                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-2215


DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE ASSOCIATION,

                 Plaintiffs – Appellants,

           v.

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; ANTHONY           J.
TATA,    Secretary,   North   Carolina   Department            of
Transportation; FEDERAL HIGHWAY ADMINISTRATION; JOHN           F.
SULLIVAN, III,

                 Defendants – Appellees,

           and

CAPE HATTERAS ELECTRIC MEMBERSHIP CORPORATION,

                 Intervenor/Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.        Louise W.
Flanagan, District Judge. (2:11-cv-00035-FL; 2:12-mc-00001-FL)


Argued:   May 13, 2014                      Decided:   August 6, 2014


Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed in part, reversed in part, and remanded by published
opinion.   Judge Wynn wrote the opinion, in which Judge Duncan
and Judge Childs joined.
ARGUED: Julia Furr Youngman, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants.     Robert Lundman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John
Foster Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.    ON BRIEF: Nicholas S. Torrey,
SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina;
Jason C. Rylander, DEFENDERS OF WILDLIFE, Washington, D.C., for
Appellants.     Ethan G. Shenkman, Acting Principal Deputy
Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas G. Walker, United States Attorney,
Matthew L. Fesak, Assistant United States Attorney, Environment
& Natural Resources Division, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina; Roy Cooper, Attorney General,
Scott T. Slusser, Special Deputy Attorney General, Thomas D.
Henry, Assistant Attorney General, Colin A. Justice, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.




                               2
WYNN, Circuit Judge:

       At the heart of this case are the past and future of the

Outer    Banks,      barrier      islands      along      North     Carolina’s      Atlantic

coast.      For      decades,        the    Herbert       C.    Bonner    Bridge    (“Bonner

Bridge”)    has      provided        highway       access       between    mainland       North

Carolina and the Outer Banks’s Hatteras Island.                           But the effects

of time threaten the structural integrity of the Bonner Bridge,

while large storms and changing coastal conditions                           threaten the

viability of the non-elevated portions of North Carolina Highway

12 (“NC 12”) south of the Bonner Bridge.

       The North Carolina Department of Transportation (“NCDOT”)

and the Federal Highway Administration (“FHWA”) (collectively,

“Defendants”)         sought     a     long-term         transportation      solution       to

these problems and settled on a plan that essentially mirrors

what     currently           exists:       replacing       the     Bonner     Bridge       and

maintaining NC 12 on Hatteras Island.

       Defenders        of    Wildlife       and    the    National       Wildlife    Refuge

Association          (“Plaintiffs”)           responded          with      this     lawsuit.

Plaintiffs        claim        that        Defendants          violated     the     National

Environmental         Policy     Act       (“NEPA”)       and    Section    4(f)     of    the

Department of Transportation Act of 1966 by, among other things,

committing      to    the      construction         of    only     one    segment    of    the

transportation project—namely the replacement bridge—and denying

the    public     the    full     review       of   the        entire    project    and    its

                                               3
environmental impact, as NEPA requires.                  Plaintiffs also contend

that Defendants violated Section 4(f) by, among other things,

improperly       rejecting      alternatives      that    would    not     have     used

protected wildlife refuge land.

      The district court brought Plaintiffs’ suit to a halt by

granting summary judgment in favor of Defendants.                        The district

court    held,    in    part,   that   Defendants     complied      with     NEPA   and

Section    4(f)    in    researching,      designing,      and    selecting       their

project.

      On   appeal,       we     do   not   decide     whether     we     agree      with

Defendants’ policy choices or project preferences.                        Rather, we

must determine whether Defendants have complied with the law in

reaching their decisions.            This has been no easy task, given the

tortured decisionmaking history of this project, the difficulty

of determining exactly what Defendants intend to construct, and

the   extensive        administrative      record    underlying        the   district

court’s decision.         Nevertheless, for the reasons that follow, we

affirm     the    district       court’s       determination      that     Defendants

complied with NEPA, reverse the district court’s determination

that a special exception frees Defendants from complying with

Section 4(f), and remand for further proceedings.




                                           4
                                           I.

                                           A.

      Since    the    early      1990s,    Defendants         have    been     developing

plans to replace portions of NC 12, a two-lane highway that

traverses the Outer Banks.           We refer to Defendants’ chosen plan—

the   one    currently     under    review      by    this    Court—simply       as   “the

Project.”      The Project involves the fifteen-mile portion of NC

12 running from the southern tip of Bodie Island, across the

Oregon      Inlet,   to    the   Village       of    Rodanthe,       the   northernmost

population center on Hatteras Island.                        The Oregon Inlet is a

relatively narrow and shallow channel of water formed in the

mid-1800s by severe storms.

      Before 1963, when the Bonner Bridge was constructed over

the Oregon Inlet, motorists relied on ferries to travel between

Hatteras Island and the mainland.                   The two-lane Bonner Bridge is

approximately        2.4   miles    long    and      carries     over      ten   thousand

vehicles per day during the area’s busy summer tourist season.

      After     crossing      the    Oregon         Inlet     but    before      reaching

Rodanthe, NC 12 passes through thirteen miles of the Pea Island

National      Wildlife     Refuge    (“Refuge”)         and     the     Cape     Hatteras

National Seashore (“Seashore”).                     These two natural areas are

owned and managed by the federal government, and they are major

destinations for many of the tourists who visit Hatteras Island.



                                           5
Although the boundaries of the Seashore and the Refuge generally

overlap in the Project area, they are two distinct entities.

     In    1938,    President       Roosevelt      established     the     Refuge

pursuant to Executive Order 7864, issued under the Migratory

Bird Conservation Act.        The Order stated that the land was to be

reserved “as a refuge and breeding ground for migratory birds

and other wildlife” and that “any private lands within the area

described shall become a part of the refuge hereby established

upon the acquisition of title thereto or lease thereof by the

United States[.]”        Exec. Order No. 7864, 3 Fed. Reg. 734–35

(Apr.    12,   1938).    During     1937   and    1938,   the    United    States

government used condemnation proceedings to acquire the property

for the Refuge directly from the previous land owners.                        The

Refuge    is   managed   by   the    United      States   Fish    and    Wildlife

Service, a bureau of the Department of the Interior (“DOI”).

     In    1937,   Congress    created     the    Seashore   as    a    protected

environment separate and distinct from the Refuge.                 Act of Aug.

17, 1937, Pub. L. No. 311, 50 Stat. 669.              The Seashore contains

approximately 100 square miles of “primitive wilderness” on the

coast, “set apart . . . for the benefit and enjoyment of the

people[.]”      Id. at 669.     The United States government acquired

the land for the Seashore through several deeds from the State

of North Carolina.        Today, the Seashore “is a publicly owned



                                       6
park and recreation area that is owned by the federal government

and administered by the [National Park Service].”             J.A. 1413.

     When the Seashore was created, Congress emphasized the need

to protect it from development, stating that “no development of

the project [Seashore] or plan for the convenience of visitors

shall     be     undertaken   which   would   be    incompatible    with    the

preservation of the unique flora and fauna” in the area.               Act of

Aug. 17, 1937, Pub. L. No. 311, § 4, 50 Stat. 669, 670.                     The

Seashore remains “72 miles . . . of open, virtually unspoiled

beach and scenic drive.”         J.A. 1413.

        During    the   1940s,   paved   roads     were   built   between   the

villages on Hatteras Island, and in 1952, “a paved road was

constructed through Hatteras Island to the village of Hatteras.”

J.A. 1910.        Exactly when and how the public right-of-way south

of the bridge was established is a matter of dispute discussed

in detail below.        But the record reflects that it was not until

1951 that Congress authorized DOI to grant “a permanent easement

for the construction of a public road through . . . the Pea

Island National Wildlife Refuge” to the State of North Carolina.

Act of Oct. 29, 1951, Pub. L. No. 229, 65 Stat. 662.               And it was

not until 1954 that DOI formally deeded the easement to North

Carolina.

    Unfortunately, both the Bonner Bridge and the road have

suffered from the effects of time, ocean overwash, and erosion.

                                         7
NCDOT has deemed the condition of the Bonner Bridge “poor” and

given it a “sufficiency rating of two out of 100.”                               J.A. 1256.

The   condition        of    the     surface       road   is    no     better.        In   its

narrowest places in the Refuge, Hatteras Island is just one-

quarter mile wide, and even under normal weather conditions,

portions    of    NC    12    are     “threatened         by   shoreline        erosion    and

overwash.”       J.A. 1256.

      Despite      moving       NC    12   as       far     west     as    possible, 1     and

notwithstanding valiant efforts by its civil engineers and road

crews,    NCDOT    has       not    been   able      to   ensure       the     uninterrupted

operation of the highway in recent years.                        In November 2009, for

example, Tropical Storm Ida rendered NC 12 impassable just north

of Rodanthe.       Less than two years later, Hurricane Irene created

two breaches that closed NC 12 from August 2011 until October

2011.      And    in    2012,      Hurricane        Sandy      “tore      up   the   roadbed,

leveled the dunes, and damaged the sandbags” north of Rodanthe.

DOT struggling with Highway 12 repairs at the S-curves; more

ferries added for holiday, Island Free Press, Nov. 16, 2012,

http://islandfreepress.org/2012Archives/11.16.2012-DOTStruggling

WithHighway12RepairsAtTheScurvesMoreFerriesAddedForHoliday.html.

(saved as ECF opinion attachment).

      1
       NCDOT has had to seek DOI approval to reconstruct NC 12
west of its original right-of-way and outside the bounds of its
easement.


                                               8
        In   light     of    the      impact       of    storm   events     such    as   these,

merely replacing the Bonner Bridge would not achieve the central

purpose of the Project, which is to “[p]rovide a new means of

access from Bodie Island to Hatteras Island for its residents,

businesses,        services,          and       tourists   prior    to    the     end    of   the

Bonner       Bridge’s       service         life.”         J.A.     2486.          Indeed,    as

Defendants’ own NEPA documents have put it: “Building Phase I

[the bridge replacement] alone would not meet the purpose and

need of the project[.]”                  J.A. 2493.         Therefore, the Project now

“also       includes    NC       12   between       the    community      of     Rodanthe     and

Oregon Inlet, a section of roadway that is at risk because of

shoreline erosion.”              J.A. 2486.

                                                   B.

     In 1991, NCDOT designated several “hot spots” along NC 12:

areas with a high rate of erosion and a high likelihood of

overwash creating a new inlet.                          That same year, transportation

officials       began       to    plan      for     the    replacement      of     the   Bonner

Bridge.        They     completed           a   feasibility      study    and     selected     as

their       NEPA   preferred          alternative 2        the    “1993   Parallel       Bridge

Corridor.”         J.A. 785.             This alternative consisted only of a

        2
       “Preferred alternative” is a NEPA term of art. An agency
must identify its preferred alternative “if one or more exists,
in the draft statement and . . . in the final statement unless
another law prohibits the expression of such a preference.” 40
C.F.R. § 1502.14(e).



                                                   9
replacement    bridge.        In   1993,    Defendants    completed    a   Draft

Environmental Impact Study and a Section 4(f) analysis for this

bridge-only preferred alternative.

     However, nine years later, in 2002, officials decided “that

the 1993 Parallel Bridge Corridor was no longer a viable Bonner

Bridge replacement alternative,” J.A. 787, due in large part to

the ongoing beach erosion and “increased problems with ocean

overwash along NC 12 south of Bonner Bridge” that often rendered

the highway impassable.            J.A. 786.        Defendants perceived the

need to “lengthen the project limits . . . . [T]he prevailing

logic being that if those hot spots are impassible, [sic] what

good is the bridge?”         J.A. 1787.

     Accordingly,        Defendants         began      assessing      different

alternatives that addressed both the bridge and certain segments

of NC 12, preparing a Supplemental Draft Environmental Impact

Statement, and performing a new Section 4(f) Evaluation.                   These

assessments were consolidated into one document that was signed

and released to the public on September 12, 2005 (the “2005

Supplemental         Draft     Environmental         Impact   Statement/4(f)

Evaluation”).

     The      2005      Supplemental        Draft     Environmental        Impact

Statement/4(f) Evaluation analyzed five alternatives that were

located within two different geographic corridors.                    The first

corridor was described as the “Pamlico Sound Bridge Corridor,”

                                       10
and the two alternatives within this corridor involved an 18-

mile-long bridge that extended from Bodie Island in the north to

Rodanthe    in   the   south.     Both     of    these    alternatives,        titled

“Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus”

and “Pamlico Sound Bridge Corridor With Intersection Rodanthe

Terminus,” J.A. 781, avoided almost all of the Refuge and the

Seashore by making a large sweeping curve approximately five

miles     west   of    Hatteras    Island       into     Pamlico   Sound       before

rejoining existing NC 12 in Rodanthe.

     The remaining three alternatives were located within the

“Parallel Bridge Corridor.”           J.A. 781–82.           These alternatives

all consisted of a replacement bridge that would span the Oregon

Inlet parallel to the existing Bonner Bridge, coupled with a

strategy for keeping “NC 12 open from the community of Rodanthe

to the Oregon Inlet bridge’s southern terminus[.]”                    J.A. 783.

These alternatives differed in their respective strategies for

keeping NC 12 open on Hatteras Island.

     The first alternative—titled “The Nourishment Alternative”—

involved    “beach     nourishment   plus       dune   enhancement   .     .    .   to

maintain a minimally adequate beach and dune system.”                    J.A. 783.

The protection afforded by the beach and dunes—which would need

to   be   replenished     with    dredged       sand   every   few   years—would

ostensibly allow NC 12 to remain in place.



                                      11
       The   second   alternative—titled     “Road     North/Bridge     South”—

involved placing NC 12 “on a bridge west of Hatteras Island

beginning at a new intersection in Rodanthe and continuing to a

point approximately 2 miles . . . north of the Refuge’s southern

boundary where the project would meet existing NC 12.”                       J.A.

783.    After that point, NC 12 would

       then remain unchanged for 2.6 miles [and] . . . would
       be relocated to a point 230 feet . . . west of the
       forecast worst-case 2060 shoreline.   This relocation
       would continue 7.1 miles . . . north until the
       relocated NC 12 would meet the Oregon Inlet bridge.
       Three 10-foot-high dunes, totaling 2,100 feet . . .
       would be built when needed as the shoreline erodes
       towards the relocated road.

J.A. 783.

       The final alternative within the Parallel Bridge Corridor

was called the “All Bridge Alternative,” in which “NC 12 would

be constructed on a bridge to the west of the existing road.”

J.A. 783.     Notwithstanding its name, the All Bridge Alternative

would also include two surface road segments—one near the Oregon

Inlet and another “just north of the Refuge’s ponds where access

from NC 12 to the Refuge would be provided.”                   J.A. 783.      The

2005    Supplemental    Draft       Environmental    Impact     Statement/4(f)

Evaluation explained that although all of the Parallel Bridge

Corridor     alternatives    were    described   and   addressed     “as     three

separate     alternatives,    their     components     could    be   mixed    and




                                       12
matched geographically along the length of NC 12 to create other

variations.”        J.A. 783.

         The      2005      Supplemental             Draft      Environmental           Impact

Statement/4(f)            Evaluation        did        not      select       a      preferred

alternative, and Defendants never issued a Final Environmental

Impact Statement.           Instead, Defendants issued another supplement

in 2007.         They titled this document the “Supplement to the 2005

Supplemental        Draft     Environmental           Impact     Statement        and   Draft

Section 4(f) Evaluation”               (the “2007 Supplement”).                     The 2007

Supplement         explains     that       it        was     issued   to     address      the

“characteristics and potential direct, indirect, and cumulative

impacts of two additional detailed study alternatives.”                                  J.A.

1091.          These two new alternatives were titled: (1) “Parallel

Bridge Corridor With Phased Approach/Rodanthe Bridge;” and (2)

“Parallel         Bridge      Corridor          With       Phased     Approach/Rodanthe

Nourishment.”            J.A. 1096.        The 2007 Supplement also explicitly

stated that “[u]nless otherwise noted, information presented in

the 2005 [Supplemental Draft Environmental Impact Statement] has

not changed and is not reproduced in this Supplement.”                                    J.A.

1093.

         The 2007 Supplement’s two new alternatives were variations

on   a    “Phased        Approach”    to    the       Project.        Both       alternatives

included “an Oregon Inlet bridge and elevating portions of NC 12

through the Refuge and northern Rodanthe on new bridges within

                                                13
the existing NC 12 easement.”                      J.A. 1097.           Both alternatives

were proposed to be built in four phases, with the construction

of   the    new   Oregon        Inlet       bridge   as     the       first     phase.         The

remaining       phases     would       be     constructed         “as      necessitated         by

shoreline erosion.”         J.A. 1097.

       The only difference between the two new “Phased Approach”

alternatives        was the manner in which NC 12 would be protected

from     erosion.         Under       the     “Phased       Approach/Rodanthe               Bridge

Alternative, the [new] bridge in the existing NC 12 easement

would begin in Rodanthe . . . and extend north to Oregon Inlet

except for the 2.1 mile . . . length of NC 12 in the southern

half of the Refuge that would not be threatened by erosion prior

to 2060.”       J.A. 1097.        “The Phased Approach/Rodanthe Nourishment

Alternative would be similar except the southern end of the NC

12     bridge     would     begin       0.3     mile        .   .      .    south        of    the

Refuge/Rodanthe        border.          Beach      nourishment          would    be    used     to

protect NC 12 in Rodanthe.”                     J.A. 1097.            And like the 2005

Supplemental       Draft    Environmental            Impact       Statement,          the     2007

Supplement        explained        that        all     of       the        Parallel         Bridge

Alternatives “could be mixed and matched geographically along

the length of NC 12 to create other variations.”                            J.A. 1097.

       To review, then, the 2005 Supplemental Draft Environmental

Impact     Statement      and    its     2007      Supplement         analyzed      in      detail

seven      alternatives:        (1)     Pamlico      Sound      Bridge        Corridor        With

                                              14
Curved Rodanthe Terminus; (2) Pamlico Sound Bridge Corridor With

Intersection          Rodanthe         Terminus;      (3)    Parallel     Bridge      Corridor

With     Nourishment;            (4)     Parallel         Bridge     Corridor    With       Road

North/Bridge          South;      (5)     Parallel          Bridge    Corridor       With     All

Bridge;         (6)         Parallel        Bridge           Corridor         With      Phased

Approach/Rodanthe Bridge; and (7) Parallel Bridge Corridor With

Phased Approach/Rodanthe Nourishment.

       In   2008,       Defendants        issued      a     Final    Environmental      Impact

Statement       (“2008      Final       Environmental         Impact     Statement”)         that

analyzed the seven alternatives covered by the 2005 and 2007

documents.           The Final Environmental Impact Statement stated that

the preferred alternative was the Parallel Bridge Corridor With

Phased      Approach/Rodanthe             Bridge.            J.A.     1229.      The        Final

Environmental           Impact         Statement      clearly        explained       that    the

preferred alternative and the other Phased Approach alternative

that   was      added       in    the     2007     Supplement—the         Parallel      Bridge

Corridor With Phased Approach/Rodanthe Nourishment—would remain

“within the existing NC 12 easement.”                              J.A. 1230.        The Final

Environmental Impact Statement noted that Defendants chose the

preferred alternative based on several factors, including: “the

ability of the alternatives considered to meet the project’s

purpose        and     need;      environmental           consequences;       opportunities

available to mitigate impacts; cost; public and agency comment

[on      the         2005      Supplemental           Draft         Environmental       Impact

                                                 15
Statement/4(f) Evaluation and the 2007 Supplement]; and other

findings           presented     in     this        [Final     Environmental       Impact

Statement].”          J.A. 1231.

       But at the end of the comment period, Defendants did not

issue a Record of Decision. 3             Instead, sometime between late 2008

and early 2009, Defendants decided “to revisit” their preferred

alternative “because of consideration and evaluation given to

comments received on the [Final Environmental Impact Statement]

and    the        Section      4(f)   Evaluation        included     in     the    [Final

Environmental Impact Statement].”                     J.A. 1812.      Defendants also

claimed      to     have    “obtained    additional          information,   which      also

contributed to the re-evaluation” of the preferred alternative.

J.A.       1812.      This     “additional      information”      consisted       of   what

Defendants characterized as “substantial evidence that a public

vehicular thoroughfare existed across the length of the project

area before the Refuge and Seashore were established.”                                 J.A.

       3
        An agency must “prepare a concise public record of
decision.”   40 C.F.R. § 1505.2.    The Record of Decision must
“[s]tate what the decision was[,]” id. § 1505.2(a), “[i]dentify
all alternatives considered . . . specifying the alternative or
alternatives   which  were  considered   to  be  environmentally
preferable[,]” id. § 1505.2(b), and “[s]tate whether all
practicable means to avoid or minimize environmental harm from
the alternative selected have been adopted, and if not, why they
were not[,]” id. § 1505.2(c). Until an agency issues its Record
of Decision, “no action concerning the proposal shall be taken
which would: (1) [h]ave an adverse environmental impact; or (2)
[l]imit the choice of reasonable alternatives” for the project.
Id. § 1506.1(a).



                                               16
1814.    Defendants explained that “[t]his new information changes

[the] FHWA analysis required by Section 4(f).”                 J.A. 1814.

     To support their assertions regarding the history of the NC

12 right-of-way, Defendants created a document titled “NC 12

Right-of-Way Timeline.”        J.A. 1834–48.         In the spring of 2009,

Defendants    distributed      this     document         at    a    meeting     with

representatives of state and federal agencies involved in the

Project.      The   meeting    agenda      for    that    day      indicates   that

Defendants    planned   to    designate     the    Road       North/Bridge     South

Alternative as the new Preferred Alternative. 4                J.A. 1811.

     During     that    meeting,        a        representative        from      the

Environmental Protection Agency (“EPA”) put forth the idea of

first building the replacement for the Bonner Bridge and then

examining the rest of the Project “in more detail when future




     4
        The Road North/Bridge South Alternative was first
introduced in the 2005 Supplemental Draft Environmental Impact
Statement/4(f) Evaluation. As discussed ante at 12, it involved
a complicated mix of a new bridge west of Hatteras Island near
Rodanthe, a road both in the existing easement and well into the
Refuge, several dunes, and a new bridge parallel to the Bonner
Bridge.     Defendants’   stated  reasons   for   favoring  this
alternative in 2009 were (1) improved public access to the
Refuge; (2) consistency with the historic landscape; (3) ability
to mitigate significant impacts on the “wildlife features of the
Refuge;” (4) substantial cost difference; (5) less impact on
waterfowl; and (6) shorter construction timeframe and fewer
construction impacts. J.A. 1821–23.



                                      17
conditions are more known.”               J.A. 1886.         The EPA representative

characterized this idea as “adaptive management[.]” 5                        J.A. 1886.

       Not everyone at the meeting was completely on board with

this        idea,      however.          Specifically,          Pete     Benjamin,        a

representative with the U.S. Fish and Wildlife Service stated

that       “he   was      trying   to   decide       if   adaptive     management     was

appropriate         for    this    project”    but    had    reservations      regarding

“whether or not [the agencies] could identify in the future a

solution through the Refuge that is legal from the perspective

of all of the agencies involved.”                  J.A. 1887.        He went on to say

that       the   agencies     “need[ed]       more    than    just     the   ‘hope’   [of

finding] an appropriate future solution.”                      J.A. 1887.      After the

meeting, Mr. Benjamin sent NCDOT a letter explaining that the

information            that    Defendants          presented      to     the     meeting

participants “contained many incorrect statements and findings


       5
       Adaptive management is “a set of policy tools” directed at
“ensuring the sustainability” of natural resources within
distinct ecosystems. J.B. Ruhl et al., The Practice and Policy
of Environmental Law 140 (2d ed. 2010).    It allows agencies to
“‘continually   research[],   monitor[],   and   evaluat[e]   the
ecological conditions of ecosystems’” and to modify their
efforts to restore those ecosystems based on that research. Id.
(quoting U.S. Gen. Accounting Office, Ecosystem Management,
Additional Actions Needed to Adequately Test a Promising
Approach 49 (1994).    Agencies may use adaptive management to
mitigate adverse environmental impacts.      See, e.g., Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517
(D.C. Cir. 2010).     But adaptive management is not a method
through which agencies can defer decisionmaking about how a
resource will be used. See id. at 505-06, 516.


                                              18
that have the potential to improperly influence decision-making

as the process moves forward.”                  J.A. 1892.         He took issue with

Defendants’       assessments     regarding           the    environmental     impact   on

the    Refuge,    and    he    expressed        the    belief      that    “NCDOT   cannot

demonstrate that it has a right to move its easement for NC-12

to any other location within the Refuge.”                      J.A. 1896.

       Notwithstanding         such    reservations,            Defendants     began    to

pursue yet another new multi-phase alternative—one that differed

from the previously studied alternatives.                       In October 2009, FHWA

released      a   “Revised       Final    Section           4(f)   Evaluation”      (“2009

Section 4(f) Evaluation”).                This document provided the public

with   its    first     notice    of     “the    new        Preferred     Alternative—the

‘Parallel Bridge Corridor with NC 12 Transportation Management

Plan.’”      J.A. 1904.       Defendants explained it as follows:

       This alternative would replace the current [Bonner
       Bridge] with a new bridge located to the west of the
       existing bridge (Phase I).     The replacement bridge
       location in the Refuge is limited to the area
       necessary to safely construct and tie-in the new
       bridge to NC 12.   Under the Parallel Bridge Corridor
       with NC 12 Transportation Management Plan Alternative,
       later phases of actions to manage NC 12 through 2060
       would be decided based on actual conditions existing
       on Hatteras Island at the point in time that
       additional action becomes necessary.      These later
       phases could consist of, but would not be limited to,
       one or more components of any of the alternatives
       already studied as part of the environmental review
       process[.]”

J.A. 1904-05 (emphasis added).



                                           19
       FHWA also explained that “[b]ased on . . . newly obtained

information,” its determinations regarding the applicability of

Section 4(f) had changed.          J.A. 1907.        Specifically, FHWA stated

that       Section    4(f)   applied   only   to   the   Pea   Island    National

Wildlife Refuge “as a historic property[,]” rather than “as a

refuge.” 6       J.A. 1913-14.     FHWA based this assertion on evidence

that       it   claimed   “demonstrate[d]     that    the   Federal     and   State

governments          preserved   the    Hatteras      Island   area      with   an

understanding that vehicular passage would be accommodated, and

that the vehicular passage has not been fixed to one location.”

J.A. 1913.

       FHWA went on to state that “the history indicates that the

Refuge, transportation facility and existing Bonner Bridge were

concurrently and jointly planned and developed by the Federal

and State governments working together to preserve the land for

       6
       The distinction between a refuge and a historic property
can be significant. For example, before making a finding of de
minimis impact regarding refuge property, the Secretary must
provide an opportunity for public review and comment. 49 U.S.C.
§ 303(d)(3).    There is no similar requirement for historic
sites.    49 U.S.C. § 303(d)(2).        See also 23 C.F.R. §
774.5(b)(1)(iii) (imposing no public participation requirement
beyond the minimal encouragement of public involvement included
in the National Historic Preservation Act and 36 C.F.R. §
801.8). Also, refuges are presumed to be significant resources
unless the official with jurisdiction over the property makes an
express determination to the contrary.    23 C.F.R. § 774.11(c).
Historic sites, on the other hand, are considered significant
only if they are included in, or are eligible for, the National
Register of Historic Places. 23 C.F.R. § 774.11(e).



                                        20
wildlife   while       maintaining   a    means     for    safe   and   efficient

vehicular transportation.”           J.A. 1913.        The 2009 Section 4(f)

Evaluation explained that “it is FHWA’s revised determination

that Section 4(f) is not applicable to the Refuge (as a refuge),

as the impacts resulting from relocating NC 12 from its current

alignment through the Refuge would not be considered a use as

defined in 23 C.F.R. § 774.17.”               J.A. 1913.    FHWA concluded that

it “is not required to make a specific Section 4(f) approval for

use prior to approving the project.”              J.A. 1913.

     On    May    7,     2010,   Defendants        issued    an    Environmental

Assessment 7 that “identifie[d] and assesse[d] changes that have

occurred since the approval of the Final Environmental Impact

Statement/Final Section 4(f) Evaluation on September 17, 2008.”

J.A. 2151.       The Environmental Assessment broadly described the

Project as “the construction of a bridge to replace the Herbert


     7
       An Environmental Assessment is “a concise public document”
intended to “provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement
or a finding of no significant impact.”            40 C.F.R. §
1508.9(a)(1); see also Friends of Back Bay v. U.S. Army Corps of
Eng’rs, 681 F.3d 581, 584 (4th Cir. 2012) (noting that an EA is
used “[t]o determine whether a particular action meets the
threshold of significantly affecting environmental quality” such
that an agency is required to complete an Environmental Impact
Statement pursuant to 40 C.F.R. § 1502.3) (internal quotation
marks omitted).   An Environmental Assessment is “more limited”
than an Environmental Impact Statement in its analysis of the
potential environmental impacts.      Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 757 (2004).



                                         21
C. Bonner Bridge in Dare County, the demolition and removal of

Bonner Bridge, and improvements to NC 12 between the community

of Rodanthe and Oregon Inlet.”                   J.A. 2151.      The Environmental

Assessment was intended to provide the public with notice under

NEPA of “the new Preferred Alternative, eventually titled the

Parallel Bridge Corridor with NC 12 Transportation Management

Plan[.]”      J.A. 2178.

       In approximately seven short pages of text and three maps,

Defendants explained that the new preferred alternative would

consist    of    multiple       phases.      The    first     phase    would    be   the

construction of a new Oregon Inlet bridge “as soon as possible,”

J.A. 2177, and in a slightly different location from that which

had    previously       been    evaluated.        Defendants     clarify      in   their

appellate       brief    that    “the     replacement       bridge    would    use   the

existing Highway 12 easement.”                   Appellees’ Br. at 37 (citing

J.A.    2493).          The     amorphously        titled     “Later    Phases”—also

sometimes referred to as the “NC 12 Transportation Management

Plan”—“would be finalized through commitments made in the Record

of Decision.”         J.A. 2182–83.

       The Environmental Assessment went on to explain that, with

respect to the “Later Phases,” the “Parallel Bridge Corridor

with     NC      12     Transportation           Management     Plan     Alternative

(Preferred) does not specify a particular action at this time on

Hatteras Island beyond the limits of Phase I because of the

                                            22
inherent uncertainty in predicting future conditions within the

dynamic    coastal    barrier     island    environment.”       J.A.   2182.

Rather, “the alternative addresses the study and selection of

future actions on Hatteras Island . . . through a comprehensive

NC 12 Transportation Management Plan.”           J.A. 2182.

     The     Environmental        Assessment     does    not    contain     a

“transportation      management    plan”    as   that   term   is   typically

understood. 8   Rather, it contains approximately four pages that

describe how the “plan” consists of “a comprehensive coastal

monitoring   program,”    J.A.    2183,    “[e]nvironmental    [r]eview   for

[f]uture [p]hases,” J.A. 2185, and the “[s]election of [f]uture

[p]hases for [i]mplementation,” J.A. 2185.              Defendants’ “plan”




     8
       The term “transportation management plan” refers to a
comprehensive document that “lays out a set of strategies for
managing the work zone impacts of a project.”     Transportation
Management Plan Examples—FHWA Work Zone, http://www.ops.fhwa.
dot.gov/wz/resources/final_rule/tmp_examples.htm. (saved as ECF
opinion attachment).   A reasonable reader might expect to find
such a document somewhere in the record, given statements made
in the Record of Decision, such as: “The Transportation
Management Plan will guide the implementation of future phases
of the project through 2060.”         J.A. 2497.    “The NC 12
Transportation Management Plan . . . provides a detailed plan to
closely monitor the coastal conditions for environmental changes
over the next 50 years along with changes in associated road
maintenance   activities.”     J.A.   2497–98.     “The  NC   12
Transportation Management Plan then describes the process for
decision-making regarding the future phase actions.” J.A. 2498.
Some of these statements also appear in the EA. See J.A. 2182–
83.



                                      23
is simply to decide what to do with the remainder of NC 12 on

Hatteras Island at some point in the future. 9

       Defendants        claimed      that     “[b]y     actively     monitoring     the

conditions         and     delaying     decisionmaking,         the      environmental

impacts      can   be    better    quantified,         minimized,   and    mitigated.”

J.A.       2182.     Defendants     also      stated     that   “[t]his    process   is

somewhat analogous to a tiered NEPA study, in that the entire

end-to-end impacts have been studied but the detailed selection

of a portion of the action is being delayed.”                    J.A. 2182.

       On December 20, 2010, FHWA issued a Record of Decision that

authorized NCDOT to construct, and FHWA to substantially fund,

the Project described in the revised Section 4(f) Evaluation and

the Environmental Assessment.                  The Record of Decision explains

that the Project “is a mix and match of the Parallel Bridge

Corridor alternatives assessed in the 2008 [Final Environmental

Impact Statement].”             J.A. 2488.         “It calls for Phase I (Oregon

Inlet      bridge)    to   be   built    as    soon     as   possible,    followed   by

construction of later phases whose details would be determined,

       9
       It seems that Defendants may already be proceeding with
future phases.   See J.A. 2682, N.C. Dep’t of Transp., Bonner
Bridge Public Workshops Handout (2011) (“NCDOT has started work
on long-term solutions for [breached locations along N.C. 12 in
northern Rodanthe and the Pea Island National Wildlife Refuge],
which combined are considered Phase II of the Bonner Bridge
Replacement Project.”); see also J.A. 2693 (discussing NCDOT’s
plan to issue contracts for the two breach sites in August and
December 2012).



                                              24
reevaluated, and documented through interagency collaboration as

project area conditions warrant.”               J.A. 2488.

        The   Record     of    Decision     also     contains       a    section       that

responds to comments made by government agencies regarding the

new     preferred       alternative.        The     Army     Corps       of    Engineers

submitted a comment noting that the Final Environmental Impact

Statement     (on    which     the   Environmental         Assessment         was    based)

“would confine future NC 12 maintenance in the Refuge, including

storm-related maintenance, to the existing NC 12 easement, after

the issuance of the Record of Decision for the project.”                               J.A.

2586–87.      Defendants responded as follows:

       The   proposal  in   Section  4.6.8.6   of  the  Final
       Environmental Impact Statement to confine future NC 12
       maintenance activities within the existing easement
       applied only to the Phased Approach Alternatives,
       which were developed with the requirement that all
       work within the Refuge must be confined within the
       existing easement.    That requirement does not exist
       with the NC 12 Transportation Management Plan.

J.A. 2587 (emphasis added).

       Given the foregoing, this Court understands the Project as

follows:      Construction      of    a   new      two-lane     bridge        that     runs

parallel to the existing Bonner Bridge and uses the existing NC

12    easement,     followed    by   “the   study     and     selection        of    future

actions on Hatteras Island beyond the limits of Phase I through

a comprehensive NC 12 Transportation Management Plan[,]” J.A.

2497,    with     the    purpose     of   said     Plan     being       to    “guide    the


                                          25
implementation of future phases of the project through 2060,”

J.A. 2497, and with future phases not necessarily confined to

the existing NC 12 easement, J.A. 2587.

                                            C.

       Plaintiffs sued on July 1, 2011, and                           the parties filed

cross-motions      for     summary      judgment      in       July    and    September      of

2012.      On     September       16,    2013,     the     district          court     granted

Defendants’ motion and denied Plaintiffs’ motion.                              Defenders of

Wildlife v. N.C. Dep’t of Transp., 971 F. Supp. 2d 510, 513

(E.D.N.C. 2013).

                                            1.

       Regarding       Plaintiffs’        NEPA     claim,        the        district       court

explained that Defendants did not violate NEPA by issuing an

“EIS    [that]    only     covers    the    Bonner       Bridge       replacement,          with

future studies planned for later construction phases along the

NC 12 corridor.”           Id. at 526.           It also noted that the bridge

project    can     stand     alone       “due    to     concerns        as     to    changing

conditions       and     weather     events       impacting           the     shoreline      on

Hatteras Island.”          Id. at 524.

       To reach this determination, the district court analyzed

whether the Project violated FHWA’s NEPA regulations pertaining

to   segmentation,        which     require      that      a    project       have     logical

termini and independent utility and not restrict the selection

of   future      phases.      The       district      court      explained          that    “the

                                            26
factual circumstances surrounding this case are unique[,]” id.

at   525,    and        that      “the     northern         end       of     Hatteras        Island

constitutes       a   logical       terminus         for    the       Project”       due     to    the

constantly changing conditions on Hatteras Island, id. at 524.

The district court also stated that the Project “is a reasonable

expenditure           independent              of         additional              transportation

improvements,”            and     that    the        fact       “that        NC      12    requires

maintenance       .   .    .    does     not    ruin      the    substantial            utility     of

replacing     a   bridge         that    is    reaching         the    end      of   its    service

life.”      Id. at 525–26.              Finally, the district court determined

that “no particular action is automatically triggered in later

phases” by the construction of the bridge alone.                                        Id. at 526

(internal quotation marks omitted).

                                                2.

     The     district           court    also       held    that       Defendants          did    not

violate Section 4(f).              First, the district court determined that

“FHWA    properly         relied    on    the       joint       planning          exception       with

respect     to    the     Refuge.”            Id.    at    534.        The        district    court

concluded that the “[f]ederal and state governments preserved

the Hatteras Island area with an understanding that vehicular

passage would be accommodated, and that the vehicular passage

has not been fixed to one location[.]”                            Id.        In reaching this

determination,          the      district       court       relied         on     the     following

evidence: (1) the depiction of an unimproved road through the

                                                27
Refuge on a 1942 Coast Guard map; (2) a 1939 application for a

ferry permit that describes ferry service beginning in 1926; (3)

photos of ferries carrying cars; (4) North Carolina highway maps

from 1944 and 1949; (5) 1938 reports from the manager of the

Refuge that refer to a “public road;” (6) a 1951 U.S. Senate

debate in which North Carolina Senator Willis Smith “asserted

the State’s ownership of the road;” (7) Public Law 229, which,

in 1951, authorized DOI to grant an easement to North Carolina

for a road; (8) a 1954 quitclaim deed granted by North Carolina

to the federal government covering any interest in the land,

with the exception of “a previously granted 100-foot easement;”

and (9) a 100-foot easement granted by DOI to North Carolina in

1954 for construction and maintenance of NC 12.              Id. 533–34.

       The district court also briefly addressed the substantive

requirements     of    Section   4(f)    and     concluded    that       FHWA   had

complied with them.       Specifically, the district court determined

that    no   prudent    alternative      existed,    that    the     “[selected]

alternative will cause the least overall harm,” and that “FHWA .

. . conducted all possible planning to minimize harm.”                     Id. at

535.

       This appeal followed.       Plaintiffs argue that the district

court    erred   in    its    determinations      regarding:       (1)     whether

Defendants    engaged    in   improper       segmentation    in    violation     of

NEPA; (2) the applicability of the joint planning exception to

                                        28
Section      4(f);   and   (3)   whether     Defendants   complied   with   the

substantive requirements of Section 4(f).                 We turn now to a

description of the law governing these issues.



                                       II.

                                       A.

     At the outset, we must correct a major error on which the

district court’s analysis was based:              The district erroneously

defined the scope of the Project when it noted that “the current

[Environmental Impact Statement] only covers the Bonner Bridge

replacement, . . . .”            Id. at 526.     This statement contradicts

the entire record, and in making it, the district court invented

a project that Defendants’ NEPA documents under review expressly

disown. 10


     10
        Although it acknowledged the existence of future phases,
the district court analyzed the Project as if it consisted of
only the replacement bridge over the Oregon Inlet, and it
concluded that such a Project did not violate NEPA's anti-
segmentation principles.     As discussed below, we reject the
district court’s approach because it was based on a project
other than the one described in the record.      We note that the
district   court’s  analysis   may  have   been   appropriate  if
Plaintiffs   had,  for   example,  demonstrated    that  none  of
Defendants’ studied alternatives for NC 12 south of the bridge
could be constructed as a matter of fact.       If that were the
case, then the replacement bridge would be required to connect
“logical termini,” 23 C.F.R. § 771.111(f)(1), have “independent
utility,” 23 C.F.R. § 771.111(f)(2), and “[n]ot restrict
consideration of alternatives for other reasonably foreseeable
transportation improvements,” 23 C.F.R. § 771.111(f)(3).    We do
not pass upon the correctness of the district court’s illegal
(Continued)
                                       29
       Since at least 2002, Defendants have made plain that the

purpose of the Project is to “[p]rovide a new means of access

from    Bodie      Island    to   Hatteras        Island      for        its    residents,

businesses,        services,   and   tourists         prior    to    the       end   of    the

Bonner Bridge’s service life.”              J.A. 2486.          This purpose cannot

be fulfilled by the bridge alone because the entire northern

part of Hatteras Island is occupied by the Seashore and the

Refuge.       The bridge is essentially worthless without a means of

conveying motorists from its southern terminus to the Village of

Rodanthe, which is the northernmost point where the residents,

businesses, and services on Hatteras Island are located.                                  See,

e.g.,       J.A.   2493   (stating    in        the   Record     of       Decision        that

“[b]uilding Phase I alone would not meet the purpose and need of

the project”).

       As    Defendants     stated   in    their       Record       of    Decision,        the

Project “is a mix and match of the Parallel Bridge Corridor

Alternatives assessed in the 2008 [Final Environmental Impact

Statement].” 11      J.A. 2488.      According to the Record of Decision,




segmentation analysis because nothing in the record on appeal
indicates that Defendants cannot construct at least one of their
previously studied alternatives.
       11
        To recap, these five alternatives were titled: (1)
Parallel Bridge Corridor With Nourishment; (2) Parallel Bridge
Corridor With Road North/Bridge South; (3) Parallel Bridge
Corridor With All Bridge; (4) Parallel Bridge Corridor With
(Continued)
                                           30
the Project “calls for Phase I (Oregon Inlet bridge) to be built

as soon as possible, followed by construction of later phases

whose details would be determined, reevaluated, and documented

through   interagency        collaboration    as   project     area   conditions

warrant.”     J.A. 2488.

       It is true that the Project’s only definite component at

this   time   is    the   construction   of   a    “Parallel    Bridge”   across

Oregon Inlet within the existing easement.                   Beyond that, the

“plan” is to “delay[] decision-making,” ostensibly “because of

the inherent uncertainty in predicting future conditions within

the dynamic coastal barrier island environment.”                      J.A. 2497.

Nonetheless,       Defendants    have   clearly    committed    themselves    to

doing something between the southern terminus of the bridge and

Rodanthe—they simply have not (at least publicly) chosen what.

       One way to resolve this case would be to remand all of it

to the district court with instructions to fully evaluate the

actual    Project     that      Defendants    proposed.        However,    “[a]n

appellee may defend, and this Court may affirm, the district




Phased Approach/Rodanthe Bridge (Preferred); and (5) Parallel
Bridge Corridor With Phased Approach/Rodanthe Nourishment.   The
2008 Final Environmental Impact Statement also included the two
alternatives that consisted of a long bridge in Pamlico Sound:
(1) Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus;
and (2) Pamlico Sound Bridge Corridor With Intersection Rodanthe
Terminus.



                                        31
court’s judgment on any basis supported by the record.”                      Sloas

v. CSX Transp., Inc., 616 F.3d 380, 388 n.5 (4th Cir. 2010).

Because    both    parties    have    adequately      briefed     and   argued   the

issues using the properly defined Project, we proceed to our

analyses of the NEPA and Section 4(f) arguments in this case.

                                           B.

     Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”                        Fed. R.

Civ. P. 56(a).          We review a grant of summary judgment de novo,

Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th

Cir. 2005), taking the facts in the light most favorable to the

non-moving party.         Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

255 (1986).

     Because      the    district    court’s     grant     of   summary   judgment

disposed   of     cross-motions      for    summary   judgment,     “we   consider

each motion separately on its own merits to determine whether

either of the parties deserves judgment as a matter of law.”

Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir.

2007) (internal quotation marks omitted).                  In considering each

motion,    we   “resolve     all    factual     disputes    and   any   competing,

rational inferences in the light most favorable to the party

opposing that motion.”         Rossignol v. Voorhaar, 316 F.3d 516, 523

(4th Cir. 2003) (internal quotation marks omitted).

                                           32
      The Administrative Procedure Act (“APA”) governs our review

of   agency    actions      under     NEPA     and    Section     4(f).          See    N.C.

Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th

Cir. 2012); Hickory Neighborhood Def. League v. Skinner, 893

F.2d 58, 61 (4th Cir. 1990).                A reviewing court may set aside an

agency   action      that    was     “arbitrary,       capricious,          an   abuse   of

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

U.S.C. § 706(2)(A); see Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752, 763 (2004); Marsh v. Or. Natural Res. Council, 490

U.S. 360, 375–76 (1989).              “This inquiry must ‘be searching and

careful,’     but    ‘the    ultimate       standard       of   review      is   a    narrow

one.’”      Marsh,    490     U.S.     at    378     (quoting    Citizens        to    Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).                                  Our

review is de novo, “without deference to the district court’s

resolution of the issue.”              Friends of Back Bay v. Army Corps of

Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012).



                                            III.

                                             A.

      The National Environmental Policy Act of 1969, 42 U.S.C. §§

4321–4370f,     “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

                                             33
ecological       systems     and    natural       resources    important        to’   the

United States.”        Pub. Citizen, 541 U.S. at 756 (2004) (quoting

42 U.S.C. § 4321).           All actions undertaken by a federal agency

“with     effects    that    may     be    major    and    which    are       potentially

subject     to     Federal    control       and    responsibility[,]”           and    all

“projects and programs entirely or partly financed, assisted,

conducted,       regulated,    or     approved      by    federal       agencies”     must

comply with both NEPA and the regulations promulgated by the

Council on Environmental Quality. 12               40 C.F.R. § 1508.18.

     NEPA mandates “a set of ‘action-forcing’ procedures that

require     that    agencies       take     a    ‘hard    look’    at    environmental

consequences, . . . and that provide for broad dissemination of

relevant environmental information.”                 Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation

marks and citation omitted).                    Because NEPA “does not mandate

particular       results,      but        simply    prescribes          the    necessary

process[,]” it “prohibits uninformed—rather than unwise—agency


     12
        The Council on Environmental Quality is the executive
agency responsible for promulgating regulations that implement
NEPA.   See 42 U.S.C. § 4342; Exec. Order No. 11,991, 42 Fed.
Reg. 26,967 (May 25, 1997). Courts give “substantial deference”
to the Council on Environmental Quality’s regulations.     Nat’l
Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th Cir.
2005) (quoting Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)).
Additionally, each federal agency must ensure that it complies
with NEPA, and FHWA has established its own regulations for this
purpose. See 23 C.F.R. § 771.101.



                                            34
action.”        Id.    at     350–51.            “[T]he       broad       dissemination          of

information      mandated       by       NEPA    permits       the    public         and     other

government agencies to react to the effects of a proposed action

at a meaningful time.”              Marsh, 490 U.S. at 371.

     Under NEPA, for every “major Federal action[] significantly

affecting     the     quality       of    the    human     environment,”             the    agency

involved must prepare “a detailed statement” that discloses and

evaluates, among other things, “the environmental impact of the

proposed action,” unavoidable adverse effects of the proposed

action, and “alternatives to the proposed action.”                                  42 U.S.C. §

4332(2)(C).         Every Environmental Impact Statement must “provide

full and fair discussion of significant environmental impacts”

arising from the reasonable alternatives.                        40 C.F.R. § 1502.1.

     An agency’s comparative evaluation of alternatives to the

proposed      action    “is     the       heart       of   the    environmental             impact

statement”      because        it        “sharply      defin[es]          the       issues      and

provid[es]      a    clear     basis       for       choice    among       options         by   the

decisionmaker and the public.”                   40 C.F.R. § 1502.14.                Therefore,

agencies must “[r]igorously explore and objectively evaluate all

reasonable alternatives[.]”                 Id. § 1502.14(a).                  The assessment

of the environmental impacts is the “scientific and analytic

basis   for    the     comparison[]”            of    alternatives.             40    C.F.R.      §

1502.16.      “[A]gencies must measure the indirect and cumulative

environmental        effects    of       proposed       actions.      .    .    .    Conclusory

                                                35
statements      that       the    indirect       and    cumulative       effects    will    be

minimal or that such effects are inevitable are insufficient

under NEPA.”           N.C. Wildlife Fed’n, 677 F.3d at 602 (citation

omitted).

       “NEPA does not require agencies to adopt any particular

internal decisionmaking structure.”                        Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, 462 U.S. 87, 100 (1983).                                But NEPA

does    require       agencies       to       follow   a   particular      decisionmaking

process.             For         example,        Environmental        Assessments          and

Environmental         Impact        Statements         must     be   completed      “before

decisions are made and before actions are taken.”                              40 C.F.R. §

1500.1(b);      see    also       id.     §    1500.1(c)      (stating    that    “the   NEPA

process is intended to help public officials make decisions that

are based on understanding of environmental consequences”).

       Also, NEPA imposes a continuing obligation on agencies to

consider the environmental impacts of a proposed action, even

after a Final Environmental Impact Statement has been issued.

An     agency    must       issue       a      supplemental      Environmental       Impact

Statement       if    the    agency           “makes   substantial       changes    in     the

proposed action that are relevant to environmental concerns” or

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)(1)(i), (ii).



                                                 36
       This case implicates the regulations pertaining to illegal

segmentation of the analysis of environmental impacts as well as

those pertaining to the permissible “tiering” of the analysis of

impacts.      We discuss each in turn below.

                                              B.

       Agencies may not engage “in segmentation, which involves

‘an attempt to circumvent NEPA by breaking up one project into

smaller projects and not studying the overall impacts of the

single overall project.’”                Webster v. U.S. Dep’t of Agric., 685

F.3d   411,     426   (4th    Cir.       2012)     (quoting      Coal.    on   W.    Valley

Nuclear Wastes v. Chu, 592 F.3d 306, 311 (2d Cir. 2009)).

       Specifically, “[p]roposals or parts of proposals which are

related to each other closely enough to be, in effect, a single

course     of   action       shall       be   evaluated       in    a     single    impact

statement.”          40   C.F.R.     §    1502.4(a).        Proposed       projects    are

considered “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[;             or]   (iii)     Are    interdependent

parts of a larger action and depend on the larger action for

their justification.”           Id. § 1508.25(a)(1).               Agencies must also

assess    “[c]umulative        actions,”           and   “[s]imilar       actions”     with

“common timing or geography” in the same impact statement.                             Id.

§ 1508.25(a)(2)–(3).

                                              37
      FHWA’s     anti-segmentation           regulations        are     designed     to

“ensure    meaningful       evaluation       of     alternatives      and    to   avoid

commitments to transportation improvements before they are fully

evaluated[.]”        23 C.F.R. § 771.111(f).                Each action evaluated

must:

      (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 consideration of alternatives for
      other      reasonably      foreseeable    transportation
      improvements.

Id. § 771.111(f)(1)-(3).

      To   evaluate    whether       a    project    connects      logical    termini,

courts look to the purpose and need of the project as stated in

the Environmental Impact Statement.                 See Indian Lookout Alliance

v.   Volpe,    484   F.2d     11,    18    (8th    Cir.    1973)     (“If   the   major

objective of a proposal is to connect two cities by expressway,

then these two termini should determine the proper scope of the

[Environmental       Impact     Statement].”).              Additionally,      logical

termini    are   often      obvious       because     of     their    connection     to

“crossroads,     population         centers,      major    traffic    generators,    or

similar highway control elements.”                  Conservation Law Found. v.

Fed. Highway Admin., 24 F.3d 1465, 1472 (1st Cir. 1994).




                                           38
       The    independent       utility            test       also    determines          whether

related      actions    or    projects         must       be    evaluated       in    a    single

Environmental      Impact      Statement.               Webster,        685    F.3d       at   426.

Courts inquire into “whether each project would have taken place

in    the    other’s   absence.       .    .       .    If     so,   [the     projects]        have

independent utility and are not considered connected actions.”

Id.    When determining whether an action has independent utility,

courts      consider   the    benefits         and      uses     that    will      occur       as   a

result of that action, even if no other construction is done in

the area.      For example, in James River v. Richmond Metropolitan

Authority,      this   Court       upheld      a       determination        that     Richmond’s

Downtown Expressway and I-195 had independent utility because

each segment independently allowed traffic to access parts of

the downtown area and other major highways more easily.                                    359 F.

Supp. 611, 636 (E.D. Va. 1973), aff’d per curiam, 481 F.2d 1280

(4th Cir. 1973).             See also Save Barton Creek Ass’n v. Fed.

Highway Admin., 950 F.2d 1129, 1141–42 (5th Cir. 1992) (holding

that   one    portion    of    a    highway            loop    had   independent          utility

because,      standing       alone,        the         project       alleviated        traffic,

improved      access    to    residential,             commercial,       and    recreational

areas, and connected to major roadways).

                                               C.

       By contrast, a tiered or multiphase NEPA analysis may be

appropriate      for    agencies          that         are     “contemplating         large         or

                                               39
complex projects.”          Shenandoah Valley Network v. Capka, 669 F.3d

194, 196 (4th Cir. 2012).                In fact, “[a]gencies are encouraged

to   tier    their       environmental      impact     statements             to    eliminate

repetitive discussions of the same issues and to focus on the

actual issues ripe for decision at each level of environmental

review . . . .”          40 C.F.R. § 1502.20.

     A      properly       tiered        analysis      consists          of         “a     broad

environmental        impact     statement”        followed         by    “a         subsequent

statement     or     environmental        assessment       .   .    .     on       an     action

included within” the program or policy contemplated in the broad

statement.          40    C.F.R.    §     1502.20      (emphasis         added).             The

subsequent statement “shall concentrate on the issues specific

to the subsequent action[,]” and it “need only summarize the

issues discussed in the broader statement[.]”                      Id.

     Tiering       may     never    be    used    to   “avoid       consideration             of

reasonable     alternatives         by     making      a   binding            site-specific

decision at the programmatic stage without analysis, deferring

consideration        of     site-specific         issues       to        a         [subsequent

Supplemental Environmental Impact Statement].”                          ‘Ilio‘ulaokalani

Coal. v. Rumsfeld, 464 F.3d 1083, 1101 (9th Cir. 2006).                                  And the

dividing     line     between      illegal       segmentation           and        permissible

tiering is an agency’s proposal “to make an irreversible and

irretrievable commitment of the availability of resources to a

project at a particular site.”                   California v. Block, 690 F.2d

                                           40
753, 761 (9th Cir. 1982) (internal quotation marks omitted); see

also 42 U.S.C. § 4332(2)(C)(v).

                                      D.

       When reviewing a NEPA decision, a court “must not reduce

itself to a ‘rubber-stamp’ of agency action.”                      N.C. Wildlife

Fed’n, 677 F.3d at 601 (quoting Fed. Mar. Comm’n v. Seatrain

Lines, Inc., 411 U.S. 726, 746 (1973)).               Rather, we must ensure

that    the    agency     has   “‘examine[d]        the   relevant        data      and

articulate[d] a satisfactory explanation for its action.’”                          FCC

v.    Fox   Television    Stations,   Inc.,    556    U.S.    502,       513   (2009)

(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).                        An agency’s

decision is arbitrary and capricious if the agency

       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.

State Farm, 463 U.S. at 43.

       We   may   not    substitute   our   “judgment        for   that        of   the

agency.”      Fox Television Stations, 556 U.S. at 513 (internal

quotation marks omitted).          “[O]ur task is to ensure that [the

agency] took a hard look at the environmental consequences of

the    proposed   action.”       Webster,     685    F.3d    at    421    (internal

quotation marks omitted).         Consequently, “we ‘may not flyspeck

                                      41
[the]     agency’s        environmental            analysis,            looking       for    any

deficiency, no matter how minor.’”                      Id. (quoting Nat’l Audubon

Soc’y,     422    F.3d    at       186    (alteration         in    original)         (internal

quotation marks omitted)).                   Nor may we seize on any “trivial

inadequacy in an [Environmental Impact Statement] as a reason to

reject an agency decision[.]”                 Nat’l Audubon Soc’y, 422 F.3d at

186.      Our “totality of the circumstances approach means that

[we] must view deficiencies in one portion of an [Environmental

Impact     Statement]         in    light     of   how    they          affect    the    entire

analysis.”       Id.

                                              E.

       Plaintiffs        argue       that    “Defendants           violated        the      basic

principles       of    NEPA    and    engaged      in    illegal         ‘segmentation’        by

issuing a [Record of Decision] that disclosed only one initial

segment of the Selected Alternative—a segment that will commit

them to significant future construction of a road and bridges

through a National Wildlife Refuge—while failing to disclose any

specific plans for that construction.”                    Appellants’ Br. at 20.

        Defendants      counter       that    “[n]othing           in    NEPA     requires     an

agency to authorize all phases of a proposed action evaluated in

an   [Environmental        Impact        Statement]      at    the       time    it   issues    a

[Record of Decision].”                Appellees’ Br. at 29.                     They maintain

that “the agencies have fully analyzed the entire project in an

[Environmental            Impact            Statement]             and          [Environmental

                                              42
Assessment,]”     by   conducting       “a     full     end-to-end   study       of

alternatives and associated impacts for the entire length of the

project, from the northern limit on Bodie Island to the southern

limit in the [V]illage of Rodanthe” and have thus not engaged in

segmentation.     Appellees’ Br. at 29–30.

     Illegal     segmentation    is     distinct      from   approving    only    a

portion of a project that has been fully and adequately studied.

We agree with the Eleventh Circuit that NEPA does not require an

agency to “authorize all stages of a project in one [Record of

Decision].”      Defenders of Wildlife v. U.S. Dep’t of the Navy,

733 F.3d 1106, 1116 (11th Cir. 2013).              Nothing in NEPA prohibits

Defendants from authorizing only one part of the Project so long

as doing so does not commit them to a course of action that has

not been fully analyzed.           To be sure, Defendants’ Record of

Decision does commit resources to the Project, and we perceive

no reason why Defendants cannot analyze the entire Project “in a

single impact statement.”        40 C.F.R. § 1502.4(a).           But they are

not required to approve the entire Project in a single Record of

Decision so long as their NEPA documents adequately analyze and

disclose   the    impacts   of    the    entire       Project—including     those

portions that have yet to be approved.

     The   parties     agree     that    the    studied      alternatives    are

feasible, i.e., that, as a matter of sound engineering judgment,

they can be built.       And the record shows that Defendants have

                                        43
adequately       analyzed       the     impacts          associated       with     the     five

Parallel Bridge Corridor alternatives that could be implemented

to   complete     the    Project:       (1)    Parallel        Bridge          Corridor    With

Nourishment; (2) Parallel Bridge Corridor With Road North/Bridge

South;     (3)   Parallel       Bridge        Corridor       With        All    Bridge;     (4)

Parallel    Bridge      Corridor      With     Phased       Approach/Rodanthe            Bridge

(Preferred);      and     (5)    Parallel          Bridge     Corridor          With     Phased

Approach/Rodanthe Nourishment.                 Indeed, at oral arguments, even

Plaintiffs acknowledged that if Defendants had issued a Record

of   Decision     that    committed       to       any    one—or    any        combination—of

those alternatives, that action likely would have complied with

NEPA’s procedural requirements.

      Accordingly,        at    least     with       respect        to     the     previously

studied     alternatives,        Defendants          have     neither          attempted     to

“circumvent[] NEPA” nor refused to study “the overall impacts of

the single overall project.”              Webster, 685 F.3d at 426 (internal

quotation marks omitted).               Rather, they have conducted a full,

site-specific analysis.               Thus, their decision to implement the

Project one phase at a time does not violate NEPA.

      Plaintiffs        press    that    the       Record     of    Decision        seems    to

authorize the construction of future phases that have not yet

been analyzed and disclosed to the public.                         And certain aspects

of the record lend support to that position.



                                              44
       For example, the Record of Decision seems to anticipate the

possibility of “a separate NEPA process” that will take place

when Defendants finally decide what to do with the rest of NC

12.    J.A. 2500.         And the Revised Section 4(f) evaluation seems

to indicate that Defendants are contemplating the construction

of something that has not previously been studied or disclosed:

      Under the Parallel Bridge Corridor with NC 12
      Transportation   Management  Plan   Alternative,  later
      phases of actions to manage NC 12 through 2060 would
      be decided based on actual conditions existing on
      Hatteras Island at the point in time that additional
      action becomes necessary.    These later phases could
      consist of, but would not be limited to, one or more
      components of any of the alternatives already studied
      as part of the environmental review process . . . .

J.A. 1905 (emphasis added).

      Although       it    is    possible      to   read    such    statements    as

Defendants’ attempts to commit to or authorize something outside

the    scope   of    what       their   NEPA    documents    have    analyzed    and

disclosed, that is not how we view these isolated statements

made in the context of hundreds of pages of analysis.                            And

notwithstanding that the NC 12 Transportation Management Plan is

really nothing more than a plan to make a plan for the remainder

of NC 12, the public is clearly on notice that Defendants intend

to    pursue   the    five      studied     alternatives     that    pass   through

Hatteras Island and the Refuge—not the two alternatives that

avoid Hatteras Island altogether via construction of a bridge in

Pamlico Sound.        And because Defendants have fully analyzed and

                                          45
disclosed the environmental impacts associated with these five

legitimate alternatives, Defendants have complied with NEPA with

regard to all five.

      Moreover, NEPA obligates agencies to continue to review the

environmental consequences of their actions, and we think it is

best to read Defendants’ statements that allude to a separate

NEPA process simply as an acknowledgement of this requirement.

If,   for   example,    Defendants     wait     too   long   to    implement      the

future   phases    of   the     Project,     conditions    on   Hatteras    Island

could    change    so   much    that   the    current     Environmental     Impact

Statement no longer covers the alternatives that they studied.

If conditions change to such an extent, Defendants must issue a

supplemental Environmental Impact Statement prior to taking any

other action.       40 C.F.R. § 1502.9(c)(1)(i), (ii).                  Defendants’

statements    in    their      Environmental     Assessment       and    Record    of

Decision that seem to anticipate changing conditions cannot and

do not shield them from NEPA’s procedural requirements.

      In sum, Defendants have not violated NEPA by engaging in

unlawful segmentation with respect to the five studied parallel

bridge alternatives.           We thus affirm the district court’s grant

of summary judgment on the NEPA issue.                  Our opinion may not,

however, be construed as an authorization to proceed outside the

scope of the previously studied alternatives, and Defendants’

doing so would almost surely violate NEPA.

                                        46
                                          IV.

                                          A.

     Unlike     NEPA,       which     “prohibits        uninformed—rather          than

unwise—agency       action[,]”      Robertson,    490    U.S.     at    351,   Section

4(f) of the Department of Transportation Act of 1966, 49 U.S.C.

§ 303, imposes substantive restraints on an agency’s action. 13

Under      Section      4(f),       the     Secretary        of        Transportation

(“Secretary”) is permitted to approve a transportation project

that requires the

     use of publicly owned land of a public park,
     recreation area, or wildlife and waterfowl refuge . .
     . or land of an historic site . . . only if . . .
     there is no prudent and feasible alternative to using
     that land; and . . . the program or project includes
     all possible planning to minimize harm to the
     [publicly owned land] resulting from the use[.]

49 U.S.C. § 303(c).

     In other words, Section 4(f) property “may not be put to

non-park     uses     unless     there     is     no    feasible        and    prudent

alternative    to     the   non-park      use    of    the   land.”        Coal.    for

Responsible Reg’l Dev. v. Brinegar, 518 F.2d 522, 525 (4th Cir.


     13
         The term “Section 4(f)” refers to this provision’s
original location in the Department of Transportation Act of
1966.   Pub. L. No. 89-670, 80 Stat. 931 (1966).    The text of
Section 4(f) has now been codified at both 23 U.S.C. § 138 and
49 U.S.C. § 303.      The name “Section 4(f)” is no longer
indicative of the provision’s location, but the term is so
widely recognized that it continues to be used to avoid
“needless confusion.” 23 C.F.R. 771.107(e) n.2 (2013).



                                          47
1975). 14      Further, the Secretary may approve a transportation

project that uses Section 4(f) property only if “the program or

project       includes     all    possible      planning   to    minimize      harm     to

the . . . wildlife          and    waterfowl        refuge[.]”         49     U.S.C.     §

303(c)(2).

       The Secretary must perform a Section 4(f) evaluation and

comply       with   that    provision’s      other     substantive      requirements

before approving any use of Section 4(f) property.                          The same is

not    required,      however,       if    the    “joint    planning         exception”

applies.       Under the joint planning exception,

       [w]hen a property is formally reserved for a future
       transportation facility before or at the same time a
       [Section 4(f) property] is established and concurrent
       or joint planning or development of the transportation
       facility   and  the  Section  4(f)   resource  occurs,
       then any resulting impacts of the transportation
       facility will not be considered a use as defined in §
       774.17.

23 C.F.R. § 774.11(i).              In other words, for a transportation

facility       that   uses       Section     4(f)     property    to        escape     the

substantive requirements of Section 4(f), two conditions must be

met.        First, the property for the transportation facility must

       14
        The term “Section 4(f) property” refers to “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[.]” 23 C.F.R. § 774.17. A “‘use’ of Section 4(f)
property occurs[,]” among other things, “[w]hen land is
permanently incorporated into a transportation facility[.]” 23
C.F.R. § 774.17.



                                           48
be “formally reserved . . . before or at the same time” as the

establishment of the Section 4(f) property.                         Id.     Second, the

transportation facility and the Section 4(f) property must be

concurrently or jointly planned or developed.                      Id.

      If   Section      4(f)   property       will   be     used    and    no     exception

applies, the Secretary must show that the project includes “all

possible planning to minimize harm” to the Section 4(f) property

and that “no prudent and feasible” alternatives are available.

49 U.S.C. § 303(c)(1)-(2).

      The “all possible planning” prong of the analysis cannot be

met until a project’s design is complete.                          See D.C. Fed’n of

Civic Ass’ns v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir. 1971).                               If

all   possible     planning      to   minimize       harm    to     the    Section       4(f)

property has not been completed before the Secretary’s approval

of the project, the Section 4(f) evaluation is invalid because,

“[a]bsent    a    finalized     plan . . ., it        is     hard    to     see    how    the

Department could make a meaningful evaluation of ‘harm.’”                           Id.

      The Secretary must also find that there is “no prudent and

feasible alternative” to using the Section 4(f) property.                                  49

U.S.C. § 303(c)(1).            An alternative is infeasible only when it

“cannot be built as a matter of sound engineering judgment.”                              23

C.F.R. § 774.17(2); see also Overton Park, 401 U.S. at 411.

      To   find    an    alternative         to   using     Section       4(f)    property

imprudent,       the   Secretary      must    determine      that     the    impacts       or

                                             49
adverse     effects       associated       with          that     alternative      are

extraordinary      or   unique.      See     id.    at    413.      The    Secretary’s

regulations explain that an alternative is imprudent if:

       (i) It compromises the project to a degree that it is
       unreasonable to proceed with the project in light of
       its stated purpose and need;
       (ii) It results in unacceptable safety or operational
       problems;
       (iii) After reasonable mitigation, it still causes:
            (A) Severe social, economic, or environmental
            impacts;
            (B) Severe disruption to established communities;
            (C) Severe disproportionate impacts to minority
            or low income populations; or
            (D) Severe impacts to environmental resources
            protected under other Federal statutes;
       (iv)   It    results   in    additional   construction,
       maintenance, or operational costs of an extraordinary
       magnitude;
       (v) It causes other unique problems or unusual
       factors; or
       (vi) It involves multiple factors . . . that while
       individually minor, cumulatively cause unique problems
       or impacts of extraordinary magnitude.

23 C.F.R. § 774.17(3)(i)-(vi).

       Imprudence may not provide cover for using Section 4(f)

land “unless ‘there [are] truly unusual factors present in a

particular case or the cost or community disruption resulting

from    alternative       routes    reach[]        extraordinary        magnitudes.’”

Hickory    Neighborhood      Def.    League,        893    F.2d    at     61   (quoting

Overton    Park,    401    U.S.    at   413).         See       also,   Monroe   Cnty.

Conservation Council, 472 F.2d at 700 (“[A] road must not take

parkland, unless a prudent person, concerned with the quality of

the human environment, is convinced that there is no way to

                                        50
avoid doing so.” (footnote omitted)).                      And a state may not use

“self-imposed restrictions” on financing mechanisms to render an

alternative imprudent.           Coal. for Responsible Reg’l Dev., 518

F.2d at 526.

     The    Secretary’s        Section    4(f)        evaluation     of    the    entire

project    must   be   completed       before        the   Record   of    Decision     is

issued    and   before   work     on     the    project      begins.       Corridor    H

Alternatives,     Inc.    v.    Slater,        166    F.3d   368,   373    (D.C.     Cir.

1999); see also 23 C.F.R. § 774.9(a) (“The potential use of land

from a Section 4(f) property shall be evaluated as early as

practicable . . . when alternatives to the proposed action are

under study.”).

     Further, the Secretary may not reduce the number of prudent

and feasible alternatives that are available by fragmenting the

evaluation and approval of a single project into separate parts.

Instead, the Secretary must evaluate each project as a whole,

not “phase-by-phase.”           N. Idaho Cmty. Action Network v. U.S.

Dep’t of Transp., 545 F.3d 1147, 1159 (9th Cir. 2008).                                The

Secretary’s determination that there are no feasible and prudent

alternatives must “include sufficient supporting documentation

to demonstrate why there is no feasible and prudent avoidance

alternative     and    shall    summarize       the    results      of    all    possible

planning[.]”      23 C.F.R. § 774.7(a).



                                          51
      If there are no feasible and prudent alternatives to using

Section     4(f)    property,        the     Secretary         may    select      only    the

alternative that “[c]auses the least overall harm in light of

[Section     4(f)’s]        preservation           purpose.”            23     C.F.R.        §

774.3(c)(1).         This     determination         involves         balancing      several

factors,     including:        (1)    the     “ability         to     mitigate      adverse

impacts”;     (2)     the      relative       severity         of     the    harm        after

mitigation; (3) the relative significance of the Section 4(f)

property; (4) the “views of the official(s) with jurisdiction

over each Section 4(f) property;” (5) the “degree to which each

alternative meets the purpose and need for the project;” (6)

“[a]fter    reasonable        mitigation,         the   magnitude       of   any    adverse

impacts to resources not protected by Section 4(f);” and (7)

“[s]ubstantial differences in costs among the alternatives.”                               23

C.F.R. § 774.3(c)(1)(i)–(vii).

                                             B.

      In   reviewing     an    agency’s       Section         4(f)   determination,         we

must conduct a “thorough, probing, indepth review” to ensure

that the Secretary’s determination complies with Section 4(f)’s

requirements.        Monroe Cnty. Conservation Council, 472 F.2d at

700   (internal      quotation       marks    omitted).             First,   we    consider

whether    the     Secretary    acted      within       the    scope    of   his    or     her

authority when conducting the Section 4(f) evaluation.                              Overton

Park, 401 U.S. at 415.                This requires examining whether the

                                             52
Secretary could have reasonably believed that no feasible and

prudent     alternatives       to     using     Section        4(f)    property       existed.

Id. at 416. Second, the reviewing court must consider whether

the    Secretary’s        choice       to    use      Section         4(f)    property      was

“‘arbitrary, capricious, an abuse of discretion, or otherwise

not    in   accordance      with       law.’”         Id.      (quoting      Administrative

Procedure Act, 5 U.S.C. § 706(2)(A) (1964)).                           This determination

requires      us   to   review       whether       the    Secretary’s         “decision       was

based on a consideration of the relevant factors” and whether

the    factors     actually      support        the      Secretary’s         determination.

Hickory Neighborhood Def. League, 893 F.2d at 61-62 (internal

quotation      marks     omitted).           Finally,       we    must       also    determine

whether     the    Secretary         followed       all     procedural        requirements.

Overton Park, 401 U.S. at 417.

                                              C.

                                              1.

       Plaintiffs       contend       that     the       district      court       erroneously

applied the joint planning exception to the Project.                                They argue

that   when    the      Refuge       was    created,      NC     12    had    not    yet   been

formally reserved and that it was not jointly or concurrently

planned.

       Because the joint planning exception applies only when a

transportation facility is “formally reserved . . . before or at

the    same    time,”     as     a    Section       4(f)       property,      23     C.F.R.    §

                                              53
774.11(i), the only relevant evidence is that which sheds light

on the status of NC 12 on or before April 12, 1938, the date of

the executive order establishing the Refuge.           Yet some of the

evidence on which the district court relied in deeming the joint

planning   exception   applicable—the   1942   Coast   Guard   map,   the

North Carolina highway maps from 1944 and 1949, the 1951 Senate

debate, the public law from 1951 authorizing DOI to grant an

easement to North Carolina, the 1954 quitclaim deed, and the

1954 easement—prove nothing about the status of NC 12 when the

Refuge was established.    In other words, this evidence is wholly

insufficient to support the application of the joint planning

exception here.

     All we are left with, then, is a 1939 application for a

ferry permit that describes ferry service beginning in 1926,

photos of ferries carrying cars, and some 1938 reports from the

Refuge’s manager that refer to a “public road.”           None of this

evidence demonstrates that NC 12 had been formally reserved as

of April 12, 1938.     At best, it shows that cars were crossing

Oregon Inlet and perhaps driving on a “public road” sometime in

1938.

     Moreover, formal reservation “before or at the same time,”

alone, even if it had been shown—and it was not—cannot support

the application of the joint planning exception.          Instead, the

evidence must also show that “concurrent or joint planning or

                                 54
development” of NC 12 and the Refuge occurred.                           Id.     But the

evidence in the record here shows no such thing.                           Indeed, the

only evidence that pertains to the planning of NC 12 is the 1951

public    law     authorizing       DOI   to     grant     an    easement       to    North

Carolina, North Carolina’s 1954 quitclaim deed, and DOI’s 1954

easement.               Because     these        substantially          postdate         the

establishment       of      the     Refuge,      they     cannot     possibly           show

“concurrent or joint planning or development” of NC 12 and the

Refuge.

       Having sifted through the remainder of the record, we find

nothing     on     which       we   could       affirm     the    district           court’s

application of the joint planning exception.                        In other words,

Defendants have fallen far short of demonstrating that there is

“no genuine dispute as to any material fact” that would entitle

them to summary judgment on this issue.                   Fed. R. Civ. P. 56(a).

       That being said, it is possible that a careful reading of

the    condemnation        proceedings      used    by    the    United        States    to

acquire the Refuge contain something indicating that NC 12 was

formally reserved and concurrently or jointly planned at the

same   time      that    the   Refuge     was    established.        But       that     will

require     an     odyssey        into    the     facts     of    the     condemnation

proceedings and pertinent North Carolina property law that we

refuse to undertake in the first instance.



                                            55
       Accordingly, we reverse the district court’s application of

the joint planning exception and remand the issue for further

proceedings consistent with the detailed instructions in this

opinion’s conclusion.

                                       2.

       Despite the fact that the district court determined that

the joint planning exception applied and that the Project was

therefore      not   subject      to        Section    4(f)’s     substantive

requirements, the district court nevertheless analyzed whether

Section 4(f)’s substantive requirements had been met.                 Because a

Section    4(f)   analysis   is   irrelevant      if    the   joint    planning

exception applies, we will not engage in such an inquiry here.

Of course, should the district court determine that the joint

planning exception is inapplicable, it must examine the record

to determine whether FHWA complied with the substance of Section

4(f).



                                       V.

       For the foregoing reasons, we affirm the district court’s

grant of summary judgment regarding Plaintiffs’ NEPA challenge,

and we reverse the district court’s grant of summary judgment

regarding Plaintiffs’ Section 4(f) challenge.

       We remand this case for further proceedings in accordance

with    this   opinion.      Specifically,      the    district   court    must

                                       56
examine the record to determine whether Section 4(f)’s joint

planning exception applies.                 The only evidence relevant to this

inquiry is that which pertains to the status of NC 12 when the

Refuge was established.               The district court may not apply the

joint planning exception unless it determines that NC 12 was

both    formally        reserved     before    or     at       the   same   time     that   the

Refuge was established and jointly planned or developed with the

Refuge.

       Should the district court conclude that the joint planning

exception does not apply, it must then determine whether FHWA

has complied with the substantive requirements of Section 4(f).

The district court must determine whether FHWA conducted “all

possible planning to minimize harm” to the Refuge, and it must

determine     whether       FHWA     acted    in     an    arbitrary        and     capricious

manner      when    it     determined         that        no     prudent      and    feasible

alternative        to    the   use    of     Refuge       property      for    the    Project

existed. 15    Finally, if the district court determines that FHWA’s

determination           regarding     the     lack        of     prudent      and    feasible

alternatives was not arbitrary and capricious, it must determine




       15
        We note that the district court may need to consider
whether Defendants’ compliance with Section 4(f) can be fully
determined before Defendants have committed to and disclosed the
particulars of the future phases.



                                              57
whether FHWA has selected the alternative that causes the least

overall harm to the Refuge.

       To the extent the district court previously analyzed the

substantive requirements of Section 4(f), we expressly vacate

that analysis     and   instruct    the       district   court       to    follow   the

legal    framework      set     forth     in     this        opinion,      make     the

determinations    enumerated      above,       and   engage     in   the    requisite

“thorough,    probing,        indepth     review”       to     ensure       that    the

Secretary’s      determination          complies      with       Section       4(f)’s

requirements.     Monroe Cnty. Conservation Council, 472 F.2d at

700.

                                                                AFFIRMED IN PART,
                                                                REVERSED IN PART,
                                                                     AND REMANDED




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