once an agency determines that there is no feasible and prudent alternative to the use of protected land, section 4(f) requires it to consider whether the proposal at hand “includes all possible planning to minimize harm.” 49 U.S.C. § 303(c)(2). An agency determination that a submitted plan sufficiently minimizes the likely harms to historic properties must be treated respectfully by a reviewing court. Such determinations “deserve even greater deference than agency determinations concerning practicable alternatives.” Conservation Law Found, v. Fed. Hwy. Admin., 24 F.3d 1465, 1476-77 (1st Cir. 1994); see Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 702 (3d Cir. 1999). The petitioners insist that the FAA should postpone the demolition of Hangar 24 until after the design, permitting, and financing of the new FBO facility are in place, thus leaving open the possibility that the facility might incorporate the existing hangar. We reject these importunings. When discussing minimization, the FAA specifically noted that “reuse of Hangar 24 as a hangar is neither prudent nor practical.” The FAA fully addressed the adaptive reuse approach in its analysis and supportably determined that this approach was imprudent. No more was exigible. An agency need only consider harm-minimizing steps that are feasible and prudent under existing circumstances. Back Bay, 463 F.3d at 66. A few explanatory comments may be helpful. Section 4(f)(2)’s requirement that a project include planning to minimize harm to historic sites does not demand that an agency, having already ruled out an option as imprudent under section 4(f)(1), circle back to reconsider that option as a means of mitigating harms. Instead, the 4(f)(2) inquiry is focused on means of minimization that are compatible with the alternative or alternatives deemed feasible and prudent under 4(f)(1). Congress established a very rigorous, time-consuming administrative process through which projects that might affect protected historic sites are reviewed and, if appropriate, approved. This administrative process is geared toward consideration of the project concept itself, regardless of which developer may ultimately carry the proposal to fruition. Of course, should the parameters of the project change materially, additional administrative approvals will likely be necessary. But so long as the project’s scope remains within the general contours of the proposal reviewed and approved by the agency, the validity of its approval is not conditioned on the presence or absence of a developer prepared to move forward with the construction. B. NHPA. Section 106 of the NHPA requires that federal agencies “take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. It also directs that agencies “shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment.” Id. In fine, “[s]ection 106 is a procedural statute that requires agency decisionmakers to ‘stop, look, and listen,’ but not to reach particular outcomes.” Back Bay, 463 F.3d at 60 (quoting Narragansett Indian Tribe v. Warwick Sewer Autk, 334 F.3d 161,166 (1st Cir.2003)). Congress created the Advisory Council on Historic Preservation (the Council) to administer the NHPA. See 16 U.S.C. §§ 470i, 470s. The Council has promulgated regulations to guide agencies in performing their obligations under the statute. See 36 C.F.R. pt. 800. These regulations direct agencies to determine if a project qualifies as an “undertaking” that “has the potential to cause effects on historic properties.” Id. § 800.3(a). If so, the agency must consult with the state historic preservation officer (SHPO) to “[determine and document the area of potential effects.” Id. § 800.4(a)(1); see id. § 800.16(d). The agency, along with the SHPO, is then directed to “apply the National Register criteria” to arguably eligible sites within the area of potential effects. Id. § 800.4(c)(1). If the agency finds that historic sites may be affected, it must solicit the views of various parties. Id. § 800.4(d)(2). The agency then applies the criteria delineated in the regulations to determine if there is an effect or effects, id. § 800.5(a), and if so, engages in further consultation to resolve any such effects, id. § 800.5(d)(2). This step involves notifying the Council so that it can decide whether its continued participation is desirable, id. § 800.6(a)(1), and looking at alternatives that might “avoid, minimize or mitigate the adverse effects,” id. § 800.6(b)(l)(i), (b)(2). If the agency and the consulting parties agree on a means of abating the effects, they must execute a memorandum of agreement (the Memorandum). Id. § 800.6(b)(l)(iv), (b)(2). The Memorandum “evidences ... compliance with section 106” and the regulations. Id. § 800.6(c). In the case at hand, NHPA consultation began in April of 2008, when the FAA informed the Commission (the relevant state entity) that the Hangar 24 project was an “undertaking” within the purview of the regulations. The FAA concurred with the Commission’s finding that the hangar was eligible for listing on the National Register under Criteria A and B. The FAA and the Commission then defined the project’s area of potential effects to include the footprint of the hangar and its appurtenances. In December of 2008, the FAA issued a draft EA, which was made available for public comment. The Council reviewed this document and determined that its “participation in the consultation to resolve adverse effects [was] unnecessary.” According to the Council, the EA’s discussion of alternatives was “exhaustive,” and the Commission fully concurred with the FAA’s findings about the project’s effects (and lack of effects) on historic properties. The FAA proceeded to prepare a draft Memorandum to memorialize its commitments to mitigation and circulated the Memorandum to the consulting parties for their input. The final EA responded to comments and included a final version of the Memorandum. The petitioners advance a salmagundi of arguments as to why the NHPA requirements were not satisfied. To begin, they argue that, because the area of potential effects was determined “without reference to any specific development proposal,” that determination is inconsistent with the regulatory directive that the area’s scope should be “influenced by the scale and nature of an undertaking.” Id. § 800.16(d). It is true that when the EA was prepared, there was no developer lined up to proceed with FBO facility construction and, thus, no definitive set of development plans existed. But Massport had previously reviewed proposals and selected a plan for the site, thus evincing that it had a particular set of criteria in mind. The concept was clearly delineated. NHPA’s implementing regulations direct agencies to “ensure that the section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered.” Id. § 800.1(c). This directive makes it pellucid that agencies are not expected to delay NHPA review until all details of the proposal are set in cement. Of course, should the project’s scope change in some material way when a specific developer is identified, additional FAA approvals may be required. But the proposal here was sufficiently well-defined to trigger the NHPA review process. Taking a different tack, the petitioners say that the FAA erred in determining that the area of potential effects did not encompass any historic sites beyond Hangar 24 itself. This is whistling past the graveyard; the record reveals beyond hope of contradiction that the FAA examined the possibility of effects on other sites and supposedly concluded that none of the alternatives would have an effect— either direct or indirect — on any protected historic venue (apart from Hangar 24 itself). Relatedly, the petitioners fault the FAA for neglecting to take into account, when defining the area of potential effects, the possibility that the project would alter views from nearby sites and, in the bargain, create a fire hazard attributable to fuel storage. But the 2005 ESPR noted that, due to local topographical features, the airport was not visible from most nearby locations; and in any event, Massport committed to maintaining building dimensions that would “be respectful of views from off-site vantages.” Finally, in its response to public comments appended to the EA, the FAA explained that the State Fire Marshal’s Office will regulate fuel storage at any new structure and that other measures for the containment of fuel-related hazards had been contemplated. Regardless of whether the petitioners agree with the FAA’s conclusions about these matters, they have failed to show that the conclusions are arbitrary or capricious. The petitioners’ next plaint is equally without foundation. Although they express concern that the new FBO facility would indirectly affect noise levels by attracting additional jet traffic, the FAA explained in the EA why that scenario is unlikely to occur. There, it stated that, consistent with its mandate to provide “a safe and efficient national airspace system,” the FBO project was intended “to meet forecasted demand for adequate facilities” for corporate aircraft at Hanscom. This articulated purpose was aimed at meeting an increase in demand that the record confirms will likely take place independent of any improvements at Hanscom; it was not calculated to drive an increase in traffic. In light of the FAA’s observation that improvements to infrastructure are not typically sufficient, on their own, to attract new activity to an airport, the record is barren of any basis for the expectation that the new FBO facility will cause any increase in traffic. In the absence of such an evidentiary predicate, it was entirely logical for the FAA to conclude that the contemplated FBO facility would produce no meaningful increase in noise levels. Cf. Save Our Heritage, 269 F.3d at 62-63 (upholding FAA finding that impacts of newly authorized flights were de minimis under NHPA and NEPA standards). .If more were needed- — and we doubt that it is- — -we note that, notwithstanding its determination that the potential for increased noise was not a problem, the FAA went the extra mile; it made a “worst case” calculation. While the agency was under no obligation to make a worst case calculation in light of its no-effects finding, cf. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 356, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (explaining that NEPA analysis should “focus on reasonably foreseeable impacts” and that no “worst case analysis” is required), the results of that calculation reinforced its position. Switching gears, the petitioners urge that because Walden Pond (a national historic landmark) is nearby, the FAA was required to comply with the heightened standards that pertain to such sites. See 16 U.S.C. § 4T0h — 2(f); 36 C.F.R. § 800.10. Given the FAA’s warranted determination that there would be no effects on nearby historic sites, the agency was under no obligation to move to this more intensive level of review. See Back Bay, 463 F.3d at 64. The petitioners have one last grievance addressed to the FAA’s NHPA compliance. They argue that the FAA and the Commission blundered in finding that Hangar 24 was ineligible for listing on the National Register under Criterion C, which applies to sites that embody distinctive architectural characteristics. See 36 C.F.R. § 60.4(c). This grievance is baseless. To be sure, the criteria used to determine whether a site qualifies for listing on the National Register will inform the choice of appropriate mitigation measures. Here, however, there is ample evidence in the record to show that the FAA and the Commission fully considered the applicability vel non of Criterion C. To this end, the Commission observed, in correspondence to the FAA, that Hangar 24 was “deteriorated” and had been “cleared of its historical scientific instrumentation, equipment, research files, and furnishings.” In a return letter, the FAA confirmed its awareness of “new information” pertinent to Criterion C proffered by the Concord Historical Commission and found that this proffer contained no insights beyond those previously considered. The short of it is that the petitioners, despite their kaleidoscopic array of attacks, have not shown noncompliance with any of the procedures mandated by the NHPA and its implementing regulations. Nor have they shown that the FAA failed to satisfy its obligation to weigh effects. While the petitioners may disagree with the FAA’s calibration of these scales, that disagreement, in itself, is insufficient to scuttle the FAA’s findings. C. NEPA. The NEPA requires federal agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Where the need for an EIS is not obvious, an agency may instead prepare an EA. 40 C.F.R. § 1501.4(b). An EA is meant to be less detailed than an EIS. See, e.g., United States v. Coal, for Buzzards Bay, 644 F.3d 26, 32 (1st Cir. 2011). If the agency, based on the EA, determines that an EIS is not needed, it may issue an explained finding of no significant impact. 40 C.F.R. § 1501.4(c), (e). The requirements imposed by the NEPA are procedural in nature and are not intended to dictate any particular substantive outcome. Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204; Robertson, 490 U.S. at 350, 109 S.Ct. 1835. The petitioners’ NEPA challenge focuses on the FAA’s consideration of the potential to increase noise levels. Specifically, the petitioners upbraid the FAA for failing properly to quantify cumulative noise impacts. The applicable regulations define cumulative effects as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7. This lament does not withstand scrutiny. The record shows that the FAA considered all the relevant factors. It identified the only other reasonably foreseeable development (that anticipated for the East Ramp) and added anticipated noise from that project, calculated at 0.3 dB, to a predicted maximum noise increase of 0.2 dB from the Hangar 24 project. The 2008 East Ramp noise study upon which the FAA based its worst case calculation took account of total noise levels in the area. It added the projected increase for the East Ramp development to preexisting baseline noise conditions. See League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1217 (9th Cir.2008). The FAA generally regards as significant a decibel increase of 1.5 dB or greater (based on a day-night average) at or above a 65 dB noise exposure level. FAA Order 1050.1E, CHG 1, App. A, para. 14.3 (Mar. 20, 2006). The foreseeable increase here fell comfortably within that range. We conclude, therefore, that the FAA’s exercise constituted a reasonable approach to the potential problem. And as a further check, the FAA “carefully reviewed” the 2005 ESPR’s analysis of the projected cumulative noise and air quality effects of both the Hangar 24 and the East Ramp projects. The petitioners ealumnize the FAA’s decision to extrapolate from prior studies rather than commission a new study for Hangar 24. In our view this decision was not unreasonable, especially given the agency’s prediction, based on the FAA’s experience with other airport projects, that the Hangar 24 project was unlikely to have any impact at all on noise levels. We hold, therefore, that the FAA’s noise impact calculations are impervious to the petitioners’ challenge. Of course, if and when Massport chooses to proceed with additional development at Hanscom, that work may require additional FAA approvals. But the NEPA requires a cumulative analysis only “to ensure that a project is assessed as a whole and not sliced into ‘small component parts.’ ” Town of Marshfield v. FAA, 552 F.3d 1, 4 (1st Cir.2008) (quoting 40 C.F.R. § 1508.27(b)(7)). For NEPA purposes, an agency need not speculate about the possible effects of future actions that may or may not ensue. See, e.g., Coal, on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C.Cir.1987). III. CONCLUSION We need go no further. A careful reading of the administrative record shows with conspicuous clarity that the FAA was cognizant of, and complied with, its responsibilities under the applicable statutes and regulations. The conclusions that it reached, though not inevitable, are adequately grounded and in accordance with law. Accordingly, we deny the petition for judicial review. So Ordered. . At the expense of adding hues to a rainbow, we note that, in compiling the EA, the FAA specifically stated that its prudence inquiry centered on “extraordinary safety or operational problems” (emphasis supplied). It seems to us that this reference indicates that the agency proceeded in the spirit of Overton Park, albeit adapting its inquiry to the vastly different circumstances before it. . The petitioners protest that the FAA incorrectly disregarded a fourth alternative: the possibility of locating the new FBO facility at Worcester. But this suggestion surfaced for the first time during the comment period, and the FAA persuasively responded that, due to the approximately 50-mile distance between Hanscom and Worcester, the idea was "not practical.” This makes eminently good sense for two reasons. First, the articulated need for a third FBO facility was based on data evidencing increased corporate jet use at Hanscom specifically, not in the region generally. Second, the record indicates that improvements to infrastructure are not usually in themselves sufficient to attract new activity to a particular airport. Air travel is, after all, tied clearly to location. . An agency is free to rely in part on relevant, previously conducted studies when preparing an EA. See Save Our Heritage, 269 F.3d at 59; Conservation Law Found, v. Fed. Hwy. Admin., 24 F.3d 1465, 1473 n. 1 (1st Cir. 1994). . The petitioners point out that the FAA's own internal guidance acknowledges that the “65 dB threshold does not adequately address the effects of noise on visitors to areas within a national park ... where other noise is very low and a quiet setting is a generally recognized purpose and attribute.” FAA Order 1050.IE, CHG 1, App. A, para. 14.3. This guidance does not help the petitioners. Although Hanscom is located in close proximity to at least one historic national park, the petitioners have proffered no evidence that any such park is specifically recognized for its tranquility. See, e.g., 16 U.S.C. § 410s(a) (establishing Minute Man National Historical Park and describing its purposes). For that matter, the petitioners have proffered no evidence showing a need for special noise level protection at any place in the vicinity.

Shanks v. Dressel

FISHER, Circuit Judge: Vincent and Janet Dressel (the “Dressels”) are developers who remodel and convert private homes into student residences. A group of homeowners and community organizations (collectively, “Logan Neighborhood”), concerned that the Dressels’ construction was degrading and devaluing the historic character of their neighborhood, brought suit in federal district court seeking injunctive and declaratory relief. Logan Neighborhood principally contends that the city’s alleged failure to enforce provisions of its zoning code intended to preserve historic districts violated the Fourteenth Amendment’s Due Process Clause. Notwithstanding Logan Neighborhood’s understandable concerns about the aesthetics and ambiance of the neighborhood, we conclude it has not stated a federal constitutional claim. Although not preempted by the Fifth Amendment’s Takings Clause, see Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856(9th Cir.2007), Logan Neighborhood’s due process claim nonetheless fails. Its other claims also fail, so we affirm the district court’s judgment against Logan Neighborhood. BACKGROUND The Mission Avenue Historic District (“District”) lies just north of Gonzaga University in the city of Spokane, Washington (“Spokane”). The District is listed on the National Register of Historic Places, a designation conferred by the Secretary of the Interior pursuant to the National Historic Preservation Act of 1966 (“NHPA”). See 16 U.S.C. § 470a(a). It is architeeturally noteworthy because it includes a “significant collection of late 19th and early 20th century houses located on one of the city’s oldest landscaped boulevards.” On both sides of Mission Avenue are a “variety of Queen Anne, Four Square, Craftsman, and bungalow style houses that reflect the substantial architecture of the period and the original suburban character of the area.” In March 2005, Spokane granted the Dressels a building permit to construct a duplex addition to 428 East Mission, a clapboard-sided, Four Square house located within the District and inventoried on the District’s nomination for the National Register of Historic Places. The Dressels demolished an existing garage on the property and erected a “box-like dormitory building! ] ... attached” to the original house. We summarize the municipal ordinances that Logan Neighborhood alleges have been violated. In 1981, the city amended the Spokane Municipal Code (“SMC”) to provide “criteria and procedures for the ... management of historic landmarks.” A newly created Historic Landmarks Commission was charged with the “stewardship of historic and architecturally-significant properties ... to effect the recognition and preservation of such properties.” Two of its responsibilities are relevant here: reviewing applications for “certificates of appropriateness,” as provided by SMC 17D.040.200, and reviewing requests for “administrative special permits,” as provided by SMC 11.19.270. See SMC 17D.040.080(C)(l)(d), (f). SMC 17D.040.200 requires owners to obtain a certificate of appropriateness for “work that affects the exterior ... of ... property within an historic district” or for “development or new construction within an historic district.” In evaluating an application for a certificate of appropriateness, the Historic Landmarks Commission “uses the Secretary of the Interior’s Standards for Rehabilitation and other general guidelines established and adopted by the commission.” SMC 17D.040.210(B). The owner of a property and the Commission may negotiate “different management standards for a specific piece of property,” subject to the approval of the Spokane City Council. See SMC 17D.040.270-.280. SMC 11.19.270 provides for special “development standards” that apply “only to those historic districts for which ‘defining characteristics’ have been prepared by the landmarks commission, and those structures or properties listed in the National Register of Historic Places.” When these standards apply, proposed construction requires an “administrative special permit” from the director of planning services. The Historic Landmarks Commission “make[s] recommendations concerning the approval or denial of the special permit.” SMC 17D.040.080(C)(l)(f). It “issues a certificate of appropriateness in support of approval” only if the construction is “of a character which is consistent with the defining characteristics of the historic district, or the U.S. Department of Interior standards in the case of structures or properties listed in the National Register but not located within an historic district.” SMC 11.19.270(D)(3)(b). If no action is taken within 35 days, the application is “deemed approved.” SMC 11.19.270(D)(3)(c). In any event, the Commission’s recommendation “will not otherwise preclude” the director of planning services from reaching a “contrary decision” upon “consideration of other factors of public interest.” Id. The Dressels did not seek a certificate of appropriateness or an administrative special permit for their development of the 428 East Mission property, nor has Spokane taken any steps to require them to do so. Logan Neighborhood alleges that the Dressels’ construction has compromised the historic character of the Mission Avenue Historic District, resulting in harm to its “cultural, architectural, educational, recreational, aesthetic, historic, and economic interests.” Its complaint asserts three claims: (1) that Spokane violated 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment, by not enforcing the Spokane Municipal Code; (2) that Spokane and the Dressels violated the National Historic Preservation Act; and (3) that Spokane and Spokane employees violated the Spokane Municipal Code. The district court granted Spokane’s motion for summary judgment and the Dressels’ motion to dismiss. DISCUSSION We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for lack of subject matter jurisdiction, dismissal for failure to state a claim and grant of summary judgment. Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.2007); Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 898 (9th Cir.2006). We may affirm on any ground supported by the record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (per curiam). I. Due Process Clause Logan Neighborhood complains that Spokane and its employees failed to enforce the Spokane Municipal Code and take action “sufficient ... to protect the Mission Avenue Historic District.” Spokane’s alleged failure to “discharge its mandatory duties” under the Spokane Municipal Code was, Logan Neighborhood asserts, “arbitrary, capricious, ... and not in accordance with ... [the] procedure required by law.” By issuing a building permit to the Dressels without first requiring that they obtain a certificate of appropriateness and an administrative special permit, Spokane allegedly deprived Logan Neighborhood of constitutionally protected property interests. As we shall explain, we agree with Logan Neighborhood that the Takings Clause of the Constitution does not invariably preempt a real property owner’s challenge under the Due Process Clause. See Crown Point, 506 F.3d at 856. A plaintiff must do more than clear this initial hurdle to state a cognizable due process claim, however. Because Spokane’s conduct did not deprive Logan Neighborhood of a constitutionally cognizable property interest, we affirm the district court’s entry of summary judgment in favor of the city. A. Preemption by the Takings Clause Relying on Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir.2004), and Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996) (en banc), Spokane asserts that any claim that governmental action caused a diminution in the value of real property involves the Takings Clause, not the Due Process Clause. We have rejected this very argument. See, e.g., North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 484-85 (9th Cir.2008); Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir.2007); Crown Point, 506 F.3d at 856; Equity Lifestyle Prop., Inc. v. County of San Luis Obispo, 505 F.3d 860, 870 n. 16 (9th Cir.2007). Expressly repudiating Squaw Valley’s, suggestion that a “substantive due process challenge brought in the context of regulating use of real property might not be viable,” we recently held that “the Armendariz line of cases can no longer be understood to create a blanket prohibition of all property-related substantive due process claims.” Action Apartment, 509 F.3d at 1025 (internal quotation marks omitted). Accordingly, we have no difficulty concluding that the Takings Clause does not “fore-closet] altogether” a due process claim like Logan Neighborhood’s. See Crown Point, 506 F.3d at 857. Logan Neighborhood does not seek compensation for an otherwise proper interference amounting to a taking, but rather invalidation of a land use action that is “so arbitrary or irrational that it runs afoul of the Due Process Clause.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 542, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Edüd 1043 (1998)); see also Crown Point, 506 F.3d at 855. Logan Neighborhood would have us stop there, reverse the district court’s judgment and remand for further proceedings. We decline to do so because Logan Neighborhood has not stated a viable claim on either a substantive due process or a procedural due process theory. B. Substantive Due Process To state a substantive due process claim, the plaintiff must show as a threshold matter that a state actor deprived it of a constitutionally protected life, liberty or property interest. See Action Apartment, 509 F.3d at 1026. Logan Neighborhood’s “failure-to-protect” and “failure-to-enforce” allegations do not suffice. The Constitution generally does not require the state to “protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Consequently, the state’s failure to protect an individual from “harms inflicted by persons not acting under color of law” will not ordinarily give rise to § 1983 liability. Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir.1998). Logan Neighborhood does not argue that the Dressels were themselves acting under color of law — for example, that they conspired with Spokane officials in pursuit of a common end, see Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2002) — when they undertook their construction. See supra note 3. Under these circumstances, Spokane had no independent constitutional duty to safeguard the Dressels’ neighbors from the negative consequences — economic, aesthetic or otherwise — of the Dressels’ construction project. See Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir.1994) (citing DeShaney and explaining that substantive due process does not generally require government to enforce laws against private wrong doers); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th Cir.1994) (same). Logan Neighborhood urges that Spokane applied the law improperly and therefore took an affirmative step beyond simply not enforcing it at all. It contends that Spokane unlawfully and arbitrarily issued a building permit to the Dressels because it did not first require them to obtain a certificate of appropriateness and administrative special permit. We do not agree that the issuance of a building permit to the Dressels made their conduct fairly attributable to Spokane in the sense required for § 1983 liability. Without more, Spokane’s “[m]ere approval of or acquiescence in” the Dressels’ construction is “not sufficient to justify holding[it] responsible for [that construction] under the terms of the Fourteenth Amendment.” Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). But even if Logan Neighborhood could show, for example, that the decrease in value of its homes caused by the Dressels’ construction amounted to a governmental deprivation of a property interest — and we hold above that it cannot, on these facts— its substantive due process claim would fail for the independent reason that it has not alleged executive action on Spokane’s part that rises to the level of the constitutionally arbitrary. The Supreme Court has “long eschewed ... heightened [means-ends] scrutiny when addressing substantive due process challenges to government regulation” that does hot impinge on fundamental rights. Lingle, 544 U.S. at 545, 125 S.Ct. 2074; see also Halverson v. Skagit County, 42 F.3d 1257, 1262(9th Cir.1994). Accordingly, the “irreducible minimum” of a substantive due process claim challenging land use action is failure to advance any legitimate governmental purpose. North Pacifica LLC, 526 F.3d at 484; see Dodd v. Hood River County, 59 F.3d 852, 864 (9th Cir.1995). The “exceedingly high burden” required to show that Spokane or its employees behaved in a constitutionally arbitrary fashion has not been met here. See Matsuda v. City & County of Honolulu, 512 F.3d 1148, 1156 (9th Cir.2008) (internal quotation marks omitted). When executive action like a discrete permitting decision is at issue, only “egregious official conduct can be said to be ‘arbitrary in the constitutional sense’ it must amount to an “abuse of power” lacking any “reasonable justification in the service of a legitimate governmental objective.” Lewis, 523 U.S. at 846, 118 S.Ct. 1708; see City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 198, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (rejecting substantive due process claim because city engineer’s refusal to issue building permits “in no sense constituted egregious or arbitrary government conduct”). Official decisions that rest on an erroneous legal interpretation are not necessarily constitutionally arbitrary. See Collins v. City of Harker Heights, 503 U.S. 115, 128-30, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Brittain v. Hansen, 451 F.3d 982, 996 (9th Cir.2006). Logan Neighborhood’s contrary, and erroneous, assumption that every state law violation invariably gives rise to a substantive due process claim is inconsistent with the principle that substantive due process is not a “font of tort law” that superintends all official decision making. See Lewis, 523 U.S. at 847-48 & n. 8, 118 S.Ct. 1708. The conduct Logan Neighborhood alleges — a routine, even if perhaps unwise or legally erroneous, executive decision to grant a third-party a building permit — ■ falls short of being constitutionally arbitrary. There is no suggestion, for instance, of a sudden change in course, malice, bias, pretext or, indeed, anything more than a lack of due care on Spokane’s part. Compare Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1237-38 (9th Cir.1994) (rejecting substantive due process claim when plaintiff “merely assert[ed]” that decision was arbitrary and pretextual without providing any evidence), with Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir.1990) (concluding that there was triable issue of fact when city approved project subject to conditions, plaintiff fulfilled those conditions and then city “abruptly changed course and rejected the plan, giving only broad conclusory reasons”). It is “at least fairly debatable” that Spokane rationally furthered its legitimate interest in facilitating residential housing in a residential neighborhood by issuing a building permit to the Dressels. See Halverson, 42 F.3d at 1262 (internal quotation marks omitted). When reviewing a substantive due process challenge, this suffices; our task is not to balance “the public interest supporting the government action against the severity of the private deprivation.” Kawaoka, 17 F.3d at 1228. We reject as an erroneous legal conclusion Logan Neighborhood’s assertion that Spokane and its employees acted in a constitutionally arbitrary manner. See Western Mining Council v. Watt, 643 F.2d 618, 628-29 (9th Cir.1981). For this reason, too, we hold that it has not stated a substantive due process claim. C. Procedural Due Process We are also not convinced by Logan Neighborhood’s argument that it has been deprived of procedural due process because it did not have fair notice and an opportunity to be heard before Spokane issued the Dressels a building permit. Logan Neighborhood claims a constitutionally protected property interest in the denial of the permit unless the city “complied] with the Spokane Municipal Code applicable to historic districts.” It contends that the historic preservation provisions obliged Spokane to hold a public “design review taking into account the Mission Avenue Historic District” and complying with the certificate of appropriateness and administrative special permit requirements. Even if Logan Neighborhood’s interpretation of the Spokane Municipal Code is correct — the parties dispute whether construction in the District is subject to those additional requirements — it has not stated a viable claim. The claim is an unusual one; more typically, the plaintiff asserts that it personally was denied a permit without due process of law, not that someone else was granted a permit without the decisionmaker following the procedure established by state law. See Gagliardi, 18 F.3d at 191(describing argument as “rather unique”); see generally Dumas v. Kipp, 90 F.3d 386, 392 (9th Cir.1996) (citing O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980), and noting distinction between direct and indirect beneficiaries of government regulation). Assuming without deciding that a property owner ever could have a constitutionally protected interest in the proper application of zoning restrictions to neighboring properties, see id. at 192, we conclude that Logan Neighborhood’s procedural due process claim fails because Spokane’s historic preservation provisions do not “contain[ ] mandatory language” that significantly constrains the decisionmaker’s discretion. Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980). We apply our conventional analytic framework. See Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1217 & n.4 (10th Cir.2003) (rejecting distinction between inquiry for “due process claims brought by a landowner who received an unfavorable decision on its own application for a particular land use” and inquiry for claim brought “challenging] the decision ... to grant [a third-party’s] proposed land use”) (emphasis added); see also Gagliardi, 18 F.3d at 192-93. To obtain relief on a procedural due process claim, the plaintiff must establish the existence of “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir.1993). The Due Process Clause forbids the governmental deprivation of substantive rights without constitutionally adequate procedure. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Not every procedural requirement ordained by state law, however, creates a substantive property interest entitled to constitutional protection. See Dorr v. County of Butte, 795 F.2d 875, 877(9th Cir.1986); see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 764, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005); Hayward v. Henderson, 623 F.2d 596, 597 (9th Cir.1980). Rather, only those “rules or understandings” that support legitimate claims of entitlement give rise to protected property interests. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Logan Neighborhood does not have a legitimate claim of entitlement to the denial of the Dressels’ permit in accordance with the historic preservation provisions. Only if the governing statute compels a result “upon compliance with certain criteria, none of which involve the exercise of discretion by the reviewing body,” does it create a constitutionally protected property interest. Thornton v. City of St. Helens, 425 F.3d 1158, 1164-65 (9th Cir.2005); see also Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir.1998) (holding that “specific, mandatory” and “carefully circumscribed” requirements constrained discretion enough to give rise to property interest). Conversely, “a statute that grants the reviewing body unfettered discretion to approve or deny an application does not create a property right.” Thornton, 425 F.3d at 1164. There is no protected property interest if “the reviewing body has discretion ... to impose licensing criteria of its own creation.” Id. at 1165. We have not been directed to any statutory language that “impose[s] particularized standards ... that significantly constrain” Spokane’s discretion to issue the permits in question and would create a protected property interest in the permits’ denial. See Fidelity Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1436 (9th Cir.1986). The Historic Landmarks Commission is to apply “defining characteristics ... prepared” and “general guidelines established and adopted” by that very same body. The Commission also has the freedom to negotiate “different management standards” for any particular piece of property. In deciding whether to approve an administrative special permit, the director of planning services is to apply “other factors of public interest” in an unspecified way. Moreover, the ordinance requires only that the ultimate decisionmaker “use[ ]” or “consider[]” those open-ended criteria; it does not mandate any outcome. Finally, we are mindful that, as a matter of Washington law, building codes are not generally construed to impose an affirmative duty upon local governments to initiate compliance actions, and Logan Neighborhood has not directed us to any special features of Spokane’s historic preservation ordinance. See Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 799 P.2d 250, 264-65 (1990); Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447, 450 (1988). We conclude that the historic preservation provisions of the Spokane Municipal Code do not create a constitutionally cognizable property interest in the denial of a third-party’s building permit. From this it follows that Logan Neighborhood’s procedural due process claim fails. Absent a substantive prbperty interest in the outcome of procedure, Logan Neighborhood is not constitutionally entitled to insist on compliance with the procedure itself. “To hold otherwise would immediately incorporate virtually every regulation into the Constitution.” Clemente v. United States, 766 F.2d 1358, 1364 (9th Cir.1985). The Tenth and Second Circuits rejected very similar claims in Crown Point I and Gagliardi, respectively. See Crown Point I, 319 F.3d at 1216(plaintiffs alleged property interest in expectation that city would “follow its own mandatory notice and public hearing procedures as set forth in a city code, before depriving a [neighboring] landowner of the use and enjoyment of its property”); Gagliardi, 18 F.3d at 193 (plaintiffs “complained] of a lack of notice and contended] that certain affirmative actions were taken without compliance with the procedures established for municipal approval”). As is the case here, the ordinances in question did not significantly limit the municipal defendants’ discretion, so no substantive property interest with respect to permitting decisions was thereby created. See Crown Point I, 319 F.3d at 1217; Gagliardi, 18 F.3d at 192-93. Given this, both courts concluded the plaintiffs could not state a claim for a violation of the Due Process Clause: “The deprivation of a procedural right to be heard, however, is not actionable when there is no protected right at stake.” Gagliardi, 18 F.3d at 193; see also Crown Point I, 319 F.3d at 1217. We agree with the Second and Tenth Circuits’ reasoning and hold that Logan Neighborhood does not have a legitimate claim of entitlement to the “design review” allegedly required by the Spokane Municipal Code. Nothing we say here condones unlawful official action, and we express no view about the legality of Spokane’s permitting decision as a matter of state law. See, e.g., Wash. Rev.Code § 36.70C.040 (Washington Land Use Petition Act); Clemente, 766 F.2d at 1365(explaining that even when a plaintiff cannot “successfully claim a constitutionally cognizable property interest,” it is “well-settled ... that regulations validly prescribed by an agency are binding upon it”). But we cannot agree with Logan Neighborhood that it has established a violation of the federal Due Process Clause. Cf. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n. 5 (9th Cir.2003) (remarking that the courts of appeals do not sit as “super zoning boards or zoning boards of appeals”) (internal quotation marks omitted). II. National Historic Preservation Act The district court also correctly dismissed Logan Neighborhood’s claim that Spokane and the Dressels violated the National Historic Preservation Act. Section 106 of the NHPA does not create a private right of action against the federal government. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir.2005). The reasoning of San Carlos has even greater force in suits against private actors, because the NHPA addresses its obligations solely to federal agencies and the recipients of federal funding. See 16 U.S.C. § 470e (“The beneficiary of assistance----”); id. § 470f (“[A]ny Federal agency....”); Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir.1998); Lee v. Thornburgh, 877 F.2d 1053, 1056-57 (D.C.Cir.1989). Additionally, the NHPA’s implementing regulations disclaim any intent to regulate how private property owners use federally listed property. See 36 C.F.R. §§ 60.2, 65.2(b). In the absence of any rights-creating language, we agree with the district court that § 106 of the NHPA does not create a private right of action against the defendants. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Alex ander v. Sandoval, 532 U.S. 275, 288-89, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). III. Spokane Municipal Code Logan Neighborhood lastly contends that its claim under the Spokane Municipal Code independently creates federal subject matter jurisdiction. ' A state-law claim invokes 28 U.S.C. § 1331 jurisdiction only if it “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prod., Inc. v. Dane Eng’g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); see also id. at 313, 125 S.Ct. 2363 (explaining that a “substantial” federal issue is one that “indicates] a serious federal interest in claiming the advantages thought to be inherent in a federal forum”). Logan Neighborhood’s state-law claim does not satisfy any of these requirements. First, Logan Neighborhood’s state-law claim presents no “necessarily raised” or “actually disputed” federal issue. According to Logan Neighborhood, its claim that Spokane and the Dressels violated the Spokane Municipal Code cannot be decided without looking to the “Secretary of the Interior’s Standards for Rehabilitation” and the NHPA itself. This is incorrect. Mission Avenue Historic District’s listing on the National Register of Historic Places is not controverted. Spokane has not attempted to apply the Secretary of the Interior’s Standards for Rehabilitation to the Dressels’ construction. Logan Neighborhood’s state-law claim turns entirely on Spokane’s compliance with its own municipal code, and does not require the construction or application of federal law. Second, a federal interest in the availability of a federal forum to adjudicate Logan Neighborhood’s state-law claim is also missing. Cf. Grable, 545 U.S. at 313, 125 S.Ct. 2363. No special need for federal expertise or uniformity is apparent here, particularly because the NHPA does not regulate how private owners make use of listed properties. Cf. id. at 315, 125 S.Ct. 2363. Logan Neighborhood mistakenly relies on Stop H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir.1976), to bolster its argument. There, we merely recognized that Congress took “one step toward implementing the national policy in furtherance of historic preservation” when it enacted the NHPA. Id. at 438. Nothing in that case suggests that a federal forum must be open to hear every claim touching upon the integrity of a federally listed historical landmark. Third, allowing Logan Neighborhood’s state-law claim to go forward in federal court would undermine “Congress’s intended division of labor between state and federal courts.” Grable, 545 U.S. at 319, 125 S.Ct. 2363. Although the absence of a private federal right of action is no longer dispositive after Grable, it remains relevant to our assessment of the “‘sensitive judgments about congressional intent’ that § 1331 requires.” Id. at 318, 125 S.Ct. 2363; cf. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 817, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). The absence of a private right of action in the NHPA is a “missing welcome mat, required in the circumstances,” because acceptance of Logan Neighborhood’s argument would re-suit in federal jurisdiction whenever a plaintiff sues on a state law that refers to a concept defined by federal law. See Grabble, 545 U.S. at 318, 125 S.Ct. 2363. This cannot be. Logan Neighborhood’s claim under the Spokane Municipal Code does not create federal subject matter jurisdiction. CONCLUSION After Lingle, neither Armendariz nor its progeny categorically preclude due process challenges to impermissible governmental action that deprives a person of real property. The analysis of a property owner’s due process claim does not end there, however. Applying our ordinary Due Process Clause jurisprudence, we conclude that Logan Neighborhood has not stated a viable due process claim. We also reject Logan Neighborhood’s claims under the NHPA and Spokane’s Municipal Code. AFFIRMED. . On a motion to dismiss, we take the complaint's allegations of fact as true and construe the complaint in the light most favorable to the plaintiff. See Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007). On a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Galvin v. Hay, 374 F.3d 739, 745 (9th Cir.2004). . Although we reject Logan Neighborhood’s claims on the merits, they are not so "insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” See Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). . We affirm the dismissal of this claim as to the Dressels because Logan Neighborhood has not pursued on appeal its argument that they acted under color of law. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.1998) (explaining that we "will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief”) (internal quotation marks omitted); see generally Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) ("Our cases have ... insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.”); Howerton v. Gabica, 708 F.2d 380, 382-83 (9th Cir.1983) (identifying governmental nexus, joint action, public function and compulsion tests for determining whether action taken by private individual is "under color of law”). . The claim is ripe for review because the challenged governmental conduct — the city’s issuance of a building permit and alleged refusal to enforce the Spokane Municipal Code — has already occurred, and any injuries stemming from that conduct are ongoing. See Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232 (9th Cir.1994); cf. Action Apartment, 509 F.3d at 1027. . DeShaney's rule "that members of the public have no constitutional right to sue state actors who fail to protect them from harm inflicted by third parties 'is modified by two exceptions: (1) the 'special relationship' exception; and (2) the 'danger creation exception,’' ” neither of which applies here. See Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir.2007) (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992)). When the state has "created a special relationship with a person, as in the case of custody or involuntary hospitalization,” we have imposed liability "premised on an abuse of that special relationship.” Grubbs, 974 F.2d at 121. The danger creation exception, on the other hand, requires affirmative conduct on the part of the state creating a danger that the plaintiff would not have otherwise faced, as when the police reveal an accuser’s name after assuring her that she would be warned before any further action was taken. See, e.g., Kennedy v. City of Ridgefield., 439 F.3d 1055, 1058, 1061 (9th Cir.2006). . We express no view about whether Spokane’s "approval or acquiescence” would suffice to make the city a proximate cause of Logan Neighborhood’s alleged damages under, for example, Washington’s state law of municipal liability. . The Historic Landmarks Commission has never issued certificates of appropriateness or administrative special permits for properties in the Mission Avenue Historic District. Spokane officials are of the view that the provisions of SMC 11.19.270 are presently inoperative because no "defining characteristics” have been prepared for the Mission Avenue Historic District. The cases suggesting that an individual who has been singled out for differential treatment in an "irrational and wholly arbitrary” manner could bring a substantive due process or "class of one” equal protection claim are therefore inapposite. Cf., e.g., Engquist v. Oregon Dep’t of Agric., -U.S. -, 128 S.Ct. 2146, 2152-53, 170 L.Ed.2d 975 (2008) (internal quotation marks omitted); Vill. of Willowbrook v. Olech, 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948, 955 (9th Cir.2006); Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir.1988). . The Spokane Municipal Code directs the "official responsible for processing the application” for "action which may require a certificate of appropriateness” — for example, a building permit — to request review by the Historic Landmarks Commission. See SMC 17D.040.240. The ordinance then provides for a public comment period, as well as a noticed public hearing. See SMC 17D.040.260(C)(1)-(3). . Claims premised on the government’s treatment of a third-party must satisfy stringent constitutional standing requirements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("When ... a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed [to establish causation and redressability].”). We are satisfied that, at the pleadings stage, Logan Neighborhood has adequately alleged that its injuries are fairly traceable to Spokane’s conduct and that a judgment in its favor likely would redress those injuries. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1156 (9th Cir.2000); Soc’y Hill Towers Owners' Ass’n v. Rendell, 210 F.3d 168, 176-77 (3d Cir.2000). Because the defendants do not attack Logan Neighborhood's prudential standing, any such challenge is waived. See Bd. of Natural Res. of State of Wash. v. Brown, 992 F.2d 937, 945-46 (9th Cir.1993); see generally Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). . Cf. Asche v. Bloomquist, 132 Wash.App. 784, 133 P.3d 475, 479-82 (2006) (reasoning that plaintiffs "had a property right, created by the ... [view protection] zoning ordinance, in preventing [their neighbors] from building a structure over" a certain height without their approval). . The plaintiffs in Stop H-3 unremarkably sought enforcement of a federal statute's mandate— § 4(f) of the Department of Transportation Act of 1966 — against a federal agency in federal court. See id. at 437-48 (citing 23 U.S.C. § 138(a)). We held that the Secretary of the Interior's determination that a location was eligible for inclusion in the National Register of Historic Places triggered § 4(f)’s applicability notwithstanding a state official’s finding that the site had only marginal historic significance. See id. at 441.

City of Oxford v. Federal Aviation Administration

TJOFLAT, Circuit Judge: The City of Oxford, Georgia petitions this court to review the Federal Aviation Administration’s (“FAA”) order approving revisions to the Airport Layout Plan (“ALP”) at the Covington Municipal Airport. The City asserts that the FAA failed adequately to assess the environmental impacts of the airport renovation project proposed in the ALP, as required by the National Environmental Policy Act (“NEPA”), and that the FAA failed to comply with the procedural requirements imposed by the National Historic Preservation Act (“NHPA”) for analyzing the project’s impacts on historic properties. We find that the FAA fulfilled its obligations under NEPA and the NHPA, and therefore deny the petition for review. I. The Covington Municipal Airport is a regional airport located in the City of Cov-ington, Georgia. The airport’s western boundary abuts the city limits of the City of Oxford. Oxford is a small town with a historic district listed on the National Register of Historic Places. The historic district is located a few miles southeast of the airport and contains Oxford College of Emory University. In addition, the United Methodist Church deems the city to be a “Methodist Shrine,” the only city in the United States so designated, and thus considers Oxford to be of historical significance. Covington endeavors to renovate the airport so that it may better serve Covington and the surrounding communities. The proposed renovations accord with the Georgia Aviation - System Plan (“GASP”), which the Georgia Department of Transportation (“GDOT”) promulgated in an effort to respond to Georgia’s current aviation needs. An ostensible goal of the GASP is to provide, within a forty-five minute drive of each Georgia community, an airport capable of landing 95% percent of the business and corporate aircraft fleet. The GASP classifies each Georgia airport as a Level I, Level II or Level III airport. Level III airports aré the most highly developed'airports and are'defined as “general aviation airports of regional significancé capable of accommodating commercial aircraft or a variety of business and corporate jet aircraft.” According to the GASP Executive Summary, published in 2001, “a minimum runway length objective of 5,500 feet has been established [for Level III airports].” The Executive Summary goes on to state that “ideally, operations at Level III airports should also be aided by a precision instrument approach.” Other “objectives” identified by the GASP for Level III airports include a minimum runway width of 100 feet and a 2,500 square foot minimum terminal/administrative building with public restrooms, a conference area and a pilot’s lounge. The Covington Municipal Airport is classified as a Level III airport and has a runway 4,203 feet long and seventy-five feet wide. To meet the GASP objectives, Covington seeks to extend the runway by approximately 1,300 feet and to widen it by twenty-five feet. After this is done, Cov-ington plans to extend the parallel taxiway. The extension and widening of the runway, along with the extension of the parallel taxiway, are the only airport modifications to which funds have been committed. The GDOT is providing 75% of the funding, with Covington providing the additional 25%. Covington sought FAA approval for these modifications, and it hired an independent contractor, Wilbur Smith Associates, to prepare an Environmental Assessment (“EA”) discussing the environmental impacts of the proposed modifications. Wilbur Smith studied four alternatives: extending the eastern end of the runway, extending the western end of the runway, extending both ends of the runway and “no-build.” Its EA concluded that the extension of the eastern end of the runway, which Covington preferred to the other alternatives, would be the least disruptive of the three “build” alternatives. While Wilbur Smith conducted its study, Covington sponsored archaeological and historical surveys to determine whether the project affected sites of historical or archaeological significance. These surveys, which were completed in June 2000, concluded that no historical or archaeological resources would be impacted by the project. In November 2001, the FAA sent a letter to the Historic Preservation Division (“HPD”) of the Georgia Department of Natural Resources asking it to concur with the determination that the project would not affect historic properties. The HPD responded in May 2002; it requested that the FAA consult with the City of Oxford, Emory University, and the North Georgia Conference of Methodist Churches. These parties had written letters and placed telephone calls to the HPD seeking to become “consulting parties.” The FAA held a “special interest” meeting for the City of Oxford, Emory University and the North Georgia Conference of Methodist Churches on July 16, 2002. This meeting came on the heels of Wilbur Smith’s release of the first Draft EA. One week later, on July 23, the FAA held a public hearing at the airport, receiving comments from those in attendance and the City of Oxford. The HPD contacted the FAA in September 2002 to state that it could not comment on the Draft EA and to suggest that Cov-ington revise its noise estimates. Coving-ton followed this suggestion and revised its aviation forecasts through the year 2020. Then, on January 10, 2003, the FAA held a special interest meeting to discuss noise impact. The FAA transmitted the result of Cov-ington’s revised noise analysis to the HPD. The result was that no - historical, residential or other sensitive areas would suffer adverse auditory effects from the project. The HPD responded to the FAA’s transmittal on April 17, 2003, stating that it could not reach a conclusion regarding auditory effects of the project. It suggested that the FAA consult with the United States Advisory Council on Historic Preservation (“ACHP”). The FAA sent a letter to the ACHP on April 30, 2003, requesting that the ACHP defer to the finding that the project would not create any adverse auditory effects. The ACHP responded that the FAA was “free to continue with its review of this undertaking under determination that expansion of Covington’s new runway will have no adverse visual effect, and [that] there will be no noise effects, to historic properties.” On July 8, 2004, the FAA issued a Finding of No Significant Impact (“FONSI”) and Record of Decision (“ROD”), approving Covington’s proposed project. The FONSI concluded that the proposed project would not significantly impact the environment and included a finding of no adverse effect on historic properties. The City of Oxford received copies of the Final EA and the FONSI/ROD on July 21, 2004, and promptly filed the petition for review now before us. In support of its petition, the City of Oxford (the “Petitioner”) contends that the FAA violated NEPA by (1) failing to assess the environmental impacts of the proposed project in conjunction with relocation of Georgia Highway 142 (“S.R.142”) and the construction of a new terminal building; (2) failing to assess the air quality in light of the fact that the airport is located in a county that is not “in attainment” for air quality standards; and (3) exercising insufficient oversight over Wilbur Smith in its preparation of the EA. Petitioner argues that the FAA violated the NHPA by (1) failing properly to involve consulting parties; and (2) failing adequately to consider the project’s adverse auditory effects on historic properties. II. We review an agency’s final decision to determine whether it is arbitrary and capricious. 5 U.S.C. § 706. See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989) (holding that federal courts apply the “arbitrary and capricious” standard, as opposed to the “reasonableness” standard, when reviewing final agency decisions under the Administrative Procedure Act). This standard of review provides the reviewing court with very limited discretion to reverse an agency’s decision. North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir.1990). The reviewing court may not substitute its judgment for that of the agency but must, instead, defer to the agency’s technical expertise. Id. at 1539. In the NEPA context, the reviewing court must ensure that the agency took a “hard look” at the environmental consequences of the project. Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.2002). The agency need not have reached the same conclusion that the reviewing court would reach; the agency must merely have reached a conclusion that rests on a rational basis. Id. The reviewing court may overturn an agency’s decision only if: (1) the decision does not rely on factors that Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise. Id. We therefore review the FONSI/ROD only to determine whether the FAA adequately assessed the project’s impacts in accordance with statutory requirements and reached rational conclusions based on the evidence gathered. A. NEPA imposes procedural requirements upon federal agencies to ensure that they adequately assess the environmental impacts of actions they undertake. 42 U.S.C. § 4332(2)(C). See also Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 2209, 159 L.Ed.2d 60 (2004) (“NEPA imposes only procedural requirements on federal agencies....”); Sierra Club v. U.S. Army Corps. Of Eng’rs, 295 F.3d at 1214 (“NEPA creates a ‘particular bureaucratic decisionmaking process.’ ”) (quoting Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir.1989)). To comply with NEPA, an agency must first prepare an EA. 40 C.F.R. § 1501.4. An EA is a brief document that allows the agency to determine whether to prepare a more detailed statement of environmental consequences, known as an Environmental Impact Statement (“EIS”). 40 C.F.R. § 1508.9. If the agency decides that the environmental consequences of the action are not sufficient to justify the preparation of an BIS, the agency must prepare a FONSI detailing why further environmental research is not justified. 40 C.F.R. § 1501.4(e). 1. NEPA requires a federal agency to analyze the cumulative impacts of a proposed project in conjunction with any other, related actions. 40 C.F.R. § 1508.27. This requirement prevents a proponent from breaking a proposal into small pieces that, when viewed individually, appear insignificant but that are significant when viewed as a whole. 40 C.F.R. § 1508.27(b)(7) (“Significance cannot be avoided by terming an action temporary or breaking it down into small component parts.”). The NEPA regulations define “cumulative impact” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... ” 40 C.F.R. § 1508.7. An agency, therefore, must only consider the environmental impacts of future actions that are foreseeable. The inquiry into whether a future action is foreseeable should be conducted with an eye toward the purposes underlying NEPA. NEPA contains an implicit “rule of reason,” “which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process.” Public Citizen, 541 U.S. at 767, 124 S.Ct. at 2215, 159 L.Ed.2d 60 (2004). This “rule of reason” requires an agency to conduct the NEPA process with a view to the purposes underlying NEPA. See id. NEPA serves two purposes: First, “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Second, it “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Id. at 768, 124 S.Ct. at 2215-16 (alteration in original) (citations omitted) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989)). See also North Buckhead Civic Ass’n, 903 F.2d at 1540 (discussing the . “twin aims” of NEPA). An agency must consider the cumulative impacts of future actions only if doing so would further the informational purposes of NEPA. Restricting cumulative impact analysis to foreseeable future actions ensures that the details of these actions are sufficiently concrete for the agency to gather information useful to itself and the public. a. Petitioner contends that the FAA should have considered the cumulative impacts that would result from the proposed project and the relocation of S.R. 142 because the installation of ground-based navigational aids required for precision instrument approach would necessitate the relocation of the road. At one point, Covington had considered installing navigational aids for the airport to meet the objectives set forth by the GASP. Covington ultimately reached the conclusion that the implementation of precision instrument approach would prove infeasible because it would require the realignment of S.R. 142 and considerable land acquisition through eminent domain. There is simply not enough evidence that the relocation of S.R. 142 will ever occur to justify the assessment of its environmental impacts. In fact, S.R. 142 is currently being widened in its present location. The widening of a road in its current location hardly indicates an intention to thereafter move the road to a new location. If Covington chooses to pursue a precision instrument approach at some point in the future, there is no guarantee that it would require the relocation of S.R. 142. A myriad of possible scenarios could accompany a future decision to implement precision instrument approach. For example, technological innovations, such as Global Positioning System (“GPS”), could allow the airport to be equipped with precision instrument approach in the future without undergoing the same costly steps that are currently necessary. By broadly recommending that Level III airports possess a precision instrument approach, the GDOT in no way bound Covington to relocate a major highway, and it is clear that Covington chose not to pursue this option. If Covington chooses to install precision instrument approach in the future, there is no guarantee that it would necessitate the relocation of S.R. 142. The FAA would have no basis upon which to assess the environmental impacts of such a project, other than pure speculation. Requiring the FAA to assess the impacts associated with the implementation of precision instrument approach would serve no purpose within the NEPA framework. b. Petitioner goes on to argue that the FAA should have considered the cumulative impacts of the proposed project in conjunction with the construction of a new terminal building at the airport. Coving-ton’s Airport Layout Plan Narrative (“ALP Narrative”) identifies the construction of a new terminal building as a “key component in the future development of airport facilities.” The ALP Narrative goes on to note that the terminal building “should have a minimum of about 3000 square feet available.” The ALP Narrative states that the airport currently devotes only 1,960 square feet of space to serve as a terminal. Petitioner fails to show that Covington has prepared a specific plan for constructing a new terminal building. Covington did not seek FAA approval for the construction of a new terminal building as part of its proposed revisions to the ALP. While NEPA regulations aim to prevent proponents from “terming an action temporary or breaking it into small component parts,” 40 C.F.R. §. 1508.27(b)(7), the construction of a new terminal building would be a separate project from the proposed modifications such that it would be completely reasonable to perform the proposed modifications without constructing a new terminal building. See Airport Neighbors Alliance v. United States, 90 F.3d 426, 430 (10th Cir.1996). The only leg on which Petitioner’s argument stands comes in the form of a general statement in the ALP Narrative, identifying a new terminal as a “key component” to the development of the airport, found amidst a laundry list of recommendations which seem to derive directly from the GASP. This statement, standing alone, does not show that the construction of a new terminal building is foreseeable. With no concrete plan to consider and little indication that Covington plans to construct a new terminal building, investigators and researchers would be forced to analyze the environmental impact of a project, the parameters and specifics of which would be a mere guess. This result contravenes the NEPA purposes of providing the agency and the public with accurate and relevant information. The construction of a new terminal building is not a foreseeable action under NEPA. 2. Petitioner claims that the FAA failed to exercise sufficient oversight over Wilbur Smith, the independent contractor that prepared the EA. The NEPA regulations explicitly provide for a situation in which “an agency permits an applicant to prepare an environmental assessment” and require only that the agency “make its own evaluation of the environmental issues and take responsibility for the scope and content of the environmental assessment.” 40 C.F.R. § 1506.5(b). See also C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1571 (11th Cir.1988) (denying petition for review where the FAA based its FONSI on an EA prepared by an independent contractor hired by the project’s proponent). The FAA evaluated and signed the EA, and we refuse to hold the FAA to any higher standard than that required by the NEPA regulations. B. Like NEPA, the NHPA imposes purely procedural requirements. It requires an agency to “take into account” the effect of any “undertaking” on historical sites. 16 U.S.C. § 470f. The first step in the NHPA process involves consultation. The agency begins by consulting with the SHPO. 36 C.F.R. § 800.3(c)(3). In addition, the agency must attempt to involve the public in the process and to identify “consulting parties.” 36 C.F.R. § 800.3(e)-(f). If the agency determines that the undertaking will not affect any historic properties, it must provide documentation of this finding to the consulting parties and the SHPO. 36 C.F:R. § 800.4(d)(1). The agency’s obligations are satisfied if neither the SHPO nor the ACHP, if it has entered the process, objects to the finding within thirty days after receiving the documentation. 36 C.F.R. § 800.4(d)(1)®. If, however, the SHPO or a consulting party notifies the agency of its disagreement with the finding, the agency must either consult with the disagreeing party to resolve the matter or request the ACHP to review the finding. 36 C.F.R. § 800.5(c)(2)®. The ACHP would then provide an opinion as to the finding within fifteen days after receiving the documentation. 36 C.F.R. § 800.5(c)(3)®. Petitioner claims that the FAA failed to abide by the procedural requirements of the NHPA by failing properly to involve consulting parties in the NHPA process. In particular, Petitioner contends that the FAA did not properly inform the consulting parties of the subject matter of the second special interest meeting and prematurely cut off the consultation process. Petitioner, furthermore, contends that the FAA failed to provide it with documentation of the finding of no adverse effect. To support its claim that the FAA im-permissibly “short-circuited” the NHPA consultation requirements, Petitioner offers that the invitation to the second special interest meeting stated the meeting’s purpose as the discussion of revised aviation forecasts and noise contours, rather than the discussion of “historic preservation issues.” The NHPA regulations simply required the FAA to identify consulting parties and invite them to participate in the NHPA process. 36 C.F.R. § 800.3(f). The regulations do not speak to the form and content of written invitations to meetings with consulting parties. Given that the revised aviation forecasts and noise contour studies were conducted for the purpose of NHPA compliance, it should have been obvious to Petitioner that discussions at the meeting would include historic preservation issues. Petitioner also reminds us that it requested an additional special interest meeting, a request which the FAA ignored. Prior to this request, the FAA had held two special interest meetings and a public meeting. The FAA had revised aviation forecasts and conducted noise contour analysis in response to concerns raised by the SHPO and the consulting parties. The FAA properly exercised its discretion in concluding that no further meetings would be useful. Petitioner next claims that the FAA violated the NHPA by failing to provide it with documentation of its finding of no adverse effect. Petitioner seems to operate under the erroneous view that the FAA was required to provide it with all significant written correspondences between the FAA and the SHPO or the ACHP. The FAA was only required to notify consulting parties of its finding of no adverse effect. 36 C.F.R. § 800.4(d)(1). The regulations required the EA and FONSI/ROD to contain this finding. 36 C.F.R. § 800.8(a)(3). The record shows that Petitioner received copies of the Final EA and FONSI/ROD on July 21, 2004. The FAA fulfilled its duty to provide Petitioner with notification of the finding of no adverse effect. Petitioner finally attacks the FAA’s finding of no adverse effect by arguing that the FAA used flawed methodology in assessing noise impacts. The FAA based its noise analysis on revised aviation forecasts prepared during the NHPA consultation process at the behest of the SHPO and the consulting parties. Standard methodology was used to conclude that aircraft operations would not impact any historic properties. The methodology used to make technical determinations, such as noise impact, is a matter of agency expertise. This court’s role is simply to ensure that the agency utilized legally adequate procedures in applying its expertise. We therefore owe particular deference to the FAA’s choice of methodologies with which to analyze noise impacts. See C.A.R.E. Now, Inc., 844 F.2d at 1573. FAA regulations provide a methodology for developing noise contour maps and determining whether aircraft noise will adversely affect surrounding properties. These regulations mandate the use of day-night average sound level (“DNL”) to determine noise impacts. 14 C.F.R. pt. 150.3(b), App. A § A150.3(b). Noise levels below 65 DNL are considered acceptable for all land uses, although “[l]oeal needs or values may dictate further delineation based on local requirements or determinations.” 14 C.F.R. pt. 150, App. A § A150.101(d). Petitioner objects to the FAA’s use of the 65 DNL standard for this project, arguing that a higher standard should apply when historic properties are involved. Petitioner rests this argument on dicta from a D.C. Circuit opinion stating that the 65 DNL threshold might be inappropriate for “a village preserved specifically in order to convey the atmosphere of rural life in an earlier (and presumably quieter) century.” City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1508 (D.C.Cir.1994). Even if we were to find this dicta persuasive, Petitioner offers no evidence that Oxford is preserved specifically in order to portray some historical time period. FAA regulations establish acceptable noise levels while providing for agency discretion to deviate from these standards if circumstances require. 14 C.F.R. pt. 150, App. A § A150.101(d). In this instance, the FAA determined that circumstances did not so require, and we refuse to second-guess that determination. See C.A.R.E. Now, Inc., 844 F.2d at 1573 (finding FAA’s use of 65 DNL threshold to be “legally adequate”). In addition, Petitioner argues that the FAA did not give due consideration to noise deriving from overflights, that is, noise from planes, arriving in and departing from the airport, which fly over Oxford. The FAA took into account all operational activity forecasted at the airport, including flight paths, in determining that Oxford would not suffer from adverse noise impacts. Once again, this court has no discretion to second-guess the FAA’s determination. III. NEPA and the NHPA impose procedural requirements on federal agencies, and it is this court’s role only to ensure that these procedures are followed. In this instance, the FAA followed the correct procedures. The FAA, therefore, did not act in an arbitrary and capricious manner in approving Covington’s proposed project. Petition for review is DENIED. SO ORDERED. . An ALP is a document which shows "[proposals to construct new runways, runway extensions, terminal buildings, or other major and supportive development.” FAA Order 5050.4A ¶ 30(b) (1985). The FAA must approve revisions to the ALP. 49 U.S.C. § 47107(a)(16)(B). The City of Covington sought to obtain FAA approval of its revision to the ALP before it physically modified the airport. See 49 U.S.C. § 47107(a)(16)(C)("[T]he owner or operator will not make or allow any alteration of the airport if the alteration does not comply with the plan the Secretary approves, and the Secretary is of the opinion that the alteration may affect adversely the safety, utility, or efficiency of the airport.”) .49 U.S.C. § 46110(a) grants this court jurisdiction to review final orders of the FAA. This section provides, in relevant part: [A] person disclosing a substantial interest in an order issued by ... the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator ... may apply for review of the order by filing a petition for review ... in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. 49 U.S.C. § 46110(a). The City of Oxford has a substantial interest in the FAA's order because, as indicated in the following text, the City abuts the Covington Municipal Airport. . The airport consists of a runway, a taxiway, a terminal building and 10 automobile parking spaces. . The Level I, Level II and Level III classifications existed before the GDOT promulgated the GASP. The GASP retains this nomenclature and sets objectives regarding the types of facilities that airports in each category should possess. . Precision instrument approach provides accurate lateral and vertical guidance for long, wide runways and permits landings with low visibility. See generally Thomas A. Horne, Precision Approaches: Riding the Rails to 200 and a half in Instrument Insights: Techniques for Precise Flying, AOPA Pilot Magazine, available at http://www.aopa.org/ pilol/features/ii 9805 (last visited Oct. 12, 2005). . In addition to these modifications, Coving-ton sought FAA approval to relocate visual approach descent indicators, install an Airport Weather Observation System, relocate the runway protection zone, re-grade runway safety areas and install a Medium Intensity Approach Lighting System. . The no-build alternative was that the project would not go forward. . The EA stated that extending the eastern end of the runway would “not result in any significant environmental impacts.” It concluded that the two other “build” alternatives would, on the other hand, “result in significant socioeconomic impacts” and would "conflict with the land use plan for Oxford.” . The HPD is Georgia's State Historic Preservation Officer ("SHPO”). . The ACHP prefaced its response by claiming that it had "no authority to overturn an agency’s finding of no effect or no adverse effect.” It based this conclusion on a September 19, 2001, decision by the U.S. District Court for the District of Columbia, which invalidated certain NHPA regulations. See Nat'l Mining Ass’n v. Slater, 167 F.Supp.2d 265 (D.D.C.2001), rev’d, Nat’l Mining Ass’n v. Fowler, 324 F.3d 752 (D.C.Cir.2003). The ACHP concurred, however, with the standards the FAA used in assessing noise impacts. . Petitioner contends that the FONSI did not contain an adequate air quality assessment because the assessment was based on the assumption that Newton county, the county in which the airport is located, was "in attainment” for air quality. Petitioner points out that Newton County is no longer in attainment; thus, it argues, the FAA erred in indulging that presumption. Petitioner admits, however, that the FAA actually reassessed the project's impacts on air quality. Given this admission, the issue is moot and will not be further addressed. .The Administrative Procedure Act provides, in relevant part: The reviewing court shall ... (2) hold unlawful and set aside agency action, findings and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.... 5 U.S.C. § 706. . § 102(2)(C) of NEPA provides, in relevant part: (2) [A]ll agencies of the Federal Government shall ... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action.... 42 U.S.C. § 4332(2)(c). This requirement applies when an agency approves a specific project, such as the one in this case. 40 C.F.R. § 1508.18. . The NEPA regulations provide: "Environmental assessment”: (a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.... (b) Shall include brief discussions of the need for the proposal, of alternatives , of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. 40 C.F.R. § 1508.9. . The NEPA regulations provide: " 'Finding of no significant impact’ means a document by a Federal agency briefly presenting the reasons why an action ... will not have a significant effect on the human environment. ...” 40 C.F.R. § 1508.13. . The NEPA regulations provide: "Significantly” as used in NEPA requires considerations of both context and intensity: (b) ... The following should be used in evaluating intensity: (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. 40 C.F.R. § 1508.27. . In addition, the city determined that the runway's sloping terrain would make the installation of the navigational aids impracticable. . GPS is a satellite based navigational system. It works through a receiver that decodes information from a series of satellites. This information allows the receiver to measure the distance between it and the satellites and, thus, to determine its latitude, longitude and height. See Generally Richard B. Langley, In Simple Terns, How Does GPS Work? (Mar. 27, 2003), available at http://gge.unb. ca/ Resources/HowDoes GPSWork.html (last visited Aug. 26, 2005). Covington expected that, at some point, GPS technology would allow airports to provide precision instrument approach without installing costly ground-based navigational aids. As of the time the EA was prepared, GPS technology had not progressed to the point that it could be used for general aviation airports. The EA does note, however, that "precision GPS approach will be implemented [for Covington Municipal Airport] at a later date if it is found to be feasible.” . The title page to this document states that it is the "Airport Layout Plan Narrative.” In the document itself, it is referred to as the "Airport Layout Plan Update.” Regardless of what it is called, it is not the ALP which the FAA has approved. Rather, it is a narrative attached to the draft ALP submitted to the FAA by Covington. See FAA Airports Division for the Southern Region, Airport Layout Plan (ALP) Review and Approval: A Guide for ADO Program Managers § VIII.B.l (discussing the circumstances in which "[a] Narrative Report should be submitted along with the draft ALP”). . According to the GASP objectives, Level III airports should contain a terminal/administrative building of at least 2,500 square feet. There is no explanation offered in the ALP Narrative for the 500 square foot discrepancy between the GASP objective and the ALP Narrative recommendation. . The EA notes that the airport contains a 20,000 square foot terminal/administrative building. We assume this to be a typographical error and that the drafter of the EA intended to state that the airport contains a 2000 square foot terminal building. . In Airport Neighbors Alliance, the 10th Circuit held that "the test for determining whether particular actions could be considered cumulative impacts of the proposed action [is] whether the actions were 'so interdependent that it would be unwise or irrational to complete one without the others.’ ” 90 F.3d at 430 (quoting Webb v. Gorsuch, 699 F.2d 157, 161 (4th Cir.1983)). In addition to quoting Webb, the Tenth Circuit cited Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.1976) and Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.1974), both of which were also cited in Webb. Froehlke and Trout Unlimited, however, were decided prior to the promulgation of the NEPA regulations, which were first issued in 1978, and are therefore persuasive only to the extent that they do not conflict with the regulations. The regulations ask whether future actions are foreseeable, not whether they are interdependent. The standard adopted in Airport Neighbors Alliance, therefore, cannot be the proper standard. While interdependent actions may also be foreseeable, we must be faithful to the text of the regulations by not assuming that interdependency is the sole consideration in determining whether an action is foreseeable. The determination of whether a future action is foreseéable turns on the specific facts of the case. The interdependence of proposed actions with potential future actions should be considered alongside other pertinent facts and circumstances to determine whether there is a sufficient likelihood that an action will occur to render that action foreseeable. See Society Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 181-82 (3rd Cir.2000) (“[A] court must also consider the likelihood that a given project will be constructed along with the interdependence of other projects.”). . If, in time, Covington seeks FAA approval to revise its ALP to show a proposed plan to construct a new terminal building, the FAA may then be required to analyze the cumulative impacts of that project in conjunction with the project currently at issue. See 40 C.F.R. § 1508.7 (" 'Cumulative impact’ is the impact on the environment which results from the incremental impact of the action when added to other past ... actions... Until then, environmental analysis would be premature. . The NHPA provides, in relevant part: [T]he head of any Federal department ... having authority to license any undertaking shall, ... prior to the issuance of any license, ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. 16 U.S.C. § 470f. The NHPA regulations define "undertaking” as "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including ... those requiring a Federal permit, license or approval.” 36 C.F.R. § 800.16(y). .The NHPA regulations provide that "[t]he agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO ... determine which should be consulting parties.” 36 C.F.R. §, 800.3(f)(3). . The NHPA regulations specifically provide for the situation in which an agency must undertake both the NEPA and the NHPA process. The agency is required to include historic preservation issues in the EA and FONSI/ROD and to otherwise satisfy the requirements of the NHPA. 36 C.F.R. § 800.8. . The agency's obligations would be satisfied if the ACHP failed to respond within the 15-day time period. 36 C.F.R. § 800.5(c)(3)(i). . FAA regulations establish "uniform methodology" for assessing airport noise impact. 14 C.F.R. pt. 150, App. A § A150.1. . FAA regulations define DNL as "the 24-hour average sound level, in decibels, for the period from midnight to midnight, obtained after the addition of ten decibels to sound levels for the periods between midnight and 7 a.m., and between 10 p.m., and midnight, local time.” 14 C.F.R. § 150.7. . In upholding the FAA's application of the 65 DNL standard to historic properties, the D.C. Circuit goes on to note: There is no reason, however, to believe that the use standard applicable to a private home is inapposite merely because the home is historic. Therefore, we uphold in all respects the noise measurement methodology that the FAA used in this case. City of Grapevine, 17 F.3d at 1508. The FAA is not required to deviate from the DNL standard it normally uses to assess noise impacts merely because a home or, in this case, a town is deemed historic. . The FAA found that the extension of the runway would actually improve noise conditions in surrounding areas.

Nevel v. Village of Schaumburg

HARLINGTON WOOD, JR., Circuit Judge. This dispute stems from Marty and Laura Nevel’s desire to install vinyl siding on a home they own which is located at 311 Lexington Court within the Village of Schaumburg, Illinois (“the Property”). Because the Property had been designated as a historic landmark, appellees, which include the Village of Schaumburg (“the Village”) and various Village officials, denied the Nevels’ request to install the vinyl siding and revoked a building permit that had been obtained by the Nevels’ siding contractor. Instead of challenging appel-lees’ actions in state court, the Nevels elected to file a three-count federal suit, which alleged a claim for denial of equal protection along with two state law claims. The district court granted summary judgment in favor of appellees on the equal protection claim and one of the state law claims and then declined to exercise jurisdiction over the remaining state law claim. The Nevels appeal. BACKGROUND The Property, known as the Kern-Schmidt mansion, was a large home built in 1930. The Nevels purchased the Property at an auction in March 1999. The Property’s previous owner, Girard Kretz-schmar, had owned the Property since February 1997. On December 9, 1997, the Village enacted an ordinance designating the Property as a historic landmark (“the designation ordinance”). Under Village of Schaumburg Ordinance § 31.136(A)(2), prior to enacting a designation ordinance, The Commission shall notify the owner of such property of the proposed designation. The Commission shall schedule a public hearing on the question of the proposed designation, setting forth a date, time and place and causing written notice to be given to the owner or any person having a legal or equitable interest in said property being proposed for designation. In preparation for the hearing on the Property, the Village sent the requisite notice to neighboring property owners; however, instead of notifying Kretzschmar, the Village sent certified mail notice to Alison Schmidt France, who had owned the property prior to Kretzschmar. The Village also published notice of the hearing in a local newspaper. It is undisputed that the Village failed to serve Kretzschmar with notice of its intent to designate the Property as a historic landmark or to notify him of the public hearing on the matter. In fact, Kretzschmar only learned of the designation ordinance after it had been enacted by reading about it in the newspaper. The landmark designation was, however, properly recorded with the Cook County Recorder of Deeds. Once a property is designated a historic landmark, Village of Schaumburg Ordinance § 31.137 makes it unlawful for any person to construct, move, alter, change, make addition to, make any improvement to, add structures or buildings on a lot or tract with a designated historical landmark, demolish or remove the exterior or any aspect of the exterior of any designated historic landmark, unless the village has previously authorized such work. Despite these restrictions, there is nothing in the record to indicate that Kretzsehmar did anything to challenge the historical designation of the Property once he became aware of it. When the Nevels purchased the Property, they were aware that it had historical significance, but they claim they were unaware of its historic landmark designation. Additionally, the Nevels’ title insurer did not discover the properly recorded landmark designation in its investigation prior to issuing its title insurance policy to the Nevels. At the time the Nevels purchased the Property, it had wood siding. In April 1999, Marty Nevel told Village Senior Planner Timothy Teddy that he was considering covering the Property’s exterior with a stucco material known as “dryvit” to eliminate a lead paint hazard connected with the wood siding. According to the Nevels, Teddy recommended against the dryvit and instead suggested that the Nev-els use either aluminum or vinyl siding. The Nevels further assert that Teddy told Marty Nevel to obtain building permits from the Village when he was ready to begin the project but said nothing about the Property’s historic landmark status. The Nevels determined that it would cost $157,000 to install vinyl siding on the Property compared to $250,000 to replace the existing siding with new wood. The Nevels decided to use vinyl siding and, in August 1999, hired a contractor, Nu-Concepts, Incorporated, to do the job. The Nevels then spent over $125,000 for siding materials, and Nu-Concepts performed preparatory work on the Property. The Nevels assert that Marty Nevel spoke with Teddy about the siding again at the end of August 1999 and contend that Teddy again told him to apply to the Village for building permits, but did not mention the Property’s landmark status. On September 16, 1999, Village Planner Frank Robbins called Marty Nevel at his office and inquired about the Nevels’ plans for the Property. Robbins informed Marty of the Property’s status as a historic landmark and told Marty that the installation of vinyl siding would require approval by the Village following a recommendation by the Olde Schaumburg Centre Commission (“the Commission”). That same day, Marty Nevel sent a letter to Robbins requesting approval to install vinyl siding. Robbins also sent Marty Nevel a letter dated September 16th, as a follow-up to the telephone conversation. After receiving Robbins’ letter, Marty Nevel understood that he would need to appear before the Commission to seek approval for the siding. On September 17, 1999, Nu-Concepts applied for and obtained a building permit from the Village to install vinyl siding on the Property. The Nevels assert that, at the time the permit was issued, Nu-Concepts was not aware of Marty Nevel’s contacts with Robbins, and the Nevels did not know Nu-Concepts was applying for a-permit. The permit was issued by a secretary in the Building and Code Enforcement Department for the Village. The secretary followed normal procedure in issuing the permit, checking only to see if Nu-Concepts was licensed and bonded. The secretary did not know that the Property was a designated landmark, and the permit process did not require her to ask the applicant whether the proposed work was being performed on a designated landmark. With the permit in hand, Nu-Concepts began to install the vinyl siding. It is unclear from the record when the Nevels found out that work had begun. Approximately two to three weeks after installation had begun, Marty Nevel informed Nu-Concepts that the Commission was going to hold a hearing to determine what, if any, restrictions applied to the exterior of the Property. Marty Nevel did not ask Nu-Concepts to stop working until the Commission’s determination was made, and the installation continued. On October 3, 1999, Robbins sent a letter to Marty Nevel, advising him that the Nevels’ request would be considered at the Commission’s October 21, 1999 meeting. Robbins stated that the Commission’s staff was going to recommend that the Commission either deny the request for vinyl siding or revoke “the landmark status of the property as altered with the vinyl siding” based on the fact that “preservation authorities generally concur that vinyl siding should not be applied to landmark buildings.” On October 14, 1999, Teddy issued a report on behalf of the Commission’s staff. Teddy’s report indicated that the Nevels were requesting either approval to install vinyl siding or revocation of the Property’s historic landmark designation which would remove the architectural controls placed on the Property. Teddy recommended that the Commission deny both requests. Robbins signed off on Teddy’s report. The Nevels were unable to attend the Commission’s October 21st meeting, so a subsequent meeting was set for November 4, 1999. On October 27, 1999, employees of the Village’s Building and Code Enforcement Department posted a stop work order on the Property. The Village, however, did not revoke the September 17th building permit before posting this stop work order. By this time, Nu-Concépts had installed vinyl siding on a portion of the Property’s exterior. At the November 4th Commission meeting, the Nevels requested either a variance allowing the use of vinyl siding or that the Property’s landmark status be removed. Marty Nevel stated his goal was not to remove the landmark status; however, he added that he and his wife wanted to remodel rather than restore the' Property The Nevels were planning on using the Property as their private residence and were funding the project personally and not pursuing any tax credits, and therefore, the landmark status did not matter to them. At the conclusion of the November 4th meeting, the Commission voted unanimously to recommend the denial of both the request to remove the landmark status and the request to allow vinyl siding. This recommendation was conveyed to the Village Board. The Village Board discussed the Nevels’ requests in a meeting held November 9,1999. The Board unanimously voted to deny the request to revoke the Property’s historical landmark designation. The Board then denied the Nevels’ request to allow vinyl siding by a four to three vote. Following the November 9th meeting, the Nevels, after consulting with their attorney, resumed the installation of vinyl siding, relying on the September 17th building permit that had not been revoked. Work continued until December 20, 1999, at which point eighty-five percent of the siding had been completed. On December 20th, employees from the Building and Code Enforcement Department again posted a stop work order on the Property. The Building and Code Enforcement Department also issued and served citations to Marty Nevel and Nu-Concepts for failure to obey a stop work order. Village Police ordered Nu-Concepts employees to leave the Property immediately or face arrest. The Village then suspended Nu-Concepts? business license. After December 20th, Village Police patrolled the Property with instructions to arrest anyone caught working on the siding. Neis Hornstrom, the Director of Building and Code Enforcement for the Village, wrote Marty Nevel a letter dated December 20, 1999 in which he stated that because the stop work order had been ignored, no certificate of occupancy would be issued for the Property. Hornstrom stated that he had requested that water and sewer services not be authorized for the Property and that he would inform other utility companies that no utility services could be begun. Hornstrom closed by informing Marty Nevel that as the property owner he was responsible for removing any of the siding that had been placed illegally. On January 4, 2000, Marty Nevel was served with additional citations for making nonconforming alterations to a historic landmark and for performing work without a building permit. Trial on all of the citations began on February 10, 2000 before a Cook County Circuit Judge. Following two days of trial, at the close of the Village’s case-in-chief, the judge granted a directed verdict against the Village on all of the citations, stating that no evidence had been presented to show any misrepresentation in obtaining the September 17th building permit and that under Village ordinance, the Village was required to revoke the building permit before it could attempt to enforce a stop work order. On February 16, 2000, Hornstrom sent the Nevels a letter which purported to revoke the permit based on a misrepresentation of material fact in the application. In March 2000, the Village refused to replace a broken water meter at the Property until the Nevels signed an acknowledgment which stated, “The issuance of this permit does not in any way waive the requirement that all exterior work conform to the prior decision of the Village Board with respect to the use of vinyl siding and stucco.” Several Village officials also made comments to the press about the controversy, stating that in their opinions, the focus of the dispute had shifted from vinyl siding to what they perceived to be the Nevels’ complete disregard for the law and the Village Board’s decisions. On May 16, 2000, the Nevels filed a three-count complaint against appellees in the United States District Court for the Northern District of Illinois. The complaint alleged that the historical landmark designation ordinance dealing with the Property was void ab initio based on the Village’s failure to give requisite' notice prior to its enactment (Count I), that the revocation of the September 17th building permit was illegal as a matter of state law (Count II), and an equal protection violation under 42 U.S.C. § 1983 (Count III). The district court granted summary judgment in favor of appellees on Counts I and III. The district judge then declined to exercise jurisdiction over Count II’s state law claim, entering judgment in favor of appellees on Counts I and III and dismissing Count II for lack of subject matter jurisdiction. The Nevels filed this timely appeal, challenging the district court’s grant of summary judgment in favor of appellees on Counts I and III. ANALYSIS We review the district court’s grant of summary judgment de novo, viewing all of the facts and drawing all reasonable inferences in favor of the nonmoving party, here the Nevels. See Purze v. Village of Winthrop Harbor, 286 F.3d 452, 454 (7th Cir.2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A. Validity of Historic Landmark Designation Ordinance The Nevels contend that the designation ordinance enacted by the Village on December 9, 1997 was void ab initio because the Village failed to give Kretz-schmar proper notice before enacting the ordinance. The Nevels assert that this lack of notice violated (1) Village ordinance, (2) state law, and (3) the due process clause of the United States Constitution. Under Illinois law, [a] court cannot handle matters which in effect are attempts to overrule decisions of a legislative body based upon alleged failure to follow requirements imposed by the body on itself.... We have authority to invalidate legislation ... only upon grounds that the enactment violates a provision of the Federal or State constitutions or violates the mandate of a State or Federal statute. City of Elgin v. County of Cook, 169 Ill.2d 53, 214 Ill.Dec. 168, 660 N.E.2d 875, 881 (1995) (internal quotations and citations omitted). In the present case, the Nevels cannot show a violation of state or federal law. Any due process violation that may have occurred affected Kretzschmar’s rights, not those of the Nevels. The Nev-els lack standing to raise a claim based on the due process rights of a third party. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Furthermore, the enactment of the designation ordinance did not violate any Illinois statute. The Nevels contend that the notice provisions of Village of Schaumburg Ordinance § 31.136 are mandated by § 11-48.2-4 of the Historic Preservation Division of the Illinois Municipal Code, 65 ILL. COMP. STAT. 5/11-48.2-4. Section 11-48.2-4 provides, in relevant part: No action taken by the municipality under this section directing a private owner to do or refrain from doing any specific thing, or refusing to permit a private owner to do some specific thing he desires to do, in connection with property designated by ordinance hereunder, shall be taken by the municipality except after due notice to such owner and opportunity for him to be heard at a public hearing. Appellees contend, and the district court held, that § 11-48.2-4 is superceded by the later ordinance enacted under the Village’s home rule power. The Nevels assert that § 11-48.2-4 applies concurrently with regulations established by home rule municipalities. Section 11-48.2-4 does not expressly address its applicability to home rule units. The Nevels rely on Patrick Media Group, Inc. v. Ad-Ex, Inc., 240 Ill.App.3d 487, 181 Ill.Dec. 354, 608 N.E.2d 427 (1992), in which the Illinois Appellate Court held that, absent a clear statement negating the state’s concurrent regulation, zoning provisions of the Illinois Municipal Code which were amended and reenacted after the effective date of the Illinois Constitution of 1970 applied to home rule units. This ruling was based on the fact that the Illinois Constitution of 1970 “allows home rule units to exercise powers concurrently with the State to the extent that the legislature does not impose limitations on such concurrently exercised powers or declares the State’s exercise to be exclusive.” Id. at 429. The Nevels contend that under Patrick Media Group, § 11-48.2-4 obligated the Village to enact and comply with the notice provisions set out in Village Ordinance § 31.136(A)(2). However, even assuming § 11-48.2-4 applies concurrently with the Village’s home rule power, the Nevels fail to show a violation of state law. Section 11-48.2-4 requires “due notice” to the property owner. The Nevels cite no cases and cannot point to anything in the statute to support their contention that due notice under § 11— 48.2-4 requires personal, written notice. In the present case, it is undisputed that the Village gave notice by publication prior to enacting the designation ordinance. The Nevels fail to show that this is insufficient under § 11-48.2-4; therefore, then-claim that the designation ordinance is void because it was enacted in violation of state law fails. We turn now to the Nevels’ contention that under In re Application of the County Collector of Kane County, 132 Ill.2d 64, 138 Ill.Dec. 138, 547 N.E.2d 107 (1989) (“County Collector”), the designation ordinance should be invalidated because, in enacting it, the Village failed to comply with a “mandatory” ordinance provision. The present case, however, is distinguishable from County Collector. In County Collector, the Illinois Supreme Court invalidated a municipal ordinance for failure to comply with publication and time-lapse provisions created by municipal ordinance, based on a finding that those provisions were mandatory. Id. at 112. The ordinance at issue in County Collector expressly stated that it would not become effective until “after ... publication and lapse of time prescribed by law.” Id. at 110. The applicable law was a municipal ordinance which set out the options for publication and provided, “no ... ordinance shall take effect until ten (10) days after it is so published.” Id. Despite this statement, the “ordinance was not published nor was any lapse of time observed.” Id. The court held that the failure to comply with the publication and time-lapse provisions rendered the ordinance ineffective based on the express statement in the ordinance that it would not become effective until after these provisions were fulfilled. Id. In the present case, while § 31.136(A)(2) provides, “[t]he Commission shall notify the owner ... of the proposed designation,” it does not state that the ordinance will not take effect until such notice is given. Therefore, assuming County Collector creates a mandatory ordinance provision exception to the general rule that an ordinance may only be invalidated if it violates federal or state law, the notice provisions in the present case cannot be considered mandatory under County Collector. The Nevels’ contention that the designation ordinance was void based on the Village’s failure to comply with a mandatory ordinance provision fails. While it is undisputed that the Village failed to comply with its own procedural ordinances, this failure is insufficient under Illinois law to justify invalidation of the designation ordinance. The Nevels’ attempts to invalidate the designation ordinance based on an alleged violation of Kretzschmar’s due process rights also fails. The district court correctly granted summary judgment in favor of appellees on Count I. B. Equal Protection Claim In Count III of their complaint, the Nevels claimed that appellees violated their constitutional right to equal protection of the laws by denying their request to install vinyl siding, issuing a stop work order without first revoking the building permit, revoking the building permit following the state court decision, refusing to issue a permit for a burglar alarm, and refusing to install a new water meter. As a result of these alleged violations, the Nevels sought to recover actual and punitive damages and attorney’s fees pursuant to 42 U.S.C. § 1983. The Nevels are proceeding under a “class of one” equal protection theory as recognized by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In order to succeed under such a theory, the Nevels must show that they were (1) “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment” or (2) “that the government is treating unequally those individuals who are prima facie identical in all relevant respects, and that the cause of the differential treatment is a ‘totally illegitimate animus toward the plaintiff by the defendant.” ’ Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.2001) (citations omitted). Under the second approach, if the government would have taken the action anyway, the animus will not condemn the action. Id. “HI will must be the sole cause of the complained-of action.” Id. With respect to their request to install siding, the Nevels assert that they were treated less favorably than the owners of two similarly situated buddings who were allowed to install vinyl or steel siding. First, the Nevels point to a single family residence which was not a designated historic landmark but which was located within the Olde Schaumburg Centre District, an area in which alteration of building exteriors can be done only with approval of the Village Board after recommendation by the Commission. This property known as the “Carroll house” was sided with vinyl siding in 1982. Property owner Jo Ann Carroll filed an affidavit stating that prior to the installation of the siding, she and her husband obtained a building permit from the Village but did not obtain permission from the Commission or the Village Board to install the siding. According to Carroll’s affidavit, at no time has the Village either required the Carrolls to obtain approval for the siding or requested that the siding be removed. The Nevels next point to a Village-owned building known as “The Barn” which is a designated historic landmark that is used for civic activities. The Barn is located on a two-and-a-half acre plot outside of the Olde Schaumburg Centre District. In 1990, the exterior of the Barn posed a lead paint hazard, and the Village resided the Barn with steel siding after the Commission recommended approving the installation of siding. We will assume there is a triable issue as to whether these two properties are similarly situated, although it is fairly clear that the Carroll house is not. The Nevels attempt to proceed under a totally illegitimate animus theory, alleging that, absent personal animus toward them, the Village would have granted their request to install vinyl siding. The Nevels contend that the Village denied their request not based on historic preservation considerations but rather to punish them for beginning construction ' prematurely. As evidence in support of their' position, the Nevels point to comments made by several of the Village Trustees at and after the November 9th meeting. These statements range from Trustee Marge Connelly’s comment in voting against the Nevels’ request for siding that it was clear to her that Marty Nevel was aware he needed to get approval but proceeded with the siding before obtaining that approval to Trustee Pat Riley’s comments to the press in early 2000 that Marty Nevel was “a guy who decided to violate the law” and “[n]owhere in this country should the reward for violating a village ordinance or law be a pat on the back, a sly wink and ‘Go ahead.’ ” Under the totally illegitimate animus approach, a plaintiff must show that the government action “ ‘was a spiteful effort to ‘get’ him for reasons wholly unrelated to any legitimate state objective.’ ” Albiero, 246 F.3d at 932 (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.1995)). In the present case, the Village Board has a legitimate interest in ensuring that its rules and regulations are upheld. Even if it could be shown that the Board denied the Nevels’ request in order to punish them for beginning work on the siding before receiving the requisite approval, this would not constitute a totally illegitimate animus. The Nevels cannot show an equal protection violation based on the Village’s denial of their request to install vinyl siding. Turning to the other alleged violations— issuing a stop work order without first revoking the building permit, revoking the building permit following the state court decision, refusing to issue a permit for a burglar alarm, and refusing to‘ install a new water- meter — the Nevels fail to point to any similarly situated property owners who were treated more favorably by appel-lees than they were. In their brief on appeal, the Nevels make no comparisons whatsoever; instead choosing to rely on the fact that appellee Hornstrom in his affidavit mentioned no examples of cases in which he acted as he allegedly did in the present case. The Nevels, however, have the burden of proof, and after being confronted with a motion for summary judgment, they had the responsibility of taking reasonable steps to provide evidence to create a genuine issue of material fact on the Issue. Albiero, 246 F.3d at 933. “ ‘[A] complete failure of proof concerning an essential element of the [nonmovant’s] case necessarily renders all other facts immaterial.’ ” Purze, 286 F.3d at 454 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Therefore, the district court correctly granted summary judgment in favor of appellees on the Nevels’ equal protection claim. CONCLUSION For the reasons set forth above, the decision of the district court is AffiRmed. . Kretzschmar received title to the property-through a Trustee's Deed which was recorded with the Cook County Recorder on February 26, 1997. . The Commission is the Olde Schaumburg Centre Commission, a thirteen-member panel designed to advise the Village Board of Trustees on matters relating to historic preservation. .The Village asserts that at the time the notice was sent France was designated in township records as the owner of the Property. . Home rule power was created by the Illinois Constitution of 1970, article VII, section 6(a) which provides, "Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare

Brehmer v. Planning Board of the Town of Wellfleet

STAHL, Circuit Judge. A group of citizens from Wellfleet, Massachusetts, seeking to undo their town Planning Board’s award of a special zoning permit authorizing construction of a wireless telecommunications tower in the steeple of an historic church, sued the Planning Board and the permit recipient, Omnipoint Communications, Inc. The citizens’ group claimed that the issuance of the permit, an action that the Planning Board was obliged to perform under a consent judgment for its earlier violation of the federal Telecommunications Act (“TCA” or “Act”), was unlawful because it failed to follow the procedural strictures of Massachusetts zoning law. The district court disagreed and granted defendants’ motion for summary judgment, finding that the permit had been properly issued and that plaintiffs had not demonstrated standing under Massachusetts law. The plaintiffs below appeal from that judgment. We affirm. I. Background In May 1998, Omnipoint submitted a formal application to the Planning Board of Wellfleet, Massachusetts (“Planning Board” or “Board”) for a special permit to install wireless telecommunications equipment inside the steeple of the First Congregational Church of Wellfleet. This location was suggested by the Planning Board during initial consultations as an alternative to the nearby site that Omni-point had initially proposed, and was worked out with the church’s trustees in a site-lease agreement. After the formal request was submitted, the Planning Board held four hearings on the issue. During the pendency of the permit application, however, a measure of public opposition grew to the plan to locate the equipment inside the church steeple. At the final hearing on October 5, 1998, the Planning Board put the permit application to a vote. Although the five members of the Board unanimously concluded that Omnipoint had satisfied all criteria of the town’s zoning bylaws, three members nonetheless voted against issuance of the permit. Two of the three Planning Board members voting “no” explained in written statements that their decisions were largely based on concerns about the potential health effects of the telecommunications facility. On November 4, 1998, Omnipoint sued the Planning Board in federal district court under 47 U.S.C. § 332(c)(7)(B)(v) as a party “adversely affected by a[] final action ... by a State or local government” acting to regulate personal wireless service facilities. It contended that the Board impermissibly relied on the potential environmental effects of the telecommunications tower as a reason for rejecting the permit application under the TCA. See id. § 332(c)(7)(B)(iv) (prohibiting state and local governments from regulating wireless telecommunications facilities “on the basis of the environmental effects of radio frequency emissions” provided that those facilities comply with pertinent federal regulations). Omnipoint also sought damages arising from the permit denial under 42 U.S.C. § 1983. Soon thereafter, Omni-point and the Planning Board entered into publicly disclosed settlement negotiations. The parties eventually settled their differences, with Omnipoint agreeing to abandon its claim for damages, to perform environmental testing on the telecommunications equipment, and to place warning signs in the vicinity of the site, in consideration of the Planning Board’s pledge to issue the previously withheld special permit. This agreement was memorialized in a consent judgment entered by the district court on February 5, 1999. On March 24, 1999, the Planning Board issued the special permit as promised. Dissatisfied with this course of events, a group of Wellfleet citizens sued the Planning Board and Omnipoint in Barnstable Superior Court on April 14, 1999, seeking to have the federal consent judgment set aside as unlawful. Plaintiffs contended that the Planning Board, in issuing the special permit pursuant to the consent agreement, violated state zoning law by granting a previously denied special permit in the absence of public notice and hearing. Mass. Gen. Laws ch. 40A, §§ 9, 11. Plaintiffs also claimed that Omnipoint had violated sundry provisions of Well-fleet’s zoning regulations, and had disregarded procedures mandated by the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4335, and Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 47Qf. Omnipoint successfully removed the case to federal district court based on the substantial issues of federal law implicated by plaintiffs’ complaint, i.e., the preemptive effect of the TCA and the validity of the consent judgment that had been issued by the district court. See City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 164, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). By May 24,1999, Omnipoint had secured the historic-preservation and building permits that it needed to begin construction of the tower. Within hours of commencing work on the project on June 2, however, an emergency motion for a temporary restraining order was filed by the Wellfleet citizens’ group. On June 4, the district court granted the TRO conditioned on plaintiffs’ posting of a $50,000 bond. The TRO blocked further work'on the installation until the hearing on plaintiffs’ motion for a preliminary injunction in the zoning suit, scheduled to occur one week later. Because plaintiffs failed to meet the $50,000 bond requirement imposed by the court, the TRO automatically expired. This left Omnipoint free to construct the telecommunications facility in the church steeple, a task it completed within one week. On June 11, 1999, the district court denied plaintiffs’ motion for a preliminary injunction and invited the parties’ motions for summary judgment. At a subsequent hearing on August 4, 1999, the district court informed the parties that it would grant Omnipoint’s motion for summary judgment. In so ruling, the court reasoned that plaintiffs had not established their status as “aggrieved persons” under Massachusetts law, and hence had no standing to bring suit. Alternately, the district court held that Massachusetts zoning law did not provide relief to plaintiffs under these circumstances. The court found that since the Planning Board had acknowledged that its earlier denial of the special permit violated the TCA, “it would be inappropriate and, in fact, a waste of time and energy to order a Planning Board to reconvene a process when the appropriate remedy for a violation of the TCA, in fact, is injunctive relief by way of a written order such as the relief given by this Court.” On appeal, the Wellfleet citizens’ group renews its objections to the procedure by which the special permit was awarded to Omnipoint. Appellants claim that the Planning Board, subsequent to its acknowledged contravention of the TCA, should not have simply awarded the permit, but was instead required by Massachusetts zoning law to convene further public hearings in order to allow for the presentation of additional evidence and the opportunity to vote anew on the permit application. Going one step further, appellants contend that nothing in the TCA requires that Massachusetts zoning law be disregarded in instances where a town planning board’s decision to deny a special zoning permit is determined to have violated the TCA. Appellants also raise a host of other issues, including the significance of Omnipoint’s separate entities in the permit-award process and the permissibility of the special permit under federal environmental and historic-preservation laws. II. Special Permit Issuance Procedure Appellants’ principal contention is that the Wellfleet Planning Board acted outside the scope of its authority in issuing the special permit to Omnipoint pursuant to its negotiated settlement, rather than according to the procedures prescribed by state zoning law. Their brief cites extensively to Massachusetts cases holding that a planning board’s decision to grant an application for a previously denied special permit is invalid if it was not preceded by a fresh round of public notice and hearing. We review the district court’s grant of summary judgment de novo, and draw factual inferences in the light most favorable to appellants. Town of Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir.1999). We start from the uncontroverted premise that the Planning Board violated the TCA when it rejected the initial special-permit request based on the potential health risks posed by the telecommunications equipment, in spite of its acknowledgment that Omnipoint had satisfied all criteria of Wellfleet’s zoning bylaws. The Board essentially admitted as much when it entered into a negotiated settlement with Omnipoint and agreed to issue, without further process, a permit it had already denied. Because the TCA does not expressly state the remedy to be ordered for violations of its substantive provisions, the district court, in ruling on the Wellfleet citizens’ suit, could have either endorsed the Planning Board’s direct issuance of the permit, or required that the Board hold further hearings on the matter. In ratifying the settlement agreement, the district court chose the course followed by the majority of courts in comparable situations: awarding injunctive relief in the form of an order requiring that the wrongfully withheld permit issue. See, e.g., Cel lular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir.1999) (collecting cases). Several factors ■ counsel the adoption of this approach. First and foremost, the TCA provision that provides a cause of action in this setting places a premium on the speedy resolution of such proceedings, directing district courts to “hear and decide such action[s] on an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v); see also Town of Amherst, 173 F.3d at 17 n. 8 (“Congress made clear [in § 332(c)(7)(B)(v) ] that it expected expeditious resolution both by the local [zoning] authorities and by courts called upon to enforce the federal limitations [under the TCA].”). An award of injunctive relief, rather than a remand for further proceedings, best fulfills this statutory goal. Town of Oyster Bay, 166 F.3d at 497. Second, in cases such as this one, where a planning board knows to a relatively high degree of certainty that its earlier denial of a special permit is viola-tive of the TCA, it is not unreasonable for the board to settle with the applicant on the terms most favorable to the town rather than to engage in litigation doomed from the start. As we have previously noted, such settlements are fully consistent with the TCA’s aims. See Town of Amherst, 173 F.3d at 17 (“[I]t is in the common interest of [planning boards] and [telecommunications providers] to find ways to permit the siting of towers in a way most congenial to local zoning.”). Requiring further hearings for the sole purpose of revisiting the underlying validity of the permit application would complicate the settlement process and delay the ultimate resolution of the zoning dispute. Finally, appellants have identified no practical benefit to sending the matter back to the Planning Board in order to have that body hold a hearing destined to result in the issuance of the special permit. Because all relevant evidence was adduced at the initial hearing — after all, the Planning Board unanimously found that Omnipoint’s request satisfied the town zoning bylaws in all respects — a remand to the Planning Board would serve no useful purpose. Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 410 (3d Cir.1999). For all of these reasons, we find that the applicable law does not require that the Planning Board hold further hearings in a TCA case before issuing the special permit. Appellants claim that even if the district court correctly ordered the issuance of the special permit for the Planning Board’s TCA violation, the court should have nonetheless followed Massachusetts zoning law by requiring that the permit only be issued after a new round of public notice and hearing. But we believe that the state law that might ordinarily control such disputes is preempted in this setting, for similar reasons as those favoring injunctive relief in the first place. Having determined that Congress meant to empower district courts to order that town planning board decisions in violation of § 332(b)(7)(C) be set aside, it would make little sense to further conclude that courts exercising that authority must do so within the confines of state zoning procedure. Under the TCA, local zoning ordinances, such as those invoked by appellants, apply only to the extent that they do not interfere with other provisions of the Act. Sprint Spectrum, L.P. v. Town of Easton, 982 F.Supp. 47, 50 (D.Mass.1997). In this case, a remand for further hearings, which appellants claim Massachusetts law requires, would accomplish nothing more than opening up for public debate the issue of whether the Planning Board should comply with the terms of the settlement agreement it had entered into (not to mention the consent decree embodying that settlement). Patterson v. Omnipoint Communications, Inc., 122 F.Supp.2d 222, 228 (D.Mass.2000); cf. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 709 N.E.2d 798, 806 (1999) (“Congress certainly intended to protect providers of [personal wireless] services from irrational or substanceless decisions by local authorities who might bend to community opposition to these facilities.”). As such, Massachusetts law requiring a remand for further proceedings under these circumstances (if, indeed, such is the law) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941), and is consequently preempted by the TCA. Appellants make a final equitable argument that this method of awarding special permits, which they describe as being “worked out by the adepts in secret away from the gaze of the citizens of Wellfleet to protect the mystery,” is fundamentally unfair in that it effectively shuts them out of the permitting process. We cannot agree with this characterization of the process followed, as appellants had the opportunity to intervene, and fully assert their rights, in the suit brought by Omnipoint against the Planning Board that ultimately led to the settlement agreement. Appellants failed, however, to avail themselves of that opportunity. We find that their belated attempt now to use Massachusetts zoning procedure to undo the settlement agreement is precluded by the TCA. III. Other Issues In addition to their challenge under Massachusetts zoning law, appellants raise a number of other issues related to the issuance of the special permit. First, appellants argue that the fact that the district court awarded the permit to an entity (Omnipoint Communications) distinct from both the one that initially brought the TCA suit against the Planning Board (Omni-point Communications, Inc.) and the one that initially applied for the permit (Omni-point Communications Enterprises) compromised the integrity of the permitting process. The district court, relying on an affidavit submitted by yet another Omni-point entity (Omnipoint Communications MB Operations, LLC), accepted the factual assertion that the Omnipoint parties “are one and the same, united as subsidiaries” of Omnipoint Communications Inc. Appellants have not rebutted this finding of fact, and we find no reason to disturb it. Second, appellants claim that Omnipoint failed to comply with the National Environmental Policy Act (“NEPA”) and Section 106 of the National Historic Preservation Act (“NHPA”) in obtaining the permits needed to begin work on the wireless telecommunications tower. The record, however, belies these assertions. With respect to appellants’ NHPA claim, the evidence shows that Omnipoint applied to the Massachusetts State Historic Preservation Office (“SHPO”) for a construction' permit on a site listed on federal and state Registers of Historic Places; that the SHPO, after considering the concerns of local citizens opposed to the siting of the wireless facility in the church steeple, concluded that the proposed installation plan would have “no adverse effect” on the site, provided certain enumerated conditions were met by Omnipoint; and that the SHPO sent a written copy of this determination to the Federal Communications Commission (“FCC”), to be forwarded to the federal Advisory Council on Historic Preservation. Despite appellants’ protestations to the contrary, these were all the steps required to be taken under NHPA and the relevant regulations, see 36 C.F.R. § 800.5, and the absence of additional evidence in the record regarding further action by the FCC is not germane to the validity of Omnipoint’s application. Appellants’ NEPA claim is equally unavailing. Under NEPA, wireless providers need only conduct environmental assessments of telecommunications-tower projects if the construction would have a “significant environmental effect,” as that term is defined under the regulations. See 47 C.F.R. § 1.1306. In this case, the SHPO’s “no-adverse-effects” determination led Omnipoint to conclude that the church steeple construction did not fall within any of the “significant environmental effect” categories under the regulations, and that an environmental assessment was therefore unnecessary. In making this determination, Omnipoint fulfilled its rather modest obligations under NEPA. Finally, appellants obliquely raise several other issues at the end of their brief, including the propriety of Omnipoint’s removal of this ease to federal court, the size of the bond requirement imposed by the district court in conjunction with the TRO, and the treatment of the church under the Wellfleet zoning bylaws. These arguments are neither well-developed nor supported in the brief by case-law citations, and consequently they have been waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). Affirmed. Costs to appellees. . As noted in Part III, infra, several entities of ''Omnipoint” have been involved in the various stages of this dispute — a fact whose legal significance is a point of contention between the parties in this appeal. For the sake of clarity, we refer to the collective entities as ''Omnipoint” throughout the opinion, and address the ramifications of Omnipoint's corporate structure in Part III, infra. . At least three of the appellants in this case lodged a formal protest against the town's decision to negotiate a settlement, and subsequently demanded a right to participate in the negotiations once commenced, but none formally intervened in the suit brought by Omni-point. . The provision that confers jurisdiction on district courts in cases where wireless facilities siting decisions violate the TCA merely directs courts to "hear and decide such action[s] on an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v). . There is admittedly much more precedent on the issue of how a court should deal with a planning board found by the court to be in violation of the TCA, as opposed to one that has conceded its own error. But we believe that, for reasons discussed below, the rationale for permitting courts to endorse consent judgments such as the one in this case is just as strong as the rationale for permitting them to order the issuance of a permit by a planning board adjudged to have violated the TCA. See Lucas v. Planning Bd. of LaGrange, 7 F.Supp.2d 310, 322 (S.D.N.Y.1998) (refusing to vacate consent judgment between town planning board and telecommunications provider "simply because it is alleged that the Town was unable to, or did not, adhere precisely to its own state’s procedures"). . We are aware of at least two district court decisions that have held that remand for further proceedings before local zoning officials is the more appropriate course. See PrimeCo Pers. Communications, L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1066 (N.D.Ill.1998); AT & T Wireless Servs. of Fla., Inc. v. Orange County, 982 F.Supp. 856, 860-62 (M.D.Fla.1997). Both cases, however, are distinguishable. In PrimeCo the plaintiff sought relief via a writ of mandamus, rather than through 47 U.S.C. § 332(c)(7)(b)(v). 26 F.Supp.2d at 1066. And in AT & T Wireless the town planning board had never made a formal determination that the application complied with local zoning bylaws. 982 F.Supp. at 861. . It is far from clear, moreover, that appellants' argument regarding the need for further proceedings before the Planning Board is correct even as a matter of Massachusetts law. The Supreme Judicial Court has noted that when a zoning board of appeals is shown to have erroneously interpreted applicable zoning law, and that error leads to the wrongful denial of a special permit, “the issuance of a permit is a matter of duty, not discretion, and relief in the form of an order that a permit issue is appropriate.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals, 382 Mass. 283, 415 N.E.2d 840, 848-49 (1981). Moreover, Massachusetts state courts are authorized to issue permits wrongfully withheld by local zoning officials “as justice and equity require.” Mass. Gen. Laws ch. 40A, § 17. . Appellants rely heavily on Roberts to support their argument that Massachusetts zoning procedure is not preempted in the case at bar. Roberts, however, is readily distinguishable, as it merely decided that in cases where a planning board grants a special permit in the first instance, the TCA does not preempt de novo judicial review of the propriety of the permit award under state or local law. 709 N.E.2d at 806-07. That situation is demonstrably different from the case at bar, where the Planning Board’s initial consideration of the special-permit application followed state zoning procedure but the decision reached was nonetheless improper as a matter of federal law. .The district court also granted summary judgment based on a finding that plaintiffs lack standing under Massachusetts zoning law. While there may be some question about appellants’ status as “aggrieved persons” within the meaning of state law, their allegations on this point are not frivolous or wholly insubstantial and appear to be sufficient to plead Article III standing. Cablevision of Boston, Inc. v. Pub. Improvement Comm’n of Boston, 184 F.3d 88, 100 n. 9 (1st Cir.1999). . Only one of the "significant environmental effect” categories was even arguably implicated by the Omnipoint construction: facilities “that may affect ... sites ... that are listed, or ... are eligible for listing, in the National Register of Historic Places.” 47 C.F.R. § 1.1307(a)(4).

Yerger v. Robertson

CANBY, Circuit Judge: Donald Yerger appeals the district court’s grant of summary judgment in favor of the government in a suit challenging the Forest Service’s decision to deny a renewal of the use permit that authorized Yerger to run a recreational facility and food concession in the Prescott National Forest, Arizona. We affirm. BACKGROUND In 1981, Yerger received from the National Forest Service a special use permit for the operation of Horsethief Basin Resort in the Prescott National Forest. The resort lies in a mountainous pine forest region in Arizona. The trip to the resort from Phoenix requires approximately one- and-a-half hours of freeway driving and two hours of travel over thirty-two miles of rough gravel road. The last seven miles are particularly primitive and take thirty to forty-five minutes to traverse by car. The resort was built in the late 1930’s through a cooperative effort of the Forest Service and the City of Phoenix. At that time, air conditioning had not yet come into use and the resort was intended to provide a refuge from Phoenix's extreme summer heat, thereby promoting stability in the city’s population and business environment. In 1966, the city relinquished its use permit for the resort and sold to the Forest Service the sewer and water systems that it had installed. Since then, five permittees have held special use permits for the resort; Yerger is the latest. Yerger’s permit provided that on termination, revocation or cancellation, Yerger was required to remove “within a reasonable time all structures and improvements except those owned by the United States, and [to] restore the site, unless otherwise agreed upon in writing....” The permit was for a period of five years and expired on December 31, 1986. The permit also required Yerger to maintain financial records of the resort’s rental and retail businesses. When the permit expired in 1986, the Forest Service extended it' for an additional year in order to conduct a Needs Assessment and Future Use Determination Study to determine whether there existed a public need for the services that Yerger offered at the resort. Over the next few months, the Forest Service requested several times that Yerger provide complete records of the resort’s accounts, as his use permit required. Yerger responded that he could not provide the information requested, but added that he believed that the occupancy rate had risen steadily for the last two years. As an example, he related that demand for cabin rentals had exceeded capacity on July Fourth and on the weekend of a horseshoeing contest in nearby Crown King. In late 1987 the Forest Service completed the Future Use Determination Study. The study found that public demand for the resort was low and recommended that the Forest Service terminate Yerger’s use permit. According to the study, because the resort was accessible exclusively via a winding and primitive one-lane dirt road, few travelers were willing to make the journey to Horsethief Basin. The study noted that those who did venture into the area were for the most part campers — who packed in the supplies they needed — and owners of vacation homes in the area. The study added that for the previous few years Yerger had failed to submit yearly financial records as required under his permit, but, relying on the anecdotal information about occupancy rates that Yerger had conveyed, the study concluded that public demand for the rental cabins was minimal. Finally, the study pointed out that the nearby community of Crown King provided the same services as the resort and was much more accessible to the public. Crown King, the study noted, was not located on National Forest land. The Forest Supervisor notified Yerger that the agency would not renew his permit and Yerger appealed to the Regional Forester. On reviewing the record, the Regional Forester determined that he could not decide the case without a more thorough economic analysis of the need for the resort and the resort’s profit potential. The Forester also raised sua sponte the question of whether the resort’s structures fell within the scope of the National Historic Preservation Act, 16 U.S.C. § 470f, and directed the Supervisor to determine “whether the facilities meet the criteria for nomination to the National Register of Historic Places.” In reply, the Forest Supervisor submitted a second study in which he concluded once again that public demand for the resort was insufficient to justify renewing Yer-ger’s permit. The second study compared Horsethief Basin Resort to other facilities in cool mountain areas that Phoenix residents use as a summer retreat. According to the study, three factors made Horsethief Basin Resort less suitable as a resort than similar facilities. First, because of the poor condition of the road leading into Horsethief Basin, the resort and adjacent camping facilities received very low use except on summer holiday weekends. Second, the study found that occupancy rates at other facilities were significantly higher than those for resort. The study based these rates on the Forest Service’s records of campground use and on a telephone survey of owners and operators of other facilities. Finally, the study cited Forest Service statistics on the average daily traffic between the resort and Crown King, which showed that traffic into Horsethief Basin was low. The study noted that much of the traffic was undoubtedly attributable not to the presence of the resort, but rather to the thirty-two summer homes and campground in the vicinity. In addition to the second study, the Forest Supervisor also submitted a letter stating that the agency had initiated National Historic Preservation Act compliance procedures and that “additional documentation might be required before the buildings could be removed if our original decision is affirmed.” The Regional Forester upheld the Forest Supervisor’s decision to decline renewal of the permit. Yerger appealed to the Chief Forester, who, in the final agency decision on the matter, also affirmed the decision and issued an order granting Yerger a year to remove the structures and restore the site. The order provided, however, that “[compliance with the National Historic Preservation Act is in progress, and completion of this process will be required before the structures may be impacted in any way.” Yerger filed suit in federal district court, challenging the Forest Service’s decision. The district court granted summary judgment in favor of the Forest Service. ISSUES On appeal of the district court’s decision, Yerger raises three issues. First, Yerger contends that the Forest Service’s decision not to renew his use permit was arbitrary and capricious because it was based on inaccurate and conclusory findings. Second, Yerger asserts that the decision violates the National Historic Preservation Act, 16 U.S.C. § 470f, because the Forest Service had not completed compliance procedures at the time that it issued the order terminating Yerger’s use permit and ordering him to remove the structures from the Horsethief Basin site. Finally, Yerger argues that the Forest Service should be estopped from refusing to renew his permit because when Yerger acquired the resort Forest Service personnel had assured him that the agency would renew his permit. DISCUSSION I. Findings in Support of the Decision Not to Renew The Administrative Procedure Act, 5 U.S.C. § 706 (1977), authorizes us to set aside the Forest Service’s action, findings and conclusions if they are arbitrary and capricious. An agency decision is arbitrary and capricious if, in reaching it, the agency failed to consider all relevant facts or to “articulate a satisfactory explanation for [the decision], including a ‘rational connection between the facts found and the choice made.’ ” Sierra Pac. Indus. v. Lyng, 866 F.2d 1099, 1105 (9th Cir.1989) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983)). Our review under the arbitrary and capricious standard is narrow: We “may not substitute [our] judgment for that of the agency.” Id. Under Forest Service guidelines, the agency may issue permits only to proposed uses that fulfill a public need and do not serve a function that can logically be provided on private lands. Forest Land Management Plan; Forest Service Manual § 2340.3. Forest Service regulations require the agency periodically to reevaluate public need for facilities operating under a permit. Forest Service Manual § 2703. If analysis reveals that a particular facility receives limited use, the agency must change or relocate the facility or terminate the permit. Id. Data demonstrating limited use may include records showing low use, low sales revenue and low fee payments. Id. When a use permit does not provide for renewal, the Forest Service officer charged with issuing the permit retains discretion to grant renewal. 36 C.F.R. § 251.64(b) (1992). We find that the Forest Service’s decision to terminate Yerger’s lease was not arbitrary and capricious. In both of the studies submitted to the Regional Forester, the Forest Supervisor cited ample and reliable data in support of the decision. The information available to the Forest Service indicates that the Horsethief Basin facility has collected low revenues since Yerger assumed operation of the resort. This finding, coupled with the facts that sufficient alternative facilities exist in nearby Crown King, and that, in comparison with other cool mountain retreats, the Horsethief Basin facility received minimal traffic and camping use, constitutes a satisfactory basis for the decision. See Sierra Pac. Indus., 866 F.2d at 1105. Yerger contends that the Forest Service’s findings are unreliable because they are not based on statistics reflecting actual use of the resort. We reject Yerger's argument. Forest Service regulations do not limit the agency to actual use data in evaluating public demand. Forest Land Management Plan § 2703. Moreover, it was reasonable for the Forest Service to ground its decision on the available evidence when the lack of more complete evidence is Yer-ger’s fault; Yerger is not to be rewarded for failing to comply with the conditions of his permit. Yerger also challenges the Forest Service’s reliance on information collected through the telephone survey of other resort operators. The administrative record contains letters from three resort operators who express doubt about the occupancy rate information that the Forest Service used in comparing public demand for Horsethief Basin Resort with their resorts. Even if the resort occupancy rate comparisons were unreliable, however, that fact would not lead us to conclude that Forest Service’s decision is arbitrary and capricious. The campground use comparisons and the statistics on local traffic patterns constitute sufficient support, particularly in the light of the resort’s minimal revenues, for the finding that public demand for the resort is low and that other facilities in the area can satisfy the public’s need for the services that the resort provides. Yerger disputes the Forest Service’s conclusion that Horsethief Basin Resort could not be turned into a profitable commercial enterprise. Yerger introduced in the administrative record an accountant’s analysis that indicated that a mere six percent occupancy rate was required for the resort to break even. Yerger also cites a letter in the record from the executive vice president of the Arizona Hotel and Motel Association stating that “[s]ome properties with small overhead would be profitable at a much lower occupancy.” Admin.Rec. § I, ex. E. What Yerger fails to recognize is that commercial viability is only one indication of public need. As the Forest Supervisor explained in his responsive statement to Yerger’s request for review, public need— not profitability — is the decisive factor in the Forest Service’s decision. The Supervisor pointed out that the Forest Service could authorize many types of development that would be profitable commercial ventures, but those developments “would not necessarily fulfill a need for the users of the National Forest.” Admin.Rec. Vol. II § 4, Ex.R at 8. The government points out that Yerger does not dispute the Forest Service’s finding of low use; rather, Yerger maintains that use is not an indication of public demand. According to Yerger, the low-use figure is attributable to the facts that the task of restoring the resort to commercial readiness has taken several years and that extremely poor road conditions prevent public access to the resort. The Forest Service has no plans, however, to improve the road leading into Horsethief Basin. To the extent that poor road conditions are a contributing factor, therefore, the use rates are unlikely to increase. Finally, Yerger argues that the Forest Service’s decision was made in- bad faith and constitutes arbitrary and capricious action. Yerger alleges that local Forest Service employees had decided before undertaking any analysis of public need to deny renewal of his permit and that the Forest Service proceedings were simply “ ‘post hoc’ rationalizations.” We reject Yerger’s claim. As we have stated, the Forest Service’s conclusion is supported by a satisfactory explanation and appears to have been made in consideration of all relevant facts. Forest Service officials at the regional and national levels reviewed and affirmed the local Forest Supervisor’s decision. II. The National Historic Preservation Act Yerger contends that because the Forest Service had not completed the consultation process required under the National Historic Preservation Act, the decision violates the Act. Section 106 of the Act provides: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f (1985). Nothing in the language of the Act prevents the Forest Service from refusing to renew Yerger’s permit prior to completing the mandatory consultation procedures. Indeed, the courts that have addressed the issue have held that the assumption of title or control over an eligible site is not a “federal undertaking” for the purposes of section 470f, because the mere exercise of ownership rights does not affect the historic character of the site, even when the assumption of control is clearly preparatory to action that will affect the site’s historical aspects. E.g., United States v. 162.20 Acres of Land, 639 F.2d 299, 304 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981); Paulina Lake Cabin Owners Ass’n v. Department of Agric., 577 F.Supp. 1188, 1195 (D.Or.1983); United States v. Three Tracts of Land, 415 F.Supp. 586, 588 (E.D.Tenn.1976). The decision not to renew Yerger’s use permit was nothing more than the reassumption of control over the Horsethief Basin site. See Paulina Lake Cabin Owners, 577 F.Supp. at 1195. The fact that the Forest Service issued its decision to terminate Yerger’s permit before completing the consultation procedures required under the National Historic Preservation Act does not render the Forest Service’s decision arbitrary and capricious. Yerger argues, however, that the other part of the Forest Service’s order, the directive to remove the buildings from the site, would have an impact on the historic character of the resort and would clearly constitute a “federal undertaking” subject to the Act. 16 U.S.C. § 407f; 36 C.F.R. § 800.2(o) (1992). The Historic Preservation regulations state, however, that the Act does not bar agencies “from expending funds on or authorizing nondestructive planning activities preparatory to an undertaking before complying with [§ 407f, nor does the Act prohibit] phased compliance at different stages in planning.” 36 C.F.R. § 800.3(c) (1992) (emphasis added). The Chief Forester’s order provided that the buildings should not be removed until the consultation process was complete. Because the order is contingent on compliance, it comports with the requirements of the Act: The Forest Service did not fail to take into account the effect its decision would have on the historic character of the Horsethief Basin site. Nor, at the time Yerger initially raised his claim, did the Forest Service contend that it had completed the consultation process. We hold, therefore, that Yerger has failed to raise an issue under the National Historic Preservation Act that would cast any doubt on the validity of the Forest Service’s decision not to renew his permit. III. Equitable Estoppel Yerger asserts that the Forest Service should be equitably estopped from refusing to renew his use permit because when he acquired the resort Forest Service employees assured him that the agency would renew his permit when the current term expired. Because the Forest Service failed to address this issue when it was raised during the administrative proceedings, we will review Yerger’s claim de novo. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). A party seeking equitable estoppel against the government carries a heavy burden. In addition to the traditional elements of equitable estoppel, the party must prove two additional elements: First, the party asserting estoppel “must establish 'affirmative conduct going beyond mere negligence.’ ” S & M Inv. Co. v. Tahoe Regional Planning Agency, 911 F.2d 324, 329 (9th Cir.1990) (quoting Watkins, 875 F.2d at 707, cert. denied, — U.S. —, 111 S.Ct. 963, 112 L.Ed.2d 1050 (1991)). Second, the party must prove that not applying estoppel would result in a serious injustice, and that the public will not be unduly burdened by the imposition of estoppel. Id.; Wagner v. Director, 847 F.2d 515, 519 (9th Cir.1988). Yerger has failed to allege that the Forest Service employees’ assurances were affirmative acts that go beyond mere negligence. He does not attempt to prove that in the absence of estoppel a serious injustice would result, or that the public would not be unduly burdened if we imposed es-toppel in this case. We therefore reject Yerger’s argument that the Forest Service should be equitably estopped from declining to renew Yerger’s use permit. AFFIRMED. . The stay of the Forest Service’s decision that we entered on October 19, 1992, is hereby vacated. . We discuss below the major contentions urged by Yerger. The remaining points that he has raised are clearly without merit. . For this reason, it was unnecessary for the district court to permit the Forest Service to supplement the record to show further compliance with the National Historic Preservation Act. Because we affirm on the original administrative record, we need not address the propriety of the district court’s order permitting supplementation. . Under traditional estoppel principles, the party seeking estoppel is required to show that (1) the party to be estopped knew the true facts at the time the relevant conduct occurred; (2) the party to be estopped intended that the other party rely on his conduct or representation; (3) the party seeking estoppel was ignorant of the true facts; and (4) the party seeking estoppel did indeed rely to his detriment to the other’s conduct. Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir.1989) (en banc), cert. denied, — U.S. —, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990) (citations omitted).

Rector, Wardens, & Members of the Vestry of St. Bartholomew's Church v. City of New York

WINTER, Circuit Judge: This appeal poses the question of whether a church may be prevented by New York City’s Landmarks Law, now codified at New York City Administrative Code Sections 25-301 to 25-321 (1986), from replacing a church-owned building with an office tower. The question implicates both First and Fifth Amendment issues. Specifically, the Rector, Wardens, and Members of the Vestry of St. Bartholomew’s Church (“the Church”) appeal from Judge Sprizzo’s decision that the New York City Landmarks Law, as applied to an auxiliary structure next to the Church’s main house of worship, did not impose an unconstitutional burden on the free exercise of religion or effect a taking of property without just compensation. The district court grounded its decision on its finding that the Church had failed to prove that the landmark regulation prevented the Church from carrying out its religious and charitable mission in its current buildings. We agree that this is the legal standard established by Supreme Court precedent governing both free exercise and takings claims. Moreover, we find no clear error in the district court’s factual determinations. We therefore affirm. We also affirm the denial of a motion to intervene by a group of persons opposed to the Church’s plans to develop its property. BACKGROUND St. Bartholomew’s Church is a Protestant Episcopal Church organized in 1835 under the laws of the State of New York as a not-for-profit religious corporation. The main house of worship (“the Church building”) stands on the east side of Park Avenue, between 50th and 51st Streets, in New York City. Constructed beginning in 1917 according to the plans of architect Bertram G. Goodhue, the Church building is a notable example of a Venetian adaptation of the Byzantine style, built on a Latin cross plan. Significant features include its polychromatic stone exterior, soaring octagonal dome, and large rose window. Perhaps most significantly, Goodhue incorporated into his building the Romanesque porch of St. Bartholomew’s former Church building at Madison Avenue and 44th Street. Designed by the renowned architectural firm of McKim, Mead & White, the porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by slender columns. The doors themselves are richly decorated bronze, depicting Biblical themes. Adjacent to the Church building, at the northeast corner of Park Avenue and 50th Street, is a terraced, seven-story building known as the Community House. It is the replacement of this building with an office tower that is at issue in the instant matter. Completed in 1928 by associates of Goodhue, the Community House complements the Church building in scale, materials and decoration. Together with the Church building, the Community House houses a variety of social and religious activities in which the Church is engaged. It contains a sixty-student preschool, a large theater, athletic facilities (including a pool, gymnasium, squash court, and weight and locker rooms), as well as several meeting rooms and offices for fellowship and counseling programs. A community ministry program, which provides food, clothing, and shelter to indigent persons, is operated mainly from the Church building. Meals are prepared in a small pantry on the first floor and served in the mortuary chapel. Ten homeless persons are housed nightly in the narthex. In 1967, finding that “St. Bartholomew’s Church and Community House have a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural aspects of New York City,” the Landmarks Preservation Commission of the City of New York (the “Commission”) designated both buildings as “landmarks” pursuant to the Landmarks Law. This designation prohibits the alteration or demolition of the buildings without approval by the Commission. See N.Y.C. Admin. Code § 25-305(a)(l) (1985). The Church did not object to the land-marking of its property. In December 1983, pursuant to what is now New York City Administrative Code Section 25-307, the Church applied to the Commission for a “certificate of appropriateness” permitting it to replace the Community House with a fifty-nine story office tower. This request was denied as an inappropriate alteration. In December 1984, the Church filed a second application, sealing down the proposed tower to forty-seven stories. This application was also denied. The Church thereafter filed a third application under a different procedure. Pursuant to Sections 207-4.0 and 207-8.0 of the New York City Administrative Code, commonly known as the “hardship exception,” it sought a certificate of appropriateness for the forty-seven story tower on the ground of the Community House’s present inadequacy for church purposes. The Church’s application was the subject of a series of public hearings before the Commission in late 1985 and early 1986. At those hearings, the Commission gathered evidence from various interested parties, including expert testimony and written reports regarding the adequacy of the Community House for the Church’s charitable programs, the necessity and cost of structural and mechanical repairs for the Church building and Community House, and the Church’s financial condition. Following the public hearings, the Commission convened in Executive Session, open to the public, on several occasions in February 1986. At these meetings the Commission discussed the Church’s application, accepted further submissions from interested parties, and took testimony and reports from its own pro bono experts. On February 24, the Commission voted to deny the application because the Church had failed to prove the necessary hardship. Several months later the Commission issued a lengthy written determination detailing the reasons for its denial. On April 8, 1986, the Church brought the instant action for declaratory and injunc-tive relief and damages pursuant to 42 U.S.C. § 1983. The complaint set forth a host of constitutional claims. It alleged that the Landmarks Law, facially and as applied to the Church, violates both the free exercise and establishment clauses of the First Amendment by excessively burdening the practice of religion and entangling the government in religious affairs. It also alleged that the Landmarks Law violates the equal protection and due process clauses of the Fourteenth Amendment because it applies different standards to charitable and commercial institutions respectively and constitutes a taking of property without just compensation. In addition, the Church alleged a variety of procedural due process violations and brought a pendent state law claim alleging that the Church should have been granted a certificate of appropriateness under New York law. The Church moved for partial summary judgment on its claims of facial unconstitutionality. Defendants cross-moved for summary judgment on all claims. The district court granted summary judgment to defendants with respect to the issues of facial unconstitutionality only. On the First Amendment claims, the court ruled that the Landmarks Law “creates no more than an incidental burden on the practice of religion” and that entanglement doctrine was not applicable. On the equal protection claim, the court ruled that the different hardship tests applied to charitable and commercial organizations were rational. Finally, it held that the notice and hearing provisions of the Landmarks Law comport with constitutional standards of due process. The district court then held a bench trial with respect to the claims that the Landmarks Law is unconstitutional as applied to the Church. The parties agreed that the evidentiary record before the district court would be limited to the evidence presented to the Commission, contained in a twenty-three volume appendix. In considering the Church’s takings claim, the court adopted the standard articulated by New York State courts: An unconstitutional taking exists “where the landmark designation [of property owned by a charitable organization] would prevent or seriously interfere with the carrying out of the charitable purpose of the institution.” St. Bartholomew’s Church v. City of New York, 728 F.Supp. 958, 966-67 (S.D.N.Y.1989) (opinion and order) (citing Society for Ethical Cul ture v. Spatt, 51 N.Y.2d 449, 454-55, 415 N.E.2d 922, 925, 434 N.Y.S.2d 932, 935 (1980); Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 131, 316 N.E.2d 305, 311, 359 N.Y.S.2d 7, 16 (1974)). The district court applied the same test to the claim of an unconstitutional burden on religion. It thus stated, “[I]n this case, the First Amendment inquiry is identical in scope to the Fifth Amendment inquiry, since to prevail on either claim plaintiff must prove that it can no longer carry out its religious mission in its existing facilities.” Id. 728 F.Supp. at 966-67. The district court then examined the record before the Commission in order to determine whether the Church had proved by a preponderance of the evidence that it can no longer carry out its charitable purpose in its existing facilities. The district court found that it had not, for three basic reasons. First, it ruled that the Church had failed to demonstrate that the Community House is insufficient to accommodate the various programs currently based there. Second, it found that the Church had exaggerated the cost of the necessary repairs to the structural and mechanical systems of the Church building and Community House. Third, the court held that the Church had failed to prove that it cannot afford to make the necessary repairs and renovations to its buildings. Having concluded that the Church had not carried its burden of demonstrating that the Landmarks Law precludes it from continuing its activities in its existing facilities, the district court rejected the Church’s First and Fifth Amendment claims and entered judgment for defendants. On appeal, the Church renews its free exercise and takings claims and argues that the district court’s factual findings were clearly erroneous. In the course of proceedings, the district court denied a motion to intervene on the side of defendants made by several individual parishioners and the Committee to Oppose the Sale of St. Bartholomew’s Church Incorporated, a group of St. Bartholomew’s members and others opposed to commercial development of the Church’s property. It held that the proposed intervenors had no ownership interest in the property at issue and that their participation would interfere with the efficient administration of the litigation. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Oct. 27, 1986) (order denying motion to intervene). A year later, after the parties agreed that the trial in the instant action should be conducted solely on the record before the Commission, the proposed intervenors renewed their motion, which was again denied. See St. Bartholomew’s Church v. City of New York, No. 86 Civ. 2848 (JES), slip op. (S.D.N.Y. Apr. 6, 1988) (order denying motion to intervene). The proposed intervenors appeal from this ruling. DISCUSSION Sections 1 and 2 of this portion of the opinion reject the Church’s free exercise and takings claims. Our discussion assumes the affirmance of the district court’s factual findings as detailed in section 3. 1. The Free Exercise Claim The Church argues that the Landmarks Law substantially burdens religion in violation of the First Amendment as applied to the states through the Fourteenth Amendment. In particular, the Church contends that by denying its application to erect a commercial office tower on its property, the City of New York and the Landmarks Commission (collectively, “the City”) have impaired the Church’s ability to carry on and expand the ministerial and charitable activities that are central to its religious mission. It argues that the Community House is no longer a sufficient facility for its activities, and that the Church’s financial base has eroded. The construction of an office tower similar to those that now surround St. Bartholomew’s in midtown Manhattan, the Church asserts, is a means to provide better space for some of the Church’s programs and income to support and expand its various ministerial and community activities. The Church thus argues that even if the proposed office tower will not house all of the Church’s programs, the revenue generated by renting commercial office space will enable the Church to move some of its programs— such as sheltering the homeless — off-site. The Church concludes that the Landmarks Law unconstitutionally denies it the opportunity to exploit this means of carrying out its religious mission. Although the Landmarks Law substantially limits the options of the Church to raise revenue for purposes of expanding religious charitable activities, we believe the Church’s claims are precluded by Supreme Court precedent. As the Court recently stated in Employment Division v. Smith, — U.S. -, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the free exercise clause prohibits above all “ ‘governmental regulation of religious beliefs as such.’ ” Id. 110 S.Ct. at 1599 (quoting Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) and citing cases). No one seriously contends that the Landmarks Law interferes with substantive religious views. However, apart from impinging on religious beliefs, governmental regulation may affect conduct or béhavior associated with those beliefs. Supreme Court decisions indicate that while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers. For example, in Smith the Court held that the free exercise clause did not prohibit the State of Oregon from applying its drug laws to the religious use of peyote. See 110 S.Ct. 1595. Cf. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). The synthesis of this caselaw has been stated as follows: “[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Smith, 110 S.Ct. at 1600 (quoting Lee, 455 U.S. at 263 n. 3, 102 S.Ct. at 1058 n. 3 (Stevens, J., concurring)). The critical distinction is thus between a neutral, generally applicable law that happens to bear on religiously motivated action, and a regulation that restricts certain conduct because it is religiously oriented. See id. 110 S.Ct. at 1599. The Landmarks Law is a facially neutral regulation of general applicability within the meaning of Supreme Court decisions. It thus applies to “[a]ny improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value.” N.Y.C.Admin.Code § 25-302(n) (1986). It is true that the Landmarks Law affects many religious buildings. The Church thus asserts that of the six hundred landmarked sites, over fifteen percent are religious properties and over five percent are Episcopal churches. Nevertheless, we do not understand those facts to demonstrate a lack of neutrality or general applicability. Because of the importance of religion, and of particular churches, in our social and cultural history, and because many churches are designed to be architecturally attractive, many religious structures are likely to fall within the neutral criteria — having “special character or special historical or aesthetic interest or value” — set forth by the Landmarks Law. N.Y.C.Admin.Code § 25-302(n) (1986). This, however, is not evidence of an intent to discriminate against, or impinge on, religious belief in the designation of landmark sites. The Church’s brief cites commentators, including a former chair of the Commission, who are highly critical of the Landmarks Law on grounds that it accords great discretion to the Commission and that persons who have interests other than the preservation of historic sites or aesthetic structures may influence Commission decisions. Nevertheless, absent proof of the discriminatory exercise of discretion, there is no constitutional relevance to these observations. Zoning similarly regulates land use but it is hardly a process in which the exercise of discretion is constrained by scientific principles or unaffected by selfish or political interests, yet it passes constitutional muster. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The Church argues that landmarking and zoning differ in that landmarking targets only individual parcels while zoning affects larger segments. However, the Landmarks Law permits the designation of historic districts, see N.Y.C.Admin.Code § 25-303(a)(4) (1986), while all zoning laws provide for variances for individual sites. Even if the two forms of regulation bear the different characteristics asserted by the Church, those differences are of no consequence in light of Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). There, the Court stated: [LJandmark laws are not like discriminatory, or ‘reverse spot,’ zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. In contrast to discriminatory zoning, which is the antithesis of land-use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city.... Id. at 132, 98 S.Ct. at 2663 (citation omitted). It is obvious that the Landmarks Law has drastically restricted the Church’s ability to raise revenues to carry out its various charitable and ministerial programs. In this particular case, the revenues involved are very large because the Community House is on land that would be extremely valuable if put to commercial uses. Nevertheless, we understand Supreme Court decisions to indicate that neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause. See Jimmy Swaggart Ministries v. Board of Equalization, — U.S. -, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Hernandez v. Commissioner, — U.S. -, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). The central question in identifying an unconstitutional burden is whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices. In Lyng v. Northwest Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988), the Court explained, It is true that ... indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amend-ment_ This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit” ... We agree with the district court that no First Amendment violation has occurred absent a showing of discriminatory motive, coercion in religious practice or the Church’s inability to carry out its religious mission in its existing facilities. Cf. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 872 (2d Cir.1988). In sum, the Landmarks Law is a valid, neutral regulation of general applicability, and as explained below, we agree with the district court that the Church has failed to prove that it cannot continue its religious practice in its existing facilities. 2. The Takings Claim The Church also claims that the Landmarks Law so severely restricts its ability to use its property that it constitutes confiscation of property without just compensation in violation of the Fifth and Fourteenth Amendments. However, the Supreme Court’s decision in Penn Central compels us to hold otherwise. In Penn Central, the Supreme Court held that the application of New York City’s Landmarks Law to Grand Central Terminal did not effect an unconstitutional taking. See 438 U.S. at 138, 98 S.Ct. at 2666. That famous beaux arts style train station, located in midtown Manhattan (just eight blocks from St. Bartholomew’s Church) was designated a landmark in 1967. See id. at 115-16, 98 S.Ct. at 2654-55. Shortly thereafter, Penn Central Transportation Company (“Penn Central”), principal owner of the Terminal, in order to increase its income, sought to build a highrise office tower atop the Terminal. The Landmarks Commission, however, denied the proposal because “ ‘[qjuite simply, the tower would overwhelm the Terminal by its sheer mass.’ ” Id. at 118, 98 S.Ct. at 2656 (quoting the record on appeal). The Supreme Court squarely rejected Penn Central’s claim that the building restriction had unconstitutionally “taken” its property. Central to the Court’s holding were the facts that the regulation did not interfere with the historical use of the property and that that use continued to be economically viable: [T]he New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment. Id. at 136, 98 S.Ct. at 2665. Applying the Penn Central standard to property used for charitable purposes, the constitutional question is whether the land-use regulation impairs the continued operation of the property in its originally expected use. We conclude that the Landmarks Law does not effect an unconstitutional taking because the Church can continue its existing charitable and religious activities in its current facilities. Although the regulation may “freeze” the Church’s property in its existing use and prevent the Church from expanding or altering its activities, Penn Central explicitly permits this. In that case, the Landmarks Law diminished the opportunity for Penn Central to earn what might have been substantial amounts by preventing it from building a skyscraper atop the Terminal. Here it prevents a similar development by the Church — one that, in contrast to the proposal to build an office tower over Grand Central Terminal, would involve the razing of a landmarked building — at least so long as the Church is able to continue its present activities in the existing buildings. In both eases, the deprivation of commercial value is palpable, but as we understand Penn Central, it does not constitute a taking so long as continued use for present activities is viable. The Church offers several arguments to distinguish Penn Central, but we find them unavailing. First, it argues that while Penn Central stipulated that it was able to earn a “reasonable return” on the Terminal even under the regulation, see 438 U.S. at 129, 98 S.Ct. at 2662, in this case, the use of tl>e Community House for commercial purposes would yield an estimated return of only six percent. Even if true, this fact is irrelevant. “Reasonable return” analysis was appropriate to determine the viability of the existing commercial use of the Terminal but has no bearing on the instant matter because the existing use of the Community House is for charitable rather than commercial purposes. So long as the Church can continue to use its property in the way that it has been using it — to house its charitable and religious activity — there is no unconstitutional taking. Second, the Church notes that it presented a second proposal for a smaller building to the Commission, but Penn Central did not. This hardly makes any difference. Just as the Commission in Penn Central remained open to a building addition that “ ‘would harmonize in scale, material and character,’ ” 438 U.S. at 137, 98 S.Ct. at 2666 (quoting record on appeal), with the Terminal, it invited appellant to propose an addition to the Community House in the instant matter. Finally, we reject as unsupported appellants argument that in Penn Central the property owner continued to enjoy valuable, transferrable rights to develop the airspace above the Terminal, see 438 U.S. at 137, 98 S.Ct. at 2666, while the Church’s development rights have little value. See Section 3(a) infra. 3. Findings of the District Court The principal factual finding of the district court — one central to its rejection of the Church’s free exercise and takings claims — was that the Church “failed to show by a preponderance of the evidence that it can no longer conduct its charitable activities or carry out its religious mission in its existing facilities.” St. Bartholomew’s Church v. City of New York, 728 F.Supp. 958, 974-75 (S.D.N.Y.1989) (opinion and order). The Church claims that the Community House is an inadequate facility in which to carry out the various activities that presently comprise the Church’s religious mission and charitable purpose. It further claims that it cannot afford to make the needed repairs and renovations to the Community House and Church building. It concludes that it must be allowed to replace the Community House with a revenue-generating office tower. The district court was unconvinced. It found that the Church failed to prove that the Community House is fundamentally unsuitable for its current use and that the cost of repair and rehabilitation is beyond the financial means of the Church. Appellant argues on appeal that these findings were clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); Sygma Photo News, Inc. v. High Society Magazine, 778 F.2d 89, 95-96 (2d Cir.1985). We disagree. a. Adequacy of the Community House The Church claims that the amount and configuration of usable space in the Community House is insufficient to accommodate the Church’s various programs. It relies principally upon an analysis of space in the Community House by Walker Associates, an interior design firm hired by the Church. Presented to the Commission in three written reports and related oral testimony (collectively, “the Walker Report”), this study concluded that the demands for space by the Church’s various programs exceeded the capacity of the Community House. Additionally, the Walker Report stated that renovation or expansion was impractical due to the structural inflexibility of the building. The district court discredited the Walker Report. With regard to space, there is no dispute that the Community House currently is too small. The Walker Report found that 8000 square feet of extra space is needed. The Commission placed the deficiency at about 4500 square feet. Fatal, however, to the Church’s claim is the absence of any showing that the space deficiency in the Community House cannot be remedied by a reconfiguration or expansion that is consistent with the purposes of the Landmarks Law. The Walker Report assumed that the Community House had an outmoded structure that precluded such an option. In fact, the building has a modern, light steel frame structure and was designed so that two additional floors could easily be added. Moreover, the Commission has indicated that it would be receptive to a proposal from the Church for such an addition. While expanding the amount of available space in the Community House may not provide ideal facilities for the Church’s expanded programs, it does offer a means of continuing those programs in the existing building. Certainly the intermediate option of limited expansion must be thoroughly explored before jumping to replacement with a forty-seven story office building. b. Cost of Repair and Rehabilitation The Church also argues that the necessary repairs to the physically deteriorating Church building and Community House would be prohibitively expensive. It relies on a study of the mechanical systems and exteriors of those buildings prepared by O’Brien, Krietzburg and Associates, a construction management firm, and submitted to the Commission through written reports and oral testimony (collectively, “the OKA Report”). The OKA Report estimated that it would cost approximately $11 million over two years to bring the buildings’ mechanical, electrical, and plumbing systems into proper working order and to repair the buildings’ exteriors. The district court also rejected this conclusion, faulting the OKA Report for being biased in favor of replacement over rehabilitation, ignoring actual conditions at the property site, and using an inappropriate method of estimating costs. Further, the district court pointed to contradictory evidence presented to the Commission, both by persons opposing the proposed development and by neutral consultants. Based on this information, the court found $3 million “phased in over a period of several years” to be a reasonable estimate for repairs and replacement. On appeal, the Church does not seriously defend the $11 million estimate contained in the OKA Report. Instead, it accepts the $3 million estimate for the work that it covers, but argues that this figure disregards certain “major elements of cost.” In particular, the Church asserts that an additional $500,000 is necessary for life safety measures, $647,000 for repair of the church organ, and $360,000 for architectural and engineering fees. The City counters that the life safety additions would unnecessarily exceed building code requirements, that organ repair is not a proper expense for this proceeding, and that design fees would be negligible. We need not rule on this dispute over approximately $1.5 million because it is not crucial to the district court’s operative factual finding. As our discussion in the next section indicates, even if the potential cost of repairs totaled $4.5 million, the Church has not adequately, demonstrated that it is unable to meet this expense. Thus, the district court’s central finding that the Church had failed to prove that it cannot continue in its existing facilities does not hinge on whether any portion of this $1.5 million was excluded from its estimate of repair costs. c. The Church’s Finances As a corollary to its claim that repair and rehabilitation of the Church building and Community House would be too costly, the Church argues that its financial condition does not allow it to make the necessary improvements and also continue its other programs. The district court, however, found that appellant had failed adequately to prove this assertion, a finding that is not clearly erroneous. The Church has three primary sources of support and revenue: contributions in the form of pledges and offerings collected at worship services, income earned on investments, and fees charged for participation in activities conducted under its sponsorship. Investment income is derived from the Church’s investment portfolio, known as the Consolidated Church Fund, the value of which stood at nearly $11 million at the end of 1984. The principal of this endowment consists of funds received as gifts or bequests. In addition, the Church’s endowment includes a Properties Fund, representing resources in Church-owned property at acquired cost, net of depreciation, and a miscellaneous General Fund. Combined, these funds totalled just under $3.5 million at the end of 1984, giving the Church an overall endowment of about $14.3 million at that time. Over the decade preceding 1985, the Church’s sources of revenue have sporadically kept pace with expenses, exceeding them in 1975, 1977, 1980, 1983 and 1984, and falling behind in 1976,1978,1979, 1981, and 1982. On the whole, the Church had only a slight net deficit over this period. The Church’s principal argument is that a major improvement expenditure of the type required to repair and renovate the Church building and Community House would severely damage this “precarious” balance of revenues and expenses. Because such an expenditure would come from endowment funds, the Church contends, future investment income will inevitably decline as the result of a depleted portfolio. Such a decrease in future revenues, it concludes, will produce “severe deficits.” While a reduced principal will yield less investment income, the Church has not demonstrated that its budget cannot withstand building improvement expenditures under a reasonable financing procedure. For example, as the district court noted, withdrawals from the endowment might be made gradually to minimize lost investment income, or the Church might borrow against its endowment, and repay the loan over an extended period of time. Appellant has offered no financial projections or cash flow analyses' to prove that these financing methods are not feasible. Without such data, the district court’s finding that the Church failed to prove prospective financial hardship is not clearly erroneous. We also cannot ignore the paucity of evidence offered by the Church to show that other forms of revenue are not available. Its claim that a capital fundraising drive already has been exhausted as a financing possibility is undercut by evidence that longtime members of the congregation cannot recall any such drive. Also, evidence before the Commission indicated that the transferrable development rights for the airspace above the Church property are, contrary to the Church’s claim, not worthless. Finally, the Church argues that even if its endowment could withstand a building project, it is not at liberty to withdraw large sums for that purpose because of legal restrictions on the use of its investment funds. In particular, it urges that Section 717 of the New York Not-For-Profit Corporation Law prohibits the Church from expending the sums necessary to undergo a building project. That provision, however, does no more than impose upon the Church a fiduciary duty of care to manage the congregation’s money in a prudent and responsible fashion, see N.Y. Not-for-Profit Corp. Law §§ 513, 717 (McKinney Supp.1990), and would be implicated only if the expenditures in question would unacceptably impair the Church’s financial condition. 4. The Motion to Intervene • The proposed intervenors argue that the district court should have granted their motion to intervene on the side of the defendants at trial. We may reverse the denial of a motion to intervene only for “abuse of discretion.” See United States v. Hooker Chemical & Plastics, 749 F.2d 968, 990 (2d Cir.1984). No such abuse is present here. The district court properly denied intervention as of right under Fed. R.Civ.P. 24(a)(2) because the proposed in-tervenors lack any legally protectable interest in this matter. Under New York law, as a Protestant Episcopal Church, St. Bartholomew’s is a corporate body placed in the trusteeship of its church wardens and vestrymen. See New York Religious Corporation Law § 41 (McKinney Supp.1990). To the extent that the proposed intervenors are members of the parish, they enjoy only the right to vote in the election of the church wardens and vestrymen. See id. § 43. Thus, the Rector, Wardens and Members of the Vestry is the proper party to litigate the constitutionality of encumbrances placed on Church property. Nor did the district court abuse its discretion by denying permissive intervention under Rule 24(b). It was eminently reasonable to conclude that intervention only would complicate the litigation, and thereby “unduly delay ... the adjudication of the rights of the original parties.” Fed.R. Civ.P. 24(b). CONCLUSION For the reasons stated above, we affirm both the judgment of the district court in favor of the defendants-appellees and the order of that court denying the motion to intervene. . Now found at Section 25-309, the provision states that a certificate of appropriateness shall be granted to a not-for-profit applicant who shows, inter alia, that such improvement has ceased to be adequate, suitable or appropriate for use for carrying out both (1) the purposes of such owner to which it is devoted and (2) those purposes to which it had been devoted when acquired unless such owner is not [sic] longer engaged in pursuing such purposes. N.Y.C.Admin.Code § 25-309(a)(2)(c) (1985). . The district court treated the Church’s remaining procedural due process and state law claims as abandoned, because the Church had disavowed any interest in having a new hearing before the Commission, the only relief available to remedy these claims. . The Landmarks Law made a cameo appearance in a recent best-selling novel as a vehicle for political retaliation against a clerical official seeking to develop Church property. See T. Wolfe, Bonfire of the Vanities 569 (1987) ("Mort? You know that church, St. Timothy’s? ... Right ... LANDMARK THE SON OF A BITCH!”). . The Church also argues that the Landmarks Law involves an excessive degree of entanglement between church and state in violation of the establishment clause. The district court dismissed this argument as irrelevant in the present context, reasoning that the entanglement doctrine applies only to instances of government funding of religious organizations. However, in Jimmy Swaggart Ministries the Supreme Court considered an entanglement claim in the context of government taxation of the sale of religious materials by a religious organization. The Court found no constitutional violation, as the regulation imposed only routine administrative and recordkeeping obligations, involved no continuing surveillance of the organization, and did not inquire into the religious doctrine or motives of the organization. See 110 S.Ct. at 697-99. These same factors are of course largely true of the Landmarks Law. The only scrutiny of the Church occurred in the proceedings for a certificate of appropriateness, and the matters scrutinized were exclusively financial and architectural. This degree of interaction does not rise to the level of unconstitutional entanglement. . The Fifth Amendment provides in part, "nor shall private property be taken for public use, without just compensation,” U.S. Const, amend. V, and is applicable to the states through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). . Appellant urges further that application of the Landmarks Law to the Church does not substantially advance a legitimate state interest. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-35, 107 S.Ct. 3141, 3146-47, 97 L.Ed.2d 677 (1987). While land use restrictions must be reviewed in the context of the individual property in question, see Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928), the same government interest held to be valid in Penn Central — “preserving structures and areas with special historic, architectural or cultural significance,” 438 U.S. at 129, 98 S.Ct. at 2662—is equally applicable here. . The Walker Report determined that the total space required in the Community House is 41,-500 square feet, as against 33,500 square feet of available useable space. The Commission accepted the figure for requirements, but estimated the available useable space at approximately 37,000 square feet. . For instance, the existing building cannot readily accommodate the larger gymnasium or greater theater wing space sought by the Church. . Although the Church also points to Section 513 of the Not-for-Profit Corporation Law, which deals with the administration of assets received for specific purposes, see N.Y. Not-for-Profit Corp. Law § 513 (McKinney Supp.1990), it concedes that donor-imposed restrictions are not a "principal constraint” preventing the improvement of its property. It does not challenge the district court's finding that enough of the Church’s funds are unrestricted so as to allow it to undertake a building project.

Ringsred v. City of Duluth

JOHN R. GIBSON, Circuit Judge. Eric Ringsred appeals from an adverse summary judgment and argues that a parking ramp in downtown Duluth, Minnesota cannot be constructed until the effects of this project on the environment and on historic properties are more formally considered. As jointly proposed by the Fond du Lac Band of Lake Superior Chippewa (“the Band”) and the City of Duluth, this parking ramp will abut a bingo facility currently operated by a commission composed of Band and City representatives in a building on Indian reservation land. For the reasons discussed below, we affirm the district court’s judgment. In reviewing this grant of summary judgment, we state the facts in the light most favorable to Ringsred and give him the benefit of all reasonable inferences that can be drawn from these facts. E.g., Poolman v. Nelson, 802 F.2d 304, 306 (8th Cir.1986). In 1984 the Band and the City of Duluth created the Duluth-Fond du Lac Economic Development Commission, a political subdivision of the Band that would develop and operate a gaming facility in the former Sears Building in Duluth. The Band purchased the building, which was then transferred to the United States to be held in trust for the Band under 25 U.S.C. § 465 (1982), and made part of the Band reservation pursuant to 25 U.S.C. § 467 (1982). The Band then obtained a $3.5 million loan to remodel the building and equip the gaming facility. After the renovation, the Band leased the facility to the Commission. In April 1986, the Secretary approved this lease as required by 25 U.S.C. § 415 (1982 & Supp. Ill 1985) and certain other agreements pursuant to 25 U.S.C. § 81 (1982), and on September 2, 1986, the Commission opened the gaming facility for business. In exchange for the Band’s agreement to remodel the building and equip the gaming facility, the City agreed to acquire land next to the gaming facility and construct a municipal parking ramp that would be leased to the Commission for its non-exclusive use. On July 23, 1986, the City issued bonds totaling $3 million to finance the project and began condemnation proceedings on the property next to the Sears building. The order giving the City possession of the property was issued on November 20, 1986. Questions concerning the propriety of the condemnation proceeding and the validity of this order were litigated through the Minnesota state courts and have been finally resolved in the City’s favor. See City of Duluth v. Alexander, 404 N.W.2d 24 (Minn.Ct.App.1987), review denied (Minn. May 20, 1987). The land is now owned by the City; it is not and will not be a part of the land held in trust by the United States for the Band. Before the United States took the Sears building in trust, the Secretary issued an Environmental Assessment, which reviewed the proposed trust acquisition and development of the gaming facility, but did not consider the environmental effects of or alternatives to the proposed parking ramp construction. The Environmental Assessment concluded that development of the gaming facility would have beneficial social and economic effects and would not adversely affect the environment. In October 1984, Ringsred brought the present action seeking declaratory relief and an injunction prohibiting the construction of the parking ramp. To the extent relevant to this appeal, Ringsred’s amended complaint alleged that the Secretary acted without properly considering the effects of the proposed parking ramp construction on the environment and on historic buildings in violation of the National Environmental Policy Act (“NEPA”), see 42 U.S.C. § 4332 (1982), and the National Historic Preservation Act (“NHPA”), see 16 U.S.C. § 470f (1982), respectively. He also alleged that the Secretary acted unlawfully in approving an Indian/non-Indian partnership that confers sovereign rights and immunities on non-Indians. After hearing oral argument on the defendants’ motion to dismiss, the district court dismissed these claims. This expedited appeal followed. In reviewing the district court’s grant of summary judgment, we apply the same standard as the district court. Poolman v. Nelson, 802 F.2d at 307. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). We first consider Ringsred’s contention that the Secretary violated NEPA. 42 U.S.C. § 4332(2)(C) requires federal agencies to file an environmental impact statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” An EIS must consider, among other things, “any adverse environmental effects which cannot be avoided should the proposal be implemented,” and “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C)(ii) & (iii). The agency makes the initial determination whether its contemplated action will have a significant environmental impact. Olmsted Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir. 1986). If the challenger to a negative determination shows that the agency failed to consider a substantial environmental issue, the negative determination will be upheld only if the agency can show that its decision was reasonable. Id. The Secretary’s Environmental Assessment concluded that his actions with respect to the Sears building would not have a significant environmental impact. Ringsred does not dispute that an Environmental Assessment is a valuable screening device that allows agencies with limited resources to focus on truly important federal actions. See, e.g., Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 858 (9th Cir.1982); Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1245-47 (D.C.Cir. 1980). He argues, however, that the Environmental Assessment was deficient in that it failed to consider the environmental impact of and alternatives to the proposed parking ramp construction. He contends that such considerations were required for three reasons: (1) the proposed parking ramp construction is itself part of a major federal action; (2) even if the proposed parking ramp construction is not part of a major federal action, its environmental impact should have been considered as a secondary effect of the Secretary’s actions with respect to the Sears building; and (3) 42 U.S.C. § 4332(2)(C)(ii) required consideration of the “adverse environmental effects” of the proposed parking ramp construction. Before addressing these arguments, we observe that the Secretary took the following actions with respect to the gaming facility and the proposed parking ramp construction: (1) He took the Sears building in trust and proclaimed it an Indian reservation, 25 U.S.C. §§ 465, 467; (2) he approved the lease of the Sears building to the Commission, 25 U.S.C. § 415; and (3) he approved certain contracts between the Band and the City, 25 U.S.C. § 81. Of these actions, the only ones that relate to the proposed parking ramp are those where the Secretary approved a contract concerning the parking ramp. We first conclude that the Secretary’s actions relating to the parking ramp project were so incidental that the project does not constitute part of a major federal action. No federal action is a legal condition precedent to the construction of the parking ramp. See Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 272 (8th Cir.) (must consider entire nonfederal project when federal action is legal condition precedent to accomplishment of it), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). The City itself could exercise its condemnation powers and construct the parking ramp without federal approval or assistance. Furthermore, while the Secretary’s actions relating to the parking ramp project (i.e., the approval of contracts) did give him a factual veto power, these actions were not significant enough to establish a major federal action. Three factors must be considered to decide whether this factual control required consideration of the environmental effects of the parking ramp project: “(1) the degree of discretion exercised by the agency over the federal portion of the project; (2) whether the federal government has given any direct financial aid to the project; and (3) whether ‘the overall federal involvement with the project [is] sufficient to turn essentially private action into federal action.’ ” Id. (citing NAACP v. Medical Center, Inc., 584 F.2d 619, 629 (3d Cir.1978)). In approving Indian contracts under 25 U.S.C. § 81, the Secretary’s responsibility is “to protect the Indians from improvident and unconscionable contracts.” In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). The Bureau of Indian Affairs official who approved the contracts between the Band and the' City, stated in an affidavit before the district court that “[s]uch review and approval by the Bureau of Indian Affairs is routinely requested by, and provided to federally-recognized Indian tribes, even in instances where, like the Parking Ramp agreement, the Bureau of Indian Affairs does not consider such approval necessary.” App. 93. Beyond this approval, the Secretary has no role in or control over the construction of the parking ramp. The federal government provides no financial aid to the project and will receive no revenue from it. The land is owned by the City of Duluth. The parking ramp is not subject to any federal licensing. And the federal government has no input regarding the design or construction of the parking ramp. We thus conclude that the Secretary’s approval of contracts relating to the parking ramp project did not transform the project into part of a major federal action whose environmental effects should have been considered in an Environmental Assessment. Cf. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 644 n. 9 (5th Cir.1983) (“A private act does not become a federal act, albeit a ‘major’ one, merely because of some incidental federal involvement.”); Save the Bay, Inc. v. United States Corps of Eng’rs, 610 F.2d 322, 326-27 (5th Cir.) (same), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 60 L.Ed.2d 130 (1980)). We are also convinced that the Environmental Assessment need not have considered the parking ramp as a secondary or indirect impact of the contemplated action concerning the Sears building. In Winnebago Tribe, we rejected the argument that in approving a segment of a proposed power line, the Army Corps of Engineers had to consider the environmental impacts of the entire proposed nonfederal project. 621 F.2d at 273. Like the situation in Winnebago Tribe, the parking ramp project is a nonfederal project that, at the time the Environmental Assessment was considered, was only in the proposal stage. A requirement that every Environmental Assessment must speculate as to the environmental effects of privately proposed developments that are outside the control of the federal government would create burdens in the Environmental Assessment “screening process” that are equally significant to those placed on an agency required to file an EIS. Cf. Defenders of Wildlife v. Andrus, 627 F.2d at 1245-47. We therefore cannot conclude that the Secretary was required to consider as an indirect impact the environmental effects of the proposed parking ramp construction. Ringsred’s final NEPA argument is that the impact of the proposed parking ramp construction constitutes “adverse environmental effects” that should have been considered pursuant to 42 U.S.C. § 4332(2)(C)(ii). This argument presupposes, however, that the Secretary had an obligation to file an EIS considering such information. We think the Secretary reasonably concluded that the development of the Sears building as a gaming facility would not significantly affect the environment. Therefore, there were no “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Because the Secretary reasonably concluded that he was not subject to the EIS requirement, we reject Ringsred’s final NEPA argument. Ringsred next contends that the Secretary violated NHPA by failing to consider the effect of the parking ramp project on historic properties eligible for inclusion in the National Register. See 16 U.S.C. § 470f. Section 470f is triggered when there exists a “Federal or federally assisted undertaking.” Id. The parties treat NHPA’s “undertaking” requirement as essentially coterminous with NEPA’s “major Federal actions” requirement. See, e.g., United States v. 162.20 Acres of Land, 639 F.2d 299, 304 n. 5 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981). Accordingly, based on our above discussion of the lack of federal involvement with the parking ramp project, we conclude that the project is not an “undertaking” and thus falls outside the scope of NHPA. Finally, Ringsred contends that in approving contracts that authorized the Commission to operate the gaming facility, the Secretary unlawfully conferred Indian sovereign rights and immunities on the City. As specifically pleaded in Ringsred’s seventh cause of action, the foundation for this argument is that the gambling being conducted at the Sears building, which is on Indian reservation land, is in violation of Minnesota’s gambling laws. In California v. Cabazon Band of Mission Indians, — U.S. -, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), the Supreme Court recently held that a state’s regulatory, as opposed to prohibitory, gambling laws are not applicable to gambling operations on Indian reservations. Minnesota’s Bingo gambling laws are solely regulatory. See Minn.Stat.Ann. § 349.11 (West Supp.1987) (purpose of Bingo gambling laws is to “regulate” such gambling). Like the present situation, the gambling operations in Cabazon were conducted on Indian reservation land and were managed by Indians and non-Indians. See 107 S.Ct. at 1097-98 n. 2 (Stevens, J., dissenting). In recognition of the fact that important tribal interests outweighed the interests embodied in state regulatory laws, the Court rejected the argument that the Tribes were simply marketing an exemption from state gambling laws. Id. at 1093-94; see also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983). We are similarly unpersuaded that the Band’s relationship with the City is unlawful. The Band is lawfully “generating value on the reservation[ ] through activities in which [it has] a substantial interest.” 107 S.Ct. at 1094. We thus reject Ringsred’s argument that the gaming facility is being operated in an unlawful manner. See City of Duluth v. Alexander, 404 N.W.2d at 26-27 (rejecting similar argument). The judgment of the district court is affirmed. . The Honorable Robert G. Renner, United States District Judge for the District of Minnesota. . As part of his appeal, Ringsred moved for a temporary restraining order, an injunction pending appeal, and other relief aimed at preventing the commencement of the parking ramp construction. These motions were denied by this panel's order of June 11, 1987. . The agreements approved by the Secretary included a "Commission agreement," which authorizes the Commission to run the gaming facility and provides that 25.5 percent of gaming profits will be distributed to the Band, 24.5 percent to the City and 50 percent to the Commission; a "guarantee agreement,” which states that bonds issued for the parking ramp will be paid and completely guaranteed by the Band and the Commission; a "parking lease agreement," which establishes rent and operational parameters for the parking ramp; and a "development agreement," which outlines the development commitments of the parties and references all agreements to a single document. . We have serious doubts as to whether Ringsred has standing to assert this claim. Cf. City of Duluth v. Alexander, 404 N.W.2d at 26 n. 2 (expressing doubts as to whether Alexander, a property owner challenging the condemnation of land for the parking ramp, had standing to litigate whether the use of the gambling facility is unlawful). Ringsred’s asserted threatened injury is that if the proposed parking ramp is constructed the environment will be harmed and historic properties in which he has a financial interest will be destroyed. Among other requirements, Article III of the Constitution requires that the party who invokes a court’s authority must show that his claimed actual or threatened injury "is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Even if we accepted Ringsred’s argument that, under the present agreements, the City could not participate in the operation of the gaming facility, City of Duluth recognized the need for additional parking in the area other than related to the gambling facility.

United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, Mississippi

CLARK, Chief Judge: This is an appeal from a district court’s grant of summary judgment for the government in a land condemnation action, 567 F.Supp. 987. The court found no material factual issues in the landowners’ claim that the government had not complied with the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (NHPA), and the National Environmental Policy Act, 42 U.S.C. § 4332 (NEPA). We affirm. I. Procedural History On February 14, 1978, the United States filed a complaint and declaration of taking, with a deposit of estimated just compensation for the landowners’ property. The property is located near the Tombigbee River on the site of the abandoned riverfront towns of Colbert and Barton, Mississippi. On the property is an antebellum home, “Cedar Oaks,” which has been owned by the Uithoven family since 1913. The U.S. Army Corps of Engineers (Corps) seeks to include the property within the Tennessee Tombigbee Waterway Project, as part of the “Barton Ferry Recreation Area” along the Columbus Lock and Dam segment of the waterway. The Barton townsite and Cedar Oaks are listed on the National Register of Historic Places as within the Tombigbee River Multi-Resource District (River District). As a defense to the condemnation the landowners asserted that the government could condemn the National Register site only after it had complied with the provisions of the NHPA. The district court granted the government’s motion to strike the defense. A panel of this court affirmed, United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, Mississippi, 639 F.2d 299 (5th Cir. 1981), but remanded for a determination of whether the Corps had come into compliance with the Act, for purposes of deciding whether to withhold possession from the government or to issue appropriate injunctive relief. On remand, the landowners asserted that the government had not complied with either NHPA or NEPA. The district court granted the government’s motion for summary judgment. The landowners appeal. II. The NHPA Claim The landowners urge us to reconsider the prior panel’s holding that noncompliance with NHPA is not a valid defense to a condemnation action. The federal doctrine of the law of the case is that when an appellate court establishes a rule of law in a particular case, it will not depart therefrom on a successive appeal unless sound reasons exist to do so. See generally 1B J. Moore, Federal Practice, ¶ 0.404[10] at 573-74 (2d ed.1974). In this circuit, however, the law-of-the-case doctrine is supplanted by our firm rule that one panel cannot disregard the precedent set by a prior panel even though it perceives error in the precedent. Ruiz v. Estelle, 666 F.2d 854, 857 n. 5 (5th Cir.1982). In this case, we find no reason to decide differently the issue whether noncompliance with NHPA is a valid defense to a condemnation. The landowners’ request for reconsideration is based on the reasoning of the court in Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983). There the court affirmed the grant of a preliminary injunction stopping the government from auctioning oil leases before complying with NEPA’s requirements. The court rejected the government’s argument that the lease sale alone could not hurt the environment, and thus should have been allowed to proceed while the court made a more thorough examination of its lawfulness. The court reasoned: It is appropriate for the courts to recognize this type of injury in a NEPA case, for it reflects the very theory upon which NEPA is based — a theory aimed at presenting governmental decisionmakers with relevant environmental data before they commit themselves to a course of action. $ * $ H: * * In the present case plaintiffs would suffer harm if they were denied an injunction, if the lease sale then took place, and if the court then held that a supplemental EIS was required. In that event, the successful oil companies would have commited time and effort to planning the development of the blocks they had leased, and the Department of the Interi- or and the relevant state agencies would have begun to make plans based upon the leased tracts. Each of these events represents a link in a chain of bureaucratic commitment that will become progressively harder to undo the longer it continues. Once large bureaucracies are committed to a course of action, it is difficult to change that course — even if new, or more thorough, NEPA statements are prepared and the agency is told to “redecide.” It is this type of harm that plaintiffs seek to avoid, and it is the presence of this type of harm that courts have said can merit an injunction in an appropriate case. 716 F.2d at 952. The landowners argue that NHPA likewise is focused on the governmental decisionmaking process, and that the prior panel erred in allowing the government to condemn land without first complying with NHPA. The Watt decision is not persuasive in the context of this case. The prior panel held that the vesting of title in the government is a neutral act vis-a-vis the NHPA, and therefore that noncompliance with NHPA is not a defense to the condemnation itself. 639 F.2d at 304. The court further held, however, that “a district court having before it a condemnation case may require compliance with section 470f and either withhold possession by the government or take appropriate injunctive action to enforce its order.” Id. at 305. This holding is not inconsistent with Watt. The transfer of title effected by the condemnation does not relieve the government of its obligations under NHPA or NEPA. Those obligations must be fulfilled before the government takes any steps toward making use of the property taken. Noncompliance can be the basis of a court order withholding possession of the land or enjoining any construction or other activity that threatens to disturb the environment. Id. at 304. Moreover, a court determining whether compliance has been achieved cannot take into consideration the fact that the government has acquired the property. Not even the first link forged in “a chain of bureaucratic commitment” can be used to strengthen the agency’s NHPA study of the effect of the proposed undertaking. With this in mind, we review the district court’s determination that no genuine issue of material fact existed as to corps compliance with the provisions of NHPA. The court found that the Corps had achieved compliance under 36 C.F.R. § 800.6(c)(3), which provides: Effect of Memorandum of Agreement. Agreements duly executed in accordance with these regulations shall constitute the comments of the Council and shall evidence satisfaction of the Federal agency’s responsibilities for the proposed undertaking under Section 106 of the Act, Section 2(b) of the Executive Order, and these regulations. The Corps and the Advisory Council on Historic Preservation ratified a Memorandum of Agreement covering the River District on December 19, 1977. The landowners concede that the Corps developed a structure treatment plan pursuant to Section 2(c) of the agreement, which the Advisory Council ratified on April 18, 1983. The court found that the plan fully satisfied the government’s obligations under 2(c), and therefore under NHPA. The landowners raise two objections on appeal to the structure treatment plan. The first is that it was developed too late: well after the government condemned the subject property. We have already declined the landowners’ invitation to reconsider whether the government’s failure to comply with NHPA before condemning property is disabling. The district court found that the Corps came into compliance with NHPA before making any irretrievable commitment of resources or engaging in any construction on the recreation area. The landowners do not challenge this finding. Therefore, our concern that NHPA be honored before the government takes steps to use property prematurely taken is satisfied. The landowners’ second objection is that there are material fact issues as to whether the government complied with section 2(c) of the Memorandum of Agreement. Specifically, the landowners contend that the Corps did not document the effects of the Barton Ferry Recreation Area on the Colbert-Barton townsites, or adequately review alternatives to the use of the Cedar Oaks structure. The district court rejected this argument based on its review of the government documents and the landowners’ evidence of the inadequacy of the documents. Our review of the same evidence leads us to concur with the district court that the government documents “clearly demonstrate compliance with 2(c)’s obligations to (a) develop a structure treatment plan, (b) document the project’s effect on each structure involved, (c) review reasonable mitigation alternatives, (d) select a most feasible mitigation alternative, and (e) submit supporting maps and documentation.” We therefore find no error in the court’s grant of summary judgment for the government on the NHPA claim. III. The NEPA Claim The landowners contend that the Corps has not complied with NEPA because it did not conduct a site-specific environmental impact study for the Barton Ferry Recreation Area. The district court rejected this argument, reasoning that as long as the agency performs the necessary depth of analysis, the choice between a programmatic and a site-specific Environmental Impact Statement is within the agency’s discretion. The court found that the Supplemental Environmental Impact Statement adequately dealt with the concerns raised by the landowners. It also found the supplemental statement, in conjunction with other documents, demonstrated in-depth attention to the unique archeological and architectural features of the Barton Ferry Recreation Area which merited individualized attention. We find no error in the district court’s evaluation of this aspect of the NEPA claim. The landowners contend that the court erred in determining that the Corps did not abuse its discretion in failing to perform a site-specific impact statement. A site-specific impact statement is not necessary, however, if the programmatic impact statement contains all the analysis required by section 102(2)(C) of NEPA. Natural Resources Defense Council v. Administrator, 451 F.Supp. 1245, 1259 (D.D.C.1978), aff'd, 606 F.2d 1261, 1271 (D.C.Cir.1979). Here, the supplemental statement provides analysis of impacts recurring along the waterway. Although it does not treat impacts to the Barton Ferry Recreation Area separately, it does address and provide mitigation alternatives to recurring adverse impacts on wildlife and fish; noise, water, and air pollution; effects on land use and forestry; erosion; and the destruction of cultural resources. In addition, the supplemental statement incorporated by reference the exhaustive studies performed on the archeological and architectural resources at the Colbert-Barton townsites, including Cedar Oaks. Therefore, the landowners’ claim that the supplemental statement did not include an adequate treatment of the adverse impacts on and alternatives to the use of Cedar Oaks is meritless. We accordingly affirm the district court’s grant of summary judgment for the government on the NEPA issue as well. AFFIRMED. . Section 470f of the NHPA provides as follows: The head of any federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal Department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Section 470i and Section 470t of this title, a reasonable opportunity to comment with regard to such undertaking. . Section 102(2)(C) of NEPA provides: ... all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal Actions significantly affecting the quality of the human enviornment, a detailed statement by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship, between short-term uses of man’s environment and the maintenance of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to the environmental impact involved ... 42 U.S.C. § 4332(2)(C). . Architectural Resources c. The Corps of Engineers, in consultation with the Alabama and Mississippi State Historic Preservation Officers, will develop a plan for the treatment of structures that meet the National Register criteria and that will be affected by the project. This plan will be submitted to the Council for comment pursuant to 36 C.F.R. Part 800 and shall document the project’s effects on each property, include a review of alternatives that would avoid or mitigate any adverse effects, and indicate those alternatives considered to be the most feasible and prudent. The plan shall be accompanied by maps, survey documentation, and the views of the Mississippi and Alabama State Historic Preservation Officer. . The government asserts that the NEPA challenge is untimely. Because we affirm the district court’s treatment of the NEPA issue on the merits, we need not address the timeliness issue.

Maher v. City of New Orleans

ADAMS, Circuit Judge: The issues posed in the case at hand, although they concern a municipal ordinance, nevertheless carry implications of nationwide import. Plaintiff Maher, on the basis of the Fifth Amendment, assails an ordinance of the City of New Orleans that regulates the preservation and maintenance of buildings in the historic Vieux Carré section of that city, popularly known as the French Quarter. Maher asserts that, on its face, the Vieux Carré Ordinance affronts the due process clause, because it provides no objective criteria to guide the Commission charged with its administration. Maher also contends that the Ordinance, as applied and under the guise of regulation, constitutes a taking of his property without just compensation. After dealing with prefatory issues of res judicata and collateral estoppel, the district court reached the merits and concluded that the Ordinance was valid. We affirm. J. Factual Background. By amendment to the Louisiana Constitution in 1936, authority was vested in the City of New Orleans to create a Commission whose purpose was stated to be: The preservation of such buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value, and which buildings should be preserved for the benefit of the people of the City of New Orleans and the State of Louisiana, and to that end the Commission shall be given such powers and duties as the . . . City of New Orleans shall deem fit and necessary. To implement the historical preservation plan, the City enacted the Vieux Carré Ordinance. That Ordinance establishes the Vieux Carré Commission and creates a framework of rules ■ governing its powers, duties and operations. Among its other provisions, the Ordinance stipulates that, to perform construction, alteration or demolition work within the geographic boundaries controlled by the legislation, one must procure a permit approved by the Commission. The present controversy centers on the fate of the Victorian Cottage situated at 818-22 Dumaine Street, adjacent to the Maher residence in the Vieux Carré. Mr. Maher, who owned the property until his recent death, had sought since 1963 to demolish the cottage and to erect a seven-apartment complex on the site. Following a preliminary approval of Maher’s proposal by its Architectural Committee, the Commission on April 16, 1963, disapproved Maher’s application to raze the cottage. Almost from the time of the original application, interested individual neighborhood owners, as well as organized groups — including the Vieux Carré Property Owners and Associates, Inc., the French Quarter Residents Association and the Louisiana Council for the Vieux Carré — vigorously opposed the Maher plan to tear down the cottage and to develop the property. Maher undertook a succession of attempts to secure approval of his plans from the Commission. After several refusals, the Commission was finally prevailed upon to issue the permit. Ultimately, however, construction was prohibited when on August 16, 1966, the City Council for New Orleans, on the basis of an appeal, forbade the grant of a demolition permit. While the proceedings before the Commission and City Council were pending, Maher instituted suit in the Civil District Court for Orleans Parish, Louisiana. Upon the City Council’s final refusal to issue a demolition permit, the litigation in the state court was pressed. The relief requested was a declaration that the City Council’s action was beyond its statutory authority and, hence, null and void. On February 26, 1968, the Civil District Court granted judgment for Maher. The Louisiana Court of Appeal reversed, holding tht the City Council’s review was proper and, further, that the Ordinance was constitutional — both on its face and as applied to the Maher application. On appeal, the Louisiana Supreme Court affirmed the judgment of the Court of Appeals that the City Council’s action lay within its authority, but held that the constitutionality of the Ordinance had not been pleaded in the trial court and consequently could not be considered on appeal. Subsequently, in 1971, Maher filed the present federal suit under the civil rights act against the City and its agencies, seeking a declaratory judgment that the Ordinance is unconstitutional and an injunction against its enforcement. The district court held that res judicata and collateral estoppel were not barriers to the litigation, and proceeded to hold the Ordinance constitutional. This appeal followed. II. Collateral Estoppel and Res Judicata Do Not Foreclose the Suit. The initial issue before us is whether, because of the prior state court action, the present suit is barred by principles of res judicata or collateral estoppel. Serving the interest of finality and judicial economy, these doctrines eliminate needless relitigation. Where applicable, res judicata prohibits readjudication of all matters that were, or might have been, litigated respecting the same cause of action between two parties. By comparison, collateral estoppel would preclude renewed controversy over an issue decided in an earlier case even when, in a subsequent case, a different cause of action is presented. Subsumed in the determination whether principles of finalty govern our disposition of the present case is the underlying inquiry whether the issue is one of state or federal law. Different tests are relevant depending whether the choice of law issue is resolved in favor of federal or state rules. However, in the circumstances here, the outcome is unaffected, since we are persuaded that the suit is not barred under either Louisiana or federal finality rules. Louisiana state law, stemming from the French Code Civile, takes a more narrow perspective on doctrines of repose than do jurisdictions whose rules derive from the common law. Res judicata in Louisiana is stricti juris, forbidding relitigation only-on the ultimate judgment rendered, but not extending broadly to matters that “might have been litigated” and not comprehending intermediate facts. Under the Louisiana view, less weight is attached to finality than in common law jurisdictions, and all doubts are resolved in favor of relitigation. The district court and the parties have proceeded on the assumption that the applicable law regarding finality is that of Louisiana. We have reviewed the cases relied upon by the district court and by the parties in their briefs and, if Louisiana law controls, the conclusion of the district court that this suit may be maintained does not appear to be erroneous. Where federal jurisdiction is bottomed on state law, as in a diversity matter, state law principles of collateral estoppel govern, under the rationale of Erie Railway Co. v. Tompkins. Unlike a diversity case, however, the suit here presents a federal constitutional question to the federal courts for resolution according to principles of federal law. Despite the fact that questions of state law and issues of local importance undeniably play a core role, this case would seem more aptly characterized as a federal matter. In such event, federal notions of repose must provide the guideposts for analysis. In Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., this Court applied federal concepts of finality in an antitrust case springing from certain business practices in Louisiana. The Court eschewed rough hewn results, and carefully balanced the interests implicated in finality determinations: The doctrines [of collateral estoppel and res judicata] must be used, however, not as clubs but as fine instruments, that protect the litigant’s right to a hearing as well as his adversary and the courts from repetitive litigation. Bearing this admonition in mind, we address the City’s claims that the present suit should be dismissed. The argument is advanced that collateral estoppel controls the disposition of this case. However, the constitutional issues posed now by Maher were expressly excluded from consideration by the Louisiana Supreme Court. It is thus difficult to perceive in what manner the state court proceeding can operate in the case sub judice to estop Maher from airing his allegations. We therefore conclude that collateral estoppel does not prohibit this suit. The contention that res judiciata prevents Maher’s presentation to the federal court requires a rather more subtle sifting of the facts and procedures. For res judicata to interdict an action, the rule is that “a judgment ‘on the merits’ in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action.” It is not disputed that the state action in City of New Orleans v. Maher was between parties identical with or privy to the parties here, and the judgment in that case was on the merits and final. The inquiry thus centers on whether the cause of action set forth in the present federal case is identical with that in the prior state case. There is no per se rule that the existence of earlier litigation between the same parties, predicated on a common fact nucleus, establishes res judicata. Rather, in this circuit it has been held, The principal test for comparing causes of action is whether or not the primary right and duty, and the delict or wrong are the same in each action. This test is perhaps easier to formulate than to apply, but in its application we are aided by precedent. In Exhibitors Poster this Court tolerated a succession of federal suits presenting related antitrust claims. Although a single business-policy decision dating from a specific period formed the basis for the suit before the Court as well as the earlier litigation, res judicata did not bar the action, the Court held, because the conduct alleged to be illegal continued, giving rise to new damage claims. After paying due heed to the possible collateral estoppel impact of individual issues previously adjudicated, the Court, focusing solely on the definition of “cause of action,” held that new causes of action were alleged in the later suit. Since Maher brought the first suit in state court, we must assess the similarity of the two causes of action by reference to the local Louisiana definition of “cause of action.” This Court— applying Louisiana law in a franchise dispute — has held no res judicata barrier to a federal suit for breach of contract following a state action for conversion and business injury, both arising out of the same sequence of events. The panel stated that the gists of the actions were different, [even though] the language in the two complaints bear some similarity because of the pleading requirements of Louisiana law. We have examined the causes of action presented in the state and federal cases regarding Maher’s zoning battle with the City of New Orleans. The state case was pleaded flatly as a challenge to the findings and procedures of the City Council and its agencies. The Louisiana Supreme Court declared: Neither in the petition nor in any other pleading was. there any attack on the legality or constitutionality of Article 14, Section 22A of the Louisiana Constitution, or of the ordinance of the City enacted pursuant thereto. The state Supreme Court expressly refused to reach the constitutional arguments offered on appeal by the parties. Admittedly, there is an overlap in the operative facts respecting both claims. It is true that Maher’s success in either action might result in the same ultimate outcome, namely, dismantling the cottage. Nevertheless, the state and federal complaints articulate distinct causes of action — one based on state law, one on federal constitutional precepts. The analysis and precedents employed in making the two arguments are quite distinct. Somewhat disparate proof would be required in assessing whether the City Council has overstepped its authority under Louisiana law, or whether a taking has occurred in contravention of the Fifth Amendment. We need not decide whether the same result would obtain had the initial suit been brought in the federal court operating under federal rules and policies respecting joinder of claims arising from a common factual basis. All we decide here is that, under the configuration of this case, entwined with local Louisiana pleading and practice rules, disposition of the merits is not foreclosed by res judicata. Indeed, the very policies favoring an end to litigation point to the immediate adjudication of the merits. At this juncture, no fewer than five tribunals have been presented with Maher’s claims respecting the elimination of his cottage. The parties have spent themselves — to date unsuccessfully — to obtain a definitive judicial response. But, even if this Court were to dismiss the present action, litigation between the parties would not necessarily be terminated. Maher might still return to the state courts to pursue his constitutional claim. The interest of judicial peace would thus seem poorly served by a dismissal here granted on grounds of res judicata. Furthermore, it appears that proceedings have been instituted against Maher for violation of the maintenance clauses of the Vieux Carré Ordinance. As a defense to any prosecution under such provisions the question of an unconstitutional taking of Maher’s property might arise, requiring judicial attention in yet another forum. For these reasons we conclude that res judicata and collateral estoppel are inapplicable, and that the energy of both the parties and the courts would be best conserved by proceeding to address the merits of Maher’s allegations. III. The Vieux Garré Ordinance is a Proper Exercise of the Police Power. The Supreme Court has erected way-posts to guide our consideration whether an enactment such as the Vieux Carré Ordinance violates due process. A legislative determination is generally accorded a presumption of constitutionality, but it is nevertheless subjected to several tests before its validity is established. To be sound, the enactment must be within the perimeter of the police power, an authority residing in the law-making body to secure, preserve and promote the general health, welfare and safety. A regulatory ordinance, to be sustained as a suitable exercise of the police power, must bear a real and substantial relation to a legitimate state purpose. The means selected must be reasonable and of general application, and the law must not trench impermissibly on other constitutionally protected interests. Maher contends that, although the legislative purpose underlying the preservation of the Vieux Carré, may be unobjectionable, the general program of effectuation as well as the denial of Maher’s demolition permit have inadequate standards and an arbitrary enforcement that violate due process. Furthermore, he asserts that the law is confiscatory in its operation and constitutes a taking that requires compensation. A substantial body of precedent exists respecting the appropriate balancing of interests where an ordinance diminishes the freedom of an individual owner to dispose of his property' in the name of what the lawmaker deems the greater public benefit. It is generally accepted that legislative bodies are entrusted with the task of defining the public interest and purpose, and of enacting laws in furtherance of the general good. The Supreme Court has made it clear that, while the police power is not unlimited, its boundaries are both ample and protean. Drawing on the rich and flexible police power, a legislature has the authority to respond to economic and cultural developments cast in a different mold, and to essay new solutions to new problems. In Village of Euclid v. Ambler Realty Co., the watershed case upholding the right of a municipality to enact a general zoning ordinance, the Supreme Court observed: [Problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Accordingly, no fixed constraints may be placed on the police power for the future. Rather, each case must be evaluated as it arises, on its own facts and in light of the prevailing circumstances. A keystone of due process analysis is the determination that the state purpose to be served is legitimate. It would therefore appear beneficial to detail the substantial support that exists for a legislative determination to preserve historic ■ landmarks and districts. The Ordinance'in question here declares as its objective: The Vieux Carré shall have for its purpose the preservation of such buildings in the Vieux Carré section of the City as, in the opinion of the Commis-' sion, shall have architectural and historical value and which should be pre-. served for the benefit of the people of the City and State. Proper state purposes may encompass not only the goal of abating undesirable conditions, but of fostering ends the community deems worthy. In Berman v. Parker the Supreme Court, giving “well-nigh conclusive” effect to the legislative determination of community needs and solutions, upheld the purposes of a slum clearance program designed to “develop &■ more balanced, more attractive community.” Nor need the values advanced be solely economic or directed at health and safety in their narrowest senses. The police power inhering in the lawmaker is more generous, comprehending more subtle and ephemeral societal interests. “The values [that the police power] represents are spiritual as well as physical, aesthetic as well as monetary. It is within the domain of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” This circuit has held in Stone v. City of Maitland that zoning ordinances may be sustained under the police power where motivated by a desire to “enhanc[e] the aesthetic appeal of a community.” The Court noted with approbation city action to maintain “the value of scenic surroundings” and “the preservation of the quality of our environment.” One of the nation’s distinctive historic districts is found in New Orleans. The federal, state and local government have each ascertained that benefits would be conferred on society by preservation of the French Quarter. •Throughout the country, there appears to be a burgeoning awareness that our heritage and culture are treasured national assets. Many locales endowed with historic sites have enacted protective measures for them. The Vieux Carré Ordinance is among the earliest efforts in this regard, and has served as a prototype for similar enactments elsewhere. The federal government also has acknowledged our debt to the past, in the National Historic Preservation Act of 1966: The Congress finds and declares— (a) that the spirit and direction of the Nation are founded upon and reflected in its historic past; (b) that the historical and cultural foundations of the Nation should be preserved as a living part of .our community life and development in order to give a sense of orientation to the American people . . .. An Advisory Committee on Historic Preservation was established, and a National Register of Historic Places was developed that included the Vieux Carré. The Court is not free to reverse the considered judgment of the legislature that it is in the public interest to preserve the status quo in the Vieux Carré and to scrutinize closely any proposed change in the ambiance by private pwners. Where a legislative determination is “fairly debatable, the legislative judgment must be allowed to control.” We thus conclude that, considering the nationwide sentiment for preserving the country’s heritage and with particular regard to the context of the unique and characteristic French Quarter, the objective of the Vieux Carré Ordinance falls within the permissible scope of the police power. Since we deal here with legislation designed to effect a legitimate economic and social policy, so long as the means chosen — a matter largely entrusted to the legislature — are reasonable and not arbitrary, due process is satisfied. It is not disputed that the Vieux Carré Ordinance furthers the object of preserving the character of the district in a meaningful fashion. The Ordinance is of general application to a well-defined geographic area. In addition, it establishes a Commission whose professional qualifications and means of selection are delineated. Within the boundaries of the French Quarter, the Commission is directed to review plans for all proposed demolition or construction and its duties and procedures are specific. After due consideration the Commission reports its recommendations to the Director of the Department of Safety and Permits, whereupon a permit for the proposed work may issue. Provision is made for review by the City Council. Though generally the procedures ordained are not faulted, Maher attacks the schema as violative of due process because, in his view, it provides inadequate guidance to the Commission for the exercise of its administrative judgmerit. The City concedes that no official objective standards have been promulgated in this regard. Maher suggests that formal standards are mandatory to guide the Commission in its resolution of the buildings deserving of preservation. To satisfy due process, guidelines to aid a commission charged with implementing a public zoning purpose need not be so rigidly drawn as to prejudge the outcome in each case, precluding reasonable administrative discretion. Because of the circumstances pertaining to the Vieux Carré, we conclude that the Ordinance provides adequate legislative direction to the Commission to enable it to perform its functions consonant with the due process clause. While concerns of aesthetic or historical preservation do not admit to precise quantification, certain firm steps have been undertaken here to assure that the Commission would not be adrift to act without standards in an impermissible fashion. First, the Louisiana constitution, the Vieux Carré Ordinance and, by interpretation, the Supreme Court of Louisiana, have specified their expectations for the Vieux Carré, and the values to be implemented by the legislation. Further, the legislature exercises substantial control over the Commission’s decision making in several ways. Where possible, the ordinance is precise, as for example in delineating the district, defining what alterations in which locations require approval, and particularly regulating items of special interest, such as floodlights, overhanging balconies or signs. Another method by which the lawmaking body curbed the possibility for abuse by the Commission was by specifying the composition of that body and its manner of selection. Thus, the City is assured that the Commission includes architects, historians and business persons offering complementary skills, experience and interests. The elaborate decision-making and appeal process set forth in the ordinance creates another structural check on any potential for arbitrariness that might exist. Decisions of the Commission may be reviewed ultimately by the City Council itself. Indeed, that is the procedure that was followed in the present case. It is true, as Maher observed, that no officially promulgated regulations pinpoint each decision by the Commission. Nonetheless, apart from the evident purpose of the legislation and the taut lines of review maintained by the legislature over the operation of the Commission, other fertile sources are readily available to promote a reasoned exercise of the professional and scholarly judgment of the Commission. It may be difficult to capture the atmosphere of a region through a set of regulations. However, it would seem that old city plans and historic documents, as well as photographs and contemporary writings may provide an abundant and accurate compilation of data to guide the Commission. And the district court observed, In this case, the meaning of a mandate to preserve the character of the Vieux Carré “takes clear meaning from the observable character of the district to which it applies.” Aside from such contemporary indicia of the nature and appearance of the French Quarter at earlier times, the Commission has the advantage at present of a recent impartial architectural and historical study of the structures in the area. The Vieux Carré Survey Advisory Committee conducted its analysis under a grant to Tulane University from the Edward G. Schleider Foundation. Building by building, the Committee assessed the merit of each structure with respect to several factors. For example, regarding the Maher cottage at issue here, the Louisiana Supreme Court noted that the Survey Committee “was of the opinion that this cottage was worthy of preservation as part of the overall scene.” While the Schleider survey in no way binds the Commission, it does furnish an independent and objective judgment respecting the edifices in the area. The existence of the survey and other historical source material assist in mooring the Commission’s discretion firmly to the legislative purpose. We thus conclude that the present zoning ordinance, enacted to promote the social and economic goals of preserving an historical district judged of public value, does not delegate unfettered authority to the Vieux Carré Commission. Rather, the legislature has provided adequate structure and guidelines to that administrative body. Although it primarily concerned a taking, Berman v. Parker supplies an apt analogy to the present situation. The question arose whether it was necessary to have legislative guidance for each individual decision in a context of a district-wide project to eliminate slums and blighted areas. A redevelopment agency had decided to raze an entire district, and an individual owner objected to implementing the decision with respect to its property, insisting that its building should be allowed to stand because it was safe, sanitary and profitable. The Supreme Court held that the agency, acting with the needs of the whole community in mind and the advantage of expert consultation, was free to implement its mandate with respect to the entire district without the need for a specific showing in each case that its action was necessary to the purpose of the legislation. Allowing each affected party to challenge the basis for an agency determination could thwart a comprehensive project, the Court held. It would appear that the Vieux Carré Commission, like the agency in Berman, acts in harmony with the public interest and directive, affords procedural fairness, and utilizes expert assistance. By contrast, there is a case in which the Supreme Court did strike down a zoning regulation because of its improper delegation of arbitrary, unreviewable decision-making power by the enacting body. In Seattle Trust Co. v. Roberge, a local ordinance prohibited the erection of a philanthropic institution in a specified area, unless written consent was acquired from surrounding neighbors. Such provision, the Court held, violated due process, because no standards existed to govern consent, and consent could be withheld for any reason or for no reason. An owner was afforded no review or other recourse, and was thus entirely subject to the caprice of its neighbors. In addition to his argument, that the ordinance is arbitrary for want of standards, Maher asserts that the ordinance as applied to him was arbitrary, because the decision of the City Council to prohibit him from leveling the Dumaine Street residence was unsupported by reasons. The district court, faced with this contention stated, Considerable testimony supported the [Council’s] position that the Maher cottage had substantial architectural value as part of the Vieux Carré scene as well as some individual architectural merit. [Although] a finding [in Maher’s favor] would have certainly been possible [,]••• [t]he fact that the city authorities did not ultimately agree . . . does not make their action arbitrary. The district court was persuaded that [T]his case has not been an example so much of a lack of standards as a disagreement as to whether the Maher cottage qualified for demolition under the applicable standards. In view of the whole record of this case, it is the opinion of the Court that since the City Council, rather than acting arbitrarily, merely resolved a fair, albeit heated, difference of opinion, the judgment of that zoning authority should be followed. As a reviewing tribunal, we cannot detect reversible error in the district court’s conclusion. IV. There is no Taking of the Dumaine Cottage that Would Require the Payment of Compensation. Maher presents a twofold basis for his contention that the application of the Vieux Carré Ordinance to the cottage constitutes a taking of his property. First, he claims that unless he can build the desired apartment complex, he may not pursue the most profitable use to which his property may be put. Second, he asserts that the city may not permissibly impose an affirmative maintenance duty upon a property owner without taking the property under the power of eminent domain. We deal with these two contentions in turn. To survive attack as a taking, the zoning regulation must — as a threshold matter — satisfy the due process requirements that its purpose and means are reasonable. Even if it comports with due process, a regulatory ordinance may nonetheless be a taking if it is unduly onerous so as to be confiscatory. The Supreme Court has held that every regulation is in some sense a prohibition and that whether a given regulation treads over the line of proper regulation and operates as a taking of property is a matter to be determined under all the circumstances in a specific case. Justice Holmes has remarked: Constitutional rights like others are matters of degree. To illustrate: Under the police power, in its strict sense, a certain limit might be set to the height of buildings without compensation; but to make that limit five feet would require compensation and a taking by eminent domain. The Supreme Court repeatedly made clear that an ordinance within the police power does not become an unconstitutional taking merely because, as a result of its operation, property does not achieve its maximum economic potential. In Goldblatt v. Hempstead an ordinance was amended to forbid excavation below the water table. Goldblatt owned property theretofore dedicated to quarrying which had through the years created a rather deep lake of several acres. The ordinance as applied to Goldblatt substantially reduced the value of his property and its potential utility. The Supreme Court nevertheless upheld the validity of the measure as a reasonable regulation, stating. Concededly the ordinance completely prohibits a beneficial use to which the property has previously been devoted. However, such a characterization does not tell us whether or not the ordinance is unconstitutional. It is an oft-repeated truism that every regulation necessarily speaks as a prohibition. If this ordinance otherwise is a valid exercise of the town’s police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional. Relying on Mugler v. Kansas the Supreme Court in Goldblatt observed that a properly enacted prohibition against a use of property for purposes adverse to the public weal is not controlled by the doctrine of eminent domain. Such regulation “is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain . . . The Court’s attention has been directed to ordinances of other municipalities where the authority to prohibit destruction of designated buildings is more limited. Refusals to allow razing may be accompanied by tax credit arrangements, by permission to transfer “building rights” to other owners or by other economic incentives or palliatives; ordinances may prohibit demolition conditionally or temporarily. Such measures may be considered wiser or fairer by a legislature which contemplates an historic preservation enactment. All we must decide today is whether an enactment that does not furnish alleviating devices may be constitutional. An ordinance forbidding the demolition of certain structures, if it serves a permissible goal in an otherwise reasonable fashion, does not seem on its face constitutionally distinguishable from ordinances regulating other aspects of land ownership, such as building height, set back or limitations on use. We conclude that the provision requiring a permit before demolition and the fact that in some cases permits may not be obtained does not alone make out a case of taking. As the ordinance was applied to Maher, the denial of the permit to demolish and rebuild does not operate as a classic example of eminent domain, namely; a taking of Maher’s property for government use. Nor did Maher demonstrate to the satisfaction of the district court that a taking occurred because the ordinance so diminished the property value as to leave Maher, in effect, nothing. In particular, Maher did not show that the sale of the property was impracticable, that commercial rental could not provide a reasonable rate of return, or that other potential use of the property was foreclosed. To the extent that such is the theory underlying Maher’s claim, it fails for lack of proof. We finally consider Maher’s objection to that portion of the ordinance requiring reasonable maintenance and repair of buildings in the French Quarter. By imposing an affirmative duty on property owners to prevent and correct defects, Maher claims that the City Council has overstepped permissible bounds of police power and by requiring him to make expenditures has effectively taken his property. To do this, Maher invokes the eminent domain provisions and demands just compensation. Tests set forth by the Supreme Court again inform our analysis. Once it has been determined that the purpose of the Vieux Garré legislation is a proper one, upkeep of buildings appears reasonably necessary to the accomplishment of the goals of the ordinance. As noted above, the responsibility for determining the wisdom of a legislative determination is not lodged with the judiciary. The fact that an owner may incidentally be required to make out-of-pocket expenditures in order to remain in compliance with an ordinance does not per se render that ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or to provide emergency facilities for exits and light. In pursuit of health, provisions for plumbing or sewage disposal might be demanded. Compliance could well require owners to spend money. Yet, if the purpose be legitimate and the means reasonably consistent with the objective, the ordinance can withstand a frontal attack of invalidity. Our decision is narrow regarding the requirement reasonably to maintain property in the French Quarter. In holding that the ordinance provision necessitating reasonable maintenance is constitutional, we do not conclude that every application of such an ordinance would be beyond constitutional assault. For, as the Supreme Court emphasized in Goldblatt, even a generally constitutional regulation may become a taking in an isolated application if “unduly oppressive” to a property owner. It may be that, in some set of circumstances, the expense of maintenance under the Ordinance — were the city to exact compliance — would be so unreasonable as to constitute a taking. The burden of proof as to this point falls on the party alleging the taking. On the evidence presented here, the district court found that Maher had not sustained his burden of demonstrating that the upkeep provisions were inordinately burdensome. We go no further than to state that we cannot find the district court determination in this regard to be erroneous. V. Conclusion. The Vieux Carré Ordinance was enacted to pursue the legitimate state goal of preserving the “tout ensemble” of the historic French Quarter. The provisions of the Ordinance appear to constitute permissible means adapted to secure that end. Furthermore, the operations of the Vieux Carré Commission satisfy due process standards in that they provide reasonable legislative and practical guidance to, and control over, administrative decision making. Once the district court concluded it was at liberty, under principles of finality, to reach the merits of Maher’s case, that court was not persuaded that the denial of a demolition permit was arbitrary. It did not find that the ordinance as applied to Maher constituted a taking of Maher’s property for which compensation was indicated. These determinations, based on the proof proffered there, are not clearly erroneous. An order will, therefore, be entered affirming the judgment of the district court. Affirmed. . New Orleans, La., Code ch. 65 (Ordinance No. 14,538) (Vieux Carré Ordinance). . This appears to be the first reported case in a federal court of appeals determining the constitutionality of such an enactment. But see Whitty v. City of New Orleans, Civ. No. 6367 (E.D.La., filed June 30, 1959) appeal dismissed, No. 18,059, 5th Cir., filed March 29, 1960 (denial of demolition permit in Vieux Carré does not offend constitution). See also City of New Orleans v. Dukes. 501 F.2d 706 (5th Cir. 1974), cert. granted 421 U.S. 908, 95 S.Ct. 1556, 43 L.Ed.2d 773 (1975) (constitutionality of pushcart vendor regulation in Vieux Carré). . 371 F.Supp. 653 (E.D.La. 1974). . La.Const. Art. XIV, Sec. 22A. The same section further charges the Commission with assuring “that the quaint and distinctive character of the Vieux Carre section of the City of New Orleans may not be injuriously affected, . that the value to the community of those buildings having architectural and historical worth may not be impaired, and . . that a reasonable degree of control may be exercised over the architecture of [buildings in] said Vieux Carre section . . . .” . Vieux Carré Ordinance § 65-8. Submission of plans for exterior changes to Commission. Before the commencement of any work in the erection of any new building or .in the alteration or addition to, or painting or repainting or demolishing of any existing building, any portion of which is to front on any public street or alley in the Vieux Carré Section, application by the owner for a permit therefor shall be made to the Vieux Carré Commission, accompanied by the full plans and specifications thereof so far as they relate to the proposed appearance, col- or, texture of materials and architectural design of the exterior, including the front, sides, rear and roof of such building, alteration or addition or of any out building, party wall, courtyard, fence or other dependency thereof. Additional procedures are set forth at §§ 65-9, -10. . Morris Maher, original plaintiff in this dispute, died in 1973. Thereafter, his wife was substituted as plaintiff in the district court, in her capacity as administratrix of his estate. For convenience we refer to the plaintiff as Maher. . As intervenors, the Vieux Carré Property Owners and Associates, Inc. and the French Quarter Residents Association have filed a . brief in this Court jointly with the City of New Orleans. Also participating in the brief as intervenors are the Crescent Council of Civic Associations and Louisiana Landmarks Society. . The route that Maher pursued through the Commission and City Council is elaborated by the district court in its opinion. 371 F.Supp. 653 (E.D.La.1974). . Maher v. City of New Orleans, 222 So.2d 608 (La.App.1969). . Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970). Nonetheless, the State Supreme Court observed in dictum that in light of earlier cases where it had held the Vieux Carré Ordinance constitutional, it was “inclined to agree” with the Court of Appeal that the Ordinance oh its face was not vulnerable to charges of vagueness or indefiniteness. 235 So.2d at 405, n. 3, citing City of New Orleans v. Levy, 223 La. 14, 69 So.2d 798 (1953); City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 (1941); City of New Orleans v. Impastato, 198 La. 206, 3 So.2d 559 (1941). . Jurisdiction is asserted pursuant to 28 U.S.C. §§ 1331(a), 1343(3) and (4). Maher claims that the Ordinance and its enforcement deprive him of rights under 42 U.S.C. § 1983. . Maher asserts that the City may not seek a result predicated on finality because the City has not filed á cross-appeal. However, the traditional rule is that an appellee need not cross-appeal in order to “urge in support of a decree any matter appearing in the record ..” Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593 (1937), quoting United States v. American Railway Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087 (1924); SEC v. Fifth Ave. Coach Lines, Inc., 435 F.2d 510 (2d Cir. 1970). See Stern, When to Cross-Appeal or Cross-Petition—Certainty or Confusion?, 87 Harv.L.Rev. 763 (1974). . Chicot Co. Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938). . Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Cromwell v. County of Sac, 94 U.S. (1 Wall.) 351, 24 L.Ed. 195 (1877). See 1B J. Moore, Federal Practice ¶ ¶ 0.401, 0.410, 0.441. . 371 F.Supp. 653 (E.D.La.1974) and cases cited therein. O’Quin, Res Judicata — “Matters Which Might Have Been Pleaded,” 2 La.L.Rev. 347 (1940). . International Paper Co. v. Maddox, 203 F.2d 88 (5th Cir. 1953), cited in Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). See O’Quin, supra note 15. . Wright Root Beer, supra note 16; Exhibitors Poster Exch., Inc. v. National Screen Serv. Corp., 421 F.2d 1313 (5th Cir. 1970) (antitrust). . A review of the doctrine of judicial estoppel also supports the district court result. . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946) (bankruptcy); Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). . Heiser, supra note 19; Exhibitors Poster, supra note 17. . 421 F.2d 1313 (5th Cir. 1970). . Id. at 1316. . Nevertheless, collateral estoppel may effectively preclude new litigation of isolated factual issues already determined elsewhere. . Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); Exhibitors Poster, supra note 17. . Wasoff v. American Automobile Ins. Co., 451 F.2d 767 (5th Cir. 1969); DeHart v. Richfield Oil Corp., 395 F.2d 345 (9th Cir. 1968). . 451 F.2d at 769, quoting Seaboard Coast Line R. Co. v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969). Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1926). . See DeHart v. Richfield Oil Corp., 395 F.2d 345 (9th Cir. 1968) (the court must examine precisely what was decided between the parties); Falk v. United States, 375 F.2d 561 (6th Cir. 1967). See generally IB J. Moore, Federal Practice H 410[1]. By contrast, in Wasoff, supra note 25, a dismissal of a federal suit claiming recovery for hail damage was affirmed. It was held that the cause of action was identical with that pursued in an earlier case based-on the same insurance contract, the same hailstorm and seeking to recover substantially the same damages. The plaintiff, it was stated, “merely asserted a new theory of relief.” 451 F.2d at 769. In Seaboard Coast Line R. Co. v. Gulf Oil Corp., summary judgment was affirmed against the plaintiff on grounds of res judicata, 409 F.2d 879 (5th Cir. 1969). There, two suits for contractual indemnity were found to state the same cause of action where the allegations were based on similar clauses contained in two different documents of a complex lease-cum-license agreement. The causes of action set forth in each of the Maher cases bear far less resemblance to one another than the causes of action in Wasoff and Seaboard. . Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887 (5th Cir. 1969). . Id. at 892. . 235 So.2d at 404. . Since the state court did not address the constitutional questions and since a subsequent state court action would not seem to be barred by local res judicata rules, the court cannot conclude that the present action is foreclosed because the matters raised “should have been litigated” in the earlier suit. See note 12 supra. . At oral argument an analogy was suggested to England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). England adopted a rule for adjudication of state and federal claims in an abstention situation. Had all of Maher’s claims been brought as a single matter in the federal court, and had abstention been ordered regarding the state law claims, the England case would have been apposite. . Vieux Carré Ordinance §§ 65-36, -37. The suit against Maher for noncompliance is in abeyance pending resolution of this appeal. See note 85 infra. . Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). . Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1959). . Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (family values); Paris Adult Theatre I v. Slater, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (quality of life); Euclid, supra note 34 (health, traffic, safety); Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276 (1920) (preserve natural gas resource); Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894) (preserve fishery resource); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (discourage intoxication). . Berman, supra note 35; Euclid, supra note 34; Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915). . Belle Terre, supra note 36; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Mugler, supra note 36. . Local ordinances are accorded the same Fifth Amendment due process and “taking” analysis as state statutes. See, e. g., Goldblatt, supra note 34; Seattle Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928); Euclid, supra note 34. . Belle Terre, supra note 36; Goldblatt, supra note 34; Berman, supra note 35; Mahon, supra note 38; Midland Carbon, supra note 36. . Paris Adult Theatre, supra note 36; Berman, supra note 35; Euclid, supra note 34; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915). . 272 U.S. at 386-87, 47 S.Ct. at 118. . Berman; Euclid. . The district court stated: The courts have repeatedly sustained the validity of architectural control ordinances as police power regulation, especially when historic or touristic districts like the Vieux Carré are concerned.” 371 F.Supp. at 661, citing Santa Fe v. Gamble, Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); Town of Deering ex rel. Bittenbender v. Tibbets, 105 N.H. 481, 202 A.2d 232 (1964); Reid v. Architectural Board of Review, 119 Ohio App. 67, 192 N.E.2d 74 (1963); Opinion of Justices, 103 N.H. 268, 169 A.2d 762 (1961); Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960); State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, cert. den. 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750 (1955); Opinion of the Justices, 333 Mass. 773, 128 N.E.2d 557 (1955); New Orleans v. Levy, 223 La. 14, 64 So.2d 798 (1953). . Vieux Carré Ordinance § 65-6. In addition to conferring' cultural benefits, it is not contested that preservation of the Vieux Carrédistrict promotes the economic welfare of the city by attracting tourists. See also La.Const. supra note 4. . 348 U.S. 26, 32, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954). To like effect, see Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974) (“the police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values and the blessings of quiet seclusion make the area a sanctuary for people.”); Euclid, supra note 34. . Berman, 348 U.S. at 33, 75 S.Ct. at 102. Paris Adult Theatre, supra note 36 (police power includes authority to regulate against obscenity). The Supreme Court has also affirmed the power of legislatures to enact protective measures regulating the use of the natural resources of the community. Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276 (1920) (natural gas); Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894) (fish). . 446 F.2d 83, 89 (5th Cir. 1971). . Id. . See notes 52-53, infra, and accompanying text. . See, e. g., the legislation under discussion in cases at note 44, supra. . 16 U.S.C. § 470 (1974). See also 42 U.S.C. § 1460(b) (1970) (federal support for local historic preservation in urban renewal programs). The problem of landmark and historic district preservation has generated considerable scholarly attention. J. Costonis, Space Adrift: Saving Urban Landmarks Through the Chicago Plan (1974). Forman, Historic Preservation and Urban Development Law in Louisiana, 21 La.B.J. 197 (1974); Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165 (1967); Note, 63 Colum.L.Rev. 708 (1963). See also Aesthetics vs. Free Enterprise—A Symposium, 15 Prac.Law. 17 (1969); Legal Methods of Historic Preservation, 19 Buffalo L.Rev. 611 (1970). . National Park Service, The National Register of Historic Places, 103-06 (1969). . Euclid, 272 U.S. at 388, 47 S.Ct. at 118. See also Paris Adult Theatre, supra note 36; Goldblatt, supra note 34. . Berman, supra note 35; Euclid, supra note 34. . See note 66, infra. . The suggestion was advanced that the Ordinance has been, and continues to be, enforced in an arbitrary fashion and not altogether free from influence. Evidence, including a federally funded report on the Commission’s operations, was inserted in the record to support such claims. Charges that improper considerations play a role in decision making respecting the French Quarter merit serious attention by the Court. The district court decided that on balance, the allegations in this respect were not substantiated by the record. On review, we affirm the district court on the basis that its result finds support in the record and is not clearly erroneous. In so affirming, however, we pause to note that past enforcement of the Ordinance does not seem to have been uniformly predictable. . La.Const. Art. XIV, § 22A, urges the City to protect “the quaint and distinctive character of the area.” See note 4 supra. . Vieux Carré Ordinance § 65-6 charges the Commission to “preservfe] such buildings . . . [as] shall have architectural and historical value and which should be preserved for the benefit of the people. . . . ” . See, e. g., City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129, 131 (1941), which characterized the Commission’s purpose as “preserv[ing] the antiquity of the whole French and Spanish Quarter, the tout ensemble, so to speak, by defending this relic [the Vieux Carré] against iconoclasm or vandalism.” . Vieux Carré Ordinance § 65-6. . Vieux Carré Ordinance § 65-8 (Ordinance extends to exterior work on any building that fronts on a public street or alley within the Vieux Carré). See note 5, supra. . Vieux Carré Ordinance §§ 56-11; -13; -17 to -33. . Vieux Carré Ordinance §§ 56-2 to -A. Recommendation and appointment of members. The Vieux Carre Commission shall consist of nine members, all of whom shall be citizens of the city. They shall be- appointed by the Mayor with the advice and consent of the Council. The members of the Commission shall be appointed by the Mayor as follows: one from a list of two persons recommended by the Louisiana Historical Society; one from a list of two persons recommended by the Curators of the Louisiana State Museum; one from a list of two persons recommended by the Association of Commerce of the city; three qualified architects from a list of six qualified architects recommended by the New Orleans Chapter of the American Institute of Architects and three at large. § 65-3. Term; vacancies. Each of the members of the Vieux Carre Commission shall be appointed for a term of four years. Whenever the term of a member of the Commission expires the Mayor shall appoint his successor from a list selected by the body which made the original selection from which the vacancy has occurred. § 65-4. Employees and committees. The Vieux Carre Commission may select and employ such persons as may be necessary to carry out the purposes for which it is created. The City Attorney shall be ex officio the attorney for the Commission. The Commission may designate and appoint, from among its members, various committees with such powers and duties as the Commission may have and prescribe. . Vieux Carré Ordinance §§ 65-5; -8 to -10. . The Ordinance provides for review by the City Council of a disapproved petition. § 65-10. No provision expressly exists for appealing the grant of a permit, but the Louisiana Supreme Court has interpreted the Ordinance to allow such review as well. Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970). Its determination of Louisiana law is binding on this Court. Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 600 (1915). At oral argument it was contended that an element of arbitrariness was interjected by the right to appeal from the Commission, a body of experts, to the City Council, a legislative body responsive to the electoral process. The apparent suggestion was that the City Council does not enjoy the expert status of the Commission and, in addition, would be susceptible to political pressure in reaching its decisions. We reject such an intimation here. The expert status of the Commission members is particularly relevant to sustain its ability to function under power delegated by the legislature; the legislators themselves are the repository of public trust, and no delegation problem arises where the City Council itself decides a matter. Insofar as the suggestion is of impropriety, we affirm the district court conclusion that the proof was inadequate. See note 57 supra. . 371 F.Supp. at 664, quoting Town of Deering ex rel. Bittenbender v. Tibbets, 105 N.H. 481, 202 A.2d 232 (1964). . 235 So.2d 402, 407, n. 4. . In this regard, we find the present case distinguishable from Barnes v. Merritt, 428 F.2d 284 (5th Cir. 1970), and Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964). In those cases successful attacks were mounted on the denial of liquor permits, because of a total absence of proper standards to govern the administrative discretion. This circuit found that the unfettered, unréviewable power granted the agency in those situations offended due process. . 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1959). . 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928). . The adequacy of the factual basis for the decision to withhold the Dumaine cottage demolition permit was determined on the merits by the Louisiana Supreme Court, 235 So.2d at 406. It would therefore seem that the value of retaining the cottage is established by collateral estoppel, leaving open constitutional questions only. See note 23 supra. . 371 F.Supp. at 663. . Id. at 664. . Euclid, supra note 30. . Martin v. District of Columbia, 205 U.S. 135, 139, 27 S.Ct. 440, 441, 51 L.Ed. 743 (1907). . Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915). . 369 U.S. at 593, 82 S.Ct. at 989, citing cases. . 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). . 369 U.S. at 593, 82 S.Ct. at 989, quoting Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). . See, e. g., Building and Zone Code of Portland, Oregon, Chapter 33.120, Historical Buildings and Sites (delay in grant of demolition permit to allow for public or private acquisition); Code of the City of Alexandria, Virginia, Article 14 (same); Administrative Code of the City of New York, Section 207.1.9 (demolition permit will issue if owner shows loss or inadequate return on property). See generally Costonis, supra note 52. . See United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958). But see Keystone Associates v. Moerdler, 19 N.Y.2d 78, 278 N.Y.S.2d 185, 224 N.E.2d 700, aff’d 19 N.Y.2d 598, 278 N.Y.S.2d 243, 224 N.E.2d 744 (Ct.Appeals 1967) (a taking of property of the old Metropolitan Opera House found where demolition was retarded and use limited severely). . In any case, while a substantial diminution in value may be evidence of a taking, “it is by no means conclusive.” Goldblatt v. Hempstead, 369 U.S. at 594, 82 S.Ct. at 990. See also Euclid, supra. . Maher objects strenuously to the district court’s observation that rental values in the French Quarter are reputedly relatively high. We need not decide whether judicial notice was improperly exercised in this regard, for any, error that may have occurred was not reversible. We also find unpersuasive Maher’s contention that a critical fact is that he inherited the property rather than purchasing it. . Vieux Carré Ordinance § 65-36. Preservation of existing structures by owner or person having legal custody thereof. All buildings and structures in that section of the city known as the Vieux Carre Section . . shall be preserved against decay and deterioration and free from certain structural defects in the following manner, by the owner thereof . . . [who] . shall repair such building if it is found to have any of the following defects: There follows a list of unsafe, nonweather sound and deteriorated conditions, including falling portions of buildings, deteriorated or inadequate foundation, floors, walls, support, ceilings, roofs, chimneys, and ineffectively weathertight exterior or windows. Under Section 65-37, charges may be brought against a noncomplying owner. See note 33 supra. . Goldblatt supra note 34; Euclid supra note 34. In Goldblatt, the Supreme Court did not reach the question whether an affirmative duty to erect a fence and fill in the lake was overly burdensome and beyond the police power. . Goldblatt, supra note 34. Euclid, supra note 34. . 369 U.S. at 595, 82 S.Ct. 987, quoting Law-ton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385 (1894). . See Keystone Associates, note 82 supra. . Goldblatt, 367 U.S. at 596, 82 S.Ct. 987. . 371 F.Supp. at 662.

Miltenberger v. Chesapeake & Ohio Railway Co.

MEMORANDUM OPINION AND ORDER SOBELOFF, Senior Circuit Judge: Plaintiffs began this action by filing in the District Court a “Complaint for a Writ of Mandamus, for a Temporary Injunction Ex Parte, and for Other Relief.” Injunction was prayed against the Chesapeake & Ohio Railway Company and its subsidiary, the Baltimore & Ohio Railroad Company, to halt their proposed demolition of the Queen City Station and Hotel in Cumberland, Maryland, which is owned by the latter railroad. After a hearing at which all of the parties were present and participated, Judge Thomsen, sitting as Chambers Judge, denied the requested preliminary relief on October 8, 1971. That afternoon plaintiffs came before me as a single Circuit Judge with an oral request, variously denominated, but which I shall treat as an application for an injunction pending appeal, as provided in Rule 8 of the Federal Rules of Appellate Procedure. The parties were fully heard on their respective contentions. Counsel for the defendants entered into a gentlemen’s agreement to take no further action to demolish the building until I had an opportunity to obtain and read a transcript of the District Court proceedings. The transcript was furnished me the following Monday. The Queen City Hotel is unquestionably an historic landmark and has been so designated in the National Register of Historic Places, but Cumberland’s city officials and the local community are sharply divided over the question of the building’s preservation. Emotions of extraordinary intensity have been generated by the controversy. The plaintiffs are firm in their resolve to preserve the structure, but, as Judge Thomsen found, they lack the means to accomplish their objective, which involves not only the cost of acquisition from the railroads, but the vastly greater expense of restoration. The Mayor opposes demolition, but a majority of his colleagues on the City Council strongly disagree. The county government originally applied for a grant in the amount of $100,000 from the Department of Housing and Urban Development in order to match a state grant of an equal amount. The Department agreed to make this grant but the County Commissioners have now changed their minds and say they will refuse to accept the money or to cooperate. The new position of the County Commissioners jeopardizes both the H.U.D. grant and that of the state, for each is contingent on the other. Apparently the Commissioners fear that if the property were purchased by or for the county, it would have a white elephant on its hands. Even in the unlikely event of adequate restoration funds being supplied from some source not now in sight, the county is apparently unwilling to assume the not inconsiderable burden of maintenance. The defendant railroads take the position that, as private property owners, they have an absolute right to tear down the hotel and cannot be compelled to sell except by condemnation proceedings, obviously not contemplated by the state or local officials. Moreover, the Cumberland City Council has accepted a Fire Department report that the hotel is a fire hazard and the Council ordered the railroads to demolish it within 120.days. That period expired October 13, 1971. This order of the City Council, as well as the possible liability that the railroads would face in the event of the hotel’s being destroyed by fire, form the basis of defendants’ opposition to any injunction pending appeal. Plaintiffs urge postponement of the destruction of the hotel to afford them a further opportunity to raise funds to acquire and restore the building. They point out that the Maryland General Assembly, at its 1971 session, allocated $100,000 from a larger bond issue to match funds the United States may supply. Even should both state and federal matching funds be forthcoming, this aggregate sum of $200,000 is far short of what will be required for restoration, which is $3,000,000 to $7,000,000, according to the defendants, and $2,600,-000, according to an estimate by one of plaintiffs’ witnesses. Judge Thomsen concluded there was not enough money reasonably in prospect to accomplish the restoration. The unlikelihood of the venture’s success is a legitimate consideration for a judge entertaining an application for a preliminary injunction. For me, a no less pertinent inquiry is whether there is sufficient likelihood of a successful appeal to warrant intrusion upon the railroads’ plans. The Fourth Circuit has held that on an application for a stay or injunction pending appeal, one of the considerations should be whether the petitioner has made a strong showing that he is likely to prevail on the merits of his appeal. First-Citizens Bank and Trust Co. v. Camp, 4 Cir., 432 F.2d 481 (1970); Airport Comm’n of Forsyth County, N. C. v. C. A. B., 4 Cir., 296 F.2d 95 (1961). Viewing plaintiffs’ cause most sympathetically, I still perceive no substantial prospect for their eventual success in the appellate court. Plaintiffs seek to invoke two federal statutes, the National Historic Preservation Act of 1966 (“NHPA”), 16 U.S.C. §§ 470 et seq., and the National Environmental Policy Act of 1970 (“NEPA”), 42 U.S.C. §§ 4321 et seq., in support of their effort to preserve the structure. Plaintiffs contend that the National Environmental Policy Act, 42 U.S.C. § 4332, prohibits razing the hotel unless there is no feasible alternative. The National Historic Preservation Act, 16 U.S.C. § 470f, is similarly invoked as requiring, prior to the expenditure of federal funds in the demolition of an historic structure, (1) that consideration be given to the cultural loss involved, and (2) that an opportunity be afforded the Advisory Council on Historic Preservation to comment on the undertaking. A reading of these two congressional enactments discloses that they are in terms directed to none but federal agencies. No federal agency is involved in the contemplated demolition of the hotel. Thus, reliance upon these two federal statutes seems misplaced. In partial response to the argument that the two statutes apply to federal agencies only, the plaintiffs assert that the defendants’ passenger service, like that of all railroads, is now under federal control. It is true that the Rail Passenger Service Act of 1970 provides for the assumption and subsidization of intercity rail passenger service by the National Railroad Passenger Corporation (“AMTRAK”), 45 U.S.C. §§ 561, 601-602. It must be noted, however, that the Queen City Hotel was abandoned by the railroads as a passenger facility long before the enactment of the AMTRAK legislation. Thus it would appear that the hotel does not fall within the jurisdiction of AMTRAK but is rather a private parcel of land owned by the railroads, now unrelated to any rail passenger service. Even assuming that AMTRAK has jurisdiction to prevent abandonment of a railroad hotel facility, the statutory language cannot be construed as bringing AMTRAK within the purview of NHPA and NEPA. Were plaintiffs’ contention to be adopted, any private corporation subject to governmental aid would be included in the definition of “federal agency.” This is an impossible interpretation, for the AMTRAK statute itself declares explicitly that the corporation created therein is not “an agency or establishment of the United States Government,” 45 U.S.C. § 541. One cannot refrain from admiring the good motives of the plaintiffs. But the court cannot tie the defendants’ hands while these good citizens pursue what is, unfortunately, destined to be a will-o’the wisp. A contract for demolition was awarded and the contractor began his work before the matter reached the courts. He has since been standing by, suffering some damage for which the railroads will be called upon to reimburse him. Further delay will result in further damage. The plaintiffs have no money and say they cannot furnish an appeal bond. The railroads, for tax reasons, are unwilling to sell the hotel property to a non-governmental buyer. Neither the city of Cumberland, Allegheny County nor the State is willing to accept or hold title. H.U.D.’s grant is without a taker. As a judge, I am confined by rules of law. I am not free to command defendants to be generous or public spirited and not to obstruct what might be considered a meritorious undertaking. Last week Lt. Governor Blair Lee requested me and I agreed to defer decision because the Cumberland City Council was scheduled to meet October 19 to consider whether it would consent to serve as the necessary public body to receive the H.U.D. and the State of Maryland matching grants. This morning I was advised that the Council did meet last night and by a vote of 3 to 2 decided to adhere to its stance in opposition to the purchase and restoration of the Cumberland hotel. For the reasons, both legal and practical, outlined above, it is my conclusion that the plaintiffs have failed to establish any ground for exercising discretion in favor of an injunction pending appeal. The application is therefore denied. . Plaintiffs sought mandamus against the Attorney General of the United States to require him to exercise the discretion vested in him by the Rail Passenger Service Act of 1970, 45 U.S.C. § 547, and decide whether or not to seek an injunction against the railroad’s abandonment of the Queen City Station and Hotel as a passenger facility. This aspect of the case was reserved in the Judge’s decision, and therefore is not ripe for appeal. . An ex parte injunction had been issued in the Circuit Court of Baltimore City, but, after a hearing on the merits, was dissolved by Judge Cardin of that court the day of the hearing in the District Court. . This witness, an employee of H.U.D., . evidently genuinely desirous of assisting the purchase and restoration, suggested a less expensive plan. In an effort to scale down his own estimate of $2,600,-000 for complete restoration, he testified that a partial restoration — sufficient to bring the hotel into compliance with the Cumberland City fire laws and to restore the exterior and portions of the interior— might be effected for $1,000,000. Even this more limited sum is five times the amount tentatively available. . Indeed, subsequent events have spawned new difficulties. On Tuesday evening, October 12, 1971, at a meeting of the state Board of Public Works, the $100,000 matching contribution of the state was reaffirmed, but with a stern warning by the members of the Capital Expenditures Subcommittee of the Maryland Legislative Council that additional appropriations would in no event be forthcoming from the state. The preservationists offered an alternative suggestion, that the Queen City Hotel be included in the existing Chesapeake and Ohio National Historical Park, but it would take at least many months for such a proposal to achieve favorable administrative action. Holding matters in abeyance under injunctive order for such a long period would be out of the question. . Only the first of these statutes was adverted to in the complaint, but in oral agument in the District Court and before me plaintiffs rely on both, and since the District Judge authorized the plaintiffs to make the necessary amendment, I will consider both statutes. . Plaintiffs have no complaint against H.U.D., the only federal agency even remotely concerned. It has been cooperative by approving the Allegheny County’s application for a grant of $100,000. Presumably H.U.D. would adhere to its grant to the Allegheny County Commissioners, if the latter had not altered their position and repudiated H.U.D.’s tendered subvention. Certainly H.U.D. has not violated either of the two statutes. . This congressional categorization mus be honored despite the fact that AMTRAK is governed by a board consisting of fifteen directors, eight of whom are appointed by tbe President, the others elected by stockholders. 45 U.S.C. § 543.

North Idaho Community Action Network v. United States Department of Transportation

PER CURIAM: Plaintiff North Idaho Community Action Network (“NICAN”) appeals the district court’s grant of summary judgment in favor of defendants United States Department of Transportation (the “DOT”), Federal Highway Administration, and Idaho Transportation Department (collectively, the “Agencies”). NICAN challenges a proposed highway construction project on a portion of U.S. Highway 95 located in northern Idaho. NICAN claims that the Agencies violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY U.S. Highway 95 (“US-95”) currently runs through the heart of downtown Sand-point, Idaho, and is the only highway that ties northern Idaho to southern Idaho. The proposed highway construction project (the “Project”) will improve US-95 in and around Sandpoint. The Project will be funded and constructed in four separate phases. The first, second, and fourth phases involve widening the existing highway to four lanes. The third phase involves realigning an approximate two-mile stretch of US-95 to create a byway that will route the highway to the east of Sandpoint and remove through-traffic from the downtown Sand-point area. Because the Agencies deem the third phase to be the most important phase of the Project, the Agencies have proceeded with that phase first. In September 1999, the Agencies approved a final environmental impact statement (the “1999 EIS”) for the Project. In May 2000, the Agencies issued a record of decision (the “ROD”) for the Project. In the ROD, the Agencies selected the “Sand Creek Byway” as the preferred alternative for the third phase of the Project. As initially planned in the 1999 EIS, the Sand Creek Byway involved constructing two miles of new two-lane highway along the east side of Sand Creek, building a partial interchange/bridge structure over Sand Creek and Bridge Street, and building a full diamond interchange at the junction of US-95 and State Highway 200. In April 2005, the Agencies released an environmental assessment (the “2005 EA”) that included various changes to the Project design described in the 1999 EIS. These changes all relate to the third phase of the Project, the Sand Creek Byway, and were made in response to input from various members of the local community. The changes include traffic design modifications — such as building additional off-ramps and adding a third lane for safer merging — as well as aesthetic improvements and mitigation measures — such as constructing a pedestrian and bicycle pathway along Sand Creek and building three artificial habitat enhancement areas in Sand Creek. The 2005 EA concluded that the changes to the Project design would not have significant impacts beyond those already considered in the 1999 EIS. Based on this conclusion, the Agencies issued a Finding of No Significant Impact (“FON-SI”). In August 2006, the Agencies prepared an environmental reevaluation (the “2006 Reevaluation”) covering the Project. The 2006 Reevaluation set forth additional changes to the Project design and assessed possible environmental effects of those changes. The majority of the changes involve dredging Sand Creek and will result in the removal of approximately 17,035 cubic yards of material from Sand Creek. The 2006 Reevaluation concluded that there was no additional significant impact and that neither a supplemental environmental impact statement (“SEIS”) nor an environmental assessment (“EA”) was required. In July 2005, after the Agencies released the 2005 EA and issued its FONSI determination, but before the Agencies prepared the 2006 Reevaluation, NICAN filed suit in the district court challenging the Agencies’ approval of the Project. On the parties’ cross-motions for summary judgment, the district court granted summary judgment in favor of the Agencies and against NICAN. NICAN moved for an injunction pending appeal, which the district court denied. NICAN then sought and obtained an injunction pending appeal from a motions panel of this court. After oral argument in this expedited appeal, we lifted the injunction and allowed construction of the Sand Creek Byway to commence. This Opinion sets forth the explanation for our decision. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). The Administrative Procedure Act (“APA”) provides authority for the court’s review of decisions under NEPA and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006); Alaska Ctr. for the Env’t v. Armbrister, 131 F.3d 1285, 1288 (9th Cir.1997). Under the APA, a reviewing court may set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As this court recently explained: Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency. Rather we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotations and citations omitted). DISCUSSION I. NEPA “NEPA ‘is our basic national charter for protection of the environment.’ ” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1185(9th Cir.2008). Although NEPA does not impose any substantive requirements on federal agencies, it does impose procedural requirements. See Lands Council, 537 F.3d at 1000. Through these procedural requirements, NEPA seeks to make certain that agencies “ ‘will have available, and will carefully consider, detailed information concerning significant environmental impacts,’ and ‘that the relevant information will be made available to the larger [public] audience.’ ” Id. (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). NICAN argues that the Agencies violated NEPA’s procedural requirements by (a) failing to consider alternatives to changes to the Project set forth in the 2005 EA, (b) failing to disclose and assess in the 2005 EA the impacts of dredging Sand Creek, (c) failing to consider a tunnel alternative for the Project, (d) failing to consider the impacts the Project will have on historical properties, and (e) failing to prepare a supplemental environmental impact statement. We address each of these claims in turn. A. Failure to Consider Alternatives NICAN argues that the Agencies violated NEPA by failing to consider alternatives to the various changes to the Project design set forth in the 2005 EA. We disagree. NEPA requires the agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E). This “alternatives provision” applies whether an agency is preparing an environmental impact statement (“EIS”) or an environmental assessment (“EA”), and requires the agency to give full and meaningful consideration to all reasonable alternatives. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th Cir.2005). However, “an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS.” Id. at 1246. Thus, whereas with an EIS, an agency is required to “[rigorously explore and objectively evaluate all reasonable alternatives,” see 40 C.F.R. § 1502.14(a), with an EA, an agency only is required to include a brief discussion of reasonable alternatives. See 40 C.F.R. § 1508.9(b). NICAN does not dispute that the Agencies adequately explored and evaluated reasonable alternatives to the Project in preparing the 1999 EIS. NICAN also does not challenge the Agencies’ selection, in the ROD, of the Sand Creek Byway as the preferred alternative. Rather, NICAN argues that the Agencies violated NEPA because they failed to consider alternatives to the various changes to the Project design set forth in the 2005 EA. In the 2005 EA, the Agencies considered and briefly discussed two alternatives: the Project with the changes proposed in the 2005 EA, and the Project without the proposed changes (i.e., proceeding with the Project as previously described in the 1999 EIS). As discussed in Section I.E. below, the changes to the Project proposed in the 2005 EA will not result in significant environmental effects that were not previously evaluated in the 1999 EIS. Under these circumstances, we hold that the Agencies fulfilled their obligations under NEPA’s alternatives provision when they considered and discussed only two alternatives in the 2005 EA. See Native Ecosystems, 428 F.3d at 1245-49(holding that the agency complied with NEPA’s alternatives provision in preparing an EA where the agency considered only two alternatives-a no action alternative and a preferred alternative); 40 C.F.R. § 1508.9(b) (requiring only a brief discussion of reasonable alternatives in an EA). B. Failure to Disclose/Analyze Dredging NICAN argues that the Agencies violated NEPA by failing to disclose and assess in the 2005 EA, or a supplemental EA, the impacts of dredging Sand Creek. We disagree. Prior to issuance of the 2005 EA, there were internal discussions within the Agencies regarding the possible need for the excavation or dredging of Sand Creek. There also was, however, a good deal of uncertainty within the Agencies about whether dredging would be required and, if so, the extent of that dredging. For example, the initial application to the Army Corps of Engineers indicated a belief that no dredging would be required. And shortly before the 2005 EA was issued, hydraulics engineers were still examining at least three dredging alternatives, and the design remained “subject to change.” The Agencies could not adequately or meaningfully evaluate the environmental impacts of any potential dredging until they had more information, which depended at least in part on ongoing discussions with the Army Corps of Engineers and the Clean Water Act permitting process. Once additional information regarding the proposed dredging was available, the Agencies performed the 2006 Reevaluation to analyze the dredging and its projected impacts, and to determine whether the new information required the preparation of a SEIS or a supplemental EA. See Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir.2000); Price Road Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997); 23 C.F.R. § 771.129(a) (1988). The Agencies concluded that the dredging would not have significant environmental impacts beyond those already considered, and thus that neither a SEIS nor a supplemental EA was required. The Agencies’ use of the reevaluation process is substantially similar to that approved in Price Road, 113 F.3d at 1510, and we find no fault with the Agencies’ use of that process here. In Price Road, a freeway project initially contemplated two below-ground enclosed tunnels but was revised to include two fully-directional loop ramps instead of the tunnels. Id. at 1507-08. The Agencies considered, in an environmental reevaluation, the environmental effects of the changes and determined there were no discernible differences in the level of environmental impacts beyond those previously considered. Id. at 1508. The agency thus did not prepare an EA or EIS for the changes. Id. We noted that, while NEPA does not specifically address how an agency should decide when changes require a more formal EA or EIS, the Federal Highway Administration had specifically provided for reevaluations as a means to determine whether or not the approved environmental document remains valid. Id. at 1509-10(citing 23 C.F.R. § 771.129(c)). We thus concluded that if the agency, after the requisite “hard look” in a reevaluation, determines that the new impacts will not be significant (or not significantly different from those already considered), then the agency is in full compliance with NEPA and is not required to conduct a supplemental EA. Id. at 1510; see also Highway J Citizens Group v. Mineta, 349 F.3d 938, 959-60 (7th Cir.2003) (holding that when a “known issue came into sharper focus after the formal environmental documents were issued,” it was not improper to use internal reevaluation to analyze the issue). In the present case, the Agencies took the requisite “hard look” at the impacts of dredging Sand Creek in the 2006 Reevaluation, and determined that there were no new impacts that were significantly different than those already considered and that neither a SEIS nor a supplemental EA was therefore required. We hold that the Agencies did not act arbitrarily or capriciously in making those determinations, and that they complied with NEPA in their evaluation of the proposed dredging. C. Tunnel Alternative NICAN argues that the Agencies violated NEPA by failing to consider a new tunnel alternative for the Project. Again, we disagree. Agencies have a continuing obligation to consider new information that comes to light, even after the issuance of an EIS. See 40 C.F.R. § 1502.9(c)(l)(ii)(requiring the agency to prepare supplements to either draft or final environmental impact statements if “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts”); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373-74, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized.... On the other hand, ... NEPA does require that agencies take a ‘hard look’ at the environmental effects of their planned action, even after a proposal has received initial approval.”); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 558 (9th Cir.2000) (“When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require [a supplemental EIS].”) (internal quotation marks and citation omitted); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 444-45 (4th Cir. 1996) (holding that the agency violated NEPA by failing to take a “hard look” at new information regarding zebra mussel infestation). This continuing obligation, however, extends only to new information or circumstances regarding environmental impacts that may not have been appreciated or considered when the EIS was prepared. An agency is not required by NEPA to consider new alternatives that come to light after issuance of the EIS absent “substantial changes in the proposed action relevant to environmental concerns,” or “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1); see 40 C.F.R. § 1502.14. Here, the tunnel alternative is not new “information” or a new “circumstance” regarding environmental impacts that may not have been appreciated or considered when the 1999 EIS was prepared, and there is no substantial change in the Project that is “relevant to environmental concerns.” Accordingly, we hold that the Agencies did not violate NEPA by failing to consider the tunnel alternative when it was brought to their attention in 2006. D. Impacts to Historic Properties NICAN argues that the Agencies violated NEPA by: (1) taking a “phased approach” to how the Project will impact historic properties, and (2) failing to take a “hard look” at how the construction and operation of the Project will impact the Burlington Northern Railroad Depot (the “Depot”). We disagree and hold that the Agencies fully complied with NEPA on this issue. NEPA requires federal agencies to consider the environmental impact of major federal action. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir.2005) (citing 42 U.S.C. § 4332(2)(C)); see also Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 223-25 (5th Cir.2006). NEPA has no independent requirement that an agency examine, separate and apart from any environmental impacts, the impact that a federal action will have on historic properties. NICAN’s reliance on NEPA regulations requiring consideration of environmental impacts to support its historic-property-impact argument is therefore misplaced. Moreover, although an EIS is required to include “discussions” of “historic and cultural resources,” see 40 C.F.R. § 1502.16(g), the Agencies’ 1999 EIS complied with this requirement. The 1999 EIS considered the impacts the Project is anticipated to have on historic properties, primarily focusing on the impacts of the Sand Creek Byway alternative versus a through-town couplet alternative. The Agencies ultimately chose the Sand Creek Byway alternative, in part because the through-town couplet alternative potentially would have impacted numerous historic sites, whereas the Sand Creek Byway alternative only would potentially impact the Depot and some underground sites. The 1999 EIS recognized possible noise and vibration impacts, noted general steps that would be taken to minimize impacts, and indicated that additional surveys and mitigation measures would be undertaken after selection of the preferred route. The 2005 EA included a more detailed noise analysis following testing and modeling, which concluded that there were no significant adverse effects from the Project. The 2005 EA also described various mitigation procedures to protect the Depot from other construction activities, including the changes to the Project and ongoing monitoring, developed in consultation with the State Historic Preservation Officer (“SHPO”). We hold that the broad overview in the 1999 EIS of the Project’s impacts on historic properties, coupled with the specific, detailed analysis of the impacts of the Sand Creek Byway, and mitigation measures to minimize those impacts, was more than sufficient to meet NEPA’s requirements in relation to historic properties. E. Failure to Prepare a SEIS An agency is not required to prepare a SEIS every time new information comes to light. See Marsh, 490 U.S. at 373, 109 S.Ct. 1851. Rather, a SEIS is required only if changes, new information, or circumstances may result in significant environmental impacts “in a manner not previously evaluated and considered.” Westlands Water Dist. v. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir.2004) (citation omitted). To assist the agency in determining whether a SEIS is required, an agency may prepare an environmental report (such as a reevaluation) or an EA. See 23 C.F.R. §§ 771.119(a), 771.129, 771.130(c). Here the agencies prepared both an EA and a reevaluation. In these documents, the Agencies considered the changes to the Project and the impacts of those changes. Although the changes would have somewhat different impacts from those previously analyzed in the 1999 EIS, the Agencies determined that those impacts were not significant or adverse enough to require a SEIS. NICAN argues that the Agencies acted arbitrarily and capriciously by failing to prepare a SEIS regarding the changes to the Project discussed in the 2005 EA and the 2006 Reevaluation. NICAN contends that a SEIS was required because of impacts to wetlands, cumulatively significant impacts, controversial or uncertain impacts, and adverse impact on historic sites. See 40 C.F.R. § 1508.27(b)(diseussing factors which should be considered in evaluating intensity of impact). We disagree and hold that a SEIS was not required. As modified, the Project affected only an additional 0.32 acres of wetlands, which was also mitigated by construction of 1.1 acres of additional wetland area in a different location. See Wetlands Action Network, 222 F.3d at 1121(holding that an agency can consider mitigation effects that minimize the impacts of a project in determining the significance of the project’s environmental impact). Further, the changes to the Project relating to the Depot were in response to requests by the SHPO to mitigate and protect the Depot from adverse effects, and were not adverse consequences in and of themselves. Cf. Enos v. Marsh, 769 F.2d 1363, 1373-74 (9th Cir.1985) (holding that it was not arbitrary and capricious for the agency to find no adverse effect on archeological sites when that finding was consistent with the opinion of a SHPO). Moreover, the uncertainty and controversy relied on by NICAN are not directed to the changes in the Project, but to the Sand Creek Bypass alternative itself. That alternative was discussed and evaluated in the 1999 EIS, and any challenge to the selection of that alternative has been waived. Cf. Dep’t of Transp., 541 U.S. at 764-65, 124 S.Ct. 2204(holding that objections to the failure to consider alternatives beyond those evaluated in the EA were forfeited by failure to identify additional alternatives during notice and comment period). Finally, the Agencies sufficiently considered the cumulative impacts of the Project. In the 1999 EIS, the Agencies discussed and analyzed the environmental impacts of the Project as initially proposed. In the 2005 EA and 2006 Reevaluation, the Agencies determined that the changes to the Project did not significantly impact the environment in a way not previously considered. NICAN has pointed to nothing that convinces us that these determinations by the Agencies were inaccurate, let alone arbitrary or capricious. We hold that the Agencies’ determination that the changes to the Project would not significantly impact the environment in a way not previously considered, and that a SEIS therefore was not required, was not arbitrary or capricious. See Marsh, 490 U.S. at 373-74, 109 S.Ct. 1851; see also Westlands Water Dist., 376 F.3d at 873. II. Alleged Violations of Section 4(f) of the Department of Transportation Act All federally funded highway projects must comply with not only federal environmental protection laws, such as NEPA, but also with historic preservation laws, including Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f (“ § 106”), and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (“ § 4(f)”). Section 106 is a procedural statute that describes the process by which a project’s impacts to historical sites are identified. It provides that before a federal agency may authorize the expenditure of funds for a federal or federally assisted project, the agency must first consider the effects of the project on “any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. Section 4(f), in contrast, imposes a substantive mandate. See 49 U.S.C. § 303(c). It allows a federal project “requiring the use of land of an historic site” to be approved only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c) (emphasis added). NICAN argues that the Agencies violated § 4(f) by (a) failing to survey, identify, and evaluate § 4(f) properties for all four phases of the Project, and (b) determining that a § 4(f) analysis was not required because the construction and operation of the Project would not result in “use” of the Depot. We examine each of these claims in turn. A. Failure to Evaluate § 4(f) Properties for all Four Phases of the Project NICAN argues that the Agencies violated § 4(f) by failing to survey for, identify, and evaluate the impacts on historic properties for all four phases of the Project as required by § 106 and § 4(f). The Agencies concede that they have taken a phased approach and have conducted a detailed § 106 identification process and § 4(f) evaluation only with respect to the Sand Creek Byway phase of the Project, and have not done so with respect to the remaining three phases of the Project. Further, the Agencies correctly point out that the regulations governing the § 106 process allow a phased approach to identifying historic properties in some circumstances. See 36 C.F.R. § 800.4(b)(2); 36 C.F.R. § 800.8(a)(1). However, § 4(f) and its regulations require that the § 4(f) evaluation be completed before an agency issues its ROD. See 23 C.F.R. § 771.135(b) (“Any use of lands from a section 4(f) property shall be evaluated early in the development of the action when alternatives to the proposed action are under study.”) (emphasis added); 23 C.F.R. § 771.135© (2007) (stating that evaluation of alternatives to using § 4(f) property should be presented in an EIS or EA); 23 C.F.R. § 771.135® (stating that if an EIS is required for a project, the agency should conduct the § 4(f) analysis in the EIS or ROD). And because the § 4(f) evaluation cannot occur until after the § 106 identification process has been completed, the § 106 process necessarily must be complete by the time the ROD is issued. See, e.g., 49 U.S.C. § 303(d)(2) (allowing the Secretary to find § 4(f) de minimis impact only if that determination has been developed in the consultation process required under § 106). The District of Columbia Circuit reached the same conclusion in a markedly similar case, Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C.Cir.1999). In Corridor H, the agency approved a plan for building a lengthy highway corridor, which was divided into fourteen segments. Id. at 371. The EIS selected an alternative that required the agency to identify historic properties in each segment in sequence and provided that no work would proceed where the treatment of historic properties had not been finalized. Id. The ROD, approving the selected alternative, recognized that the § 4(f) evaluation could not be conducted until the § 106 identification process was completed. Id. at 371-72. The District of Columbia Circuit held that the agency was required to complete the § 4(f) process for the entire corridor project before issuing the ROD. See id. at 372-74(citing 23 C.F.R. § 771.135); see also Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1087-88 (10th Cir.2004) (“Section 4(f) regulations clearly require the FHWA to make the requisite Section 4(f) evaluations prior to issuing an ROD approving a proposed construction project.”); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784, 788-89 (9th Cir.1983) (criticizing agency for failing to complete Section 4(f) analysis earlier). We hold, consistently with the District of Columbia Circuit’s decision in Corridor H, that an agency is required to complete the § 4(f) evaluation for the entire Project prior to issuing its ROD. The Agencies concede that they have taken a phase-by-phase approach, that they have not completed the § 4(f) evaluation for the entire Project, and that they already have issued the ROD. The Agencies have accordingly violated § 4(f). We therefore reverse the district court’s grant of summary judgment on this issue. B. “Use” of the Depot In the 1999 EIS, the Agencies performed a § 4(f) evaluation with respect to the Depot. The Agencies concluded that there was no feasible and prudent alternative to the use of the Depot and that the proposed action included all possible planning to minimize harm to the Depot, thus allowing the Project to proceed. See 49 U.S.C. § 303(c)(1). NICAN does not challenge the Agencies’ § 4(f) evaluation contained in the 1999 EIS. Instead, NICAN argues that the Agencies acted arbitrarily and capriciously when they determined that modifications to the Project set forth in the 2005 EA will not “use” the Depot for purposes of § 4(f), and that a formal § 4(f) evaluation was therefore not required in relation to those modifications. The modifications at issue came about as a result of the Agencies’ agreement with the SHPO to perform certain repairs and make certain improvements to the Depot. The agreed-to repairs include removing the sandstone water table course, replacing missing bricks, repointing all masonry joints, and reconstructing a concrete curb and walkway at the west side. The agreed-to improvements include paving the Depot access road and parking areas, adding lighting to the pedestrian parking area, and building a handicap access ramp and brick pathway connecting the parking area to the Depot. These “modifications” will not have an “adverse effect” on the Depot, but are instead improvements that inure to the benefit of the Depot. See 49 U.S.C. § 303(c), (d)(2). And, although occurring on Depot property, these improvements do not “permanently incorporate[ ] [the land] into a transportation facility” to bring it within the parameters of § 4(f). See 23 C.F.R. § 771.135(p)(l) (2000); see also Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 533(9th Cir.1994) (holding that properties were not actually or construe-tively used in a proposed project where the project would not “substantially impair the current features, activities and attributes” of parklands and bike paths). These improvements do not, therefore, involve a “use” of the Depot property under § 4(f). See 49 U.S.C. § 303(c), (d)(2); 23 C.F.R. § 771.135(p)(l) (2000). Other modifications to the Project — such as installing a construction fence and mesh grating, and excavating a trench — involve activities that are temporary and minor, that have been approved by the SHPO, and from which the land will be fully restored. These activities also do not, therefore, involve a “use” of the Depot property under § 4(f). See 23 C.F.R. § 771.135(p)(7) (describing when a temporary occupancy is so minimal it does not constitute a “use”). We hold that the Agencies did not act arbitrarily or capriciously in determining that the modifications to the Project discussed in the 2005 EA would not “use” the Depot property within the meaning of § 4(f). III. Remedy Although we conclude the Agencies violated § 4(f) by failing to conduct the § 4(f) evaluation for the entire Project prior to issuing the ROD, we find it unnecessary to enjoin the entire Project while the Agencies complete the necessary evaluation. All parties agree that the § 4(f) evaluation has been completed with respect to the Sand Creek Byway phase of the Project. The Sand Creek Byway has independent viability, beginning and ending at points on existing US-95, and the Sand Creek Byway will accomplish many goals of the overall Project. On the unique facts of this case, we conclude that the scope of injunctive relief should be limited to precluding the Agencies from commencing construction of the remaining three phases of the Project until the § 4(f) evaluation has been fully completed. See, e.g., Sierra Club v. Bosworth, 510 F.3d 1016, 1034 (9th Cir.2007) (after noting that some projects were already approved and in operational stages, limiting injunctive relief to projects that were approved after initiation of the lawsuit and giving the district court discretion to also exclude some projects that were approved later but already at or near completion); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 739 (9th Cir.2001) (limiting the scope of injunctive relief to two components of vessel management plan). We therefore remand to the district court with instructions to enter an appropriate injunction in accordance with our decision. See Nat’l Parks, 241 F.3d at 740. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. Each party to bear its own costs on appeal. . NICAN’s reliance on Idaho Sporting Cong., 222 F.3d at 566-67, is misplaced. In that case, this court already had determined there were deficiencies in the agency’s EA and EIS. Rather than issue a revised EA and EIS to address those deficiencies, the agency improperly attempted to address the deficiencies through issuance of a supplemental information report ("SIR”). In contrast, in the present case, as in Price Road, the reevaluation process was used not in an attempt to correct deficiencies in an EA or EIS, but instead to make an ex-ante decision about the need for a SEIS or supplemental EA. .Moreover, because the tunnel alternative was not raised and identified until June 2006, well after the notice and comment periods for the 1999 EIS and the 2005 EA closed, any objection to the failure to consider that alternative has been waived. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (holding that objections to the failure to consider alternatives beyond those evaluated in the EA were forfeited by failure to identify additional alternatives during notice and comment period). . These underground sites could be protected by simply preserving anything unearthed off-site. . We defer to the Agencies’ interpretation of these data. Lands Council, 537 F.3d at 993-94. . In determining whether the potential construction effects would likely be significant, the Agencies are permitted to take into account mitigation measures which reduce the impact of construction. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir.2000). . The sufficiency of the Agencies' analysis under Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), is discussed separately in Section II.A. below. . These regulations were in effect at the time of the Agencies’ decision in this case. They have been removed and replaced with similar ones as of April 11, 2008. 23 C.F.R. § 774.9(a) & (b) still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD. . The Agencies’ reliance on City of Alexandria v. Slater, 198 F.3d 862 (D.C.Cir.1999), is misplaced. In Slater, the agency identified historic properties along the entire project corridor, and documented its findings in a Memorandum of Agreement and a § 4(f) evaluation; the agency deferred only the determination of whether some ancillary construction activities might also impact § 4(f) properties. Id. at 873. In contrast, here the Agencies concede that they have conducted the § 106 identification process and § 4(f) evaluation only as to the Sand Creek Byway phase of the project, and have not conducted the necessary identification and evaluation for the other phases of the Project. . This was the regulation in effect at the time of the Agencies' decision; it has now been removed and repromulgated in substantially the same form at 23 C.F.R. § 774.17 (2008). . Nothing in this decision shall be deemed to preclude NICAN or any other interested party from challenging the Agencies' § 106 identification process and § 4(f) evaluation, once completed, with respect to the remaining phases of the Project.

Mid States Coalition for Progress v. Surface Transportation Board

MORRIS SHEPPARD ARNOLD, Circuit Judge. Petitioners challenge the decision of the Surface Transportation Board issued January 30, 2002, giving final approval to the Dakota, Minnesota & Eastern Railroad Corporation’s (DM & E) proposal to construct approximately 280 miles of new rail line to reach the coal mines of Wyoming’s Powder River Basin (PRB) and to upgrade nearly 600 miles of existing rail line in Minnesota and South Dakota. They maintain that in giving its approval the Board violated 49 U.S.C. § 10901, the National Environmental Policy Act (NEPA) (42 U.S.C. §§ 4321-4347), the National Historic Preservation Act (16 U.S.C. §§ 470 to 470w-6), and the Fort Laramie Treaty of 1868. Although we conclude that the Board should prevail on almost all of the issues raised by the petitioners, our rulings on a few issues require us to vacate the Board’s decision and to remand for further proceedings not inconsistent with this opinion. I. Under 49 U.S.C. § 10901, the Board has exclusive licensing authority for the construction and operation of rail lines. This statute provides that the Board shall authorize the construction and operation of a proposed new line “unless the Board finds that such activities are inconsistent with the public convenience and necessity.” Although the Board’s authorizing statute does not define the term “public convenience and necessity,” in reaching its decisions the Board has historically asked whether there is a public demand or need for the proposed service, whether the applicant is financially able to undertake the construction and provide service, and whether the proposal is in the public interest and would not unduly harm existing services. If the Board is satisfied that the proposed project is not inconsistent with the public convenience and necessity, it proceeds to conduct an environmental review as required by NEPA. Once the environmental review is completed, the Board determines whether its original conclusion is still warranted after taking into account the potential environmental effects of the project and the cost of any necessary environmental mitigation. In this case, the Board made an initial determination that DM & E’s proposal was merited under § 10901. The Board found that there was public demand for the line because it would offer a shorter and less expensive method by which to transport coal from the PRB mines to power plants. It also concluded that the proposed project would benefit existing shippers and that DM & E had demonstrated its financial fitness to carry the project through to completion. Having preliminarily found that the project would not be inconsistent with the public convenience and necessity, the Board instructed its Section of Environmental Analysis (SEA) to examine the potential environmental effects resulting from the construction and continuing operation of the proposed project. SEA, in coordination with five cooperating federal agencies, then produced a nearly 5,000-page draft environmental impact statement (DEIS) examining the effects both of constructing the rail line extension to the PRB mines and rehabilitating DM & E’s existing lines in Minnesota and South Dakota to accommodate the coal traffic anticipated as a result of the project. SEA initially allowed 90 days for public review of and comment on the DEIS, but later extended this period by 60 days to ensure that the large number of persons and entities who wished to comment had ample opportunity to do so. The environmental review culminated with the issuance of a final environmental impact statement (FEIS), which contained further analysis in response to the comments received on the DEIS. The FEIS also made recommendations to the Board regarding environmentally preferable routing alternatives and mitigation measures. In all, the environmental review process took nearly four years and generated roughly 8,600 public comments. II. The NEPA mandates that a federal agency “take a ‘hard look’ at the environmental consequences” of a major federal action before taking that action. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoted case omitted). To comport with this standard, an agency must prepare a “detailed statement” (generally, an EIS), 42 U.S.C. § 4332(2)(C), “from which a court can determine whether the agency has made a good faith effort to consider the values NEPA seeks to protect.” Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). In reviewing the agency’s decision, we are not free to substitute our judgment for that of the agency. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir.1999). Our role in the NEPA process “is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. 2246; see 5 U.S.C. § 706. A. We begin our review of the agency’s actions under NEPA by addressing the objections raised by the city of Rochester, the Mayo Foundation, and Olmstead County, since their objections are to a large degree overlapping. DM & E’s existing line, carrying an average of three trains per day, runs through Rochester and Olm-stead County. In the FEIS, SEA recommended reconstruction of the existing line as the environmentally preferable alternative for the Rochester area, and the Board in its final decision accepted this recommendation. SEA rejected the proposed construction of a bypass around Rochester and a no-action alternative. Because Rochester is the largest community located on DM & E’s projected route and Mayo is one of the most sophisticated medical centers in the nation, they could be expected to be particularly alert to any environmental degradation that might arise from the project that the Board approved. We therefore address their claims with some degree of specificity. 1. Reconstruction of the rail line through Rochester would result in increased rail traffic through the city. Whereas at the present time approximately three trains pass through the city daily, SEA estimated that upon completion of the project rail traffic could increase to as many as 37 trains per day: This increase in traffic would, among other things, increase noise in the city to what SEA calls “adverse” levels. (SEA considers average noise levels above 65 decibels to be adverse and noise levels above 70 decibels to be significantly adverse.) SEA calculated that the average wayside (engine and wheel) noise level produced from 37 trains per day would be at least 65 decibels at distances within 420 feet of the fine and would be at least 70 decibels at distances within 210 feet of the line. With noise produced from the trains’ horns included, SEA calculated that the average noise level would be at least 65 decibels at distances within 2220 feet of the line and would be at least 70 decibels at distances within 1110 feet of the line. Finally, SEA determined, using aerial photographs, the number of noise-sensitive “receptors” (e.g., homes, schools, hospitals, churches) that would fall within the distances described above. Based upon SEA’s recommendation, the Board’s final decision required DM & E to mitigate noise for those noise-sensitive receptors that would experience an average noise level of 70 decibels from wayside noise. Specifically, the mitigation required a minimum average noise reduction of 5 decibels to the affected receptors and stated a design goal of achieving an average noise reduction of 10 decibels. The Board did not require mitigation for average wayside noise levels below 70 decibels or for noise caused by train horns. In its comments on the DEIS, Rochester produced data that purportedly showed that 88 residences would experience average wayside noise levels between 75 and 80 decibels and that 8 residences would experience average wayside noise levels above 80 decibels. (Noise levels double every 10 decibels; 80 decibels, therefore, is twice as loud as 70 decibels.) It asserts that SEA misled the Board (in violation of NEPA’s requirement of full disclosure) by aggregating all of these residences into a group described as having an average noise level of at least 70 decibels. If SEA had advised the Board that some residences could experience average noise levels greatly exceeding 70 decibels, Rochester argues, the Board might have determined that additional mitigation was necessary. There is no meaningful dispute that SEA accurately identified the distances at which receptors would experience an average noise level of at least 70 decibels. The question, rather, is whether SEA was derelict in failing to calculate the extent to which the average noise levels would exceed 70 decibels. Rochester maintains that the Board’s own regulation, which instructs the agency to “quantify the noise increase” for receptors which will experience an average noise threshold of 65 decibels, 49 C.F.R. § 1105.7(e)(6)(h), requires an affirmative answer to this question. Although Rochester’s argument that SEA has not quantified the noise increase is facially attractive, we think it ultimately unavailing. For one thing, Rochester’s own proposal (that SEA determine the number of receptors affected at the 75 and 80 decibel levels) would not actually “quantify” the noise increase associated with the project; it would still yield only an aggregation, albeit at a higher level, of the noise increase in Rochester. One could, of course, understand the instruction to “quantify the noise increase” to require a measurement of the actual noise level experienced by every receptor that would meet the threshold noise level. But we do not think that the Board’s regulations, or NEPA, require that level of precision. Indeed, we doubt that such a determination would be feasible given that this project involves some 880 miles of railroad line. Having concluded that SEA is not required to measure actual noise levels for potentially affected noise receptors, we consider whether it nonetheless violated NEPA to aggregate all average noise levels above 70 decibels into one category that SEA described as significantly adverse. In considering whether the EIS “adequately sets forth sufficient information to allow the decision-maker to ... make a reasoned decision,” we are guided by the “rule of reason.” See Boundary Waters, 164 F.3d at 1128 (internal quotations omitted). Despite Rochester’s assertions, it does not appear to us that SEA hid the facts from the Board. The DEIS fully disclosed the number of noise receptors that would suffer significantly adverse effects from both wayside and horn noise. It may be true, as Rochester contends, that even after mitigation there will still be residences that are subject to significantly adverse noise levels (indeed, the Board does not claim otherwise). But NEPA does not require that an agency eliminate all adverse affects that might result from a project. Rochester draws attention to the fact that the Federal Aviation Administration (FAA) gathers data for average noise levels above 65 decibels, 70 decibels, and 75 decibels, and argues that SEA’s analysis is therefore deficient. While it is true that the FAA includes a level of analysis that SEA does not, we do not think that this is dispositive. It would be wrong to conclude that one agency’s selection of a particular methodology necessarily makes another agency’s chosen, but different, methodology insufficient under NEPA. On the whole, we find that SEA’s choice of analysis, which was consistent with its past practice and similar in nature to the noise analyses performed by other federal agencies, was not arbitrary or capricious. 2. Rochester submits that the Board violated NEPA by failing to consider and mitigate horn noise. As described previously, SEA calculated the number of noise receptors that would experience average noise levels from train horns of at least 65 decibels and 70 decibels. But unlike the treatment given to wayside noise, SEA’s discussion of the effects and mitigation possibilities for horn noise was relatively perfunctory. The only mention of mitigating horn noise in the FEIS occurred in a footnote explaining that “SEA is not recommending mitigation for horn noise because of potential safety concerns in the absence of Federal Railroad Administration [FRA] standards addressing this issue.” In its argument to this court, the Board further explained that the FRA has recently proposed standards for establishing quiet zones (areas where horns do not have to be sounded), and that absent FRA approval it would be inappropriate for the Board to impose its own limitations on horn soundings. Given the important role that train horns play in reducing traffic accidents, we cannot second-guess the decision of SEA in refusing to limit the use of train horns. We do not believe, however, that this relieves SEA of the obligation to consider mitigation not involving limitations on the use of horns. SEA required mitigation for receptors subjected to an average noise level of 70 decibels from wayside noise. Rochester maintains that SEA should have considered similar mitigation measures for receptors subjected to comparable levels of horn noise. Such measures might include sound-insulating treatments for buildings within high noise areas. By SEA’s own calculations, horn noise will increase the distance at which buildings may be subjected to average noise levels of 70 decibels from 210 feet (the distance due to wayside noise alone) to 1110 feet. Although it is hard to imagine how insulating affected buildings might pose a safety threat (horns are sounded primarily for traffic safety), it is just conceivable that safety reasons do exist. But without a reasoned discussion of its rationale, we cannot say that SEA has taken a “hard look” at this substantial issue. This is not to say that the Board must ultimately mitigate for horn noise, but it must at least explain why mitigation is unwarranted. Even though NEPA’s requirements are predominantly procedural, they do require that SEA “explain fully its course of inquiry, analysis and reasoning.” Minn. Pub. Interest, 541 F.2d at 1299. We conclude that it did not do so here. 3. Rochester’s next objection is to the method used by SEA in calculating ambient (background) noise for use in its noise analysis. SEA used noise levels in rural South Dakota as its baseline for ambient noise. Rochester argues that since the ambient noise levels in an urban area are higher, it was arbitrary for SEA to use the lower rural levels. We disagree. SEA adequately supported its analysis by explaining that noise is not additive; when two sounds are of different levels, the higher level predominates and the lower level adds little to the overall noise level. This conclusion is supported by the EPA, which has stated that “adding a 60 decibel sound to a 70 decibel sound only increases the total sound pressure level less than one-half decibel.” See Protective Noise Levels, Condensed Version of EPA Levels Document 3 (1979), at http//www.no-noise.org/hbrary/levels/levels.htm. Even if we credit Rochester’s estimate that its own ambient noise level is 59 decibels, that would add less than one-half a decibel to those receptors that SEA has determined will experience average train noise of 70 decibels. SEA’s decision to forego a separate ambient noise measurement for every community located along the DM & E project was clearly within its permissible discretion. 4. Likewise, we find that SEA did not act arbitrarily in responding to concerns about nighttime noise. Because nighttime noise can lead to sleep disturbance, its effect on the human environment is greater than a similar level of daytime noise. To account for this, SEA employed the accepted practice of counting each nighttime train as ten trains (adding an approximately 10 decibel penalty to each train). For the purpose of its analysis it also assumed that train traffic would be spaced evenly throughout the day, an assumption that Rochester contends was a clear error in judgment. As the basis for this contention, Rochester presented in its comments a statistical model that purportedly shows that more trains will run at night than SEA’s model predicts. Rochester’s model is based upon DM & E’s plan to schedule a block of up to six hours for maintenance (a period where no trains will run) each day. In response to this comment, SEA stated that maintenance was impossible to predict and would vary considerably depending on what particular coal contracts that DM & E obtained. SEA therefore chose not to alter its methodology. Rochester’s model may indeed be a better predictor of night traffic if DM & E actually uses a full six hours per day for maintenance and if DM & E is equally likely to schedule maintenance during the daytime as it is to schedule it at night, but these assumptions are just as speculative as SEA’s assumption that train traffic would be spaced evenly throughout the day. Due to the highly uncertain nature of rail traffic patterns, we cannot say that it was a clear error of judgment for SEA to prefer one set of assumptions over another in conducting its analysis. 5. Rochester argues that SEA failed to make any response to evidence presented in Rochester’s comments that households experiencing both noise and vibration perceive the effect of the noise to be approximately twice the measured value of the noise. Although SEA included analysis for noise and vibration effects separately, we can find no evidence that it considered the synergies between the two in its response to comments or in the environmental impact statements. “Although the agency is not required to include in its final analysis every factor raised by ... a comment and may respond, for example, by explaining why the comment does not warrant [further] agency response,” see Oregon Natural Res. Council v. Marsh, 52 F.3d 1485, 1490 (9th Cir.1995), the Council on Environmental Quality (CEQ) regulations impose upon an agency preparing an FEIS the duty to assess, consider, and respond to all comments, see 40 C.F.R. § 1503.4(a). In this instance, SEA has not met this minimum requirement. On remand, SEA is instructed to fulfill its duty under the applicable NEPA regulations. 6. We now consider whether SEA’s use of aerial photographs to identify noise-sensitive receptors led it to under-count the number of receptors eligible for noise mitigation. According to Rochester’s comments, the method employed was flawed because any single building identified by photograph might contain multiple residences (the Board’s regulations designate each “residence” as a separate noise-sensitive receptor). Rochester suggested that a more accurate count could be obtained by using the tax records to determine the number of affected residences. SEA responded to this comment by stating its belief that the number of potentially affected noise receptors was likely overestimated because there were no adjustments for ambient noise or for shielding (by an object between a noise source and a noise receptor) and because aerial photographs do not differentiate between eligible noise receptors (such as homes) and ineligible structures (such as businesses and garages). SEA also explained that any discrepancy between its calculations and the actual number of affected receptors can be corrected by the Board during its oversight period. We cannot say, as Rochester argues, that SEA’s choice of methodology amounted to a clear error in judgment. In a project of this size, the agency is not required to maximize precision at all costs. We view SEA’s decision to use aerial photographs as a sensible way reasonably to approximate the number of affected receptors along the entirety of the proposed project. 7. Rochester submits that SEA improperly failed to consider the environmental impact on the city of passing sidings (locations where westbound trains move onto alternate track so that eastbound trains can pass). Although there are no present plans to build a passing siding in Rochester, the city asserts that since the FEIS acknowledges that “siding locations have not been finalized” SEA should have assessed the environmental impact that would result from locating a siding in Rochester. We believe that Rochester has misconstrued SEA’s statement. DM & E has proposed 45 locations for possible sidings, but it anticipates needing only 35^0 total sidings for efficient rail operation; thus there are several proposed locations that ultimately will not be used. It is not inconsistent for SEA to acknowledge that the locations have not been finalized while at the same time denying that a siding will be built in Rochester (because none has been proposed there). We note, moreover, that SEA’s analysis with respect to the proposed sidings was more than adequate. 8. Rochester maintains that SEA committed two errors in its assessment of the traffic effects that will result from reconstruction of the existing line through Rochester. First, Rochester argues that SEA should have used more current data when determining average daily traffic (ADT) volumes for those streets where train crossings exist. According to Rochester, SEA used data from 1994 when data from 1998 was available. Our comparison of the data from those years reveals that there has been little change in traffic volumes. In fact, the aggregate volume of traffic on the twelve streets where train crossings exist has actually declined (albeit only slightly) based on data from the Minnesota Department of Transportation. Even if we assume that SEA “erred” in using the older data, we need not remand unless “there is a significant chance that but for the errors the agency might have reached a different result.” Boundary Waters, 164 F.3d at 1129. Given the inconsequential difference in the data, we find remand unnecessary on this issue. Rochester also asserts that SEA used a nonsensical formula in calculating the average delay to vehicles that would result from increased rail traffic. According to Rochester, any formula designed to compute the average traffic delay to all vehicles must include as one of its variables ADT volumes. In lieu of using ADT volumes, however, SEA’s formula calculates average traffic delays for all vehicles as a proportion of the delay for vehicles actually stopped. SEA explains that this method “results in a conservative estimate of vehicle delay.” Indeed, our careful inspection of both the SEA methodology and that proposed by Rochester suggests that SEA’s calculations likely overstate the average traffic delays. We are convinced, in any ease, that SEA’s chosen methodology did not undermine the purposes of NEPA. 9. Contrary to Rochester’s assertions, we believe that SEA’s analysis of ground vibration was adequate in all respects. In discussing the effects of vibration generally, SEA’s analysis determined that there was little risk of damage to structures located 50 feet or more from the tracks and also that there was little risk of disturbance to structures located 100 feet or more from the tracks. SEA also noted that residences within 100 feet (SEA counted 14 such structures) might experience increased disturbances as rail traffic increased. In addition to its general analysis, SEA consulted with the manufacturer of a security fence at a nearby prison to verify its own conclusion that increased rail traffic would not be incompatible with operation of the security fence; the manufacturer assured SEA that if properly maintained and operated, the fence would not be affected by increased rail traffic. Lastly, SEA discussed the possibility that PEMSTAR, a local company that uses vibration-sensitive equipment, might not be able to continue operations at its current facility were traffic levels to increase. SEA noted that if PEMSTAR left Rochester altogether (a proposition that SEA considered unlikely since PEMS-TAR has other facilities in Rochester that are located farther from the tracks), it would result in a loss of about 600 jobs. Given Rochester’s size and the fact that some jobs would be created by DM & E’s expanded operation, SEA concluded that the loss of 600 jobs would not have significant economic effects on the city. Having thoroughly reviewed SEA’s analysis of vibration, we cannot agree with Rochester’s contention that SEA “buried” the facts. It seems to us that Rochester’s real grievance is that SEA did not adopt Rochester’s proposed mitigation condition that would have prohibited any increase in vibration. This proposal, it seems to us, would have essentially sounded a death knell to any plans to reconstruct the existing Rochester fine. This result would have no doubt been met with Rochester’s approval, but it was not compelled by the substantial body of evidence that SEA amassed on this issue. 10. Mayo asserts that SEA failed adequately to address the possibility of groundwater contamination. SEA acknowledged that both the existing route and the proposed bypass cross areas that are susceptible to groundwater contamination in the event of a rail line accident. After detailing these risks, SEA noted that because rehabilitation of the existing line would improve track that is currently in poor condition, the risks of groundwater contamination would actually decrease. Mayo’s counter-argument is based entirely upon a verified statement of one of its experts that was presented to SEA after SEA had prepared and released the FEIS. SEA does not have an obligation to respond to arguments that were not presented to the agency during the appropriate time period, especially when, as here, there is no indication that the information presented was previously unavailable. But even if it were appropriate to consider Mayo’s evidence, we would be unable to say that SEA has failed to take a “hard look” at the possibility of groundwater contamination. 11. Mayo also maintains that SEA did not take a “hard look” at the risk that the project would cause delays to emergency vehicles. Although Mayo acknowledges that SEA analyzed independently the effects of the reconstruction alternative and the bypass alternative on emergency vehicles, it argues that SEA arbitrarily avoided a direct comparison of the alternatives. Essentially, Mayo faults SEA for failing to say explicitly that the existing route would cause more delays to emergency vehicles than the bypass. We think, however, that SEA made this point abundantly clear when it recommended that the Board, if it chose to utilize the existing route, should “require construction of two additional grade separated crossings in Rochester to prevent potential reductions in the quality of emergency response.” FEIS 9-65. In contrast, SEA found that mitigation related to emergency vehicles would be unnecessary for the bypass. The only logical inference that can be drawn from this is that SEA anticipated that reconstruction of the existing route would pose more risk of disruption to emergency vehicles than would the construction of the bypass. For the purpose of complying with NEPA, it was not incumbent upon SEA to state this conclusion in a single explicit sentence. 12. Mayo contends that SEA failed properly to examine the relationship between increased levels of train vibration and the formation of sinkholes. Despite the high level of concern it expresses now, however, Mayo did not raise this issue in its comments on the DEIS. (Mayo did comment on its concerns about the effect of vibration on its facilities, and SEA responded to this comment by undertaking a more extensive vibration analysis.) Mayo seeks to excuse its failure to raise this issue earlier by stating that the issue was obvious (although apparently not obvious enough for Mayo to have raised it before). But even if it is true that increased vibration will hasten the formation of sinkholes, we fail to see how this advances Mayo’s interests. SEA recommended the existing route because it was less susceptible to sinkholes than the bypass alternative. This relative advantage of the existing route would seemingly be magnified if SEA were to find that vibration accelerated sinkhole formation in susceptible areas. In any event, we do not believe that SEA’s failure to respond to a concern that was never raised tainted its analysis. 13. Olmstead County raises alleged deficiencies with respect to SEA’s air quality analysis. First, it asserts that SEA should have used Minnesota’s thresholds for determining whether sulfur dioxide levels were significant instead of the less stringent EPA thresholds. The decision to apply these lesser standards, Olm-stead County argues, led SEA erroneously to conclude that it did not have to undertake more precise modeling to determine the exact scope of the effect of the proposed line on air quality. The County also faults SEA for failing to take background levels of hazardous air pollutants into account when it determined that hazardous air pollutant concentrations caused by train locomotives would be insignificant. After reviewing the record, we conclude that SEA’s decision to use the EPA’s thresholds was not arbitrary. SEA has an interest in using a standardized measurement to compare and contrast the relative air quality effects across a variety of regions. The EPA thresholds provide a reasonable standard by which to accomplish this. SEA’s decision to forego the testing necessary to determine the background levels of hazardous air pollutants in Olm-stead County was similarly reasonable. Its measurements of hazardous air pollutant concentrations from locomotive exhaust showed that increased rail traffic would result in only a minuscule increase in overall concentration levels. NEPA regulations require agencies to expend the bulk of their efforts on the most pressing environmental issues. In this instance, SEA had evidence that showed that the increase in the concentrations of hazardous air pollutants would be de minimis in comparison to the background levels, whatever they might actually be. Further expenditure of agency resources was therefore not required. 14. Olmstead County maintains that SEA’s environmental justice analysis was inadequate. The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations. To accomplish this, an agency must compare the demographics of an affected population with demographics of a more general character (for instance, those of an entire state). On the EPA’s recommendation, SEA used 1990 census data (2000 census data were not yet available) to compare data at the census block group level (the smallest geographic unit for which data on both race and income are obtained) to data at the state level. Olmstead County raises two objections to this approach. First, it argues that SEA should have used projected 2000 census data, which were available for some, but not all, communities. Second, it argues that for some areas, data were available at a level finer than that of census block group (for example, discrete neighborhoods, subdivisions, etc.). In Olmstead County’s opinion, these “corrections” would allow SEA to identify more affected groups. In response to these comments, SEA explained that an environmental justice analysis must use consistent data sets in order for the comparison to be meaningful. SEA, after close consultation with the EPA, used the most current and consistent data that were available to it. It seems to us that it is Olmstead County’s suggested approach (using a medley of assorted data), and not SEA’s, that could more fairly be characterized as arbitrary. 15. We consider next whether the Board’s decision-making process was flawed by the unlawful consideration of ex parte communications from DM & E. The record demonstrates that DM & E officials submitted a letter to SEA after the FEIS was issued (but before the Board’s final decision). In this letter, the DM & E expressed its views on mitigation proposals in the FEIS that called for three grade-separated crossings. Mayo argues that this contact violated the Administrative Procedure Act, see 5 U.S.C. § 557(d)(1)(A), and the Board’s own code of ethics, see 49 C.F.R § 1103.14. We are not sure that these prohibitions apply to communications, such as DM & E’s letter, that are submitted to the authority in charge of an environmental review and that express comments about that review. We note, moreover, that three United States Senators wrote letters to the Board on behalf of Mayo during the same time period that the alleged improper communications of DM & E occurred, communications to which Mayo does not object. In any event, as we indicate below, the Board did not adopt the view expressed in the letter that Rochester should be required to pay for the proposed grade-separated crossings, so we discern no remediable harm here. Mayo also objects to a discussion between DM & E’s president and the Board’s chairman regarding the jurisdiction of the Board to impose bypass alternatives. As this discussion concerned matters of jurisdiction, neither of the cited authorities would seemingly apply. But, again, the communication was of little consequence since the Board expressly rejected DM & E’s understanding of its jurisdictional authority. 16. We turn our attention to the Board’s rejection of a proposed bypass around Rochester, a decision that Rochester argues vigorously is arbitrary and capricious. According to SEA, the fundamental flaw in the proposed bypass was that it would require the construction of new track through karst areas that are topographically susceptible to sinkhole collapse. Construction in high sinkhole areas requires expensive mitigation to reduce the risk that heavy construction equipment will cause the collapse of underground caverns. Even with expensive mitigation and monitoring, there is the potential that sinkholes could develop at some point in the future, resulting in the derailment of trains, which could, in turn, lead to groundwater contamination. In addition, the necessary mitigation, which could require construction of a cement dam wall underneath the rail line, might itself result in potentially significant alterations in groundwater flow, thereby affecting the region’s ecology and accelerating the formation of other sinkholes. Rochester does not dispute the fact that construction over karst terrain presents increased risks and costs. Its argument, instead, is that SEA’s treatment of the Rochester bypass was inconsistent with its treatment of other areas where sinkholes were a potential difficulty, primarily the proposed East Staging and Marshalling Yard in Lewiston, Minnesota (Lewiston Yard). SEA chose to approve the construction of Lewiston Yard despite the fact that it was located in an area having the potential for a high concentration of sinkholes. In its analysis, however, SEA points out significant differences between the situations presented by Lewiston Yard and the proposed bypass of Rochester. Lewiston Yard requires only 2.1 miles of construction, and although the site initially proposed was in an area having the highest probability for sinkholes, there was some evidence that shifting the site slightly to the west would avoid the most troublesome topographical features. In contrast, the proposed Rochester bypass, which is 34.1 miles long, would involve 1.4 miles of construction through an area having the highest probability of sinkholes, 6.3 miles , of construction through an area having a moderate to high probability of sinkholes, and 19.4 miles of construction through an area having a low to moderate probability of sinkholes. And unlike Lewi-ston Yard, there is no indication that these areas could be avoided (Rochester did not make such a case to SEA during the comment period). The Lewiston Yard and Rochester bypass proposals are dissimilar in another important, and we think conclusive, respect. SEA concluded that there was an environmentally and fiscally preferable alternative to the Rochester bypass, namely, the reconstruction of the existing route, and that there was no such alternative in the case of Lewiston Yard. Rochester’s arguments are misplaced in that they focus on demonstrating that the bypass could be built in spite of the existing terrain. But SEA does not contend in its analysis that the bypass could not in fact be built, only that it would entail considerable cost and significant environmental risk to do so. While Rochester may prefer those displaced environmental consequences associated with the bypass to the ones associated with reconstruction of the existing line, it is not our place to reallocate those burdens. When the “resolution of [the] dispute involves primarily issues of fact” and “analysis of the relevant documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ ” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). Mayo argues that SEA had an obligation under NEPA to analyze the feasibility of other bypass alternatives to or variations on the rejected bypass alternative. But we note that Rochester had considered five alternatives to DM & E’s proposed reconstruction through the city, and it determined that the 34.1 mile bypass that it submitted was the environmentally preferred alternative. Guided by the “rule of reason” approach, Boundary Waters, 164 F.3d at 1128, we do not think that SEA was under an obligation to examine alternatives that Rochester itself considered environmentally inferior to the alternative ultimately rejected. Nor do we think that SEA has an obligation thoroughly to study new alternatives that were proposed only after it became apparent that Rochester’s preferred bypass alternative would be rejected. “Common sense ... teaches us that the ‘detailed statement of alternatives’ ” required by 42 U.S.C. § 4332(c)(iii) “cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.” Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197. Mayo and Olmstead County argue that SEA’s rejection of the bypass because of the difficulties with karst topography is arbitrary in light of the fact that the current rail line runs through similar topographical areas. SEA explained, however, that the risk of encountering sinkholes along the existing route was unlikely since surveys had identified only four sinkholes near or within DM & E’s right of way and since the existing route had been in operation for over a century without incident. We think that this provides a reasoned basis upon which to conclude .that the existing route presented fewer topographical challenges and risks than the proposed bypass. Finally, Mayo maintains that SEA’s conclusion that the bypass would be significantly more expensive to construct and operate when compared with reconstruction of the existing route is unsupported by the evidence. This contention is undermined by the fact that Rochester (Mayo’s partner in interest) calculated that the bypass would cost approximately $37 million more than reconstruction of the existing route. DM & E and SEA, for their part, estimated that the difference in cost could be as much as $90 million. There was thus more than ample evidence to support SEA’s conclusion that construction of a bypass would be considerably more expensive than reconstruction of the existing route. 17. After the period designated for comments on the DEIS had passed, Mayo petitioned the Board to reopen the record to consider concerns caused by a train derailment involving the release of toxic materials in Maryland and the terrorist attacks that took place on September 11, 2001. Mayo asserted that if similar incidents occurred in Rochester, it would be difficult to evacuate its medical facilities immediately. In denying Mayo’s request to reopen the record, the Board explained that the proposed project would actually increase safety because it entailed system-wide improvements to existing track. The Board also noted that it was unlikely that DM & E would be involved in the increased shipment of hazardous materials. Finally, the Board did not view the two incidents as posing a threat specific to Mayo. An agency is required to prepare supplements to an FEIS if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). This provision, however, has limits, for “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851. “To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Id. We therefore review denials of such requests applying the “rule of reason,” id. at 374, 109 S.Ct. 1851, giving deference to the responsible agency so long as its decision is not arbitrary or capricious, id. at 377, 109 S.Ct. 1851. In light of the safety analysis already performed by SEA, we do not think that it was arbitrary or capricious for the Board to conclude that further proceedings in light of the Maryland train derailment were not warranted. And while the events of September 11, 2001, have certainly raised awareness of the potential threats to our nation’s transportation systems, the Board exercised its permissible discretion when it determined that any increased threat was general in nature and did not bear specifically on Mayo, Rochester, or the proposed DM & E project. 18. Rochester maintains next that the Board’s final decision was unlawful insofar as it imposed, as part of its mitigation plan, conditions requiring consultation between DM & E and certain affected entities. According to Rochester, Idaho By and Through Idaho Public Utilities Commission v. Interstate Commerce Commission, 35 F.3d 585 (D.C.Cir.1994), supports its argument that the Board’s consultation requirements are an unlawful delegation of NEPA responsibilities. Idaho Public is, however, readily distinguishable. In that case, the Interstate Commerce Commission (the predecessor of the Board) declined to prepare an EIS for a project proposal, opting instead to require the regulated party to consult with other federal and state agencies. Id. at 595. The D.C. Circuit determined that this was a violation of NEPA. Id. at 596. While we fully agree that an agency may not require consultation in lieu of taking its own “hard look” at the environmental impact of a project, we do not believe that NEPA is violated when an agency, after preparing an otherwise valid EIS, imposes consultation requirements in conjunction with other mitigating conditions. Whether consultation produces any “affirmative benefit” or not, see Norfolk Southern Corp.—Control—Norfolk & Western Ry. Co., 366 I.C.C. 173, 234-35 (1982), is, of course, a matter properly left to agency discretion. 19. Finally, we examine Rochester’s claim that the Board unlawfully imposed the cost of grade-separated crossings on entities other than DM & E. The Board’s final decision adopts nearly verbatim the recommendation of SEA and states that DM & E “shall install two grade separated crossings in Rochester, Minnesota.” 2002 Decision at 69. The decision requires DM & E to “complete installation of one grade separated crossing prior to transporting more than 20 million tons of coal annually through Rochester for more than one year,” and to “complete installation of a second grade separated crossing prior to transporting more than 50 million tons of coal annually through Rochester for more than one year.” Id. at 69-70. In furtherance of this objective, the Board’s decision directs that DM & E “shall consult with FRA, Federal Highway Administration (FHWA), appropriate State and local transportation authorities, and the City of Rochester on the design (for example, whether the road would go over or under the rail line), location, and funding of these grade separations,” id. at 69, and “apprise [sic] SEA of the progress being made toward implementation of this condition in the quarterly reports required by [another condition],” id. at 70. We offer two observations on this aspect of the Board’s decision. First, although SEA expects the interested parties and various state agencies to work together to resolve the issue of funding, it did not order any particular entity to pay for the crossings. Second, because DM & E is required to construct the separated crossings before it can transport the specified amount of coal for more than one year, it will suffer significant economic repercussions if for some reason the crossings are not completed in a timely manner. Since DM & E bears the burden of nonperformance, it has the incentive either to secure funding for the crossings (presumably from a government source) or fund the crossings itself. Rochester is, of course, free to contribute to the crossings, but we do not think it (or anybody else) is required to do so under the Board’s decision. In another section of its decision, the Board addresses DM & E’s concern “that the grade-crossing separation conditions could be read to require DM & E to bear 100% of the costs associated with designing and constructing these grade separations,” id. at 28-29, by replying that: This is not the case. Although our conditions do not specify how the grade-separations costs should be borne, it is not our intention to place an unreasonable burden on DM & E. The grade separations in Pierre and Rochester will benefit those communities. Therefore, it is reasonable to expect entities other than DM & E to bear a substantial share of the costs. The communities, DM & E and other interested parties can, of course, seek assistance under the Federal Aid Highway Program or pursue other funding opportunities ... However, if DM & E and the communities cannot arrange for adequate funding and/or reasonable cost sharing within a reasonable time, either DM & E or the communities could bring the matter to our attention during the environmental oversight period and we will take appropriate action. Id. at 29. While it is conceivable that the above passage could be read as imposing a duty on Rochester to help with funding, we think that it merely makes it clear that DM & E need not necessarily fund the separated crossings by itself. This is consistent with the Board’s instruction that DM & E consult appropriate state and federal authorities on matters of funding, an instruction that impliedly encourages DM & E to solicit funds. We think that it would be especially wrong to interpret the Board’s response to DM & E’s concerns as requiring Rochester to pay for the grade separation when doing so would raise serious questions about the Board’s authority to impose requirements on non-applicants, an authority that SEA has said does not exist, see FEIS, vol. III, at 12-8. B. The Mid States Coalition for Progress represents the interests of approximately 150 landowners in South Dakota and Wyoming who are opposed to DM & E’s proposed expansion. It raises several objections to SEA’s analysis regarding alternatives for the proposed rail line extension into South Dakota and Wyoming. 1. In the preliminary stages of preparing its application, the DM & E examined three possible alignments (called northern, middle, and southern) for extending its system into the PRB. After it had held public meetings, visited the relevant areas, and conducted field investigations to reveal the engineering and environmental issues associated with each potential alignment, the DM & E determined that a southern alignment was the only one that would meet the purpose and needs of the project. According to the DM & E, the topography along the southern alignment allowed for gentle grades and shorter routes than the other two alignments, both of which were essential to DM & E’s goal of constructing an efficient, direct, and competitive line to the PRB coal mines. In addition, a southern alignment appeared to provide the greatest flexibility for constructing new track to avoid environmentally sensitive resources. Based on these findings, DM & E’s application to the Board focused exclusively on routing alternatives along a southern alignment. The Mid States Coalition criticizes SEA for failing to include and analyze routes in the northern alignment as project alternatives. It asserts that the general goals of the project could be fulfilled if DM & E were to use a northern alignment and that such an alignment might be environmentally preferable to the southern alignment alternatives that were considered. While these broadly worded assertions may or may not be true, it was within SEA’s permissible discretion to focus its resources on the southern alignment alternatives only. Under NEPA, an agency “is required to consider only reasonable, feasible alternatives.” Missouri Mining, Inc. v. ICC, 33 F.3d 980, 984 (8th Cir.1994). In this case, DM & E applied for a license to construct and operate a route to the PRB mines along the southern alignment, after concluding that the northern and middle alignments would not accomplish its business objective. While SEA had the obligation to explore alternative routes, which it did, we do not think that it was required to explore alternatives that, if adopted, would not have fulfilled the project goals as defined by the DM & E. This does not mean that SEA was obligated to recommend DM & E’s preferred route (it did not), and if SEA had found that there were no alternatives that met DM & E’s stated business objectives, it could simply have adopted the “no action” recommendation. But we do not think that SEA had a duty to analyze alternatives that were not germane to the proposed project itself. 2. Early in the formal scoping process of the project, SEA identified two alternatives for public and agency comment. One of these, “Alternative A,” was a decision not to build at all, and “Alternative B,” was basically the DM & E’s preferred alternative as presented in its project application. As a result of comments received during the scoping process, SEA identified eight other alternatives for potential inclusion in the DEIS. One was “Alternative C,” the route recommended by SEA and adopted by the Board. The remaining seven alternatives were similar in that they all involved the use of existing rail line and transportation corridors. After reviewing these seven alternatives, SEA determined that only one remotely met both the environmental and operational constraints necessary to warrant detañed analysis in the DEIS. This alternative was examined in detail in the DEIS as “Alternative D.” During its comprehensive analysis in the DEIS, SEA concluded that Alternatives B and C were environmentally preferable to Alternative D, and it therefore eliminated Alternative D from further consideration. In comments on the DEIS, the EPA suggested that Alternative D might be modified to reduce its potential adverse environmental effects. In response, SEA, working closely with the EPA, requested that DM & E submit a “Modified D” alignment that would comply with the EPA’s design criteria. Once SEA and the EPA approved DM & E’s design, SEA requested more detailed engineering data from DM & E in order to determine the feasibility of the alignment, which data DM & E provided. After verifying DM & E’s submissions to ensure that they “represented a reasonable and credible effort to develop a heavy-haul rail line using the existing rail line alignment,” SEA determined that the Modified D alignment offered no significant advantages over Alternatives B or C, such as reduced distance, fewer environmental impacts, lower cost, or less complicated engineering. Of particular significance was the SEA’s finding that the Modified D alignment would require eight to ten times the required earthwork of either Alternatives B or C, making the alignment both prohibitively expensive and environmentally precarious. On the basis of these findings, SEA concluded, and the EPA agreed, that the Modified D alignment was not a reasonable alternative for the project. The Mid States Coalition contends that SEA erred in determining that the Modified D alignment was not a reasonable and feasible alternative. Specifically, it asserts that SEA violated NEPA by involving DM & E in providing information on the feasibility of the alignment, that SEA’s analysis was incorrect and misleading, and that a supplemental DEIS allowing for public review and comment on that alternative was required prior to issuance of the FEIS. Since the Modified D alignment was suggested to SEA during the comment period on the DEIS, federal regulations require that the agency respond to the proposal in the FEIS. 40 C.F.R § 1503.4. But the agency may respond in a variety of ways: It may, for instance, “[mjodify alternatives including the proposed action, ... [djevelop and evaluate alternatives not previously given serious consideration by the agency, ... [supplement, improve, or modify its analyses, ... [m]ake factual corrections, [or] [e]xplain why the comments do not warrant further agency response.” Id. In this instance, SEA did not choose the path of least resistance; instead, it chose to develop and evaluate the Modified D alignment to determine whether it was a reasonable and feasible alternative. The Mid States Coalition argues that SEA’s seemingly satisfactory response was actually inadequate because it relied, in large part, on information that DM & E submitted. The CEQ regulations, however, contemplate a role for applicants in providing information necessary to complete an environmental review, so “that acceptable work not be redone.” 40 C.F.R. § 1506.5(a). Nor does it appear that the information was uncritically accepted, as the Mid States Coalition maintains. The engineering firm hired by SEA reported that “[t]he earthwork quantities developed ... [by DM & E] appear to represent a credible estimate of the cut and fill that would be associated with the proposed Modified D alignment,” and that the Modified D alignment “is probably technically feasible but not reasonable or practical.” FEIS, Appendix M, at M-127, M-128. The EPA, moreover, was also convinced, after reviewing SEA’s analysis, that the Modified D alignment was not a reasonable alternative for the project. And while the Mid States Coalition vigorously disputes the accuracy of some of SEA’s evidentiary findings, we need not “fly speck” an EIS for inconsequential or technical mistakes, see Boundary Waters, 164 F.3d at 1128 (internal quotations omitted). We are convinced that SEA made a good faith effort to explore the suggestions made by a commenting party and reasonably concluded that the Modified D alignment was not a preferred alternative. Nor do we accept the Mid States Coalition’s argument that SEA was in any event required to issue a supplemental DEIS allowing for public review and comment. Supplemental statements are required only when an agency “makes substantial changes in the proposed action that are relevant to environmental concerns,” or when “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). Neither of these conditions exists in this instance. Once SEA properly responded to comments suggesting Modified D as an alternative and determined that it was not a reasonable or feasible alternative, it was justified in refusing the Mid States Coalition’s request to issue a supplemental DEIS allowing for public review and comment. 3. From the comments that it received on the DEIS, SEA concluded that its DEIS analysis did not completely reflect the potentially adverse environmental effects for one of the construction alternatives considered for the City of Mankato. In the FEIS, therefore, the agency supplemented its evaluation of the alternative and recommended appropriate mitigation strategies. The Mid States Coalition maintains that SEA should have prepared a supplemental DEIS so that the public could comment on the information that was first presented in the FEIS. We think that this argument is misplaced. As we have already said, NEPA does not require an additional round of public comments every time an agency revises, supplements, or improves its analysis in response to the public comments on a DEIS. Incremental changes are expected and in fact encouraged: A supplemental DEIS is required only when changes are substantial, and even then, only if the substantial change is relevant to environmental concerns. If agencies were required to issue a supplemental statement with every project adjustment, it would discourage them from making corrections and improvements in response to public comments. While SEA has modified its analysis with respect to this Mankato alternative, we think it was well within SEA’s discretion to determine that the change was not substantial enough to require a supplemental DEIS. C. The Sierra Club argues that SEA wholly failed to consider the effects on air quality that an increase in the supply of low-sulfur coal to power plants would produce. Comments submitted to SEA explain that the projected availability of 100 million tons of low-sulfur coal per year at reduced rates will increase the consumption of low-sulfur coal vis-a-vis other fuels (for instance, natural gas). While it is unlikely that this increase in coal consumption would affect total emissions of sulfur dioxide (which are capped nationally at maximum levels by the Clean Air Act Amendments of 1990), the Sierra Club argues that it would significantly increase the emissions of other noxious air pollutants such as nitrous oxide, carbon dioxide, particulates, and mercury, none of which is currently capped as sulfur dioxide is. Before this court, the Board admits that because of the need to comply with the restrictions in the Clean Air Act Amendments on sulfur dioxide emissions, many utilities will likely shift to the low-sulfur variety of coal that the proposed project would make available. It argues, however, that this shift will occur regardless of whether DM & E’s new line is constructed, since the proposed project will simply provide a shorter and straighter route for low-sulfur coal to be transported to plants already served by other railroad carriers. But the proposition that the demand for coal will be unaffected by an increase in availability and a decrease in price, which is the stated goal of the project, is illogical at best. The increased availability of inexpensive coal will at the very least make coal a more attractive option to future entrants into the utilities market when compared with other potential fuel sources, such as nuclear power, solar power, or natural gas. Even if this project will not affect the short-term demand for coal, which is possible since most existing utilities are single-source dependent, it will most assuredly affect the nation’s long-term demand for coal as the comments to the DEIS explained. Tellingly, DM & E does not adopt the Board’s argument that the proposed project will leave demand for coal unaffected: Instead, it adopts the more plausible position that SEA was not required to address the effects of increased coal generation because these effects are too speculative. NEPA requires that federal agencies consider “any adverse environmental effects” of their “major ... actions,” 42 U.S.C. § 4332(C), and the CEQ regulations, which are binding on the agencies, explain that “effects” include both “direct effects” and “indirect effects,” 40 C.F.R. § 1508.8. Indirect effects are defined as those that “are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. “Indirect effects may include ... effects on air and water and other natural systems, including ecosystems.” Id. The above language leaves little doubt that the type of effect at issue here, degradation in air quality, is indeed something that must be addressed in an EIS if it is “reasonably foreseeable,” see id. As in other legal contexts, an environmental effect is “reasonably foreseeable” if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992). DM & E argues in its brief that “if the increased availability of coal will ‘drive’ the construction of additional power plants ... the [Board] would need to know where those plants will be built, and how much coal these new unnamed power plants would use. Because DM & E has yet to finalize coal-hauling contracts with any utilities, the answers to these questions are pure speculation — hardly the reasonably foreseeable significant impacts that must be analyzed under NEPA.” Even if this statement is accurate (the Sierra Club has asserted that it is not), it shows only that the extent of the effect is speculative. The nature of the effect, however, is far from speculative. As discussed above, it is reasonably foreseeable — indeed, it is almost certainly true — that the proposed project will increase the long-term demand for coal and any adverse effects that result from burning coal. Contrary to DM & E’s assertion, when the nature of the effect is reasonably foreseeable but its extent is not, we think that the agency may not simply ignore the effect. The CEQ has devised a specific procedure for “evaluating reasonably foreseeable significant adverse effects on the human environment” when “there is incomplete or unavailable information.” 40 C.F.R. § 1502.22. First, “the agency shall always make clear that such information is lacking.” Id. Then, “[i]f the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known,” the agency must include in the environmental impact statement: (1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. Id. at § 1502.22(b). We find it significant that when the Board was defining the contours of the EIS, it stated that SEA would “[e]valuate the potential air quality impacts associated with the increased availability and utilization of Powder River Basin Coal.” DEIS Appendix C at C-73. Yet, the DEIS failed to deliver on this promise. Interested parties then submitted comments on the DEIS explaining, for the reasons that we have summarized, why this issue should be addressed in the FEIS. These parties even identified computer models that are widely used in the electric power industry to simulate the dispatch of generating resources to meet customer loads over a particular study period. According to the commenting parties, these programs could be used to forecast the effects of this project on the consumption of coal. These efforts did not convince SEA, which asserted that “[b]e-cause the 1990 Clean Air Act Amendments mandate reductions in pollutant emissions ... an assumption of SEA’s analysis was that emissions will definitely fall to the mandated level, producing whatever effect the emissions will have on global warming.” FEIS at 10-2. SEA’s “assumption” may be true for those pollutants that the amendments have capped (including, as we have said, sulfur dioxide) but it tells the decision-maker nothing about how this project will affect pollutants not subject to the statutory cap. For the most part, SEA has completely ignored the effects of increased coal consumption, and it has made no attempt to fulfill the requirements laid out in the CEQ regulations. The Board has stated that this project “is the largest and most challenging rail construction proposal ever to come before [us],” and that the total cost of the project is estimated to be $1.4 billion, not counting the cost of environmental mitigation. Final Decision at 4. We believe that it would be irresponsible for the Board to approve a project of this scope without first examining the effects that may occur as a result of the reasonably foreseeable increase in coal consumption. III. The Mid States Coalition argues that the financial fitness analysis in the Board’s final decision underestimated construction costs for the new line and overestimated DM & E’s future revenues. Upon review, we must uphold an agency’s licensing decision unless that decision was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or not in accordance with the law. 5 U.S.C. § 706(2); see Boundary Waters, 164 F.3d at 1121. As we have previously said, the Board made a preliminary finding that the proposed project was not inconsistent with the public convenience and necessity as required by § 10901. After the environmental review process was completed some three years later, the Board revisited its preliminary findings and determined that the environmental effects that could not be fully mitigated were not so great as to outweigh the public benefits of the new line. The Board then considered whether the costs of complying with the imposed mitigation conditions would threaten DM & E’s financial fitness. In a previous decision, the Board explained that “[t]he purpose of the financial fitness test is not to protect the carrier or those who elect to invest in the proposed project, but, rather, to protect existing shippers from carrier financial decisions that could jeopardize a carrier’s ability to carry out its common carrier obligation to serve the public.” Tongue River R.R. — Rail Construction & Operation — Ashland to Decker, Montana, STB Finance Docket No. 30186 (Sub-No. 2) (STB service date Nov. 8,1996). In this case, the Board determined that even with the projected additional mitigation costs DM & E would garner significant net income from its proposed PRB service, and that this additional income would actually inure to the benefit of DM & E’s existing shippers because it would enable DM & E to rehabilitate deteriorating portions of track in the areas that it currently selves. In fact, the Board found that without the infusion of capital that this project would bring, DM & E might be unable to continue its operation in the long term, a result that would obviously be detrimental to DM & E’s existing customers. On the basis of these findings, the Board determined that the public convenience and necessity test had been met. In its original financial analysis, the Board used the construction cost estimates from DM & E’s application, which were based upon DM & E’s preferred 262-mile route. The Mid States Coalition argues that the Board erred in its final decision by not taking into consideration the additional cost of constructing the route that the Board ultimately approved, which was nearly 20 miles longer than DM & E’s preferred route. The Mid States Coalition also argues that the Board’s final decision should have reflected changed market conditions that, according to the Coalition, have rendered the Board’s original revenue projections for DM & E obsolete. The Board does not deny that the financial-fitness analysis in its final decision relied almost exclusively on data collected for the original financial-fitness analysis conducted in 1998. This was, in fact, by design: The Board’s standard practice is to complete its financial analysis, subject only to any costs that might be incurred as a result of the Board’s imposition of environmental mitigation; this allows the Board to approve or reject a project quickly once the environmental process has run its course. It is probable, as the Mid States Coalition suggests, that the data that the Board relied upon in its original financial-fitness analysis was somewhat dated by the time a final decision is issued, especially where, as here, there is a protracted environmental analysis. But we do not believe that this invalidates the Board’s chosen process. “Administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated.” ICC v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944). “This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful.” Id. If we were to require the Board to take the time to conduct its financial analysis anew, we suspect that adverse parties would then contend that the environmental analysis was stale. We doubt, moreover, that under the existing statutory scheme the Board’s decision would be different if it had access to the most current information. As first enacted, § 10901 directed the ICC (the Board’s predecessor) to approve a project only if public convenience and necessity “require or will be enhanced by” the construction. See 49 U.S.C. § 10901(a) (1976 ed; Supp. II (1979)). Congress subsequently relaxed this restrictive policy by providing that the ICC need only find that public convenience and necessity “permit” the proposed construction. See 49 U.S.C. § 10901(a) (1982). Congress’s latest iteration of the statute relaxes the standard even further, directing that the Board “shall issue” construction licenses, “unless the Board finds that such activities are inconsistent with the public convenience and necessity.” 49 U.S.C. § 10901(c) (emphasis added). When read in conjunction with Congress’s broad policy directives to promote “effective competition among rail carriers” and to “reduce regulatory barriers to entry into ... the industry,” 49 U.S.C. § 10101, we believe that the Board correctly maintains that there is a statutory presumption that rail construction is to be approved. The record demonstrates that the Board had sufficient evidence before it to conclude that DM & E could complete this project. First, the Board’s own analysis indicated that the venture would be profitable, even after the cost of environmental mitigation had been allowed for. Although much of the data used in the analysis was not current, there is still probative value in the Board’s conclusion. Of particular significance was the Board’s finding that this project would allow DM & E to continue as a financially viable operation and to update its deteriorating track, thereby ensuring future service for those whom the financial fitness requirement was meant to protect, DM & E’s existing shippers. Even though a large portion of the Board’s analysis on this matter was conducted in 1998, the fact that a number of DM & E’s existing customers have intervened in this case on DM & E’s behalf leads us to believe that the Board’s finding is not suspect. Finally, we agree with the Board that the ultimate test of financial fitness will come when the railroad seeks financing. Without impugning the accuracy of the financial analyses presented by the various parties in this case, we believe that the nation’s financial institutions possess the expertise and insight necessary to determine the financial viability of this project. Given the liberal nature of the licensing statute and the Board’s analysis thus far, they should have that opportunity. We do not mean to suggest, of course, that the Board can disregard additional costs, if any, that may arise from the environmental analyses that it will conduct on remand. We expect that the Board will incorporate its new findings appropriately into the body of evidence that it has already amassed before making a final determination on this matter. IV. We next consider whether the Board has complied with § 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f, which provides that a federal agency shall “take into account” the effect of its licensing decisions on properties “included in or eligible for inclusion in, the National Register [of Historic Places].” In order to carry out this broadly stated purpose, the Advisory Council on Historic Preservation (ACHP) has issued regulations implementing the NHPA, see 36 C.F.R. Part 800, which are binding on agencies. These regulations require that the relevant agency consult with a number of specified parties to identify historic properties, assess the adverse effects that the proposed project would have on those properties, and “seek ways to avoid, minimize or mitigate any adverse effects.” 36 C.F.R. § 800.1(a). This process may be conducted separately, or, as in this case, in conjunction with an environmental review under NEPA. See 36 C.F.R. § 800.2(d)(3). The Mid States Coalition first maintains that the Board failed to include all necessary parties in its consultation process. Under the regulations, an agency has a general duty to “provide the public with information about an undertaking and its effects on historic properties and [to] seek public comment and input.” 36 C.F.R. § 800.2(d)(2). The regulations, however, specify that certain individuals and organizations, known as “consulting parties,” are to be more formally involved in the agency’s NHPA review. The agency must invite all relevant state historic preservation officers, tribal historic preservation officers, local government representatives, and the project applicant to participate in the NHPA process as consulting parties. 36 C.F.R. § 800.2(c). In addition to those who are consulting parties as a matter of right, other interested individuals or organizations “may participate as consulting parties due to the nature of their legal or economic relation to the undertaking ... or their concern with the undertaking’s effects on historic properties,” 36 C.F.R. § 800.2(c)(5) (emphasis added), if they request participation in writing and the agency determines that they should be granted consulting party status, 36 C.F.R. § 800.3(f)(3). The Mid States Coalition contends that the NHPA was violated because the Board failed to invite ranchers and farmers whose lands may contain historic properties to participate as consulting parties. The ACHP regulations make it apparent, however, that affected ranchers and farmers are not automatically entitled to be consulting parties. Because they have an economic interest in the proceeding, they may be added as consulting parties, but they must first make a request, in writing, to the Board. In this case, the Board has granted consulting party status to all individuals and organizations who made such a request. We believe, moreover, that the agency complied with its general duty to notify and allow comment from the public on matters of historic preservation during the environmental review process. See 36 C.F.R. §§ 800.3(e), 800.8(c)(l)(iv). The DEIS and the FEIS describe those sites along the proposed route that SEA initially identified as eligible for inclusion in the National Register of Historic Places. And since the public was encouraged to comment on all aspects of the DEIS, we cannot say that there was an insufficient opportunity for public comment under the NHPA. The Mid States Coalition also asserts that the Board erred by issuing DM & E a license before it completed the NHPA process. The Board maintains that the NHPA’s seemingly unambiguous directive to take effects into account “prior to the issuance of any license,” 16 U.S.C. § 470f, is relaxed by the ACHP’s implementing regulations. As noted above, an NHPA analysis involves a three-step process of identification, assessment, and mitigation. The general expectation is that an agency will complete one step before moving on to the next, but the regulations permit an agency to use a “phased process” of identifying and evaluating properties where “alternatives under consideration consist of corridors or large land areas,” 36 C.F.R. § 800.4(b)(2). The agency’s phased process “should establish the likely presence of historic properties within the area of potential effects for each alternative ... through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of the [historic preservation officers] and any other consulting parties.” Id. We believe that SEA’s analysis in the early stages adheres to this approach. During the period when there were still numerous alternatives under consideration, it was permissible for SEA to delay assessing the adverse effects of the project on specific sites. But as “specific aspects or locations of an alternative are refined,” the regulation provides that the agency “shall proceed with the identification and evaluation of historic properties.” Id. By requiring that agencies identify and assess individual properties as project alternatives become more concrete, the regulations assure that the agency will be in a position to proceed to the mitigation step. Although the Board (through SEA) identified some potentially affected sites in the DEIS and FEIS, it has not made a final evaluation or adopted specific measures to avoid or mitigate any adverse effects, see 36 C.F.R. § 800.2(d)(3). It argues, however, that the ACHP’s regulations permit it to defer these actions until after the license has been approved. We disagree. It is true that the regulations permit an agency to “defer final identification and evaluation of historic properties if it is specifically provided for in ... the documents used by an agency official to comply with [NEPA] pursuant to [36 C.F.R.] § 800.8.” 36 C.F.R. § 800.4(b)(2). But § 800.8, in turn, requires that an agency develop measures to “avoid, minimize, or mitigate” adverse effects and then bind itself to these measures in a record of decision. 36 C.F.R. § 800.8(c)(4). The ACHP’s regulations, when read it their entirety, thus permit an agency to defer completion of the NHPA process until after the NEPA process has run its course (and the environmentally preferred alternatives chosen), but require that NHPA issues be resolved by the time that the license is issued. In this case, the Board’s final decision contains a condition requiring DM & E to comply with whatever future mitigation requirements the Board finally arrives at. We do not think that this is the type of measure contemplated by the ACHP when it directed agencies to develop measures to “avoid, minimize, or mitigate” adverse effects. We note that the ACHP’s regulations offer agencies an alternative to the process described above. An agency may negotiate with consulting parties to develop “a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations.” 36 C.F.R. § 800.14(b). While the programmatic agreement itself must be in place before the issuance of a license, it gives an agency flexibility when “effects on historic properties cannot be fully determined pri- or to approval of an undertaking,” id. Indeed, the Board recognized this advantage, as evidenced by its continuing effort to negotiate an acceptable programmatic agreement before it issued its final decision. We believe that the Board should have also recognized that it could not proceed without one. One month before the Board issued its final decision, the ACHP wrote a letter to the Board stating: As we understand it, [the Board] plans to make a decision on whether to approve or deny the proposed project at the end of the month. Given this short time frame and the critical need to coordinate the completion of Section 106 with any decision reached under [NEPA], we recommend you set up a conference call among the consulting parties in order to develop timely revisions to this [programmatic agreement], and that you circulate a revised final [programmatic agreement] as quickly as possible. Until these important issues are resolved, the Council will not be able to execute a [programmatic agreement] with [the Board] for this undertaking. If the programmatic agreement had been executed, the Board could have finalized the NHPA details at a future date according to the terms of the agreement, just as it wished. Not willing to delay publication of its decision until after a consensus could be reached on the terms of the programmatic agreement, the Board instead issued the license having neither secured a programmatic agreement nor completed the alternate NHPA process. On remand, it must do one or the other. V. The Sioux maintain that the Board violated the terms of the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, and breached the government’s fiduciary duty to the Sioux Indians, when the Board licensed the construction of DM & E’s new extension without first obtaining the Sioux’s consent. Article 12 of that treaty provides that any cession of reservation land must be approved by at least three-fourths of the adult male Sioux population. Id., 15 Stat. at 639; United States v. Sioux Nation of Indians, 448 U.S. 371, 381-82, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). DM & E’s proposed line, however, does not cross the boundaries of any present-day reservation: It is located either on land that was restored to the public domain by the Act of March 2, 1889, ch. 405, 25 Stat. 888, or on land in the Black Hills region, which was taken from the Sioux by the Act of February 28, 1877, ch. 72, 19 Stat. 254, and for which the Sioux have recovered damages, see Sioux Nation, 448 U.S. at 381-82, 423-24, 100 S.Ct. 2716. Because DM & E’s proposed line does not pass through any present-day reservation, no cession of reservation land is required before the proposed line can be built, and the Fort Laramie Treaty does not apply. The Sioux’s argument that the 1889 Act is itself invalid also fails. The Sioux contend that although that act was approved by three-fourths of the adult male Sioux population as a whole, see Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589 n. 5, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977), it is invalid because it was not consented to by three-fourths of the Sioux males from each band, as, the Sioux contend, the Act requires as a condition to its effectiveness. Section 28 of the 1889 Act states that the Act will take effect only if it is consented to “by the different bands of the Sioux Nation of Indians, in manner and form prescribed by the twelfth article of the [Fort Laramie Treaty of 1868] between the United States and said Sioux Indians.” 25 Stat. at 899. Article 12 of that treaty, in turn, explains that “at least three-fourths of all the adult male Indians” living on the Great Sioux Reservation must agree to any cession of reservation land. 15 Stat. at 639. The Sioux argue that the phrase “by the different bands” in Section 28 means that the Act can take effect only if it is agreed to by at least three-quarters of the adult males from each Sioux band. We disagree. We believe that Congress viewed the Fort Laramie Treaty as having been entered into between the United States and the different bands of the Sioux, see Ft. Laramie Treaty of 1868, 15 Stat. 635, and that the phrase “by the different bands” in Section 28 of the 1889 Act meant the Sioux population as a whole. This view is supported by Section 16 of the 1889 Act, which refers to “the acceptance of this act by the Indians in manner and form as required by the ... treaty concluded between the different bands of the Sioux Nation of Indians and the United States, April [29, 1868].” See 25 Stat. at 893. The history of the Act also supports this interpretation. According to an 1884 report of the Senate Select Committee to Examine the Condition of the Sioux and Crow Indians, Congress authorized the Secretary of the Interior to negotiate with the Sioux for a possible cession of reservation land as early as 1882. See S. Rep. 48-283, at 2 (1884). The report further indicates, however, that Congress repeatedly refused to ratify any agreement that resulted from these negotiations until commissioners appointed by the Secretary of the Interior were able to “procure the assent of the Sioux Indians as provided in article twelve of the treaty of 1868.” Id. at 3-4. For these reasons, we believe that Congress intended Section 28 of the 1889 Act to require precisely what was required by the Fort Laramie Treaty: the assent of three-fourths of the adult male Sioux population as a whole, rather than three-quarters of the Sioux from each individual band. We therefore reject the Sioux’s challenge to the validity of the 1889 Act. VI. In both size and scope, this project is undoubtedly one of the largest ever to have come before the Board. Although we find it necessary to vacate the Board’s final decision so that it may correct certain deficiencies, we think that on the whole the Board did a highly commendable and professional job in evaluating an enormously complex proposal. We are confident that on remand the Board will quickly address those few matters that we have identified as requiring a second look, and will come to a well informed and reasonable conclusion. . The Board argues that the two bypasses required in the mitigation order (discussed below) will reduce horn noise, thereby fulfilling its duty under NEPA to consider this issue. Although, after a full explanation and analysis, the construction of bypasses may prove to be the optimal method of handling horn noise, we do not believe that this proposed alternative relieves SEA of the duty to examine other potentially viable alternatives, such as insulating treatments.

Mid States Coalition for Progress v. Surface Transportation Board

HEANEY, Circuit Judge, concurring. I concur in the majority’s opinion. I write separately to highlight the significant adverse consequences that the Rochester community will experience due to the increased train traffic running through downtown Rochester, and to point out an additional component of the Final Environmental Impact Statement (FEIS) that the Section of Environmental Analysis (SEA) failed to fully explore. The record makes clear that the Rochester community will be adversely affected as a result of the Surface Transportation Board’s (STB) decision to approve the Dakota, Minnesota & Eastern Railroad Corporation’s (DM & E) proposal to transport coal from Wyoming to the Mississippi River. This decision will bring up to 37 trains a day, some with more than 100 cars, at speeds up to 40 miles an hour, through the heart of the city of Rochester. These adverse consequences would have been best mitigated by bypassing the city. The STB, however, after carefully considering and analyzing the proposed bypass, properly rejected this alternative due to the additional costs imposed by the length of the bypass, the terrain, and the possibility of sinkholes along the route. Rejection of this alternative, however, does not relieve DM & E of its responsibility to mitigate, to the fullest extent practicable, the adverse consequences the Rochester community will experience due to the rehabilitation of the current rail line. The majority has carefully set forth the adverse consequences that the Rochester community, including the Mayo clinic, will incur as a result of the decision to rehabilitate the existing railway. These include; increased wayside noise; increased vibration in homes and businesses near the tracks; increased risk of groundwater contamination in the event of a rah line accident; and increased risk of delay to emergency vehicles. The majority found that these adverse consequences were fully considered in the FEIS. The majority also found, however, that other adverse consequences to the Rochester community were not fully explored and therefore required further study and exposition by the STB. These adverse consequences are increased noise from train horns and the cumulative effect suffered by households experiencing both noise and vibration. In my view, there is an additional area in which the FEIS is insufficient. The SEA recommended the construction of two separated grade crossings in Rochester; the first is scheduled to be installed prior to DM & E transporting 20 million tons of coal annually, and the second is scheduled to be installed prior to DM & E transporting 50 million tons of coal annually through the city. Although these crossings will provide some mitigation of the impact of the increased train traffic in Rochester, the FEIS fails to adequately consider the consequences of deferring the construction of these crossings. The rehabilitation of the rail line and the construction of the separated grade crossings will, in and of themselves, adversely affect the city of Rochester through increased noise, vibration, air pollution, and disrupted traffic flow. Therefore, the Rochester community will suffer not only from an increase in train traffic, but also from the three construction projects; first when the track is rehabilitated, second when the first crossing is constructed, and, again, a third time when the second crossing is installed. I agree that under the National Environmental Policy Act (NEPA) it is the responsibility of the permitting agency to determine what actions should be taken to mitigate the consequences of the adverse environmental impacts of a project, and that “[o]ur role in the NEPA process ‘is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.’” Ante at 27 (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). In this instance, the SEA did neither with respect to the impact of deferring the construction of the separated grade crossings. The SEA is required to discuss the reasons why a certain miti-gative step was chosen and the impact of that choice in enough detail to ensure that the environmental consequences are fairly evaluated. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (stating that the “requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from the language of [NEPA] and, more expressly, from CEQ’s implementing regulations” and that the “omission of a reasonably complete discussion of possible mitigation measures would undermine the ‘action-forcing’ function of NEPA.”). In this case, the SEA asserted that the construction of two separated grade crossings will mitigate the impact of the increased train traffic in Rochester, but failed to discuss how it decided on two rail crossings, or to consider the impact of deferring the construction. It is not enough to put forth installing such crossings as appropriate mitigation without revealing the reasoning behind such a finding, or detailing the impact the proposed mitigation will have on the community. Instead, the SEA is required to “explain fully its course of inquiry, analysis and reasoning.” Ante at 31 (quoting Minn. Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir.1976)). I cannot say, based on the FEIS developed by the SEA, that it took the requisite “hard look” at the environmental impact of rehabilitating the current railway on the Rochester community. Fully analyzing alternatives is the “heart of the environmental impact statement,” 40 C.F.R. § 1502.14, and the agency is required to “Vigorously explore and objectively evaluate all reasonable alternatives,” 40 C.F.R. § 1502.14(a). Although I agree with the majority that the STB adequately considered and properly rejected the proposed bypass of the city of Rochester, the STB failed to sufficiently detail the mitigation measures that should be taken. This omission undermines the action-forcing function of NEPA. The adverse consequences that the Rochester community will suffer due to this project are severe. The STB, therefore, should be required to consider the adverse consequences outlined in the FEIS and discussed by this court, both individually and collectively, in order to fully analyze all possible steps that can be taken to mitigate their impact on the Rochester community. . I agree with the majority’s holding that the reasonably foreseeable effects of increased coal consumption in Midwestern and Eastern states also must be thoroughly considered. Even though there is no evidence in the record that the Rochester community will be adversely affected by any significant increase in coal consumption, the environmental consequences of such an increase to other geographic areas should be considered by the STB.

Sierra Club v. Slater

RYAN, Circuit Judge. The Sierra Club and other plaintiffs brought suit against federal, state, and municipal officials in their official capacities under numerous federal statutes, seeking to prevent the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project, also known simply as the Project, in Toledo, Ohio. The centerpiece of the Project is an approximately 3.5-mile-long four-lane highway connecting downtown Toledo and its northern suburbs, and is referred to as the Parkway. Currently, construction on the Project is scheduled to be completed in mid-1998. The district court granted summary judgment to the defendants with regard to all of the plaintiffs’ claims. The plaintiffs now appeal, raising numerous issues. Concluding that their assignments of error are uniformly without merit, we will affirm the district court’s judgment. I. About twenty-five years ago, in 1972, planning commenced for the highway project at the center of this lawsuit. Federal funding was first requested in 1974. The parties do not agree what, precisely, constitute the components of the Project as a whole. All agree that the centerpiece is the Parkway, which is meant to serve as a connection between downtown Toledo, 1-280, and Point Place, in the northern suburbs of Toledo, and is intended to provide commercial, industrial, and residential development in North Toledo. But while all parties agree that the City of Toledo has contemplated certain other construction projects, they disagree whether those projects are properly considered part of the Project. According to the defendants, the Project consists of nothing other than the Parkway; a paved bike-way paralleling part of the Parkway; and an extension of Champlain Street from its current northeastern terminus beyond 1-280, called the Champlain Extension. The plaintiffs claim that two other construction projects — a paved connection of the Anthony Wayne Trail and 1-75 with the Parkway through the Central Business District of Toledo, called the CBD Connection or CBD Connector, and a Development Scheme including, among other things, four industrial parks — are also part of the Project, despite the defendants’ contention that these are separate and distinct endeavors. The defendants point out that no federal funding has ever been received, or even sought, for these projects, and that no federal permit or certification has ever been requested. The defendants also claim that it is “currently unlikely” these projects “will ever come to fruition.” Because the Project required federal funds, it was necessary to comply with the National Environmental Policy Act of 1969, or NEPA, 42 U.S.C. § 4321 et seq., which requires that an environmental impact statement, or EIS, be filed before any major federal action is undertaken that will significantly affect the environment. The Federal Highway Administration, or FHWA, delegated preparation of the EIS to the Ohio Department of Transportation, which in turn delegated responsibility for the necessary environmental studies to the City of Toledo. A draft EIS was completed in 1981, and the final EIS was approved by FHWA in February 1984. In April 1984, the FHWA then issued a Record of Decision, or ROD, memorializing its approval. Another environmental consideration arose because the Parkway is intended to run through the Buckeye Basin, which contains naturally occurring wetlands. The Project is, therefore, subject to federal laws that prohibit federally subsidized construction in wetlands unless there is no practical alternative, and unless all practical measures to minimize harm to the wetlands have been taken. Federal law requires that a party seeking to place fill material in a wetland must first obtain a special permit from the Army Corps of Engineers, called a § 404 permit. However, at an early stage of the Project, the Corps concluded that the Buckeye Basin wetlands benefitted from an exception to this general rule, because they were covered by a nationwide permit authorizing the filling of isolated wetlands of less than ten acres under certain circumstances, and rendering unnecessary a § 404 permit. Almost ten years later, however, in 1989, the Corps altered this determination following a change in the legal definition of “wetlands,” and concluded that a § 404 permit was necessary. The City applied for the requisite permit in 1990, and it was granted in 1992. The Corps determined that some impact on the wetlands was unavoidable, and so, the permit was conditioned on the implementation of a wetland mitigation plan, intended to minimize any negative effects. More than three years elapsed between the approval of the final EIS and the inception of construction on the Project. Consequently, it was necessary under the regulations for the FHWA to prepare a written reevaluation of the EIS. The purpose of the reevaluation was to determine whether a supplemental EIS was required. The reevaluation discussed the impact of the Project on the wetlands, certain hazardous waste implications, and design modification measures; it also reevaluated the environmental impacts previously considered in the final EIS. After performing the reevaluation, the FHWA determined in January 1995 that no supplemental EIS was required. In June 1995, the plaintiffs filed a five-count complaint in federal court against various federal, state, and municipal defendants, alleging that the Project violated NEPA, 42 U.S.C. § 4321 et seq. (Counts I and II); § 4(f) of the Federal-Aid Highway Act, 23 U.S.C. § 138 (Count III); the National Historic Preservation Act, or the NHPA, 16 U.S.C. § 470 (Count IV); and the Intermodal Surface Transportation Efficiency Act of 1991, or ISTEA, 23 U.S.C. § 134©, and the Clean Air Act, 42 U.S.C. § 7401 et seq. (Count V). Four months later, plaintiffs filed an amended complaint adding a Count VIII, although the pleading contained no Counts VI and VII, alleging violations of § 404 of the Clean Water Act, 33 U.S.C. § 1344; § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403; and of NEPA and the NHPA. The amended complaint names, as federal defendants, the Secretary of the United States Department of Transportation, officials of the Federal Highway Administration and the Advisory Council on Historic Preservation, and the Secretary of the Army Corps of Engineers. The state defendants are the Ohio Historical Preservation Office, the Ohio Department of Transportation, and the Ohio Environmental Protection Agency. Finally, the municipal defendants are the Toledo Metro Area Council of Governments and the Mayor of the City of Toledo. The district court ruled on a number of pretrial motions, including the motions for summary judgment filed by various defendants, which it granted. Sierra Club v. Pena, 915 F.Supp. 1381 (N.D.Ohio 1996). A motion for supplementation of the record, filed by the plaintiffs, was granted in part and denied in part. While those determinations are challenged in this appeal, the plaintiffs do not take issue with the district court’s determination that two of their claims in Count V, brought under ISTEA, were barred because no private right of action under IS-TEA exists. Id. at 1390-91. The plaintiffs likewise do not complain of the district court’s denial of their motion to file a second amended complaint. II. A. We begin with the plaintiffs’ claim that the district court erred in holding that many of the plaintiffs’ claims are time-barred. The district court reasoned that the plaintiffs’ so-called NEPA claims were, in actuality, brought under the Administrative Procedure Act, 5 U.S.C. §§ 701-06, since NEPA itself provides no private right of action. The court then reasoned that APA actions were subject to the six-year statute of limitations imposed by 28 U.S.C. § 2401(a). The court then undertook to determine which, in particular, of the plaintiffs’ claims were barred by the six-year limitations period, and concluded that (1) Count I, alleging NEPA violations in the preparation of the-final EIS, became ripe for review on the date of the issuance of the ROD memorializing the final approval of the EIS, April 16,1984, and thus, was time-barred in its entirety; (2) Count II, alleging a failure to supplement the EIS, was not time-barred, because the claim accrued in January 1995 when the FHWA determined that no supplement was necessary; (3) Count III was time-barred with respect to allegations that the USDOT violated 23 U.S.C. § 138 in 1984 when it issued the ROD, but not with respect to allegations that the USDOT violated that same statute in 1995 when it reevaluated the Project; (4) Count IV, alleging an improper delegation of responsibilities under the NHPA at the time of the preparation of the EIS, was time-barred; (5) Count V, alleging violations of the Clean Air Act in connection with the defendants’ failure to include the CBD Connector in the Project when the EIS was prepared, was time-barred; and (6) Count VIII was not time-barred insofar as it alleged that the § 404 permit issued in 1992 was improperly granted, but was time-barred insofar as it alleged improprieties in the 1979 determination by the Corps that no special permit was required, and insofar as it alleged that the City improperly filled the wetlands in 1988. In sum, the district court disposed of Counts I, IV, and V in whole because of statute-of-limitations problems, and disposed of Counts III and VIII in part. Count II was not time-barred either in whole or in part. On appeal, the plaintiffs argue that because NEPA contains no statute of limitations, and because NEPA creates an equitable remedy, the only applicable time limitation is that imposed by the doctrine of laches. They argue, in the alternative, that even if a six-year limitations period applies, it should not be “mechanically” enforced. They also take the position, without citation to authority, that there was no final agency action until 1995, at which time the FHWA authorized ODOT to proceed using federal funds, because only then did the project “bec[o]me irrevocable.” Finally, they assert, the ROD issued in 1984 was not a final agency action, or rather, it somehow became un-fi-nal by virtue of the fact that it was later necessary to evaluate the necessity for a supplemental EIS. Whether the district court correctly concluded that the plaintiffs’ claims were barred by the applicable statute of limitations is a question of law for plenary review by this court. See Wind River Mining Corp. v. United States, 946 F.2d 710, 712 (9th Cir.1991). Section 102(2)(C) of NEPA requires that federal agencies prepare a detailed EIS for every “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see 40 C.F.R. § 1502.1-.25. NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA promotes its sweeping commitment to “prevent or eliminate damage to the environment and biosphere” by focusing Government and public attention on the environmental effects of proposed agency action. By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989) (citation omitted). NEPA itself does not contain a statute of limitations, see Park County Resource Council, Inc. v. United States Dep’t of Agrie., 817 F.2d 609, 617 (10th Cir.1987), and many courts, including this one, have routinely applied the laches doctrine when faced with timeliness challenges to NEPA actions, see Environmental Defense Fund v. TVA, 468 F.2d 1164, 1182 (6th Cir.1972). These courts have never, however, explicitly addressed the issue of whether NEPA suits are subject to some other time limitation, such as the general six-year statute of limitations of the Tucker Act, 28 U.S.C. § 1491, which contains the following general six-year statute of limitations: [Ejvery civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. 28 U.S.C. § 2401(a). As we have said, NEPA does not authorize a private right of action. See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). The Administrative Procedures Act, however, provides for judicial review of agency action. 5 U.S.C. § 702. We have long recognized that federal courts have jurisdiction over NEPA challenges pursuant to the APA, see Environmental Defense Fund, 468 F.2d at 1171, and so have many other courts, see, e.g., Public Citizen v. United States Trade Representative, 5 F.3d 549, 551 (D.C.Cir.1993); Sierra Club, 857 F.2d at 1315. Like NEPA, the APA does not contain a specific limitations period. See Sierra Club, 857 F.2d at 1315. Numerous courts have held, however, that a complaint under the APA for review of an agency action is a “civil action” within the meaning of section 2401(a). See, e.g., Wind River, 946 F.2d at 712. These courts have held that the six-year statute of limitations in section 2401(a), therefore, applies to the APA. See Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 445 (D.C.Cir.1994); Sierra Club, 857 F.2d at 1315. It appears to us beyond question that the plaintiffs’ action was brought pursuant to the APA; indeed, they do not suggest otherwise. It likewise appears beyond question that the six-year statute of limitations of section 2401(a) applies to actions brought pursuant to the APA. Again, the plaintiffs do not directly suggest otherwise, despite pleading that the statute of limitations should not be applied “mechanically.” Mechanical application, however, is generally the sine qua non of a statute of limitations, and while the plaintiffs eonelusorily allege malfeasance by the defendants, they do not articulate an equitable-tolling argument. The next question we must address, then, is when did the plaintiffs’ right of action first accrue. The plaintiffs, to prevail on this issue, must show that their action first accrued at some time later than the issuance of the ROD. Indeed, they argue that their claim accrued at the time the FHWA decided not to issue a supplemental EIS. Under the APA, a right of action accrues at the time of “final agency action.” 5 U.S.C. § 704. In determining whether a particular agency action is final, “[t]he core question is whether the agency has completed its deci-sionmaking process, and whether the result of that process is one that will directly affect the parties.” Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 2773, 120 L.Ed.2d 636 (1992). Although this court has never addressed the question, it appears well-established that a final EIS or the ROD issued thereon constitute the “final agency action” for purposes of the APA. See, e.g., Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir.1995); Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir. 1975). See generally Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Comm’n, 869 F.2d 719 (3d Cir.1989). The plaintiffs simply offer no case-law support for their position that the relevant final agency action occurred at the time the FHWA opted not to issue a supplemental EIS. Their position, moreover, defies logic because they complain of actions taken by the FHWA at the time the final EIS was approved and the ROD was issued. We, therefore, reject their arguments, and conclude that the district court correctly dismissed the various claims described above on the ground that they were time-barred. B. Our disposition of the statute of limitations issue largely resolves the plaintiffs’ next argument: that the Project was improperly “segmented” because of the exclusion of two projects, the so-called CBD Connector and the Development Scheme, from the 1984 final EIS, and their related assertion that these alleged aspects of the Project were likewise improperly excluded at the time of the 1990 application for a § 404 wetlands permit. It is unnecessary to address the merits of the plaintiffs’ segmentation claims, even though they arise both in the context of their time-barred complaints about the EIS and their non-time-barred complaints about the § 404 process. Fundamentally, the plaintiffs complain that when the Project was formulated, it improperly excluded the CBD Connector and the Development Scheme. The formulation of the Project occurred at or before the time of the EIS. Interestingly, the plaintiffs themselves assert that the segmentation occurred at a “critical” meeting in 1979. If there were any impropriety in the exclusion of the two additional projects, the resulting claim arose at that time, and is now time-barred. There was no repetition of the alleged wrongdoing in 1990 at the time of the § 404 permit, as that permit application was founded on the scope of the Project as it was framed in the EIS. C. The district court rejected the plaintiffs’ claim, raised in Count II of their complaint, that the defendants should have supplemented the EIS. When reviewing an administrative agency’s final decision under the APA, we review the district court’s summary judgment decision de novo, while “applying the appropriate standard of review to the agency’s decision.” Schuck v. Frank, 27 F.3d 194, 197 (6th Cir.1994). Here, the appropriate standard of review is that we set aside the agency determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Marsh, 490 U.S. at 375, 109 S.Ct. at 1860; Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.1992); see also 5 U.S.C. § 706(2)(A) & (D). The plaintiffs argue that the district court was simply mistaken in stating that detailed scientific study supported the decision that the supplement was unnecessary, because the court improperly relied on the Reevaluation Environmental Impact Study in reaching this conclusion. We understand that they contend various adverse effects were not adequately taken into account: 1) the replacement of a filled roadbed through the Manhattan Marsh; 2) the addition of the “Detwiler Dike” as part of the wetlands mitigation plan, and the wetlands mitigation plan itself; 3) the planned construction of the I-280 Maumee River Crossing; 4) the “unnoticed existence” of certain historic properties; 5) the failure to consider a limited-build alternative; and 6) once again, the exclusion of the CBD Connector and the Development Scheme. The Supreme Court dealt extensively with supplemental environmental impact statements and the standards governing them in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377. The Court initially observed that “[t]he subject of postdecision supplemental environmental impact statements is not expressly addressed in NEPA,” but that regulations issued by the Council on Environmental Quality “impose a duty on all federal agencies to prepare supplements to either draft or final EIS’s if there ‘are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ ” Id. at 370, 372, 109 S.Ct. at 1857, 1858 (citations omitted). The Court wrote as follows with regard to the standard governing an agency’s decision whether to perform a supplemental EIS: [A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmak-ing intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. On the other hand, ... NEPA does require that agencies take a “hard look” at the environmental effects of their planned action, even after a proposal has received initial approval. Application of the “rule of reason” thus turns on the value of the new information to the still pending decision-making process. In this respect the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains “major Federal actio[n]” to occur, and if the new information is sufficient to show that the remaining action will “affec[t] the quality of the human environment” in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared. Id. at 373-74, 109 S.Ct. at 1859 (footnotes and citations omitted). The Court further held that the agency’s decision about the significance of any effect on the environment was “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. at 1860. The Court pointed out that in the case before it, the arguments for setting aside the decision not to issue a supplemental EIS were, essentially, that the “expert review of the new information was incomplete, inconclusive, or inaccurate.” Id. at 376-77,109 S.Ct. at 1861. As such, [t]he dispute ... does not turn on the meaning of the term “significant” or on an application of this legal standard to settled facts. Rather, resolution of this dispute involves primarily issues of fact. Because analysis of the relevant documents “requires a high level of technical expertise,” we must defer to “the informed discretion of the responsible federal agencies.” ... Accordingly, as long as the [agency’s] decision not to supplement ... was not “arbitrary or capricious,” it should not be set aside. Id. at 377, 109 S.Ct. at 1861 (footnote and citations omitted). The Court then turned to an analysis of whether the decision was arbitrary or capricious: [T]he reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must “be searching and careful,” but “the ultimate standard of review is a narrow one.” When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. Id. at 378, 109 S.Ct. at 1861 (citation omitted). The plaintiffs have simply failed to present anything that would justify a conclusion by this court that the agency decision in question was arbitrary and capricious. The district court concluded as follows: The Court has reviewed the administrative record in this case. The record contains several hundred pages of government documents addressing specifically the question of whether a supplemental EIS is necessary. The determination contains a detañed evaluation of añ the claims raised by Plaintiffs in this lawsuit. The record indicates that Plaintiffs raised each of their claims with Defendants during the administrative process, that each claim was carefully considered, and that each claim was rejected on its merits. The record indicates that Defendants’ evaluation was far from the cursory and arbitrary process Plaintiffs claim it to be. For each of Plaintiffs’ claims, there are at least ten pages, and in most cases twenty to thirty pages, of detañed scientific study by neutral professionals and explanation of why Defendants made the substantive decisions they did. The record reveals a decisionmaking process that was not merely adequate, but exemplary. On such a record, the Court cannot find that Defendants’ determination not to supplement the EIS to be arbitrary and capricious or a violation of law. Sierra Club, 915 F.Supp. at 1395-96. Unlike the Marsh plaintiffs, the plaintiffs here have not even pointed to any conflicting expert views. We find it noteworthy that their assertions are not supported by any citations to the record, either with regard to the actuality of the adverse effects or with regard to the treatment in the reevaluation. They have, instead, simply set forth their unsupported views about the effect of various factors. Whfie they contend that these effects were not “adequately” taken into account, they do not dispute that they were in fact considered and addressed by the defendants. In short, the plaintiffs believe that the defendants reached the wrong conclusion. That, it is plain, is not the type of argument that allows a court to conclude that an agency’s decision was arbitrary and capricious. D. The plaintiffs argued below that the Secretary of Transportation failed to determine whether there were feasible prudent alternatives before taking certain properties required for this Project that are known as so-called § 4(f) properties. Section 4(f) property is a “public park, recreation area, or wüdlife and waterfowl refuge of national, State, or local significance, ... or any land from an historic site of national, State, or local significance.” 23 U.S.C. § 138. Part of the plaintiffs’ claims in this regard related to the initial determination ratified in the 1984 ROD that there was no feasible and prudent alternative to taking the wetlands and other § 4(f) properties affected by the Project. The district court concluded that these claims were time-barred. See Sierra Club, 915 F.Supp. at 1396. The plaintiffs also argued, however, that in conducting the subsequent reevaluation, the defendants erroneously decided in 1995 that no new § 4(f) sites were involved. On appeal, the plaintiffs claim that dozens of § 4(f) properties were simply ignored in the reevaluation process, contrary to the district court’s finding. Once again, our treatment of this argument is determined by our earlier conclusion regarding the applicable statute of limitations. There has been no change to the plan for the Parkway since the time of the initial EIS. Thus, nothing new occurred affecting § 4(f) properties in the period between the 1984 EIS and the 1995 reevaluation. The plaintiffs’ arguments, therefore — even though ostensibly predicated on flaws in the reevaluation — are simply an attempt at a second bite at the apple. Equally important, however, is the fact that the plaintiffs have simply given this court nothing to work with in evaluating their claimed error. Federal statutes provide as follows with respect to so-called § 4(f) properties: (a) It is the policy of the United States Government 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. (c) The Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife or waterfowl refuse of national, State, or local significance, or land of an historic site of national, State, or local significance ... only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. 49 U.S.C. § 303; see also 23 U.S.C. § 138. This court has held that in reviewing § 4(f) decisions, a court should affirm a decision if it concludes “ ‘that the Secretary could have reasonably believed that in [the] case there are no feasible alternatives or that alternatives do involve unique problems.’” Communities, Inc., 956 F.2d at 624 (citation omitted). It is, further, the responsibility of the plaintiffs to propose cognizable alternatives that would not use § 4(f) resources. See id. at 625. The plaintiffs’ one-page argument contains no citations to the record purporting to illustrate the alleged adverse effect on the properties, nor does it demonstrate the alleged failure to evaluate. The district court concluded that all of the plaintiffs’ arguments were considered and fully addressed by the agency — and, once again, our review of the agency’s action is limited to a determination whether the agency acted arbitrarily, capriciously, or otherwise not in accordance with the law. See id. at 623. The plaintiffs, however, do not contest the defendants’ assertion that the properties that concern the plaintiffs are simply not affected by the Project. Indeed, the plaintiffs never even bother to specify which sites they believe are § 4(f) properties, apparently anticipating that this court will comb through the plaintiffs’ lower court arguments and constructively apply them on appeal. In short, once again, the plaintiffs have fallen far short of demonstrating that the defendants’ decisions were arbitrary and capricious. E. As alluded to previously, the Army Corps of Engineers determined at an early planning stage that a special wetlands permit was not required for the Project, but later changed its position following a change in the legal definition of wetlands. The City then applied for a special § 404 permit, pursuant to 33 U.S.C. § 1344(a), which was approved in 1992. On appeal, the plaintiffs renew five objections, raised below, to the adequacy of the § 404 application and approval process. 1. The plaintiffs’ first contention is that the Corps should have prepared an EIS in connection with the § 404 permit process, and that the district court erroneously concluded that the Environmental Assessment/Finding of No Significant Impact, or EA/FONSI, prepared by the Corps complied with § 404. The plaintiffs assert that the EA/FONSI in fact “listed a litany of adverse effects” that would result from the Project. The necessity for preparing an EIS is a decision that is the responsibility of the agency in question. See Park County, 817 F.2d at 621. The applicable regulations require that, “[i]n determining whether to prepare an environmental impact statement!,] the Federal agency shall ... prepare an environmental assessment.” 40 C.F.R. § 1501.4(b)-(c); see Sierra Club, 857 F.2d at 1312. Thus, agencies first prepare an “environmental assessment” (EA) in order to determine whether the project’s effect on the environment will be significant enough to warrant a more detailed “environmental impact statement.” 40 C.F.R. § 1501.4(b)-(c). If the agency decides that an environmental impact statement is unnecessary, then it prepares a “finding of no significant impact,” or FONSI. 40 C.F.R. § 1501.4(e). ‘“An EA allows the agency to consider environmental concerns, while reserving agency resources to prepare full EIS’s for appropriate cases. If a finding of no significant impact is made after analyzing the EA, then preparation of an EIS is unnecessary.’ ” Park County, 817 F.2d at 621 (quoting Sierra Club v. United States Dep’t of Transp., 753 F.2d 120, 126 (D.C.Cir.1985)). This court will overturn an agency decision not to issue an environmental impact statement only if it is found to be arbitrary, capricious, or an abuse of discretion. See Crounse Corp. v. ICC, 781 F.2d 1176, 1193 (6th Cir.1986). The district court rejected the plaintiffs’ § 404 argument, as follows: [T]he Court in this case ... faces a situation in which the administrative record reveals that the federal agency conducted a detailed survey of the potentially affected areas, considered the impact of the planned project, and determined that there would be no significant adverse effects on the environment. Plaintiffs misrepresent the Statement of Findings produced by the Corps to the extent that they claim it contains several findings of “substantial adverse impacts.” When read in context, the phrases quoted by Plaintiffs ... prove to refer to either (a) temporary impacts during the construction phase of the Project only, or (b) effects that would occur in the absence of mitigation efforts. Every reference to adverse impacts concludes with the determination that there are no substantial long-term detrimental impacts from the Project. Sierra Club, 915 F.Supp. at 1398-99. On appeal, the plaintiffs have wholly failed to acknowledge the observations of the district court that the Corps conducted a detailed survey, considered the impact of the Project, and determined that there would be no significant adverse effects. Their claim that the Corps in fact found multiple adverse effects likewise ignores the district court’s observation that the language they point to is taken out of context, and refers either to temporary effects only, or to effects that would occur in the absence of a mitigation plan. In sum, the plaintiffs have failed to demonstrate arbitrary or capricious action on the part of the agency. 2. The plaintiffs next contend that the Corps improperly failed to give the Advisory Council on Historic Preservation, or the ACHP, an opportunity to review and comment on its conclusion of “no adverse effect” on historic properties. In response, the defendants point out that the district court found that the FHWA submitted its own “no adverse impact” findings to the ACHP, and that those findings were identical to the findings of the Corps. Although the plaintiffs grudgingly concede that the findings of the two entities “may have been similar,” they maintain, without elaboration, that the FHWA’s record “was not at all similar to the record that would have been submitted by the Corps” if the Corps had complied with its obligation to compile and submit a record. The NHPA requires that [t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register ... [and] afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. The regulations of the Corps provide that “[i]n processing a permit application, the district engineer will generally accept ... the Federal agency’s or Federal lead agency’s compliance with the requirements of the NHPA.” 33 C.F.R. pt. 325, app. C2(c). The plaintiffs do not dispute that the ACHP was fully apprised of the FHWA findings regarding historic properties; that the FHWA findings were identical to those of the Corps; and that the ACHP concurred in the no-adverse-effect finding. The regulations of the Corps make clear, as the defendants argue, that it is entitled to rely on the lead agency — here, the FHWA — in complying with the NHPA requirements. In short, we conclude, the plaintiffs simply fail to articulate any recognizable error here. 3. The plaintiffs next contend that the § 404 permit was invalid because the Corps did not previously prepare a final, detailed mitigation implementation plan, as opposed to mitigation goals. They appear to contend that the goals formulated here were too vague and general to suffice. As both the defendants and the district court have observed, however, numerous cases have held that it is not necessary to have a final, detailed mitigation plan prior to approval of a § 404 permit; instead, a permit conditioned on future implementation of a mitigation plan complies with the dictates of the Clean Water Act. See Preserve Endangered Areas of Cobb’s History, Inc. v. United States Army Corps of Eng’rs, 87 F.3d 1242, 1248 (11th Cir.1996); National Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1343, 1346 (8th Cir.1994); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1528-29 (10th Cir.1992); Friends of the Earth v. Hintz, 800 F.2d 822, 825-26, 836-37 (9th Cir.1986). And the plaintiffs are simply incorrect when they assert that the § 404 permit was predicated merely on vague mitigation goals rather than on a sufficiently detailed plan; the mitigation plan relied on by the Corps here, was, in fact, quite specific. Again, therefore, we reject the plaintiffs’ argument. 4. Next, the plaintiffs contend that the Corps failed to adequately consider alternatives to the Project. In particular, they assert, the Corps should not have rejected an alternative proposed by the plaintiffs that involved improvements to Summit Street. Applicable regulations provide that the Corps may not issue a § 404 permit if “there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). The definition of “practicable” allows the taking into consideration of “overall project purposes.” Id. at § 230.10(a)(2) The district court rejected the plaintiffs’ argument on this score, writing as follows: Plaintiffs’ next objection is that ODOT failed to show that no practical alternatives to the proposed roadway existed. This objection lacks merit. While Plaintiffs may disagree with Defendants’ substantive determination that there were no practical alternatives to the proposed roadway, the administrative record indicates that several alternatives were proposed, weighed, and rejected on the merits. The administrative record on this one issue is lengthy, detailed, and exhibits a careful evaluation on the part of Defendants. The Court cannot hold ODOT’s determination that no practical alternatives to the proposed roadway existed to be arbitrary. Sierra Club, 915 F.Supp. at 1398. We conclude that the plaintiffs’ argument is, once again, flawed due to their failure to refute, or even address, the district court’s observation that the Summit Street alternative, along with others, was proposed, weighed, and rejected on the ground that it was impracticable given the Project’s overall purpose. This type of rejection is not arbitrary and capricious. 5. Finally, the plaintiffs contend that the § 404 public notice failed to mention a required Ohio EPA water quality certification, and that this failure was fatal to the permit. They offer basically no explanation of their position. The defendants contend that the failure to include a citation to water quality certification was harmless error because the Ohio EPA had been aware since 1989 that its certification would be requested. Because the notice requirement was functionally satisfied, there is no basis for reversal. The plaintiffs are correct that regulations require that the Corps refer, in its public notice, to a requirement that the Project receive water quality certification from the relevant state agency. See 33 C.F.R. § 325.3(a)(8). The purpose of the certification is to notify the state agency—here, Ohio EPA—of the need for its certification. In addressing and rejecting the plaintiffs’ argument below, however, the district court noted the absence of any prejudice resulting from the apparent failure here: [T]he Corps failed to refer in their public notice to the requirement that the Project receive water quality certification from OEPA, such reference being required by 33 C.F.R. § 325.3(a)(8). The Defendants concede that the required reference was omitted from the notice, but argue that the error was harmless, since OEPA in fact received notice that its certification would be requested____ [Thus, t]his notice requirement to OEPA was functionally satisfied. Plaintiffs have suggested no credible reason why omission of the reference to OEPA would affect the public’s review of the proposal, or in any way change the comments made by them to the Corps. Therefore, the Court finds this omission to be harmless error. Sierra Club, 915 F.Supp. at 1397-98. As the district court correctly recognized, this court applies a harmless-error rule to APA cases, such that a mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency’s determination. See Blackman v. Busey, 938 F.2d 659, 664 (6th Cir.1991). We find the plaintiffs’ argument to be, at best, nitpicking. There is no question that the Ohio EPA was aware of the need for certification, and that it in fact waived the certification requirement. The plaintiffs fail to show any prejudice resulting from the technical failure to comply with the regulation. F. Finally, the plaintiffs advance three arguments concerning the district court’s disposition of various discovery and procedural disputes. These remaining arguments may be dealt with in summary fashion. 1. The plaintiffs deposed Bernard Leite, the Director of Public Service for Toledo, on September 18, 1995. Approximately ten days later, the plaintiffs filed a notice for the taking of additional deposition testimony irom Leite; two weeks after that, they filed yet another notice to depose Leite, along with another individual. At this point, the defendants filed motions contending that the taking of depositions was inappropriate, on the ground that judicial review should be limited to the administrative record. The district court then issued a ruling allowing depositions only by leave of court. On appeal, the plaintiffs contend, with virtually no explanation, that the court “acted prejudicially and unlawfully” in not allowing the Leite deposition to proceed, given that it had already begun. This court reviews a district court’s decision with respect to discovery matters using an abuse of discretion standard. See Theunissen v. Matthews, 935 F.2d 1454, 1465 (6th Cir.1991). While this court has held that “‘summary judgment should not ordinarily be granted before discovery has been completed.’” Smith v. Freland, 954 F.2d 343, 348 (6th Cir.1992) (citation omitted), a plaintiff complaining that a district court granted summary judgment without allowing adequate discovery must, at a minimum, be able to show that he could obtain information through discovery that would disclose material facts, see Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir.1989). Here, the plaintiffs have failed to make the slightest effort to explain what information they hoped to be able to uncover during the Leite deposition, or how the deposition would have aided their opposition to summary judgment. Without this type of explanation, we are simply unable to conclude that the district court’s limitations on the discovery process constituted an abuse of discretion. 2. The plaintiffs filed a motion below requesting that the district court supplement the administrative record with other records related to the Project. In ruling on the motion, the district court noted that the plaintiffs “ha[d] provided a proffer of exhibits containing most of the items Plaintiffs seek to have admitted.” Sierra Club, 915 F.Supp. at 1387-88. The defendants objected to supplementation on the ground that “the items proffered by Plaintiffs are not properly part of the record, and are irrelevant to the Court’s review of the agencies’ determinations,” and that supplementation “w[ould] serve only to delay resolution of the case.” Id. at 1388. The district court nonetheless granted the plaintiffs’ motion in part, limiting supplementation to the items that had already been proffered: The Court finds that the equities in this case favor granting Plaintiffs’ motion to supplement the record as to the items contained in Plaintiffs’ proffer, and denying Plaintiffs’ motion to supplement as to all other items. The items already submitted on the record cause no harm and may be helpful to the Court. Defendants will incur no additional cost or delay, because the items have already been provided by Plaintiffs. Because the case is being tried to the Court, the Defendants need not worry that a jury will misuse the evidence ____ The equities balance differently as to all other items requested by Plaintiffs. An order to supplement with any items not yet in the record could cause cost and delay to Defendants. Plaintiffs have not made a sufficient showing of “bad faith or improper behavior” as to justify such an affirmative order. Supplementation with those items will not be ordered. Id. (citation omitted). The plaintiffs now assert that “[s]pace prohibits detailing the supplementations sought,” but contend that “[a] reviewing court may consider evidence outside the record.” With no further argument, and no attempt to address the district court’s reasoning, they conclude that, therefore, supplementation was wrongly denied. The APA requires courts to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. As a general matter, “courts confine their review to the ‘administrative record,’” which “includes all materials ‘compiled’ by the agency[ ] that were ‘before the agency at the time the decision was made.’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996) (citations omitted), cert. denied, - U.S. -, 117 S.Ct. 737, 136 L.Ed.2d 676 (1997). Several reasons justify supplementation of the administrative record, such as when an agency deliberately or negligently excludes certain documents, or when the court needs certain “ ‘background information’ in order to determine whether the agency considered all of the relevant factors.” Id. (citation omitted); see United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1428 (6th Cir.1991). Courts have suggested that in order to justify supplementation, a plaintiff must make a “ ‘strong showing’ of bad faith.” James Madison, 82 F.3d at 1095. While this court has not addressed the issue, other courts have held that “a district court’s refusal to supplement the administrative record” is akin to “a district court’s denial of discovery.” Id. The decision is, accordingly, reviewed on appeal for an abuse of discretion. See id. Here, the plaintiffs have failed to point to a single factor that would suggest the administrative record was inadequate for an assessment of their claims. They have not, therefore, demonstrated that the district court’s decision was an abuse of discretion. 3. After concluding its exhaustive analysis leading to a grant of summary judgment on behalf of the defendants, the district court noted that “[a]ll other currently pending motions,” which included the plaintiffs’ motion for summary judgment, would be “denied as moot.” Sierra Club, 915 F.Supp. at 1399. We are now left with the plaintiffs’ final argument, that their motion for summary judgment was not moot. As best as we can understand, the plaintiffs contend that because they sought summary judgment based on information developed during the course of this litigation and because the motion was “timely filed,” therefore, the district court should have addressed the motion on the merits. It is quite evident, however, that the district court could not have granted summary judgment both to the defendants and to the plaintiffs. Since it concluded that the defendants were entitled to summary judgment, therefore, the plaintiffs’ motion for summary judgment no longer presented a justiciable controversy. In other words, it was moot. III. For the foregoing reasons, the district court’s judgment is AFFIRMED.

Berkshire Scenic Railway Museum, Inc. v. Interstate Commerce Commission

STAHL, Circuit Judge. The Housatonic Track Company, Inc., and Housatonic Railroad, Inc. (jointly, “Housa-tonic”), sought an exemption from the Interstate Commerce Act (“ICA”) to permit their acquisition and operation of a rail line in Massachusetts and Connecticut, known as the Canaan Secondary Branch, then owned by the Boston and Maine Corporation (“B & M”). The Interstate Commerce Commission (“ICC”) granted the exemption. Berkshire Scenic Railway Museum, Inc. (“Berkshire”), which owns and operates a museum in a historic railroad station on the Canaan Secondary Branch in Lenox, Massachusetts (“Lenox station”), petitioned the ICC to declare the exemption void ab initio, contending that it was based on false and misleading information. The ICC denied Berkshire’s petition and Berkshire now seeks our review of the ICC’s decision. We affirm. I. The background to this dispute involves the history of Berkshire, details of the Hou-satonic-B & M transaction, and intricacies of ICC acquisition-approval regulations. A brief discussion follows. Pursuant to a series of annual agreements with B & M, Berkshire operated a scenic railway line on a portion of B & M-owned track between the Massachusetts-Connecticut border and Pittsfield, Massachusetts. Berkshire, a non-profit organization, used the revenue from the scenic railway to fund the renovation of the Lenox station. The scenic railway operated for six years, from 1984 through 1989. From 1984-1988, Berkshire’s trains operated from Lee, Massachusetts to Great Barrington, Massachusetts. In 1989, Berkshire used the Lenox station as the locus for the scenic railway. Meanwhile, B & M allowed the track to deteriorate. Sensing opportunity, Housaton-ie sought to extend their already existing freight-line operations along the B & M-owned track in Massachusetts. Negotiations between B & M and Housatonic led to agreement and, in November 1990, pursuant to 49 U.S.C. § 10505, Housatonic filed a petition seeking an exemption from the ICC’s certification requirements for the acquisition and operation of the rail line. As part of the exemption-approval process, Housatonic advised the Massachusetts State Historic Preservation Officer (“SHPO”) that they intended to acquire and operate the line as a freight operation. Housatonic requested the SHPO to advise the ICC of any objections to the transaction. In their letter to the SHPO, Housatonic stated that “the property to be acquired is now used for freight railroad service and will continue to be used for freight railroad service. No change of use is contemplated. No buildings whatsoever are located on the property to be acquired.” In fact, a small portion of the Le-nox station encroaches on the railroad right-of-way. At the time of their letter to the SHPO, however, Housatonic did not know of the encroachment. On December 17, 1990, the SHPO wrote a no-objection letter to the ICC. The SHPO noted that there were historic structures or multiple historic districts and properties either listed or eligible for listing on the National Register adjacent to or within the proposed route. She nonetheless concluded that “this project will have no effect on the significant architectural and historical characteristics of these [historic properties and districts].” The SHPO did not specifically mention the Lenox station. Berkshire did not comment to the ICC on Housatonic’s exemption petition. In an order dated December 21, 1990, the ICC dismissed Housatonic’s exemption petition, instead determining that they qualified for a so-called class exemption. Thus, the ICC authorized the Housatonic acquisition. The ICC decision did not explicitly address historic preservation. Prior to the acquisition, Housatonic had assured Berkshire that Berkshire could operate the scenic railway on the tracks. Subsequent to the acquisition, however, the parties were unable to reach an agreement. Berkshire claims that without revenue from the scenic railway, it cannot continue to renovate the Lenox station or educate the public about railroading, thus frustrating its mission. Following the failure in negotiations, Berkshire petitioned the ICC to revoke Housatonic’s exemption, arguing that the ICC had acted on the basis of false and misleading information. Berkshire also asserted that the ICC had failed to perform adequate historic preservation and environmental assessment analyses. Finally, it argued that the ICC should have conditioned any exemption on the requirement that Housatonic allow Berkshire to operate the scenic railway. After an extended review, the ICC denied Berkshire’s petition. Berkshire then sought review by this court. II. In this proceeding, Berkshire makes two principal arguments: (1) Housatonic’s allegedly false and misleading statements to the SHPO should render their exemption void ab initio; and (2) the ICC’s failure to conduct adequate historic preservation and environmental reviews requires it to conduct new reviews. We find no merit in either contention. After reciting the standard of review, we discuss each argument in turn. A Standard of Review We accord broad deference to ICC decisions to exempt transactions from the ICA. We will uphold the ICC decision unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also CMC Real Estate Corp. v. ICC, 807 F.2d 1025, 1030 (D.C.Cir.1986); Simmons v. ICC, 697 F.2d 326, 342 (D.C.Cir.1982). Under this standard, our review of the ICC’s action is to determine whether a “rational basis” for the ageney’s decision lies in the facts on the record. See, e.g., Simmons, 697 F.2d at 342; National Tour Brokers Ass’n v. ICC, 671 F.2d 528, 532 (D.C.Cir.1982). B. The ICC’s Refusal to Revoke the Exemption Berkshire argues that the ICC acted arbitrarily and capriciously by failing to follow its regulations which, it says, should have rendered the exemption void ab initio. We do not agree. As noted above, see supra note 5, under applicable ICC regulations, an exemption is void ab initio if the notice of exemption contains false or misleading information. The ICC has interpreted the regulation to require that such information concern a “material” part of the transaction. Mendocino Coast Ry., Inc., 1988 WL 224486, at *3 (I.C.C. July 14, 1988). A statement is material if, for example, the transaction would not have otherwise qualified for an exemption. Sagamore Nat’l Corp., 1994 WL 487580, at *2 (I.C.C. Sept. 9, 1994). Berkshire contends that Housatonic’s representations to the SHPO contained three false or misleading statements. The substance of the alleged misrepresentations, derived from Housatonic’s letter quoted above, are: (1) no buildings are located on the property to be acquired; (2) no change in use of the line is contemplated; and (3) the property is now and will continue to be used for freight service. Berkshire argues that these statements misrepresented the facts because: (1) in light of its encroachment- onto the railway right-of-way, the Lenox station is, in fact, located on the acquired property; and (2) Housatonic did not disclose that they would subsequently refuse to allow Berkshire to operate the scenic railway. In lieu of the ICC’s materiality requirement, Berkshire advocates a literal reading of the regulation: any false or misleading information should lead to an exemption being void ab initio. However, we accord substantial deference to an agency’s interpretation of its own regulations, see, e.g., Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 2 (1st Cir.1993), and Berkshire has not persuaded us that, on these facts, that deference should be displaced. Accordingly, we see no reason to depart from the ICC’s materiality requirement. Moreover, the ICC had ample basis to conclude that Housatonic’s statements fall far short of the materiality requirement. With specific regard to the station-encroachment issue, the ICC found that Housatonic’s representations were “immaterial misstatements.” Had Housatonic represented the facts as they actually were, the transaction would have still qualified for a class exemption because historic preservation is simply not a material element of an “acquisition and operation” transaction. We also note that, as a practical matter, there is nothing about the acquisition itself that could have adversely affected the portion of the station on the right-of-way. Housatonic only proposed to operate railroad freight service, presumably a familiar activity on the tracks for most of the station’s nearly ninety-year existence. Berkshire’s second contention — that Hou-satonic did not disclose that they would subsequently refuse to allow Berkshire to operate the scenic railway — rests on an even shakier footing. Not only is an agreement with Berkshire immaterial to a class exemption, but there is nothing in the ICA requiring Housatonic to allow Berkshire to use the tracks. In short, because we find that Housatonic did not proffer “false or misleading information” within the meaning of that phrase as interpreted by the ICC, Housatonic’s exemption is not void ah initio under 49 C.F.R. § 1150.32(c). C. The ICC’s Historic Preservation and Environmental Reviews Berkshire next argues that the ICC failed to conduct necessary historic preservation and environmental reviews. On review, we think the record provides a rational basis for the ICC’s disposition. Section 106 of the National Historic Preservation Act requires that a federal licensing agency shall, prior to the issuance of a license, “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. Applicable regulations, appearing at 36 C.F.R. § 800.9, set forth various “adverse effect” criteria to be considered by the federal entity. Berkshire argues that Housatonic’s acquisition is inconsistent with two such criteria: (1) “[ijsolation of the property from or alteration of the character of the property’s setting when that character contributes to the property’s qualification for the National Register”; and (2) “[njeglect of a property resulting in its deterioration or destruction.” 36 C.F.R. § 800.9(b)(2) & § 800.9(b)(4). Berkshire reasons that, because it may no longer operate the scenic railway, the Lenox station is both “functionally isolated” (Berkshire’s phrase) from its setting as well as deprived of revenues for the station’s renovation, thus leading to its “deterioration.” Accordingly, Berkshire argues, the petition should be remanded for a full review under Section 106. Berkshire also argues that any exemption should be conditioned on Housatonic’s agreement to allow Berkshire to use the line. Even in a charitable light, Berkshire’s arguments strain credulity. As to Berkshire’s first contention, there is no basis for a claim of isolation, functional or otherwise. At least three factors support this conclusion. First, as noted above, largely because of an apparent breakdown in the B & M-Berkshire relationship, the scenic railway had not operated for more than a year prior to the Housatonic acquisition. At most, therefore, the effect of the Housatonic transaction on the then-non-functioning scenic railway was to perpetuate the status quo. In other words, we find no basis to conclude that the Housatonic exemption led to the “isolation” Berkshire claims has resulted. Second, as the ICC notes, the SHPO issued a no-effect letter, in which neither Lenox station nor the scenic railway were discussed. Third, we think that Berkshire’s claim of “isolation ... from the property’s setting” is facially implausible in view of the fact that the historic property in question — a railway station— abuts and, indeed, actually encroaches upon an active railroad right-of-way. Berkshire’s “deterioration” argument is similarly unavailing. Whatever “deterioration” might have flowed from the cessation of the scenic railway was not an effect caused by Housatonic’s exemption. As noted above, the scenic railway had ceased operating well before the Housatonic acquisition. Moreover, as the ICC notes, a substantial question exists as to whether it has jurisdiction to grant the relief Berkshire seeks — that is, conditioning any exemption on Berkshire’s right to use the track. Because we find that the exemption gives rise to no adverse effects, we need not reach the jurisdictional issue. Finally, Berkshire argues that the ICC should have required an environmental assessment of the effects of the acquisition. Again, we do not agree. Under then-existing regulations, the ICC did not require environmental assessments when there was “only a change in ownership or similar changes; such an issuance of securities or reorganization, but not involving a change in carrier operations.” 49 C.F.R. § 1105.6(c)(2) (1990). The ICC reasoned that because no operational changes were involved in the Housatonic transaction, an assessment was not required. Berkshire, however, points to another then-existing regulation under which an assessment would normally have been required when the proposed transaction involved an “abandonment, acquisition, or operation of a line of railroad.” 49 C.F.R. § 1105.6(b)(1) (1990). Berkshire argues that, by its terms, the former § 1105.6(e)(2) does not apply to an acquisition and operation of a line by a different entity and, in any event, the former § 1105.6(b)(1) directly applies. In its denial of Berkshire’s petition, the ICC indicated that the former regulation applied. Before this court, the ICC concedes that either regulation could apply to the transaction. Inasmuch as the transaction did not involve a significant change in operations on the track, we conclude the ICC did have a rational basis for not requiring an environmental assessment. III. For the foregoing reasons, the decision of the Interstate Commerce Commission is Affirmed. . Constructed in 1902, the Lenox station was added to the National Register of Historic Places ("National Register") in 1989. . The record suggests that by 1989, the B & M-Berkshire relationship had deteriorated significantly. B & M chose not to renew its agreement with Berkshire. . Noncarriers seeking to acquire a rail line must secure regulatory approval from the ICC. Hou-satonic Track Company, Inc., was a noncarrier for purposes of the regulations. Pursuant to 49 U.S.C. § 10901, the ICC may issue a certifícate of public convenience and necessity. Alternatively, 49 U.S.C. § 10505 authorizes exemptions from § 10901’s formal certification process if the exemption is needed to advance "rail transportation policy.” Under this authority, the ICC has exempted so-called "acquisition and operation” applications, such as Housatonic’s, from the full-blown certification process. See generally Pittsburgh & Lake Erie R.R. v. Railway Labor Executives' Ass’n, 491 U.S. 490, 499-501, 109 S.Ct. 2584, 2591-92, 105 L.Ed.2d 415 (1989) (describing regulatory regime). . Under § 10505, the ICC has exempted so-called "acquisition and operation” applications, as a class, from the full-blown certification process. See Pittsburgh & Lake Eñe R.R., 491 U.S. at 499-500, 109 S.Ct. at 2591. . Regulations appearing at 49 C.F.R. § 1150.32 set forth the procedure by which the ICC grants § 10505 acquisition and operation exemptions. First, an applicant files a verified notice of exemption. The exemption then becomes effective seven days after filing and will be published in the Federal Register within 30 days after filing. An exemption will be void ab initio if the applicant's notice contains false or misleading infer-. mation. 49 C.F.R. § 1150.32(a)-(c). Any person opposing the transaction must file a petition to revoke. 49 U.S.C. § 10505(d). . See supra note 5. . For purposes of this appeal, we assume but do not decide, that “false or misleading information” provided to the SHPO rather than contained in the notice of exemption itself is sufficient to render the exemption void ab initio. . If an adverse effect exists, then the federal agency, in consultation with state officials, must "seek ways to avoid or reduce the effects” on historic properties. 36 C.F.R. § 800.5(e).

Village of Los Ranchos De AlBuquerque v. Barnhart

EBEL, Circuit Judge. Plaintiffs (The Village of Los Ranchos de Albuquerque, the Rio Grande Valley Preservation Society, and certain named residents in Albuquerque’s North Valley) appeal from a decision of the United States District Court for the District of New Mexico granting summary judgment in favor of defendants (certain officials in the Federal Highway Administration (“FHWA”), the City of Albuquerque, and the County of Bernalillo). We affirm. FACTS The district court summarized the relevant facts as follows: The North Valley river crossings project is a proposal for construction of two bridges across the Rio Grande River, one at Paseo del Norte just south of an existing crossing at Corrales Road, and another further south at Montano Road. Construction on the Paseo del Norte has begun as of this writing, while the Mon-tano Bridge is still in the planning stage. Both bridges involve substantial right-of-way acquisitions within the Village [of Los Ranchos de Albuquerque], a rural community northwest of Albuquerque. Further, the project involves widening of Village roads and addition of new roads to handle the increased bridge traffic, with resulting effects of increased noise, etc., on neighboring Village landowners. The bridge at Paseo del Norte will be a four-lane crossing with an option for later expansion to six lanes, while the Mon-tano crossing is proposed to be two lanes. While few residential homeowners would react favorably to the prospect of having a major arterial traffic route built practically in their backyards, the citizens of the Village are particularly concerned about the impact of the new bridges on the rural quality of their neighborhood, various sites of historical interest in that area, and the effects of the project on the river bosque wetlands. The Village has thus brought suit under various federal environmental protection statutes, arguing that, in approving the bridge projects, the federal government is taking action which will adversely affect the environment, without adequate study and planning as required by law. The central issue in this motion [for summary judgment] is whether or not the federal government’s involvement in the river crossings project is sufficiently major to trigger the applicable statutes. Therefore, the extent of that involvement must here be set forth in some detail. Federal involvement in the river crossings project was initiated by a January 1979 decision of the Urban Transportation Planning Policy Board (“UTPPB”) of the Middle Rio Grande Council of Governments to seek a location-environmental study of the project. This request was presented to the Federal Highway Administration (“FHWA”), where, on February 5, 1979, the Division office in Santa Fe, New' Mexico, authorized preliminary engineering work in preparation of the environmental study for the river crossings project. The authorization form for the project, Defendants’ Exhibit 8A, estimated the cost of the location-environmental study at $75,000.00, and authorized federal financial assistance for part of these costs, in the amount of $58,972.50. In addition to provision of funding, the federal government took an active role in the preparation of the EIS. Without going into exhaustive detail as the process is set forth in Defendants’ Answers to Interrogatories, submitted as Plaintiff’s Exhibit 1, it is safe to say that the actual preparation of the EIS required fairly exhaustive federal assistance from approving agencies and individual FHWA personnel. The process is lengthy and, as the actual sufficiency of the EIS itself is not at this time before the Court, the Court will not here reiterate those procedures. A Final Environmental Impact Statement (“FEIS”) for the river crossings project was approved by Peter Lombard, Director of the Office of Planning and Program Development in the Region 6 Office of the FHWA, on September 16, 1983. After approval of the FEIS, the City of Albuquerque programmed $4.2 million of 1983 general obligation bond money for the Montano crossing, and an additional $6.1 million was appropriated for the project from the 1985 bond election. According to the affidavit/testimony of Joseph Martin, Director of New Mexico Department of Transportation, Harry E. Kinney, former Mayor of Albuquerque, and Kenneth E. Bower, Jr., Director of Technical Support for the New Mexico State Highway Department, federal funding has not been and will not be requested for any part of the Montano or the Paseo del Norte river crossings. Thus, as of the date of FEIS approval by the FHWA, federal involvement in the river crossing came to an end, as far as any financial assistance was concerned. (Memorandum Opinion and Order at 3-5, June 9, 1987) (footnote omitted). Plaintiffs sought a declaration that the federal environmental laws were violated and an injunction against all further federal participation in the project. After considering the evidence submitted by both sides, the district court granted summary judgment in favor of the federal defendants on the ground that the FHWA’s participation in the bridge projects was not sufficient to trigger the federal laws. The district court subsequently granted summary judgment in favor of the local defendants “on the same grounds as stated by the Court for dismissal of Plaintiff’s complaint against the Federal Defendants.” (Order at 1, October 7, 1989.) Plaintiffs appeal. ISSUES Plaintiffs raise four issues on appeal: (1) whether construction of the Montano bridge is a “major federal action” subject to the requirements of the National Environmental Policy Act; (2) if construction of the bridge is not a major federal action, whether the bridge project was properly segmented from the federally funded I-25/Los Angeles project, which is a major federal action; (3) whether construction of the bridge requires compliance with section 106 of the National Historic Preservation Act; and (4) whether construction of the bridge requires compliance with section 4(f) of the Department of Transportation Act or Executive Order 11990. NATIONAL ENVIRONMENTAL POLICY ACT Plaintiffs argue that the federal defendants’ improper approval of the EIS for the Montano bridge violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332 et seq. NEPA provides in pertinent part: The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Section 4332 (emphasis added). The requirements of NEPA apply only when the federal government’s involvement in a project is sufficient to constitute “major federal action.” Plaintiffs contend that the bridge project is a major federal action because of (1) the local defendants’ eligibility for federal funding or (2) the FHWA’s participation in and approval of the EIS. We disagree. 1. Eligibility for Federal Funding Federal courts have not agreed on the amount of federal involvement necessary to trigger the applicability of NEPA. In La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), cert. denied 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147 (1972) (prematurely filed), supplemented by 57 F.R.D. 94 (attorney's fees), aff'd 488 F.2d 559 (9th Cir.1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1138 (1974), the Federal District Court for the Northern District of California addressed the issue of whether “the federal regulations and statutes apply to a highway project upon location approval, construction approval, or some intermediate point when federal participation is assured[.]” Id. at 226. The court analyzed the problem by dividing highways into three categories: (1) “highways for which federal funds have been approved or are immediately sought”; (2) “state highways constructed without federal funds, and for which federal participation has never been sought”; and (3) "those projects that may eventually receive federal funds.” Id. at 226-27. The court said that there is no question that highways in the first category are major federal actions, and highways in the second category clearly are not; the troublesome category is the third. The court concluded that highways in the third category are major federal actions and require compliance with federal rules because “[a]ny project that seeks even the possible protection and assistance of the federal government must fall within the statutes and regulations.” Id. at 227. The United States District Court for the District of Connecticut recognized the flaws in the approach taken in La Raza, and, instead of requiring all highways in La Raza’s third category (state highways that may eventually receive federal funds) to submit to federal requirements, rejected La Raza and held that no highways in that category should be subject to federal requirements: Though recognizing the force of the argument developed in La Raza Unida, this Court concludes that while Congress no doubt has power to require NEPA compliance in such circumstances, the existing legislation simply does not do so. The contentions in [La Raza] are all sound, but with deference I do not understand how they establish that such an option [to apply for federal funding] on the part of a state constitutes the highway a “Federal action” within the meaning of NEPA. Solicitude for the environment cannot substitute for legislation. Congress has not applied NEPA to all highways that the states are eligible to fund with federal dollars. The State’s option to use federal dollars, though open virtually until the concrete is poured, is nonetheless an option, and the State’s choice should not be restricted simply because one alternative of the option (using state dollars) might result in less adequate assessment of environmental considerations. If the highway is not a federal action, then a state’s decision to avoid federal involvement cannot have the paradoxical effect of establishing federal involvement. Citizens for Balanced Environ. & Transp., Inc. v. Volpe, 376 F.Supp. 806, 812-13 (D.Conn.), aff'd, 503 F.2d 601 (2nd Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975) (emphasis in original). We are persuaded by the analysis of Citizens and adopt its conclusions. Therefore, because the State of New Mexico, the City of Albuquerque, and the County of Bernalillo here (hereinafter collectively referred to as “the state”) are only eligible for federal assistance, that eligibility in itself is not sufficient to establish a major federal action requiring the FHWA to comply with the requirements of NEPA. 2. Approval of the EIS Plaintiffs also argue that FHWA’s assistance in and approval of the EIS is sufficient to make the bridge project a major federal action. The district court rejected this argument on the following grounds: Clearly, the state in the instant case did not initially need any type of federal approval, assuming that they chose not to seek federal money, in order to proceed with the river crossings project. The fact that the state did voluntarily request a federal EIS, though they were not legally bound to do so, should not, without more, constrain the state to make the entire project federal. Unless the state is actually receiving or is planning to receive federal funding for a project, mere preparation and approval of an EIS is not “major federal action.” (Memorandum Opinion and Order at 9, June 9, 1987.) We agree with the district court and would only add that an EIS is what is required once a project is deemed to be a major federal action. See 42 U.S.C. § 4332(C)(i). It would be anomalous indeed to say that in a case such as this, where there is no showing that the local defendants were involved in a sham transaction to evade federal environmental requirements, that the preparation and approval of an EIS is a major federal action for which an EIS must be prepared and approved. Plaintiffs also point to the fact that the federal government contributed nearly $59,000 of the $75,000 cost of the location study. Although $59,000 is indeed a large portion of that cost, it was incurred in connection with the preparation of the EIS and it is minuscule in comparison with the cost of the total bridge project. Cf. Citizens for Balanced Environ. & Transp., Inc. v. Volpe, 376 F.Supp. 806, 810 (D.Conn.) (“The only other federal funding indicated is a sum less than $50,000 of federal highway planning and research funds that were used in connection with the planning of the proposed road. The size of this expenditure and the totally preliminary purposes of the funds are too insignificant to render the proposed multimillion dollar highway a federal action.”) (footnote omitted), aff'd, 503 F.2d 601 (2nd Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975). For the foregoing reasons, we agree with the district court “that federal involvement with the bridge project[] was minimal, and, as a matter of law, did not rise to the level of ‘major federal action’ so as to bring the project within the purview of federal environmental laws.” Memorandum Opinion and Order at 2, (June 9, 1987). We draw guidance from Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), as to the meaning of the phrase “major federal action.” In that case we analyzed whether and to what extent the Bureau of Land Management (the “BLM”) could exercise control over a county’s major road improvement project, and then we addressed whether such input or control by the BLM constituted “major federal action.” First, we observed that the Council on Environmental Quality’s regulations have defined major federal action to encompass not only actions by the federal government but also nonfederal actions “ ‘with effects that may be major and which are potentially subject to Federal control and responsibility. 40 C.F.R. § 1508.18.’ ” Id. at 1089. However, we went on to state that: “[T]he distinguishing feature of ‘federal’ involvement is the ability to influence or control the outcome in material respects. The EIS process is supposed to inform the decision-maker. This presupposes he has judgment to exercise.” The touchstone of major federal action, in the context of the case before us, is an agency’s authority to influence significant nonfederal activity. This influence must be more than the power to give nonbinding advice to the nonfederal actor.... Rather, the federal agency must possess actual power to control the non-federal activity. Id. at 1089 (quoting W. Rodgers, Environmental Law 763 (1977) (citation omitted). Given the decision of the state to proceed with the bridge project without federal assistance beyond the initial location study and EIS preparation, we conclude that there is no evidence that the federal government had the actual power to control this project. At most, it gave advice as to the location of the bridge. Thus, we do not here have any “major federal action.” SEGMENTATION Plaintiffs argue that even if the participation in, and approval of, the EIS alone is not enough to make the project federal, the bridge project was improperly “segmented” from the I-25/Los Angeles Interchange project, which is a major federal project subject to the requirements of NEPA. The district court rejected that argument, holding that “the evidence is undisputed that the projects are, at best, only peripherally related, and have not been improperly segmented from one another.” (Memorandum Opinion and Order at 10, June 9, 1987.) We agree. “As a general rule under NEPA, segmentation of highway projects is improper for purposes of preparing environmental impact statements.” Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir.1981). However, a local project closely related physically to a federal project may be deemed independent for NEPA purposes after consideration of whether the proposed segment: (1) has logical termini, (2) has substantial independent utility, (3) does not foreclose the opportunity to consider alternatives, and (4) does not irretrievably commit federal funds for closely related projects. Id. Plaintiffs argue on appeal that the district court erred in determining that they had failed to present any issues of material fact. Specifically, they argue that an affidavit submitted by one of their transportation consultants demonstrates that the eastern terminus of the bridge project, Edith Avenue, is not logical: 8. The ... Wilson & Company [traffic] report addresses a Montano Corridor with termini at Coors Road and Edith Boulevard. Figure 2 in that report indicates that 30% of the estimated year 2005 bridge traffic (or 5,070 vehicles per day) will use the section of Montano between Edith Boulevard and 1-25. 9. Since nearly a third of all bridge traffic will use Montano Bridge east of Edith Boulevard, this strongly suggests that the logical eastern terminus for consideration of bridge traffic impacts and related improvements would be 1-25, which is the next major intersecting, regional route east of Edith Boulevard. 10.An 1-25 terminus for Montano Corridor improvements also has basis according to the Environmental Assessment (EA) for the 1-25 Frontage Road improvements. Section “O” of the EA notes that among the assumptions behind the traffic forecasts used in the 1-25 Frontage Road analysis was the following: ... a new Montano corridor bridge and roadway (two-lane limited access facility) from Coors Road to Interstate 25 via Montano Road/Montgomery Boulevard. Affidavit of Harvey R. Joyner, Doc. 111 at 11 8-10) (emphasis added). We do not read that evidence to say that Edith Boulevard is not a logical terminus. Rather, the affidavit, at most, merely asserts that the 1-25 terminus would be more logical. That a terminus is the most logical is not mandated by the segmentation analysis — that analysis requires only that a terminus be “logical.” Because plaintiffs point us to no evidence in the record indicating the Edith Boulevard is not a logical terminus, we agree with the district court that there is no question of material fact on that issue. Even if a local project terminates at a point of juncture with a federally funded project, that would not preclude segmentation. “Congress has not purported to apply NEPA requirements to [ejvery highway that connects with a federally-funded highway, and the fact that the connection here involves a three-mile overlap makes no difference.” Citizens for Balanced Environ. & Transp., Inc. v. Volpe, 376 F.Supp. 806, 810 (D.Conn.), aff'd, 503 F.2d 601 (2nd Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975). Because all local projects must start and end somewhere, under plaintiffs’ theory the entire highway network across the country could be considered one project. Such an implication is obviously indefensible. Because the criteria advanced in Piedmont Heights are satisfied here, and because plaintiffs have not demonstrated any issues of material fact or raised any other arguments that would demonstrate that the district court erroneously granted summary judgment in favor of defendants, we affirm the district court’s holding that defendants did not improperly segment the bridge project from the 1-25 project. NATIONAL HISTORIC PRESERVATION ACT Plaintiffs argue that the construction of the bridge requires compliance with section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470 et seq. The NHPA provides in pertinent part: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State ... shall, prior to the approval of expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure or object that is included in the National Register. 16 U.S.C. § 470f (emphasis added). As we held above, the participation in and approval of the EIS in this case did not render the bridge project federal in nature. Moreover, the bridge project is not under the “direct or indirect jurisdiction” of the FHWA. Therefore, we cannot say that it is “a proposed Federal or federally assisted undertaking” requiring the FHWA’s compliance with the requirements of the NHPA. See Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.Cir.1989). DEPARTMENT OF TRANSPORTATION ACT and EXECUTIVE ORDER 11990 Plaintiffs argue that the construction of the bridge requires compliance with section 4(f) of the Department of Transportation Act (“DTA”), 49 U.S.C. § 303 and 23 U.S.C. § 138, and Executive Order 11990. We disagree. 1. Section 4(f) Section 4(f) provides that it is the national policy “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.” To that end, Section 4(f) permits the Secretary of Transportation to approve a transportation project only if (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife or waterfowl refuge, or historic site resulting from such use. 49 U.S.C. § 303; see 23 U.S.C. § 138. Plaintiffs argue that the Secretary’s actions in this case constituted “approval” of the project such that compliance with Section 4(f)’s requirements is necessary. We hold that, like the NEPA and the NHPA, Section 4(f) is only applicable to federal projects. See Historic Preserva tion Guild of Bay View v. Burnley, 896 F.2d 985, 988 (6th Cir.1989) (Section 4(f) is applicable only to federal projects, and not state projects); see also Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 77 (4th Cir.1989) (assuming, but not deciding, that Section 4(f) does not apply to a project that has received only federal planning funds); cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (The language of Section 4(f) “is a plain and explicit bar to the use of federal funds for construction of highways through parks — only the most unusual situations are exempted.”). Here, the district court properly explained that section 4(f) does not apply because it “bars the use of federal funds to finance construction of highways through parks, without all possible planning to minimize harm to the park.” Memorandum Opinion and Order at 13, June 9, 1987 (emphasis in original). 2. Executive Order 11990 Plaintiffs also argue that defendants have failed to comply with the requirements of Executive Order 11990. Specifically, appellants maintain that the defendants’ action fall within the coverage of Section 1(a)(3) of Executive Order 11990. That section provides as follows: (a) Each agency shall provide leadership and shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency’s responsibilities for ... (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resource planning, regulating, and licensing activities. Executive Order 11990, 42 Fed.Reg. 26961 (May 24, 1977) (emphasis added). The district court held that the order was inapplicable to the challenged actions because there had not been “any significant federal participation in the river crossings project.” Memorandum Opinion and Order at 12, (June 9, 1987). We agree with the district court that Section 1(a)(3) of Executive Order 11990 does not apply in this case. Plaintiffs argue that the preparation of the EIS constituted “land resource planning.” While that may be true, Executive Order 11990 only imposes obligations upon an executive agency in carrying out its responsibilities for land use planning. Giving that term its normal usage, the federal defendants were not “responsible” for the land use planning here at issue because they did not have any ability to exercise control over the project unless the state elected to seek federal funding for the project. Because the state declined to seek such funding, it was free to reject whatever federal location advice was offered in connection with the preparation of the EIS. Thus, the district court correctly concluded that the defendants’ limited involvement in this project is insufficient federal action to trigger the requirements of Executive Order 11990. CONCLUSIONS For the foregoing reasons, we AFFIRM the decision of the district court in all respects. . In the case before us, the district court distinguished La Raza by noting that in La Raza the local government still had the option to receive federal funds, whereas here, the district court concluded that the local defendants have foreclosed that possibility and thus fall into La Raza's second category. We agree with the district court that an official foreclosure of all possibility of federal assistance will undoubtedly work to exempt a federal agency from NEPA requirements. However, here we find no concrete evidence that the local government was ever officially precluded from seeking federal assistance even though it expressed its intention not to seek federal funds. Thus, we analyze this case on the premise that the local government still had the possibility of receiving federal funds. . In their reply brief, plaintiffs state that "an EIS itself is not a 'major federal action,’” and that they "are not making such an absurd claim.” See Appellant's Reply Brief at 2. Rather, plaintiffs argue that “it is the funding and preparation assistance by the FHWA of the location study that preceded the EIS that triggers NEPA.” Id. However, at oral argument plaintiffs argued that the location study is a component of the EIS. We cannot accept plaintiffs’ implicit argument that the lesser (the location study) can impose higher standards (such as compliance with NEPA) than the greater (preparation of the EIS). Therefore, we construe plaintiffs’ argument as stating that the EIS, which in this case includes the location study, is the major federal action. . The City of Albuquerque floated $10.3 million in bonds in 1983 and 1984 to finance the bridge project. . The district court considered only the first three factors enumerated in Piedmont Heights. (Memorandum Opinion and Order at 10-11, June 9, 1987, citing 23 C.F.R. § 771.111(f); Daly v. Volpe, 514 F.2d 1106 (9th Cir.1975)). The appellants, however, do not argue that the district court failed to consider all relevant factors. Instead, they argue the district court erroneously found no issue of material fact with regards to the factors it did consider. . The district court’s findings are as follow: The Court finds that there is no material issue of fact as to whether such segmentation was proper, as [plaintiffs have] presented no evidence to the Court that the [1-25] project is in any way related to the Montano bridge crossing, other than the inevitable relationship caused by the fact that some of the new frontage road traffic will undoubtedly use that route as a means of access to Montano Road, and hence to the new bridge crossing. Memorandum Opinion and Order at 11, (June 9, 1987). . Plaintiffs refer to the 1986 version of the regulation promulgated to implement the NHPA, which defines "undertaking” as any Federal, federally assisted or federally licensed action, activity, or program or the approval, sanction, assistance, or support of any Non-Federal action, activity or program. Undertakings include new and continuing projects and program activities ... that are (3) carried out pursuant to a Federal lease, permit, license, certificate, approval, or other form of entitlement or permission. ré C.F.R. § 800.2(c) (1986) (emphasis added in Appellants' Brief). Assuming, without deciding, that this quoted version of the regulation is the relevant and appropriate version controlling the present dispute, it cannot broaden the reach of the statute. Because the project is neither "federally assisted” nor under the “direct or indirect jurisdiction" of any “head of any Federal Agency,” we need not address the definition of "undertaking” in this regulation. . A "responsibility" is defined as “the state or fact of being ... answerable or accountable, as for something within one’s power or control.” Random House College Dictionary, 1125 (1980).

Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown

WIENER, Circuit Judge: For the second time, this court is asked to resolve the continuing dispute between Vieux Carre Property Owners, Residents and Associates, Inc. (Vieux Carre), an historic building preservation group, and the United States Army Corps of Engineers (the Corps) over the construction of a riverside park in New Orleans. In this appeal, Vieux Carre urges us to overrule the district court’s decision on remand dismissing Vieux Carre’s suit on various grounds of mootness. We agree with Vieux Carre that in finding the case moot the district court violated the “law of the case” doctrine and determined incorrectly that the historic preservation review required under the National Historic Protection Act was not necessary once a federally-licensed project was completed or substantially completed. Therefore, we reverse the district court’s dismissal of Vieux Carre’s suit, and remand for disposition consistent with this opinion and our first opinion. At this time, however, we cannot and do not decide whether the case fits the “capable of repetition, yet evading review” exception to the mootness doctrine. On second remand, therefore, if the district court again finds the case moot, we instruct it to consider whether this exception applies given that Vieux Carre is unable to maintain the status quo by enjoining the park project's non-federal developers. Lastly, finding that no reasonable person knowing all the circumstances would harbor doubts about the district judge’s impartiality, we agree with the Corps that the district judge was not required under 28 U.S.C. § 455 to recuse himself from the case. I. FACTS AND PROCEDURAL HISTORY A. THE DISTRICT COURT’S FIRST DECISION Because the facts and procedural history of this case are discussed fully in Vieux Carre I, we do no more here than summarize those matters. The case originated from the decision of the Audubon Park Commission, a local government entity in the City of New Orleans, to build an aquarium and park on the Mississippi riverfront in New Orleans. Because some structures were to be built on the Bienville Street Wharf (the Wharf), the Audubon Park Commission submitted its plans to the Corps, which has jurisdiction over the Wharf under Section 10 of the Rivers and Harbors Act (RHA). The Wharf is located entirely within the Vieux Carre National Historic Landmark District, which is popularly known as New Orleans’s French Quarter and is listed in the National Register of Historic Places. After consideration of the proposed riverfront project, the Corps concluded that the aquarium would not require a permit because it was to be built entirely landward of the Mississippi’s Ordinary High Water Line (OHWL), but that the park would require a permit because it was to be built on the Wharf completely within the OHWL. The Corps determined, however, that because construction of the park would not require changing the Wharf’s dimensions or maritime uses and would have no effect on navigation, the project did not require an “individual permit,” but could go forward under a regulation, somewhat misleadingly called a “nationwide permit,” promulgated by the Corps under RHA § 10. The Corps’s belief, later proven to be incorrect, was that the Wharf itself was within the § 330.3(b) nationwide permit, which authorizes, under certain circumstances, structures or work completed before December 18, 1968. The Corps decided that it was not required to undertake the historic review consultation procedures mandated by Congress in Section 106 of the National Historic Preservation Act (NHPA), and the implementing regulations promulgated by the Advisory Council on Historic Preservation (Advisory Council), because activities under a nationwide permit are not “licensed.” Originally, Vieux Carre brought a declaratory judgement suit against the Corps on grounds that the RHA and the Corps’s own regulations required the Corps to issue an individual permit for the aquarium, and that individual permitting, in turn, required that the aquarium project be subjected to the NHPA review process. Vieux Carre also claimed that the park project required an individual permit. Vieux Carre argued alternatively that even if the park project came under a nationwide permit, thus avoiding the need for an individual permit, the nationwide permit is still a license within the meaning of NHPA and therefore triggers NHPA review. Vieux Carre sought a judgment declaring that the Corps must comply with the historic review process, and also sought an injunction to keep the non-federal parties from proceeding with the riverfront project. After an evidentiary hearing on this matter, the district court dismissed Vieux Carre’s suit on jurisdictional grounds, finding that Vieux Carre had no private right of action under RHA §§ 10 and 14 to compel the Corps to undertake the permitting process, and concluding that the Corps’s decisions made pursuant to those statutes are unreviewable under § 701(a)(2) of the Administrative Procedures Act (APA). Vieux Carre appealed to this court. B. THIS COURT’S FIRST DECISION In Vieux Carre I, we reversed the district court’s determination that the Corps’s decisions under the RHA were non-reviewable, explaining that APA § 701(a)(2) is applied “primarily to situations in which agencies have chosen not to enforce or prosecute violations of their regulations, rather than to agency decisions on whether or not to approve activities governed by a statute that sets guidelines for determining when such approval should and should not be given.” We did, however, affirm the district court’s dismissal of Vieux Carre’s suit for an injunction against non-federal parties, reasoning that “neither the APA nor the NHPA give a private plaintiff a right of action against any of the defendants other than the Corps.” We also affirmed the dismissal of Vieux Carre’s complaints concerning the aquarium phase of the project, albeit for reasons different from those given by the district court. But we reversed the dismissal of Vieux Carre’s claims concerning the park project, and remanded the case to the district court with instructions to make specific legal and factual findings, including (1) whether the park project required an individual permit or was within the § 330.5(a)(3) nationwide permit, and, (2) assuming the nationwide permit was found by the district court to be appropriate, whether the permit was valid and the park project triggered NHPA. As to the second question, whether activities pursuant to the § 330.5(a)(3) nationwide permit can trigger NHPA review, this court concluded that the § 330.5(a)(3) nationwide permit, which the Corps claims is applicable to the park project, is a “license” and therefore subject to the § 330.5(b)(9) requirement that the Corps give the Advisory Council an opportunity to comment if it determines that historic properties may be adversely affected by the permitted activities. We decided, however, to take a middle path between the Corps’s position on the one hand, that NHPA’s § 106 “undertaking” requirement is coterminous with the “major federal undertaking” requirement in the National Environmental Policy Act (NEPA), and Vieux Carre’s argument on the other hand, that all activities covered by a § 330.5(a)(3) nationwide permit trigger the NHPA review process. We held that “nationwide permits authorizing truly inconsequential activities are not triggering ‘licenses’ under § 470f.” Therefore, we remanded the case and instructed the district court to make the following findings of fact and law: The Corps apparently determined that the park constitutes a “rehabilitation” or “replacement” of the wharf, that the park plans do not deviate from the 1930 plans of the wharf except for minor deviations due to changes in materials or construction techniques that are necessary for the rehabilitation or replacement, and that the park is not a use differing from uses specified in the 1930 wharf permit. The reviewing court must determine whether the Corps’ interpretation of its own regulation is reasonable and consistent with the regulations themselves. Because the district court did not address this issue, we remand for an interpretation of the scope of section 330.5(a)(3); a determination of whether the Corps’ finding that the riverfront park is covered by this nationwide permit (as the district court defines it) was arbitrary or capricious; and if the park is covered by section 330.5(a)(3), a ruling on whether the project is so inconsequential that it escapes section 470f’s historic impact review requirements. Finally, if the district court finds that the riverfront park does fall under section 330.5(a)(3) and is inconsequential, it must also address the Vieux Carre’s argument that this nationwide permit is invalid because the Corps did not evaluate the park’s impact on historic properties as is required by the Corps’ own regulation — section 330.5(b)(9). The Audubon Park Commission notified the Corps (so as to apparently trigger that regulation) when it submitted plans for the project and asked whether permits would be necessary. C. THE DISTRICT COURT’S DECISION ON REMAND On August 15, 1990 — months after our decision remanding this case — the district court again dismissed Vieux Carre’s suit, this time on grounds of mootness. The district court on remand found that “[because construction of the park was virtually complete” when the Corps’s motion dismissing the suit for mootness “was submitted for decision (indeed, the park has been in actual use by the general public for a number of months), there is no relief sought by the plaintiff which can be granted.” The district court gave four reasons for this conclusion. First, it asserted that although the Corps has authority to revoke, suspend, or modify nationwide permits under 33 CFR § 325.7, it has no authority to do so when the project is “substantially completed” because once “[t]he developers have completed virtually all of the work authorized by the nationwide permit,” the permit in effect “expired.” Second, the district court concluded that, because “the park project, as completed, does not deviate from the proposed project[,] which was reviewed by the Corps of Engineers and found to be permissible under the nationwide permit,” the Corps could not require changes to the park project under its enforcement provisions in 33 CFR § 326.3. Third, the court found the suit moot because “there is no statutory or jurisprudential authority mandating historic review for a completed project.” The district court distinguished cases requiring NHPA review of on-going, federally-funded projects as long as the federal agency had some opportunity to exercise discretion over the project, and concluded that “[Requiring historic review of a [privately-funded] project, now virtually complete, would unduly penalize developers who acted in good faith reliance upon the representation by the Corps of Engineers that the project could proceed as proposed.” The district court explained that “[t]he practical effect of requiring historic review at this point is to permit plaintiff to do indirectly that which it cannot do directly, i.e., make a claim against the now dismissed non-federal defendants for an alleged violation of the NHPA.” Fourth and finally, the district court concluded that the case does not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine, because, although the wrongs are clearly capable of repetition, there was no reason to believe Vieux Carre could not sue to require the Corps to follow its own regulations and the NHPA review process before the Corps allows a project to go forward under “a nationwide permit letter.” After the Corps filed its motion to dismiss for mootness, and before the scheduled hearing on the matter, Vieux Carre asked the district judge to recuse himself from the case because his “close personal and political friendship” with the Mayor of New Orleans created an “appearance of impropriety.” Apparently, the incumbent Mayor of New Orleans touted the riverfront project as one of his administration’s more significant accomplishments, and Vieux Carre believed that a decision in its favor could pose substantial problems for the mayor’s reelection campaign. Instead of recusing himself, the district judge rescheduled the hearing on mootness for after the mayoral election. Then, reasoning that because the sole basis for Vieux Carre’s motion was the mootness hearing’s close temporal proximity to the election, the district judge denied Vieux Carre’s disqualification motion. II. ANALYSIS A. LAW OF THE CASE Vieux Carre claims that the district court violated the law of the case doctrine when it based its mootness determination on its own assumptions about the very questions of law it was supposed to decide on remand. We agree. The law of the case doctrine essentially means that the district court’s task on remand (and for that matter, our task on subsequent review) is to follow the findings, holdings, and instructions contained in the appellate court’s initial mandate, absent an extremely good reason to do otherwise. In this case, of course, the law of the case doctrine does not bar the district court from considering the question of mootness; Vieux Garre I did not rule on that issue, which was raised for the first time on remand. The district court therefore had a right— indeed, a constitutional duty—to consider on remand whether mootness deprived it of jurisdiction to consider the suit. Nevertheless, none of the circumstances this court has recognized as permitting departure from the law of the ease applies here. Therefore, it was error for the district court to base its determination that the suit was moot on its unexplored assumptions about the very questions of law and fact we had instructed it to decide on remand. Specifically, two of the district court’s reasons for finding the suit moot assume answers to the questions we required it to determine on remand. First, the district court assumed without determining that the Corps has no continuing authority over the park project under its modification authority in 33 CFR § 325.7 because the nationwide permit “expired” when the project was completed. In Vieux Carre I, however, we specifically instructed the district court to determine whether (1) the park project does come within the nationwide permit, or (2) the Corps’s decision that it did was arbitrary and capricious. Second, we instructed the district court that, if the project was found to be under a nationwide permit, the court should determine whether the nationwide permit would be invalid because the Corps did not evaluate the park project’s impact on historic properties as required by the Corps’s own regulations, § 330.5(b)(9). Therefore, the district court was premature in deciding that the permit “expired” with the park project’s completion or substantial completion because that court has never determined whether a valid permit ever existed. Similarly, it was error for the district court to assume that the Corps has no continuing jurisdiction over the park project pursuant to its § 326.3 enforcement authority simply because the completed project “did not deviate” from the proposed project, which the court found to be “permissible under the nationwide permit.” As noted, the very issue that we instructed the district court to determine on remand was whether a nationwide permit was indeed appropriate and valid. Because the district court made no legal or factual findings on whether the park project properly came within the § 330.-5(a)(3) nationwide permit, or, if it did, whether that permit was valid, we do not address the subsidiary question of when a permit expires under the Corps’s duration regulations. Neither do we decide, as the Corps urges us to, whether the park project concerns activities rather than structures; this is much the same factual and legal inquiry required in order to decide what permit is appropriate. Nor do we consider whether the Corps has continuing jurisdiction under its modification or enforcement regulations. We note, though, that if the district court determines on second remand that the Corps has no continuing jurisdiction over a completed project undertaken pursuant to a nationwide permit, it must then consider whether in this case the Corps is able nevertheless to order changes to the park project pursuant to its jurisdiction over the Wharf itself. In other words, because the park project is situated entirely on the Wharf, the Corps’s jurisdiction over that permanent structure may be sufficient to give it jurisdiction over the riverfront park, even if the Corps would not otherwise have jurisdiction over completed activities lav/fully undertaken pursuant to a § 330.5(a)(3) nationwide permit. In Vieux Carre I, as noted earlier, we rejected the Corps’s argument that the Wharf itself was covered by a nationwide permit, explaining that the Wharf could conceivably come within only one nationwide permit, 33 CFR § 330.3(b), but that it did not because the Wharf’s reconstruction under the 1930 permit affected navigability of the Mississippi River. B. NHPA REVIEW OF A COMPLETED FEDERALLY-LICENSED PROJECT On remand, the district court also concluded that, although NHPA review may be initiated after the start of a project, NHPA review is not required for a “completed” construction project. In a number of closely-reasoned cases, courts have interpreted NHPA, and the Advisory Council’s regulations promulgated thereunder, to “require that NHPA be applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals.” The district court concluded, however, that this rule does not apply in this case because those cases involved on-going, federally-funded, projects, and that the activities in question involved “destruction, not construction.” The district court also found that to require historic review of the park project after its “virtual completion” would unduly penalize private developers who acted in good faith reliance on the Corps’s representations that the project could proceed as proposed. We are not at all certain just what the district court intended by this holding and reasoning. If the court means that NHPA itself draws a distinction between federally-funded and federally-licensed projects, we reject this conclusion as unsupported by NHPA’s statutory language or legislative history. Neither do we agree that distinctions between federally-funded and federally-licensed projects cited by the district court require that we articulate, as a matter of policy, a new and different rule for the point at which NHPA review of federally-licensed projects is no longer required, if that is what the district court intends. Specifically, we see no justification for allowing the interests of the non-party, non-federal developers to supplant the legitimate interests of Vieux Carre and the public at large in having the Corps comply with the historic review process. In Vieux Carre I, we found that, even though the activities of the non-federal developers of the riverfront project allegedly had a negative effect on historic properties, the non-federal developers could not be enjoined because they were not parties to the dispute between Vieux Carre and the Corps. But our ruling cuts both ways: it also means that the interests of the non-federal developers are not an appropriate basis for concluding that Vieux Carre’s suit is moot. Moreover, if the park project was not undertaken pursuant to a valid permit, and the Corps has to issue an after-the-fact permit, the express language of NHPA § 106 requires the Corps to afford the Advisory Council an opportunity to comment •prior to its issuance of any license for an undertaking that may affect historic properties. Furthermore, the district court’s concern that the non-federal developers might be adversely affected by the result of NHPA review does not take into consideration the fact that the NHPA’s § 106 review process contains specific procedures for consulting with interested parties, including the non-federal developers, and for taking their legitimate concerns into account when considering mitigation measures. The interests of all parties can be considered within the context of the NHPA § 106 process. Therefore, as long as the park project is under federal license and the Corps has the ability to require changes that could conceivably mitigate any adverse impact the project might have on historic preservation goals, the park project remains a federal undertaking and NHPA review is required. The Corps also argues that NHPA review cannot be required at this point because the “practical” effect would be to allow Vieux Carre indirectly to make a claim against the non-federal developers. As noted above, however, neither we nor anyone else has any way of knowing at this point whether NHPA review will have any effect whatsoever on the non-federal developers. But even if requiring the Corps to comply with NHPA were to have an adverse effect on the park project’s non-federal developers, we fail to see why that should require the dismissal of Vieux Carre’s otherwise valid suit against the Corps. We are not allowing Vieux Carre to sue the park project’s non-federal developers — that issue was decided in Vieux Carre I. We recognize that there are situations in which litigants are denied relief because what they seek to do indirectly is something that they cannot do directly. But that is not the case here, for the Corps’s alleged refusal to follow its own regulations and to comply with NHPA is the only thing Vieux Carre now seeks to remedy. After all, rare is the litigation that does not at least indirectly affect non-parties. That is unavoidable under our system; it is the stuff of which amici curiae are made. C. EXISTENCE OF MEANINGFUL RELIEF The Corps urges this court to affirm the district court’s decision finding Vieux Carre’s suit moot because substantial completion or completion of the park project means that courts are no longer capable of granting relief. The Corps argues that the relief sought by Vieux Carre is limited to the specific items alleged in its original complaint and request for injunction, such as preventing the demolition of then-existing sheds, buildings, and portions of the wharf apron, and stopping the riverfront project’s non-federal developers from proceeding with the project. The Corps’s arguments reflect a misunderstanding of both the doctrine of mootness and the nature of Vieux Carre’s requested relief. The law is clear that a suit is moot only when it can be shown that a court cannot even “theoretically grant” relief. Mere “[difficulties in formulating a remedy in an otherwise living case do not evidence the absence of a case or controversy.” “[T]he question is not whether the precise relief sought at the time an application for injunction was filed is still available. The question is whether there can be any effective relief.” Therefore, as Vieux Carre has requested a declaration that the Corps must comply with the historic review process, the suit is moot only if the Corps presents evidence that compliance with the historic review-process — the result that would flow from declaratory judgment in Vieux Carre’s favor — could not minimize any of the adverse effects on the Vieux Carre National Historic Landmark District resulting from the park project. At this point, however, assuming that NHPA was in fact triggered by the park project’s permit, it is impossible for us to know with any degree of certainty just what the end result of the NHPA process would be. For example, NHPA review could result in a determination by the Advisory Council that at this late date nothing can be done, or should be done, to mitigate the adverse effects of the park project on the historic properties. Or, because, as the Corps points out, the Advisory Council’s comments are advisory only and do not bind the Corps to a particular course of action, the Corps might decide not to require mitigation measures even if the Advisory Council should recommend them. It is also possible, however, that the Advisory Council, the Corps, and other interested parties, will be able to implement measures, great or small, in mitigation of some or all adverse effects, if any, wrought by the park. There is, in other words, a broad range of remedies that could conceivably emerge from NHPA review. We find it inappropriate to pre-judge those results as being limited to the extremes of either maintaining the status quo or totally demolishing the park. Therefore, a district court should not pre-judge the result of the NHPA process by concluding that no relief is possible. The result of the NHPA process may indeed be that Vieux Carre does not achieve meaningful relief, but it is almost always for the Advisory Council, not the district court, to make this determination. As the First Circuit noted in an analogous NEPA case: “[i]t may prove to be the case that an environmental review of so much of the project as may be subject to feasible alteration will yield few suggestions.... [but this court should] hesitate to prejudge.” Even though, in this NHPA case, Vieux Carre’s possible relief may appear to some to be “irrelevant, trivial, or prohibitively expensive,” a district court should beware of “shortcutting the process, which has been committed in the first instance to the responsible federal agency.” D. CAPABLE OF REPETITION YET EVADING REVIEW Vieux Carre argues alternatively that, even if its suit is otherwise moot, it falls into a long-recognized exception to the mootness doctrine for “issues capable of repetition, yet evading review.” Although a case may be technically moot, a federal court may nevertheless retain jurisdiction if a continuing controversy exists or if the challenged problem is likely to recur or is otherwise capable of repetition. The repetition prong of this exception requires that there be some possibility that the challenged conduct will be repeated and affect the plaintiff. The evading review prong of the exception requires that the type of harm be of limited duration so that it is likely to be moot before litigation is completed. The district court found, and we agree, that the expectation of future development of the riverfront park on other wharfs along the Mississippi River in the historic district makes the alleged harm to Vieux Carre capable of repetition. As such, Vieux Carre clearly satisfies the first prong of the mootness exception. Unlike the district court, however, we are satisfied that, depending on how the district court decides the remaining legal and factual questions on remand, this type of injury may be inherently capable of evading review. Specifically, we are concerned that such cases may evade review because, under our ruling in Vieux Carre I, it is impossible for plaintiffs who challenge agency action in this sort of situation to maintain the status quo by enjoining non-federal developers. If, therefore, after the district court makes the required legal and factual findings, it should still conclude that Vieux Carre’s suit is moot, it must consider well whether the injuries alleged by Vieux Carre fit this exception to the mootness doctrine. E. DISQUALIFICATION Vieux Carre’s final argument is that the district court’s decision should be set aside because the district judge was required under 28 U.S.C. § 455 to recuse himself from the case. Vieux Carre urges that the district judge had an irreconcilable conflict because of his admitted close personal and political relationship with the mayor of New Orleans, who had a significant political stake in the successful completion of the riverpark project. The standard for judicial disqualification under 28 U.S.C. § 455 is whether a reasonable person, with full knowledge of all the circumstances, would harbor doubts about the judge’s impartiality. In this case, we agree with the Corps’s contention that because the sole reason expressed in Vieux Carre’s motion for disqualification was the temporal proximity of the mayoral election and the mootness hearing, the district court adequately removed any possible harm from the public’s perceived doubts about his impartiality by postponing that hearing until after the election. Neither do we think that there was such a close connection between the district judge and the mayor that recusal was necessary after the election. III. CONCLUSION We recognize that resolution of this case has been for Vieux Carre like trying to push a rope. We are hopeful, therefore, that the third time will enjoy the proverbial charm, for we have no choice but to remand the case once again to the district court for findings of fact and conclusions of law. On remand, the district court must first make the determinations required in Vieux Carre I, namely whether the activities and structures that make up the park project are consistent with the § 330.5(a)(3) nationwide permit. The district court must evaluate whether the Corps’s interpretation of this nationwide permit, and its determination that the park project is within that regulation, is arbitrary and capricious. If the district court determines that to be the case, the project must be individually permitted. Because, in Vieux Carre I, we held that an individual permit triggers NHPA, the project must go through NHPA review, unless on remand the district court becomes aware of circumstances unforeseen in this opinion. If the district court determines that the Corps was correct in concluding that the activities and structures constituting the park project are within the § 330.5(a)(3) nationwide permit, as properly interpreted, the court then must determine whether the park project is so inconsequential that it does not trigger NHPA. If the district court concludes that the § 330.5(a)(3) nationwide permit is indeed appropriate, it must determine whether the permit was valid, given that the Corps did not follow its own regulations at § 330.-5(b)(9). Similarly, if the district court finds that the activities and structures constituting the park project are so inconsequential that the project does not trigger NHPA, the court must still determine whether the permit is invalid because the Corps failed to comply with its own regulations. Therefore, if the permit is invalid under either analysis, the district court must determine whether the Corps’s regulations require the issuance of an individual or regional permit. If, despite our forgoing analysis of mootness, the district court should determine that Vieux Carre’s suit is moot — for example, because the Corps no longer has jurisdiction over the activities and structures constituting the park project — the court must determine nonetheless whether the Corps’s acknowledged jurisdiction over the Wharf itself would allow it to order changes in the park project. This is so because we hold that in this case NHPA review is required as long as a federal agency has the ability, under any statute or regulation, to require changes to the federal license authorizing a project. Finally, if the district court should again conclude that Vieux Carre’s suit is moot, for whatever reason, the court must determine whether this case nevertheless fits within the “capable of repetition, yet evading review” exception to the mootness doctrine. We specifically instruct the district court to consider whether the case fits this exception because Vieux Carre is unable to maintain the status quo by enjoining the park project’s non-federal developers. Accordingly, for the reasons set forth above, the district court’s judgment is REVERSED and the case is REMANDED for proceedings consistent with this decision. We AFFIRM the district court’s holding that its postponement of the mootness hearing until after New Orleans’s mayoral election eliminated the need, if ever there was any, for recusal under 28 U.S.C. § 455. . Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown, 875 F.2d 453 (5th Cir. 1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990) (Vieux Carre I). . 33 U.S.C. § 403 et seq. The RHA prohibits activities affecting the course, condition, location, or capacity of any navigable water unless authorized by a permit issued by the Corps. See, e.g., Bayou Des Familles Dev. Corp. v. United States Corps of Engineers, 541 F.Supp. 1025, 1032 (E.D.La.1982). . The Corps issues two types of permits, individual and general. 33 CFR § 325.5(a). . A nationwide permit is a form of general permit that authorizes specific types of activities throughout the nation. See 33 CFR Part 330. There are various types of nationwide permits. See 33 CFR §§ 330.3 and 330.5. In this case, the Corps contends that the park project falls within the 33 CFR § 330.5(a)(3) nationwide permit, which provides: The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or fill, or of any currently serviceable structure or fill constructed prior to the requirement for authorization, provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure or fill, and further provided that the structure or fill has not been put to uses differing from uses specified for it in any permit authorizing its original construction. Minor deviations due to changes in materials or construction techniques and which are necessary to make repair, rehabilitation, or replacement are permitted. Maintenance dredging and beach restoration are not authorized by this nationwide permit. . 33 CFR § 330.3(b) permits "[s]tructures or work completed before December 18, 1968, or in waterbodies over which the district engineer had not asserted jurisdiction at the time the activity occurred provided, in both instances, there is no interference with navigation.” In Vieux Carre I, we determined that the Wharf did not come within this nationwide permit because the Corps stipulated that reconstruction of the Wharf under the 1930 permit affected navigation. 875 F.2d at 464. . 16 U.S.C. § 470 et seq. 16 U.S.C. § 470f provides as follows: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. .36 CFR § 800 et seq. The Advisory Council, which is responsible for the implementation of NHPA § 106, consists of officials from federal and state government, historic preservation experts, and members of the general public. . 875 F.2d at 456 n. 1, citing Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and distinguishing Harmon Cove Condominium Asso. v. Marsh, 815 F.2d 949 (3rd Cir.1987). . Id. at 456. Accordingly, on remand to the district court, all non-federal parties were dismissed. . Id. at 456, 459-62. Specifically, we concluded that the Corps’s determination that it had no permit authority over the aquarium was not arbitrary and capricious in light of RHA § 10 and the cases and regulations that define the scope of the Corps’s RHA § 10 jurisdiction. . 42 U.S.C. § 4321 et seq. In doing so, we rejected the position taken by the Eighth Circuit in Ringsred v. Duluth, 828 F.2d 1305, 1309 (8th Cir.1987), which equated NHPA’s § 106 "undertaking” with the "major federal undertaking" requirement in NEPA. . We pointed out that some nationwide permits, but not others, require application to or notification of the Corps. In the specific context of the § 330.5(a)(3) nationwide permit, however, we concluded that the fact that it does not require notification of the Corps is not dis-positive of whether it is a NHPA-triggering license. 875 F.2d at 465. . Id. at 465-66 (citations omitted). . The district court found the instant case analogous to Potomac River Asso. Inc. v. Lundeberg Maryland Seamanship School, Inc., 402 F.Supp. 344 (D.Md.1975), in which the district court found that expiration of individual dredge and fill permits, each with a specific expiration date, rendered moot the suit against the Corps challenging those permits. We need not address the correctness of either the district court’s analogy in this case or the decision reached in Lundeberg. . The Corps’s motion to dismiss for mootness was to be considered on January 10, 1990; the mayoral election was scheduled for February 5, 1990. . Illinois C.G.R. Co. v. International Paper Co., 889 F.2d 536, 539 (5th Cir.1989) (noting that the “law of case doctrine, although well established, is not inviolable"), citing Falcon v. General Telephone Co., 815 F.2d 317, 320 (5th Cir.1987). For an exhaustive discussion of the law of the case doctrine, see Litman v. Massachusetts Mutual Life Ins. Co., 825 F.2d 1506 (11th Cir.1987) (en banc). . See Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 n. 10 (5th Cir.1985), citing, among other things, Brown Shoe Co. v. U.S., 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). . Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). Because mootness goes to the constitutional requirement in Article III that a court may only decide actual cases and controversies, questions of mootness must be resolved before a court may assume jurisdiction over a case. . Daly v. Sprague, 742 F.2d 896, 900 (5th Cir. 1984) (finding three reasons for abandoning law of the case: "(i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice”). . We also believe that the permit expiration argument was totally inapplicable because the record shows, and the district court found, that the project was not completed but only substantially completed. For example, affidavits submitted by the Corps showed that 85% of the construction cost of the park project had been paid out to contractors and that a document of substantial completion had been issued by the Corps. Even assuming that monies paid to contractors is an adequate measure of the park project’s status, the Corps clearly retains control over the remaining 15% of the project. . 33 CFR § 330.5(b) provides conditions that must be followed in order for activities undertaken pursuant to the nationwide permits in 33 CFR § 330.5(a) to be valid. Condition § 330.-5(b)(9) provides in relevant part: That, if the activity may adversely affect historic properties which the National Park Service has listed on, or determined eligible for listing on, the National Register of Historic Places, the permittee will notify the district engineer. If the district engineer determines that such historic properties may be adversely affected, he will provide the Advisory Council on Historic Preservation an opportunity to comment on the effects on such historic properties or he will consider modification, suspension, or revocation in accordance with 33 CFR 325.7. 33 CFR § 330.1 states that “[fjailure to comply with a condition does not necessarily mean the activity cannot be authorized but rather that the activity can only be authorized by an individual or regional permit.” . Without a valid and appropriate permit, the park project is unlawful under RHA § 10. See Bayou Des Familles Dev. v. Corps, 541 F.Supp. at 1032. . 33 CFR § 325.6. The Corps’s duration regulations provide in part that “[pjermits continue in effect until they automatically expire or are modified, suspended, or revoked.” 33 CFR § 325.6(a). "Permits for the existence of a structure or other activity of a permanent nature are usually for an indefinite duration with no expiration date cited.” 33 CFR § 325.6(b). “Permits for construction work, discharge of dredged or fill material, or other activity and any construction period for a structure with a permit of indefinite duration under paragraph (b) of this section will specify time limits for completing the work or activity.” 33 CFR § 325.6(c). . The park project certainly involved structures in the colloquial sense of the word. The record shows that the parties stipulated that the park project includes such things as resurfacing, construction of walkways, a bandstand, and placement of potted plants and benches. The Corps may be able to demonstrate on remand, however, that these types of structures are consistent with the § 330.5(a)(3) nationwide permit. . The following introductory language of the Corps’s modification, revocation, and suspension regulation indicates that the Corps is able to exercise its authority over at least some types of on-going and completed projects: The district engineer may reevaluate the circumstances and conditions of any permit, including regional permits, ... and initiate action to modify, suspend, or revoke a permit as may be made necessary by considerations of the public interest.... Among the factors to be considered are the extent of the permit-tee's compliance with the terms and conditions of the permit; whether or not circumstances relating to the authorized activity have changed since the permit was issued or extended, and the continuing adequacy of or need for the permit conditions; any significant objections to the authorized activity which were not earlier considered; ... and the extent to which modification, suspension, or other action would adversely affect plans, investments and actions the permittee has reasonably made or taken in reliance on the permit. 33 CFR § 325.7. There appears to be very limited judicial authority for the application of the Corps’s modification authority to on-going and completed projects. See Sierra Club v. Andrus, 610 F.2d 581, 605-606 n. 37 (9th Cir.1979) (mentioning § 325.7(a) as one means by which permits for a completed and operating pumping station could be reevaluated), reversed on other grounds California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). . Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 280 (3rd Cir.1983). See also Waterbury Action to Conserve Our Heritage, Inc. v. Harris, 603 F.2d 310, (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979). In addition, see Thompson v. Fugate, 347 F.Supp. 120, 124 (E.D.Va.1972) (analogizing NHPA case to decisions holding the NEPA applies to unexecuted portions of a plan or project). . 36 CFR § 800.1. . 36 CFR § 800.5(e)(1). .Neither do we find it necessary to distinguish this case on the grounds that it involves construction (not destruction) given that the entire thrust of Vieux Carre’s argument is that the park project, without modification, could have a destructive effect on the Vieux Carre National Historic Landmark District. In addition, we believe that characterizing the instant case as involving construction (not destruction) actually makes it less likely to be moot. After all, unlike cases involving the destruction of an historic property, there often are ways to mitigate the negative externalities of things constructed, even after their completion. .875 F.2d at 464. . See, e.g., Richmond Power & Light v. Federal Energy Regulatory Com., 574 F.2d 610, 620 (D.C.Cir.1978) (holding that because FERC is prohibited from directly ordering involuntary wheeling of electric energy, it is also prohibited from achieving involuntary wheeling by indirection). . Richland Park Homeowners Ass’n v. Pierce, 671 F.2d 935, 943 (5th Cir.1982). . Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 516 (5th Cir.1985). . Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir.1988) (emphasis in original), quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986). Accord Safe Energy Coalition v. U.S. Nuclear Regulatory Com., 866 F.2d 1473, 1476 (D.C.Cir.1989). The Fifth Circuit, in In re Commonwealth Oil Refining Co., 805 F.2d 1175, 1181 (5th Cir.1986), determined that "[a] case is not moot so long as any claim for relief remains viable, whether that claim was the primary or secondary relief originally sought," citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). . See, e.g., Hough v. Marsh, 557 F.Supp. 74, 87 (D.Mass.1982) (noting that the Advisory Council’s regulations impose on the federal agency procedural not substantive obligations). . The National Trust for Historic Preservation, acting as amicus curiae in this case, informs us that the Advisory Council itself undertakes a type of mootness analysis under 36 CFR § 800.-6(d) to determine if a project, already commenced, has proceeded too far for its review and comments to be meaningful. We do not have sufficient information about this process, however, to determine if the Advisory Council’s foreclosure review is relevant to a district court’s analysis of Article III mootness. See National Trust for Historic Preservation v. U.S. Army Corps of Engineers, 552 F.Supp. 784, 789 (S.D.Ohio 1982). . Jones v. Lynn, 477 F.2d 885, 891 (1st Cir.1973). Accord Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 513 (D.C.Cir.1974). . Id. at 891-92. . Southern Pacific Terminal Co. v. Interstate Commerce Com., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). . Floyd v. Bowen, 833 F.2d 529, 531 n. 2 (5th Cir.1987); Pierce v. Winograd, 757 F.2d 714, 715 (5th Cir.1985). . See, e.g., Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 71 L.Ed.2d 353 (1982) (noting that "there must be a ‘reasonable expectation’ or a 'demonstrated probability’ that the same controversy will recur involving the same complaining party”), citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). . Id. . In another case, Mintz v. Barthelemy, the district judge sua sponte recused himself because of his close personal and political relationship with the mayor. . Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.1980). In that case we stated that "[b]ecause 28 USC § 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.”

Romero-Barcelo v. Brown

BOWNES, Circuit Judge. The Commonwealth of Puerto Rico appeals from the district court’s denial of its request for a comprehensive injunction against the United States Navy’s military training operations on the Island of Vie-ques, a municipality of the Commonwealth. Armed with a battery of federal and state laws, Puerto Rico alleged that the Navy’s activities in and around Vieques cause irreparable injury to the island’s ecology and its inhabitants. More specifically, Puerto Rico claimed that the Navy’s operations pollute the island’s air and its coastal waters, threaten the habitats of endangered species and many of the island’s irreplaceable historical sites, and diminish the productivity of the island’s fishing and agricultural resources. The Commonwealth also claimed that the Navy transferred certain training activities from the island of Culebra to Vie-ques, contrary to congressional and executive directives. After an extensive trial, the district court ordered the Navy to obtain a NPDES permit, prepare an environmental impact statement and obtain a determination on the eligibility of certain historical and prehistorical sites on the island for inclusion in the National Register of Historic Places. The court otherwise ruled in the Navy’s favor and refused to enjoin the training operations. Barcelo v. Brown, 478 F.Supp. 646 (D.P.R.1979). Before turning to the issues raised by Puerto Rico on appeal, we briefly sketch some basic characteristics of the island and the Navy’s activities. Vieques The island of Vieques lies six miles off the southeastern coast of Puerto Rico and approximately nine miles directly south of the island of Culebra. Situated on an east-west axis, Vieques is nearly twenty miles long with an average width of four miles. Of a total area of approximately 33,000 acres, the Navy owns 25,231.72 acres, or slightly more than 76% of the island. Certain features of the island’s ecology deserve particular mention. Fringe and offshore coral reefs are found in the coastal waters of Vieques, primarily off the northern, eastern and southern shores. Seagrass flourishes along the ocean floor adjacent to the coasts; the largest concentration runs from Punta Caballo on the north coast eastward around Punta Arenas to the southwest coast. There are also several large mangrove stands located along the shores; in the west near Punta Arenas and in the south around Puerto Mosquito, Puerto Ferro and Ensenada Honda. Three of the seven bioluminescent bays known to exist in the world are located along the southern coast — Puerto Mosquito, Puerto Ferro, and Bahia Tapón. Of the animal species living on Vieques, six are designated by the U. S. Fish and Wildlife Service as either “endangered” or “threatened.” 50 C.F.R. § 17.11. The “endangered” are the manatees, the brown pelicans, the leatherback turtles and the hawksbill turtles. Considered “threatened” are the green turtles and the loggerhead turtles. At least some of the nesting sites favored by the pelicans and the turtles are located within the areas where the Navy conducts its training operations. The human history of the island dates back at least to the ninth century A.D. At that time, Vieques served as a transit stop in the migration of Arawak Indians from the Orinoco Basin in South America (Venezuela) to Puerto Rico and Hispaniola (Haiti and the Dominican Republic). At the time of Columbus’ “discovery” of Vieques in 1493, the island was used by the Carib Indians as a temporary base from which they carried out raids against the people of Puerto Rico. Spain’s movement into the Caribbean during the sixteenth century resulted in the first permanent habitation of Vie-ques by Indians who sought to escape the Spanish occupation of Puerto Rico and St. Croix. Although Spain apparently never attempted to colonize Vieques, it periodically sent military expeditions to the island throughout the seventeenth and eighteenth centuries to maintain its hegemony over the island. The early years of the nineteenth century mark the beginning of Vieques’ modern history. In 1816 colonists from St. Croix and St. Thomas established the first livestock ranches, thus beginning what is today the island’s primary agricultural activity. Soon thereafter, one of the colonists organized the construction of a fort at Isabel Segunda. In addition to ranching, the economy of Vieques at this time involved timber harvesting for export to the Virgin Islands, subsistence farming and fishing. By the second half of the century, sugar cane had become the leading cash crop. After the Spanish American War of 1898, Vieques, together with the rest of Puerto Rico, became a Territory of the United States. The island’s economy continued to be dominated through the early 1940’s by sugar cane cultivation, ranching, and fishing. Since the mid 1940’s, however, the sugar cane industry has declined to a point where it is of no current importance to the island. Thus, the islanders now derive their livelihood from the same sources relied upon by their ancestors more than one hundred fifty years ago — fishing, subsistence farming and ranching. During the early 1940’s the Navy acquired title to most of its present holdings on Vieques. As a result of these acquisitions, civilians now occupy an area of about 7,000 acres, bounded on both the east and the west by Navy property. The present population distribution reflects the island’s economy. Of a total population of approximately 8,000, close to 5,000 people live in a rural environment outside the two coastal towns. Located on the northern coast' of the civilian sector is the capital, Isabel Segunda, which has between 2,400 and 2,500 inhabitants. Esperanza, the island’s other town, located on the southern coast, has a population of approximately 600. Navy Operations on Vieques The Naval Ammunition Facility (NAF) encompasses the entire area of Vieques west of the civilian zone. The Navy uses the facility for deep storage of conventional ammunition. Ships delivering the ordnance dock at Mosquito Pier, located on the northern coast of the NAF. From there, it is transported by truck to bunkers distributed throughout the NAF. Most of the ammunition is destined for off-island use by the Navy, the Marines and the Puerto Rican National Guard. Occasionally, ammunition is transferred overland from the NAF to the ground maneuver area located east of the civilian zone. The Navy’s installations on the eastern half of Vieques are part of a large military complex known as the Atlantic Fleet Weapons Training Facility, headquartered at Roosevelt Roads Naval Station in Ceiba, Puerto Rico. The facility consists of four firing ranges of which only two are related to Vieques. The outer range, a large area of ocean, at its closest points to Vieques lies thirty-five miles to the north and twenty miles to the south. Within this range, the Navy conducts exercises in ship to ship weapons fire, ship to air missile fire and air to air weapons fire. The underwater range, located off the western shore of St. Croix, involves training in three dimensional tracking of surface and underwater objects. The electronic warfare range is a network of “threat platform” simulators located in Puerto Rico and nearby islands. These are used to train shipboard and airborne electronic warfare teams and provide tactical electronic order of battle support for operations conducted on the other ranges. One simulator is positioned at the western end of Vieques atop Monte Pirata. Until recently, the inner range consisted of air to ground bomb and missile targets and naval gunfire support targets on Culebra, and air to ground, artillery and naval gunfire support targets on Vieques. In 1975, however, the Navy ceased its Culebra operations. Thus, the Vieques installations now comprise the entire inner range. The inner range is divided into four distinct areas. The ground maneuver area (GMA) extends from the civilian sector eastward for approximately seven miles to a cattle fence which runs the width of the island. Located at the southwestern corner of the GMA is Camp Garcia, a Marine Corps camp which, although able to accommodate several thousand troops, is occupied by one marine. The principal use of the GMA is for Marine amphibious landings. These are conducted throughout the year, primarily on the southern beaches between Punta Conejo and Punta Negra. A typical landing will require the use of large attack transports from which are launched the landing craft and amphibious tracked vehicles. These smaller craft carry troops, tanks and other equipment to the beaches. Once landed, the troops perform maneuvers throughout the GMA, which at times include artillery fire. Upon completion of the land exercise the troops embark from the beaches and return to the attack transports. An amphibious landing usually is accompanied by low-level support flights by fixed wing jet aircraft and helicopter gunships. An amphibious exercise may involve anywhere from two to twenty thousand troops; it may be independent of other inner range operations, or it may be part of a single large-scale maneuver in concert with the Navy’s sea and air forces. The surface impact area (SIA) begins about one mile east of the cattle fence and extends approximately two and one-half miles east to a “firebreak” designated as the western friendly front line. Artillery training, strafing and air to ground bombing, the latter two using inert ammunition only, occur within this area. The artillery is positioned near the western border of the SIA — about six miles from the nearest point in the civilian zone — loaded with live ammunition and fired at targets located in the eastern part of the SIA. Air to ground bombing is directed at two bullseye targets. Target # 2 is situated about one-half mile east of the SIA’s western boundary; target # 1 is on a point along the northern half of the western friendly front line. The strafing targets are located at the southern most point of the firebreak. The Air Impact Area (AIA), also known as the Close Air Support Zone (CAS), runs from the western friendly front line eastward for about two miles to the eastern friendly front line. This area, in which live ammunition is used, contains as targets mockups of two surface to air missile sites, an airstrip, a fuel farm and an ammunition dump. There are also two remote controlled moving targets inland and six naval gunfire support targets along the southern coast of the AIA. No targets exist in the area between the eastern friendly front line and Punta Este, the easternmost point of Vieques. An infrequently used water target lies about one mile east of this point. Air and sea operations in the inner range occur about 200 days out of a year, usually between 7:30 a. m. and 10:00 p. m. Operations are directed by observers positioned in an observation post on Cerro Matías, located in the southeastern part of the SIA. Aircraft taking off from the Roosevelt Roads airfield or a carrier located north of Vieques first fly north of Vieques and then circle around the eastern coast to approach the range from the south. Aircraft taking off from carriers located south of Vieques use a straight approach from that direction. Any aircraft carrying ammunition, whether live or inert, is prohibited from flying over the civilian area. As best as can be estimated, an aircraft training in the range would ordinarily come no closer than within five and three-quarters miles of the civilian zone. Ship to shore gunnery directed at the naval gunfire support targets in the AIA is also restricted to a southern approach. When firing, the ships are usually positioned between three and eleven miles off the southern shore of the AIA. All ship to shore firing occurs within a designated danger zone, which permits the Navy to prohibit all civilian navigation while the area is in use. The Issues on Appeal Puerto Rico challenges the district court’s rulings on the following issues: 1. Did the Navy “transfer” training activities from Culebra to Vieques in violation of certain Military Construction Authorization Acts? 2. Does the dropping of ordnance into the coastal waters of Vieques violate the Puerto Rico Water Quality Standards, contrary to the requirements of § 313 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1323(a)? 3. Did Congress intend to permit a private cause of action to enforce § 13 and § 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 407, 409? 4. Does the danger zone regulation promulgated by the Corps of Engineers, 33 C.F.R. § 204.234, unreasonably restrict the food fishing industry of Vieques contrary to 33 U.S.C. § 3? 5. Do the Navy’s training activities generate such noise as to create a public nuisance in violation of Puerto Rico’s criminal nuisance statute, P.R.Laws Ann. tit. 33, § 1365,"and the requirements of § 4 of the Noise Control Act, 42 U.S.C. § 4903(a)? 6. Do the Navy’s activities on Vieques violate the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543? 7. Does the Navy’s survey of historical sites on Vieques satisfy the requirements of § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, Executive Order 11593 and 36 C.F.R. § 800.4? 8. Should the Navy be enjoined from conducting training operations on Vieques? After oral argument, we requested that the parties submit supplemental briefs on the question of whether any of the plaintiffs have a right of action to challenge the alleged violations of certain military authorization acts and executive branch directives related to training activities on Culebra and Vieques. With the benefit of briefs from both parties, we first address that question. Right to Challenge the Alleged Transfer of Military Training Activities Puerto Rico alleged that the Navy “clandestinely” has transferred training operations from Culebra to Vieques, contrary to the “clear command” of the Military Construction Authorization Acts of 1971, 1972 and 1974. The district court rejected this contention, ruling that the statutes do not establish an enforceable mandate, and expressed serious doubt that a transfer of activities actually had occurred. On appeal, Puerto Rico argues that the trial court’s narrow view of the acts ignores Congress’ “carefully crafted” statutory “procedure” intended to protect the interests of the Commonwealth; Puerto Rico also challenges the court’s finding that a transfer did not in fact occur. Our initial task is to ascertain whether Congress intended to permit the Commonwealth, or any other party, to seek judicial enforcement of the three authorization acts. As with any question of statutory interpretation, we begin with an examination of the language of the statutes and the related executive branch directives. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). In October 1970 Congress adopted the Military Construction Authorization Act of 1971, Pub.L.No.91-511, 84 Stat. 1204. Section 611(a) of the Act directed the Secretary of Defense “to prepare a report of the weapons training now being conducted in the Culebra complex .... ” The Secretary was ordered to evaluate “all possible alternatives, geographical and technological,” and make “recommendations for ... moving all or part of such activities to a new site or sites,” giving particular consideration to six factors: (1) the safety and well-being of the people who live on Culebra; (2) the natural and physical environment of Culebra and adjoining cays and their recreational value; (3) the development of a sound, stable economy in Culebra; (4) the unique political relationship of Culebra and Puerto Rico to the United States; (5) the operational readiness and proficiency of the Atlantic Fleet; and (6) national security. Section 611(b) provided that the report was to be prepared in consultation “with the people of Culebra, the Government of Puerto Rico, and all appropriate federal agencies.” Finally, the Navy was directed to “avoid any increase or expansion of the present weapons range activities in the Culebra complex and, wherever possible, without degrading the activities, to institute procedures which will minimize interference with the normal activities and the solitude of the people of Culebra.” On April 1, 1971, Secretary of Defense Laird transmitted to Congress and the President the mandated report. In a press release issued the same day, the Secretary announced that he had ordered the Navy “to institute immediately a number of actions which will enhance the safety and well being of the residents of Culebra and reduce the irritants to them resulting from Navy training.” The Secretary also expressed his intention to reappraise the situation by the end of 1972 and make a final decision about where to relocate the Culebra operations. With the enactment in 1971 of § 207 of the Military Construction Authorization Act of 1972, Pub.L.No.92-145, 85 Stat. 394, Congress directed the Secretary of Defense to prepare a new study of “the most advantageous alternative [to the Culebra training complex] on the basis of investigations which consider cost, national security, the operational readiness and proficiency of the Atlantic Fleet, the impact on the environment, and other relevant factors.” On December 27, 1972, Secretary Laird submitted his report and recommendations to the President and Congress. In an accompanying letter he identified Vieques as the best of the available alternative sites but concluded “that the Culebra complex offers such advantages over all other alternatives studied that none of these other alternatives can be considered reasonable.” Relocation to Vieques “would significantly reduce the capability of the Inner Range and would transfer the training activity from an island with 700 inhabitants to one with 7,000 inhabitants,” an “[im]prudent course of action.” Thus, he recommended “that the Navy retain its training targets in the Culebra complex,” yet “remain abreast of developments that would modify ... the Navy’s need” for the Culebra range. In the following spring of 1973, Secretary Laird’s successor, Elliot Richardson, informed the Secretary of the Navy that it was in the Defense Department’s long-range interest to transfer the Culebra training activities to the islands of Desecheo and Monito by July 1,1975. This relocation was to occur, however, only after Congress had appropriated the necessary funds and the Navy had achieved a “satisfactory overall arrangement with the government of Puerto Rico for carrying out the proposed move and for insuring the long-term continuation of the Atlantic Fleet Weapons Range and the Fleet Marine Force training area.” Congress responded to this change in the Defense Department’s position with the enactment in 1973 of the Military Construction Authorization Act of 1974. Pub.L.No. 93-166, 87 Stat. 668. Section 204(a) of the Act authorized the appropriation of $12,-000,000 to facilitate the relocation of the Culebra training operations. But § 204(b) “expressly conditioned [the relocation] upon the conclusion of a satisfactory agreement to be negotiated by the Secretary of the Navy ... with the Commonwealth of Puerto Rico and reported to the Committees on Armed Services of the Senate and the House of Representatives prior to execution of such agreement.” Congress directed that “the agreement shall provide, among other things, that the Commonwealth of Puerto Rico shall insure that (1) Commonwealth lands suitable for carrying out operations of the type referred to in subsection (a) will be made available for the long-term continued use of the Atlantic Fleet Weapons Range and Fleet Marine Forces training areas by the Navy, including, but not limited to, present areas and facilities on the island of Vieques .... ” Despite the absence of an agreement between the Navy and Puerto Rico, on June 22, 1974, Secretary of State Kissinger, acting as National Security Adviser, informed the Secretary of Defense of the president’s decision to terminate the training activities on Culebra by July 1,1975, and those on the Culebra Cays by December 31, 1975. Kissinger directed the Secretary of Defense “to consider and select alternative sites for the weapons range activities” and stated that “[t]he selection of the new site, if it is in Puerto Rico, will be contingent on its being acceptable to the Commonwealth .... ” The Navy has ceased its operations on Culebra and negotiations continue over the selection of a new site. When Congress has not expressly provided for private enforcement of a statute, there is little likelihood that the legislative history will disclose whether Congress nonetheless intended that result. Cannon v. University of Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979). Thus, the statutory language becomes the best evidence of Congress’ intent. As the Supreme Court recently recognized, in each of its earlier cases that did imply a private cause of action the statute in question either conferred a federal right on private parties or proscribed certain conduct. Touche Ross & Co. v. Redington, 442 U.S. at 569, 99 S.Ct. at 2485. Implicit in this observation is that the absence of statutory language that either prohibits some action or confers rights weighs heavily against implication of a private cause of action. Neither the Military Construction Authorization Act of 1971 nor the 1972 Act creates rights or proscribes conduct of any relevance to this case. The 1971 Act’s partial restriction of the Navy’s activities in Culebra was unrelated to Navy operations on the other islands of the Commonwealth. In contrast, the 1974 Act made the relocation of the Navy’s Culebra operations contingent on the execution of an agreement between the Navy and Puerto Rico. But even if we characterize this as a limited prohibition, it appears from the language of the pertinent provision and the accompanying committee report that the condition was imposed to benefit the Navy rather than Puerto Rico. Section 204(b) required that the agreement contain assurances from the Commonwealth “that Commonwealth lands suitable for carrying out operations ... will be made available for the long term continued use of the ... Navy, including, but not limited to, present areas and facilities on the island of Vieques .... ” Not only does this language impose an obligation on the Commonwealth rather than the Navy, but it forecloses negotiation over the training areas and facilities on Vieques. In the same vein, the joint conference report that accompanied the final draft of the Act states: The restrictive language in Section 204 is a result of discussion with the Governor and others and the conferees believe it provides sufficient protection to the Navy upon relocation of ship-to-shore gunfire operations from Culebra to the other Islands mentioned. H.R.Rep.No.634, 93d Cong., 1st Sess. 35 (1973). If Congress had intended to create a private right of action, it would have provided first for a right or duty upon which private enforcement could be based. But the authorization acts leave Puerto Rico without a place to hang its hat; the statutes grant no right to the Commonwealth, nor do they impose an obligation on the Navy for the benefit of the Commonwealth. Puerto Rico argues that the authorization acts reflect Congress’ intention to obligate the Navy to confer with other parties, particularly the Commonwealth, prior to any transfer of the Culebra operations. As part of that argument, Puerto Rico maintains that Congress anticipated that the agreement mandated by the 1974 Act would provide for “other things” beyond the Commonwealth’s assurances of an adequate alternative site. The Commonwealth contends that this phrase undoubtedly was intended to encompass provisions for the protection of its environment and the welfare of its citizens; Congress impliedly sought to prevent a recurrence of the ecological and political problems created by the Navy’s use of Culebra. Puerto Rico concludes that as the party most to be benefitted from this inferred congressional prohibition of unilateral Navy action, it must be granted a cause of action to vindicate Congress’ intent. Other than the phrase “among other things,” however, Puerto Rico is unable to direct us to one provision in any of the three acts that establishes the mandate it seeks to enforce. Instead, it relies primarily on the “necessary” inferences to be drawn from the statutes and the executive branch directives; Puerto Rico interprets the latter documents to corroborate its position. But the expansive inferences drawn by Puerto Rico, which we do not find to be free from doubt, must be contrasted with the limited nature of the legislation. The 1971 Act and the 1972 Act, as related to Vieques, directed the Secretary of Defense to prepare two feasibility reports; that is all. The 1974 Act did mandate execution of an agreement prior to relocation from Culebra. So far as the statute provides, however, we know only that Congress intended by this condition to protect the Navy’s training capacity. Congress may have had a clear collective understanding of what “other things” were at issue, and the preferred resolution, but it chose not to reflect this in its 1974 legislation. Instead, it left to the parties the task of hashing out an agreement, subject to congressional, not judicial, review. The absence of any enforcement scheme in the authorization acts reinforces our conclusion that Congress intended that the controversy surrounding the Navy’s training activities in Puerto Rico be resolved in the political sphere. Implication of a private cause of action would be contrary to the apparent intent of Congress, and, given the lack of a judicially enforceable mandate, a futile gesture. Puerto Rico relies on the various executive branch directives principally to corroborate its interpretation of the authorization acts. As a second line of argument, however, it maintains that the directives have independent significance as sources of a private right of action. Unlike the situation presented by the three statutes, at least one of the directives contains a provision which ordered the Navy to obtain the Commonwealth’s agreement prior to a relocation of the Culebra operations. In 1974 National Security Adviser Kissinger, on behalf of the President, directed the Secretary of Defense to end the Culebra operations and select a new site contingent on its being acceptable to the Commonwealth. Puerto Rico contends that this order imposed a legal obligation on the Navy that is enforceable by the Commonwealth. We conclude, however, that the President’s order does not have the force and effect of law and thus is not enforceable by an implied private cause of action. The Commonwealth attempts to cloak the 1974 presidential order with statutory authority, characterizing it as in furtherance of the 1974 Act. But in fact the order essentially ignored what we perceive to be the intent of Congress as evidenced in the Act. Rather than require the Commonwealth to insure alternative sites prior to a relocation of the Culebra operations, as Congress mandated, the President ordered termination of those operations without any prior assurances from Puerto Rico. Moreover, the order granted the Commonwealth a veto over the Navy’s choice of an alternative site; nothing in the Act suggests that Congress intended such a role for the Commonwealth. When the President issued this order, he necessarily relied not on any statutory authority, but on his constitutional authority as the chief executive and the commander in chief of the armed forces. As such, the President has the power to direct the activities of the military but he is without the authority to legislate. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-88, 72 S.Ct. 863, 867, 96 L.Ed. 1153 (1952). Without some basis in an act of Congress, the directive cannot constitutionally be invested with the status of law, see Independent Meat Packers Ass’n v. Butz, 526 F.2d 228, 234-36 (8th Cir. 1975), thus obviating a decision on the question of an implied cause of action. The Commonwealth’s reliance on section 10 of the Administrative Procedure Act as an alternative source for a cause of action founders upon the limitations inherent in the Act. Section 10(a) of the APA provides 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.” 5 U.S.C. § 702. But assuming that the Navy did “transfer” the Culebra activities to Vieques, that action is not “agency action.” Section 2 of the APA defines agency action to include “the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act .... ” Id. § 551(13). Each of the types of action included within this definition is separately defined in § 2. See id. § 551(4), (6), (8), (10), (11). All but one of these specific definitions refer to one of two forms of regulatory activity — agency rulemaking or agency adjudication. “Sanction” is defined to include, in addition to regulatory activity, “any agency ... destruction, taking, seizure or withholding of property.” Id. § 551(10). The Navy’s transfer of military training activities did not remotely involve rulemaking or adjudication, nor, at least in this case, did it result in the “destruction, taking, seizure or withholding of property.” We recognize that Congress intended the APA to span a “broad spectrum of administrative actions.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). Nonetheless, the language of § 2 evidences that Congress intended to reach only actions that are administrative, and we conclude that the challenged activities of the Navy do not fall within that spectrum. But see Standard Oil Co. of Ca. v. F.T.C., 596 F.2d 1381, 1384-85 (9th Cir. 1979). Even if we were to accept that the “transfer” constituted agency action, we would characterize it as action “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and thus unreviewable. This exception to § 10’s broad entitlement to judicial review applies only “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), quoting S.Rep.No. 752, 79th Cong., 1st Sess. 26 (1945). See Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). The question before us presents one of those rare instances. The Commonwealth has cited as the applicable constraint on the Navy’s training activities the Military Construction Authorization Acts of 1971, 1972 and 1974. But, as we have already explained in some detail, those statutes do not provide the judiciary with any “law to apply.” We affirm the district court’s ruling that with respect to the alleged transfer of military training activities from Culebra to Vie-ques, Puerto Rico has failed to state a claim upon which relief can be granted. Pollution of the Coastal Waters 1. Puerto Rico Water Quality Standards Section 313 of the Federal Water Pollution Control Act Amendments subjects every “department, agency, or instrumentality of the executive, legislative and judicial branches of the Federal Government” to “all Federal, State, interstate, and local requirements ... respecting the control and abatement of water pollution in the same manner and to the same extent as any nongovernmental entity.” 33 U.S.C. § 1323(a). Puerto Rico alleged that the Navy, by dropping ordinance into the waters of Vieques, has violated several water pollution control regulations promulgated pursuant to the Commonwealth’s Water Pollution Control and Public Policy Environmental Control Acts. The district court rejected this allegation, finding no violation of the water quality standards it deemed applicable to the Navy’s activity. 478 F.Supp. at 664-69. On appeal, Puerto Rico asserts that, contrary to the trial court’s opinion, there are three germane water quality standards that the Navy has violated. We consider each separately. Article 2.1.1 of the Puerto Rico Water Quality Standards provides: The waters of Puerto Rico shall not contain materials attributable to discharges that will settle to form objectionable deposits. Nor will they contain floating debris, scum, oil and other floating materials attributable to discharges in amounts sufficient to be unsightly or deleterious. Puerto Rico argues that the trial court erred in its interpretation of 2.1.1 by according determinative significance to the term “discharges,” contrary to the purposes of the regulations and statute. We cannot agree. Article 2.1.1 expressly and exclusively addresses materials “attributable to discharges,” which are defined as “[t]he outflow of wastewater from any ... source into receiving waters.” Article 1. Turning to the definition of wastewater, we are directed to the definition of municipal wastes, which is “[wjater carrying human and animal wastes from homes, buildings, industrial establishments and other places alone or in combination with industrial wastes.” Id. No fair reading of this language warrants the conclusion that Article 2.1.1 applies to the bombing and shelling of coastal waters. In contrast, the prohibitions annunciated in Article 2.1.3 are not limited in application to materials attributable to discharge. Article 2.1.3 directs that “[t]he waters of Puerto Rico shall not contain substances in concentrations or combinations which produce undesirable physiological responses in human, fish or other animal life, and plants.” More specifically, subsection (A) establishes with respect to the coastal waters the “maximum allowable concentrations” of iron and certain other inorganic substances. Puerto Rico contends that the district court ignored the general prohibition of “substances ... which produce undesirable physiological responses” and erred in its finding that the Navy’s activity did not result in a violation of the maximum allowable concentration of iron. The weakness in Puerto Rico’s first contention is that it reads into Article 2.1.3 an unjustifiable breadth in scope. Article 2.1.3 speaks not simply of “substances,” which, admittedly, could be construed to encompass solids such as spent ordinance as well as other refuse. Rather, the regulation addresses “concentrations” or “combinations” of substances. Those terms appear to refer in this context to the presence of chemicals and chemical processes rather than that of solids such as discarded ordnance. For example, the “maximum allowable concentrations” established by 2.1.3 are expressed in terms of milligrams per liter, hardly a measurement appropriate to shell casings or bomb remnants. And those limitations are devoted to the specification of allowable concentrations of minerals and pesticides, not those of solids. We conclude that the apparent thrust of this regulation is the control and abatement of chemical pollution. We therefore agree with the district court that the sole issue under Article 2.1.3 is whether the Navy’s used ammunition caused concentrations of iron in certain areas of the coastal waters to exceed the specified maximum allowable concentration. With respect to this question, we find nothing in the record to contradict the trial court’s finding. Although it appears fairly clear that the concentrations of iron in some areas near the target range do exceed the Article 2.1.3(A) standard, Puerto Rico failed to establish that ordnance dropped by the Navy caused these excessive concentrations of iron. Thus, the district court correctly found no violation of Article 2.1.3. Finally, we turn to the broadly phrased prohibition of Article 4 of the Water Quality Standards. Article 4.1.1 provides that “[n]o person shall cause or permit the pollution of the waters of Puerto Rico .... ” Pollution is defined in Article 1 as [altering the natural characteristics of a body of water so as to make it in any way harmful or noxious to human health, or to that of animals, or plants, or rendering it ill-smelling or impure or altering adversely its physical, chemical, microbiological or radioactive condition, in such a way as to interfere with enjoyment of life or property or violate the standards of purity established by this Regulation. Puerto Rico argues that the district court failed to apply Article 4.1.1 as a “generic” prohibition distinct from the specific standards set forth in Article 2. We conclude, however, that Article 4.1.1 does not constitute a “standard ’ as referred to in Puerto Rico’s Water Pollution Control Act. The statutory prohibition of pollution makes it “unlawful for any person ... to throw, discharge, pour or dump . .. into the waters ... any organic or inorganic matter capable of polluting” these waters “in such a manner as to place them out of the minimum standards of purity that the [Board on Environmental Quality] may establish .. .. ” P.R.Laws Ann. tit. 24, § 595. Similarly, the statute defines pollution as “making [the waters] in any way noxious ... all according to the permissible standards of purity ... established as provided herein.” P.R.Laws Ann. tit. 24, § 591(i). This language evidences the legislature’s judgment that the general prohibition of pollution is not enough; standards explicating what pollution is must be provided. The statute anticipates administrative specification of its broad proscription in the form of standards by which particular actions may be evaluated. But Article 4.1.1 merely rephrases the general statutory command; it offers no clarification of that language, nor, unlike Article 2, does it provide any additional guidance to those who must conform to the law. To accept 4.1.1 as a “standard” would render meaningless the statutory requirement that the regulations promulgated thereunder further define and clarify the general statutory proscription of pollution. Because Article 4.1.1 is not a standard as contemplated by the authorizing statute, we decline to give it effect separate from the actual standards of the Regulation. We affirm the district court’s conclusion that the Navy has not violated the applicable Puerto Rico Water Quality Standards or 33 U.S.C. § 1323(a). 2. The Rivers and Harbors Act of 1899 The second phase of Puerto Rico’s attempt to halt the Navy’s dropping of ordnance into the coastal waters of Vieques rests primarily on an alleged violation of Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407. As a complement to that claim, Puerto Rico alleged that the Navy’s sinking of the U.S.S. Killen in the Bahia Salinas del Sur violated Section 15 of the same act, 33 U.S.C. § 409. The district court ruled that neither § 13 nor § 15 give rise to a private cause of action for injunctive relief, 478 F.Supp. at 669-72. We affirm that decision with respect to § 13, but vacate the court’s ruling with respect to § 15. Section 13 makes it unlawful to throw, discharge or deposit “any refuse matter ... into any navigable water of the United States ...” without a permit from the Administrator of the Environmental Protection Agency. 33 U.S.C. §§ 407, 1342(a). The “comprehensive language” of this prohibition reflects a broad statutory purpose — the protection of navigation and the prevention of pollution. United States v. Standard Oil Co., 384 U.S. 224, 228-30, 86 S.Ct. 1427, 1429-1430, 16 L.Ed.2d 492 (1966). See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). Under § 17 of the Act, it is the duty of the Department of Justice to “conduct the legal proceedings necessary to enforce the provisions” of § 13.33 U.S.C. § 413. Although the Act expressly provides for criminal penalties only, id., courts have recognized the federal government’s implied authority to seek injunctive relief for a violation of § 13. United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). See Wyandotte Transp. Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972). Puerto Rico argues that the broad purposes of § 13 also warrant the implication of a private cause of action for injunctive relief. We undertake an analysis of this claim mindful of the Supreme Court’s recent adherence “to a stricter standard for the implication of private causes of action ....” Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 2490, 61 L.Ed.2d 82 (1979). The touchstone of this inquiry is whether Congress intended that the statute be enforced by private parties. Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. at 568, 99 S.Ct. at 2485. That intent usually can best be ascertained by addressing four factors. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). First, it must be determined from the statutory language “whether the statute was enacted for the benefit of a special class of which the plaintiff is a member.” Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). The duties imposed by § 13 benefit the public at large; nothing in the statutory language identifies any special class as the principal intended beneficiary. Rather, if there is a principal beneficiary of § 13’s proscription, it is the “Government itself.” Wyandotte Transp. Co. v. United States, 389 U.S. at 201, 88 S.Ct. at 385-386. With a statute such as § 13, one which creates “duties on the part of persons for the benefit of the public at large,” the Supreme Court “has been especially reluctant to imply causes of actions.” Cannon v. University of Chicago, 441 U.S. at 691-92 n.13, 99 S.Ct. at 1954-1955 n.13. The second factor requires an investigation of the legislative history. As the Supreme Court has recognized, however, little is likely to be learned from the legislative history of a statute which is silent on the question of private enforcement. Id. at 694, 99 S.Ct. at 1956. The debates and reports preceding § 13’s enactment at most evidence that Congress had no intent with respect to this question. See Touche Ross & Co. v. Redington, 442 U.S. at 571, 99 S.Ct. at 2486. The third factor is whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy ....” 441 U.S. at 688-89 n.9, 99 S.Ct. at 1953 n.9. Section 17 of the Act provides that “[t]he Department of Justice shall conduct the legal proceedings necessary to enforce” § 13.33 U.S.C. § 413. The only role expressly created for private persons in the enforcement scheme is as informants; section 17 provides for the payment of one-half of a levied fine “to the person or persons giving information which shall lead to conviction.” Id. § 411. In one respect, a private cause of action is clearly consistent with the legislative scheme. It would positively augment the government’s enforcement efforts, thus better effectuating the ultimate objectives of § 13. But notwithstanding the remedial advantages to be gained from such implication, the language of these provisions establishes that Congress vested in the federal government the primary responsibility for enforcement. To the extent that this decision involved factors other than the protection of navigation and the prevention of pollution, implication of a private cause of action could very well frustrate Congress’ intent. See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d at 89. Finally, we must consider “whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States.” Cannon v. University of Chicago, 441 U.S. at 709, 99 S.Ct. at 1964. The federal interest in navigation and the control of pollution cannot be doubted. Congress’ power under the Commerce clause gives that body virtually plenary authority over the navigable waters of the United States. See, e. g., Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 18 L.Ed. 96 (1865); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). Since the enactment of the Rivers and Harbors Act in 1899, Congress has expanded federal efforts to control the pollution of navigable waters with the adoption of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251-1376. The enactment in 1969 of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, underscores the federal commitment to combat pollution. We perceive no federalism-comity problems militating against the implication of a private cause of action under § 13. Of the four factors we have analyzed to ascertain Congress’ intent, only the last clearly favors implication of a private cause of action. Although we recognize that private enforcement of § 13 might be conducive to the protection of navigation and the control of pollution, “[t]he ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme ....” Touche Ross & Co. v. Redington, 442 U.S. at 578, 99 S.Ct. at 2490. What evidence there is does not warrant a conclusion that Congress intended to create a private cause of action under § 13. Section 15 of the Rivers and Harbors Act makes it unlawful “to voluntarily, or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels .... ” 33 U.S.C. § 409. Puerto Rico maintains that the Navy’s intentional sinking of a target ship, the U.S.S. Killen, in the Bahia Salinas del Sur, violated this prohibition. We conclude that Puerto Rico is without standing to assert this claim. “The essence of the standing inquiry is whether” the plaintiff has alleged “a ‘distinct and palpable injury’ ... ‘fairly traceable’ ... to the challenged conduct.” Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73, 98 S.Ct. 2620, 2630, 57 L.Ed. 595 (1978) (citations omitted). Puerto Rico failed to allege that the sinking of the U.S.S. Killen resulted in any form of harm to the island or its inhabitants. Nor does the relief requested — an injunction against the Navy’s training activities on Vieques— implicitly suggest the harm which Puerto Rico might have alleged. An injunction against current Navy activities hardly would remedy any injury to the environment or navigation caused by a sunken vessel. Removal of the ship would be the appropriate remedy for harm resulting from the ship’s presence, but Puerto Rico did not request that relief. The failure to allege a distinct and palpable injury renders Puerto Rico’s claim under § 15 nonjusticiable. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Thus, we vacate the district court’s decision with respect to this claim, and remand with instructions to dismiss for lack of jurisdiction. Restrictions on Fishing “In the interest of the national defense, and for the better protection of life and property,” section 1 of the Army Appropriation Act of 1918 authorizes the Secretary of the Army “to prescribe such regulations as he may deem best for the use and navigation of any portion or area of the navigable waters ... under the jurisdiction of the United States endangered or likely to be endangered by Artillery fire in target practice or otherwise .... ” 33 U.S.C. § 3. The sole express restraint imposed by the statute on the Secretary’s power provides “that the authority conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry .... ” Id. Pursuant to this authority, the Secretary has promulgated danger zone regulations individually tailored to the particular area of water in question. See 33 C.F.R. § 204. In 1974 the Secretary of the Army promulgated the following regulation: Carribean Sea and Vieques Sound in vicinity of Eastern Vieques, bombing and gunnery target area. (a) The Danger Zone. From Punta Conejo on the south coast of Vieques at latitude 18°06'30", longitude 65°22'33"; thence to latitude 18°03'00", longitude 65°21'00"; thence to latitude 18o03'00", longitude 65°15'30"; thence to latitude 18°11'30", longitude 65°14'30"; thence to latitude 18°12'00", longitude 65°20'00"; and thence to Cabellos Colorados on the north coast of Vieques at latitude 18°09'49", longitude 65°23'27", (b) Regulations. (1) It will be open to navigation at all times except when firing is being conducted. At such times no surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping or ordnance the danger area will be patrolled to insure that no watercraft are within the danger area. Any watercraft in the vicinity will be warned that practice firing is about to take place and advised to vacate the area. (2) The regulations will be enforced by the Commander, Caribbean Sea Frontier, San Juan, P.R., and such agencies as he may designate. 33 C.F.R. § 204.234 (1979). At trial, Puerto Rico contended that the Navy’s use of this area for bombing and gunnery practice unreasonably interfered with the island’s food fishing industry, in violation of 33 U.S.C. § 3. In rejecting this claim, the district court ruled that: The Plaintiffs herein have presented absolutely no evidence that Defendant Navy has impermissibly or unilaterally expanded the areas authorized as a danger zone (33 C.F.R. § 204.234) ... The navigable waters contiguous to Defendant Navy’s weapons training range at Vieques are navigable waters of the United States, and they have been restricted in exactly the manner intended by law and regulations. 478 F.Supp. at 701. On appeal Puerto Rico argues that the district court failed to consider the needs of Vieques’ fishing industry, in disregard of the statutory requirement that the danger zone regulation not unreasonably interfere with or restrict the food fishing industry. We conclude, however, that the only question properly before the court was whether the Navy had complied with the danger zone regulation. As is apparent from the statutory language, the provision against unreasonable interference with the food fishing industry applies to the Secretary of the Army’s exercise of his authority to prescribe and regulate. Assuming that the Navy has acted in accordance with 33 C.F.R. § 204.234, to decide whether the Navy has unreasonably interfered with fishing would necessarily draw into question the validity of the regulation under the enabling statute, 33 U.S.C. § 3. Yet Puerto Rico has not named the Secretary of the Army as a defendant in this case. Thus, if we, or the district court, were to define a standard of reasonableness for 33 U.S.C. § 3 and apply it to the facts of this case, we would do so in the absence of the agency responsible for the administrafive determination that 33 C.F.R. § 204.234 comports with the statutory command. None of the record relevant to the formulation of this regulation is part of the record in this case. Nor, of course, has the Secretary had the opportunity, at trial or on appeal, to defend the propriety of the regulation. Had the district court ruled on whether 33 C.F.R. § 204.234 unreasonably interferes with the food fishing industry, we would vacate that ruling for the reasons stated above. We conclude, however, that the court’s decision is only a determination that the Navy has complied with 33 C.F.R. § 204.234. We need offer no opinion on this because Puerto Rico has not challenged it on appeal. Noise Pollution In its complaint, Puerto Rico contended that the Navy’s training activities generate “shock waves and excessive noise that unreasonably interfere with the health and welfare of residents of Vieques .... ” It sought to enjoin these activities as a violation of the Commonwealth’s criminal nuisance statute, P.R.Laws Ann. tit. 33, § 1365, alleged to be applicable to the Navy’s operations through Section 4 of the Noise Control Act, 42 U.S.C. § 4903(b) (the Act). The district court denied the re-quest for an injunction, ruling that the Act does not apply because the nuisance statute does not establish noise control “requirements” as that term is used in Section 4. 478 F.Supp. at 675. Despite this ruling, the court proceeded to consider the evidence and determined that the noise attributable to the Navy’s activities does not interfere with the quality of life on Vieques. Id. at 680. We conclude that the district court was without jurisdiction to entertain Puerto Rico’s claim. A careful reading of the Noise Control Act’s citizen suit provision, section 12, 42 U.S.C. § 4911, discloses that Congress expressly created a private cause of action only with respect to the enforcement of federal noise control requirements. Subsection (a) permits “any person,” including a state, to bring suit in federal district court against any federal agency that has violated a “noise control requirement.” That term is defined in subsection (f) by reference to other sections of the Act, all of which concern the granting of regulatory powers to the Administrator of the EPA or the Secretary of the Treasury, and the enforcement of regulations promulgated thereunder. Section 12 has no provision for citizens’ suits to enforce a federal agency’s duty to comply-with state and local requirements regarding the control and abatement of environmental noise. Thus, Puerto Rico’s claim, premised on a violation of state law, cannot be maintained under § 12 of the Act, 42 U.S.C. § 4911. In. the absence of an alternative basis in federal law, the unavailability of § 12 warrants dismissal of this state law claim for lack of jurisdiction because it is otherwise barred by sovereign immunity. See United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). We recognize, however, that § 4, to the extent it subjects every federal agency to state noise control requirements, arguably permits suit against an officer of a federal agency for a violation of those requirements. If § 4 requires the Navy to comply with Puerto Rico’s criminal nuisance statute, this responsibility may be enforceable by an implied cause of action under § 4. We reach the latter question, however, only if we first determine that Puerto Rico’s nuisance statute establishes “requirements” that would trigger the application of § 4. The key issue, therefore, is the definition of “requirements.” As used in § 4 of the Noise Control Act, the term stands unexplicated by Congress or the courts. But the model from which § 4 was drawn, section 118 of the Clean Air Act (currently codified at 42 U.S.C. § 7604), has received intense scrutiny. Judicial interpretation of the term “requirement” as used in § 118, and Congress’ response to that interpretation, sheds considerable light on the definition of “requirements” as used in § 4. Section 118 of the Clean Air Act underwent its most important dissection at the hands of the Supreme Court in Hancock v. Train, 426 U.S. 163, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976). Two steps in the Court’s analysis are particularly apposite to the question before us. First, the Court’s reading of § 118’s legislative history disclosed that the various preliminary drafts and the committee reports used “requirements” interchangeably with “emission requirements” and “emission standards.” Id. at 188-89 & n.2, 96 S.Ct. at 2017 & n.2. Congress apparently understood “requirements” to refer to standards specifying the permissible emission levels for various point sources and pollutants. Though hardly conclusive, the court’s observation presents some evidence of the legislative use of the term in the pollution control context, and particularly in the drafting of the prototype for § 4. The second step in Hancock pertinent to our inquiry rested on the Court’s recognition of the close relationship between § 118 and § 304, the citizen suit provision of the Clean Air Act. 42 U.S.C. § 7604. “§ 118 establishes the duty of federal installations to comply with state ‘requirements,’ and § 304 provides the means of enforcing that duty in federal court.” 426 U.S. at 196, 96 S.Ct. at 2020. Section 304 restricts the area subject to enforcement by suit to emission limitations or standards, standards of performance, and compliance schedules. The Court concluded that the scope of the § 304 enforcement power defined the scope of the § 118 duties because “it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under § 118, the Congress would not make all those duties enforceable .... ” Id at 197, 96 S.Ct. at 2021. We recognize a similar relationship between the “requirements” of § 4 and those of § 12 of the Noise Control Act. The primary objective in our attempt to clarify the term “requirements” is to ascertain Congress’ intent and § 12 contains the sole legislative definition of that term in the Act. More importantly, that definition occurs in the provision for private enforcement of the Act. Section 12, unlike § 304 of the Clean Air Act, does not allow for suit by a state to enforce a state pollution .control requirement. Thus, unlike the scheme of the Clean Air Act, § 12 does not define specifically which state requirements are incorporated in § 4. But it does permit a state to bring suit against a federal agency for violation of certain federal requirements. Considered together, the federal requirements enforceable under § 12 are the best evidence of the type of noise control requirement that Congress intended to be enforceable by suit against a federal agency- Section 12 authorizes suit by a state to enforce “any noise control requirement,” as defined in subsection (f). 42 U.S.C. § 4911(a). That definition in turn refers to several provisions of the Act which provide for (a) standards, rules or regulations controlling the noise emissions of motor carriers, railroads and aircraft, id. §§ 4916, 4917; 49 U.S.C. § 1431, (b) labelling regulations, 42 U.S.C. § 4907, and (c) noise emission standards applicable to specified domestic and imported products, id. §§ 4905, 4908. From these various provisions of the Act we can abstract the type of legal control contemplated by the statutory term “requirement.” The appointed agency establishes a standard that sets forth, specifically, the allowable intensity, duration and character of sounds from a certain type of source, and then measures the noise emissions of such sources against that standard. See 40 C.F.R. Parts 201-205. This type of control relies on relatively precise standards capable of uniform application to similar sources of sound. We conclude that when Congress used the term “requirements” in the Noise Control Act, it was in reference to regulations of this type. The final question is whether Puerto Rico’s criminal nuisance statute embodies the kind of “requirements” with which the Navy must comply pursuant to § 4. The statute broadly proscribes as a public nuisance: Anything which is injurious to health, or is indecent or offensive to the senses, or is an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons[.] P.R.Laws Ann. tit. 33, § 1365. Although the criminal nuisance statute has not yet been subjected to judicial scrutiny, the Supreme Court of Puerto Rico has interpreted the similarly worded civil nuisance statute. It perceived as the essential purpose of that statute the maintenance of a balance between the defendant’s right to the free use of his property and the rights of others to the comfortable enjoyment of life or property: To strike that balance requires a case by case determination of the reasonableness of a defendant’s activity. See Casiano Sales v. Lozada Torres, 91 P.R.R. 473, 477-78, 482 (1964); Arcelay v. Sanchez, 77 P.R.R. 782, 790 (1955). This form of decisionmaking, peculiarly sensitive to the facts of a single case, permits no role for the type of specific, uniform standard characteristic of “requirements,” as described above. Thus, we conclude that Puerto Rico’s criminal nuisance statute falls outside § 4’s incorporation of “State ... requirements respecting control and abatement of environmental noise .... ” 42 U.S.C. § 4903(b). Our conclusion renders unnecessary a decision as to whether a private cause of action should :be implied to enforce § 4’s mandate. We see no other tenable ground upon which the district court had jurisdiction over the state nuisance claim. Therefore, we vacate the district court’s decision and remand for dismissal for lack of jurisdiction. Endangered or Threatened Species Of the various animal species living in and around Vieques, .four have been designated by the United States Fish and Wildlife Service as “endangered” (of which three are in issue) and two others have been determined to be “threatened,” in accordance with the criteria of § 4 of the Endangered Species Act (the Act), as amended, 16 U:S.C. § 1533. See 50 C.F.R. § 17.11. The Commonwealth alleged that the Navy’s training operations directly imperil these species and cause significant adverse changes in their habitats, contrary to the requirements of § 7 of the Act, id. § 1536, and the prohibition of § 9, id. § 1538. The district court found that the Navy’s activities do not adversely affect the five species and in fact inadvertently create a refuge for these species, protecting them from local hunters. On appeal, the Commonwealth challenges the court’s findings and urges that the district court misconstrued the requirements of § 7(a). Because we conclude that the Navy has not fulfilled its obligations under § 7(a)(2), we vacate the district court’s decision and remand for further consideration. Section 4 of the Endangered Species Act directs the Secretary of the Interior and the Secretary of Commerce to determine which, if any, species are endangered or threat.ened, and to identify the critical habitat of the species so designated. 16 U.S.C. § 1533. As part of the Act’s comprehensive design to protect such designated species, § 7(a)(2) provides: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [the critical] habitat of such species .... Id. § 1536(a)(2). Regulations promulgated jointly by the United States Fish and Wildlife Service and the National Marine Fisheries Service define the duty of a federal agency under § 7 to consult with those Services. 50 C.F.R. § 402.04. Every agency is required to review its programs and all other activities to determine whether any of its actions possibly affect endangered or threatened species or their habitats. Id. § 402.04(a)(1). Once an agency has discovered that some action for which it is responsible crosses the low threshold of possible effect, it must consult formally with the Fish and Wildlife Service or the Marine Fisheries Service. Id. § 402.04(a)(3). See id. § 402.01. Formal consultation requires that the agency request a “biological opinion” from the appropriate Service, and supplement the request with the available pertinent information. Id. In response, the Service issues a written statement that sets forth (1) its opinion on whether the agency is in violation of § 7(a)(2), (2) the information upon which it based its opinion, and (3) “recommendations for modifications in the identified activity program which would enhance the conservation and protection of a listed species or its critical habitat.” Id. § 402.04(eX4). See 16 U.S.C. § 1536(b). As of the date that the district court entered judgment, the Navy had failed to obtain a biological opinion with respect to the impact of its Vieques operations on the five listed species. By ignoring the statutory mandate, the Navy has sidestepped the administrative process that Congress expected would resolve many of the conflicts between agency action and the requirements of § 7. If the Navy had sought consultation within a reasonable period following the adoption of the Act, the burden of litigating Puerto Rico’s claim might have been avoided. The Navy’s nonfeasance also has denied the district court potentially valuable evidence. In considering the 1979 amendments to the Act, Congress found, with approval, that courts have accorded substantial weight to a sound biological opinion in determining an agency’s compliance with 7(a)(2). Finally, biological opinions not only address possible violations of 7(a)(2), but more generally recommend conservation measures designed to mitigate or remove all adverse effects on an endangered or threatened species. These recommendations pertain to the statutory responsibility of agencies to carry out “programs for the conservation of endangered species or threatened species .... ” 16 U.S.C. § 1536(a)(1). Although the district court apparently found that the refuge effect created by the Navy’s activities satisfied this obligation, see 478 F.Supp. at 689-90, a biological opinion could alter this conclusion. Since entry of judgment, the Navy has received a biological opinion from the United States Fish and Wildlife Service. But that opinion is not part of the record and we therefore disregard it in our decision of this case. See Construction Aggregates Corp. v. Rivera de Vicenty, 573 F.2d 86, 95 n.7 (1st Cir. 1978); Rosen v. Lawson-Hemphill, Inc., 549 F.2d 205, 206 (1st Cir. 1976). To do otherwise would be contrary to Federal Rule of Appellate Procedure 10(a) and would preclude the district court from considering evidence that both this court, and Congress, deem essential to a complete decision of the issue. Moreover, the Commonwealth should have the opportunity to challenge the adequacy of the biological opinion, both in terms of its factual basis and its recommendations. The Commonwealth also challenges the Navy’s training activities under § 9 of the Endangered Species Act, 16 U.S.C. § 1538. Section 9 prohibits any person, including an officer or department of the federal government, from taking an endangered species. Id. § 1538(a)(1)(B). Taking is defined by the statute as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. 1532(19). As interpreted by the Fish and Wildlife Service, harassment includes a significant disruption of normal behavioral patterns likely to cause injury, and harm includes significant disruption of essential behavioral patterns or environmental degradation. 50 C.F.R. § 17.3. So far as can be discovered from the briefs and the record, we understand Puerto Rico’s claim under § 9 to rest on the proscription of harassment and harm as those terms are defined by the Fish and Wildlife Service. Because of the close similarity between this particular prohibition and the requirements of § 7(a), we conclude that the § 9 claim should be remanded along with the § 7 claim. The district court should have the benefit of the biological opinion in determining whether the Navy’s operations respect the proscription of § 9. We vacate the district court’s decision with respect to the Endangered Species Act and remand for further consideration in light of this opinion. Preservation of Historic and Prehistoric Sites Puerto Rico alleged in its complaint that the Navy’s complete failure to identify and protect all the sites on Navy property that are of historical or archeological significance violated § 106 of the National Historic Preservation Act (16 U.S.C. § 470f), Executive Order 11593 and regulations issued by the Advisory Council on Historic Preservation. After Puerto Rico had filed its complaint, the Navy undertook a combined sampling and predictive survey of the island which disclosed the existence of a, number of sites on Navy property at least some of which may be eligible for inclusion in the National Register of Historic Places. The district court concluded that this survey satisfied the Navy’s obligation to locate sites. 478 F.Supp. at 693. The court also ruled, however, that the Navy had violated the Executive Order by failing either to nominate to the Secretary of the Interior those newly discovered sites that may be eligible for listing in the Register or to seek the Secretary’s opinion on their eligibility. Id. at 694. The court ordered the Navy to correct this omission and to safeguard the potentially eligible sites. Id. at 708. On appeal, neither party challenges the district court’s ruling with respect to determining the eligibility of known sites. But the Commonwealth does question the court’s decision on the adequacy of the Navy’s survey. According to the Commonwealth, testimony by the Navy’s own experts establishes that the survey did not locate all the sites on the island, as is required by the Act, the Executive Order, and the Advisory Council’s regulations. We agree. Section 106 of the National Historic Preservation Act, as amended, imposes a basic responsibility on “the head of any federal agency” to “take into account the effect” of a proposed federal undertaking “on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. With the promulgation of Executive Order 11593, the President substantially expanded the mandate of § 106. The order requires that every federal agency (a) no later than July 1, 1973, with the advice of the Secretary of the Interior, and in cooperation with the liaison officer for historic preservation for the State or territory involved, locate, inventory and nominate to the Secretary of the Interior all sites, buildings, districts and objects under their jurisdiction or control that appear to qualify for listing on the National Register of Historic Places. (b) exercise caution during the interim period until inventories and evaluations required by subsection (a) are completed to assure that any federally owned property that might qualify for nomination is not inadvertently transferred, sold, demolished or substantially altered. 36 Fed.Reg. 8921 (May 13, 1971), reprinted in 16 U.S.C. § 470 at 28. The express obligation imposed by the Executive Order to locate “all” possibly eligible sites has been further defined within the past two years by the Advisory Council on Historic Preservation. See 36 C.F.R. § 800.4. The Council’s regulations reaffirm “the responsibility of each Federal agency to identify or cause to be identified any National Register or eligible property ... that may be affected by the undertaking.” Id. § 800.-4(a). Moreover, the regulations contemplate an active consultive role for the “State Historic Preservation Officer” from the inception of a federal agency’s efforts to fulfill its historic preservation responsibilities. See id. § 800.4. Thus, the first step in satisfying an agency’s obligations under the Executive Order and the regulations is to locate, in consultation with the state’s officer for historic preservation, “all” and “any” sites that may be eligible for inclusion in the National Register. The sole question is whether the Navy has satisfactorily completed that first step. The Navy’s survey of Vieques, which in design encompassed the entire island, relied on a combination of three methods. The island was divided into 665 squares, each of which measured 500 by 500 meters. Ten percent of the squares were selected randomly as samples. Another group of samples, approximately ten percent of the squares, were selected by randomly choosing one square and then selecting every tenth square after the first one chosen. The third method began with a search by the Navy’s archeologist of the available literature and interviews with local residents having special knowledge of the island’s history. On the basis of this inquiry, and his prior experience, he directed the survey team to the squares that he predicted were most likely to contain archeological remains. The squares that were selected by these three methods were then walked by members of the survey team at intervals of 100 meters. Each square was traversed in a criss-cross fashion, the surveyor walking several times along the line of each 100 meter point from east to west and then from north to south. The Navy defends its survey as a responsible and reasonable good faith effort to locate the archeological sites that still exist on Vieques. According to the Navy, when it had completed the survey it had satisfied the duty imposed by the Executive order and the regulations to locate all sites that may be eligible for inclusion in the National Register. But the testimony of the archeologist responsible for the design of the Navy’s survey belies this contention. He testified that there remain to be located a substantial number of sites of possible archeological value. Thus, he characterized the survey as preliminary and acknowledged the need for additional work. Given the likelihood of further discoveries, the Navy’s position flies in the face of the requirement that it locate “all sites that appear to qualify for listing on the National Register of Historic Places.” Executive Order No. 11593, 36 F.R. 8921, reprinted in 16 U.S.C. § 470 at 28. (emphasis added). We assume without deciding that the survey methods adequately identified the likely locations of eligible sites. We cannot condone, however, the Navy’s failure to gather in all the fruits of its survey. Far from suggesting that the Navy must perform the impossible, we conclude only that it must follow up on the leads produced by the survey it commissioned. Our conclusion does not require the Navy to undertake a 100% survey of Vieques. The current survey not only disclosed the probable existence of other sites but also established the archeological sterility of certain areas of the island; further efforts in those areas would be fruitless. It is not possible to ascertain from the present record which areas do require more investigation. Once the survey results are clarified, the district court, with the aid of the parties, should be able to define with fair precision what additional action is required of the Navy. We assume that any proposal made by the Navy to complete its obligation to locate all sites will be formulated in consultation with the Commonwealth officer responsible for historic preservation, as mandated by Executive Order 11593 and 36 C.F.R. § 800.4. Finally, although our decision pertains solely to the Navy’s survey efforts, the district court is not foreclosed from considering on remand whether the Navy has taken sufficient measures to safeguard any sites which have been or are likely to be located and may be eligible for inclusion in the National Register. We vacate the district court’s decision on the adequacy of the Navy’s efforts to locate all sites of historical or archeological value, and remand for further consideration in light of this opinion. The Remedy We turn finally to a review of the district court’s remedial order with respect to three rulings. The court held as follows: (1) That Defendant Navy is in violation of the Federal Water Pollution Control Act, supra, by reason of its lack of a NPDES permit to cover the occasional release or firing of ordnance into the waters of Vieques, (2) That Defendant Navy is in violation of Executive Order 11593, supra, by reason of its failure to nominate to the Secretary of the Interior various sites in Vieques that may be eligible for listing in the National Register of Historic Places, and/or by its failure to seek the opinion of the Secretary respecting said eligibility, and (3) That Defendant Navy is in violation of the National Environmental Policy Act, supra, by its failure to file an environmental impact statement in connection with its activities in and around Vieques. 478 F.Supp. at 705. The court ordered the Navy to take the necessary steps to achieve compliance, but refused to enjoin the Navy from continuing its training operations. Id. at 708. The Commonwealth challenges the court’s denial of its request for a prohibitory injunction as mistakenly based on a balancing of equities. According to the Commonwealth, having found the Navy in violation of the NEPA, the FWPCA, and the Executive Order, the court had no choice but to halt the Navy’s operations until the violations were cured. We consider this challenge as directed to each of the three rulings. 1. The NPDES Permit Requirement With respect to the violation of the Federal Water Pollution Control Act, we conclude that the district court erred in undertaking a traditional balancing of the parties’ competing interests. In TVA v. Hill, the Supreme Court refused “to strike a balance of equities” where “Congress, exercising its delegated powers, has decided the order of priorities in a certain area ...: ” 437 U.S. 153, 194, 98 S.Ct. 2279, 2301-2302, 57 L.Ed.2d 117 (1978); see also United States v. City and County of San Francisco, 310 U.S. 16, 30-31, 60 S.Ct. 749, 756-757, 84 L.Ed. 1050 (1940). Like the statutory mandate at issue in Hill, the NPDES permit requirement of the Federal Water Pollution Control Act embodies a congressional ordering of priorities. Congress has prohibited “the discharge of any pollutant,” 33 U.S.C. § 1311(a), which includes the Navy’s dropping of ordnance into the coastal waters, unless a NPDES permit has been secured pursuant to 33 U.S.C. § 1342. Whether or not the Navy’s activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed and the Administrator of the Environmental Protection Agency, upon review of the evidence, has granted a permit. Thus, regardless of the district court’s finding that the Navy’s. dropping of ordnance caused no significant harm to the environment, it erred in failing to consider the judiciary’s “responsibility to protect the integrity of the ... process mandated by Congress .... ” Jones v. Lynn, 477 F.2d 885, 892 (1st Cir. 1973); see Realty Income Trust v. Eckerd, 564 F.2d 447, 456-57 (D.C. Cir.1977). Although on this record the district court did not clearly err in its finding, the permit process “might reveal substantial environmental consequences,” City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y.1972), quoted in Realty Income Trust v. Eckerd, 564 F.2d at 456, that would lead the Administrator to deny the application or grant only a limited permit. Unlike the situation presented in Essex County Preservation Ass’n v. Campbell, 536 F.2d 956, 960-61 (1st Cir. 1976), where the statutory violation was deemed “technical,” here the Navy has utterly disregarded the statutory mandate. Thus, we vacate the district court’s order on this question and remand with instructions to order the Navy to take all steps necessary to insure that no ordnance is discharged into the coastal waters of Vieques until such time as it obtains a NPDES permit. If this order significantly interferes with the Navy’s preparedness, it is free to request the President to exempt it from the NPDES requirements in the interest of national security. See 33 U.S.C. § 1323(a). 2. Executive Order 11593 The Commonwealth offers no reason for us to alter the district court’s order insofar as it requires the Navy to protect all sites that may be eligible for inclusion in the National Register of Historic Places. Given the district court’s finding that the Navy’s operations do not presently threaten the known sites, which is not clearly in error, it was not an abuse of the court’s discretion to impose a limited order rather than a wholesale proscription of the Navy’s operations. Although, as already discussed, we have decided that the Navy has yet to satisfy its duty under Executive Order 11593, nothing in the present record suggests that the training activities as a whole endanger the additional sites likely to be located. It is open to the district court on remand to modify its order in light of further discoveries or evidence that the Navy has failed to safeguard the potentially eligible sites. 3. The Environmental Impact Statement Since entry of the district court’s judgment, the Navy has prepared a final environmental impact statement (EIS), as required by the court’s order and 42 U.S.C. § 4332(2XC). As a result, we conclude that the issue of whether the training operations should be halted for failure to prepare and file an EIS is moot. Although neither party raised this question, this court has a responsibility to consider sua sponte whether an issue on appeal has been rendered moot by subsequent events. See North Carolina v. Rice, 404 U.S. 244, 245, 92 S.Ct. 402, 403-404, 30 L.Ed.2d 413 (1971). At oral argument, counsel for the Navy informed us that a final EIS had been prepared and we assume that it has been filed in accordance with 42 U.S.C. § 4332(2)(C). See DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974). Nothing would be gained by enjoining the Navy’s operations for failure to do that which it has done. See id. at 316. Nor is there a “ ‘reasonable expectation that the wrong will be repeated.’ ” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), quoted in County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). Because our conclusion pertains only to the preparation and filing of an EIS, it does not foreclose the Commonwealth from challenging the adequacy of the EIS or the Navy’s response to the EIS findings. See Crowell v. Mader, 444 U.S. 505, 506, 100 S.Ct. 992, 992, 62 L.Ed.2d 701 (1979). We therefore vacate the order of the district court requiring the Navy to prepare and file an environmental impact statement and remand with instructions to dismiss the claim as moot. Summary We affirm the district court’s findings and rulings, as modified by our opinion, except as follows: (a) the decision with respect to § 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 409, is vacated and remanded for dismissal of the claim for lack of jurisdiction; (b) the decision with respect to § 4 of the Noise Control Act, 42 U.S.C. § 4903(a), and Puerto Rico’s criminal nuisanee statute, P.R.Laws Ann. tit. 33, § 1365, is vacated and remanded for dismissal of the claim for lack of jurisdiction; (c) the findings and ruling with respect to § 7(a) and § 9 of the Endangered Species Act, 16 U.S.C. §§ 1536(a), 1538, are vacated and remanded for further consideration; (d) the ruling with respect to Executive Order 11593 and 36 C.F.R. § 800.4 is vacated and remanded for further consideration; (e) the order with respect to the NPDES permit requirement is vacated and remanded with instructions for further proceedings in accordance with this opinion; (f) the order with respect to the preparation and filing of an environmental impact statement pursuant to 42 U.S.C. § 4332(2)(C) is vacated and remanded with directions to dismiss. Affirmed in part, vacated in part and remanded in part. . Appellants — Governor Carlos Romero-Barcelo on behalf of the Commonwealth of Puerto Rico; Radames Tirado Guevara, Mayor of Vie-ques; and the Board on Environmental Quality — are hereinafter collectively referred to either as Puerto Rico or the Commonwealth. . Appellees — Harold Brown, Secretary of Defense; W. Graham Claytor, Jr., Secretary of the Navy; James L. Holloway, Chief of Naval Operations; I. C. Kidd, Jr., commander in Chief of the Atlantic Fleet; and Louis H. Wilson, Commandant of the Marine Corps — are hereinafter collectively referred to as the Navy. . Inconclusive archeological evidence suggests the presence of a preceramic Indian culture as early as the second century A.D. . At the time of trial, the Navy also owned a small parcel within the civilian sector. It has since been conveyed to the Commonwealth of Puerto Rico. . Both the parties and the district court refer to “ammunition” and “ordnance” interchangeably. Although we accept this usage for purposes of this case, it is our understanding that “ordnance” includes weapons as well as ammunition. . The Navy did not appeal the district court’s order requiring the Navy to obtain a NPDES sewage discharge permit, prepare an environmental impact statement and obtain a determination on the eligibility of certain historical and prehistorical sites for inclusion in the National Register of Historic Places. . Because we understand the district court’s decision on this question to include a determination that Puerto Rico had failed to state a claim upon which relief can be granted, we reject the Commonwealth’s contention that the issue is not properly before us. The Navy raised this issue in its answer and the district court ruled, inter alia, that Puerto Rico had failed to establish the existence of a judicially enforceable mandate. 478 F.Supp. at 697-700. . Although the Commonwealth’s standing as parens patriae in an action against the Navy may be questioned, compare Commonwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C.Cir. 1976) with Washington Utilities & Transp. Comm’n v. F. C. G, 513 F.2d 1142 (9th Cir. 1975), we think the Commonwealth certainly has standing to raise this issue on the basis of the alleged injuries to its quasi-sovereign interest “in all the earth and air within its domain,” an interest that is “independent of and behind the titles of its citizens .... ” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907). Cf. Massachusetts v. Mellon, 262 U.S. 447, 482, 43 S.Ct. 597, 599, 67 L.Ed. 1078 (1923) (acknowledging the distinction between a state’s quasi-sovereign interest in the environment and its status as parens patriae). See also Missouri v. Holland, 252 U.S. 416, 431, 40 S.Ct. 382, 382-383, 64 L.Ed. 641 (1920). Because we conclude that Puerto Rico has alleged “a ‘distinct and palpable injury’ ... ‘fairly traceable’ ... to the challenged conduct” of the Navy, Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978) (citations omitted), we need not decide whether the Mayor of Vieques or the Board on Environmental Quality have standing to litigate this case. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263-64, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977). . On January 11, 1971, the Navy entered into an agreement with the Government of Puerto Rico which imposed certain restrictions on the Culebra operations and also contained the Navy’s assurance that it would “continue to investigate both technological and geographical alternatives to the training done around Culebra.” . Congress’ requirement of an agreement pri- or to relocation was effectively a prohibition only with respect to the expenditure of the $12,000,000. Without mention of the 1974 Act, President Nixon subsequently ordered the termination of the Culebra operations, ignoring the safeguards required by the Act. The Navy never expended the $12,000,000 appropriation and Congress eventually reallocated the amount to a Navy construction project in the Indian Ocean area. See Supplemental Appropriation and Recission Act, Pub.L.No.96-304, 94 Stat. 857 (July 8, 1980). . The other executive branch directives invoked by Puerto Rico do not require extensive comment. The statements of Secretary Laird, to the extent they pertain to Vieques, contain nothing more than certain recommendations based on the Department’s evaluation of the island and the other potential relocation sites. Secretary Richardson’s memorandum to the Secretary of the Navy does not address the transfer of Culebra operations to Vieques. He ordered relocation to the uninhabited islands of Desecheo and Monito and required the Commonwealth’s participation only with respect to the implementation of the plan and protection of the Atlantic Fleet’s interests. Moreover, Richardson’s directive was essentially superseded by the President’s 1974 order. . Because we conclude that the authorization acts are of no relevance to the Navy’s authority to conduct the Vieques operations, we need not undertake the more detailed analysis set forth in Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970), to determine the applicability of the “committed to agency discretion” exception of 5 U.S.C. § 701(a)(2). Cf. Carter v. Colon, 633 F.2d 964 at 966-967 (1st Cir. 1980) (recent application of the Hahn analysis). Our conclusion that the authorization acts do not impose a duty on the Navy to the benefit of the Commonwealth also undermines the Commonwealth’s reliance on 28 U.S.C. § 1361. That statute grants the “district courts original jurisdiction of any action in the nature of mandamus to compel an officer ... of the United States ... to perform a duty owed to the plaintiff.” Id. See Falzarano v. United States, 607 F.2d 506, 513 (1st Cir. 1979). ; P.R. Laws Ann. tit. 24, §§ 591-601. . P.R. Laws Ann. tit. 12, §§ 1121-1142. . Puerto Rico’s reliance on the SB waters classification’s prohibition of solids is misplaced. This prohibition of solids was part of the pre1970 regulations, 24 P.R.R. & R. 598-5(a)(A) & (B), and has been superseded by Article 7.3 of the current Regulation, “Puerto Rico Water Quality Standards.” . We undertake this examination of the water quality standards without the benefit of any prior judicial or administrative interpretation. . The “Puerto Rico Water Quality Standards” are designated as a single “Regulation.” Each section of the Regulation is denoted an “Article.” The Regulation is reprinted in Envir.Rep. —State Water Laws (BNA) 896:0301 — : 0310. . The statutory provisions that empower the Board to adopt regulations, P.R.Laws Ann. tit. 12, § 1131(13) and tit. 24, §§ 598, 599, contain nothing contrary to this conclusion. . None of the courts of appeals that have previously considered this question were willing to imply a private cause of action under § 13. See National Sea Clammers Ass’n v. City of New York, 616 F.2d 1222 (3d Cir.), cert. granted, - U.S. -, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980); Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979) (dictum), cert. granted sub nom.; Kern County Water Agency v. Sierra Club,-U.S.-, 101 S.Ct. 68, 66 L.Ed.2d 19 (1980); City of Evansville, Inc. v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972) (qui tam action); Guthrie v. Alabama By-Products Co., 456 F.2d 1294 (5th Cir. 1972) (per curiam), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973); Bass Anglers Sportman’s Society of America, Inc. v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971) (per curiam). See also Parsell v. Shell Oil Co., 421 F.Supp. 1275 (D.Conn.1976), aff'd mem. sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Loveladies Property Owners Ass’n v. Raab, 430 F.Supp. 276 (D.N.J.1975), aff'd mem. 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). Although the district court thought that the Fourth circuit may have recognized a private cause of action in Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973), River v. Richmond Metropolitan Authority, 481 F.2d 1280 (4th Cir. 1973), and Lauritzen v. Chesapeake Bay Bridge and Tunnel District, 404 F.2d 1001 (4th Cir. 1968), we do not find those decisions to support that conclusion. . That the Commonwealth of Puerto Rico is one of the plaintiffs in this case does not alter our conclusion. Section 13 “no more evidences an intent to ‘especially’ benefit a class of [state governments] or their agents than a class of private parties .... ” City of Evansville, Ind. v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1012 n.7 (7th Cir.), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1979). . Later in the Cannon opinion the court rephrased this factor as a question of whether “a private remedy ... would frustrate the underlying purpose of the legislative scheme” and observed that “when that remedy is necessary or at least helpful to the accomplishment of the statutory scheme, the Court is decidedly receptive to its implication .. . 441 U.S. at 703, 99 S.Ct. at 1961. To the extent that this rephrasing weighs more favorably towards implication of a private cause of action, we think it reflects the Court’s previous conclusion that the statute at issue was intended to benefit a special class. The potential remedial advantages of an implied cause of action no longer hold the sway they once did, Touche Ross & Co. v. Redington, 442 U.S. at 578, 99 S.Ct. at 2490, even when the statute at issue does benefit a special class, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 15-16, 19-20, 23-24, 100 S.Ct. 245, 247. . Puerto Rico puts great store in the fact that the Department of Justice is obligated to represent federal agencies charged with a violation of the Act and thus is “in no position to enforce the Act” against those same federal agencies. Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280, 290 (E.D.N.C.1973). The Commonwealth maintains that private parties must be allowed to vindicate the public’s interest in environmental protection. Id. See People of the State of Illinois ex rel Scott v. Hoffman, 425 F.Supp. 71 (S.D.Ill.1977). See also Sierra Club v. Andrus, 610 F.2d 581, 590-91 (9th Cir. 1979), cert. granted, 487 F.Supp. 443 (1980). But whether or not this situation presents an insuperable conflict, our responsibility is to ascertain Congress’ intent, not to improve upon its enforcement scheme. Touche Ross & Co. v. Redington, 442 U.S. at 578, 99 S.Ct. at 2490. Moreover, the absence of an implied private cause of action under § 13 does not mean that federal agencies are effectively free to ignore their responsibilities with respect to the control of water pollution. Section 313 of the Federal Water Pollution Control Act Amendments subjects every federal agency to “all Federal, State, interstate, and local requirements ... respecting the control and abatement of water pollution .. .. ” 33 U.S.C. § 1323(a). Under § 505 of the same Act, id. § 1365, Puerto Rico may sue to enforce that obligation, as it has done in this case. The similarity in purpose between the Rivers and Harbors Act and the Federal Water Pollution Control Act is reflected in the fact that the permit requirement imposed by § 13 is now implemented by the Administrator of the EPA under § 402 of the Federal Water Pollution Control Act. See 33 U.S.C. § 1342(a)(1)(2). Because no issue is presented here in which the substantive requirements of § 13 might differ from those of the Federal Water Pollution Control Act, we need express ho view on the availability of a right of private enforcement against federal defendants in a situation in which they did. . Section 17 requires the Department of Justice “to vigorously prosecute all offenders ... when requested to do so by the Secretary of the Army or by any of the officials hereinafter designated .... ” 33 U.S.C. § 413. It vests in the appropriate administrative officials, if not also the Attorney General, the discretion to decide whether § 13 should be enforced in a particular case. As a provision for prosecutorial discretion, it reflects a legislative decision to husband the enforcement resources of the federal government, including those of the judiciary. The government’s decision not to enforce § 13 against a particular party, perhaps in anticipation of an informal resolution of the matter, could be frustrated by a private party armed with an implied cause of action. . Two of the decisions relied upon by Puerto Rico rest, in principle if not by name, on an application of § 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. See Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970); People of the State of III. ex rel Scott v. Hoffman, 425 F.Supp. 71 (S.D.Ill.1977). That statute creates a right to judicial review for persons injured by “agency action,” the definition of which does not encompass the Navy’s dropping of ordnance into the coastal waters of Vieques. See 5 U.S.C. § 551(13). See p. 845, supra. . Puerto Rico correctly argues that a violation of § 15 can be established without proof that navigation has been actually obstructed by the voluntary sinking of a vessel. This does not, however, obviate the jurisdictional requirement that a private party seeking relief under § 15 allege some injury in fact to itself. . Given our disposition of this claim, we need not decide whether a private cause of action for injunctive relief should be implied from § 15. Nonetheless, we think it appropriate to observe that our analysis of that issue with respect to § 13 is equally applicable to § 15. . The current regulation, 36 C.F.R. § 204.234, was promulgated only after the Corps of Engineers had provided public notice of the proposed regulation and an opportunity for comments. 39 Fed.Reg. 13889, 27133 (1974). . When necessary to protect the interests of an absent party, a court of appeals should consider sua sponte whether a claim should be dismissed for failure to join an indispensable party. See Provident Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 738-739, 19 L.Ed.2d 936 (1968); NLRB v. Doug Neal Management Co., 620 F.2d 1133, 1139 (6th Cir. 1980); Kimball v. Florida, 537 F.2d 1305, 1307 (5th Cir. 1976). . Although Puerto Rico does not seek to impose criminal penalties on the Navy, it chose to base its case on its criminal nuisance law rather than its very similar civil nuisance statute, P.R.Laws Ann tit. 32, § 2761, perhaps because the latter does not expressly refer to public nuisances. See note 40 infra. The choice of statute relied upon does not affect our analysis or conclusion. . P.R.Laws Ann. tit. 33, § 1365 provides in pertinent part: Anything which is injurious to health, or is indecent or offensive to the senses, or is an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal or basin, or any public park, square, street or highway ,is a public nuisance[.] . 42 U.S.C. § 4903(b) provides in pertinent part: (b) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government— (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the emission of noise, shall comply with Federal, State, interstate and local requirements respecting control and abatement of environmental noise to the same extent that any person is subject to such requirements. . The doctrine of sovereign immunity bars suit against a federal agency eo nomine in the absence of an express congressional waiver. See United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119 (1st Cir. 1976). In contrast, a federal officer is subject to suit despite the lack of express legislative waiver if that officer has acted outside the legal limitations on his authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). The federal mandate provided in 42 U.S.C. § 4903(b) constitutes such a limitation. See Westinghouse Elec. Corp. v. Schleslnger, 542 F.2d 1190, 1214 (4th Cir. 1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977). . A determination of whether Puerto Rico’s nuisance statute constitutes a requirement under § 4 will also determine whether the district court had subject matter jurisdiction over this claim. This question of jurisdiction should be resolved prior to a decision of whether Puerto Rico has stated a claim upon which relief can be granted. With respect to the latter issue, we observe only that implication of a cause of action is plausible. Although no court has previously decided whether § 12 exclusively defines the available causes of action under the Act, several courts of appeals have considered, and disagreed, about the implication of a cause of action in an analogous statutory context. Both the Clean Air Act and the Federal Water Pollution Control Act (FWPCA) contain citizen suit provisions quite similar to § 12. See 42 U.S.C. § 7604; 33 U.S.C. § 1365. The Courts of Appeals for the Second, Third and District of Columbia Circuits have held that 33 U.S.C. § 1365 does not-preclude, inter alia, implication of a cause of action under different substantive provisions of the FWPCA. National Sea Clammers Ass’n v. City of New York, 616 F.2d 1222, 1228-31 (3d Cir.), cert. granted,-U.S.-, 101 S.Ct. 314, 66 L.Ed.2d 145 (1980); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 698-703 (D.C.Cir.1974). The Seventh Circuit has rejected this conclusion with respect to the Clean Air Act. City of Highland Park v. Train, 519 F.2d 681, 690-93 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). In a case involving the FWPCA, this court expressly reserved decision of the question. Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119, 122-23 & n.4 (1st Cir. 1976). . Although the legislative history of § 4 does not identify § 118 as the prototype for § 4, there is a close similarity in the language of the two provisions. And the legislative history does establish expressly the overall importance of the Clean Air Act as a model for the drafters of the Noise Control Act. See S.Rep.No. 1160, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Ad.News, 4655, 4658, 4661, 4667. . Section 313 of the Federal Water Pollution Control Act, 33 U.S.C. § 1323, also tracks the language of § 118 and has been similarly construed. See Environmental Protection Agency v. California ex rel. State Water Resources Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). . Congress legislatively reversed the actual holding of Hancock with the enactment of the Clean Air Act Amendments of 1977, Pub.L.No. 95-95, 91 Stat. 685. See H.R. 6161, 95th Cong., 1st Sess. 12, reprinted in [1977] U.S.Code Cong. & Ad.News, 1077, 1089-90. Neither the amendments nor the committee reports undermine that part of the Court’s reasoning upon which we rely. The companion case to Hancock, Environmental Protection Agency v. California ex rel. State Water Resources Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), suffered like treatment with the enactment of the Clean Water Act of 1977, Pub.L.No. 95-217, § 60, 91 Stat. 1597, 1598. See S.Rep.No. 370, 95th Cong., 1st Sess. 67, reprinted in [1977] U.S.Code Cong. & Ad.News, 4326, 4392. The apparent purpose of these amendments was to ensure the enforceability of the applicable substantive control requirements. We find no evidence that the amendments were intended to expand the category of applicable substantive requirements. . The Senate Committee report that accompanied the final draft of the Noise Control Act offers some evidence of a similar understanding with respect to the control of noise. See. S.Rep.No. 1160, 92nd cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Ad.News, 4655. In particular, £he Committee concluded that the federal noise control requirements that would be enforceable under § 12 should be “technologically-based standards” rather than the more open ended standard of the “public health and welfare.” Id. at 4659. . See 42 U.S.C. § 4902(11) (definition of environmental noise). . Puerto Rico relies on a statement in the Senate Committee’s report that the Noise Control Act does not affect the authority of the states “to reach or maintain levels of environmental noise ... through [inter alia ] nuisance laws.” S.Rep. 1160, 92d Cong., 2d Sess., reprinted in U.S.Code Cong. & Ad.News 4660. But this statement is not part of the Committee’s commentary on §§ 4 or 12. Rather, it addresses to what extent § 6 (42 U.S.C. § 4905), and regulations promulgated thereunder, would preempt state law as applied to products in the hands of the user. Id. Section 6 authorizes the adoption of noise emission standards to be applied to products at the manufacturing stage. Establishing that state law is not preempted in this particular context does not answer the distinct question of to what extent Congress intended to waive the federal government’s sovereign immunity. Neither § 6 nor the Committee’s commentary on § 6 addresses this question. . P.R.Laws Ann. tit. 32, § 2761 states: “Anything which is ¡injurious to health, or indecent, or offensive to ¡the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance .... ” . “The term ‘endangered species’ means any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). The endangered species on Vieques include the brown pelican, the manatee, the leatherback turtle and the hawksbill turtle. 50 C.F.R. § 17.11. The effects of the Navy’s activities on the manatee are not at issue in this .appeal. . “The term ‘threatened species’ means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). The threatened species on Vieques include the loggerhead turtle and the green turtle. '50 C.F.R. § 17.11. . “Secretary,” as used in § 7 and the other provisions of the Act, refers to the Secretary of Interior or the Secretary of Commerce, depending on the particular species at issue. Although these two officials formally share the responsibilities created by the Act, their duties are actually performed by -two departmental agencies — the United States Fish and Wildlife Service (Interior) and the National Marine Fisheries Service (Commerce). For the remainder of this opinion, we refer to the Service rather than the Secretary. . Although the regulations, promulgated on January 4, 1978, made optional the offering of recommendations, Congress has since mandated inclusion of such recommendations in a biological opinion. Pub.L.No.95-632, 92 Stat. 3751 (1978). See H.Conf.Rep. 1804, 95th Cong., 2d Sess. 18, reprinted in [1978] U.S.Code Cong. & Ad.News, 9453, 9484, 9486; H.R.Rep. No. 1625, 95th Cong., 2d Sess. 11-12, reprinted in [1978] U.S.Code Cong. & Ad.News, 9453, 9461-2. . See H.R.Rep.No.167, 96th Cong., 1st Sess. 5, reprinted in [1979] U.S.Code Cong. & Ad.News, 2561; H.Conf.Rep.No. 1804, 95th Cong., 2d Sess. 18, reprinted in [1978] U.S.Code Cong. & Ad.News 9486; H.R.Rep.No.1625, 95th Cong., 2d Sess. 11, reprinted in [1978] U.S.Code Cong. & Ad.News 9461. . H.Conf.Rep.No.697, 96th Cong., 1st Sess. 12, reprinted in [1979] U.S.Code Cong. & Ad.News 2561. Compare National Wildlife Federation v. Coleman, 529 F.3d 359, 372-75 (5th Cir.) cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976) with Sierra Club v. Froehlke, 534 F.2d 1289, 1301-05 (8th Cir. 1976). Cf. North Slope Borough v. Andrus, 486 F.Supp. 332, 351-54 (D.D.C.), vacated on other grounds sub nom. National Wildlife Federation v. Andrus, No. 80-1148, et al. -F.2d(D.C.Cir. Sept., 1980) (evaluation of a biological opinion in light of the statutory purposes). . The statute defines “conservation” to mean “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” 16 U.S.C. § 1532(3). . Section 9 provides in pertinent part: (a)(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to— (B) take any such species within the United States or the territorial sea of the United States[.] 16 U.S.C. § 1538(a)(1)(B). . The Advisory Council on Historic Preservation is an independent agency, 16 U.S.C. § 470i, authorized to “promulgate such rules and regulations as it deems necessary to govern the implementation of section 470f ...” Id. § 470s. . Although by its terms § 106 applies only to proposed undertakings, the Navy does not challenge the validity of Executive Order 11593 or the Council’s regulations as applied to current undertakings. There is good reason for their acquiescence. Executive Order 11593 expressly derives its statutory authority not only from the National Historic Preservation Act but also, inter alia, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. Although NEPA refers only to proposed major federal actions, it has been construed to apply to ongoing federal activities. Jones v. Lynn, 477 F.2d 885, 889 (1st Cir. 1973); Environmental Defense Fund v. TVA, 468 F.2d 1164, 1176-81 (6th Cir. 1972); see TVA v. Hill, 437 U.S. 153, 188 n.34, 98 S.Ct. 2279, 2299 n.34, 57 L.Ed.2d 117 (1978). More generally, the reasoning underlying this construction of NEPA supports a similar conclusion with respect to the scope of § 106 of the National Historic Preservation Act. See Jones v. Lynn, 477 F.2d at 889; Environmental Defense Fund v. TVA, 468 F.2d at 1176-81. . We agree with the Commonwealth that the Navy would be well advised to emulate the cooperation shown by the Pacific Fleet in the survey of the Hawaiian island of Kahoolawe. See Aluli v. Brown, 437 F.Supp. 602 (D.Hawaii 1977), rev’d in part on other grounds, 602 F.2d 876 (9th Cir. 1979). This does not mean, however, that an exact replication of the Kahoolawe survey, which will ultimately cover 100% of the surface area of the island, is required of the Navy with respect to Vieques. Unlike Kahoolawe, it appears very unlikely that the entire island of Vieques would be eligible as a single district for inclusion in the National Register. See Aluli v. Brown, 437 F.Supp. at 610. What impresses us about the Kahoolawe survey is the extensive cooperation between the Navy and state- officials and the good faith effort to locate all potentially eligible sites. . The Navy urges that the pending Memorandum of Agreement between it and the Advisory Council obviates any further judicial scrutiny of its efforts to comply with the Executive Order and the regulations. But such agreements relate to the mitigation of adverse effects on sites that already have been located. See 36 C.F.R. § 800.6(b), (c). The pending agreement would be complete only after the Navy has fulfilled its obligation to locate all eligible sites. If an agreement has been executed, we expect that the district court would consider it in evaluating the adequacy of the Navy’s efforts to protect the eligible sites. . Although Jones and Eckerd involved the procedural requirements of the National Environmental Policy Act, we think this responsibility holds as true with respect to the NPDES permit process. See Save Our Sound Fisheries Ass’n v. Callaway, 387 F.Supp. 292, 299-300 (D.R.I.1974). . Unlike the environmental impact statement requirement of the NEPA, 33 U.S.C. § 1311(a) is not satisfied by the filing of any application; only the granting of a NPDES permit releases a party from that provision’s prohibition. Thus, our conclusion is not altered by the fact that the Navy has now applied for a permit. . Insofar as most, if not all, of the Navy’s targets are land based, we doubt that this order will significantly impair the Navy’s military preparedness.

Society Hill Towers Owners' Ass'n v. Rendell

OPINION OF THE COURT McKEE, Circuit Judge. Society Hill Towers Owners’ Association and seven named individuals (collectively the “Residents”) appeal from the district court’s grant of summary judgment in favor of the City of Philadelphia and former Mayor, Edward G. Rendell (collectively “the City”); and the United States Department of Housing and Urban Development and its Secretary, Andrew M. Cuomo (collectively “HUD”). The Residents brought this suit under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 et seq., the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321. The Residents claimed that the City had not properly performed the environmental and historic reviews required under NEPA and NHPA prior to HUD’s approval of an Urban Development Action Grant (“UDAG”), and that the City had not provided meaningful public hearings as required under 24 C.F.R. § 570.463(a) prior to submitting its fifth amendment to its previously submitted application under the UDAG program. For the reasons that follow, we will affirm. I. Background This dispute arose out of HUD’s approval of a $10,000,000 grant application that the City had previously submitted to HUD to partially fund construction of a hotel and parking garage in the Penn’s Landing area of Philadelphia. The factual background of this protracted dispute is detailed in the district court’s comprehensive opinion. See Society Hill Towers Owners’ Assn. v. Rendell, 20 F.Supp.2d 855 (E.D.Pa.1998). Therefore, we will only briefly summarize the factual and procedural history of this dispute insofar as it is helpful to our discussion. In 1986, the City filed an application with HUD for a $10,000,000 UDAG grant to partially fund a portion of a festival park that the City intended to build at Penn’s Landing. The UDAG Program was created by a 1977 amendment to Title I of the Housing and Community Development Act of 1974 (“HCDA”). 42 U.S.C. § 5301 et seq. “The purpose of the UDAG Program is to ‘stimulate economic development activity needed to aid in economic recovery of cities and urban areas which are experiencing severe economic distress,’ by allowing such cities and counties to apply to HUD and compete for grants intended to stimulate private economic development.” 20 F.Supp.2d at 863 (citing 42 U.S.C. § 5318). The application received preliminary approval from HUD, and HUD and the City executed a grant agreement later that same year. Thereafter, the City submitted four amendments to the original application — each of which was approved by HUD — and the grant agreement was amended each time to correspond to the changes made by each amendment. However, the festival park was never constructed and the federal funds that would have been awarded under the UDAG program for that project were never dispersed. In September 1994, the City submitted a fifth amendment to the 1986 UDAG application. That amendment abandoned the concept of a festival park, and proposed that the grant proceeds be used “solely for the construction of a 350-room hotel and 500-vehicle garage. This request for a fifth amendment constituted a ‘whole new project’ separate and distinct from the festival park proposed in the original plan and in the previous approved amendments.” Id. at 859. HUD eventually approved the requested fifth amendment in November, 1994. However, as a condition of that approval, HUD required the City to hold public hearings as required under the applicable regulations. Accordingly, the City published a notice of public hearings and, on November 21, 1994, two such hearings were held. Only thirteen people attended those hearings. Thereafter, the City notified HUD that the City had complied with the mandate for public hearings. However, a group of local residents who lived in the area of the proposed hotel-parking garage (some of whom are plaintiffs in this case) learned of the project after the November hearings were held, and they began contacting the City and HUD to register their opposition to the proposed project. On August 6, 1996, and August 15, 1996, after publishing notice of hearings, the City held additional hearings on the hotel-garage project. Unlike the first hearings, the August hearings were well attended, and the neighbors who attended expressed intense opposition to the project. However, despite the intense and vociferous opposition that was expressed at those hearings, the City published a Finding Of No Significant Impact (“FONSI”) and a Notice of Intent/Request for Release of Funds (“NOI/RROF ”) - under the fifth amendment to its UDAG application. “On October 23, 1996, HUD informed the City that the requested fifth amendment was still defective, and ‘suggested’ ... that the request ... be withdrawn and not resubmitted until the City complied with all regulatory requirements.” Id. at 860. Thereafter, following publication of a second FONSI and NOI/RROF, additional public comments, and additional environmental certifications, the City did withdraw its request for a fifth amendment. However, [o]n that same day, the City submitted a revised request for a fifth amendment. The revised request described physically the same project as was described in the request for a fifth amendment, i.e. a 350-room hotel and 500-vehicle parking garage. While the project was substantively the same, the developer and financing arrangements were different. Together with the revised request for a fifth amendment, the City also submitted to HUD the environmental review record (“ERR”). Id. (internal citations omitted). HUD approved the City’s revised request even though it was virtually identical to the request that HUD had asked the City to withdraw. Thereafter, on July 24, 1997, the Residents filed the instant suit seeking declaratory and injunctive relief. The Residents contended that the City had not afforded a meaningful opportunity for public comment on the project, and that the City had not properly conducted the necessary environmental and historic reviews. The Residents sought to enjoin UDAG funding until the City prepared an environmental impact statement (“EIS”) to address the alleged deficiencies in the City’s amended grant application. The Residents also sought to have the district court declare that the City had failed to conduct meaningful public hearings and had failed to properly assess the environmental impact of the project, including the impact upon the affected historical district of the city. The Residents also sought to enjoin HUD and the City from executing the UDAG agreement until “all environmental and historical reviews mandated by the applicable statutes and regulations have been properly condúcted.” Id. at 858. Cross motions for summary judgment were filed, and the district court granted summary judgment for the defendants and against the Residents. This appeal followed. II. The Regulatory Scheme NEPA requires all federal agencies to prepare an environmental impact statement or EIS for major federal actions significantly affecting the quality of the environment. However, Congress authorized HUD to delegate its responsibilities for environmental review, and decision-making, for UDAG applications to the UDAG applicant. 42 U.S.C. § 5304(g)(1). HUD has promulgated regulations that establish environmental review procedures for entities assuming HUD environmental review responsibilities. 24 C.F.R. Part 58. HUD requires preparation of an EIS when a project is determined to have a potentially significant impact on the human environment. 24 C.F.R. § 58.37. The impact of a project upon the environment is first assessed by preparation of an Environmental Assessment (“EA”). 24 C.F.R. § 58.36. If the EA demonstrates that the project will not pose a significant environmental impact, HUD requires that a FON-SI be published for public comment. 24 C.F.R. § 58.43. If considerable interest or controversy exists concerning a project, HUD requires that the public have 30 days to comment before the grant recipient can request release of funding. 24 C.F.R. § 58.46. While NEPA does not specifically address the EA process, the Council on Environmental Quality (“CEQ”) promulgated regulations for implementing NEPA that address this process and establish requirements for public participation. 40 C.F.R. § 1501.4. CEQ does not expressly require agencies to involve the public during preparation of an EA. 40 C.F.R. § 1508.9. CEQ does, however, require agencies to “hold or sponsor hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency.” 40 C.F.R. § 1506.6(c). In determining when a public hearing is appropriate, CEQ directs agencies to consider whether substantial environmental controversy exists concerning the proposed action or whether substantial interest exists in holding a hearing. 40 C.F.R. § 1506.6(c)(1). While public hearings may or may not be required during an EA, agencies are required to make findings of no significant impact available to the affected public. 40 C.F.R. § 1501.4(e)(1). CEQ only requires that an agency make its FONSI available for public review, however, when the proposed action is closely similar to one that normally requires an EIS or when the nature of the proposed action is one without precedent. -40 C.F.R. § 1501.4(e)(2). HUD promulgated regulations that establish procedures for implementing NEPA and the CEQ regulations. 24 C.F.R. Part 58. HUD’s procedures do not require a grant recipient to conduct public hearings during preparation of an EA. 24 C.F.R. § 58.40. HUD only requires a grant recipient to consider holding a public hearing when an EIS is required. 24 C.F.R. § 58.59. HUD does require, however, that FONSIs be made available for public review for 30 days when “[tjhere is a considerable interest or controversy concerning the project.” 24 C.F.R. § 58.46(a). Although HUD does not require a grant recipient to conduct public hearings during the EA process, an opportunity for public participation is required as part of the general grant application process under the UDAG program. 24 C.F.R. § 570.454(a). Specifically, HUD requires a grant applicant to hold public hearings prior to submission of a full application to obtain views of citizens, particularly neighbors who reside in the vicinity of the proposed project. Id. When submitting a full application for HUD to review, a UDAG applicant must include, among other things: The status of environmental review of the proposed project, the steps taken to notify other involved federal agencies if joint funding is requested, and a proposed timetable for the completion of any required environmental actions as described in 24 C.F.R. part 58; and A certification providing assurance that prior to submission of its application, it has met the citizen participation requirements of S 570.454(a) and has made the impact analysis required by S 570.454(b). 24 C.F.R. § 570.458(c)(4) & (c)(14)(i). When, as here, an applicant submits a significant amendment to a project that has previously been approved, HUD may approve the amendment if the amendment complies with all the regulatory requirements of the UDAG program. 24 C.F.R. § 570.463(b)(2). III. Standing In the district court, the City challenged the Residents’ standing in a motion to dismiss under Fed.R.Civ.P. 12(b)(1). The district court assumed that the Residents had standing, without deciding the question, and entered summary judgment against the Residents on the merits of their claims. However, the Supreme Court has recently cautioned against the practice of assuming jurisdiction and reaching the merits of a dispute merely because a court concludes that the suit can be dismissed on the merits assuming arguendo that jurisdiction exists. In Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 93, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Court noted that several Courts of Appeals “find it proper to proceed immediately to the merits question, despite jurisdictional objections, at least where (1) the merits question is more readily resolved,. and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied.” The Court referred to this practice as creating “hypothetical jurisdiction” and stated: Hypothetical jurisdiction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning ... Much more than legal niceties are at stake here. The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects ... For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires. Id. at 101, 118 S.Ct. 1003 (citations omitted). The Court cautioned that appellate courts must avoid addressing the merits of a claim based upon an assumption that it has subject matter jurisdiction. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. Id. at 94, 118 S.Ct. 1003 (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). Accordingly, we begin our inquiry with a discussion of whether the Residents have standing to challenge the UDAG grant that has been awarded pursuant to the City’s fifth amendment to the City’s 1986 UDAG application. We have recently summarized the requirements for Article III constitutional standing as follows: (1) the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 484-485 (3d Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Here, the basis of the Residents’ purported standing was well developed in the district court even though the court did not address the issue. We also asked the parties to address the issue of standing during oral argument on this appeal. Based upon the uncontested facts in this record, and the various submissions made before us, it is clear that Residents live in the Society Hill area, and enjoy the amenities of the historic district adjacent to, and included within, Penn’s Landing and the Delaware River waterfront. The Residents’ claims all arise from their assertion that the project for which UDAG funding is sought under the City’s fifth amendment will increase traffic, pollution, and noise in the Society Hill area where they live. The Residents also argue that the project will have a detrimental effect on the ambiance of their historic neighborhood, that it will impair their use and enjoyment of Penn’s Landing, and that it will decrease their property values. They also claim that the project’s impact is sufficiently significant to require the City to prepare an EIS, and that the City has improperly refused to take certain measures to mitigate the project’s purported harm, or to adopt an alternative development as is allegedly required by the protections afforded under NEPA and NHPA. The City argues that the Residents have not identified injuries to cognizable legal interests, and that they have failed to provide any facts to support their allegation that the proposed project will increase traffic, pollution and noise, impair their use and enjoyment of the historic district or waterfront, or decrease their property values. The City also contends that even if the Residents can satisfy the injury requirement for standing, the alleged injuries could not be redressed by a favorable ruling in this suit. However, the City’s argument against the Residents’ standing conflates issues of standing and questions of proof. We think that it is clear that the Residents are alleging injury to a legally protected interest — that of maintaining the environmental and historic quality of their neighborhood. Indeed, the regulatory scheme of NEPA, HCDA and the procedural requirements for awarding UDAG grants are intended to protect those persons who would be most directly affected by a project that is to be funded from UDAG funds. If the Residents do not have standing to protect the historic and environmental quality of their neighborhood, it is hard to imagine that anyone would have standing to oppose this UDAG grant. If that is the case, the requirement for public hearings, and public input would be little more than a meaningless procedural calisthenic that would provide little or no protection to those most directly affected by the governmental action — the people who live in the vicinity of a federally funded project, and whose fives are most directly impacted by the expenditure of UDAG funds. The Residents have alleged concrete and particularized injury in the form of increased traffic, pollution, and noise that will detrimentally impact the ambiance of their historic neighborhood and their ability to use and enjoy the Penn’s Landing waterfront. They assert that the impact of the proposed project on their neighborhood will decrease their property values. There is no assertion that these claims are disingenuous or that the Residents claim these injuries merely to manufacture a jurisdictional case or controversy that would not otherwise exist. Moreover, the interest of the Residents is anything but manufactured. It is as real as it is fervent, and it is sufficient to give the Residents standing to challenge the requested UDAG grant. The City counters the Residents’ claims in part, by reminding us that the City’s obligation is to all of the residents of Philadelphia, and not just to those people who live near Penn’s Landing. The City quite properly notes that it is charged with making decisions that benefit the city as a whole; both the architect who surveys Penn’s Landing from his [or her] 15th story window at Society Hill Towers and the Port Richmond steelworker who could support his [or her] family for a year working on the Project. After five years, one mayoral election [now two] and the ceaseless drumbeat of Plaintiffs’ opposition, the City Defendants still believe that the Project is in the best interests of all of the residents of the city. City’s Br. at 4. We recognize the sincerity of the City’s assertion of its obligation to all of the city’s residents. However, that duty does not lessen or alter the particular interest that the Residents have in this UDAG application. In a very real sense, it is their neighborhood that is being impacted by this federal expenditure, and not that of the illustrative, hypothetical steelworker in Port Richmond. Though the latter has an interest in the project, the interest of the Residents is qualitatively different, and far more immediate and focused. They are not raising “a generally available grievance about government— claiming only harm to [their] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits [them] than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-574, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). It is not mere hyperbole to proclaim that this project “hits them where they live.” Thus, the Residents have demonstrated an interest in the City’s fifth amendment to its UDAG application that more than satisfies the first prong of Article III standing. The Residents also meet the causation and redressibility prongs of Article III standing. The injury alleged by the Residents would directly result from construction of the proposed project. Moreover, the alleged injury may well be redressed if the City is required to more fully evaluate the environmental and historic impacts of the proposed project, and take appropriate action to mitigate any identified detrimental impacts of the project. The concept of standing implicates prudential considerations that overlap, but extend beyond our inquiry under Article III. We have summarized those prudential principles as follows: (1) the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties; (2) even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Article III, the federal courts will not adjudicate abstract questions of wide public significance which amount to generalized grievances pervasively shared and most appropriately addressed in the respective branches; and (3) the plaintiffs complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in questions. Trump Hotels, 140 F.3d at 485 (citations and internal quotations omitted). As noted above, the Residents are asserting their own legal interests; they are not raising an abstract question of wide public significance, and their interest is within the zone of interests protected by NEPA and NHPA. We, therefore, find that the Society Hill Residents have standing to bring this suit. IV. Standard of Review The Residents contend that the district court erred in granting summary judgment for the City and HUD on the Residents’ APA, NEPA and NHPA claims. Our review of the district court’s grant of summary judgment is plenary. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.1998). In their claim under the APA, the Residents contend that the City’s environmental review of the UDAG project and HUD’s approval of the City’s fifth amendment to its UDAG application are arbitrary and capricious and fail to comply with NEPA. The Residents also allege that the City failed to provide for meaningful public participation in the UDAG application review process, failed to consider the cumulative impacts of proposed development in the Penn’s Landing area, failed to consider appropriate alternatives, and failed to properly weigh the public controversy surrounding the project in deciding whether an environmental impact statement was required. The Supreme Court has summarized the standard of review we must apply in an appeal under the APA as follows: [T]he generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry. Certainly, the [agency’s] decision is entitled to a presumption of regularity. But that presumption is not to shield [the agency’s] action from a thorough, probing, in-depth review. The court is first required to decide whether the [agency] acted within the scope of [its] authority ... Scrutiny of the facts does not end, however, with the determination that the [agency] acted within the scope of [its] statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the [agency’s] action followed the necessary procedural requirements. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-417, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted). The dispute here centers in large part upon the City’s conclusion that it need not prepare an EIS, based upon its Finding of No Significant Impact at the conclusion of its Environmental Assessment. Although it is clear that we review HUD’s approval of the UDAG application to determine if it is arbitrary and capricious, it is not as clear that the same standard applies to our review of the City’s decision to forego preparation of an EIS based upon its FONSI. However, in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), the Supreme Court reviewed an agency decision to forego preparation of a supplemental EIS under the arbitrary and capricious standard. Here, the district court relied upon Marsh in applying that standard of review to its scrutiny of the City’s decision to not prepare an EIS. Other Courts of Appeals that have addressed this issue have interpreted Marsh as applying the arbitrary and capricious standard to a review of an administrative decision to not prepare an EIS based upon a FONSI. See Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir.), cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 148 (1991), and Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 677-78 (5th Cir.1992). We believe the district court was correct in adopting that standard of review, and it is the standard we will apply here. A. Compliance with Public Participation Requirements. The Residents raise both procedural and substantive issues with the manner in which the City conducted public hearings on the proposed project. Procedurally, the Residents contend that HUD regulations required the City to hold public hearings before the City submitted its amended grant application and before the City decided whether the project had a significant environmental impact. Appellants’ Brief at 20. The Residents further contend that, even though the City purported to hold public hearings, those hearings did not comply with the substantive public participation requirements because the City had already decided to proceed with the project and never gave any consideration to the opposition that was voiced during the public hearings. Applicants for UDAG grants are required to hold public hearings prior to applying for a grant in order to obtain the general views of citizens and neighboring residents, particularly those of low and moderate income. 24 C.F.R. § 570.454(a) fe (b). HUD also requires grant applicants to allow the public to review an applicant’s FONSI. 24 C.F.R. § 58.46. Here, the City held public hearings on the proposed project and provided an opportunity for the public to review its FONSI at the conclusion of the City’s EA. However, the Residents contend that these “hearings” were little more than a charade. They argue that the City did not provide for meaningful public participation because the hearings were held after the UDAG application had been submitted to HUD. In support of their claim that the City never had any intention of considering public comments, the Residents assert that the Executive Director of the City Planning Commission stated that the project was a “done deal” before public hearings were held. Similarly, the Residents point to testimony that the Vice President of the Philadelphia Industrial Development Corporation (“PIDC”) confirmed that the project was a “done deal as far as local politics are concerned” prior to any hearings on the UDAG application. Appellants’ Br. at 24. Thus, according to the Residents, the City’s act of withdrawing its prior flawed application and resubmitting a virtually identical one as its “fifth amendment” could not cure the regulatory and statutory defects in the City’s UDAG application. Although the statutory and regulatory scheme pertaining to UDAG grants require public hearings prior to submission of an application, nothing in the regulations prevent an applicant from curing a procedural defect in a UDAG application by withdrawing the defective application, curing the defect, and then resubmitting the application. That is what occurred here. The initial application and earlier amendments were submitted without proper public notification and hearings. The prior amendment was withdrawn, hearings were held, and the application was then resubmitted. Under the circumstances, we understand why the Residents might feel that their opposition fell upon deaf ears even though they were finally able to voice it. However, the record here is to the contrary. It shows that the City did not totally ignore the concerns of neighborhood residents, though those concerns were clearly not addressed to the extent, or in the manner, that the Residents would have liked. Accordingly, as we discuss more thoroughly below, we can not conclude that the decision to forego an EIS was “arbitrary or capricious” or “without observance of procedure required by law” under the APA. 5 U.S.C. § 706(2). B. The Cumulative Impact of the Project on the Neighborhood. As noted above, CEQ regulations provide the framework for how cumulative impacts are to be addressed in an EA. When an EA concludes with a FONSI, an agency is required to briefly present why an action will not have a significant impact on the human environment. 40 C.F.R. § 1508.13. CEQ identifies factors that should be considered in determining whether an impact is significant. 40 C.F.R. § 1508.27. Although the impact of a particular project may be inconsequential when considered in isolation, if the cumulative impact of a given project and other planned projects is significant, an applicant can not simply prepare an EA for its project, issue a FONSI, and ignore the overall impact of the project on a particular neighborhood. 40 C.F.R. § 1508.27(b)(7). Thus, CEQ directs agencies to consider: Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. Id. CEQ defines “cumulative impact” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. HUD directs entities conducting environmental reviews to “group together and evaluate as a single project all individual activities which are related either on a geographical or functional basis, or are logical parts of composite of contemplated actions.” 24 C.F.R. § 58.32(a). In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) the Supreme Court addressed the question of when the cumulative impact of other projects must be included in an environmental analysis. The Court stated “when several proposals for [ ] actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.” Id. at 410, 96 S.Ct. 2718. The Court noted however, that the concept of “cumulative impact” was not intended to expand an inquiry into the realm of the fanciful. The statute, however, speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated action later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects. Id. at 410 n.20, 96 S.Ct. 2718. In National Wildlife Federation v. FERC, 912 F.2d 1471, 1478 (D.C.Cir.1990), the Court of Appeals for the D.C. Circuit amplified the holding in Kleppe as follows: Kleppe thus clearly establishes that an EIS need not delve into the possible effects of a hypothetical project, but need only focus on the impact of the particular proposal at issue and other pending or recently approved proposals that might be connected to or act cumulatively with the proposal at issue. In Sien-a Club v. Froehlke, 534 F.2d 1289, 1297 (8th Cir.1976), the Court of Appeals for the Eighth Circuit summarized the then existing case law pertaining to “segmentation” — another term for expressing the cumulative impact of a project. The court stated: Where it is found that the project before the court is an essentially independent one, an EIS for that project alone has been found sufficient compliance with the act. In such a case there is not irretrievable commitment of resources beyond what is actually expended in an individual project. Similarly, in Webb v. Gorsuch, 699 F.2d 157, 161 (4th Cir.1983), the court concluded: Generally, an administrative agency need consider the impact of other proposed projects when developing an EIS for a pending project only if the projects are so interdependent that it would be unwise or irrational to complete one without the others. That standard was adopted by the Court of Appeals for the Tenth Circuit in Park County Resource Council v. USDA, 817 F.2d 609, 623 (10th Cir.1987), overruled on other grounds, Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992), and Airport Neighbors Alliance v. U.S., 90 F.3d 426, 433 (10th Cir.1996). In Airport Neighbors Alliance, the court found that the remaining components of the airport’s master plan were not “so interdependent that it would be unwise or irrational to complete the Runway 321 upgrade without them.” Id. Accordingly, the court held that the FAA had not “inappropriately ignored cumulative impacts when it failed to analyze extensively the remaining components of the Master Plan in the EA.” The court reasoned that, “requiring a cumulative EIS analyzing possible future actions postulated in a twenty-year Master Plan that are far from certain would result in a ‘gross misalloeation of resources, would trivialize NEPA and would diminish its utility in providing useful environmental analysis for major federal actions that truly affect the environment.’ ” Id. at 431 (quoting Park County, 817 F.2d at 623). Similarly, under circumstances analogous to those presented here, the Court of Appeals for the Fifth Circuit concluded that the City of New Orleans appropriately limited its environmental review under the UDAG program to a proposed hotel, retail and parking development. Vieux Carre Property Owners v. Pierce, 719 F.2d 1272 (5th Cir.1983). The court concluded that other phases in the City’s Master Plan for the area affected by the UDAG grant project (Phases III through V) were “indefinite and speculative in nature; [as] no final plans nor private funding commitments exist as to Phases III through V, and no further design work or land acquisition as to Phases IV and V has been performed since 1978.” Id. at 1275. Although we realize that some courts have adopted a more expansive approach to requiring a UDAG applicant to determine cumulative impact, we agree with the holding in Webb that such a determination must be governed by considerations of whether other projects are so “interdependent that it would be unwise or irrational to complete one without the others.” Webb, at 161. However, we believe that a court must also consider the likelihood that a given project will be constructed along with the interdependence of other projects. The more certain it is that a given project will be completed, the more reasonable it is to require a UDAG applicant to consider the cumulative impact of that project and the applicant’s project in determining the applicant’s obligations under the applicable regulations. The Residents contend that the City’s EA was deficient because the City did not consider the impact of future development that had been identified in several planning documents including a proposed “mega” entertainment complex planned at Penn’s Landing. However, projects that the City has merely proposed in planning documents are not sufficiently concrete to warrant inclusion in the EA for the hotel/parking garage project at issue here. The district court correctly focused upon the likelihood that the other projects will be completed as well as the interdependence of the hotel/parking-garage and those other projects. In doing so it stated: First, the Court notes that the evidence does not suggest that the City could not sever any connection between the hotel and other projects without destroying the proposed action’s functionality. Second, plaintiffs do not point to any evidence in the administrative record that realization of the future plans was, indeed, expected to materialize. NEPA only requires consideration of the cumulative impact of proposed, and not merely contemplated future actions. Where future development is unlikely or difficult to anticipate there is no need to study cumulative impacts. Thus, the Court concludes that based on the record, the City was not required to conduct a cumulative impact analysis as part of the EA. 20 F.Supp.2d at 870 (citations and internal quotations omitted). Although an EA may need to include a cumulative impact analysis even if it is practical to sever any connection between a project and other projects if it is sufficiently certain that such other projects will be constructed, we nevertheless agree with the district court’s analysis here. It is not at all certain that the proposed “mega” entertainment complex or any of the projects included in the planning documents will ever be completed. Moreover, even if the Residents could establish that these projects were going to be completed, that finding would not undermine the City’s FONSI because the district court concluded that those projects and the hotel/parking garage are not sufficiently interdependent. The success of a hotel and parking garage in the Penn’s Landing is not tied to construction of an entertainment complex. Moreover, plans for the Penn’s Landing area appear to change regularly. Given the circumstances here, the City should not be required to evaluate and reevaluate the environmental impacts of such projects as part of the EA for this UDAG application with every change in the plans for development of Penn’s Landing no matter how tenuous the contemplated project may be. C. Alternatives to the Project. NEPA requires all Federal agencies to “[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4331(2)(E). The CEQ regulations require that BIAs include a brief discussion of the need for the proposal, of alternatives as required by section 102(2)(E) of NEPA, and of the environmental impacts of the proposed actions and alternatives. HUD regulations require an EA to "[ejxamine and recommend feaalble ways in which the project or external factors relating to the project could be modified in order to eliminate or minimize adverse environmental impacts" and "[e]xamine alternatives to the project itself, if appropriate, including the alternative of no action." 24 C.F.R. § 58.40(d) & (e). The Residents contend that the. City's finding of no significant impact is arbitrary and capricious because the City improperly rejected an alternative location for the project. Appellants' Br. at 41. The Residents urged the City to consider locating the proposed hotel just south of the foot of Market Street. Id. The Residents contend that location is better suited for a hotel because it is a larger site which will allow a structure with a larger footprint and a lower overall profile, while providing the same total capacity without leading traffic directly into the narrow streets of Society Hill via Dock Street. Id. The Residents state, and the City does not dispute, that the City rejected the alternative location because the Development Plan adopted by the City Planning Commission prohibits the construction of structures at the ends of various streets to protect east-west views from Center City to the river, the location would have a closer proximity to resources listed on the National Register of Historic Places, and the alternative location would have required alteration or relocation of several interceptor sewer~ at significant cost. Id. The Residents contend that these reasons are not legitimate, however, because the City has planned since 1963 to build a 50-story office tower at the alternative location. Id. NEPA only requires that appropriate alternatives be considered. 42 U.S.C. § 4332(2)(E). NEPA does not mandate that any particular alternative be selected during an EA. See Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719, 730 n. 9 (3d Cir.1989)(NEPA imposes procedural requirements, not substantive outcomes). The City did consider the alternative proposed by the Residents and the City provided reasons for not selecting that alternative location. While the City did not select the location preferred by the Residents, the City notes that new traffic anal-yses were conducted and included in the record in response to concerns raised during the public comment period. The Residents would have us view the City's reasons for not selecting the alternate location as arbitrary and capricious because the City allegedly has had plans for over 25 years to build a larger structure at this same location near the foot of Market Street. The Residents have not shown, however, that the City actually intends to build that structure. D. The Controversial Nature of the UDAG Application. Under a heading entitled: "The Public Outcry Demands Preparation of an EIS," the Residents argue, "[e]xistence of a public controversy relating to a project is a factor that an agency should consider in assessing whether to prepare an EIS." Appellants' Br. at 43. The CEQ identifies ten factors that should be considered in determining if a project's impact is so significant that an EIS is required, and one of these factors is the degree to which the effects on the quality of the human environment are likely to be highly controversial. 40 C.F.R. § 1508.27(b)(4). However, in Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir.1972), the court states: [T]he term "controversial" apparently refers to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rath- er than to the existence of opposition to a use, the effect of which is relatively undisputed ... The suggestion that “controversial” must be equated with neighborhood opposition has also been rejected by others. Here, the Residents have not raised a substantial dispute regarding the environmental effects identified by the City in its EA for this project. Rather, the controversy here centers on the Residents’ opposition to the City’s choice of location for the project. Moreover, even if the issues that the Residents raise could be deemed to raise a “controversy” under the regulations, it is important to note that the existence of a controversy is only one of the ten factors listed for determining if an EIS is necessary. Given the nature of the “controversy” involved and the fact that degree of controversy is only one of ten factors to be considered in determining whether a significant impact is present, we can not conclude that the City’s decision to issue a FONSI was arbitrary and capricious. Y. Approval Under NHPA Finally, the Society Hill Residents contend that the district court erred in granting summary judgment to the City and HUD on the Residents’ claim under NHPA. Regulations implementing NHPA are set forth in 86 C.F.R. § 800.1 et seq. The regulations . include specific requirements for implementing NHPA under the UDAG program. 36 C.F.R. § 801.1 et seq. The UDAG regulations provide that the UDAG applicant, rather than HUD, must comply with the regulations. 36 C.F.R. § 801.2(b). A UDAG applicant is required to identify National Register properties, and properties that may meet the criteria for listing on the National Register, that may be affected by the project. 36 C.F.R. § 801.3(b). The applicant is also required to determine the effect of the project on these properties pursuant to criteria set forth in the regulations. 36 C.F.R. § 801.3(c). If an applicant determines that the project will have no effect on any identified historic properties, the project requires no further review by the Advisory Council on Historic Preservation (hereinafter “Council”) “unless a timely objection is made by the Executive Director.” 36 C.F.R. § 801.3(c)(2)(i) (emphasis added). An applicant is required to seek comments from the Council to satisfy the applicant’s responsibilities under section 106 of NHPA. 36 C.F.R. § 801.4. The regulations require the following: Upon receipt of a Determination of No Adverse Effect from an applicant, the Executive Director will review the Determination and supporting documentation required by § 801.7(a). Failure to provide the required information at the time the applicant requests Council comments will delay the process. The Executive Director will respond to the applicant within 15 days after receipt of the information required in § 801.7(a). Unless the Executive Director objects to the Determination within 15 days after receipt, the applicant will be considered to have satisfied its responsibilities under section 106 of the Act and these regulations and no further Council review is required. 36 C.F.R. § 801.4(b)(1). The documentation required to support a Determination of No Adverse Effects includes: (i) A general discussion and chronology of the pro posed project; (ii) A description of the proposed project including, as appropriate, photographs, maps, drawings and specifications; (iii) A copy of the National Register form or a copy of the Determination of Eligibility documentation for each property that will be affected by the project including a description of each property’s physical appearance and significance; (iv) A brief explaining why each of the Criteria o f Adverse Effect (See statement § 801.3(c)(1)) was found inapplicable; (v) Written views of the State Historic Preservation Officer concerning the Determination of No Adverse Effect, if available; and, (vi) An estimate of the cost of the project including the amount of the UDAG grant and a description of any other Federal involvement. 36 C.F.R. § 801.7(b)(1). During oral argument we expressed our concern that the record did not reflect that the City had afforded the Advisory Council for Historic Preservation an opportunity to respond to the City’s finding that the UDAG project would have no adverse affect on the nearby historic district and we asked the parties to submit documentation to support their respective contentions on this issue. See 16 U.S.C. § 470f. The City responded in a letter in which it asserted that review by the Advisory Council was not required under 36 C.F.R. pt. 801 (“Part 801”) because HUD had delegated the responsibility for assessing the project’s impact on the historic district to the City, and the City had determined that there was no impact. In response, the Residents agreed with the City’s assertion that the applicant’s determination of no effect eliminates the necessity for further review by the Council “unless a timely objection' is made by the Executive Director,” 36 C.F.R. § 801.3(c)(2)(I). However, the Residents argued that: the City’s determination of no impact was never submitted to the Executive Director; the City never made a determination of no effect on any National Register property under NHPA (as distinct from any review under NEPA); and the Pennsylvania Historical and Museum Commission failed to make its views known as is required under 36 C.F.R. § 801.3(b)(5), as the Commission “merely accepted the findings of the City’s Historical Preservation Officer;” and that the Philadelphia Historical Preservation Officer “was demonstrably wrong when he found that a visual barrier protected Society Hill and Old City from the visual impact of the hotel tower and garage wall.” However, in their brief on appeal, the Residents’ only asserted the following challenge to the City’s failure to seek approval of the Advisory Council: The District Court concluded that the City met its delegated responsibility under the NHPA which made review by the Advisory Council unnecessary. The record, however, shows that the findings on historical impact were based upon the City Historical Preservation Officer’s belief that “construction along Front Street obstructs the view of the proposed hotel from the historic district,” and that the result of this “visual barrier” is that “the proposed hotel development on Penn’s Landing will have no effect on the Society Hill National Historic District.” This conclusion is clearly erroneous .... Appellants’ Br. at 47. Accordingly, the allegations of error asserted by the Residents in their letter, other than the assertion that the findings on historical impact were clearly erroneous, have been waived and we will not now address them. Although the Residents clearly disagree with findings pertaining to the line of sight of the proposed project, and the project’s impact on the historical district, those findings are not clearly erroneous. Accordingly, we conclude that the district court did not err in holding that no further authorization from the Advisory Council was required. VI. Accordingly, for the reasons set forth above, we will affirm the district court’s grant of summary judgment to the City and HUD on the Residents’ APA, NEPA and NHPA claims. . Individual appellants are Robert D. Green-baum, Zoe Coulson, John Q. Lawson, Jeremy Siegel, Penelope H. Batcheler, Gray Smith, and Roxanne Galeota. . The residents eventually filed suit in district court to stop HUD from entering into a new agreement for dispersal of funds under the fifth amendment, but that suit was subsequently dismissed without prejudice because HUD had not approved the City's request. Accordingly, there was no final agency action, and therefore the district court did not have subject matter jurisdiction. . In addition to assuming responsibility for environmental review under NEPA, HUD requires the grant recipient to comply with requirements that would apply to HUD relating to historic properties, floodplain management and wetland protection, coastal zone management, sole source aquifers, endangered species, air quality, farmlands protection, HUD environmental standards, and environmental justice. 24 C.F.R. § 58.5. . HUD identifies factors that the grant recipients should consider in determining whether to hold public hearings during an EIS. 24 C.F.R. § 58.59(a). These factors include (1) the magnitude of the project in terms of economic costs, the geographic area involved, and the uniqueness or size of commitment of resources involved; (2) the degree of interest in or controversy concerning the project; (3) the complexity of the issues and the likelihood that information will be presented at the hearing which will be of assistance to the responsible entity; and (4) the extent to which public involvement has been achieved through other means. Id. The Residents point to these factors to support their contention that the City was required to hold public hearings before making its decision to issue a FONSI. Appellants’ Br. at 25. These factors, however, only apply to the determination of whether to hold public hearings during an EIS. . In 1996, HUD repealed the provisions of 24 C.F.R. pt. 570, subpt. G, relating to the application and approval of new UDAGs, characterizing these regulations as "obsolete” because no funds had been appropriated for new UDAGs for a number of years. The City and HUD agreed to use the repealed requirements as a familiar guide to ensure compliance with the statutory requirements imposed by the UDAG program. City’s Brief at 10 n. 4. . Indeed, the City’s own brief substantiates the Residents’ fervor, and the depth of their interest in the outcome of the City's UDAG application. The City notes: "The Plaintiffs oppose the Project and have commenced three separate lawsuits to stop it. They have prosecuted five appeals to keep two of those lawsuits alive. They have protested, collected signatures and written letters. They have testified at public hearings....” City’s Br. at 4. Of course, the intensity of a party's opposition can not, by itself, create a case or controversy in the absence of a significant interest in the outcome that is sufficient to confer subject matter jurisdiction under Article III. However, the intensity of the Residents’ opposition here is relevant to an evaluation of whether they have a sufficient interest in the outcome to have standing. We think it obvious that their interest in the City's UDAG application is genuine, and the nexus between the challenged conduct and their asserted. injuries is sufficiently immediate to establish standing. . As noted above, this application was actually the fifth amendment to a UDAG application first approved by HUD in 1986 to partially fund a festival park at Penn's Landing. Because this amendment proposed a completely new project, the City was required to comply with all the requirements of the UDAG program. 24 U.S.C. § 570.463(b)(2). . See LaFlamme v. FERC, 852 F.2d 389 (9th Cir.1988). There, the court concluded that the applicant’s finding of no potential for adverse cumulative impact on the environment could not be sustained because the applicant ''[had] not considered the impact that all past, present, and reasonably foreseeable future projects may have on the basin’s resources, .... ” Id. at 402. . The Residents point to six plans referenced by the City in its environmental assessment: the Comprehensive Land Use Plan; the Plan for Center City; the Penn’s Landing Master Plan; the Penn’s Landing Development Plan; the Central Riverfront District Plan; and the River Walk Plan. . ''[W]e do not propose to attempt the im-n possible, namely, the enunciation of a general rule that will cover all cases. The crucial dependence is upon the facts before the court in the particular case sub judice." Sierra Club v. Froehlke, 534 F.2d 1289, 1297 (8th Cir.1976). . We note that NHPA appears to require that the appropriate agency or the applicant (where, as here, the agency delegates compliance to the applicant) obtain the review of the Advisory Council. NHPA states that the appropriate agency: shall, prior to the expenditure of any federal funds on [an] undertaking ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f (emphasis added). Accordingly, the procedure authorized under 36 C.F.R. § 801.3(c)(2)(i) appears to be inconsistent with the statute. However, as noted above, the Residents did not raise this issue in their opening brief and we will not now address it. See Laborers' Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994)("An issue is waived unless a party raises it in its opening brief.... ”).

Vieux Carre Property Owners, Residents & Associates, Inc. v. Pierce

JOHNSON, Circuit Judge: Appellants, Vieux Carre Property Owners, Residents and Associates, Inc., and the Louisiana Landmark Society, filed this lawsuit against the United States Department of Housing and Urban Development (HUD) and the City of New Orleans (the City) seeking to enjoin the use of federal funds granted to the City pursuant to an Urban Development Action Grant (UDAG). The grant would fund public improvements adjacent to Canal Place, Phase I, to be used in connection with Canal Place, Phase II. Phase II is a hotel, retail and parking development presently under construction in the Central Business District of New Orleans near the foot of Canal Street. Plaintiffs argue that federal funds should be withheld because the City, as the entity delegated responsibility for an environmental and historic preservation review, had not complied with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4821, et seq., and the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470, et seq. The developer of Canal Place and beneficiary of the UDAG funds, Canal Place 2,000, intervened in the lawsuit. A temporary restraining order halting construction was denied and summary judgment was granted by the district court in a well-reasoned opinion on August 10,1982 in favor of HUD, the City, and Canal Place 2,000, dismissing plaintiffs’ lawsuit. Plaintiffs have appealed against the City and Canal Place 2,000, but have not pursued an appeal against HUD. We affirm the district court’s decision. I. Facts The City of New Orleans is an eligible recipient of UDAG funds under Title I of the Housing and Community Development Act of 1974 (HCDA), as amended 42 U.S.C. § 5301, et seq., and its implementing regulations, 24 C.F.R. § 570, et seq. Action Grants provide assistance to “distressed cities” to stimulate private and public investment and strengthen the economic, employment and tax bases of the urban area. See generally, 24 C.F.R. § 570.450(a). On January 20, 1981, the City filed a grant application with HUD for UDAG funds to implement public improvements associated with a hotel, retail and parking complex (Canal Place, Phase II) to be constructed near the river end of Canal Street. More particularly, the UDAG project is planned as a 511-room hotel, a 223,000 square-foot multi-level shopping mall and a parking facility to accommodate 1550 vehicles. The federal funds requested in the grant application will be used for the following civic improvements to be enjoyed by the citizenry at large: 1. Sidewalk construction within the vicinity of Canal Place; 2. Streetlighting within the vicinity of Canal Place; 3. Landscaping within the vicinity of Canal Place; 4. Elevated pedestrian walkway from Canal Street to the Mississippi River Ferry; 5. Relocation of New Orleans Public Service, Inc. (NOPSI) power lines and support lines; and 6. NOPSI substation screening. Canal Place 2,000, a Louisiana ordinary partnership and joint venture, is the developer of the project. Joseph Canizaro, the managing partner, is a well-respected developer of numerous office buildings in downtown New Orleans and is active in various civic organizations concerned with urban growth in New Orleans. Although the City requested a grant in the amount of $10 million, HUD preliminarily approved a $6 million grant for the public improvements in April of 1981. The developer will expend over $100 million of private funds on the UDAG project. Although the overall Canal Place development was once envisioned as a thirteen-acre development extending from Canal Street to Conti Street in the Vieux Carre District and from Decatur Street to the river’s edge, the UDAG site actually proposed in the instant case (Canal Place, Phase II) is bounded by Canal Street, North Peters Street, Ibberville Street, and the NOPSI substation. Phase II is adjacent to a presently existing thirty-two story office building (Phase I) in operation since 1979. A master plan developed in the mid-70’s contemplated three later phases (a total of five phases) in the complete thirteen-acre development. Although plaintiffs would have the court believe that the five-phase master plan is a “fait accompli,” Phases III through V are indefinite and speculative in nature; no final plans nor private funding commitments exist as to Phases III through V, and no further design work or land acquisition as to Phases IV and V has been performed since 1978. Indeed, the developer owns none of the land or air rights for Phase IV but owns some but not all the land for Phase V. Phase II is located in the Central Business District in an area containing numerous hotels. Although the UDAG project area is located within the Vieux Carre National Historic Landmark District, it is not under the jurisdiction of the Vieux Carre Commission. The UDAG is a key component of the economic development strategy for downtown New Orleans and was intended to provide a retail anchor at the lower end of Canal Street, needed hotel rooms to bolster the City’s vital tourist industry, and a stimulus for restoration of existing deteriorated buildings in the immediate area. The private development portion of the UDAG project has been publicly scrutinized since its inception by the City Planning Commission, the Mayor’s Office on Special Projects, the Vieux Carre Commission and countless civic organizations and boards. Contrary to the plaintiffs’ suggestion, the UDAG project has been assessed, modified, and reassessed in order to arrive at a final Phase II that is in conformity with all applicable zoning ordinances. The Phase II site is a part of the Central Business Plan Community District, a zoning district developed and approved after a lengthy review process before the City Planning Commission and the City Council. Under NEPA and NHPA, HUD is responsible for conducting an environmental and historic preservation review of this UDAG project. A provision of the Housing and Community Development Act, 42 U.S.C. § 5304(h)(1), authorizes HUD to delegate to the UDAG applicant the responsibilities for environmental review, decision-making and action. The City was the UDAG applicant. Accordingly, the City Planning Commission, in coordination with the Mayor’s Office of Federal Programs and Special Projects, undertook the responsibility for assessing the impact of Phase II upon the surrounding environment, including the adjacent Vieux Carre. The assessment process commenced shortly after the UDAG application was filed. Phase II development plans were presented at two public meetings on January 28, 1981 and February 24, 1981. The effects of the UDAG project on the surrounding environment were assessed, including but not limited to effects upon the soil, the archeological remains, the water and air, the socioeconomic conditions of the area, the visual effects and the traffic. Various agencies were consulted during the review process. In accordance with the provisions of NHPA, the City requested the State Historic Preservation Officer (SHPO) to render an opinion as to whether Phase II and the UDAG-funded public improvements would have an impact on the Vieux Carre. The SHPO and his staff reviewed the UDAG project, consulted with the Vieux Carre Commission, the City, and the developer, and made site visits, thereafter con-eluding that they had no objections to Phase II implementation. The developer had consulted with the Vieux Carre Commission on an ongoing and informal basis in regard to the Canal Place project since the mid-70’s. After the UDAG application was submitted, Phase II was officially presented to the Commission, and it approved the federally-funded improvement, including relocating NOPSI power lines into the Vieux Carre. The results of the City’s environmental and historic preservation review were compiled in a comprehensive Final Environmental Assessment, presented to the City Planning Commission and adopted by the Commission on May 6, 1981. In all, a 298-page environmental assessment was submitted to HUD for final approval. This assessment is the backbone of the efforts of the City and developer to examine the environmental and historic impact of the project and to familiarize the citizenry with a UDAG project that will provide 954 new jobs, increase the federal, state and city tax base, provide a boost to the tourist industry and revitalize a vacant underdeveloped section of the Central Business District near an already developed and bustling tourist attraction — the Vieux Carre historic district. The City and the developer vigorously defended their Final Environmental Assessment as a document in full compliance with the requirements of NEPA and NHPA. The district court, after thoroughly reviewing the City’s historic and environmental review process, rendered summary judgment in favor of the City, HUD and Canal Place 2,000, concluding that the City’s environmental assessment complied with NEPA and NHPA. This appeal followed. II. Merits Appellants make several attacks upon the district court’s granting of a summary judgment in favor of the City and Canal Place 2,000. Specifically, appellants contend that the City’s environmental and historic review was defective since the UDAG proposal concentrated only on Phase II, omitting Phases III and V from the City’s NEPA and NHPA review. Appellants also maintain that the City improperly concluded that an environmental impact statement was unnecessary and that the City failed to investigate, mitigate and consider alternatives to Phase II as required under federal legislation. Finally, appellants contend that the City’s environmental assessment was defective in its treatment of several factors and does not constitute the “hard look” required by NEPA. In reviewing the district court’s granting of the summary judgment, we apply well-settled principles of appellate review. This Court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the party opposing summary judgment. When viewed in this light, we must determine whether there is any genuine issue as to any material fact and whether the movant is entitled to summary judgment as a matter of law. See Fed.R. Civ.P. 56(c); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); and United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir.1975). As did the district court, we find “no disputed question of fact material to the determination of the reasonableness of the City’s decision.” A. The Scope of the UDAG Project Appellants strenuously contend that the City improperly limited its environmental and historic review to Phase II, since preliminary planning and designing had been undertaken for Phases III and V. Indeed, most of the plaintiffs-appellants’ criticisms have been directed at an uncertain Phase III which, as originally planned, would consist of a 750-foot office tower. Throughout the proceedings, plaintiffs have attempted to redefine the UDAG project to include Phase III so that it, too, would be the subject of an environmental assessment. Equating the plans laid for Phase III, when Canal Place was originally conceived, with the present commitment to build, the plaintiffs have implied that Phase - III is a present reality that was omitted from the UDAG application for the sole purpose of avoiding environmental scrutiny. However, nothing in the record supports this view. As the district court found, all indications are that plans for Phase III and other future phases have been shelved for economic and other reasons. HUD regulations established some pertinent guidelines for the proper scope of environmental review under NEPA. An “activity” encompasses “[t]hose actions funded or authorized to be funded with Title I assistance and those related actions which are not so funded or not authorized ...” but which are put forth by the applicant as part of its strategy for the treatment of a project area. 24 C.F.R. § 58.2(a)(1). Regardless of funding sources, integrally related activities designed to accomplish, in whole or in part, a specific goal are to be grouped together for consideration as a single project. Moreover, closely related and proposed or reasonably foreseeable actions that are related by timing or geography also must be considered together. Naturally, the UDAG-funded public improvements are part of the “activity”: relocation of power lines; the NOPSI substation screening and landscaping of other public areas; street lighting and construction of an internal circular roadway; and construction of sidewalks and an elevated pedestrian walkway to the Mississippi River Ferry. In spite of the private funding for the hotel and shopping mall of Phase II, this construction was grouped together with the UDAG-funded improvements for consideration as a single project because it was integrally related and part of the developer’s strategy for “the treatment of the project area.” 24 C.F.R. § 58.2(a)(1). Plaintiffs contend that Phases III and V should also be included in the project definition because they were included in the developer’s mid-70’s master plan for the site, would share uncertain Phase II amenities, if constructed, and would benefit from some of the improvements financed by the UDAG. However, none of these factors remove Phases III and V from the planning stages where they have remained without any progress that would invite or even allow environmental and historic review. Although an earlier UDAG application included Phases II and III in its project description, that UDAG application was withdrawn in 1979 since there was no firm financial commitment for Phase III. That application was withdrawn in accordance with 24 C.F.R. § 570.458(c)(5), which declares that “[n]o application will be considered feasible and effective unless there is evidence of at least a firm private commitment [of financial resources] and if necessary, a firm public commitment.” See also 24 C.F.R. §§ 570.451(i) and (j). That experience undoubtedly affected the 1981 draft of the UDAG application, which would have failed again to satisfy the financial commitment requirement if the financially unsound Phases III and V had been included. Indeed, there were not even detailed drawings on which cost estimates could be based, much less a firm financial commitment. Contrary to plaintiffs’ speculation that future phases have become more probable with the passage of time, the developer testified without contradiction that the last designs for Phase III had been prepared before the first UDAG application was withdrawn and that these designs would not support a financial commitment. Witness Canizaro testified: Q. Hasn’t Phase III been successfully designed to attempt to get financial backing for it? A. No, Sir. Q. But you had given Aetna sufficiently detailed presentation with respect to the size of the building and the space available in the building and the location of the building so that Aetna could express an interest? A. That is not correct. Aetna expressed an interest because they had done the first building. * * sfc ifc * * As I indicated there are many things that would have to be done before Aetna would issue a commitment. I have already indicated leasing to be one, I can enumerate many. Another obviously is a more complete set of plans, pricing from a contractor — many, many things. See Appellee’s Exhibit 57, at 21-22. Moreover, Canizaro explained that before a development, especially an office building would be ready for construction or ready to secure funding, a major tenant must be obtained: “I would say Phase III would not be built without a major tenant and we have not had a major tenant in hand.” Id. at 42. For these and other reasons, Canizaro said funding had neither been sought nor obtained for Phase III, id. at 23-24; and testimony that there had been meetings with potential lenders, which apparently came to naught, does not offer the contradiction plaintiffs see in it. As to Phase V, there was even greater uncertainty. David Richardson, Project Director, described the state of the plan for Phase V: “There are a series of studies showing various alternatives, what offices are available and recommendations as to what the best direction to go was.” See Appellee’s Exhibit 55, at 26-27. In the words of Joseph Canizaro, “You would have to call it very preliminary outline sketches of subsequently developed model that would give us some idea of density, height, aesthetic finish [and] those type elements that were so necessary in doing some economic analysis and impact analysis and aesthetic analysis.” See Appellee’s Exhibit 57, at 13. Significantly, it is also clear beyond material factual dispute that the developer did not own all the land on which he proposed to situate Phase V. While public improvements funded by the UDAG might incidentally benefit future phases should they ever be built, all were necessary for the construction of Phase II, which was designed to stand alone: “[P]hase II was designed so it can function perfectly normal forever and ever without Phase III ever being built.” Appellee’s Exhibit 55, at 48. Confronted with a project that had independent utility, the City properly determined that it should be assessed independently of future speculative phases. Not only was the decision imminently reasonable under the facts before the City, it was entirely consistent with this Court’s holdings that “NEPA does not require an agency to consider the possible environmental impacts qf less imminent actions when preparing the impact statement on proposed actions.” South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1015 (5th Cir.1980), quoting Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 2730 n. 20, 49 L.Ed.2d 576 (1976). As was the situation in Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th Cir.1981), “we are here dealing with two projects that are historically distinct, one of which is proposed and the other still in the process of study and design. In that situation, NEPA does not yet require the [agency] to evaluate the environmental impact of the [second project].” Id. at 999. Appellants also suggest that exclusion of Phases III and V from the historic and environmental review will violate this Court’s holding in Piedmont Heights Civic Club v. Moreland, 637 F.2d 430 (5th Cir. 1981), since such a decision will foreclose the opportunity to consider alternatives to the proposed development and irretrievably commits federal funds for closely related projects. See Piedmont Heights Civic Club v. Moreland, 637 F.2d at 439. According to the plaintiffs, the district court overlooked the second half of the Piedmont Heights test — foreclosure of the opportunity to consider alternatives and irretrievable commitment of federal funds for closely related projects. Id. As we have seen, however, the City reasonably concluded that Phases III and V were indefinite and remote, with major obstacles in the path of their construction. Because funding has not been secured at all for any future phase, there is no basis for speculating whether it might (if ultimately undertaken) be private or public; if the projects were constructed and federal funds were used again, another environmental review necessarily will be undertaken. By finding that future phases were speculative and expressly limiting its decision to Phase II, the district court, in effect, determined that, as in the case of any indefinite plan, the opportunity to consider alternatives had not been foreclosed and federal funds had not been irretrievably committed to related projects. As did the district court, we expressly limit the scope of our review to Phase II. The doors of the courts remain open should federal funding be utilized in connection with any future development of Phases III-V. B. The City's Determination Not to File an Environmental Impact Statement The appellants contend that the district court erred by concluding that the city reached a reasonable decision when it decided not to file an environmental impact statement. According to the appellants, Canal Place, Phase II will have a significant effect on the quality of the human environment and, hence, an environmental impact statement should have been prepared by the City. We disagree. The standard of judicial review concerning the City’s failure to file an environmental impact statement was recently set forth by this Court in Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th Cir. 1983). As Chief Judge Clark noted: “the standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and made in good faith on a reviewable environmental record. If the decision is reasonable, ‘the determination must be upheld.’ ” Id. at 644, quoting Save the Bay, Inc. v. United States Corps of Engineers, 610 F.2d 322, 325 (5th Cir.), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). The appellants carry the burden on appeal of demonstrating that Canal Place, Phase II will significantly degrade the human environment in this bustling metropolitan area of New Orleans. See Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973). In affirming the City’s decision not to file an environmental impact statement the district observed: Phase II will be erected in the midst of downtown New Orleans in an area abounding with similar hotel facilities and retail outlets. Its 511-room hotel is intermediate in size when compared to other downtown hotels. Phase II is lower in height than Phase I and other downtown buildings already in place. As the plaintiffs admit, it also conforms with existing zoning ordinances. Such compliance is indicative of no significant NEPA effect. Record, vol. 1, at 960. There is no hard and fast definition of “significant” effect. In the absence of any congressional interpretation of the term, the courts have struggled to give it concrete meaning. As we have seen, the district court clearly considered the context of Phase II and concluded, based upon the administrative record, that the City’s conclusion not to file an environmental impact statement was a reasonable decision. As the district court noted, Phase II does not constitute a radical departure from the surrounding business area. Located outside the Vieux Carre district, squarely within the Central Business District, Phase II is within the immediate vicinity of the Sheraton and Marriott Hotels which rise well above Phase II. Moreover, Phase I, already in place beside Phase II, is more than 100 feet higher than Phase II. Whatever the visual impact on the Vieux Carre — positive or negative — the City’s reasonable conclusion that it would be “minimal” is perhaps best explained by the testimony of a member of the Advisory Council that the building would hardly be visible at all from within the French Quarter: I was not able to see the 32-story Phase I tower from any perspective unless I got within a block, inside of a block of the Vieux Carre. And I will say, however, at one point, standing up on top of a fire hydrant, I was able to see the top of a structure. See Final Environmental Assessment at 185. While the plaintiffs’ experts might disagree with the City’s conclusion, there is no basis for argument that it was unreasonable. The City also gave extensive consideration to the traffic consequences of Phase II, and we affirm the district court’s finding that “plaintiffs present no evidence suggesting that the City is not taking a hard look at the traffic implications, .... ” Certainly, the City’s finding is not unreasonable. See Save Our Wetlands, Inc. v. Sands, 711 F.2d at 644. C. The City’s Consideration of Mitigating Alternatives Appellants maintain that the city failed to mitigate and consider alternatives to Phase II as required under federal legislation. NEPA requires the federal agency (or grant applicant) to consider “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332(C)(ii). The implementing regulations relative to UDAG grants further require consideration of “ways in which the project or external factors relating to the project could be modified in order to eliminate or minimize any adverse environmental impacts and enhance environmental quality.” 24 C.F.R. § 58.-15(c)(1). Recognizing the sensitive character of the Vieux Carre historic district, Canal Place 2,000 and the City worked together to insure that the Phase II structures would be as aesthetically compatible as possible with the adjacent Vieux Carre properties. In order to maintain a harmonious height relationship with existing structures across North Peters and Ibberville Streets, Phase II was partially set back from the lot line; at the lot line facade heights were limited to those of the structures across the street. These modifications prevented a sharp visual contrast at the street level and provided a gradual transition across architectural styles. Additionally, the facing of the Phase II building, which was originally to have been the same “high tech” material that covers the existing Phase I office building, was changed to masonry to blend more smoothly with existing masonry structures. Clearly, the City considered the possible environmental ramifications of Phase II and undertook all reasonable methods of limiting and mitigating any adverse environmental effects. Plaintiff’s overriding concern about traffic flow was also addressed, and the problem was ameliorated by careful planning. Extensive studies were undertaken by the City and Canal Place 2,000 to provide for the efficient flow of vehicular traffic. The design and construction of an internal circular roadway with UDAG funds insures that the vast majority of vehicles will use Canal Street and the traffic will thus be routed away from the Vieux Carre. In addition to the foregoing, amenities were provided to enhance the environment for Phase II as well as nearby Vieux Carre pedestrians. One mini-park will be located on the Canal Street frontage. A major arcade will join Canal and Ibberville Streets through the center of Phase II, and the elevated pedestrian walkway will enable pedestrians to avoid crossing the circulating roadway and the L & N railroad tracks. These measures clearly satisfy the requirements of NEPA. The measures will not only mitigate any potential adverse impacts but will also enhance an area that was formerly a picture of urban blight and badly in need of the stimulus for restoration that Canal Place will provide. Appellants also maintain that the district court erred by concluding that the City and Canal Place 2,000 had complied with NHPA requirements. The National Historic Preservation Act, 16 U.S.C. § 470, et seq., was enacted in 1966 to encourage the preservation of historic properties. The Act authorized the Secretary of Interior to maintain a national register of districts, sites, building structures, and objects significant in American history, architecture, archeology and culture. Because Canal Place, Phase II is being constructed in a National Historical Landmark District registered with the Secretary of Interior and is adjacent to the Vieux Carre, a national historic landmark, the City, as HUD’s authorized delegate, was required to “take into account the effect of the [project]” on historic properties and to afford the Advisory Council on Historic Preservation an opportunity to comment on the project before approving the expenditure of federal funds. 16 U.S.C. § 470f. Additionally, in 1980, Congress amended the Act, adding section 110(f), which further requires an agency to “undertake such planning and actions as may be necessary to minimize harm to such landmark” to the maximum extent possible. Federal regulations also have been promulgated to guide the historic preservation review process, including consultation with the SHPO and an opportunity to comment by the Advisory Council. 36 C.F.R. § 800, et seq. The City’s historic preservation review began in early 1981 when the SHPO and his staff reviewed the project, made site visits, and consulted with various concerned agencies. The SHPO agreed that Phase II would have no adverse effects on the Vieux Carre: “Primarily the fact that its height was acceptable, and — and on a scale that wouldn’t, we felt — wouldn’t have no adverse effect from the Vieux Carre. And also that the traffic pattern there is planned in such manner that this would not cause any more congestion on Decatur.” Appellee’s Exhibit 76, at 17-18. In accordance with guidelines promulgated by the Council on Environmental Quality (CEQ), the City submitted to the Advisory Council its determination of no adverse effect on national register or eligible properties. In order to ensure that the City had undertaken planning and actions to avoid or mitigate adverse effects of the Canal Place, Phase II development on the Vieux Carre to the maximum extent possible, the Advisory Council reviewed the determination of the Advisory Council chairman and convened a five-member panel for a public meeting in New Orleans on September 1 and 2, 1981. The Advisory Council’s detailed recommendations and findings recommend that HUD grant final approval of the UDAG. Appellants do not dispute the Advisory Council’s conclusion. Instead, they argue that the historic preservation review should have included future phases of Canal Place. However, as we have noted previously, the City properly limited its consideration to Phase II. Future indefinite phases of Canal Place were simply not susceptible to environmental and historic review. Appellants also urged that the City should have reduced the size of the project. However, the City rejected this alternative as insufficient to achieve its economic objectives. As the district court noted, the administrative record does reveal significant efforts to mitigate any adverse effects on historic sites, including design changes. Moreover, as we have seen, many existing structures will tower over Phase II in its final form. Nothing in the record reflects that the City’s decision that further limitation of the height was economically unfeasible is unreasonable. The district court did not err when it concluded that the requirements of the NHPA had been met for Phase II. D. The City’s Environmental Assessment Satisfies the Requirements of NEPA Appellants contend that the City’s environmental assessment was defective, since it allegedly inadequately treats several factors and does not constitute a “hard look” at the environmental consequences as required by NEPA. As noted above, NEPA directs that an environmental impact statement be included in every “recommendation or report on ... major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The proper procedural vehicle for such a determination is an environmental assessment, which provides a reviewable record of the agency’s basis for its conclusions. Among the City's first actions in the review process was the presentation of UDAG project plans in the two public meetings on January 28, 1981 and February 24, 1981. Additionally, the City consulted with the Office of the Mayor, the New Orleans City Council, the Louisiana Department of Community Affairs, the Regional Planning Commission, the Louisiana Office of Environmental Affairs, the Louisiana Department of Commerce, the Louisiana Department of Culture, Recreation and Tourism and the Planning Advisory Committee, which represents forty-three other agencies. Another presentation of the UDAG project was made to the Vieux Carre Commission on May 21, 1981, and at a second hearing approximately two months later, the Commission approved the UDAG-funded relocation of powerlines into the Yieux Carre. In fact, in order to ensure a fair and informed preliminary decision regarding the “significance” of the proposed action, the City reviewed the same factors that would be studied in depth for preparation of a detailed environmental impact statement under NEPA. The findings on these factors, which evolved out of the City’s extensive studies, consultations and hearings, are summarized in its Final Environmental Assessment, which closely parallels a detailed environmental impact statement in form and content. Beginning with a description of the proposed action at pages 8 through 11, the Final Environmental Assessment listed the developer’s objectives and addressed both the purpose and need for the UDAG project. There follows a description of the affected environment, from geology to socioeconomic conditions. In section 3, the environmental impact of the proposed actions are considered at length and detailed conclusions are drawn concerning the environmental impacts. Subsequent sections address mitigating measures in the proposed action, the relationship between local and short term uses and long term productivity, irreversible and irretrievable commitments of resources, and alternatives to the proposed action. In conclusion, the Final Environmental Assessment sets forth the City’s finding that “this project does not constitute an action having a significant impact on the human environment. Extensive appendices and a supplement to the assessment add further documentation, studies, reports, public and agency comments on the project, responses thereto and a full transcript of the Advisory Council’s panel deliberations on September 2, 1981. Not only did the City “consider” every environmental concern raised by the plaintiffs, it took a “hard look” at these factors and many more. Environmentally protective objectives reflected in the Final Environmental Assessment and the procedures followed in its preparation were extremely thorough and resulted in a document much akin to a detailed environmental impact statement. At the very least, the Final Environmental Assessment demonstrates that all procedural requirements of NEPA and NHPA were met and that the City’s ultimate conclusion of “no significant impact” rests on a strong factual foundation reached pursuant to deliberate, detailed, and informed decision-making. Undoubtedly, the City took a “hard look” at the project’s environmental consequences and none of the City’s conclusions are unreasonable. Nothing more is required under existing precedent. See Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th Cir.1981). III. Conclusion The record convincingly demonstrates that the City undertook the responsibilities placed upon it under NEPA and NHPA with great diligence and properly considered the environmental and historic ramifications of Phase II. No contested material fact exists concerning the City’s compliance with NEPA and NHPA. Accordingly, the district court’s granting of summary judgment in favor of the City and Canal Place 2,000 is affirmed. AFFIRMED. . Although the plaintiffs contended originally that Phases III, IV and V were destined to be built in the near future, they now concede that Phase IV is too speculative and indefinite in nature to be considered in this proceeding. Nevertheless, plaintiffs still contend that Phases III and V should have been considered by the City during its environmental and historic review. See Part II, section A, infra.

National Center for Preservation Law v. Landrieu

PER CURIAM: Plaintiffs, three organizations of local citizens, many of whose members live in the residential neighborhoods adjacent to the Charleston Center Project proposed to be built in the heart of Charleston, South Carolina’s Old and Historic District, appeal from a summary judgment entered against them. In the district court they sought, on a number of legal theories, declaratory and injunctive relief to prevent the Department of Housing and Urban Development (HUD) and the Economic Development Administration (EDA) from disbursing two federal grants totaling $7.15 million to the City of Charleston. The grants were earmarked for various activities related to the Charleston Center Project, including acquisition of land for a parking garage, construction of street improvements, relocation of residents, and archeological studies. Plaintiffs also' sought to enjoin the City from beginning construction of the Project. Before us plaintiffs contend that (1) the Secretary of HUD and the Administrator of EDA improperly delegated to the City their responsibilities under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; (2) the Secretary of HUD, the Administrator of EDA and the Advisory Council on Historic Preservation failed to comply with the requirements of the National Historic Preservation Act, 16 U.S.C. §§ 470-470t, in approving the grants; (3) the Secretary of HUD violated the terms of the Housing and Community Development Act, 42 U.S.C. §§ 5301-5317, and the regulations adopted thereunder in determining that the Charleston Center Project was eligible for funding by an Urban Development Action Grant; (4) Charleston’s Supplement to the Final Environmental Impact Statement fails to satisfy the requirements of the National Environmental Policy Act and the regulations of the Council on Environmental Quality; and (5) political influence was exerted to affect improperly EDA’s decision to award the grant and such improper influence requires reconsideration of the award by an impartial decisionmaker. In an exhaustive and detailed opinion, the district court rejected all of plaintiffs’ contentions-correctly, we think. We have examined with care the opinion of the district court and the contentions advanced on appeal, and we conclude that the opinion of the district court sufficiently answers each contention. We affirm for the reasons articulated therein. National Center for Preservation Law v. Landrieu, 496 F.Supp. 716 (D.C.S.C.1980). AFFIRMED.

Havasupai Tribe v. Provencio

BLOCK, District Judge Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED. The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. Judges Berzon and Murguia have voted to deny the petitions for rehearing en banc, and Judge Block so recommends. The full court has been advised of the petitions and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Accordingly, the petitions for rehearing en banc are DENIED . The Opinion filed December 12, 2017, appearing at 876 F.3d 1242 (9th Cir. 2017), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. In National Mining Association v. Zinke , 877 F.3d 845 (9th Cir. 2017), we upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. That withdrawal did not extinguish "valid existing rights." In these consolidated appeals, we consider challenges by the Havasupai Tribe ("the Tribe") and three environmental groups-Grand Canyon Trust, Center for Biological Diversity and Sierra Club (collectively, "the Trust")-to the determination of the United States Forest Service (the "Forest Service") that Energy Fuels Resources (USA), Inc., and EFR Arizona Strip LLC (collectively, "Energy Fuels") had a valid existing right to operate a uranium mine on land within the withdrawal area. As elaborated below, we affirm, with one exception, the district court's order rejecting those challenges. I Much of what we said in National Mining Association concerning the history of uranium mining in the area and the Secretary's withdrawal decision is also relevant here. To that we add some additional background regarding the particular mine at issue in this case. Grand Canyon National Park is bordered to the north and south by the Kaibab National Forest. The southern portion of the forest-which is included in the withdrawal area-contains Red Butte, a site of religious and cultural significance to the Tribe. In 1988, the Forest Service approved a plan to build and operate what became known as Canyon Mine, a 17.4-acre uranium mine in the area around Red Butte. During the approval process, the Forest Service prepared an Environmental Impact Statement ("EIS") pursuant to the National Environmental Policy Act of 1969 ("NEPA"). NEPA requires an EIS for any "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). At that time, the Forest Service also addressed the mine's impact under the National Historic Preservation Act of 1966 ("NHPA"). Section 106 of the NHPA requires federal agencies, prior to issuing a license for any "undertaking," to "take into account the effect of the undertaking on any [historic property]." Pub. L. No. 89-665, § 106 (codified, as amended, at 54 U.S.C. § 306108 ). Historic property is defined as "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register." 54 U.S.C. § 300308. Based on its review, the Forest Service required mitigation measures to minimize the impact on possible relics buried on the site of the mine. The review did not include nearby Red Butte because that site was not eligible for inclusion on the National Register until 1992. See National Historical Preservation Act Amendments of 1992, Pub. L. No. 102-575, tit. XL, § 4006 (making "[p]roperties of traditional religious and cultural importance to an Indian tribe" eligible for inclusion on the National Register). The EIS, however, did address the tribal religious significance of Red Butte. The Tribe sought judicial review, but both the district court and this Court rejected the challenge. See Havasupai Tribe v. United States , 752 F.Supp. 1471 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson , 943 F.2d 32 (9th Cir. 1991), cert. denied , 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992). The mine operator built surface facilities and sank the first fifty feet of a 1,400-foot shaft, but placed the mine on "standby" status in 1992 due to the unfavorable conditions in the uranium market that we described in National Mining Association . As noted, the Secretary's withdrawal decision was "subject to valid existing rights." 77 Fed. Reg. 2563 (Jan. 18, 2012). A few months before the decision became final, Energy Fuels-which had become Canyon Mine's owner-notified the Forest Service that it intended to return the mine to active operations. At the Service's request, Energy Fuels agreed not to resume sinking the mineshaft pending review of its claim of existing rights. On April 18, 2012, the Forest Service issued a "Mineral Report." It found that Energy Fuels' predecessors-in-interest had "located" mining claims at the site in 1978 and "discovered" uranium ore there between 1978 and 1982. It further found that there were 84,207 tons of uranium ore on the site, and that "under present economic conditions, the uranium deposit on the claims could be mined, removed, transported, milled and marketed at a profit." Based on those findings, the Forest Service concluded that Energy Fuel had "valid existing rights that were established prior to the mineral withdrawal." The Forest Service also reviewed its 1988 decision, including its EIS and the mine's approved plan of operations ("PoO"), "for any changes in laws, policies or regulations that might require additional federal actions to be taken before operations resume." In a "Mine Review" dated June 25, 2012, it concluded that the existing PoO was "still in effect and no amendment or modification to the PoO is required before Canyon Mine resumes operations under the approved PoO." It further concluded that "[n]o new federal action subject to further NEPA analysis is required for resumption of operations of the Canyon Mine." With respect to historic preservation, the Mine Review concluded that "there will be no new federal undertakings subject to NHPA Section 106 compliance." It noted, however, that Red Butte had become eligible for inclusion on the National Register, and opined that the site "could be considered a newly 'discovered' historic property." Applying the regulation applicable to such discoveries, 36 C.F.R. § 800.13(b)(3), the Forest Service immediately contacted the Tribe to "enter into government-to-government consultation" to "develop 'actions' to resolve or minimize the adverse effects" on Red Butte. In response, the Tribe insisted on a revised PoO, a supplemental EIS and a full consultation under section 106 of the NHPA. The Forest Service and the Tribe continued to correspond, but never settled on a specific plan of action. The Mine Review alludes to the likely reason: "Tribes have commented that most anticipated impacts, including the most serious impacts, cannot be mitigated if uranium mining is conducted at the Canyon Mine site." Consultation with the Tribe ended in March 2013, when the Tribe and the Trust jointly filed suit against the Forest Service in the district court. Energy Fuels intervened as a defendant. As amended, the complaint asserted four claims under the Administrative Procedure Act ("APA"): 1. the Forest Service's determination that Energy Fuels had valid existing rights to operate the Canyon Mine notwithstanding the January 2012 withdrawal was a "major federal action significantly affecting the environment," and, therefore, the service violated the NEPA by not preparing an EIS in connection with its determination; 2. the Forest Service's determination was an "undertaking," and, therefore, the service violated the NHPA by not conducting a full consultation under section 106 in connection with its determination; 3. alternatively, the Forest Service violated the NHPA by not properly updating its original section 106 analysis to account for the impact on Red Butte; and 4. the Forest Service violated several federal laws by failing to take various costs into account in its determination that Canyon Mine could be operated at a profit. As relief, the plaintiffs sought a declaration that the Forest Service was acting in violation of the NEPA, the NHPA and other laws; an order setting aside any "approvals or authorizations" for operations at Canyon Mine; and an injunction prohibiting "any further uranium exploration or mining-related activities at the Canyon Mine unless and until the Forest Service fully complies with all applicable laws." The parties cross-moved for summary judgment. In an order dated April 7, 2015, the district court held (1) that the plaintiffs had Article III standing, (2) that the plaintiffs lacked prudential standing with respect to their fourth claim, and (3) that the Mineral Report-which the district court referred to as the "VER [Valid Existing Rights] Determination"-was a final agency action subject to review under the APA. See Grand Canyon Tr. v. Williams , 98 F.Supp.3d 1044, 1055-61 (D. Ariz. 2015). Turning to the merits, the district court held (1) that the Mineral Report was not a "major federal action" requiring an EIS under the NEPA; (2) that the report was not an "undertaking" requiring a full section 106 consultation under the NHPA; (3) that the Forest Service's decision to consider the effect on Red Butte under 36 C.F.R. § 800.13(b)(3) was reasonable; and (4) that the Forest Service had complied with that regulation. See id. at 1062-73. Both the Tribe and the Trust timely appealed. II The Forest Service argues that we lack jurisdiction because its determination that Energy Fuels has valid existing rights was not a final agency action. See Ukiah Valley Med. Ctr. v. FTC , 911 F.2d 261, 266 (9th Cir. 1990) (" '[F]inal agency action' is a jurisdictional requirement imposed by [ 5 U.S.C. § 704 ]."). We review this threshold issue de novo. See Minard Run Oil Co. v. U.S. Forest Serv. , 670 F.3d 236, 247 (3d Cir. 2011). " '[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act[.]" 5 U.S.C. § 551(13). "[R]elief," in turn, includes the "recognition of a claim, right, immunity, privilege, exemption, or exception." Id. § 551(11)(B). The Forest Service claims that it has no authority to recognize mining rights, and that the Mineral Report represents only the agency's "opinion" as to their validity. But whether or not the Mineral Report was legally required, it was prepared. Its conclusion that Energy Fuels had valid existing rights at the time of the withdrawal falls within the plain meaning of "recognition of a claim." We further conclude that the Mineral Report was final. "As a general matter, two conditions must be satisfied for agency action to be 'final[.]' " Bennett v. Spear , 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). "First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature." Id. at 177-78, 117 S.Ct. 1154 (citation and internal quotation marks omitted). It is true that the final decision to contest a claim of existing rights rests with the Department of the Interior's Bureau of Land Management ("BLM"). See Best v. Humboldt Placer Mining Co. , 371 U.S. 334, 336, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). If, however, the Forest Service finds a claim is valid, nothing else happens. The district court sensibly described that outcome as "the Forest Service's 'last word' on the validity of the Canyon Mine mineral rights," Grand Canyon Tr. v. Williams , 38 F.Supp.3d 1073, 1078 (D. Ariz. 2014), and we agree with that description. In addition, to be final, "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett , 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks omitted). Rights to a mineral deposit on public land are not conferred by agency action; they are acquired by the miner's own actions of location and discovery. See American Law of Mining § 4.11 (2d ed. 1997) ("[The prospector] may seek 'valuable minerals' and, if he finds them, may initiate a vested right without the approval of anyone else, including representatives of the government that owns the land."). Nevertheless, the Mineral Report determined that such rights existed with respect to Canyon Mine, and that is all Bennett requires. We have observed that "courts consider whether the practical effects of an agency's decision make it a final agency action, regardless of how it is labeled." Columbia Riverkeeper v. U.S. Coast Guard , 761 F.3d 1084, 1094-95 (9th Cir. 2014). We therefore focus on both the "practical and legal effects of the agency action," and define the finality requirement "in a pragmatic and flexible manner." Or. Nat. Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 982 (9th Cir. 2006) (citations omitted). We agree with the district court's assessment that the Mineral Report was a practical requirement to the continued operation of Canyon Mine because "the Forest Service, Energy Fuels, and interested tribes all understood that mine operations would not resume until the VER Determination was completed." Grand Canyon Tr. , 38 F.Supp.3d at 1079. III The challenges to the merits of the district court's judgment raise three issues: (A) Was the Mineral Report a "major federal action" under the NEPA? (B) Did the Mineral Report approve an "undertaking" under the NHPA? (C) Did the Trust fall within the zone of interests of either the Federal Land Policy and Management Act of 1976 ("FLPMA") or the General Mining Act of 1872 ("Mining Act")? Our review of each question is de novo. See N. Cheyenne Tribe v. Norton , 503 F.3d 836, 845 (9th Cir. 2007) (compliance with NEPA and NHPA on summary judgment); Mills v. United States , 742 F.3d 400, 406 (9th Cir. 2014) (zone of interests). A. NEPA We have held that "where a proposed federal action would not change the status quo, an EIS is not necessary." Upper Snake River Chapter of Trout Unlimited v. Hodel , 921 F.2d 232, 235 (9th Cir. 1990). Nor is an EIS necessary to "discuss the environmental effects of mere continued operation of a facility." Burbank Anti-Noise Grp. v. Goldschmidt , 623 F.2d 115, 116 (9th Cir. 1980). We applied those general principles in Center for Biological Diversity v. Salazar , 706 F.3d 1085 (9th Cir. 2013) (" CBD "). At issue in CBD was the resumption of mining at a uranium mine, "after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988." 706 F.3d at 1088. We held that "no regulation requires approval of a new plan of operations before regular mining activities may recommence following a temporary closure." Id. at 1093. We further held that the original approval of the plan was a major federal action, but that "that action [wa]s completed when the plan [wa]s approved." Id. at 1095 (quoting, with alterations, Norton v. S. Utah Wilderness All. , 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ). By contrast, in Pit River Tribe v. United States Forest Service , 469 F.3d 768 (9th Cir. 2006), we held that a lease extension was a major federal action that altered the status quo because without it, the lessee would not have been able to continue operating a power plant on the leased property. See id. at 784. The district court correctly held that CBD , not Pit River , governs this case. As in CBD , the original approval of the plan of operations was a major federal action. And as in CBD , that action was complete when the plan was approved. Unlike Pit River , resumed operation of Canyon Mine did not require any additional government action. Therefore, the EIS prepared in 1988 satisfied the NEPA. B. NHPA As we explained, the NHPA requires consultation pursuant to section 106 prior to any "undertaking." 54 U.S.C. § 306108. As pertinent here, " 'undertaking' means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including ... those requiring a Federal permit, license, or approval[.]" Id. § 300320(3). Here, too, we agree with the district court that the Mineral Report did not "permit, license, or approv[e]" resumed operations at Canyon Mine; it simply acknowledged the continued vitality of the original approval of the PoO. Just as that approval was the only "major federal action" requiring an EIS under the NEPA, it was the only "undertaking" requiring consultation under the NHPA. The Tribe concedes that the approval process in 1986 included the necessary consultation, and that the cultural and religious impacts on Red Butte were not included because they were not required to be at that time. It argues, however, that the NHPA imposes a continuing obligation on federal agencies to address the impact on historic property at any stage of an undertaking. The statutory definition of "undertaking" dates from 1992. Prior to that, it was defined by the Advisory Council on Historic Preservation ("ACHP"), the agency charged with implementing the NHPA, to include "continuing projects, activities, or programs and any of their elements not previously considered under section 106." 36 C.F.R. § 800.2(o) (1991). But that definition was superseded by 54 U.S.C. § 300320(3), which omits the reference to continuing projects. The regulatory definition now conforms to the statutory definition. See 36 C.F.R. § 800.16(y). We therefore disagree with the Tribe that the current definition of "undertaking" encompasses a continuing obligation to evaluate previously approved projects. Although continuing obligations have been removed from the definition of "undertaking," they remain in 36 C.F.R. § 800.13(b) : If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process ..., the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and: (1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or ... (3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the [state or tribal historical office], any Indian tribe ... that might attach religious and cultural significance to the affected property, and the [Advisory Council on Historic Preservation] within 48 hours of the discovery. The notification shall describe the agency official's assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The ... Indian tribe ... and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the ... Indian tribe ... and the Council a report of the actions when they are completed. As noted, the Forest Service concluded that this regulation applied to Canyon Mine. It further concluded that subsection (3) applied because construction had begun in the early 1990s, although it acknowledged that the 20-year hiatus presented a "somewhat unusual situation." The Tribe objects that Red Butte was not a newly discovered historic property-and that the effect of operating a uranium mine near it was not unanticipated-because it had informed the Forest Service of the religious and cultural significance of this site decades earlier. While that is true, the Tribe does not dispute that Red Butte was not a "historic property" eligible for inclusion on the National Register until 2010. As a result, the NHPA did not obligate the Forest Service to take the site into account when it conducted a full section 106 consultation in 1986. And while we agree that eligibility for inclusion on the National Register is not exactly a "discovery," there is no other regulation requiring an agency to consider the impact on newly eligible sites after an undertaking is approved. In other words, by invoking § 800.13(b), the Forest Service may have given the Tribe more than it was entitled to demand. The Tribe further argues that if § 800.13(b) applies, the Forest Service should have proceeded under § 800.13(b)(1), instead of § 800.13(b)(3). In sum, the agency must engage in a full section 106 consultation if it "has not [yet] approved the undertaking or if construction on an approved undertaking has not [yet] commenced." 36 C.F.R. § 800.13(b)(1). If, however, the agency "has approved the undertaking and construction has commenced," it can engage in a simplified process to "determine actions that the agency official can take to resolve adverse effects." Id. § 800.13(b)(3). Canyon Mine fits squarely within the scope of subsection (3). The mine was approved in 1988, and construction of the surface facilities began shortly thereafter. The Tribe argues that subsection (3) was intended to address emergency situations, but there is no express limitation to such situations. Finally, the Tribe briefly argues that the Forest Service did not comply with § 800.13(b)(3). Having reviewed the record, we conclude that the Forest Service made a good-faith effort to ascertain steps it could take to resolve the possible adverse effects of mining on Red Butte. If that effort was not successful, it is because the Tribe insisted on a full consultation under section 106, which was not legally required, and a complete ban on mining around Red Butte, which the Forest Service lacks the authority to impose. C. FLPMA and Mining Act The plaintiffs' fourth claim, advanced by the Trust, challenged the merits of the Forest Service's conclusion that Energy Fuels had valid existing rights predating the withdrawal because its predecessors-in-interest had discovered a deposit of uranium ore that could be "mined, removed, transported, milled and marketed at a profit." The district court did not address this claim, instead holding that the Trust lacked prudential standing to make it. See Grand Canyon Tr. , 98 F.Supp.3d at 1058-60. "[A] person suing under the APA must satisfy not only Article III's standing requirements, but an additional test: The interest he asserts must be arguably within the zone of interests to be protected or regulated by the statute that he says was violated." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (internal quotation marks omitted). We agree with the district court that the Trust's fourth claim falls outside the Mining Act's zone of interests. See Grand Canyon Tr. , 98 F.Supp.3d at 1059 (explaining that the Mining Act's obvious intent was "to reward and encourage the discovery of minerals that are valuable in an economic sense," and that the Trust's interests are environmental and historical, but not economic). However, the Trust also argued that the Forest Service's VER determination violated the FLPMA. The district court did not address the FLPMA's zone of interests in its analysis, concluding that "the sections of the [FLPMA] to which Plaintiffs cite do not relate to validity determinations or mineral examinations.... and do not provide the Court with any relevant law to apply in deciding claim four." Id. at 1059 n.8. It is true, of course, that the plaintiff must fall within the zone of interests of the "statutory provision whose violation forms the legal basis of his complaint." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, we conclude that the FLPMA, and not the Mining Act, forms the legal basis of the Trust's fourth claim. We described the FLPMA at length in National Mining Association . See 877 F.3d at 845. Relevant here, the FLPMA confers on the Secretary authority to withdraw federal lands for specified purposes, 43 U.S.C. § 1701(a)(4), but makes that authority "subject to valid existing rights." Pub. L. 94-579, § 701(h), 90 Stat. 2743, 2786 (1976). Thus, the VER determination that the Trust challenges in this case was made to decide whether Canyon Mine would be subject to a withdrawal made pursuant to the FLPMA. Here, the Forest Service looked to the Mining Act to make its VER determination. However, that does not conclusively establish that the Mining Act, and not the FLPMA, forms the "legal basis" of the Trust's fourth claim. Had Energy Fuels claimed rights of a different nature, the Forest Service would have consulted a different statutory scheme, but it still would have made a VER determination. Regardless of the statute consulted, a VER determination affects whether activities on federal land can be limited under the FLPMA. See 43 U.S.C. § 1703(j) (stating that the purpose of a withdrawal is to "limit[ ] activities ... in order to maintain other public values"). That question implicates the Trust's asserted environmental concerns. In sum, the Forest Service applied the relevant standards from the Mining Act to make its VER determination, but the Trust's claim that Canyon Mine should not be exempt from the withdrawal because the VER determination was in error remains a claim under the FLPMA. And since the Trust's claim seeks to vindicate some of the same concerns that underlie the Secretary's withdrawal authority, it falls within the statute's zone of interests. See W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 485-86 (9th Cir. 2011) (plaintiffs' environmental interests fell within the NEPA and the FLPMA's zone of interests); Desert Citizens Against Pollution v. Bisson , 231 F.3d 1172, 1179 (9th Cir. 2000) (plaintiffs' aesthetic and recreational interests fell within the FLPMA's zone of interests). IV With respect to the claims under the NEPA and NHPA, the judgment of the district court is AFFIRMED . With respect to the claim under the FLPMA, the judgment is VACATED and the case is REMANDED for consideration of the claim on the merits. The district court also rejected the defendants' argument that two of the plaintiffs' claims were barred by collateral estoppel. See Grand Canyon Tr. , 98 F.Supp.3d at 1061-62. That ruling has not been challenged on appeal. The Supreme Court recently reminded courts that "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction." Hamer v. Neighborhood Hous. Servs. of Chi. , ---- U.S. ----, 138 S.Ct. 13, 17, 199 L.Ed.2d 249 (2017) (quoting Kontrick v. Ryan , 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ). Since the final agency action requirement is statutory, Hamer does not call into question its status as a jurisdictional limitation. In the district court, the Forest Service further argued that the plaintiffs lacked Article III standing. It has not pursued that argument on appeal, but we are satisfied that the plaintiffs have suffered injuries in fact that are fairly traceable to the Service's actions and that could be redressed by a favorable judicial determination. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Continued uranium mining at Canyon Mine causes concrete injury to the Tribe's religious and cultural interests and the Trust's aesthetic and recreational interests. While the parties dispute whether continued mining required the Forest Service's approval, we must assume that it did in assessing standing. See Equity Lifestyle Props., Inc. v. Cty. of San Luis Obispo , 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) ("The jurisdictional question of standing precedes, and does not require, analysis of the merits."). If the Tribe and Trust are correct that continued mining required approval, then their injuries are fairly traceable to that approval and could be redressed by setting it aside. In a letter to the Forest Service, the ACHP opined that subsection (3) applies "where construction activities have begun and would be ongoing, and thus, the agency had limited time and opportunity for consultation." Normally, an agency's interpretation of its own ambiguous regulation is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted). Subsection (3) is not ambiguous. Moreover, the letter was motivated by a concern that proceeding under subsection (3) "would continue the unproductive conflict between the Forest Service and the Indian tribes that consider Red Butte a sacred place." We agree with the district court that the letter "appears to be more tactical advice than an interpretation of the regulation." Grand Canyon Tr. , 98 F.Supp.3d at 1070. As the district court's language reflects, the additional test was, until recently, described as a matter of "prudential standing." See Match-E-Be-Nash-She-Wish , 567 U.S. at 224-28, 132 S.Ct. 2199. But in Lexmark International, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), the Supreme Court called that description "misleading," id. at 125, 134 S.Ct. 1377, and "in some tension with ... the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging," id. at 126, 134 S.Ct. 1377 (internal quotation marks and citations omitted). It held that the zone-of-interests inquiry instead asks "whether a legislatively conferred cause of action encompasses a particular plaintiff's claim," id. at 127, 134 S.Ct. 1377, or, in the APA context, whether a plaintiff's interests "are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue," id. at 130, 134 S.Ct. 1377 (internal quotation marks and citations omitted).

Buehrle v. City of Key West

JILL PRYOR, Circuit Judge: The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction. I. BACKGROUND Mr. Buehrle wished to open a tattoo establishment in the City’s historic district. After negotiating a lease to rent commercial space there, he attempted to file an application with the City for a business license. The City denied Mr. Buehrle’s application. The City prohibits tattoo establishments in the historic district, see Key West, Fla., Code of Ordinances, sub-part A, § 42-6(a), and allows tattoo establishments only in the General Commercial District as a “conditional use,” see id. sub-part B, § 122-418(21). The island of Key West has a history of restricting the operation of tattoo establishments. From 1966 to 2007, there was a blanket prohibition on operating any tattoo establishments on the island. According to local lore, this ban arose at the request of the United States Navy, which feared that its sailors would obtain ill-advised tattoos. Today, the City permits only two tattoo businesses to operate in the historic district as lawful non-conforming uses; it allowed these as part of the settlement of a prior lawsuit challenging the constitutionality of the ban. The City maintains that, given its history, tattoo establishments are inconsistent with the district’s historic character. It also fears that rash tourists will obtain regrettable tattoos, leading to negative association with Key West. Thus, it argues, permitting more tattoo establishments will adversely affect tourism. Mr. Buehrle filed suit in state court in Monroe County, Florida. The City removed the action to the United States District Court for the Southern District of Florida. After conducting discovery, the parties filed cross-motions for summary judgment. The district court granted the City’s motion and denied Mr. Buehrle’s, concluding that although the act of tattooing constitutes protected speech, the City’s ordinance was content neutral and constituted a reasonable time, place, and manner restriction. This is Mr. Buehrle’s appeal. II. DISCUSSION A. Tattooing as Artistic Expression The First and Fourteenth Amendments prohibit states from making any law abridging the freedom of speech. U.S. Const, amends. I, XIV; Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 581, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). This protection “does not end at the spoken or written word,” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), but extends to various forms of artistic expression. See Kaplan v. California, 413 U.S. 115, 119-20, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) (“[Pictures, films, paintings, drawings, and engravings ... have First Amendment protection.... ”); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (noting that the First Amendment “unquestionably shield[s]” the “painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll”). Although the Supreme Court has never explicitly defined the entire universe of artistic expression safeguarded by the First Amendment, it has cast the amendment’s protections over a variety of artistic media, including movies, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); music without words, Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); and nude dancing, Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). We have never addressed whether tattooing is a protected form of artistic expression. The Ninth Circuit encountered this issue in Anderson v. City of Hermosa Beach, where it held that tattooing was protected speech and that Hermosa Beach constitutionally could not ban tattoo establishments from operating in the city. 621 F.3d 1051, 1055 (9th Cir. 2010). We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, “[t]he principal difference between a tattoo and, for example, a pen- and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.... [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.” Id. at 1061. The City points us to a number of district and state court decisions drawing a distinction between the process of creating a tattoo and the tattoo itself. These courts reason that the act of wearing a tattoo is communicative, and consequently protected speech, but that the process of tattooing is not. See, e.g., Hold Fast Tattoo, LLC v. City of North Chicago, 580 F.Supp.2d 656, 660 (N.D.Ill.2008); Yurkew v. Sinclair, 495 F.Supp. 1248, 1253-54 (D.Minn.1980); State v. White, 348 S.C. 532, 560 S.E.2d 420, 423 (2002). In the opinion of these courts, a tattoo artist’s “interest in engaging in conduct involving tattooing.does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.” Yurkew, 495 F.Supp. at 1254. This, these courts explain, is because “[t]he act of tattooing ... is not intended to convey a particularized message. The very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin.” Hold Fast Tattoo, 580 F.Supp.2d at 660. As such, “[t]he act of tattooing is one step removed from actual expressive conduct” because, although it can be used to convey a message, it is the customer’s message being conveyed, not the tattoo artist’s. Id. These decisions treat the First Amendment’s protection as a mantle, worn by one party to the exclusion of another and passed between them depending on the artistic technique employed, the canvas used, and each party’s degree of creative or expressive input. But the First Amendment’s safeguards are not so neatly cab-ined. Protected artistic expression frequently encompasses a sequence of acts by different parties, often in relation to the same piece of work. The First Amendment protects the artist who paints a piece just as surely as it protects the gallery owner who displays it, the buyer who purchases it, and the people who view it. See Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read.... ”). Any other interpretation of the First Amendment in this context would deprive it of the force and effect the Supreme Court has told us it deserves. See Ward, 491 U.S. at 790, 109 S.Ct. 2746. A regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display. The government need not ban a protected activity such as the exhibition of art if it can simply proceed upstream and dam the source. Consistent with the Supreme Court’s teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place. See Anderson, 621 F.3d at 1062 (“[T]he tattoo cannot be created without the tattooing process.... Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.”). For this reason, the Supreme Court has never “drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.” Id. at 1061 (emphasis omitted); see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116-18, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (First Amendment protects both the act of writing content and the act of publishing it). We suspect the idea that a tattoo represents the expression of the wearer and not the tattoo artist may spring from an outmoded perception of the tattoo industry. During the 1960s, tattoo artists began evolving the craft of tattooing beyond the rote application of standardized designs that historically characterized the medium. See Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063, 1090-91 (2011). Today, tattooing as practiced by a large segment of tattoo artists “emphasizes creativity and expression” and is “quite self-consciously an expressive movement.” Id. As one commentator writes, [Tjattooing has become a leading art form ... and the subject of museum exhibits throughout the United States. Today, tattoo artists are known for their large-scale, unified, custom designs, and some have even sought copyrights for their finished pieces. Currently, most tattoo artists are graduates of college art programs who seek the intrinsic appeal of the medium and desire to break free from the limitations, distortions and irrelevance of conventional elitist modes of art production. Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175,187 (2011) (footnotes and internal quotation marks omitted). Mr. Buehrle and his work appear to be of this ilk, and we see no meaningful basis on which to distinguish his work from that of any other artist practicing in a visual medium, certainly not a basis sufficient to deny him First Amendment protection. B. Reasonable Time, Place, and Manner Restriction Having decided that tattooing is artistic expression protected by the First Amendment, we must determine whether the City’s municipal ordinance limiting that expression is constitutional. A municipality may regulate protected artistic expression only if the regulation (1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information. Ward, 491 U.S. at 791, 109 S.Ct. 2746. Mr. Buehrle concedes the ordinance is content-neutral. Thus, we need only scrutinize the ordinance under the latter two factors. Because we conclude that the City has failed to demonstrate that the ordinance serves a significant governmental interest, we do not address whether it leaves open ample alternative channels of communication. The City argues that the ordinance’s purpose is to prevent the deterioration of the historic district. Specifically, the City fears that allowing additional tattoo establishments to operate in the historic district would adversely impact the “character and fabric” of the district and thus the tourism that the district attracts. We do not doubt that these are substantial government interests. See One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir.1999) (“There is ... no question that the city’s further interest in creating an aesthetic ambiance which will attract tourists ... is a substantial government interest, especially where, as here, a designated historic area is at issue.”); Messer v. City of Douglasville, 975 F.2d 1505, 1510 (11th Cir.1992) (“A government has a more significant interest in the aesthetics of. designated historical areas than in other areas.”). Our inquiry does not end there, however. We do not simply take the City at its word that the ordinance serves the aforementioned interests. Instead, the City must demonstrate that it had a reasonable basis for believing that its regulation would further these legitimate interests. See Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm’rs, 411 F.3d 1278, 1286 (11th Cir.2005). This burden is not a rigorous one. Id. But a municipality cannot “get away with shoddy data or reasoning.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion). It “must rely on at least some pre-enactment evidence” that the regulation would serve its asserted interests. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 337 F.3d 1251, 1268 (11th Cir.2003); see also Zibtluda, 411 F.3d at 1286 (“Nevertheless, [the enacting body] must cite to some meaningful indication— in the language of the code or in the record of legislative proceedings — that the legislature’s purpose in enacting the challenged statute was a concern over secondary effects rather than merely opposition to proscribed expression.”) (alteration in original) (quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir.2001)). Such evidence can include anything “reasonably believed to be relevant — including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion.” Peek-A-Boo Lounge, 337 F.3d at 1268 (internal quotation marks omitted). The City has failed to meet its burden. Aside from the ordinance’s vague statement of purpose, the only support for the City’s claim that the ordinance serves significant governmental interests consists of statements by Donald Craig, the City’s Director of Planning. In his deposition and an affidavit submitted in support of the City’s motion for summary judgment, Mr. Craig asserted that: Key West historically prohibited tattoo establishments from operating in the historic district; allowing tattoo establishments to operate there would impact the district’s “character and fabric,” which “could ... impact tourism”; and tourists might negatively associate Key West with tattoos that they had obtained there but come to regret. As an initial matter, Mr. Craig’s reasons were given in the context of Mr. Buehrle’s lawsuit, well after the enactment of the ordinance. They therefore cannot serve as pre-enactment evidence that the ordinance serves a significant governmental interest. See Peek-A-Boo Lounge, 337 F.3d at 1268; see also Zibtluda, 411 F.3d at 1286. Even were that not the case, we would still find Mr. Craig’s statements inadequate because they are, by and large, unsubstantiated. It is undisputed that there was a blanket prohibition on the operation of tattoo establishments on the island of Key West from 1966 to 2007, but nothing in the record corroborates Mr. Craig’s assertions about the prohibition’s origin or tells us whether any tattoo establishments operated in the area prior to 1966. Significantly, the mere fact that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years does not support the conclusion that allowing more tattoo establishments would cause the district’s historical value to deteriorate and impact tourism. To the contrary, the City’s recent experience suggests otherwise. The City concedes the absence of any ill effect as a result of the two tattoo establishments it currently allows to operate in the historic district. And it fails to explain why allowing additional tattoo establishments to operate there would sour the district’s historical flavor, especially since the first two apparently have not done so. Particularly glaring is the lack of evi-dentiary support for- the City’s assertions concerning tattooing’s purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buf-fett song. And we are unsure whether even that reference fully supports its position. The First Amendment requires more. We are not at liberty simply to “presume the evidence” needed to sustain the ordinance. Peek-A-Boo Lounge, 337 F.3d at 1267. “[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds.” Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir.2001). The City failed to satisfy this burden. On the record before us, the City has presented insufficient evidence that it had a reasonable basis for believing that its ordinance would actually serve the significant governmental interests it propounds. Perhaps, if the district court chooses to permit the introduction of new evidence on remand, the City can produce the kind of evidence that would satisfy its burden, but so far it has not done so. III. CONCLUSION The district court erred when it concluded that the City’s municipal ordinance restricting the number of tattoo establishments in its historic district was a reasonable time, place, and manner restriction on protected expression. We reverse the grant of summary judgment and remand the case to the district court for further proceedings consistent with this opinion. REVERSED and REMANDED. . An ordinance’s statement of purpose may demonstrate that the ordinance serves a significant governmental interest if the statement of purpose is sufficiently detailed and supported with evidence. See Zibtluda, 411 F.3d at 1286-87 (upholding an ordinance based on its statement of purpose, which cited to experiences of other counties and municipalities, documentary evidence, and oral testimony). Here, though, the ordinance's statement of purpose refers to no evidence and contains no detail beyond its general assertion that limiting the number of tattoo establishments will prevent "the potential deterioration of a preserved historic district; an increase in the incidence of disease; and land use incompatibilities.” Key West, FL, Code of Ordinances, subpart B, § 122-1543(a). On appeal, the City argues only deterioration of a preserved historic district. . Jimmy Buffett's song "Margaritaville'' was referenced twice in the record, once by Mr. Craig in his deposition and once by the City's attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in "Mar-garitaville”- — seemingly far from suffering embarrassment over his tattoo — considers it "a real beauty.” Jimmy Buffett, "Margarita-ville,” on Songs You Know by Heart (Geffen Records 1985). . Although the decision in Flanigan's Enterprises was ultimately superseded on other grounds by a county ordinance, Fulton County, Ga., Code § 18-79(17), see Flanigan’s Enters., Inc. of Ga. v. Fulton Cty., 596 F.3d 1265 (11th Cir.2010), it remains valid for the cited proposition.

Town of Marshfield v. Federal Aviation Administration

BOUDIN, Circuit Judge. The Federal Aviation Administration (“FAA”) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. See 49 U.S.C. §§ 44502, 44505 (1994). In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the “Boston Overflight Noise Study” (“BONS”), conducted with advice and participation by various organizations. The participants in BONS included not only the FAA but also Massport, a Massachusetts entity that is responsible for Logan Airport; the Logan Community Advisory Committee (“CAC”), a community organization founded thirty years ago to represent interests affected by Logan’s operations (and a sometime adversary of the airport); and the Boston Technical Advisory Committee (“BOS/TAC”), which provides technical advice to Massport and the CAC. In October 2007, the FAA adopted certain of the BONS report’s “phase I” measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (“EA”) or environmental impact statement (“EIS”), the FAA relied upon noise studies to measure the impact on surrounding communities. Deferred to phase 2 and an expected phase 3 were possible measures that required more study and potentially more detailed and formal environmental analysis. The Town of Marshfield, Massachusetts, located about 25 miles south of Logan Airport, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents. It now seeks judicial review of the FAA’s decision pursuant to 49 U.S.C. § 46110(a) (2004), claiming violations by the FAA of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2000), the Federal Advisory Committee Act (“FACA”), 5 U.S.C.A. App. 1, § 1 et seq. (2000), and the FAA’s own rules. We begin with the NEPA claim. NEPA requires that “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” include a statement addressing, inter alia, “the environmental impact of the proposed action” and “any adverse environmental effects.” 42 U.S.C. § 4332(c)®, (ii). The NEPA statement or EIS, usually entailing' substantial efforts and a detailed analysis, is not required if the agency supportably determines that no such “significantly affecting” impact will result. Id. Agency regulations sometimes provide “categorical exclusions” identifying classes of actions that do not threaten environmental damage and thus do not require the preparation of an EA or EIS. See generally 40 C.F.R. § 1508.4 (2003). An FAA order governing environmental assessments, FAA Order 1050.1E (June 10, 2004), provides (albeit in technical and somewhat opaque terms) a categorical exclusion for various departure, routing and approach procedures, see FAA Order 1050.1E, paras. 311g, 311i, 311p, an exclusion that the FAA treats as applicable to phase 1; but the exclusion is itself subject to a major qualification, which is at issue in this case. The qualification states that where “extraordinary circumstances” exist, an otherwise categorically excluded action “could” require further environmental analysis, see FAA Order 1050.1E, Para. 304, and such circumstances include inter alia “an impact on noise levels of noise-sensitive areas,” id. at para. 304f. A further provision, dealing specifically with noise, classes as significant a noise impact comprising an increase in decibel level of 1.5 dB or more—based on a day-night average (“DNL”)—to or above the 65 dB level. Id. at App. A, para. 14.3. DNL is a measure that signifies the average day-night sound over the course of a year. Id. at App. A, para. 14.5a. The FAA found that Marshfield “would experience noise below 45 DNL,” which was well below the threshold of 65 DNL contour (the map line marking points where 65 dB registered). In fact, the FAA expert found that at practically all of the testing points in Marshfield, the noise levels would decrease, except at a single measuring point (PT073) where the increase would be at most 0.2dB. Another expert, who peer-reviewed the FAA study and conducted additional data analysis, corroborated the agency’s conclusion. The calculations were done using a computer modeling program called the Integrated Noise Model (“INM”), which is one of three methods authorized in FAA Order 1050.1E. Id. at App. A, para. 14.2b. Marshfield says that the FAA should instead have used a different program called the Noise Integrated Routing System (“NIRS”), also identified in FAA Order 1050.1E. Id. Ordinarily, the agency would be entitled to use any reasonable methodology to arrive at a decision, e.g., Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir.1999), but Marshfield says that FAA Order 1050.1E required the use of the NIRS methodology- Marshfield’s argument rests on a paragraph of FAA Order 1050.1E that says, most pertinently, that “[f|or air traffic airspace actions where the study area is larger than the immediate vicinity of an airport, incorporates more than one airport, or includes actions above 3,000 feet AGL, noise modeling will be conducted using NIRS.” FAA Order 1050.1E App. A, para. 14.5e. The FAA does not claim that Marshfield is in the “immediate vicinity” of Logan, nor deny that some of the routing changes affect planes above 3,000 feet. Rather, the FAA explains tersely in its brief that NIRS is a computer modeling tool for studying air traffic among multiple airports over wide areas, and it provides a reference to the history of NIRS that arguably supports this gloss. In its reply brief Marshfield merely counters that the provision it relies on uses the word “will” and therefore requires the use of NIRS. It makes no effort to counter the FAA’s explanation or to explain why NIRS calculation would be different or superior. Where neither side has shed much light on a matter, judges tend to fault the appellant; “it is up to those who assail its findings or reasoning to identify the defects in evidence and the faults in reasoning.” Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 60 (1st Cir.2001). In this case, the FAA’s assessment of minimal impact is not implausible. If there is a stronger argument for insisting that the FAA use NIRS or some other computer modeling program in cases like this, it can await an instance in which a more powerful argument is presented. Marshfield next contends that its own expert calculated that noise levels would increase at least five decibels for the single data point location in Marshfield. Because both the FAA and the CAC experts calculated the number at 0.2 dB, it would take a detailed and cogent attack for us to find the FAA’s factual conclusion unsupported or irrational. Id., 269 F.3d at 60. Marsh-field’s attack on the FAA figure of 0.2 dB for the location in question may be detailed but it is not persuasive. The FAA’s brief identifies several seeming methodological flaws in the Marshfield expert’s assessment. These include (1) the calculation of noise exposure based on selective days and times when overflights were occurring rather than average DNL measurements and (2) a faulty assumption that because some flights produced noise of 50 dB or above all overflights produced noise at this level. It also appears that the town’s expert regards increases at the 45 dB contour to be fatal whereas the FAA Order 1050.1E is primarily aimed at increases to or above the 65 dB contour level. We think the FAA’s finding is adequately based. In a further NEPA claim, Marsh-field insists that the FAA erred by considering the impact of the phase 1 measures without regard to the possible further impact of measures that might be adopted during phase 2 or later phases. NEPA requires that a cumulative analysis include future actions that are “reasonably foreseeable.” See 40 C.F.R. § 1508.7. The cumulative test is meant to ensure that a project is assessed as a whole and not sliced into “small component parts,” id. § 1508.27(b)(7), which individually judged might elude assessment. However, when the FAA determined to implement phase 1, some phase 2 action was foreseeable but one could only speculate as to which phase 2 measures would be implemented, cf. City of Oxford v. FAA, 428 F.3d 1346, 1354 (11th Cir.2005) (“An agency must consider the cumulative impacts of future actions only if doing so would further the informational purposes of NEPA.”); indeed, the phrasing aimed to reserve decision on those steps that might involve a substantial environmental impact. Further, the negative impact of the phase 1 measures, as quantified by the noise study, appears to have been so slight that problems of cumulative effect vanish. Further, the phase 1 measures were deemed independently valuable regardless of what happened in phase 2. This is not a case in which the agency’s adoption of one step — say, the construction of footings for a major bridge — makes sense only if future steps are taken, and the first step effectively commits the agency to a further step. The phases address the same general set of problems, but it made perfect sense to move ahead phase 1 measures that posed no significant threat to the environment. Finally, Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were “highly controversial,” which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase “highly controversial,” it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare. This brings us to Marshfield’s claim under a different statute, namely, that the FAA violated the National Historical Preservation Act, 16 U.S.C. §§ 470 et seq. (2000), by failing to consult the historic preservation officer. As incorporated by the FAA into its own regulations, the statute requires, in pertinent part, that “[undertakings that have the potential to significantly affect historic properties pursuant to NEPA constitute an extraordinary circumstance requiring an EA even if the project normally qualifies as a categorical exclusion under NEPA.” FAA Order 1050.1E, App. A, para. 11.2a. The FAA does not dispute that the area in and around Marshfield contains various historic sites such as the Daniel Webster Library, but it argues instead that under the pertinent regulations, “[i]f the undertaking is a type of activity that does not have the potential to cause effects on historical properties, assuming such historic properties [are] present, the agency official has no further obligations under section 106 or this part.” 36 C.F.R. 800.3(a)(l)(2000). Here, the FAA found in the decision under review that “[t]here would be no potential for effects on [protected] historic or cultural resources,” a view supported by the noise measurement study. Accordingly, the FAA’s task was to report and document this finding to the preservation officer, 36 C.F.R. § 800.4(d)(1); City of Oxford, 428 F.3d at 1356-57. Where the preservation officer does not object, no consultation is required. See 1050.1E, para. 11.2b. Marshfield’s remaining challenge is that the FAA violated the FACA statute and underlying regulations. Specifically, it asserts that the agency relied on advisory committees subject to the statute but failed to provide public notice of meetings, open meetings to the public and assure that committee recommendations were not controlled by special interests. See 5 U.S.C.A. App. 2 §§ 2(a), (b), 3(2), 10(a)(1), 10(a)(2); 41 C.F.R. § 102-3.105(g) (2001). FACA does not apply to every entity whose views may be sought or considered by an agency — vast numbers of private organizations express their views to regulators; rather, it applies only to advisory committees or their equivalent “established or utilized by one or more agencies.” 5 U.S.C.A. App. 2 § 3(2)(C). Although the term “utilized” could be read broadly, courts have read it to apply only to committees that are under the actual management or. control of the agency. Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 457-58, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); Center for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 840 (D.C.Cir.2008). The two organizations that Marshfield deems to be covered by the statute are CAC and BOS/TAC. The former is not even remotely an advisory committee under the FAA’s management or control. And although the FAA plays a role in BOS/TAC, it is at best a member of the forum and Marshfield points to no facts showing that the FAA manages or controls BOS/TAC. See Byrd v. EPA, 174 F.3d 239, 246 (D.C.Cir.1999). The petition for review is denied.

Navajo Nation v. United States Forest Service

Opinion by Judge BEA; Dissent by Judge WILLIAM A. FLETCHER. BEA, Circuit Judge: In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government-approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds. Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion. They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use. Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” — a term of art chosen by Congress to be defined by reference to Supreme Court precedent — on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion. Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone. “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government — let alone a government that presides over a nation with as many religions as the United States of America— could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). I. Factual and Procedural Background The Snowbowl ski area (“the Snow-bowl”) is located on federally owned public land and operates under a special use permit issued by the United States Forest Service (“the Forest Service”). Navajo Nation v. U.S. Forest Serv., 408 F.Supp.2d 866, 883-84 (D.Ariz.2006). Specifically, the Snowbowl is situated on Humphrey’s Peak, the highest of the San Francisco Peaks (“the Peaks”), located within the Coconino National Forest in Northern Arizona. Id. at 869, 883. The Peaks cover about 74,000 acres. Id. at 883. The Snowbowl sits on 777 acres, or approximately one percent of the Peaks. Id. at 883-84. The Forest Service designated the Snowbowl as a public recreation facility after finding the Snowbowl “represented an opportunity for the general public to access and enjoy public lands in a manner that the Forest Service could not otherwise offer in the form of a major facility anywhere in Arizona.” Id. at 884. The Snowbowl has been in operation since the 1930s and is the only downhill ski area within the Coconino National Forest. Id. The Peaks have long-standing religious and cultural significance to Indian tribes. The tribes believe the Peaks are a living entity. Id. at 887. They conduct religious ceremonies, such as the Navajo Blessing-way Ceremony, on the Peaks. Id. The tribes also collect plants, water, and other materials from the Peaks for medicinal bundles and tribal healing ceremonies. Id. According to the tribes, the presence of the Snowbowl desecrates for them the spirituality of the Peaks. Id. Certain Indian religious practitioners believe the desecration of the Peaks has caused many disasters, including the September 11, 2001 terrorist attacks, the Columbia Space Shuttle accident, and increases in natural disasters. Id. This case is not the first time Indian tribes have challenged the operation of the Snowbowl. In 1981, before the enactment of RFRA, the tribes brought a challenge to the Forest Service’s approval of a number of upgrades to the Snowbowl, including the installation of new lifts, slopes, and facilities. See Wilson v. Block, 708 F.2d 735, 739 (D.C.Cir.1983). The tribes asserted that the approved upgrades would “seriously impair their ability to pray and conduct ceremonies upon the Peaks” and to gather from the Peaks sacred objects necessary to their religious practices. Id. at 740. According to the tribes, this constituted an unconstitutional burden on the exercise of their religion under the Free Exercise Clause of the First Amendment. Id. The D.C. Circuit in Wilson rejected the Indian tribes’ challenge to the upgrades. Id. at 739-45. Although the court noted that the proposed upgrades would cause the Indians “spiritual disquiet,” the upgrades did not impose a sufficient burden on the exercise of their religion: “Many government actions may offend religious believers, and may cast doubt upon the veracity of religious beliefs, but unless such actions penalize faith, they do not burden religion.” Id. at 741-42. The Indian tribes have continued to conduct religious activities on the Peaks ever since. Navajo Nation, 408 F.Supp.2d at 884. With this brief background, we turn to the Plaintiffs’ challenge in this case. In 2002, the Snowbowl submitted a proposal to the Forest Service to upgrade its operations. Id. at 885. The proposal included a request for artificial snowmaking from recycled wastewater for use on the Snow-bowl. Id. The Snowbowl had suffered highly variable snowfall for several years; this resulted in operating losses that threatened its ski operation. Id. at 884-85, 907. Indeed, the district court found that artificial snowmaking is “needed to maintain the viability of the Snowbowl as a public recreational resource.” Id. at 907. The recycled wastewater to be used for snowmaking is classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ”). Id. at 887. A+ recycled wastewater is the highest quality of recycled wastewater recognized by Arizona law and may be safely and beneficially used for many purposes, including irrigating school ground landscapes and food crops. See Ariz. Admin. Code R18-11-309 tbl. A. Further, the ADEQ has specifically approved the use of recycled wastewater for snowmaking. Id. In addition to being used to make snow, the recycled wastewater also will be used for fire suppression on the Peaks. Navajo Nation, 408 F.Supp.2d at 886. The pipeline that will transport the recycled waste-water to the Snowbowl will be equipped with fire hydrants to provide water for fire suppression in rural residential areas and to fight forest fires. Id. Further, a reservoir of recycled wastewater will be kept on the Snowbowl for forest fire suppression. Id. The Forest Service conducted an extensive review of the Snowbowl’s proposal. As part of its review, the Forest Service made more than 500 contacts with Indian tribes, including between 40 and 50 meetings, to determine the potential impact of the proposal on the tribes. Id. at 885. In a December 2004 Memorandum of Agreement, the Forest Service committed to, among other things: (1) continue to allow the tribes access to the Peaks, including the Snowbowl, for cultural and religious purposes; and (2) work with the tribes periodically to inspect the conditions of the religious and cultural sites on the Peaks and ensure the tribes’ religious activities on the Peaks are uninterrupted. Id. at 900-01. Following the review process, the Forest Supervisor approved the Snowbowl’s proposal, including the use of recycled wastewater to make artificial snow, and issued a Final Environmental Impact Statement and a Record of Decision in February 2005. Id. at 885-86. The Plaintiffs appealed the Forest Supervisor’s decision approving the Snowbowl’s proposal to an administrative appeal board within the Forest Service. Id. In June 2005, the Forest Service issued its final administrative decision and affirmed the Forest Supervisor’s approval of the proposed upgrades. Id. at 886. After their unsuccessful administrative appeal, the Plaintiffs filed this action in federal district court. The Plaintiffs alleged that the Forest Service’s authorization of the use of recycled wastewater on the Snowbowl violates: (1) RFRA; (2) NEPA; (3) NHPA; (4) ESA; (5) the Grand Canyon National Park Enlargement Act (“GCEA”), 16 U.S.C. § 228i; and (6) the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600 et seq. Id. at 871. Following cross-motions for summary judgment, the district court denied the Plaintiffs’ motions for summary judgment and granted the Defendants’ motion for summary judgment on all claims, except the RFRA claim. Id. at 869, 908. After an 11-day bench trial on the RFRA claim, the district court held that the proposed upgrades, including the use of recycled wastewater to make artificial snow on the Peaks, do not violate RFRA. Id. at 883, 907. The district court found that the upgrades did not bar the Plaintiffs’ “access, use, or ritual practice on any part of the Peaks.” Id. at 905. As a result, the court held that the Plaintiffs had failed to demonstrate the Snowbowl upgrade “coerces them into violating their religious beliefs or penalizes their religious activity,” as required to establish a substantial burden on the exercise of their religion under RFRA. Id. A three-judge panel of this court reversed the district court in part, holding that the use of recycled wastewater on the Snowbowl violates RFRA, and in one respect, that the Forest Service failed to comply with NEPA. See Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1029 (9th Cir.2007). The panel affirmed the grant of summary judgment to the Defendants on four of five NEPA claims and the NHPA claim. Id. We took the case en banc to revisit the panel’s decision and to clarify our circuit’s interpretation of “substantial burden” under RFRA. II. Standard of Review We review de novo the district court’s grant of summary judgment. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir.1999). We review the district court’s conclusions of law following a bench trial de novo and its findings of fact for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir.2004). III. Religious Freedom Restoration Act of 1993 Plaintiffs contend the use of artificial snow, made from recycled wastewater, on the Snowbowl imposes a substantial burden on the free exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq. We hold that the Plaintiffs have failed to establish a RFRA violation. The presence of recycled waste-water on the Peaks does not coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, nor does it condition a governmental benefit upon conduct that would violate their religious beliefs, as required to establish a “substantial burden” on religious exercise under RFRA. RFRA was enacted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court held that the Free Exercise Clause does not bar the government from burdening the free exercise of religion with a “valid and neutral law of general applicability.” Id. at 879, 110 S.Ct. 1595 (citation and internal quotation marks omitted). Applying that standard, the Smith Court rejected the Free Exercise Clause claims of the plaintiffs, who were denied state unemployment compensation after being discharged from their jobs for ingesting peyote for religious purposes. Id at 890, 110 S.Ct. 1595. Congress found that in Smith, the “Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” 42 U.S.C. § 2000bb(a)(4). Congress further found that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Id. § 2000bb(a)(2). With the enactment of RFRA, Congress created a cause of action for persons whose exercise of religion is substantially burdened by a government action, regardless of whether the burden results from a neutral law of general applicability. See id. § 2000bb-l. RFRA states, in relevant part: (a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Id. To establish a prima facie RFRA claim, a plaintiff must present evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First, the activities the plaintiff claims are burdened by the government action must be an “exercise of religion.” See id. § 2000bb-l(a). Second, the government action must “substantially burden” the plaintiffs exercise of religion. See id. If the plaintiff cannot prove either element, his RFRA claim fails. Conversely, should the plaintiff establish a substantial burden on his exercise of religion, the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a “compelling governmental interest” and is implemented by “the least restrictive means.” See id. § 2000bb-l(b). If the government cannot so prove, the court must find a RFRA violation. We now turn to the application of these principles to the facts of this case. The first question is whether the activities Plaintiffs claim are burdened by the use of recycled wastewater on the Snowbowl constitute an “exercise of religion.” RFRA defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A). The Defendants do not contest the district court’s holding that the Plaintiffs’ religious beliefs are sincere and the Plaintiffs’ religious activities on the Peaks constitute an “exercise of religion” within the meaning of RFRA. The crux of this case, then, is whether the use of recycled wastewater on the Snowbowl imposes a “substantial burden” on the exercise of the Plaintiffs’ religion. RFRA does not specifically define “substantial burden.” Fortunately, we are not required to interpret the term by our own lights. Rather, we are guided by the express language of RFRA and decades of Supreme Court precedent. A. Our interpretation begins, as it must, with the statutory language. RFRA’s stated purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(l). RFRA further states “the compelling interest test as set forth in ... Federal court rulings [prior to Smith ] is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Of course, the “compelling interest test” cited in the above-quoted RFRA provisions applies only if there is a substantial burden on the free exercise of religion. That is, the government is not required to prove a compelling interest for its action or that its action involves the least restrictive means to achieve its purpose, unless the plaintiff first proves the government action substantially burdens his exercise of religion. The same cases that set forth the compelling interest test also define what kind or level of burden on the exercise of religion is sufficient to invoke the compelling interest test. See Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (noting the “free exercise inquiry asks whether government has placed a substantial burden” on the free exercise of religion (citing Yoder and other -pre-Smith decisions)). Therefore, the cases that RFRA expressly adopted and restored — Sherbert, Yoder, and federal court rulings prior to Smith — also control the “substantial burden” inquiry. It is to those decisions we now turn. B. In Sherbert, a Seventh-day Adventist was fired by her South Carolina employer because she refused to work on Saturdays, her faith’s day of rest. Sherbert, 374 U.S. at 399, 83 S.Ct. 1790. Sherbert filed a claim for unemployment compensation benefits with the South Carolina Employment Security Commission, which denied her claim, finding she had failed to accept work without good cause. Id. at 399-401, 83 S.Ct. 1790. The Supreme Court held South Carolina could not, under the Free Exercise Clause, condition unemployment compensation so as to deny benefits to Sherbert because of the exercise of her faith. Such a condition unconstitutionally forced Sherbert “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404, 83 S.Ct. 1790. In Yoder, defendants, who were members of the Amish religion, were convicted of violating a Wisconsin law that required their children to attend school until the children reached the age of sixteen, under the threat of criminal sanctions for the parents. Yoder, 406 U.S. at 207-08, 92 S.Ct. 1526. The defendants sincerely believed their children’s attendance in high school was “contrary to the Amish religion and way of life.” Id. at 209, 92 S.Ct. 1526. The Supreme Court reversed the defendants’ convictions, holding the application of the compulsory school-attendance law to the defendants “unduly burden[ed]” the exercise of their religion, in violation of the Free Exercise Clause. Id. at 207, 220, 92 S.Ct. 1526. According to the Court, the Wisconsin law “affirmatively compelled the defendants], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218, 92 S.Ct. 1526. The Supreme Court’s decisions in Sherbert and Yoder, relied upon and incorporated by Congress into RFRA, lead to the following conclusion: Under RFRA, a “substantial burden” is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder). Any burden imposed on the exercise of religion short of that described by Sherbert and Yoder is not a “substantial burden” within the meaning of RFRA, and does not require the application of the compelling interest test set forth in those two cases. Applying Sherbert and Yoder, there is no “substantial burden” on the Plaintiffs’ exercise of religion in this case. The use of recycled wastewater on a ski area that covers one percent of the Peaks does not force the Plaintiffs to choose between following the tenets of their religion and receiving a governmental benefit, as in Sherbert. The use of recycled wastewater to make artificial snow also does not coerce the Plaintiffs to act contrary to their religion under the threat of civil or criminal sanctions, as in Yoder. The Plaintiffs are not fined or penalized in any way for practicing their religion on the Peaks or on the Snowbowl. Quite the contrary: the Forest Service “has guaranteed that religious practitioners would still have access to the Snowbowl” and the rest of the Peaks for religious purposes. Navajo Nation, 408 F.Supp.2d at 905. The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment — serious though it may be — is not a “substantial burden” on the free exercise of religion. The Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), is on point. In Lyng, Indian tribes challenged the Forest Service’s approval of plans to construct a logging road in the Chimney Rock area of the Six Rivers National Forest in California. Id. at 442, 108 S.Ct. 1319. The tribes contended the construction would interfere with their free exercise of religion by disturbing a sacred area. Id. at 442-43, 108 S.Ct. 1319. The area was an “integral and indispensable part” of the tribes’ religious practices, and a Forest Service study concluded the construction “would cause serious and irreparable damage to the sacred areas.” Id. at 442, 108 S.Ct. 1319 (eita-tions and internal quotation marks omitted). The Supreme Court rejected the Indian tribes’ Free Exercise Clause challenge. The Court held the government plan, which would “diminish the sacredness” of the land to Indians and “interfere significantly” with their ability to practice their religion, did not impose a burden “heavy enough” to violate the Free Exercise Clause. Id. at 447-49, 108 S.Ct. 1319. The plaintiffs were not “coerced by the Government’s action into violating their religious beliefs” (as in Yoder) nor did the “governmental action penalize religious activity by denying [the plaintiffs] an equal share of the rights, benefits, and privileges enjoyed by other citizens” (as in Sherbert). See id. at 449, 108 S.Ct. 1319. The Lyng Court, with language equally applicable to this case, further stated: The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. Even if we assume that ... the [logging] road will “virtually destroy the ... Indians’ ability to practice their religion,” the Constitution simply does not provide a principle that could justify upholding [the plaintiffs’] legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities— from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. * * * No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property. * * * The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Id. at 451-53, 108 S.Ct. 1319 (citation omitted) (last emphasis added). Like the Indians in Lyng, the Plaintiffs here challenge a government-sanctioned project, conducted on the government’s own land, on the basis that the project will diminish their spiritual fulfillment. Even were we to assume, as did the Supreme Court in Lyng, that the government action in this case will “virtually destroy the ... Indians’ ability to practice their religion,” there is nothing to distinguish the road-building project in Lyng from the use of recycled wastewater on the Peaks. We simply cannot uphold the Plaintiffs’ claims of interference with their faith and, at the same time, remain faithful to Lyng’s dictates. According to the Plaintiffs, Lyng is not controlling in this RFRA case because the Lyng Court refused to apply the Sherbert test that was expressly adopted in RFRA. Hopi Br. at 40. In support, the Plaintiffs cite the Supreme Court’s statement in Smith that Lyng “declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes.” Smith, 494 U.S. at 883, 110 S.Ct. 1595. This contention is unpersuasive. “The Sherbert analysis” to which the Supreme Court referred in the quoted sentence from Smith is the Sherbert “compelling interest” test. See id. (noting that in recent cases, including Lyng, the Court had upheld the application of a valid and neutral law “regardless of whether it was necessary to effectuate a compelling interest” under Sherbert). But the Sherbert compelling interest test is triggered only when there is a cognizable burden on the free exercise of religion. Lyng declined to apply the compelling interest test from Sherbert, not because Lyng purported to overrule or reject Sherbert’s analysis, but because the burden on the exercise of religion that was present in Sherbert was missing in Lyng. The Lyng Court held the government’s road-building project in that case, unlike in Sherbert, did not deny the Plaintiffs “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449, 108 S.Ct. 1319. In Sherbert, the plaintiff could not get unemployment compensation, available to all other South Carolinians. In Lyng, all park users, including the Indians, could use the new road and the lands to which it led. Because the government action did not “burden” the exercise of the Indians’ religion, the Lyng Court had no occasion to require the government to present a compelling interest for its road-building. Thus, Lyng is consistent with the Sherbert standard codified in RFRA and forecloses the Plaintiffs’ RFRA claims in this case. Finally, the Supreme Court’s pre-Smith decision in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is also on point. In Bowen, the parents of an American Indian child brought a Free Exercise Clause challenge to the statutory requirement to obtain a Social Security Number for their daughter in order to receive certain welfare benefits. Id. at 695-96, 106 S.Ct. 2147. The plaintiffs believed the government’s use of a Social Security Number would “ ‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” Id. at 696, 106 S.Ct. 2147. The Bowen Court rejected the plaintiffs’ Free Exercise Clause claims and stated: Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the plaintiffs] engage in any set form of religious observance, so [the plaintiffs] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” Id. at 699-700, 106 S.Ct. 2147 (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)) (emphasis in original). The plaintiffs in Bowen could not force the government to alter its internal management procedures to identify their daughter by her name, even though they believed the use of a Social Security Number would prevent her from attaining greater spiritual power. It necessarily follows that the Plaintiffs in this case, despite their sincere belief that the use of recycled wastewater on the Peaks will spiritually desecrate a sacred mountain, cannot dictate the decisions that the government makes in managing “what is, after all, its land.” See Lyng, 485 U.S. at 453, 108 S.Ct. 1319 (emphasis in original). C. For six principal reasons, the Plaintiffs and the dissent would have us depart from the Supreme Court’s pr e-Smith jurisprudence in interpreting RFRA. We decline to do so and will address each of their contentions in turn. First, the dissent asserts our interpretation of “substantial burden” is inconsistent with the dictionary definition of that term. Dissent at 1086-87. According to the dissent, “[bjecause Congress did not define ‘substantial burden,’ either directly or by reference to pr e-Smith case law, we should define ... that term according to its ordinary meaning.” Id. at 1088. But here, Congress expressly referred to and restored a body of Supreme Court case law that defines what constitutes a substantial burden on the exercise of religion (i.e., Sherbert, Yoder, and other pre-Smith cases). See 42 U.S.C. §§ 2000bb(a)(4)-(5); 2000bb(b)(l). Thus, we must look to those cases in interpreting the meaning of “substantial burden.” Further, the dissent’s approach overlooks a well-established canon of statutory interpretation. Where a statute does not expressly define a term of settled meaning, “courts interpreting the statute must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of th[at] ter[m].” See NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (citations and internal quotation marks omitted) (alterations in original). Here, Congress incorporated into RFRA a term of art — substantial burden — previously used in numerous Supreme Court cases in applying the Free Exercise Clause. The dissent would have us ignore this Supreme Court precedent and, instead, invent a new definition for “substantial burden” by reference to a dictionary. Dissent at 1086-87. This we cannot do. Rather, we must presume Congress meant to incorporate into RFRA the definition of “substantial burden” used by the Supreme Court. Second, the dissent asserts that our definition of “substantial burden” is “restrictive” and cannot be found in Sherbert, Yoder, or any other pre-Smith case. Dissent at 1088. The dissent contends it is “clear that RFRA protects against burdens that, while imposed by a different mechanism than those in Sherbert and Yo-der, are also ‘substantial.’ ” Id. at 1090. For this purportedly “clear” proposition, the dissent cites no authority. That is, the dissent cannot point to a single Supreme Court case where the Court found a substantial burden on the free exercise of religion outside the Sherbert/Yoder framework. The reason is simple: There is none. In the pr e-Smith cases adopted in RFRA, the Supreme Court has found a substantial burden on the exercise of religion only when the burden fell within the Sherbert/Yoder framework. See Sherbert, 374 U.S. at 403-06, 83 S.Ct. 1790; Yoder, 406 U.S. at 207, 220, 92 S.Ct. 1526; Thomas, 450 U.S. at 717-18, 101 S.Ct. 1425 (applying Sherbert); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 140-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (applying Sherbert); Frazee v. Ill. Dept of Employment Sec., 489 U.S. 829, 832-35, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989) (applying Sherbert). Because Congress expressly restored pre-Smith cases in RFRA, we cannot conclude RFRA’s “substantial burden” standard expands beyond the pr e-Smith cases to cover government actions never recognized by the Supreme Court to constitute a substantial burden on religious exercise. Third, the Plaintiffs assert RFRA’s compelling interest test includes a “least restrictive means” requirement, which “ ‘was not used in the pr e-Smith jurisprudence RFRA purported to codify.’ ” Hopi Br. at 31 (quoting City of Boerne, 521 U.S. at 535, 117 S.Ct. 2157); see also Dissent at 1084-85. The Plaintiffs note that, whereas the government must establish only a compelling interest to withstand a Free Exercise Clause challenge, the government must establish both a compelling interest and the least restrictive means to withstand a RFRA challenge. That is true enough, but it puts the cart before the horse. The additional statutory requirement of a least restrictive means is triggered only by a finding that a substantial burden exists; that is the sole and threshold issue in this case. Absent a substantial burden, the government need not establish a compelling interest, much less prove it has adopted the least restrictive means. Fourth, the Plaintiffs contend RFRA goes beyond the constitutional language that “forbids the ‘prohibiting’ of the free exercise of religion and uses the broader verb ‘burden’: a government may burden religion only on the terms set out by the new statute.” Hopi Br. at 31-32 (quoting United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir.1996)); see also Dissent at 1084. This contention ignores the Supreme Court’s repeated practice of concluding a government action “prohibits” the free exercise of religion by determining whether the action places a “burden” on the exercise of religion. Thus, the difference in the language of the Free Exercise Clause (“prohibit”) and the language of RFRA (“burden”) does not affect what constitutes a “burden” on the exercise of religion, under the very cases cited by RFRA as embodying the congressionally desired rule of decision. Fifth, the Plaintiffs assert Congress expanded RFRA’s definition of “exercise of religion” with the enactment of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. Navajo Br. at 29; see also Dissent at 1084-85. Prior to RLUI-PA’s enactment, “exercise of religion” under RFRA meant “the exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4) (1994). The Free Exercise Clause of the First Amendment protects only “the observation of a central religious belief or practice.” Hernandez, 490 U.S. at 699, 109 S.Ct. 2136 (emphasis added). RLUIPA, however, amended RFRA’s definition of “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A). The Plaintiffs’ assertion conflates two distinct questions under RFRA: (1) what constitutes an “exercise of religion” and (2) what amounts to a “substantial burden” on the exercise of that religion. The first question, that the Plaintiffs’ activities are an “exercise of religion,” is undisputed in this case. Of course, that question has no bearing on the second, “substantial burden,” question. RFRA’s amended definition of “exercise of religion” merely expands the scope of what may not be substantially burdened from “central tenets” of a religion to “any exercise of religion.” It does not change what level or kind of interference constitutes a “substantial burden” upon such religious exercise. Finally, the dissent attempts to justify its expansive interpretation of RFRA on the basis that RFRA applies “in all cases” where the free exercise of religion is burdened, whereas pr e-Smith jurisprudence excluded entire classes of cases from scrutiny under the compelling interest test, e.g., prison and military regulations. Dissent at 1085. But no one disputes that RFRA applies here; it is not an issue. That RFRA applies to classes of cases in which the First Amendment’s compelling interest test is inapplicable is irrelevant. This observation does not define what constitutes a “substantial burden” and, therefore, does not speak to the threshold question whether a “substantial burden” exists. In sum, Congress’s statutory command in RFRA to restore the Supreme Court’s pr e-Smith jurisprudence is crystal clear, and neither the dissent nor the Plaintiffs have offered any valid reason for departing from that jurisprudence in interpreting RFRA. D. In support of their RFRA claims, the Plaintiffs rely on two of our RLUIPA decisions. For two reasons, RLUIPA is inapplicable to this case. First, RLUIPA, by its terms, prohibits only state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise of religion. See 42 U.S.C. §§ 2000cc; 2000cc-l; 2000cc-5(4)(A). Subject to two exceptions not relevant here, RLUIPA does not apply to a federal government action, which is the only issue in this case. See id. § 2000cc-5(4). Second, even for state and local governments, RLUIPA applies only to government land-use regulations of private land — such as zoning laws — not to the government’s management of its own land. See id. § 2000ce-5(5). Nonetheless, even were we to assume the same “substantial burden” standard applies in RLUIPA and RFRA actions, the two RLUIPA cases cited by the Plaintiffs do not support their RFRA claims. First, in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.2005), an American Indian inmate brought a RLUIPA challenge against a prison policy requiring all male inmates to maintain their hair no longer than three inches. Id. at 991-92. Warsol-dier refused to comply with the policy because of his “sincere religious belief that he may cut his hair only upon the death of a loved one,” and was punished by confinement to his cell, the imposition of additional duty hours, and revocation of certain privileges. Id. at 991-92. We held the prison policy imposed a substantial burden on Warsoldier’s exercise of his religion because it coerced him to violate his religious beliefs under the threat of punishment. Id. at 995-96. Warsoldier is a straightforward application of the Supreme Court’s decisions in Sherbert and Yoder. As in Sherbert and Yoder, Warsoldier was coerced to act contrary to his religious beliefs by the threat of sanctions (i.e., confinement to his cell and the imposition of additional duty hours), and forced to choose between following the tenets of his religion and receiving a governmental benefit (i.e., by the revocation of certain privileges in prison). In contrast, and as analyzed above, the Plaintiffs in this case cannot show the use of recycled wastewater coerces them to violate their religious beliefs under the threat of sanctions, or conditions a government benefit upon conduct that would violate their religious beliefs. Second, the Plaintiffs rely on our statement in San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir.2004), that, under RLUIPA, a “substantial burden” on a religious exercise must be “a significantly great restriction or onus upon such exercise.” Id. at 1034. The Plaintiffs contend the use of recycled wastewa-ter on the Peaks imposes a “significantly great restriction or onus” on the exercise of their religion. San Jose Christian College’s statement of the “substantial burden” test does not support the Plaintiffs’ RFRA claims in this case. That “substantial burden” means a “significantly great restriction or onus” says nothing about what kind or level of restriction is “significantly great.” Instead, the “substantial burden” question must be answered by reference to the Supreme Court’s pre-Smith jurisprudence, including Sherbert and Yoder, that RFRA expressly adopted. Under that precedent, the Plaintiffs have failed to show a “substantial burden” on the exercise of their religion, and thus failed to establish a pri-ma facie RFRA claim. Accordingly, we affirm the district court’s entry of judgment for the Defendants on the RFRA claim. IV. National Environmental Policy Act of 1969 Plaintiffs contend the district court erred in granting summary judgment to the Defendants on five claims under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 el seq. We adopt the parts of the original three-judge panel opinion affirming the district court’s grant of summary judgment to the Defendants on the following four NEPA claims: (1) the Final Environmental Impact Statement (“FEIS”) failed to consider a reasonable range of alternatives to the use of recycled wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of Dr. Paul Tor-rence; (3) the FEIS failed adequately to consider the environmental impact of diverting the recycled wastewater from Flagstaff's regional aquifer; and (4) the FEIS failed adequately to consider the social and cultural impacts of the Snow-bowl upgrades on the Hopi people. See Navajo Nation, 479 F.3d at 1054-59. The remaining NEPA claim, which is raised only by the Navajo Plaintiffs, is that the FEIS failed adequately to consider the risks posed by human ingestion of artificial snow. The Navajo Plaintiffs’ complaint did not include this NEPA claim or the factual allegations upon which the claim rests. The Navajo Plaintiffs raised this claim for the first time in their motion for summary judgment. In their opposition to the Navajo Plaintiffs’ summary judgment motion, the Defendants contended the Navajo Plaintiffs had failed to raise this NEPA claim in their complaint. In response, the Navajo Plaintiffs moved to amend their complaint to add a distinct and new NEPA cause of action claiming for the first time that the FEIS failed to consider the risks posed by human ingestion of artificial snow. The district court denied the Navajo Plaintiffs’ motion to amend and did not address this NEPA claim on the merits. Navajo Nation, 408 F.Supp.2d at 908. The Navajo Plaintiffs failed to appeal the district court’s denial of their motion to amend, and therefore, the district court’s denial of said motion is not before us. Further, on this appeal, the Navajo Plaintiffs do not explain why their complaint is otherwise sufficient to state this NEPA claim — despite the Defendants’ assertions that the Navajo Plaintiffs failed to plead this NEPA claim. Indeed, the Navajo Plaintiffs concede “the specific allegations at issue were not included” in their complaint. Navajo Reply Br. at 23-24. Rather, the Navajo Plaintiffs assert this NEPA claim was adequately presented to the district court because the claim “was briefed at summary judgment by all parties and presented at oral argument [to the district court].” Id. at 24. Nevertheless, our precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court. See, e.g., Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.2006) (“ ‘Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.’”); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir.2006) (holding that the complaint did not satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a) because the complaint “gave the [defendants] no notice of the specific factual allegations presented for the first time in [the plaintiffs] opposition to summary judgment”). Because the Navajo Plaintiffs failed sufficiently to present this NEPA claim to the district court and also failed to appeal the district court’s denial of their motion to amend the complaint to add this NEPA claim, the claim is waived on appeal. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n. 3 (9th Cir.2007). Accordingly, we affirm the district court’s grant of summary judgment to the Defendants on all NEPA claims. Y. National Historic Preservation Act Finally, the Plaintiffs contend the district court erred in granting summary judgment to the Defendants on their claim under the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We adopt the part of the original three-judge panel opinion affirming the district court’s grant of summary judgment to the Defendants on the NHPA claim. See Navajo Nation, 479 F.3d at 1059-60. VI. Conclusion We affirm the district court’s entry of judgment in favor of the Defendants on the RFRA claim, and the district court’s grant of summary judgment to the Defendants on the NEPA and the NHPA claims. AFFIRMED. . It appears that some of the Plaintiffs would challenge any means of making artificial snow, even if no recycled wastewater were used. Panel Oral Argument (Sept. 14, 2006) at 12:25-12:45 (Hopi Plaintiffs). . The Plaintiffs-Appellants in this case are the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache Nation, the White Mountain Apache Nation, Bill Bucky Preston (a member of the Hopi Tribe), Norris Nez (a member of the Navajo Nation), Rex Tilousi (a member of the Havasupai Tribe), Dianna Uqualla (a member of the Havasupai Tribe), the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network. The Defendants-Appellees are the United States Forest Service; Nora Rasure, the Forest Supervisor; Harv Forsgren, the Regional Forester; and Intervenor Arizona Snowbowl Resort Limited Partnership. . We find no clear error in the district court's findings of fact, so our statement of the facts is based on the district court opinion. The dissent cursorily asserts that "the majority misstates the evidence below," Dissent at 1081, but fails to cite any fact in the opinion that it claims to be misstated, or as to which the district court erred in its findings of fact. . In addition to downhill skiing, many other activities are conducted on the Peaks: sheep and cattle grazing, timber harvesting, road building, mining, motorcross, mountain biking, horseback riding, hiking, and camping. Navajo Nation, 408 F.Supp.2d at 884. Further, gas and electric transmission lines, water pipelines, and cellular towers are located on the Peaks. Id. . At the time Wilson was decided, artificial snow from recycled wastewater was not used on the Snowbowl and was thus not at issue. . The recycled wastewater that will be used at the Snowbowl "will undergo specific advanced treatment requirements, including tertiary treatment with disinfection. In addition, the reclaimed water will comply with specific monitoring requirements, including frequent microbiological testing to assure pathogens are removed, and reporting requirements.” Navajo Nation, 408 F.Supp.2d at 887. Further, the recycled wastewater will "comply with extensive treatment and monitoring requirements under three separate permit programs: the Arizona Pollutant Discharge Elimination System ('AZPDES') Permit, the Arizona Aquifer Protection Permit Program, and the Water Reuse Program.” Id. . Of course, the impact of the Snowbowl proposal on the American Indian tribes is not the only factor the Forest Service must consider in administering the Coconino National Forest. Congress has directed the Forest Service to manage the National Forests for "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. Additionally, the Forest Service must follow a number of other directives under federal laws and executive orders in administering the Co-conino National Forest, including, but not limited to: NEPA; NHPA; the Endangered Species Act of 1973 ("ESA”), 16 U.S.C. § 1531 et seq.; the National Forest Ski Area Permit Act of 1986, 16 U.S.C. § 497b; the Wilderness Act, 16 U.S.C. § 1131 et seq.; and the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528 et seq. Navajo Nation, 408 F.Supp.2d at 896. The Forest Service’s task is complicated by the number of sacred sites under its jurisdiction. In the Coconino National Forest alone, there are approximately a dozen mountains recognized as sacred by American Indian tribes. Id. at 897. The district court found the tribes hold other landscapes to be sacred as well, such as canyons and canyon systems, rivers and river drainages, lakes, discrete mesas and buttes, rock formations, shrines, gathering areas, pilgrimage routes, and prehistoric sites. Id. Within the Southwestern Region forest lands alone, there are between 40,000 and 50,000 prehistoric sites. Id. The district court also found the Navajo and the Hualapai Plaintiffs consider the entire Colorado River to be sacred. Id. at 897-98. New sacred areas are continuously being recognized by the Plaintiffs. Id. at 898. . On appeal, the Plaintiffs have abandoned their claims under the ESA, GCEA, and NFMA, leaving only the RFRA, NEPA, and NHPA claims. . The Defendants do not contend RFRA is inapplicable to the government’s use and management of its own land, which is at issue in this case. Because this issue was not raised or briefed by the parties, we have no occasion to consider it. Therefore, we assume, without deciding, that RFRA applies to the government's use and management of its land, and conclude there is no RFRA violation in this case. . In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court invalidated RFRA as applied to the States and their subdivisions, holding RFRA exceeded Congress’s powers under the Enforcement Clause of the Fourteenth Amendment. Id. at 532, 536, 117 S.Ct. 2157. We have held that RFRA remains operative as to the federal government. See Guam v. Guerrero, 290 F.3d 1210, 1220-22 (9th Cir.2002). . As the Supreme Court later elaborated: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (emphasis added) (discussing Sherbert). . The dissent's assertion that we misunderstand the "nature of religious belief and practice” is misplaced. See Dissent at 1096. One need not study the writings of Sir Francis Bacon, id. at 1080-81, or William James, id. at 1096, to understand "religious exercise invariably, and centrally, involves a 'subjective spiritual experience.'" Id. at 1096. We agree with the dissent that spiritual fulfillment is a central part of religious exercise. We also note that the Indians’ conception of their lives as intertwined with particular mountains, rivers, and trees, which are divine parts of their being, is very well explained in the dissent. Nevertheless, the question in this case is not whether a subjective spiritual experience constitutes an "exercise of religion” under RFRA. That question is undisputed: The Indians' religious activities on the Peaks, including the spiritual fulfillment they derive from such religious activities, are an "exercise of religion.” Rather, the sole question is whether a government action that affects only subjective spiritual fulfillment "substantially burdens” the exercise of religion. For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the Plaintiffs as damaged spiritual feelings. Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not "substantially burden” religion. Indeed, the Supreme Court in Yoder drew the same distinction between objective and subjective effect on religious exercise that the dissent criticizes us for drawing today: "Nor is the impact of the compulsory-attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” Yoder, 406 U.S. at 218, 92 S.Ct. 1526 (emphasis added). Contrary to the dissent’s assertions, in Yoder, it was not the effect of the high school's secular education on the children’s subjective religious sensibilities that constituted the undue burden on the free exercise of religion. Rather, the undue burden was the penalty of criminal sanctions on the parents for refusing to enroll their children in such school. See Lyng, 485 U.S. at 457, 108 S.Ct. 1319 ("(Tihere is nothing whatsoever in the Yoder opinion to support the proposition that the ‘impact’ on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature.”); Yoder, 406 U.S. at 218, 92 S.Ct 1526 ("The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”). Likewise, in Sherbert, the protected interest was the receipt of unemployment benefits and not, as the dissent contends, the right to take religious rest on Saturday. See Sherbert, 374 U.S. at 410, 83 S.Ct. 1790 ("This holding ... reaffirms a principle that ... no State may exclude ... the members of any ... faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” (citations and internal quotation marks omitted)). The Sherbert Court certainly did not hold public employers were required not to work their Seventh-day Adventist employees on Saturdays, or not to fire them if they refused to work on Saturdays. Hence, the protected interest was not a mandatory day off, but the money from unemployment benefits that voluntarily taking the day off would otherwise forfeit. . That Lyng was a Free Exercise Clause, not RFRA, challenge is of no material consequence. Congress expressly instructed the courts to look to pre-Smith Free Exercise Clause cases, which include Lyng, to interpret RFRA. See 42 U.S.C. § 2000bb(a)(5) ("[T]he compelling interest test as set forth in ... Federal court rulings [prior to Smith ] is a workable test for striking sensible balances between religious liberty and competing prior governmental ipterests.”). . Our dissenting colleague is therefore incorrect in his assertion that “Lyng did not hold that the road at issue would cause no 'substantial burden’ on religious exercise.” See Dissent at 1089-90. Although Lyng did not use the precise phrase “substantial burden,” it squarely held the government plan did not impose a "burden ... heavy enough” on religious exercise to trigger the compelling interest test: “It is undisputed that the Indian respondents’ beliefs are sincere and that the Government’s proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need [in its project.] We disagree.” Lyng, 485 U.S. at 447, 108 S.Ct. 1319. Thus, Lyng declined to require the government to show a compelling interest because the burden on the exercise of the Indians’ religion was not "heavy enough”— not, as the dissent asserts, despite the presence of a substantial burden on the exercise of their religion. See Dissent at 1089-90. . Our circuit's RFRA jurisprudence is consistent with the Supreme Court’s pre-Smith precedent examined in this section. In Guam v. Guerrero, 290 F.3d 1210 (9th Cir.2002), we held that a Guam statute criminalizing the importation of marijuana did not substantially burden the practice of Rastafarianism under RFRA, even though “marijuana use is sacramental in the practice of that religion.” Id. at 1212-13, 1222-23. After noting "RFRA reestablishes the Sherbert standard,” we defined "substantial burden” as " 'substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ including when, if enforced, it 'results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.' ” Id. at 1218, 1222 (citation omitted) (quoting Thomas, 450 U.S. at 718, 101 S.Ct. 1425; Braunfeld, 366 U.S. at 605, 81 S.Ct. 1144). Applying this test, we held that the Guam statute did not substantially burden Guerrero’s free exercise rights, because Rastafarianism does not require the importation, as distinguished from simple possession, of marijuana. Id. at 1223. The dissent contends that our substantial burden standard is inconsistent with Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir.1997). In Mockaitis, this court held that state prison officials substantially burden a Catholic priest’s religious exercise under RFRA, when the officials intrude into the Sacrament of Penance by recording a confession from an inmate to a priest. Id. at 1530-31. Mockaitis cannot serve as precedent here for two reasons. First, its holding has been invalidated by the Supreme Court's decision in City of Boerne, where the Court found RFRA unconstitutional as applied to the States and their subdivisions. See City of Boerne, 521 U.S. at 532, 536, 117 S.Ct. 2157. Second, we find Mockaitis unhelpful in formulating the substantial burden test. Mockaitis did not define substantial burden, let alone analyze the substantial burden standard under the Sherbert/Yoder framework restored in RFRA, nor did the decision attempt to explain why such framework should not apply to define substantial burden. . The dissent would limit the significance of Congress's citation of Sherbert and Yoder strictly to the content of what constitutes a compelling interest, not also when that test should be applied. But both Sherbert and Yoder use the same compelling interest test. If that is all Congress intended by the citation of the two cases, its citation of Yoder was redundant and superfluous. We "must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991). Hence, we apply the two separate and distinct substantial burden standards in Sherbert and Yoder to determine when the compelling interest test is invoked. . Relatedly, the dissent states “Sherbert and Yoder used the word 'burden/ but nowhere defined, or even used, the phrase ‘substantial burden.' ” Dissent at 1088-89. The dissent is correct that neither Sherbert nor Yoder used the precise term "substantial burden.” Sherbert held that a "burden" on the free exercise of religion requires the government to show a compelling interest, Sherbert, 374 U.S. at 403, 83 S.Ct. 1790, and Yoder held that an "undu[e] burden[]” on the free exercise of religion does the same, Yoder, 406 U.S. at 220, 92 S.Ct. 1526. For our purposes, however, this distinction is immaterial. Later Supreme Court cases have cited Yoder and other pre-Smith decisions for the proposition that only a "substantial burden” on the free exercise of religion triggers the compelling interest test. See Hernandez, 490 U.S. at 699, 109 S.Ct. 2136 (noting the "free exercise inquiry asks whether government has placed a substantial burden” on the exercise of religion "and, if so, whether a compelling governmental interest justifies the burden” (citing Yoder and other pre-Smith decisions)); see also Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 384-85, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990). Where the Supreme Court has equated the content of "substantial burden” to "burden” and "undue burden,” we must do the same. . For the same reason, the dissent is incorrect in its assertion that "[h]ad Congress wished to establish the standard employed by the majority, it could easily have stated that 'Government shall not, through the imposition of a penalty or denial of a benefit, substantially burden a person's exercise of religion.' " See Dissent at 1087 (emphasis in original). The addition of the italicized text would have been superfluous, because the cases Congress restored in RFRA recognize a substantial burden on the exercise of religion only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder). . See Yoder, 406 U.S. at 220, 92 S.Ct. 1526 ("A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.” (emphasis added)); Sherbert, 374 U.S. at 403, 83 S.Ct. 1790 ("We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion.” (emphasis added)). . Nevertheless, the Hernandez Court also cautioned: "It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith." Hernandez, 490 U.S. at 699, 109 S.Ct. 2136; see also Smith, 494 U.S. at 887, 110 S.Ct. 1595 ("What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is 'central' to his personal faith?”). In light of the Supreme Court's disapproval of "the centrality test,” we have held the sincerity of a religious belief, not its centrality to a faith, determines whether the Free Exercise Clause applies. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008). . Sections 2000cc-2(b) (burden of persuasion) and 2000cc-3 (rules of construction) apply also to the federal government. See 42 U.S.C. § 2000cc-5(4)(B). . RLUIPA defines a “land use regulation’’ as "a zoning or landmarldng law ... that limits or restricts a claimant’s use or development of land , if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land." 42 U.S.C. § 2000cc-5(5) (emphasis added). .Because RLUIPA is inapplicable to this case, we express no opinion as to the standards to be applied in RLUIPA actions. . The RLUIPA case cited by the dissent, Shakur, 514 F.3d 878, is not to the contrary. Dissent at 1090, 1093-94. In Shakur, we held that a triable issue of fact existed as to whether prison officials' denial of Halal meat to Shakur, a Muslim inmate, imposed a "substantial burden” on his religious exercise. Shakur, 514 F.3d at 888-89. The prison offered Kosher meat meals to Jewish inmates, but denied Halal meat meals to Shakur. Id. at 883, 891. The alternative, vegetarian diet exacerbated Shakur’s hiatal hernia and caused excessive gas that "interfere[d] with the ritual purity required for his Islamic worship.” Id. at 888 (emphasis added). Contrary to the dissent's assertions, Dissent at 1093-94, both meal choices provided to Sha-kur in prison were "unacceptable” to his religion — the non-Halal meat meals were forbidden by his religion and the Halal vegetarian meals interfered with the ritual purity required for his religious activities. Shakur, 514 F.3d at 889 (internal quotation marks omitted). Like the Seventh-day Adventist in Sherbert, who could obtain unemployment benefits only by working on Saturdays and thereby violating her religious tenets, Shakur could have a meal in prison and avoid starvation only if he violated his religious beliefs. Relying on Sherbert and Thomas, we held that there was a triable issue of fact as to whether the prison policy imposed a substantial burden on Shakur's religious exercise, because the policy conditioned a governmental benefit to which Shakur was otherwise entitled — a meal in prison — upon conduct that would violate Shakur’s religious beliefs. Id. Thus, Sha-kur is a straightforward application of the Sherbert test and is consistent with the substantial burden standard we adopt today. . As a last resort, the dissent invokes provocative soundbites, accusing us of "effectively readfing] American Indians out of RFRA.” Dissent at 1013-14. The dissent contends "the strength of the Indians' argument in this case could be seen more easily by the majority if another religion were at issue.” Id. at 1097. In support, the dissent notes the use of artificial snow on the Peaks is no different than the government "permitt[ing] only” baptismal water contaminated with recycled wastewater for Christians or "permitt[ing] only” non-Kosher food for Orthodox Jews. Id. at 1097. Putting aside the Equal Protection Clause violation that may arise from a law targeting only Christians or only Jews, the dissent’s examples are clearly distinguishable. When a law "permits only” recycled wastewater to carry out baptisms or "permits only” non-Kosher food for Orthodox Jews, the government compels religious adherents to engage in activities repugnant to their religious beliefs under the penalty of sanctions. Such government compulsion is specifically prohibited by the Supreme Court's decision in Yo-der. A law permitting Indians to use only recycled wastewater in their religious or healing ceremonies would likewise constitute a substantial burden on their religious exercise. But there is no such law in this case. When the government allows the use of recycled wastewater on a ski area, it does not compel the Plaintiffs to act contrary to their religious tenets. The Plaintiffs remain free to use natural water in their religious or healing ceremonies and otherwise practice their religion using whatever resources they may choose. . The dissent quotes a sentence from the Navajo Plaintiffs' reply brief that cursorily states this NEPA claim was " 'properly pled' ” in the district court. Dissent at 1110 (quoting Navajo Reply Br. at 23). Nevertheless, the Navajo Plaintiffs' reply brief does not state what words in the complaint are sufficient to plead this NEPA claim, nor does the brief cite any case or rule that makes it so. It is well-established that a bare assertion in an appellate brief, with no supporting argument, is insufficient to preserve a claim on appeal. See Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 n. 1 (9th Cir.2008). The dissent’s advocacy of why the Navajo Plaintiffs’ complaint satisfies the notice pleading requirements of Federal Rule of Civil Procedure 8(a) is the dissent's own invention and disregards the rule that we do not manufacture arguments for an appellant. See id. . The dissent notes that the Navajo Plaintiffs raised the issue of human ingestion of artificial snow during the preparation of the FEIS and in the administrative appeal. Dissent at 1108-09. This, of course, is irrelevant to the question whether this claim wás presented to the district court. A party may raise a claim at the administrative proceedings, but forego that claim on judicial review. Further, presenting a claim during the administrative proceedings does not put the defendants on notice that such claim will also be raised before the district court.

Navajo Nation v. United States Forest Service

WILLIAM A. FLETCHER, Circuit Judge, dissenting, joined by Judge PREGERSON and Judge FISHER: The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (“RFRA”). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Policy Act (“NEPA”) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent. I dissent from both holdings. I. Religious Freedom Restoration Act [Djivers great learned men have been heretical, whilst they have sought to fly up to the secrets of the Deity by the waxen wings of the senses. —Sir Francis Bacon, Of the Profici-enee and Advancement of Learning, Divine and Human (Book I, 1605). The majority holds that spraying 1.5 million gallons per day of treated sewage effluent on the most sacred mountain of southwestern Indian tribes does not “substantially burden” their “exercise of religion” in violation of RFRA. According to the majority, “no plants, springs, natural resources, shrines with religious significance, or religious ceremonies ... would be physically affected” by the use of the treated sewage effluent. Maj. op. at 1063. According to the majority, the “sole effect” of the dumping of the treated sewage effluent is on the Indians’ “subjective spiritual experience.” Id. at 1063. The majority holds: [Tjhe presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ mental and emotional feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” ... on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion. Id. In so holding, the majority misstates the evidence below, misstates the law under RFRA, and misunderstands the very nature of religion. A. Background The San Francisco Peaks in northern Arizona have long-standing religious significance to numerous Indian tribes of the American Southwest. Humphrey’s Peak, Agassiz Peak, Doyle Peak, and Fremont Peak form a single large mountain commonly known as the San Francisco Peaks, or simply the Peaks. Humphrey’s Peak is the highest point in Arizona. The Peaks lie within the 1.8 million acres of the Coconino National Forest. In 1984, Congress designated 18,960 acres of the Peaks as the Kachina Peaks Wilderness. The Forest Service has identified the Peaks as eligible for inclusion in the National Register of Historic Places and as a “traditional cultural property.” The Service has described the Peaks as “a landmark upon the horizon, as viewed from the traditional or ancestral lands of the Hopi, Zuni, Acoma, Navajo, Apache, Yavapai, Hualapai, Havasupai, and Paiute.” The Forest Service has acknowledged that the Peaks are sacred to at least thirteen formally recognized Indian tribes, and that this religious significance is of centuries’ duration. There are differences among these tribes’ religious beliefs and practices associated with the Peaks, but there are important commonalities. As the Service has noted, many of the tribes share beliefs that water, soil, plants, and animals from the Peaks have spiritual and medicinal properties; that the Peaks and everything on them form an indivisible living entity; that the Peaks are home to deities and other spirit beings; that tribal members can communicate with higher powers through prayers and songs focused on the Peaks; and that the tribes have a duty to protect the Peaks. The Arizona Snowbowl is a ski area on Humphrey’s Peak, the most sacred of the San Francisco Peaks. Organized skiing has existed at the Arizona Snowbowl since 1938. In 1977, the then-owner of the Snowbowl requested authorization to clear 120 acres of new ski runs and to do other development. In 1979, after preparing an Environmental Impact Statement, the Forest Service authorized the clearing of 50 of the 120 requested acres, the construction of a new lodge, and some additional development. An association of Navajo medicine men, the Hopi tribe, and two nearby ranch owners brought suit under, inter alia, the Free Exercise Clause of the First Amendment and NEPA. The D.C. Circuit upheld the Forest Service’s decision. Wilson v. Block, 708 F.2d 735 (D.C.Cir.1983). In Wilson, the court applied only the First Amendment, for RFRA did not yet exist. The then-proposed expansion of the Snowbowl did not involve any use of treated sewage effluent. Until now, the Snowbowl has always depended on natural snowfall. In dry years, the operating season is short, with few skiable days and few skiers. The driest year in recent memory was 2001-02, when there were 87 inches of snow, 4 skiable days, and 2,857 skiers. Another dry year was 1995-96, when there were 113 inches of snow, 25 skiable days, and 20,312 skiers. By contrast, in wet years, there are many skiable days and many skiers. For example, in 1991-92, there were 360 inches of snow, 134 skiable days, and 173,000 skiers; in 1992-93, there were 460 inches of snow, 130 skiable days, and 180,062 skiers; in 1997-98, there were 330 inches of snow, 115 skiable days, and 173,862 skiers; and in 2004-05, there were 460 inches of snow, 139 skiable days, and 191,317 skiers. ASR, the current owner, purchased the Snowbowl in 1992 for $4 million, with full knowledge of weather conditions in northern Arizona. In September 2002, ASR submitted a development proposal to the Forest Service. In February 2005, the Forest Service issued a Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”). The ROD approved the development alternative preferred by ASR, which included a proposal to make artificial snow using treated sewage effluent. Under the alternative approved in the ROD, the City of Flagstaff would provide the Snowbowl with up to 1.5 million gallons per day of its treated sewage effluent— euphemistically called “reclaimed water”— from November through February. A 14.8-mile pipeline would be built between Flagstaff and the Snowbowl to carry the treated effluent. The Snowbowl would be the first ski resort in the nation to make artificial snow entirely from undiluted treated sewage effluent. Before treatment, raw sewage consists of waste discharged into Flagstaff s sewers by households, businesses, hospitals, and industries. The FEIS describes the treatment performed by Flagstaff: In the primary treatment stage, solids settle out as sludge.... Scum and odors are also removed.... Wastewater is then gravity-fed for secondary treatment through the aeration/denitrification process, where biological digestion of waste occurs .... in which a two-stage anoxic/aerobic process removes nitrogen, suspended solids, and [digestible organic matter] from the wastewater. The secondary clarifiers remove the byproducts generated by this biological process, recycle microorganisms back into the process from return activated sludge, and separate the solids from the waste system. The waste sludge is sent to [a different plant] for treatment. The water for reuse then passes through the final sand and anthracite filters prior to disinfection by ultraviolet light radiation. ... Water supplied for reuse is further treated with a hypochlorite solution to assure that residual disinfection is maintained.... The effluent that emerges after treatment by Flagstaff satisfies the requirements of Arizona law for “reclaimed water.” However, as the FEIS explains, the treatment does not produce pure water: Fecal coliform bacteria, which are used as an indicator of microbial pathogens, are typically found at concentrations ranging from 105 to 107 colony-forming units per 100 milliliters (CFU/100 ml) in untreated wastewater. Advanced wastewater treatment may remove as much as 99.9999+ percent of the fecal coliform bacteria; however, the resulting effluent has detectable levels of en-teric bacteria, viruses, and protazoa, including Cryptosporidium and Giardia. Under Arizona law, the treated sewage effluent must be free of “detectable fecal coliform organisms” in only “four of the last seven daily reclaimed water samples.” Ariz. Admin. Code § R18-ll-S03(B)(2)(a). The FEIS acknowledges that the treated sewage effluent also contains “many unidentified and unregulated residual organic contaminants.” Treated sewage effluent may be used for many things, including irrigation and flushing toilets, but the Arizona Department of Environmental Quality (“ADEQ”) requires that precautions be taken to avoid ingestion by humans. Under the alternative approved in the ROD, treated sewage effluent would be sprayed on 205.3 acres of Humphrey’s Peak during the ski season. In November and December, the Snowbowl would use the effluent to build a base layer of artificial snow. The Snowbowl would then make more snow from the effluent depending on the amount of natural snowfall. The Snowbowl would also construct a reservoir on the mountain with a surface area of 1.9 acres to hold treated sewage effluent. The stored effluent would allow snowmaking to continue after Flagstaff cuts off the supply at the end of February. B. Religious Freedom Restoration Act Under the Religious Freedom Restoration Act of 1993 (“RFRA”), the federal government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” 42 U.S.C. § 2000bb-l(a). “Exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A). Subsection (b) of § 2000bb-l provides, “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” These provisions of RFRA were prompted by two Supreme Court decisions. RFRA was originally adopted in response to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, an Oregon statute denied unemployment benefits to drug users, including Indians who used peyote in religious ceremonies. Id. at 890, 110 S.Ct. 1595. The Court held that the Free Exercise Clause of the First Amendment does not prohibit burdens on religious practices if they are imposed by laws of general applicability such as the Oregon statute. Characterizing its prior cases striking down generally applicable laws as “hybrid” decisions invoking multiple constitutional interests, the Court refused to subject fa-daily neutral regulations to strict scrutiny when challenged solely under the First Amendment. Id. at 881-82, 885-86, 110 S.Ct. 1595. However, the Court acknowledged that although the Constitution does not require a “compelling government interest” test in such a case, Congress could impose one. Id. at 890, 110 S.Ct. 1595. In RFRA, enacted three years later, Congress made formal findings that the Court’s decision in Smith “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” and that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Pub.L. No. 103-141, § 2(a), 107 Stat. 1488, 1488 (1993) (codified at 42 U.S.C. § 2000bb(a)). Congress declared that the purposes of RFRA were “to provide a claim or defense to persons whose religious exercise is substantially burdened by government” and “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened.” Id. § 2(b), 107 Stat. at 1488 (codified at 42 U.S.C. § 2000bb(b)). In this initial version of RFRA, adopted in 1993, Congress defined “exercise of religion” as “exercise of religion under the First Amendment to the Constitution.” Id. § 5, 107 Stat. at 1489 (codified at 42 U.S.C. § 2000bb-2(4) (1994) (repealed)). In 1997, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court held RFRA unconstitutional as applied to state and local governments because it exceeded Congress’s authority under § 5 of the Fourteenth Amendment. Id. at 529, 534-35, 117 S.Ct. 2157. The Court did not, however, invalidate RFRA as applied to the federal government. See Guam v. Guerrero, 290 F.3d 1210, 1220-21 (9th Cir.2002). Three years later, in response to City of Boeme, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Pub.L. No. 106-274, 114 Stat. 803 (codified at 42 U.S.C. §§ 2000cc et seq.). RLUIPA replaced RFRA’s original First Amendment definition of “exercise of religion” with the broader statutory definition quoted above. RLUIPA §§ 7-8,114 Stat. at 806-07. Under RFRA after its amendment by RLUI-PA, “exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4), 2000cc-5(7)(A). In several ways, RFRA provides greater protection for religious practices than did the Supreme Court’s pre-Smith cases, which were based solely on the First Amendment. First, RFRA “goes beyond the constitutional language that forbids the ‘prohibiting’ of the free exercise of religion and uses the broader verb ‘burden.’ ” United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir.1996) (as amended). Cf. U.S. Const, amend. 1 (“Congress shall make no law ... prohibiting the free exercise [of religion].”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“The crucial word in the constitutional text is ‘prohibit’.... ”). Second, as the Supreme Court noted in City of Boeme, RFRA provides greater protection than did the First Amendment under the pre-Smith cases because “the Act imposes in every case a least restrictive means requirement — a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify.” 521 U.S. at 535,117 S.Ct. 2157. Third, in passing RLUIPA in 2000, Congress amended RFRA’s definition of “exercise of religion.” Under the amended definition — “any exercise of religion, whether or not compelled by, or central to, a system of religious belief’ — RFRA now protects a broader range of conduct than was protected under the Supreme Court’s interpretation of “exercise of religion” under the First Amendment. See Guru Nanak Sikh Soc’y v. County of Sutter, 456 F.3d 978, 995 n. 21 (9th Cir.2006) (noting same). After 2000, RFRA plaintiffs must still prove that the burden on their religious exercise is “substantial,” but the difficulty of showing a substantial burden is decreased because a broader range of religious exercise is now protected under RFRA. That is, some governmental actions were not previously considered burdens because they burdened non-protected religious exercise. Given the new broader definition of statutorily protected “exercise of religion,” those actions have now become burdens within the meaning of RFRA. Finally, and perhaps most important, RFRA provides broader protection because it applies Sherbert and Yoder's compelling interest test “in all cases” where the exercise of religion is substantially burdened. 42 U.S.C. § 2000bb(b). Prior to Smith, the Court had refused to apply the compelling interest analysis in various contexts, exempting entire classes of free exercise cases from such heightened scrutiny. See, e.g., Lyng, 485 U.S. at 454, 108 S.Ct. 1319; O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986); see also Smith, 494 U.S. at 883, 110 S.Ct. 1595 (“In recent years, we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all.”). RFRA rejected the categorical barriers to strict scrutiny employed in those cases. C. The Majority’s Misstatements of the Law under RFRA The majority misstates the law under RFRA in three ways. First, it concludes that a “substantial burden” on the “exercise of religion” under RFRA occurs only when the government “has coerced the Plaintiffs to act contrary to their religious beliefs under threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs.” Maj. op. at 1063. Second, it ignores the impact of RLUIPA, and cases interpreting RLUIPA, on the definition of a “substantial burden” on the “exercise of religion” in RFRA. Third, it treats as an open question whether RFRA applies to the federal government’s use of its own land. I discuss these misstatements in turn. 1. Definition of “Substantial Burden” Neither RFRA nor RLUIPA defines “substantial burden.” RFRA states, The purposes of [RFRA] are— (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious freedom is substantially burdened by government. 42 U.S.C. § 2000bb(b). The majority uses this statutory text to conclude that the purpose of RFRA was to “restore” a de facto “substantial burden” test supposedly employed in Sherbert and Yoder. In the hands of the majority, that test is extremely restrictive, allowing a finding of “substantial burden” only in those cases where the burden is imposed by the same mechanisms as in those two cases. In the majority’s words, “Where ... there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion.” Maj. op. at 1063. For six reasons, the majority is wrong in looking to Sherbert and Yoder for an exhaustive definition of what constitutes a “substantial burden.” First, the majority’s approach is inconsistent with the plain meaning of the phrase “substantial burden.” Second, RFRA does not incorporate any pre-RFRA definition of “substantial burden.” Third, even if RFRA did incorporate a pre-RFRA definition of “substantial burden,” Sherbert, Yoder, and other pre-RFRA Supreme Court cases did not use the term in the restrictive manner employed by the majority. That is, the cases on which the majority relies did not state that interferences with the exercise of religion constituted a “substantial burden” only when imposed through the two mechanisms used in Sherbert and Yoder. Fourth, the purpose of RFRA was to expand rather than to contract protection for the exercise of religion. If a disruption of religious practices can qualify as a “substantial burden” under RFRA only when it is imposed by the same mechanisms as in Sherbert and Yoder, RFRA would permit interferences with religion that it was surely intended to prevent. Fifth, the majority’s approach overrules fourteen years of contrary circuit precedent. Sixth, the majority’s approach is inconsistent with our cases applying RLUIPA. The Supreme Court has instructed us that RLUI-PA employs the same analytic frame-work and standard as RFRA. I consider these reasons in turn. a. Substantial Burden on the Exercise of Religion The majority contends that the phrase “substantial burden” refers only to burdens that are created by two mechanisms — the imposition of a penalty, or the denial of a government benefit. But the phrase “substantial burden” has a plain and ordinary meaning that does not depend on the presence of a penalty or deprivation of benefit. A “burden” is “[s]ome-thing that hinders or oppresses.” Black’s Law Dictionary (8th ed.2004). A burden is “substantial” if it is “Considerable in importance, value, degree, amount, or extent.” American Heritage Dictionary (4th ed.2000). In RFRA, the phrase “substantial burden” modifies the phrase “exercise of religion.” Thus, RFRA prohibits government action that “hinders or oppresses” the exercise of religion “to a considerable degree.” See also San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) (using dictionary definitions to define “substantial burden” under RLUIPA and concluding that “for a land use regulation to impose a ‘substantial burden’ it must be ‘oppressive’ to a ‘significantly great’ extent.”). The text of RFRA does not describe a particular mechanism by which religion cannot be burdened. Rather, RFRA prohibits government action with a particular effect on religious exercise. This prohibition is categorical: “Government shall not substantially burden a person’s exercise of religion....” 42 U.S.C. § 2000bb-l(a). Had Congress wished to establish the standard employed by the majority, it could easily have stated that “Government shall not, through the imposition of a penalty or denial of a benefit, substantially burden a person’s exercise of religion.... ” It did not do so. The majority is correct that such text would have been unnecessary if RFRA had incorporated previous Supreme Court case law that defined the phrase “substantial burden” as a term of art referring only to the imposition of a penalty or denial of a benefit. Maj. op. at 1074. However, as explained below, Congress did not “restore” any technical definition of “substantial burden” found in pre-RFRA case law, let alone “restore” the definition the majority now reads into RFRA. b. “Restoring” Sherbert and Yoder The text of RFRA explicitly states that the purpose of the statute is “to restore the compelling interest test as set forth in [,Sherbert and Yoder V’ 42 U.S.C. § 2000bb(b) (emphasis added). The text refers separately to “substantially burden” and the “exercise of religion,” but it says nothing about “restoring” the definition of these terms as used in Sherbert and Yoder. In the years after Sherbert and Yoder, the Supreme Court applied the “compelling interest test” to fewer and fewer Free Exercise claims under the First Amendment. For example, in Goldman, 475 U.S. at 505, 507-08, 106 S.Ct. 1310, the Court conceded that a military regulation banning civilian “headgear” implicated the First Amendment rights of an Orthodox Jew who sought to wear a yarmulke, but then upheld the regulation after minimal scrutiny due to the “great deference [owed] the professional judgment of military authorities concerning the relative importance of a particular military interest.” In O’Lone, 482 U.S. at 349, 107 S.Ct. 2400, the Court refused to require that prison regulations be justified by a compelling interest, instead demanding only that they be “reasonably related to legitimate peno-logical interests.” See also Bowen v. Roy, 476 U.S. 693, 707, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) (Burger, J., for plurality) (compelling interest test not applicable in enforcing “facially neutral and uniformly applicable requirement for the administration of welfare programs”); Lyng, 485 U.S. at 454, 108 S.Ct. 1319 (compelling interest test not applicable where government interferes with religious exercise through “the use of its own land”). In other cases, the Court purported to apply the compelling interest test, but in fact applied a watered-down version of the scrutiny employed in Sherbert and Yoder. Rather than demanding, as it had in Sherbert and Yoder, that the particular governmental interest at stake be compelling, the Court accepted extremely general definitions of the government’s interest. For example, in United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), the Court balanced an individual’s interest in a religious exemption from social security taxes against the “broad public interest in maintaining a sound tax system.” Id. at 260, 102 S.Ct. 1051. Likewise, the plurality in Roy balanced an individual’s objection to the provision of a social security number against the government’s general interest in “preventing fraud in [government] benefits programs.” 476 U.S. at 709, 106 S.Ct. 2147; see also David B. Tillotson, Free Exercise in the 1980s: A Rollback of Protections, 24 U.S.F. L.Rev. 505, 520 (1990) (“The Court has either defined the Government’s interest so broadly that no individual’s interest could possibly outweigh it or, more recently, has ... simply refused to weigh individual challenges to uniformly applicable and neutral statutes against any government interest, notwithstanding Sherbert.”). Smith, in which the Court refused to apply the compelling governmental interest test to a generally applicable law burdening the exercise of religion, was the last straw. In direct response, Congress enacted RFRA, directing the federal courts to “restore” the “compelling interest test” that had been applied in Sherbert and Yoder “in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). That is, by restoring the “compelling interest test,” Congress restored the application of strict scrutiny, as applied in Sherbert and Yoder, to all government actions substantially burdening religion, and rejected the restrictive approach to free exercise claims taken in Lyng, Roy, Goldman, O’Lone, and Lee. But this directive does not specify what government actions substantially burden religion, thereby triggering the compelling interest test. RFRA did not “restore” any definition of “substantial burden.” Because Congress did not define “substantial burden,” either directly or by reference to pre-Smith case law, we should define (and in fact have defined) that term according to its ordinary meaning. c. “Substantial Burden” Test Not Used in Sherbert, Yoder, and Other Pre-RFRA Cases To Rule Out Certain Burdens According to the majority, pre-RFRA cases used the term “burden” or “substantial burden” to refer exclusively to burdens on religion imposed by only two particular types of government action. According to the majority, a “substantial burden” under RFRA can only be caused by government action that either “coerce[s an individual] to act contrary to their religious beliefs under threat of sanctions, or condition[s] a governmental benefit upon conduct that would violate [an individual's] religious beliefs.” Maj. op. at 1063. This restrictive definition of “substantial burden” cannot be found in Sherbert, Yoder, or any other case prior to the passage of RFRA. In Sherbert, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, the Court held that a Seventh-day Adventist could not be denied unemployment benefits based on her refusal to work on Saturdays. Without using the phrase “substantial burden,” the Court concluded that a requirement that the plaintiff work on Saturdays, on pain of being fired if she refused, “foree[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404, 83 S.Ct. 1790. The Court compared such an imposition to a governmental fine: “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” Id. The Court therefore mandated that the requirement be justified by a “compelling state interest.” Id. at 406-09, 83 S.Ct. 1790. In Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, the Court held that Amish children could not be required to attend school up to the age of sixteen, on penalty of criminal sanctions against their parents if they did not attend. Without using the phrase “substantial burden,” the Court concluded that a requirement that children attend school, on pain of criminal punishment of their parents if they did not, “would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.” Id. at 219, 92 S.Ct. 1526. The Court therefore required, as it had in Sherbert, that the requirement be justified by a “compelling state interest.” Id. at 221-29, 92 S.Ct. 1526. Neither Sherbert nor Yoder used the majority’s substantial burden test as the trigger for the application of the compelling interest test. The Court in Sherbert and Yoder used the word “burden,” but nowhere defined, or even used, the phrase “substantial burden.” After holding that the exercise of religion was burdened in each case, the Court simply did not opine on what other impositions on free exercise would, or would not, constitute a burden. That is, Sherbeti and Yoder held that certain interferences with religious exercise trigger the compelling interest test. But neither case suggested that religious exercise can be “burdened,” or “substantially burdened,” only by the two types of interference considered in those cases. The phrase “substantial burden” is a creation of later cases which sometimes use Sherbert or Yoder as part of a string citation. See, e.g., Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). Neither Sherbert nor Yoder, nor any of the later cases, uses the restrictive definition of “substantial burden” invented by the majority today. Nor do other pre-RFRA cases supply the majority’s restrictive definition of “substantial burden.” The majority relies heavily on Lyng, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534, which relies in turn on Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735. In Lyng, tribal members challenged the construction of a proposed road on government land in the Chimney Rock area of the Six Rivers National Forest as infringing their rights under the Free Exercise Clause of the First Amendment. 485 U.S. at 442-42, 108 S.Ct. 1319. The Court began its analysis by reiterating the holding of Roy that “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 485 U.S. at 448, 108 S.Ct. 1319 (quoting Roy, 476 U.S. at 699-700, 106 S.Ct. 2147). The Court then reasoned: In both [Lyng and Roy ], the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens. Id. at 449, 108 S.Ct. 1319 (emphases added). The Court concluded that only “coercion” of the sort found in Sherbert and Yoder would trigger strict scrutiny because, “[t]he crucial word in the constitutional text is ‘prohibit.’ ” Id. at 451, 108 S.Ct. 1319. Justice Brennan dissented from the majority’s refusal to apply heightened scrutiny, emphasizing that the First Amendment “is directed against any form of governmental action that frustrates or inhibits religious practice.” Id. at 459, 108 S.Ct. 1319 (Brennan J., dissenting). In response, the Lyng majority conceded that the proposed road would have “severe adverse effects on the practice of [plaintiffs’] religion.” Id. at 447, 108 S.Ct. 1319. But the Court went out of its way to reject Justice Brennan’s contention that the First Amendment is directed at governmental action that frustrates or inhibits religious practice. It responded, “The Constitution ... says no such thing. Rather, it states: ‘Congress shall make no law ... prohibiting the free exercise [of religion].’ ” Id. at 456-57, 108 S.Ct. 1319 (quoting id. at 459, 108 S.Ct. 1319; U.S. Const, amend. I) (emphasis and alterations in original). Lyng did not hold that the road at issue would cause no “substantial burden” on religious exercise. The Court in Lyng never used the phrase “substantial burden.” Rather, Lyng held that government action that did not coerce religious practices or attach a penalty to religious belief was insufficient to trigger the compelling interest test despite the presence of a significant burden on religion. The Court explicitly recognized this in Smith when it wrote, “In [Lyng~\, we declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes, even though it was undisputed that the activities ‘could have devastating effects on traditional Indian religious practices.’ ” Smith, 494 U.S. at 883, 110 S.Ct. 1595 (quoting Lyng, 485 U.S. at 451, 108 S.Ct. 1319) (emphasis added). The majority’s attempt to read Lyng into RFRA is not just flawed. It is perverse. In refusing to apply the compelling interest test to the “severe adverse effects on the practice of [plaintiffs’] religion” in Lyng, the Court reasoned that the protections of the First Amendment “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” 485 U.S. at 447, 451, 108 S.Ct. 1319. The Court directly incorporated this reasoning into Smith. See 494 U.S. at 885, 110 S.Ct. 1595. Congress then rejected this very reasoning when it restored the application of strict scrutiny “in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). In sum, it is clear that the interferences with the free exercise of religion that existed in Sherbert and Yoder qualify, to use the terminology of RFRA, as a “substantial burden.” But the text, purpose, and enactment history of RFRA make equally clear that RFRA protects against burdens that, while imposed by a different mechanism than those in Sherbert and Yoder, are also “substantial.” d. Purpose of RFRA The express purpose of RFRA was to reject the restrictive approach to the Free Exercise Clause that culminated in Smith and to restore the application of strict judicial scrutiny “in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). The majority’s approach is fundamentally at odds with this purpose. As should be clear, RFRA creates a legally protected interest in the exercise of religion. The protected interest in Sherbert was the right to take religious rest on Saturday, not the right to receive unemployment insurance. The protected interest in Yoder was the right to avoid secular indoctrination, not, as the majority contends, the right to avoid criminal punishment. See Maj. Op. at 1070-71 n. 12. Such interests in religious exercise can be severely burdened by government actions that do not deny a benefit or impose a penalty. For example, a court would surely hold that the government had imposed a “substantial burden” on the “exercise of religion” if it purchased by eminent domain every Catholic church in the country. Similarly, a court would surely hold that the Forest Service had imposed a “substantial burden” on the Indians’ “exercise of religion” if it paved over the entirety of the San Francisco Peaks. We have already held that prison officials substantially burden religious exercise if they record the confessions of Catholic inmates, or refuse to provide Halal meat meals to a Muslim prisoner. See Mockaitis v. Harcleroad, 104 F.3d 1522, 1531 (9th Cir.1997) (“A substantial burden is imposed on ... free exercise of religion ... by the intrusion into the Sacrament of Penance by officials of the state.”); Shakur v. Schriro, 514 F.3d 878, 888-89 (9th Cir.2008) (holding that failure of prison officials to provide Muslim prisoner with Halal or Kosher meat diet could constitute substantial burden on religious exercise under RLUIPA); see also Lovelace v. Lee, 472 F.3d 174, 198-99 (4th Cir.2006) (holding that prisoner’s right to religious diet under RLUIPA is clearly established for purposes of qualified immunity). However, the majority’s restrictive definition of “substantial burden” places such injuries entirely outside the coverage of RFRA because they are imposed through different mechanisms than those employed in Sherbert and Yoder. The majority cannot plausibly justify this result by arguing that the complete destruction of a religious shrine or place of worship, violation of a sacrament, or denial of a religious diet are less “substantial” restrictions on religious exercise than those caused by the denial of unemployment benefits. Rather, the majority refuses to apply strict scrutiny to these substantial injuries because, in its view, “a government that presides over a nation with as many religions as the United States of America [could not] function were it required to do so.” See Maj. op. at 1064. This proposition was explicitly rejected by RFRA, which directs courts to apply the compelling governmental interest test “in all cases” where there is a “substantial burden” on the “exercise of religion.” See RFRA § 2000bb(a)(5) (stating that “the compelling interest test ... is a workable test for striking sensible balances between religious liberty and competing prior governmental interests”). It has also been explicitly rejected by the Supreme Court. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (rejecting the government’s argument that the Controlled Substances Act “cannot function ... if subjected to judicial exemptions” because “RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach”); id. at 1215 (“Here the Government’s uniformity argument rests not so much on the particular statutory program at issue as on slippery slope concerns that could be invoked in response to any RFRA claim ... ”). The majority’s approach thus places beyond judicial scrutiny many burdens on religious exercise that RFRA was intended to prevent, and does so based on “slippery slope” arguments that the Supreme Court has instructed us to reject. e. This Circuit’s RFRA Precedents As I have described above, the majority’s narrow definition of “substantial burden” conflicts with RFRA’s text and purpose. The majority’s approach also conflicts with our prior application of RFRA in this circuit. We first addressed the definition of “substantial burden” under RFRA in Bryant v. Gomez, 46 F.3d 948 (9th Cir.1995). We stated that a “substantial burden” exists where: [A] governmental [action] burdens the adherent’s practice of his or her religion ... by preventing him or her from engaging in [religious] conduct or having a religious experience.... This interference must be more than an inconvenience; the burden must be substantial. Id. at 949 (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987)) (second, third, and fifth alterations in Bryant) (emphasis added). Since Bryant, we have repeatedly refused to adopt the conclusion of the majority that “a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit ... or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” Maj. op. at 1053-54. See, e.g., Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir.2000) (substantial burden where government “prevents] [plaintiff] from engaging in [religious] conduct or having a religious experience” and is “more than an inconvenience”) (quoting Goehring v. Brophy, 94 F.3d 1294, 1299 (9th Cir.1996); and Bryant, 46 F.3d at 949); Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir.1996) (same). We have noted that “[a] statute burdens the free exercise of religion if it *put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ including when, if enforced, it ‘results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.’ ” Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir.2002) (emphasis added) (quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); and Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)). However, nothing in our opinions suggests that the government can substantially burden religion only by applying a penalty or withholding a benefit based on religion. In fact, we have held precisely the opposite. In Mockaitis, a district attorney for Lane County, Oregon, with the assistance of officials at the Lane County Jail, recorded the confession of a detained murder suspect to a Catholic priest. 104 F.3d at 1524-26. The prisoner and the priest learned of the taping only after it occurred. Id. at 1526. Although the prisoner did not seek suppression of the tape, the priest, together with the Archbishop of Portland, sought an injunction under RFRA barring future taping. Id. at 1526-1527. We concluded the initial taping violated RFRA and held that an injunction was warranted because, A substantial burden is imposed on [the Archbishop’s] free exercise of religion as the responsible head of the archdiocese of Portland by the intrusion into the Sacrament of Penance by officials of the state, an intrusion defended in this case by an assistant attorney-general of the state as not contrary to any law. Archbishop George has justifiable grounds for fearing that without a declaratory judgment and an injunction in this case the administration of the Sacrament of Penance for which he is responsible in his archdiocese will be made odious in jails by the intrusion of law enforcement officers. Id. at 1531 (emphasis added). Mockaitis was not only correctly decided. It is also flatly inconsistent with the majority opinion. The majority does not dispute that Mockaitis is inconsistent with its approach today, but instead argues that Mockaitis “cannot serve as precedent” for two reasons. Maj. op. at 1073-74 n.15. First, the Majority notes that City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157, overruled our application of RFRA to a state subdivision in Mockaitis. But the federalism holding of City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157, was entirely unrelated to our definition of “substantial burden.” We do not normally discard our prior view of the law simply because it was expressed in a case that is overruled on unrelated grounds. To the contrary, this circuit has cited cases that have been “overruled on other grounds” in 1,508 opinions. Mockai-tis continues to demonstrate that we have previously refused to adopt the majority’s restrictive definition of “substantial burden.” Second, the majority finds Mockaitis “unhelpful” because it “did not define substantial burden, let alone analyze the substantial burden standard under the Sherbert/Yoder framework restored in RFRA, [or] attempt to explain why such framework should not apply to define substantial burden.” Maj. op. at 1074 n. 15. As I have explained above, RFRA did not employ the term “substantial burden” as a term of art limiting the application of RFRA to burdens caused by the precise mechanisms at issue in Sherbert and Yo-der. In rejecting this argument, the majority dismisses Mockaitis precisely because it proves my point. That is, because Mockaitis does not treat “substantial burden” as a term of art limited to burdens caused by the precise mechanisms at issue in Sherbert and Yoder, the majority must perforce reject it. The conflict between Mockaitis and the majority’s approach today reflects the novelty of today’s opinion, not any shortcomings of Mockaitis. Notably absent from the majority’s opinion is any explanation of why the result reached in Mockaitis is incorrect. Under the majority’s approach, it is clear that governmental eavesdropping on a prisoner’s confession to his priest would not impose a substantial burden on the prisoner or priest under RFRA. This cannot be the law. f. This Circuit’s RLUIPA Precedents Our cases interpreting the definition of “substantial burden” under RLUIPA have applied a similar definition to the definition employed in Bryant, 46 F.3d at 949. In applying RLUIPA, we have stated that “for a land use regulation to impose a ‘substantial burden,’ it must be ‘oppressive’ to a ‘significantly great’ extent. That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir.2005) (quoting San Jose Christian College, 360 F.3d at 1034). In other words, we have defined “substantial burden” according to the effect of a government action on religious exercise rather than particular mechanisms by which this effect is achieved. Moreover, we recently held that a substantial burden could exist under RLUIPA in a case that involved no imposition of a penalty or deprivation of a benefit. In Shakur, 514 F.3d 878, a Muslim inmate brought a RLUIPA challenge alleging that the Arizona Department of Corrections substantially burdened his exercise of religion by refusing to provide him with a Halal or Kosher meat diet. Id. at 888-89. The imposition on Shakur was in fact relatively mild because the prison provided him with a vegetarian diet as an alternative to the ordinary meat diet. Id. at 888, 891. Nonetheless, we found that Shakur had asserted a cognizable substantial burden under RLUIPA when he alleged that the vegetarian diet he was forced to eat for lack of Halal meat gave him indigestion, thereby disrupting his religious practices. Id. at 888. Because the Arizona Department of Corrections had not imposed any penalty or withheld any benefit from Sha-kur based on his exercise of religion, Sha-kur is, like Mockaitis, flatly inconsistent with the majority opinion. In attempting to distinguish Shakur, the majority again refuses to accept the implications of its own rule. The majority claims that Shakur is a “straightforward application of the Sherbert test” because “the policy conditioned a governmental benefit to which Shakur was otherwise entitled — a meal in prison — upon conduct that would violate Shakur’s religious beliefs.” Maj. op. at 1078 n. 24. However, like Mockaitis, Shakur applied the ordinary meaning of the phrase “substantial burden,” which is inconsistent with the majority’s newly minted “Sherbert test.” In Sherbert, a Seventh-day Adventist was denied unemployment benefits after she was fired for refusing to work on Saturdays because, according to the state, she had “fail[ed], without good cause, to accept suitable work when offered.” 374 U.S. at 399-400, 83 S.Ct. 1790 (internal quotation marks omitted). In other words, the plaintiff in Sherbert was denied a government benefit, to which she was otherwise entitled, because of her religious observance. Contrary to the majority’s assertions, the inmate in Shakur was not denied any government benefit to which he was otherwise entitled because of his religious observance. Shakur had a legal interest in some meal in prison, but he was never denied this interest as a consequence of his religious observance. Eating the vegetarian meals provided by the prison was permitted by Shakur’s religion. Shakur had no legal interest in Halal meat meals, except to the extent the government’s failure to provide them interfered with his subjective religious experience. Nonetheless, we held that the failure of the prison to provide Halal meat meals could constitute a substantial burden on Shakur’s religious exercise because the vegetarian meals allegedly “exacerbate[d] [Shakur’s] hiatal hernia and cause[d] excessive gas that interfere[d] with the ritual purity required for [Shakur’s] Islamic worship.” Id. at 889. That is, although the government had in no way penalized Shakur’s exercise of his religion by denying a benefit to which he was otherwise entitled, we held that RFRA may impose an affirmative duty on prison officials to provide Halal meat meals where the failure to do so harms the inmate’s sense of “ritual purity.” Id. The provision of special meals is a government action that benefits an inmate. But this is true of virtually any religious accommodation. Thus, Shakur can only be explained as consistent with the majority’s rule if the mere accommodation of religion is a governmental benefit. But such a broad rule cannot support the majority’s conclusion in this case. Under such a definition, the Forest Service offers the Indians in this case a “government benefit” in the form of access to their sacred land and ritual materials. The Forest Service’s failure to offer spiritually pure sites and materials is the equivalent of prison officials failing to offer religiously pure meals. In short, in denying the Indians’ claims, the majority contends that the phrase “substantial burden” applies only where the government imposes sanctions or “condition[s] a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs.” The majority then abandons this definition in its attempts to distinguish Shakur, which did not involve the conditioning of government benefits on conduct that would violate religious beliefs. The need for such semantic contortions only highlights the degree to which the majority’s rule is inconsistent with our pri- or case law and fails to capture the meaning of the term “substantial burden.” 2. The Applicability of RLUIPA The majority’s second misstatement is that RLUIPA does not apply to suits brought under RFRA. It writes: For two reasons, RLUIPA is inapplicable to this case. First, RLUIPA, by its terms, prohibits only state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise of religion.... Subject to two exceptions not relevant here, RLUI-PA does not apply to a federal government action, which is not at issue in this case. ... Second, even for state and local governments, RLUIPA applies only to government land-use regulations of private land, not to the government’s management of its own land. Maj. op. at 1077. From this, the majority concludes that RLUIPA cases finding a “substantial burden” on the exercise of religion are irrelevant to RFRA cases. It is true that much of RLUIPA applies specifically to state and local zoning decisions and to actions by prison officials. But it is demonstrably not true that RLUIPA is “inapplicable to this case,” and that cases decided under RLUIPA may be disregarded in RFRA cases. Not only did RLUIPA amend the definition of “exercise of religion” contained in RFRA, RLUIPA also applies the same “substantial burden” test that is applied in RFRA cases. Prior to the passage of RLUIPA in 2000, RFRA provided that “the term ‘exercise of religion’ means the exercise of religion under the First Amendment to the Constitution.” Pub.L. No. 103-141, § 5, 107 Stat. at 1489 (codified at 42 U.S.C. § 2000bb-2(4) (1994) (repealed)). RLUI-PA changed the definition of “exercise of religion” in RFRA. RLUIPA §§ 7-8, 114 Stat. at 806-07. As a result of RLUIPA, 42 U.S.C. § 2000bb-2 now provides, “As tosed in this chapter — ... (4) the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc-5 of this title.” (emphasis added). The “chapter” to which 2000bb-2 refers is Chapter 21B of Title 42. Chapter 21B is the codification of the Religious Freedom Restoration Act. Section 2000cc-5, to which § 2000bb-2 refers, provides, “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” RFRA and RLUIPA not only share the same definition of “exercise of religion,” they also share the same analytic framework and terminology. Under both statutes, the imposition of a “substantial burden” on a person’s “exercise of religion” may be justified only by a compelling governmental interest and a showing that such interest is furthered by the least restrictive means. See 42 U.S.C. § 2000bb-1(b) (RFRA); 42 U.S.C. § 2000cc-l(a)(l-2) (RLUIPA). The Supreme Court has explicitly stated that “the Religious Land Use and Institutionalized Persons Act of 2000 ... allows federal and state prisoners to seek religious accommodation pursuant to the same standard as set forth in RFRA[.]” O Centro, 646 U.S. at 436, 126 S.Ct. 1211 (emphasis added). Because RFRA and RLUIPA cases share the same analytic framework and terminology and are, in the words of the Court in O Centro, governed by the “same standard,” RLUI-PA cases are necessarily applicable to RFRA cases. 3. Applicability of RFRA to Federal Land Finally, the majority misstates the law when it treats as an open question whether RFRA applies to federal land. The majority writes: The Defendants do not contend that RFRA is inapplicable to the government’s use and management of its own land, which is at issue in this case. Because this issue was not raised or briefed by the parties, we have no occasion to consider it. Therefore, we assume, without deciding, that RFRA applies to the government’s use and management of its land[.] Maj. op. at 1067 n. 9. It is hardly an open question whether RFRA applies to federal land. For good reason, none of the defendants argued that RFRA is inapplicable to actions on federal land. There is nothing in the text of RFRA that says, or even suggests, that such a carve-out from RFRA exists. No case has ever so held, or even suggested, that RFRA is inapplicable to federal land. The majority opinion uses silence of the briefs in this case as an excuse to treat the applicability of RFRA to federal land as an open question. However, the majority ignores the following exchange with the government’s attorney during oral argument before the en banc panel. In that exchange, the government explicitly stated that RFRA applies to federal land: Question [by a member of the en banc panel]: Is it your position that the substantial burden test is simply never triggered when the government is using its own land? That it’s simply outside the coverage of RFRA if the government is using its own land? Answer [by the government’s attorney]: No, your honor, that is not our position .... Question: So, the use of government land has the potential under RFRA to impose a substantial burden? Answer: It is possible that certain activities on certain government land can still substantially burden religious activities. Question: And would then violate RFRA if there were no compelling state interest? Answer: Correct. Yes. [En banc argument at 35:06.] D. Misunderstanding of Religious Belief and Practice In addition to misstating the law under RFRA, the majority misunderstands the nature of religious belief and practice. The majority concludes that spraying up to 1.5 million gallons of treated sewage effluent per day on Humphrey’s Peak, the most sacred of the San Francisco Peaks, does not impose a “substantial burden” on the Indians’ “exercise of religion.” In so concluding, the majority emphasizes the lack of physical harm. According to the majority, “[T]here are no plants, springs, natural resources, shrines with religious significance, nor any religious ceremonies that would be physically affected” by using treated sewage effluent to make artificial snow. In the majority’s view, the “sole effect” of using treated sewage effluent on Humphrey’s Peak is on the Indians’ “subjective spiritual experience.” Maj. op. at 1063. The majority’s emphasis on physical harm ignores the nature of religious belief and exercise, as well as the nature of the inquiry mandated by RFRA. The majority characterizes the Indians’ religious belief and exercise as merely a “subjective spiritual experience.” Though I would not choose precisely those words, they come close to describing what the majority thinks it is not describing — a genuine religious belief and exercise. Contrary to what the majority writes, and appears to think, religious exercise invariably, and centrally, involves a “subjective spiritual experience.” Religious belief concerns the human spirit and religious faith, not physical harm and scientific fact. Religious exercise sometimes involves physical things, but the physical or scientific character of these things is secondary to their spiritual and religious meaning. The centerpiece of religious belief and exercise is the “subjective” and the “spiritual.” As William James wrote, religion may be defined as “the feelings, acts, and experiences of individual men [and women] in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.” William James, the VARIETIES OF RELIGIOUS EXPERIENCE: A Study in Human Nature 31-32 (1929). The majority’s misunderstanding of the nature of religious belief and exercise as merely “subjective” is an excuse for refusing to accept the Indians’ religion as worthy of protection under RFRA. According to undisputed evidence in the record, and the finding of the district court, the Indians in this case are sincere in their religious beliefs. The record makes clear that their religious beliefs and practice do not merely require the continued existence of certain plants and shrines. They require that these plants and shrines be spiritually pure, undesecrated by treated sewage effluent. Perhaps the strength of the Indians’ argument in this case could be seen more easily by the majority if another religion were at issue. For example, I do not think that the majority would accept that the burden on a Christian’s exercise of religion would be insubstantial if the government permitted only treated sewage effluent for use as baptismal water, based on an argument that no physical harm would result and any adverse effect would merely be on the Christian’s “subjective spiritual experience.” Nor do I think the majority would accept such an argument for an orthodox Jew if the government permitted only non-Kosher food. E. Proper Application of RFRA Applying our precedents, which properly reject the majority’s restrictive approach, I would hold that the Indians have shown a substantial burden on the exercise of their religion under RFRA. I also believe that the Forest Service has failed to show that approval of the Snowbowl expansion was the least restrictive means to further a compelling governmental interest. 1. “Substantial Burden” on the “Exercise of Religion” RFRA defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § § 2000bb-2(4), 2000ce-5(7)(A). Under our prior case law, a “substantial burden” on the “exercise of religion” exists where government action prevents an individual “from engaging in [religious] conduct or having a religious experience” and the interference is “more than an inconvenience.” Bryant, 46 F.3d at 949. a. The Indians’ “Sacred” Land and their “Exercise of Religion” The Appellees do not dispute the sincerity of the Indians’ testimony concerning their religious beliefs and practices, and the district court wrote that it was not “challenging the honest religious beliefs of any witness.” The majority concedes that the Indians are sincere. It writes, “The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding.” Maj. op. at 1068. The majority seeks to undermine the importance of the district court’s finding, and its own concession, by contending that the Indians consider virtually everything sacred. It writes: In the Coconino National Forest alone, there are approximately a dozen mountains recognized as sacred by American Indian tribes. The district court found the tribes hold other landscapes to be sacred as well, such as canyons and canyon systems, rivers and river drainages, lakes, discrete mesas and buttes, rock formations, shrines, gathering areas, pilgrimage routes, and prehistoric sites. Within the Southwestern Region forest lands alone, there are between 40,000 and 50,000 prehistoric sites. The district court also found the Navajo and the Hualapai Plaintiffs consider the entire Colorado River to be sacred. New sacred areas are continuously being recognized by the Plaintiffs. Maj. op. at 1066 n. 7 (citations omitted). The majority implies that if we hold, based on the sincerity of the Indians’s religious belief, that there has been a substantial burden in this case, there is no stopping place. That is, since virtually everything is sacred, virtually any governmental action affecting the Indians’ “sacred” land will be a substantial burden under RFRA. The majority’s implication rests upon an inadequate review of the record. The district court conducted a two-week trial devoted solely to the Indians’ RFRA claim. The trial record demonstrates that the word “sacred” is a broad and undifferentiated term. That term does not capture the various degrees in which the Indians hold land to be sacred. For example, Vincent Randall, an Apache legislator, historian, and cultural teacher, responded to a question regarding mountains that were “sacred sites” as follows: That’s your term “sacred.” That’s not my term. I talked about holy mountains this morning. I talked about God’s mountains.... Sacred to you is not the other terms. There are other places of honor and respect. You’re looking at everything as being sacred. There is not — there is honor and respect, just as much as the Twin Towers is a place of honor and respect. Gettysburg. Yes, there are places like that in Apache land, but there are four holy mountains. Holy mountains. Trial tr. 722-23 (emphasis added). Dianna Uqualla, subchief of the Havasu-pai, again explained that there are different degrees of “sacred”: The whole reservation is sacred to us, but the mountains are more sacred. They are like our — if you go to a church there would be like our tabernacle, that would be our altars. That’s the — that’s the difference like being in Fort Defiance or Window Rock versus going to each of the sacred mountains. The San Francisco Peaks would be like our tabernacle, our altar to the west. SER 1253 (emphasis added). Many White Mountain Apache, Navajo, and Havasupai members refer to all land that is owned, or was ever owned, by their tribe as sacred. For example, Ramon Riley, Cultural Resource Director for the White Mountain Apache, testified that the entire Apache reservation is “sacred.” Trial tr. at 625, 647-51. Uqualla testified to the same effect with respect to Hava-suapai land. SER 1253. But while there are many mountains within White Mountain Apache, Navajo, and Havasupai historic territory, only a few of these mountains are “holy” or particularly “sacred.” For the White Mountain Apache, there are four holy mountains. They are the San Francisco Peaks, Mt. Graham, Mt. Baldy, and Red Mountain/Four Peaks. Trial tr. at 639-43. For the Navajo, there are also four holy mountains. They are the San Francisco Peaks, the Blanca Peak, Mt. Taylor, and the Hes-perous Mountains. Trial tr. at 739. The Indians allow different uses on sacred land depending on the degree of sacredness. For example, Mount Baldy is one of the White Mountain Apache’s holy mountains. Though they consider all of their reservation land “sacred” in the sense in which that term is used by the majority, Mount Baldy is not merely sacred. It is holy. The record is clear that the Apache do not permit camping, fishing, or hunting on the portion of Mount Baldy under their control, even though they permit such activities elsewhere on their reservation. b. Substantial Burden on the Indians’ Exercise of Religion The record in this case makes clear that the San Francisco Peaks are particularly sacred to the surrounding Indian tribes. Humphrey’s Peak is the most sacred, or holy, of the Peaks. I accept as sincere the Indians’ testimony about their religious beliefs and practices, and I accept as sincere their testimony that the Peaks, and in particular Humphrey’s Peak, are not merely sacred but holy mountains. In the discussion that follows, I focus on the evidence presented by the Hopi and Navajo, and to a lesser extent on the Hua-lapai and Havasupai. I first describe the Indians’ religious practices, and then discuss the effect the Snowbowl expansion would have on these practices. i. The Indians’ Religious Practices (1) The Hopi Hopi religious beliefs and practices center on the San Francisco Peaks. As stated by the district court, “The Peaks are where the Hopi direct their prayers and thoughts, a point in the physical world that defines the Hopi universe and serves as the home of the Kachinas, who bring water, snow and life to the Hopi people.” 408 F.Supp.2d at 894. The Hopi have been making pilgrimages to the Peaks since at least 1540, when they first encountered Europeans, and probably long before that. The Hopi believe that when they emerged into this world, the clans journeyed to the Peaks (or Nuvatukyaovi, the “high place of snow”) to receive instructions from a spiritual presence, Ma’saw. At the Peaks, they entered a spiritual covenant with Ma’saw to take care of the land, and then migrated down to the Hopi villages. The Hopi re-enact their emergence from the Peaks annually, and Hopi practitioners look to the Peaks in their daily songs and prayers as a place of tranquility, sanctity, and purity. The Peaks are also the primary home of the powerful spiritual beings called Katsi-nam (Hopi plural of Katsina, or Kachina in English). Hundreds of specific Katsi-nam personify the spirits of plants, animals, people, tribes, and forces of nature. The Katsinam are the spirits of Hopi ancestors, and the Hopi believe that when they die, their spirits will join the Katsi-nam on the Peaks. As spiritual teachers of “the Hopi way,” the Katsinam teach children and remind adults of the moral principles by which they must live. These principles are embodied in traditional songs given by the Katsinam to the Hopi and sung by the Hopi in their everyday lives. One Hopi practitioner compared these songs to sermons, which children understand simplistically but which adults come to understand more profoundly. Many of these songs focus on the Peaks. Katsinam serve as intermediaries between the Hopi and the higher powers, carrying prayers from the Hopi villages to the Peaks on an annual cycle. From July through January, the Katsinam live on the Peaks. In sixteen days of ceremonies and prayers at the winter solstice, the Hopi pray and prepare for the Katsinam’s visits to the villages. In February or March, the Katsinam begin to arrive, and the Hopi celebrate with nightly dances at which the Katsinam appear in costume and perform. The Katsinam stay while the Hopi plant their corn and it germinates. Then, in July, the Hopi mark the Katsinam’s departure for the Peaks. The Hopi believe that pleasing the Kat-sinam on the Peaks is crucial to their livelihood. Appearing in the form of clouds, the Katsinam are responsible for bringing rain to the Hopi villages from the Peaks. The Katsinam must be treated with respect, lest they refuse to bring the rains from the Peaks to nourish the corn crop. In preparation for the Katsinam’s arrival, prayer sticks and feathers are delivered to every member of the village, which they then deposit in traditional locations, praying for the spiritual purity necessary to receive the Katsinam. The Kat-sinam will not arrive until the peoples’ hearts are in the right place, a state they attempt to reach through prayers directed at the spirits on the Peaks. The Hopi have at least fourteen shrines on the Peaks. Every year, religious leaders select members of each of the approximately forty congregations, or kiva, among the twelve Hopi villages to make a pilgrimage to the Peaks. They gather from the Peaks both water for their ceremonies and boughs of Douglas fir worn by the Katsi-nam in their visits to the villages. (2) The Navajo The Peaks are also of fundamental importance to the religious beliefs and practices of the Navajo. The district court found, “[T]he Peaks are considered ... to be the ‘Mother of the Navajo People,’ their essence and their home. The whole of the Peaks is the holiest of shrines in the Navajo way of life.” 408 F.Supp.2d at 889. Considering the mountain “like family,” the Navajo greet the Peaks daily with prayer songs, of which there are more than one hundred relating to the four mountains sacred to the Navajo. Witnesses described the Peaks as “our leader” and “very much an integral part of our life, our daily lives.” The Navajo creation story revolves around the Peaks. The mother of humanity, called the Changing Woman and compared by one witness to the Virgin Mary, resided on the Peaks and went through puberty there, an event which the people celebrated as a gift of new life. Following this celebration, called the kinaalda, the Changing Woman gave birth to twins, from whom the Navajo are descended. The Navajo believe that the Changing Woman’s kinaalda gave them life, generation after generation. Young women today still celebrate their own kinaalda with a ceremony one witness compared to a Christian confirmation or a Jewish bat mitzvah. The ceremony sometimes involves water especially collected from the Peaks because of the Peaks’ religious significance. The Peaks are represented in the Navajo medicine bundles found in nearly every Navajo household. The medicine bundles are composed of stones, shells, herbs, and soil from each of four sacred mountains. One Navajo practitioner called the medicine bundles “our Bible,” because they have “embedded” within them “the unwritten way of life for us, our songs, our ceremonies.” The practitioner traced their origin to the Changing Woman: When her twins wanted to find their father, the Changing Woman instructed them to offer prayers to the Peaks and conduct ceremonies with medicine bundles. The Navajo believe that the medicine bundles are conduits for prayers; by praying to the Peaks with a medicine bundle containing soil from the Peaks, the prayer will be communicated to the mountain. As their name suggests, medicine bundles are also used in Navajo healing ceremonies, as is medicine made with plants collected from the Peaks. Appellant Norris Nez, a Navajo medicine man, testified that “like the western doctor has his black bag with needles and other medicine, this bundle has in there the things to apply medicine to a patient.” Explaining why he loves the mountain as his mother, he testified, “She is holding medicine and things to make us well and healthy. We suckle from her and get well when we consider her our Mother.” Nez testified that he collects many different plants from the Peaks to make medicine. The Peaks play a role in every Navajo religious ceremony. The medicine bundle is placed to the west, facing the Peaks. In the Blessingway ceremony, called by one witness “the backbone of our ceremony” because it is performed at the conclusion of all ceremonies, the Navajo pray to the Peaks by name. The purity of nature, including the Peaks, plays an important part in Navajo beliefs. Among other things, it affects how a medicine bundle — described by one witness as “a living basket” — is made. The making of a medicine bundle is preceded by a four-day purification process for the medicine man and the keeper of the bundle. By Navajo tradition, the medicine bundle should be made with leather from a buck that is ritually suffocated; the skin cannot be pierced by a weapon. Medicine bundles are “rejuvenated” every few years, by replacing the ingredients with others gathered on pilgrimages to the Peaks and three other sacred mountains. The Navajo believe their role on earth is to take care of the land. They refer to themselves as nochoka dine, which one witness translated as “people of the earth” or “people put on the surface of the earth to take care of the lands.” They believe that the Creator put them between four sacred mountains of which the westernmost is the Peaks, or Do’ok’oos-liid (“shining on top,” referring to its snow), and that the Creator instructed them never to leave this homeland. Although the whole reservation is sacred to the Navajo, the mountains are the most sacred part. As noted previously, one witness drew an analogy to a church, with the area within the mountains as the part of the church where the people sit, and the Peaks as “our altar to the west.” As in Hopi religious practice, the Peaks are so sacred in Navajo beliefs that, according to Joe Shirley, Jr., President of the Navajo Nation, a person “cannot just voluntarily go up on this mountain at any time. It’s — it’s the holiest of shrines in our way of life. You have to sacrifice. You have to sing certain songs before you even dwell for a little bit to gather herbs, to do offerings.” After the requisite preparation, the Navajo go on pilgrimages to the Peaks to collect plants for ceremonial and medicinal use. (3) The Hualapai The Peaks figure centrally in the beliefs of the Hualapai. The Hualapai creation story takes place on the Peaks. The Hua-lapai believe that at one time the world was deluged by water, and the Hualapai put a young girl on a log so that she could survive. She landed on the Peaks, alone, and washed in the water. In the water, she conceived a son, who was a man born of water. She washed again, and conceived another son. These were the twin warriors, or war gods, from whom the Hualapai are today descended. Later, one of the twins became ill, and the other collected plants and water from the Peaks, thereby healing his brother. From this story comes the Hualapai belief that the mountain and its water and plants are sacred and have medicinal properties. One witness called the story of the deluge, the twins, and their mother “our Bible story” and drew a comparison to Noah’s Ark. As in Biblical parables and stories, Hualapai songs and stories about the twins are infused with moral principles. Hualapai spiritual leaders travel to the Peaks to deliver prayers. Like the Hopi and the Navajo, the Hualapai believe that the Peaks are so sacred that one has to prepare oneself spiritually to visit. A spiritual leader testified that he prays to the Peaks every day and fasts before visiting to perform the prayer feather ceremony. In the prayer feather ceremony, a troubled family prays into an eagle feather for days, and the spiritual leader delivers it to the Peaks; the spirit of the eagle then carries the prayer up the mountain and to the Creator. The Hualapai collect water from the Peaks. Hualapai religious ceremonies revolve around water, and they believe water from the Peaks is sacred. In their sweat lodge purification ceremony, the Hualapai add sacred water from the Peaks to other water, and pour it onto heated rocks to make steam. In a healing ceremony, people seeking treatment drink from the water used to produce the steam and are cleansed by brushing the water on their bodies with feathers. At the conclusion of the healing ceremony, the other people present also drink the water. A Hualapai tribal member who conducts healing ceremonies testified that water from the Peaks is used to treat illnesses of “high parts” of the body like the eyes, sinuses, mouth, throat, and brain, including tumors, meningitis, forgetfulness, and sleepwalking. He testified that the Peaks are the only place to collect water with those medicinal properties, and that he travels monthly to the Peaks to collect it from Indian Springs, which is lower on the mountain and to the west of the Snowbowl. The water there has particular significance to the Hualapai because the tribe’s archaeological sites are nearby. In another Hualapai religious ceremony, when a baby has a difficult birth, a Huala-pai spiritual leader brings a portion of the placenta to the Peaks so that the child will be strong like the twins and their mother in the Hualapai creation story. The Hua-lapai also grind up ponderosa pine needles from the Peaks in sacred water from the Peaks to aid women in childbirth. A Hualapai religious law forbids mixing the living and the dead. In testimony in the district court, a spiritual leader gave the example of washing a baby or planting corn immediately after taking part in a death ceremony. Mixing the two will cause a condition that was translated into English as “the ghost sickness.” The leader testified that purification after “touching death” depends on the intensity of the encounter. If he had just touched the dead person’s clothes or belongings, he might be purified in four days, but if he touched a body, it would require a month. (4) The Havasupai The Peaks are similarly central to the beliefs of the Havasupai, as the Forest Service acknowledged in the FEIS: The Hualapai and the Havasupai perceive the world as flat, marked in the center by the San Francisco Peaks, which were visible from all parts of the Havasupai territory except inside the Grand Canyon. The commanding presence of the Peaks probably accounts for the Peaks being central to the Havasu-pai beliefs and traditions, even though the Peaks themselves are on the edge of their territory. The Chairman of the Havasupai testified that the Peaks are the most sacred religious site of the Havasupai: “That is where life began.” The Havasupai believe that when the earth was submerged in water, the tribe’s “grandmother” floated on a log and landed and lived on the Peaks, where she survived on water from the Peaks’ springs and founded the tribe. Water is central to the religious practices of the Havasupai. Although they do not travel to the Peaks to collect water, Havasupai tribal members testified that they believe the water in the Havasu creek that they use in their sweat lodges comes ultimately from the Peaks, to which they pray daily. They believe that spring water is a living, life-giving, pure substance, and they do not use tap water in their religious practices. They perform sweat lodge ceremonies, praying and singing as they use the spring water to make steam; they believe that the steam is the breath of their ancestors, and that by taking it into themselves they are purified, cleansed, and healed. They give water to the dead to take with them on their journey, and they use it to make medicines. The Havasupai also gather rocks from the Peaks to use for making steam. ii. The Burden Imposed by the Proposed Snowbowl Expansion Under the proposed expansion of the Snowbowl, up to 1.5 million gallons per day of treated sewage effluent would be sprayed on Humphrey’s Peak from November through February. Depending on weather conditions, substantially more than 100 million gallons of effluent could be deposited over the course of the winter ski season. The Indians claim that the use of treated sewage effluent to make artificial snow on the Peaks would substantially burden their exercise of religion. Because the Indians’ religious beliefs and practices are not uniform, the precise burdens on religious exercise vary among the Appellants. Nevertheless, the burdens fall roughly into two categories: (1) the inability to perform a particular religious ceremony, because the ceremony requires collecting natural resources from the Peaks that would be too contaminated — physically, spiritually, or both — for sacramental use; and (2) the inability to maintain daily and annual religious practices comprising an entire way of life, because the practices require belief in the mountain’s purity or a spiritual connection to the mountain that would be undermined by the contamination. The first burden — the inability to perform religious ceremonies because of contaminated resources — has been acknowledged and described at length by the Forest Service. The FEIS summarizes: “Snowmaking and expansion of facilities, especially the use of reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of these tribes.” Further, “the use of reclaimed water is believed by the tribes to be impure and would have an irretrievable impact on the use of the soil, plants, and animals for medicinal and ceremonial purposes throughout the entire Peaks, as the whole mountain is regarded as a single, living entity.” Three Navajo practitioners’ testimony at trial echoed the Forest Service’s assessment in describing how the proposed action would prevent them from performing various ceremonies. Larry Foster, a Navajo practitioner who is training to become a medicine man, testified that “once water is tainted and if water comes from mortuaries or hospitals, for Navajo there’s no words to say that that water can be reclaimed.” He further testified that he objected to the current use of the Peaks as a ski area, but that using treated sewage effluent to make artificial snow on the Peaks would be “far more serious.” He explained, “I can live with a scar as a human being. But if something is injected into my body that is foreign, a foreign object — and reclaimed water, in my opinion, could be water that’s reclaimed through sewage, wastewater, comes from mortuaries, hospitals, there could be disease in the waters — and that would be like injecting me and my mother, my grandmother, the Peaks, with impurities, foreign matter that’s not natural.” Foster testified that if treated sewage effluent were used on the Peaks he would no longer be able to go on the pilgrimages to the Peaks that are necessary to rejuvenate the medicine bundles, which are, in turn, a part of every Navajo healing ceremony. He explained: Your Honor, our way of life, our culture we live in — we live in the blessingway, in harmony. We try to walk in harmony, be in harmony with all of nature. And we go to all of the sacred mountains for protection. We go on a pilgrimage similar to Muslims going to Mecca. And we do this with so much love, commitment and respect. And if one mountain — and more in particularly with the San Francisco Peaks — which is our bundle mountain, or sacred, bundle mountain, were to be poisoned or given foreign materials that were not pure, it would create an imbalance — there would not be a place among the sacred mountains. We would not be able to go there to obtain herbs or medicines to do our ceremonies, because that mountain would then become impure. It would not be pure anymore. And it would be a devastation for our people. Appellant Navajo medicine man Norris Nez testified that the proposed action would prevent him from practicing as a medicine man. He told the district court that the presence of treated sewage effluent would “ruin” his medicine, which he makes from plants collected from the Peaks. He also testified that he would be unable to perform the fundamental Bless-ingway ceremony, because “all [medicine] bundles will be affected and we will have nothing to use eventually.” Foster, Nez, and Navajo practitioner Steven Begay testified that because they believe the mountain is an indivisible living entity, the entire mountain would be contaminated even if the millions of gallons of treated sewage effluent are put onto only one area of the Peaks. According to Foster, Nez, and Begay, there would be contamination even on those parts of the Peaks where the effluent would not come into physical contact with particular plants or ceremonial areas. To them, the contamination is not literal in the sense that a scientist would use the term. Rather, the contamination represents the poisoning of a living being. In Foster’s words, “[I]f someone were to get a prick or whatever from a contaminated needle, it doesn’t matter what the percentage is, your whole body would then become contaminated. And that’s what would happen to the mountain.” In Nez’s words, “All of it is holy. It is like a body. It is like our body. Every part of it is holy and sacred.” In Begay’s words, “All things that occur on the mountain are a part of the mountain, and so they will have connection to it. We don’t separate the mountain.” The Hualapai also presented evidence that the proposed action would prevent them from performing particular religious ceremonies. Frank Mapatis, a Hualapai practitioner and spiritual leader who visits the Peaks approximately once a month to collect water for ceremonies and plants for medicine, testified that the use of treated sewage effluent would prevent him from performing Hualapai sweat lodge and healing ceremonies with the sacred water from the Peaks. Mapatis testified that he believes that the treated sewage effluent would seep into the ground and into the spring below the Snowbowl where he collects his sacred water, so that the spring water would be “contaminated” by having been “touched with death.” Because contact between the living and the dead induces “ghost sickness,” which involves hallucinations, using water touched with death in healing ceremonies “would be like malpractice.” Further, Mapatis would become powerless to perform the healing ceremony for ghost sickness itself, because that ceremony requires water from the Peaks, the only medicine for illnesses of the upper body and head, like hallucinations. The second burden the proposed action would impose — undermining the Indians’ religious faith, practices, and way of life by desecrating the Peaks’ purity — is also shown in the record. The Hopi presented evidence that the presence of treated sewage effluent on the Peaks would fundamentally undermine all of their religious practices because their way of life, or “be-liefway,” is largely based on the idea that the Peaks are a pure source of their rains and the home of the Katsinam. Leigh Kuwanwisiwma, a Hopi religious practitioner and the director of the tribe’s Cultural Preservation Office, explained the connection between contaminating the Peaks and undermining the Hopi religion: The spiritual covenant that the Hopi clans entered into with the Caretaker I refer to as Ma’saw, the spiritual person and the other d[ei]ties that reside — and the Katsina that reside in the Peaks started out with the mountains being in their purest form. They didn’t have any real intrusion by humanity. The purity of the spirits, as best we can acknowledge the spiritual domain, we feel were content in receiving the Hopi clans. So when you begin to intrude on that in a manner that is really disrespectful to the Peaks and to the spiritual home of the Katsina, it affects the Hopi people. It affects the Hopi people, because as clans left and embarked on their migrations and later coming to the Hopi villages, we experienced still a mountain and peaks that were in their purest form as a place of worship to go to, to visit, to place our offerings, the tranquility, the sanctity that we left a long time ago was still there. Antone Honanie, a Hopi practitioner, testified that he would have difficulty preparing for religious ceremonies, because treated sewage effluent is “something you can’t get out of your mind when you’re sitting there praying” to the mountain, “a place where everything is supposed to be pure.” Emory Sekaquaptewa, a Hopi tribal member and research anthropologist, testified that the desecration of the mountain would cause Katsinam dance ceremonies to lose their religious value. They would “simply be a performance for performance's] sake” rather than “a religious effort”: “Hopi people are raised in this belief that the mountains are a revered place. And even though they begin with kind of a fantasy notion, this continues to grow into a more deeper spiritual sense of the mountain. So that any thing that interrupts this perception, as they hold it, would tend to undermine the — the integrity in which they hold the mountain.” Summarizing the Hopi’s testimony, the district court wrote: The individual Hopi’s practice of the Hopi way permeates every part and every day of the individual’s life from birth to death_ The Hopi Plaintiffs testified that the proposed upgrades to the Snowbowl have affected and will continue to negatively affect the way they think about the Peaks, the Kachina and themselves when preparing for any religious activity involving the Peaks and the Kachina — from daily morning prayers to the regular calendar of religious dances that occur throughout the year_The Hopi Plaintiffs also testified that this negative effect on the practitioners’ frames of mind due to the continued and increased desecration of the home of the Kachinas will undermine the Hopi faith and the Hopi way. According to the Hopi, the Snowbowl upgrades will undermine the Hopi faith in daily ceremonies and undermine the Hopi faith in their Kachina ceremonies as well as their faith in the blessings of life that they depend on the Kachina to bring. 408 F.Supp.2d at 894-95. The Havasupai presented evidence that the presence'of treated sewage effluent on the Peaks would, by contaminating the Peaks, undermine their sweat lodge purification ceremonies and could lead to the end of the ceremonies. Rex Tilousi, Chairman of the Havasupai, testified that Hava-supai religious stories teach that the water in Havasu Creek, which they use for their sweat ceremonies, flows from the Peaks, where the Havasupai believe life began. Although none of the three Havasupai witnesses stated that they would be completely unable to perform the sweat lodge ceremonies as a consequence of the impurity introduced by the treated sewage effluent, Roland Manakaja, a traditional practitioner, testified that the impurity would disrupt the ceremony: If I was to take the water to sprinkle the rocks to bring the breath of our ancestors — we believe the steam is the breath of our ancestors. And the rocks placed in the west signify where our ancestors go, the deceased.... Once the steam rises, like it does on the Peaks, the fog or the steam that comes off is creation. And once the steam comes off and it comes into our being, it purifies and cleanses us and we go to the level of trance.... It’s going to impact mentally my spirituality. Every time I think about sprinkling that water on the rocks, I’m going to always think about this sewer that they’re using to recharge the aquifer. He further testified that he was “concerned” that the water’s perceived impurity might cause the sweat lodge ceremony to die out altogether, if tribal members fear “breathing the organisms or the chemicals that may come off the steam.” The record supports the conclusion that the proposed use of treated sewage effluent on the San Francisco Peaks would impose a burden on the religious exercise of all four tribes discussed above — the Navajo, the Hopi, the Hualapai, and the Ha-vasupai. However, on the record before us, that burden falls most heavily on the Navajo and the Hopi. The Forest Service itself wrote in the FEIS that the Peaks are the most sacred place of both the Navajo and the Hopi; that those tribes’ religions have revolved around the Peaks for centuries; that their religious practices require pure natural resources from the Peaks; and that, because their religious beliefs dictate that the mountain be viewed as a whole living being, the treated sewage effluent would in their view contaminate the natural resources throughout the Peaks. Navajo Appellants presented evidence in the district court that, were the proposed action to go forward, contamination by the treated sewage effluent would prevent practitioners from making or rejuvenating medicine bundles, from making medicine, and from performing the Bless-ingway and healing ceremonies. Hopi Appellants presented evidence that, were the proposed action to go forward, contamination by the effluent would fundamentally undermine their entire system of belief and the associated practices of song, worship, and prayer, that depend on the purity of the Peaks, which is the source of rain and their livelihoods and the home of the Katsinam spirits. In light of this showing, it is self-evident that the Snowbowl expansion prevents the Navajo and Hopi “from engaging in [religious] conduct or having a religious experience” and that this interference is “more than an inconvenience.” Bryant, 46 F.3d at 949. The burden imposed on the religious practices of the Navajo and Hopi is certainly as substantial as the intrusion on confession deemed a “substantial burden” in Mockaitis, 104 F.3d at 1531, and the denial of a Halal or Kosher meat diet deemed a “substantial burden” in Shakur, 514 F.3d at 888-89. Thus, under RFRA, the Forest Service’s approval of the Snow-bowl expansion may only survive if it furthers a compelling governmental interest by the least restrictive means. c. “Compelling Governmental Interest” and “Least Restrictive Means” The majority refuses to hold that spraying treated sewage effluent on Humphrey’s Peak imposes a “substantial burden” on the Indians’ “exercise of religion.” It therefore does not reach the question whether the burden can be justified by a compelling interest and is the least restrictive means of furthering that purpose. Because I would hold that the Snowbowl expansion does constitute a substantial burden on the Indians’ religious exercise, I also address this second step of the RFRA analysis. “Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534, 117 S.Ct. 2157. In applying this standard, we do not accept a generalized assertion of a compelling interest, but instead require “a case-by-case determination of the question, sensitive to the facts of each particular claim.” O Centro, 546 U.S. at 431, 126 S.Ct. 1211 (quoting Smith, 494 U.S. at 899, 110 S.Ct. 1595 (O’Connor, J., concurring in the judgment)). The Forest Service and the Snowbowl have argued that approving the use of treated sewage effluent to make artificial snow serves several compelling governmental interests. The district court characterized those interests as: (1) “selecting the alternative that best achieves [the Forest Service’s] multiple-use mandate under the National Forest Management Act,” which includes “managing the public land for recreational uses such as skiing”; (2) protecting public safety by “authorizing upgrades at Snowbowl to ensure that users of the National Forest ski area have a safe experience”; and (3) complying with the Establishment Clause. 408 F.Supp.2d at 906. I would hold that none of these interests is compelling. First, the Forest Service’s interests in managing the forest for multiple uses, including recreational skiing, are, in the words of the Court in O Centro, “broadly formulated interests justifying the general applicability of government mandates” and are therefore insufficient on their own to meet RFRA’s compelling interest test. 546 U.S. at 431, 126 S.Ct. 1211. Appellees have argued that approving the proposed action serves the more particularized compelling interest in providing skiing at the Snowbowl, because the use of artificial snow will allow a more “reliable and consistent operating season” at one of the only two major ski areas in Arizona. I do not believe that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities, as well as to extend its ski season in dry years, is a governmental interest “of the highest order.” Yoder, 406 U.S. at 215, 92 S.Ct. 1526. Second, while the Forest Service undoubtedly has a general interest in ensuring public safety on federal lands, there has been no showing that approving the proposed action advances that interest by the least restrictive means. Appellees have provided no specific evidence that skiing at the Snowbowl in its current state is unsafe. Third, approving the proposed action does not serve a compelling governmental interest in avoiding conflict with the Establishment Clause. The Forest Service has not suggested that avoiding a conflict with the Establishment Clause is a compelling interest served by the proposed action. Only the Snowbowl has made that argument. The argument is not convincing. The Supreme Court has repeatedly held that the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). “Anything less would require the ‘callous indifference’ we have said was never intended by the Establishment Clause.” Id. (citations omitted); see also Hobbie v. Unemp. App. Comm’n of Fla., 480 U.S. 136, 144-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”). Refusing to allow a commercial ski resort in a national forest to spray treated sewage effluent on the Indians’ most sacred mountain is an accommodation that falls far short of the sort of advancement of religion that gives rise to an Establishment Clause violation. F. Conclusion I would therefore hold that the proposed expansion of the Arizona Snowbowl, which would entail spraying up to 1.5 million gallons per day of treated sewage effluent on the holiest of the San Francisco Peaks, violates RFRA. The expansion would impose a “substantial burden” on the Indians’ “exercise of religion” and is not justified by a “compelling government interest.” II. National Environmental Policy Act A. Pleading under Rule 8(a) The majority concludes that Appellants failed properly to plead a violation of NEPA in their complaint. The violation in question is an alleged failure by the Forest Service to analyze the risks posed by human ingestion of artificial snow made with treated sewage effluent. Because of the asserted pleading mistake, the majority declines to reach the merits of the claimed violation. Under Federal Rule of Civil Procedure 8(a), a proper complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), adopted in 1938, replaced the old “code pleading” regime under which plaintiffs had been required to plead detailed factual allegations in the complaint, on pain of having their complaints dismissed on demurrer. Under the more relaxed “notice pleading” requirement of Rule 8(a), a plaintiff is not required to plead detailed facts. Under Rule 8(a), a plaintiff is required only to “advise the other party of the event being sued upon, ... provide some guidance in a subsequent proceeding as to what was decided for purposes of res judicata and collateral estoppel, and ... indicate whether the case should be tried to the court or to a jury. No more is demanded of the pleadings than this.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1202 (2008). Appellants’ complaint in the district court, while general, was sufficient to provide notice that they were asserting NEPA violations based on the Forest Service’s failure to consider the health risks presented by the Snowbowl expansion. The Navajo Nation and the Havasupai Tribe both alleged in their complaints that the Forest Service violated NEPA by “failing] to take a ‘hard look’ at the impacts of introducing reclaimed waste water to the ecosystem.” [SER 1184; 1200]. In particular, they alleged, “The FEIS fails to adequately address the effects of soil disturbance, and the persistent pollutants in reclaimed water.” Id. In another context, generalized allegations such as these might be insufficient to alert defendants that a specific health risk, such as the ingestion of artificial snow, was included in general statements referring to “the impacts of introducing reclaimed waste water to the ecosystem” and “persistent pollutants in reclaimed water.” In the context of this case, however, Appellants’ allegations were sufficient to put defendants on notice of the nature of their NEPA claim. First, even before the complaint was filed, the Forest Service was well aware of the dispute about whether the FEIS adequately addressed the risk of children and others ingesting artificial snow made from treated sewage effluent. For example, in October 2002, before the draft EIS was published, the Service wrote what it called a “strategic talking point” addressing the risk posed by the ingestion of the artificial snow. The “talking point” began with the question: “Will my kids get sick if they eat artificial snow made from treated wastewa-ter?” It continued with a scripted answer: “[T]his question is really one that will be thoroughly answered in the NEPA analysis process.” Appellants repeatedly made clear to the Forest Service, both in comments on the draft EIS and in administrative appeals, that this risk needed to be addressed as part of the NEPA process. Second, Appellants raised the issue of ingestion of artificial snow in their motion for summary judgment, specifically addressing several pages to the following argument: “The FEIS Does Not Contain a ‘Reasonably Thorough Discussion of the Significant Aspects of the Probable Environmental Consequences’ of the Project— The FEIS Ignores (In Part) the Possibility of Children Eating Snow Made from Reclaimed Water.” [Plaintiffs’ Motion for Summary Judgment at 20-23]. The Forest Service and the Snowbowl both objected that this argument was not adequately alleged in the complaint. But they showed no prejudice arising out of the alleged lack of notice, and they addressed the merits of the issue in their opposition to the motion. [Defendant’s Response In Opposition to All Plaintiffs’ Motions for Summary Judgment at 16-17; Arizona Snowbowl Resort LP’s Opposition to Plaintiffs’ Motions for Summary Judgment at 5-6]. Third, Appellants had raised the issue of ingestion of artificial snow in their administrative appeal, and the Forest Service had no need to develop additional evidence, through discovery or otherwise, in order to address the issue in the district court. The majority objects to this analysis on two grounds. First, it contends that because Appellants have not appealed the district court’s denial of their motion to amend their complaint, they cannot now contend that their complaint was adequate. Maj. op. at 1079-80 & n. 26. That is not the law. If a complaint is adequate under Rule 8(a), there is no need to amend it. It is well established that if a plaintiff believes that a complaint satisfies Rule 8(a), he or she may stand on the complaint and appeal a dismissal to the court of appeals. See WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1318 (9th Cir.1996) (citing Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 471 n. 3 (9th Cir.1994) (quoting McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992))). A plaintiff may move to amend a complaint that, in the view of the district court, is inadequate under Rule 8(a). But making such a motion is not an admission, for purposes of appeal, that the district court is correct in viewing the complaint as inadequate. Nor, having made such a motion, is the plaintiff required to appeal the district court’s denial of that motion in order to assert that the initial complaint was adequate. See, e.g., Quinn v. Ocwen Federal Bank FSB, 470 F.3d 1240, 1247 n. 2 (8th Cir.2006). Second, the majority contends that the Navajo Appellants “do not explain why their complaint is otherwise sufficient to state this NEPA claim — despite the Defendants’ assertion that the Navajo Plaintiffs failed to plead this NEPA claim.” Maj. op. at 1079. The majority is wrong. The Navajo Appellants clearly “explain” why their complaint was sufficient. Part III.B of their brief in this court is headed: “The FEIS Ignores the Possibility of Children Eating Snow Made from Reclaimed Water.” Part III.B.3 of their brief is headed: “This Issue Was Properly Raised and Considered by the Lower Court.” [Reply brief, at 19] The first paragraph of Part III.B.3 reads: Defendants assert that Plaintiffs did not raise this issue in their comments on the DEIS, in their administrative appeal, or in their Complaint. As a result, according to defendants, Plaintiffs are precluded from raising this argument on appeal. This misstates the facts of the case and applicable law. [Id] (Emphasis added). The Navajo Appellants explain in their brief that the issue of children eating snow made from effluent was raised during the preparation of the FEIS. They explain that defendants were therefore already well aware of this issue when it was raised in the district court. They explain, further, in their brief in this court: “Plaintiffs properly pled violations of NEPA in their Complaint, even though the specific allegations at issue were not included therein. The issue [of the FEIS’s failure to analyze the risk of children ingesting snow made from treated effluent] was briefed at summary judgment by all parties and presented at oral argument. The lower court heard the argument ... and issued a decision on this claim resulting in this appeal.” Id. at 23-4. Under notice pleading, a plaintiff need not make specific allegations in the complaint, so long as the complaint is sufficient to put defendant on notice of the nature of plaintiffs claim. As the Navajo Appellants make clear, the defendants in the district court were well aware of the nature of plaintiffs’ claim that the FEIS failed to analyze the risk of children eating snow made from the effluent. This is sufficient to satisfy the notice pleading requirement of Rule 8(a). I would therefore reach the merits of Appellants’ claim that the Forest Service failed to study adequately the risks posed by human ingestion of artificial snow made with treated sewage effluent. B. Merits “NEPA ‘does not mandate particular results,’ but ‘simply provides the necessary process’ to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir.1999) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Regulations require that an EIS discuss environmental impacts “in proportion to their significance.” 40 C.F.R. § 1502.2(b). For impacts discussed only briefly, there should be “enough discussion to show why more study is not warranted.” Id. We employ a “ ‘rule of reason [standard] to determine whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.’ ” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003) (first alteration in original) (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir.2002)). In reviewing an EIS, a court must not substitute its judgment for that of the agency, but rather must uphold the agency decision as long as the agency has “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-54 (9th Cir.2003) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990)). The treated sewage effluent proposed for use in making artificial snow at the Snowbowl meets the standards of the ADEQ for what Arizona calls “A+ reclaimed water.” The ADEQ permits use of A+ reclaimed water for snowmaking, but it has specifically disapproved human ingestion of such water. Arizona law requires users of reclaimed water to “place and maintain signage at locations [where the water is used] so the public is informed that reclaimed water is in use and that no one should drink from the system.” Ariz. Admin. Code § R18-9-704(H) (2005). Human consumption, “full-immersion water activity with a potential of ingestion,” and “evaporative cooling or misting” are all prohibited. Id. § R18-9-704(G)(2). Irrigation users must employ “application methods that reasonably preclude human contact,” including preventing “contact with drinking fountains, water coolers, or eating areas,” and preventing the treated effluent from “standing on. open access areas during normal periods of use.” Id. § R18-9-704(F). The FEIS does not contain a reasonably thorough discussion of the risks posed by possible human ingestion of artificial snow made from treated sewage effluent, and it does not articulate why such discussion is unnecessary. The main body of the FEIS addresses the health implications of using treated sewage effluent in subchapter 3H, “Watershed Resources.” Much of the subchap-ter’s analysis focuses on the “hydrogeologic setting” and on the effect of the artificial snow once it has melted. The part of the subchapter describing the treated sewage effluent acknowledges that its risks to human health are not well known because it contains unregulated contaminants in amounts not ordinarily found in drinking water, including prescription drugs and chemicals from personal care products. The subchapter contains tables listing the amounts of various organic and inorganic chemical constituents that have been measured in the treated sewage effluent. One table compares the level of contaminants in Flagstaffs treated sewage effluent to the level permitted under national drinking water standards. The table shows that Flagstaff simply does not test for the presence of the following contaminants regulated by the national standards: Acrylamide, Dalapon, Di(2-ethylhexyl) adi-pate, Dinoseb, Diquat, Endothall, Epichlo-rohydrin, Ethylene dibromide, Lindane, Oxamyl (Vydate), Picloram, Simazine, and Aluminum. The table also shows that Flagstaff does not measure the following contaminants with sufficient precision to determine whether they are present at levels that exceed the national standards: Nitrate, Benzo (a) pyrene (PAHs), Pentachlorophenol, and Polychlorinatedbiphe-nyls (PCBs). However, the FEIS does not go on to discuss either the health risks resulting from ingestion of the treated sewage effluent or the likelihood that humans — either adults or children — will in fact ingest the artificial snow. Instead, the environmental impact analysis in subchapter 3H, the only part of the FEIS to discuss the characteristics of treated sewage effluent, addresses only the impact on the watersheds and aquifers. That analysis assesses the treated sewage effluent’s impact after it has filtered through the ground, a process the FEIS estimates may result in “an order of magnitude decrease in concentration of solutes.” Thus, although the subchapter reasonably discusses the human health risks to downgradient users, it does not address the risks entailed in humans’ direct exposure to, and possible ingestion of, undiluted treated sewage effluent that has not yet filtered through the ground. Only two statements in the FEIS could possibly be mistaken for an analysis of the risk that children would ingest the artificial snow. The first follows three combined questions by a commenter: (1) whether signs would be posted to warn that “reclaimed water” has been used to make the artificial snow; (2) how much exposure to the snow would be sufficient to make a person ill; and (3) how long it would take to see adverse effects on plants and animals downstream. The response to these questions is four sentences long. It states that signs would be posted, but it does not say how numerous or how large the signs would be. It then summarizes the treatment the sewage would undergo. The final sentence asserts: “In terms of microbiological and chemical water quality, the proposed use of reclaimed water for snowmaking represents a low risk of acute or chronic adverse environmental impact to plants, wildlife, and humans.” This response does not answer the specific and highly relevant question: How much direct exposure to the artificial snow is safe? Nor does the response provide any analysis of the extent of the likely “exposure,” including the likelihood that children or adults would accidentally or intentionally ingest the snow made from non-potable treated sewage effluent. Another statement appears on the last page of responses to comments in the FEIS. The questions and response are: [Question:] In areas where reclaimed water is presently used, there are signs posted to warn against consumption of the water. Will these signs be posted at the Snowbowl? If so, how will that keep children from putting snow in there [sic] mouths or accidentally consuming the snow in the case of a wreck? [Answer:] There will be signs posted at Snowbowl informing visitors of the use of reclaimed water as a snowmaking water source. Much like areas of Flagstaff where reclaimed water is used, it is the responsibility of the visitor or the minor’s guardian to avoid consuming snow made with reclaimed water. It is important to note that machine-produced snow would be mixed and therefore diluted with natural snow decreasing the percentage of machine-produced snow within the snowpack. Because ADEQ approved the use of reclaimed water, it is assumed different types of incidental contact that could potentially occur from use of class A reclaimed water for snow-making were fully considered. There are several problems with this response. First, the response does not assess the risk that children will eat the artificial snow. Stating that it is the parents’ responsibility to prevent their children from doing so neither responds to the question whether signs would prevent children from eating snow nor addresses whether ingesting artificial snow would be harmful. Second, the Forest Service’s assumption that the ADEQ’s approval means the snow must be safe for ingestion is inconsistent with that same agency’s regulations, which are designed to prevent human ingestion. Third, the assumption that the ADEQ actually analyzed the risk of skiers ingesting the treated sewage effluent snow is not supported by any evidence in the FEIS (or elsewhere in the administrative record). Finally, the Forest Service’s answer is misleading in stating that the treated sewage effluent will be “diluted.” The artificial snow would itself be made entirely from treated sewage effluent and would only be “mixed and therefore diluted” with natural snow insofar as the artificial snow intermingles with a layer of natural snow. During a dry winter, there may be little or no natural snow with which to “dilute” the treated sewage effluent. Appellees have also contended that the FEIS “sets forth relevant mitigation measures” to “the possibility that someone may ingest snow.” Although Appellees have not specified the “relevant mitigation measures” to which they refer, the only mitigation measure mentioned in the FEIS is the requirement under Arizona law that the Snowbowl post signs “so the public is informed that reclaimed water is in use and that no one should drink from the system.” Ariz. Admin. Code § R18-9-704(H) (2005). This “mitigation measure” is not listed along with the fifty-five mitigation measures catalogued in a table in the FEIS. Cf 40 C.F.R. § 1502.14(f) (requiring agencies to include “appropriate mitigation measures” in the EIS’s description of the proposal and its alternatives). The measure’s omission from the FEIS table is hardly surprising, however, given that the FEIS does not address as an environmental impact the risk to human health from the possible ingestion of artificial snow made from treated sewage effluent. Our role in reviewing the FEIS under the APA is not to second-guess a determination by the Forest Service about whether artificial snow made from treated sewage effluent would be ingested and, if so, whether such ingestion would threaten human health. We are charged, rather, with evaluating whether the FEIS contains “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Ctr. for Biological Diversity, 349 F.3d at 1166 (quotation marks omitted). An agency preparing an EIS is required to take a “hard look” that “[a]t the least ... encompasses a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail.” Nat’l Audubon Soc’y v. Dep't of the Navy, 422 F.3d 174, 185 (4th Cir.2005) (citing Robertson, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (stating that NEPA requires environmental costs to be “adequately identified and evaluated”)). A proper NEPA analysis will “foster both informed decisionmaking and informed public participation.” Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001) (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). I do not believe that the Forest Service has provided a “reasonably thorough discussion” of any risks posed by human ingestion of artificial snow made from treated sewage effluent or articulated why such a discussion is unnecessary, has provided a “candid acknowledgment” of any such risks, and has provided an analysis that will “foster both informed decision-making and informed public participation.” I would therefore hold that the FEIS does not satisfy NEPA with respect to the possible risks posed by human ingestion of the artificial snow. III. Conclusion I would hold that Appellants have proved violations of both the Religious Freedom Restoration Act and the National Environmental Policy Act. Of the two, the RFRA violation is by far the more serious. A NEPA violation can almost always be cured, and certainly could be cured in this case. However, the RFRA violation resulting from the proposed development of the Snowbowl is not curable. Because of the majority’s decision today, there will be a permanent expansion of the Arizona Snowbowl. Up to 1.5 million gallons of treated sewage effluent per day will be sprayed on Humphrey’s Peak for the foreseeable future. The San Francisco Peaks have been at the center of religious beliefs and practices of Indian tribes of the Southwest since time out of mind. Humphrey’s Peak, the holiest of the San Francisco Peaks, will from this time forward be desecrated and spiritually impure. In part, the majority justifies its holding on the ground that what it calls “public park land” is land that “belongs to everyone.” Maj. op. at 1063-64. There is a tragic irony in this justification. The United States government took this land from the Indians by force. The majority now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians’ holy mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their religion. RFRA was passed to protect the exercise of all religions, including the religions of American Indians. If Indians’ land-based exercise of religion is not protected by RFRA in this case, I cannot imagine a case in which it will be. I am truly sorry that the majority has effectively read American Indians out of RFRA. . Although the majority opinion uses the noun phrase "substantial burden,” RFRA employs the verb phrase "substantially burden.” Because the distinction is not material, I use the terms interchangeably.

Pit River Tribe v. United States Forest Service

WALLACE, Circuit Judge: The Pit River Tribe, the Native Coalition for Medicine Lake Highlands Defense, and the Mount Shasta Bioregional Ecology Center (collectively Pit River) appeal from the district court’s summary judgment on their claims against the Bureau of Land Management, the United States Forest Service, and the Department of the Interi- or (collectively agencies). Pit River alleges that the procedures followed by the agencies in extending certain leases in the Medicine Lake Highlands, and the subsequent approval of a geothermal plant to be built there, violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the National Forest Management Act (NFMA), and the Administrative Procedure Act (APA). Pit River also contends that the agencies violated their fiduciary obligations to Native American tribes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the agencies did not take a “hard look” at the environmental consequences of the 1998 lease extensions and never adequately considered the no-action alternative. We therefore reverse. I. Medicine Lake and the highlands surrounding it are of great spiritual significance to the Pit River Tribe and to the other Native American tribes in the region. Although the highlands are within the Pit River Tribe’s ancestral homelands, they are not part of the tribe’s reservation. Tribe members, however, consider the region sacred and continue to use numerous important spiritual and cultural sites within the highlands. This litigation concerns the efforts of Calpine Corporation (Calpine), a California power company, to develop a geothermal power plant at Fourmile Hill near Medicine Lake. The Geothermal Steam Act of 1970, 30 U.S.C. §§ 1001-1025 (2005) (as amended), allows the Secretary of the Interior to “issue leases for the development and utilization of geothermal steam” on federal land and in national forests. Id. § 1002. Pursuant to the Geothermal Steam Act in effect at the time, the federal government designated the general area of the Medicine Lake Highlands as the Glass Mountain Known Geothermal Resource Area (Resource Area). In 1973, the Department of the Interior issued a programmatic environmental impact statement (EIS) considering how to implement the Geothermal Steam Act nationwide (1973 EIS). Except for three California locations not at issue in this litigation, the 1973 EIS did not address the environmental implications of geothermal development in particular locations. Rather, the 1973 EIS provided for tiered environmental review because of the wide geographical distribution of potentially affected lands. “Specific details will be identified, evaluated, and described in the environmental analysis record prepared for each lease area prior to any leasing action.” The 1973 EIS repeatedly discussed the interplay between NEPA and the Geothermal Steam Act, admitting that issuing geothermal leases “may constitute major Federal action significantly affecting the quality of the human environment,” thus requiring the preparation of subsequent EISs under NEPA. That EIS further provided that “[wjhere the interdisciplinary evaluations or studies of any lease program reveal that a particular activity may constitute major Federal action significantly affecting the human environment, ... an environmental statement will be prepared and circulated in accordance with Section 102(2)(e) of the National Environmental Policy Act.” The 1973 EIS stated that, in addition to review of leasing decisions, “[pjrior to the construction of power plants and transmission lines, and possibly of by-product water and mineral extraction facilities, further environmental evaluation will be made. If there are significant potentially adverse environmental impacts not previously considered, an additional environmental statement may be necessary.” Subsequently, in April 1981, the Bureau of Land Management (Bureau) and the Forest Service released an environmental assessment (1981 EA) for “casual use” exploration of the Resource Area. The stated purpose of the EA was “to decide whether to allow geothermal leasing and casual use exploration on approximately 266,800 acres of National Forest land in the Medicine Lake Planning Unit, and an adjacent 26,-750 acres.” The EA stated that “[o]ne of the Management Directives in the Land Management Plan [was] to provide for geothermal development where it is compatible with other uses,” and recommended leasing “in all areas with special stipulations applied to sensitive areas.” It contained no discussion of the cultural or tribal impacts of the proposed leasing. The 1981 EA acknowledged that, in general, “[a] decision to lease carries with it the right to develop a discovered resource, subject to the limitations of the lease.” It also made clear that “[t]he details of future exploration and development cannot be evaluated prior to leasing,” and that “[f]ur-ther analysis will be required for the later stages of exploration and, if a resource is discovered, development.” The 1981 EA observed that “[a]t each step in the process there are numerous environmental safeguards required by the system, including EAs or EISs, and public participation.” In an appendix to the 1981 EA, the EA made clear that several staged EAs or EISs would be required to proceed to subsequent phases of the project. In 1984, the Bureau and the Forest Service jointly issued a Supplemented Environmental Assessment for leasing activity in the Medicine Lake area (1984 EA). While the 1981 EA focused on casual use exploration, the 1984 EA explicitly addressed “the exploration, development and production phases of the geothermal program,” with an eye to “deciding which lands should be leased and what measures are required to protect valuable resources.” The 1984 EA also required “[t]he lessee [to] file an operating plan for subsequent activities in exploration, development, and operation of the lease. Each operating plan will require an additional environmental analysis and approval. Additional site-specific conditions are then required before the lessee can begin activities.” The document was tiered to the 1973 EIS and specifically incorporated its evaluation of geothermal exploration, development effects, and related issues. Unlike the 1973 EIS or the 1981 EA, the 1984 EA considered the possible effects of development on the cultural, recreational, and spiritual significance of certain features in the Medicine Lake area. For example, although the 1984 EA acknowledged that “[n]atural attractions could be impaired by construction and development so as to lose their recreational appeal,” it suggested that “geothermal production could become an attraction itself.” The document stated that the area remained culturally significant to modern-day Native Americans. The discussion of the area’s modern-day cultural significance read, in its entirety, as follows: The modern Native American peoples who have cultural traditions extending back to the prehistoric period, continue to use resources found in the study area in an effort to preserve their cultural identities. These resources not only include tangible materials such as food and ceremonial items but some natural features of the landscape have spiritual significance as well. These areas have not yet been completely recorded, nor are they likely ever to be. Some general areas of spiritual significance known to be of concern to local Native Americans include: Mt. Shasta, Black Fox Mountain, Little Black Fox Mountain, Medicine Lake, Medicine Mountain and various other peaks, mountains and springs. The American Indian Religious Freedom Act of 1979[] requires ongoing consultation with local Native American organizations and individuals during all phases of land-surface altering activities for protection of the sites and areas important to the preservation of these cultural traditions. The 1984 EA also discussed the historical significance of the area: “Although no sites in the study area are currently on the National Register of Historic Places, many have been judged eligible and several are in the process of being nominated. Nomination and/or acceptance is, however, no obstacle to a site’s removal by scientific excavation.” The 1984 EA’s entire discussion of the effects of the proposed leasing on cultural and historical resources is as follows: Any ground surface-disturbing activity within the boundaries of a prehistoric, protohistoric or historic site will disturb and/or destroy the patterning of surface and subsurface artifacts and features from which archaeologists infer past human behavior and construct a record of past human lifeways. Any landscape altering activities have the potential to adversely affect the spiritual significance of natural features important to Native American groups. To address these and other potential impacts, the 1984 EA included a table of mitigating measures. The table indicated that some of the measures would be required as lease stipulations, while others would be analyzed further at the plan of operation stage. The sole mitigation measure listed for the impact on the “spiritual significance of landscape features” was “[c]onsultation with local Native American groups.” The 1984 EA optimistically concluded that such consultation would be “100% effective” as a mitigation measure. Nevertheless, three pages later, the 1984 EA contained an alternate finding in a listing of “Unavoidable Adverse Impacts”: Cultural Resources. It is possible that geothermal development will alter the character of the landscape, or certain features of the landscape, to such an extent as to adversely affect those tangible and intangible qualities that Native American groups feel are of spiritual significance. Continuous consultation with Native American groups throughout all phases of the development process, from exploration through design and actual development, may succeed in minimizing such conflicts. With regard to the impact on historical sites, the 1984 EA remarked that “[t]he BLM provides a copy of all [proposed plans of operation] to the State Historic Preservation Officer (SHPO). The SHPO is asked to provide comments on each proposal.” The Bureau and the Forest Service subsequently mailed the 1984 EA to approximately one hundred individuals and organizations who were known to have been interested in the project. It is uncertain whether the 1984 EA was mailed to Pit River. The Bureau received only four letters in response, none of which was from Pit River. Following the 1984 EA, the BLM committed itself to leasing 41,500 acres in the Resource Area in a Record of Decision (ROD) adopted in 1985. The ROD stated that numerous environmental concerns, including “that cultural resources be protected and that local Native American groups be consulted,” would be “addressed at the Plan of Operation review stage.” It then concluded “that with application of appropriate mitigation, geothermal development can take place in this area without significant adverse impacts. The potential economic and energy benefits from this relatively clean resource are expected to outweigh any residual adverse impacts.” On January 22, 1985, the Bureau’s California director approved the leasing, concluding that “this action will result in no significant impacts to the human environment and, therefore, ... an EIS is not necessary.” In June 1988, the Bureau entered into the leases at issue in this case, CA 21924 and CA 21926, without undertaking any further environmental or cultural impacts analysis. The lessee was Calpine’s predecessor in interest, Freeporb-McMoran Resource Partners Limited Partnership. The leases were for an initial term of ten years effective June 1, 1988. Both leases granted the lessee the exclusive right to drill for, extract, produce, remove, utilize, sell, and dispose of the geothermal resources in the lands described in item 3 together with the right to build and maintain necessary improvements thereupon, for a primary term of 10 years. Rights granted are subject to applicable laws, the terms, conditions, and attached stipulations of this lease, the Secretary of the Interior’s regulations and formal orders in effect as of lease issuance and, when not inconsistent with lease rights granted or specific provisions of this lease, regulations and formal orders hereafter promulgated. Both leases contained two additional stipulations: 1. Existing water in stock tanks, ponds, lakes, reservoirs, springs, creeks or streams is not available for use in any activity unless specifically permitted by the Forest Supervisor, except where the lessee has water rights or the authorized use of such water rights. Access for wildlife at all natural water sources appropriated for operational uses, must be provided. No surface disturbance is allowed within 700 feet of streams, lakes, ponds, springs, wet meadows or other water sources unless specifically permitted by the Forest Supervisor. 2. No surface-disturbing activities will be allowed on the following described lands, unless the lessee can demonstrate to the satisfaction of the Forest Service and the Bureau of Land Management through an appropriate Plan of Operation or permit application that unacceptable environmental impacts will not occur to areas with exceptional visual qualities. [Description of affected sections for respective lease areas] In addition, CA 21926 contained a third stipulation: 3. No surface-disturbing activities will be permitted from April 1 to August 30, unless the lessee can demonstrate to the satisfaction of the Forest Service and the Bureau of Land Management through an appropriate Plan of Operation or permit application that unacceptable environmental impacts will not occur to Goshawk nesting habitat in [specific sections of the parcel]. Neither lease contained any other stipulation or restriction related to the use of the leasehold. The agencies did not complete an EA or EIS, or consult with the interested tribes, before issuing the leases. Little activity occurred during the initial lease term. In 1994, the Bureau authorized two exploration core holes for lease CA 21926. Calpine later proceeded with one temperature gradient core hole in the fall of 1994, and received approval to deepen the hole in April 1995. In 1995, Calpine submitted a plan of operations for a proposed Fourmile Hill Geothermal Exploration Project (Exploration Plan) on the leased parcels, in the same general location as the later-proposed power plant. The agencies conducted a NEPA review and distributed an EA for public comment in December 1995. The EA was sent to the Pit River Tribe. The agencies received little public comment and no comment from the Pit River Tribe. The agencies issued a Finding of No Significant Impact and approved the project in April 1996. Meanwhile, in September 1995, Calpine submitted a plan of utilization for the power plant project at issue in this litigation: the Fourmile Hill Geothermal Development Project (Fourmile Hill Plant). The proposed 49.9 megawatt plant was to be located approximately three miles northwest of Medicine Lake. The power plant itself would cover ten and a half acres of land. The project would also involve construction of five production well pads, each covering approximately two and a half acres. The power plant and well field would disturb about fifty acres of land. The bulk of the surface-disturbing activity, some 338.8 acres, would be related to the construction of a 230-kilovolt transmission line, in a 125-foob-wide corridor, to carry the power produced at the Fourmile Hill Plant to an existing transmission line operated by the Bonneville Power Administration, located twenty-four miles away. After three years of construction, the plant would be expected to generate electricity for forty-five years before being decommissioned. The agencies began preparing an EIS for the Fourmile Hill Plant in June 1996, sending a notification letter to over 750 potentially interested agencies, groups, and members of the public. Eventually, the agencies engaged in consultations with tribes, including the Pit River Tribe. They also commissioned an ethnographic report to consult local tribes “to identify cultural resources located in the area of the Fourmile Hill [plant].” A draft form of the Ethnographic Report was completed by December 1996. In July 1997, the agencies issued a draft EIS for the Four-mile Hill Plant. The draft EIS received much criticism from the public, including criticism from Pit River. In May 1998, the Bureau extended Cal-pine’s leases for another five years. It appears that no environmental review was conducted with respect to this extension. In September 1998, the agencies issued a final EIS for the Fourmile Hill Plant (1998 EIS). The 1998 EIS considered various options for routing the transmission line. Alternatives to the proposed structure and operations were considered earlier in the environmental review. While the 1998 EIS mentioned the “no action” alternative of denying the project entirely, it was rejected because it “would not meet the purpose and need for the proposed action.” The 1998 EIS defined the purpose and need of the project as follows: The purpose of the Fourmile Hill Geothermal Project is to develop the geothermal resource on Calpine’s Federal geothermal leases in order to economically produce and deliver electrical energy to the Bonneville Power Administration (BPA) and others. The need for the project was stated by the U.S. Geothermal Steam Act of 1970, the Geothermal Energy Research, Development, and Demonstration Act of 1974, the Federal Land Policy and Management Act (FLPMA) of 1976, and the Energy Policy Act of 1992. The proposed project is consistent with these Federal regulations which seek to foster and encourage private enterprise in the development of alternative energy resources. The 1998 EIS maintained that all of the alternatives considered would have significant adverse effects on “traditional cultural values” and “traditional cultural uses.” The alternative chosen was found to “have the least overall effect on the environment ... because it would ... [minimize effects to traditional cultural values and uses (specifically, to avoid effects near Medicine Lake and Timber Mountain).” In July 1999, the Keeper of the National Register of Historic Places determined that the Medicine Lake caldera was eligible for listing in the National Register. The report also called for further studies on the eligibility of other areas in the region. Also in July 1999, a briefing paper recommended that the Fourmile Hill Plant project be denied because no mitigation could offset the significant impact to “the very nature and intrinsic value of the Medicine Lake area.” The paper also stated: “There is no mitigation that can offset the significant impact, which was a premise under which the leases were held.” However, the paper pointed out that “OGC and DOI Solicitors advised that denial of the Projects would be a taking of private property rights associated with the lease.” The agencies issued a ROD approving the Fourmile Hill Plant on May 31, 2000. The ROD stated that Calpine had been issued “federal leases for the right to develop the geothermal resource on federal lands,” and that this “vested property interest” superceded an Executive Order on Indian Sacred Sites. As part of the mitigation efforts, the Bureau “plac[ed] a moratorium on further geothermal development in the [Resource Area] for a minimum of five years until an analysis of actual impacts of geothermal development can be completed by the authorizing agencies.” Based on the moratorium, the Bureau suspended operations and production in multiple leases in the Resource Area. Pit River appealed the ROD to the Interior Board of Land Appeals and the Regional Forester for the Pacific Southwest Region. Both appeals were denied in their entirety. While the appeals were pending, the Bureau unilaterally lifted the moratorium on further development of the Resource Area. The decision stated that “the energy situation in the country, and particularly in the West, ha[d] changed.” The agency did not provide an opportunity for public review or comment. In May 2002, the Bureau extended Cal-pine’s leases for another forty years. No additional environmental analysis was undertaken in connection with this extension. The following month, Pit River initiated this litigation in the Eastern District of California, alleging various statutory violations throughout the leasing and development process. The district court entered summary judgment for the agencies on all claims on February 17, 2004. Pit River Tribe v. Bureau of Land Management, 306 F.Supp.2d 929 (E.D.Cal.2004). II. We review the district court’s summary judgment de novo, applying the same standards that applied in the district court. Westlands Water Dist v. U.S. Dep’t of Interior, 376 F.3d 853, 865 (9th Cir.2004). Judicial review of agency decisions under NEPA, NHPA, and NFMA is provided by the APA, which maintains that an agency action may be overturned only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir.2005) (“Our review of agency actions challenged under NFMA and NEPA is governed by the judicial review provisions of the Administrative Procedure Act. Under the APA, we review to determine if the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise contrary to law” (internal quotation and citations omitted)); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir.1998) (“Decisions regarding NHPA ... are similarly reviewed under the arbitrary and capricious standard”). “Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record.” Ecology Ctr., 430 F.3d at 1062 (internal quotation marks and citation omitted). III. We must answer two threshold questions before reaching the merits of Pit River’s claims regarding the 1998 lease extensions. First, we must consider whether Pit River has Article III standing to raise the claims. Second, we must decide whether the 2005 amendments to the Geothermal Steam Act affected the justici-ability of the claims. See Energy Policy Act of 2005, Pub.L. No. 109-58, §§ 231(1), (2), 119 Stat. 594, amending 30 U.S.C. § 1005(g). We address these issues in turn. A. The Supreme Court has identified three constitutional standing requirements: the plaintiff must have suffered an “injury in fact,” the injury must be fairly traceable to the conduct of the defendant, and the plaintiff must establish that a favorable federal court decision would be likely to redress the injury. See Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Pit River relies on procedural harms to assert standing. The agencies argue that Pit River does not satisfy the first or third part of this test and consequently lacks standing. The agencies initially argue that Pit River did not suffer an injury in fact. “To satisfy the injury in fact requirement, a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Beeman v. TDI Managed Care Servs., Inc., 449 F.3d 1035, 1038 (9th Cir.2006), quoting Citizens for Better Forestry v. USDA, 341 F.3d 961, 969 (9th Cir.2003). “[Environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The first sentence of the 1996 draft ethnographic report commissioned by the agencies reads: “Previous research has indicated that the Medicine Lake Highland and Timber Mountain areas have long been recognized by non-tribal scholars as traditional cultural properties of ... the Pit River Nation....” Pit River states that it has used the lands in question for cultural and religious ceremonies “for countless generations.” Pit River has adequately demonstrated an injury in fact for standing purposes. “Once a plaintiff has established an injury in fact under NEPA, the causation and redressability requirements are relaxed.” Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir.2001). “[T]he members must show only that they have a procedural right that, if exercised, could protect their concrete interests.... ” Defenders of Wildlife v. EPA, 420 F.3d 946, 957 (9th Cir.2005) (emphasis in original). The agencies do not challenge the second part of the test. In any event, we conclude that the harm Pit River complains of is fairly traceable to the agencies’ conduct. The agencies do contend, however, that Pit River’s challenge to the 1998 lease extensions is no longer justiciable because the extensions were supplanted by the 2002 lease extensions and are thus not redressable. We conclude that the lease extensions do not foreclose our ability to provide effective relief, as “the relief [Pit River] has requested will remedy its harm.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 860 (9th Cir.2005) (as amended). “The procedural injury would be redressed if the [agencies] followed proper procedures.” Beeman, 449 F.3d at 1040. If we hold that the environmental review was inadequate, “the agenc[ies] would have to correct the decision-making process ...” Columbia Basin Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981). We could therefore invalidate the leases as of 1998, thus nullifying the 2002 extensions, or we could enjoin any surface-disturbing activity until the agencies comply fully with NEPA and other statutes. See Conner v. Burford, 848 F.2d 1441, 1462 (9th Cir.1988) (as amended) (enjoining surface-disturbing activity). Thus, Pit River can still receive effective relief from this court. The agencies’ final argument about re-dressability is that the preparation of the 1998 EIS forecloses relief on Pit River’s claims. In Part IV.B. of this opinion we reject that argument. Accordingly, Pit River has Article III standing. B. In 2005, Congress amended the Geothermal Steam Act. See Energy Policy Act of 2005, Pub.L. No. 109-58, §§ 231(1), (2), 119 Stat. 594, amending 30 U.S.C. § 1005(g). The amendments to the Act restrict the Bureau’s discretion to deny geothermal lease extensions. Because these amendments potentially render this appeal moot, we ordered supplemental briefing on the effect of the amendments. “A case becomes moot whenever it ‘loses its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.’ ” Cantrell, 241 F.3d at 678, quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). The relevant “question is whether there can be any effective relief.” Id. (internal quotations and citation omitted). Before August 8, 2005, the portion of the Act regarding five-year lease extensions stated: Any geothermal lease issued pursuant to this chapter for land on which, or for which under an approved cooperative or unit plan of development or operation, geothermal steam has not been produced or utilized in commercial quantities by the end of its primary term, or by the end of any extension provided by subsection (c) of this section, may be extended for successive 5-year periods .... 30 U.S.C. § 1005(g)(1) (repealed Aug. 8.2005) (emphasis added). The amended Act provides as follows: (2) Initial extension. The Secretary shall extend the primary term of a geothermal lease for 5 years if, for each year after the 10th year of the lease— (A) the Secretary determined under subsection (b) that the lessee satisfied the work commitment requirements that applied to the lease for that year; or (B) the lessee paid in annual payments [sic] accordance with subsection (c). (3) Additional extension. The Secretary shall extend the primary term of a geothermal lease (after an initial extension under paragraph (2)) for an additional 5 years if, for each year of the initial extension under paragraph (2), the Secretary determined under subsection (b) that the lessee satisfied the minimum work requirements that applied to the lease for that year. 30 U.S.C. § 1005(a) (2005) (emphasis added). By changing “may” to “shall,” the statute eliminated the Bureau’s discretion in extending geothermal leases, provided that certain conditions are met by the lessees. NEPA’s EIS requirements apply only to discretionary federal decisions. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Accordingly, if the statute’s effect is retroactive, effective relief to Pit River would be foreclosed. In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court considered whether to apply the Civil Rights Act of 1991, enacted while Landgraf was on appeal, to a cause of action that arose before the statute. The Court discussed in general terms when a statute should be given retroactive effect: When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, ie., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. Id. at 280, 114 S.Ct. 1483. Applying Landgraf to the 2005 geothermal amendments, we conclude that we should not apply the statute retroactively. The Energy Policy Act does not expressly state whether the statute is to be applied retroactively. The sole reference to potential retroactive application orders the Secretary to create “transition rules for leases issued before ... enactment of this subsection....” 30 U.S.C. § 1005(d) (2005). These transition rules have not yet been issued. Moving to the second half of the Landgraf analysis, we conclude that retroactive application of the statute would impose new duties on Calpine, such as new minimum work or payment requirements. Landgraf makes clear that such retroactive operation is heavily disfavored. Therefore, the 2005 amendments have not rendered this case moot. We proceed to the merits of Pit River’s claims. IV. Because the statute of limitations has run, Pit River does not challenge the 1988 leasing decisions. Rather, Pit River argues that the agencies violated NEPA, NHMA, and their fiduciary trust obligations to the Pit River Tribe by failing to undertake any environmental review before extending the leases in 1998. The agencies respond that the 1973 EIS, the 1981 EA, and the 1984 EA were sufficient to cover the lease extension. In the alternative, the agencies argue that we cannot provide effective relief because of the preparation of the 1998 EIS. A. “NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action and inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1153-54 (9th Cir.2006) (internal quotation marks and citation omitted). The reviewing court must ensure that the agency took a “hard look” at the environmental consequences of its decision. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). The statute dictates procedural safeguards rather than a certain result. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355-56 (9th Cir.1994). Because the statute is procedural in nature, we “will set aside agency actions that are adopted ‘without observance of procedure required by law.’ ” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 810 n. 27 (9th Cir.2005), quoting 5 U.S.C. § 706(2)(D). Pit River argues that the agencies were required to prepare an EIS before issuing the 1998 lease extensions to Calpine. In Conner, federal agencies sold oil and gas leases on 1,300,000 acres of national forest land in Montana. After undertaking EAs, the agencies issued findings of no significant impact, meaning that EISs were not required at the leasing stage. 848 F.2d at 1443. The Bureau then sold over 700 leases for oil and gas exploration. Leases were of two basic types. Some of the leases contained “no surface occupancy” (NSO) stipulations, which, on their face, seemed to prohibit the lessees from using the surface of the leased land without specific approval from the Bureau. Other leases contained standard stipulations authorizing “the government to impose reasonable conditions on drilling, construction, and other surface-disturbing activities;” however, unlike the NSO stipulations, they did not appear to allow the government “to preclude such activities altogether.” Id. at 1444. The central issue in Conner was “whether the sale of any of the ... leases ... constituted an irreversible and irretrievable commitment of federal forest land ... that could have a significant impact on the environment.” Id. at 1446. We held that, in the case of the non-NSO leases, it did constitute such a commitment: “[T]he non-NSO leases ... do not reserve to the government the absolute right to prevent all surface-disturbing activity.” Id. at 1449. We continued: [AJfter the lease is sold the government no longer has the ability to prohibit potentially significant inroads on the environment. By relinquishing the “no action” alternative without the preparation of an EIS, the government subverts NEPA’s goal of insuring that federal agencies infuse in project planning a thorough consideration of environmental values. The “heart” of the EIS — the consideration of reasonable alternatives to the proposed action — requires federal agencies to consider seriously the “no action” alternative before approving a project with significant environmental effects. That analysis would serve no purpose if at the time the EIS is finally prepared, the option is no longer available. Id. at 1451 (citation omitted). Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir.1988), involved similar oil and gas leases in another Montana National Forest. As in Conner, the Bureau issued several leases, some of which had NSO stipulations and some of which did not. All of the leases contained “threatened or endangered species” stipulations, stating that “surface-disturbing activity may be restricted if it would have a detrimental effect on endangered or threatened species.” Id. at 1226. The district court granted summary judgment to plaintiffs, holding, among other things, that “the agencies violated NEPA by failing to give meaningful consideration to the no-leasing alternative.” Id. We affirmed, reiterating our recent holding in Conner: “[S]ale of the ... leases required preparation of an EIS unless the lease ‘absolutely prohibits surface disturbance in the absence of specific government approval.’ ” Id. at 1227, quoting Conner, 848 F.2d at 1447 n. 15. In contrast, an EIS is not required in cases where the government has not irretrievably committed resources. In Friends of Southeast’s Future v. Morrison, 153 F.3d 1059 (9th Cir.1998), we held that an EIS was not required where the agency retained the ultimate right to decide how much timber was to be harvested. Id. at 1063-64. We must therefore resolve whether the leases and lease extensions at issue in this litigation reserve to the agencies the right to preclude surface-disturbing activity altogether. The 1988 leases and the 1998 lease extensions grant the lessee “the exclusive right to drill for, extract, produce, remove, utilize, sell, and dispose of the geothermal resources in the [leased] lands.” They do not reserve to the agencies an absolute right to deny exploitation of those resources. All that is reserved to the agencies is the right to limit development in accordance with general statutory and regulatory requirements, and, critically, “when not inconsistent with lease rights granted,” with later regulations and orders. While specific stipulations attached to the leases provide some absolute limits on surface-disturbing activities, these stipulations only cover select sections of the lease parcels or certain periods of the year. The agencies have consistently interpreted this lease language as a grant to Calpine of an absolute right to develop, subject only to procedural regulatory restrictions. A 1999 agency briefing paper stated that the Bureau and Forest Service Supervisors were “strongly considering selection of the No Action Alternative” for the projects in the Medicine Lake area. According to the briefing paper, Department of the Interior Solicitors advised that “denial of the Projects would be a taking of private property rights associated with the leases. ... The decision makers would like to have the authority to deny the geothermal Projects, which may require compensation to the leaseholders for the taking.” This language implies that the decision makers did not have the authority to deny the projects. Similarly, the ROD for the Fourmile Hill Plant’s explicit discussion of what were viewed as Calpine’s vested property rights supports the conclusion that the agencies viewed the leases as granting an absolute right to develop. The ROD analyzed the project’s compliance with Executive Order 13007, entitled Indian Sacred Sites, and concluded that the leases rendered the executive order without effect. In other words, although adverse effects to sacred sites had not been avoided, denial of the project was not possible without also denying Calpine its vested rights as a leaseholder. This view of the leases is consistent with the earlier EISs and EAs prepared by the agencies. The 1973 EIS on geothermal energy “recognized that the issuance of geothermal leases ... may constitute major Federal action significantly affecting the quality of the human environment,” thus necessitating further EISs. Similarly, the 1981 EA declared that “[a] decision to lease carries with it the right to develop a discovered resource, subject to the limitations of the lease.... Further analysis will be required for the later stages of exploration and, if a resource is discovered, development.” The 1985 ROD, in turn, stated that development within a conditional no surface occupancy zone “will be permitted if [the agencies] so concur. However, there is no guarantee to the lessee that proposed operations will be found to be feasible within those [NSO] areas.... There are, however, areas ... where the [NSO] stipulations do not apply.” “A comprehensive programmatic impact statement generally obviates the need for a subsequent site-specific or project-specific impact statement, unless new and significant environmental impacts arise that were not previously considered.” Salmon River, 32 F.3d at 1356. However, the 1973 EIS does not adequately address the potential impacts of leasing; in fact, we have already held as much in Sierra Club v. Hathaway, 579 F.2d 1162 (9th Cir.1978). There, the plaintiffs sought an injunction to stop the government’s issuance of “casual use” geothermal exploration leases, contending that the 1973 EIS was insufficient. Casual use exploration “involves practices which do not ordinarily lead to any appreciable disturbance or damage to lands, resources, and improvements.” Id. at 1165. We held that a supplemental EIS was unnecessary at that stage, affirming the district court’s denial of an injunction, because the casual use leases did not constitute “irreversible and irretrievable commitments” of specific resources to development. Id. at 1168. However, our ruling also depended on our conclusion that it was unlikely “that the BLM and the USGS will permit the leasing program to proceed into its advanced phases without fully considering their obligation to comply with the EIS requirements of NEPA.” Id. at 1167. The 1981 and 1984 EAs are also insufficient. They did not consider the impacts of actual geothermal development, but only of leases and casual use exploration; the actual leases later granted, purportedly based on those EAs, are inconsistent with their terms. We held in Salmon River that “when an impact statement is prepared, site-specific impacts need not be fully evaluated until a ‘critical decision’ has been made to act on site development.” 32 F.3d at 1357. Once a critical decision is made, though, any vague prior programmatic statements are no longer enough. The lease language, and the agencies’ interpretation of the lease language, make clear that the “critical decisions” here occurred when the agencies extended absolute development rights in 1988 and again in 1998. The agencies urge that the 1998 lease extensions merely preserved the status quo and do not require separate assessment. “Discretionary agency action that does not alter the status quo does not require an EIS.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1344 (9th Cir.1995). “In other words, an EIS is not required in order to leave nature alone.” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir.2002) (internal quotation marks and citation omitted). Because Pit River did not challenge the 1988 leases, the agencies argue that they were free to do as they wished in 1998. In Espy, the government took title to a ranch from a delinquent borrower and subsequently sold the ranch. The new owners continued to graze cattle on the land. We held that the title transfer was not subject to NEPA because cattle had grazed on the land before the title transfer. Espy, 45 F.3d at 1343-44. In Kootenai Tribe, though, we held that the Forest Service’s plan to reduce human intervention in national forests altered the status quo. We held that NEPA applied and that the initiative required an EIS. Kootenai Tribe, 313 F.3d at 1115. We conclude that the situation presented here is different from the “continued use” scenario in Espy. Without the affirmative re-extension of the 1988 leases, Cal-pine would have retained no rights at all to the leased property and would not have been able to go forward with the Fourmile Hill Plant. The status quo before the 1998 extensions was that Calpine owned rights to produce geothermal steam valid through May 31, 1998, after which Calpine owned nothing. Instead of preserving the status quo, the lease extensions gave Calpine an extra five years to develop the land and the possibility of obtaining a future lease extension of up to forty years. Like the original 1988 leases, the 1998 extensions of Calpine’s leases did not reserve to the agencies the absolute right to deny development and did not merely preserve the status quo. Under NEPA and our case law, the agencies were required to complete an environmental impact statement before extending the leases. This obligation was not satisfied by the earlier environmental reviews. B. Calpine urges that any deficiency in the environmental review before the 1998 lease extensions has been rendered moot by the preparation of the 1998 EIS for the Fourmile Hill Plant. The district court held that the preparation of the 1998 EIS “mooted” the claim, because preparation of the EIS was the relief sought by Pit River. Pit River Tribe, 306 F.Supp.2d at 945-46. The issue is actually one of standing rather than mootness, because the EIS was completed before the beginning of this litigation. See Friends of the Earth, 528 U.S. at 189-90, 120 S.Ct. 693 (describing difference between standing and mootness). The question is whether “the relief [Pit River] has requested will remedy its harm.” Ocean Advocates, 402 F.3d at 860. NEPA requires that federal agencies include a detailed statement of “alternatives to the proposed action” in any recommendation or report on actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C)(iii). Additionally, the statute mandates that the agencies “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” Id. § 4332(2)(E). The “alternatives” section is “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. “The consideration of alternatives requirement ... guarantee^] that agency decisionmakers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project ) which would alter the environmental impact and the cost-benefit balance.” Bob Marshall Alliance, 852 F.2d at 1228 (internal quotation marks, punctuation, and citation omitted) (emphasis in original). “The purpose of an EIS is to apprise decisionmakers of the disruptive environmental effects that may flow from their decisions at a time when they retain a maximum range of options.” Conner, 848 F.2d at 1446 (internal quotation marks, punctuation, and citation omitted). We have already concluded that the agencies should have prepared an EIS at the time of the 1998 lease extensions. To allow the later 1998 EIS to compensate for the nonexistent earlier review would violate both federal regulations and our case law. Federal regulations explicitly, and repeatedly, require that environmental review be timely. “Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2 (2005). Similarly, regulations mandate that an environmental impact statement be commenced “as close as possible to the time the agency is developing or is presented with a proposal.” 40 C.F.R. § 1502.5 (2005). “The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.” Id.; see also 40 C.F.R. § 1502.2(g) (2005) (“Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made”). Consistent with these regulations, we have repeatedly held that dilatory or ex post facto environmental review cannot cure an initial failure to undertake environmental review. In Save the Yaak Committee v. Block, the Forest Service began construction of a section of a road without preparation of an EA, and belatedly completed an EA two years later. 840 F.2d 714, 716-17 (9th Cir.1988). We cited the federal regulations in holding that the preparation of the EA and other environmental documents was untimely. “The rationale behind this rule is that inflexibility may occur if delay in preparing an EIS is allowed: After major investment of both time and money, it is likely that more environmental harm will be tolerated.” Id. at 718 (internal quotation marks and citations omitted). We held that the agencies’ failure to comply with NEPA’s timing requirements “seriously imped[ed] the degree to which their planning and decisions could reflect environmental values.” Id. at 718-19. We reached a similar conclusion in Metcalf v. Daley, 214 F.3d 1135 (9th Cir.2000). In that case, the Makah Tribe sought approval to resume the hunting of gray whales. The hunting of gray whales was regulated by the International Convention for the Regulation of Whaling, to which the United States was a party. Government agencies entered into two written agreements with the Makah to support the Makah’s proposal. Id. at 1139. Soon thereafter, the agencies issued a final EA and a Finding of No Significant Impact. Id. at 1140. The agencies thus did prepare an EA, undertake environmental review, and issue a FONSI, “but they did so after already having signed two agreements binding them to support the Tribe’s proposal.” Id. at 1142. On the same day as the release of the FONSI, the plaintiffs brought suit, alleging violation of NEPA and other statutes in supporting the Ma-kah’s proposal without first undertaking environmental review. Id. at 1140. We agreed, holding that the agencies had made an “irreversible and irretrievable commitment of resources” prior to environmental review. Id. at 1143. In the present case, there is even less reason than there was in Metcalf or in Save the Yaak to hold that the later review cured the earlier failure. In Metcalf, the later review actually addressed the issue of whether the government should support the Makah’s proposal. Here, on the contrary, the tardy EIS did not address the issue that should have been addressed in 1988 and 1998: whether the land in question should be leased at all. The 1998 EIS simply did not consider the no-action alternative. The stated purpose of the project was “to develop the geothermal resource on Calpine’s Federal Geothermal Leases CA21924 and CA21926 to economically produce and deliver electrical energy to BPA and others.” The 1998 EIS, in its “alternatives” section, specifically stated that the only alternatives under consideration were those “[ljocated on the Calpine Federal geothermal leases.” The sole mention of the no action alternative stated that it “would not meet the purpose and need for the proposed action.” The 1998 EIS failed to take the requisite “hard look” at whether the leases should have been extended; it therefore cannot possibly remedy the earlier violation. To allow the 1998 EIS to cure the earlier violation would mean using the EIS “to rationalize or justify [a] decision[ ] already made,” although the EIS does not even address that earlier decision. See Save the Yaak, 840 F.2d at 718, quoting 40 C.F.R. § 1502.5. In West v. Secretary of the Department of Transportation, when discussing mootness, we reiterated that if completion of the challenged action were sufficient to moot a NEPA claim, an agency “could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable.” 206 F.3d 920, 925 (9th Cir.2000) (internal quotation marks, citation, and emphasis omitted). Similarly, an agency does not satisfy NEPA by ignoring the statute at the critical stage, committing resources to development, and eventually completing an EIS — however lengthy and exhaustive' — that simply asserts that the fundamental decision to develop has already been made. Because the 1998 EIS was premised on the notion that the leases were valid and granted development rights to Calpine, the 1998 EIS cannot substitute for an EIS evaluating the decision to extend the underlying lease rights as an initial matter. The agencies never took the requisite “hard look” at whether the Medicine Lake Highlands should be developed for energy at all. By the time the agencies completed the 1998 EIS, “the die already had been cast. The ‘point of commitment’ to this proposal” — the extension of the leases— “clearly had come and gone.” Metcalf, 214 F.3d at 1144. Accordingly, in spite of the 1998 EIS, we hold that the 1998 lease extensions — and the entire Fourmile Hill Plant approval process for development of the invalid lease rights — violated NEPA. V. Pit River also argues that the agencies violated NHPA by failing to identify traditional cultural properties on the leaseholds before issuing or extending the leases. The district court found that the preparation of the 1998 EIS provided all the relief sought on these claims. See Pit River Tribe, 306 F.Supp.2d at 945-46. In the alternative, the district court held that the lease extensions were not subject to NHPA because they did not change the status quo. Id. at 946 n. 10. “The NHPA involves a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance.” San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1093-94 (9th Cir.2005) (internal quotation marks and citation omitted). To this end, the statute “requires a federal agency to ‘take into account the effect of [any] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.’ ” Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 581 (9th Cir.1998), quoting 16 U.S.C. § 470f. “When an undertaking may affect properties of historic value to an Indian tribe on non-Indian lands, the consulting parties shall afford such tribe the opportunity to participate as interested persons.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 806 (9th Cir.1999), quoting 36 C.F.R. § 800.1(c)(2)(iii). The effort must be “initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking.” 36 C.F.R. § 800.1(c). “NHPA is similar to NEPA except that it requires consideration of historic sites, rather than the environment.” United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir.1993). It is undisputed that no consultation or consideration of historical sites occurred in connection with the lease extensions, although NHPA consultation did occur in the Fourmile Hill Plant approval process. The agencies defend the lack of NHPA analysis on the same grounds that they defended their lack of NEPA analysis: that no analysis was required, and, in the alternative, that the later analysis cured the earlier failure. For the reasons discussed above, we hold that the extension of the leases was a federal undertaking requiring review. Similarly, the later NHPA review cannot cure the earlier violation, because it did not deal with the question of whether the land should have been leased at all. Consequently, we hold that the agencies violated NHPA by failing to complete the necessary review before extending the leases. VI. Pit River contends that the agencies violated their fiduciary duty to the Pit River Tribe by failing to protect the Tribe’s interests during the development process. The district court held that the agencies fully satisfied their fiduciary duty because they “did not violate any statutes during the approval process for Fourmile Hill.” Pit River Tribe, 306 F.Supp.2d at 950. “The federal government owes a fiduciary obligation to all Indian tribes as a class.” Inter Tribal Council of Ariz., Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir.1995). We have held that agencies must at least show “compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Morongo Band, 161 F.3d at 574. Because we conclude that the agencies violated both NEPA and NHPA during the leasing and approval process, it follows that the agencies violated their minimum fiduciary duty to the Pit River Tribe when they violated the statutes. We therefore need not reach any of the other fiduciary duty arguments raised by Pit River. In particular, we do not reach the question of whether the fiduciary obligations of federal agencies to Indian nations might require more. VII. The agencies violated their duties under NEPA and NHPA and their fiduciary duty to the Pit River Tribe by failing to complete an environmental impact statement before extending Calpine’s leases in 1998. Hence, both the five-year lease extensions and the subsequent forty-year extensions must be undone. The rest of the project approval process, including the 1998 EIS, was premised on Calpine’s possession of a valid right to develop the land and therefore must be set aside. We do not reach Pit River’s three claims based on agency actions subsequent to the 1998 lease extensions: the agency decisions in 2000, the NFMA claims, and the APA claim related to the rescission of the development moratorium. We reverse the district court’s summary judgment in favor of the agencies, and direct the district court to enter summary judgment in favor of Pit River consistent with this opinion. REVERSED. . Calpine, a nominal defendant in this litigation, recently sought Chapter 11 bankruptcy protection. That process does not affect this appeal. . Freeport-McMoran designated Calpine its agent for exploration in 1994 and assigned the leases to Calpine in 1996.

Morongo Band of Mission Indians v. Federal Aviation Administration

TASHIMA, Circuit Judge: The Morongo Band of Mission Indians (“Morongo Band” or “Tribe”) petitions for review of a Record of Decision (“ROD”) of the Federal Aviation Administration (“FAA”), implementing the Los Angeles International Airport (“LAX”) East Arrival Enhancement Project (“AEP”). The Morongo Band raises claims under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f, section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), and various FAA regulations. We have jurisdiction over this timely petition for review under 49 U.S.C. § 46110(a), and we deny the petition. BACKGROUND The Morongo Reservation is located on over 32,000 acres in Riverside County, California, approximately 90 miles east of Los Angeles. The Reservation includes canyons and undeveloped areas where tribal members conduct traditional ceremonies, as well as sites that they consider sacred for cultural and spiritual purposes. In February 1997, the FAA began what is called the NEPA scoping process for the AEP. Pursuant to that process, the FAA sent letters to all federal and state agencies, local governments, and private organizations, including the Morongo Band, that might have an interest in the project. The letter stated that the FAA was beginning an environmental assessment of the proposed AEP, described the proposed action, and invited comments about it. The description of the project enclosed with the letter noted that the volume of arrivals at LAX had increased and was projected to continue to grow in the future, resulting in the need to revise arrival procedures in order to ensure safety and efficiency. In particular, the system of dealing with arrivals from the east, as opposed to the north and west, was in need of change. The FAA therefore proposed to move one of the three existing arrival routes eight miles south, which, unfortunately for the Morongo Band, would cause the flight path to cross the Reservation, instead of bypassing it to the north. The Tribe responded to the initial scoping letter with a letter detailing some of its concerns, such as the adverse impact on the Reservation of the increased air traffic (an additional 180 aircraft per day). There followed a series of letters, as well as a meeting between the FAA and an Environmental Officer of the Tribe. On June 12, 1997, the Morongo Band sent a letter proposing an alternate route designed to satisfy the AEP’s goals without crossing the Reservation. According to the FAA, the draft Environmental Assessment (“EA”) was already being printed for publication on June 18, 1997, so the Tribe’s proposal could not be included in the draft. The proposal was, however, included in the final EA. On July 10, 1997, the FAA held a public information meeting on the AEP at the Mor-ongo Tribal Hall. On July 29, 1997, the FAA met with Thomas McCort, the Tribe’s technical consultant. The final EA was issued on August 29, 1997, with a comment period that ran until October 3. In the EA, the FAA discussed several alternatives, including the Tribe’s proposal, but concluded that the best solution was the route that crossed the Reservation. The Morongo Band wrote a letter to the FAA asking technical questions about its own proposal and requesting another meeting before final approval of the EA. The FAA, however, decided that the Tribe had raised no new issues; therefore, on October 24, 1997, it issued a Finding of No Significant Impact (“FONSI”) and, on January 30, 1998, issued its ROD granting final approval of the EA. The FAA declined the Tribe’s request to stay the project and implemented it on March 10,1998. STANDARD OF REVIEW Under the Administrative Procedure Act (“APA”), an agency’s decision may be set aside if the court finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In determining whether an agency’s decision is arbitrary or capricious, the court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citation omitted). Agency decisions regarding NEPA are reviewed under the arbitrary and capricious standard of the APA. Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir.1997). The court may not substitute its judgment for that of the agency regarding environmental consequences of the agency’s actions. Id. Rather, the court must simply “ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Id. (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). Decisions regarding NHPA and the Transportation Act are similarly reviewed under the arbitrary and capricious standard. Communities, Inc. v. Busey, 956 F.2d 619, 623-24 (6th Cir.1992). Judicial review of agency decisions is generally limited to review of the administrative record. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). The Morongo Band, however, seeks to introduce new evidence, on the basis that in NEPA eases, the court may extend its review beyond the administrative record and permit the introduction of new evidence where the plaintiff alleges that an [Environmental Impact Statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug. Id. at 526-27 (alteration in original) (internal quotations and citation omitted). “[T]he court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration.” Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 760 n. 5 (9th Cir.1996) (internal quotations omitted). Thus, when the plaintiff alleges that the agency failed to take into consideration all relevant factors, the court may need to “look[ ] outside the record to determine what matters the agency should have considered but did not.” Id. The Tribe contends that the court must apply the “usual canon of construction that a statute designed to benefit Indians must be liberally construed in favor of the Indian beneficiaries.” (Citing Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir.1994), amended on denial of reh’g, 99 F.3d 321 (9th Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).) Although Rumsey does state that “statutes benefitting Native Americans generally are construed liberally in their favor,” id., the statutes at issue in the instant case were not designed to benefit Indians. Moreover, Rumsey also states that this canon of liberal construction does not permit the court to contradict the plain words of a statute. Id. DISCUSSION I. United States Trust Responsibility Toward Indian Tribes The Tribe argues that the United States bears a trust responsibility toward Indian tribes, “which, in essence, consists of acting in the interests of the tribes.” Skokomish Indian Tribe v. FERC, 121 F.3d 1303, 1308 (9th Cir.1997). It is true that agencies of the federal government owe a fiduciary responsibility to Indian tribes. Id.; Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir.1995); Covelo Indian Community v. FERC, 895 F.2d 581, 586 (9th Cir.1990); Nance v. EPA, 645 F.2d 701, 710 (9th Cir.1981). The court in Sko-komish, however, also stated that the FERC must exercise this responsibility in the context of the Federal Power Act; therefore, the agency properly declined to afford the tribe “greater rights than they otherwise have under the FPA and its implementing regulations.” 121 F.3d at 1309. Moreover, in Nance, we noted that procedures provided by the Clean Air Act and EPA regulations (such as consulting with the tribe before taking action) were sufficient to fulfill the EPA’s fiduciary responsibility. 645 F.2d at 711. In United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), relied on by the Morongo Band, the Supreme Court held that the United States was liable for damages for the breach of its fiduciary duties in the management and operation of Indian lands and resources. Although the Court noted the general trust relationship between the United States and the Indian people, the main reasons for its conclusion' were the specific obligations placed on the government by statutes and regulations, and the fact that the government “assume[d] such elaborate control over forests and property belonging to Indians.” Id. at 225. Thus, although the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes. II. LAX Arrival System The FAA has established 20 Air Route Traffic Control Centers (“Centers”) throughout the United States, which are responsible for the control of aircraft during flight. Centers divide their airspace into sectors, each of which is handled by one controller. Each center delegates control over certain sectors to local terminal radar approach control facilities (“TRACONs”), which control aircraft arriving at and departing from major airports. The center is responsible for the initial sequencing of aircraft, providing adequate separation from other traffic, and then transferring control to the local TRACON. The LA Center is responsible for airspace in parts of Arizona, Nevada, Utah, and southern California. Under the former system, planes approaching LAX from the east passed through two sectors controlled by LA Center, sectors 19 and 20. The Southern California TRACON routes traffic into and out of all major airports in southern California. It controls two LAX arrival sectors, the northern and southern sectors. LAX has four parallel runways running east-west, grouped in pairs north and south of the terminal. The outer runways are used for arrivals and the inner ones for departures. Under the former system, aircraft arrived from the east on three routes and were merged into one stream by LA Center. LA Center then gave control of this stream to the TRACON responsible for the southern approach to LAX. The northern approach was controlled by a different TRACON and was used primarily by aircraft arriving from the north and west. Because more planes arrive from the east and south than from the north and west, the southern approach was much busier than the northern approach. That imbalance resulted in delays in the south, as well as imbalances in the workload between the northern and southern controllers. Under the AEP, the FAA reorganized the sectors and moved Route 3, the southernmost route, renaming it Route 4. LA Center’s former sector 19 was split into new sectors 19 and 20, with new sector 20 encompassing the northern portion and new sector 19 encompassing the southern portion of the former sector 19. Route 4 is eight miles south of Route 3, allowing it to be controlled by new sector 19, landing on the southern runway, while Routes 1 and 2 now are controlled by new sector 20, landing on the northern runway. However, because Route 4 is further south than Route 3 was, it crosses the Reservation, whereas Route 3 was situated north of the Reservation. Splitting the eastern arrivals into two traffic streams equalized the air traffic controllers’ workloads and reduced delay along the southern runway. III. NEPA Claims NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) when they propose to undertake “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Northwest Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1535-36 (9th Cir.1997) (“NEDC”); Inland Empire, 88 F.3d at 757-58. The goals of NEPA are: “(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decision; and (2) to guarantee that this information will be available to a larger audience.” Id. at 758. NEPA is satisfied once this information is properly disclosed; thus, NEPA exists to ensure a process, not a result. NEDC, 117 F.3d at 1536; Inland Empire, 88 F.3d at 758. The Council on Environmental Quality (“CEQ”) has promulgated regulations implementing NEPA. See 40 .C.F.R. § 1500.1. Under these regulations, an agency is required to prepare an EA in order to determine whether to prepare an EIS or a FONSI. 40 C.F.R. §§ 1501.4; 1508.9. A FONSI means the agency has determined that an action will “not have a significant effect on the human environment.” 40 C.F.R. § 1508.13. If a FONSI is made, the agency need not prepare an EIS. Id. A. Evaluation of Alternatives The Tribe contends that the FAA violated NEPA, a Department of Transportation (“DOT”) Environmental Justice Order, and Executive Order No. 12898 by failing to evaluate or develop alternative routes. As the FAA points out, both the Environmental Justice Order and Executive Order specifically state that they do not create any right to judicial review for alleged noncompliance. See DOT Environmental Justice Order, 62 Fed.Reg. 18377, 18378 (1997) (“The Order is an internal directive to the various components of DOT and does not create any right to judicial review for compliance or noncompliance with its provisions.”); Exec. Order No. 12898, 59 Fed.Reg. 7629, § 6-609 (1994) (“This order shall not be construed to create any right to judicial review involving the compliance or noneompliance of the United States, its agencies, its officers, or any other person with this order.”). NEPA’s regulations require agencies to “[rjigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14. “The ‘existence of a viable but unexamined alternative renders an environmental impact statement inadequate.’ ” Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1993) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). An agency, however, is “entitled to identify some parameters and criteria'— related to Plan standards—for generating alternatives to which it would devote serious consideration. Without such criteria, an agency could generate countless alternatives.” Id. (quoting Mumma, 956 F.2d at 1522). The “touchstone for our inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” City of Angoon v. Hodel, 803 F.2d 1016, 1020 (9th Cir.1986) (internal quotations and citation omitted). The FAA discussed a number of alternative routes in the EA and the ROD, including two, Alternatives 7a and 7b, that were designed to avoid the Reservation. Alternative 7a proposed moving Route 4 either further north or further south in order to avoid crossing the Reservation. The FAA stated that the definition of a new airspace sector required the new route to be at least ten nautical miles south of the existing routes. Thus, moving Route 4 any further north would have precluded the definition of, a new airspace sector, frustrating one of the main objectives of the AEP. Moving Route 4 further south would have caused the route to conflict with departures from LAX and arrivals to Ontario International Airport. Alternative 7a therefore was rejected as infeasible and as not accomplishing the project’s objectives. Alternative 7b proposed extending Route 4 further west, thus avoiding the Reservation before turning south along the original proposed path for Route 4. This route was called Route 4b. The FAA discussed the absence of suitable navigational aids in the area, as well as the time and distance required to complete the turn, and concluded that this proposal would place Route 4b too close to the existing routes to allow the definition of a new airspace sector. This alternative therefore was also considered infeasible. The FAA thoroughly discussed alternatives that would have bypassed the Reservation, but found them unsuitable for accomplishing the primary purpose of the project— definition of a new airspace sector. As stated in the ROD, “[t]he ability to designate one sector to control aircraft on Routes 1 and 2 and another to control aircraft on Route 4 is the key to the efficiencies sought through this project.” “An agency is required to examine only those alternatives necessary to permit a reasoned choice.” Association of Pub. Agency Customers, 126 F.3d at 1185. The agency thus fulfilled its obligation under NEPA to “[rjigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14. The Tribe contends that the FAA arbitrarily chose the location of the new airspace sector boundary and ignored proposed alternative routes that infringe upon that boundary. In support, they submit a declaration from their expert, Thomas McCort. Although McCort states that there “appear to be” alternative routes that would fulfill the AEP’s purpose without crossing the Reservation, where an issue requires “a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.” Marsh, 490 U.S. at 377, 109 S.Ct. 1851; see also id. (“When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential.”) (quoting Baltimore Gas & Elec. Co., 462 U.S. at 103, 103 S.Ct. 2246); id. at 378, 109 S.Ct. 1851 (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”). Moreover, the Morongo Band has failed to point to a specific feasible alternative that would have bypassed the Reservation while still allowing the creation of a new sector. Related to this issue, the parties dispute who has the burden of offering feasible alternatives. It is true that the FAA has the responsibility to “study, develop, and describe appropriate alternatives.” 42 U.S.C. § 4332(2)(E). The FAA has fulfilled that requirement, however, by developing and discussing a number of alternatives, including Alternatives 7a, 7b and 4b. Moreover, in City of Angoon, we stated that the parties claiming a NEPA violation “had not offered a specific, detailed counter-proposal that had a chance of success. Those who challenge an EIS bear a responsibility ‘to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.’ ” 803 F.2d at 1022 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). The Seventh and Eighth Circuits have similarly implied that the burden is on the party challenging the agency action to offer feasible alternatives. See Olmsted Citizens for a Better Community v. United States, 793 F.2d 201, 209 (8th Cir.1986) (“Olmsted Citizens to succeed on its claim must make some showing that feasible alternatives exist. Absent such a showing Olmsted Citizens asks this court to presume that an adequate alternate site exists somewhere and that the government did not try hard enough to find this site (internal citations and footnote omitted); River Rd. Alliance, Inc. v. Corps of Eng’rs of United States Army, 764 F.2d 445, 452-53 (7th Cir.1985) (“The Corps was entitled not to conduct a further study of alternatives unless the plaintiffs were prepared to shoulder the burden of showing that National Marine had overlooked some plausible alternative site — and they were not.”). The FAA has fulfilled its obligation to consider reasonable alternatives. B. Evaluation of Noise Impact The Tribe makes four claims regarding the FAA’s evaluation of the noise impact. It contends that the FAA: (1) mischaracterized existing noise levels on the Reservation; (2) inappropriately used urban noise significance criteria in evaluating the impact of noise on the Reservation; (3) failed to consider single-event noise levels; and (4) should have prepared an EIS, because the noise violates tribal noise standards. In support of their contentions, the Tribe relies on a declaration by Hans Giroux, an “acoustical specialist.” We have generally rejected plaintiffs’ attempts to “engage in a battle of experts” regarding issues such as air quality and noise because, “when specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Price Rd. Neighborhood Ass’n, Inc. v. United States Dep’t of Transp., 113 F.3d 1505, 1511 (9th Cir.1997) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992)); see also Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.1993) (“We are in no position to resolve this dispute because we would have to decide that the views of Council’s experts have more merit than those of the [government’s] experts.”) (internal quotations omitted). Nevertheless, we address each of the Tribe’s claims seriatim. 1. Existing Noise Levels The Tribe complains that the FAA did not monitor actual noise levels on the Reservation and that actual background noise levels were below 30 decibels (“dB”) and as low as 20 dB, whereas the lowest background noise level used in the EA was 30 dB CNEL. If the FAA overstated background noise levels, the impact of new noise created by the AEP would be underestimated. The FAA based its 30 dB CNEL background noise level on measurements by the National Park Service and a private consultant. The National Park Service measured sound on and near the rim of the Grand Canyon, finding noise levels from 34-48 dB at actively visited areas and in the low 20’s in more remote areas. Although the Park Service did not use the Ldn or CNEL standards, the FAA stated that a steady sound level of 23 dB for 24 hours would correspond to 30 dB CNEL. The consultant whom the FAA used measured noise in Scottsdale and Tucson, Arizona, as well as a rural area outside Phoenix, and showed background noise levels in sparsely developed desert areas to be below 40 Ldn or CNEL. Based on these two measurements, the FAA concluded that 30 dB CNEL was “a reasonable estimate of a background noise level in completely undeveloped desert and mountain areas.” Although noise levels on the Reservation may not seem comparable to those in the heavily-visited Grand Canyon, the FAA relied on the Park Service’s measurement in more remote locations of the Grand Canyon, rather than the actively visited areas. Furthermore, it is not for the court to assess whether a “rural area” outside Phoenix would have background noise levels similar to those on the Reservation. The Morongo Band has failed to establish that the FAA’s decision to use the 30 dB CNEL level was arbitrary or capricious. 2. Urban Noise Significance Criteria The Tribe contends that the FAA inappropriately used urban noise significance criteria in assessing the noise impacts on the Reservation. The Tribe apparently argues that the FAA claims that average daily noise levels above 45 dB CNEL do not have any impact on land uses and that noise levels below 65 dB CNEL cannot have a significant impact on ordinary activities. However, the portion of the EA that the Tribe cites deals with the effects of changes in the CNEL depending on the existing noise exposure, rather than the effect of an existing CNEL. The EA does state that 65 dB CNEL is the threshold above which aircraft noise is considered to cause a significant adverse impact in residential areas. The EA then goes on to explain, however, that, if existing CNEL noise exposure is 45-60 dB, an increase of 5 dB would have a marginal impact, whereas if existing CNEL is greater than 65 dB, an increase of only 1.5 dB would have a significant impact. Moreover, in the EA’s discussion of the noise impacts of its various alternatives, its focus was on the effect of the increase, not on the actual existing noise level: “Even in undeveloped areas with very low background noise levels, increases in total ambient noise with Alternatives 5A and 5B are far too small to be considered either significant or marginal impacts.” The Morongo Band analogizes to National Parks and Conservation Ass’n v. FAA, 998 F.2d 1523, 1533 (10th Cir.1993), in which the Tenth Circuit concluded that the FAA’s determination of no significant impact on a recreational area was irrational, because the agency provided no empirical evidence to support the claim, basing its determination only on a subjective evaluation of the impact of noise on recreational users of a national park. Unlike National Parks and Conservation Ass’n, however, where the FAA argued that its analysis needed to be “subjective and inexact” because there was “no acceptable methodology to measure noise impacts,” id., the FAA in the instant case performed a detailed analysis using figures obtained from the LAX Master Plan and the Southern California TRACON to estimate the numbers of aircraft and relied on its standard methodology for airport noise studies. This case therefore is distinguishable from National Parks and Conservation Ass’n, because the FAA’s methodology and reasoning cannot be described as irrational or subjective. See id. (“The FAA explicitly rejected the Ldn methodology and performed the noise impact analysis based on various assumptions and subjective values which did not provide us with a ‘rational’ decision that we could assess.”). Finally, in response to another petitioner’s challenge to the FAA’s use of 65 Ldn as the threshold of significance for noise impacts, we stated that “NEPA authorizes federal agencies to develop their own methods and procedures in regard to environmental analysis.” Seattle Community Council Fed’n v. FAA, 961 F.2d 829, 833 (9th Cir.1992). The Tribe has failed to establish that the FAA’s methodology was arbitrary or capricious. 3. Single-Event Noise Impact The Tribe further contends that the FAA was required to consider single-event noise levels rather than average daily noise levels because of tjie sensitive cultural and religious uses of the land. However, Neither the CEQ regulations nor the FAA’s own regulations require single-event testing in addition to or in lieu of cumulative testing. In fact, the FAA’s regulations appear to require the use of cumulative data. “The exposure of individuals to noise resulting from the operation of an airport must be established in terms of yearly day-night average sound level....” 14 C.F.R. § 150.9(b) (1991) (emphasis added). Id.; cf. Busey, 956 F.2d at 624 (upholding the FAA’s use of cumulative noise impact methodology as opposed to individual-event noise analysis as an exercise of the agency’s discretion). The Morongo Band points to National Parks and Conservation Ass’n as evidence that the FAA is aware of the limitation of average noise criteria and so has used single-event noise levels to measure noise impacts on undeveloped areas. However, as discussed above, the Tenth Circuit reversed the FAA’s decision in that case, concluding that the FAA’s rejection of the Ldn methodology and subjective evaluation of noise impacts was irrational. 998 F.2d at 1533. The Tribe has pointed to no authority that would require us to conclude that the FAA’s decision to rely on average noise levels, rather than single-event noise impacts, was arbitrary or capricious. 4. Tribal Noise Standards Finally, the Tribe argues that the FAA violated its own regulations, which require preparation of an EIS if the project “is determined not to be reasonably consistent with plans or goals that have been adopted by the community in which the project is located.” (Quoting DOT, FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts,” Dec. 5, 1986 (“FAA Order 1050.1D”).) Although, understandably, the Tribe may be unhappy with any increase in noise that interferes with its traditional practices, it fails to put forth any evidence of “plans or goals ... adopted by the community” with which the AEP is inconsistent. Unfortunately for the Morongo Band, it appears that its quarrel is with the result reached by the EA. As we have stated, however: NEPA does not mandate particular substantive results, but instead imposes only procedural requirements. Thus, in considering a challenge under NEPA, [we] may not substitute [our] judgment for that of the agency concerning the wisdom or prudence of a proposed action. Under our “rule of reason,” we determine whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences by making a pragmatic judgment whether the [EIS’s] form, content and preparation foster both informed decision-making and informed public participation. Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 523 (9th Cir.1994) (alterations in original) (citations and internal quotations omitted). C. Segmenting, Growth-Inducing and Cumulative Impacts The Tribe contends that the FAA improperly segmented the AEP from a larger project, the LAX Expansion Project, for which the FAA is preparing an EIS. The Tribe claims that: (1) the two projects are “connected” and thus should be considered in the same EIS; (2) the FAA should have considered the growth-inducing impact of the AEP on the Expansion Project; and (3) the FAA failed to consider the cumulative impact of the two projects. 1. Connected Actions CEQ regulations require “connected actions,” meaning those that are closely related, to be discussed in the same EIS. 40 C.F.R. § 1508.25(a)(1). Although federal agencies are given “considerable discretion” in defining the scope of an EIS, connected actions must be considered together in order to preclude an agency from “divid[ing] a project into several smaller actions, each of which might have an insignificant environmental impact when considered in isolation, but which taken as a whole have a substantial impact.” Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 56 F.3d 1060, 1068 (9th Cir.1995) (“NRIC ”). Actions are connected if they: “(i) Automatically trigger other actions which may require environmental impact statements, (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously, (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(1). In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), we concluded that the construction of a road in a forest and the sale of timber were connected actions within the meaning of the CEQ regulations. Because the timber sales could not proceed without the road, and the road would not have been built but for the timber sales, the two were “inextricably intertwined.” Id. at 759. The analysis of Thomas was closely followed in Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir.1988), in which we similarly found a “clear nexus” between timber sales and the improvement of a road. In Save the Yaak Comm., there was “no indication that the road was reconstructed for any ... reason” other than the timber sales. Id. By contrast,, we rejected a claim that actions were “connected” when each of two projects would have taken place with or without the other and thus had “independent utility.” NRIC, 56 F.3d at 1068. In NRIC, both an ongoing salmon transportation program and proposed river flow improvement measures “could exist without the other, although each would benefit from the other’s presence.” Id. at 1069 (quoting Sylvester v. United States Army Corps of Eng’rs, 884 F.2d 394, 400 (9th Cir.1989)). Unlike Thomas and Save the Yaak Comm., but like NRIC, the AEP and the LAX Expansion Project have independent utility. There is no indication in the EA or ROD that the AEP would not have been implemented apart from the Expansion Project. On the contrary, the primary purpose of the AEP was to deal with existing problems of delay and inefficiency in the arrival system. In describing the need for the AEP, the FAA did discuss the increase in LAX air traffic since 1980 and the projected increase in the future. The FAA stated that “the current problems will only become more serious as traffic at LAX increases.” However, the stated purpose of the project was “to improve the efficient use of airspace, reduce air traffic delays, balance controller workload, and improve coordination among controllers.” Thus, although the FAA was concerned about the pressure that increased traffic would place on the system, the purpose of the AEP was to deal with existing problems caused by the inefficient “use of airspace for arrivals to LAX from the east.” The ROD similarly focused on the delay and inefficiency caused by the former system and stated that the AEP would “improve the safety of air traffic operations by reducing congestion in the airspace and air traffic controller workloads.” Thus, although growth at LAX would exacerbate the problems being addressed by the project, the AEP was necessarily independent of any future expansion of the airport. 2. Growth-Inducing Impact The Morongo Band contends that the FAA improperly failed to consider the “growth-inducing” impact of the AEP, as required by 40 C.F.R. § 1508.8(b) (defining “indirect effects” as those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable,” including “growth inducing” effects). The Tribe’s argument centers on the point that the AEP removes a constraint to growth at LAX because, without the project, growth could not occur safely. The EA does not discuss the growth-inducing impact of the AEP. This fact, however, is not dispositive. In Seattle Community Council Fed’n, the FAA did not consider cumulative effects caused by the expected increase in air traffic after changes in flight patterns were implemented. In considering whether that failure required remand for the FAA to consider the issue, we focused on the stated purpose of the plan and concluded that, although the increased efficiency and reduction in delays would “necessarily allow the volume to increase,” the plan was intended to and did deal with the existing air traffic. 961 F.2d at 835. The increased air traffic caused by the plan therefore was not considered to be a growth-inducing effect under 40 C.F.R. § 1508.8(b). Id. Similarly, in City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1162 (9th Cir.1997), we acknowledged that a planned freeway “may induce limited additional development,” but reasoned that it was “the existing development that necessitate^] the freeway.” By contrast, in City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975), the area was not already well developed and so the construction of a freeway interchange would necessarily lead to development. Growth certainly may be a foreseeable indirect effect of the AEP. However, the project was implemented in order to deal with existing problems; the fact that it might also facilitate further growth is insufficient to constitute a growth-inducing impact under 40 C.F.R. § 1508.8(b). 3. Cumulative Impact The Tribe argues that the FAA failed to consider the cumulative impact of the AEP with the Expansion Project. An agency is required to consider cumulative impacts in an EIS, meaning actions that “when viewed with other proposed actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25(a)(2); see Association of Pub. Agency Customers, 126 F.3d at 1184; City of Carmel-by-the-Sea, 123 F.3d at 1160. A cumulative impact is defined as: the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7. In its discussion of cumulative actions, the FAA noted that one action that could have a cumulative impact was an “increase in the number of flights to LAX using the proposed new alternative flight routes.” The agency concluded, however, that this increase would not have a significant impact, noting that the noise consequences were considered in Section 4.1. Other actions potentially having a cumulative impact were increases in traffic at other airports in the area affected by the AEP. Regarding this concern, the FAA stated that “the noise analysis has demonstrated conclusively that the increases in noise attributable to the proposed project are extremely small” and further pointed out that other airport projects would deal with noise impacts in their own EAs or EISs. Finally, the FAA noted that the AEP would have no significant impact on air quality and explained why other increases in high altitude ah- traffic in the area affected by the AEP would not affect air quality in the Los Angeles coastal basin. Assuming that the cumulative impacts of the Expansion Project should have been considered in the EA, because it appears to be a project that is both foreseeable and similar to the AEP, as both projects deal with increasing arrivals at LAX, see Resources Ltd., 35 F.3d at 1306 (“Where several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.”) (internal quotations and citation omitted), this requirement was met. The FAA relied on projections from the LAX Master Plan study and the Southern California TRACON in order to derive data for its noise analysis. Thus, when the agency made projections about aircraft arrivals in the years 2000 and 2015 throughout its noise analysis, it necessarily considered the cumulative impact of increased traffic due to the Expansion Project. The projected increases in arrival traffic at LAX, and the resulting impacts on noise levels, were fully integrated into the FAA’s noise analysis, thus fulfilling the agency’s requirement to consider cumulative impacts. IV. NHPA Claims NHPA requires a federal agency to “take into account the effect of [any] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f. The agency also must give the Advisory Council on Historic Preservation a “reasonable opportunity to comment with regard to such undertaking.” Id. In consultation with the State Historic Preservation Officer (“SHPO”), the official responsible for representing the interests of the State and its citizens, 36 C.F.R. § 800.1(c)(1)(h), the agency “shall make a reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register.” 36 C.F.R. § 800.4(b). An agency has satisfied the NHPA process if it shows that the project will have no adverse effect on historic resources, submits documentation of this finding to the SHPO for review, and the SHPO does not object within 15 days. 36 C.F.R. § 800.5(b). The Tribe contends that the FAA violated NHPA by failing to prepare an EIS as required by NHPA and FAA Order 1050.1D and by failing to obtain the Tribe’s consent for the AEP. A. Preparation of EIS The Morongo Band cites FAA Order 1050.1D, ¶ 37.a(l), which states that an EIS shall be prepared if an FAA action has an effect that is “not minimal” on properties protected by NHPA. In the EA, the FAA stated that the only change caused by the AEP would be increased “high altitude aircraft overflights.” According to the EA, the altitude of LAX traffic overflying the Reservation would be 18,000 feet above sea level, or 16,000 feet above ground level. Thus, the FAA’s noise, land use, and visual impact studies all concluded that the project would cause no adverse impacts, leading to the conclusion that historic resources would be “unaffected” by any of the alternatives. Id. Because the effect would be minimal, an EIS was not required pursuant to FAA Order 1050.1D. The Morongo Band relies on Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir.1995), in which the Tenth Circuit held that the agency did not make a reasonable effort to identify property eligible for the National Register because it failed to follow up on information indicating the existence of such property. Id. at 860 (“a mere request for information is not necessarily sufficient to constitute the ‘reasonable effort’ [NHPA] requires”). The court also held that the Forest Service failed to make a good faith effort to identify cultural property in the canyon, because the agency told the SHPO . that there was no evidence of such property when, in fact, the agency had withheld from the SHPO two affidavits alluding to sacred sites and traditional ceremonies in the canyon. Id. at 862. Like the Forest Service in Pueblo of Sandia, the FAA made only a “request for information” and did not follow up on a letter from the Tribe, although the letter indicated the possibility of historic or cultural property in the area. This case, however, is distinguishable from Pueblo of Sandia. Here, the FAA’s conclusion was not based on a finding of no cultural properties in the area, but on the fact that the noise and other studies showed that there would be no impact on any type of property in the project area. Thus, the failure to identify specific potential sites or properties is irrelevant. The FAA informed the California SHPO of its finding that the AEP would have “no effect on cultural values,” submitting as documentation the draft EA. The SHPO had no objection to the FAA’s determination of no effect on historic properties because of “the unique high altitude nature of the undertaking.” The Morongo Band has failed to establish that the agency’s studies were arbitrary or capricious; thus, the FAA did not violate NHPA. B. Failure to Obtain Consent The Tribe argues that NHPA required the FAA to obtain the Tribe’s consent before implementing the AEP. The regulations state: The Agency Official, the [SHPO], and the Council should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement. 36 C.F.R. § 800.1(c)(2)(iii). Consent is required, however, only if the action is found to have an effect on the land and, here, a finding of no effect was made. The Tribe cites Attakai v. United States, 746 F.Supp. 1395, 1408 (D.Ariz.1990), which discusses the importance of an Indian tribe’s concurring “in any agreement regarding undertakings which affect its lands.” The projects in Attakai, however, involved the construction of three fence lines, a pipeline and a tank on the land. Id. at 1399. There is no question that the projects affected the Indian lands in Attakai, whereas the effect in the instant case is much more remote. Where, as here, any effect is insignificant or minimal, the FAA was not required to obtain the Tribe’s consent before implementing the AEP. V. Transportation Act Claim Finally, the Tribe claims that the FAA violated section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), which provides that a transportation project may “use” historic sites only if (1) there is no prudent and feasible alternative, and (2) the project includes all possible planning to minimize harm to the site resulting from the use. “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.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). The section’s provisions, however, do not apply unless there is a determination that the land is to be “used.” Id. The EA quotes an FAA Order that provides that an action is compatible with the normal activity associated with land and, therefore, does not constitute “use” under section 4(f) if the action “would not affect the normal activity or aesthetic value of’ the land. (Quoting FAA Order 5050.4A, Airport Environmental Handbook.) The FAA acknowledged that aircraft noise levels that “substantially interfere” with the use or value of section 4(f) property would constitute constructive use. The noise analysis in Section 4.1 concluded, however, that the resulting noise would not be “loud enough to create significant impacts anywhere along either of the proposed alternative routes (Routes 4 and 4a).” The FAA also discussed potential visual impacts and concluded that the project would not cause significant visual impacts. “[S]ection 4(f) will not be invoked where the activity complained of will have only an insignificant effect on the existing use of the parkland.” Allison, 908 F.2d at 1030. The FAA undertook a thorough analysis in the EA and concluded that the AEP would have only an insignificant impact on the existing use of the land. We do not find that this decision was arbitrary or capricious. CONCLUSION The FAA’s decision to implement the AEP was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The FAA did not violate NEPA, NHPA, or the Transportation Act. Accordingly, the Morongo Band’s petition for review is DENIED. . McCort worked for the FAA in various capacities for a number of years. . CNEL stands for "community noise equivalent level," the standard adopted in California for the measurement of noise levels in airport noise studies. The CNEL measurement is similar to the day-night sound level (DNL or Ldn) standard that the FAA uses for airport noise studies in all other states. Ldn measures cumulative noise exposure over a 24-hour period and is generally designed to determine the potential of noise to interfere with human activity. . Bill Johnstone of the FAA stated in his declaration that the City of Los Angeles is "midway" through the "airport redevelopment planning process,” i.e., the LAX Master Plan (which we assume is the "LAX Expansion Project” to which the Tribe refers), and that the draft EIS is to be published in September, 1998. . The portions of the draft EA dealing with the AEP's impact on historic property are essentially identical to those in the final EA.

Globe Newspaper Co. v. Beacon Hill Architectural Commission

TORRUELLA, Chief Judge. We visit this controversy for the second time in as many years. See Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 40 F.3d 18 (1st Cir.1994). We are left to decide important issues that require a balancing between First Amendment rights and governmental interests. Defendant-Appellant Beacon Hill Architectural Commission (the “Commission”) enacted a regulation, the Street Furniture Guideline, which effectively bans newspaper distribution boxes from the public streets of the Historic Beacon Hill District in Boston, Massachusetts (the “District”). The validity of this regulation was challenged in a suit filed in district court by Plaintiffs-Appellees, a group of newspaper publishers (the “Newspapers”). The district court held that the Commission lacked the authority to adopt the regulation and also that it violated rights guaranteed by the First Amendment. See Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 847 F.Supp. 178 (D.Mass.1994). In the ensuing appeal by the Commission, we concluded that the appropriate course of action was to certify the dispositive issue of state law to the Supreme Judicial Court of Massachusetts (the “SJC”) and so proceeded. To the question Did the Beacon Hill Architectural Commission have the authority under 1955 Massachusetts Act Chapter 616 (as amended) to adopt the “Street Furniture Guideline”? the SJC answered in the affirmative. See Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 421 Mass. 570, 659 N.E.2d 710 (1996). In its response, the SJC held that the Commission had authority to regulate newsracks and other “street furniture” through rulemaking and to completely ban entire classes of structures such as news-racks. Id. at 590-91, 659 N.E.2d 710. Specifically, it said: As to streets and sidewalks, the [Cjommission’s jurisdiction is concurrent with appropriate municipal agencies. Regulation of the sidewalks is rationally related to the goal of preserving the Historic Beacon Hill District. Section 4 of the enabling [A]ct provides the [Commission with the authority to issue rules that govern private conduct within its particular geographic area of responsibility. We conclude that, apart from constitutional considerations, outright bans on certain classes of structures are merely a practical consequence of the [Commission’s ability to proscribe inappropriate exterior architectural features within the [District. Id. We thus focus our attention on the constitutional issue, which requires us to determine whether the Street Furniture Guideline violates rights guaranteed by the First Amendment to the Newspapers. We conclude that it does not and reverse the decision of the district court. BACKGROUND The Historic Beacon Hill District was created by an act of the Massachusetts General Court in 1955. See 1955 Mass. Acts ch. 616 (“the Act”), as amended by 1958 Mass. Acts ch. 314 & 315, 1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts ch. 741, and 1982 Mass. Acts ch. 624. The Act is intended to promote the educational, cultural, economic and general welfare of the public through the preservation of the historic Beacon Hill district, and to maintain said district as a landmark in the history of architecture and as a tangible reminder of old Boston as it existed in the early days of the commonwealth. 1955 Mass. Acts ch. 616, § 2. The District’s historical significance can hardly be doubted. See Opinion of- the Justices, 338 Mass. 783, 786-87, 128 N.E.2d 563 (1955). Indeed, it was listed in the National Register of Historic Places and designated a National Historic Landmark on October 15, 1966, pursuant to the National Historic Preservation Act of 1966,16 U.S.C. § 470 et seq. The Commission was created to review proposed changes to the “exterior architectural feature[s]” of “structures” within the District. See 1955 Mass. Acts ch. 616, § 7; see also id. at § 3 (defining an “exterior architectural feature”); Mass. Gen. L. ch. 143, § 1 (providing definition of “structure”); Globe Newspaper, 40 F.3d at 20. Anyone wishing to construct, reconstruct or alter an exterior architectural feature is required to apply to the Commission for a certificate of appropriateness. The Commission, “[i]n passing upon appropriateness,” shall consider, inter alia, “the historical and architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood.” 1955 Mass. Acts ch. 616, § 7. Furthermore, the Commission must “spread upon its records the reasons for [its] determination” that a certificate of appropriateness should not issue. Id. An aggrieved party may appeal the Commission’s decision to the Superior Court for Suffolk County, which “shall annul the determination of the [CJommission” if it is “unwarranted by the evidence” or “insufficient in law.” Id. at § 10. As previously noted it was not surprising that, “given the stream of applications for certificates of appropriateness, the Commission developed uniform policies toward certain recurring types of proposed alterations.” Globe Newspaper, 40 F.3d at 20. Specifically, in 1981, it formally adopted the policies as “guidelines.” These guidelines regulate exterior architectural features such as masonry, roofs, windows, sash and shutters, doors, trim, paint, and ironwork. One of the guidelines states that “[fjreestanding signs are not permitted.” In the District, the Newspapers distribute their publications via home delivery, mail, store sales, street vendors, and “news-racks.” Newsracks, we explained, are newspaper distribution boxes painted in various colors and featuring the name of the newspaper and other advertising logos, which are commonly anchored to lampposts, signposts, or fixtures on the sidewalk. The plaintiffs maintain a total of thirty-nine newsracks in the district. Within the District, there are eleven stores that distribute, or are available to distribute, the Newspapers’ publiea-tions. Outside the District, but within one block of the District’s boundaries, the Newspapers’ publications are sold through stores and newsracks. It is undisputed that no point within the District is more than 1,000 feet (approximately 1/5 of a mile) from a source of the Newspapers’ publications. Newsracks were first introduced to the District in the early 1980s, and by 1983, Beacon Hill residents had begun to complain of the “unsightliness, congestion and inconvenience associated with the vending machines.” The Commission believed that the newsracks violated the guideline prohibiting free-standing signs. It took no enforcement action, however, because a city-wide regulation of newsracks was being discussed in the early 1980s. In 1990, no regulation having been adopted, the Beacon Hill Civic Association petitioned the Commission for a guideline to exclude newsracks from the District. After holding a public meeting regarding the petition, the Commission conducted a survey and completed, in January, 1991, a study entitled the “Publication Distribution Box Report” (the “Report”). See Exhibit H (in the record). Soon thereafter, on February 21, 1991, the Commission held a public hearing on the proposal to adopt guidelines for newsracks and, ultimately, adopted the following guideline: Publication distribution boxes (any boxes placed on the sidewalks to distribute publications, whether for charge or not) visible from a public way are not allowed within the District. In its decision, the Commission indicated that the publication distribution guideline (“PDG”) was consistent with its guideline banning freestanding signs and the Commission’s decisions denying the installation of traffic signal control boxes on the sidewalks, and the regulation of the installation of a cable television system in the District. A few months later, on April 1, 1991, the Commission notified the Newspapers of the new guideline. One month later, it requested that the Newspapers remove their news-racks by June 1, 1991. Then, after the Newspapers requested that the Commission reconsider its decision to adopt its regulation, the Commission heard testimony from the Newspapers in July, 1991. After voting to deny reconsideration, the Commission extended the removal deadline until October 1, 1991. Within a month, the Newspapers brought suit in district court seeking declaratory relief, damages, and preliminary and permanent injunctive relief from the regulation, on the grounds that it violated their First Amendment right to distribute newspapers in the District. After a bench trial on stipulated facts, the court ruled from the bench that the regulation offended the First Amendment: ..., “instead of being narrowly tailored with respect to the limitation on speeeh[, the PDG] is narrowly tailored to focus only on speech. It applies to no form of visual clutter other than public[ation] distribution boxes_” Significantly, the trial judge was “troubled whether there is statutory authority for the particular kind of legislative rule making” illustrated by the guideline. He did not decide the ease on state law grounds, however, because “the questions about the Architectural Commission’s authority are at least debatable on the present record ... and perhaps would require some supplementation of the record in order for the Court to resolve them.... ” Globe Newspaper, 40 F.3d at 20 (quoting bench trial transcript). After the bench ruling but before judgment had entered, the Commission adopted a new guideline — the present Street Furniture Guideline — that bans all “street furniture,” not just newsracks, from the District: Street furniture, as defined below, shall not be permitted in the Historic Beacon Hill District with the exception of approved store-front merchandise stands and those structures erected or placed by authorized public’ agencies for public safety and/or public welfare purposes. Street furniture is defined as any structure erected or placed in the public or private ways on a temporary or permanent basis. Authorized public safety/public welfare street furniture includes, but is not limited to, such structures as street lights, traffic lights, mail boxes, fire hydrants, street trees, and trash receptacles. Any such authorized public safety/public welfare street furniture or approved store-front merchandise stands shall be subject to Commission review and shall be in keeping with the architectural and historic character of the District and the criteria for exterior architectural features as specified in Chapter 616 of the Acts of 1955 as amended. Having done so, the Commission moved for reconsideration of the judgment, arguing that the new guideline was free from'the constitutional defects of the old. This time, the district judge not only held that the new guideline fared no better under the First Amendment, but also that the Commission lacked authority under Massachusetts law to adopt the new regulation. See Globe Newspaper, 847 F.Supp. at 189. DISCUSSION I. The First Amendment and the Street Furniture Guideline A. Standard of Review In an appeal from an adverse ruling after a bench trial on the merits, our review is ordinarily quite circumscribed: we review de novo the district court’s legal determinations, according a significant amount of deference to the court’s factual determinations and to most of its resolutions of mixed fact/ law issues, letting them stand unless they are clearly erroneous. See AIDS Action Comm. v. MBTA, 42 F.3d 1, 7 (1st Cir.1994). In a case such as this one, however, “where the trial court is called upon to resolve a number of mixed fact/law matters which implicate core First Amendment concerns, our review, at least on these matters, is plenary so that we may reduce the likelihood of ‘ “a forbidden intrusion on the field of free expression.” ’ ” Id. (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S, 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964))). Besides furthering other interests, see AIDS Action, 42 F.3d at 7, “de novo review of the trial court’s application of a First Amendment standard to the facts before it ‘ensures that the. federal courts remain zealous protectors of First Amendment rights.’ ” Id. (quoting Duffy v. Sarault, 892 F.2d 139, 142-46 (1st Cir.1989)). B. Legal Framework The First Amendment states that “Congress shall make no law ... abridging the freedom of speech, or of the press.” U.S. Const, amend. I. It is beyond dispute that the right to distribute newspapers is protected under the First Amendment. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 768, 108 S.Ct. 2138, 2150, 100 L.Ed.2d 771 (1988); Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938); Gold, Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 337, 133 L.Ed.2d 236 (1995). Here, the parties do not dispute that the Street Furniture Guideline effectively bans the use of newsracks as a method of distributing newspaper in the District. The issue, of course, is whether under the circumstances of the case, the Newspapers’ First Amendment rights are impinged. We know that few constitutional rights, if any, are absolute, and in most constitutional litigation what courts are called upon to do is to balance competing fundamental rights. See, e.g., Denver Area Educ. Telecommunications Consortium, Inc. v. Federal Communications Comm’n, — U.S. -, -, 116 S.Ct. 2374, 2384, 135 L.Ed.2d 888 (1996); Board of County Comm’rs v. Umbehr, — U.S. -, -, 116 S.Ct. 2342, 2352, 135 L.Ed.2d 843 (1996). Such is the present situation. It is by now axiomatic that the degree of protection provided by the Constitution depends “on the character of the property at issue.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). In the instant case, the “property at issue” is the District’s streets and sidewalks. The Supreme Court has repeatedly recognized public streets “as the archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (noting that “[n]o particularized inquiry into the precise nature of a specific street is necessary” as all public streets are public fora). In these traditional public fora, “places which by long tradition or by government fiat have been devoted to assembly and debate,” Perry, 460 U.S. at 45, 103 S.Ct. at 954, government’s authority to restrict speech is “sharply circumscribed.” Id. As the Court in Perry explained, [f]or the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Id. In traditional public fora, content-based restrictions are presumptively invalid and subject to “strict” scrutiny. See, e.g., Ackerley Communications of Mass., Inc. v. City of Cambridge, 88 F.3d 33, 36 (1st Cir.1996); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995). The Court in Perry made clear, however, that in traditional public fora [t]he state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Such time, place, and manner regulations are subject to “intermediate” scrutiny. See, e.g., National Amusements, 43 F.3d at 736. Given the “differing analytic modalities, it is unsurprising that many First Amendment battles over the constitutionality of government regulations start with a debate about what level of scrutiny is appropriate.” Id. at 737. The instant case is no exception. The key issue is thus determining whether the Street Furniture Guideline is content-based or otherwise has a content-based impact in which publications, particularly newspapers, are singled out for negative treatment, as is claimed by the Newspapers, or is content neutral on its face and application, as is alleged by the Commission. The answer to this inquiry will allow us to establish what level of scrutiny, strict or intermediate, is appropriate, a finding which will ultimately settle the outcome of this controversy. C. Content-Neutrality and Content-Based Impact As this circuit has noted, “[t]he concept of what constitutes a content-based as opposed to a content-neutral regulation has proven protean in practice.” Id. at 737. The Court’s cases “teach that the ‘principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ ” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)). “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791, 109 S.Ct. at 2754. Under this test, the Street Furniture Guideline seems to be the very model of a content-neutral regulation. It does not make or otherwise demand reference to the content of the affected speech, either in its plain language or in its application. Indeed, as applied to newsraeks, it operates as a complete ban without any reference to the content of a given publication whatsoever: uniquely concerned with the physical structure housing the speech, it restricts only the mode of distribution and would plainly apply even if they were empty. As such, it seems to be an example of the very kind of total ban on newsraeks which Justice Stevens was willing to assume arguendo might be constitutional in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427-28, 113 S.Ct. 1505, 1515-16, 123 L.Ed.2d 99 (1993) (holding ban on newsraeks to be content-based because determining whether a news-rack fell within ban required reference to a publication’s content). Furthermore, like the ban on posted signs which the Court upheld in Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 104 S.Ct. 2118, 2128-29, 80 L.Ed.2d 772 (1984), the Street Furniture Guideline is directed at aesthetic concerns and is unrelated to the suppression of ideas: indeed, nothing in the record suggests that the challenged regulation arose out of an effort to suppress any particular message communicated through the newsraeks, nor do the Newspapers even contend as much. That the Street Furniture Guideline results in a total ban on newsraeks is nothing more than an incidental effect of its stated aesthetic goal of enhancing the historic architecture of the District by reducing visual clutter: there is nothing in the record to contradict this. The Newspapers contend, however, that this directive has a content-based impact, because it singles out publishers, and most significantly daily newspapers," serving Boston for special, negative treatment. In advancing its “targeting,” “differential treatment,” and “censorial effects” arguments, the Newspapers urge us to test the Street Furniture Guideline against Minneapolis Star & Tribune v. Minnesota Comm’r of Rev., 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). The district court, in their view, correctly concluded that because the regulation exempts store-front merchandise and public safety/welfare structures, it singles the press for special treatment and, thus, raises “similar concerns ... of ‘censorial effects’ ” as found by the Court in Minneapolis Star. Globe Newspaper, 847 F.Supp. at 199. We disagree. As an initial matter, we are of the view that reliance upon Minneapolis Star by both the Newspapers and the district court is. misplaced in the instant case. First, Minneapolis Star, one of a line of cases establishing rules for the economic regulation of the press, did not involve a time, place and manner restriction. The tax on newsprint there was held unconstitutional, because it applied only to the press and discriminated in favor of one class of publishers over another; i.e., it was not generally applicable. Minneapolis Star, 460 U.S. at 581, 103 S.Ct. at 1369-70. More importantly, unlike the Street Furniture Guideline which adversely affects only one method of distribution, the regulation there rendered all forms of circulation more burdensome. Second, unlike the case of a discriminatory tax, the Commission asserts, and the Street Furniture Guideline present regulation advances, colorable non-content-discriminatory purposes: aesthetics. Last, we believe it is not coincidental that neither of the two newsrack eases decided by the Court, Discovery Network and Plain Dealer, engaged in a Minneapolis Star analysis. Indeed, none of the cases that have dealt with restrictions on newsracks have found the restrictions to be content-based, have a content-baséd impact, or otherwise trigger strict scrutiny because they singled-out the press for regulation; in fact, Minneapolis Star is not even mentioned in the two newsrack cases decided by the Court. See generally Discovery Network, 507 U.S. 410, 113 S.Ct. 1505; Plain Dealer, 486 U.S. 750, 108. S.Ct. 2138. That aside, even “inspect[ing] this case through the precedential prism of Minneapolis Star and Leathers,” National Amusements, 43 F.3d at 740, leaves us unpersuaded that there is a cognizable basis for invoking strict scrutiny. In National Amusements, a panel of this court extensively discussed Minneapolis Star and Leathers. After noting the Court’s statement in Minneapolis Star that “differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and [that] such a goal is presumptively unconstitutional,” Minneapolis Star, 460 U.S. at 585, 103 S.Ct. at 1372, the panel went on to discuss that in Leathers “the Court refined the analysis it had crafted in Minneapolis Star[.T National Amusements, 43 F.3d at 739. Leathers explains “that targeting engenders strict scrutiny only when regulations (1) single out the press, (2) take aim at a small group of speakers, or (3) discriminate on the basis of the content of protected speech.” Id. at 739-40. Essentially, then, because the Street Furniture Guideline does not discriminate on the basis of content, the Newspapers’ arguments for strict scrutiny based on targeting and differential treatment hinge on one or both of the first two criteria identified in Leathers. We note first that, to the extent the Newspapers’ “targeting” and “differential treatment” arguments essentially rest upon the notion that strict scrutiny is always justified when the practical effect of a regulation is to regulate the First Amendment rights of a select group, this notion is misguided. National Amusements, 43 F.3d at 739. Simply put, this notion. flies in the teeth of the secondary effects doctrine. Under [this] formulation, any regulation that has an effect on fewer than all First Amendment speakers or messages could be deemed to be a form of targeting and thus subjected to strict scrutiny. Yet the Supreme Court has recognized that a municipality lawfully may enact a regulation that “serves purposes unrelated- to the content of expression ... even if it has an incidental effect on some speakers or messages but not others.” Id. at 740 (quoting Ward, 491 U.S. at 791, 109 S.Ct. at 2754). More importantly, [i]n Minneapolis Star, the Court did not condemn all regulations that single out First Amendment speakers for differential treatment; rather, the Court acknowledged that certain forms of differential treatment may be “justified by some special characteristic” of. the regulated speaker. National Amusements, 43 F.3d at 740 (quoting Minneapolis Star, 460 U.S. at 585, 103 S.Ct. at 1372 (emphasis added)). Most relevant to the instant case, noting that “[s]ec-ondary effects can comprise a special characteristic of a particular speaker or group of speakers,” this court concluded that “the language ... quoted from Minneapolis Star comfortably accommodates an exception to the prohibition on differential treatment for regulations aimed at secondary effects, so long as the disparity is reasonably related to a legitimate government interest.” National Amusements, 43 F.3d at 740. The Street Furniture Guideline falls within that exception. As an initial matter, we note that there is no indication that the Commission’s alleged “targeting” or “differential treatment” was done in a purposeful attempt to interfere with the Newspapers’ First Amendment activities: while it clearly takes away one method of distribution, other methods are left untouched. See ante at 179 n. 1 and at 180 n. 3; see also Gold Coast, 42 F.3d at 1345 (rejecting disparate treatment argument where there was no evidence regulation was enacted because of a dislike with the message conveyed). Cf Leathers, (finding tax measure avoided pitfalls because, for example, there was “no indication” that Arkansas “targeted cable television in a purposeful attempt to interfere with ... First Amendment activities”). More importantly, “street furniture” can obviously create or add to visual clutter in different ways such that solutions calling for differential treatment might be warranted. Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 929-30, 89 L.Ed.2d 29 (1986) (noting that city treats certain movie theaters differently based on the markedly different effects upon their surroundings). See Discovery Network, 507 U.S. at 430, 113 S.Ct. at 1517 (noting that unlike speech in Renton “there [were] no secondary effects attributable to” the commercial-publication newsracks that distinguished them from the non-commercial publications newsracks). While the Newspapers complain that the Street Furniture Guideline “affects no other similarly situated object” in the District, the truth of the matter is that there simply is no other such object. Not only is there no record evidence that any other entity — public or private — uses newsracks or other objects that are similarly anchored to lampposts, signposts, or fixtures on the sidewalks to distribute its product to the public, but there is also no record evidence that such an entity would not be subject to the challenged regulation. In our view, that there is no such evidence, let alone a suggestion to that effect, only underscores the “uniqueness” of the newsracks and the way in which they impact upon the District. In reaching our conclusion, we are not swayed by the district court’s findings that “[g]overnmentally-placed street furniture is exempted, and merchandise-store fronts are subjected to no more stringent review than they ever were” and/or that the “only apparent effect of the [Street Furniture Guideline] will be the removal of [the Newspapers’] publication boxes.” Globe Newspaper, 847 F.Supp. at 199. Contrary to the Newspapers’ contentions, that exempt street furniture, store-front signs, or other tangible signs of modern life may also constitute or add to “visual clutter” does not necessarily render the differential treatment unjustified: this argument ignores legitimate, if not obvious, differences among those on-street or other visible objects that are essential to the public safety and welfare — street and traffic lights, mail boxes, fire hydrants, street trees, traffic and parking signs, trash receptacles, parking meters and hitchposts — and the preferred distribution means of private entities. See Plain Dealer, 486 U.S. at 797-98, 108 S.Ct. at 2165 (Rehnquist, J., dissenting) (finding difference between “public services of a quasi-governmental nature” and newsracks to be significant). Although the record is devoid of any facts regarding store-front stands, the Newspapers’ argument also seems to ignore practical and historical differences between merchants’ on-site signs and bulky newsracks anchored along the sidewalks. It is safe to assume, at least in the absence of record evidence to the contrary, that the newsracks’ overall bulky structure is reasonably predictable as compared to store-front signs, which lend themselves more readily to case-by-ease review: designing the newsracks’ appearance may reduce their complained-of “unsightliness” but it does not eliminate their complained-of “congestion and inconvenience.” Perhaps most importantly, we disagree with the district court’s conclusion that, as in Minneapolis Star, “[sjimilar concerns ... in the sense of ‘censorial effects’ are raised by the ... Street Furniture Guideline[ ],” Globe Newspaper, 847 F.Supp. at 199. Not only is there nq record evidence to support the conclusion that, because of the regulation, publishers might be chilled by the threat of restrictions on other methods of, distribution, we fail to countenance any reasonable basis upon which to ground such a fear: none of the other methods of distribution depend upon structures which are subject to the Commission’s jurisdiction. Furthermore, because it is a complete ban upon newsracks, it does not provide for, or otherwise grant, the Commission any — let alone unbridled — discretion in determining what newsracks will be allowed. See Plain Dealer, 486 U.S. at 769-72, 108 S.Ct. at 2150-52. As to the Newspapers’ claim that the censorial effects of the Street Furniture Guideline extend beyond the District, we find nothing in the record, other that this bald assertion, to merit such a conclusion. The allegation that this regulation “sends affected publishers the message that if they criticize, annoy or otherwise offend any official with power over any forum, they may face another expensive and futile court battle” implies that the Commission has acted in a retaliatory manner by enacting this legislation, an argument which is totally unsupported by any evidence. Finally, we are unpersuaded by the Newspapers claim that, because the regulation deprives publishers of an already significant and still growing percentage of their readers, its impact is hardly “incidental.” While, as alleged by the Newspapers, newsracks may indeed be the “indisputable workhorse” of the daily press (a contention belied by the evidence regarding the District, ante at 179 n. 1), nothing in the record suggests, let alone demonstrates, how the removal of the District’s newsracks is so burdensome that it is not “incidental.”' As we see it, the Newspapers’ complaint boils down to the potential reader passing through the District or the non-subscribing resident and, as we discuss later, ample alternative channels exist for the Newspapers to reach even these accidental transients passing through the District as well as those readers with more frequent ties to the District. In sum, we find no cognizable basis for invoking strict scrutiny and, thus, apply an intermediate level of scrutiny. D. The Street Furniture Guideline Under Intermediate Scrutiny Strict scrutiny aside, restrictions on the time, place and manner of protected expression in a public forum — and the Street Furniture Guideline’s effective ban on news-racks upon the District’s public and private ways certainly qualifies as such a restriction — should be upheld so long as they are “content-neutral, ... narrowly tailored to serve a significant governmental interest, and allow for reasonable alternative channels of communication.” Perry, 460 U.S. at 45, 108 S.Ct. at 955; see Discovery Network, 507 U.S. at 428-431, 113 S.Ct. at 1516-18 (applying time, place, and manner test to regulation of newsracks in public forum); Plain Dealer, 486 U.S. at 763, 108 S.Ct. at 2147 (noting that the Court would apply time, place, and manner test to a hypothetical ordinance completely prohibiting a particular manner of expression); see also National Amusements, 43 F.3d at 741 (citing other cases). Cf. Capitol Sq. Review Bd. v. Pinette, — U.S. -, -, 115 S.Ct. 2440, 2446, 132 L.Ed.2d 650 (1995) (noting that “a ban on all unattended displays ... might be” a reasonable, content-neutral time, place and manner restriction). As we have already discussed, the Street Furniture Guideline is content-neutral. We turn, thus, to the remainder of the analysis. Aesthetics: A Significant Government Interest? Pointing to the fact that preservation- of the District “as a landmark” is mandated by state law, see Acts of 1955, eh. 616, § 12, the Commission contends that its interest in preserving the District’s historic and architectural character is a substantial government interest that justifies a narrowly tailored restriction. The Newspapers roundly disagree, arguing that the Commission’s invocation of its statutory purpose cannot justify a ban of newsracks in a public forum. The district court did not decide either way. Instead, it took for granted that the Commission satisfied the significant government interest prong when it “assume[d] arguendo that the Commission’s [a'Jesthetie interest is greater than that of the average community, because [the District] has been designated a special historic district.” Globe Newspaper, 847 F.Supp. at 194. The Commission has certainly met the “significant governmental interest” prong. On more than one occasion, the “Court has recognized aesthetics .... as [a] significant government interest! ] legitimately furthered through ordinances regulating First Amendment expression in various contexts.” Gold Coast, 42 F.3d at 1345 (citing cases). Although there is no need to accord the Commission a greater than average interest in aesthetics, it would not be unreasonable to do so given its statutory mandate as well as the District’s significance to both Massachusetts and the nation as a whole, as evidenced by its designation as a National Historic Landmark. See 36 C.F.R. § 65.2 (stating that such designations are reserved for “properties of exceptional value to the nation as a whole rather than to a particular State or locality”). We are not swayed by the Newspapers’ claim that the Commission’s aesthetic interests cannot constitute a significant government interest where a ban in a public forum is involved. Although it did not explicitly address, or otherwise test, the legitimacy of aesthetics through a public forum lens, the Court in Discovery Network acknowledged that the city’s asserted interest in aesthetics was an “admittedly legitimate” interest justifying its regulation of sidewalk newsracks. Discovery Network, 507 U.S. at 424-25, 113 S.Ct. at 1514 (holding that news-rack regulation’s distinction between commercial and non-commercial speech bore no relationship “whatsoever” to its asserted aesthetic interest). Indeed, the Newspapers’ contentions to the contrary, there is abundant authority for the proposition that aesthetic interests constitute a significant government interest justifying content neutral, narrowly tailored regulations of a public forum that leave open ample alternative channels. See, e.g., Gold Coast, 42 F.3d at 1345 (recognizing aesthetics as “significant government interest ]” when upholding ordinance regulating newsracks in traditional public forum); Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 328 (7th Cir.1991) (upholding regulation of newsracks’ advertising and size as justified by “[cjities’ [interest in] curtail[ing] visual clutter, for aesthetic and safety reasons”); Plain Dealer Publishing Co. v. City of Lakewood, 794 F.2d 1139, 1147 (6th Cir.1986) (recognizing aesthetics as a “substantial” government interest justifying total ban of newsracks in residential areas). Our conclusion that the Commission’s specified interests are “significant” does not end the inquiry. As “[i]n most cases, the outcome [of this prong] turns not on whether the specified interests are significant, but rather on whether the regulation is narrowly tailored to serve those interests.” Gold Coast, 42 F.3d at 1345. Is the Street Furniture Guideline Narrowly Tailored? ■ As the district court correctly set forth, the Court in Ward “explained that the narrow tailoring requirement does not mandate a least restrictive means analysis: ‘[r]ather, the requirement of narrow tailoring is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” National Amusements, 43 F.3d at 744 (quoting Ward, 491 U.S. at 799, 109 S.Ct. at 2758). The regulation will be valid if it does not burden, “substantially more” speech than is necessary to further the government interest. Ward, 491 U.S. at 799, 109 S.Ct. at 2758; see Gold Coast, 42 F.3d at 1345. Where aesthetic interests are at play, the challenged regulation must be judged by overall context: the government must show that the regulation of the feature at issue “would have more than a negligible impact on aesthetics,” which generally requires that the government be making a bona fide or “comprehensive coordinated-effort” to address aesthetic concerns in the affected community. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 531, 101 S.Ct. 2882, 2905, 69 L.Ed.2d 800 (1981). In a nutshell, the district court held that the challenged regulation did not pass muster Under the First Amendment because the Commission “has shown no reason why its interest in preserving the architectural and historic character of the [District cannot be met by, for example, subjecting newsraeks and other street furniture to the same review process as store-front merchandise racks.” Globe Newspaper, 847 F.Supp. at 194. In reaching this conclusion, the district court took its cue from the Court’s statement in Discovery Network: while a regulation need not satisfy the “least-restrictive-means” test, “if there are numerous and obvious less-burdensome alternatives to the restriction on ... speech, that is certainly a relevant consideration.” Discovery Network, 507 U.S. at 417 n. 13, 113 S.Ct. at 1510 n. 13. With this in mind, the district court observed that [t]he SFG assumes that “street lights, traffic lights, mail boxes, fire hydrants, street trees, and trash receptacles,” can be designed in such a fashion that they will be “in keeping with the architectural and historic character of the District.” The same is true for store-front merchandise stands.... There is no showing that newsraeks are any more inherently out of keeping with the architectural character of the [District] than other modem innovations that-have been approved by the Commission on the basis of their external design features. Globe Newspaper, 847 F.Supp. at 194—95. In the district court’s view, “the preference given to ‘public’ street furniture and store-front stands ... [i]s evidence that the [Street Furniture Guideline] ... is ... not narrowly tailored,” id., and “burdens substantially more speech than is necessary to serve the Commission’s interest in preserving the character of the District,” id. The Newspapers contend that this is correct. We disagree, and conclude that the regulation is narrowly tailored. First, and without a doubt, it promotes the Commission’s significant or substantial government interest in preserving the District’s aesthetics: as the SJC observed, “the [C]om-mission has determined that [newsraeks] are inappropriate, in part because they did not exist at the time with which the [C]ommission’s preservation efforts are concerned.” Globe Newspaper, 421 Mass. at 590, 659 N.E.2d 710. Second, as the Report’s review of the five available alternatives indicate, the Commission’s aesthetic interest in preserving the District’s historic and architectural character would not be achieved as effectively, absent the regulation: banning the newsracks would effectively, as the Commission’s Report observed, most completely “reverse” their inappropriateness and “be most consistent with the purposes of the [District.” Exhibit H at 7. Finally, it does so without burdening “substantially more” speech than is necessary: it does not burden, or otherwise adversely affect, any other means of distribution, including the use of street vendors in the public forum. See ante at 179 n. 1. Significantly, we note that the district court acknowledged, albeit implicitly, that the challenged regulation meets this test: nowhere in its opinion did the district court conclude that the Street Furniture Guideline would fail to advance the Commission’s interest or that its interest would be achieved as effectively absent the regulation. In reaching our conclusion, we are mindful of the district court’s “findings” that the Commission’s interest could be met by, say, “subjecting newsracks and other street furniture to the same review process as storefront merchandise racks,” and that it treats some “street furniture” with “preference.” Unlike the district court, however, we do not conclude that such findings compel a determination — at least in this ease — that the Street Furniture Guideline burdens “substantially more” speech than is necessary to accomplish its purpose and, thus, is not narrowly tailored. While the district court correctly considered the fact that less-burdensome alternatives exist, it gives too much weight to that fact alone. In so doing, it essentially discounts from the equation Ward’s inquiry into whether the Street Furniture Guideline “promotes [the Commission’s interests such] that [they] would be achieved less effectively absent the [Street Furniture Guideline].” Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (emphasis added). We explain: As an initial matter, the Court in Discovery Network explained that the existence of “numerous and obvious less-burdensome alternatives ... is certainly a relevant consideration.” Discovery Network, 507 U.S. at 418 n. 13, 113 S.Ct. at 1510 n. 13 (emphasis added). Standing alone, this plainly means that, while “certainly a relevant consideration,” id., it is not necessarily a controlling one: ie., that “numerous and obvious less-burdensome alternatives” exist does not automatically compel the conclusion that a regulation burdens “substantially more” speech than is necessary. When read in light of Ward, it becomes clear that less-burdensome alternatives must be considered in connection with the inquiry into, whether, absent the challenged regulation, the government’s interests are achieved less, effectively. Giving too much weight to the existence of alternatives, without calibrating the scales to account for differences between them and the challenged regulation in terms of overall effectiveness and impact on aesthetics, may result — as here — in error: that the record, here, reveals that the Commission’s interests are achieved less effectively absent the Street Furniture Guideline was apparently lost in the shuffle. In other words, the Court’s qualifier in Discovery Network must, in turn, be qualified — or, rather, “re-qualified” — by its language in Ward, lest Ward’s explicit rejection of the “least restrictive means” test be reduced to a meaningless phrase. As the Court made clear in Ward: So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, and manner] regulations does not turn on a judge’s agreement with the responsible decision-maker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted. Ward, 491 U.S. at 800, 109 S.Ct. at 2758 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2907, 86 L.Ed.2d 536 (1985)). As the Sixth Circuit observed, the Court “has repeatedly deferred to the aesthetic judgments of municipalities and other government bodies when evaluating restrictions on protected expression.” Gold Coast, 42 F.3d at 1346 (citing, among others, Vincent, 466 U.S. at 807, 104 S.Ct. at 2130, and. Metromedia, 453 U.S; at 512, 101 S.Ct. at 2895). Of course, as Discovery Network’s language implicitly reaffirms, courts are not merely to defer to the government’s subjective judgment; instead, aesthetic considerations must be judged by overall context and the government must make its requisite showing. Metromedia, 453 U.S. at 530, 101 S.Ct. at 2904. Under this rubric, while we do not dispute that the Commission could have adopted a less drastic solution, the fact that it chose not to does not mean that it did not “carefully ealculate[ ] the costs and benefits associated with the burden on speech imposed by [the Street Furniture Guideline].” Discovery Network, 507 U.S. at 417, 113 S.Ct. at 1510. In Discovery Network the Court found that the city there did not make a careful calculation based on the fact that it did not address its “recently developed concern about news-racks by regulating their size, shape, appearance, or number.” Id. In this regard, it also noted that the “benefit to be derived from the removal of 62 newsracks while about 1,500-2,000 remain in place was considered ‘minute’ by the [district [c]ourt and ‘paltry’ by the [e]ourt of [a]ppeals.” Id. Unlike the city in Discovery Network, however, the Commission’s actions since newsracks became a subject of concern in the early 1980s — including survey, report and public hearings — demonstrate that it carefully calculated the costs and benefits. The path it chose to follow — eliminating the newsracks altogether — is1 the most effective solution aimed at reducing visual clutter and preserving the District’s historic character. Designing the newsracks to better “blend in” and conform with the District’s architectural and historic character by having, say, an “old-fashioned” or colonial “look,” would promote the Commission’s interest by reducing their “unsightliness.” It would not achieve, however, as effective a'reduction in “the visual clutter created by their presence on the sidewalks [which] clearly detracts from the historic and architectural character of the [District,” or, for that matter, the longstanding concerns regarding “congestion and ineonvenience.” Our conclusion is not swayed by the Newspapers’ protestations that the Street Furniture Guideline, as applied to Charles Street (the most commercial in the District), is a “lost cause” and that the regulation does not remove all evidence of modern life. It is also not influenced by the district court’s finding that there has been “no showing that news-racks are any more inherently out of keeping with the architectural character of the [D]is-trict than other modern innovations.” 847 F.Supp. at 194-95. These contentions miss the point. As the SJC correctly observed, “the [C]ommission’s charge is to preserve what it can of the ... District as a tangible reminder of old Boston. That particular nonconforming uses predated that charge ..., or that certain non-conforming uses have since been allowed to continue, has no effect on ongoing attempts the [CJommission makes in preserving the [District.” Id. More importantly, as the. Court in Vincent made clear when it rejected a similar argument, “[e]ven if some visual blight remains, a partial, content-neutral ban may nevertheless enhance the City’s appearance.” Vincent, 466 U.S. at 811, 104 S.Ct. at 2132 (rejecting argument that “the validity of the [a]esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property”). Indeed, in contrast to both Vincent and Me-tromedia where the regulations were .arguably “partial-solutions,” the Street Furniture Guideline completely tackles the newsracks’ visual clutter and inappropriateness by eliminating them altogether. See Vincent, 466 U.S. at 811, 104 S.Ct. at 2132 (banning signs on public property but not private property); Metromedia, 453 U.S. at 512, 101 S.Ct. at 2895 (banning off-site advertising but not on-site advertising). What is more, the Newspapers’ argument, which is implicitly based on the notion that newsracks within the District may only be regulated as part of a comprehensive beautification or, better yet, “visual clutter reduction” plan, was rejected foursquare by the Court in Vincent, 466 U.S. at 807 n. 5, 104 S.Ct. at 2123 n. 5, and Metromedia, 453 U.S. at 511-12, 101 S.Ct. at 2894-95; see Chicago Observer, 929 F.2d at 328 (making this observation). In any event, we dismiss as disingenuous the Newspapers’ suggestion that the challenged regulation is not part of a “comprehensive” plan because it does not ban all “street furniture” or all evidence of modem life: not only is the Street Furniture Guideline consistent with its long-standing prohibition against freestanding signs, the Commission’s guidelines, review process, decisions regarding cable television control boxes and traffic control boxes, not to mention its thorough approach regarding newsracks, all speak for themselves. See Gold Coast, 42 F.3d at 1346 (finding city took several steps to enhance its1 aesthetic interest by convening a task force, conducting research, and revising ordinance). Last, but not least, contrary to the Newspapers’ suggestion, that the Street Furniture Guideline operates as a complete ban does not, by itself, mean that it is not “narrowly tailored.” While the Court has clearly “voiced particular concern with laws that foreclose an entire medium of expression,” City of Ladue v. Gilleo, 512 U.S. 43, -, 114 S.Ct. 2038, 2045, 129 L.Ed.2d 36 (1994) (invalidating ordinance banning all residential signs), bans on the use of privately owned structures or displays on public property have been upheld. See Vincent, 466 U.S. at 804-05, 104 S.Ct. at 2128-29 (upholding ban on signs posted on public utility poles). In Vincent, the Supreme Court addressed a challenge to an ordinance banning all posted signs in the city brought by supporters of a political candidate. Vincent, 466 U.S. at 792-93, 104 S.Ct. at 2122. The supporters argued that the ban unconstitutionally abridged their freedom of speech. Id. at 802-03, 104 S.Ct. at 2127. The Court recognized that the complete ban, like the ban here, “did no more than eliminate the exact source of the evil it' sought to remedy.” Id. at 808, 104 S.Ct. at 2130. The Vincent Court compared the sign ban to the ordinance banning handbilling to address littering problems that the Court struck down in Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). In making, its determination that the total ban in Vincent was narrowly tailored to serve the government’s interest in aesthetics, the Court distinguished between the state’s unconstitutional exercise of police power to regulate litter by prohibiting the distribution of handbills and the constitutional exercise of that power to completely eliminate the substantive evil addressed. Unlike the situation of littering, the evil in Vincent, as here, “is not merely a possible byproduct of the [protected expressive] activity, but is created by the medium of expression itself.” Id. at 810, 104 S.Ct. at 2131. The Court held that, because the Vincent regulation directly resolved the evil the city sought to address, the medium of expression, the regulation was narrowly tailored to the city’s interest in aesthetics and limiting visual blight. Id. Similarly, the Commission’s ban on the use of private newsracks, which are both the exact evil presented and the medium of expression, is narrowly tailored to the government interest in eliminating the visual blight and congestion on public property caused by that evil. Moreover, unlike cases where the medium of expression involves the exercise of speech by an individual or where the medium is a uniquely valuable mode of expression, see, e.g., Ladue, 512 U.S. at -, 114 S.Ct. at 2045 (citing cases), the medium of expression here is the use of a privately owned structure placed on public property for which, as we discuss below, there are ample alternative channels available for the distribution of the Newspapers’ publications. In sum, we conclude — contrary to the district court — that the Street Furniture Guideline is narrowly tailored. The Final Hurdle: Ample Alternative Channels? The district court did not reach this final prong, but we must before the full First Amendment analysis is completed. Below, and on appeal, the Commission claims that ample alternative channels exist. The challenged regulation, it points out, leaves unaffected the' Newspapers’ primary means of distribution within the District: home delivery, sales by stores, street vendors, and mail. See ante at 179 n. 1. Even without newsracks, the Commission highlights; the Newspapers’ publications are available within the District 24-hours a day, seven days a week, through private stores. Further still, it is undisputed that no point within the District is more than 1,000 feet (approximately 1/5 of a mile) from a source of publications and that adjacent to the District numerous additional sources exist, including newsracks: this, it emphasizes, is well within the 1/4 mile distance that the Sixth Circuit found sufficient in Plain Dealer when it upheld a ban on newsracks in a residential neighborhood. See Plain Dealer, 794 F.2d at 1147. Relying on Chicago Newspaper Publishers v. City of Wheaton, 697 F.Supp. 1464, 1470 (N.D.Ill.1988) (“[t]he availability of private sellers is irrelevant”); and Providence Jour nal Co. v. City of Newport, 665 F.Supp. 107, 118-19 (D.R.I.1987) (same), the Newspapers counter with the argument that the availability of private sources is irrelevant to the inquiry. Accordingly, they claim that the only relevant available means of distribution is the use of street vendors in the public forum. While street vendors are unaffected by the Street Furniture Guideline, the Newspapers nonetheless contend that, because the cost of 24-hour street vending is substantially more burdensome than placing stationary newsracks, the regulation fails to leave available any practical or economical alternative to newsracks. We are unpersuaded by the Newspapers’ arguments regarding street vendors. Without having to address the merits of whether the availability of private sources is relevant to the inquiry, or resolve whether it is appropriate to rely on the proximity of newsracks on the District’s boundaries, we conclude that there are ample alternative channels available for the distribution of the Newspapers’ publications. See ante at 179 n. 1. Throughout our analysis, we are mindful that “the lens of inquiry must focus not on whether a degree of curtailment exists, but on whether the remaining communicative avenues are adequate.” National Amusements, 43 F.3d at 745. Here, it is undisputed that the Street Furniture Guideline does not affect the Newspapers’ freedom to exercise their right to distribute publications through street vendors in the very public forum — the District’s sidewalks — from which the newsracks are banned. See Vincent, 466 U.S. at 812, 104 S.Ct. at 2132-33 (finding ample alternative channels available where ordinance “did not affect any individual’s right to exercise the right to speak and distribute literature in the same place where the posting of signs ... is prohibited”). Thus, without relying on the other current means of distribution within the District, the numerous private sources both within and without the District, or the proximity of newsracks outside the District, we conclude that the Street Furniture Guideline satisfies this last próng. We note further that street vendors — or “newsboys” per the Agreed Statement- of Facts — began hawking newspapers on the streets of Boston in approximately 1844; thus, street vending is an alternative within the public forum that is consistent with the District’s purpose. In reaching this conclusion we reject as essentially irrelevant the contention that the cost of street vendors, let alone 24-hour street vending, is substantially more costly than placing a stationary newsrack. The First Amendment does not guarantee a right to the most cost-effective means of distribution or the rent-free use of public property. Cf. Capitol Sq. Review Bd. v. Pinette, — U.S. —, -, 115 S.Ct. 2440, 2446, 132 L.Ed.2d 650 (1995) (“It is undeniable, of course, that speech which is constitutionally protected against state suppression is not thereby accorded a guaranteed forum on all property owned by the State.”); Regan v. Taxation with Representation, 461 U.S. 540, 546, 103 S.Ct. 1997, 2001, 76 L.Ed.2d 129 (1983) (rejecting the notion that “First Amendment rights are not somehow fully realized unless they are subsidized by the State”). Moreover, the Newspapers’ claim that street vendors are not a practical alternative is belied by the record, particularly with respect to the daily papers serving the Boston area: sales by street vendors for both the Boston Herald and the Boston Globe exceed those by newsracks. See ante at 179 n. 1. What is more, the record shows that newsracks come in either last or second-to-last place in terms of percentage of distribution. Id. While we do not dispute the Newspapers’ claims that newsracks provide a relatively inexpensive means of distribution, which in some cases meet distribution needs where others are either' prohibitively expensive or altogether unavailable, nothing in the record indicates how these concerns are implicated in the instant case. Indeed, there is nothing in the record to suggest, let alone show, that the newsracks within the District fulfill a unique distribution need which is not currently satisfied by other means of distribution and which could not be satisfied by a street vendor. As we see it, their claim boils down to the accidental reader who passes through the District and the District resident who prefers single-copy sales. Although the regulation may frustrate the preferences of these readers, “thwarting ... an idiosyncratic [or not so idiosyncratic] preference cannot be equated with a denial of adequate avenues of communication.” National Amusements, 43 F.3d at 745. While the Street Furniture Guideline diminishes the total quantity of the Newspapers’ publications within the District, that is a necessary side effect of almost any restriction on speech: “As long as restrictions are content-neutral, some diminution in the overall quantity of speech will be tolerated.” Id. (citing Vincent, 466 U.S. at 803, 812, 104 S.Ct. at 2127-28, 2132-33). In addition, our conclusion is not swayed by the assertion that street vending may not be a' viable alternative for all publications, particularly those that are free, such as the TAB. While we are aware that the Court, with good reason, “has shown special solicitude for forms of expression that are much less expensive than feasible alternatives and hence may be important to a large segment of the citizenry, ... this solicitude has practical boundaries.” Vincent, 466 U.S. at 812 n. 30, 104 S.Ct. at 2133 n. 30 (citations omitted). Given that the regulation neither affects the TAB’s primary means of distribution, the mail, which accounts for 79% of its distribution, nor prohibits the use of street vendors, such “practical boundaries” exist here. In any event, absent any record evidence regarding the feasibility or infeasibility of street vending for free publications, such as the TAB, we are particularly reluctant to treat free publications differently than those “for charge,” or to otherwise alter our conclusion. In short, “[a]s the Court phrased it: ‘That the city’s limitations on volume may reduce to some degree the potential audience for respondent’s speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate.’ ” National Amusements, 43 F.3d at 745 (quoting Ward, 491 U.S. at 802, 109 S.Ct. at 2760). Here, because the SFG leaves intact an alternative means of distribution within the public forum, and in the absence of any record evidence “calling] into legitimate question the adequacy of the alternate routes for [distribution],” National Amusements, 43 F.3d at 745, we conclude that the Street Furniture Guideline’s effective ban on newsracks in no way runs afoul of the Newspapers’ First Amendment right to distribute their publications. Accordingly, with this last' prong satisfied, we find that the challenged guideline passes muster under the First Amendment: it is a reasonable, content-neutral time, place and manner restriction on the Newspapers’ right to distribute their publications in the District. Some Additional Thoughts We have considered the Newspapers’ other arguments and find them to be without merit. We pause briefly, however, to respond to a few of them. First: Contrary to their contention, and as the foregoing discussion makes clear, the Street Furniture Guideline in no way denies the Newspapers the ability to make their publications available to those “willing to receive” them. Indeed, there is simply nothing in the record to support this bald assertion. Second: We also reject as utterly without merit the notion that, by upholding a ruling that bans a common and useful means of newspaper distribution, our decision today opens the door to the “piecemeal destruction of the public forum.” We are simply at a loss to see how the public forum is “destroyed” by such a valid content neutral, time, place and manner restriction on the distribution of protected speech — particularly where, as here, the Newspapers are free to distribute their publications from the very same spot within the public forum where their newsraeks have been located. Last, but not least: We also dismiss as irrelevant their claim that the SJC’s decision signals a danger for newsraeks- in all historic districts: even if this were true, as long as the regulations are valid content neutral, time, place and manner restrictions, what of it? As noted above, while the First Amendment guarantees the right to circulate publications, it does not guarantee the right to do so through private structures erected on public property. No one disputes that regulations governing newsraeks, because they facilitate the distribution of protected speech, are subject to First Amendment scrutiny. What the Newspapers fail to appreciate is that newsraeks are nothing more than structures occupying, if not monopolizing, public space on the sidewalks, which— with or without publications within — simply are not immunized from regulations passing muster under the First Amendment. . In sum, our opinion today stands unaffected by the clatter of these alarmist claims. Without more ado, we reverse the district court’s decision. II. Attorney’s Fees The Commission also appeals from the district court’s award of attorneys fees to the Newspapers as the “prevailing party” under 42 U.S.C. § 1988. In light of our opinion today reversing the judgment below on the merits, 'we need not address the Commission’s claims of error. As a judgment in favor of the Newspapers is reversed on the merits, that party is no longer a “prevailing party” under 42 U.S.C. § 1988 and, thus, no longer entitled to attorney’s fees under that statute. See, e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, 483, 110 S.Ct. 1249, 1256, 108 L.Ed.2d 400 (1990); Clark v. Township of Falls, 890 F.2d 625, 626-28 (3d Cir.1989). CONCLUSION For the foregoing reasons, the district court’s decision is reversed, the award of attorneys’ fees is vacated, and the case is remanded to the district court for entry of judgment in favor of the Commission, and for such further necessary and appropriate proceedings and orders as are consistent with this decision. Costs are granted to Appellant. . The record shows that the Newspapers' publications are distributed by the following methods: . The thirty-nine newsracks maintained by the Newspapers are broken down as follows: Boston Globe (9); Boston Herald (10); The New York Times (8); The Wall Street Journal (4); USA Today (3); and TAB (5). In addition to the Newspapers’ newsracks, at least five other publishers maintain newsracks within the District. Agreed Statement of Facts at 4, p. 16. . The record shows that the Newspapers' publications are available in stores and newsracks near the District as follows: . Although notice of this meeting was mailed to the Newspapers’ main offices, notice was not received by their Circulation Departments and, of the Newspapers, only the TAB appeared and commented on the petition. . Again, although notice was mailed, the Newspapers' Circulation Departments did not receive the notice and, thus, did not attend. . We decline the Commission’s invitation to pass upon the validity of the original regulation as that issue is moot. .. Distinguishing between, say, commercial and non-commercial speech is a relevant factor. See, e.g., Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034-35, 106 L.Ed.2d 388 (1989). Here, we need not make precise classifl-cations because we test, and ultimately uphold, the Street Furniture Guideline under the more stringent standards governing noncommercial speech. . Commenting on Justice Steven’s observation in Discovery Network, the district court noted that “[t]he notion seems strange that a broader ban on speech is more acceptable than a narrower ban.” Globe Newspaper, 847 F.Supp. at 195-96 (citing Justice Rehnquist’s dissenting statement in Discovery Network that “it scarcely seems logical that the First Amendment compels such a result”). Discussing whether First Amendment doctrine creates — to use the district court’s phrase — a “perverse incentive to regulate more speech,” id. at 195, does not alter our ultimate conclusion that the present regulation is content-neutral. We, therefore, decline the invitation to engage in this unnecessary dialogue. We note in passing, however, that it is not unprecedented in constitutional jurisprudence that “broader” regulations are constitutional while “narrower” ones are not. See, e.g., 44 Liquormart, Inc. v. Rhode Island, — U.S. -, - n. 20, 116 S.Ct. 1495, 1513 n.20, 134 L.Ed.2d 711 (1996) (citing R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) and Cincinnati v. Discovery Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)). . We note further there is no suggestion, let alone argument, that the Street Furniture Guideline is content-based because it is “format-based,” applying only to print media, or “distribution-based,” applying only to newsraeks: in other words, no argument that the SFG is designed to suppress a particular message carried only through either of these two media. . The only mention of Minneapolis Star is in Chief Justice Rehnquist’s dissent in Plain Dealer, 486 U.S. at 797 & n. 17, 108 S.Ct. at 2165 & n. 17 (finding Minneapolis Star-based argument that provision was invalid because it applied only to newsracks and not other "users” of the public streets to be "inapposite and unpersuasive" in that case). . Interestingly enough, the Newspapers did not raise the differential treatment of store-front signs when they challenged the first regulation banning newsracks, despite the fact that it would have the same effect of exempting those structures. . See Gold Coast, 42 F.3d at 1346 n. 12 (noting that reliance on newsrack cases using "least restrictive means” is misplaced due to subsequent Supreme Court cases rejecting that standard). . Although the Court in Discovery Network made this observation while applying the test applied to commercial speech, see, e.g., Board of Trustees, 492 U.S. at 480, 109 S.Ct. at 3034-35, “[b]ecause commercial speech receives less First Amendment protection than does non-commercial speech ... and [because] intermediate scrutiny also does not impose a 'least-restrictive-means’ analysis, ..., [this observation] clearly applies to determinations of narrow tailoring trader intermediate scrutiny.” Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 199 n. 29 (4th Cir.1994). ."The term 'significant interest’ is equivalent to the terms ‘important interest' and 'substantial interest,' and these phrases are often used interchangeably.” Rodney A. Smolla & Melvin Nim-mer, A Treatise on The First Amendment, ■§ 3.02[3][A] at 3-36 & n.95 (1994) (noting that Ward, 491 U.S. at 796, 109 S.Ct. at 2756-57, uses "significant" and “substantial” in adjacent sentences). . The dissent levels several attacks at the Commission’s consideration of the five available alternatives. We believe that none of these contentions withstand scrutiny. First, if, by requiring that the Commission "actively consider! ] alternative newsrack design proposals," the dissent means to suggest that the Commission was required to implement or experiment with other alternatives before finally choosing the total ban, we simply disagree that Discovery Network requires this. Second, that the Commission failed to send notice of the public hearing to the plaintiffs' circulation departments is irrelevant because the Commission granted a reconsideration hearing upon the Newspapers' request after the original ban was promulgated. Finally, we disagree with the dissent’s last point that the Commission's failure to regulate newsracks on an individualized basis, as it does some other appurtenances, displays a decision lacking careful calculation. That the Commission has chosen a total ban on only newsracks, and applied different measures more relevant to the other appurtenances, shows that the Commission made its determination based on the interests and concerns uniquely related to news-racks. . The dissent contends that the Commission's actions — holding two public meetings, conducting a survey, publishing a study, and taking additional testimony at the Newspapers’ request— do not evidence a "carefully calculated” determination that the ban on newsracks is the most suitable solution "proportionate to the resulting burdens on any protected First Amendment activity." See post at 197-98 (citing Discovery Network, 507 U.S. at 416 n. 12, 113 S.Ct. at 1510 n. 12). The dissent suggests that the Commission's decision was not "carefully calculated" because it failed to employ or consider incremental,, experimental alternatives to a total ban on news-racks. Id. at 198. We believe, however, that the Commission's study, in addition to its other actions, demonstrate that it in fact carefully calculated its determination of the alternative that most comprehensively met each of its interests and, at the same time, burdened no more speech than necessary to further this interest. See Ward, 491 U.S. at 799, 109 S.Ct. at 2758. Additionally, we do not read National Amusements to require the Commission to engage in experimental employment of alternative measures or otherwise engage in further calculation of the "suitability” of alternatives beyond that which its study demonstrates it has done. .The district court, despite its statement to the contrary, seems to have applied the “least restrictive means” test when it calibrated the "narrow-tailoring” scales. In closing, it stated: "A regulator’s declaration of benign purpose cannot justify a needless burden on rights of expression caused by the regulator's blunt instrument when finer instruments are available.” Globe Newspaper, 847 F.Supp. at 200. . See The Report, Exhibit H at 2. . In any event, we disagree with this observation. As the Agreed Statement of Facts indicates, the District’s street pattern includes many narrow pedestrian streets and lanes. The news-racks, which began to appear on the scene in the 1980s, are obviously out of character with the District's street pattern and it is utterly irrelevant that some streets may not be as narrow as they once were. Furthermore, as the Agreed Statement of Facts evidences, much of the exempt "street furniture” that would constitute "other modem innovations” was installed in the District long before newsracks came on the scene and, indeed, in some cases apparently prior to the creation of the District in 1995. That said, we reiterate that this observation ignores the obvious differences between the public safety/welfare structures providing indispensable services and private structures erected on public property whose function, although no doubt important, can be served in ways that do not require "appropriation” of public property. . Although the district court found that the PDG did not leave open ample alternative channels for free publications, such as the TAB, it did not make this finding regarding the Street Furniture Guideline. . See ante at 180 n. 3. . Compare Chicago Newspaper, 697 F.Supp. at 1470; Providence Journal, 665 F.Supp. at 118-19; with Multimedia Publishing Co. of S.C., Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th Cir.1993) (invalidating ban on newsracks in airport terminal, a non-public forum, due to the lack of market forces that provide private sources in public fora); Plain Dealer, 794 F.2d at 1147 (existence of alternative channels on private property considered). . See Chicago Newspaper, 697 F.Supp. at 1471 (noting that city "cannot rely on other municipalities to rescue them from the consequences of an improperly drawn ordinance”) (citing Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-52, 84 L.Ed. 155 (1939) ("[0]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”)). . Were we to widen the scope of relevant alternative sources beyond street vendors, these potential readers could obtain their preferred publications from newsracks on their way in and/or out of the District or from one of the numerous stores carrying them. . When the district court made its bench ruling that the original regulation did not leave open ample alternative channels it noted that "there is a special problem” with respect to the impact upon free publications, such as the TAB. Although the Newspapers had not raised this issue and despite the absence of record evidence, the district court's conclusion was based on the assumption that stores would not have the same economic incentive to serve as conduits for the distribution of free publications. Despite the subsequent admission of evidence showing that "no-charge” publications were carried in the District's stores, the court did not abandon its "finding” on this point when it reconsidered its ruling on the new regulation. There is no mention of this or any other similar finding in the district court's opinion regarding the Street Furniture Guideline.

Globe Newspaper Co. v. Beacon Hill Architectural Commission

CYR, Circuit Judge (dissenting). As I agree with the district court, see Globe Newspaper, 847 F.Supp. at 193-95, that the Commission has yet to establish, inter alia, that its Street Furniture Guideline is “narrowly tailored,” Perry, 460 U.S. at 45, 103 S.Ct. at 955; see North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 444 (7th Cir.1996) (noting that government must show that its “time, manner, and place” restriction on protected speech is “narrowly tailored”), I respectfully dissent. This case turns on whether the Commission established that its outright ban on all newsraeks within the District represents a reasonable means to its concededly legitimate regulatory end, in the sense that the ban “is in proportion to the interest served”; that is to say, “not necessarily the least restrictive means,” but one which is “narrowly tailored to achieve the desired objective.” Cincinnati, 507 U.S. at 416 n. 12, 113 S.Ct. at 1510 n. 12 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989)) (internal quotation marks and citations omitted). As the Supreme Court has made clear, both in Fox and Cincinnati, the government must demonstrate that it “carefully calculated” the resulting burdens on expressive activity protected by the First Amendment, Cincinnati, 507 U.S. at 416 n. 12, 113 S.Ct. at 1510 n. 12, which involves something more than simply identifying a legitimate regulatory purpose. The Commission is specifically charged with preserving the District as a unique “old Boston” community and the importance of preserving the architectural and historical esthetics within the District, for the benefit of the community, the Commonwealth, and the Nation, is not in question. See Vincent, 466 U.S. at 806-07, 104 S.Ct. at 2129-30. Nonetheless, the sweeping presumption indulged by the Commission — that the nonconforming nature of all newsracks represents an esthetic blight only an outright ban can remedy — is not entitled to deference in the First Amendment context. The Commission is required first to demonstrate that it carefully considered obvious alternative regulatory means before imposing its outright ban against all newsracks within the District. See Cincinnati, 507 U.S. at 417 n. 13, 113 S.Ct. at 1510 n. 13 (rejecting “mere rational basis review”). The record does not demonstrate that the Commission has met its burden. By the same token, the unquestionable efficiency of a total ban on all newsracks does not satisfy the “narrow tailoring” requirement. Otherwise, there would be virtually no role left to be served by the requirement that governmental entities “carefully calculate” the burdens their regulatory actions impose bn protected expressive activity, see id. at 416 n. 12, 113 S.Ct. at 1510 n. 12, since an outright ban will almost invariably prove most efficient in rooting out unbecoming appurtenances. Moreover, unlike public-safety regulations, for example, esthetics-based regulations often stem from subjective assessments not readily amenable either to objective measurement or empirical refutation, thereby warranting careful judicial scrutiny. See Metromedia, 453 U.S. at. 510, 101 S.Ct. at 2893-94; see also Ward, 491 U.S. at 793, 109 S.Ct. at 2754-55. The historical basis for the Commission ban against all newsracks within the District is incontestable: newsracks “did not exist at the time with which the [Cjommission’s efforts are concerned.” While the District is “a tangible reminder of old Boston,” however, it nonetheless remains a contemporary residential and commercial community. Charles Street, for example, accommodates numerous modem commercial conveniences (e.g., gas stations) presumably alien, if not offensive, to the esthetic sensibilities of even the most indurate “old Bostonian.” Thus, notwithstanding the Commission mandate to preserve the District’s colonial and post-colonial characteristics, residents rely upon (or at least tolerate) many uncharacteristic obtru-sions, at least one of which (cable television boxes) presumably was introduced after the Commission came into existence in 1955. Various other anachronous utilities abound as well — including paved roads and sidewalks, automobiles, traffic signals, streetlights, trash receptacles, mail boxes, and fire hydrants — not only along Charles Street but throughout the District. Even though many of these nonconforming modernities are regulated by the Commission — often robustly — rather than banned outright, the Commission concedes that newsracks are the only “street furniture” it subjects to an outright ban. As the district court correctly noted, there can be no question that an outright ban on all nonconforming modernities (e.g., as at Plymouth Plantation or Williamsburg) offers the most efficient approach to restoring historical and architectural integrity. Where the First Amendment is implicated, however, efficient governmental regulation must be “narrowly tailored.” Yet the Commission neither demonstrates that “obvious less-burdensome alternatives” are unavailable, Cincinnati, 507 U.S. at 417 n; 13,113 S.Ct. at 1510 n. 13, nor explains why the ad hoc permitting process it uses to regulate anachronous utilities such as cable television boxes should not be enlisted for newsrack regulation. Cf. Vincent, 466 U.S. at 808, 104 S.Ct. at 2130-31 (noting Metromedia plurality’s view that “[i]t is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an ‘esthetic harm’ ”) (emphasis added). Furthermore, the Commission has not explained its rationale for concluding — let alone demonstrated, see Cincinnati, 507 U.S. at 417, 113 S.Ct. at 1510 — that a permissible basis exists for assuming that newsracks, without regard to size, signage, design, color, location or number, cannot comport with its esthetic standards. See Chicago Newspaper Publishers Ass’n v. City of Wheaton, 697 F.Supp. 1464, 1470 (N.D.Ill.1988) (noting that city “has not explained ... how a newsrack on a residential street destroys the ‘character’ of the neighborhood any more than a mailbox, utility pole, fire hydrant, or traffic sign”). Nor has the Commission shown that any perceived “visual clutter” could not be addressed by restricting, severely if necessary, the location (e.g., within the Charles Street “commercial” zone) and the number of newsracks within the District. Plainly, these obvious alternatives, if efficacious, would be much less burdensome on the important First Amendment expressive activity the Commission proposes to ban outright. As the court appropriately acknowledges, of course, considerable deference is due the Commission. See supra p. 190. Nevertheless, deference to an outright ban on protected expressive activity cannot be predicated on anything less than a reasoned showing that the Commission “carefully calculated” alternative means with a view to their suitability to address legitimate regulatory interests proportionate to the resulting burdens on any protected First Amendment activity. Cincinnati, 507 U.S. at 416 n. 12, 113 S.Ct. at 1510 n. 12; see also Vincent, 466 U.S. at 803 n. 22, 104 S.Ct. at 2127 n. 22 (warning that courts “may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity”). The Commission adopted its outright District-wide ban on all newsracks without either attempting less draconian regulation or evaluating by incremental experimentation alternative approaches to controlling and reducing any visual blight caused by contemporary newsraeks. See Cincinnati, 507 U.S. at 417, 113 S.Ct. at 1510 (noting that newsrack ban was not a “reasonable fit,” since city “failed to address its recently developed concern about newsraeks by regulating the size, shape, appearance, or number”). I do not suggest that government invariably must engage in actual experimentation before settling on an outright ban, especially if it can demonstrate that the particular expressive activity creates a serious public nuisance too pressing to countenance delay. Nevertheless, outright bans on protected modes of expressive activity such as newspaper distribution are not entitled to judicial deference absent the required showing that less burdensome alternatives were “carefully calculated.” See Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (noting that there is no “narrow tailoring” if government “regulate[s] expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals”); Lakewood, 486 U.S. at 750, 108 S.Ct. at 2140; Providence Journal Co. v. City of Newport, 665 F.Supp. 107, 110 (D.R.I.1987) (collecting cases holding that newsraeks are entitled to “full First Amendment protection”); cf. Vincent, 466 U.S. at 813, 104 S.Ct. at 2133 (noting that specific locations (utility poles) for posting signs were not traditionally recognized public fora like public streets); Metromedia, 453 U.S. at 490, 101 S.Ct. at 2883-84 (upholding outright ban on off-premises billboards carrying less-protected commercial speech). On the other hand, “narrow tailoring” in the present context does not require the government to employ the “least restrictive means,” but to demonstrate that it “carefully calculated” the suitability of obvious alternatives proportional to its legitimate esthetic objectives. Each ease is to be judged on its particular facts, of course, and a total ban might pass muster were it made to appear that the Commission “carefully calculated” less burdensome alternatives and justifiably found them wanting. The failure to make such a showing is especially flagrant in the present context, since the Commission settled on a total ban because newsraeks were unknown in post-colonial times, yet it continues to regulate, rather than prohibit outright, numerous post-colonial appurtenances, without explaining why a newsrack need inevitably' be more unbecoming historically and architecturally than a trash receptacle or a streetlight pole. If its response is merely that the trash receptacle or streetlight pole serves a more useful purpose which must somehow be tolerated, then the Commission seriously undervalues both the utility of expressive activity (i.e., newspaper distribution) and - the First Amendment protection to which it is entitled. As the failure to demonstrate the required “narrow tailoring” undermines the challenged Street Furniture Guideline under the three-part Perry test, I would affirm the district court judgment. . In its Staff Report, the Commission cites its 1983 and 1990 surveys of the District’s news-racks, and identifies five alternatives: (1) an outright ban on all newsracks; (2) an outright ban on all newsracks, except those distributing non''commercial” speech, whose design and placement would be regulated; (3) an outright ban on all newsracks in District residential areas, with design and placement regulations for non-"commercial” newsracks on Charles Street; (4) no outright ban on any newsrack, but general regulation of their size, design, color, location, and attachment; and (5) delaying any District regulation pending the City’s decision whether to regulate newsracks city-wide. The Staff Report fails to demonstrate the required “narrow tailoring,” for three reasons. First, the Report was based solely on surveys of then-existing newsracks, see Commission Staff Report, at 65 ("None of the distribution box designs can be said to be architecturally appropriate"), and does not consider the feasibility of a different newsrack design more consonant with the desired esthetics. Indeed, the analysis of Alternative #4 merely states that any such design criteria would have "to be drafted” at some later time. See id. at 68. This plainly does not amount to “careful calculation.” Second, the Commission points to no other record evidence that it ever actively considered alternative newsrack design proposals. Even though the Commission now acknowledges that it failed to send notice of its November 15, 1990, ■public hearing to plaintiffs' respective circulation departments, the Staff Report touts the fact that, after years of public opposition to a newsrack ban, plaintiffs had lodged no comments at the public hearing. In a letter to the Commission shortly after the first guideline was promulgated, however, the Boston Globe not only objected to the "notice” provided by the Commission, but reminded the Commission of the Globe's "historical willingness” throughout the preceding eight-year period to negotiate a mutually agreeable newsrack guideline short of a total ban. Finally, the Report rejects Alternatives 2-4 on the ground that they would tax the Commission's limited enforcement resources. Administrative burden is an appropriate consideration in the "careful calculation” inquiry. Yet even accepting the Commission’s uncorroborated reference to. its limited administrative resources, it fails because it simply presumes, sub silentio, that the expressive activity here involved is somehow due less protection than the anachronous appurtenances the Commission has decided to regulate, but not to ban, and therefore that it is less deserving of individualized treatment under the Commission's ad hoc permitting process. Nor does the Report attempt a comprehensive overview of current Commission administrative enforcement expenditures relating to its regulation of these other unhistorical appurtenances.

Sierra Club v. Clark

J. BLAINE ANDERSON, Circuit Judge. The Sierra Club and other environmental groups (Sierra Club) brought this action challenging the validity of two related but separate actions taken by the federal defendants on the grounds that they violated the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701, et seq., (1982) and numerous other statutes, Executive Orders and regulations. The district court denied the requested declaratory and injunctive relief, and Sierra Club appeals. We affirm. BACKGROUND Each Thanksgiving weekend from 1967 through 1974, an off-road motorcycle race was run from Barstow, California to Las Vegas, Nevada across public lands managed by the federal Bureau of Land Management (BLM). Based on studies conducted following the 1974 race which documented adverse impacts to desert resources, the BLM refused to issue a permit for the event in 1975. Permit applications were subsequently denied for each year thereafter, until 1983. According to BLM, the latter permits were denied due to inadequate budgetary and personnel resources necessary to adequately study the environmental impacts and to develop appropriate mitigating measures to reduce those impacts. By 1974, the Barstow to Vegas race had become relatively popular, drawing thousands of racers each year. When the permits were denied beginning in 1975, Thanksgiving weekend became the time each year for a “protest” ride over various routes of the old Barstow to Vegas course. These “protest” rides were not sanctioned by BLM, nor were they organized or supervised by any recognized clubs or organizations. The “protest” rides and attending activities resulted in considerable impacts on the biological, geological, cultural and other resources of the desert environment. For various reasons, and largely aided by additional funding provided by defendant District 37, BLM began to study the prospect of permitting a Barstow to Vegas race in 1983. Before this could be done, however, the California Desert Conservation Area (CDCA) Management Plan had to be amended so as to designate a race course and race specifications. The CDCA contains approximately 25 million acres, which Congress mandated BLM to manage for multiple uses. The CDCA Management Plan was prepared, pursuant to § 601 of FLPMA, 43 U.S.C. § 1781, by BLM to “provide for the immediate and future protection of and administration of the public lands in the California desert within the framework of a program of multiple use and sustained yield, and the maintenance of environmental quality.” 43 U.S.C. § 1781(b). The amendment which designated the Barstow to Vegas course across the CDCA was entitled Amendment No. 6. The proposed course covered 110 miles and approximately 2000 acres, and was the subject of a Draft Environmental Impact Statement (DEIS) and a Final Environmental Impact Statement (FEIS). Included in Amendment No. 6 were specific mitigation measures to be implemented in order to reduce the impacts a race might have on the course. In addition, it was provided that further mitigation measures could be added pursuant to new information, gathered data and monitoring results. Amendment No. 6 received final approval in May, 1983, a permit was issued in August, 1983, and the Bar-stow to Vegas race was held later in the year. Sierra Club sued to challenge the validity of Amendment No. 6 and to enjoin the issuance of a permit for the 1983 race. Following a trial, the district court concluded that Sierra Club had failed to meet its burden of demonstrating that Amendment No. 6 was arbitrary, capricious, an abuse of discretion, or that it violated any of the relevant statutory provisions. We agree. DISCUSSION A. Standard of Review Traditionally, an agency’s interpretation of its own regulations is entitled to a high degree of deference. Hawaiian Electric Co. v. United States EPA, 723 F.2d 1440, 1447 (9th Cir.1984). The scope of review of an agency’s factual findings is very narrow and they are “overturned only if arbitrary and capricious.” Sierra Club v. Clark, 756 F.2d 686, 691 (9th Cir.1985); 5 U.S.C. § 706(2)(A) (1982). B. Section 603(c) of FLPMA: Wilderness Lands Preservation Section 603(a) of the FLPMA, 43 U.S.C. § 1782(a), provides for the designation, within 15 years of October, 1976, of public lands suitable for preservation as wilderness. Section 603(c) further provides: During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness____ 43 U.S.C. § 1782(c) (emphasis added). The BLM’s “Interim Management Policy and Guidelines for Lands under Wilderness Review,” (IMP) provides that, under 603(c)’s non-impairment criteria, ■ impacts caused by any permitted activity “must, at a minimum, be capable of being reclaimed to a condition substantially unnoticeable in the wilderness area ... as a whole by the time the Secretary of the Interior is scheduled to send his recommendation to the President.” (emphasis added). The IMP also permits organized off-road vehicle (ORV) events to pass through these wilderness study areas (WSA) “on existing ways and trails, so long as the BLM has determined that such use satisfied the non-impairment criteria.” As observed by the district court, “[i]t is unquestionable that the 1983 race had an adverse impact on the visual integrity of WSA 242. This adverse impact is a direct consequence of the adoption of Amendment No. 6. The determinative issue is whether this impact is sufficiently egregious to violate the BLM’s IMP on non-impairment.” The district court found that it was not. In arriving at its decision, the district court judge reviewed the relevant depositions, reports and other testimony, as well as making his own visual inspection of the site. Over objection by the' federal appel-lees and District 37, the judge included post-race reports and evaluations concerning the impact of the 1983 event in his review. The district court concluded that the BLM’s construction of the statute was supported by substantial evidence and was not an abuse of discretion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (more than a mere scintilla). Agency interpretation “is especially weighty where statutory construction involves ‘reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation (depends) upon more than ordinary knowledge respecting the matters subjected to agency regulations.’ ” State of Washington, Dept. of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1469 (9th Cir.1985) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). The BLM, interpreting “substantially unnoticeable in the area as a whole,” determined the term to mean “substantial” in the context of the WSA as a whole — not on a parcel-by-parcel basis. We find that this interpretation is a reasonable one, consistent with our decision of Sierra Club v. Clark, 756 F.2d at 690, and the principles of multiple use. 43 U.S.C. § 1781(a)(4) (ORV use to be permitted where appropriate). C. Executive Order 11644 and 43 C.F.R. § 8342.1 Designation of approved routes for ORV use under the Desert Plan must be made in accordance with the ORV route designation criteria set forth in Executive Order 11644 and 43 C.F.R. § 8342.1. Executive Order 11644 was promulgated in 1972 and directs agency heads, including the Secretary, “to develop and issue regulations governing the designation of specific areas and trails on public lands for use by off-road vehicles.” American Motorcyclist Ass’n v. Watt, 543 F.Supp. 789, 795 (C.D.Cal.1982). The regulations promulgated by the BLM, pursuant to the authority of FLPMA, which set forth the route designation criteria, seek to: (1) minimize conflict among the various users of the public lands; (2) minimize damage to soil, watershed, vegetation, air or other resources (to prevent impairment of wilderness suitability); (3) minimize harassment of wildlife or significant disruption of wildlife habitat; and (4) minimize conflicts between ORV use and other recreational uses. 43 C.F.R. § 8342.1 (1984). FLPMA, 43 U.S.C. § 1781(d), provides that the desert plan must take into account “the principles of multiple use and sustained yield in providing for resource use and development, including, but not limited to, maintenance of environmental quality, rights-of-way, and mineral development.” Amendment No. 6 is a proper exercise of the BLM’s discretion in providing for combined use of the desert. It seeks to balance desired use and ecological concerns through the imposition of permit and mitigation requirements. While there is little doubt that negative impacts resulted from the 1983 race, so is there little doubt that harm would result if uncontrolled “protest rides” were to continue. The mitigation requirements seek to assure that impacts are minimized. These requirements are not static — they can be expanded to offer greater assurances of compliance and lessen the potential for harm. The challenged amendment, on the facts of the instant matter, does not seem an abuse of discretion; on the contrary, it seems a reasoned approach to a difficult balancing act mandated by Congress. D. Section 302(b) of FLPMA Section 302(b) of FLPMA requires the BLM to “take any action necessary to prevent unnecessary or undue degradation of the [public] lands.” 43 U.S.C. § 1732(b). Sierra Club argues that designation of the Barstow to Vegas course has resulted in “severe, and in some cases irreversible damage” which is, therefore, “undue.” Sierra also contends that “by no stretch of the imagination” can race course designation be characterized as necessary or appropriate. This position ignores the fact that “Congress has found that ORV use, damaging as it may be,- is to be provided ‘where appropriate.’ ” Sierra Club v. Clark, 756 F.2d at 691; 43 U.S.C. § 1781(a)(4). Sierra Club’s proposed interpretation of this regulation would result in the prohibition of ORV use because it is doubtful that any area could withstand such use without degradation. The BLM’s decision to permit restricted ORV use, in view of the congressional mandate, is no abuse of discretion. Congress has determined that ORV use is to be provided and the accommodation of that usage, on these facts, is not arbitrary or capricious. Sierra Club v. Clark, 756 F.2d at 691. E. National Historic Preservation Act Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f, provides that a federal agency “shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, ... take into account the effect of the undertaking on any ... site ... or object that is included in ... the National Register [of Historic Places].” The regulations also provide that “Federal agencies should coordinate NEPA [National Environmental Policy Act] compliance with the separate responsibilities of the [NHPA] ... to ensure that historic and cultural properties are given proper consideration in the preparation of environmental assessments and environmental impact statements.” 36 C.F.R. § 800.9 (1984). There is no doubt that the BLM failed to confer with the State Historic Preservation Officer (SHPO) prior to issuance of the permit for the 1983 race. We affirm, however, the district court’s conclusion that the fact of actual concurrence by the SHPO in the issuance of the permit, together with imposition of mitigating measures the SHPO requested, satisfied the statutory requirement and its intent. F. Administrative Procedure Act The Administrative Procedure Act, 5 U.S.C. § 706(2)(A), provides for reversal of agency actions that are “arbitrary, capricious, [or] an abuse of discretion.” Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual, 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). See also American Tunaboat Ass’n v. Baldrige, 738 F.2d 1013, 1016 (9th Cir.1984); Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1449 (9th Cir.1984). Sierra Club contends that the BLM’s decision violates all four of the above criteria and so is arbitrary and capricious. We disagree. Our review of the evidence reveals that the BLM, construing its own regulations in light of congressional mandate, gathered a broad range of information, listened to its critics and attempted to address their concerns through imposition of mitigation requirements in the permit process. G. Section 102(2)(c) of NEPA: Environmental Impact Statement Section 102(2)(c) of NEPA, 42 U.S.C. § 4332(2)(C), requires federal agencies to prepare a detailed statement of the impacts of any proposed “major Federal actions significantly affecting the quality of the human environment.” The purpose of this provision is twofold: it provides the decision-maker with sufficiently detailed information to decide whether to proceed on a project in light of potential environmental consequences and it furnishes the public with relevant environmental information. Adler v. Lewis, 675 F.2d 1085, 1095-1096 (9th Cir.1982). Sierra Club contends that the FEIS at issue fails to fulfill either of the Adler purposes. The FEIS, they argue, is unintelligible, it fails to adequately explore all alternatives, and lacks a sufficient discussion of appropriate mitigation measures on a site-specific basis. By specifically referring to prior BLM studies and supporting materials, the FEIS fulfilled its informational purpose. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 782 (9th Cir.1980). While we acknowledge the magnitude of the information covered in the DEIS and the abbreviated format of the FEIS, we do not agree that the EIS failed to inform the public. Nor do we accept Sierra Club’s contention that the BLM’s rejection of a “no-action” alternative to the EIS violates NEPA. The BLM, in the DEIS, 4-24, 4-25, rejected a no-action alternative on the ground that unmonitored protest rides would continue to occur. Such a decision is subject to a rule of reasonableness. Adler, 675 F.2d at 1097. As the district court observed, the BLM’s rationale demonstrates that such an alternative was considered and rejected in favor of controlled access. Additionally, the court noted the substantial number of course changes and other mitigating measures taken which demonstrate that BLM’s consideration and adoption of other alternatives, in conjunction with public commentary and concern, was reasonable. Finally, while we agree that a complete discussion of site-specific mitigation efforts was not incorporated into the FEIS, we note that substantial measures were implemented. These mitigation measures were addressed, albeit briefly, in the impact studies. See FEIS at 4-28; ROD at 2888. The BLM’s extensive implementation of mitigation measures on a site-specific basis in response to the public concern demonstrates that the BLM was informed and responsive to the need to minimize adverse impacts on a site-specific basis and implemented measures to assure that this purpose was accomplished. CONCLUSION For the foregoing reasons, the decision of the district court, denying declaratory relief, is AFFIRMED.

United States v. 162.20 Acres of Land

GARZA, Circuit Judge: We are squarely confronted with an issue of law which this court has never addressed: is alleged noncompliance by federal authorities with the mandate of Section 470f of the National Historic Preservation Act of 1966, [NHPA], 16 U.S.C. § 470 et seq., a legally sufficient defense to the condemnation of private property for use in a federal project under the Declaration of Taking Act, [DOTA], 40 U.S.C. § 258a? Our answer depends upon a resolution of the tension between the vast discretionary condemnation power given the government under DOTA, and the pervasive reach of the NHPA’s command that mitigation of adverse effect on the tangible evidences of our historic heritage be considered in the decision-making process surrounding federal projects. I. Condemnation cases usually revolve around a conflict between private and public purposes. Here, we deal with an enormous federal undertaking, the TennesseeTombigbee Waterway Project, and property owned by the Uithoven family which the government has sought to include within a peripheral scheme to enhance the Columbus Lock and Dam segment of the project with recreational facilities. The Uithoven property is located near the Tombigbee River in Clay County, Mississippi, and is within the area once occupied by the abandoned riverfront town of Barton, (ca. 1848-1870). Upon the tract sits a four-room, one-story nineteenth century dwelling known as Cedar Oaks. The U. S. Army Corps of Engineers seeks to incorporate this property into a “Barton Ferry Recreation Area” which would cover two other extinct riverfront townsites: Colbert, (ca. 1830-1847), and Vinton, (ca. 1849-1900?). The Barton townsite and Cedar Oaks are listed on the National Register of Historic Places as within the Tombigbee River Multi-Resource District, a “zone” created for the purpose of listing historic sites in the project area. The Uithovens were given notice in 1977 that the Corps intended to acquire their property for use in the Barton Ferry grounds. They submitted an “Application to Exclude Property from Condemnation Proceeding” to the Attorney General of the United States. The application explained that the Uithovens operated the land as a tree farm, and that their crop was ready for harvest. It further stated that the family had established campsites and permitted church and youth groups to camp on the grounds without charge. The application concluded: Such exclusion would not affect the construction of the project. Such exclusion would allow two gentlemen in their sixties to continue development of the property at their own expense for public recreation, timber production and residence on the family property. The lands and homes have much meaning and inestimable value to the Uithovens. This Historic Site should not be destroyed when the Congressional Policy is the preservation od [sic] such Historic Sites. This plea apparently reached unreceptive ears, for on February 14, 1978, the United States filed a complaint and declaration of taking in the district court below, together with a deposit of estimated just compensation covering the land. The court signed a judgment of the declaration of taking ten days later. On April 6th and 14th, the Uithovens filed answers which raised four defenses to the taking: (1) that the complaint did not state a cause of action; (2) that it did not contain a short and plain statement of the use for which the property was taken; (3) that there was no public necessity for the taking; and (4) that the government had failed to comply with provisions of the NHPA. The government moved to strike these defenses and, after oral argument, the district court granted the motion. With regard to the last defense, the court stated: The government does not contend that the Corps of engineers is not required to comply with The Act. As a matter of fact, the government claims that the Corps is now in compliance therewith. The government does contend, however, that it is not required to comply with the Act before it can exercise the right of eminent domain in the action sub judice. This argument appeals to the court. Final judgment upon a stipulated just compensation was entered, and this appeal was taken. II. The Uithovens urge us to hold that the district court erred in striking the NHPAcompliance defense as legally immaterial. The government responds with the assertion that its condemnation power may be exercised either before or after compliance with the NHPA, and goes on to argue that it was in compliance with the act when the declaration of taking was filed in this case. Our analysis must begin with an examination of NHPA, which is less familiar to federal courts than the venerable DOTA. The act has been called an attempt to provide “new scope and techniques for federal efforts to preserve cultural resources,” enacted “[T]o meet the shortcomings of previous federal legislation and to help stem the loss of irreplaceable cultural resources.” J. M. Fowler, Federal Historic Preservation Law: National Historic Preservation Act, Executive Order 11593, and Other Recent Developments in Federal Law, 12 Wake Forest L.Rev. 31 (1976). The preamble declares the values to be promoted: The Congress finds and declares ... that the historical and cultural foundations of the nations should be preserved as a living part of our community life and development in order to give a sense of orientation to the American People. 16 U.S.C. § 470. Section 470f of the act creates a mechanism to promote these values neither by forbidding the destruction of historic sites nor by commanding their preservation, but instead by ordering the government to take into account the effect any federal undertaking might have on them, the National Register of Historic Places serving as the list of sites. This portion of the act provides as follows: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking. The government describes this provision as an effort “to insure consideration of preservationist values by federal agencies ...” While the act may seem to be no more than a “command to consider,” it must be noted that the language is mandatory and the scope is broad. The government admits both the applicability of the act and the necessity of the Corps’ compliance; it disputes, however, any assertion that a failure to comply before the institution of condemnation proceedings under DOTA will afford a defense to the defendant-owner. In order to evaluate NHPA as a potential defense, we must examine certain provisions of DOTA and cases delineating their legal effect. 40 U.S.C. § 258a sets out the procedure to be used in taking private land for federal purposes: In any proceeding in any court of the United States outside of the District of Columbia ... instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause ... a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. It is the consequence in law of such a filing which has particular relevance here. Section 258a continues: Upon the filing said declaration of taking and of deposit [of estimated just compensation] ... title shall vest in the United States and said land shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation ... shall vest in the persons entitled thereto. The government has cited a number of decisions discussing the effect of the last-quoted provision, and we are compelled to agree with the position which they cumulatively state. In a condemnation proceeding under Section 258a where the government is not already in possession of the property, the filing of a declaration of taking and deposit of estimated compensation vests title in the United States, accomplishing the taking. See Best v. Humbolt Mining Co., 371 U.S. 334, 340, 83 S.Ct. 379, 9 L.Ed.2d 350, 355 (1963); United States v. Dow, 357 U.S. 17, 23, 78 S.Ct. 1039, 1045, 2 L.Ed.2d 1109, 1115 (1958); Fulcher v. United States, 604 F.2d 295, 296 (4 Cir. 1979); United States v. 2,997.06 Acres of Land, More or Less, In Marion County, State of Florida, 471 F.2d 320, 337 (5 Cir. 1972); Likins-Foster Honolulu Corp. v. Commissioner, 417 F.2d 285, 289 (10 Cir. 1969); Covered Wagon, Inc. v. Commissioner, 369 F.2d 629, 633 (8 Cir. 1966); Certain Land in City of Washington, D. C. v. United States, 355 F.2d 825, 826 (D.C.Cir.1965). The district court, powerless to dismiss the proceedings, performs an almost ministerial function in decreeing the transfer of title. See United States v. Cobb, 328 F.2d 115, 116 (9 Cir. 1964); United States v. 2,974 Acres, Clarendon County, South Carolina, 308 F.2d 641, 643 (4 Cir. 1962); United States v. Hayes, 172 F.2d 677, 679 (9 Cir. 1949); United States v. Carey, 143 F.2d 445, 450 (9 Cir. 1945). The sole defense which may be raised against the condemnation itself is that of lack of authority to take in the petitioner. In Dow, supra, the Supreme Court noted that “[T]he Taking Act does not bestow independant authority to condemn lands' for public use. On the contrary, it provides a proceeding ‘ancillary or incidental to suits brought under other statutes.’ ” 357 U.S. 17 at 23, 78 S.Ct. 1039 at 1045, 2 L.Ed.2d 1109 at 1115. It is clear that a condemnee may challenge “the validity of the taking for departure from the statutory limits.” Catlin v. United States, 324 U.S. 229, 240, 65 S.Ct. 631, 637, 89 L.Ed. 911, 919 (1944); See also Berman v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 103, 99 L.Ed. 27, 39 (1954); Maiatico v. United States, 302 F.2d 880, 886 (D.C.Cir.1962). A perusal of cases involving assertions of the defense of lack of authority reveals that federal courts do not second-guess governmental agencies on issues of necessity and expediency when condemnation is sought; such matters are within the discretion of the legislature or of administrative bodies by delegation, and the concept of justiciability limits judicial review to the bare issue of whether the limits of authority were exceeded. See generally Berman, supra; United States v. 2,606.84 Acres of Land in Tarrant County, Texas, 432 F.2d 1286 (5 Cir. 1970), cert. denied 402 U.S. 916, 91 S.Ct. 1368, 28 L.Ed.2d 658 (1971); O’Brien v. United States, 392 F.2d 949 (5 Cir. 1968); Swan Lake Hunting Club v. United States, 381 F.2d 238 (5 Cir. 1967); 2,953.15 Acres of Land, More or Less, in Russell County, State of Alabama v. United States, 350 F.2d 356 (5 Cir. 1965). When section 470f is considered as a potential defense to a DOTA condemnation against this background, we think it apparent that the Uithoven’s argument must fail. The filing of a declaration, by which title vests, is a neutral act vis-a-vis NHPA compliance procedures and the policy concerns behind them. Federal agencies are compelled to abide by the terms of the NHPA regardless of the public or private character of the property involved. Further, where it has been long established that the role of the district court in DOTA condemnations is limited to a bare consideration of the legal authority to take, and where the courts have been careful to refrain from considering matters of propriety, expediency and policy with regard to the use of the property sought, we conclude that only an express statement by Congress that NHPA noncompliance is a defense to a condemnation itself would be sufficient to achieve that result. While it may seem that the asserted defense would promote the purposes of the NHPA by creating a means of enforcement to give it “teeth,” it is manifestly apparent that only Congress can make such a judgment. III. Our holding does not, however, imply that section 470f is a serpent without fangs as to federal planners bent on disregard of its mandate, and we have not completely resolved this litigation against the Uithovens. The government acknowledges in its brief that “judicial intervention is appropriate to vindicate the purposes of the National Historic Preservation Act.” It notes the DOTA provision that “the Court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner,” 40 U.S.C. § 258a, and admits that “[A]ccordingly, while a court is without power to stay the passage of title, it may withhold physical possession and enjoin construction or any activity that may disturb the environment, cultural or physical, pending compliance with [the] congressional mandate.” See, e. g., United States v. 247.37 Acres in Clermont County, Ohio, 3 ERC 1098 (S.D.Ohio 1971). It is also argued that a condemnee might alternatively file a separate suit to enjoin a project until the NHPA has been complied with. See, e. g., Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323 (S.D.N.Y.1975). We agree that a district court having before it a condemnation case may, pursuant to the power granted under the DOTA provision quoted above, require compliance with section 470f and either withhold possession by the government or take appropriate injunctive action to enforce its order. The transfer of title is an environmentally neutral action which, as we have observed, does not implicate the values expressed in the NHPA; compliance with 470f, however, may be environmentally significant and is required by the express language of that section in any event. Thus, while the NHPA does not provide a legal shield of protection against the exercise of the federal condemnation power, it can provide the condemnee with a sword which he may use to seek judicial scrutiny of compliance with the congressional command that adverse impact upon historical features of the condemned land be mitigated. We have stripped the Uithovens of their asserted shield, but they may still, if they choose, wield the sword to enforce compliance. The government argued on appeal that it has indeed fulfilled its duty under section 470f, and submitted numerous documents purporting to show that it has done so. The district court noted this claim, but made no express finding. We will not make this determination for the first time on appeal and decline to review the government’s offerings, which are not contained in the record proper and should be submitted to the district court if it is called upon to decide the issue. That portion of the opinion and judgment below which strikes noncompliance with the NHPA as a defense to the condemnation itself will be affirmed, but that portion which leaves “only [the] question of just compensation for the court’s consideration” will be vacated, and we remand the cause so that the district court may determine, on petition of the Uithovens, whether compliance has taken place. If the court finds to the contrary, it must then decide what remedial action is appropriate. AFFIRMED IN PART AND VACATED IN PART; REMANDED FOR FURTHER PROCEEDINGS. . Several persons were discovered to have leasehold interests, and were joined in the suit. . Following the judgment, the Corps allowed F. E. Uithoven to continue living on the property, and allowed two other family members to make periodic visits. This policy came to an end when the Corps asked the Uithovens to completely vacate the property, terminating any right to co-possession. The district court granted a motion to extend co-possession until September 1, 1980, but denied another extension motion on September 2nd. We granted the Uithovens’ subsequent request for a stay pending the disposition of this appeal. . As one might gather from a reading of section 470f, the compliance procedure is complex, and will necessarily vary from situation to situation. Executive Order No. 11593, issued on May 13, 1971, and published in full immediately following 16 U.S.C.A. § 470, provides some detail. An exhaustive description of the requisite procedures can be found in Fowler, Federal Historic Preservation Law, supra. We will have no occasion to discuss them in the context of this case. . The district court cited two opinions issued by district courts, one which supports the Uithoven’s position and one which rejects it. In United States v. 4.18 Acres of Land, Civil No. 3-74-33 (D.Idaho February 20, 1975), Judge J. Blaine Anderson ruled that where the United States Forest Service had not complied with section 470f procedures prior to the institution of a condemnation suit, the action was premature. In United States ex rel. TVA v. Three Tracts of Land, 415 F.Supp. 586 (E.D.Tenn. 1976), the district court dealt with the precise argument advanced by the Uithovens, ruling as follows: Executive Order No. 11593 and 16 U.S.C. § 470(f) impose specific obligations on the heads of federal agencies with respect to sites, structures or objects which have been listed or may become eligible for listing in the National Register of Historic Places. Neither can be construed as limiting a federal agency’s authority to acquire property through condemnation. The duties created in the statute and the executive order arise once a federal agency obtains ownership or control of property. Since condemnation is a common means used to acquire ownership or control of property, it seems clear that neither the statute nor the executive order were intended by Congress or the President to operate as a defense in a condemnation proceeding. See Order of Friars v. Denver Urban Renewal Authority, 186 Colo. 367, 527 P.2d 804 (1974). 415 F.Supp. at 588. Our decision in this case indicates agreement with the latter opinion. . Our conclusion is bolstered by an analogous line of cases dealing with the effect of section 102(2)(C) of the National Environmental Protection Act, [NEPA], 42 U.S.C. § 4332(2)(C), which requires federal agencies to prepare environmental impact statements on “major federal actions significantly affecting the quality of the human environment.” This provision has been held irrelevant to the validity of a condemnation under section 258a. See United States v. 178.15 Acres of Land, More or Less, Grayson County Virginia, 543 F.2d 1391 (4 Cir. 1976); United States, TVA v. Three Tracts of Land, Etc., Alabama, 377 F.Supp. 631, 637 (N.D.Ala.1974).

Scenic Hudson Preservation Conference v. Federal Power Commission

HAYS, Circuit Judge: By Opinion No. 584, dated August 19, 1970, the Federal Power Commission granted a license to Consolidated Edison Company of New York, Inc., to construct, operate, and maintain a pumped storage project along the western shore of the Hudson River at Cornwall, New York. Eight parties have filed petitions pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251(b) (1964) seeking to set aside this order on various grounds. The issues raised by these petitions are both complex and important, involving, as they do, the conflict between the needs of a highly technological society and the increased awareness of environmental considerations. The opinion and order of the Federal Power Commission presented here for review follow by five years the earlier remand by this court in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert, denied sub nom., Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U. S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), in which the petitions challenged three 1965 orders of the Commission licensing the project and refusing to reopen proceedings and take additional evidence on various issues. In the intervening period extensive hearings have been held, two decisions have been rendered by a Hearing Examiner and the Commission has issued its own opinion. The new proceedings have produced a project that is different in some ways from the project that was before this court in 1965. The functional elements of the project remain the same. It is still to be the largest pumped storage plant in the world and its principal function, to provide energy for peak load periods, is unchanged. The proposed location is the same as that previously proposed, the Hudson River at approximately river mile 56.5, about 40 miles north of New York City at Storm King Mountain near Cornwall, New York, “an area of unique beauty and major historical significance.” Scenic Hudson, supra at 613. The project would consist, as did the earlier version, of an upper reservoir, a tunnel between the reservoir and the powerhouse, and the powerhouse itself, a pumping-generation station located at the riverside containing eight reversible pump-turbine and motor generation units as well as switching gear and primary transmission lines. However, unlike the project presented in 1965, which provided for a powerhouse that was 80 per cent underground, the powerhouse now licensed by the Commission is to be entirely underground. The upper reservoir would be situated approximately 10,000 feet south and west of the powerhouse in a natural mountain basin behind Storm King Mountain. When filled to its maximum elevation it would have a surface area of 240 acres. It would be formed and enclosed by five earth and rock dikes. The lower reservoir would be the Hudson River itself. The capacity of the eight pumping-generating units in the powerhouse would be 2,000 megawatts, or 2,000,000 kilowatts. However, the project would be constructed in a manner which would permit enlargement to a maximum of 3,000 mw. Eight discharge tunnels from the reversible pump-turbine and motor generation units would convey water between each turbine and an open tailrace leading to the river. The tailrace with abutments at both ends would run 685 feet along the river. A fish protective device is to be located in front of the tailrace intake. The third major facet of the project relates to transmission facilities. Submarine cable installations and spare pipes would transmit the energy generated in the powerhouse under the Hudson River and would continue underground on the east side of the river for approximately 1.6 miles to a point out of sight of the river. At this point overhead transmission would commence and would continue for approximately 9.2 miles through Putnam County to Con Edison’s existing Pleasant Valley-Millwood-Sprain Brook transmission right of way. Changes have been made in the proposed route and the towns of Cortlandt, Putnam Valley and Yorktown, which challenged the route before this court in 1965, no longer do so. The project would function in the manner described in our earlier opinion. Scenic Hudson, supra at 612. The units in the powerhouse would use off-peak energy generated not at the project but at other facilities in the Con Ed system to pump water from the Hudson River to the upper reservoir. When needed for peak power production, that is, during hours of highest kilowatt demand, the units would reverse direction of rotation and provide power derived from the fall of the water released into the river from the upper reservoir. This power would then be transmitted through the transmission system described above. “The water in the upper reservoir may be regarded as the equivalent of stored electrical energy; in effect, Consolidated Edison wishes to create a huge storage battery at Cornwall.” Scenic Hudson, supra at 612. A visitor’s information center and picnic and parking facilities, proposed in the original project for the powerhouse site, have been eliminated. In their place, a 57 acre, mile-long park is to be constructed along the riverfront. Additional recreational facilities are to be provided at a 36 acre scenic overlook inland from the project with access from the existing State Highway 9-W. As an alternative the Commission has licensed the powerhouse aspect of the project at a location within Palisades Interstate Park, approximately one and one-half miles downstream from the Storm King Mountain site. Construction at the Palisades site is to be considered approved by the Commission only if construction at the Storm King Mountain site “shall be precluded on a petition to review this order.” The petitions in this case are occasioned by the “grave concern” aroused among conservationist groups by the Storm King project. Scenic Hudson, supra at 612. The petitions allege lack of compliance with the terms of our earlier remand, absence of substantial evidence to support the Commission’s findings, and failure to comply with statutory mandates. We find, however, that the Commission has fully complied with our earlier mandate and with the applicable statutes and that its findings are supported by substantial evidence. In view of the extensive powers delegated to the Commission and the limited scope of review entrusted to this court, it is our duty to deny the petitions. I. Congress has given the Federal Power Commission broad responsibility for the development of national policies in the area of electric power. In Section 4(e) of the Federal Power Act, 16 U.S.C. § 797(e) (1964), the Commission is authorized “To issue licenses * * * for the purpose of constructing, operating, and maintaining dams, water conduits, res-servoirs, power houses, transmission lines or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction * * There are statutory limitations on the issuance of such licenses. Section 10(a) of the Act, 16 U.S.C. § 803(a) (1964), requires “That the project adopted * * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes * * The Commission is now obliged also to consider the environmental factors covered by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (§ 1970). In the Federal Power Act Congress granted the Commission “sweeping authority and a specific planning responsibility.” The Act “was the outgrowth of a widely supported effort on the part of conservationists to secure the enactment of a complete scheme of national regulation which would promote the comprehensive development of the nation’s water resources.” Scenic Hudson, supra at 613 and authorities cited there. The scope of review of the Commission’s exercise of its authority and responsibility is narrowly limited. The Act, § 313(b), provides that “[t]he finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” 16 U.S.C. § 8251(b). In assessing the factual contentions raised in the petitions, this court’s authority “is essentially narrow and circumscribed.” Permian Basin Area Rate Cases, 390 U.S. 747, 766, 88 S.Ct. 1344, 1360, 20 L.Ed.2d 312 (1968). The licensing of projects such as the Storm King plant and the evaluation of their environmental impact has been entrusted to “the informed judgment of the Commission, and not to the preferences of reviewing courts.” Id. at 767, 88 S.Ct. at 1360. The statutory standard of substantial evidence is “something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). In a recent case involving these principles of court review, the Supreme Court said: “Insofar as the Court of Appeals’ opinion implies that there was not substantial evidence to support a finding of some benefits, it is clearly wrong. And insofar as the court’s opinion implies that the responsibilities assumed by Gainesville in combination with the benefits found to accrue to Florida Power were insufficient to constitute ‘compensation * * * reasonably due,’ the Court of Appeals overstepped the role of the judiciary. Congress ordained that that determination should be made, in the first instance, by the Commission, and on the record made in this case, the Court of Appeals erred in not deferring to the Commission’s expert judgment.” Gainesville Utilities Department v. Florida Power Corp., 402 U.S. 515, 527, 91 S.Ct. 1592, 1599, 29 L.Ed.2d 74 (1971). Petitioners would have us reject these familiar principles because, they argue, different standards ought to prevail with respect to issues arising in an environmental context. There is an effort to find a basis for this position in our earlier remand in Scenic Hudson and in cases which have taken a similar approach. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert, denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). To read these cases as sanctioning a new standard of judicial review for findings on matters of environmental policy is to misconstrue both the holdings in the cases and the nature of our remand in Scenic Hudson. An element common to all these cases was the failure of an agency or other governmental authority to give adequate consideration to the environmental factors in the situations with which they were presented. In Citizens to Preserve Overton Park, Inc. v. Volpe, swpra, 401 U.S. at 416, 91 S. Ct. at 824, for example, the Court remanded the case to the district court to determine whether the Secretary of Transportation’s decision “was based on a consideration of the relevant factors.” The Court pointed out that “[ajlthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. In Udall v. Federal Power Commission, supra, 387 U.S. at 450-451, 87 S.Ct. 1712, the remand to the Commission instructed it to explore the “neglected phases of the cases” and to make “an informed judgment on these phases of the cases.” The Court explicitly stated that it expressed “no opinion on the merits.” It added, “It is not our task to determine whether any dam at all should be built or whether if one is authorized it should be private or public.” Id. at 450, 87 S.Ct. at 1724. In our opinion in Scenic Hudson, supra, remanding the 1965 orders of the Commission, we were careful to make it clear that we were raising no question of change in the basic standard of administrative review and that the purpose of our remand was only to require the proper performance of its functions by the Commission. We said: “While the courts have no authority to concern themselves with the policies of the Commission, it is their duty to see to it that the Commission’s decisions receive that careful consideration which the statute contemplates.” Id. at 612 of 354 F.2d. “This court cannot and should not attempt to substitute its judgment for that of the Commission. But we must decide whether the Commission has correctly discharged its duties. * * The Commission must see to it that the record is complete.” Id., at 620. Where the Commission has considered all relevant factors, and where the challenged findings, based on such full consideration, are supported by substantial evidence, we will not allow our personal views as to the desirability of the result reached by the Commission to influence us in our decision. We now turn therefore to an examination of whether our remand has been complied with, whether there is substantial evidence to support the Commission’s decisions on the issues remanded and other challenged issues, and whether the Commission has complied with all applicable statutory requirements. II. In our opinion remanding this proceeding to the Commission we directed the Commission to weigh a number of factors which we believed had not been given adequate consideration. Holding that “recreational purposes” in § 10(a) of the Act (16 U.S.C. § 803(a) (1964)) “encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites,” we required the Commission “properly [to] weigh each [such] factor.” Scenic Hudson, supra, at 614. We held “that the Commission is under a statutory duty to give full consideration to alternative plans” (Id. at 617). We criticized the Commission’s refusal to receive “proffered information on fish protective devices and underground transmission facilities. * * * ” Id. at 620, and directed it to “take the whole fisheries question into consideration before deciding whether the Storm King project is to be licensed.” (Id. at 624). We ordered the Commission to weigh “the aesthetic advantages of underground transmission lines against the economic disadvantages” (Id. at 623). In sum the Commission was admonished to “reexamine all questions on which we have found the record insufficient and all related matters.” (Id. at 624). On January 25, 1966, acting on our remand, the Commission ordered that further proceedings be commenced before a Hearing Examiner. In that order the Commission said: “We do not understand the Court’s order as restricting any further proceedings to the specific matters on which it found the present record insufficient to support our previous determinations and we do not believe it would be in the public interest to do so. The record in the first two hearings in the proceeding will, of course, be part of the present hearing. But all parties will be free to offer timely presentations of evidence on all matters relevant to the question whether a license should be granted.” The hearings were commenced on November 14, 1966 and with several brief recesses, were concluded on May 23, 1967. A motion of the State of Connecticut’s Board of Fisheries and Game to intervene was subsequently granted, and further hearings were held on the issue of the protection of fish. These hearings were closed on October 16, 1967. On August 6, 1968, the Hearing Examiner issued his Initial Decision recommending that Con Ed be granted a 50 year license for the project. On November 19, 1968, the proceedings were reopened in response to a petition by the City of New York to intervene and introduce evidence on possible hazards to its Catskill Aqueduct. At this proceeding, further evidence was taken on the alternative site in Palisades Interstate Park. The Hearing Examiner issued a Supplemental Initial Decision on December 23, 1969, which concluded that the project did not endanger the Aqueduct and that the alternative site was “not a proper and preferable alternative location for applicant’s projected project.” In all other respects, except for minor items, the Initial Decision remained unchanged. The proceedings on remand involved 100 hearing days, the testimony of some sixty expert witnesses, and the introduction of 675 exhibits. The record comprises more than 19,000 pages. Both the Hearing Examiner and the Commissioners arranged with the parties to visit the proposed site and the surrounding area before rendering their decisions. On August 19, 1970, the Commission issued its decision. In its opinion the Commission reviewed the power needs of the area served by Con Ed and considered possible alternatives to the Storm King project in terms of reliability, cost, air and noise pollution, and overall environmental impact. Concluding that there was no satisfactory alternative, the Commission evaluated the environmental effects of the project itself. It held that the scenic impact would be minimal, that no historic site would be adversely affected, that the fish would be adequately protected and that the proposed park and scenic overlook would enhance recreational facilities. The Commission found that further undergrounding of transmission lines would result in unreliability in the delivery of power and would be too costly. The Commission determined that construction of the project would entail no appreciable hazard to the Aqueduct. We find that the proceedings of the Commission and its report meet the objections upon the basis of which we remanded the earlier determination. Examination of the Commission’s conclusions and the evidence on which the conclusions are based establishes that the Commission has complied with our instructions and that the evidence supporting the Commission’s conclusions amply meets the statutory requirement of substantiality. A. “Alternative plans” The Commission gave detailed and comprehensive consideration to alternatives. Its initial statement of the basic issues of the case before it and the manner of its subsequent dealing with those issues demonstrates that there is no sound basis for petitioners’ contention that the Commission’s approach was too narrow. The Commission said: “The weighing of social values required by the concept of the public convenience and necessity in this case involves on the one hand the alleged greater and much needed reliability, economic savings, and anti-air pollution benefits which this project offers compared with any feasible alternative, and on the other hand the alleged aesthetic and environmental detriment the project would impose on an area of great scenic, natural and historic value. Simply put, the issue is whether the project offers substantially more reliable electric service as well as cheaper electricity generated in a cleaner manner than any other feasible alternative and, if so, whether the project will create detrimental aesthetic and environmental conditions of such degree as to lead on balance to a judgment that the public convenience and necessity would be better served by denying the application herein.” In deciding this issue the Commission proceeded to evaluate the needs of Con Ed and the probability that the proposed project would supply these needs in a more desirable way than would the possible alternatives. The Con Ed system serves the densely populated area of New York City’s five boroughs and part of Westchester County. The electric load requirements that Con Ed must meet are constantly growing. The Commission found that in 1970 Con Ed’s capacity would be approximately 10,126 mw, plus 520 mw contracted from other utilities. However, much of the system is outdated and about 2,000 mw of its present capacity are due to be eliminated by 1978. And yet by 1979, Con Edison’s annual peak load will be approximately 10,850 mw. Two factors were cited by the Commission as necessary to insure availability of the required amount of energy and to prevent major power failures, such as that which occurred in the northeast United States in 1965, as well as the lesser “brownouts” and “blackouts” which have become all too frequent in the New York area. The first of these two factors is the existence of adequate power facilities to meet the growing demand for electrical energy in the area served. The second is an adequate “reserve,” a part of which must be what is called a “spinning reserve.” This “spinning reserve” is provided by units operating at less than full capacity but synchronized to the system so that the energy generated by them will all be immediately available to meet an increase in loads. It is this latter need that the Storm King project is designed to meet. The Commission found that in order to prevent a major power failure the “spinning reserve” must be fully available within two minutes. The Commission expressed the opinion, based on the record before it, that “if Cornwall or a pumped storage equivalent with its very fast pick-up characteristics had been available the blackout of 1965 might have been avoided.” The Commission examined in detail the possibility that there were alternatives more desirable than the Storm King project which would be capable of meeting these needs. Our earlier opinion required the Commission to consider the use of gas turbines. The Commission determined that using gas turbines alone would not be a feasible alternative to a pumped storage unit since the turbines would be less reliable and more expensive. Gas turbines, the Commission found, take between three minutes and ten seconds and four minutes to be brought to full operation from a cold start. Moreover, the Commission stated, unlike pumped storage units, gas turbines have a relatively low capacity for storage of rotational energy, and thus do not provide as substantial a cushioning effect in the event of a disturbance. Gas turbines were found to be considerably more expensive to operate than pumped storage units. The Commission adopted the conclusion of a staff study that the operating costs of a pumped storage project would be at least $119,-000,000 less over a twenty-year period than the operating costs of gas turbines. It would cost about $38,000,000 less, the study estimated, to construct the pumped storage project than to provide the gas turbines. The Commission also considered the possibilities of a project composed entirely of nuclear units but found that such an alternative would be inadequate for reasons which are fully developed in the report. The Commission was of the opinion that a nuclear-gas turbine combination “suffers from the shortcomings inherent in its components, that is, unless the gas turbines are spinning they cannot be brought into operation soon enough to meet emergencies and the nuclear component has relatively slow response characteristics which when combined with the forced outage reduces the reliability quotient of such a combination.” “[T]he reliability quotient of a nuclear-gas turbine combination,” the Commission said, “is far less than Cornwall’s.” The Commission estimated that construction of the nuclear-gas turbine alternative would cost |158,794,000 more than Cornwall. On the basis of these findings the Commission said: “We do not accept the proposition put forth by Scenic Hudson that this extra cost is de minimis when spread among all of Con Ed’s customers. There are often good reasons why it is in the public interest to utilize a more expensive alternative. In appropriate cases the extra cost may even be substantial. But whether substantial or not, the extra cost must be justified by a showing that the alternative is in the public interest. There has been no showing that a combination nuclear-gas turbine alternative offers any advantages or indeed is even reasonably equivalent to Cornwall.” The Commission also considered the feasibility of using power purchased from outside sources to supply Con Ed’s needs as an alternative to building the Storm King plant. It found that the maximum amount that could be assured would be slightly in excess of 1000 mw. Thus this alternative, the Commission held, would not provide sufficient power. Petitioners do not suggest that interconnections alone could provide a feasible solution. Scenic Hudson proposed a combination of 810 mw of purchased power with gas turbines. However since the gas turbines in this combination would not be used to generate spinning reserves but to take on the load, the Commission found that this alternative would not serve the principal function for which the Storm King project is designed: “In view of the assumption inherent in this suggestion by Scenic Hudson that the gas turbines would not operate as a spinning reserve, the spinning reserve would have to come from the purchase sources if this alternative is to be comparable to Cornwall. Accordingly this possibility cannot be deemed reliable, since such purchases would not be available in the event of a separation, the very time they would be most needed.” The Commission also examined the possibility of alternative sites for a pumped storage project. As the Commission points out, none of the petitioners offered any evidence on possible alternative hydro-electric sites. However, both Con Ed and the Commission staff conducted extensive surveys to determine if such alternatives existed within a hundred mile radius of New York City. Detailed studies for five such sites showed that they would be more costly and less reliable than the Cornwall project. All of them would require the construction of long transmission lines. For example, the Bashbish site, in New England, would require a transmission system of between 32 and 56 miles, with attendant effects on the surrounding land, as compared to the 9.2 miles of overhead corridor planned for the Cornwall project. In its examination of alternatives the Commission considered their effect on air pollution, noise pollution and the overall environmental situation. Nuclear energy was found by the Commission to be the method of generation of electric power involving the least pollution. However since nuclear energy by itself is inadequate for peaking purposes, the effect on air pollution must be measured with relation to gas turbines, operating either as part of a nuclear-gas turbine system or operated partly loaded as spinning reserve. The Commission pointed out that the peaking energy generated at the Cornwall project is itself pollution free. Whatever pollution results from the operation of the project will be caused by the plants which supply the power for pumping the water into the reservoir. As the Commission said, “if the energy necessary to pump Cornwall comes from polluting power plants in New York City that would otherwise be idle, little or nothing would be gained in reducing the air pollution problem.” The Commission concluded, however, that “water for Cornwall will normally be pumped by use of electric energy from non-polluting sources * * The Commission believed that construction of the Cornwall project would permit a more rapid replacement of old relatively inefficient steam-electric plants with large nuclear plants. Even during the early years of the project’s operation, because pumping would take place during off-peak hours, i. e., at night, “clean-burning” natural gas would probably be available in amounts sufficient to meet a large part of the Cornwall requirements. The Commission pointed out that proposed alternative methods of meeting Con Ed’s need for power, since they too require construction of new facilities, would have an overall impact on the physical environment similar to that to which the opponents of the Cornwall project are objecting. “Still another approach to weighing ‘alternatives to the proposed action’ from an environmental standpoint is to compare the operational consequence to the environment of the Cornwall project with similar consequences which would result from any reasonable alternative project. We conclude that none of the most likely proposed alternatives, including an all-nuclear unit or the mixed nuclear and gas turbine combination, could be sited within 100 miles of New York City with any less physical impact on the environmental aspects of the affected area than the Cornwall project.” B. “The conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.” The Commission gave extended consideration to the environmental aspect of our remand order. Testimony was taken from “a veritable ‘Who’s Who’ of conservation, each witness discussing a different facet of this esoteric and subjective matter.” The Commission said: “[O]ur conclusion that the license must issue does not rest upon any discounting of the case made by the intervenors relating to the natural beauty, historical significance, and spiritual qualities of the Storm King Mountain in its setting.” Its essential finding in this regard was that the Cornwall project, as modified by the Commission to make any structures not buried “as unobtrusive as ingenuity can make them,” constitutes “no real impairment of the environmental and scenic aspects of the Highlands.” The original plan for the project provided for a powerhouse that would be 80 per cent underground. The project licensed by the Commission now calls for the powerhouse to be completely underground. While in an area visually part of Storm King Mountain, the powerhouse would not be under the mountain itself but in the Village of Cornwall “on a small river-bottom foothill.” Scenic Hudson’s witness Vincent J. Scully, professor of art and architecture at Yale University, although he was opposed to other features of the project, stated that the underground powerhouse itself did not “enter into the problem of visual relationship.” The external features of the powerhouse site would all be located below the cut of Storm King Highway on the mountain. The only features on the powerhouse site which would be aboveground would be the entrance to the underground plant, an access road, and the tailrace. The Commission said that “the land surface above the power station will be planted and as much of the existing growth as possible preserved.” The tailrace and abutments would be located at the river’s edge, in an area partially occupied at present by a decidedly unseenic railroad bridge. The tail-race would be 685 feet long, with a vertical rock cut rising from 10 to 32 feet above the river. At the east end of the tailrace the visible height of the cut would be at most 20 feet above the existing railroad bridge. At the west end, the cut would be completely obscured by the existing bridge. The Commission pointed out that the “planting of vines on the rock face behind the tailrace would further serve to amelioriate the view from the river.” With respect to the effect of the construction of the tail-race on the view of the mountain, the Commission said: “The tailrace would be located where the river widens above the gorge and curves west by north, above the powerhouse. From the bank directly across the river the distance is 4000 feet. Because of the curved shoreline at that distance, at the river level there would be no direct view of the tail-race.” The tailrace and the vertical cut would not, therefore, destroy a scenic, unspoiled view of the mountain. They would in large part be hidden from view by existing man-made structures or natural phenomena. The scenic impact of that part of the tailrace and cut that would be visible are to be evaluated not in terms of the number of square feet potentially visible but in terms of the entire visible panorama. The total area that would be occupied would be minuscule in proportion to the total area encompassed within a viewer’s peripheral vision. The Commission could reasonably find that with the river in the foreground and the mountain majestically rising 1343 feet behind, the tailrace and the vertical cut would not seriously impair the mountain’s scenic aspects. The Commission found, in summary, that: “Limiting the external features at the powerhouse site to the portal entrance, tailrace, and access road, totalling approximately 3 or 4 acres — out of Storm King’s total of over 400 acres — should reduce to a minimum the visual impact on the scenic vistas of Storm King Mountain or the Highland Gorge of the Hudson River and thereby preclude any material scenic impairment or detriment.” The reservoir would not be on Storm King Mountain itself but behind the mountain from the river about two miles south and west of the powerhouse site, on lands owned in part by the Village of Cornwall and in part by Harvard University. It would not be visible from the river; its visibility from other points “varies in relation to the elevation and distance of the view.” From many of the points from which the reservoir can be seen various industrial developments can be seen as well. The Commission found that, although the 240 acre reservoir will be larger than any of the other nearby bodies of water, “in the scale of the area it does not reasonably appear to dwarf the scene. Nor should it be materially different in appearance from ponds in the area and thus should not be deemed incongruous with the present character of the area.” Finally with respect to the contention that the inside walls of mud, or rock fill, would be exposed as the reservoir rises and falls, the Commission found that the rock and earth comprising the dikes would not be out of character with the rock and bare spots common in the Highlands and that “[t]he plantings and natural growth which would adhere to the exterior and possibly interior surfaces of the dikes would also serve to ameliorate any intrusion of the reservoir and dikes on the natural scene.” The Commission’s criticisms led to the substantial modification of the recreational aspects of the project. Con Ed’s original proposal included an information center and recreation area to be located in the vicinity of the powerhouse site. These features were eliminated by the Commission. The Commission approved the construction of a riverfront park and a scenic overlook. The park is to be built on the rock excavated from the site of the power plant. It would be located in that part of the river to the north and west of the project adjacent to the shoreline. This 57 acre mile-long recreational facility, to be linked by two bridges to the Town of Cornwall to which it will be transferred upon completion, is to consist of play area, picnic sites, shelters, and sanitary facilities. The scenic overlook is to occupy a 36 acre tract abutting State Highway 9-W, and would also include picnic sites. The Commission found that the overlook would enable visitors to enjoy “the scenic vistas of the Hudson River” and “will not seriously or substantially impinge on the scenic historic or environmental qualities of the area.” The Commission heard extensive testimony on the effect of the project on historic sites in the area. There is no record that any event of historical significance took place at Cornwall or on Storm King Mountain. Constitution Island and West Point, and Forts Clinton and Montgomery, which are at Bear Mountain considerably below the project site, are the closest areas of historical importance. The project site is not visible from either Constitution Island or West Point. However, Constitution Island, which has the best preserved revolutionary fortification in the Highlands, will be visible from the proposed scenic overlook. None of the parties has offered any specific rebuttal to the Commission’s conclusion that “the project will not cause the destruction of any historical site.” The thrust of petitioners’ arguments is that the principle of preservation of scenic beauty permits of no intrusion at all into this area and that, therefore, no power plant, no matter how innocuous, may be built. This is clearly a policy determination which, whatever may be our personal views, we do not have the power to impose on the Commission. The Commission has complied with the terms of our remand by giving careful and thorough consideration to the impact of the project on the environment. The conclusions it has reached are supported by substantial evidence. C. The “fisheries question.” In our remand order, in addition to requiring further consideration of the overall environmental impact of the project, we specifically directed the Commission to “take the whole fisheries question into consideration before deciding whether the Storm King Project is to be licensed.” Scenic Hudson, supra at 624, of 354 F.2d. We had in mind the allegations of fishermen’s groups that the project threatened to destroy the eggs of the striped bass whose major spawning grounds, they maintained, are in the immediate vicinity of the project, and “that ‘no screening device presently feasible would adequately protect these early stages of fish life’ and that their loss would ultimately destroy the economically valuable fisheries.” Id. The Commission took official notice of the report of the Hudson River Policy Committee entitled “Hudson River Fisheries Investigations 1965-1968,” which was based upon a study sponsored by the New York State Conservation Department and the United States Fish and Wildlife Service and conducted under the field direction of a technical advisor of the United States Bureau of Sport Fisheries. The “Hudson River Fisheries Investigations” concluded that: “ * * * the evidence indicates that there would not be any significant adverse effects to the striped bass and American shad fisheries of the Hudson River from a pumped storage generating plant at Cornwall, New York.” The Policy Committee’s study lends strong support to the views presented by a number of witnesses at the hearings to the effect that the spawning grounds of striped bass extend from locations at river mile 35 to river mile 123, and that these spawning grounds are, in the Commission’s words, “not consistently more favorable in one location than another.” The Commission found “that bass spawn substantially in the Hudson River over an 80 mile reach, including the Cornwall area, and that no part thereof is distinguished as a major spawning area.” The devices originally proposed to protect the fish have been redesigned to afford greater protection. Referring to the testimony of a fishery biologist from the Commission staff, the Commission said: “ * * * that while the mortality rates of fish, fish eggs, and larvae inhabiting the water which will be drawn through the screen and the plant cannot be measured short of actual measurement during project operation, in his own opinion the losses to the fishery caused by the operation of the project would not significantly affect the Hudson River fishery resources.” In order to compensate for the loss of fish resulting from the operation of the proposed plant, Con Ed proposed, and the Commission approved, construction of a fish hatchery.' The Commission concluded: “Witness Raney’s fear as to what might or could happen [is] counterbalanced by testimony based on sampling studies which relating egg producing capacity of the striped bass to volumes of water in plant operation indicates that the impact on Hudson fishery would not be substantial. Thus even if none of the fish and eggs at Cornwall survived, the total impact would be small. The evidence, however, is to the effect that no such disaster would befall the Cornwall segment. Eggs, larvae and fish entering the plant would have a survival rate in the area of 80 per cent. Further, hatchery operations elsewhere indicate the feasibility of an operation in the Hudson which would be capable of replacing any losses attributable to the project.” D. The “aesthetic advantages of underground transmission lines against the economic disadvantages” and related routing problems. In compliance with our mandate, the Commission investigated the possibility of constructing the transmission lines of the project entirely underground. The Commission weighed the obvious aesthetic advantage of underground transmission as against its economic and functional disadvantages. The evidence shows that putting the transmission lines underground would cost substantially more than having them overhead. The Commission’s staff estimated that considering both construction and maintenance costs, underground lines would be approximately 16 times as expensive as overhead lines. The Commission explained that: “The relative costs of undergrounding can be appreciated from the fact that the problems inherent in transmitting power underground at high voltages are not simply a matter of putting an overhead transmission line, which is merely a bare insulated piece of metal conductor, into a trench. The phenomena of heat buildup and condenser (or capacitance) effect require that underground cables be an entirely different species of equipment.” The Commission cited a number of technological factors that result in higher labor and material costs for underground-ing. Underground cable requires a type of insulation which can be applied only by highly skilled labor. Transmission of power by underground lines presents problems which can be solved only by the installation of large magnet-type coils every 2 to 3 miles. Various other expensive techniques, such as intricate splicing, are needed to meet other problems presented by the electrical and thermal properties of underground lines. The Commission found that there were functional disadvantages in underground cables. Although overhead lines have more outages, there can generally be immediate automatic reclosure with no disruption of service. Outages in underground cables, on the other hand, result in considerably greater disruption of service since the failure must be located, the damaged area excavated, and complicated repairs made. The Commission, balancing the several factors which are involved, concluded: “It is thus apparent that only for the most cogent reasons, as where no feasible alternative is possible or where the aesthetic detriment is so violent as to preclude any consideration of overhead transmission facilities, that undergrounding should be required. Nor do we believe it is in the public interest to burden consumers with the cost of undergrounding cables unless it were necessary to prevent such destruction or serious damage.” The transmission route which is now approved is different from the route challenged before this court in 1965. The new route is not the route preferred by Con Ed, but is a modified route developed by the Commission staff. Although it is 5 to 6 miles longer than the route proposed by Con Ed, it would require 4 miles less of transmission corridor because it uses a greater length of the existing Pleasant Valley-Millwood corridor. The alternative route was selected because “it will impinge less on the area through which it passes than would any other route.” The area traversed is “rough, wooded and hilly. More importantly, its valleys lie in a north-easterly direction and are oriented so as to provide the possibility of locating lines below crests.” The wooded nature of the area will provide natural screening. The Commission found that “the area will remain what it is now — scenic and pleasant, with open farmland and orchards and partly wooded with some brooks. To say that this will be seriously damaged or destroyed by an overhead transmission line is not consistent with reality.” Since the Commission’s conclusions on this issue are based upon consideration of all relevant factors and are supported by substantial evidence, they cannot be rejected. E. The Catskill Aqueduct The issue of possible danger to New York City’s Catskill Aqueduct was not involved in the earlier proceeding. It is presented in the new application because of the change in the Cornwall project to provide for construction of the powerhouse completely underground. As a consequence of that change the powerhouse is to be located at its closest point a distance of about 140 feet from the Moodna Pressure Tunnel, a link in the Catskill Aqueduct system. The Catskill system is one of three systems that supply New York City with substantially all of its water. Twenty-odd communities in upstate counties also have the right to, and do tap the Catskill Aqueduct. The city contends that the Cornwall project interferes with its control of the Catskill Aqueduct and is therefore precluded by Section 27 of the Federal Power Act, 16 U.S.C. § 821 (1964), which provides that: “Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.” The argument based on Section 27 is without merit. The license that the Commission has issued does not authorize Con Ed to divert any of the city’s water or to interfere with the tunnel. Moreover the “only purpose of section 27 is to preserve to holders of state-conferred water rights a right to compensation if those rights are taken or destroyed as an incident to the exercise by another, of a license granted by the Commission.” Portland General Electric Co. v. Federal Power Commission, 328 F.2d 165, 176, & n. 23 (9th Cir. 1964), citing City of Fresno v. California, 372 U.S. 627, 629-30, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963) and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 291, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), both of which involved the very similar language of Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 383 (1964). Section 27 was not intended to give the city the power to veto Commission action. The Commission concluded that excavation of the powerhouse site would not cause damage to the Moodna Pressure Tunnel, that controlled blasting during construction would not endanger the Aqueduct and, generally, that “the probability of damage to the Aqueduct is remote.” We think that there is substantial evidence in the record to support the Commission’s determination. The Commission found that the rock underlying the project “is a very large mass of dense uniform crystalline rock underlain by sedimental rock capable of sustaining great loads.” The city contends that, on the contrary, instability of the rock at the Aqueduct site can be deduced from a failure of the original Moodna Tunnel in 1913 and by the phenomenon of “popping rock” encountered in construction of the tunnel. However, the evidence shows that the failure of the original Moodna Tunnel was due to excessive water pressure and insufficient rock cover. The tunnel was corrected by construction of an alternate shaft and has operated for a period of over 50 years without untoward incident. The Commission found that “[t]he phenomenon of ‘popping rock’ occurs in rock of this area only at depths below 1,000 feet,” far below the depth proposed for the Cornwall project. Although witnesses for the City testified that stress changes caused by the powerhouse excavation and by blasting might present hazards to the Aqueduct, other witnesses seriously disputed these contentions. Smith, a consulting geologist for Con Ed, testified, as the Commission said, “that he could conceive of no possible condition in this area which would make the proposed plan hazardous from a geological point of view.” Dr. Bartlett W. Paulding, Jr., Associate Professor and Acting Head of the Basic Engineering Department of the Colorado School of Mines, who was retained by Con Ed at the suggestion of the City, testified that the effect of excavations on the aqueduct would be insignificant. Dr. Paulding, whom the Commission described as “a geologist and geophysicist specializing in rock mechanics,” concluded, in the Commission’s words “that the absence of adverse geological conditions, coupled with the results of a photoelastic analysis of the stress conditions around rectangular openings * * * indicate that the existing Catskill Aqueduct will not be endangered * * * during * * * excavation for the power plant.” Similar testimony was offered by Charles P. Benziger who based his conclusion on low stress conditions at the site as shown by seismic tests in drilled holes at the point where the power station is to be located. The Commission’s conclusion that blasting would pose at most a remote possibility of damage has ample 'support in the record. The city’s own witness, Don Deere, testified that it was “possible, but unlikely that blasting, if restricted and properly controlled, will cause damage to the pressure tunnel.” Another of the city’s witnesses, Malcolm T. Wane, testified that the effects of blasting are somewhat conjectural. Con Ed’s witness Paulding testified that the Aqueduct would not be endangered if blasting charges were limited to 55 pounds per charge. The Commission’s conclusion that properly controlled blasting presented at most a “remote” danger is not seriously challenged by the city. It is clear that the resolution of highly complex technological issues such as these was entrusted by Congress to the Commission and not to the courts. Where the Commission’s conclusions are supported by substantial evidence, the courts must accept them. It seems to us that it would be very difficult indeed to argue that the evidence supporting the Commission’s determination with respect to the Aqueduct is insubstantial. In fact the argument presented to us on this issue appears to be either that some higher burden of proof should be imposed with respect to the matter or that the city should be able to exercise what, in effect, amounts to a veto power. However, there is no authority whatever to support the imposition of any greater burden of proof than that provided in the statutory standard and “[s]uch a veto power easily could destroy the effectiveness of the federal act. It would subordinate to the control of the [city] the ‘comprehensive’ planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.” First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 164, 66 S.Ct. 906, 912, 90 L.Ed. 1143 (1946) (footnote omitted). III. The only remaining concern is the allegation that the Commission failed to comply with certain statutory directives. The first of these statutes is Section 10(a) of the Federal Power Act, 16 U.S.C. § 803(a) (1964 & Supp. 1971) which provides: “§ 803. Conditions of license generally. All licenses issued under sections 792, 793, 795-818, and 820-823 of this title shall be on the following conditions : (a) That the project adopted * * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.” This is the statute upon which, to a large extent, our earlier remand was based. In our opinion we said that the phrase “recreational purposes” “undoubtedly encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.” Scenic Hudson, supra at 614 of 354 F.2d. We directed the Commission to consider all of these factors in reaching its decision. It is obvious that in finding compliance with our remand order, we also find compliance with the statute on which that order was based. As we have pointed out, the Commission has given careful and thorough consideration to “recreational purposes,” and, indeed, has used its “authority to require the modification of [the] project” in a number of aspects related to this end. There is no real dispute as to other findings required by the statute. The Commission found that there would be no impediment to navigation, that use of the Hudson River for electric generation by this project is “well adapted to development of the waterway for the use or benefit of interstate or foreign commerce,” and that the project will not interfere with any future program for the river since it will discharge no chemical, thermal or solid pollutants into the waterway. In short, the Commission has given full consideration to all of the statutory factors and has thus performed the “specific planning responsibility” entrusted to it by Congress in Section 10(a). The petitioners also claim that the Commission has violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (Supp.1971). This Act was passed after the close of the hearing, but before the Commission’s decision. Its applicability to this proceeding is clear, and is conceded. See Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert, denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed. 2d 808 (1971). Section 101 “recognizing * * * the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man” requires the federal government to “(b) * * * use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, whenever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities. * * * ” 42 U.S.C. § 4331 (Supp.1971). Section 102 of the Act, 42 U.S.C. § 4332 (Supp.1971), requires agencies of the federal government to take certain prescribed measures. The policy statement in Section 101 envisions the very type of full consideration and balancing of various factors which we, by our remand order, required the Commission to undertake. Like our remand, the Act does not require that a particular decision be reached but only that all factors be fully explored. The eventual decision still remains the duty of the responsible agency. The Commission has complied with the specific directives contained in Section 102 of the Act. The hearings reflected the “systematic, interdisciplinary approach” required by that section. The Commission consulted with other agencies, as required by Section 102, including the Chief of Engineers, the Advisory Council on Historic Preservation, the Department of the Interior, the Atomic Energy Commission and a number of state and local groups that stand to be affected. The environmental statement required by Section 102(2) (C) of the Act, 42 U.S.C. § 4332(2) (C) (Supp. 1971) was submitted in the form of the Commission’s opinion. In view of the exhaustive environmental findings which occupy a substantial portion of the Commission’s opinion, and the Commission’s explicit conformance with the enumerated portions of the required statement, we conclude that full compliance with the National Environmental Policy has been demonstrated. IV. We do not consider that the five years of additional investigation which followed our remand were spent in vain. The petitioners performed a valuable service in that earlier case, and later before the Commission. By reason of their efforts the Commission has reevaluated the entire Cornwall project. The modifications in the project reflect a heightened awareness of the conflict between utilitarian and aesthetic needs. Whether the project as it now stands represents a perfect balance of these needs is not for this court to decide. Since the Commission has fully performed the duties and responsibilities imposed upon it, it is our obligation to deny the petitions in all respects. . All of the petitioners except Palisades Interstate Park Commission object to the licensing order of the Federal Power Commission in toto. The Palisades Interstate Park Commission opposes only the site 2 alternative which calls for the location of the powerhouse within Palisades Interstate Park. The objection of petitioner City of New York is based on the aqueduct and air pollution question alone. The Izaak Walton League of America rests its objection primarily on tlie fisheries question and other environmental factors. All other petitioners raise virtually all the issues discussed in this opinion. Intervenor Consolidated Edison Company of New York, Inc., supports the Commission’s order, as does intervenor Town of Cornwall. . One megawatt (mw) equals 1 million watts; one kilowatt (kw) equals one thousand watts. We will use the megawatt terminology throughout this opinion. . Sive, Some Thoughts of an Enviromental Lawyer in the Wilderness of Administrative Law, 70 Colum.L.Rev. 612 (1970), seeks to provide support for such a position. . Id. at 631 et seq. and 650-651. . The Initial Decision was amended “only to provide for the location of a switching station at Carmel on Applicant’s main transmission system instead of Kent; and for the redesign of the Cornwall East switching station and the Cornwall transformer gallery, in connection with the relocation of circuit breakers, bus and related equipment. * * * ” . The Commission, disagreeing with its Hearing Examiner, authorized use of the alternative site within Palisades Interstate Park on the conditions to which we have referred above. In view of our denial of the petitions in this case, it will be unnecessary for us to review this last determination. . The Commission noted that the annual peak loads have shifted from the winter season to the summer. . See Prevention of Power Failures, A Report to the President by the Federal Power Commission July 1967, Volume I at 43-44. . “It appears from the evidence that to be effective in such an event 70 to 75% of the spinning reserve should be synchronized and available in 30 seconds to one minute, with all of the reserve available within two minutes.” . A Con Ed study had estimated a twenty year operating savings of $137,023,000. . Several combinations of gas turbines and a nuclear unit were proposed. Con Ed believed that eight gas turbines would be required, Scenic Hudson, five. The staff study concluded that six somewhat larger units would be adequate. The Commission based its conclusions on the combination found by the Examiner to be most appropriate: seven turbine units coupled with a 1000 mw nuclear unit. . The New Power Pool consists of the Upstate New York System and the Southeastern New York Companies (SENY). The Commission estimates that the seasonal exchange between these two would amount to 500 mw in 1975 taking into account tlie requirements for maintenance of generating capacity. Another 4G5 mw could be secured from the New England Power Pool and the Pennsylvania-New Jersey-Maryland Power Pool. . The highway crosses the mountain at an elevation varying from 200 feet to 280 feet. The height of Storm King Mountain is 1,343 feet. . The part owned by Harvard is a portion of Black Rock Forest, a 3,700 acre experimental tract of timber. About 240 acres at the east end of the forest would be acquired for the jDrojeet. The remaining land will be unaffected. . The Commission noted that all large ponds in the area are artificial. . Of the one hundred and forty acres to be acquired by Con Ed, over 100 acres is to be transferred to the Palisades Interstate Park Commission for recreational use. . This accords with the findings of the New England-New York Inter-Agency Committee, Report of the New England-New York Region, Subregion “E” (Hudson River Basin), 999(d) (reprinted as Sen.Doc. No. 14, 85th Cong., 1st Sess. (1957) which recommended for the Hudson River Gorge “ * * * establishment of a system of highway waysides * * * to make available, in a safe manner, the scenic vistas of the countryside.” . The propriety of the use by the Commission of the findings of the Advisory Council on Historic Preservation, set up by the Historic Preservation Act of 1966, 16 U.S.C. § 470f (Supp.1971), is the subject of some dispute. The Advisory Council found that plans for the project would have a “minimal adverse effect” on the scenic values of the area. Petitioner Scenic Hudson contends that the Council’s finding is not only contrary to evidence but also that it ought not to be considered by the Commission because Scenic: Hudson did not participate in the deliberations of the Council while the Commission’s staff did. The Commission ruled that it had a statutory obligation to consider the report. We need not resolve this minor issue since the Commission stated that its “finding is made on the basis of record evidence, independent of consideration of the findings of the Advisory Council, which simply affirms our conclusion.” . Scenic Hudson’s witness, Raney, testified : “Anything that man does is substantially opposed to nature. So if you build any sort of a structure you will have situations which are not found naturally in the environment so here you have an additional situation where you have fishes drawn up into an artificial impoundment, eggs drawn up, larvae drawn up, possibly thirty species upon which they feed. So it is a very complicated business to try to evaluate the overall effect this will have. But basically the effect will be harmful to the fishes. I think anything that affects any substantial number of eggs, larvae, young or adult, could ultimately have a substantial effect on a fishery. But the degree of the effect I don’t know.” . Con Ed is required by the license order to follow recognized guidelines for the construction of overhead transmission lines. Article 35(5) of the Commission’s license order includes the guidelines contained in the Hudson Valley Power Commission’s “Power Lines and Scenic Values in the Hudson River Valley.” In addition, Con Ed is bound by the Commission’s Order No. 414 which prescribes general regulations for the “protection and enhancement of aesthetic and related values in the design, location, construction, and operation of project works” (35 Fed.Reg. 18585 (1970)). . That statute provides : “Nothing in sections * * * of this title shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested rights acquired thereunder. * * * ” 43 U.S.C. § 383 (1964). . Torris Eide, consultant engineer to the Chief Engineer of the New York City Board of Water Supply testified that the removal of 254,000 cubic yards of rock might disturb the equilibrium in the forces within the rock formation, and thus present a risk to the Aqueduct. However, he had conducted no geologic or seismic tests of the area. Thomas Fluhr, engineering geologist and consultant to the New York City Board of Water Supply testified that the rock in the area appeared to be under stress. He stated “[t]he risk of failure of the aqueduct cannot be regarded as imminent but it represents a definite hazard.” He conceded that the risk was small, but stated that “there certainly is some risk.” He too had made no surveys beyond general mathematical studies. Malcolm T. Wane, Associate Professor of Mining and Engineering at Columbia University, testified for the city that he found 'that a vertical stress relief of 14% and a horizontal stress relief of 11% would result from excavation. He did not know what effect such changes would have since the present state of equilibrium of the Aqueduct was unknown. Don Deere, Professor in the Department of Civil Engineering and Geology at the University of Illinois, testified that there were too many unknowns to permit evaluation of stress changes. He believed that “there was a small but real risk involved to the present aqueduct because of the changes in stress and other activities associated with the construction of the project at this site.” . The Act became effective January 1,1970.

Scenic Hudson Preservation Conference v. Federal Power Commission

OAKES, Circuit Judge (dissenting): If this case came to us without environmental overtones and with no threat to the water supply of the largest city in the United States, I would be constrained to take the viewpoint of the majority. For, whether or not I agreed with the weight given by the Federal Power Commission to alternative sources of power, such as the purchase of Canadian energy, the court would be conclusively bound, both under Section 313(b) of the Federal Power Act, 16 U.S.C. § 825Z(b), and the case law, e. g., Gainesville Utilities Dep’t v. Florida Power Corp., 402 U. S. 515, 91 S.Ct. 1592, 29 L.Ed.2d 74 (1971), by findings supported by “substantial evidence,” particularly when the Commission is acting within its own field of “expertise and judgment” Gainesville, supra, 91 S.Ct. at 1598. It is also true, of course, that the courts cannot quarrel with the Congressional policy impliedly expressed in Sections 207 and 311 of the Federal Power Act, that puts great emphasis on "adequate service,” 16 U.S.C. § 824f, the “cost of generation * * * ” and “the development of navigation, industry, commerce, and the national defense,” 16 U.S.C. § 825j. On the other hand Congress has now placed a measure of responsibility with the FPC, and the other federal agencies, to take environmental factors into account. The FPC also has its own duties, specified in Section 10(a) of the Federal Power Act, 16 U.S.C. § 803(a), to issue a license to use water power only when the project will be best adapted for “beneficial public uses, including recreational purposes.” And indeed as Judge Learned Hand once put it, although in reference to agency interpretation of statutes: In spite of the plenitude of discussion in recent years as to how far courts must defer to the rulings of an administrative tribunal, it is doubtful whether in the end one can say more than that there comes a point at which the courts must form their own conclusions. Before doing so they will, of course, — like the administrative tribunals themselves — look for light from every quarter, and after all crannies have been searched, will yield to the administrative interpretation in all doubtful cases; but they can never abdicate. Niagara Falls Power Co., v. FPC, 137 F.2d 787, 792 (2d Cir. 1943). I take it also that we cannot abdicate when the Commission fails “to make findings or evaluate considerations relevant to its determination.” Gainesville Utilities Dep’t v. Florida Power Corp., supra, 91 S.Ct. at 1598 n. 7; and see Schaffer Transportation Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed. 2d 117 (1957); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert, denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). Similarly, if the agency findings are internally inconsistent, the court is not bound to accept them. Cf. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Telex Corp. v. Balch, 382 F.2d 211, 215 (8th Cir. 1967); Freightways, Inc. v. Stafford, 217 F.2d 831, 835 (8th Cir. 1955); Williams v. United States, 126 F.2d 129, 132-133 (7th Cir.), cert, denied, 317 U.S. 655, 63 S.Ct. 52, 87 L.Ed. 527 (1942). Finally, while judicial deference to administrative expertise is required, not every agency is expert in every aspect of science, technology, aesthetics or human behavior. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 476, 71 S. Ct. 456, 95 L.Ed. 456 (1951); see L. Jaffe, Judicial Control of Administrative Action 576 et seq. (1965). As Professor Jaffe has said, “ * * * expertness is not a magic wand which can be indiscriminately waved over the corpus of an agency’s findings to preserve them from review.” Id. at 613; see also 4 K. Davis, Administrative Law Treatise § 30.07 (1958). With these considerations in mind, I dissent. I dissent because I think the FPC acted arbitrarily, abusing its discretion while purporting to act under the mandate of this court in Scenic Hudson, supra; because its findings in respect to the Catskill Aqueduct are inconsistent and insufficient; because its findings as to the effect of the project upon New York City air pollution are incomplete and fail to take into account relevant factors; and because the Commission’s findings and conclusions show that it has not really followed the mandates of the National Environmental Policy Act of 1969, Pub.L. 91-190 (Jan. 1, 1970), 42 U.S.C. §§ 4321-4347. The City of New York has pointed out, in opposition to the license granted by the FPC, that the Storm King (sometimes called “Cornwall”) project powerhouse is proposed to be built only 140. feet from the Moodna Tunnel section of the Catskill Aqueduct. This aqueduct is one of three systems supplying water to New York City. It is a gravity-flow aqueduct over 50 years old, conveying approximately 40 per cent of the city’s average daily water supply from the Ashokan Reservoir, 100 miles north of the city to the Kensico Reservoir, 15 miles north of the city line. Those who may remember the effects of severe droughts in the 1940’s and the 1960’s on the New York City water supply must realize the importance of such a vast quantity of water to the city, and imagine the consequences of its disruption. The Moodna Pressure Tunnel begins at a downtake shaft some five miles westerly of the Hudson River, set in the rock of Storm King Mountain. Lined with concrete, it tunnels through the mountain at an elevation of minus 220 feet until it is 900 feet from the river; there it descends to an elevation of minus 616 feet to the river. From this point water continues to flow under pressure at 1100 feet below the Hudson River through the Hudson Pressure Tunnel and then connects to an uptake shaft on the east side of the River, surfacing at Breakneck Ridge. This whole complex of tunnels by which the Aqueduct crosses the Hudson is known as the Moodna-Hudson-Breakneck Pressure Tunnel. It has had a continuous water flow since it broke down and was repaired in 1913 ; consequently it has not been inspected since then. In a “pressure” tunnel, hydrostatic pressure is constantly maintained. The City, aware of the risk to its water supply from drilling, in its deed of Storm King land to the Palisades Interstate Park Commission, included a protective covenant to ban drilling within 200 feet of the Aqueduct.® When Consolidated Edison first proposed in 1963 to build a powerhouse some 175 feet from the Aqueduct the City objected and in the original Consolidated Edison project turned down in Scenic Hudson, supra, the proposed power house was moved some 400 feet to meet the City’s objection. At the hearings below the City presented two experienced engineers, Professor Malcolm T. Wane, with experience in mine design and rock mechanics and with mine failures due to stress conditions, and Dr. Don U. Deere, a professor of engineering and geology familiar with the major pump storage projects at Yard’s Creek, Northfield Mountain and Churchill Falls. Dr. Deere concluded, on the basis that the Consolidated Edison excavation would cause an estimated 81 per cent increase in tangential stresses at the top and bottom of the tunnel and a decrease of 50 per cent on the sides, that there is “a small, but real” risk to the Aqueduct from the project. Dr. Deere pointed out that the degree of risk is unknown : Moreover, considering for the moment that the precise magnitude of the stress changes around the tunnel were accurately known, the effect of these stresses on stability of the tunnel lining and adjacent rock, i. e., the factor of safety, could still not be determined because neither the strength of the lining in its present condition nor of the adjacent jointed and fractured rock mass is even approximately known. Deere, 124/18,577-78. He was joined in this conclusion by Dr. Wane: One of the outstanding features of the whole problem is a lack of specific knowledge of what exists at this site * * * [since] we do not know anything about the state of nature in the immediate neighborhood of the aqueduct. Wane, 124/18,550-51. Consolidated Edison’s chief witness, Dr. Bartlett Paulding, a geologist who had done no work on tunnels or underground excavations, testified that on the basis of a “photo-elastic” technique his estimate of radial stress changes around the Aqueduct resulting from the powerhouse excavation would come to only 11 per cent, and that this meant that the excavation would not significantly affect the existing Aqueduct. Paulding, 112/17,203. Professor Wane significantly indicated that the photo-elastic method, while sound as far as it goes, only accounts for the unloading or vertical effect of excavation, not for the horizontal effects. I do not take it that there is any particular FPC expertise in geology, and particularly the effect of unloading, that is, relief of rock stress by excavation, on pressure aqueduct tunnels. In answer to a question on oral argument along this line, the FPC assured the court that its staff had some knowledge and expertise. If this be so, one may wonder why the commission did not follow the recommendations of its staff that “an appropriate precautionary measure should be undertaken by the Applicant to safeguard the Moodna Tunnel Section of the Catskill Aqueduct.” Several of the commission’s own “findings” on the danger to the Aqueduct tend to support the City’s position and not the applicant’s, and most of the commission’s findings on the Aqueduct are couched in terms of uncertainty. For example, in Finding 270 reference is made to the city’s witness Fluhr and mention is made of his testimony that “there is certainly some risk,” but the commission never tells us what this risk is or indeed whether the commission finds any risk. Again, Finding 271 refers to the former leaking of the Aqueduct necessitating its closing down during construction in 1913 and goes on to say, “any large open joints connecting the bypass and aqueduct could be grouted off if the experience of the original construction is typical.” The commission, however, does not tell us whether it is likely that “the experience of the original construction” will be “typical” or just how this grouting would be accomplished. Indeed, one surmises that to accomplish any grouting the Aqueduct would have to be shut down, and that this might impair the integrity of the Aqueduct. The Findings fail to convince me that there is no substantial risk to the Aqueduct. Finding 272 says that the operation of the Aqueduct for over fifty years indicates that it can withstand all of the hydrostatic pressures and stresses involved in the construction at Cornwall. But how such operation can establish this is not indicated, since even on the Consolidated Edison evidence there will be new and changed stresses resulting from drilling and blasting for the powerhouse excavation. In Finding 284 the commission states that “[t]he evidence, thus, reasonably is to the effect that the probability of damage by reason of blasting is remote” (italics supplied). But Footnote 25 to Finding 287 says “[t]here is no evidence concerning the condition of the Aqueduct’s lining. Its structural integrity is unknown to the city or any of its witnesses.” The mere recitation of testimony by the Federal Power Commission does not amount to the making of findings. The comment above in Footnote 25 to Finding 287 is revealing, moreover, in that it seems to imply that there is- some duty on the part of the City to make a substantial showing that the Aqueduct will break. If the structural integrity is unknown to the City or any of its witnesses, presumably it is also unknown to the commission and to Consolidated Edison’s witnesses. The burden is not on the City to prove that the Aqueduct will not break, but on the applicant to prove and the commission to find no danger to public “life, health and property.” The commission’s reliance in its Footnote to Finding 287 on trouble-free operation for fifty years under entirely different circumstances seems to me insufficient to support the required finding of safety. Finding 290 contains the conclusion “that the evidence in the record indicates that the probability of damage to the aqueduct is remote and that a by-pass is not required.” Even if this in and of itself be supported by the evidence, Finding 295 that “construction of the powerhouse will not endanger the aqueduct” is inconsistent with it and not based on the evidence: there is a world of difference between no danger and a “remote” danger. If a danger is “remote” the degree of “remoteness” assumes importance in proportion to the magnitude of the danger. Here the danger is obviously great, and there is no finding as to the degree of remoteness. The commission’s Added Findings 33 and 34 are not based upon the earlier findings and in turn are not based on the evidence when they say (1) that the construction will not constitute a hazard to the Aqueduct and (2) that the site does not constitute a hazard to the Aqueduct. The most compelling statement in the record evaluating the problem is that of City’s witness Thomas W. Fluhr, an engineering geologist who is a consultant for the City of New York Board of Water Supply: The geologic risk is that during construction of the project or during construction of the proposed bypass, stresses already present in the rock may be triggered and cause failure of the aqueduct. Moreover, even if the bypass were successfully constructed and placed in operation, and the pump-generator and transformer galleries also completed, there would be no assurance that orogenic stresses would not build up and cause failure of the aqueduct even after a lapse of many years. The risk of failure of the aqueduct cannot be regarded as imminent but it represents a definite hazard. When the Moodna Tunnel was first constructed and failed, ample time was available to rebuild it since there were no consumers dependent on it for water supply. At present there is no . substitute for the Catskill Aqueduct; Its failure could have catastrophic consequences. Evaluation of the risk involved in constructing the power plant near the aqueduct tunnel cannot be made on an actuarial basis. The risk might be taken as a calculated business risk if only money were involved; however, a failure of this water supply system might jeopardize the lives and welfare of millions of persons in the city and the upstate communities served by the Catskill Aqueduct. Fluhr, 110/16,-837-38. On this record and on the commission’s findings and in the light of the commission’s own staff recommendation, I would dissent as to the Storm King site even if the aqueduct were the only factor involved. But there are other points on which it seems to me the commission was only paying lip service to the mandate of this court in Scenic Hudson, supra. The first of these is air pollution. While the extent to which the FPC possesses any particular expertise on air pollution may be doubted, we may assume some familiarity with the subject in the light of the commission’s comments in, and experience in preparing, the 1970 National Power Survey. Unfortunately, one generating plant after another has been constructed in the past without much attention to this problem —one that by contrast is perhaps more readily visible for a visitor to New York than it may be to full-time citizens of the city. The Cornwall project as an alternative to other generating methods on its face is more conducive to eliminating air pollution, except for one catch: in order to pump water from the river to the reservoir at Cornwall, Consolidated Edison may, as the commission order now reads, pollute the city during pumping hours, which are usually at night, when the air is most still and the pollutants sit low over the city. In other words, there is no requirement that Consolidated Edison refrain from using its present generating facilities for pumping purposes; most of those facilities are, according to the commission’s Finding 82, relatively inefficient and burn relatively expensive, depletable fossil fuels, and some of them are outmoded. Since by FPC calculations it will take 1.4 KWH of pumping energy supplied during non-peak periods to produce 1 KWH of project energy, Finding 71, it is obvious that additional air pollution will result if the pumping energy comes from those old fossil fuel plants. If, as Finding 83 says, “[v]ery little city generated power will be used to pump Cornwall, particularly as Con Ed’s interconnections and nuclear generated capacity increase with time,” why would it not be proper to order that only the most efficient and least polluting fossil fuel generating units be utilized for pumping purposes now ? Indeed, Finding 84 seems to suggest that gas plants will be used for pumping but the order does not require their use. Of course, it may be that Consolidated Edison will be prohibited from using its old fossil fuel plants for pumping or otherwise under the Clean Air Amendments of 1970 to the Clean Air Act, 42 U.S.C. §§ 1857-18571. But this does not absolve the FPC of its responsibilities to avoid adding to air pollution under its own governing Act or under NEPA, swpra, note 3. Consolidated Edison’s own studies made in 1966-67 show that Storm King will result in more fossil fuel usage in New York than would certain other alternatives. While this study has been questioned by the FPC itself, one of the justifications made by the company for the Storm King plant has been that it would permit otherwise idle large base-load plants in the city to generate at night. Our customers’ demands for electricity are high when they are awake and at work. Conversely, during the night time when most are sleeping, their need for electricity is at a low level— much below the capability of our most modern and efficient generating capacity. We plan to use this otherwise idle but efficient capacity to pump and store water in the upper reservoir at times of light customer demand. 32/4191. Beyond this, we are told that Consolidated Edison generating facilities in the City produced 113,700 tons of nitrogen oxides, constituting about 38 per cent of total emissions of those compounds in the City. Yet there is no mention of these in the Commission findings, except perhaps by implication in Finding 76. To my mind, remand is required not only on the strength of the present record and Scenic Hudson, supra, for insufficiency of findings, but also in view of the changes which have occurred in Congressional policy on air pollution control, and in plans to eliminate air . pollution in New York City. It is no answer to say that the City may invoke its own police power, if necessary, to regulate the dispersions from Consolidated Edison fossil fuel plants; Consolidated Edison would be the first to cite, indeed it already relies upon, First Iowa Hydroelectric Coop. v. FPC, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 (1946), to avoid undue inhibition of its rights under any license granted for Storm King. The final matters which, to my mind, tip the scales for a reversal rather than simply a reversal and remand are two. The first concerns what may broadly be called aesthetics, impairment by the project of the mountain’s scenic grandeur. The commission’s Finding 148 refers to the mountain “swallow[ing]” the “scar of the highway, the intrusive railroad structure and fills and tolerat[ing] both the barges and scows which pass by it and the thoughtless humans [sic] who visit it without seeing it * * The finding goes on to say that just as the mountain swallows present day intrusions, “it will swallow the structures which will serve the needs of people for electric power.” This argument borders on the outrageous; it can be used to justify every intrusion on nature from strip mining to ocean oil spills, viz., “the Santa Barbara coastline already has an ocean-side highway, numerous offshore oil rigs, and a lot of flotsam and jetsam comes on to the beaches, etc. * * Two scenic wrongs do not necessarily make a right. On the basis of the commission’s thesis, wherever you have one billboard you can put two, wherever you have one overhead transmission line you can put another, you can add blight to blight to blight. That a responsible federal agency should advance that proposition in the form of a finding and in the teeth of the NEPA seems to me shocking. The commission’s finding overlooks the fact that we are considering here a power station which above ground will consist of a concrete tailrace with abutments 32 feet high and 685 feet long, cutting back existing shore line from 195 to 260 feet, exclusive of any access road. This location, as the commission concedes, is on a small riverbottom foothill which “is visually a part of Storm King Mountain * * The mountain may “swallow” the project, but the concrete tailrace and abutments, as long as a good-sized football stadium— over an eighth of a mile — and three stories high, will surely be stuck in its craw. The second point which tips the scales for reversal, I believe, is the commission’s treatment of environmental impact, a treatment required under the National Environmental Policy Act of 1969 (“NEPA”). This Act requires “all agencies” to “include in every recommendation or report on * * * other major Federal actions significantly affecting the quality of the human environment, a detailed statement” on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Section 102(2) (C) (i)-(v), 42 U.S.C.A. § 4332(2) (C) (i)-(v). In a very real sense this Act is a legislative response to and embodiment of the far-sighted and significant Scenic Hudson decision of this court where the commission was directed in Judge Hays’ words to “include as a basic concern the preservation of natural beauty,” 354 F.2d at 624, and to give proper consideration to “the totality of a project’s long-range effects.” Id. at 620. The commission properly included a series of eight findings (##211-18) purportedly dealing with NEPA, even though the record had closed before the Act became effective. In measuring those findings (and other findings) against the Act, to determine whether they constitute the detailed statement the Act requires, it seems to me we must bear in mind some of the declared goals of NEPA: In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ;. (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences. * * * 42 U.S.C. A. § 4331(b) (l)-(3). As recently pointed out by the Court of Appeals for the District of Columbia, “the very purpose of NEPA was to tell federal agencies that environmental protection is as much a part of their responsibility as is protection and promotion of the industries they regulate. Whether or not the spectre of a national power crisis is as real as the commission apparently believes, it must not be used to create a blackout of environmental considerations in the agency review process.” Calvert Cliffs’ Coordinating Committee Inc. v. AEC, 449 F.2d 1109 (D.C. Cir., 1971). Here the commission’s Finding 217 says, incomprehensibly, “[a]ny short term adverse impact on the natural environment is more than offset by the enhancement of long term productivity which will result from the project”. This is supposed to be a commission finding under NEPA, but I think the finding indicates that the commission did not read the Act very carefully. Section 102(2) (C) (iv), 42 U.S.C.A. § 4332, requires a statement of “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity” (emphasis supplied). Not the short-term impact on the natural environment, but the short-term uses of it in relation to long-term productivity, is the statement required. Here we are considering permanent structures, a long-term and substantial use of an area of great natural beauty, “unique beauty,” in the words of Scenic Hudson, supra, 354 F.2d at 613, involving an “irreversible and irretrievable commitment of resources” in the proposed project if licensed, to use the language of Section 102(2) (C) (v) of NEPA. Finding 213 says that “there is essentially no conflict concerning alternative uses of available resources because with the exception of the small part of the Black Rock Forest to be flooded by the reservoir practically none of the other parts of the project preclude alternative uses of available resources.” This finding, as the brief of the Scenic Hudson Preservation Conference suggests, completely omits the conflicting alternative use of preserving the area free from any utility installations, tailraces, abutments and access roads. In Finding 215, the commission concludes under NEPA, and the majority opinion here relies upon the finding, that none of the most likely proposed alternatives “could be sited within one hundred miles of New York City with any less physical impact on the environmental aspects of the affected area than the Cornwall project.” In this day of high voltage transmission, what is so magic about one hundred miles? Are all areas wihin one hundred miles of New York City to be treated alike for electric generating purposes? Or are they all to be made to look alike, so that we will no longer have to be concerned how they are treated? Finding 217 says “[t]he resources which will be committed to this project are the acreage it will necessarily encompass and the fuel resources which will be committed to pumping energy” which are “many times over” outweighed by “the electric energy resources which will be generated by the commitment of such resources.” But this finding overlooks both points mentioned earlier in this dissent, the risk to the Aqueduct and the increase, however temporary, of air pollution in the City to generate pumping power. To view plant-citing at Storm King Mountain as only a commitment of “acreage,” rather than as a commitment of a scenic wilderness area — albeit with some past intrusions and some present fairly easily rehabilitatable defacements — to a massive, if partially hidden, power structure, is to beg the question of environmental preservation. The extent to which the commission has in this proceeding too readily rubber-stamped Consolidated Edison’s plans is indicated by its authorization of an alternative project within Palisades Interstate Park. The commission overruled its own examiner in this regard and the choice of an alternative site flies in the teeth of the Park Compact that the lands included within the Park “shall be used only for public park purposes.” 50 Stat. 719, Section 3. It would seem that the specific authority of Congress is needed for the development, transmission or utilization of power within the limits of a national park. See 16 U.S.C. § 797a. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971), speaks of “the few green havens that are public parks,” albeit in another connection. I would protect those “few green havens.” See Scenic Hudson, supra, quoting former Federal Power Commissioner Ross: [I]t appears obvious that had this area of the “Hudson Highlands” been declared a State or National park, that is, had the people in the area already spoken, we probably would have listened and might well have refused to license it. 354 F.2d at 614-615. This being the second opportunity the commission has had to follow the mandate of this court, and it having failed to c¡o so as I suggest above, I would conclude, as did then Circuit Judge Burger in an FCC case, “that it will serve no useful purpose to ask the Commission to reconsider the Examiner’s actions and its own Decision and Order. * * * ” Office of Communication of the United Church of Christ v. FCC, 425 F.2d 543, 550 (D.C.Cir. 1969). I would therefore reverse, without a remand. . The FPC findings on the feasibility of purchasing, rather than creating, power are not entirely consistent. Finding 82 says in pertinent part: If the energy necessary to pump Cornwall comes from polluting power plants in New York City that would otherwise be idle, little or nothing would be gained in reducing the air pollution problem. Based on the assumption that Cornwall would go into operation in 1972 a Staff study introduced in evidence showed that by 1980 approximately 89 percent of its pumping requirement could be met by virtually non-polluting sources of generation. Cornwall, to the extent that its water is not pumped by power from Con Ed low cost nuclear plants will be powered primarily from sources in areas adjacent to the Con Ed service area, and perhaps by imported Canadian hydroelectric power. Finding 134 says in pertinent part: Another considered alternative to the Cornwall development is the possibility of purchased power from Canada, namely from Churchill (Hamilton) Falls project, now under construction. To be a proper source of power supply, the energy from Canada would have to be taken substantially 24 hours per day; otherwise this would not be an economic source. The transmission distance involved and the relatively high cost of transmission facilities makes Churchill Falls power comparable to base load nuclear power or base load mine-mouth power or other sources of base load power outside of New York City, rather than an alternative to the Cornwall development. There is no indication when, if ever, Churchill Falls Power might be available to electric systems outside of Canada. In addition, there is no assurance that it would be available upon, system separation. It has been reported that on July 30, 1971, “dedication ceremonies” were held for a 345 KY transmission line linking the Canadian New Brunswick Power Commission with twelve investor-owned and two cooperative New England Utilities, with a power transfer capability of 600 megawatts. The intertie runs 230 miles southeast from Frederickton, New Brunswick, to Wiscasset, Maine. In its first 25 days of operation it transmitted 58,000,000 KWH of base-load and peaking energy. Other Canadian interconnections total about 3540 MW, including 2,000 MW to New York and Michigan. See Public Power Weekly Newsletter (A.P.P.A.), Aug. 6, 1971, at 5. It is also interesting to note that on July 21, 1971, Senators Metcalf and McGovern introduced S. 2324, a bill to establish “a national power grid system,” the underlying concept of which was perhaps first advanced by the father of modern conservation, Governor Gifford Pincliot of Pennsylvania. In the course of Rhode Island Representative Tiernan’s remarks on the companion House Bill (H.R. 9970), he said: Only with a national grid system can we assure all Americans an adequate and reliable supply of electric power. * * * An [sic] an example of how the national grid could accomplish this, consider the acute power shortage which struck New York City in 1969. Basin Electric Power Cooperative in North Dakota, along with the Bureau of Reclamation and Missouri Basin System wired Consolidated Edison in New York to say that they would supply all of the power New York needed. The city remained dim, however, because there was no way to transmit the power from North Dakota to New York. Had a national grid existed, this power would have been readily available to the energy-starved area. 117 Cong.Rec. H7005 (daily ed. July 21,1971). . Section 207 of the Federal Power Act, 16 U.S.C. § 824f, does not speak of conserving use of electrical energy, a policy which Consolidated Edison, the applicant here, is at least partially promoting with its 1971 “Save-A-Watt” advertising campaign. Nor does Section 311, 16 U.S.C. § 825j (dealing with the investigatory and information-gathering function of the FPC) in any way refer to conservation of the environment. We are left with Congressional policy underlying the Federal Power Act that is read to assume that future electrical needs will increase and that the only way to meet them is to construct more and more generating capacity. This is an assumption that certainly bears re-examination [see P. Ehrlich & J. Holdren, “The Energy Crisis,” Saturday Review, August 7, 1971, at 50], and one which automatically.— in the present state of the generating art —involves a consumption of depletable natural resources (coal, oil, natural gas, uranium), an adverse impact of one sort or another on the environment, or both. The 1970 National Power Survey (FPC) Pt. II estimates annual “peak demands” for the metropolitan New York City power supply area at 7,350,000 Kilowatts in 1970, 13,360,000 in 1980 and 21,160,000 in 1990, id., at II-1-8, and on this basis one could argue for perhaps three or four Storm King projects. The same report makes reference, inter alia, to the problems of air pollution from coal-fired plants, id., at II-1-19; depletion of oil and gas reserves, id., at II-1-19, 27 ; thermal pollution by nuclear plants, id., at II-1-48; thermal discharges generally, id., at II-1-49; ash disposal and nuclear fuel disposal, id., at II-1-50. See also Sarvicki, “The National Power Crisis and Its Effect on Rural America,” Rural Electrification, June 1971, at 15; M. Katz, “Decision-making in the Production of Power,” Scientific American, Sept. 1971, at 191. . See Council on Environmental Quality, Environmental Quality — The Second Annual Report 25-26 (Aug. 1971). Sec. 102 of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4347, directs “all agencies of the Federal Government” to (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment ; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this chapter, which will insure that presently unqualified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— ' (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the . comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; (D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; * * 42 U.S.C.A. § 4332. The efficacy of this Act is in large part dependent on the decision in the instant case; as Schroeder puts it in “Pollution in Perspective: A Survey of the Federal Effort and the Case Approach,” Vol. IV, No. 2, Natural Resources Lawyer, 381, 419 (April 1971) : “The key question ahead is whether, after balancing all pertinent considerations, an administrative decision is made that provides for less than full environmental protection — whether that decision will be upheld if challenged in the courts.” It is interesting to note, although I place little significance on it here, that at a meeting of the Subcommittee on Environmental Quality Control of the ABA Committee on Environmental Quality, the Assistant to the Chairman of the FPC strenuously criticized NEPA, quoting a former AEC attorney who termed NEPA “an atrocious piece of legislation,” calling it “woefully ambiguous,” “an invitation to litigation,” and expressing the hope that “reviewing courts will take a practical approach” and the fear that “to construe the statute as a rigid prescription of the quality or quantity of evidence required would quickly cripple the administrative process.” Annex A, Minutes of Meeting 14, 19 (April 20, 1971). To what extent this genuinely reflects this agency’s attitude toward NEPA, however, is doubtful; one might hope that Congressional concern with the U. S. environment might be given more respect by the Commission as a whole. . In addition to New York City, some twenty-four smaller communities tap into the Catskill Aqueduct. Any of those towns which rely on it exclusively for water would be perhaps more seriously endangered than the City by any damage to it. . After the completion of the Aqueduct in 1913 there was considerable leakage in the No. 7 downshaft leading to the Hudson Tunnel, apparently attributable to the combination of hydrostatic pressure and “relief of stress” in the rock surrounding the tunnel. The tunnel had to be “dewatered” and a new shaft (No. 7A) which by-passed the failed section was drilled to correct the situation. . Whereas, the Board of Estimate of the City of New York * * * authorized a grant and conveyance to the Palisades Interstate Park Commission, of the fee of the City-owned land hereinafter described * * * Subject to the following conditions, covenants and restrictions * * *: 1 The City of New York retains a permanent sub-surface easement to operate, maintain, and repair the Catskill Aqueduct which, at this location, is approximately 400 feet below the surface. 5 Drilling of any kind is not permitted to depths greater than 200 feet below the present surface. . When Consolidated Edison came up with its presently proposed project the City rather slowly moved to intervene and the FPC reopened the proceedings to take evidence on this project. Presumably we should not penalize the City for its delay on this, an issue of mountainous importance. References are to volume/page number of the transcript of the hearings. . See Commission Staff Brief on Exceptions to Initial Supplemental Decision, February 12, 1970, at 11. The City itself takes the position that either to construct a by-pass of the Moodna Tunnel section of the Aqueduct or to line that section with steel would require an extensive shutdown of the Aqueduct with “a resultant risk to the integrity of the Aqueduct.” . By “by-pass” here it is unclear whether the Commission was referring to the tunnel from the reservoir to the power station. . Cf. Schneiderman v. United States, 320 U.S. 118, 129-31, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); Kelley v. Everglades Drainage District, 319 U.S. 415, 422, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943); Brown Paper Mill Co. v. Irvin, 134 F.2d 337, 338 (8th Cir. 1943). . “Further, the project must be safe so as not to endanger life, health and property.” Commissioner Ross, dissenting in Consolidated Edison Co. of New York, Inc. (FPC March 1965), rev’d in Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965), cert, denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). See also Section 10(c) of the Federal Power Act, 16 U.S.C. § 803 (c), requiring a licensee to “conform to such rules and regulations as the Commission may from time to time prescribe for the protection of life, health and property,” and rendering the licensee liable “for all damages occasioned to the property of others by the construction * * * of the project works. * * * ” . Mr. Fluhr was originally engaged by the consultants to Consolidated Edison Co. and later by Consolidated Edison directly, with the understanding that the interests of the City of New York would take priority. He thought the original surface plant, rejected in Soenio Hudson, supra, safe and “geologically sound.” . “Air is our most vital resource, and its pollution is our most serious environmental problem.” President Nixon’s Message to Congress, reported in 21 BNA Environmental Reporter 0201, 0204 (Feb. 10, 1970). . See pt. II, at II-2-61-62. . “Industries, power plants, furnaces, incinerators — these and other so-called ‘stationary sources’ add enormously to the pollution of the air. In highly industrialized areas, such pollution can quite literally make breathing hazardous to health, and can cause unforeseen atmospheric and meteorological problems as well.” President Nixon’s Message to Congress, 21 BNA Environmental Reporter at 0204 (Feb. 10, 1970). . New York City is subject to pollutants emitted in both a gaseous and particulate form from a wide variety of sources, including power generating plants. Finding 75. It should be noted that serious air pollution episodes resulting from inversions have occurred in New York City in 1953, 1963, and 1966. An “inversion” occurs in periods of little or no wind when a layer of cold air covers a layer of warm air to prevent it from rising. Without an upward current of air or wind the pollutants cannot be dispersed. As a result, the pollutants mass in a thickening stagnant cloud above the area affected and they diffuse down to the ground line. While inversions are not very frequent, they can last for several days and can be present clay and night. A typical episode, to which are attributed 168 deaths, occurred during the Thanksgiving holiday, November 22 to 26, 1966. Finding 76. . By utilizing energy surplus to system needs during night-time and week-ends, or purchasing low cost surplus energy from interconnected systems, Cornwall is designed to convert low cost surplus energy into high value energy during periods of peak demand. Finding 70. . Consolidated Edison’s eleven fossil fuel plants contributed in 1969 34 percent of the sulphur dioxides and 9.1 percent of the fly ash and other “particulate matter” that is so evident to the senses of sight and smell in New York City skies. The United States Public Health Service estimates that in 1969 approximately 400,000 tons of sulphur dioxide and approximately 70,000 tons of “particulate matter” were emitted in New York City. Of that total, Con Ed’s eleven fossil fuel plants accounted for approximately 156,000 tons of sulphur dioxide and approximately 6,400 tons of fly ash and other particulates, primarily from the combustion of bituminous coal and residual oil for the generation of electricity. Although Con Ed’s emissions are less than half of what they were a few years ago, and are expected to be even less with the planned elimination by 1972 of coal and a further reduction in sulphur content of residual oil, Con Ed is likely to continue to be a substantial contributor to air pollution in the City so long as fossil fuel generating facilities comprise the greater part of its system. Finding 77 (emphasis supplied). . If the energy necessary to pump Cornwall comes from polluting power plants in New York City that would otherwise be idle, little or nothing would be gained in reducing the air pollution problem. Based on the assumption that Cornwall would go into operation in 1972 a Staff study introduced in evidence showed that by 1980 appoximately 89 percent of its pumping requirement could be met by virtually nonpolluting sources of generation. Cornwall, to the extent that its water is not pumped by power from Con Ed low cost nuclear • plants will be powered primarily from sources in areas adjacent to the Con Ed service area, and perhaps by imported Canadian hydroelectic power. Finding 82. . The FPC argues this is impractical, because electrical energy “flows through a system like Con Edison’s in a unitary fashion.” But surely the Commission’s great expertise in transmission matters can come into play here : experience must have shown what the minimum safe loading parameters are for night-time base-load plants to assure the necessary system stability and to provide the necessary load service; operation above such limits, with possible exceptions for emergency situations, could be prohibited as a condition to the license. . Assuming it is initially necessary to utilize some City generated power for pumping purposes it is unrealistic to suggest that the fossil fuel generating units which would be so utilized would not be the most efficient that the system has. The evidence is that the more efficient fossil fuel units, even at the 1.4 to 1 ratio, will utilize less fossil fuel per megawatt hour of generation for pumping off-peak hours than would be used by the less efficient units which, absent Cornwall, would have to be utilized to meet peak loads. To the degree that Con Ed does use City-generated power to pump water at Cornwall, which may occur to some extent during the first few years of the hydro project’s operation, the record indicates that the type of fossil fuel used for the most part will probably be clean burning natural gas. During at least some parts of the year, Con Ed does not now, and probably will not, have enough natural gas available to generate sufficient power by gas turbines, steam generators, or otherwide [sic] to meet peak demand; it seems clear, however, that very subtantial amounts of gas will be available for power generation during the night-time hours, even during the peak of the heating season. To the extent that this gas-generated power is not needed to meet the City’s night base load, it may be used to pump Cornwall. Finding 84. . Pub.L. 91-604, 84 Stat. 1676 [see especially new Sec. 111(d)], 1 U.S.Code & Admin.News, 91st Cong., 2d Sess., p. 1964 (1970). . See City Petition for Rehearing p. 19 (R. 276, 694). Nitrogen dioxide, one of the oxides, is apparently a component of smog, very injurious to the respiratory system; the City’s Department of Air Resources estimates that nitrogen dioxide levels of 0.01 ppm (4 hr. average) for more than three days are dangerous to health, and levels of 0.05 ppm (4 hr. average) promote smog formations. Those levels are already exceeded in the city. With the thought that operation of the city-located plants will be in the relatively still night-time air, one has visions of economical and efficient pumping at Storm King while New Yorkers cough and gasp for breath. . The Commission’s brief argues from the testimony of EPA witness Longaker that “the use of sulfur oxide served as a more important ‘parameter or index of pollution from large stationary sources’ than particulate emissions,” as if to tell the court that the index of nitrogen oxide emission is unimportant. I take it that “particulate emissions” consist of fly ash, grit and solid matter, and may or may not include nitrogen oxides. . See note 22, supra. . The City argues, in its petition for rehearing filed September 18, 1970, that Consolidated Edison’s 800 MW plant at Astoria additionally burdens city air above acceptable federal levels with both sulphur and nitrogen oxides, as well as particulates. . “It is not to be forgotten that the mountain we are talking about is ‘unique,’ ‘a mountain which should be left alone * * * [and which is] awesome * * monumental * * ” to quote some of the testimony duly recited in Commission Findings 143 and 145. . Finding 191. . Finding 189. . Finding 156. . Pub.L. 91-190, 83 Stat. 852, 42 U.S. C.A. §§ 4321-4347, eff. Jan. 1, 1970. . “Scenic Hudson, by placing a positive responsibility on the FPC to consider less environmentally damaging alternatives, laid a foundation for the obligation to develop alternatives imposed by NEPA,” Council on Environmental Quality, Environmental Quality — The Second Annual Report 160 (Aug. 1971). . The Court was of course speaking of the AEC, but the language of the opinion is equally applicable to the FPC. . See, e. g., note 1, supra. . See also Finding 188: * * * Limiting the external features at the powerhouse site to the portal entrance tailrace, and access road, total-ling approximately 3 or 4 acres — out of Storm King’s total of over 400 acres —should reduce to a minimum the visual impact on the scenic vistas of Storm King Mountain or the Highland Gorge of the Hudson River and thereby preclude any material scenic impairment or detriment. See also Commission Brief p. 56. . * * * [N]o permit, license, lease, or authorization for dams, conduits, reservoirs, power houses, transmission lines, or other works for storage or carriage of water, or for the development, transmission or utilization of power within the limits * * * of any national park or monument shall be granted or made without specific authority of Congress. Congressional approval of the Palisades Interstate Park Compact by resolution on August 19, 1937 (50 Stat. 719) would seem to raise the Compact to the status of federal legislation. Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 278, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); Delaware River Joint Toll Bridge Comm’n v. Colburn, 310 U.S. 419, 427, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940).

Scenic Hudson Preservation Conference v. Federal Power Commission

ON Petitions for Rehearing and Hearing en Banc FRIENDLY, Chief Judge. Petitions for a rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for Scenic Hudson Preservation Conference; the Sierra Club and its Atlantic Chapter; the Izaak Walton League of America, National Audubon Society and National Parks and Conservation Ass’n; The City of New York; and the Wilderness Society, a poll of all the active circuit judges having been taken, and a majority for rehearing en banc not having been obtained, it is ordered that said petition be and it hereby is denied. Circuit Judges HAYS, MANSFIELD, OAKES and TIMBERS voted for en banc consideration.

Scenic Hudson Preservation Conference v. Federal Power Commission

TIMBERS, Circuit Judge (dissenting): I dissent from the denial of reconsideration en banc. Aside from the fact that four of the eight active judges of this Court (including two members of the panel who heard and decided the ease originally) have voted in favor of en banc reconsideration, it does seem to me that a substantial question of unusual importance is presented by the panel’s application of the substantial evidence test in reviewing the FPC’s determination that the benefits of the project outweigh the environmental damages.

United States v. Wells

HOLMES, Circuit Judge. Recapture Canyon lies just east of Blanding in Southeastern Utah and runs south of Recapture Dam and U.S. Highway 191 along a creek. The Bureau of Land Management (“BLM”) closed an area of Recapture Canyon to all-terrain vehicles (“ATVs”) in 2007, to prevent soil damage and the spoliation of archeological resources near the trail. Frustrated with what had been billed as a temporary closure—and against a backdrop of simmering tensions between federal land management agencies and some residents of Southeastern Utah—in 2014, cértain individuals planned an ATV ride to protest the BLM’s closure order. The ride took place in May 2014; Defendant-Appellant Phil Lyman, a County Commissioner for San Juan County, was a major promoter of the ride.- He was charged along with Defendant-Appellant Monte Wells in a misdemeanor criminal information with operating ATVs on lands closed to such use by the BLM and conspiring to do so. See 18 U.S.C. § 371; 43 U.S.C. §§ 1701, 1733; 43 C.F.R. § 8341.1(c). Mr. Wells owned a small business and ran a website entitled The Petro-Glyph that reported: on issues of local concern in San Juan County, especially issues relating to public lands. Following a trial, a jury found both men guilty of the charged offenses. The district court sentenced them to terms of probation and brief terms of imprisonment. They were also ordered to pay restitution for the costs of assessing and repairing the damage that the protest ride caused to the land. On appeal, Messrs. Lyman and Wells (collectively, “Defendants-Appellants”) bring a variety, of challenges to their convictions and the restitution order. They ask for a new trial because the district judge (Judge Shelby) presided over then-trial while a reasonable observer allegedly would have questioned his impartiality; he did ultimately recuse before their sentencing. Furthermore, they appeal the denial of their motions to dismiss; they make a Brady claim stemming from the government’s failure to produce a map showing a possible public right-of-way through Recapture Canyon, which allegedly would have called into question whether the BLM’s 2007 closure order was lawful; they challenge the district court’s restitution order and the amount they were ordered to pay; and, lastly, Mr. Lyman argues that he was denied constitutionally adequate counsel. Because none of Defendants-Appellants’ arguments are grounds for reversal of the district court’s judgment, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I. BACKGROUND & PROCEDURAL HISTORY San Juan County, located in the southeastern corner of Utah, is home to significant swaths of public lands managed by the BLM. Among these, just east of the town of Blanding, is Recapture Canyon. In 2007, the BLM closed to ATVs part of Recapture Canyon because of potential damage to the soil and archaeological sites. See Notice of Closure of Public Lands to Off-Highway Vehicle (OHV) Use, 72 Fed. Reg. 57067-01 (Oct. 5, 2007). This was intended to be a temporary order, but as of 2014, the order was still in place. The perceived delay in reopening the area strained already tense relations between the BLM and some local citizens. Upset at the delay in reopening the portion of Recapture Canyon to ATV traffic, County Commissioner Phil Lyman organized a protest ride on ATVs into the closed portion of the Canyon. He was assisted in this by Monte Wells, who ran a website called The PetroGlyph that reported on local news of interest, particularly issues related to public lands. Mr. Wells interviewed Mr. Lyman on video and re-posted Mr. Lyman’s Facebook posts inviting others to the protest ride. Despite strong warnings from the BLM that criminal and civil penalties would be enforced against anyone riding an ATV in the closed section of the Canyon, the ride took place on May 10, 2014. Undisputed photographic evidence taken from within the closed area shows that Mr. Lyman and Mr. Wells rode ATVs in the protest that day. A point of geography that requires some explanation for a full understanding of the case is that the northernmost part of the closed area of Recapture Canyon has a road where the local water district has a right-of-way to access and attend to the maintenance needs of a pipeline running from the reservoir to the north. The protest entered the closed area of Recapture Canyon on this road. To the south is a turn-around point where that road and the water district’s right-of-way ends, but a trail continues further south, along which lies the majority of the archaeological and cultural resources that the BLM sought to protect. Mr. Lyman and Mr. Wells claim to have turned around at this point. Ferd Johnson, a representative of the local water district, testified that he had consented to a request by Mi'. Lyman to use the water district’s right-of-way for the protest. However, the parties stipulated that the scope of the right-of-way was limited to the purposes of “operating and maintaining a pipeline.” Aplt. Wells’s App., Vol. IV, at 861. After an investigation, which included an assessment of the damages, the government filed a superseding criminal information charging Defendants-Appellants with riding ATVs on lands closed to ATVs and with conspiracy to do the same. At trial, Messrs.' Lyman and Wells were found guilty on both counts. Postverdict, motions were filed concerning restitution, and the court ordered Mr. Lyman to pay approximately $96,000 in restitution of which Mr. Wells was jointly and severally responsible for $48,000. The two were sentenced to probation, with a brief period of imprisonment for each. They timely appealed. II. DISCUSSION On appeal, Defendants-Appellants seek a new trial because the district judge (Judge Shelby) presided over their trial while a reasonable observer allegedly would have questioned his impartiality; he did ultimately recuse before their sentencing but Defendants-Appellants contend that he should have recused earlier. Furthermore, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial based on an alleged Brady violation, and their restitution order. Mr. Lyman separately argues that, he was deprived of effective assistance of counsel. We address each claim in turn. A. Recusal Judge Shelby, who presided over the trial, is close friends with Steven Bloch, the legal director for the Southern Utah Wilderness Alliance (“SUWA”), a nonprofit conservation, group that was opposed to the Recapture Canyon protest ride. After the trial, upon learning of this friendship and related, matters, Defendants-Appellants filed motions to disqualify Judge Shelby from further participation in , the proceeding—notably, participation ip their sentencing. Significantly, Defendants-Appellants did not move for a new trial based on the concerns underlying their motion to disqualify. Judge Shelby recused, “conclud[ing] that recusal will promote confidence in these proceedings and avoid even the appearance of impropriety in connection with the court’s .sentencing duties.” Aplt. Wells’s App., Vol. VI, at 1236. More specifically, Judge Shelby recused based largely on a letter to the judge signed by SUWA and other conservation groups that expressed views adverse to Defendants-Appellants regarding sentencing, as well as evidence developed in connection with Mr. Lyman’s motion to disqualify. That evidence showed that SUWA had extensive pretrial involvement in the case, passing information to BLM officials and the United States Attorney’s office. Mr. Wells now argues for a new trial. He contends that Judge Shelby ought to have recused from participation in the trial sua sponte because a reasonable observer would have questioned his impartiality. In this regard, he argues that Judge Shelby should have been alerted to SUWA’s involvement by Mr. Bloch’s presence at trial as a spectator and by a voir dire question asking potential jurors whether they, their spouses, a family member, or close friend were members, of SUWA. Mr, Lyman appears to make, a similar argument for a new trial. The government contends that this recusal-based argument for a new trial is waived because it was not presented in posttrial motions for a new trial or acquittal. We need not opine on the waiver issue because we conclude that, in any event, Defendants-Appellants’ recusal-ba'sed argument for a new trial fails on the merits. See, e.g., United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014) (“Because Black’s SORNA claim fails on the merits, this court exercises its discretion, to bypass the relatively complex waiver issue and resolve Black’s appeal on the merits.’’); Gardner v. Galetka, 568 F.3d 862, 885 n.3 (10th Cir. 2009) (“The government argues that this claim was not raised before the district court and therefore is waived .... Because we conclude that this claim fails on the merits, we need not resolve whether it was-waived.”). We believe that it is' especially appropriate to reach the merits of this issue because recusal-based arguments uniquely implicate the integrity of the justice system. See United States v. Barrett, 111 F.3d 947, 955 (D.C. Cir. 1997) (Tatel, J., concurring) (“Although I agree that timeliness is a factor to be considered, the obligation section 455(a) places on judges means that even an' untimely recu-sal claim cannot deprive a circuit cqurt of its responsibility to review a judge’s failure to recuse. In my view, the integrity and public reputation of the federal judiciary require clear and firm answers on the merits to even delayed charges of judicial impropriety.”). As such, though it will not always be the right discretionary choice,' we believe it is important under the circumstances of this case to bypass the lack-of-preservation (i.e., waiver) issue and reach the merits of Defendants-Appellants’ recusal-based argument for a new trial. Ordinarily,, arguments of the kind presented here are reviewed for an abuse of discretion. See, e.g., United States v. Higgins, 282 F.3d 1261, 1278 (10th Cir, 2002) (“A denial of a motion for a new trial in a criminal case is reviewed for abuse of discretion.”); cf. Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987) (per curiam) (“The decision to recuse.is committed to the sound discretion of the district judge. We review the denial of a motion to recuse only for abuse of that discretion.”). “Under this standard, we will not reverse unless the trial court has made ‘an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.’” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 992 (10th Cir. 1999) (quoting F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994)). We conclqde that the district court (i.e., Judge Shelby) did not abuse its discretion in failing to recuse sua sponte from participation in. the Defendants-Appellants’ trial; therefore, they are not entitled to a new trial based on this failure. Title 28, § 465(a) of the United States Code states that a judge “shall .disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This requirement is intended “to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible,” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1310 (10th Cir. 2015) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). Section 455 establishes “an objective standard: disqualification is appropriate only where the reasonable person, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” Id. (quoting In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004)). In other words, a judge’s subjective state of mind is irrelevant; what matters is whether “the public might reasonably believe that [the judge] knew” of “facts creating an appearance of impropriety.” Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194. The Court in Liljeberg approvingly quoted a similar statement from the Court of Appeals decision under review: “If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created!,] even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. ... Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances would expect that the judge would have actual knowledge.” Id. at 860-61 (citation omitted). “In conducting this review, we must ask how these facts would appear to a well-informed, thoughtful and objective observer,” who is “an average member of the public,” not a “hypersensitive, cynical, and suspicious person.” Mathis, 787 F.3d at 1310 (quoting Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004)). Courts begin by asking “whether a reasonable factual basis exists for questioning the judge’s impartiality,” mindful that “cases within. •§ 455(a) are extremely fact'driven ‘and must be judged on [their] unique facts and circumstances more than by comparison to situations considered in prior jurisprudence.’” Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (first quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993); then quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995)); accord Bryce v. Episcopal Church in the Diocese of Col., 289 F.3d 648, 659 (10th Cir. 2002). Judges not only have a strong duty to recuse when appropriate, but also a strong duty to sit, and the statute “must not be so broadly construed that it becomes, in effect, pre sumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.” Nichols, 71 F.3d at 351 (emphasis added) (quoting Cooley, 1 F.3d at 993). A new trial may be an appropriate remedy if.the judge’s impartiality during the trial could have reasonably been questioned. See United States v. Nickl, 427 F.3d 1286, 1297-98 (10th Cir. 2005). On the record before us,, however, Judge Shelby’s decision to not recuse sua sponte from participation in Defendants-Appellants’ trial cannot be characterized as arbitrary or manifestly unreasonable. Plainly stated, Judge Shelby did not err in failing to recuse. Consequently, Defendants-Appellants were not entitled to a new trial based on this failure. First, many of the allegations of partiality raised on appeal ultimately stem from various adverse rulings against Defendants-Appellants. E.g., Aplt. Wells’s Opening Br. at 36-39 (complaining of adverse rulings by the court during voir dire); id. at 40-41 (complaining of an adverse evidentiary ruling); Aplt. Lyman’s Opening Br. at 20 (complaining of an unspecified evidentiary ruling or rulings); id. at 22 (alleging that bias infected the court’s rulings on motions in limine, voir dire, jury instructions, and evidentiary rulings); id. at 23-24 (complaining of the court’s rejection of a motion in limine and its criticism of Mr. Lyman’s attorney for filing a motion to exclude within days of trial). But “adverse rulings cannot in themselves form the appropriate grounds for disqualification.” Nickl, 427 F.3d at 1298 (quoting Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)). Likewise, a “ ‘judge’s ordinary efforts at courtroom administration,’ even if ‘stern and short-tempered’ are ‘immune’ from charges of bias and partiality,” and even allegations of “ ‘critical,’ ‘disapproving,’ or ‘hostile’ ” judicial remarks are insufficient. Id. (quoting Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). To be sure, remarks made in the course of trial may be sufficient to require a new trial if “they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147. But Defendants-Appellants fail to point to any such remarks or conduct here. The real crux of Defendants-Appellants’ arguments lies in the friendship between Judge Shelby and Mr. Bloch, SUWA’s legal director. Judge Shelby had a standing practice of recusing himself from cases in which Mr. Bloch makes an appearance. See Aplt. Wells’s App., Vol. VI, at 1106-07 (Tr. Status Conf. for Jointly Managed R.S. 2477 Road Cases Litig., 2:10-cv-1073; 2:11-cv-1045, dated May 26, 2015). However he did not otherwise refrain from presiding over cases involving SUWA. Id. Defendants-Appellants allege that this friendship calls into question the judge’s impartiality. More specifically, they contend that a reasonable observer would have questioned Judge Shelby’s impartiality when the fact of this friendship is combined with (1) SUWA’s extensive pretrial involvement in the case, notably, passing information to both the offices of the U.S. Attorney and the BLM in Utah, (2) Mr. Bloch’s presence as a spectator at trial, and (3) a voir dire question asking potential jurors whether they, a family member, or a close friend was a member of SUWA. Aplt. Wells’s Opening Br. at 36-37. In effect, they argue that since the judge recused himself for purposes of sentencing, he also should have recused sua sponte earlier—in light of the foregoing factors—before presiding over their trial. But it is not apparent to us that the mere fact that Judge Shelby’s friend was the litigation director for SUWA—an organization that admittedly had taken public positions against the use of ATV vehicles in Recapture Canyon and in support of Defendants-Appellants’ indictment and trial—would have caused a reasonable observer to question Judge Shelby’s impartiality in presiding over Defendants-Appellants’ trial. We can find no case, nor do Defendants-Appellants point to any, even suggesting that recusal is required under these circumstances. In this regard, we note that SUWA was not a party to this criminal prosecution, nor had Mr. Bloch entered an appearance. Further, at no point before or during trial would a reasonable observer who knows the relevant facts have expected Judge Shelby to have known of SUWA’s extensive pretrial involvement in the case. Neither Mr. Bloch’s presence as a spectator at the trial nor the voir dire question reasonably could have given Judge Shelby a basis to know of SUWA’s pretrial involvement. We cannot discern, nor do Defendants-Appellants suggest, how Judge Shelby could have inferred SUWA’s involvement from those facts, much less that he should have so inferred. Thus, even assuming arguendo that such pretrial involvement by SUWA militated in favor of Judge Shelby’s recusal, when viewed in the context of his close friendship with SUWA’s litigation director (Mr. Bloch), and the other factors discussed herein, the record reveals no facts that would have caused a reasonable observer to believe that Judge Shelby should have known of SUWA’s pretrial involvement. Therefore, this circumstance could have no bearing on the recusal analysis. In sum, we conclude that Judge Shelby did not abuse his discretion in not granting a new trial to Defendants-Appellants due to his failure to recuse sua sponte from participation in their trial. Defendants-Appellants have not shown that his judgment was arbitrary, capricious, whimsical, or manifestly unreasonable, and therefore their recusal-based argument for a new trial fails. B. Motions to Dismiss The Defendants-Appellants challenge the denial of their motions to dismiss. Each raises different arguments. Mr. Wells appears to claim that he cannot be prosecuted for his activities because they were protected under the First Amendment. Mr. Lyman argues that the government failed to adequately allege in-térdependence, a required element of conspiracy. We address the arguments of each in turn. “We generally review a district court’s denial of a motion to dismiss a criminal indictment for abuse of discretion.” United States v. Berres, 111 F.3d 1083, 1089 (10th Cir. 2015). However, embedded issues of law are reviewed de novo. See United States v. Barrett, 496 F.3d 1079, 1091 (10th Cir. 2007) (considering a double-jeopardy challenge de novo); see also United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (noting that “[w]e review the [legal] sufficiency of an indictment de novo”); United States v. Giles, 213 F.3d 1247, 1248-49 (10th Cir. 2000) (“Generally, we review the grant or denial of a motion to dismiss an indictment for an abuse of discretion. However, when the dismissal involves issues of statutory interpretation, or when the sufficiency of a charge is challenged, we review the district court’s decision de novo.” (citation omitted)). 1. Mr. Wells Mr. Wells seems to argue that his motion to dismiss ought to have been granted on the grounds that he could not be prosecuted for his First Amendment-protected activities. More specifically, he argues that he could not be prosecuted because the manner and means of the alleged conspiracy in which he participated consisted solely of protected speech. See Aplt. Wells’s Opening Br. at 44-50. We have stated before, in the context of a claimed bar to prosecution under the First Amendment “[t]hat this court must ‘view claims of a “right not to be tried” with skepticism, if not with a jaundiced eye.’” United States v. Quaintance, 523 F.3d 1144, 1146 (10th Cir. 2008) (quoting Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). We have held fhat the First Amendment may be the basis for a bar to prosecution where the exercise of First Amendment rights motivates “hostility” on the part of prosecutors. United States v. P.H.E., Inc., 965 F.2d 848, 860 (10th Cir. 1992) (quoting United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir. 1991)). More "specifically, the defendant has the burden of proof and is obliged to establish at the outset “(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.” Id. (quoting Raymer, 941 F.2d at 1040). “Thereafter, the burden shifts to the prosecution to justify its decision with legitimate, articula-ble, objective reasons.” Raymer, 941 F.2d at 1040. At this juncture, courts inquire “whether, ‘as a practical matter, there is a realistic' or reasonable likelihood of prose-cutorial conduct that would not have occurred but for the hostility ... towards the defendant because he exercised his specific legal rights.’ ” Id. at 1042 (emphasis added) (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)); see P.H.E., Inc., 965 F.2d at 860 (describing this inquiry as “the polestar to guide the district court”)., Mr. Wells argues that the prosecution’s hostility became evident only posttrial, when showings were made that SUWA had pushed for prosecution of the Recapture Canyon riders and also regularly passed Mr. Wells’s social-media postings on to prosecutors. But nowhere- does he present any evidence of prosecutorial hostility towards Mr. Wells’s exercise of his First Amendment rights.-Even the emails from SUWA officials to BLM officials reveal at most that SUWA was simply interested in “protect[ing] the resources of Recapture Canyon” against the perceived-to-be-illegal ■ ride, and not in limiting Mr. Wells’s First Amendment rights. Aplt. Wells’s App., Vol. VI, at 1135; see id. at 1120-46, As noted, defendants have the burden. of establishing actual vindictiveness or establishing a realistic likelihood of vindictiveness. Mr. Wells has done neither. 2, Mr. Lyman Mr. Lyman argues that the district court erred in denying his motion to dismiss. He states cursorily and without argument that the government failed to allege interdependence, a required element of conspiracy. Even given our liberal construction of pro se briefing, Mr, Lyman has not adequately - presented this argument in his opening brief; accordingly, we may deem it waived. See United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011) (noting that we will not “make arguments for” a litigant); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived.”). In any event, the argument fails. To determine the sufficiency of an indictment’ we apply a two-part test: “First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet;, second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further -prosecution for the same cause.” Berres, 777 F.3d at 1089 (quoting United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983)). Mr. Lyman’s argument implicates only the first prong of this test. “Interdependence exists where coconspirators ‘inten[d] to act together for their shared mutual benefit within the scope of the conspiracy charged.’ ” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009) (quoting United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992)). However, in dealing with a charging document alleging conspiracy, we require only that it “contain the essential elements upon which the underlying offense rests,” and those elements “need not be charged with the same degree of specificity as would ordinarily be required in a prosecution based on the underlying offense.” United States v. Bedford, 536 F.3d 1148, 1156 (10th Cir. 2008) (quoting United States v. Daily, 921 F.2d 994, 999 (10th Cir, 1990), overruled on other grounds by United States v. Gaudin, 515 U.S. 506, 115 5.Ct. 2310, 132 L.Ed.2d 444 (1995)). With regard to interdependence, so long as the charging document “describe^] the interdependent behavior of the coconspirators,” it is sufficient. Id. at 1157. Here, the superseding information adequately set out how Mr. Lyman and Mr. Wells interdependently worked together to publicize their plans to ride ATVs in the closed portion of Recapture Valley and then rode the trail. Specifically, it alleges how the Defendants-Appellants worked together to: publish[ ] and promote[ ] on various social media websites an invitation ... to the public to join the proposed ATV ride through the off-road vehicle restricted area .... [They] filmed a three-part video interview in which they discussed the nature, the origin, and plans of the proposed ATV ride through the off-road' vehicle restricted area'.... [They] promoted [that] video interview .., on various social media websites. Aplt. Wells’s App., Vol. I, at 40. These specific allegations sufficiently aver that' the Defendants-Appellants worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the closed portion of Recapture Canyon in protest of BLM’s 2007 closure order. The superseding information’s allegations of interdependence are sufficient. Mr. Lyman’s motion-to-dismiss argument thus fails. C. Mr. Wells’s Insufficiency of the Evidence Claim Mr. Wells argues essentially that the government failed to introduce sufficient evidence that he was acting as a coconspirator rather than as a journalist. See Wells’s Reply Br. at 16-18. “We engage in de novo review1 of the sufficiency of the evidence to support the conviction .... [W]e treat the evidence in the light most favorable to the Government and ask whether a rational fact-finder couid have concluded beyond a reasonable doubt that the defendant was guilty.” United States v. Kamahele, 748 F.3d 984, 1002 (10th Cir. 2014) (citation omitted). In doing so, we ask simply “whether [the] evidence, if believed, would establish each element of the crime.” Id. (quoting United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004)). Here, the relevant crime is a conspiracy, under 18 U.S.C. § 371, to violate the BLM’s 2007 closure order. “A conviction of conspiracy under 18 U.S.C. § 371 requires: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant wil-fully entered the conspiracy.” United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). Here, Mr. Wells appears to challenge the sufficiency of the evidence on the element of the existence of an agreement, insofar as he claims to have been acting as a journalist rather than a cocon-spirator. The evidence presented by the government, however, was sufficient for a jury to find beyond a reasonable doubt that Mr. Wells acted not merely as a journalist reporting on issues- important to his local community, but as a coconspirator who agreed with Mr. Lyman to ride a portion of the closed Recapture Canyon trail on ATVs. More specifically, Mr. Wells repost-ed Mr. Lyman’s advertisements of the ATV protest ride, often adding flourishes of his own that suggested active support for and agreement with the planned ride on the closed portion of Recapture Canyon. For example, the government’s trial exhibit 73 is largely a reposting of an announcement by Mr. Lyman, but with the addition of the text “Show your support click ‘Like’ and Share!” and a large, iconic image of Uncle Sam pointing at the reader and stating “We Need You!!!” Aplee.’s Supp. App., Vol. I, at 177-78 (.PetroGlyph posting entitled “Recapture—Our Public Lands,” May 10, 2014); see also id. at 193 (.PetroGlyph Facebook posting of same statement of Mr. Lyman, dated May 7) (added epigraph stating: “Twenty years from now you will be more disappointed by the things that you didn’t do than by the ones you did do.”). That posting further states: “It is only motorized machines that are deemed unfit (by the BLM) for these trails. I for one plan to be riding an ATV, carefully and respectfully, on these well established trails which have existed in this canyon for many many many years.” Id. at 177. In a video interview of Mr. Lyman conducted by Mr. Wells, in addition to generally agreeing with Mr. Lyman’s plans and reasons for the protest ride, Mr. Wells twice implies that he has agreed to ride on the trail with Mr. Lyman. See Aplee.’s Supp. App., Vol. I, at 184 (Disc 3 Video Clip (conventionally filed)) (“[The BLM’s officials] haven’t been willing to comb down and show you where [cultural sites] are so we can avoid it?” (16:23) (emphasis added)); id. (“We’ve got some issues with the trail itself, where it hasn’t been maintained for the last eight years, seven years, and so there’s some places you can’t get through unless we do some trail maintenance .... That may prevent us from riding parts of it or whatever. But there’s still some trails that have roads in them that we’re looking at.” (19:33) (emphasis added)). Taken together with the evidence showing that Mr. Wells in fact rode the closed portion of the trail on an ATV, the jury could infer that Mr. Wells knowingly and voluntarily agreed with Mr. Lyman to ride ATVs in the closed portion of Recapture Canyon. The evidence presented was legally sufficient to sustain a conviction for conspiracy. D. Brady Claims Defendants-Appellants next contest the district court’s denial of their motion for a new trial baséd on the posttrial discovery of a 1979 map allegedly showing a Revised Statute (“R.S.”) 2477 right-of-way that the government failed to disclose before trial. Defendants-Appellants make two separate arguments: (1) they contend that the 1979 map would have permitted them to establish the existence of an R.S. 2477 right-of-way to negate the legality of BLM’s 2007 closure order, as applied to the portion of the Recapture Canyon trail on which they rode; and (2) they argue that they at least should have been able to present the map as evidence relevant to their good-faith defense, since a violation of the law under which they were convicted requires that a defendant acted knowingly and willfully. See Aplt. Wells’s Opening Br. at 50-57. Thus, the Defendants-Appellants contend that the district court erred in not granting them a new trial to use the map in these ways. The government argues that no Brady violation occurred because the map in question is not material. We review de novo the existence of a Brady violation. See United States v. Reese, 745 F.3d 1075, 1083 (10th Cir. 2014). Proving a Brady claim requires the defendant to show by a preponderance of the evidence (1) that the government suppressed evidence, (2) that the evidence was favorable to the defendant, and (3) that the evidence was material. See id.; accord United States v. Geames, 427 F.3d 1333, 1337 (10th Cir. 2005). Only the materiality element is at issue on appeal. Materiality requires “a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed.” Reese, 745 F.3d at 1083; accord Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Put differently, “the likelihood of a different result [must be] great enough to undermine confidence in the outcome.” United States v. Garcia, 793 F.3d 1194, 1205 (10th Cir. 2015) (quoting Reese, 745 F.3d at 1083). 2. Materiality for a Good-Faith Defense 1 We conclude that the map could not have been material for purposes of the Defendants-Appellants’ good-faith defense. As the district court pointed out, the map cannot even be relevant on this point because Defendants-Appellants were unaware of the map at the time of the ATV ride. See Aplt. Wells’s App., Vol. VII, at 1326 n.45 (Mem. Decision & Order Den. Mot. for New Trial, dated Oct. 22, 2015). On appeal, the Defendants-Appellants do not contest their lack of knowledge of the map. Rather, they (or, more precisely, Mr. Wells; Mr. Lyman’s briefing on this point is unclear), argue that the map, despite the fact that it was unknown to them, “lends credence to the fact that the county road and.its R.S. 2477 right-of-way was well-known in the county,” Aplt. Wells’s Reply Br. at 22, and that “this map could have been used to bolster their suspicion that they were on a historical right-of-way, but lacked the . evidence to prove [it].” Aplt. Wells’s Opening Br. at 54. However, although the Defendants-Appellants thus argue that the R.S. 2477 right-of-way was well known, they do not argue that they subjectively believed in its existence—the relevant question for their good-faith defense. Further, although Mr. Wells now claims that he had a suspicion that a right-of-way existed, a suspicion is not an “honest belief’ that the road was not legally closed to ATV use. See United States v. Chavis, 461 F.3d 1201, 1208-09 (10th Cir. 2006) (discussing availability of good-faith defense to the intent-to-deceive element of mail fraud); cf. United States v. Duncan, 850 F.2d 1104, 1116 (6th Cir. 1988) (stating that the district court “correctly noted that an instruction [for a good-faith defense] should not be given ‘if it lacks evidentiary support or is based upon mere suspicion or speculation’ ” (quoting United States v. James, 819 F.2d 674, 675 (6th Cir. 1987)), overruled on other grounds by Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)). Accordingly, Defendants-Appellants cannot establish that the 1979 map would have been material to their good-faith defense, 2. Materiality for an R.S. 2477 Defense Mr. Wells argues that the map is material because it proves the existence of an R.S. 2477 right-of-way on the road the protest was held on and that such a right-of-way would undo the legality of the BLM’s 2007 closure arder. But another way, he reasons that the right-of-way would have established that the BLM did not have the authority to prohibit Defendants-Appellants’ ATV use on that road. However, the district court held, following an earlier District of Utah decision in United States v. Jessop, Nos. 2:08-CR-245-TC, 2:06-CR-553-RTB, 2010 WL 5395091 (D. Utah Dec. 27, 2010) (unpublished), that criminal defendants do not have “standing” to raise an unadjudicated R.S. 2477 defense and so the map is not admissible evidence. (See Aplt. Wells’s App., Vol. VII, at 1322. In this regard, we have repeatedly held, in the context of civil actions to establish R.S. 2477 right-of-ways, that the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, is the “exclusive means by whic|i adverse claimants [can] challenge the United States’ title to real property.” Kane Cty. v. United States, 772 F.3d 1205, 1210 (10th Cir. 2014) (quoting Block v. North Dakota, 461 U.S. 273, 286, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)); accord San Juan Cty. v. United States, 754 F.3d 787, 793 (10th Cir. 2014); Sw. Four Wheel Drive Assoc. v. Bureau of Land Mgmt., 363 F.3d 1069, 1071 (10th Cir. 2004); Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978). Importantly, we also have ruled that individual members of the public do not have a cognizable claim to. public roads; more specifically, they cannot satisfy the QTA requirement to “set forth with particularity.the nature of the right, title, or interest which the plaintiff claims in the real property.” Sw. Four Wheel Drive, 363 F.3d at 1071 (quoting 28 U.S.C. § 2409a(d)); Kinscherff, 586 F.2d at 160 (“Members of the public as such do not have a ‘title’ in public roads .... Thus the ‘interest’ plaintiffs seek to assert as part of the public is not of such a nature to enable them to bring a suit to quiet title.”). The district court relied on the reasoning underlying these authorities to conclude that ’Defendants-Appellants lacked standing to raise a R.S. 2477 defense. However, Mr. Wells stresses that—unlike the civil cases that the district court relied on—Defendants-Appellants do not seek to quiet title to land against the United States; that is, they do not seek to claim title to, or an interest in, the Recapture Canyon trail. Rather, in their criminal prosecution, they seek to present evidence of an R.S. 2477 right-of-way to attack the legality of the BLM’s 2007 closure order. If the BLM did not have the lawful authority to prohibit them from using ATVs on the route that they traveled because it was an unadjudicated R.S. 2477 right-of-way, then Defendants-Appellants contend that their conduct could not have been illegal. Mr. Wells contends that they must be permitted to raise such a defense in a criminal setting; otherwise, their due-process rights will be infringed. The government rejects this due-process concern. Specifically, it asserts that due-process arguments must be predicated on the deprivation of an individual’s substantive right, and since neither Defendant-Appellant has such an individual right (i.e., “standing”) to establish the R.S. 2477 right-of-way, no due-process violation can result from deny*-ing them the opportunity to present evidence of such a right-of-way. Ultimately, we conclude that, even assuming that Defendants-Appellants were entitled to present evidence regarding the existence of an R.S. 2477 right-of-way on their travel route in mounting a defense to their criminal charges, and that such a defense could establish the illegality of the BLM’s 2007 closure order, the district court did not err in denying Defendants-Appellants a new trial because the 1979 map was not material within the meaning of Brady. Before explaining the basis for this conclusion, we pause to identify one factor that does not undergird it: that is, the Defendants-Appellants’ purported lack of “standing” to seek the adjudication of an R.S. 2477 right-of-way under the QTA. We think this factor- is irrelevant and only serves to muddy and confuse the analysis. We must therefore respectfully part company with the district court’s reasoning, which the government embraces. The term “standing” typically denotes a matter of jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88, 118 S.Ct. 1003, 140 L.Ed.2d 21Ó (1998) (“Petitioner, however, ... has raised the issue of respondent’s standing to maintain the suit, and hence this Court’s jurisdiction to entertain it.”). However, it is clear that the district court here had constitutional jurisdiction under Article III of the Constitution to adjudicate this criminal case. See Bond v. United States, 564 U.S. 211, 217, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (reversing the Third Circuit’s holding that a criminal defendant lacked standing to raise a Tenth Amendment challenge to a federal statute because any rights under the Tenth Amendment accrued not to the defendant but to the states, and holding that the defendant-appellant’s “challenge to her conviction and sentence ‘satisfies the case- or-controversy requirement, because the incarceration .., constitutes a concrete injury, caused by the conviction and redress-able by invalidation of the conviction.’” (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998))). And it is equally patent that the court possessed statutory jurisdiction under 18 U.S.C. § 3231. See, e.g., United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (noting that purported defense counsel’s “memorandum blithely ignored 18 U.S.C. § 3231 which explicitly vests federal district courts with jurisdiction over ‘all offenses against the laws of the United States’ ”); United States v. Tony, 637 F.3d 1153, 1158 (10th Cir. 2011) (“The district court had jurisdiction. 18 U.S.C. § 3231.”); cf. United States v. DeVaughn, 694 F.3d 1141, 1146, 1153 (10th Cir. 2012) (rejecting the view that “a charging document’s failure to state an offense affects a federal court’s jurisdiction,” and noting that “[a] claim that a criminal statute is unconstitutional [as applied to the defendant] does not implicate a court’s subject matter jurisdiction”). Moreover, the Supreme Court has made clear that courts err by characterizing as a question of “standing” the issue of whether a particular litigant is authorized to bring a substantive claim under a statute. See Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. —, 134 S.Ct. 1377, 1387, 188 L.Ed.2d 392 (2014) (“Although we admittedly have placed [the zone-of-interests] test under the ‘prudential’ [standing] rubric in the past, it does not belong there .... Whether a plaintiff comes within ‘the “zone of interests” ’ is an issue that requires us to determine, using traditional tools of statutory interpretation,. whether a legislatively conferred cause of action .encompasses' a particular plaintiffs claim.” (citation omitted)); Bond, 564 U.S. at 218-19, 131 S.Ct. 2355 (holding that Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), had improperly conflated the merits question of whether the plaintiff in.that case had a cause of action with the justicia-bility question of whether the plaintiff had standing to raise a federalism challenge). Thus, the question that courts have mis-gwidedly used the term “standing” to describe in the QTA context is really whether a particular litigant is a member of a class that Congress has authorized to sue to quiet title against the United States. And that question is not relevant in this criminal prosecution. As noted, Defendants-Appellants do not. seek to quiet title against the United States under the QTA; instead, they seek to present a defense that challenges the legality of the BLM’s 2007 order by presenting evidence that the order unlawfully barred their use of an R.S. 2477 right-of-way. Thus, for purposes of our ultimate conclusion, we do not consider Defendants-Appellants’ “standing”r-in. particular, as it relates to the QTA—-to be relevant. However, partly due to the misdirected efforts and “confusion,” Bond, 564 U.S. at 219, 131 S.Ct. 2355, in the parties’ briefing relating to the standing question, we deem it most fair and efficient to predicate our analysis on two key assumptions. These assumptions will permit us to move more directly to the heart of the matter—i.e, materiality—and to bypass the constitutional question of whether Defendants-Appellants’ due-process'rights would be violated if they are prevented from mounting an R.S. 2477 defense to their criminal charges. See, e.g., United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (“The Supreme Court has long endorsed, if not always adhered to, the notion that federal courts should address constitutional questions only when necessary to a resolution5 of the case or controversy ■ before it.”); accord Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 508 (1st Cir. 2011) (“The court declined to adhere to the doctrine of constitutional avoidance on the ground that it felt resolution of a constitutional due process question was inevitable in the case before it. A decision on a constitutional due process question was not necessary, was not inevitable, had considerable impermissible consequences, and contravened the rule of constitutional avoidance.”); cf. Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (declining “to depart from our general practice [of not considering arguments for revef sal not adequately presented in the opening brief] in this case, given that significant and largely uncharted questions of the Constitution’s meaning, questions whose proper outcome is far from certain, hang in the balance”), First, we assume, without deciding,'that Defendants-Appellants may present an R.S. 2477 defense in their criminal case as a means of attacking the legality of the BLM’s 2007 closure order. Second, we similarly assume that Defendants-Appellants are correct that if an R.S. 2477 right-of-way exists, and its scope included ATV use, then the BLM lacked the authority to close the area in question to ATV use. We make these two assumptions—both favorable to Defendants-Appellants—without prejudicing the government because, even with the benefit of them, Defendants-Appellants cannot prevail. The district court did not err in denying their motion for a new trial. Generally speaking, under our precedents, establishing an R.S. 2477 right-of-way. requires showing, inter alia, that it had been “ ‘accepted’ by the public” before the repeal of R.S. 2477. SUWA v. BLM, 426 F.3d at 770; see id. at 741 (“[Repeal of R.S. 2477] had the effect of ‘freezing’ R.S. 2477 rights as they were in 1976.” (quoting Sierra Club v. Model, 848 F.2d 1068, 1081 (10th Cir. 1988), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10thCir. 1992)(en banc)).) Determining the existence and scope of an R.S. 2477 route is an evidence-intensive inquiry. See id. at 772-76 (surveying Utah and other states’ cases making use of extensive historical evidence to establish the extent and nature of use over the. required period); see also San Juan Cty., 754 F.3d at 791 (describing broadly the evidence presented over the course of a “nine-day bench trial” involving the determination of the existence of an R.S. 2477 route); cf. SUWA v. BLM, 425 F.3d at 743 (describing preliminary BLM determination of an R.S. 2477 route as involving “review! ] [of] a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records” as well as “field investigations of each disputed route”). Given the evidence-intensive nature of such inquiries, one could reasonably question how far a single map could ever advance the enterprise of establishing an R.S. 2477 right-a-way. In any event, we have little difficulty here concluding that the 1979 map not only falls far short of the task, but also cannot be deemed material under Brady. Specifically, the map simply shows a single red, dashed line running alongside Recapture Creek. The map’s legend does not indicate the significance of such a dashed line. Moreover, no : other evidence was presented during the trial concerning the scope or extent of use along the purported route prior to repeal of R.S. 2477. Thus, we would be hard-pressed to conclude that the map is sufficient to establish the existence of an R.S. 2477 right-of-way, much less its scope. Nor, more to the point, is the map material to such purposes. At most, one could infer from the map’s dashed, single red line some public use as a thoroughfare before 1979. Even assuming in that regard that the line does indicate some form of public use, the quantity of such use is not apparent from the face of the map. Neither does the map speak in any apparent way to the scope of the use of the route, such as whether ATVs were used on the route prior to the repeal of R.S. 2477 or whether it was instead a mere foot dr horse trail. The map’s legend sheds no light on these issues, nor does any other evidence in the record. The Defendants-Appellants’ motion for a new trial before the district court failed to otherwise shed light on why the map should be deemed material for establishing an R.S. 2477 right-a-way. Instead, it simply assumes that the map demonstrates the existence of such a right-of-way. See, e.g., Aplt. Wells’s App., Vol. VI, at 1178 (“[Tjhere was no disclosure that the BLM Map in the BLM’s files indicated the existence of an R.S. 2477 right-of-way on Recapture Canyon Road.”). An affidavit filed with the motion for a new trial averred conclusorily that the dashed, red line denotes a public highway that is an unadjudi-cated R.S. 2477 right-a-way, and that it is the same route on which the Defendants-Appellants rode. However, it is silent as to the scope of the alleged R.S. 2477 route, and the affidavit contains no assertion regarding the extent, nature, or duration of public use of the route. Defendants-Appellants’ appellate briefing similarly assumes that the map in question establishes the existence of such a right-of-way. At best, their briefing argues that the map could have “augmented” unspecified evidence “of a legitimate right-of-way on a county road that nearby residents had been using for decades.” Aplt. Wells’s Reply Br. at 22. But such speculation is insufficient to establish materiality for Brady purposes. See United States v. Ahrensfield, 698 F.3d 1310, 1319 (10th Cir. 2012) (“In [determining whether evidence is material], we evaluate the withheld evidence ‘in light of the entire record in order to determine if the omitted evidence creates a reasonable doubt that did not otherwise exist.’ We do not, however, resort to speculation. ‘The mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard.’ ” (citations omitted) (quoting Banks v. Reynolds, 54 F.3d 1508, 1518-19 (10th Cir. 1995))); cf. United States v. Rogers, 960 F.2d 1501, 1511 (10th Cir. 1992) (“Rogers further argues that had he been given the documents in a timely manner, he could have reviewed, investigated, and properly developed his defense, and that it is probable that the jury would have reached a different result. We have held that, ‘the relevant standard of materiality does not focus on trial preparation, but instead on whether earlier disclosure would have created a reasonable doubt of guilt that did not otherwise exist.’” (quoting United States v. George, 778 F.2d 556, 561-62 (10th Cir. 1985))). The mere possibility that, in light of the map, the Defendants-Appellants might have been able to craft a successful R.S. 2477 defense is not enough to make out a Brady claim. In short, the evidence in the form of the 1979 map “is too little, too weak, [and] too distant ... to meet Brady’s standards.” Turner v. United States, — U.S. —, 137 S.Ct. 1885, 1894, 198 L.Ed.2d 443 (2017). Even if we make ambitious inferences from the map and the accompanying affidavit, in our view, Defendants-Appellants have not demonstrated the element of materiality. See, e.g., Geames, 427 F.3d at 1337 (“[T]he defendant has the burden of demonstrating [the three elements of a Brady- claim].”). The extent, scope, and duration of public use of the trail prior to 1976 is not established by the map, and because we are left with at best speculation as to those decisive questions, Defendants-Appellants have failed to carry their burden. Put another way, the map fails to create a reasonable probability of a different outcome so as to cast doubt on Defendants-Appellants’ convictions—that is, it is not material under Brady. Accordingly, the district court properly denied Defendants-Appellants’ motion for a new trial based on this purported Brady violation. E. Restitution The district court ordered Mr. Lyman to pay approximately $96,000 in restitution, of which the court ruled Mr. Wells was jointly and severally responsible for $48,000. Mr. Wells principally challenges the restitution order on two grounds: (1) it includes harms that are not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) it includes amounts that are not legally cognizable as actual loss or supported by the evidence. Mr. Lyman appears to make a similar argument regarding causation and also attacks the court’s fact finding. “We review the legality of a restitution order de novo.” United States v. Shengyang Zhou, 717 F.3d 1139, 1152 (10th Cir. 2013). We assess “the factual findings underlying a restitution order for clear error and the amount of restitution imposed for abuse of discretion.” Id. (quoting United States v. Bowling, 619 F.3d 1175, 1187 (10th Cir. 2010)). “The government bears the burden of proving the amount of loss by a preponderance of the evidence.” United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008); see also United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007) (“The government bears the burden of proving the amount of loss, and the district court resolves disputes over the proper amount of restitution by the preponderance of the evidence.”). It necessarily follows that the government also bears the same burden regarding the subordinate question of what harms are properly included in the loss calculation because they are “a result of the offense.” 18 U.S.C. § 3664(e); see United States v. Ritchie, 858 F.3d 201, 211 (4th Cir. 2017); United States v. Patty, 992 F.2d 1045, 1051 (10th Cir. 1993) (“[Although Defendant could be ordered to pay restitution in an amount up to $25,000,000, she could not be ordered to pay restitution in excess of those losses which the government proved were the result of her fraudulent acts.”). 1. Causation Under the Mandatory Victims Restitution Act (“MVRA”), which undis-putedly governs the restitution analysis here, restitution shall be ordered for an offense causing damage to property by either returning property, or if impossible, impracticable, or inadequate, pay[ing] an amount equal to ... the greater of ... the value of the property on the date of the damage ... or ... the value of the property on the date of sentencing, less ... the value (as of the date the property is returned) of any part of the property that is returned. 18 U.S.C. § 3663A(b)(1). The MVRA requires courts to order a defendant to pay restitution to a “victim” of the offense. See 18 U.S.C. § 3663A(a)-(c). No party disputes that the United States can constitute a “victim” under the MVRA. See United States v. Quarrell, 310 F.3d 664, 677 (10th Cir. 2002) (“[T]he government can be a ‘victim’ under the MVRA.”). However, the question here is for what alleged harms can the United States properly recover restitution, and the answer to that question requires an inquiry into causation. The MVRA’s definition of “victim” provides: [T]he term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the . scheme, conspiracy, or pattern 18 U.S.C. § 3663A(a)(2) (emphases added). In United States v. Speakman, we held that this language actually “sets forth two separate ways an individual [or entity, like the United-States] can be a victim under the MVRA”: first, the government may show that- the victim was “directly and proximately'harmed as a result of’ the offensep and second, if a scheme, conspiracy, or pattern of criminal activity is “an element” of the crime at issue, the government may instead demonstrate that the victim was “directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern of criminal activity.” 594 F.3d 1165, 1169 (10th Cir. 2010) (quoting § 3663A(a)(2)). Notably, “[t]he first clause [of the 'statute] also ‘includes]’ the second,” id. at 1170 (third alteration in original), and thus all harms contemplated by the statute must be “directly and proximately” caused and also must be “the result of the commission of the offense.” § 3663A(a)(2). However, the way a person can be shown to be . a “victim” under the first clause is “in some ways broader [than the second clause] because it requires only that the individual be harmed ‘as a result of the défendant’s offense, and not ‘in the course of the offense.” Speakman,'594 F.3d at 1169-70, “It thus follows that an individual could be deemed a victim by meeting the first criteria only, and not the second.” Id. at 1170. Consequently, even if a defendant was convicted of an offense involving a scheme, conspiracy, or pattern element— quite apart from the'“in the course of’ criterion—the government’s evidence could still establish that a person suffered injuries making them a “victim” by proving under the first clause that the harms at issue were “as a result of’ the offense.;See id. (“Merrill Lynch’s harm cannot be said to have, arisen ‘in the course of the scheme.’ ... Merril Lynch may still be a victim of Mr. .Speakman’s fraud if it meets the first criterion of § 3663A(a)(2): that is, Merrill Lynch may.be a victim under the MVRA if it was ‘directly and proximately harmed as a result of Mr. Speakman’s fraud.”). In addressing Defendants-Appellants’ causation challenge, we elect to focus on whether the government has carried its burden under the first method. Like' the second, this method is governed by the overarching direct-and-proximate standard. See Speakman, 594 F.3d at 1170 (noting that “[t]he first clause [of the statute] also ‘includes] the second” (third alteration in original)). In Speakman, we observed “that phrase ‘directly and proximately’ uses the conjunctive ‘and,’ which indicates that direct harm and proximate harm have separate meanings.” Id. at 1171. And discerning these separate meanings to relate to, respectively, “but-for” and “proximate” causation, the Speakman court held that “the government must show both that the defendant’s conduct is the ‘but-for’ cause of the individual’s [or entity’s] harm and that the defendant ‘proximately’ caused the harm.” Id.; see 3 Charles Alan Wright, et al., Federal Practice & Procedure, Criminal 4D § 546, Westlaw (database 'updated Apr. 2017) (“Generally, the government must show [under the federal restitution statute] both that the defendant is the but-for cause of the person’s harm and .that the defendant was the proximate cause of the person’s harm.”). The general meanings of but-for and proximate causation are well-known in the law. See, e.g., United States v. Burkholder, 816 F.3d 607, 612-14 (10th Cir. 2016) (defining and analyzing the concepts of but-for and proximate causation in the context of a criminal prosecution). But, more .specifically, in the restitution context, the Supreme Court has opined that “[t]he basic question that a proximate cause requirement presents is ‘whether the harm alleged has a sufficiently close connection to the conduct’ at issue.” Robers v. United States, — U.S. —, 134 S.Ct. 1854, 1859, 188 L.Ed.2d 885 (2014) (quoting Lexmark, 134 S.Ct. at 1390). And answering this question. generally entails an inquiry into the foreseeability of the harm. See id. (“Robers argues that where, as here, a victim receives less money from a later sale than the collateral was worth when received, the market and not the offender is the proximate cause of the deficiency. We are not convinced. Fluctuations in property values are common. Their existence ... is foreseeable.” (citation omitted)); Catharine M. Goodwin, Federal Criminal Restitution § 6:10, Westlaw (database updated Aug. 2017) (“Post-MVRA case law on the causation of restitution harms has demonstrated that the emerging criteria for whether an offense was the proximate cause of a particular harm to a victim focus primarily on whether that harm was reasonably foreseeable to the defendant in committing the offense of conviction ....” (footnote omitted)); cf. Paroline v. United States, — U.S. —, 134 S.Ct. 1710, 1718, 1721, 1731, 188 L.Ed.2d 714 (2014) (rejecting restitution objection, under statute that has a “proximate-cause requirement” that is specifically focused on restitution ,for crimes involving the sexual exploitation of children and child pornography in particular by noting that “[i]t was readily foreseeable that Paroline’s crime could cause Amy to suffer precisely the types of losses that she claims .... ”). “As Justice O’Connor has noted ‘proximate cause principles inject a foreseeability element into [a] statute.!” Burkholder, 816 F.3d at 613 (alteration in original) (quoting Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 713, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (O’Connor, J., concurring)). Turning to the parties’ arguments, with respect to but-for causation, the government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of “motorized damage to archeological, riparian, and upland soil resources in the closed area.” Aplee.’s Br. at 43. We conclude that the government presented ample evidence from which the district court could find by a preponderance of the evidence that this was so. The court did not clearly err in this regard. Notably, the government introduced photos of,the area taken before the ride and photos taken two days after it; the latter supported its contentions of motorized damage. Furthermore, prior to the •restitution hearing, Chief Ranger Moore offered an affidavit that the trail camera had taken photos of about thirty-two “motorized vehicles”; though overexposed, the court could readily infer from these photos that multiple riders traveled through the area in Recapture Canyon that the BLM had closed to ATV users at the time of the protest ride and caused significant motorized damage. See Aplee.’s Supp. App., Vol. Ill, at 323 (Aff. of Chief Ranger Jason Moore) (noting that the thirty-two riders “would have had to travel over seven archeological sites, through nine riparian crossings, and up some steep hills”). Thus, we conclude that the government’s proof satisfied but-for causation, As for proximate causation, “[wjhere there are causes in addition to the offense conduct that appear to have contributed to the harm suffered by the victims of the offense, the issue is raised as to whether the defendant bears the risk of all the harm or whether the chain of causation was in effect broken by the intervening cause, resulting in less harm for which the defendant would be held liable in restitution.” Goodwin, swpra, § 6:13. Thus, we reasoned in Speakman that the proximate-cause requirement is satisfied “if either there are no intervening causes, or, if there are any such causes, if those causes are directly related to the defendant’s offense.” 594 F.3d at 1172; accord United States v. Camick, 796 F.3d 1206, 1223 (10th Cir. 2015); see also United States v. Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999) (“[T]he main inquiry for causation in restitution cases becomes whether there was an intervening cause and, if so, whether this intervening cause was directly related to the offense conduct.”); Goodwin, supra, § 6:13 (“In many cases the issue of intervening causation is a key part of the restitution causation analysis”). The direct-relation requirement means that the intervening cause must not be “too attenuated ... so that it would be unjust to hold ... responsible” the defendants. Speakman, 594 F.3d at 1172. Mr. Wells and Mr. Lyman argue that the government did not establish proximate causation because “the scope of the alleged conspiracy ended at the turnaround on the Pipeline Road,” Aplt. Wells’s Opening Br. at 63; they personally never traveled beyond that turnaround; and most of the damage occurred beyond it. See Aplt. Lyman’s Opening Br. at 33 (arguing that the government has “not produced convincing evidence that even one ATV traveled past that point [i.e., the turnaround], and certainly cannot legitimately claim that it was part of my plan to do so” (emphasis added)); Aplt. Wells’s Reply Br. at 28 (“Damage caused by riders off the Pipeline trail was not directly related to Mr. Wells’ ride because (1) the conspiracy had terminated, and (2) Mr. Wells did not cause the damage.”). In effect, Defendants-Appellants argue that if any damage occurred at all, it was due to riders other than them who were not co-conspirators and whose conduct should not otherwise be attributed to them. In effect, they reason that those other riders who continued riding south of the Pipeline Road should be viewed as an intervening cause, breaking the chain of proximate causation. However, even if we assume arguendo, following the logic of Defendants-Appellants’ argument, that the southbound riders were an intervening cause, we still reject their ultimate conclusion. We determine that the government has established proximate causation. Specifically, we conclude that this purported intervening cause was directly related to the offense conduct—that is, the conspiracy—and thus a proper predicate for the establishment of proximate causation. In this regard, Defendants-Appellants’ focus on the ostensible termination of the conspiracy is misguided. As we made clear in Speakman, in the analogous context of a fraudulent scheme, intervening causes may still be directly related to the offense conduct for purposes of proximate causation “well after the conclusion” of that offense conduct. 594 F.3d at 1170; id. at 1172 (‘We have little' difficulty in concluding that the arbitration was ‘directly related to the offense conduct,’ because Mrs. Speakman initiated the arbitration directly in response to Mr. Speakman’s fraud in an attempt to recover the money he stole from her. This is a direct relationship that is not too attenuated from Mr. Speakman’s fraud so that it would be unjust to hold him responsible.”). In other words, even if we assume ar-guendo that those who rode south beyond the Pipeline Road turnaround exceeded the conspiracy’s scope and were not cocon-spirators, their conduct could still be deemed directly related to that conspiracy. These riders initiated their ride in closed portions of Recapture Canyon “directly in response to,” id. at 1172, Defendants-Appellants’ conspiratorial efforts, as the district court put it, to “organize a protest ride in closed areas in Recapture Canyon.” Apli’s App., Vol. VII, at 1421 (Tr. Restitution Hr’g., dated Oct. 28, 2015). And, as the court further observed, the geography of the area made it entirely foreseeable that the riders would continue south beyond the turnaround, even if the object of the conspiracy had been attained. Specifically, the court noted: The map presented by defendant Wells showing the proximity at the end of the canyon, the Brown’s Canyon end, to the city of Blanding further demonstrates the inevitability that riders would not choose to follow the longer northern route to return back the way they came but would loop back through the southern route of Brown’s Canyon through the closed area. Id. at 1421-22. In other words, that riders who had come to ride on closed' trails within Recapture Canyon as part of an unlawful conspiracy that Defendants-Appellants promoted might ride on trails beyond those on which the Defendants-Appellants themselves chose to ride and beyond those within the ostensible scope of the conspiracy is the kind of intervening cause that has “a direct relationship that is not too attenuated from” the conspiracy, Speakman, 594 F.3d at 1172—especially when one of these trails provided the most convenient route back to a residential city. Cf. United States v. Spinney, 795 F.2d 1410, 1417 (9th Cir. 1986) (awarding restitution under a pre-MVRA statute, in a conspiracy-to-assault case that resulted in the deaths of the targeted parties, and noting that “[a] restitution order is authorized if the defendant created the circumstances under which the harm or loss occurred”). Accordingly, we conclude that the government’s evidence established proximate causation. ⅝ ⅝ In sum, the district court did not err in ruling that Defendants-Appellants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants-Appellants’ unlawful conspiracy to conduct a protest ride in closed portions of Recapture Canyon. 2. Amount of Actual Loss Defendants-Appellants. challenge three aspects of the total amount of restitution ordered: (1) that the approximately $65,000 spent assessing the damage caused by the ATV ride was “speculative archeological expenses disallowed in Quarrel,” Aplt. Wells’s Opening Br. at 59; cf. Aplt. Lyman’s Opening Br. at 32; (2) that the assessment costs were not “incurred during participation in the investigation or prosecution of the offense,” Aplt. Wells’s Opening Br. at 60; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. First, it is beyond dispute that restitution “must be based on actual loss.” Quarrell, 310 F.3d at 680. However, contrary to Mr. Wells’s argument, the damages assessment that the government requested—the cost of which was included in the restitution order—does not constitute speculative, archaeological damages of the kind that we barred in Quarrell. “Archaeological value” is a term of art under the Archaeological Resources Protection Act (“ARPA”), 16 U.S.C. § 470ff(a)(2)(A), and is defined in its implementing regulations as “the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific-information which would have been obtainable prior to the violation.” Quarrell, 310 F.3d at 679 (emphasis added) (quoting 43 C.F.R. § 7.14(a)). Thus, “archaeological value,” rather than constituting a measure of actual loss, “is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort.” Id. (emphasis added) (quoting United States v. Hunter, 48 F.Supp.2d 1283, 1288 (D. Utah 1998)). Thus, in Quarrell, we held that “in-clud[ing] archaeological value in determining the amount of restitution” was error. Id. at 679-80. But here; the parties disclaimed any applicability of the ARPA, Aplt. Wells’s App;, Vol. VII, at 1336 (Mr. Lyman’s counsel stating that the-ARPA is “sort- of irrelevant to the analysis” after the Assistant United Statds Attorney stated “This isn’t an ARPA case”), and the assessment that took place • was detailed and anything but hypothetical, see Aplee.’s Supp. App., Vol. II, passim (detailed assessment of damages). Although the damages assessment included ARPA estimates, id. at 294-301, those estimates were not the basis for the restitution order. Thus, Quarrell is inapposite. Second, the MVRA provides- that, in all cases, a victim must be reimbursed “for ... expenses incurred during participation in the investigation or prosecution, of the offense.” 18 U.S.C. § 3663A(b)(l). And we have specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution. See Quarrell, 310, F.3d at 681 (holding there was no abuse of discretion in including in a restitution order $300 for the services of a law, enforcement officer in investigating damage to archaeological sites). We thus reject Mr, Wells’s assertion that the expenses the government incurred to assess the motorized damage in Recapture Canyon were not incurred, during its, participation in the investigation or prosecution of the offense. In particular, we conclude that the D.C. Circuit decision that Mr. Wells cites 'is inapposite because that case establishes only that an internal investigation “cannot be said to-be necessary if the investigation was neither required- nor requested by criminal investigators or prosecutors.” United States v. Papagno, 639 F.3d 1093, 1096 (D.C. Cir. 2011). But here, the BLM requested the assessment of damages for its criminal investigation of Defendants-Appellants—indeed, besides having been undisputedly requested by the BLM, every page of the assessment report is marked “PREPARED FOR LAW ENFORCEMENT PURPOSES.” See Aplee.’s Supp. App., Vol. II, at 195. The Defendants-Appellants do not otherwise argue that the assessment was unnecessary. Accordingly, we can find no abuse of discretion in the court’s, inclusion as restitution of costs related to this assessment report. Third, as to Mr. Wells’s final argument, we conclude that it is based on a mistaken view of the record. Contrary to his position, the government did not “admit[ ] that its damages ‘are not hard numbers’— ‘there can be some wiggle room in there.’ ” Aplt. Wells’s Opening Br.- at'59-60. Read in context, the prosecutor was simply attempting to explain why restitution figures from an earlier case involving illegal trail construction in Recapture Canyon could not be considered as a basis for comparison with the present case. The restitution figure in that case could not provide a baseline for the present case, the government reasoned, because there the defendants did not contest restitution, entered a plea deal with the government, and the restitution amount was negotiated. Thus, the $30,000 damages figure in the earlier case was not based on “hard numbers” and so had “some wiggle room.” Defendants-Appellants’ final argument is thus misguided and spurious. * * * Based on the foregoing, we uphold in full the district court’s award of restitution. F. Mr. Lyman’s Ineffective Assistance of Counsel Claim Mr. Lyman attempts to raise here, on direct appeal, an ineffective assistance of counsel claim. Because of the typical necessity of developing a separate factual record pertinent to an ineffective-assistance claim, we have held that “[fin-effective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); accord United States v. Holloway, 826 F.3d 1237, 1243 (10th Cir. 2016). Mr. Lyman makes no attempt to argue that his claim is one of the rare ineffective-assistance claims that may and should be addressed on direct appeal, and we see no reason to reach its merits. CONCLUSION For the foregoing réasons, we AFFIRM the district court’s judgment and restitution order. SUPPLEMENT A. 1979 BLM Map (Aplt. Wells’s App., Vol. VI, at 1189) B. 1979 BLM Map Detail (Aplt. Wells’s App., Yol. VI, at 1191) . All-terrain vehicles will be referred to consistently as ATVs, though in the record and briefing they are sometimes designated as OHVs ("off-highway vehicles") or ORVs ("off-road vehicles”). ¡ . Two others, were charged and tried before a jury with Defendants-Appellants; they were ultimately acquitted of the charged offenses. . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). . Our liberal construction of Mr, Lyman’s briefing leads us to this conclusion, but we do not "assume thé role of advocate." Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003) (quoting Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992)). Mr. Lyman may also claim a violation of due process by reason of the judge's alleged bias. But because this requires a stronger showing than a claim for a new trial based on error in not recusing, see Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994) (requiring a showing of actual bias or an appearance of bias strong enough to create a conclusive presumption of actual bias), and because Mr. Lyman fails to meet the lower standard applied here, ;we need not reach this question. . In some instances, Mr. Wells complains of decisions that cannot even be properly characterized as adverse to Defendants-Appellants. Aplt. Wells’s Opening Br. at 42 (complaining of the judge calling for a break "during a particularly effective portion of Mr. Wells' cross-examination of Mr. Palma,” where defense counsel was asked by the court whether that moment was convenient for a break and defense counsel assented); id. (complaining of the judge "speaking for the government” where the judge merely suggested that the government could stipulate that a photograph did not represent a closure sign on the road in Recapture Canyon rather than having the defense elicit that from a witness; the government promptly agreed to so stipulate); id. at 42-43 (complaining of the judge’s timing in informing the jury of the parties’ stipulation that the San Juan Water Conservancy District held a limited right-of-way within Recapture Canyon, where the defendants did not object). . Though there is little indication of it, the government seems to understand Mr. Lyman to be making an argument regarding the lawfulness of the BLM's 2007 closure order in the context of challenging the district court's decision regarding his motion to dismiss. See Aplee.’s Br. at 31 (including a subsection entitled "Recapture Canyon was lawfully closed to OHVs”). Insofar as Mr. Lyman is actually making such an argument in the motion-to- ■ dismiss context, we deem it to be too bare-bones to warrant appellate consideration and thus declare it waived. See, e.g., United States v. Pursley, 577 F.3d 1204, 1231 n.17 (10th Cir. 2009) ("Under our precedent, this skeletal reference is insufficient to raise the ex parte/disclosure concern as a discrete appellate issue.”). That said, Mr. Lyman’s briefing, generously construed, does join Mr. Wells's attack on the legality of the 2007 closure order in mounting a challenge based on suppressed evidence. We fully address that challenge infra and find it to be without merit. . Our 2005 decision in Southern Utah Wilderness Alliance v. Bureau of Land Management ("SUWA v. BLM"), 425 F.3d 735 (10th Cir. 2005), offers an excellent primer on R.S. 2477. Rather than reinvent the wheel here, we are content to share this discussion: In 1866, Congress passed an open-ended grant of "the right of way for the construction of highways over public lands, not reserved for public uses.” This statute, commonly called "R.S. -2477," remained in effect for 110 years, and most of the transportation routes of the West were established under its authority. During that time congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S, 2477 rights of way were an integral part of the congressional pro-development lands policy. In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership [by passing the Federal Land Policy and Management Act of 1976], with an increased emphasis on conservation and preservation. As part of that statutory sea change,' Congress repealed R.S. 2477, There could be no new R.S. 2477 rights of way after 1976. But even as Congress repealed R.S. 2477, it specified that any "valid” R.S. 2477 rights of way "existing on the date of approval of this Act” (October 21, 1976) would continue in effect. The statute thus had the effect of "freezing” R.S. 2477 rights as they were in 1976. The difficulty is in knowing what that means. Unlike any other federal land statute of which we are aware, the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested; As the Supreme Court of Utah noted 75 years ago, R.S. 2477'" ‘was a standing offer of a free right of way over the public domain,’ ” and the grant may be accepted "without formal action by public authorities.” In its Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands, the Department of the Interior explained that R.S. 2477 highways "were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority.” To make matters more difficult, parties rarely had an incentive to raise or resolve potential R.S. 2477 issues while the statute was in effect, unless the underlying land had been patented to a private party. If someone wished to traverse unappropriated public land, he could do so, with or without an R.S. 2477 right of way, and given the federal government’s pre-1976 policy of opening and developing the public lands, federal land managers generally had no reason to question use of the land for travel. Roads were deemed a good thing. Typical was the comment by the great nineteenth-century Michigan jurist, Thomas Cooley, that ”[s]uch roads facilitate the settlement of the country, and benefit the neighborhood, and .in both particulars they further a general policy of the federal government. But they also tend to increase the value of the public lands, and for this reason are favored,” Thus, all pre-1976 litigated cases involving contested R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title to previously-public land and would-be road users who defended the right to cross private land on what they alleged to be R.S. 2477 rights of way. Now that federal land policy has shifted to retention and conservation, public roads and rights of way in remote areas appear in a different light. Some- roads and other rights of way are undoubtedly necessary, hut private landowners express the fear that expansive R.S. 2477 definitions will undermine their private property rights by allowing strangers to drive vehicles across their ranches and homesteads. Conservationists ánd federal land managers woriy that vehicle use in inappropriate locations can permanently scar the land, destroy solitude, impair wilderness, endanger archeological and natural features, and generally make it difficult or impossible for land managers to carry out their statutory duties to protect the lands from "unnecessary or undue degradation.” They argue that too loose an interpretation of R.S. 2477 will conjure into existence rights of way where none existed before, turning every path, vehicle track, or dry wash in southern Utah into a potential route for cars, jeeps, or off-road vehicles. For their part, the Counties [of southern Utah] assert that R.S. 2477 rights of way are "major components of the transportation systems of western states,” and express the fear that federal land managers and conservationists are attempting to redefine those rights out of existence, with serious “financiál and other impacts” on the people of Utah. Thus, the definition of R.S. 2477 rights of way across federal land, which used to be a non-issue, has become a flash point, and litigants are driven to the historical archives for documentation of matters no one had reason to document at the time. Id. at 740-742. . Mr. Lyman appears to disclaim any desire to Taise an R.S. 2477 defense yet states that he did raise it “as a matter of uncontested fact.” See Aplt. Lyman's Opening Br. at 29-30. Construing this liberally in light of his reply brief, he appears to argue that it is a fact that they were on a county R.S. 2477 right-of-way. See Aplt. Lyman's Reply Br. at 17-26. However, Mr. Lyman does not offer legal argument in support of this assertion of • "fact,” nor does he clearly explain why the district court erred in failing to grant him a new trial on this basis. Without crossing the line of being his advocate, see, e.g., Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. . 1991), we give Mr. Lyman,, insofar ■ as his filings plausibly may be read to assert similar contentions, the benefit of Mr. Wells’s arguments. . In passing, Mr. Wells asserts that the prosecutor, in his closing argument, infringed on his constitutional right not to testify. He argues -.that the prosecutor commented on his choice not to testify by pointing out that no evidence had been introduced showing that the permission to use the pipeline right-of-way that Mr. Ferd Johnson, had given to Mr. Lyman had ever been communicated to any other defendant: Let’s discuss briefly what Mr. - Johnson said and what he did not say. The only testimony from Mr. Jphnson was that he spoke with Mr. Lyman in March of 2014 and said it was okay. There was no testimony from Mr. Johnson ever that he spoke with Mr. Wells, [or the other two defendants, who were ultimately acquitted] giving them permission to use the right-of-way, and no evidence has been produced from Mr. Johnson, from the Government’s witnesses or from any of the exhibits admitted into evidence suggesting that Mr. Lyman ever communicated that to any of the other Defendants. Thus, they can’t avail themselves of some permission that they never heard about. Aplt. Wells’s App., Vol. IV, at 918. Mr. Wells did not raise this argument below, as he concedes in his reply brief, but he argues that comments on a defendant’s failure to testify are plain error. See Aplt. Wells’s Reply Br. at 25-26, Even if this generally were true, the prosecutor's comments could not be deemed improper here because it was not the case that “the language used [by the prosecutor] was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the, defendant’s right to remain silent,” Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001) (quoting Pickens v. Gibson, 206 F.3d 988, 998 (10th Cir. 2000)). A prosecutor is “free to comment on a defendant’s failure to call certain witnesses or present certain testimony.” Id. (quoting Pickens, 206 F.3d at 999). But the prosecutor here did not even go that far. Instead, his phrasing shows a careful attention not to comment on the fact that the Defendants-Appellants themselves did not offer testimony. The prosecutor limited himself to calling the jury’s attention to the absence of proof relevant to the Defendants-Appellants' good-faith defense, as reflected in the limits of Mr. Johnson’s and the government witnesses’ testimony, as well as the exhibits that had been introduced into evidence. This does not amount to an improper comment on the Defendants-Appellants’ decision not to testify. . We recognize that, in the context of the OTA, the existence and scope of a right-of-way or, more generally, an easement, is an issue for the-judge. See 28 U.S.C. § 2409a(f) ("A civil action against the United States under [the Quiet Title Act] shall be tried by a court without a jury.”). Utah law follows a somewhat similar approach. See Conatser v. Johnson, 194 P.3d 897, 900 (Utah 2008) (“Determining the scope of an easement is a question of law.”); Valcarce v. Fitzgerald, 961 P.2d 305, 311-(Utah 1998) (“The finding that an easement exists is a conclusion of law. Such a finding is, however, the type of highly fact-dependent question . „. which accords the trial judge a broad measure of discretion ....”). On this basis, the'government contends that Defendants-Appellants' R.S. 2477 defense cannot be material. See Aplee.’s Br. at 35. The underlying premise of the government's argument appears to be that evidence relevant to a ruling made by a- judge—as opposed to a factual finding made by a jury— cannot, as a categorical matter, constitute Brady material. Under the circumstances of this case, we are not persuaded by the government’s argument, though we need not definitively opine on the matter. Suffice it to say that the weaknesses of the government’s argument in this case do not legally preclude us from assuming that Defendants-Appellants could make a Brady argument based on the suppression of evidence pertinent to an R.S. 2477. defense. First of all, it is not self-evident at all that the procedures for establishing the R.S. 2477 issue in the QTA context (i.e„ a proceeding solely before a judge) would have any relevance in the criminal-prosecution context, much less be controlling, and the government cites no authority that meaningfully speaks to this issue. And, second, the government likewise offers no legal authority to support its underlying premise—viz., that á Brady claim cannot be based on a piece of evidence that could only affect a question to be decided by the court rather than the jury—and we have not unearthed any. For example, can it truly be said that such evidence can never, as a categorical matter, engender "a reasdnable probability that the result of the proceeding would have been different”? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of the government's scant presentation here, we may assume that Defendants-Appellants could make á Brady argument based on the suppression of evidence pertinent to an R.S. 2477 defense in a criminal prosecution. . A copy of the map and an enlarged image of the relevant area can be found in a supplement infra. . Mr. Wells seeks to invoke such comparisons here in arguing that the district court’s restitution order effected a disparate result when compared to the restitution ordered in other criminal,proceedings for similarly situated defendants. Aplt. Wells’s Opening Br. at 64. However, this sort of argument is inappo-site in the MVRA context, where restitution is mandatory, Compare 18 U.S.C. § 3663A(a)(l) ("[W]hen sentencing a defendant convicted of an offense described in subsection, (c), the court shall order (emphasis added)), with 18 U.S.C. § 3553(a)(6) (stating, as to elements of the discretionary criminal sentence, that the court “shall consider .... the need to avoid unwarranted sentence disparities among defendants with similar records 'who have been found guilty of similar-conduct’’), and United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008) ("[I]t has been well settled that we review a district court's sentencing decisions solely for abuse of discretion,”).

United States v. Wells

HARTZ, Circuit Judge, concurring: I join the opinion except for the discussion in § 11(D)(2) suggesting the possibility that a defendant charged with what amounts to criminal trespass cannot challenge the legality of a BLM closure order. Cf. United States v. Gemmill, 535 F.2d 1145, 1150-52 (9th Cir. 1976) (reversing trespass conviction on ground that forest supervisor lacked authority to issue closure order).

Te-Moak Tribe of Western Shoshone v. United States Department of Interior

OPINION PAEZ, Circuit Judge: Te-Moak Tribe of Western Shoshone of Nevada, a federally-recognized Indian tribe (“the Tribe”), the Western Shoshone Defense Project (“WSDP”), and Great Basin Mine Watch (“GBMW”) (collectively, “Plaintiffs”) appeal the district court’s denial of their motion for summary judgment, and the grant of summary judgment to the Department of the Interior (“DOI”), the Bureau of Land Management (“BLM”), several officers of the BLM, and intervenor Cortez Gold Mines, Inc. (“Cortez”) (collectively, “Defendants”). Plaintiffs contend that the BLM’s approval of Cortez’s amendment to a plan of operations for an existing mineral exploration project in Nevada violated the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), and the Federal Land Policy and Management Act (“FLPMA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court with respect to Plaintiffs’ NHPA and FLPMA claims, and we reverse and remand for further proceedings with respect to one of their NEPA claims. I. Factual and Procedural Background This appeal involves Cortez’s proposal to amend the plan of operations for an existing mineral exploration project, the Horse Canyon/Cortez Unified Exploration Project (“the HC/ CUEP”), located in Lander and Eureka Counties in northeastern Nevada. The BLM approved the original plan of operations for the HC/CUEP in 2001. Pursuant to the 2001 plan of operations, Cortez conducted exploration activities in a 30,548-acre area designated for the project (“project area”). The HC/CUEP, in its original and amended plans, is a phased exploration project. Phase I includes 150 drill sites, as close as 200 feet apart, to determine what minerals are in the target areas. Depending on what Cortez discovers, it may move into Phase II of the HC/CUEP, in which there are about 125 drill sites, with three or more drill rigs working in close proximity to one another. Finally, if Cortez chooses to continue exploring, it may move into Phase III, in which Cortez can use approximately 100 drill holes within the Phase II drill sites’ footprints. Under the original HC/CUEP plan of operations, Cortez was permitted to disturb a total of 50 acres of land within the entire project area over the course of all three phases of the project. In July 2003, Cortez proposed an amendment to the HC/ CUEP plan of operations (“the Amendment”) that would permit Cortez to disturb a total of 250 acres throughout the project area — five times the amount approved by the BLM for the original project. Under the Amendment, Cortez’s exploration would proceed according to the same phased operations as outlined in the original HC/CUEP plan of operations, and Cortez could not disturb more than 50 acres at any given time. Cortez estimated that the HC/CUEP as amended would last five years. Cortez’s exploration activities under the HC/CUEP represent only a small part of a long history of exploration and mining activities in this area of Nevada. Active mining operations have existed since the 1860s, and the mining industry continues to explore the area for further mineral deposits. In addition to the HC/CUEP, Cortez currently operates a number of mines in the area, and Cortez has plans to develop in the near future two mineral deposits as the Pediment/Cortez Hills Mine Project (“the Pediment/Cortez Hills project”). After Cortez proposed the Amendment in July 2008, the BLM prepared an Environmental Assessment (“EA”) pursuant to NEPA, assessing the environmental and cultural resources of the project area and the potential impacts on the environment. The EA “tiered” to, and thus incorporated, previous environmental impact statements and environmental assessments, including those for the original HC/CUEP and for the South Pipeline Project, another mining project located near the project area. Although miners have been mining this area for generations, Native Americans have been there much longer. According to their oral history, Te-Moak and other Western Shoshone tribes have inhabited this area since time immemorial, and their religion and culture is inextricably linked to the landscape of the area. The project area is located on their ancestral lands. Mount Tenabo, located within the project area, is considered a traditional locus of power and source of life for the Western Shoshone, and figures in creation stories and world renewal. The top of Mount Tenabo is used by the Western Shoshone for prayer and meditation and although mining activities have impeded this practice, the association of the top of the mountain to Western Shoshone beliefs, customs, and practices remains. The project area also contains many pinyon pine trees, a source of pine nuts that were once a key component of the Western Shoshone diet and remain a focal point of Western Shoshone culture and ceremony. Although mining has impeded the collection of pine nuts, remnant stands of pinyon pine continue to be used as traditional family gathering areas by contemporary Western Shoshone. Finally, because of the Tribe’s burial traditions, the ancestors of the Western Shoshone are likely buried throughout the project area. As a result of the Western Shoshone’s undisputed connection to the land, the BLM has consulted with the Tribe, as required by NEPA and the NHPA, about sites of cultural and religious significance in areas slated for exploration and mining, including areas covered by the HC/CUEP, its predecessor project (the Horse Canyon Exploration Project), and the Pediment Project. This consultation led the BLM to designate two sites within the project area as “properties of cultural and religious importance” or “PCRIs” that are eligible for inclusion on the National Register of Historic Places: (1) Horse Canyon and (2) the top of Mount Tenabo and the “White Cliffs” of Mount Tenabo. The BLM sent a letter to the Tribe about the Amendment one year after the BLM received Cortez’s proposal in July 2003. The BLM noted that there was already extensive documentation of traditional, cultural, and spiritual use sites within or near the project area, but asked the Tribe for help in identifying any additional concerns and in developing any alternatives or methods that might eliminate or reduce potential adverse impacts. The Tribe did not respond to this letter. About one month after soliciting the Tribe’s input, the BLM submitted the draft EA for public comment on September 1, 2004, and sent the Tribe a copy to review. Although the BLM attempted to contact the Tribe by telephone in the middle of September to ascertain whether the Tribe would be commenting on the EA, the Tribe did not respond to those calls. WSDP and GBMW, however, did contact the BLM in early October regarding the proposed action and requested information on the BLM’s consultation with the Western Shoshone and the location of drill holes, access roads, and other details of the project. The BLM responded on October 20, 2004, but did not provide the organizations with the requested project details. The BLM could not provide the organizations with the precise locations of the project’s exploration activities because they were not specified in the proposed Amendment’s plan of operations. Instead, the BLM conditionally approved the Amendment, requiring Cortez to provide detailed maps prior to surface-disturbing activities and to follow specific avoidance measures to protect cultural resources. The BLM issued a Decision Record (“DR”) and Finding of No Significant Impact (“FONSI”) (together a “DR/FONSI”) on October 22, 2004. Plaintiffs petitioned the State Director of the BLM for review of the BLM’s DR/FONSI on November 24, 2004. After granting Plaintiffs’ request for review, the State Director met with the Te-Moak Tribal Chairman, Te-Moak’s counsel, and other representatives from the Tribe, WSDP, and GBMW, and also considered arguments from Cortez. After completing his review, the State Director affirmed a modified version of the DR/FONSI that imposed additional mitigation measures. One such modification was an exclusion zone protocol to protect PCRIs eligible for inclusion on the National Register of Historic Places. Dissatisfied with the State Director’s modified DR/FONSI, Plaintiffs sought judicial review of the BLM’s action in May 2005 by filing suit against the DOI, the BLM, and several BLM officers under the Administrative Procedure Act (APA). See 5 U.S.C. § 551 et seq. The district court subsequently granted Cortez’s motion to intervene. Ultimately, the parties filed cross-motions for summary judgment. Concluding that the BLM had complied with NEPA, the NHPA, and the FLPMA, the district court granted Defendants’ motion for summary judgment and denied Plaintiffs’ motion for summary judgment. Plaintiffs timely appealed. II. Discussion Plaintiffs argue that the BLM’s approval of the Amendment violated NEPA, the NHPA, and the FLPMA. We review de novo a district court’s grant and denial of summary judgment. Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Pursuant to the APA, our task is to determine whether the agency’s final action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A); see also Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir.2008). Here, we review the modified DR/FONSI issued by the BLM State Director, which is the final agency action. See 43 C.F.R. § 3809.809(b). The arbitrary and capricious standard “requires us to ensure that an agency has taken the requisite hard look at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992) (internal quotation marks and citations omitted). A. National Environmental Policy Act We first consider Plaintiffs’ argument that the BLM’s approval of the Amendment violated NEPA. NEPA imposes a procedural requirement “(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decisions; and (2) to guarantee that this information will be available to a larger audience.” Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996). The NEPA procedures used by agencies “must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b). “The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c). Pursuant to these goals, NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(C). An agency may first prepare an EA, however, to determine whether it must prepare an EIS or may issue a FONSI. 40 C.F.R. § 1508.9(a)(1). If the agency issues a FONSI, then it may proceed with the proposed action. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004). Here, the BLM prepared an EA, concluded on the basis of the EA’s findings that the Amendment would not significantly affect the environment, and issued a DR/FONSI. As noted above, after Plaintiffs objected, the BLM State Director affirmed the DR/FONSI with modifications that imposed an exclusion zone protocol, in addition to the avoidance measures imposed in the original DR/FONSI, to protect PCRIs eligible for listing on the National Register. Plaintiffs challenge the BLM’s modified DR/FONSI on the grounds that (1) the BLM failed to take a “hard look” at the Amendment’s cultural and environmental impacts because it approved all three phases of the Amendment without obtaining sufficient information about each particular phase of exploration activities; (2) the BLM did not conduct sufficient analysis of reasonable alternatives; and (3) the BLM did not conduct sufficient analysis of cumulative impacts. We consider these arguments in turn. 1. Failure to Take a “Hard Look” at Cultural and Environmental Impacts Plaintiffs argue that the BLM failed to take a “hard look” at the Amendment’s effects — specifically, effects on Western Shoshone cultural resources — because it approved all three phases of the Amendment without knowing the precise locations of the project’s activities, such as drill sites, access roads, and support facilities. Plaintiffs contend that, without these details, the BLM neither conducted a “hard look” analysis of the project, nor adequately informed the public of the potential impacts of the project, as NEPA requires. The BLM and Cortez argue that, in light of the exploratory nature of the project, the BLM’s analysis and decision comply with NEPA. They argue that the BLM sufficiently analyzed the potential impact that the project could have and imposed avoidance and mitigation measures that account for any unpredictable impacts on cultural resources. Although we have not previously reviewed the BLM’s approval of a phased exploration project, the Interior Board of Land Appeals (“IBLA”) reviewed a similar NEPA challenge to a phased exploration project in Great Basin Mine Watch, 159 IBLA 324 (2003). Similar to the situation here, in Great Basin Mine Watch, a mining company submitted to the BLM a proposal to expand an earlier exploration project. The proposed expansion would disturb an additional 95.55 acres of land for a total of 100 acres, within a 3,336-acre project area. Id. at 327, 331. The BLM analyzed the proposed amendment without specific details regarding the location of the Phase II and III operations. Id. at 327. The IBLA determined that the BLM’s failure to include details for phases other than the first phase of the project did not violate NEPA, because “BLM compensate[d] for the omission of precise sites for future activities by analyzing the impacts of approximately 95.55 acres of additional surface disturbance anywhere within the project area and imposing resource-specific stipulations and mitigation measures for all activities throughout the entire project area.” Id. at 354. We agree with the IBLA that the BLM, in some cases, may adapt its assessment of environmental impacts when the specific locations of an exploration project’s activities cannot reasonably be ascertained until some time after the project is approved. NEPA’s ultimate focus is on the assessment of environmental impacts and a project’s details are usually a means to that end. An exploration project, however, inherently involves uncertainties; if mining companies knew the precise location of mineral deposits before drilling, exploration would not be required. In approving mineral exploration projects, the BLM must balance these uncertainties with its duty under NEPA to analyze possible environmental impacts. The IB LA’s approach in G'reat Basin Mine Watch strikes an appropriate balance by holding that the BLM may approve an exploration project without knowing the exact locations of drill sites and other project activities. In order to do so, the BLM must analyze the impact of drilling activities in all parts of the project area and impose effective avoidance and mitigation measures to account for unknown impacts. We recognize that in Great Basin Mine Watch, unlike here, the mining company provided the BLM with access road and drill site locations for Phase I. See 159 IBLA at 347. We do not believe, however, that this deficiency renders the BLM’s approval of the Amendment unreasonable. Phase I exploration activities, like those for Phases II and III, are uncertain by design because Cortez must adjust the location of drilling throughout the course of Phase I. Here, as in Great Basin Mine Watch, the BLM was provided with dimensions of drill sites and access roads, the methods used to construct them, and the total surface disturbance area that would result from the Amendment. With this information, the BLM assessed the potential impacts from all three phases that might occur throughout the project area. Additionally, as in Great Basin Mine Watch, the BLM imposed effective avoidanee and mitigation measures to protect Western Shoshone cultural resources from impacts resulting from all three phases, of the Amendment. In the modified DR/FONSI, the BLM State director outlined these measures, which prevent Cortez from disturbing land in exclusion zones around PCRIs that are eligible for inclusion on the National Register unless later authorized to do so by the BLM. Accordingly, before beginning exploration activities, Cortez must submit 1:24,000 scale maps of the areas to be disturbed. Cortez may start exploration activities only if past surveys show that no cultural resources are in the area. If the BLM determines that a Class III cultural resources survey is needed, an archaeologist and a Native American observer will survey the land and make recommendations. If Cortez finds previously undiscovered cultural resources while conducting exploration activities, it must cease activities within 100 meters of the discovery until the BLM determines whether or not the site is eligible for the National Register and should thus be protected by an exclusion zone. The BLM will delineate exclusion zones to surround any newly discovered sites that might be eligible for inclusion on the National Register. These measures compensate for Cortez’s inability to identify the locations of drill sites and related activities for Phases I through III before beginning exploration activities, provide for phased assessment of areas not yet surveyed for cultural resources at a Class III level, and permit the BLM to protect cultural resources when so required by law. We therefore conclude that the BLM did not violate NEPA by approving the Amendment without knowing the precise locations of drill sites, access roads, and other project activities for Phases I through III. 2. Failure to Consider Reasonable Alternatives Plaintiffs also argue that the BLM violated NEPA because the agency’s discussion of reasonable alternatives in the Amendment’s . EA is inadequate. “The purpose of NEPA is to require disclosure of relevant environmental considerations that were given a ‘hard look’ by the agency, and thereby to permit informed public comment on proposed action and any choices or alternatives that might be pursued with less environmental harm.” Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir.2005); see 42 U.S.C. § 4332(E) (requiring agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources”). Agencies are re quired to consider alternatives in both EISs and EAs and must give full and meaningful consideration to all reasonable alternatives. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th Cir.2005); see also 40 C.F.R. § 1508.9(b). “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992) (quoting Citizens for a Better Henderson v. Hodel, 768 F.2d 1051,1057 (9th Cir.1985)). Plaintiffs first argue that the BLM should have considered the alternative of approving only Phase I of the Amendment, rather than approving all three phases of the project, or that the BLM should have considered an alternative “where the operator would be required to at least set forth up-front its Phase I plans.” As discussed earlier, given the uncertainty of the exploration activities, the BLM imposed mitigation measures designed to adequately protect cultural resources in all phases of the Amendment. “NEPA does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences.” Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir.1990) (citing N. Plains Res. Council v. Lujan, 874 F.2d 661, 666 (9th Cir.1989)). Because of the mitigation measures, the environmental consequences of approving only the first phase of the project versus all three phases are substantially similar; therefore, the BLM was not required to address this alternative in the EA. Plaintiffs next argue that the BLM violated NEPA by failing to seriously analyze any alternative except Cortez’s chosen project. Specifically, Plaintiffs argue that the BLM’s analysis of the No Action Alternative was insufficient because it consisted of only one paragraph. Plaintiffs’ argument is not persuasive. Although brief, the BLM’s discussion was sufficient because the No Action Alternative maintains the status quo, i.e. the original HC/CUEP plan of operations. The Amendment’s EA tiered to the EA for the original HC/CUEP, in which the direct impacts of the exploration activities were analyzed. See N. Idaho Cmty. Action Network v. U.S. DOT, 545 F.3d 1147, 1153 (9th Cir.2008) (“[A]n agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS.... [W]ith an EA, an agency only is required to include a brief discussion of reasonable alternatives.” (citations and internal quotation marks omitted)). 3. Failure to Assess Cumulative Impacts Plaintiffs finally contend that the BLM’s cumulative impact analysis in the Amendment’s EA was insufficient. “NEPA requires that where ‘several actions have a cumulative ... environmental effect, this consequence must be considered in an EIS.’ ” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1378 (9th Cir.1998) (quoting City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.1990)); see 40 C.F.R. § 1508.25(c)(3). We also require that an EA fully address cumulative environmental effects or “cumulative impacts.” See, e.g., Kern v. BLM, 284 F.3d 1062, 1076 (9th Cir.2002) (“Given that so many more EAs are prepared than EISs, adequate consideration of cumulative effects requires that EAs address them fully. ” (quoting Council on Environmental Quality, Considering Cumulative Effects Under the National Environmental Policy Act 4 (Jan.1997), also available at http://ceq.hss. doe.gov/nepa/ccenepa/ ceenepa.htm (last visited June 11, 2010) (emphasis added))). “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. Here, the BLM designated an area in which it needed to analyze the Amendment’s cumulative impacts (“the cumulative effects area”). The Pediment/Cortez Hills project is a proposed mining operation located within the cumulative effects area. The BLM acknowledged in the Amendment’s EA that the Pediment/Cortez Hills project was a “reasonably foreseeable activity.” The BLM’s knowledge of the Pediment/Cortez Hills project in 2004 can also be reasonably inferred by its December 2005 publication of a “Notice of Intent to Prepare an Environmental Impact Statement to Analyze the Proposed Amendment to the Pipeline/South Pipeline Plan of Operations (NVN-067575) for the Cortez Hills Expansion Project.” 70 Fed. Reg. 72,308 (Dec. 2, 2005). Therefore, the BLM was required to analyze the cumulative impacts of the Amendment and the Pediment/Cortez Hills project. See 40 C.F.R. § 1508.7. In a cumulative impact analysis, an agency must take a “hard look” at all actions. An EA’s analysis of cumulative impacts “must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” Lands Council, 395 F.3d at 1028. “General statements about ‘possible effects’ and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Neighbors of Cuddy Mountain, 137 F.3d at 1380. “[S]ome quantified or detailed information is required. Without such information, neither the courts nor the public ... can be assured that the [agency] provided the hard look that it is required to provide.” Id. at 1379. Here, the Amendment’s EA included a cumulative impacts section that purported to review past, present, and reasonably foreseeable activities in the cumulative effects area, by examining specific resources that may be affected. The EA, however, failed to include the required “quantified or detailed information.” See id. A comparison of the Amendment’s EA with the EAs in Klamath-Siskiyou clearly demonstrates that the BLM’s analysis of cumulative impacts in the cumulative effects area did not adequately address the reasonably foreseeable mining activities of the Pediment/Cortez Hills project. See 387 F.3d at 997. A review of the BLM’s analysis of the Amendment’s cumulative impact on two of these resource sections — Cultural Resources and Native American Religious Concerns — -is instructive. We note that the bulk of the EA’s discussion in these two sections focuses on the effects of the Amendment itself, rather than the combined impacts resulting from the activities of the Amendment with other projects. Although part of the BLM’s analysis discusses “[t]he effects of the activities to be conducted under the [proposed Amendment] within the cumulative effects study area,” only two of the seven paragraphs in these two sections refer to cumulative effects. The majority of the discussion focuses on how effects of the Amendment’s additional exploration activities will be avoided or mitigated. The EA’s discussion of the Amendment’s direct effects in lieu of a discussion of cumulative impacts is inadequate. See id. at 994 (holding that an EA’s cumulative impact analysis was inadequate when, among other deficiencies, “[a] considerable portion of each section discusses only the direct effects of the project at issue on its own minor watershed”). Moreover, although the EA refers to cumulative effects in two paragraphs in the Cultural Resources and Native American Religious Concerns sections, the EA does not, in fact, discuss the existence of any cumulative impacts on these resources. Instead, it concludes that “[n]o incremental cumulative effects would occur to cultural resources as a result of the proposed project.” To reach this conclusion, the EA reasons that all of the impacts from the expanded exploration activities will be avoided or mitigated and that all “[ejxisting, proposed, and reasonably foreseeable activities would avoid or mitigate all known and discovered resources.” This type of conclusory “analysis” can be found throughout the cumulative impacts section. For example, the Amendment’s EA devotes a scant three sentences to the cumulative impacts to Water Resources, stating only that “[ijmpacts to water resources ... may include increased sedimentation and potential for erosion.” This, despite the discussion earlier in the EA that the Amendment “could potentially result in direct impacts to groundwater resources where groundwater is encountered in the drill holes,” and the BLM’s prediction of significant impacts from dewatering as a result of the Pediment/Cortez Hills project and other Cortez projects previously approved within the cumulative effects area. The EA’s vague discussion of cumulative impacts can be found in virtually every subpart of the section. In Klamath-Siskiyou, we rejected as inadequate EAs that listed different environmental concerns (e.g. air quality, water quality, etc.) with checkboxes marked “No,” indicating that the environmental factor in question would not suffer any cumulative effects. 387 F.3d at 995. A number of these factors, however, were annotated to note that they would or could be impacted by the project, but that “[i]mpacts are being avoided by project design.” Id. We held that this was insufficient because “[t]he EA[s][are] silent as to the degree that each factor will be impacted and how the project design will reduce or eliminate the identified impacts.” Id. We acknowledge that the EA here, unlike the EAs in Klamath-Siskiyou, does describe some of the ways in which the Amendment’s impacts will be mitigated. The Amendment’s EA contains a description of some mitigation measures, and the BLM State Director imposed additional measures in his April 2005 decision. The EA, however, fails to explain how Cortez will mitigate or avoid impacts to the different resources resulting from the other existing, proposed, or reasonably foreseeable projects, including the Pediment/Cortez Hills project. Further, as in KlamatN-Siskiyou, the EA fails to explain the nature of unmitigated impacts of the Amendment’s expanded exploration activities with other existing, proposed, and reasonably foreseeable activities. Despite the above deficiencies, Cortez argues that there was no need for a cumulative impact analysis because there are no cumulative impacts to analyze. Cortez suggests that it is not enough to show that potential cumulative impacts were not analyzed; rather, Plaintiffs must prove that cumulative impacts will actually occur. Cortez thus adopts the district court’s reasoning, which concluded that the cumulative impacts analysis of the Amendment’s EA was sufficient because Plaintiffs “failed to identify how [the Pediment/ Cortez Hills project] will have a cumulative impact when combined with the HC/CUEP Amendment Project.” Although we have not yet precisely articulated the burden that a plaintiff must bear to demonstrate that an agency should have analyzed the cumulative impacts of a proposed project along with other projects, our case law suggests that the burden is not an onerous one. In City of Carmel-By-The-Sea v. United States Department of Transportation, 128 F.3d 1142 (9th Cir.1997), we observed that the plaintiffs met their burden in raising a cumulative impacts claim under NEPA, despite failing to specify a particular project that would cumulatively impact the environment along with the proposed project. Id. at 1161. We declined to impose a greater burden, noting that “the [Defendants] failed first; they did not properly describe other area projects or detail the cumulative impacts of these projects.” Id. Moreover, in Klamath-Siskiyou, we noted that when “the potential for ... serious cumulative impacts is apparent,” the BLM needed to provide more details of its cumulative impact analysis in an EA before concluding that there were no significant cumulative effects. 387 F.3d at 996. Applying City of Carmel and Klamath-Siskiyou here, we conclude that in order for Plaintiffs to demonstrate that the BLM failed to conduct a sufficient cumulative impact analysis, they need not show what cumulative impacts would occur. To hold otherwise would require the public, rather than the agency, to ascertain the cumulative effects of a proposed action. See id. Such a requirement would thwart one of the “twin aims” of NEPA — to “ensure! ] that the agency will inform the public that it has indeed considered environmental. concerns in its decisionmaking process.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (emphasis added). Instead, we conclude that Plaintiffs must show only the potential for cumulative impact. Here, Plaintiffs more than carry their burden by demonstrating that both the Amendment and the Pediment/Cortez Hills project will directly impact the same resources within the cumulative effects area, and thus have the potential for cumulative impacts. Although not necessary, Plaintiffs bolster their claim of cumulative impacts to Cultural Resources and Native American Religious Concerns by submitting the ethnographic study prepared by the BLM for the original Pediment Deposit mining project. The study predicted that the mine could (1) impede the Western Shoshone’s visual and physical access to Mt. Tenabo; (2) decrease the supply of pinyon pine available for harvesting by the Western Shoshone; and (3) disturb Western Shoshone burial sites. These same concerns could be affected by the exploration activities conducted under the Amendment, potentially resulting in a total impact that is greater than that caused by either the Pediment/Cortez Hills project or the Amendment. See Klamath-Siskiyou, 387 F.3d at 994 (“Sometimes the total impact from a set of actions may be greater than the sum of the parts.... [T]he addition of a small amount here, a small amount there, and still more at another point could add up to something with a much greater impact....”). We conclude that BLM’s analysis of the cumulative impacts of the proposed Amendment and the Pediment/Cortez Hills project was insufficient, and therefore violated NEPA. NEPA requires the BLM to take a hard look at the cumulative impacts of the Amendment and other projects within the cumulative effects area; this it failed to do. We therefore hold that the district court erred in granting summary judgment for Defendants on this issue and remand to the district court with instructions to grant summary judgment for Plaintiffs and remand to the BLM for further proceedings. In light of our disposition of this issue, we need not address Plaintiffs’ argument that the Amendment and the Pediment/Cortez Hills project are “cumulative actions” under NEPA and should be considered in one comprehensive EIS. See Klamath-Siskiyou, 387 F.3d at 997, 1000 (observing that in light of an insufficient cumulative impact analysis, the court could not determine whether a single EA or EIS was needed); 40 C.F.R. § 1508.25(a)(2). In sum, although we conclude that in the EA, the BLM took a hard look at the direct impacts of the Amendment and that its discussion of reasonable alternatives was proper, we hold that the BLM violated NEPA’s mandate by failing to conduct a proper analysis of the cumulative impacts of the Amendment and the Pediment/Cortez Hills project on Western Shoshone cultural resources in the area. We therefore conclude that the BLM’s approval of the Amendment was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A). B. National Historic Preservation Act Plaintiffs also argue that the BLM’s approval of the Amendment violated section 106 of the NHPA. Section 106 requires the BLM to “take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register [of Historic Places].” 16 U.S.C. § 470f. Like NEPA, “[section 106 of NHPA is a ‘stop, look, and listen’ provision that requires each federal agency to consider the effects of its programs.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999); cf. United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir.1993) (“NHPA is similar to NEPA except that it requires consideration of historic sites, rather than the environment.”). The NHPA explicitly delegates authority to the Advisory Council on Historic Preservation “to promulgate such rules and regulations as it deems necessary to govern the implementation” of section 106. 16 U.S.C. § 470s. We have previously determined that federal agencies must comply with these regulations. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 787 (9th Cir.2006); Muckleshoot Indian Tribe, 177 F.3d at 805. The section 106 process requires an agency to make a reasonable and good faith effort to identify historic properties; determine whether identified properties are eligible for listing on the National Register ...; assess the effects of the undertaking on any eligible historic properties found; determine whether the effect will be adverse; and avoid or mitigate any adverse effects. The [agency] must confer with the State Historic Preservation Officer (“SHPO”) and seek the approval of the Advisory Council on Historic Preservation (“Council”). Muckleshoot Indian Tribe, 177 F.3d at 805 (citations omitted). In some cases, “[p]roperties of traditional religious and cultural importance to an Indian tribe ... may be determined to be eligible for inclusion on the National Register.” 16 U.S.C. § 470a(d)(6)(A). The BLM refers to such properties as “properties of cultural and religious importance” or “PCRIs.” The NHPA implementing regulations require the BLM, at all stages of the section 106 process, to consult with tribes that “attach[ ] religious and cultural significance to historic properties that may be affected by an undertaking.” 36 C.F.R. § 800.2(c)(2)(h). “The goal of consultation is to identify historic properties potentially affected by the undertaking....” Id. § 800.1. The BLM consulted with the Tribe in 2000 to determine if there were any PCRIs within the project area, in connection with Cortez’s original proposal to conduct HC/CUEP exploration activities. On July 27, 2001, the Tribe responded to the BLM’s inquiries by submitting a map outlining the boundaries of what it called “traditional cultural property.” On the basis of this submission, further consultations with the Tribe, and various ethnographic reports regarding the area, the BLM evaluated several sites to determine whether they were eligible for listing on the National Register. In April 2004, the BLM determined that two sites were eligible: (I) Horse Canyon and (2) the top of Mount Tenabo and the White Cliffs of Mount Tenabo (a combination of two of the evaluated PCRIs). Under section 106, the BLM was required to consider the Amendment’s effects on the two sites, identify any adverse effects, and avoid or mitigate any adverse effects. See 36 C.F.R. §§ 800.5, 800.6. The BLM, in the original DR/FONSI for the Amendment, concluded that because of the avoidance measures outlined in the EA, “there is no potential for impacts to cultural resources from surface disturbance exploration activities.” After Plaintiffs complained that the EA violated the NHPA, the BLM State Director reviewed the DR/FONSI and added the exclusion zone protocol. Plaintiffs continue to argue, as they did before the BLM State Director, that the BLM violated the NHPA because (1) the BLM failed to adequately consult with the Tribe and (2) the BLM State Director’s decision was incorrect and unsupported by the record. 1. Insufficient Consultation with the Tribe We first consider Plaintiffs’ argument that the BLM approved the Amendment without complying with its duty under the NHPA to consult with the Tribe. The NHPA implementing regulations require agencies to provide a tribe with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” 36 C.F.R. § 800.2(c)(2)(ii)(A). Further, “[cjonsultation [with Indian tribes] should commence early in the planning process, in order to identify and discuss relevant preservation issues,” id., and “must recognize the government-to-government relationship between the Federal Government and Indian tribes,” id. § 800.2(c)(2)(ii)(C). Plaintiffs argue that the BLM failed to initiate consultation with the Tribe in a timely fashion. Cortez proposed the Amendment to the BLM in July 2003. The BLM waited a full year to contact the Tribe, notifying the Tribe about the proposed Amendment in a July 28, 2004, letter after it had contacted all other “consulting parties.” The BLM sent this letter to the Tribe approximately one month before the BLM submitted the EA for the Amendment for public comment and three months before the BLM issued its first DR/FONSI. The BLM also left at least two phone messages with the Tribe in September. Although consultation about the Amendment between the BLM State Director and the Tribe eventually took place, the consultation occurred after the BLM issued its DR/FONSI. The BLM and Cortez argue that, in light of the BLM’s previous consultation with the Tribe for the original HC/CUEP and other projects in the area, the BLM provided the Tribe with a sufficient “opportunity to identify its concerns about historic properties” as provided by 36 C.F.R. § 800.2(e)(2)(ii)(A). We agree. Notably, this case has a somewhat unique historic background, because the BLM began consulting with the Tribe while working on the original HC/ CUEP and other projects. Indeed, as a result of one of the ethnographic studies that was a part of this earlier process, Mount Tenabo/White Cliffs and Horse Canyon were designated as National Register eligible PCRIs. We also note that the Amendment did not propose to enlarge the project area in which exploration would take place; rather, it increased the amount of land that could be disturbed within the project area. Plaintiffs acknowledge these past efforts by explicitly stating that they do not challenge the BLM’s previous efforts to identify historical, cultural, or religious sites within the project area. As emphasized by Plaintiffs, “[t]he issue is whether BLM properly conducted government-to-government consultation on this Project....” Here, Plaintiffs do not identify any new information that the Tribe would have brought to the attention of the BLM had it been consulted earlier in the approval process for the Amendment. Significantly, they concede that the BLM’s research and investigation of culturally important sites was adequate for the original HC/CUEP EA. They thus fail to show or even argue that early consultation would have prevented any adverse effect on any yet-to-be identified National Register eligible PCRI. Additionally, Plaintiffs do not identify any new information regarding how the additional exploration would adversely affect the identified PCRIs, again failing to demonstrate how early consultation with the Tribe might have affected the BLM’s determination. Moreover, the fundamental purpose of the NHPA is to ensure the preservation of historical resources. See 16 U.S.C. § 470a(d)(l)(A) (requiring the Secretary to “promulgate regulations to assist Indian tribes in preserving their particular historic properties” and “to encourage coordination ... in historic preservation planning and in the identification, evaluation, protection, and interpretation of historic properties”); see also Nat’l Indian Youth Council v. Watt, 664 F.2d 220, 226 (10th Cir.1981) (“The purpose of the National Historic Preservation Act (NHPA), is the preservation of historic resources.”). Early consultation with tribes is encouraged by the regulations “to ensure that all types of historic properties and all public interests in such properties are given due consideration----” 16 U.S.C. § 470a(d)(1)(A); cf. Pit River Tribe, 469 F.3d at 785-86 (holding that dilatory environmental review is insufficient to comply with NEPA because “inflexibility may occur if delay in preparing an EIS is allowed: After major investment of both time and money, it is likely that more environmental harm will be tolerated.” (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir.1988) (internal quotation marks and citations omitted))). While the Plaintiffs are correct that the NHPA’s implementing regulations “recognize the government-to-government relationship between the Federal Government and Indian tribes,” they do so to ensure that consultation “be conducted in a manner sensitive to the concerns and needs of the Indian tribe.... ” 36 C.F.R. § 800.2(c)(2)(ii)(C). In sum and as reflected in the record, the BLM has consulted with the Tribe regarding PCRIs within the project area for many years. In addition, the Tribe has made no showing that it would have provided new information had it been consulted again earlier in the Amendment’s approval process. We therefore conclude that the BLM did not violate its obligation to consult with the Tribe and thus did not violate the NHPA. 36 C.F.R. § 800.1; see also Muckleshoot Indian Tribe, 177 F.3d at 806-07; Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 582 (9th Cir.1998); cf. Pit River Tribe, 469 F.3d at 785-86. 2. Incorrect or Unsupported “No Effect” Determination Next, Plaintiffs argue that, even if the Tribe was properly consulted, the BLM’s “no effect” determination under the NHPA was improper. We are not convinced. First, we do not agree that approval of a phased project in its entirety always results in a violation of the NHPA. As noted above, the NHPA, like NEPA, is a procedural statute requiring government agencies to “stop, look, and listen” before proceeding with agency action. For the same reasons that we concluded in the NEPA context that a phased exploration project in some circumstances can be fully approved without all the details of the separate phases of exploration, we reach the same conclusion in the NHPA context. See, e.g., Great Basin Mine Watch, 159 IBLA at 356 (holding that the BLM did not violate the NHPA when it approved all phases of a project without knowing exact locations of access roads and drill sites, because it had surveyed the entire project area for cultural properties, identified sites eligible for listing in the National Register, and imposed conditions “to ensure avoidance of impacts to those eligible sites”). Second, Plaintiffs’ argument that the exclusion zone procedures do not offer adequate protection to cultural resources under the NHPA is without merit. According to Plaintiffs, the National Register eligible PCRIs in the project area are of a “landscape-scale” and therefore are not susceptible to protection by “zones.” Plaintiffs are correct that the PCRIs designated by the BLM as eligible for the National Register encompass large areas of land. The NHPA, however, does not mandate protection of all parts of an eligible PCRI. Section 106 requires a federal agency “[to] take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f; see also 36 C.F.R. § 800.6(b). The NHPA regulations, however, define an “effect” as an “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.” 36 C.F.R. § 800.16; see also id. § 800.5(a)(1) (defining an “adverse effect” as the direct or indirect alteration of “any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association”). Here, the eligible PCRIs’ characteristics described in the BLM’s April 2004 report are discrete features such as the top of Mt. Tenabo, the “white quartz ledge on the south face of Mt. Tenabo” called the White Cliffs, a network of caves within the mountain, and burial locations. Characteristics that made Horse Canyon eligible included the specific resources available there: perennial surface water and unique medicinal and edible plants. Although it is understandable that the Tribe values the landscape of the project area as a whole, the NHPA requires that the BLM protect only against adverse effects on the features of these areas that make them eligible for the National Register. Plaintiffs have not demonstrated that the exclusion zones will fail to prevent any adverse effects to these features. Because we conclude that the BLM’s approval of all phases of the Amendment does not constitute a violation of the NHPA, and that the exclusion zone protocol sufficiently protects the features that make the designated PCRIs National Register eligible, we hold that the BLM’s “no effect” determination under the NHPA was proper. C. Federal Land Policy and Management Act Last, we address Plaintiffs’ argument that the BLM’s approval of the Amendment violated the FLPMA. The FLPMA requires that the BLM “by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). The BLM has promulgated “surface management” regulations to implement this statutory mandate. See, e.g., 43 C.F.R. § 3809 (partially codifying Mining Claims Under the General Mining Laws; Surface Management, 65 Fed.Reg. 69,998-70,132 (Nov. 21, 2000)). The surface management regulations require “[a]nyone intending to develop mineral resources on the public lands [to] prevent unnecessary or undue degradation of the land,” and they “establish[ ] procedures and standards to ensure that operators and mining claimants meet this responsibility....” 43 C.F.R. § 3809.1(a). By their terms, the regulations govern the proposals and activities of mining operators. See id. § 3809.1(b). Plaintiffs contend that Cortez did not comply with several regulations implementing the FLPMA. Specifically, Plaintiffs argue that Cortez failed to submit required information with its proposal for the Amendment as required by 43 C.F.R. § 3809.401. They also argue that the Amendment’s plan of operations fails to satisfy a number of performance standards set forth in 43 C.F.R. § 3809.420. Because Cortez allegedly failed to fulfill its obligations under these regulations, Plaintiffs argue that the BLM failed to prevent unnecessary or undue degradation of federal lands and therefore violated the FLPMA when it approved the Amendment. We disagree. I. Failure to Provide Plan of Operations Components Plaintiffs first argue that the BLM’s approval of the Amendment without obtaining information from Cortez as required in 43 C.F.R. § 3809.401(b) violated the FLPMA. Section 3809.401(b) requires that mining operators “describe the proposed operations at a level of detail sufficient for BLM to determine that the plan of operations prevents unnecessary or undue degradation.... ” 43 C.F.R. § 3809.401(b). The BLM “require[s] less information about smaller and simpler mining operations.” 65 Fed.Reg. at 70,004. In general, information specified under § 3809.401(b)(2) “is only required to the extent it is applicable to the operation.” 65 Fed.Reg. at 70,040-42; see also 43 C.F.R. §§ 3809.401(b)(2), 3809.401(b)(5). We quickly dispose of several of Plaintiffs’ challenges to alleged deficiencies in the Amendment’s plan of operations because they are simply not applicable to the Amendment. We reject Plaintiffs’ vague and unsupported contentions that (1) the plan of operations failed to contain a number of detailed plans and descriptions as set forth in 43 C.F.R. § 3809.401(b), and (2) the BLM failed to require an interim management plan under 43 C.F.R. § 3809.401(b)(5), or cross sections, preliminary or conceptual designs, and operating plans for approved projects under 43 C.F.R. § 3809.401(b)(2)(h). These regulations apply to mining operations, not exploration projects like the HC/CUEP. See 43 C.F.R. § 3809.401(b)(2)(h) (requiring information only “for mining areas, processing facilities, and waste rock and tailing disposal facilities”); 65 Fed.Reg. at 70,042 (explaining that the interim management plan regulation was added pursuant to Recommendation 5 of the National Research Council’s Hardrock Mining on Federal Lands 101 (1999), which addresses the need for interim plans for mine closure). With regard to the information that is required, we reject Plaintiffs’ arguments that the BLM approved the Amendment without the benefit of a complete description of the proposed operations, a general schedule of operations, and a monitoring plan. See 43 C.F.R. § 3809.401(b). These elements can be found in the Amendment’s proposal and EA. Because Plaintiffs cannot demonstrate that the Amendment did not “describe the proposed operations at a level of detail sufficient for BLM to determine that the plan of operations prevents unnecessary or undue degradation,” these arguments fail. 43 C.F.R. § 3809.401(b). We also reject Plaintiffs’ argument that the BLM’s approval of the Amendment was improper because it did not have “[m]aps of the project area at an appropriate scale showing the location of exploration activities, drill sites ... and access routes....” 43 C.F.R. § 3809.401(b)(2)(i). They argue that in so doing, the BLM failed to fulfill its obligation to prevent unnecessary and undue degradation under the FLPMA. The IBLA considered a similar argument in Great Basin Mine Watch and concluded that the BLM had not violated 43 C.F.R. § 3809.401(b)(2)(i) or the FLPMA when it approved a plan of operations for a similarly phased exploration project that did not “provide any significant details for the phases other than Phase I.” Great Basin Mine Watch, 159 IBLA at 345; see id. at 347-48. In the NEPA and NHPA contexts, we found Great Basin Mine Watch’s reasoning to be persuasive regarding the level of detail required for approval of phased exploration projects. We have no reason to resolve this issue any differently in the FLPMA context. We therefore conclude that the BLM’s approval of the Amendment without all of the details for the separate phases of exploration did not violate the FLPMA. 2. Failure to Meet Performance Standards Plaintiffs also argue that the BLM violated the FLPMA when it approved the Amendment’s plan of operations, despite its failure to meet two of the performance standards set forth in 43 C.F.R. § 3809.420. Although a plan of operations must comply with these performance standards, the BLM may “approve [a] plan of operations subject to changes or conditions that are necessary to meet the performance standards of § 3809.420 and to prevent unnecessary or undue degradation.” 43 C.F.R. § 3809.411(d)(2). Plaintiffs first contend that Cortez failed to specify access routes for the Amendment’s additional exploration activities in violation of 43 C.F.R. § 3809.420(b)(1). That regulation requires that, “[wjhere a notice or a plan of operations is required, it shall specify the location of access routes.... ” While Cortez did not specify access routes at the time of approval, the BLM set forth in the Amendment’s EA, the original DR/FONSI, and the modified DR/FONSI, that Cortez needed to “submit 1:24,000 maps showing the locations of the proposed drill pads and access roads” pri- or to any earthdisturbing activities. Plaintiffs also argue that, in approving the Amendment, the BLM failed to protect cultural resources pursuant to 43 C.F.R. § 3809.420(b)(8). The regulation mandates that: (i) Operators shall not knowingly disturb, alter, injure, or destroy any scientifically important paleontological remains or any historical or archaeological site, structure, building or object on Federal lands. (ii) Operators shall immediately bring to the attention of the authorized officer any cultural and/or paleontological resources that might be altered or destroyed on Federal lands by his/her operations, and shall leave such discovery intact until told to proceed by the authorized officer. The authorized officer shall evaluate the discoveries brought to his/her attention, take action to protect or remove the resource, and allow operations to proceed within 10 working days after notification to the authorized officer of such discovery. 43 C.F.R. § 3809.420(b)(8)(i)-(ii). As it did with the access routes in the Amendment’s EA and DR/FONSI, the BLM imposed conditions on the Amendment’s plan of operations that served to fulfill this performance standard. Under the EA and DR/FONSI, once Cortez has provided maps showing specific drill sites,- the BLM must take affirmative steps to evaluate cultural resources in the area and to protect those resources through avoidance measures. Further, the EA requires that Cortez, “within 24 hours, notify proper authorities and the BLM if subsurface cultural resources are discovered during construction, operation, or reclamation activities” and to “immediately cease earth-disturbing activities within 100 meters of the discovery, until the discovery can be examined by the proper authorities and/or a BLM-approved archaeologist.” Under the EA, Cortez can “only resume [earth-disturbing activities] once cleared by the BLM or other appropriate authority.” These procedures were later modified by the State Director to provide even further protection to any newly discovered historical, archaeological, or paleontological resources. Consequently, we conclude that the Amendment meets the performance standards in §§ 3809.420(b)(1) and 3809.420(b)(8) and affirm the district court’s award of summary judgment to the BLM and Cortez on Plaintiffs’ FLPMA claims. III. Conclusion Because the BLM approved the Amendment to the HC/ CUEP in violation of NEPA, we reverse the district court’s award of summary judgment to Defendants and remand to the district court so that it may enter summary judgment in favor of Plaintiffs on their NEPA claim and remand the matter to the BLM for further proceedings. On the NHPA and FLPMA claims, we affirm the district court’s grant of summary judgment to Defendants. AFFIRMED in part and REVERSED in part, and REMANDED for further proceedings consistent with this opinion. Each side shall bear its own costs on appeal. . The Western Shoshone National Counsel created WSDP "to protect and preserve Western Shoshone rights and homelands for present and future generations based upon cultural and spiritual traditions.” . GBMW describes itself as "a coalition of environmentalists, ranchers, and Native Americans dedicated to reforming the hardrock mining industry and the agencies that regulate them to protect the land, air, water and Native American resources of the Great Basin.” . We have jurisdiction to review both the grant of summary judgment to Defendants and the denial of summary judgment to Plaintiffs, because "[t]he grant of summary judgment [to the Defendants] is a final order .... ” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.2007) (citing Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 (9th Cir.1992)). . Although exploration activities under the HC/CUEP may eventually lead to a mining project, the BLM has yet to authorize actual mining in the project area. . The BLM approved the original HC/CUEP plan of operations as an amendment to the Horse Canyon Exploration Project. The HC/ CUEP added 16,430 acres to the Horse Canyon Exploration Project by joining it with the Cortez Gold Mine Expansion Project, for a total project area of 30,548 acres. . Cortez first discovered a mineral deposit on the western pediment of Mount Tenabo ("the Pediment Deposit”) in 1993, before the approval of the original HC/CUEP. Cortez originally submitted a proposed plan of operations for the development of the Pediment Deposit in January 2001. The Pediment Deposit is located within the original project area. As part of the approval process for mining the Pediment Deposit, the BLM commissioned cultural surveys and studies of the area. Before the BLM completed the approval process, Cortez discovered another deposit in Cortez Hills and sought approval from the BLM to mine the Pediment Deposit and the deposit in Cortez Hills as one project. . "Tiering refers to the coverage of general matters in broader environmental impact statements ... with subsequent narrower statements or environmental analyses ... incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.” 40 C.F.R. § 1508.28. . There is no reservation land in the project area. . As we discuss below, the plaintiffs in Great Basin Mine Watch also challenged a phased exploration project under the NHPA and the FLPMA. . The BLM uses different types of surveys to evaluate areas for the presence of cultural resources. A Class I survey is "a professionally prepared study that includes a compilation and analysis of all reasonably available cultural resource data and literature, and a management-focused, interpretative, narrative overview, and synthesis of the data.” BLM Manual, 8110 — Identifying and Evaluating Cultural Resources 8110.21A.1 (Rel.8-73, 12/03/04) available at http://www.blm. gov/pgdata/etc/ medialib/blm/wo/Planning_an d_Renewable_Resources/coop_agencies/cr_ publications.Par.44865.File.dat/Binder 2-2.pdf (last visited June 11, 2010). A Class II survey is a "probabilistic field survey” or "statistically based sample survey” that "aid[s] in characterizing the probable density, diversity, and distribution of cultural properties in an area....” Id. 8110.21B.1. A Class III survey is an "[¡Intensive” survey that involves "a professionally conducted, thorough pedestrian survey of an entire target area ... intended to locate and record all historic properties” and that “provides managers and cultural resource specialists with a complete record of cultural properties.” Id. 8110.21C.1, 8110.21C.3. . Plaintiffs also suggest that the BLM violated NEPA by considering only two actions— the proposed plan and (he No Action Alternative. There is no merit to this argument. In Native Ecosystems, we stated that "[t]o the extent that [Plaintiff] is complaining that having only two final alternatives — no action and a preferred alternative — violates [NEPA's] regulatory scheme, a plain reading of the regulations dooms that argument.” 428 F.3d at 1246. . The EA’s brief reference to the ''indirect cumulative effect [of] the removal of artifacts by non-Cortez individuals using an expanded road system to access previously inaccessible areas,” is more accurately described as a direct effect rather than a cumulative one, because it would result from the Amendment itself. Cf. 40 C.F.R. § 1508.7 (describing cumulative impacts as a combination of impacts of the present action with impacts of other actions). . Although the EA tiers to a number of EAs and EISs, including the original HC/CUEP's EA, these documents do not supplement the EA's incomplete analysis. Like the EA for the Amendment, the EA for the original HC/ CUEP did not discuss cumulative effects; rather, it referred to the direct effects of only the HC/CUEP within the cumulative effects area: "The effects of the activities to be conducted under the Proposed Action within the cumulative effects study area are expected to be minimal and relatively short-term due to the nature of the proposed exploration activities and the special environmental protection measures to be used in the study area....” Further, other EISs to which the Amendment's EA is tiered — the Pipeline/South Pipeline Pit Expansion EISs and the South Pipeline Project Final EIS — do not address impacts to Native American uses of the land. . Although the EA is vague about the activities that might impact Cultural Resources and Native American Religious Concerns, we do know that drill rigs will be used and that there will be surface disturbance in 50 acre plots, for a total of 250 acres. Because Mount Tenabo is located within the project area, these activities could, like the Pediment/Cortez Hills project, impede both physical and visual access to the mountain. Also like the Pediment/Cortez Hills project, surface disturbance from the Amendment could disturb Western Shoshone burial sites. Finally, in the discussion of forestry impacts, the EA predicts that "some [pinyon pine] trees may be removed for construction of access roads and drill sites.” The combined destruction of pinyon pine by both the Pediment/Cortez Hills project and the Amendment could, cumulatively, result in the decreased availability of pinyon pine nuts for harvesting. None of these possibilities is discussed in the EA's "Cultural Resources” or "Native American Religious Concerns” sections. . Because we conclude that the cumulative impact analysis was incomplete, we need not address Plaintiffs' argument that the BLM failed to discuss the cumulative impacts of the Amendment with the Cortez Underground Exploration Project and Cortez's geothermal lease project. Plaintiffs will have the opportunity to pursue these arguments before the agency when the BLM reexamines the cumulative impacts section. We also note that some of these arguments may be at issue in another case, South Fork Band Council of Western Shoshone of Nevada v. United States Department of the Interior, 588 F.3d 718 (9th Cir.2009). . The term "traditional cultural property” or "TCP,” is a term used by the National Park Service to refer to "properties of traditional religious and cultural importance” that may be eligible for listing on the National Register under 16 U.S.C. § 470a(d)(6)(A). See Patricia L. Parker & Thomas F. King, National Park Service, National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties 1 (1998), available at http://www.nps.gov/history/nr/publications/ bulletins/pdfs/nrb38.pdf (last visited June 11, 2010). The term "TCP” is analogous to "PCRI”; it describes land that Native American tribes have identified as having cultural or religious significance. . Five sites were evaluated: (1) Shoshone Camp; (2) the top of Mount Tenabo; (3) pinyon pine in the Pediment area; (4) the White Cliffs on the Pediment side of Mount Tenabo; and (5) Horse Canyon. . The BLM has determined that other sites on the pediment, such as pinyon camps and longer-term occupation areas, were National Register eligible as ethnohistoric/archaeological sites, rather than as PCRIs. . In arguing that the BLM violated the NHPA's consultation requirements, Plaintiffs argue that the BLM was not responsive to GBMW’s and WSDP's October 2004 requests for more information regarding the project. This argument fails because neither group is a federally recognized tribe to which the NHPA's consultation requirements extend nor do Plaintiffs point to evidence in the record showing that either party was acting as "representatives designated or identified by the tribal government.” See 36 C.F.R. § 800.2(c)(2)(ii)(C). . We note that Plaintiffs also complain that the DR/FONSI relies on a 2004 Programmatic Agreement that the BLM entered into with the Nevada SHPO, Cortez, and the Advisory Council on Historic Preservation, pursuant to 36 C.F.R. § 800.14(b), to guide the BLM's management of cultural resources in the project area. According to Plaintiffs, the 2004 agreement cannot substitute for consultation with the Tribe, because the Tribe is not a signatory to the document. As the State Director's decision notes, however, the BLM did not rely on the 2004 agreement, but rather on a 1992 Programmatic Agreement between the same parties. In light of this fact, we place no significance on the initial DR/FONSI's reference to the 2004 Programmatic Agreement. . We also dismiss Plaintiffs' argument that the BLM’s mitigation measures fail to require adequate consultation with the Tribe because the BLM alone will make certain determinations without input from the Tribe, such as the precise location of exclusion zones. Plaintiffs’ argument fails because the actions to which Plaintiffs refer are post-consultation and post-approval mitigation measures; section 106 does not mandate consultation at this post-approval stage of the project. . The IBLA's decision considered the BLM's compliance under the pre-2001 regulations, which contained slightly different wording and were organized into sections in a manner different than the current regulations. 159 IBLA at 345, n. 9. The differences, however, do not affect our analysis of the issues here. . The EA acknowledges that in some cases, proposed earth-disturbing activities may not be able to avoid sites eligible for the National Register. Section 3809.420(b)(8)(ii), however, does not appear to require an operator to avoid cultural resources at any cost: the operator "shall leave such discovery intact until told to proceed by the authorized officer.” Id. In their reply brief, Plaintiffs argue that 43 C.F.R. § 3809.420(b)(8) mandates the protection of a broader set of cultural resources than are protected by the NHPA. For this reason, Plaintiffs argue, the mitigation measures imposed by the BLM, which are directed only at protecting PCRIs eligible for inclusion on the National Register pursuant to the NHPA, do not protect other cultural resources and therefore do not fulfill the performance standard in § 3809.420(b)(8). Because Plaintiffs failed to pursue this line of argument in their opening brief, and because Plaintiffs fail to support this argument beyond its bare assertion, we deem the argument waived. See Entm’t Research Group v. Genesis Creative Group, 122 F.3d 1211, 1217 (9th Cir.1997).

United States v. Shivers

EDITH H. JONES, Circuit Judge: Billy Ray Shivers found buried treasure at the site of an abandoned lumber mill company town. Unfortunately for Shivers, the site is located in the Angelina National Forest, and the federal government claimed ownership of and seized from Shivers some 50-70 metal tokens he uncovered with a metal detector. The district court denied his Fed. Rule Crim.Proe. 41(e) motion seeking return of the tokens, as it concluded Shivers did not own them pursuant to either the Archeological Resources Protection Act (“ARPA”), 16 U.S.C. § 470ee, or the common law of finds. This court approves the district court’s conclusion and therefore affirms. BACKGROUND The tokens that Shivers excavated from the Aldridge Lumber Company mill site were used by the saw mill as payment for workers 50-100 years ago. The tokens and other items were seized pursuant to a search warrant from Shivers’s home when the government came to believe he had obtained them in violation of ARPA, which forbids the un-permitted excavation of archeological resources from federal lands. When the government chose not to pursue criminal charges against Shivers, it eventually gave back the rest of the seized property, but refused to return the tokens to him. The district court’s rebuff of Shivers’s Fed.R.Crim.Proc. 41(e) motion for return of seized property gives rise to this appeal. DISCUSSION A. Standard of Review As Shivers expressly concedes the factual findings of the district court, this court reviews the district court’s conclusions of law de novo. Palma v. Verex Assurance, Inc., 79 F.3d 1453, 1458 (5th Cir.1996). B. Ownership under the ARPA: 16 U.S.C. § mkk Shivers argues that the plain language of ARPA § 470kk vests him with ownership of the Aldridge tokens because he is a private collector of coins and other artifacts not defined by the ARPA as archaeological resources. ARPA was enacted by Congress to protect “archaeological resources” found on public lands and to promote study and evaluation of these resources. See 16 U.S.C. § 470aa(b). An “archaeological resource” is statutorily defined as any material remains of past human life or activities which are of archeological interest, as determined under uniform regulations promulgated pursuant to this chapter.... No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age. 16 U.S.C. § 470bb(l) (emphasis added). “Archaeological resources” so defined remain property of the United States if removed from public lands. See 16 U.S.C. § 470ec(b)(3); 36 C.F.R. § 296.6(b)(5); H.R.Rep.'No. 311, 96th Cong., 1st Session, 7, 1979 U.S.Code Cong. & Admin.News pp. 1709, 1710. Since the Aldridge tokens are between 50 and 100 years old, however, they are not “archaeological resources” for purposes of the ARPA. Shivers’s principal argument rests on a facile premise: because the tokens are not “archaeological resources,” § 470kk of the ARPA conveys an ownership interest to him as a private collector of coins. Section 470kk provides that [n]othing in this chapter applies to, or requires a permit for, the collection for private purposes of any rock, coin, bullet, or mineral which is not an archaeological resource, as determined under uniform regulations promulgated under section 470bb(l) of this title. 16 U.S.C. § 470kk(b). From this provision, Shivers infers that private individuals are authorized by ARPA to remove coins less than 100 years old from public land and to retain ownership. Shivers also suggests that the purpose and policy of the ARPA support his conclusion. By encouraging private collection of non-“archaeological resources”, the ARPA may actually help safeguard these resources, protecting them from further dislocation caused by either human or natural disturbances. To achieve such protection, Congress did not explicitly retain an ownership interest in non-“archaeological resources” found on public lands, though it did prevent private ownership of statutorily covered artifacts. Shivers urges that the asserted failure to retain ownership over non-“archaeologieal resources” evinces congressional intent to cede their ownership to private collectors. But the premise on which Shivers’s argument rests is a faulty one, belied by the very passage on which he relies. Section 470kk(b) provides that “[njothing in this chapter applies to ... the collection for private purposes of any rock, coin, bullet, or mineral which is not an archaeological resource....” (emphasis added). Because the ARPA does not apply to artifacts less than 100 years old, it does not regulate the private collection of such non-“archaeologieal resources”. This statute cannot vest Shivers with an ownership interest in the tokens because it neither divests ownership interest from the United States or, indeed, says anything at all about “archaeological resources” it does not cover. Even assuming arguendo that the ARPA regulates private collection of non-“archaeological resources,” however, Section 470kk(b) does not transfer to or vest ownership of the Aldridge tokens in Shivers. The statute merely provides that private collectors need not obtain a permit for the collection of certain artifacts. Shivers implies a transfer of property rights from this provision, arguing that since the statute allows for the private collection of non-“archaeological resources,” it necessarily entitles the collector to retain or own what he has collected. This conclusion, however, is neither supported by the text of the statute nor is it a necessary implication of the right to collect non-“archaeological resources.” Admittedly, the express statutory authorization to collect non-“archaeological resources” without a permit is much less valuable to a private collector if he may not retain what he collects; unless the collector enjoys collection for its own sake, ARPA furnishes little incentive to discover and gather non-“archaeological resources.” But it would not be absurd to conclude that Congress dispensed with the cumbersome process of requiring permits for gathering non-“archaeological resources,” even though it refused to transfer ownership of these less ancient artifacts. Further, the ARPA is concerned with protecting the integrity of archaeological sites, presumably even more so if they are located in national forests. See, e.g., 16 U.S.C. § 470cc(b)(1)-(b)(2) (requiring that those who apply for a permit to excavate archaeological resources be “qualified to carry out the permitted activity.”); 36 C.F.R. § 296.8(a)(1); 1979 U.S.C.CA.N. 1709, 1712 (recognizing the importance of protecting the unaltered integrity of archaeological sites). The record suggests that several hundred shovel holes found at the Aldridge site were attributed to Shivers’s excavation activities. Considering the resulting landscape alteration, Congress’s intent to regulate digging or excavating on public archaeological sites is easy to understand, while Shivers’s contrary position in favor of encouraging unregulated amateur collection is virtually incomprehensible. Finally, the “arrowhead exception” to the ARPA discussed by Shivers is inapposite and irrelevant. This exception is not intended to encourage removal of arrowheads from public lands, but rather to exempt such removal from the civil and criminal penalty provisions of the ARPA See 16 U.S.C. § 470ff(a)(3); 36 C.F.R. § 296.3(a)(3)(iii). Unlike the tokens excavated by Shivers, the arrowhead exception is limited to those found on the surface of public lands. See 16 U.S.C. § 470ff(a)(3) (“[n]o penalty shall be assessed ... for the removal of arrowheads located on the surface of the ground.”). Also, the ARPA expressly provides that the removal of arrowheads can be penalized under other regulations or statutes. See, e.g., 49 Fed. Reg. 1016, 1018 (“regulations under other authority which penalize [the removal of surface arrowheads] remain effective.”) No inferences or implications helpful to Shivers are found in these provisions. Because the ARPA does not vest Shivers with an ownership interest in the tokens, we need not discuss the Forest Service regulations, relied upon by the government, which go beyond ARPA and attempt to define as “archaeological resources,” prohibited from excavation, artifacts that are at least 50 years old. See 36 C.F.R. §§ 261.2, 261.9(g). The asserted conflict between the Forest Service regulations and the ARPA does not need to be resolved in this case. C. Ownership and the Federal Common Law of Finds The district court concluded not only that the ARPA did not convey to Shivers an ownership interest in the Aldridge tokens, but also that in the absence of express or statutory title transfer, the federal common law of finds dictates that the United States, not Shivers, owns the tokens. The federal common law of finds, including certain critical exceptions, is pertinent to this case. As the Eleventh Circuit explained, [t]he common law of finds generally assigns ownership of the abandoned property without regard to where the property is found. Two exceptions to the rule are recognized: First, when the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not ‘lost,’ it belongs to the owner of the land. Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (emphasis added). In Klein, a vessel submerged beneath the waters of Biscayne National Park, Florida, had been rediscovered and salvaged by a private diver. Holding that the wreck was property of the government, not the diver, the court emphasized that the “ship is buried in the soil. The soil belongs to the United States as part of its national park system.... When the United States acquired title to the land from Florida in 1973, it also acquired title to the shipwrecks embedded in that soil.... Thus the United States has never legally lost the subject shipwreck and, as the owner of the land on and/or water in which the shipwreck is located, it owns the shipwreck.” Id. at 1514 (emphasis added). Similarly, the Al-dridge tokens excavated by Shivers were buried in the soil of the Angelina National Forest. As in Klein, this soil belongs to the United States, and with it the embedded tokens under the first exception to the federal common law of finds discussed in Klein. Shivers does not challenge this interpretation of the federal common law of finds. Indeed, his only retort is that the common law of finds is inapplicable because Congress expressly provided in § 470kk(b) of the ARPA that private collectors enjoy ownership of the non-archaeological resources that they discover on public lands. As already discussed, this contention is indefensible. The district court correctly held that the United States owns the tokens that Shivers discovered. CONCLUSION For the foregoing reasons, the judgment of the district court denying Shivers’s 41(e) motion for the return of the Aldridge tokens is AFFIRMED. . These figures are taken from a report relied upon by the district court and prepared by an Assistant Forest Archaeologist for the United States Forest Service. This report also con-eludes that many of the holes attributed to Shivers were not backfilled after excavation. Shivers does not challenge the accuracy or conclusions of the report. . Analyzing the ARPA, Judge Posner has also explained that "there is no right to go upon another person’s land, without his permission, to look for valuable objects buried in the land and take them if you find them.” United States v. Gerber, 999 F.2d 1112, 1114-15 (7th Cir.1993), cert. denied, 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).

United States v. Gerber

POSNER, Circuit Judge. Arthur Joseph Gerber pleaded guilty to misdemeanor violations of the Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa et seq., and was sentenced to twelve months in prison, reserving however his right to appeal on the ground that the Act is inapplicable to his offense. What he had done was to transport in interstate commerce Indian artifacts that he had stolen from a burial mound on privately owned land in violation of Indiana’s criminal laws of trespass and conversion. The section of the Archaeological Resources Protection Act under which he was convicted provides that “no person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.” 16 U.S.C. § 470ee(c). Gerber argues that despite the references in this section to state and local law, the Act is inapplicable to archaeological objects removed from lands not owned either by the federal government or by Indian tribes. His back-up argument is that the provisions, rules, regulations, and so forth of state or local law to which the Act refers are limited to provisions expressly protecting archaeological objects or sites, as distinct from laws of general application such as those forbidding trespass and theft. The issues are novel because this is the first prosecution under the Act of someone who trafficked in archaeological objects removed from lands other than either federal or Indian lands. More than fifteen hundred years ago in the American midwest Indians built a series of large earthen mounds over prepared mound floors containing human remains plus numerous ceremonial artifacts and grave goods made of silver, copper, wood, cloth, leather, obsidian, flint, mica, quartz, pearl, shells, and drilled, carved, or inlaid human and bear teeth. This mound culture, the product of a civilization that included the beginnings of settled agriculture, an elaborate ceremonial-ism, and far-flung trading networks, has been dubbed the “Hopewell phenomenon.” N’omi B. Greber & Katharine C. Ruhl, The Hopewell Site: A Contemporary Analysis Based on the Work of Charles C. Willoughby (1989); Warren K. Moorehead, The Hopewell Mound Group of Ohio (Field Museum of Natural History, Publication No. 211, 1922). In 1985 farmers sold General Electric a piece of untillable land in southwestern Indiana adjacent to one of its factories. The land contained a prominent knob on top of a ridge. Unbeknownst to anyone this knob was a Hopewell burial mound some 400 feet long, 175 feet wide, and 20 feet high. The mound and its contents (which included two human skeletons) were intact — even the perishable materials such as wood and leather artifacts were well preserved — and when discovered it would prove to be one of the five largest Hopewell burial mounds known. A highway was planned to run through the ridge on which the knob was located. In the course of construction, in 1988, earth was removed from the knob to stabilize the roadbed. Workmen engaged in this removal discovered in the knob curious objects — tur-tleback-shaped rocks — which they showed to a heavy-equipment operator on the project, named Bill Way, who happened to be a collector of Indian artifacts. Recognizing the significance of the find, Way nosed his bulldozer into the knob and quickly discovered hundreds of artifacts, including copper axeheads, inlaid bear canines, and tooled leather. He loaded these items into his pickup truck and covered up the excavation he had made. An acquaintance put him in touch with Arthur Joseph Gerber, a well-known collector of Indian artifacts and promoter of annual Indian “relic shows.” Gerber paid Way $6,000 for the artifacts and for revealing to Gerber the location of the mound. Way took Gerber to the site the same night, encountering other people digging for Indian artifacts. Gerber returned to the site several more times, excavating and removing hundreds of additional artifacts, including silver ear-spools, copper axeheads, pieces of worked leather, and rare silver musical instruments, some with the original reeds preserved. On Gerber’s last visit to the site he was detected by a General Electric security guard and ejected. Shortly afterward Gerber sold some of the artifacts at his annual “Indian Relic Show of Shows” in Kentucky. He acknowledges that in entering upon General Electric’s land without the company’s permission and in removing, again without its permission, Indian artifacts buried there, he committed criminal trespass and conversion in violation of Indiana law. He also acknowledges having transported some of the stolen artifacts in interstate commerce. The preamble of the Archaeological Resources Protection Act of 1979 states that “archaeological resources on public lands [defined elsewhere in the Act as federal public lands] and Indian lands are an accessible and irreplaceable part of the Nation’s heritage” and that the purpose of the Act is “to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands.” 16 U.S.C. §§ 470aa(a)(1), (b). Consistent with this preamble, most of the Act is given over to the regulation, in the form of civil and criminal penalties, permit requirements, forfeiture provisions, and other regulatory devices, of archaeological activities on federal and Indian lands. The criminal penalties are for archaeological activities conducted on those lands without a permit and for trafficking in archaeological objects that have been removed from them in violation either of the Act’s permit requirements or of any other federal law. §§ 470ee(a), (b). Gerber did not remove Indian artifacts from federal or Indian lands, however, and was therefore prosecuted under the third criminal provision (§ 470ee(c), quoted earlier), which is not in terms limited to such lands. The omission of any reference in subsection (c) to federal and Indian lands was, Gerber argues, inadvertent. Not only the preamble of the Act, but its legislative history, shows that all that Congress was concerned with was protecting archaeological sites and objects on federal and Indian lands. This is indeed all that the preamble mentions; and a principal sponsor of the Act said that “it does not affect any lands other than the public lands of the United States and [Indian] lands.” 125 Cong.Rec. 17,394 (1979) (remarks of Congressman Udall). The legislative history contains no reference to archaeological sites or objects on state or private lands. The Act superseded the Antiquities Act of 1906, 16 U.S.C. §§ 431-33, which had been expressly limited to federal lands. And if the Act applies to nonfederal, non-Indian lands, its provisions are at once over-inclusive and underinclusive: overinelusive because the Act authorizes the federal court in which a defendant is prosecuted to order, in its discretion, the forfeiture of the archaeological objects involved in the violation to the United States (unless they were removed from Indian lands), §§ 470gg(b), (c); under-inclusive because the provisions authorizing civil penalties and the payment of rewards to informers out of fines collected in criminal prosecutions under the Act are administered by officials who lack jurisdiction over nonfed-eral, non-Indian lands. §§ 470bb(2), 470ff, 470gg(a). (The artifacts stolen by Gerber were recovered and are being held by the United States as evidence in this case, but they have not been ordered forfeited.) Most scholarly commentators on the Act assume that it is limited to federal and Indian lands. E.g., Kristine Olson Rogers, “Visigoths Revisited: The Prosecution of Archaeological Resource Thieves, Traffickers, and Vandals,” 2 J. Environmental Law & Litigation 47, 72 (1987). Gerber reminds us of the rule of lenity in interpreting criminal statutes and of the implied constitutional prohibition against excessively vague criminal statutes. He adds that subsection (c) of section 470ee would not be a nullity if the Act were held to be limited to sites and objects on federal and Indian lands. A number of state laws prohibit trafficking in stolen Indian artifacts regardless of their origin, and it has not been suggested that these statutes are preempted by the federal Act even with respect to artifacts stolen from federal or Indian lands. A person who trafficked in Indian artifacts in violation of state law would be subject to federal prosecution only under subsection (c) even if the artifacts had been removed from federal or Indian lands, if the removal happened not to violate federal law. We are not persuaded by these arguments. That the statute, the scholarly commentary, and the legislative history are all focused on federal and Indian lands may simply reflect the fact that the vast majority of Indian sites — and virtually all archaeological sites in the Western Hemisphere are Indian — are located either in Indian reservations or on the vast federal public lands of the West. Subsection (c) appears to be a catch-all provision designed to back up state and local laws protecting archaeological sites and objects wherever located. It resembles the Mann Act, the Lindbergh Law, the Hobbs Act, and a host of other federal statutes that affix federal criminal penalties to state crimes that, when committed in interstate commerce, are difficult for individual states to punish or prevent because coordinating the law enforcement efforts of different states is difficult. The reference to interstate commerce would be superfluous if the subsection were limited to artifacts taken from federal or Indian lands, since either source would establish federal jurisdiction with no need to require proof that the artifacts were transported in interstate commerce. Probably the subsection was added as an afterthought, so one is not surprised that it does not jibe perfectly with the surrounding provisions; but that does not make it invalid, and it certainly is not vague. And we cannot see how the purposes of the Act would be undermined by our giving subsection (c) the interpretation that its words invite. An amicus brief filed by several associations of amateur archaeologists claims that such an interpretation will infringe their liberty to seek to enlarge archaeological knowledge by excavating private lands. But there is no right to go upon another person’s land, without his permission, to look for valuable objects buried in the land and take them if you find them. At common law General Electric would have been the owner of the mound and its contents regardless of the fact that it was unaware of them. Elwes v. Brigg Gas Co., 33 Ch. D. 562 (1886); South Staffordshire Water Co. v. Sharman, [1896] 2 Q.B. 44. The modern American law is the same. Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 269 (Ia.1991); Favorite v. Miller, 176 Conn. 310, 407 A.2d 974, 978 (1978); Bishop v. Ellsworth, 91 Ill.App.2d 386, 234 N.E.2d 49 (1968); Allred v. Biegel, 240 Mo.App. 818, 219 S.W.2d 665 (1949); Chance v. Certain Artifacts Found & Salvaged, 606 F.Supp. 801, 806-08 (S.D.Ga.1984). Allred actually involved an Indian artifact. Although we have found no Indiana cases, we are given no reason to suppose that the Indiana courts would adopt a different rule. It would make no difference if they would. Whatever the rightful ownership of the mound and its contents under current American law, no one suggests that Way or Gerber obtained any rights to the artifacts in question. No doubt, theft is at the root of many titles; and priceless archaeological artifacts obtained in violation of local law are to be found in reputable museums all over the world. But it is almost inconceivable that Congress would have wanted to encourage amateur archaeologists to violate state laws in order to amass valuable collections of Indian artifacts, especially as many of these amateurs do not appreciate the importance to scholarship of leaving an archaeological site intact and undisturbed until the location of each object in it has been carefully mapped to enable inferences concerning the design, layout, size, and age of the site, and the practices and culture of the inhabitants, to be drawn. It is also unlikely that a Congress sufficiently interested in archaeology to impose substantial criminal penalties for the violation of archaeological regulations (the maximum criminal penalty under the Act is five years in prison plus a $100,000 fine, § 470ee(d)) would be so parochial as to confine its interests to archaeological sites and artifacts on federal and Indian lands merely because that is where most of them are. We conclude that section 470ee(c) is not limited to objects removed from federal and Indian lands, but we must consider Gerber’s alternative argument, that the section is limited to removals in violation of state and local laws explicitly concerned with the protection of archaeological sites or objects. Gerber argues that if it is not so limited all sorts of anomalies are created. Suppose he had bought an Indian artifact from its rightful owner but had failed to pay the applicable state sales tax, and had transported the artifact across state lines. Then he would, he tells us, be transporting in interstate commerce an archaeological object purchased in violation of state law. And likewise if he transported such an object in interstate commerce in a vehicle that exceeded the weight limitations imposed by state law. These are poor examples. It is unlikely in either case that the state would consider the transportation of a good to be in violation of state law merely because sales tax had not been paid or an overweight vehicle had been used. But we agree with the general point, that the Act is limited to cases in which the violation of state law is related to the protection of archaeological sites or objects. A broader interpretation would carry the Act far beyond the objectives of its framers and create pitfalls for the unwary. But we do not think that to be deemed related to the protection of archaeological resources a state or local law must be limited to that protection. A law that forbade the theft of Indian artifacts “and any other objects having historical or artistic value” could not reasonably be thought a law unrelated to the protection of such artifacts merely because it had broader objectives. That is essentially what Indiana’s laws forbidding trespass and conversion have: objectives that include but are not exhausted in the protection of Indian artifacts and other antiquities. A law that comprehensively protects the owner of land from unauthorized incursions, spoliations, and theft could well be thought to give all the protection to buried antiquities that they need, making the passage of a law specially protecting buried antiquities redundant — and the passage of new laws is never costless and rarely easy. The interpretation urged by Gerber would if accepted compel states desiring federal assistance in protecting Indian artifacts in nonfederal, non-Indian lands within their borders to pass laws that might duplicate protections already adequate conferred on landowners sitting atop undiscovered archaeological sites by existing laws of general applicability. Granted, all fifty states have laws expressly protecting their archaeological sites; and in 1989, too late for this case, Indiana amended its law to forbid — redundantly—'what Gerber had done. So the interpretation for which he contends might not actually impose a significant burden on the states. But Indiana may not have amended its law earlier because it thought its general criminal laws of trespass and conversion adequate — for all we know, it amended the law in response to Gerber’s contention that the federal Act contains a loophole through which he and others like him might be able to squeeze. We conclude that Gerber’s conduct was forbidden by the Act. We commend counsel, Harvey Silets for the defendant and Larry Mackey for the government, for the exceptional quality of their briefs and argument. We have not hesitated to criticize counsel who fall below minimum professional standards for lawyers practicing in this court; equally, counsel whose performance exceeds those standards by a generous margin deserve our public recognition and thanks. Affirmed. We are mindful that “Native American” is the term preferred by most members of the American Indian community. Since, however, the statute and both of the parties use the term "Indian,” we have decided to do likewise.

California ex rel. Younger v. Mead

FARRIS, Circuit Judge. The State of California and the San Bernardino County Museum appeal the dismissal for failure to state a claim of their suit which sought to declare invalid a permit issued to the Smithsonian Institution under the Antiquities Act, 16 U.S.C. § 432, for removal and study of the “Old Woman Meteorite.” They also appeal the denial of their motion for a preliminary injunction to enjoin removal of the meteorite from the State of California. We affirm. On a motion to dismiss for failure to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the facts alleged in the complaint must be accepted as true. California Dump Truck Owners Ass’n v. Associated General Contractors, 562 F.2d 607, 614-15 (9th Cir. 1977). The complaints in this consolidated suit alleged the following pertinent facts. In 1976 a 6,070 pound meteorite was found on federal land in the Old Woman Mountain Range in Southern California. Thereafter, the Department of Interior and the Bureau of Land Management consulted with the Smithsonian Institution to determine the procedures to be followed to transfer the Old Woman Meteorite to the Smithsonian. This correspondence culminated in a letter dated December 21, 1976 from the Secretary of the Interior authorizing the Smithsonian Institution to remove and study the meteorite. The meteorite was removed from its site on June 17, 1977 and placed on public exhibition in the San Bernardino County Museum for one week and in the Los Angeles County Museum of Natural History for six days in mid-July. The museum applied for a permit under the Antiquities Act, 16 U.S.C. § 432, to retain the meteorite and brought suit in the Federal District Court for the Central District of California to enjoin the removal of the meteorite from California and to void the permit issued to the Smithsonian Institution. The State of California brought a similar suit in state court which was removed to the federal district court. These actions were consolidated. The district court refused to issue an injunction and granted the Secretary’s motion to dismiss the actions. The county museum and the State appealed both decisions. The State and the museum contend that the court had jurisdiction and that their complaints stated the following claims based on the manner in which the Secretary of the Interior authorized the Smithsonian to remove the meteorite. 1) The Secretary violated the Antiquities Act by failing to notify other museums of the meteorite’s existence. 2) The Secretary violated the regulations issued under the Act, 43 C.F.R. § 3.1 et seq., because no valid application was made by the Smithsonian. 3) The Secretary violated the Federal Land Policy and Management Act by failing to consult with state and local officials. 4) The Secretary-violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the museum’s Fifth Amendment right to due process because no hearing was held. 5) The Secretary violated the museum’s Fifth Amendment right to equal protection by contacting only the Smithsonian about the meteorite. The State and the museum also contend that the denial of their motions for a preliminary injunction was based on an error of law. JURISDICTION While we will not set aside an agency’s informed judgments if those judgments are committed to agency discretion, we will review an agency’s action for alleged violations of constitutional, statutory, regulatory or other legal mandates. Ness Investment Corp. v. United States Dept. of Agriculture, 512 F.2d 706, 714 (9th Cir. 1975). Here the State and the museum allege violations of statutory, regulatory and constitutional law. THE ANTIQUITIES ACT The State of California contends that the Antiquities Act was intended by Congress to grant all qualified institutions an equal right to study and exhibit objects of antiquity. It argues that under this interpretation, the Act was violated when the officials of the Department of the Interior contacted the Smithsonian and not other institutions about the meteorite. The State contends that this congressional intent is clear from legislative history which shows that at the time the Antiquities Act was passed, Congress rejected another bill that would have given the Smithsonian Institution some control over antiquities permits. We disagree. We interpret the Act and its legislative history to give the Secretary of the Interior broad discretionary power to dispose of objects of antiquity found on federal land under his jurisdiction. The Act states that permits “may be granted by the Secretaries of the Interior, Agriculture, and Army to institutions which they may deem properly qualified . . . .” (Emphasis added.) 16 U.S.C. § 432. The only limitations on that discretion imposed by the Act are contained in the proviso. It requires that the permits be given only to “reputable museums, universities, colleges, or other recognized scientific or educational institutions, with a view to increasing the knowledge of such objects, and that permanent preservation [be] in public museums.” Id. There is no contention here that these requirements were not met. THE REGULATIONS The State and the museum contend that the Secretary violated the regulations issued pursuant to the Antiquities Act, 43 C.F.R. § 13.1 et seq., by authorizing removal of the meteorite by the Smithsonian when the Smithsonian had not filed an application in compliance with 43 C.F.R. § 13.5. They argue that the regulations establish a scheme for the issuance of antiquities permits which requires the Secretary to seek out and choose between competing applications. They imply that the Secretary has no power to act until a formal application is received. We disagree. Although the regulations establish a uniform method of applying for antiquities permits, they do not limit the Secretary’s ability to act in absence of applications, as was the case here, nor do they require that the Secretary solicit applications. THE FEDERAL LAND POLICY AND MANAGEMENT ACT The State of California contends that the Secretary failed to comply with sections 202(f) and 309(e) of the Federal Land Policy and Management Act, 43 U.S.C. §§ 1712(f) and 1739(e), by not consulting with state and local officials. However, neither section is applicable here because the Secretary was not acting pursuant to that Act. THE RIGHT TO A HEARING The museum contends that the Secretary violated the Administrative Procedure Act and its Fifth Amendment right to due process by not holding a hearing prior to authorizing the Smithsonian to remove the meteorite. The Secretary’s action here was not the type of “quasi judicial” proceeding requiring a hearing under the A.P.A. See Marathon Oil v. Environmental Protection Agency, 564 F.2d 1253, 1261-64 (9th Cir. 1977). Further, the complaining parties have not demonstrated the kind of interest in the meteorite which entitles them to a hearing as a constitutional right. See Pan American World Airways, Inc. v. United States District Court, C.D. Calif., 523 F.2d 1073, 1077 (9th Cir. 1975). EQUAL PROTECTION There is no merit to the museum’s contention that the Secretary’s actions constituted invidious discrimination in violation of the equal protection clause of the Fifth Amendment. The status of the Smithsonian Institution as a national museum, created by an act of Congress, provides a rational basis for the Secretary to choose to contact the Smithsonian (as opposed to another institution) about the meteorite. See Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Dismissal was proper because the complaints failed to state a claim upon which relief could be granted. We therefore do not reach the question of whether denial of the motions for a preliminary injunction was proper. Affirmed.

California ex rel. Younger v. Mead

KENNEDY, Circuit Judge, dissenting: One cannot get too upset over the result the court reaches. I have little doubt that eventually the Secretary can put this block, this stone, this worse than senseless thing in just about any museum he pleases and still justify his choice under the regulations. The Secretary ought to be able to act in such matters without much interference from us. The problem in the case is that, until pressed to acknowledge otherwise at oral argument before this court, the Secretary tried the case on the bold theory that he is free to exercise a discretion that is unencumbered by a statute and a regulation that bear directly upon the subject, even though he uses the statute to justify the ultimate, but not the mediate, actions he took in the case. The appellants argue that the Secretary misinterpreted the regulations to allow issuance of a permit without making reasonable allowance for competing applications and that he misconstrued the statute to grant an automatic preference to the Smithsonian. Both of these allegations raise issues for judicial determination, yet neither seems to be addressed or determined by the majority opinion. I dissent, therefore, from failure to remand for further proceedings in the district court. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Standard Oil Co. v. FTC, 596 F.2d 1381 (9th Cir. 1979), cert. granted, - U.S. -, 100 S.Ct. 1077, 63 L.Ed.2d 318 (1980); East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 531-35 (9th Cir. 1972). Judicial review is made necessary only by the curious position taken by the Secretary.

Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel

GEWIN, Circuit Judge: Treasure Salvors, Inc., and Armada Research Corp., Florida corporations, sued for possession of and confirmation of title to an unidentified wrecked and abandoned vessel thought to be the Nuestra Señora de Ato-cha. The Atocha sank in the sea off the Marquesas Keys in 1622 while en route to Spain. The United States intervened, answered, and counterclaimed, asserting title to the vessel. Summary judgment was entered for the plaintiffs, 408 F.Supp. 907 (S.D.Fla.1976), and the government appealed. We modify the district court’s judgment, and affirm. This action evokes all the romance and danger of the buccaneering days in the West Indies. It is rooted in an ancient tragedy of imperial Spain, and embraces a modern tragedy as well. The case also presents the story of a triumph, a story in which the daring and determination of the colonial settlers are mirrored by contemporary treasure seekers. In late summer of 1622 a fleet of Spanish galleons, heavily laden with bullion exploited from the mines of the New World, set sail for Spain. Spain, at this period in her history, was embroiled in the vicious religious conflicts of the Thirty Years’ War and desperately needed American bullion to finance her costly military adventures. As the fleet entered the Straits of Florida, seeking the strongest current of the Gulf Stream, it was met by a hurricane which drove it into the reef-laced waters off the Florida Keys. A number of vessels went down, including the richest galleon in the fleet, Nuestra Señora de Atocha. Five hundred fifty persons perished, and cargo with a contemporary value of perhaps $250 million was lost. A later hurricane shattered the Atocha and buried her beneath the sands. For well over three centuries the wreck of the Atocha lay undisturbed beneath the wide shoal west of the Marquesas Keys, islets named after the reef where the Marquis of Cadereita camped while supervising unsuccessful salvage operations. Then, in 1971, after an arduous search aided by survivors’ accounts of the 1622 wrecks, and an expenditure of more than $2 million, plaintiffs located the Atocha. Plaintiffs have retrieved gold, silver, artifacts, and armament valued at $6 million. Their costs have included four lives, among them the son and daughter-in-law of Melvin Fisher, plaintiffs’ president and leader of the expedition. Jurisdiction The district court did not specify its basis of jurisdiction. With respect to the controversy presented by the parties, it was clearly within the court’s power to declare title to those objects within its territorial jurisdiction. The government, however, contends that the court lacked in rem jurisdiction to determine the rights of the parties to that portion of the res situated beyond the territorial jurisdiction of the court. In rem actions in admiralty generally require, as a prerequisite to a court’s jurisdiction, the presence of the vessel or other res within the territorial confines of the court. American Bank of Wage Claims v. Registry of District Court of Guam, 431 F.2d 1215, 1218 (9th Cir. 1970); 7A Moore’s Federal Practice K E.05, at E-202 (1977). This rule is predicated upon admiralty’s fiction of convenience that a ship is a person against whom suits can be filed and judgments entered. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 22-23, 80 S.Ct. 1470, 1472-1473, 4 L.Ed.2d 1540, 1543 (1960). Personification of the ship allows actions to be brought against the vessel when her owner can not be reached. Id. In these circumstances the fiction may perform a useful and salutary function. But when a legal fiction which exists solely to effectuate the adjudication of disputes is invoked for the opposite purpose, we have no hesitation in declining to employ it. Other courts faced with similar challenges to their jurisdiction have refused to myopically apply this fiction where its application was inappropriate to the situation before them. In Booth Steamship Co. v. Tug Dalzell No. 2, 1966 A.M.C. 2615 (S.D.N. Y.1966), the claimant to the res contested the court’s in rem jurisdiction on the grounds that the res was not within the territorial jurisdiction of the court. In its pleadings the plaintiff had alleged, as in the case before us, that the res was within or during the pendency of the proceedings would be within the court’s jurisdiction. The claimant’s answer admitted this allegation. After reviewing the decisions on this question the court held: [T]he mandate of Admiralty Rule 22 requiring that in an in rem action, the libel allege the presence of the res in the district, does not relate to subject matter jurisdiction, and therefore actual local seizure or a tangible substitute thereof, such as the posting of a bond, is not a prerequisite to the maintenance of an in rem action. The claimants-petitioners, by admitting the presence of the res within the district, by filing a claim to the tug Dalzell # 2 and by filing and serving a general appearance, have submitted that vessel to the jurisdiction of this court. Id. at 2618. The Third Circuit reached a similar conclusion in Reed v. Steamship Yaka, 307 F.2d 203 (3d Cir. 1962), rev’d on other gds., 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). There, the res was also outside the court’s territorial jurisdiction, but the claimant voluntarily appeared and answered the complaint “to avoid attachment and delay of the vessel if it should subsequently be present” within the court’s jurisdiction. The court held that by this act the claimant had waived the requirement that the res be arrested by the court and had consented to the court’s jurisdiction over its interest in the vessel. Id. at 204-05. Finally, the Supreme Court, in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960), aff’g, 268 F.2d 240 (5th Cir. 1959), permitted the transfer under 28 U.S.C. § 1404(a), with the claimant’s consent, of an in rem action in admiralty to a district in which the res was not present. The Court based its decision upon the fact that this transfer would prevent “unnecessary inconvenience and expense to parties, witnesses, and the public.” Id. at 21, 80 S.Ct. at 1472, 4 L.Ed.2d at 1542. It is true, as Justice Whit-taker stated in his dissent in Continental Grain, that the Court did not decide the question of whether the owner’s consent can confer in rem jurisdiction in an action where the res is not within the territorial jurisdiction of the court. However, as commentators have noted, the Supreme Court appears to favor the position that the presence of the res within the district is not an absolute prerequisite to the court’s jurisdiction. These decisions evidence the common concern of the courts with finding the most practical and efficacious means of resolving the disputes before them. An interest in rendering justice rather than an automatistic reliance upon rigid legalisms characterizes each of them. It is with these examples before us that we turn to an examination of the merits of the government’s jurisdictional challenge. Initially we note that for all practical purposes it was impossible to bring the entire remains of the vessel and her cargo within the territorial jurisdiction of the court. Thousands of items retrieved from the wreck site were brought into the district, but the bulk of the wreck lies buried under tons of sand in international waters. The district court did everything within its power to have the marshal arrest the vessel and bring it within the custody of the court. Thus, there is little danger that the res, against which any claims might be satisfied, will escape an in rem decree against it. In this case, as in the three cases we have discussed, the court had in personam jurisdiction over the claimants, thus rendering the vessel’s arrest nonessential to the resolution of the action. The United States intervened in plaintiffs’ in rem action as a party defendant and filed a counterclaim asserting a property right in the res. The government, by intervening in this action and by stipulating to the court’s admiralty jurisdiction (A. 67), waived the usual requirement that the res be present within the territorial jurisdiction of the court and consented to the court’s jurisdiction to determine its interest in the extraterritorial portion of the vessel. Alternatively, we note that assuming a lack of in rem jurisdiction of that part of the wreck lying outside the territorial waters of the United States, the district court is not deprived of jurisdiction over the government’s counterclaim if that claim rests upon an independent basis of jurisdiction. Sachs v. Sachs, 265 F.2d 31 (3d Cir. 1959); Haberman v. Equitable Life Assurance Soc’y of United States, 224 F.2d 401, 409 (5th Cir. 1955); Isenberg v. Biddle, 75 U.S.App.D.C. 100, 102, 125 F.2d 741, 743 (1944). In its counterclaim the government requested that “a declaratory judgment be issued affirming the property right of the United States in the Atocha, her tackle, armament, apparel and cargo.” (A. 10). While no basis of jurisdiction was stated in the counterclaim regarding the extraterritorial portion of the wreck, the record reveals that the government based its claim to rights in the sunken vessel on the Antiquities Act, 16 U.S.C. § 431 et seq., and the Abandoned Property Act, 40 U.S.C. § 310. The district court thus had jurisdiction under 28 U.S.C. § 1331 to determine the applicability of these statutes to that portion of the vessel situated in international waters. To summarize, the district court properly adjudicated title to all those objects within its territorial jurisdiction and to those objects without its territory as between plaintiffs and the United States. In affirming the district court, we do not approve that portion of its order which may be construed as a holding that plaintiffs have exclusive title to, and the right to immediate and sole possession of, the vessel and cargo as to other claimants, if any there be, who are not parties or privies to this litigation. One further procedural matter must detain us. The government asserts that summary judgment was improper in light of two material issues of fact left unresolved by the district court. The first issue, whether the United States has established procedures for the protection and recovery of objects on the outer continental shelf, concerns administrative or legislative action which is subject to judicial notice. See Wright and Miller, Fed. Practice and Procedure § 2410. The government was obliged, under Fed.R.Civ.P. 56(e), to set forth any procedures or controlling statutes not already brought to the attention of the court. The government cannot claim to be a party unable, under Fed.R.Civ.P. 56(f), to gather and present material showing the existence of such procedures or statutes. The second issue, whether plaintiffs were in possession of the Atocha and that portion of her tackle, armament, apparel, and cargo which had not been found, cannot be said to be in dispute as a matter of fact. The government adopted plaintiffs’ description of the vessel in its claim of ownership (A. 6). It is uncontested that other artifacts exist in the vicinity of plaintiffs’ salvage operation. The government offered no affidavits or other evidence contesting plaintiffs’ protection and control of the wreck site. Absent evidence disputing plaintiffs’ affidavits, the district court appropriately considered the facts settled on motion for summary judgment. . Salvage The government argues that one of the elements of a salvage action — the existence of a marine peril — is absent from this controversy, and that the district court erred in applying the law of salvage. We believe the government misconstrues both the nature of the law applied by the district court and the law of salvage itself. The Atocha is indisputedly an abandoned vessel. Whether salvage law or the adjunct law of finds should be applied to property abandoned at sea is a matter of some dispute. Martin J. Norris, in his treatise on salvage law, states that under salvage law the abandonment of property at sea does not divest the owner of title. M. Norris, The Law of Salvage, § 150 (1958). Courts, however, have rejected the theory that title to such property can never be lost and have applied the law of finds. Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456-57 (E.D.Va.1960). See Nippon Shosen Kaisha, K.K. v. United States, 238 F.Supp. 55, 59 (N.D.Cal.1964); Rickard v. Pringle, 293 F.Supp. 981, 984 (E.D.N.Y.1968). Under this theory, title to abandoned property vests in the person who reduces that property to his or her possession. In Rickard, for example, the court held that title to a propeller recovered from a vessel abandoned on the ocean floor for sixty years vested in “the first finder lawfully and fairly appropriating it and reducing it to possession, with the intention to become its owner.” Id. at 984, citing Wiggins, supra, sub nom. The Clythia. The court below correctly applied the law of finds. Disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths. The law of salvage does not contemplate a different result. Salvage awards may include the entire derelict property. The government’s argument that no marine peril existed ignores the reality of the situation. Marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation. In Thompson v. One Anchor and Two Chains, 221 F. 770, 773 (W.D.Wis.1915), “[t]he ‘marine peril’ consisted in the fact that the anchors and chains were actually lost. If they had been resting on a reef, where they could be seen, they would undoubtedly have been in ‘peril’ of being lost, and the ‘marine peril’ certainly was not diminished or extinguished by the fact that they were actually lost.” There is no dispute that the Atocha was lost. Even after discovery of the vessel’s location it is still in peril of being lost through the actions of the elements. Thus, under either theory plaintiffs are entitled to award of the property if the government does not prevail in this action. On this appeal the United States claims the treasure chiefly upon two grounds: (1) Application of the Antiquities Act, 16 U.S.C. §§ 431-433, to objects located on the outer continental shelf of the United States; and (2) The right of the United States, as heir to the sovereign prerogative asserted by the Crown of England, to goods abandoned at sea and found by its citizens. In support of the second contention the government relies not only upon English common law but also upon the Antiquities Act, supra, the Abandoned Property Act, 40 U.S.C. § 310, and other generalized statutes and regulations. The Antiquities Act The Antiquities Act authorizes executive designation of historic landmarks, historic and prehistoric structures, and objects of historic or scientific interest situated upon lands owned or controlled by the United States as national monuments. Permission to examine ruins, excavate archaeological sites, and gather objects of antiquity must be sought from the secretary of the department exercising jurisdiction over such lands. As the district court noted, the Antiquities Act applies by its terms only to lands owned or controlled by the Government of the United States. The wreck of the Atocha rests on the continental shelf, outside the territorial waters of the United States. The government asserts that the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., demonstrates Congressional intent to extend the jurisdiction and control of the United States to the outer continental shelf. OCSLA was passed, along with the Submerged Lands Act, 43 U.S.C. § 1301 et seq., to clarify the respective interests of coastal states and the United States in the natural resources of the subsoil and seabed of the continental shelf. A look at the background and interpretation of OCSLA is necessary to determine its scope. The Truman proclamation of September 28, 1945, spurred national and international interest in exploitation of the mineral wealth of the oceans. The proclamation asserted the jurisdiction and control of the United States over the mineral resources of the continental shelf, but was not intended to abridge the right of free and unimpeded navigation of waters above the shelf, nor to extend the limits of American territorial waters. See 13 Dep’t State Bull. 485 (Sept. 30,1945). The Convention on the Continental Shelf, written thirteen years later, assured to each coastal nation the exclusive right to explore and exploit the resources of the seabed and subsoil, not only of its territorial sea, but also of the adjacent continental shelf beyond the territorial sea. See Master’s Report, supra n.14, at 69. During the years following the Truman proclamation, intense interest in exploiting ocean resources resulted in disputes between the United States and coastal states asserting jurisdiction over territorial waters. In United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), and its progeny, the United States was held to have rights in the offshore seabed superior to and exclusive of the states. The political reaction to these decisions led to passage of the Submerged Lands Act in May 1953 and the Outer Continental Shelf Lands Act a few months later. See 15 Va. J.Int’l. L. 1009, 1011 (1975). By enactment of the Submerged Lands Act, Congress recognized the coastal states’ title to and ownership of the lands and natural resources beneath navigable waters within the territorial sea. See United States v. Maine, 420 U.S. 515, 525, 95 S.Ct. 1155, 1160, 43 L.Ed.2d 363, 370-71 (1975). In the Outer Continental Shelf Lands Act, “Congress emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit.” Id. at 526, 95 S.Ct. at 1161, 43 L.Ed.2d at 371. The superiority of the federal claim to resources on the outer continental shelf to the claims of the states was clearly established in 1975 in United States v. Maine, supra. The United States asserted in its complaint in Maine only “. . . sovereign rights over the seabed and subsoil underlying the Atlantic Ocean, lying more than three geographic miles seaward from the coastline to the outer edge of the continental shelf for the purpose of exploring the area and exploiting its natural resources. . . .” Master’s Report, supra n.14, at 3. The special master found the “basic question involved” in the litigation to be “whether the right to explore and exploit the natural resources of the seabed and subsoil of that portion of the continental shelf . . . belongs to the United States or to the defendant States or any of them.” Id. at 1. After Maine, the primacy of federal over state interests in the natural resources of the outer continental shelf cannot be doubted. But the decision in Maine did not address the extent of control by the United States of the shelf in all circumstances. 43 U.S.C. § 1332(a) declares the policy of the United States to be “that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.” Certain language in the Conference Committee report on the bill supports the view that Congress intended to extend the jurisdiction and control of the United States to both the seabed and subsoil. However, this language must be taken in the context of the bill’s stated purpose “. . . to amend the Submerged Lands Act in order that the area in the outer Continental Shelf beyond boundaries of the States may be leased and developed by the Federal Government. . . . ” This court held in Guess v. Read, 290 F.2d 622, 625 (1961), cert. denied, 386 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962), that “[t]he Continental Shelf Act was enacted for the purpose, primarily, of asserting ownership of and jurisdiction over the minerals in and under the Continental Shelf.” The structure of the Act itself, which is basically a guide to the administration and leasing of offshore mineral-producing properties, reinforces this conclusion. The Act consists almost exclusively of specific measures to facilitate exploitation of natural resources on' the continental shelf. In addition, 43 U.S.C. § 1332(b) provides that the Act “shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected.” As the court below noted, an extension of jurisdiction for purposes of controlling the exploitation of the natural resources of the continental shelf is not necessarily an extension of sovereignty. We believe that a limited construction of the Act comports with the primary purpose of resolving competing claims to ownership of the natural resources of the offshore seabed and subsoil. So read, the Act is consistent with Article 2 of the Convention on the Continental Shelf: 1. The coastal state [nation] exercises over thé continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. The Convention on the Continental Shelf was a product of the United Nations Conference on the Law of the Sea convened at Geneva in 1958. It was the result of eight years’ work by the International Law Commission. See generally Neblett, The 1958 Conference on the Law of the Sea: What was Accomplished, in The Law of the Sea (L. Alexander ed. 1967). The Convention on the Continental Shelf became effective as law in the United States eleven years after passage of the Outer Continental Shelf Lands Act and superseded any incompatible terminology in the domestic statute. United States v. Ray, 423 F.2d 16, 21 (5th Cir. 1970). See Cook v. United States, 288 U.S. 102, 118-19, 53 S.Ct. 305, 311, 77 L.Ed. 641, 649-50 (1932). Interpretations of the Convention and the Act by legal scholars have, with remarkable accord, reached the same conclusion regarding the nature of control of the United States over the continental shelf. The most compelling explication of the Convention regarding national control over non-resource-related material in the shelf area is contained in the comments of the International Law Commission: It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil. This comment is consistent with the Commission’s general perception of national jurisdiction over the continental shelf: [The Commission] was unwilling to accept the sovereignty of the coastal State over the seabed and subsoil of the continental shelf. . . . the text as now adopted leaves no doubt that the rights conferred upon the coastal state cover all rights necessary for and connected with the exploration and exploitation of the natural resources of the continental shelf. We have demonstrated the limited scope of American control over the wreck site. We conclude that the remains of the Atocha are not situated on lands owned or controlled by the United States under the provisions of the Antiquities Act. Sovereign Prerogative The United States also claims the treasure as successor to the prerogative rights of the king of England. At first glance the English prerogative would seem irrelevant to the wreck of a Spanish vessel discovered by American citizens off the coast of Florida. The government contends, however, that the English common law rule — granting the Crown title to abandoned property found at sea and reduced to possession by British subjects — is incorporated into American law, and that Congress has specifically asserted jurisdiction over the res in this dispute. While it may be within the constitutional power of Congress to take control of wrecked and abandoned property brought to shore by American citizens (or the proceeds derived from its sale), legislation to that effect has never been enacted. The Antiquities Act, which was intended to facilitate preservation of objects of historical importance, could hardly be read to subrogate the United States to the prerogative rights of the Crown. The Abandoned Property Act, 40 U.S.C. § 310, authorizes the administrator of General Services to protect the interests of the government in wrecked, abandoned, or derelict property “being within the jurisdiction of the United States, and which ought to come to the United States.” But the Abandoned Property Act has limited application. In Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No. 12,154, p. 42 (S.D. Fla.1872), the United States intervened and claimed, as its prerogative, the residue of proceeds after a salvage award from the sale of goods found derelict at sea. The government relied upon the predecessor of 40 U.S.C. § 310 as statutory authority for its claim. In a thorough and scholarly opinion, the district court determined that the Act applied only to property which should belong to the United States as a result of its participation in the War between the States. The judgment was affirmed on appeal without opinion, 21 Fed.Cas. p. 50. The court in United States v. Tyndale, 116 F. 820 (1st Cir. 1902) presented with the same question, held “[t]he resolution of June 21, 1870 (16 Stat. 380), now section 3755 of the Revised Statutes, relates, apparently, to property which ought equitably to go to the United States, and not to wreckage of any kind.” 116 F. at 822. We accord great weight to the decision in Russell, especially since the court was construing legislation then only two years old. However, we believe the less narrow construction accorded the Act in Tyndale is more appropriate in light of continued, through infrequent, use of the Abandoned Property Act by the government to regulate salvage of property abandoned on its lands, Corbino v. United States, 488 F.2d 1008, 203 Ct.Cl. 278 (1973), or property in which it has an equitable claim to ownership, 23 Op.Atty.Gen. 76, 77 (1900) (concerning Spanish vessels lying on Cuban coast, wrecked by naval vessels of United States during Spanish-American War). In any event, the Abandoned Property Act is not a legislative enactment of the sovereign prerogative. Since the United States has no claim of equitable ownership in a Spanish vessel wrecked more than a century before the American Revolution, and the wreck is not “within the jurisdiction of the United States,” the Abandoned Property Act has no application to the present controversy. We have considered other statutes and regulations cited by the United States and find no support for the government’s position in them. The government insists that a legislative assertion of the sovereign prerogative is not a necessary prerequisite to the exercise of that jurisdiction by courts of the United States. A number of the royal colonies having asserted certain prerogative rights to abandoned property found within their jurisdiction, the sovereign prerogative is said to have become a part of American maritime law and practice before the Revolution. After the Revolution, according to Kent, “if found at sea, they [wrecks] are supposed to belong now to the United States, as succeeding in this respect, to the prerogative of the English crown.” In spite of the arguments advanced by Chancellor Kent, the notion of sovereign prerogative never took root in America. One early decision, Peabody v. Proceeds of Twenty-Eight Bags of Cotton, 19 Fed.Cas. No. 10,869, p. 39 (D.Mass.1829), a veritable treatise on the disposition of derelict property found at sea, concluded that sovereign prerogative had become a part of American maritime law. Peabody did not control the decision in Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D.Mass.1901), and it was overruled in United States v. Tyndale, 116 F. 820, 822-23 (1st Cir. 1902). The reasoning of that court is impeccable: Notwithstanding these propositions, the United States rely on the very learned opinion of Judge Davis in Peabody v. Proceeds of 28 Bags of Cotton . . The difficulties which we meet were not considered by Judge Davis, the whole force of whose reasoning only leads up to the proposition, which we admit, that it is within the constitutional powers of congress to take control of this fund, and of others like it. The conclusions which he draws from what was said by Mr. Dane and Chancellor Kent are hardly supported by the text of those learned writers. . * * * it is enough to say that, whatever was the title of the king at common law, it was based on the royal prerogative, was appurtenant to the crown, and was, for the most part, classified among the royal revenues. This is fully explained at various points by Blackstone, and by Lord Chief Justice Hale in “De Jure Maris.” It is clearly summed up by Hall on the Seashore (2d ed.) 80, as follows: “In like manner, wreck (when no owner can be found) is part of the king’s ordinary revenue, in right of his royal prerogative, and is a flower of the crown. So, also, flotsam, jetsam, and ligan are prerequisites of the crown.” All of these could be granted by the king without authority of parliament. A singular instance of this is given by Dane (volume 3, 137) in reference to the grant of the province of Maine from the King to Sir Ferdinando Gorges. While there can be no question that the sovereign peoples in Anglo-Saxon America, whether the various states or the United States, did, in some way, succeed to all the rights of the English king and of the English people, yet, until some recognized line of procedure or some action of congress intervenes, it is not within the province of the courts to determine that the treasury of the United States represents any particular royal prerogative. Other American cases are in accord with Tyndale. See Russell v. Proceeds of Forty Bales Cotton, 21 Fed.Cas. No. 12,154, pp. 42, 45-50 (S.D.Fla.1872), aff’d 21 Fed. Cas. p. 50; In re Moneys in Registry, 170 F. 470, 475 (E.D.Pa.1909); Thompson v. United States, 62 Ct.Cl. 516, 524 (1926). Although at least one state court has invoked English common law to award ownership of a sunken vessel to the sovereign, the “American rule” vesting title in the finder has been widely recognized by courts and writers. See Kenny and Hrussoff, The Ownership of the Treasures of the Sea, 9 Wm. & Mary L.Rev. 383, 392-98 (1967). See also H. Miller, International Law and Marine Ar-chaeology 18 (1971). We accept the “American rule” as it has been uniformly pronounced in the courts of this nation for over a century. Finally, the United States asserts a generalized power to control the activities of its citizens and corporations beyond the limits of territorial jurisdiction. While this power no doubt exists, we can find no authority in law or in reason to countenance interference with plaintiffs’ activities simply because they are American citizens, or because they chose to incorporate in Florida rather than in some other country. The judgment is modified and as modified is AFFIRMED. . Plaintiffs began their salvage operation pursuant to a contract with the state of Florida. Under the contract, the state was entitled to 25% of the finds. The decision in United States v. Florida, 420 U.S. 531, 95 S.Ct. 1162, 43 L.Ed.2d 375 (1975), refuted Florida’s claim to the wreck site, and the contract was can-celled. See also United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). It is undisputed that the wreck lies on the continental shelf, outside the territorial waters of the United States. (A. 68). . Our brief historical summary is based in part on Lyon, The Trouble with Treasure, 149 National Geographic 787 (June 1976). . The fiction of a ship’s personality is criticized in G. Gilmore & C. Black, The Law of Admiralty, 615-22 (2d ed. 1975). . See 7A Moore’s Federal Practice H E.05 at E203-E206 (1977); The Law of Admiralty, supra n.3, at 616 n. 75a. See also 2 E. Benedict, The Law of American Admiralty § 242 (1940). . Plaintiffs strenuously argue that in addition to the artifacts seized and brought within the jurisdiction of the court, the vessel itself was in custodia iegis pursuant to an order of the court. The record lends some support to this contention. On February 26, 1976, the United States moved the court “for an order commanding the United States Marshal for the Southern District of Florida, to arrest and take into custody the defendant vessel, her tackle, apparel, cargo and armament, and to retain the same in his custody until further order of this Court,” and, in the alternative, “for an order continuing its order of October 28, 1976 (sic), appointing plaintiffs custodians of the defendant vessel.” (A. 88). On October 28, 1975, the court had ordered “that TREASURE SALVORS, INC., and ARMADA RESEARCH CORP. be, and are hereby appointed the custodian of said vessel to retain the same in his [sic] custody for possession and safekeeping for the aforementioned compensation until further order of this court,” and had further ordered that “all Marshal’s costs be paid prior to the release of said vessel and all further constructive costs be borne by Plaintiffs.” (A. 51). The Marshal’s return filed November 11, 1975, certifies service of a warrant in rem upon “The unidentified Wrecked and Abandoned Sailing Vessel . . . Located within 2500 yards of a point at coordinate 24°31.5' North Latitude and 82°20' West Longitude, said sailing vessel is believed to be the ‘Nuestra Señora de Atocha’.” (A. 28). . In The Fairisle, 76 F.Supp. 27, 34 (D.Maryland), the court held that owners who appeared in an in rem action to contest the plaintiffs’ claim “may equitably be treated as if they had been brought into court by personal process,” citing The Dictator, L.R. Probate Division 304 (1892). This view was adopted by the Ninth Circuit in Mosher v. Tate, 182 F.2d 475, 479-80 (1950). See The Law of Admiralty, supra n.3, at 802-05. . The government invoked these statutes in its claim of ownership filed in the district court pursuant to admiralty rule 6(c). (A. 6-7). . On February 19, 1976, the district court entered the following order of final judgment: Pursuant to this Court’s opinion Order of Summary Judgment' of February 2, 1976, it is ORDERED and ADJUDGED that judgment be and the same hereby is entered in favor of plaintiffs and against the United States of America and all other claimants. The Counterclaim of the United States of America is hereby dismissed with prejudice. It is further ORDERED that plaintiffs, Treasure Salvors, Inc. and Armada Research Corporation, are confirmed in their sole title to, and right to immediate and sole possession of, the vessel identified in this matter as “Nuestra Señora de Atocha “together with all her tackle, armament, apparel and cargo, wherever the same may be found. It is further ORDERED and ADJUDGED that no person, organization or governmental agency shall interfere with the plaintiffs in the lawful exercise of their right to possession or of their salvage rights in the vessel, tackle, armament, apparel and cargo. Jurisdiction of this matter is hereby retained for the purpose of enforcement of this Order. (A. 86-87). . The parties stipulated that “the wreck believed to be the Nuestra Señora de Atocha, her tackle, armament, apparel and cargo has been abandoned by its original owners.” (A. 69) . See Eleazer, The Recovery of Vessels, Aircraft, and Treasure In International Water 34— 35, in Some Current Sea Law Problems, (S. Wurfel ed. 1975) (University of North Carolina Sea Grant Publication No. U.N.C.-SG-75-06). . Norris raises the spectre of violent clashes between competing finders in international waters if abandoned property is held to be a find. Norris, supra at § 158 (Supp.1974). We fail to see how salvage law, which gives the right of possession to first salvors, Norris, supra at § 152, would provide a more effective deterrent to such clashes. Under either doctrine the property or an award for the value of the salvage efforts goes to the one who is first able to seize possession. The primary difference between the two doctrines is that under salvage law the claim of the finder of abandoned property is satisfied by proceeds from the sale of the property paid into court. See Norris, supra at § 156. . See Brady v. S.S. African Queen, 179 F.Supp. 321, 324 (E.D.Va.1960). . According to Norris, The Law of Salvage § 185 (1958), “[t]he peril required in a salvage service need not necessarily be one of imminent and absolute danger. The property must be in danger, either presently or reasonably to be apprehended.” See Fort Myers Shell & Dredging Co. v. Barge NBC512, 404 F.2d 137, 139 (5th Cir. 1968). . The continental shelf is defined as the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas. This is a legal, not a geological, definition. The territorial sea of the United States includes those waters lying not more than three miles (or three marine leagues in the Gulf of Mexico in the case of certain Gulf states) from the baseline (the artificial coast line). All parts of the sea not included in the territorial or internal waters of a nation constitute high seas. Nations maintain limited jurisdiction over waters lying not more than twelve miles from the baseline, in order to prevent or punish infringement of customs, fiscal, immigration or sanitary regulations within their territory or territorial sea. This belt of limited control is the contiguous zone. See generally Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964; Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, in force Sept. 10, 1964; Convention on the High Seas, done April 29, 1958, [1962] 13 U.S.T. 2312, T.I.A.S. No. 5200, in force Sept. 30, 1962; Report of Albert B. Maris, Special Master, United States v. Maine 65-68 (No. 35 Original, August 27, 1974) [hereinafter Master’s Report]; Note, Marine Archaeology and International Law: Background and Some Suggestions, 9 San Diego L.Rev. 668, 673-77 (1972) [hereinafter Note, Marine Archaeology], . Pres.Proc. No. 2667, 10 Fed.Reg. 12303, 59 Stat. 884. . Convention on the Continental Shelf, done April 29, 1958, [1964] 15 U.S.T. 471, T.I.A.S. No. 5578, in force June 10, 1964. . United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950). . . . the jurisdiction and control of the United States is extended to the seabed and subsoil of the entire outer Continental Shelf adjacent to the shores of the United States instead of merely to the natural resources of the subsoil and seabed as in the original House version . . . Conf.Rep. No. 1031, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin.News 1953, p. 2184. . House Report No. 413, 83rd Cong., 1st Sess. (1953), reported at 2 U.S.Code Cong. & Admin. News 1953, p. 2177. . Natural resources are defined in Article 2 as “the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. . See Perry, Sovereign Rights in Sunken Treasures, 7 Land and Natural Resources Division Journal 89, 111-12 (1969); H. Miller, International Law and Marine Archaeology 22, 25-26 (1971) (monograph by Counsel to Subcommittee on Oceans and Atmosphere, Committee on Commerce, United States Senate, published by Academy of Applied Science); Note, Marine Archaeology, 9 San Diego L.Rev. 668, 675, 686, 697 (1972). . 11 U.S. GAOR, Supp. 9 at 42, U.N. Doc. A/3159 (1956). . Id, In the same vein: The Commission accepted the idea that the coastal State may exercise control and jurisdiction over the continental shelf, with the proviso that such control and jurisdiction shall be exercised solely for the purpose of exploiting its resources; and it rejected any claim to sovereignty or jurisdiction over the superjacent waters. Id. at 40. . We note that even were we to find that the Antiquities Act did cover this salvage operation, its enforcement provision, 16 U.S.C. § 433, has been held unconstitutionally vague. United States v. Diaz, 499 F.2d 113 (9th Cir. 1974). . The decision in The Aquila, 1 C. Rob. 36, 41-42, 165 Eng.Rep. 87, 89 (1798), is often referred to: It is certainly very true that property may be so acquired [by finding and possession]: but the question is, to whom is it acquired? By the law of nature, to the individual finder or occupant: But in a state of civil society, although property may be acquired by occupancy, it is not necessarily acquired to the occupant himself; for the positive regulations of the State may have made alterations on the subject; and may, for reasons of public peace and policy, have appropriated it to other persons, as, for instance, to the State itself, or to its grantees. It will depend, therefore, on the law of each country to determine, whether property so acquired by occupancy, shall accrue to the individual finder, or to the sovereign and his representatives? and I consider it to be the general rule of civilized countries, that what is found derelict on the seas, is acquired beneficially for the sovereign, if no owner shall appear. Selden (De Don. Maris, lib. i, c. 24) lays it down as a right annexed to sovereignty, and acknowledged amongst all nations ancient and modem. Loccenius (Lib. i, c. 7, 10) mentions it as an incontestable right of sovereignty in the north of Europe. Valin (Lib. iv, tit. 9, art. 26) ascribes the same right to the crown of France . . .. In England this right is as firmly established as any one prerogative of the crown. . . . . 16 Stat. 380 (1870). The statute originally authorized the Secretary of the Treasury “to make such contracts and provisions as he may deem most advantageous for the interests of the government, for the preservation, sale, or collection, of any property, or the proceeds thereof which may have been wrecked, abandoned, or become derelict, being within the jurisdiction of the' United States, and which ought to come to the United States, [and any moneys, dues, and other interests, lately in the possession of or due to the so called Confederate States, or their agents, and now belonging to the United States, which are now held or retained by any person, corporation or municipality whatever, and which ought to have come into the possession and custody of, or been collected or received by, the United States.”] The bracketed clause was omitted as obsolete when the statute was codified. . “The naval and military operations, both of the United States and the so-called Confederate States during the late war, had strewn the harbors of the entire coast with numerous wrecks, and also many portions of the country with abandoned or derelict property, that rightfully ‘should come to the United States,’ either from being originally the property of the United States, or the property of the public enemy, or from having been engaged in violating the blockade. The continuation of the resolution points more plainly at the fact that in the mind of the legislator the property, dues, and claims ‘that ought to come to the United States’ through the late war were intended, and no others.” 21 Fed.Cas. at p. 43. . The government intervened in an action by the salvors for the residue of money recovered from a body found at sea. The court had retained the money remaining after payment of a liberal salvage award in its registry for two years. The action in the district court is reported as Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D.Mass.1901). . See Perry, Sovereign Rights in Sunken Treasure, 7 Land and Natural Resources Division Journal 89, 97-104 (1969), for a description of the aforementioned cases. He also cites unpublished Treasury Department memorandum opinions, e. g., Treasury File Op. No. 195, Oct. 16, 1936, construing 40 U.S.C. § 310 to give the United States no authority to claim derelict property in which the United States has no property interest. Id. at 102. . See 2 Kent, Commentaries on American Law 359-60 (5th ed. 1844). Cf. Thompson v. The Catharina, 23 Fed.Cas. No. 13,949, pp. 1028, 1030 (D.Pa.1795) (“[T]he change in the form of our government has not abrogated all the laws, customs and principles of jurisprudence, we inherited from our ancestors, and possessed at the period of our becoming an independent nation.”) . 2 Kent at 359. . However, the court was reluctant to adopt the strict English practice of vesting property absolutely in the sovereign if unclaimed within a year and a day from the decree of salvage. He preferred “to consider the sovereign authority as holding such property in trust, to be surrendered to reasonable claims which may be presented.” 19 Fed.Cas. at p. 48. . Ervin v. Massachusetts Co., 95 So.2d 902 (Fla. 1956), cert. denied, 355 U.S. 881, 78 S.Ct. 147, 2 L.Ed.2d 112 (1957). . “ . . . [I]t is somewhat difficult to assess the place of State ex rel. Ervin v. Massachusetts Co. in American law. In any event, in the federal courts it remains the settled rule that, after the original owner, the finder’s claim is preferred to the sovereign’s.” Id. at 398. . Eleazer, supra n. 10, at 34, reaches the following conclusion concerning the applicable rules: The nations of the world fall into two groups, generally speaking, as regards the ownership of recovered treasure. For the sake of clarity, the first group will be said to adhere to the English Rule — recovered treasure belongs to the sovereign. The second group adheres to the American Rule — recovered treasure belongs to the finder. The crucial characteristic to note is that title to recovered treasure vests in either the sovereign or the finder, (footnote omitted) . We are cited to the controls over American fishermen on the high seas, including the North Pacific Fisheries Act, 16 U.S.C. § 1021 et seq., the Northwest Atlantic Fisheries Act, 16 U.S.C. § 981 et seq., and the Tuna Conventions Act, 16 U.S.C. § 951 et seq.

Cappaert v. United States

Me. Chief Justice Burger delivered the opinion of the Court. The question presented in this litigation is whether the reservation of Devil's Hole as a national monument reserved federal water rights in unappropriated water. Devil’s Hole is a deep limestone cavern in Nevada. Approximately 50 feet below the opening of the cavern is a pool 65 feet long, 10 feet wide, and at least 200 feet deep, although its actual depth is unknown. The pool is a remnant of the prehistoric Death Valley Lake System and is situated on land owned by the United States since the Treaty of Guadalupe Hidalgo in 1848, 9 Stat. 922. By the Proclamation of January 17, 1952, President Truman withdrew from the public domain a 40-acre tract of land surrounding Devil’s Hole, making it a detached component of the Death Valley National Monument. Proclamation No. 2961, 3 CFR 147 (1949-1953 Comp.) , The Proclamation was issued under the American Antiquities Preservation Act, 34 Stat. 225, 16 U. S. C. § 431, which authorizes the President to declare as national monuments “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States . . . The 1952 Proclamation notes that Death Valley was set aside as a national monument “for the preservation of the unusual features of scenic, scientific, and educational interest therein contained.” The Proclamation also notes that Devil’s Hole is near Death Valley and contains a “remarkable underground pool.” Additional preambulary statements in the Proclamation explain why Devil’s Hole was being added to the Death Valley National Monument: “Whereas the said pool is a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System, and is unusual among caverns in that it is a solution area in distinctly striated limestone, while also owing its formation in part to fault action; and “Whereas the geologic evidence that this subterranean pool is an integral part of the hydrographic history of the Death Valley region is further confirmed by the presence in this pool of a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region; and “Whereas the said pool is of such outstanding scientific importance that it should be given special protection, and such protection can be best afforded by making the said forty-acre tract containing the pool a part of the said monument . . . .” The Proclamation provides that Devil’s Hole should be supervised, managed, and directed by the National Park Service, Department of the Interior. Devil's Hole is fenced off, and only limited access is allowed by the Park Service. The Cappaert petitioners own a 12,000-acre ranch near Devil's Hole, 4,000 acres of which are used for growing Bermuda grass, alfalfa, wheat, and barley; 1,700 to 1,800 head of cattle are grazed. The ranch represents an investment of more than $7 million; it employs more than 80 people with an annual payroll of more than $340,000. In 1968 the Cappaerts began pumping groundwater on their ranch on land 2y2 miles from Devil's Hole; they were the first to appropriate groundwater. The groundwater comes from an underground basin or aquifer which is also the source of the water in Devil's Hole. After the Cappaerts began pumping from the wells near Devil’s Hole, which they do from March to October, the summer water level of the pool in Devil’s Hole began to decrease. Since 1962 the level of water in Devil's Hole has been measured with reference to a copper washer installed on one of the walls of the hole by the United States Geological Survey. Until 1968, the water level, with seasonable variations, had been stable at 1.2 feet below the copper marker. In 1969 the water level in Devil’s Hole was 2.3 feet below the copper washer; in 1970, 3.17 feet; in 1971, 3.48 feet; and, in 1972, 3.93 feet. When the water is at the lowest levels, a large portion of a rock shelf in Devil’s Hole is above water. However, when the water level is at 3.0 feet below the marker or higher, most of the rock shelf is below water, enabling algae to grow on it. This in turn enables the desert fish (cyprinodon diabolis, commonly known as Devil’s Hole pupfish), referred to in President Truman’s Proclamation, to spawn in the spring. As the rock shelf becomes exposed, the spawning area is decreased, reducing the ability of the fish to spawn in sufficient quantities to prevent extinction. In April 1970 the Cappaerts, pursuant to Nevada law, Nev. Rev. Stat. §533.325 (1973), applied to the State Engineer, Roland D. Westergard, for permits to change the use of water from several of their wells. Although the United States was not a party to that proceeding and was never served, employees of the National Park Service learned of the Cappaerts’ application through a public notice published pursuant to Nevada law. § 533.360. An official of the National Park Service filed a protest as did a private firm. Nevada law permits interested persons to protest an application for a permit; the protest may be considered by the State Engineer at a hearing. § 533.365. A hearing was conducted on December 16, 1970, and a field solicitor of the Department of the Interior appeared on behalf of the National Park Service. He presented documentary and testimonial evidence, informing the State Engineer that because of the declining water level of Devil’s Hole the United States had commissioned a study to determine whether the wells on the Cappaerts’ land were hydrologically connected to Devil’s Hole and, if so, which of those wells could be pumped safely and which should be limited to prevent lowering of the water level in Devil’s Hole. The Park Service field solicitor requested either that the Cappaerts’ application be denied or that decision on the application be postponed until the studies were completed. The State Engineer declined to postpone decision. At the conclusion of the hearing he stated that there was no recorded federal water right with respect to Devil’s Hole, that the testimony indicated that the Cappaerts’ pumping would not unreasonably lower the water table or adversely affect existing water rights, and that the permit would be granted since further economic development of the Cappaerts’ land would be in the public interest. In his oral ruling the State Engineer stated in part that “the protest to the applications that are the subject of this hearing are overruled and the applications will be issued subject to existing rights.” The National Park Service did not appeal. See Nev. Rev. Stat. § 533.450 (1973). In August 1971 the United States, invoking 28 U. S. C. § 1345, sought an injunction in the United States District Court for the District of Nevada to limit, except for domestic purposes, the Cappaerts’ pumping from six specific wells and from specific locations near Devil’s Hole. The complaint alleged that the United States, in establishing Devil’s Hole as part of Death Valley National Monument, reserved the unappropriated waters appurtenant to the land to the extent necessary for the requirements and purposes of the reservation. The complaint further alleged that the Cappaerts had no perfected water rights as of the date of the reservation. The United States asserted that pumping from certain of the Cappaerts’ wells had lowered the water level in Devil’s Hole, that the lower water level was threatening the survival of a unique species of fish, and that irreparable harm would follow if the pumping were not enjoined. On June 2, 1972, the United States filed an amended complaint, adding two other specified wells to the list of those to be enjoined. The Cappaerts answered, admitting that their wells draw water from the same underlying sources supplying Devil’s Hole, but denying that the reservation of Devil’s Hole reserved any water rights for the United States. The Cappaerts alleged that the United States was estopped from enjoining use of water under land which it had exchanged with the Cappaerts. The State of Nevada intervened on behalf of the State Engineer as a party defendant but raised no affirmative defenses. On June 5, 1973, the District Court, by Chief Judge Roger D. Foley, entered a preliminary injunction limiting pumping from designated wells so as to return the level of Devil’s Hole to not more than 3.0 feet below the marker. Detailed findings of fact were made and the District Judge then appointed a Special Master to establish specific pumping limits for the wells and to monitor the level of the water at Devil’s Hole. The District Court found that the water from certain of the wells was hydrologically connected to Devil’s Hole, that the Cappaerts were pumping heavily from those wells, and that that pumping had lowered the water level in Devil’s Hole. The court also found that the pumping could be regulated to stabilize the water level at Devil’s Hole and that neither establishing an artificial shelf nor transplanting the fish was a feasible alternative that would preserve the species. The District Court further found that if the injunction did not issue “there is grave danger that the Devil’s Hole pupfish may be destroyed, resulting in irreparable injury to the United States.” 375 F. Supp. 456, 460 (1974). The District Court then held that in establishing Devil’s Hole as a national monument, the President reserved appurtenant, unappropriated waters necessary to the purpose of the reservation; the purpose included preservation of the pool and the pupfish in it. The District Court also held that the federal water rights antedated those of the Cappaerts, that the United States was not estopped, and that the public interest required granting the injunction. On April 9, 1974, the District Court entered its findings of fact and conclusions of law substantially unchanged in a final decree permanently enjoining pumping that lowers the level of the water below the 3.0-foot level. 375 F. Supp. 456 (1974). The Court of Appeals for the Ninth Circuit affirmed, 508 F. 2d 313 (1974), in a thorough opinion by Senior District Judge Gus J. Solomon, sitting by designation, holding that the implied-reservation-of-water doctrine applied to groundwater as well as to surface water. The Court of Appeals held that “[t]he fundamental purpose of the reservation of the Devil’s Hole pool was to assure that the pool would not suffer changes from its condition at the time the Proclamation was issued in 1952 . . . .” Id., at 318. The Court of Appeals further held that neither the Cappaerts nor their successors in interest had any water rights in 1952, nor was the United States estopped from asserting its water rights by exchanging land with the Cappaerts. In answer to contentions raised by the intervenor Nevada, the Court of Appeals held that “the United States is not bound by state water laws when it reserves land from the public domain,” id., at 320, and does not need to take steps to perfect its rights with the State; that the District Court had concurrent jurisdiction with the state courts to resolve this claim; and, that the state administrative procedures granting the Cappaerts’ permit did not bar resolution of the United States’ suit in Federal District Court. We granted certiorari to consider the scope of the implied-reservation-of-water-rights doctrine. 422 U. S. 1041 (1975). We affirm. I Reserved-Water-Rights Doctrine This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams. Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976); United States v. District Court for Eagle County, 401 U. S. 520, 522-523 (1971); Arizona v. California, 373 U. S. 546, 601 (1963); FPC v. Oregon, 349 U. S. 435 (1955); United States v. Powers, 305 U. S. 527 (1939); Winters v. United States, 207 U. S. 564 (1908). Nevada argues that the cases establishing the doctrine of federally reserved water rights articulate an equitable doctrine calling for a balancing of competing interests. However, an examination of those cases shows they do not analyze the doctrine in terms of a balancing test. For example, in Winters v. United States, supra, the Court did not mention the use made of the water by the upstream landowners in sustaining an injunction barring their diversions of the water. The “Statement of the Case” in Winters notes that the upstream users were homesteaders who had invested heavily in dams to divert the water to irrigate their land, not an unimportant interest. The Court held that when the Federal Government reserves land, by implication it reserves water rights sufficient to accomplish the purposes of the reservation. In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created. See, e. g., Arizona v. California, supra, at 599-601; Winters v. United States, supra, at 576. Both the District Court and the Court of Appeals held that the 1952 Proclamation expressed an intention to reserve unappropriated water, and we agree. The Proclamation discussed the pool in Devil’s Hole in four of the five preambles and recited that the “pool . . . should be given special protection.” Since a pool is a body of water, the protection contemplated is meaningful only if the water remains; the water right reserved by the 1952 Proclamation was thus explicit, not implied. Also explicit in the 1952 Proclamation is the authority of the Director of the Park Service to manage the lands of Devil’s Hole Monument “as provided in the act of Congress entitled 'An Act to establish a National Park Service, and for other purposes,’ approved August 25,1916 (39 Stat. 535; 16 U. S. C. 1-3) . . . .” The National Park Service Act provides that the “fundamental purpose of the said parks, monuments, and reservations” is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 39 Stat. 535, 16 U. S. C. § 1. The implied-reservation-of-water-rights doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. Arizona v. California, supra, at 600-601. Here the purpose of reserving Devil’s Hole Monument is preservation of the pool. Devil’s Hole was reserved “for the preservation of the unusual features of scenic, scientific, and educational interest.” The Proclamation notes that the pool contains “a peculiar race of desert fish . . . which is found nowhere else in the world” and that the “pool is of . . . outstanding scientific importance . . . .” The pool need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. The fish are one of the features of scientific interest. The preamble noting the scientific interest of the pool follows the preamble describing the fish as unique; the Proclamation must be read in its entirety. Thus, as the District Court has correctly determined, the level of the pool may be permitted to drop to the extent that the drop does not impair the scientific value of the pool as the natural habitat of the species sought to be preserved. The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil’s Hole, thus implementing the stated objectives of the Proclamation. Petitioners in both cases argue that even if the intent of the 1952 Proclamation were to maintain the pool, the American Antiquities Preservation Act did not give the President authority to reserve a pool. Under that Act, according to the Cappaert petitioners, the President may reserve federal lands only to protect archeologic sites. However, the language of the Act which authorizes the President to proclaim as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government” Is not so limited. The pool in Devil’s Hole and its rare inhabitants are “objects of historic or scientific interest.” See generally Cameron v. United States, 252 U. S. 450, 451-456 (1920). II Groundwater No cases of this Court have applied the doctrine of implied reservation of water rights to groundwater. Nevada argues that the implied-reservation doctrine is limited to surface water. Here, however, the water in the pool is surface water. The federal water rights were being depleted because, as the evidence showed, the “[gjroundwater and surface water are physically interrelated as integral parts of the hydrologic cycle.” C. Corker, Groundwater Law, Management and Administration, National Water Commission Legal Study No. 6, p. xxiv (1971). Here the Cappaerts are causing the water level in Devil’s Hole to drop by their heavy pumping. See Corker, supra; see also Water Policies for the Future- — -Final Report to the President and to the Congress of the United States by the National Water Commission 233 (1973). It appears that Nevada itself may recognize the potential interrelationship between surface and ground water since Nevada applies the law of prior appropriation to both. Nev. Rev. Stat. §§ 533.010 et seq., 534.020, 534.080, 534.090 (1973). See generally F. Tre-lease, Water Law — Resource Use and Environmental Protection 457-552 (2d ed. 1974); C. Meyers & A. Tar-lock, Water Resource Management 553-634 (1971). Thus, since the implied-reservation-of-water-rights doctrine is based on the necessity of water for the purpose of the federal reservation, we hold that the United States can protect its water from subsequent diversion, whether the diversion is of surface or ground water. Ill State Law Petitioners in both cases argue that the Federal Government must perfect its implied water rights according to state law. They contend that the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, and its predecessors severed nonnavigable water from public land, subjecting it to state law. That Act, however, provides that patentees of public land acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law. Cali fornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 162 (1935); see Morreale, Federal-State Conflicts Over Western Waters — A Decade of Attempted “Clarifying Legislation,” 20 Rutgers L. Rev. 423, 432 (1966). This Court held in FPC v. Oregon, 349 U. S. 435, 448 (1955), that the Desert Land Act does not apply to water rights on federally reserved land. The Cappaert petitioners argue that FPC v. Oregon, supra, must be overruled since, inter alia, the Court was unaware at the time that case was decided that there was no longer any public land available for homesteading. However, whether or not there was public land available for homesteading in 1955 is irrelevant to the meaning of the 1877 Act. The Desert Land Act still provides that the water rights of those who received their land from federal patents are to be governed by state law. That there may be no more federal land available for homesteading does not mean the Desert Land Act now applies to all federal land. Since the Act is inapplicable, determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation; the fact that the water rights here reserved apply to nonnavigable rather than navigable waters is thus irrelevant. Since FPC v. Oregon, supra, was decided, several bills have been introduced in Congress to subject at least some federal water uses to state appropriation doctrines, but none has been enacted into law. The most recent bill, S. 28, 92d Cong., 1st Sess., was introduced on January 25, 1971, and reintroduced under the same number in the 93d Cong., 1st Sess., on January 4, 1973. See Morreale, supra. Federal water rights are not dependent upon state law or state procedures and they need not be adjudicated only in state courts; federal courts have jurisdiction under 28 U. S. C. § 1345 to adjudicate the water rights claims of the United States. Colorado River Water Cons. Dist. v. United States, 424 U. S., at 807-809. The McCarran Amendment, 66 Stat. 560, 43 U. S. C. § 666, did not repeal § 1345 jurisdiction as applied to water rights. 424 U. S., at 808-809. Nor, as Nevada suggests, is the McCarran Amendment a substantive statute, requiring the United States to “perfect its water rights in the state forum like all other land owners.” Brief for Nevada 37. The McCarran Amendment waives United States sovereign immunity should the United States be joined as a party in a state-court general water rights’ adjudication, Colorado River Water Cons. Dist. v. United States, supra, at 808, and the policy evinced by the Amendment may, in the appropriate case, require the United States to adjudicate its water rights in state forums. Id., at 817-820. IY Res Judicata Finally, Nevada, as intervenor in the Cappaerts’ suit, argued in the Court of Appeals that the United States was barred by res judicata or collateral estoppel from litigating its water-rights claim in federal court. Nevada bases this conclusion on the fact that the National Park Service filed a protest to the Cappaerts’ pumping permit application in the state administrative proceeding. Since we reject that contention, we need not consider whether the issue was timely and properly raised. We note only that the United States was not made a party to the state administrative proceeding; nor was the United States in privity with the Cappaerts. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, 402 U. S. 313, 320-326 (1971). When the United States appeared to protest in the state proceeding it did not assert any federal water-rights claims, nor did it seek to adjudicate any claims until the hydrological studies as to the effects of the Cappaerts’ pumping had been completed. The fact that the United States did not attempt to adjudicate its water rights in the state proceeding is not significant since the United States was not a party. The State Water Engineer’s decree explicitly stated that it was “subject to existing rights”; thus, the issue raised in the District Court was not decided in the proceedings before the State Engineer. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, supra, at 323. Cf. United States v. Utah Constr. & Min. Co., 384 U. S. 394, 422 (1966). We hold, therefore, that as of 1952 when the United States reserved Devil’s Hole, it acquired by reservation water rights in unappropriated appurtenant water sufficient to maintain the level of the pool to preserve its scientific value and thereby implement Proclamation No. 2961. Accordingly, the judgment of the Court of Appeals is Affirmed. The final paragraphs of the Proclamation withdrawing Devil’s Hole from the public domain recite: “Now, Therefore, I, Harry S. Truman, President of the United States of America, under and by virtue of the authority vested in me by section 2 of the act of June 8, 1906, 34 Stat. 225 (16 U. S. C. 431), do proclaim that, subject to the provisions of the act of Congress approved June 13, 1933, 48 Stat. 139 (16 U. S. C. 447), and to all valid existing rights, the following-described tract of land in Nevada is hereby added to and reserved as a part of the Death Valley National Monument, as a detached unit thereof: “Mount Diablo Meridian, Nevada T. 17 S., R. 50 E., sec. 36, SW %SE%. “Warning is hereby expressly given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this addition to the said monument and not to locate or settle on any of the lands thereof.” Title 28 U. S. C. § 1345 provides as follows: “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.” On appeal from the preliminary injunction, the Court of Appeals, in response to a motion from the Cappaerts to modify the injunction to permit them to pump to 3.7 feet below the copper marker, had permitted the Cappaerts to pump so long as the water level did not drop more than 3.3 feet below the marker. 483 F. 2d 432 (1973). Nevada is asking, in effect, that the Court overrule Arizona v. California, 373 U. S. 546 (1963), and United States v. District Court for Eagle County, 401 U. S. 520 (1971), to the extent that they hold that the implied-reservation doctrine applies to all federal enclaves since in so holding those cases did not balance the “competing equities.” Brief for Nevada 15. However, since balancing the equities is not the test, those cases need not be disturbed. The District Court and the Court of Appeals correctly held that neither the Cappaerts nor their predecessors in interest had acquired any water rights as of 1952 when the United States’ water rights vested. Part of the land now comprising the Cappaerts’ ranch was patented by the United States to the Cappaerts’ predecessors as early as 1890. None of the patents conveyed water rights because the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, provided that such patents pass title only to land, not water. Pat-entees acquire water rights by “bona fide prior appropriation,” as determined by state law. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142 (1935). Under Nevada law water rights can be created only by appropriation for beneficial use. Nev. Rev. Stat. §§ 533.030, 534.020, 533.325 (1973). Jones v. Adams, 19 Nev. 78, 6 P. 442 (1885). Under the doctrine of prior appropriation, the first to divert and use water beneficially establishes a right to its continued use as Jong as the water is beneficially diverted. See Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976). See also J. Sax, Water Law, Planning & Policy — Cases and Materials, 218-224 (1968). Neither the Cappaerts nor their predecessors in interest appropriated any water until after 1952. Some Cappaert wells are on land acquired from the United States in 1969 through a land exchange under § 8 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended, 43 U. S. C. § 315g (b). In this exchange the Cappaerts received land within one mile of Devil’s Hole under a patent granting them "all rights, privileges, immunities and appurtenances . . . subject to any vested and accrued water rights for mining, agriculture, manufacturing or other ;purposes. . . .” (Emphasis supplied.) The federal water rights in Devil’s Hole had vested 17 years before that exchange. The 1952 Proclamation forbids unauthorized persons to “appropriate, injure, destroy, or remove any feature” from the reservation. Since water is a “feature” of the reservation, the Cappaerts, by their pumping, are “appropriating” or “removing” this feature in violation of the Proclamation. Petitioners in both cases argue that the effect of applying the implied-reservation doctrine to diversions of groundwater is to prohibit pumping from the entire 4,500 square miles above the aquifer that supplies water to Devil's Hole. First, it must be emphasized that the injunction limits but does not prohibit pumping. Second, the findings of fact in this case relate only to wells within 2% miles of Devil’s Hole. No proof was introduced in the District Court that pumping from the same aquifer that supplies Devil’s Hole, but at a greater distance from Devil’s Hole, would significantly lower the level in Devil’s Hole. Nevada notes that such pumping “will in time affect the water level in Devil’s Hole.” Brief for Nevada 25. There was testimony from a research hydrologist that substantial pumping 40 miles away “[ojver a period of perhaps decades [would have] a small effect.” App. 79. The predecessors of the Desert Land Act of 1877 are the Act of July 26, 1866, c. 262, 14 Stat. 251, and the Act of July 9, 1870, 16 Stat. 217. Those Acts provided that water rights vested under state law or custom are protected. However, the Cappaerts did not have any vested water rights in 1952. See n. 5, supra. The cases relied upon by the Cappaerts are not to the contrary. E. g., United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950); Ickes v. Fox, 300 U. S. 82 (1937); Dority v. New Mexico ex rel. Bliss, 341 U. S. 924 (1951). None involve a federal reservation and all involve a determination whether water rights had vested under state law. Here a federal reservation is involved and neither the Cappaerts nor their predecessors in interest had any vested water rights in 1952 when the United States’ water rights vested. Nebraska v. Wyoming, 325 U. S. 589 (1945), also relied upon by the Cappaerts, involved a federal reservation pursuant to the Reclamation Act of June 17, 1902, 32 Stat. 388, which directs the Secretary of the Interior to “proceed in conformity with [state] laws” and which provides that “the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” In Nebraska v. Wyoming, the Court noted that the United States had acted in conformity with state law. The Court said: “We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. No such attempt was made.” 325 U. S., at 615. Here the United States acquired reserved water rights through a reservation authorized, not by the Reclamation Act, but by the Antiquities Act. Nevada argues that the discussion of the implied-reservation doctrine in FPC v. Oregon was dictum as that case involved the supremacy of the Federal Power Act, 49 Stat. 863, 16 U. S. C. §§ 791a-825r (1952 ed., Supp. II) over state law. To the extent that the Federal Power Act authorized reservation of unappropriated water for the electrical needs of the federal project, so too did the Antiquities Act authorize implicit reservation of unappropriated water for the purposes of the Devil’s Hole reservation. See n. 2, supra. The eases petitioners in both cases rely upon involve parties who collaterally attacked an administrative determination. Here the United States was never a party. The United States requested either that the permits be denied or decision postponed until the studies were completed. While the State Engineer did not postpone decision on the permit application, the Cappaerts’ attorney said that the studies “will go forward whether or not the applications are granted; so let’s not make the mistake of thinking that if these applications are granted the studies are moot, they are not.” App. 307.

Wyoming Sawmills Inc. v. United States Forest Service

HOLLOWAY, Circuit Judge. Plaintiff-appellant Wyoming Sawmills Incorporated brings this appeal from the district court’s order dismissing plaintiffs claim of violation of the Constitution’s Establishment Clause and holding against plaintiff on the merits of its claims of violation of the National Forest Management Act. Plaintiff commenced this action in the district court after the United States Forest Service had rejected plaintiffs challenges to the Historic Preservation Plan issued by the Forest Service for the management of the Medicine Wheel National Historic Landmark and Vicinity. Named as defendants in the complaint were the Forest Service, the Secretary of Agriculture (who is the cabinet officer with authority over the Forest Service), and three individual officers of the Service, all of whom will be referred to herein as the Forest Service or just the Service. The Medicine Wheel Coalition on Sacred Sites of North America was permitted to intervene in the district court and is aligned with the Service as an appellee in this court. I The Medicine Wheel National Historic Landmark was created in 1969 to preserve the Medicine Wheel, a prehistoric stone circle about 80 feet in diameter that was constructed by the aboriginal peoples of North America. The wheel includes a large cairn in the center and 28 radiating spokes of rocks. Although the age of the structure is unknown, archeological evidence indicates that human presence in the area goes back for 7,500 years or more. Many tepee rings, trails, and other artifacts and traces of human habitation are found in the vicinity. A number of Native American tribes consider the Wheel to be sacred. The Medicine Wheel is- located on Medicine Mountain in the Bighorn National Forest in north central Wyoming. In 1957, approximately 200 acres in the Bighorn National Forest were set aside for the preservation of the Wheel, and designation as a National Historic Landmark followed twelve years later. In the 1980s, the Forest Service began to reconsider the level of protection afforded the area. An increase in the number of visitors to the monument had raised concerns of visitor safety and concern that the features and artifacts were at risk. On the other hand, apparently some officials were of the view that the flow of visitors should be facilitated. In 1991, the process resulted in the publication of a Draft Environmental Impact Statement (DEIS) which set out management alternatives. The preferred alternative set out in the DEIS called for road construction and improvements to allow unrestricted vehicular access except during times of ceremonial use of the Wheel, construction of an enlarged parking lot adjacent to the Wheel, and so forth. The Forest Service received more than 300 comments on the DEIS, many of which were critical and called for an approach more sensitive to the concerns of Native Americans. In response, the Service withdrew the proposal and began a more intensive consultation process with the Wyoming State Historic preservation Officer and the federal Advisory Council on Historic Preservation. The Big Horn County Commissioners, the Medicine Wheel Coalition on Sacred Sites of North America, the Medicine Wheel Alliance, and the Federal Aviation Administration also became “Consulting Parties” in the development of plans for management of the site. The Consulting Parties entered into a Memorandum of Agreement (MOA) which established that “the management priorities for management for the Medicine Wheel are its protection and continued traditional cultural use consistent with Section 110(f) of the [National Historic Preservation] Act.” I Aplt.App. 91. The Consulting Parties comprised a committee for planning management of the site. Plaintiff notes that no representative of commercial interests was involved in this process. The Forest Service agreed in the MOA to close a portion of Forest Development Road (FDR) 12, which provides access to the Medicine Wheel; an exemption to the closing was made for the “special needs of traditional religious practitioners” to reach the site. (As will be seen, the alleged impact on logging of the decision to close FDR 12 is important to plaintiffs action). The term of the MOA appears to have been quite brief; it apparently was executed in mid-1993 and provided that it was to expire on January 1, 1994. On August 29, 1994, the Forest Service published a Programmatic Agreement with the Consulting Parties, the stated purpose of which was to develop a plan for the long term management of the Medicine Wheel and Medicine Mountain. As part of this agreement, the Service prohibited, temporarily, any new “undertakings” in an area within 2.5 miles of the Medicine Wheel, including any new mining or timber harvesting, until the anticipated Historic Preservation Plan could be completed and adopted. In September 1996, the Service adopted the long-term plan now at issue, titled the Historic Preservation Plan for the Medicine Wheel National Historic Landmark and Medicine Mountain (the HPP). The Service implemented the HPP on October 7, 1996, by issuing Amendment 12 to the Bighorn National Forest Plan; Amendment 12 included a “Decision Notice and Finding of No Significant Impact,” and Environmental Assessment. III Aplt.App. 573 et seq. The HPP provides that the Forest Service will consult with the other parties to the HPP for any project within an “Area of Consultation” around the monument. The “Area of Consultation” is considerably larger than the National Historic Landmark, covering an estimated 18,000 to 20,-000 acres. The purpose of the consultation envisioned by the HPP is to facilitate the consideration of means to minimize impacts to historic resources and traditional cultural use. The HPP recognizes explicitly that the cultural and historic importance of the Medicine Wheel is, for many Native Americans, an element of their religious tradition. Indeed, plaintiff points to the fact that the first page of each of the nine major sections of the HPP includes this statement: “The purpose of this HPP is to ensure that the Medicine Wheel and Medicine Mountain are managed in a manner that protects the integrity of the site as a sacred site and a nationally important traditional cultural property.” E.g., II Aplt. App. 263. The Forest Service points out that preservation of the Medicine Wheel is consistent with the Service’s responsibilities under a number of statutes. The Environmental Assessment produced to evaluate the environmental effects of the HPP recites: The Forest Service is required by law to protect and preserve National Historic Landmarks and historic properties. These laws include the Antiquities Act of 1906, the Historic Sites Act of 1935, the National Historic Preservation Act of 1966, the Archaeological and Historic Resources Preservation Act of 1974, the American Indian Religious Freedom Act of 1978, the Archaeological Resources Act of 1979 (all as amended). In addition, Executive Order No. 13007 signed by President Clinton, May 24, 1996, orders Federal agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sacred sites. III Aplt.App. 582. Plaintiff Wyoming Sawmills is a commercial timber company located in Sheridan County, Wyoming. It has been the primary purchaser of timber from the Bighorn National Forest for over 30 years. In addition to challenging the HPP, plaintiffs complaint also addressed the Forest Service’s decision not to hold one particular timber sale that it had proposed. The Service had, in September 1997, advertised for bidding on a timber sale in an area referred to as Horse Creek. The Service canceled the sale after receiving bids but before opening the bids, citing a “procedural error” in having failed to consult formally with the parties to the HPP. Internal documents indicated that the Service planned to re-advertise the sale and to proceed with it. However, after consulting with the other parties to the HPP and after further deliberations, the Service identified several potential problems with the proposed sale, including “process violations, conflicting data, and incomplete [National Environmental Policy Act] analysis.” As a result, the Service never conducted a sale of timber from the Horse Creek area; on the other hand, the Service did not decide to permanently cancel the project. II The Forest Service and intervenor defendant Coalition moved to dismiss the complaint, and alternatively moved for judgment as a matter of law. As relevant to this appeal, the district court addressed issues of standing for plaintiffs First Amendment claim and addressed on its merits plaintiffs claim of violation of the National Forest Management Act. The district court concluded that plaintiff did not have standing to bring its First Amendment claims. We discuss below the concept of standing generally and the elements of standing that the judge found were satisfied. The judge held that plaintiff lacked standing as to the First Amendment claims because the court could not remedy the constitutional wrongs plaintiff had alleged. The judge first determined that the legal harm suffered was, essentially, the loss of the opportunity to bid on timber sales, an injury which flowed from the decision to close FDR 12, to withdraw the Horse Creek timber sale, and other restrictions put in place by the HPP. The judge concluded that this injury could not be redressed because, even if the HPP were declared constitutionally invalid, the Forest Service would still be under no obligation to sell any timber from the Area of Consultation. The judge cited Mount Evans Co. v. Madigan, 14 F.3d 1444 (10th Cir.1994); Wyoming v. Lujan, 969 F.2d 877 (10th Cir.1992); Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir.1992); and Baca v. King, 92 F.3d 1031 (10th Cir.1996). The district judge then considered plaintiffs claim that the Forest Service had violated its own regulations and the National Forest Management Act (NFMA) in adopting the HPP by means of Amendment 12 to the Forest Management Plan. After concluding that the plaintiff had established standing to advance that claim, the judge ruled against the plaintiff on the merits. The gist of the district court’s ruling on this claim is that the procedural protections which plaintiff had invoked were not, in fact, required because Amendment 12 was not a “significant” alteration of the Forest Management Plan. Ill A We review de novo the district court’s determination that plaintiff lacked standing to pursue its First Amendment claims. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994). [T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — .... Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted). The burden is on the plaintiff, as the party asserting jurisdiction, to establish these elements. Id. at 561, 112 S.Ct. 2130. Further, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, ie., with the manner and degree of evidence required at the successive stages of the litigation.” Id. The district court held that plaintiff had met its burden at the pleading stage of showing an injury in fact because plaintiff had pleaded that it had lost the right to bid on timber contracts as a result of the adoption of the HPP. The complaint also alleges that this deprivation of opportunity was a constitutional injury because it was based on the Service’s decision to manage Medicine Mountain as a sacred site in violation of the First Amendment’s Establishment Clause. Plaintiff asserts on appeal that the district court was- correct in this determination but that the court erred in rejecting plaintiffs argument that it also was injured because it was “directly affected” by the management of Medicine Mountain as a sacred site. We address this latter point first. B Plaintiff contends that it has standing to complain of the alleged violation of the Establishment Clause — independent of the alleged loss of opportunity to bid on timber sales, which is discussed infra— because it is “directly affected” by the Service’s adoption of the HPP, representing the decision to manage Medicine Mountain as a sacred site. Plaintiff relies on Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and its progeny, including two cases from this court, Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.1995), and Foremaster v. City of St. George, 882 F.2d 1485, 1489 (10th Cir.1989). The Forest Service, in its brief, expresses doubt as to whether a for-profit corporation can sustain a non-economic injury under the Establishment Clause. Whatever the answer to that question may be, we conclude that this plaintiff has not alleged such an injury. In its attempt to explain how it has been directly affected, plaintiff repeatedly refers to the alleged restrictions on timber cutting which it says will follow from the HPP. Plaintiff asserts that it is directly affected “by the loss of the right to have federal land classified consistently with the Establishment Clause and the loss of the opportunity to bid for timber contracts.” Plaintiff-Appellant’s Opening Brief at 20. Similarly, plaintiff says that it “directed its complaint against ... the decision of the Forest Service to close 50,000 acres ... to timber harvesting” as a result of the adoption of the HPP. Id. at 21, n. 8. Elsewhere, plaintiff very similarly asserts that “the lost opportunity to bid demonstrates that Wyoming Sawmills is ‘directly affected’ by the HPP and therefore has standing.” Plaintiff-Appellant’s Reply Brief at 4. We discern no allegation of cognizable injury separate from the alleged loss of opportunity for profitable logging. Plaintiffs invocation of such religious symbolism cases as Foremaster is unpersuasive. As an artificial person, plaintiff has not shown how it experienced the kind of constitutional injury that has been found in such cases. Instead, its arguments repeatedly refer to and rely on the alleged economic injury. We therefore conclude that plaintiffs claim for standing must turn on the alleged economic injury of the loss of opportunity for logging, to which we now turn. C We consider here the question whether plaintiff has suffered an economic injury. The district judge held that the loss of the opportunity to bid on future timber sales was an injury in fact sufficient to satisfy the first prong of the standing analysis and that the injury was caused by the defendant’s conduct. • On appeal, the Forest Service argues, as an alternative ground for affirming the judgment below, that plaintiff has not pleaded an injury in fact. We have previously observed that “each of the three standing elements blends into the others,” Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.1992), and we think that the district judge cannot be faulted for his holding that the plaintiffs attempt to establish standing faltered at the third requirement rather than the first. In previous cases we have applied the standing analysis in this manner, and the district judge faithfully applied our precedents. In Ash Creek the plaintiff was a coal mining company which desired to bid for leases in an area under federal control. The Secretary of the Interior had decided to remove the tract from competitive coal leasing so that the tract could be used in a property exchange. The plaintiffs attempt to prevent the exchange had previously been rejected on the basis that there was no final agency action. The exchange was effected and the plaintiff again brought a legal challenge. We held that the loss of the possibility of obtaining a federal lease for coal mining was an “injury not redressable by a favorable decision” and so did not give the plaintiff standing to object to the exchange of lands. 969 F.2d at 874. Indeed, we considered the issue so clear cut that we noted “detailed discussion” was not necessary. Id. See also Wyoming v. Lujan, 969 F.2d 877, 880-82 (10th Cir.1992). In Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir.1994), we similarly held that plaintiffs who merely hoped to obtain a contractual benefit, but who had no entitlement to the benefit, lacked standing “because their injuries are not redress-able by a favorable decision.” Plaintiffs in that case had previously held the right to operate the Crest House on top of Mount Evans, a facility that provided food and souvenir sales, among other services. The Crest House had been destroyed by fire, and the Forest Service had decided not to rebuild on the summit. Plaintiffs filed suit to challenge that decision. 'They argued that a decision in their favor would require the Service to rebuild, which would give them the opportunity to compete for the concession contract. Citing Ash Creek, we rejected this argument, noting that even if a new facility were to be built as plaintiffs desired, there was “no guarantee” that plaintiffs would be the successful bidder for the concession contract and that no court could order the Service to award them the contract. Id. We cited Ash Creek and Mount Evans with approval in Baca v. King, 92 F.3d 1031, 1036-37 (10th Cir.1996), in which we held that the plaintiffs alleged injuries were not redressable because the only two actions that would remedy the alleged wrongs were an order for the government to sell the disputed land to the plaintiff or an order compelling the government to renew the plaintiffs grazing permit, neither of which were within the power of the courts to impose because either action was completely within the discretion of the Secretary of the Interior. Plaintiffs arguments on this issue are not persuasive. Plaintiff contends that the wrongful denial of the opportunity to bid competitively for federal contracts is a sufficient basis for standing, citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Plaintiff misstates the holding of that case. Adarand involved a federal program in which contractors were given financial incentives to hire subcontractors controlled by “socially and economically disadvantaged individuals,” with “race-based presumptions” included in the process for identifying such subcontractors. 51.5 U.S. at 204, 115 S.Ct. 2097. The Court said that the “injury in cases of this kind is that a ‘discriminatory classification prevents] the plaintiff from competing on an equal footing.’ ” Id. at 211, 115 S.Ct. 2097 (quoting Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 667, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). For this type of case, the Court said, “the aggrieved party ‘need not allege that he would have obtained the benefit but for the barrier in order to establish standing.’ ” Id. (quoting Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297). Plaintiff Wyoming Sawmills has not alleged that it was-treated differently from any other timber company. Adarand is thus inapposite. Plaintiff asserts that Bryant v. Yellen, 447 U.S. 352, 366-68, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980), stands for the proposition that standing is established if the plaintiff seeks to bid for property that “might become available.” But again, we find that plaintiff has stated the holding of the case in overly general terms and that the holding does not support plaintiffs claim for standing in this matter. The facts of that case are not at all analogous to the facts before this court and are rather unusual and complicated, but it is sufficient to say that the plaintiffs in that case sought- to purchase lands that the Court held would “likely” become available if the plaintiffs prevailed. Wyoming Sáwmills has not shown that a timber lease would “likely” become available on the lands within the area of consultation if plaintiff were to have the HPP set aside. As in Baca, the federal agency has complete discretion as to whether to offer the opportunity sought by the plaintiff, and accordingly the courts do not have the power to grant the only relief that would rectify the alleged injury. Plaintiff similarly contends that the loss of an opportunity to bid was held sufficient to confer standing in Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). Again, we disagree with plaintiffs characterization of the holding of the case. In Watt, the Court noted that the State of California claimed standing on two grounds — first, as an “involuntary ‘partner’ ” with the Federal Government in oil and gas leasing, and second, as a competitor with the Federal Government in the same endeavor. The Court held that California had standing on the first basis and did not consider the second claim of standing, contrary to Wyoming Sawmills’ description of the case. Wyoming Sawmills does not claim to be an “involuntary partner” with the Forest Service, and its argument is not supported by Watt. . Wyoming Sawmills also relies on Arkla Exploration Company v. Texas Oil & Gas Corp., 734 F.2d 347 (8th Cir.1984). Of course, we are bound by our precedents, discussed supra, and so would not be free to follow Arkla if it supported plaintiffs argument, but we also note that the case is distinguishable. The plaintiff in that case sought the right to bid on lands which had been offered. 734 F.2d at 353-54. We therefore affirm the district court’s holding that plaintiff Wyoming Sawmills does not have standing to bring its First Amendment claim. IV A In its complaint, plaintiff alleged that Amendment 12 to the Bighorn Forest Plan (the mechanism by which the HPP was implemented) was a defacto change in the designation of lands within the Area of Consultation which were previously designated as suitable for wood fiber production (ie., logging). Plaintiff alleged, and argues on appeal, that the Forest Service failed to inquire into and disclose the effects of the HPP when it solicited public comment on the HPP. Plaintiff also maintains that the Service failed to follow its own Forest Service Handbook standards for amending the Forest Plan, in violation of the Administrative Procedures Act (APA). The district court first found that plaintiff had standing to assert this claim. 179 F.Supp.2d at 1297-98. The judge noted that, because the NFMA does not provide for judicial review of decisions by the Forest Service, the general provisions of the APA apply. Under the APA, a person “suffering legal wrong because of agency action” may obtain judicial review. 5 U.S.C. § 701. The Forest Service did not dispute that the HPP and Amendment 12 were final agency actions, nor that timber interests are within the zone of interests protected or regulated by the NFMA,. The judge then noted that the standing requirement of redressability is applied less strictly when, as with this claim, a party is seeking to enforce a “procedural right.” See id. at 1298 (citing and quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The intervenor-appellee, Medicine Wheel Coalition on Sacred Sites of North America, challenges plaintiffs standing to bring its claim under the NFMA, although the Forest Service does not contest the district court’s ruling on this point. We see no error in the district court’s holding on this point, however, and proceed to review the merits. B Our standard of review is a deferential one, and we will reverse the Forest Service’s action only if it is “ ‘arbitrary, capricious, otherwise not in accordance with the law, or not supported by substantial evidence.’ ” Citizens’ Committee To Save Our Canyons v. United States Forest Service, 297 F.3d 1012, 1021 (10th Cir.2002) (quoting Hoyl v. Babbitt, 129 F.3d 1377, 1382 (10th Cir.1997)). No deference is due to the district court’s decision in review of the agency’s action, however. Id. The National Forest Management Act (NFMA) provides that once enacted, forest plans may “be amended in any manner whatsoever.” 16 U.S.C. § 1604(f)(4). As we explained in some detail two years ago, if an amendment to a forest plan would be “significant,” however, then NFMA mandates substantial public involvement, planning, and input, requiring, in essence, the Forest Service “to conduct the same complex planning process applicable to promulgation of the original plan.” Sierra Club v. Cargill, 11 F.3d 1545, 1551 (10th Cir.1993) (Seymour, J., dissenting); see 36 C.F.R. § 219.10(f). Among other things, for significant amendments, NFMA requires the Forest Service to “mak[e] plans or revisions available to the public at convenient locations in the vicinity of the affected unit for a period of at least three months before final adoption.” 16 U.S.C. § 1604(d). Citizens’ Committee, 297 F.3d at 1032-33 (footnote omitted). We have noted before that the Act does not provide guidance as to what amendments are “significant.” Cargill, 11 F.3d at 1548. Indeed, applicable regulations “expressly commend[] the determination of the significance of an amendment to the Forest Supervisor’s judgment.” Id. According to the regulations, “Based on an analysis of the objectives, guidelines, and other contents of the forest plan, the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan.” 36 C.F.R. § 219.10(f) (emphasis added). If the Forest Supervisor concludes that an amendment is nonsignificant, “[he] may implement the amendment following appropriate public notification and satisfactory completion of [National Environmental Policy Act] procedures.” Id. (emphasis added). Citizens Committee, 297 F.3d at 1033. In the absence of specific direction from Congress, the Forest Service has adopted guidelines in its Forest Service Handbook (FSH) for consideration of the significance of amendments to a forest plan: Although the Forest Supervisor has wide discretion in deciding whether an amendment is significant, the FSH outlines factors the Supervisor must consider when assessing the significance of a proposed amendment, including 1) the timing of the proposed change relative to the expiration or next scheduled revision of the Forest Plan (the shorter the remaining life of the plan, the less significant the amendment); 2) “the location and size of the area involved in the change” in comparison to the “overall planning area”; 3) the long-term significance of the project relative to the goals and objectives of the forest plan; and 4) the impact of the amendment on “management prescription” — whether the change applies only to a specific situation or whether it likely will affect future decisions as well. FSH 1909.12 § 5.32(3)(a)-(d). Id. (footnote omitted). In this appeal, plaintiff accepts these criteria and frames its arguments in their terms. Accordingly, our review will also focus on these factors. Although as explained we review the agency’s decision deferentially but without deference to the district court’s holdings, in this instance we see no error in the district court’s analysis. The first factor set out above from the FSH is the timing of the amendment. On this point, Wyoming Sawmills does not challenge the district court’s observation that the amendment came late in the planning period, after' the period’s first decade. Nor does Wyoming Sawmills dispute the conclusion that this factor favors a finding that the amendment was not significant. Wyoming Sawmills does contest the agency’s, and district court’s, conclusion on the second factor, the size of the affected area compared to the overall planning area. The district court agreed with the agency that the size of the affected area is relatively small, observing that the Area of Consultation is only 18,000 acres or only 1.6% of the Bighorn National Forest. Plaintiff disputes this conclusion by asserting that it is improper to use the entire forest in the comparison and by contending that Amendment 12 in fact affects much more than 18,000 acres. First, plaintiff contends that the overall planning area which should be used to determine the relative significance of the affected area should not be the entire forest but only the slightly more than 200,000 acres that are deemed “available” for timber management. But plaintiff offers neither reason nor authority to persuade us ■that the Service abused its discretion in using the acreage of the entire forest in its analysis. The deference owed to the Service does not permit us to find an abuse of discretion on this point. Plaintiff emphatically contends that the decision to implement the HPP will affect an area much greater than the 18,000 acre Area of Consultation. Plaintiff bases this contention on the assertion that the decision to close FDR 12 and to bar the use of other roads passing through the Area of Consultation effectively closes an additional 30,000 acres of the forest north and west of the Area of Consultation. The Forest Service and the intervenor Coalition offer several points in response that severely undercut the impact of plaintiffs argument. First, we note that plaintiff has not explained how it has determined that an additional 30,000 acres are affected. Second, the district court observed that plaintiff had not shown that FDR 12 had ever been used for timber hauling; plaintiff has not countered this point. Third, the Forest Service stated expressly in the HPP that it would “continue to explore opportunities for alternative access to National Forest System lands north of the Medicine Wheel,” an effort which it described as the “long term goal” of its management efforts. II Aplt. App. 318. Perhaps most significantly, the Service determined that implementation of the HPP “will not result in significant changes to those levels of outputs projected under the current Bighorn National Forest Plan.” Ill Aplt.App. 626. The HPP does not prohibit logging in the Area of Consultation. At least two roads within the consultation area are not barred to timber hauling, although the HPP does require a consultation process for approval of their use. Id. at 571. More generally, Amendment 12 did not change any actual management allocations (for timber or livestock grazing, for exam-pie) but added standards and guidelines to be followed in pursuit of the existing allocations. Of the 18,000 acres in the Area of Consultation, only about ten per cent was deemed suitable for timber production. Id. at 347. As we have noted, the third factor is the long-term significance of the project relative to the goals and objectives of the forest plan. Plaintiffs inability to convince us that the Forest Service abused its discretion in its determination of the size of the area involved is doubly important because its argument on the third factor rests entirely on the premise that the decision does affect a much larger area than just the Area of Consultation. Similarly, plaintiffs argument on the fourth factor is based largely on the same assertions. In view of the deference due to the Service’s determination, we hold that plaintiff has failed to show that the Service abused its considerable discretion in finding that Amendment 12 was not a “significant” change to the overall forest plan. This holding disposes of plaintiffs NFMA claim. Plaintiffs allegations of deprivation of procedural rights are all dependent on the more stringent procedural requirements applicable to significant amendments. Conclusion The judgment of the district court is AFFIRMED. . The district court's opinion is published at 179 F.Supp.2d 1279 (D.Wyo.2001), and in-eludes a more detailed description of the background of the litigation. . The Service is required to consult with other federal, state, and local agencies and Indian tribes by the National Historic Preservation Act, 16 U.S.C. § 470h-2(a)(2). . The FAA was involved because it has operated a radar site on the mountain since 1962. .A forest plan, or land and resource management plan, is a planning document that guides natural resource management activities in a national forest over a period of ten years or more. See 16 U.S.C. § 1604. . The district court also held that the plaintiff lacked standing to bring'the claim alleged in the complaint under the National Environmental Policy Act, and ruled against plaintiff on the merits of its claim under the Federal Advisory Committee Act. Plaintiff has not appealed these holdings of the district court. . In the district court plaintiff also claimed other injuries, but its appellate contentions are limited to the two alleged injuries stated in the text. . In its reply brief, plaintiff cites two cases which do support its argument, Wyoming Timber Industry Ass’n v. United States Forest Service, 80 F.Supp.2d 1245 (D.Wyo.2000), and Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1233 (D.C.Cir.1996), but we are, of course, bound by our precedents. We note that our position is consistent with that of another circuit in a case relied on by the Forest Service, Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800, 808-09 (11th Cir.1993). . Plaintiff alleged that a de facto change of designation was also imposed on some areas outside the Area of Consultation which were serviced by FDR 11. . We note that the withdrawal of the Horse Creek timber sale was not a final agency action; accordingly, that decision may not be reviewed at this time.

San Carlos Apache Tribe v. United States

McKEOWN, Circuit Judge. In this action for injunction against the United States, the San Carlos Apache Tribe (“Tribe”) seeks to maintain certain water levels in the San Carlos Reservoir (“Reservoir”) in Arizona. The Tribe brought suit under various federal laws and federal common law and is primarily concerned with damage to the environment, including to fish and other species, caused by decreased water flow into the Reservoir. Our focus here is the Tribe’s claim under § 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq., which requires that federal agencies “take into account the effect of the[ir] undertaking^] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” The Tribe argues that its suit is properly brought as a private right of action directly under NHPA rather than under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. Whether § 106 provides a private right of action against the United States is a question of first impression in this circuit and one that we consider in light of Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The district court dismissed the § 106 claim on the ground that NHPA contains no such private right of action. We agree and affirm. Background In 1924, Congress authorized construction of the Coolidge Dam as a means of providing water to the Pima Indians. Congress provided that any excess water was to be used “for the irrigation of such other lands in public or private ownership, as in the opinion of the said Secretary, can be served with water impounded by said dam without diminishing the supply necessary for said Indian lands.” Act of June 7, 1924, ch. 288, 43 Stat. 475. The Reservoir is located in the southern portion of the San Carlos Apache reservation. Although the Reservoir is encircled by the Tribe’s land, its water is designated almost entirely for use by others. In the mid-1990s, the water levels in the Reservoir began to drop because of drought. The drought did not show signs of abating and threatened to seriously deplete the Reservoir. After failed efforts to negotiate for commitments that water be retained in the Reservoir, in May 1999, the Tribe filed this suit seeking injunctive relief. The Tribe alleged statutory violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq., the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq., and NHPA, as well as common law nuisance and breach of trust. The district court denied requests for a temporary restraining order and a preliminary injunction and ultimately ruled against the Tribe on all of its claims. San Carlos I, 272 F.Supp.2d at 897. Analysis The NHPA involves “a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance.” Penn Cent Tramp. Co. v. City of New York, 438 U.S. 104, 108 n. 1, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). For example, the Act establishes the National Register of Historic Places and procedures related to listing on the Register. 16 U.S.C. § 470a. Section 106 requires that federal agencies take into account the effect of their undertakings on “any district, site,- building, structure, or object that is included in or eligible for inclusion in the National Register.” Section 106 does not expressly provide that private individuals may sue to enforce its provisions. Nor does the statute specify a remedy for violation of this section. The question is whether the statute creates a private right of action by implication. The government maintains it does not and that the only avenue open to private parties seeking to force government officials to comply with § 106 is to invoke the review procedures set out in the APA, including the requirements for a final order and exhaustion. Because the Tribe has not sought review under the APA, the government argues that the Tribe’s NHPA claim must be dismissed. The Tribe urges us to find that § 106 contains a private right of action separate and apart from the APA and that dismissal of its claim under NHPA was error. Whether § 106 contains a private cause of action is a question not yet addressed by our circuit. In Tyler v. Cisneros, 136 F.3d 603 (9th Cir.1998), we assumed without deciding that NHPA contains a private right of action. Id. at 608 (reversing the district court’s holding that NHPA contains an implicit statute of limitations). In other cases where we have reviewed government compliance with NHPA in actions initiated under the APA, the question has not arisen. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir.1999) (reviewing under the APA a tribe’s claim that the Forest Service violated NHPA in the course of a land exchange). It is now well understood that “private rights of action to enforce federal law must be created by Congress.” Sandoval, 532 U.S. at 286, 121 S.Ct. 1511. The Court explained that “[t]he judicial task is to interpret the- statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id. As in Sandoval, we begin our analysis by turning to the provision at issue, § 106. The language of § 106 is strikingly similar to the language the Supreme Court considered in Sandoval. In Sandoval, the Court’s inquiry was whether § 602 of Title VI of the Civil Rights Act of 1964 contained a private right of action. Sandoval, 532 U.S. at 278-79, 121 S.Ct. 1511. Section 601 of the Civil Right Act provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. There was no disagreement that § 601 envisioned a private right of action. Sandoval, 532 U.S. at 279-80, 121 S.Ct. 1511 (citing precedents that clearly established that § 601 created a private right of action). Section 602 authorizes agencies “to effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-l. Consideration of § 602 prompted the Supreme Court to clarify that “[statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’ ” Sandoval, 532 U.S. at 289, 121 S.Ct. 1511 (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). The Court observed that unlike § 601, which protected individuals, § 602 focused not on individuals to be protected, but on regulatory agencies. Id. at 289, 121 S.Ct. 1511. As a result, the Court held that § 602 did not create a private right of action. Id. at 293, 121 S.Ct. 1511. Section 602 of the Civil Right Act and § 106 of NHPA are similar in a crucial way: they are directives to federal government actors. The thrust of § 106 is not directed to individuals or entities that may be harmed through violation of NHPA’s dictates, but rather, like § 602 of the Civil Rights Act, to the persons regulated — the heads of federal agencies. This focus on regulating agencies provides little reason to infer a private right of action. Sandoval offers a second lesson that weighs against implying a private right of action under § 106. In rejecting the claim that § 602 of the Civil Rights Act contains a private right of action, the Court took note that § 602 provided means by which regulations promulgated under it were to be enforced. 532 U.S. at 289-90, 121 S.Ct. 1511 (describing statutory procedures for enforcing regulations). After describing the enforcement mechanism, the Court concluded that “[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Id. at 290, 121 S.Ct. 1511. Here, there is an alternate means of ensuring that government officials comply with the dictates of a federal statute: Although not expressly referenced in NHPA, invocation of the APA is a longstanding means to challenge agency action. See, e.g., Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir.1981) (concluding that “[rjegardless whether a statute implies a private right of action, administrative actions thereunder may be challenged under the APA unless they fall within the limited exceptions of that Act.”). Like the Civil Rights Act considered in Sandoval, the APA established a specific mechanism for enforcing statutes like NHPA. The APA provides review for “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court....” 5 U.S.C. § 704. This avenue is open to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. Indeed, as then-judge Breyer explained: It is difficult to understand why a court would ever hold that Congress, in enacting a statute that creates federal obligations, has implicitly created a private right of action against the federal government, for there is hardly ever any need for Congress to do so. That is because federal action is nearly always reviewable for conformity with statutory obligations without any such ‘private right of action.’ N.A.A.C.P. v. Sec’y of HUD, 817 F.2d 149, 152 (1st Cir.1987). The logic of NAACP resonates in our analysis of § 106. An aggrieved party can sue under the APA to force compliance with § 106 without having a “private right of action” under the statute. The context of this ease — a private party suing the federal government — is an atypical breeding ground to give birth to the question whether a statute impliedly creates a right of action. Whether a federal statute provides a private right of action almost always arises in the context of a claim against a third party, such as a state or private entity, not, as here, against the federal government. See Sandoval, 532 U.S. at 278, 121 S.Ct. 1511 (private v. state government); Cannon v. Univ. of Chicago, 441 U.S. 677, 680, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (individual v. private entity); Cort v. Ash, 422 U.S. 66, 68, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (individual v. corporation). Even the term “private right of action” is something of a semantic mismatch in the context of a suit to force agency action under a federal statute. A critical question is whether the federal government is subject to suit under the statute. Absent a clear waiver, sovereign immunity precludes suit against the United States. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). NHPA offers no basis to infer a waiver of sovereign immunity. Rather, the APA provides such a waiver. 5 U.S.C. § 702. As we have observed, in enacting the APA “Congress was quite explicit about its goals of eliminating sovereign immunity as an obstacle in securing judicial review of the federal official conduct.” Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir.1989). To permit a case to proceed directly under a federal statute and bypass the APA is not without consequence. The APA includes a series of procedural requirements litigants must fulfill before bringing suit in federal court. For instance, the challenged agency action must be final. 5 U.S.C. § 704. Also, a party generally cannot seek court review until all administrative remedies have been exhausted. Young v. Reno, 114 F.3d 879, 881 (9th Cir.1997). Were litigants able to sue directly under NHPA, they would be able to sidestep the traditional requirements of administrative review under the APA without express Congressional authorization. As Judge Breyer noted, creating a direct private action against the federal government makes little sense in light of the administrative review scheme set out in the APA. NAACP, 817 F.2d at 152. A close statutory analog to NHPA is the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370. What § 106 of NHPA does for sites of historical import, NEPA does for our natural environment. Our circuit has already noted the parallel: Both Acts create obligations that are chiefly procedural in nature; both have the goal of generating information about the impact of federal actions on the environment; and both require that the relevant federal agency carefully consider the information produced. That is, both are designed to insure that the agency “stop, look, and listen” before moving ahead. Pres. Coalition, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982). See also Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278-79 (3rd Cir.1983). NEPA “has twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its deci-sionmaking process.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir.2002) (citation and internal quotation marks omitted). Just as NHPA requires agencies to take into account the effect of their actions on historic places, NEPA requires agencies to consider the environmental impact of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Even if the agency does not determine that an action is significant enough to trigger the environmental impact statement requirement, it must at least prepare an environmental assessment explaining its finding that the action will have no significant impact on the environment. 40 C.F.R. § 1501.4. A fundamental and oft-quoted principle of environmental law is that there is no private right of action under NEPA. See, e.g., Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988) (“NEPA itself authorizes no private right of action.”); Noe v. Metro. Atlanta Rapid Transit Auth., 644 F.2d 434, 439 (5th Cir.1981) (“[O]ur research has failed to disclose anything to suggest a Congressional intent to recognize an implied judicial remedy for an alleged violation of NEPA.”). The upshot of the NEPA cases is that parties are required to proceed under the APA in order to challenge claimed violations of NEPA. This approach stands in contrast to other environmental statutes, such as the Clean Water Act, or the Endangered Species Act, whose language explicitly provides a private right of action. See Clean Water Act § 505(a), as amended, 33 U.S.C. § 1365(a)(1) (“any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of’ various provisions of the Act); Endangered Species Act of 1973, § 11(g), as amended, 16 U.S.C. § 1540(g) (“any person” may “commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this Act....”). The reason for the distinction among these statutes is clear. The NEPA “stop, look, and listen” obligation is imposed on the federal government. The obligation to preserve species under the Endangered Species Act and to protect the nation’s water under the Clean Water Act are also imposed on private parties. 33 U.S.C. § 1365(a)(1); 16 U.S.C. § 1540(g). Any claim for violation of •§ 106 obligations under NHPA is against the federal government, not a third party. NHPA’s status as a “look and listen” statute akin to NEPA weighs against implying a private right of action. Specific comparison of § 106 with the citizen-suit provision of the Endangered Species Act is illuminating. The Endangered Species Act has a citizen-suit provision that authorizes suit against “any person” for violations of any provision of the Endangered Species Act. 16 U.S.C. § 1540(g)(1)(A). The Supreme Court declined to find that the “any person” language authorized suit against the Secretary of Interior, reasoning that to do so would “effect a wholesale abrogation of the APA’s ‘final agency action’ requirement,” and that “[w]e are loathe to produce such an extraordinary regime without the clearest of statutory direction, which is hardly present here.” Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). In contrast, the Court recognized a private right of action against the Secretary under a different provision of the ESA, where the statute expressly authorized suits “against the Secretary.” Id. at 173-74, 117 S.Ct. 1154 (interpreting 16 U.S.C. § 1540(g)(1)(C)). As the Court’s reasoning directs, we decline to circumvent the APA to permit a suit against a federal agency absent statutory language permitting such a suit. In concluding that § 106 does not contain a private right of action, we diverge from two of our sister circuits. See Boarhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3rd Cir.1991); Vieux Carre Prop. Owners, Residents & Assoc., Inc. v. Brown, 875 F.2d 453, 458 (5th Cir.1989). Both relied on an attorney’s fees provision contained in NHPA. 16 U.S.C. § 470w-4. This provision reads: In any civil action brought in any United States district court by any interested person to enforce the provisions of this Act [16 U.S.C. § 470 et seg.], if such person substantially prevails in such action, the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable. 16 U.S.C. § 470w-4. The Third Circuit reasoned: Moreover, since § 305 of the Preservation Act, 16 U.S.C.A. § 470w-4, allows a court to award attorneys’ fees- and other costs “[i]n any civil action brought in any United States district court by any interested person to enforce the provisions of [the Preservation Act], if such.person substantially prevails in such action,” we agree with the arguments advanced by Boarhead and amici that Congress must have intended to establish a private right of action to interested parties, such as Boarhead, in these situations. Boarhead, 923 F.2d at 1017. The Fifth Circuit stated that “[r]ather than through APA review, a private right of action against an agency arises under 16 U.S.C. § 470w-4, which provides for NHPA to be enforced ‘in any civil action brought in any U.S. District Court by any interested person.’” Vieux Carre Prop. Owners, Residents & Assoc., Inc., 875 F.2d at 458. We read the attorney’s fees provision as permitting fees in an action to enforce NHPA. A section providing for recovery of fees does not answer the question whether there is a direct, private right of action against the federal government. The fees provision does not authorize suit against federal agencies nor is it a waiver of sovereign immunity against the United States for a claim under § 106 of NHPA. Instead, such a waiver must be predicated in this instance on § 702 of the APA. Presbyterian Church, 870 F.2d at 524. Because the APA does not itself contain a fees provision, in an NHPA suit under § 106, a prevailing party may rely on NHPA’s fee authorization to obtain attorney’s fees. Thus, we part ways with our sister circuits on the import of the attorney’s fees provision. We agree it demonstrates Congressional intent that individuals may sue to enforce NHPA. And we agree that the attorney’s fees language evinces congressional intent to cover the costs of those who prevail in a suit under the statute. But it does not follow that Congress intended these individuals to file suit against the United States under NHPA itself, rather than under the well-established procedures set out under the APA. At best, the absence of any private right of action language in § 106 and the presence of the fee provision render the statute ambiguous on the cause of action point. Without explicit language, such an ambiguity can hardly be converted into an implied right of action. We conclude that § 106 does not give rise to a “private” right of action against the federal government. An aggrieved party may pursue its remedy under the APA. AFFIRMED. . Throughout the opinion we refer to the relevant provision of NHPA as it was enumerated in the original Act, rather than by its current section designation in the United States Code. Section 106 is codified at 16 U.S.C. § 470f. .In concluding that there was no private right of action, the district court wrote that "cases in the Ninth Circuit involving NHPA violations ... rely on the APA for jurisdiction.” San Carlos Apache Tribe v. United States, 272 F.Supp.2d 860, 885 (D.Ariz.2003) ("San Carlos I”). We agree with this result but note a substantive difference. The APA is not a jurisdictional statute. Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir.1998). Rather, “tjjurisdiction must come from a source other than the APA.” Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Admin., 342 F.3d 924, 929 (9th Cir.2003) (noting that the relevant jurisdictional statute was contained in the Bonneville Power Act) (quoting Pub. Util. Comm'r of Or. v. Bonneville Power Admin., 767 F.2d 622, 627 (9th Cir.1985)). Here, jurisdiction is predicated on federal question jurisdiction under 28 U.S.C. § 1331. . The parties dispute whether the Reservoir is properly considered on tribal land. Because this dispute is not relevant to the disposition of the case, we do not address it here. . The priority for water usage from the Reservoir is set by a consent decree that resulted from earlier litigation filed by the United States against all non-Indian users of Gila River water. United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1430 (9th Cir.1994). . The only issue we consider here is whether the district court properly dismissed the Tribe’s claim under NHPA. The remaining issues are addressed in a separately filed memorandum disposition and discussed at length in the district court's very thorough opinion, San Carlos I, 272 F.Supp.2d at 866. . The full text of the provision is as follows: The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under title II of this Act [16 U.S.C. §§ 470i et seq.] a reasonable opportunity to comment with regard to such undertaking. . In Cort, the Supreme Court set out four factors to assist in evaluating whether there is a private cause of action under a statute. 422 U.S. at 78, 95 S.Ct. 2080. The statute at issue was a criminal statute prohibiting corporations from making certain political contributions. The plaintiff sought to bring a private claim for damages against the corporation. Id. at 68, 95 S.Ct. 2080. Although Cort remains viable following Sandoval, the context of the claim and the factors do not inform our analysis here. See Greene v. Sprint Communications Co., 340 F.3d 1047, 1052 (9th Cir.2003) (invoking Cort factors); see also Office Planning Group, Inc. v. Baraga-Houghton-Keweenaw Child Dev. Bd., 472 Mich. 479, 697 N.W.2d 871 (Mich.2005) (laying out opposing views in majority and dissenting opinions on whether Cort survived Sandoval in analyzing whether the claim must be brought under the APA). . Section 702 reads, in relevant part: 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. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. . We address only § 106 of NHPA and take no position on whether there is a private cause of action under any other section. We do not mean to imply a view one way or the other. We are simply deciding the case before us. . The Tribe did not plead its claim under the APA nor did it seek to amend its pleadings.