The Alaska Department of Transportation and Federal Highway Administration (FHA) proposed construction of a road to Whittier, Alaska to replace the twelve mile railroad that connected the town with the state's highway system. In 1995, the agencies published a combined final environmental impact statement (EIS) and draft section 4(f) evaluation for the Whittier Access Project. The EIS analyzed four alternatives for improving access to Whittier, including a no action alternative, improved rail service, and two road alternatives. In 1996, FHA issued a Record of Decision selecting one of the road alternatives for implementation, concluding that only the road alternatives met the purpose and need for the project.
Environmental groups and wilderness tour operators (collectively referred to as Alaska Center for the Environment, or ACE) brought suit alleging that FHA had violated section 4(f) of the Department of Transportation Act, section 138 of the Federal-Aid Highway Act, and the National Environmental Policy Act (NEPA). Section 4(f) proscribes federal agencies from approving transportation projects that require the use of a public park or recreational area unless there is no feasible and prudent alternative to using the land, and the project includes all possible planning to minimize harm to the public land. ACE argued that improving the existing rail service was a prudent and feasible alternative to constructing the road, and that the EIS violated NEPA because it did not adequately address the safety hazards associated with the use of a road to Whittier.
The district court granted FHA's motion for summary judgment, concluding that the agency had not acted arbitrarily in deciding that improved rail access was not a prudent and feasible alternative to the proposed road. The Ninth Circuit affirmed, relying heavily on its previous decision in Arizona Past & Future Foundation v. Lewis, in which the court held that avoidance alternatives that did not accomplish the purposes of a project could be rejected as imprudent.
The Ninth Circuit reviewed FHA's reasons for determining that the rail service was imprudent. FHA had projected that demand for the road to Whittier far exceeded demand for the train because people were more likely to drive their cars than to ride trains, and therefore the improved rail service alternative did not satisfy the project's purpose of meeting the projected demand for access. FHA also concluded that increased rail service posed potential safety risks because the entrance to one rail tunnel was prone to avalanches, and tracks were subject to unsafe ice buildup. Because rail service did not meet the agency's stated purposes of the project, the Ninth Circuit concluded that the agency properly rejected the alternative.
ACE argued that, consistent with the Ninth Circuit's ruling in Stop H-3 Ass'n v. Dole, FHA was required to identify unique problems or truly unusual factors supporting rejection of the rail alternative. The Ninth Circuit distinguished the facts in the case at hand from Stop H-3. The court explained that in Stop H-3 all avoidance alternatives met the purposes of the project, while in the current case, FHA rejected the railsystem alternative because it did not satisfy the purposes of a project. Under the standard developed by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, the agency must only go further and find truly unusual factors when the rejected alternative would satisfy the purpose of the project without using public park or recreational land.
The Ninth Circuit also dismissed ACE's NEPA claim. ACE argued that the EIS failed to adequately address the safety concerns associated with the road and rail alternatives. The court found that this claim was not supported by the record because the EIS had thoroughly examined the relative safety risks of the different alternatives and specified mitigating measures. The Ninth Circuit also dismissed ACE's claim that the FHA defined the purpose of the project too narrowly. The court concluded that the purpose, namely to meet the demand for access to Whittier, was not defined so narrowly as to disqualify all alternatives except those to build a road.