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

Filing 50

OPINION. Signed by Honorable Judge Myron H. Thompson on 1/29/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EUFAULA HERITAGE
ASSOCIATION, et al.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
ALABAMA DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.

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

OPINION
Previously,

the

court

denied

a

motion

for

a

temporary-restraining order (TRO) to stop the widening
of a road, from two to four lanes, in the historic
district of the City of Eufaula, Alabama.

City of

Eufaula, Ala. v. Alabama Dep’t of Transp., --- F. Supp.
3d

----,

2014

WL

(Thompson, J.).

7369783,

at

*1

(M.D.

Ala.

2014)

This case is now before the court on

two other motions: a motion for preliminary injunction
and an alternative motion for
appeal.

As

injunction,

which

an injunction pending

explained

below,

seeks

same

the

the
relief

preliminary
as

the

TRO

motion

did,

will

be

denied

as

will

the

motion

for

injunction pending appeal.

I.
The

plaintiffs

BACKGROUND
are

three

historic-preservation

groups,1 and the defendants are the Alabama Department
of

Transportation

Federal

Highway

administrator.2
defendants

and

its

director,

Administration
The

violated

§

plaintiffs
4(f)

of

and

as

well
its

assert
the

as

the

division
that

Department

the
of

Transportation Act (49 U.S.C. § 303),3 § 106 of the
National Historic Preservation Act (16 U.S.C. § 470f),

1. The historic preservation groups are the Eufaula
Heritage
Association,
Alabama
Trust
for
Historic
Preservation, and the National Trust for Historic
Preservation.
The City of Eufaula was originally a
plaintiff as well, but is no longer a party to the
case.
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

and the National Environmental Policy Act, also known
as “NEPA” (42 U.S.C. §§ 4321 et seq.).

The court has

federal-question

to

jurisdiction

pursuant

28

U.S.C.

§ 1331.
This case arises out of the proposed widening of a
0.8-mile

stretch

Department

of

here--North
Alabama.

of

an

Alabama

Transportation.

Eufaula

road
The

Avenue--is

by

the

street

located

in

Alabama

at

issue

Eufaula,

It currently has two lanes and runs through a

historic district, 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

Program,

Byway

which

received

some

federal

funding, and is a major source of tourism income for
the city.

In addition, the State received a federal

grant for landscaping the street in the early 1990s and
for repaving in the last five years.
The

street

is

also

part

of

Highway

431,

a

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

Although the highway was

originally two lanes, other parts have been widened in
3

the past several decades.

The segments of the highway

north and south of Eufaula were authorized for widening
from two to four lanes from the 1960s to the mid-1990s,
with

construction

period.
complied

taking

place

throughout

this

time

Both of those projects used federal money and
with

federal

requirements.

Overall,

the

federal government has contributed $ 47 million on 57
different projects for repair and widening parts of the
highway
Although

in

the

county

federal-review

in

which

documents

Eufaula
for

is

located.

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 this highway is now four lanes, North
Eufaula Avenue remains two lanes, creating congestion
and safety concerns, according to the State.

In 2005,

the State tried to solve this problem by proposing a
6.8-mile

bypass

around

Eufaula.

The

bypass

was

estimated to cost somewhere between $ 40 million and
$ 120

million

and

to

take
4

around

three

years

for

construction.4

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.

After

the

federal

study,

4. In a 2014 presentation, the Alabama Department
of Transportation stated that the current estimated
cost for the bypass was $ 120 million.
See “US 431
Eufaula, Alabama” Presentation (doc. no. 3-18) at 2.
However, the environmental assessment submitted to the
federal government when the bypass was being considered
estimated that the “proposed improvements” would cost
$ 41.8 million. See Environmental Assessment (doc. no.
36-2) at 4. The reason for this large discrepancy is
unclear, as inflation likely does not account for the
300 % increase in costs. As to construction time, the
State contends that the bypass “would not be available
for use for another 10-15 years.” State Def. Opp. to
Prel. Inj. and Request for Inj. Pending Appeal (doc.
no. 45) at 7.
However, the environmental assessment
estimated that “project construction will last for
approximately 30-40 months.” Environmental Assessment
(doc. no. 36-2) at 21. Perhaps “project construction”
does not include the time it would take to acquire the
necessary land, but again the court is unsure how to
reconcile
the
three-year
time
frame
in
the
environmental assessment with the 10-15 year estimate
presented to the court now.

5

however,

the

Department

withdrew

the

bypass

project

primarily based on cost concerns.5
Almost a decade later and earlier this year, the
State decided to address the problem by widening North
Eufaula.

It decided to use only state funds on the

project so that it could move “more quickly” and “more
efficiently.”
with

the

The State began meetings on the issue

community

starting

last

final decision sometime this fall.

spring

and

made

a

The project was

released for bidding on December 5, 2014, and the State
signed a contract for construction on December 10.

The

5. In its earlier opinion, the court stated that
“the bypass was never constructed due, in part, to
local
opposition.”
Eufaula,
--F.
Supp.
3d
at ----, 2014 WL 7369783, at *2.
As the plaintiffs
point
out,
that
characterization
was
incorrect.
Although the Transportation Department has noted that
the bypass “was very unpopular due to traffic bypassing
the business district” and noise concerns, “US 431
Eufaula, Alabama” Presentation (doc. no. 3-18) at 2, it
has
definitively
stated
that
“[d]ue
to
funding
limitations project work ceased.” Id. Moreover, after
the Transportation Department withdrew the project, the
Eufaula City Council still supported it.
See Eufaula
City Council Resolution 13-2005 (doc. no. 40-1) at 1.

6

Transportation

Department

estimates

that

the

project

will cost slightly more than one million dollars.
Several days after the project was released for
bidding, the plaintiffs brought this suit, requesting a
TRO

or,

prevent

alternatively,
the

a

preliminary

construction

on

North

injunction

Eufaula

to

Avenue.

After briefing from both sides, the court denied the
motion for a TRO.

Eufaula, --- F. Supp. 3d at --, 2014

WL 7369783, at *1.
motion

for

a

alternative,

The plaintiffs now renew their

preliminary

request

an

injunction

injunction

or,

pending

in

the

appeal.

These motions are now before the court.

II. DISCUSSION
The

court

will

first

address

the

motion

for

a

preliminary injunction and then move to the motion for
injunction pending appeal.

A. Motion for Preliminary Injunction
In

a

motion

for

a

preliminary

injunction,

the

moving party must show “(1) a substantial likelihood of
7

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

suffered

of

by

an

the

injunction
opposing

would

party

exceed

if

the

the

harm

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).
The defendants allege that the plaintiffs do not
meet

any

injunction.

of

the

requirements

for

a

preliminary

For the same reasons articulated in the

TRO opinion, the plaintiffs have failed to demonstrate
a substantial likelihood of success on the merits, and
the court therefore denies the motion for a preliminary
injunction.

Although the court stands on its earlier

reasoning--and
conjunction
several

that

with

additional

this

opinion

should

one--the

issues.

court

First,

it

be

read

will

in

address

briefly

will

address the Federal Highway Administration’s argument
that

the

court

should

have

denied

relief

on

jurisdictional grounds before reaching its three-factor
8

analysis.
issues

Next, the court will turn to the following

raised

by

the

plaintiffs:

whether

the

court

should have applied segmentation analysis; whether the
court’s pretext analysis was too narrow; whether the
court should have held that the bypass was a functional
equivalent of the current widening and therefore the
widening

was

a

major

federal

action;

and

finally

whether the court underestimated the federal role in
the widening of North Eufaula Avenue.

The court will

take each argument in turn.

i.

Jurisdiction

Although it agrees with the court’s conclusion on
the TRO, the Highway Administration argues that the
court erred in its legal approach by proceeding to its
three-factor

analysis

even

though

there

was

no

federal-agency action.
The court does not understand the Administration’s
argument.

The court agrees that it lacks jurisdiction

if

is

there

three-factor

no

federal-agency

analysis

was
9

the

action.
court’s

But

the

method

for

determining whether federal-agency action existed--that
is, whether the 0.8-mile stretch that used state funds
was ‘federalized’ due to related federal work on the
same

highway.6

invites

the

Put

court

to

differently,

the

Administration

presuppose

the

answer

engaging in the analysis.

before

The court declines such an

invitation.7

6. All of the cases cited by the Highway
Administration engage in this same analysis.
See
Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1101
(9th Cir. 2007) (determining whether level of federal
involvement
in
local
project
gave
the
federal
decision-makers power or control over the project);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 196 (D.C. Cir. 2003) (analyzing whether future
federal funding “federalizes” a city’s metro system
built with solely state funds); Pres. Pittsburgh v.
Conturo, 2011 WL 4025731, at *5 (W.D. Pa. 2011)
(Cercone, J.) (holding that there was “not requisite
involvement in the project by a federal agency” to
require an impact statement).
7.
To the extent that the defendants are arguing
that the lack of federal planning or funding is
dispositive, the court rejects this rigid test as well.
Granted, the court does give weight to the fact that
both the federal and state governments viewed this as a
local, rather than federal, issue as well as to the
Highway Administration’s interpretation of its own
regulations as applied to this case.
(continued...)
10

ii. Segmentation Analysis
The plaintiffs argue that the court should have
applied

segmentation

analysis

three-factor analysis.

in

addition

to

the

The court disagrees.

As discussed in the TRO opinion, NEPA procedural
protections

apply

significantly

to

“major

affecting

environment....”

the

Federal

quality

of

actions
the

human

42 U.S.C. § 4332(c).

The question is

how to define “major federal action.”

In the earlier

opinion,

the

court

used

three

factors

to

evaluate

whether there was enough federal involvement for the
project

to

be

a

major

federal

action.

It

concluded

there was no federal action and that NEPA, therefore,
Nevertheless,
courts
must
still
be
wary
of
situations where the federal government may turn a
blind eye to federal projects or where States evade
federal standards. Other circumstantial evidence can
uncover these scenarios.
For example, a State could
tacitly admit a project is a major federal action by
submitting an environmental impact statement, even if
the federal government does not act on it.
Or, as
discussed
below,
a
State
could
build
a
functional-equivalent
to
an
acknowledged
federal
project to avoid addressing environmental concerns.
While neither of these scenarios is the case here, the
court refuses to endorse a bright-line rule that would
allow States to evade federal regulations.
11

did not apply.

Eufaula, --- F. Supp. 3d. at ----, 2014

WL 7369783, at *6.

The plaintiffs argue that the court

erred by failing to use segmentation analysis as an
alternative
actually

test

a

for

major

segmentation

test

whether

federal
might

a

state

action.

be

a

project
Although

helpful

proxy

in

is
the
some

cases for determining the level of federal involvement,
the court affirms its position that segmentation is not
a

required

test

for

determining

whether

there

is

a

major federal action.
Federal

regulations

note

that,

“Major

Federal

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

responsibility.”

discussed
action

can

in

the

exist

federal funding.

40

earlier
even

C.F.R.
opinion,

where

a

§ 1508.18.
a

State

major
does

As

federal
not

use

Eufaula, --- F. Supp. 3d at ----,

2014 WL 7369783, at *2.

This brings up the question in

dispute here: What can a district court look to in
order to determine whether something is a major federal

12

action, when the presence of federal funding does not
serve as an easy signal?
The animating concern underlying this question is
that a State might use federal resources for a project
and

then

avoid

the

accompanying

federal

rules

by

reclassifying a part of the project that might not pass
muster under those rules.
also

concerned

that

Correlatively, the court is

the

federal

government

might

improperly allow the State to do this.
Although there is no “litmus test” to address this
concern,

the

court

identified

three

circumstantial

factors that help reach the underlying question: the
presence of pretext, the degree of federal involvement,
and whether the project was part of a larger, coherent
project.

Id. at *3-*5.

After analyzing these factors,

the court determined that the widening of North Eufaula
Avenue was not a major federal action.
The

plaintiffs

insist,

however,

Id.
that

the

court

should not have stopped with that analysis and instead
was

required

to

apply

an

13

alternative

‘segmentation

test’ that the plaintiffs take from NEPA implementing
regulations.

This segmentation test states:

“In
order
to
ensure
meaningful
evaluation of alternatives and to
avoid commitments to transportation
improvements before they are fully
evaluated, the action evaluated in
each [environmental impact statement]
or finding of no significant impact
(FONSI) shall:
(1) Connect logical termini and be of
sufficient
length
to
address
environmental
matters
on
a
broad
scope;
(2)
Have
independent
utility
or
independent
significance,
i.e.,
be
usable and be a reasonable expenditure
even if no additional transportation
improvements in the area are made; and
(3) Not restrict
alternatives
for
foreseeable
improvements.”
23 C.F.R. § 771.111.

consideration of
other
reasonably
transportation

The Courts of Appeals are split

on whether this test should be applied in this context.
Compare Save Barton Creek Ass’n v. Fed. Highway Admin.
(FHWA),

950

F.2d

(noting

that,

action,

these

1129,

“absent

1140
a

[§ 771.111]

n.15

finding
criteria

14

(5th
of
do

Cir.

major
not

1992)

federal
apply.”);

Macht v. Skinner, 916 F.2d 13, 16 n.4 (D.C. Cir. 1990)
(“Because we hold that the Light Rail Project does not
involve

‘major

whether

the

Maryland's

federal
district

action,’
court

segmentation

of

we

do

not

correctly

the

Project

decide

held
was

that

proper.

Unless a project involves 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.”8), abrogated on other
grounds by Karst Envtl. Educ. & Prot., Inc. v. E.P.A.,
475

F.3d

1291,

1297

(D.C.

Cir.

2007),

with

Sw.

Williamson Cnty. Cmty. Ass'n, Inc. v. Slater, 243 F.3d
270,

286

n.17

‘segmentation

(6th
test’

Cir.
was

2001)
an

(noting

alternative

that
test

the
to

determine whether something is a major federal action);

8. The plaintiffs contend that Macht, when read in
context, does not preclude the use of the segmentation
test to determine whether something is a federal
project.
The language, however, seems clear that the
segmentation test is a different test that occurs only
after a court has determined whether a project is a
major federal action.
15

Vill. of Los Ranchos de Albuquerque v. Barnhart, 906
F.2d 1477, 1482 (10th Cir. 1990) (using segmentation
test in addition to degree of federal involvement to
determine whether project was a major federal action).
The Eleventh Circuit has yet to rule on this issue.
This court agrees with the Fifth and D.C. Circuits
that

the

segmentation

test

is

required

only

if

court already has found a major federal action.

the
The

court reaches this conclusion for two main reasons.
First, the plain language of § 771.111 suggests that
segmentation is a test for federal agencies to ensure
they

conduct

a

“meaningful”

and

“full[]”

evaluation

after they have authority and control over a project
rather than a test to establish their authority and
control requiring an evaluation in the first place. In
other

words,

without

the

requisite

authority

and

control for a major federal action, there is no project
for the federal government to segment, and, “[i]f there
has been no segmentation, there, a fortiori, can have
been no unlawful segmentation.” Brewery Dist. Soc’y v.

16

Fed. Highway Admin., 221 F. Supp. 2d 902, 914 (S.D.
Ohio 2002) (Marbley, J.).
Second, the segmentation test does not reach the
heart of the issue of whether there is enough federal
involvement

to

control

responsibility

or

establish

the

potential

over

a

for

project.

federal
See

40

C.F.R. § 1508.18 (specifically defining major federal
action). None of the three factors in the segmentation
test

addresses

whether

there

was

federal

planning,

help, or money involved in a project. Although courts
could

use

the

circumstantial

‘segmentation

factor,

the

test’

test

does

as

another

not--on

its

own--indicate levels of federal control as required by
the definition of major federal action.
Third, the plaintiffs insist that the court must
use the segmentation test, but they do not state why it
must be used; they merely note that some other courts,
outside the Eleventh Circuit, have employed it.

The

court is not convinced that § 771.111 was meant to lay
out

a

mandatory

test

for

17

the

question

of

whether

something is a major federal action, and is not bound
to use the test under precedent.
Moreover, even if the

court were to

apply the

§ 771.111 segmentation test, the test weighs against
granting the plaintiffs relief.
whether

the

project

The first factor is

connects

“logical

termini.”

However, “where the highway segments in question, are
not running between cities, but rather running through
one city, logical termini are not so easily determined
by

a

court.”

Moreland,

637

Piedmont
F.2d

430,

Heights
440

Civic

(5th

Club,

Cir.

Unit

Inc.
B

v.

Feb.

1981).9 Instead, as the plaintiffs suggest, “[t]he more
important inquiry in such a situation is whether the
projects have independent utility.”

Id.

As such, the

court turns to independent utility.

9. The Eleventh Circuit has adopted as precedent
all decisions of the former Fifth Circuit rendered
prior to October 1, 1981, and all Former Fifth Circuit
Unit B and non-unit decisions rendered after October 1,
1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33,
34 (11th Cir. 1982); Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).

18

The plaintiffs argue that there is no independent
utility because the widening of North Eufaula merely
facilitates
However,
highway
movement
compelled

“it

traffic
is

the

inherent

network
in

along

that

many

in

each

no

the

very

segment

others;

aggregation,

Highway

if

such

project

enjoy independent utility.”

431

corridor.

concept

will

be

benefits
said

inquiry

is

to

Coal. on Sensible Transp.,

Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987).
correct

a

facilitate

mutual

could

of

whether

the

“project

The

serves

a

significant purpose even if the other related projects,
the other segments, are not built for a long time or
perhaps not at all.”

Save Barton Creek, 950 F.2d at

1141.
Here, the widening of North Eufaula Avenue serves
an independent purpose. It alleviates safety problems
for

motorists

Furthermore,
undertaking

and
the

the

emergency-response
Transportation

North

Eufaula

vehicles.

Department

widening

project

is
more

than a decade after the major widening projects to its
north and south.

The fact that the Eufaula widening
19

was

“not

projects

built
suggests

for

a

that

long
the

time”
three

after

the

projects,

other

although

related, served independent purposes at the time the
State decided to construct them.

See Piedmont Heights,

637 F.2d at 441.
Last, the plaintiffs contend that the project would
“restrict

consideration

reasonably

foreseeable

because

would

it

make

of

alternatives

transportation
federal

for

other

improvements”

involvement

in

other

related projects, such as the bypass, irrelevant.

23

C.F.R.

As

§ 771.111(f)(3).

The

court

disagrees.

explained in detail below, the bypass and the widening
of North Eufaula are vastly different projects in terms
of their cost and timeframe for completion.

Committing

one million dollars to the widening of North Eufaula
does

not

foreclose

the

construction

of

a

65-mile-per-hour bypass in the future.10

10. To the extent that the plaintiffs contend that
the North Eufaula widening restricts consideration of
alternatives by presenting a fait accompli to the
Highway
Administration,
the
court
considered
and
rejected that argument in its previous opinion.
See
(continued...)
20

In sum, the court holds that the segmentation test
is not required by law and of little help in this case.
Moreover,

even

if

the

test

were

required,

the

plaintiffs still would not meet their burden of proving
a substantial likelihood of success on the merits.

iii. Pretext
The plaintiffs next argue that the court’s test for
pretext is too narrow.

Specifically, the court defined

pretext in its TRO opinion as when a State submits an
impact study to the federal government, later withdraws
the

study

out

of

concern

it

will

fail

federal

standards, and then claims it will use only state money
for a purely state project. See Eufaula, --- F. Supp.
3d at ----, 2014 WL 7369783, at *3.

The plaintiffs

argue that requiring the submission of an impact study
for pretext is “bizarre [because] ... it would allow
state agencies to assert the exact same pretext that
would otherwise be unlawful, if they have the foresight
Eufaula, --- F. Supp. 3d at ----, 2014 WL 7369783, at
*5-*6.
21

to

assert

process.”

the

pretext

sufficiently

early

in

the

Pl. Mem. in Support of Mot. for Prelim. Inj.

and Request for Inj. Pending Appeal (doc. no. 40) at 5.
While

the

argument,

the

court

understands

plaintiffs

miss

with the “pretext” factor.

the

the

plaintiffs’

court’s

intention

The court’s point was that,

when a State applies for a federal impact study and
then later withdraws the application, the application
approaches

a

tacit

admission

that

the

federal

government has potential control or responsibility over
the

project,

and

the

withdrawal

of

the

application

suggests that the State may be trying to avoid federal
oversight.

The

court

was

not

implying

that

this

particular set of circumstances must be present for a
finding of a major federal action or that a State that
does not submit an impact statement can avoid scrutiny.
As with discussions of pretext in other situations, the
court lists pretext as a factor because it is an easy
sign that something is amiss.

However, just as the

absence of a racial slur in a workplace does not end a
question

of

racial

discrimination,
22

the

lack

of

the

submission of an impact study does not end the question
whether the State is truly engaged in a major federal
action here. Indeed, the two other factors identified
by the court also help to ferret out whether the State
is

taking

federal

resources

without

submitting

to

federal regulation.
Further, the court does not mean to suggest that
the only way to prove pretext is to show the submission
and withdrawal of an application for a federal impact
study.

In

a

sense,

all

factors

in

the

major-federal-action test examine whether the labelling
of a project as a state, rather than federal, project
was

“pretextual.”

appropriate

label

With
for

this

this

in

court’s

mind,
“pretext”

a

more
factor

might be something akin to “tacit admission.”

iv. Bypass as Functional Equivalent
The plaintiffs next argue that, because the bypass
would

have

served

the

same

function

as

the

current

widening proposal and was planned using federal money,

23

the widening, like the bypass, should be characterized
as a federal project.
For

this

functional-equivalent

theory,

the

plaintiffs rely primarily on Brewery District Soc’y v.
Fed. Highway Admin., 211 F. Supp. 2d 902 (S.D. Ohio
2002)

(Marbley,

Columbus,

Ohio,

J.).

In

proposed

that

case,

plans

for

the

an

city

of

interchange

project, which both parties agreed was a major federal
project.

Id. at 904.

The problem, according to the

plaintiffs, was that the city withdrew a connector that
was part of this interchange and instead proposed to
use its own funds to build an alternative connector
with

the

same

purpose--but

in

a

different

location--that ran through a historic district.
904-905.11

Because

it

replaced

a

similar

Id. at
federal

project, the plaintiffs in that case claimed that the
alternative

route

should

be

subject

to

federal

11.
These
facts
were
presented
at
the
summary-judgment phase. The district court later found
that the original connector was not part of the major
federal action.
See Brewery Dist. Soc’y v. Fed.
Highway Admin., 150 Fed. App’x 502, 504 (6th Cir. 2005)
(affirming district court’s finding).
24

procedural protections

even though the city was not

using federal funds to construct this alternative.
Faced with this novel situation, the court held
that a road could be ‘federalized’ based on it being
the functional equivalent of a previous federal project
with

the

same

primary

purpose.

In

reaching

this

decision, the court first articulated two poles of this
situation:
“Considering the hypothetical example
of the City canceling [the original
segment] and then seeking to use its
own funds to construct, in the same
time-frame as was contemplated for
[the original segment], a road of
quality and dimensions identical to
[original segment], with the only
difference between the two being that
the ‘new’ road is at all points two
feet to the east of the course set for
[the
original
segment],
it
seems
apparent that de minimis alterations
to the ‘old’ federal plan cannot be
enough
to
insulate
an
otherwise
‘federalized’ project from judicial
review. At the same time, it is
obvious that the City could terminate
[the original segment] and then, ten
years down the road, use its own funds
to construct a road unrelated to [the
original
segment]
in
purpose
or
location.”

25

Id. at 916.

For the more difficult cases falling in

between these two poles, like the case before it, the
court

looked

to

the

primary

purpose,

the

levels

of

accessibility, the capacity, and the timing of the two
roads.

Id.12

12. The court elaborated:
“Where the ‘federalized’ road to be built is
not
functionally
identical
to
the
road
contemplated in the federal project, but is
designed to serve the same purpose as the road
it is replacing, is compliance with 49 U.S.C.
§ 303(a) and 16 U.S.C. § 470 required? This
Court finds, based upon the language and
purpose of those two statutes, that the answer
must be yes, with the following caveats:
1. fulfilling the role of the canceled
federal project segment must be the
primary purpose of the ‘federalized’
road (a question of fact); and
2. in order to succeed, the plaintiff
must at least establish a prima facie
case
of
‘functional
replacement,’
consisting of evidence tending to
show:
a. the termini of the ‘federalized’
road are close enough to the termini
of
the
canceled
federal
project
segment to provide similar levels of
accessibility;
(continued...)
26

As

a

threshold,

this

court

finds

the

functional-equivalent test helpful in determining the
degree

of

federal

involvement.

See

Eufaula,

Supp. 3d, at ----, 2014 WL 7369783, at *4.
the

Highway

Administration

functional-equivalent
mean meritless.

test

as

--- F.

Although

criticizes

novel,

novel

does

the
not

Indeed, the Administration would be

hard pressed to maintain that a new project occurring
“in the same time frame,” having the same “quality and
dimensions,” and having the same purpose as an original
b. the capacity of the ‘federalized’
road is approximately that of the
canceled federal project segment;
c.
the
construction
of
the
‘federalized’ road is not so remote in
time from that contemplated for the
canceled federal project segment that
it could realistically have become
necessary due to new traffic patterns;
and
d. the utility of the ‘major federal
project’ of which the canceled project
segment was a part is substantially
enhanced by the construction of the
‘federalized’ road.”
Brewery Dist. Soc'y, 211 F. Supp. 2d at 916-17.

27

federal project becomes de-federalized if moved “two
feet to the east.”

Brewery Dist. Soc’y, 211 F. Supp.

2d at 916.13 Such a position would invite States to
flaunt federal environmental regulations with an easy
loophole.
Applying the above analysis, the court finds the
widening

of

North

Eufaula

equivalent of the bypass.

is

not

the

functional

Granted, the projects are

similar in that both would ensure that traffic moves
more

quickly

and

safely

current bottleneck.

on

Highway

431

through

the

But, the similarities stop there.

13. The plaintiffs contend that the court focused
too heavily on the location of the alternate route to
the exclusion of other factors in its earlier opinion.
See Eufaula, --- F. Supp. 3d, at ----, 2014 WL 7369783,
at *4 (providing example where a State built a
replacement road to a federal project 10 feet from the
original site).
This was not the court’s intention.
As explained above, multiple factors should play into
this analysis, such as the function of the new project,
the location, and the time between the old project and
the new one.
However, the court rejects the
plaintiffs’ argument that location (and by implication,
time frame) should not be used because it would require
the court to decide on a “magic distance” or magic time
period. Courts often use standards rather than precise
rules, especially considering questions that have no
“litmus test” to reach a decision.
See Save Barton
Creek, 950 F.2d at 1134.
28

As the Alabama Transportation Department points out,
the State designed the bypass to start at the outskirts
of the city and allow motorists to drive at speeds of
around 65 miles per hour around the city.

The State

envisioned it as a multi-year project that would cost
at

least

in

the

tens

of

millions

of

dollars.

In

contrast, the widening of North Eufaula would enlarge a
road through the downtown area of Eufaula, in which
motorists

will

speed limits.

likely

be

constrained

to

much

lower

The State estimates the widening will

take several months at most and cost around one million
dollars.

These projects do not have the same time

frame, quality, dimensions, or location. Moreover, most
importantly, there has been a decade time span between
the

two

projects.

“[L]ater

replacement

construction,

locally initiated and financed [cannot] be considered a
federal project merely because it will relieve some of
the

same

have.”

congestion

that

the

[original

road]

would

Brewery Dist. Soc’y, 150 Fed. App’x at 504

(affirming

lower

court)

(internal

omitted).
29

quotation

marks

v.

Federal Role on North Eufaula Avenue

The plaintiffs last argue that this court failed to
recognize

the

extensive

federal

influence

on

the

project.
First,

they

argue

that

the

State

used

federal

government funds to widen roads to the north and south
of

Eufaula,

thereby

current route.

creating

the

bottleneck

in

the

The court addressed this argument in

the previous opinion.

Although the roads around the

0.8-mile stretch were built using federal dollars, they
were widened and approved over a series of decades.
Additionally, as discussed in the earlier opinion, the
fait

accompli

argument

does

not

apply

here.

Eufaula, --- F. Supp. 3d at ----, 2014 WL 7369783, at
*5-*6.
Second, they argue that the design of the road was
a direct consequence of the State’s having followed
federal highway standards.

Both sides agree that the

Transportation Department used the American Association
of State Highway and Transportation Officials standards
30

as guidance to designing the widening.
contend

that,

because

the

highway

is

strategic highway corridor network, it
these standards under federal law.

The plaintiffs
part

of

the

had to apply

Even if this were

true--which the State disputes--it cannot be that every
project on Highway 431 (and a large number of highways
running through the country) is federalized because it
is part of the strategic highway corridor network.

Cf.

Dec. of Mark D. Bartlett (doc. no. 36-4) at ¶¶ 7-16
(noting that the States “construct, own, operate, and
maintain

highways

without

including Highway 431).

federal

involvement,”

Indeed, a number projects on

Highway 431 previously have been completed using solely
state funds.

Dec. of Ronald L. Baldwin (doc. no. 35-1)

at ¶¶ 26-27.
Last, the plaintiffs note that the segment at issue
received federal grants for landscaping and paving in
the

last

several

scenic-byways grant.

years,

in

addition

to

the

These grants do not mean that the

project to widen the road was a federal project.

A

State can make improvements using only state funds to a
31

road originally built with federal dollars, and vice
versa.

Maintenance projects do not equate to federal

control of larger actions.

B. Motion for Injunction Pending Appeal
In

the

injunction,

event
the

the

court

plaintiffs

denies

a
an

request

preliminary
injunction

pending appeal under Federal Rule of Civil Procedure
62(c).

The rule states in relevant part:
“While an appeal is pending from an
interlocutory order or final judgment
that grants, dissolves, or denies an
injunction, the court may suspend,
modify,
restore,
or
grant
an
injunction on terms for bond or other
terms that secure the opposing party's
rights.”

Fed. R. Civ. Proc. 62(c) (emphasis added).
language

of

the

rule

requires

that

“an

The plain
appeal

is

pending”; because the plaintiffs have not filed such an
appeal, the court denies its request for an injunction
pending appeal.
Even if an appeal were pending, the court would
deny

an

injunction

pending

32

appeal.

An

injunction

pending

an

appeal

is

an

“extraordinary

remedy.”

Touchston v. McDermott, 234 F.3d 1130, 1132 (11th Cir.
2000).

Four factors inform the decision: “(1) whether

the stay applicant has made a strong showing that he is
likely

to

succeed

on

the

merits;

(2)

whether

the

applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding;
and

(4)

Holder,

where
556

the

U.S.

public

418,

interest

434

(2009)

lies.”

Nken

v.

(citing

Hilton

v.

Braunskill, 481 U.S. 770, 776 (1987)).14
traditional

stay

factors

contemplate

“Since the

individualized

judgments in each case, the formula cannot be reduced
to a set of rigid rules.”

Hilton, 481 U.S. at 777.

Nevertheless, “the first two factors ... are the most
14.
As the Supreme Court has noted, “[t]here is
substantial overlap between these and the factors
governing preliminary injunctions, not because the two
are one and the same, but because similar concerns
arise whenever a court order may allow or disallow
anticipated action before the legality of that action
has been conclusively determined.”
Nken, 556 U.S. at
434 (internal citations omitted). As discussed below,
the only discernable different for applying the factors
is that the stay is not as rigid a set of rules.
33

critical” and “it is not enough that the chance of
success

on

the

merits

be

better

than

negligible.”

Nken, 556 U.S. at 434; see also Veasey v. Perry, 135 S.
Ct. 9, 10 (2014) (Ginsburg, J. dissenting) (dissenting
because the court
factors

of

irreparable

strayed from its traditional stay

likelihood
harm

of

when

success

on

rejecting

the
a

merits

stay

in

and
an

election-law case).
The court would deny the injunction pending appeal
for

the

same

reason

it

now

denies

the

preliminary

injunction--the plaintiffs have not shown a likelihood
of success on the merits.

Even with the plaintiffs’

additional briefing, the court remains convinced that
“this is a local concern” rather than a federal project
and “should be resolved at the local level--that is,
between the State of Alabama and the City of Eufaula.”
Eufaula, --- F. Supp. 3d at ----, 2014 WL 7369783, at
*6.15

15.
As
to
the
other
“critical
factor”
of
irreparable harm, the court, based on the current
record, is not convinced that the plaintiffs have
(continued...)
34

***
For the foregoing reasons, the court will deny the
plaintiffs’ motions for a preliminary injunction and
injunction pending appeal. An appropriate order will be
entered.
DONE, this the 29th day of January, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE

carried the day. The plaintiffs’ experts contend that
taking three feet off of both sides of the median will
lead to a decline of tree growth and the potential
death of many of the trees. See Dec. of George Barker
(doc. no. 3-35) at ¶¶ 19-26; Dec. of Arthur Chappelka
(doc. no. 3-36) at ¶¶ 11-15. Although the defendants’
arborist agrees that some newer trees close to the curb
may die or need to be relocated, the arborist contends
that the remaining trees will fill in the open canopy
space and might actually become healthier from the
removal of some trees.
Arborist’s Report (doc. no.
35-1) at 51. The arborist also did not predict damage
to the interior trees from pruning the roots that
extent to areas of construction. Id. at 50. For the
court, this expert dispute is in equipoise on the
current record; because the plaintiffs bear the burden
of proof, the court finds that the plaintiffs would
also not meet their burden on irreparable harm.