The City of Eufaula, Alabama et al v. Alabama Department of Transportation et al

Filing 37

OPINION. Signed by Honorable Judge Myron H. Thompson on 12/29/14. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
THE CITY OF EUFAULA,
ALABAMA; EUFAULA HERITAGE
ASSOCIATION; ALABAMA TRUST
FOR HISTORIC PRESERVATION;
and NATIONAL TRUST FOR
HISTORIC PRESERVATION,

)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
ALABAMA DEPARTMENT OF
)
TRANSPORTATION; JOHN R.
)
COOPER, as Director of the )
Alabama Department of
)
Transportation; FEDERAL
)
HIGHWAY ADMINISTRATION;
)
and MARK BARTLETT, as
)
Division Administrator of )
the Federal Highway
)
Administration,
)
)
Defendants.
)

CIVIL ACTION NO.
2:14cv1206-MHT
(WO)

OPINION
This case involves a challenge to the widening from
two lanes to four lanes of a road in Eufaula, Alabama’s
historic district.

The plaintiffs are the City of Eufaula and three
historic preservation groups,1 and the defendants are
the

Alabama

Department

of

Transportation

and

its

director, as well as the Federal Highway Administration
and its division administrator.2

The plaintiffs assert

that the defendants violated § 4(f) of the Department
of Transportation Act (49 U.S.C. § 303),3 § 106 of the
National Historic Preservation Act (16 U.S.C. § 470f),
and the National Environmental Policy Act, also known
as NEPA (42 U.S.C. §§ 4321 et seq.). The court has
federal-question
§ 1331.

jurisdiction

pursuant

to

28

U.S.C.

The case where is now before this court on the

plaintiffs’ motion for a temporary-restraining order.

1. The historic preservation groups are the Eufaula
Heritage
Association,
Alabama
Trust
for
Historic
Preservation, and the National Trust for Historic
Preservation.
2. The director of the Alabama Department of
Transportation is John R. Cooper.
The division
administrator of the Federal Highway Administration is
Mark Bartlett.
3. Essentially identical provisions are contained
in § 18(a) of the Federal-Aid Highway Act (23 U.S.C.
§ 138), and the plaintiffs also cite to this statute.
2

Based

on

the

evidence

and

argument

submitted

as

of

December 22, 2014, the motion will be denied.

I.

LEGAL STANDARD

In a motion for a temporary-restraining order or
preliminary injunction, the moving party must show “(1)
a substantial likelihood of success on the merits of
the

underlying

case,

(2)

the

movant

will

suffer

irreparable harm in the absence of an injunction, (3)
the harm suffered by the movant in the absence of an
injunction

would

exceed

the

harm

suffered

by

the

opposing party if the injunction issued, and (4) an
injunction

would

not

disserve

the

public

interest.”

Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir. 2011)
(internal quotation marks omitted).

II. BACKGROUND
This case arises out of the proposed widening of a
0.8 mile stretch of an Alabama road by the Alabama
Department of Transportation.
3

The

street

at

issue--North

Eufaula

Avenue--is

located in Eufaula, Alabama, in the southeast part of
the State.

It currently is a two-lane road running

through an historic district of town, with old houses
lining each side and a 30-50 foot median of billowing
trees that overhang the street.

The street is featured

in the Alabama Scenic Byway Program, which received
some federal funding, and is a major source of tourism
income for the city.
The

street

is

also

part

of

Highway

thoroughfare along the eastern side of
runs to the beach in Florida.

431,

a

Alabama that

Although the highway was

originally two lanes, other parts have been widened in
the

past

several

decades.

Segments

of

the

highway

north and south of Eufaula were authorized for widening
from

two

to

four

lanes

in

1981,

with

construction

taking place over the following 15 years.

Both of

those projects used federal money and complied with
federal requirements.

Overall, the federal government

has contributed $ 47 million on 57 different projects
4

for repair and widening parts of the highway in the
county

in

which

Eufaula

is

located.

Although

federal-review documents for these projects noted that
they were part of the State’s long-term plan for a
four-lane corridor through eastern Alabama, the federal
government did not fund or approve of the North Eufaula
widening in any previous review.
While much of
North

Eufaula

this highway

Avenue

remains

now has four
two

lanes,

lanes,

creating

congestion and safety concerns according to the State.
In 2005, the State first tried to solve this problem by
proposing a bypass around Eufaula.

For this bypass,

the Federal Highway Administration completed a study on
the environmental impact of the bypass and approved a
request from the Alabama Department of Transportation
to purchase real estate for the bypass.
was

never

constructed

due,

in

part,

This bypass
to

local

opposition.
Earlier this year, the State again decided to widen
the 0.8 mile stretch at issue.
5

It decided to use only

state funds on the project so that it could move “more
quickly”

and

“more

efficiently.”

The

State

began

meetings on the issue with the community starting last
spring and made a final decision sometime this fall.
The project was released for bidding on December 5,
2014, and the State signed a contract for construction
on December 10.
Several days after the project was released for
bidding, the plaintiffs brought this suit on December
8, 2014, requesting a temporary-restraining order to
prevent

the

construction

on

North

Eufaula

Avenue.

Shortly after that, the parties held an on-the-record
conference call with the court on December 9, 2014,
where the defendants agreed to delay groundbreaking for
several weeks until the parties could submit briefs and
the court could consider the arguments.

III. DISCUSSION
The defendants allege that the plaintiffs do not
meet

any

of

the

requirements
6

for

a

temporary-restraining order.

Because the court finds

that there is not a substantial likelihood of success
on the merits, it need not address the other elements.
The crux of the plaintiffs’ argument is that the
Alabama Department of Transportation and the Federal
Highway Administration violated federal law by failing
to follow procedural protections required under NEPA,
the

National

Department
federal

of

Historic

Preservation

Transportation

governments

respond

Act.

Act,
The

that

and

the

state

and

these

federal

protections do not apply because the widening project
at issue was never a federal project and thus did not
have to meet federal requirements.
NEPA’s

procedural

protections

apply

to

“major

Federal actions significantly affecting the quality of
the

human

Federal

environment

regulations

....”

elaborate

42

U.S.C.

that,

§ 4332(C).

“Major

Federal

action includes actions with effects that may be major
and which are potentially subject to Federal control
and responsibility.”

40 C.F.R. § 1508.18.
7

They can

“include

new

projects

and

and

continuing

programs

activities,

entirely

or

including

partly

financed,

assisted, conducted, regulated, or approved by federal
agencies.”

40

C.F.R.

§ 1508.18(a).

As

40

C.F.R

§ 1508.18 makes clear, “major federal actions need not
be federally funded to invoke NEPA requirements.”

Sw.

Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 243 F.3d
270, 279 (6th Cir. 2001) (cases cited).

“In effect,

major federal action means that the federal government
has actual power to control the project.” Ross v. Fed.
Highway Admin., 162 F.3d 1046, 1051 (10th Cir. 1998)
(internal quotation marks omitted).
Particularly in cases where the project at issue is
not

federally

funded,

“[n]o

litmus

test

exists

determine what constitutes major Federal action.”

to

Save

Barton Creek Ass’n v. Fed. Highway Admin. (FHWA), 950
F.2d 1129, 1134 (5th Cir. 1992) (internal quotation
marks omitted); see also Ross, 162 F.3d at 1053 (“We do
not,

however,

define

the

precise

point

at

which

a

federal project becomes immutably federal for purposes
8

of NEPA compliance.”).
“situation-specific

and

Rather, the test requires a
fact-intensive

analysis.”

Slater, 243 F.3d at 281.4
This fact-intensive analysis often comes down to a
framing exercise.

In such cases, the plaintiffs will

claim that the road in question--which is only using
state

funds--has

been

“federalized”

because

it

is

actually part of a much larger project that the federal
government has helped plan, execute, and fund.

The

States, on the other hand, will contend that the road
constitutes

a

discrete

entity,

separate

from

other

state roads that took federal money or accepted federal
help.

Although case law takes this framing exercise on

a case-by-case basis, this court can discern several

4. All parties agree that the “major federal
action” test under NEPA can also be used to evaluate
whether the protections in the National Historic
Preservation Act and the Department of Transportation
Act are triggered. Pl. Supp. Br. in Support of Mot. for
TRO and/or Prelim. Inj. (doc. no. 34) at 3 n.3; State
Def. Opp. to Pl. Request for Inj. Relief (doc. no. 35)
at 17; Fed. Def. Mem. in Opp. to Pl. Mot. for a TRO or
Prelim. Inj. (doc. no. 36) at 8-10.
9

circumstantial factors that indicate which frame is the
correct one.
First, courts look to pretext--that is, whether a
State labels something as a purely state project after
facing

federal

study.

rejection

in

the

environmental-impact

In Ross, for example, the Kansas Department of

Transportation was completing a road through a major
city.

162 F.3d at 1048-53.

It asked the federal

government to segment the project into four pieces and
submitted

environmental-impact

While

Highway

the

statements

Administration

for

each.

the

first

approved

three legs, there was deadlock on the environmental
impact of the fourth segment.

Out of frustration, the

state government declared that the last leg would be a
state

project

After

a

and

challenge,

proceeded
the

towards

court

halted

construction.
the

State’s

construction, holding that the State cannot “withdraw a
portion

of

consideration

the
with

project
the

from

resulting

federal
of

avoiding

compliance with federal environmental laws.”

Id. at

10

effect

funding

1053; see also Scottsdale Mall v. Indiana, 549 F.2d
484,

487-89

(7th

Cir.

1977)

(rejecting

a

State’s

argument that a segment of a proposed bypass was not a
major

federal

action

where

the

State

submitted

an

environmental-impact statement, the federal government
approved

and

attempted

to

then

backtracked,

continue

the

and

project

the
using

State
only

then
state

funds); but see Slater, 243 F.3d at 284 n.14 (finding
the project was not a major federal action even though
the State had previously applied for federal interstate
status but then withdrew the application because it did
not want to comply with NEPA).

Pretext in cases like

Scottsdale Mall and Ross is a strong indicator of a
major federal action because the State’s submission of
an impact study to get federal funds for a part of a
project comes close to an admission that even the State
sees the project as federal in character.
Pretext is not present in this case.

Alabama did

not apply for federal funds and then decide against
using

them

once

the

federal
11

government

expressed

reservations about its environmental-impact statement.
Unlike

Ross

and

Scottsdale

Mall,

the

State

never

submitted statements to the federal government or asked
for

federal

funds

for

this

portion

of

the

highway.

Admittedly, the State’s explanations that it did not
want to get involved in the federal process do suggest
it

wanted

to

avoid

federal-environmental

standards.

However, a State is free to build a road using its own
funds under state requirements.
(“The

authorization

of

the

23 U.S.C. § 145(a)

appropriation

of

Federal

funds or their availability for expenditure under this
chapter

shall

in

no

way

infringe

on

the

sovereign

rights of the States to determine which projects shall
be federally financed.”).

The pretext problem arises

only when States obviously tip their hand that they
believe

a

road

is

part

of

a

federal

project

by

submitting an environmental impact statement and then
insist it is a state project after failing the federal
standards.

12

Second,
indicator

of

while
a

pretext

major

might

federal

be

action,

the
the

simplest
degree

of

federal involvement in a project is the most common.
The federal government can be involved in a number of
stages in a highway-development project including “the
programming, location, design, preliminary engineering,
and right of way acquisition stages.”

Scottsdale Mall,

549 F.2d at 489. For example, in Scottsdale Mall, the
court found a segment of a larger project was a major
federal action when the federal government approved the
design plans, spent over $ 150,000 for an engineering
study on the segment, and was scheduled to be acquired
using federal money.

549 F.2d at 487-89; see also

Slater, 243 F.3d at 275 n.6, 281-86 (finding that a
road was not a major federal action even though the
federal government approved places where the new road
would

cross

federal

highways

and

funded

planning

programs on the traffic in the area as well as an air
quality study); Ross, 162 F.3d at 1048 (noting that
“local, state and federal officials began planning the
13

trafficway

as

a

jointly

funded

federal-aid

highway

project”) Thompson v. Fugate, 347 F. Supp. 120, 123-24
(E.D.

Va.

1972)

(Merhige,

J.)

(concluding

that

a

segment of a bypass around Richmond was a major federal
project,

in

part,

because

the

federal

government

approved the location of the entire bypass).
Here, the federal government did not approve the
location, conduct an engineering study, plan with the
State, or exercise other forms of control over the 0.8
mile stretch.

Similar to Slater, it did fund small

projects, such as the Alabama Scenic Byway Program, but
funding

a

small

tourist

federal

government

program

control.

does

The

not

lack

equate
of

to

federal

involvement on this stretch weighs against this being a
major federal action.
As the plaintiffs point out, however, the federal
government

did

potential bypass

fund

an

environmental

study

of

a

around Eufaula about a decade ago.

The bypass would have served at least one of the same
purposes as the widening of North Eufaula Avenue--to
14

decrease congestion and improve safety on the highway.
Contrary

to

the

defendants’

arguments,

the

court

believes this bypass is relevant to show some federal
involvement.
funds

for

Indeed, if a State proposed using federal
a

project,

environmental-impact

received

study,

and

then

a

negative

simply

proposed

building a new road, ten feet away, with only state
money,

it

likely

would

be

a

major

That, though, is not the case here.

federal

action.

The State proposed

the bypass ten years ago, and it was defeated because
of

local

opposition

environmental

rather

impact.

than

Just

concerns

because

the

over

the

federal

government once offered to fund a segment of a highway
does not mean that an alternative plan, proposed ten
years

later,

especially

constitutes

when

there

a

is

major

minimal

federal

action,

federal-government

involvement in the new plan.
The third, and final, factor is whether the segment
at issue forms part of a larger coherent project.

A

coherent project could be based on the type of project,
15

such as building a major bypass around a city.

See

Scottsdale Mall, 549 F.2d at 486; Fugate, 347 F. Supp.
at 122-24.

It could be based on direct funding for the

entire project from the federal government.
162

F.3d

at

1052

(noting

that

the

See Ross,

entire

project,

including the segment at issue, was funded by a single
grant from Congress as a demonstration project).
it

could

projects

be

based

are

on

how

designed

or

close

in

time

approved.

Or,

different

See,

e.g.,

Scottsdale Mall, 549 F.2d at 486 (all parts of the
bypass were planned at the same time even though the
construction of the segment at issue faced a seven to
eight year delay due the environmental impact study);
Fugate, 347 F. Supp. at 123 (segments approved within a
two-year

period).

The

underlying

idea

is

that

the

project was conceptualized as a single unit rather than
a series of discrete projects.
Based on the current evidence, this factor does not
support

granting

plaintiffs.

the

relief

requested

by

the

The widening of Highway 431 does have some
16

features of a coherent plan. On earlier projects the
federal government funded along Highway 431, federal
reviews noted that the widening was part of a larger
project for a four-lane corridor along the eastern part
of Alabama down to the beach in Florida.

The federal

government contributed funds to widen the highway north
of Eufaula in the 1960s and 1990s and south of Eufaula
in the 1960s, 1980s, and early 1990s.
$ 50

million

over

four

decades

It spent around

on

widening

repairing the highways in Eufaula’s county.

and

At the

same time, this project is more discrete than those
found to be major federal projects in other cases.

It

did not receive a single source of funding at one time,
but has been funded in parts.

These discrete parts

have also occurred over nearly four decades rather than
within a short time span. It is also not a bypass or a
wholly

new

project,

but

rather

improvements

on

an

existing road.
Weighing
convinced

these

this

0.8

three
mile

factors,
stretch
17

the

is

a

court

is

not

major

federal

project. There is no evidence of pretext by the State
nor has there been federal involvement at any point
over this project.
that

the

widening

Although there are some indications
of

Highway

431

was

a

coherent

project, others indicators, including the four decade
time span, suggest otherwise.

Taken together, these

factors do not show that the federal government has
“actual power to control the project.” Ross, 162 F.3d
at 1051 (internal quotation marks omitted).
The

plaintiffs

also

contend

that

to

allow

this

project to go forward would present an impermissible
fait accompli.

Even if the federal government does not

have control over the project, the plaintiffs argue,
the project becomes a major federal action because it
“restrict[s] or limit[s] the federal decision-makers’
choice of reasonable alternatives when granting federal
approvals for highway construction.”
at 281-82.

Slater, 243 F.3d

The concern in cases applying this theory

is that a federal agency might face such a degree of
public pressure from a state-sponsored building project
18

already underway that it cannot make a reasoned and
independent decision on the federal proposal.
280-81 (collecting cases).

Id. at

For example, in Maryland

Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039,
1041 (4th Cir. 1986), Maryland wanted to build a new
highway running through a state park with federal money
although

an

environmental-protection

organization

argued that upgrading existing highways would serve the
same purpose and limit any impact.

Before the federal

government

study,

completed

its

impact

the

State

allowed construction on the new highway on either side
of

the

state

government

park

to

to

approve

put

pressure

the

on

project.

the

federal

After

the

environmental organization moved for an injunction, the
Gilchrist
federal

court

action

found
and

that

granted

the
the

highway

was

injunction,

a

major

holding

that, “Nonfederal actors may not be permitted to evade
NEPA by completing a project without an [impact study]
and then presenting the responsible federal agency with
a fait accompli.”

Id. at 1042.
19

The plaintiffs contend that allowing the State to
widen

North

government

Eufaula

in

a

Avenue

similar

would

situation

put
as

the
in

federal
Gilchrist

because it would have “no alternative means to connect
the existing four lane termini of U.S. 431 through a
project

that

is

less

otherwise preferable.”
7.

environmentally

damaging

or

Pl. Supp. Br. (doc. no. 34) at

The court is not persuaded.

The theory articulated

in Gilchrist applies when a project is up for approval
by a federal agency and a state or city government
attempts to influence the result through speeding up
construction and spending a lot of money on other parts
of

the

project

that

will

be

proverbial

“roads

to

nowhere” should the federal government deny approval.
Unlike Gilchrist, the question in this case is whether
any federal agency has to grant approval for the state
project.
government

The State is not arguing that the federal
should

approve

its

widening

project;

instead, it is contending that the federal government

20

has no role to play at all.5
North

Eufaula

project,

the

Avenue

is

plaintiffs

Because the widening of

likely
do

not

not

a

have

major
a

federal

substantial

likelihood of succeeding on the merits.

***
The
States

court
should

is

sympathetic

not

be

environmental regulation.

able

to

concerns
to

skirt

that

the

federal

Nevertheless, a State can

choose to use state funds to improve a road, even if
the reason is that the State has less regard for the
environment in relation to development.

Under federal

5.
Because the court finds that there is not a
major federal action, it need not decide whether there
has
been
improper
segmentation
by
the
federal
government. See Barton Creek, 950 F.2d at 1139
(collecting cases); Macht v. Skinner, 916 F.2d 13, 16
n.4 (D.C. Cir. 1990) (“Unless a project involves a
major federal action, NEPA does not apply.
The
segmentation cases are distinguishable because they
involve the question of whether a federal project has
been illegally segmented to avoid compliance with
NEPA.”) (emphasis in original), abrogated on other
grounds by Karst Envtl. Educ. & Prot., Inc. v. E.P.A.,
475 F.3d 1291, 1297 (D.C. Cir. 2007).
21

law, a problem arises only if the State takes advantage
of federal planning, expertise, or money and then tries
to avoid federal requirements.

That does not appear to

be the case here.
Also, the plaintiffs present a strong argument that
this

historic

area

should

not

be

put

in

jeopardy.

However, in view of the fact that this is not a federal
project, this is a local concern.

It should thus be

resolved at the local level--that is, between the State
of Alabama and the City of Eufaula.
An appropriate order will be entered separately.
DONE, this the 29th day of December, 2014.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE

22