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