United States Court of Appeals For the First Circuit
No. 24-1138
NATIONAL TRUST FOR HISTORIC PRESERVATION; FRIENDS OF THE FRANK J. WOOD BRIDGE,
Plaintiffs, Appellants,
HISTORIC BRIDGE FOUNDATION; WATERFRONT MAINE, BRUNSWICK, LLC,
Plaintiffs,
v.
PETER PAUL MONTGOMERY BUTTIGIEG, in his official capacity as Secretary of the United States Department of Transportation; SHAILEN BHATT, in his official capacity as Administrator, Federal Highway Administration; TODD JORGENSEN, in his official capacity as Administrator, Federal Highway Administration Maine Division; BRUCE VAN NOTE, in his official capacity as Commissioner, Maine Department of Transportation,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Gelpí, Kayatta, and Aframe, Circuit Judges.
Christopher M. Cody, with whom Elizabeth S. Merritt and Andrea C. Ferster were on brief, for appellants. John Emad Arbab, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom Todd Kim, Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, Joan M. Pepin, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, and Silvio J. Morales, Attorney, U.S. Department of Transportation, were on brief, for appellees Peter Paul Montgomery Buttigieg, Shailen Bhatt, and Todd Jorgensen. Thomas A. Knowlton, Deputy Attorney General of Maine, with whom Aaron M. Frey, Attorney General of Maine, and Anne M. Pare, Chief Counsel, Maine Department of Transportation, were on brief, for appellee Bruce Van Note.
January 10, 2025 KAYATTA, Circuit Judge. We consider for a fourth time
the fate of the Frank J. Wood Bridge ("the Bridge"), a key piece
of Maine's infrastructure connecting the municipalities of Topsham
and Brunswick. Built in 1932, the Bridge is no longer capable of
safely performing its needed role, and traffic restrictions and
eventual closure will likely result absent substantial
rehabilitation or replacement.
Maine's Department of Transportation (MDOT) concluded
that replacement makes more sense than rehabilitation. Because
federal funds will be used to replace the Bridge, MDOT was
therefore required to obtain the approval of the Federal Highway
Administration (FHWA) and to comply with several federal statutes,
including -- because the Bridge is part of a historic district and
is itself historic -- section 4(f) of the Department of
Transportation (DOT) Act. See DOT Act, Pub. L. No. 89-670, § 4(f),
80 Stat. 931, 932 (1966), codified as amended at 49 U.S.C. § 303(c)
(limiting approvals of projects which "use" a protected property
to situations where there is "no prudent and feasible
alternative"); 23 C.F.R. § 774.17 (2024) (providing that an
alternative is not "prudent" under section 4(f) if it "results in
additional construction, maintenance, or operational costs of an
extraordinary magnitude"); see also 54 U.S.C. § 306108 (requiring
federal agencies to "take into account the effect of [any]
undertaking on any historic property"). Over the objections of
- 3 - pro-preservation groups -- including the plaintiffs prosecuting
this appeal -- the FHWA granted MDOT approval under section 4(f)
to replace the Bridge.
A petition for review to the district court followed,
Hist. Bridge Found. v. Chao, 517 F. Supp. 3d 9 (D. Me. 2021), in
which plaintiffs and others presented "a slew of line-item
challenges to various [agency] calculations," Hist. Bridge Found.
v. Buttigieg, 22 F.4th 275, 281 (1st Cir. 2022). The district
court rejected all of plaintiffs' challenges. Hist. Bridge Found.
v. Chao, 517 F. Supp. 3d at 32.
Plaintiffs' first appeal to this court followed. We
rejected all of plaintiffs' challenges, save one. Hist. Bridge
Found. v. Buttigieg, 22 F.4th at 282–86. The surviving challenge
pertained to the manner in which MDOT compared the costs of
replacement and rehabilitation in concluding that rehabilitation
would represent a cost of "extraordinary magnitude" under 23 C.F.R.
§ 774.17 (2024), so as to render rehabilitation not "prudent" under
section 4(f). Id. at 284. As explained in more detail in our
opinion on that prior appeal, MDOT concluded that the
rehabilitation alternative would cost over double the cost of
replacement, for a shorter service life. Id. at 279. In so
concluding, MDOT did not rely on the differential that would result
from discounting future costs to present value -- although it
calculated that differential, roughly 53%, in a calculation known
- 4 - as life-cycle cost analysis. Id. at 284–86. Nor did the agency
explain why it did not rely on discounted costs, apart from
"rel[ying] on non-discounted future costs as the better basis upon
which to compare the alternatives," id. at 279, despite evidence
that the DOT and the FHWA's own guidelines identify discounting as
"the standard and preferred way to compare future costs," id. at
284–85 (citing, among others, Off. of Asset Mgmt., FHWA, Pub.
No. FHWA IF-02-047, Life-Cycle Cost Analysis Primer 9 (2002)). We
therefore vacated the FHWA decision in part and remanded the case
"for the strictly limited purpose of allowing the agency to further
justify use of the service-life analysis and/or to decide whether
a 53% price differential represents a cost of an extraordinary
magnitude under 23 C.F.R. § 774.17." Id. at 286.
The district court then did as we ordered, remanding the
case to the FHWA with identical instructions. On remand, the FHWA
also did as we ordered, training its attention on deciding whether
a 53% price differential between new construction and
rehabilitation represented a cost of an extraordinary magnitude.
The FHWA concluded that the 53% differential did constitute a cost
of an extraordinary magnitude.
Rather than contesting that finding, plaintiffs sought
to reframe the inquiry by pointing to the fact that MDOT had
recently increased its own estimate of the cost of building a new
bridge from $13 million to $42 million. That increase in
- 5 - construction costs, plaintiffs contended, eliminated -- indeed
reversed -- the 53% differential. And to parry any assumption
that the cost of rehabilitating the bridge had similarly escalated,
plaintiffs submitted calculations of engineer Robert Shulock, who
"updated" MDOT's 2016 cost estimate for rehabilitation in light of
inflation. According to Shulock and plaintiffs, the updated cost
of rehabilitation using life-cycle cost analysis would be
approximately $25 million, a roughly $18-million savings from
MDOT's updated estimate for reconstruction.
In its final Section 4(f) Limited Scope Re-Evaluation
("Re-Evaluation"), the FHWA did not accept plaintiffs' invitation
to conduct its own calculation of the updated costs of each
alternative; nor did it recalculate the differential between
rehabilitation and reconstruction. It did "acknowledge[]" that
its own cost estimates for replacing the Bridge had increased from
$13 million in 2019 to $42 million in 2022. But it pointed to our
mandate that remand was to be "strictly limited to either
justifying its prior use of non-discounted costs, and/or deciding
whether a 53% price differential represented a cost of
extraordinary magnitude." Moreover, relying on an internal
evaluation of Shulock's calculations, the agency stated that it
found Shulock's "updated" rehabilitation costs to be "flaw[ed]."
"Among other things," the agency opined that:
- 6 - • Shulock's inflation rate of 23% was too low, as
compared to steel component rates of 66–90%
revealed by producer price indices and a general
increase in construction costs of approximately
40%, all of which indicated that "the ratio of
increased costs reflected in the recent work plan
estimates for the replacement alternative would
apply at least equally to [the] rehabilitation
[a]lternative."
• Shulock's estimate failed to include major items
that were included in the replacement estimate,
such as "local amenities, utility work, and full
right-of-way costs."
• Shulock underestimated the costs of "painting, site
access/trestle, removal of existing slab, and
construction of the temporary bridge" that would be
required to rehabilitate the Bridge.
• Shulock overlooked the difference in "long-term
maintenance costs [which is] what truly separate[s]
the two alternatives."
• Shulock relied on a bridge rehabilitation project
in New Hampshire as evidence of costs but failed to
account for the fact that its square footage was
- 7 - one-third that of the Bridge and its scope was not
as extensive.
The agency concluded that it was "not persuaded that the
effects of inflation and other cost considerations presented in
public comments materially change the conclusions reached in its
draft [section] 4(f) Re-Evaluation." It did explain that "[i]n
addition to dollar values, there is added risk and uncertainty to
keeping a fracture critical bridge in service beyond its intended
service life, even if it is extensively rehabilitated."1 This
additional risk is not "fully capture[d]" by cost estimates because
"there is no consistent way to continuously monitor for defects."
And "[i]f a fracture critical component were to fail, it could
cause a bridge to collapse." Regular inspections would be
necessary to reduce this risk, and those would be time-intensive
and highly disruptive.
I.
In February 2023, plaintiffs again sued in United States
district court, alleging that it was arbitrary and capricious under
the Administrative Procedure Act (APA) for the FHWA not to have
considered the updated cost information in MDOT's own
1 As we noted in Historic Bridge v. Buttigieg, "[a] fracture-critical bridge has elements that lack 'redundancy,' such that the failure of one of those elements 'may ultimately lead to a catastrophic failure of the entire bridge.'" 22 F.4th at 278 n.1.
- 8 - possession -- and that if it had, it would have found that
rehabilitation is a prudent and feasible alternative.2 After
fielding plaintiffs' varied efforts at enjoining construction on
the project,3 the district court granted summary judgment for the
2 In the district court, plaintiffs challenged the FHWA's decision under both section 4(f) and the National Environmental Protection Act (NEPA). On appeal, plaintiffs state in a footnote that they "believe that the [a]gencies violated [NEPA] by ignoring new information . . . . However, this appeal focuses primarily on the violation of [s]ection 4(f)." Because they do not argue a NEPA claim on appeal aside from this cursory reference, any such claim is waived for underdevelopment. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (applying the "settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). As a result, we discuss only the section 4(f) issue. 3 In March 2023, MDOT awarded a nearly $50-million contract to begin construction on the Bridge replacement. Nat'l Tr. for Hist. Pres. v. Buttigieg, No. 2:23-cv-00080, 2024 WL 69855, at *4 (D. Me. Jan. 5, 2024). In response, plaintiffs moved for a preliminary injunction to prevent construction going forward. After the district court denied their motion, plaintiffs appealed to this court and sought an emergency motion for an injunction pending an appeal. We denied plaintiffs' emergency motion for an injunction pending appeal without prejudice for non-compliance with Federal Rule of Appellate Procedure 8(a), instructing that plaintiffs should first seek an injunction pending appeal from the district court. In response to this court's order, plaintiffs filed an emergency motion for an injunction pending appeal in the district court. They also requested a temporary restraining order to halt work on bridge reconstruction, and in the case of a denial, a stay of construction activities pending appeal. The district court denied both requests; plaintiffs then renewed their emergency motion for an injunction pending appeal with us. We denied this last request by stating, "[o]ur strictly limited remand did not provide the occasion for a new foray by the plaintiffs and, in any event, the new foray now attempted does not look especially promising, even were its pursuit otherwise appropriate notwithstanding our strictly limited remand."
- 9 - agencies. Nat'l Tr. for Hist. Pres. v. Buttigieg, No. 2:23-cv-
00080, 2024 WL 69855, at *1–2 (D. Me. Jan. 5, 2024). In relevant
part, the district court found that the FHWA "was required to use
[MDOT's] 2016 cost estimates because those estimates were before
the agency 'at the time of the agency action.'" Id. at *9 (quoting
Dep't of Homeland Sec. v. Regents of the U. of Cal., 591 U.S. 1,
20–21 (2020)). The district court also reasoned that the agency
"complied with [this court's] remand instructions," which
specifically instructed the FHWA to either justify its use of
non-discounted figures or consider whether a 53% price
differential was an extraordinary cost. Id. Because the district
court found that the agencies properly used the 2016 cost
estimates, it found it "unnecessary to consider [p]laintiffs'
arguments concerning whether the rehabilitation alternatives would
be a prudent and feasible alternative if 2022 cost estimates were
used." Id. at *9 n.7. Plaintiffs appealed.
II.
"Agency determinations under . . . section 4(f) are
reviewed under the [APA] and accordingly shall not be overturned
unless arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." Hist. Bridge Found. v. Buttigieg, 22
F.4th at 282 (cleaned up); see 5 U.S.C. § 706(2)(A). Under this
standard, a reviewing court should "determine whether the agency
has examined the pertinent evidence [and] considered the relevant
- 10 - factors." Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 202
(1st Cir. 1999) (quoting Penobscot Air Servs., Ltd. v. FAA, 164
F.3d 713, 719 (1st Cir. 1999)). "The agency must explain the
evidence which is available, and must offer a 'rational connection
between the facts found and the choice made.'" Motor Vehicle Mfrs.
Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52
(1983) (quoting Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962)). We review a district court's decision under
the APA de novo. Hist. Bridge Found. v. Buttigieg, 22 F.4th at
282.
III.
On appeal, plaintiffs do not contest that a 53%
differential is a cost of extraordinary magnitude. Instead, as
they argued before the agency and in the district court, they
contend that the FHWA should not have so limited its inquiry on
remand. Rather, say plaintiffs, the FHWA should have reassessed
the relative costs of the alternatives in view of a significant
increase in construction costs during the six years that had passed
since the record before the FHWA was first compiled. And they
contend that the FHWA's decision to continue to assume that
rehabilitation would cost roughly 53% more than new construction
was arbitrary and capricious.
As the district court concluded, our mandate in the prior
appeal provides the simple answer to this argument. There, the
- 11 - issue before us reflected the agency's 2019 comparison of 2016
cost estimates of the principal rehabilitation and new
construction alternatives. Hist. Bridge Found. v. Buttigieg, 22
F.4th at 284. Without discounting to present value, those costs
generated a roughly 103% price differential, id. at 279, 281, and
it was that differential that the agency found to be a cost of
extraordinary magnitude. But discounting costs to present value
generated only a roughly 53% differential. Thus, we issued a clear
mandate: The remand proceeding was to be "strictly limited" to
either justifying the decision not to use discounted costs or to
opining on whether that differential was a cost of extraordinary
magnitude. Id. at 286. Plaintiffs now resist this straightforward
reading by arguing that our mandate allowed the agency to decide
much more -- i.e., to "deal with the problem afresh." See SEC v.
Chenery Corp. (Chenery II), 332 U.S. 194, 201 (1947). But this
reading of our mandate makes no sense. An order that a remand
proceeding be "strictly limited" to deciding an explicitly
identified and narrow issue does not ordinarily grant license to
consider other issues "afresh."
Nevertheless, say plaintiffs, the agency inherently
retained the ability to reopen the proceeding to reconsider its
prior conclusions based on new evidence. As plaintiffs point out,
the Supreme Court has noted the possibility that, upon remand for
further justification of its decision, an "agency can 'deal with
- 12 - the problem afresh' by taking new agency action." Regents of the
U. of Cal., 591 U.S. at 20–21 (2020) (citing Chenery II, 332 U.S.
at 201). Whether it can do so when the remand mandate is limited
as it is here, we need not decide. Rather, we will assume without
deciding that the agency did have the discretion to reopen the
proceeding.
Primed with that assumption, plaintiffs' argument
proceeds in two alternative forms. First, and principally, they
argue that the agency did in fact reopen the record to consider
new cost information by responding to Shulock's estimates, and
therefore was required to recalculate the differential between
reconstruction and rehabilitation. Second, and much less clearly,
plaintiffs seem to suggest that, if the agency did not reopen the
proceeding to consider updated cost information, it acted
arbitrarily and capriciously. Because we reject both arguments,
we need not reach plaintiffs' contention that, if the agency had
recalculated the differential, it would have necessarily found
that rehabilitation was a prudent and feasible alternative.4
4 Nor do we accept plaintiffs' invitation to "supplement[] the record" with new cost information, tendered to support a claim that the agency was "wrong" in deciding not to recalculate the price differential in the Re-Evaluation. Plaintiffs support this argument with cases considering information that arose after an agency's decision. See, e.g., Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078, 1089 & n.2 (10th Cir. 2004) (finding that it was not an abuse of discretion for the district court to consider a letter sent to the FHWA after its determination that a project would not affect any section 4(f) sites); Am. Petroleum Inst. v.
- 13 - A.
Plaintiffs argue that, by considering and rebutting
Shulock's cost estimates, the FHWA reopened the record -- in other
words, it took into account new cost information that was not in
the record at the time of our remand. See Pub. Emps. for Env't
Resp. v. Hopper, 827 F.3d 1077, 1089–90 (D.C. Cir. 2016) (finding
that the Fish and Wildlife Service reopened the record by choosing
to rely on new, post-remand analysis proffered by its in-house
economist). And, plaintiffs say, because the agency considered
new costs, it was required to take the next step and recalculate
the differential. See id. at 1090 (holding that it was arbitrary
and capricious for the Fish and Wildlife Service to "disregard"
new, post-remand data submitted by plaintiffs where it had
otherwise reopened the record).
EPA, 540 F.2d 1023, 1034 (10th Cir. 1976) (upholding an EPA regulation based on the record before the EPA at the time it took action and finding that "data obtained after promulgation" strengthened that conclusion by showing "the validity of the EPA actions"); Amoco Oil Co. v. EPA, 501 F.2d 722, 729 n.10 (D.C. Cir. 1974) (while reviewing an EPA regulation, supplementing the record with post-promulgation testimony before a congressional committee because the testimony "b[ore] directly upon the plausibility of certain predictions made by the [EPA] Administrator in promulgating the Regulations"). Here, MDOT awarded a construction contract for $50 million after the Re-Evaluation. See Nat'l Tr., 2024 WL 69855, at *4. But at the time of the Re-Evaluation, MDOT had already increased its estimate for the project to upwards of $48 million. Thus, supplementing the record with the price of the construction contract would not significantly alter the analysis, much less show that the agency's section 4(f) determination was "wrong."
- 14 - We disagree. As plaintiffs point out on reply, the
agency did engage an in-house expert to review Shulock's estimates.
But we view that engagement with Shulock's estimates as a
belt-and-suspenders explanation for why the agency was not
reopening the proceeding to take into account new costs.
Plaintiffs' entire rationale for reopening was predicated on a
contention that the rehabilitation costs had not risen
commensurately with new construction costs. That contention, in
turn, rested on Shulock's submission. So by explaining why it
found that submission to be seriously flawed, the FHWA effectively
explained why plaintiffs had not shown cause to reopen the
proceeding to consider new costs even were it an option to do so.
Hence, the premise of plaintiffs' principal argument -- that the
agency reopened the record to consider new cost information -- is
simply not correct.
B.
Largely latent in plaintiffs' briefs is an alternative
argument that the agency acted arbitrarily and capriciously by
failing to reopen the record to consider updated cost information.
We disagree. The fact that, in general, the costs of construction
rose between 2016 and 2022 is hardly surprising. So MDOT's new
2022 construction estimate provided no cause for questioning its
own comparison between construction and rehabilitation
alternatives unless one thought that the costs of rehabilitating
- 15 - the bridge did not also rise commensurately. Presumably for this
reason, plaintiffs proffered Shulock's cost estimate to show that
there was cause to expect significantly different increases in the
relative costs. The FHWA, however, was unimpressed with that
submission. And it explained why. Not only did Shulock omit
certain construction, right-of-way, and maintenance costs from his
rehabilitation estimate, but he also used an apparently very low
inflation rate and relied on lower out-of-state bid prices in
calculating his estimate. These perceived flaws, among others,
are like the thirteenth chime of the clock -- they not only seemed
wrong, but they also cast doubt on all of Shulock's reasoning that
preceded them.
Plaintiffs' counsel seeks to parry this line of
reasoning by attempting to quantify the FHWA's stated criticisms
of Shulock's analysis. But much of this attempted quantification
was not in the record at the time of the Re-Evaluation, and thus
is not appropriate for our review. See Chenery II, 332 U.S. at
196 ("[A] reviewing court . . . must judge the propriety of
[agency] action solely by the grounds invoked by the agency.").
Moreover, counsel's attempts do not address all of the agency's
concerns -- notably, counsel's attempts do not seem to use an
inflation rate that moots the agency's breakdown of greater
inflation rates for specific components, nor do they meet the
thrust of the agency's observation that a key difference between
- 16 - rehabilitation and reconstruction was the cost and challenge of
maintenance. As a result, we find that the record supports the
agency in its rejection of Shulock's estimates as compelling
reasons to expand the scope of the remand proceeding.
In sum, the FHWA was acting in response to a "strictly
limited" instruction from this court. Hist. Bridge Found. v.
Buttigieg, 22 F.4th at 286. By deciding whether a 53% price
differential was a cost of extraordinary magnitude, the agency did
precisely what we told it to do -- plaintiffs hardly argue
otherwise. And on this record we cannot say that its failure to
recalculate the differential between rehabilitation and
reconstruction using updated cost information was arbitrary and
capricious.
Our disposition of this appeal finds support in
contemplating the ramifications of a contrary holding. Many months
and years can pass between the end of an agency proceeding and the
end of judicial challenges to such a proceeding. Furthermore,
multi-issue appeals raising a slew of challenges are not unusual.
Were we to adopt plaintiffs' view that agencies on remand can be
compelled, on a record like this one, to reopen their proceedings
and "update" their assessments, finality and repose would diminish
as proceedings might never end.
IV.
For the foregoing reasons, we affirm.
- 17 -