December 13, 2016
COALITION OF CONCERNED CITIZENS TO MAKE ART SMART; 2706 CENTRAL AVENUE LLC, a New Mexico Limited Liability Company; FOX PLAZA LLC, a New Mexico Limited Liability Company; JULIE STEPHENS; JEAN BERNSTEIN; MARC BERNSTEIN, Plaintiffs - Appellants,
FEDERAL TRANSIT ADMINISTRATION OF U.S. DEPARTMENT OF TRANSPORTATION, an Agency of the United States; ANTHONY FOXX, Secretary of the United States Department of Transportation, in his official capacity; ROBERT C. PATRICK, Regional Director for Region VI of the Federal Transit Administration, in his official capacity; DONALD R. KOSKI, Director, Planning and Program Development of the Federal Transit Administration, in his official capacity; CITY OF ALBUQUERQUE, New Mexico, a municipal corporation; RICHARD J. BERRY, Mayor of Albuquerque, in his official capacity; BRUCE RIZZIERI, Director, ABQ-Ride Transit, in his official capacity, Defendants -Appellees, and MARIA BAUTISTA; STELLA PADILLA; JOSEPH AGUIRRE; MILDRED "MIMI" LOPEZ; ARMOND CHAKARIAN; MAX MACAULEY; YARA ESTRADA; LA MICHOACANA RESTAURANT; WESTERN VIEW RESTAURANT; ALBUQUERQUE BARBERSHOP; MIXX RESTAURANT; G-MART CONVENIENCE STORE; RAIN TUNNEL CAR SPA; H & D TIRE SHOP; TURBO TIRESHOP; ROUTE 66 APARTMENTS; EL CHANTE: CASA DE CULTURA, Plaintiffs, and ROBERT J. PERRY; MICHAEL RIORDAN; ALBUQUERQUE CITY COUNCIL; ISAAC BENTON; KENNETH SANCHEZ; PAT DAVIS; KLARISSA PENA; BRAD WINTER; DAN LEWIS; DIANE G. GIBSON; TRUDY JONES; DON HARRIS, in their official capacities as Albuquerque City Councilors; FEDERAL TRANSPORTATION ADMINISTRATION; THERESE MCMILLAN, Acting Administrator of the Federal Transportation Administration, Defendants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. No. 1:16-CV-00252-KG-KBM)
W. Boyd, of Freedman Boyd Hollander Goldberg Urias &
Ward, P.A. (Yolanda R. Gallegos, of Gallegos Legal Group,
with him on the briefs), Albuquerque, New Mexico, for
David Gunter II, Attorney, Environment and Natural Resources
Division, U.S. Department of Justice (John C. Cruden,
Assistant Attorney General; Tyler L. Burgess, Attorney,
Environment and Natural Resources Division, U.S. Department
of Justice; and Andrew A. Smith, Attorney, Environment and
Natural Resources Division, U.S. Department of Justice, with
him on the brief), Washington, D.C., for Federal Transit
Administration, Anthony Foxx, Robert C. Patrick, and Donald
L. Lien, of Kaplan Kirsch & Rockwell LLP, Denver,
Colorado (Jessica M. Hernandez, City Attorney, and Kristin J.
Dalton, Assistant City Attorney, Albuquerque, New Mexico;
Lori Potter, Attorney, and W. Eric Pilsk, Attorney, of Kaplan
Kirsch & Rockwell LLP, Denver, Colorado, with her on the
brief), for City of Albuquerque, Mayor Richard J. Berry, and
Bruce Rizzieri, Defendants-Appellees.
TYMKOVICH, Chief Judge, BALDOCK and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
a group of entities and individuals that own businesses or
real property located on Central Avenue in Albuquerque, New
Mexico, filed this action seeking to enjoin the City of
Albuquerque (the City) from proceeding with construction of a
rapid transit bus system along Central Avenue. Plaintiffs
claim, in pertinent part, that the City and the Federal
Transit Administration, from whom the City seeks federal
funding for the project, violated the National Environmental
Policy Act, 42 U.S.C. §§ 4321 et seq., and
the National Historic Preservation Act, 54 U.S.C.
§§ 300101 et seq., in the course of
planning the project. The district court denied
plaintiffs' request for a preliminary injunction.
Plaintiffs have now filed an interlocutory appeal challenging
that ruling. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1), we affirm.
Central Avenue and its current public transit system
Avenue in Albuquerque, New Mexico, is a major east-west
street that was part of U.S. Route 66 until that highway was
decommissioned in 1985. Currently, "[t]he Central Avenue
corridor provides direct transit and vehicular access to two
major employment/activity centers including the University of
New Mexico (UNM) and the Albuquerque Downtown/Central
Business District area." App., Vol. 1 at 70-71.
UNM's central campus "is bounded on the south by
Central Avenue." Id. at 71. "Central
Avenue [also] passes through the heart of the Downtown area
and is within one to four blocks of almost every major
building in the Central Business District." Id.
"[T]wo major entertainment districts, " Downtown
and an area known as "Nob Hill, " are "located
on Central Avenue and are popular destinations for tourists
and locals." Id.
bus system, known as ABQ RIDE, currently offers three transit
routes that "serve Central Avenue: Route 66, Route 766
(Red Line), and Route 777 (Green Line)." Id. at
70. Routes 766 and 777 are part of what is known as "ABQ
RIDE's Rapid Ride system." Id. These two
routes operate in mixed-flow lanes, meaning that the lanes
serve both ABQ Ride buses as well as other types of vehicles.
"Central Avenue is ABQ Ride's highest ridership
order "to improve transit service along Central Avenue,
and to improve access to major activity and employment
centers located" along Central Avenue, the City has
proposed what is known as the "Albuquerque Rapid Transit
(ART) [P]roject." Id. "The ART system
[will] include the construction of a rapid vehicle guideway
within the street median [on Central Avenue] and stations
spaced at ½ to 1 mile intervals." Id. at
71. "All proposed construction [will be] within the
operational right-of-way of Central Avenue, "
id., with the exception of "narrow slivers of
property at major intersections" that the City intends
to acquire, id. at 75. "The traffic signal
system for Central Avenue within the project limits will be
modified to provide traffic signal priority for ART
vehicles." Id. at 72.
buses will, depending upon the particular section of Central
Avenue, operate either in mixed-flow traffic (meaning they
will utilize the same lanes as other vehicles) or in their
own exclusive lanes. Some sections of Central Avenue will
feature two exclusive rapid vehicle lanes, while other
sections will feature one bi-directional rapid vehicle lane.
For example, "exclusive lanes for rapid vehicles will be
constructed from Coors Boulevard to Louisiana Boulevard - a
distance of approximately 8.75 miles." Id. at
70. These rapid vehicle routes will replace Routes 766 and
order to install the ART system, the City plans to make a
number of changes to Central Avenue. These include, but are
not limited to:
• milling, overlaying, and restriping throughout the
project construction limits;
• removing some of the existing medians to accommodate
rapid vehicle lanes;
• reconstructing and reconfiguring landscaped medians at
several locations; and
• relocating existing street lights from medians to curb
side in certain locations.
Id. at 73.
will be affected by three aspects of the . . . project."
Id. at 81. These include: (1) "the reduction of
general purpose traffic lanes in" certain segments of
Central Avenue; (2) "changes to the traffic signal
system on Central Avenue to integrate a signal priority
system for preferential rapid vehicle operations"; and
(3) "median closures that will shift left-turns and
U-turns at existing median openings to signalized
"[t]raffic capacity will be reduced in some
segments" of Central Avenue "as a result of traffic
lane reductions." Id. at 75. Further, because
"[t]he rapid vehicle lanes will have limited access to
other vehicles, . . . access to the businesses and other
development on Central Avenue will be less than currently
exists." Id. The City alleges, however, that
"[r]easonable access to all businesses will be
maintained with left turn/U-turn access provided at
signalized intersections." Id. "In
general, left turn/U-turn access [will be] spaced
approximately every one quarter mile from Coors Boulevard to
Louisiana Boulevard." Id.
project will pass "through four historic
districts." Id. at 86. "The stations in
these districts have been designed without canopies to avoid
any visually prominent features." Id.
"There are [also] 127 historic properties within the
project [area] that are listed, eligible for listing, or have
an undetermined eligibility to the [National Register of
Historic Places]." Id. "No property from
any of the historic buildings will be directly impacted or
altered by the project." Id.
City's request for a Small Starts grant from FTA
Federal Transit Administration (FTA), a federal agency that
is a division of the United States Department of
Transportation (DOT), administers the "Small
Starts" program as part of its Capital Investment Grant
Program, which supports locally planned transit projects.
See 49 U.S.C. § 5309(b); 49 C.F.R. §
611.101. By statute, Congress has encouraged the use of
"small start project[s] utilizing buses . . . in a
defined corridor . . . that emulate the services provided by
rail fixed guideway public transportation systems." 49
U.S.C. § 5309(a)(3), (h).
is conflicting information in the record concerning whether
the City has submitted a Small Starts grant application to
the FTA. According to the City, it did so on July 13, 2015,
and its alleged purpose in doing so was to seek approximately
$69, 000, 000 in Small Starts funds. Such funding, according
to the City, would comprise approximately 55% of the
estimated construction cost of $126.2 million. In contrast,
the FTA asserts that the City has yet to file a formal Small
Starts grant application. FTA Aplee. Br. at 13 n.2.
Consequently, the FTA asserts, it "has not yet made a
final decision whether to award a grant" to the City for
the ART Project. Id.
City's and FTA's NHPA analysis
funding for the ART Project, should it occur, would subject
the ART Project to analysis under the National Historic
Preservation Act (NHPA), 54 U.S.C. § 300101 et
seq. Specifically, Section 106 of NHPA imposes a
procedural requirement that, before approving a
"federally assisted undertaking, " a federal agency
"shall take into account the effect of the undertaking
on any historic property." Id. § 306108. A
"historic property" is any property that is
"in, or eligible for inclusion in, " the National
Register of Historic Places. Id. § 300308. The
agency must consult with the relevant State Historic
Preservation Officer (SHPO) to identify those properties,
identify any adverse effects that a proposed project might
have on them, and then evaluate modifications to the project
that would avoid, minimize, or mitigate those adverse effects
to the SHPO's satisfaction. See 36 C.F.R.
§§ 800.3-800.6; Valley Cmty. Pres. Comm'n
v. Mineta, 373 F.3d 1078, 1085 (10th Cir. 2004).
City, aware that it intended at some point to seek federal
funding for the ART Project, began the SHPO consultation
process on June 4, 2014. The City was assisted in this
process by Jeffrey Fredine, an environmental planner,
historian, and cultural resource specialist who worked for a
private consulting firm. On June 4, 2014, the City met with
employees from the New Mexico Historic Preservation
Department (HPD), which acts as the SHPO for purposes of
NHPA. "That meeting included a discussion of the nature
and extent of [the ART] Project and consideration of detailed
drawings of ART, including changed lane configurations,
streetscape improvements, and station construction, to
understand what impact [the] ART [Project] would have."
App., Vol. 4 at 538. The SHPO "suggested that a variable
[area of potential effect (APE)] should be defined around
each proposed station site based on the level of historic
integrity at each location and the amount of previous
documentation that exist[ed] for each area."
Id., Vol. 12 at 1705.
14, 2014, the City and the SHPO "conducted field
reconnaissance of the entire [ART] [P]roject area, "
id., Vol. 12 at 1705, in order "to assess
firsthand how ART might affect historic resources, "
id., Vol. 4 at 538. The City and SHPO determined
that the ART Project would not physically touch or use any
historic resource. But the SHPO nevertheless "identified
eight areas of potential concern that could constitute or
contribute to an historic district or cultural
landscape." Id., Vol. 12 at 1705. The City and
the FTA ultimately "defined a variable APE for each
specific [ART] station location." Id., Vol. 12
at 1705. "Generally, the APE include[d] 300 feet on
either side of intersections within the eight areas
identified as having the most historic integrity within the
[ART] [P]roject area, and 100 feet on either side of the
intersections outside of these areas." Id. at
1705-06. "The potential for possible effects to be
considered" in those areas "would be in [the]
visual impacts at the station locations and how that might
affect the historic setting of a property."
Id., Vol. 24 at 3049-50. The SHPO ultimately agreed
that this was the appropriate APE.
City then "conducted a detailed review of the APE to
identify historic and cultural resources." Id.,
Vol. 4 at 538. This review "process identified 138
historic or potentially historic properties in the APE that
could be affected by [the] ART [Project]." Id.
at 538-39. The City's study culminated in a March 12,
2015 "Cultural Resources Inventory." Id.,
Vol. 13 at 1731. On April 6, 2015, the FTA transmitted the
Cultural Resources Inventory to the SHPO and asked the SHPO
"to concur in [the] FTA's finding that [the] ART
[Project] would not have any adverse effect on any historic
resource, primarily due to the lack of physical use on any
historic property and limited scope of construction."
Id., Vol. 4 at 539.
April 8, 2015, the SHPO refused to concur, "citing
concerns over the visual impact of three ART [Project]
stations on surrounding historic districts."
Id. The FTA, the City, and the SHPO subsequently
"met and discussed the . . . SHPO's concerns
regarding visual impacts." Id. The SHPO
"made clear that its concerns were limited to the visual
impact of the canopies over three specific stations - Rio
Grande, 15th Street, and Walter Street - because of the
historic significance and integrity of the surrounding
25, 2015, the FTA sent an "Addendum Cultural Resources
Inventory" to the SHPO that "memorialized the
commitment of the City and [the] FTA to eliminate the
canopies at the three stations in response to address [the
SHPO's] concerns." Id. "The letter
included renderings of the redesigned stations."
7, 2015, the SHPO "issued a letter concurring with [the]
FTA that [the] ART [Project] would not have any adverse
effects on any historic or cultural resources."
ART Project - Categorical Exclusion
nature and amount of the Small Starts grant that the City is
purportedly seeking from the FTA also subjects the ART
Project to analysis under the National Environmental Policy
Act (NEPA). More specifically, the FTA, before awarding any
grant money, is required to assess the environmental impacts
of the ART Project, consider alternatives with less
environmental impact, and evaluate whether the benefits of
the project would exceed its impact on the environment.
about August 17, 2015, the City applied to the FTA for a
"documented exception from the requirement that the City
or the FTA prepare an environmental impact statement (EIS) or
environmental assessment (EA). In support of its application,
the City prepared and submitted a "[Categorical
Exclusion] Worksheet, " which was, in essence, "an
extensive, 1, 174-page environmental review package."
Id. at 536.
August 26, 2015, the FTA sent a letter to the City informing
it that the FTA had completed its review of the City's
application and "ha[d] determined that the proposed ART
[P]roject me[t] the criteria for Categorical Exclusion [(CE)]
in accordance with 23 CFR Part 771.118(d)."
Id., Vol. 1 at 112. The FTA also confirmed that it
had "determine[d] the project w[ould] result in a
'no adverse effect' on historic
properties" under NHPA, and it noted that the "SHPO
concurred with this determination on July 7, 2015."
FTA's Letter of No Prejudice
noted, the FTA alleges that it "has not yet made a final
decision whether to award a grant" to the City for the
ART Project. FTA Aplee. Br. at 13 n.2. Nevertheless, on July
18, 2016, the FTA issued to the City a "Letter of No
Prejudice" (LONP). Id. at 866. "The LONP
provides the opportunity for the City immediately [to] spend
up to $59 million dollars that is eligible for reimbursement
by the FTA for the ART [P]roject." Id.
plaintiffs in this action, all of whom own businesses or
property located on Central Avenue in Albuquerque, New
Mexico, include the following:
• The Coalition of Concerned Citizens to Make Art Smart
is an unincorporated association that was formed to
"improve bus transit along Central Avenue [in
Albuquerque, New Mexico, ] without harming the businesses,
shops, restaurants, neighborhoods and property values and to
prevent the ART project from going forward as designed."
App., Vol. 1 at 42-43.
• 2706 Central Ave., LLC, is a New Mexico limited
liability company that owns property at the corner of Central
Avenue and Girard Street in Albuquerque. Id. at 43.
• Fox Plaza, LLC, is New Mexico limited liability
company that owns a shopping plaza at the southwest corner of
Central Avenue and Pennsylvania Street in Albuquerque.
• Julie Stephens owns and operates a consulting firm
located in the Nob Hill area of Albuquerque in the Central
Avenue corridor. Id.
• Jean and Marc Bernstein are the owners of Flying Star
Restaurants. Id. One of their restaurants is located
on the south side of Central Avenue in the Nob Hill area.
April 4, 2016, plaintiffs filed a complaint for declaratory,
statutory, and injunctive relief against the FTA, the
Regional Director for Region VI of the FTA (Robert Patrick),
the Director of Planning and Program Development of the FTA
(Donald Koski), the City, the mayor of the City (Richard
Berry), and the Director of ABQ-RIDE Transit (Bruce
Rizzieri). Count I of the complaint sought review
under the Administrative Procedure Act (APA) of the FTA's
decision under NEPA to grant a CE in connection with the ART
Project. Count II of the complaint alleged that the FTA and
the City failed to properly consider and evaluate the impact
the ART Project "would have on the historical integrity
of Route 66 and its adjacent historic resources, " and
that the FTA and the City thereby violated . . .
[NHPA]." Id. at 63. Count III of the complaint
alleged that the City violated the New Mexico Prehistoric and
Historic Sites Preservation Act by failing to "properly
consider and evaluate the impact that the ART project would
have on the historical integrity of Route 66 itself and the
historic sites adjacent to it." Id. at 64.
Count IV of the complaint alleged that the City violated its
own Complete Streets Ordinance because "[t]he ART
[P]roject does not balance the need to move vehicles
efficiently with the other context sensitive outcomes the
City was required to consider" under the ordinance.
Id. at 66. Plaintiffs allege in their complaint that
the ART Project will have a significant impact on both travel
patterns and the human environment along Central Avenue.
Id. at 54. In particular, plaintiffs allege that the
ART project will have the following detrimental impacts:
• The reduction of all eastbound and westbound traffic
to single lanes "will significantly disrupt and alter
traffic patterns throughout the Central Avenue corridor . . .
because those single lanes will become choked, forcing
traffic . . . into adjacent residential neighborhoods . . . .
The result will be not just to snarl and divert traffic but
to alter the quiet, residential character of neighborhoods
adjacent to Central Avenue." Id. at 48.
• "[E]xisting 'local' buses that must
travel along the remaining single lanes of east and
west-bound non-ART traffic will not have space to move out of
the lane of traffic when they receive or discharge
passengers, resulting in what is likely to be a
'blockade' of traffic by the local buses."
Id. at 48-49.
• "The redirection of traffic by the clogging of
single lanes will direct traffic away from the restaurants,
shops and businesses on Central that depend on vehicle access
and presence in the neighborhood for their financial
survival." Id. at 49.
• The "[e]limination of most left turns on Central
Avenue will necessarily eliminate convenient access to
businesses, shops and restaurants along Central, reducing
customer volume and endangering the success of those
businesses, shops and restaurants and the jobs of their
• The elimination of most left turns on Central Avenue
will also "forc[e] many delivery trucks and vans into
residential areas to 'circle' back to delivery
locations that they have had to pass." Id.
• "ART's design for dealing with the
elimination of most left turns is to encourage U-turns at the
remaining left turns. This is not only dangerous but will
hopelessly congest the intersections where the U-Turns must
take place and will further force traffic into the adjoining
residential neighborhoods." Id. at 49-50;
• ART's design "to use 'yellow lines'
to indicate that its two dedicated lanes are off-limits to
other vehicles . . . is unrealistic" and "will
create an extraordinarily unsafe condition, particularly for
drivers who approach Central from a side street and do not
understand that they are forbidden to cross the yellow lines
in order to cross Central to proceed in the direction they
want to go." Id. at 50.
• ART's design "will attempt to force
pedestrians to cross Central [Avenue] at only three or four
block intervals, thereby increasing jaywalking in areas where
the median no longer exists and where 'express' ART
buses will be passing in either direction along the two
dedicated lanes in the center of Central. This will
significantly magnify the danger of accidents and pedestrian
injuries or fatalities." Id. at 49.
• ART's inclusion of "six 'midblock'
stations . . . located in the middle of Central Avenue"
will "forc[e] pedestrians to cross halfway across
Central and then walk the length of the station to reach the
other 'half' of the cross-walk. It is probable that
many pedestrians will simply jay-walk the second half of
their crossing rather than walking the length of the station,
thereby endangering themselves." Id. at 50.
for preliminary injunction
9, 2016, the plaintiffs filed a motion for preliminary
injunction asking the district court "to preliminarily
enjoin" the City and the FTA "from taking any
actions in furtherance of" the ART Project. Id.
at 124. In support of their motion, plaintiffs argued that
they were substantially likely to succeed on the merits of
their claims that (1) the FTA arbitrarily and capriciously
granted the City a CE for the ART Project, (2) the FTA's
grant of a CE to the City was in violation of NHPA, (3) the
ART Project violates the New Mexico Prehistoric and Historic
Sites Preservation Act, and (4) the ART Project violates the
City's own Complete Streets ordinance. Id. at
district court held a three-day evidentiary hearing on the
plaintiffs' motion from July 27 to 29,
2016. During that hearing, the plaintiffs
"focused [exclusively] on the[ir] NEPA and NHPA
claims." Id. at 1054.
29, 2016, the district court issued a written memorandum
opinion and order denying plaintiffs' motion for
preliminary injunction. In doing so, the district court
concluded that the FTA's CE and NHPA determinations were
not arbitrary or capricious and that, consequently, the
plaintiffs had failed to establish a substantial likelihood
of success on the merits of their claims that the FTA
violated NEPA and NHPA. The district court further concluded
that plaintiffs had failed to establish irreparable harm,
noting "that the ART lanes could be redesignated as
general use lanes without much trouble" and that
plaintiffs' alleged economic injuries would be
"compensable with monetary damages." Id.,
Vol. 7 at 1063. Relatedly, the district court concluded that
"the evidence show[ed] any harm w[ould] also not be
'certain or great, '" and that plaintiffs failed
to "provide any specific numbers or hard projections .
. . to show how much business will be lost."
Id. In addition, the district court concluded that
the balance of equities and the public interest weighed in
favor of not granting a preliminary injunction. In that
regard, the district court noted that "not allowing ART
to go forward w[ould] keep the City from building a project
to revitalize the area and address pedestrian safety and
improve transit efficiency, " and would also "lead
to increased construction costs." Id. at 1065.
Finally, the district court concluded that "[a]
preliminary injunction, on the whole, would be adverse to the
public interest." Id. at 1066.
31, 2016, plaintiffs filed a notice of appeal from the
district court's memorandum opinion and order denying
their motion for preliminary injunction.
raise six separate issues on appeal. Two of those issues deal
with evidentiary rulings made by the district court in the
course of denying plaintiffs' motion for preliminary
injunction. The remaining four issues address the merits of
the district court's order denying the motion for
preliminary injunction. As discussed below, we conclude that
all of these issues lack merit.
review the denial of a preliminary injunction for abuse of
discretion." Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013),
aff'd sub nom Burwell v. Hobby Lobby Stores,
Inc., 134 S.Ct. 2751 (2014). "An abuse of
discretion occurs where a decision is premised on an
erroneous conclusion of law or where there is no rational
basis in the evidence for the ruling." Fish v.
Kobach, 840 F.3d 710, -, 2016 WL 6093990, at *8 (10th
Cir. 2016) (quotation marks omitted). "Thus, we review
the district court's factual findings for clear error and
its conclusions of law de novo." Id.
the evidentiary rulings made by the district court in
connection with denying the plaintiffs' motion for
preliminary injunction, we apply an abuse of discretion
standard. See Monfore v. Phillips, 778 F.3d 849, 854
(10th Cir. 2015) ("Appellate courts review evidentiary
complaints only for abuse of discretion."); Hancock
v. Am. Tel. and Tel. Co., 701 F.3d 1248, 1262 (10th Cir.
2012) ("We review a district court's ruling on . . .
a motion to strike [an affidavit or declaration] for abuse of
two evidentiary challenges
Issues II and V of their opening brief, plaintiffs challenge
evidentiary rulings made by the district court in the course
of ruling on their motion for preliminary injunction.
Specifically, in Issue II, plaintiffs argue that the district
court erred in striking their expert and lay declarations as
inadmissible opinion evidence regarding the ART Project's
environmental impacts. In Issue V, plaintiffs argue that the
district court erred in excluding as irrelevant what they
refer to as the "de Garmo" email. For the reasons
discussed below, we conclude that the district court did not
abuse its discretion in either regard.
Striking of plaintiffs' expert and lay declarations
to the evidentiary hearing on plaintiffs' motion for
preliminary injunction, the federal defendants moved to
strike both lay and expert declarations that were submitted
by plaintiffs in connection with their motion.
15, 2016, the district court issued a written memorandum
opinion and order granting the motion to strike the
declarations to the extent they went beyond issues of
standing and personal expressions of irreparable harm. In
doing so, the district noted that its "role in this
lawsuit [wa]s to review the FTA's decision to grant the
CE application based upon the materials before the FTA at the
time of its decision and upon acceptable extra-record
materials, if any." App., Vol. 6 at 840. With respect to
the lay declarations submitted by plaintiffs, the district
court noted that plaintiffs were arguing that such
declarations "provide[d], through common sense, evidence
that the FTA failed to consider ART's impact on
businesses and adjoining neighborhoods." Id. at
841. The district court concluded, however, that "when
it comes to a multi-faceted and complex project like the ART
[P]roject, . . . the proposed 'common sense' standard
[was] unhelpful, " as well as "ambiguous and
subjective at best." Id. With respect to the
two expert opinions challenged by the federal defendants
(those of Dr. Gregory Rowangould and Paul Lusk), the district
court noted that "the FTA was not required to rely on
its own experts, but instead could rely on the City's
experts whose reports are included in the Preliminary
Administrative Record." Id. Further, the
district court noted that "Rowangould and Lusk, in their
declarations, attack[ed] the reliability of the City's
methodology" and thus "disagree[d] with the
City's experts." Id. at 841-42. "Such
a disagreement between experts on the correct methodology to
utilize, " the district court concluded, "does not
provide a sufficient reason to allow Rowangould and
Lusk's extra-record declarations." Id. at
appeal, plaintiffs argue that it was "clear error"
for the district court to strike these declarations. Aplt.
Br. at 34. As noted, however, the district court's
decision is not reviewed for clear error, but rather for an
abuse of discretion.
event, plaintiffs argue that our decision in Lee v. Air
Force, 354 F.3d 1229 (10th Cir. 2004), supports their
submission of the declarations and undercuts the district
court's decision to strike those declarations. Plaintiffs
are wrong, however. In Lee, we held that in a
NEPA-based action, "judicial review of agency action is
normally restricted to the administrative record, " and
that "consideration of extra-record materials is
appropriate [only] in 'extremely limited'
circumstances, such as where the agency ignored relevant
factors it should have considered or considered factors left
out of the formal record." Id. at 1242. To be
sure, plaintiffs in this case assert that their declarations
"attempted to show, through common sense (Coalition
plaintiffs) and expert opinion (Rowangould and Lusk) that
there were numerous environmental impacts that ART would have
that the FTA had failed to consider." Aplt. Br. at 33.
But plaintiffs make no attempt in their appellate brief to
identify what those impacts are.
order striking the declarations, the district court noted
that "the City's reports in the Preliminary
Administrative Record address[ed] many of the factors . . .
Plaintiffs assert[ed] the FTA did not consider, albeit in a
manner which . . . Plaintiffs disagree[d] with." App.,
Vol. 6 at 840. These factors, the district court noted,
included "impacts on traffic, access to businesses,
pedestrian safety, bus ridership, and storm water issues as
well as consideration of public comment." Id.
The district court "note[d] that the Preliminary
Administrative Record d[id] not appear to contain a study or
analysis of the economic impact of ART on businesses."
Id. Nevertheless, the district court concluded that
"the evidence in the [lay] declarations concerning a
negative impact on businesses [wa]s unsubstantiated and,
therefore, not helpful to the Court." Id. at
840-41. Notably, plaintiffs make no reference to these
conclusions at all, and therefore fail to demonstrate that
the district court abused its discretion in striking the lay
the two expert declarations, the district court, as noted,
concluded that they simply "disagree[d] with the
City's experts" and thus were not properly
considered. Id. at 842. Again, plaintiffs make no
attempt to address this rationale, let alone demonstrate that
the district court abused its discretion in striking the
plaintiffs have failed to establish that the district court
abused its discretion in striking the lay or expert
Exclusion of the de Garmo email
evidentiary hearing, plaintiffs sought to admit an email
message that Andrew de Garmo, the head of planning for the
City's transit department, sent to other ART Project
officials on February 19, 2014. The email message read, in
pertinent part: "I've been wrong on a crucial point,
and I apologize for muddying the issues. A BRT project does
not need to have any dedicated lanes to qualify for
Small Starts funding; it only needs to have >50%
dedicated lanes to qualify for New Starts
funding." App., Vol. 21 at 2643. The district court
excluded the email message on the grounds that it was not
"sufficiently probative" under Federal Rule of
Evidence 403. App., Vol. 25 at 3194-95.
argue on appeal that "the District Court's failure
to admit or consider the email was clear error." Aplt.
Br. at 41. As we have noted, however, the district
court's evidentiary ruling is not subject to review for
clear error, but rather for an abuse of discretion, and
plaintiffs make no attempt to argue that the district court
abused its discretion.
event, having reviewed the record, we conclude that the
district court did not abuse its discretion in excluding the
email message. Although plaintiffs argue that the message
"established the truth of the design being
unnecessary" and "went directly to the issues of
balance of harms and the public's interest in the event
of an injunction, " we conclude that the email message
was irrelevant to any of the preliminary injunction factors
considered by the district court. Aplt. Br. at 41. To begin
with, the email message had no relevance to the question of
whether the FTA properly complied with NEPA or NHPA. As for
the balance of harms and public interest factors (which will
be discussed in greater detail below), plaintiffs make no
attempt to explain precisely how de Garmo's email message
could be relevant. At best, the message suggests that a key
design feature of the ART Project - i.e., dedicated bus lanes
down the median of Central Avenue - was unnecessary for the
City to obtain federal funding for the ART Project. But it
does not otherwise undercut the reasons forwarded by the City
for designing and implementing the ART Project in the first
remaining four issues raised by plaintiffs on appeal (Issues
I, III, IV and VI) are substantive challenges to the district
court's decision to deny their motion for preliminary
injunction. These four issues, all of which lack merit, will
be addressed in the context of the standards outlined in
Federal Rule of Civil Procedure 65(a) for the issuance of
65(a) authorizes district courts to issue preliminary
injunctions. Generally speaking, a plaintiff "seeking a
preliminary injunction must establish that [it] is likely to
succeed on the merits, that [it] is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in [its] favor, and that an
injunction is in the public interest." Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
of success on the merits
very purpose of an injunction under Rule 65(a) is to give
temporary relief based on a preliminary estimate of the
strength of the plaintiff's suit, prior to the resolution
at trial of the factual disputes and difficulties presented
by the case." 11A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure,
§ 2948.3, at 213-14 (2013). Although "[t]he courts
use a bewildering variety of formulations of the need for
showing some likelihood of success, " id. at
197, "[a]ll courts agree that plaintiff must present a
prima facie case but need not show a certainty of
winning." Id. at 201.
have noted, the plaintiffs ultimately based their motion for
preliminary injunction on two of the claims alleged in their
complaint: (1) the claim in Count I that the FTA acted
arbitrarily and capriciously in granting a CE in connection
with the ART Project; and (2) the claim in Count II that the
FTA violated NHPA by failing to properly consider and
evaluate the impact of the ART Project on the historical
integrity of Route 66 and its adjacent historic resources.
Both of these claims constitute challenges to final agency
action under the APA.
neither NEPA nor NHPA "provide a private right of
action, we review" the two FTA decisions as "final
agency action[s] under the" APA. Utah Env't
Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008).
"When courts consider such challenges, an agency's
decision is entitled to a presumption of regularity, and the
challenger bears the burden of persuasion." San Juan
Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th Cir.
2011) (citation omitted). But we "can set aside an
agency decision if it is 'arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law.'" Id. (quoting 5 U.S.C. §
706(2)(A)). An agency's decision will be deemed arbitrary
and capricious "'if the agency (1) entirely failed
to consider an important aspect of the problem, (2) offered
an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise, (3) failed to base its decision on
consideration of the relevant factors, or (4) made a clear
error of judgment.'" Id. (quoting New
Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565
F.3d 683, 704 (10th Cir. 2009)).
The NEPA-based claim
"requires federal agencies . . . to analyze
environmental consequences before initiating actions that
potentially affect the environment." Utah Env't
Cong. v. D. Bosworth, 443 F.3d 732, 735-36 (10th Cir.
2006). Notably, NEPA "does not mandate particular
results, " but rather "imposes only procedural
requirements to ensure that [a federal] agency, in reaching
its decision, will have available, and will carefully
consider, detailed information concerning significant
environmental impacts." Winter, 555 U.S. at 23
(quotation marks omitted). Specifically, in conducting its
environmental analysis under NEPA, a federal agency
"must prepare one of the following: (1) an environmental
impact statement [(EIS)], (2) an environmental assessment
[(EA)], or (3) a categorical exclusion [(CE)]."
Id. at 736.
"most rigorous" of these three options is the EIS.
Id. An EIS "is required if a proposed action
will 'significantly affect the quality of the human
environment.'" Id. (quoting 42 U.S.C.
§ 4332(C)). "If an agency is uncertain whether the
proposed action will significantly affect the environment, it
may prepare a considerably less detailed [EA]."
Id. Preparation of an EA helps the agency
"determine whether a proposed project will create a
significant effect on the environment" and thereby
require preparation of an EIS. Id. Finally,
"[i]n certain narrow instances, . . . an agency is not
required to prepare either an [EA] or an [EIS]."
Id. "This occurs when the proposed action falls
within a [CE], i.e., those actions predetermined not
to 'individually or cumulatively have a significant
effect on the human environment.'" Id.
(quoting 40 C.F.R. § 1508.4).
role of a federal court under NEPA is to review the EIS, EA,
or CE, as the case may be, and "simply . . . ensure that
the agency has adequately considered and disclosed the
environmental impact of its actions." Wyo. v. United
States Dep't of Agric., 661 F.3d 1209, 1256-57 (10th
Cir. 2011) (quotation marks omitted).
district court in this case, applying these principles,
rejected the plaintiffs' assertion that the FTA failed to
"take a 'hard look' at the City's CE
application and that the FTA's decision to approve the CE
application was arbitrary and capricious." App., Vol. 7
at 1058. The district court noted that defendant "Donald
Koski, [the] Director of Planning and Program Development of
Region VI of the FTA, " testified at the evidentiary
hearing "that his staff reviewed a draft of the CE
application, communicated with the City regarding its project
development request, consulted with the SHPO, and reviewed
the final CE application as did [he]." Id.
"These actions, " the district court concluded,
"demonstrate[d] that the FTA took the required 'hard
look' at the CE application." Id.
district court also rejected the plaintiffs' argument
"that the FTA's action was arbitrary and capricious
because the City's CE application did not consider
economic impacts on businesses or traffic issues such as
congestion and diversion of traffic to neighborhoods adjacent
to Central Avenue." Id. In doing so, the
district court noted that "[t]he City . . . provide[d]
the FTA with a business access technical supplement and a
traffic assessment technical supplement in response to the CE
worksheet's request for information related to
'economic environment' and traffic patterns."
Id. And "[t]hose supplements, " the
district court noted, "indicate[d] that no business
w[ould] lose access, congestion w[ould] be minimized with
signalized left and u-turns, and that diversion into
neighborhoods would amount to 250 vehicles daily."
Id. The district court also noted that "[t]he
diversion number [wa]s supported by a traffic engineer's
expert opinion." Id. The district court thus
"conclude[d] that the FTA considered relevant factors,
like economic environment and traffic patterns."
Id. at 1059.
the district court rejected the plaintiffs' argument that
the FTA should not have approved the CE "because there
was a 'substantial controversy on environmental
grounds.'" Id. The district court noted
that although "[t]he CE application include[d] a
detailed summary of comments, including negative comments,
" it concluded that "those comments d[id] not
suggest 'substantial controversy on environmental
grounds.'" Id. More specifically, it noted
that "[g]eneral concerns and even economic impacts are
not 'environmental grounds' for purposes of assessing
public controversy." Id. "Moreover, "
the district court noted, "the negative comments did not
identify a substantial controversy over the size, nature or
effect of the environmental impacts." Id. at
1060. "Instead, " the district court noted,
"many people complained about cost, access to
businesses, lost parking, removal of the median, and
preferred alignments, " none of which "meet the
legal test." Id.
Issue I of their appeal, plaintiffs contend the district
court erred in concluding "that the FTA could satisfy
its 'hard look' requirement by examining the
City's submissions, rather than at the project's
environmental effects themselves." Aplt. Br. at 17-18.
In other words, plaintiffs argue, it "is impermissible
under NEPA" for the FTA to rely exclusively on the
City's submissions. Id. at 31. But plaintiffs
did not make this argument below, nor did they cite below the
cases they now cite in their appellate brief. Indeed, this
argument appears to be contrary to the arguments made by
plaintiffs in their motion for preliminary injunction. In
their preliminary injunction motion, plaintiffs argued that
"[t]he FTA had all the evidence it needed to show that a
CE was inappropriate for ART." App., Vol. 2 at 211. More
specifically, plaintiffs argued that "the data submitted
by the City in its CE and grant applications, if the FTA had
examined it, would have shown . . . [t]hat ART would
significantly impact Central's traffic, congestion,
neighborhoods and shops." Id. But, plaintiffs
argued, "[n]ot only did the FTA not give this data or
the project itself a 'hard look' as NEPA requires[, ]
the FTA seems to have given it no look at all."
Id. As noted, the district court rejected this
argument based upon the testimony presented at the
evidentiary hearing. Because the argument that plaintiffs now
assert - that it was impermissible for the FTA to rely
exclusively on the City's submissions - was not made
below and is being asserted for the first time on appeal,
"we would be well within the boundaries of our
discretion to decline to consider [it]." Fish,
840 F.3d 710, 2016 WL 6093990, at *13.
we were to reach this new argument, we would conclude that it
lacks merit. Notably, the primary case cited by plaintiffs in
support of their argument, Van Abbema v. Fornell,
807 F.2d 633 (7th Cir. 1986), expressly recognizes that it is
permissible for an agency to "rely on reports prepared
by outsiders or applicants." Id. at 642. To be
sure, Van Abbema also cautions that "when such
[outside] information is specifically and credibly challenged
as inaccurate, the [agency at issue] has an independent duty
to investigate." Id. But the plaintiffs in this
case did not challenge the City's report as inaccurate.
Instead, as noted above, they argued that it actually
supported their position. Moreover, the district court in
this case found, after hearing testimony from an FTA
official, that the FTA agreed with the City's report only
after carefully and independently considering it. Thus, in
the end, plaintiffs have failed to establish that the FTA was
obligated to conduct its own, independent investigation, or
that it otherwise acted improperly in relying on the
only other challenge that plaintiffs mount to the district
court's analysis of their NEPA-based claim is, as
outlined in Issue III of their appellate brief, that the
district court erred in concluding that the controversy
regarding the ART Project did not involve environmental
concerns. In support of this challenge, plaintiffs first
point to 23 C.F.R. § 771.118, which is entitled
"FTA categorical exclusions, " and provides, in
pertinent part, as follows:
(a) Categorical exclusions (CEs) are actions which meet the
definition contained in 40 CFR 1508.4, and, based on past
experience with similar actions, do not involve significant
environmental impacts. They are actions which: do not induce
significant impacts to planned growth or land use for the
area; do not require the relocation of significant numbers of
people; do not have a significant impact on any natural,
cultural, recreational, historic or other resource; do not
involve significant air, noise, or water quality impacts; do
not have significant impacts on travel patterns; or do not
otherwise, either individually or cumulatively, have any
significant environmental impacts.
(b) Any action which normally would be classified as a CE but
could involve unusual circumstances will require FTA, in
cooperation with the applicant, to conduct appropriate
environmental studies to determine if the CE classification
is proper. Such unusual circumstances include:
(2) Substantial controversy on environmental grounds;
23 C.F.R. § 771.118(a), (b)(2). Plaintiffs in turn point
to 40 C.F.R. § 1508.27, which defines the term
"significantly" for purposes of NEPA, and states,
in pertinent part:
Significantly as used in NEPA requires considerations of both
context and intensity:
(b) Intensity. This refers to the severity of impact.
Responsible officials must bear in mind that more than one
agency may make decisions about partial aspects of a major
action. The following should be considered in evaluating
(4)The degree to which the effects on the quality of the
human environment are likely to be highly controversial.
(5)The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown
40 C.F.R. § 1508.27(b)(4), (5). Plaintiffs argue that
"[t]he District Court apparently did not consider the
mountain of extrinsic evidence regarding the intensity of the
controversy surrounding ART, presumably because the City had
not disclosed the controversy to the FTA and because the FTA
had not included in the Administrative Record the many
hundreds of communications it had received in
opposition." Aplt. Br. at 35-36. Plaintiffs further
argue that "[t]he District Court did not explain what
could be considered 'environmental' in the context of
an urban BRT project, and ignored CEQ regulations that define
environmental impacts as including 'aesthetic, historic,
cultural, economic, social, or health, whether direct,
indirect, or cumulative.'" Id. at 36
(quoting 40 C.F.R. § 1508.8(b)).
problem with plaintiffs' arguments is that they ignore
the CEQ's definition of "human environment":
Human environment shall be interpreted comprehensively to
include the natural and physical environment and the
relationship of people with that environment. (See the
definition of "effects" (§ 1508.8).) This
means that economic or social effects are not intended by
themselves to require preparation of an environmental impact
statement. When an environmental impact statement is
prepared and economic or social and natural or physical
environmental effects are interrelated, then the
environmental impact statement will discuss all of these
effects on the human environment.
40 C.F.R. § 1508.14 (emphasis added). As we have noted
in applying this definition, "[i]t is well-settled that
socioeconomic impacts, standing alone, do not constitute
significant environmental impacts cognizable under
NEPA." Cure Land, LLC v. United States Dep't of
Agric., 833 F.3d 1223, 1235 (10th Cir. 2016). Instead,
only when an action "'will have primary impact on
the natural environment'" will "'secondary
socio-economic effects . . . be considered.'"
Id. at 1235 n.10 (quoting Image of Greater San
Antonio v. Brown, 570 F.2d 517, 522 (5th Cir. 1978)).
And that problem is fatal to the plaintiffs, for the vigorous
public opposition to the ART Project that plaintiffs point to
was clearly founded on concerns other than the impact the ART
Project would have on the natural environment. More
specifically, as the district court noted in rejecting
plaintiffs' argument that there was a substantial
controversy on environmental grounds, "the negative
[public] comments" cited by plaintiffs concerned
"cost, access to businesses, lost parking, removal of
the median, and preferred alignments, " none of which
concerned the impact of the ART Project on the natural
environment. App., Vol. 7 at 1059-60.
in sum, plaintiffs have failed to establish that the district
court erred in analyzing the merits of their NEPA-based
The NHPA-based claim
like NEPA, is a procedural statute requiring government
agencies to stop, look, and listen before proceeding when
their action will affect national historical assets."
Presidio Historical Ass'n v. Presidio Trust, 811
F.3d 1154, 1169 (9th Cir. 2016) (quotation marks omitted). Of
relevance here, Section 106 of NHPA "requires an agency
undertaking a project expected to adversely affect a public
or private site listed on the National Register of Historic
Places to 'take into account the effect of the
undertaking on any historic property.'" Id.
at 1168 (quoting 54 U.S.C. § 306108). In fulfilling this
statutory obligation, a federal agency must also comply with
relevant NHPA regulations. For example, the agency must take
into account the area of potential effects (APE), which is
defined as "the geographic area or areas within which an
undertaking may directly or indirectly cause alterations in
the character or use of historic properties, if any such
properties exist." 36 C.F.R. § 800.16(d). The
agency must also, as relevant, consult with the SHPO in
identifying the area of potential effects and determining the
likely effect of the undertaking at issue. See 36
C.F.R. §§ 800.4(a)-(c), 800.5(a), 800.6(a),
emphasized that "[e]stablishing an [APE] requires a high
level of agency expertise, and as such, the agency's
determination is due a substantial amount of
discretion." Valley Cmty. Pres. Comm'n, 373
F.3d 1078, 1092 (10th Cir. 2004).
challenging the FTA's and the City's Section 106
analysis as arbitrary or capricious, plaintiffs voiced a
number of arguments in the district court. To begin with,
plaintiffs complained that the FTA and the City failed to
consider the full impact of the ART Project. For example,
they "complain[ed] that the FTA defined the APE too
narrowly and [they] argue[d] that the ART [P]roject w[ould]
'directly or indirectly cause alterations in the
character or use of historic properties' beyond just the
bus stations." App., Vol. 7 at 1060 (quoting 36 C.F.R.
§ 800.16(d)). In addition, plaintiffs "argue[d]
that the FTA ignored the fact that the ART [P]roject w[ould]
introduce 'visual, atmospheric or audible elements'
that w[ould] diminish the historical nature of
properties." Id. (quoting 36 C.F.R. §
800.5(a)(2)(v)). Plaintiffs also argued that the City was
required to "consider the cumulative impact of ART in
determining whether ART w[ould] adversely affect historic
district court rejected these arguments, stating as follows:
The FTA, in consultation with the SHPO, defined the APE and
considered potential effects of ART, and so concluded that
they would not have an adverse effect on any historic
resource. Moreover, the eclectic nature of Central Avenue
does not lend itself to being designated a historic district.
As Jeff Fredine[, a private environmental planner and
historian cultural resources specialist hired by the City to
perform the Section 106 consultation work on the ART Project,
] testified, historic districts are comprised of a similarly
aged and designed cluster of properties. This testimony is in
line with David Kammer's 2003 study, relied on by the
City in its CE application: "Route 66, as an individual
property type, through the current project area does not
retain enough integrity to convey its historic significance
and is recommended not eligible to the National Register of
Historic Places (NRHP)." ABQ PAR 03011-12. Although,
[sic] Kammer states that the Historic Preservation Department
and others "should collectively address the possibility
of nominating Route 66-related historic districts in urban
areas" including in Albuquerque, that possibility has
not been addressed and planners such as Fredine continue to
concur with Kammer's conclusion that Route 66 in
Albuquerque, though historic and much loved by Albuquerqueans
and tourists alike, would not be eligible for inclusion on
the NRHP. Route 66 Resurvey Pt. 2, pg. 19-20. Indirect
effects, like a change in the feeling or setting of Central
Avenue after the ART [P]roject is built, would also not
necessarily affect the historic integrity of Central Avenue
when one considers the lack of cohesive design in properties.
Id. at 1060-61.
plaintiffs also complained "that the FTA did not provide
the SHPO with the City's traffic study."
Id. at 1061. The district court summarily rejected
this argument, noting that "[t]he SHPO knew what the ART
design would be, including median stations, " and that
the plaintiffs "ha[d] not sufficiently established how a
study showing a diversion of 250 cars per day and possible
increased congestion at intersections in 2035 would affect
the SHPO's decision, which was based on a narrow APE and
was concerned with visual issues." Id.
plaintiffs argued below "that the FTA failed to engage
the public or seek public comment as required by . . .
NHPA." Id. The district court rejected this
argument, noting that "[t]he City . . . conducted public
outreach which provided an opportunity to allow comment under
. . . NHPA." Id. at 1062. More specifically,
the district court noted that "the outreach included
numerous one-on-one contacts with the public, door hangers,
neighborhood meetings, other public meetings, and various
other modes of outreach." Id.
Issue VI of their appellate brief, plaintiffs argue that
"[t]he District Court abused its discretion by
disregarding the law and disputed record evidence
supporting" their three arguments. Aplt. Br. at 42. To
begin with, the plaintiffs argue that the district court
"misread . . . the governing law" in
"uphold[ing] the FTA's 'narrow' APE" on
the grounds "that the [SHPO] concurred with the FTA on
the scope of the APE." Id. at 43. According to
plaintiffs, "[w]hether a SHPO concurs with the APE is
not the applicable legal standard for assessing the legal
sufficiency of the APE." Id. Instead,
plaintiffs argue, 36 C.F.R. § 800.16(d) "requires
the APE to be broad enough geographically to include
'areas within which an undertaking may directly or
indirectly cause alterations in the character or use
of historic properties.'" Id. at 44
(quoting 36 C.F.R. § 800.16(d) (emphasis added by
plaintiffs)). "Moreover, " plaintiffs argue, 36
C.F.R. § 800.5(a)(1) "required the FTA to consider,
[sic] not only indirect impacts, but also 'reasonably
foreseeable effects caused by the undertaking that may occur
later in time, [or] be farther removed in distance or be
cumulative.'" Id. (quoting 36 C.F.R. §
800.5(a)(1)). The district court, plaintiffs argue,
"ignored the record evidence . . . that the FTA defined
the APE considering only direct impacts of the three
small areas in the proximity of proposed ART stations, "
and it also "disregard[ed] the fact that there exists no
evidence or even claims by Appellees that they ever
considered indirect and cumulative impacts resulting from
ART." Id. at 45 (emphasis in original).
problem with plaintiffs' arguments is two-fold. First,
plaintiffs are wrong in suggesting that the SHPO's
concurrence in the APE carries no weight. Indeed, the
applicable regulations require the FTA to consult with the
SHPO in determining the APE, see 36 C.F.R. §
800.4(a), and we have expressly cited the fact of an
SHPO's concurrence in upholding an APE, see Valley
Cmty. Pres. Comm'n, 373 F.3d at 1091. Second,
plaintiffs misread the record in asserting that the APE
considered only the direct effects or impacts of the ART
Project. The administrative record quite clearly establishes
that the City and the FTA, with the concurrence of the SHPO,
concluded that the ART Project would not have any direct
effects or impact on historic properties. Thus, the APE
focused on the indirect visual effects stemming from the ART
Project, most notably the visual effects from the canopies of
certain proposed bus stations. And the City modified the ART
Project in certain respects to reduce the visual impacts of
proposed ART stations in certain historic districts.
next argue, as part of Issue VI, that the district court
"abused its discretion by shifting the burden of
assessing adverse effects onto [them]." Aplt. Br. at 48.
According to plaintiffs, they "pointed out [below] that
one of the adverse effects that the FTA failed to consider by
limiting the APE to direct impacts around the areas of the
ART stations was the diversion of traffic from Central Avenue
to adjacent neighborhoods including [four] historic
districts." Id. And that concern, plaintiffs
argue, "is factually justified from the City's own
traffic study, which predicts 200-250 vehicles during a
single peak PM hour will be diverted from Central Avenue at
Edith Boulevard and Locust Street, " both of which
"are parts of Huning Highland, a historic district on
the National Register of Historic Properties."
Id. at 48-49. Plaintiffs assert that the district
court "misstated the traffic diversion as vehicles per
day instead of vehicles during a single peak
hour." Id. at 49 (emphasis in
original). The district court also, plaintiffs argue,
"misstate[d] [their] legal burden and the governing law
by rejecting their concerns" about this diversion of
traffic. Id. According to plaintiffs, "[t]here
can be no legitimate dispute that the presence of diverted
traffic into the adjacent historic districts will have
some effect on them and the law required the FTA to
consider whether such effects result in an 'adverse
effect.'" Id. at 50 (emphasis in original)
(quoting 36 C.F.R. § 800.5). Because the FTA "did
not consider traffic diversion at all, " plaintiffs
argue, "it is beyond dispute that the FTA did not define
the APE with sufficient expansiveness to have considered and
assessed these effects directly, indirectly, or cumulatively
on the historic districts." Id. at 51.
are possibly correct on one point: the district court did
arguably misstate the data regarding the number of vehicles
that would be diverted from Central Avenue by the ART
Project. Although the district court stated that the
diversion number would be 250 vehicles per day, the traffic
modeling that was conducted by the City actually indicated
that "[a] maximum of 250 vehicles during the PM peak
hour (eastbound)" would be "divert[ed] from Central
Avenue." App., Vol. 8 at 1153. It is unclear from the
record whether any non-peak hour diversions would occur.
Thus, the figure stated by the district court may or may not
remainder of plaintiffs' arguments, however, must be
rejected. To begin with, the arguments that plaintiffs now
make regarding diverted traffic flow are nowhere to be found
in the brief they filed in support of their motion for
preliminary injunction. Instead, they argued in that brief
that "the FTA inappropriately limited the APE to areas
adjacent to bus stations, " and "entirely
disregarded . . . destruction, alteration, character changes,
and introduction of visual and atmospheric impact by the ART
[P]roject." App., Vol. 2 at 222. Because plaintiffs'
arguments regarding diverted traffic flow were not asserted
below, we are under no obligation to address them for the
first time in this appeal.
even if we were to address these arguments, plaintiffs
themselves misstate the record in suggesting that this
diverted traffic would flow into, and negatively impact, four
historic neighborhoods. To begin with, the City's traffic
modeling suggested that a portion of the 250 vehicles would
"shift to a time outside of the peak hour."
Id. In other words, some of the 250 vehicles would
not divert to other nearby roads at all, but instead would
drive down Central Avenue at alternative times. Further, the
City's traffic modeling indicated that the remainder of
the 250 vehicles would divert "from Central Avenue to
parallel arterial streets, " most namely "the Lead
Avenue/Coal Avenue one-way pair approximately 1/4 mile south
of Central Avenue, and Lomas Boulevard, a six-lane principal
arterial north of Central Avenue." Id. And, the
City's modeling indicated, "[a]ccording to
volume-to-capacity data . . ., Lomas Boulevard and Lead
Avenue/Coal Avenue have adequate capacity to accommodate the
traffic diverted from Central Avenue." Id.
Finally, nothing in the record indicates that the traffic
actually diverted from Central Avenue during the "PM
peak hour" will "directly or indirectly cause
alterations in the character or use of historic
properties" on or near Central Avenue, as would be
necessary to raise concerns under NHPA. 36 C.F.R. §
800.16(d) (defining APE). For these reasons, plaintiffs have
failed to demonstrate a likelihood of establishing that the
FTA erred in defining the APE, or that the district court
erred in rejecting their arguments on this point.
also argue, again as part of Issue VI, that the APE was
inaccurate because the ART Project "will not remain
within the existing roadway footprint" and instead will
require the City to "acquir[e] over an acre of property
from both private and public property owners." Aplt. Br.
at 52. Relatedly, plaintiffs argue that the APE failed to
take into account the fact that the ART Project will create
"substantial subsurface disturbance with accompanying
vibrational and noise impacts to historic buildings and
districts along the ART route resulting from the construction
of ART." Id.
arguments were not asserted by plaintiffs in the brief they
filed with the district court in support of their motion for
preliminary injunction, and thus we are under no obligation
to address them in this appeal. Even if we were to address
these arguments, we would conclude that they lack merit
because plaintiffs have failed to describe why the APE would
have been any different had the City and the FTA considered
these two factors (i.e., the need for the City to acquire
approximately an acre of property to complete the ART
Project, or the vibrational and noise impacts), and they also
fail to establish that the FTA acted arbitrarily or
capriciously in failing to consider these factors. Or, as the
City aptly argues, these arguments "rel[y] on the
absence of overt discussion of the issue and not on any
evidence that [the acquisition of property by the City for
the ART Project or the] temporary construction vibrations
will in fact be a problem" in terms of negatively
impacting historic properties. City Aplee. Br. at 51.
next argue, as part of Issue VI, that it was an abuse of
discretion for the district court to "defer to the
conclusion of Jeff Fredine in his Cultural Inventory Addendum
that Central Avenue/Route 66 is not eligible for placement on
the National Register [of Historic Places]." Aplt. Br.
at 53. Fredine's conclusion, plaintiffs argue,
"rests on [his] gross mischaracterization of a survey
carried out by Route 66 Historian, Dr. David Kammer."
Id. To begin with, plaintiffs argue, the portion of
Kammer's survey that Fredine relied on actually addressed
a section of Route 66 that is outside of Albuquerque.
Id. at 53-54. "To make matters worse, "
plaintiffs argue, "Kammer actually recommended [in his
2003 survey] that Route 66-related historic districts, "
such as those inside the Albuquerque city limits,
"should be nominated for eligibility."
Id. at 54 (emphasis in original).
again mischaracterize the record in making these arguments.
During his direct testimony at the evidentiary hearing,
Fredine explained that he and the City
evaluated [Route 66] as a property itself in addition to
Route 66-associated buildings, and what we found, which is
consistent with previous research [including Kammer's
prior research], was that due to the adjustments that are
common in urban environments, especially one the size of
Albuquerque, that the historic integrity of Route 66 itself
through the - through Albquerque was not - there was not
enough remaining to make it eligible for the National
Register [of Historic Places].
App., Vol. 24 at 3055. Fredine testified that, as
"general background" material, id. at
3062, he relied on two surveys that Kammer had published, one
in 1993 and an updated version in 2003, "document[ing]
historic and architectural resources of Route 66 throughout
New Mexico, " id. at 3056. Fredine noted that
neither survey "list[ed] Central [Avenue] or Route 66
through Albuquerque as a historic property or one that's
eligible for the National Register [of Historic
cross-examination, Fredine acknowledged that the portion of
Kammer's survey that he relied on addressed rural areas
of Route 66. Id. at 3071. When asked why he relied
on that part of the survey in reaching conclusions about an
area of Route 66 located in the city limits of Albuquerque,
Because [Kammer's survey] spoke to a methodology he was
following where development can impact historic integrity.
And I believe I say something in [my] report to the effect
of, you know, this may be why [Kammer] was focusing on rural
areas other than urban areas. But my intent was to convey
that we were looking at urban development as a potential
effect to the integrity of a historic resource.
Id. at 3072.
was asked on cross-examination to read a portion of
Kammer's surveys that stated "the Route 66
Preservation Program and NR staff should collectively address
the possibility of nominating Route 66-related historic
districts in urban areas." Id. at 3073. Fredine
was then asked whether Kammer was "saying something [in
his surveys] that [wa]s quite different than what [Fredine]
attributed to him in [his] report?" Id. at
3074. Fredine responded:
I don't feel that he [wa]s. I feel that [he was] saying
there's potential there and that it should be evaluated
for a National Register nomination as a district.
What I am referring to [in my report] is the process of
impacts to historic integrity which can be by things like
urbanization and that process that affect the contiguousness
of those individual buildings that are eligible to the
in sum, Fredine provided a rational explanation for the
conclusion he reached in his report (i.e., that Route 66, as
it ran through Albuquerque, did not qualify as a historic
district for purposes of NHPA), and the district court did
not abuse its discretion in relying on that testimony
as part of Issue VI, plaintiffs argue that the district court
abused its discretion by "disregard[ing] the record
evidence establishing that neither the City nor the FTA
consulted with the public in carrying out the Section 106
review." Aplt. Br. at 55. According to plaintiffs,
"Section 106 regulations make planning for involving the
public and actually engaging the public mandatory."
Id. at 56 (citing 36 C.F.R. §§ 800.3(e),
(f), 800.4). Yet, plaintiffs argue, "[n]o evidence
exists that either the City or the FTA ever sought
consultation from anyone other than tribes regarding impacts
on historic properties." Id.
arguments lack merit. To be sure, the applicable regulation
states that "[t]he views of the public are essential to
informed Federal decisionmaking in the section 106
process." 36 C.F.R. § 800.2(d)(1). But, as the
district court correctly noted, the "regulations do not
specify the form of public outreach required under
NHPA." App., Vol. 7 at 1061. Instead, the regulation
affords the "agency official" with discretion to
"seek and consider the views of the public in a manner
that reflects, " in pertinent part, "the nature and
complexity of the undertaking and its effects on historic
properties." 36 C.F.R. § 800.2(d)(1). Further, and
of particular importance here, the regulation states that
"[t]he agency official may use the agency's
procedures for public involvement under [NEPA] . . . if they
provide adequate opportunities for public involvement
consistent with this subpart." 36 C.F.R. §
the district court found, in rejecting these same arguments
made by the plaintiffs, that "[t]he City . . . conducted
public outreach [that] provided an opportunity to allow
comment under . . . NHPA." App. at 1062. In making this
finding, the district court credited the testimony of Michael
Riordan, the City's Chief Operations Officer, who
"testified the outreach included numerous one-on-one
contacts with the public, door hangers, neighborhood
meetings, other public meetings, and various other modes of
outreach." Id. To be sure, the district court
found "that some people did not get the word" and
"[m]any of those that did . . . do not believe they were
heard." Id. Nevertheless, the district court
found "that the City's submissions to the FTA
included sizeable numbers of [public] comments, "
thereby allowing "[t]he FTA [reason to] conclude from
the CE application that the City engaged in public outreach
would have included comment required by . . . NHPA."
fail to explain how the district court's factual findings
on this issue were clearly erroneous. Moreover, plaintiffs
make no attempt to undercut the testimony of Riordan
regarding the measures that were taken to elicit public
comment. Consequently, there is no merit to their argument
that the district court abused its discretion in reaching the
conclusion that it did.
then, plaintiffs have not established any error on the part
of the district court in concluding that they failed to
establish a substantial likelihood of success on the merits
of their NHPA-based claim.
district court concluded that plaintiffs failed to
"satisf[y] the irreparable harm requirement for a
preliminary injunction." App., Vol. 7 at 1064. In
reaching this conclusion, the district court stated:
Plaintiffs, in this case, have presented evidence that
businesses and neighborhoods will be harmed by traffic
congestion, safety issues, aesthetic and cultural loss, and
loss of business. Indeed, testimony from witnesses Steve
Paternoster, Anthony Anella, and Buck Buckner, for example,
suggests a loss of business as a result of ART. However,
Plaintiffs have not demonstrated that the asserted harms are
irreparable. The City states in its briefing that the ART
lanes could be redesignated as general use lanes without much
trouble. Moreover, economic injuries are not irreparable,
because they are typically compensable with monetary damages.
See Heideman v. S. Salt Lake City, 348 F.3d 1182,
1189 (10th Cir. 2003) ("It is also well settled that
simple economic loss usually does not, in and of itself,
constitute irreparable harm; such losses are compensable by
Furthermore, the evidence shows any harm will also not be
"certain or great." No business will close and at
least one lane of Central will be open during construction.
Once ART is built, left-hand turns will be restricted but it
is not expected they will not [sic] prevent customer access.
Moreover, the evidence indicates that over all access will
improve with ART. The witness testimony about business
decline, while sincere, does not meet the legal test:
Plaintiffs have not provided any specific numbers or hard
projections, for example, to show how much business will be
lost. Also, any loss of foot traffic during construction
would be temporary and foot traffic is expected to actually
increase after ART is built due to improved streetscape. In
addition, the City will implement several mitigation actions
during construction to minimize impact such as construction
notices, low-or no-interest loans, and business consultants.
In addition, conclusory assertions of aesthetic harm are not
sufficient to establish irreparable harm.
Id. at 1063-64.
Issue IV of their appellate brief, plaintiffs argue that the
district court abused its discretion in relying on the
City's assertion "that the dedicated lanes could be
repurposed as general traffic lanes." Aplt. Br. at 37.
According to plaintiffs, this was merely a statement in the
City's brief in opposition to plaintiffs' motion for
preliminary injunction, and was "entirely without
support in the evidence." Id.
are correct that the City's brief in opposition to
plaintiffs' motion for preliminary injunction stated,
without a citation to any evidence: "As an initial
matter, construction of ART would not impose any irreparable
injury for the simple reason that the ART lanes could be
redesignated as general purpose lanes or turn lanes, with
relatively modest changes, were the Court to find the project
impermissible on some basis on the merits." App., Vol. 4
at 564. The problem for plaintiffs, however, is that they
failed to respond to this assertion in the reply brief that
they filed with the district court in support of their motion
for preliminary injunction. In that reply brief, plaintiffs
briefly discussed the issue of irreparable harm, but made no
mention of the City's assertion that the ART Project
lanes could be redesignated if necessary. Consequently,
plaintiffs have waived this argument for purposes of appeal.
next argue in Issue IV of their appellate brief that the
district court erred in concluding that their economic harms
were "'compensable by monetary damages.'"
Aplt. Br. at 37 (quoting App., Vol. 7 at 1063). According to
plaintiffs, "[t]he District Court did not posit any
legal theory on which [they] could recover damages, "
and "[o]ther courts have routinely rejected arguments
that even a theoretical theory for recovery of damages for
environmental harm can be treated as a substitute for
injunctive relief in a NEPA case." Id.
Plaintiffs further argue that the district court improperly
criticized them for failing to provide "specific numbers
or hard projections" regarding the economic damages they
might suffer as a result of the ART Project. Id. at
38. And plaintiffs argue that the district court improperly
"speculated that the ART [P]roject might well
improve businesses and other aspects of life along
Central [Avenue]." Id.
arguments largely miss the central point of the district
court's irreparable harm analysis. Having concluded that
plaintiffs failed to establish a substantial likelihood of
success on the merits of their NEPA and NHPA-based claims,
the district court in turn concluded that the only potential
harms identified by plaintiffs were largely economic in
nature and mostly speculative at that. Under Tenth Circuit
law, it is well established that "economic loss is
usually insufficient to constitute irreparable harm."
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,
1157 (10th Cir. 2011). Notably, plaintiffs make no attempt to
demonstrate that this case is an exception to the general
plaintiffs' assertion that the district court
"speculated that the ART [P]roject might well improve
businesses and other aspects of life along Central [Avenue],
" what the district court actually said is that
"the evidence indicate[d] that over all access w[ould]
improve with ART." App., Vol. 7 at 1063. Plaintiffs make
no attempt to challenge this assessment of the evidence.
these reasons, we conclude that plaintiffs have failed to
establish that the district court abused its discretion in
concluding that plaintiffs failed to establish the existence
of irreparable harm.
of harms and public interest factors
district court concluded that the balance of harms did not
favor granting plaintiffs a preliminary injunction. In
reaching this conclusion, the district court emphasized that
"[p]laintiffs' harms . . . reflect[ed] personal
preferences, but . . . d[id] not meet the legal test."
Id. at 1065. "Furthermore, " the district
court noted, "not allowing ART to go forward w[ould]
keep the City from building a project to revitalize the area
and address pedestrian safety and improve transit
efficiency." Id. In addition, the district
court noted that "the evidence sufficiently indicate[d]
that delaying ART w[ould] lead to increased construction
costs [of up to $7, 500 per day] because the City w[ould]
have to pay its contractors to keep them mobilized during
cold weather and for any period of delay caused by an
injunction." Id. (quotation marks omitted).
Lastly, the district court noted that "the City's .
. . construction schedule [wa]s such that it w[ould] minimize
impacts to businesses and residents, especially during peak
shopping times during Christmas, Summerfest, Balloon Fiesta,
and State Fair." Id.
district court also concluded "that the public interest
require[d] denying an injunction." Id. at 1066.
The district court explained that "[c]ompleting the ART
[P]roject on time w[ould] address existing safety concerns
sooner and save the public money due to construction delays,
" and that "an injunction w[ould], in part, serve
Plaintiffs' private interests, i.e., their business and
financial interests, rather than the public's interest at
large." Id. The district court also
"acknowledge[d] that at least a majority of the City
Council, the Mayor, and other elected officials ha[d]
investigated the ART [P]roject and ha[d] determined that it
[wa]s in the public's interest." Id.
Issue IV of their appellate brief, plaintiffs argue that the
district court "misunderstood the 'balance of
harms' and 'public interest' in the context of
injunctive relief from NEPA violations." Aplt. Br. at
39. To begin with, plaintiffs argue that it was wrong for the
district court to rely on the City's claim that it would
lose $7, 500 per day in contractual damages if an injunction
were issued. In support, plaintiffs note that in Davis v.
Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002), we
concluded, in the context of a NEPA-based claim, that delay
costs that would be incurred by the Utah Department of
Transportation (UDOT) if an injunction were issued in favor
of plaintiffs "may [have] be[en] self-inflicted" by
"state entities . . . 'jump[ing] the gun' on the
environmental issues by entering into contractual obligations
that anticipated a pro forma result." And the same is
true in this case, plaintiffs argue, because "the City
entered into contracts during the period that this Court
had temporarily enjoined the City from proceeding."
Aplt. Br. at 40 (emphasis in original).
plaintiffs' arguments misstate the record in this case.
On August 1, 2016, the same day the appeal was docketed,
plaintiffs filed an emergency motion to stay the district
court's order and for emergency injunctive relief pending
consideration of their appeal. Later that same day, we issued
an order directing the City and the FTA to file written
responses to plaintiffs' emergency motion by August 2,
2016. The order also directed the City to "include in
its response information on the nature and timing of any
demolition or construction related to the ART project that is
planned between now and the close of business on Wednesday,
August 10, 2016." Order at 1. Lastly, the order
temporarily enjoined defendants "from taking any action
on the ART project until further order of the court."
Id. at 2.
August 2, 2016, the City filed a written response to
plaintiffs' emergency motion, and also filed its own
emergency motion for limited modification of the court's
August 1, 2016 order. In both pleadings, the City explained
that at approximately 8:30 a.m. on August 1, 2016, prior to
the issuance of our order, "the City executed a contract
for certain pre-construction work" that was
"non-destructive and temporary in nature."
City's Emergency Motion at 2. The City thus asked us to
modify our August 1, 2016 order to allow this pre-
construction work to begin. The City also stated in its
response that, absent our issuance of an injunction, it
intended to execute a contract authorizing construction work
on August 22, 2016, and that it expected demolition or
destructive work to start on September 3, 2016.
August 2, 2016, we issued an order granting the City's
emergency motion to modify the temporary injunction to allow
the pre-construction work to proceed. Little more than two
weeks later, on August 19, 2016, we issued an order denying
plaintiffs' motion for stay and injunction pending appeal
and vacating the temporary injunction that was entered on
August 1, 2016.
light of this procedural history, there is no merit to
plaintiffs' assertion that the City entered into
contracts during the period that we temporarily enjoined the
City from proceeding. To the contrary, the City entered into
the pre-construction contract prior to the issuance of our
temporary injunction order, and it entered into the
construction contract after we lifted the temporary
injunction order and denied plaintiffs' motion for stay
and injunction pending appeal.
the key difference between Davis and the case at
hand is that we concluded that the plaintiffs in
Davis were likely to succeed on the merits of their
NEPA claim, i.e., that UDOT officials erred in concluding
that the highway construction project at issue would have no
significant effect on the environment. Here, in contrast,
plaintiffs have failed to establish a substantial likelihood
of prevailing on either their NEPA-based claim or their
NHPA-based claim. Thus, it was not necessarily improper in
this context for the district court to take into account the
additional costs that would be incurred by the City if an
injunction were issued.
plaintiffs argue, as part of Claim IV of their appellate
brief, that "[a]s to the related 'public
interest' prong of the test for preliminary injunctive
relief, this Court and others have consistently identified
the strong public interest in the enforcement of NEPA."
Aplt. Br. at 41. While that is true, the fact remains that
plaintiffs have failed to establish a substantial likelihood
of prevailing on the merits of their NEPA-based claim.
Consequently, they have failed to establish that the public
interest would be served if a preliminary injunction were
entered in their favor.
AFFIRM the district court's denial of a preliminary
injunction and REMAND the case for further proceedings.
 On that same date, a separate group of
Albuquerque citizens (often referred to in the pleadings as
the "Bautista plaintiffs") filed suit in New Mexico
state court against the City, various City officials, the
DOT, the FTA, and federal officials seeking to enjoin the ART
Project. That complaint was removed to federal district
court, but is not part of this appeal.
 The hearing also simultaneously
addressed a similar motion for preliminary injunction filed
by the Bautista plaintiffs in their action.
 "The Council on Environmental
Quality (CEQ) is tasked with interpreting NEPA and
establishing regulations governing agencies'
responsibilities under the statute." Sierra Club,
Inc. v. Bostick, 787 F.3d 1043, 1063 (10th Cir. 2015).
"CEQ regulations require federal agencies to consider
all of the reasonably foreseeable direct, indirect, and
cumulative effects of an agency's action."
Id. (citing 40 C.F.R. §§ 1508.7,
 As the City argues in its appellate
response brief, "there is no mention [in the record] of
traffic volumes as contributing to the historic significance
of [the four] districts [at issue] or as having the potential
to negatively affect their historic significance." City
Aplee. Br. at 49.