Stan Bitters v. Federal Highway Administration

Full title: STAN BITTERS, et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, et…

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Jan 12, 2016

No. 1:14-cv-01646-KJM-SMS (E.D. Cal. Jan. 12, 2016)

Opinion

No. 1:14-cv-01646-KJM-SMS

01-12-2016

STAN BITTERS, et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants.

ORDER

In May 2014, defendant California Department of Transportation ("Caltrans"), acting on behalf of the Federal Highway Administration ("FHWA"), approved federal funds for a project to reintroduce vehicular traffic to the Fulton Mall in Fresno, California in order to revitalize economic activity in the downtown area. Plaintiffs filed this action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., alleging Caltrans violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by deciding to not prepare an environmental impact statement ("EIS"), violated NEPA by preparing a deficient environmental assessment ("EA"), and violated Section 4(f) of the Federal Transportation Act ("Section 4(f)"), 49 U.S.C. § 303(c), by preparing a deficient evaluation of the project's use of historic sites and public parks.²

2 Plaintiffs also assert a claim under California Government Code section 11135, but the court stayed litigation of that claim pending resolution of the three APA claims. ECF No. 27.

This matter is before the court on the parties' cross-motions for summary judgment on the three APA claims, ECF Nos. 35, 40, 42, and plaintiffs' motion for a preliminary injunction pending the court's ruling on the summary judgment cross-motions. ECF No. 47. The court held a hearing on the summary judgment motions on October 30, 2015, at which Sarah Hedgpeth-Harris and Amy Minteer appeared for plaintiffs; Stephen Onstot appeared for defendant City of Fresno ("the City"); and Judith Carlson appeared for defendant Caltrans. The court submitted plaintiffs' later preliminary injunction motion as provided by Local Rule 230(g).

As explained below, after careful consideration of the record in light of applicable law, the court DENIES plaintiffs' motion for summary judgment and GRANTS defendants' motions for summary judgment. The court DENIES AS MOOT plaintiffs' motion for a preliminary injunction.

I. PROCEDURAL BACKGROUND

Plaintiff Downtown Fresno Coalition ("DFC") is an unincorporated organization dedicated to the revitalization and preservation of the Fulton Mall. AR 005341, 013230. Plaintiffs and DFC members Patty Bartucci, Herman Patton, and Ray Perez are low-income, disabled, minority residents of the City who live within a few blocks of the Fulton Mall. They enjoy the trees, artwork, and park-like atmosphere of the Fulton Mall on almost a daily basis. Bartucci Decl. ¶¶ 2, 5; Patton Decl. ¶ 2; Perez Decl. ¶¶ 3-5. Plaintiff and DFC member Stan Bitters³ contributed sculptures and fountains to the Fulton Mall when it was first converted into a pedestrian mall in the early 1960s. Bitters Decl. ¶¶ 3, 5; AR 012053, 010027-29. Plaintiff and DFC member Joyce Aiken⁴ contributed mosaic benches to the Mall. Aiken Decl. ¶¶ 5, 7; AR 010029. The DFC participated in the formal consultation process with Caltrans under Section 106 of the National Historic Preservation Act, 36 C.F.R. §§ 800.1 et seq. AR 002871-79, 005341-44. Defendants have not challenged plaintiffs' standing, and the court's own review finds plaintiffs have established standing. Cf. Ecological Rights Found. v. Pac. Lumber, 230 F.3d 1141, 1147-53 (9th Cir. 2000).

3 Bitters has worked in ceramics for approximately sixty years, studying early on with Peter Voulkos at the Otis College of Art and Design in Los Angeles. His work has been included in a relatively recent design retrospective at the Craft and Folk Art Museum in Los Angeles, and he had a 2014 solo show at Heath Ceramics in San Francisco. Stan Bitters, Wikipedia: The Free Encyclopedia (online ed. Dec. 12, 2015).

4 Aiken taught feminist art at California State University, Fresno from 1973 to 1992, assuming teaching of the Feminist Art Program class developed by Judy Chicago. From 2004 to 2010 she served as Director of the Fresno Arts Council. Joyce Aiken, Wikipedia: The Free Encyclopedia (online ed. Feb. 17, 2015); Judy Chicago, Wikipedia: The Free Encyclopedia (online ed. Jan. 10, 2016).

Plaintiffs filed this action on October 20, 2014. ECF No. 1. On January 6, 2015, plaintiffs filed a First Amended Complaint. First. Am. Compl., ECF No. 7 ("FAC"). The First Amended Complaint asserts four causes of action: (i) violation of NEPA and APA for failure to prepare an EIS for the project; (ii) violation of NEPA and APA for failure to adequately evaluate impacts in the EA; (iii) inadequate Section 4(f) analysis; and (iv) violation of California Government Code section 11135. Id. The court has stayed litigation of the fourth cause of action pending resolution of the three APA claims. ECF No. 27, at 2-3. Caltrans and the City each filed an Answer. ECF Nos. 16, 17.

On August 31, 2015, plaintiffs filed a motion for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure. Pls.' Mot. Summ. J., ECF No. 35. The City and Caltrans filed cross-motions for summary judgment under Rule 56(f). City's Opp'n & Mot. Summ. J., ECF No. 40 ("City's Mot. Summ. J."); Caltrans' Am. Opp'n & Mot. Summ. J., ECF No. 42 ("Caltrans' Mot. Summ. J."). Plaintiffs filed a joint reply in support of their motion for summary judgment. Pls.' Reply, ECF No. 44. Because the alleged inadequacies with the EA also serve as the basis for plaintiffs' argument that Caltrans was required to prepare an EIS, the court addresses plaintiffs' two NEPA claims together for purposes of this order.⁵

5 Plaintiffs' motion for summary judgment focuses on Caltrans' decision not to prepare an EIS, but plaintiffs' reply clarifies that their motion addresses both of their NEPA claims and did not abandon their second cause of action. See Pls.' Reply at 1; see also City's Mot. Summ. J. at 2 n.2 (arguing that plaintiffs abandoned their second cause of action by failing to address it in their motion for summary judgment). The court interprets plaintiffs' motion as providing overlapping arguments regarding the deficiencies of the EA and the need for an EIS under NEPA.

II. FACTUAL BACKGROUND

A. History of the Fulton Mall

Through the end of World War II, Fulton Street was the heart of downtown Fresno and was considered the "Main Street" for commercial and business activity. AR 001840.⁶ During the late 1940s, Fresno's land use patterns began to alter as a result of the expansion of land uses and the movement of residents and businesses to the city's periphery. Id. As suburban shopping malls opened in the urban fringe, Fresno began to experience the commercial decline of Fulton Street. Id. In response to this decline, Fresno hired acclaimed shopping mall architects Victor Gruen Associates, Inc.⁷ in the late 1950s to develop a plan to rebuild the city's core. Id. Early planning documents stated that Fulton Street was to be "converted into a high-quality dense activity pedestrian mall." AR 005186. Modernist architect Garrett Eckbo,⁸ who Caltrans recognizes as a "master," see, e.g., AR 005296, implemented Gruen's vision and designed the Fulton Mall, which opened in 1964. See AR 001840. The Fulton Mall landscape included carefully designed planters and fountains, trees, and works of art commissioned by local artists. AR 005186. To comply with California's Pedestrian Mall Law of 1960, Cal. Sts. & High. Code §§ 11000 et seq., the City adopted an ordinance establishing Fulton Mall as Pedestrian Mall No. 1. AR 000344-47. The land that makes up the Mall is owned in fee simple by the owners of the buildings that are adjacent to the Mall,⁹ and the City holds a right-of-way easement for the Mall. AR 005185; see also AR 013960.

6 The pages cited here are those printed consecutively throughout the administrative record in red ink in the bottom center of each page.

7 Victor Gruen was an Austrian-born and trained architect who came to the United States in 1938. It was in this country that he pioneered the "regional shopping centre," commonly known as a shopping mall, in the course of working to "solve problems of modern urban areas for mass population." Victor Gruen, Encyclopedia Brittanica (online ed. 2016).

8 Garrett Eckbo was an American landscape architect who chaired the landscape department at University of California, Berkeley, from 1963 to 1969. He pioneered modern landscape architecture, including through introduction of asymmetry and abstract designs. Garrett Eckbo, Encyclopedia Brittanica (online ed. 2016).

9 The Final EA does not specify which building owners own the land that makes up the Mall. Approximately seventy-three percent of the buildings along the Mall are used as storefronts or offices. See AR 005248.

During the 1970s and 1980s, longtime local merchants and department store anchors steadily departed the Fulton Mall for new suburban locations. AR 005186. In the early to mid-1990s, property values of the major buildings in the Mall area declined significantly. Id. Today, the Fulton Mall tenant mix is composed of relatively small businesses, and downtown Fresno is more economically depressed than the city as a whole. Id. Measured against the surrounding downtown area, the Fulton Mall area is even more depressed, in some cases by a factor of three or more. Id.

The history of the Fulton Mall is not unique. Beginning in the late 1950s, an estimated 200 pedestrian malls were installed in cities across the United States. AR 001643, 001842. According to a study conducted in downtown Memphis, most of the original 200 malls suffered negative economic consequences from the original conversion and nearly 85% have since reopened to vehicular traffic.¹⁰ AR 001842.

10 The Fulton Mall Urban Decay Study, upon which Caltrans relies, reviewed several third-party studies on the Fulton Mall and surrounding area, as well as case studies on similar projects involving pedestrian malls around the nation, as part of its quantitative and qualitative analysis. See AR 001847. Other methods included on-foot field surveys, surveys of real estate brokers, analysis of real estate and market statistics, and analysis of crime statistics in the study area and surrounding area. See AR 001847-48.

B. Proposed Project

The Fulton Mall Reconstruction Project would convert Fulton Mall back to a street by reintroducing vehicle traffic lanes. AR 005185. The proposed project includes the pedestrian mall segments at the cross streets of Merced, Mariposa, and Kern. AR 005189. The length of the proposed project is 0.74 miles, while the width of the existing pedestrian mall is eighty feet. AR 005185. The project would introduce one eleven-foot-wide vehicle lane in each direction alongside bicycle and potentially other travel modes, additional parking spaces along the length of the Mall, and pedestrian-only space ranging from fourteen to forty-four feet wide on one or both sides of the street, depending on the specific proposal adopted. See AR 005198, 005203. The cost of the project is estimated to be twenty million dollars. AR 005185. The project is part of a larger planning effort by the City intended to revitalize the downtown area. AR 005197. Other planning efforts include the amended 2025 General Plan, Central Area Community Plan, Fulton Corridor Specific Plan, and Downtown Neighborhoods Community Plan. AR 005195-96, 005230-32.

The stated purpose of the proposed project is to increase mobility and access in the Fulton Mall study area by providing more convenient multi-modal access options on the Mall and its cross streets; to improve visibility of businesses and other amenities by improving traffic circulation, thereby encouraging additional economic development in the area; and to increase the Fulton Mall study area's consistency with the requirements and goals of proposed land use plans. AR 005189-90, 005360.

Caltrans identified several needs for the project. First, Caltrans found the lack of vehicular traffic and on-street, short-term parking currently limits access to businesses and residences in the study area. AR 005190. According to the Economic Impact Analysis prepared for the project, people tend to prefer to reach their shopping or business destinations quickly, especially if they have young children or are elderly or disabled. Id. About one-half of the Mall is not compliant with current Americans with Disabilities Act ("ADA") standards.¹¹ See AR 005387, 005625. Second, Caltrans found the pedestrian-only configuration limits the visibility of businesses from automobiles to what can be seen from a vehicle driving on one of the cross streets. AR 005190. As a result, existing businesses must rely on advertising or pedestrian traffic to attract commerce. AR 005192. Caltrans found this lack of access and visibility hampers economic development in the Fulton Mall study area. AR 005194. The "Pedestrian & Transit Malls Study by Memphis Center City Commission" (2008) listed lack of access and visibility for retail as a factor in the decline of pedestrian malls across the country. AR 005194. The Fulton Mall study area is more economically depressed than other areas of Fresno, with lower retail sales, higher vacancy rates, and higher crime rates. AR 005194-95. Finally, Caltrans found the proposed project is needed to further the goals of the proposed land use plans for Fresno. AR 005195-96.

11 The ADA was adopted in 1990, twenty-six years after the Mall's opening.

III. STATUTORY AND REGULATORY FRAMEWORK

Although defendants undertook several environmental review processes to evaluate the development options for the Fulton Mall, the two at issue are the NEPA and Section 4(f) processes.

A. NEPA

NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). NEPA requires agencies undertaking any major federal action to follow "a set of 'action-forcing' procedures that require that agencies take a 'hard look at environmental consequences,' and that provide for broad dissemination of relevant environmental information." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe, 427 U.S. at 410 n.21). The Supreme Court has explained that NEPA "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id. at 349. "[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process," id. at 350; thus, "NEPA merely prohibits uninformed—rather than unwise—agency action," id. at 351.

Among other action-forcing procedures, NEPA requires all agencies of the federal government to prepare a "detailed statement" that discusses the environmental effects of, and reasonable alternatives to, all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). This statement is commonly known as an environmental impact statement ("EIS"). The Council of Environmental Quality ("CEQ"), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining whether an EIS is required. See 40 C.F.R. § 1500.3. When an agency does not know whether the effects of its action will be "significant," CEQ regulations allow an agency to prepare a more limited document, an environmental assessment ("EA"), to help make that determination. 40 C.F.R. §§ 1501.4(b), 1508.9. The EA is to be a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." Id. § 1508.9(a). If, based on the EA, substantial questions are raised as to whether a project may have a significant effect on the environment, an EIS must be prepared. Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001), abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 145 (2010); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998). If not, the agency "must issue a 'finding of no significant impact' (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757-58 (2004); see also Monsanto, 561 U.S. at 145.

B. Section 4(f) of the Department of Transportation Act

Running parallel with, but distinct from, the NEPA process is the Section 4(f) process, prescribed in the federal Department of Transportation Act, 49 U.S.C. §§ 101 et seq. "The Department of Transportation Act is intended to preserve historic sites as far as practicable." HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1232 (9th Cir. 2014). Section 4(f) of the Act prohibits an agency from approving a project that uses publicly owned land that is a "public park" or "historic site of national, State, or local significance" unless: (1) there is no feasible and prudent alternative to using that land, and (2) the project "includes all possible planning to minimize harm" to the resources. 49 U.S.C. § 303(c); see also 23 C.F.R. § 774.3. Section 106 of the National Historic Preservation Act ("Section 106"), 36 C.F.R. §§ 800.1 et seq., outlines a consultation process by which an historic site's significance is determined.¹² See 23 C.F.R. § 774.11; 36 C.F.R. § 800.4.

12 Section 106 also imposes separate substantive requirements on projects that affect historic properties, but those requirements are not at issue in this action.

Prior to approving a project requiring the use of Section 4(f) property, an agency must determine there is no feasible and prudent alternative that avoids using that property. 49 U.S.C. § 303(c)(1). Section 774.17 of the Code of Federal Regulations defines "feasible and prudent avoidance alternative":

(1) A feasible and prudent avoidance alternative avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property . . . .

(2) An alternative is not feasible if it cannot be built as a matter of sound engineering judgment.

(3) An alternative is not prudent if:

(i) It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need;

(ii) It results in unacceptable safety or operational problems;

(iii) After reasonable mitigation, it still causes:

(A) Severe social, economic, or environmental impacts;

(B) Severe disruption to established communities;

(C) Severe disproportionate impacts to minority or low income populations; or

(D) Severe impacts to environmental resources protected under other Federal statutes;

(iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude;

(v) It causes other unique problems or unusual factors; or

///// //////

(vi) It involves multiple factors in paragraphs (3)(i) through (3)(v) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

23 C.F.R. § 774.17.

If there is no feasible and prudent avoidance alternative, the agency may approve, from the remaining alternatives that use Section 4(f) property, only the alternative that "[c]auses the least overall harm in light of the statute's preservation purpose." Id. § 774.3(c)(1). The least overall harm is determined by balancing the following factors:

(i) The ability to mitigate adverse impacts to each Section 4(f) property . . . ;

(ii) The relative severity of the remaining harm, after mitigation . . . ;

(iii) The relative significance of each Section 4(f) property;

(iv) The views of the official(s) with jurisdiction over each Section 4(f) property;

(v) The degree to which each alternative meets the purpose and need for the project;

(vi) After reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section (f); and

(vii) Substantial differences in costs among the alternatives.

Id.

In addition, the alternative selected must include "all possible planning" to minimize harm to Section 4(f) property. 49 U.S.C. § 303(c)(2); see also 23 C.F.R. § 774.3(c)(2). "All possible planning" means that the project must include all reasonable measures identified in the evaluation to minimize harm or mitigate for adverse impacts and effects. 23 C.F.R. § 774.17. With regard to historic sites, the mitigation measures normally serve to preserve the historic features as agreed by the FHWA and the official with jurisdiction over the Section 4(f) resource in accordance with the Section 106 consultation process. Id.

C. CEQA

In addition to complying with federal statutes and regulations, defendants must also comply with the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq., the state framework for environmental protection. AR 005185. Caltrans is the lead agency under NEPA and Section 4(f),¹³ and the City is the lead agency under CEQA. Id.; see also AR 005353. If a project may have a significant effect on the environment, CEQA requires state and local agencies to identify mitigation measures and alternatives by preparing an environmental impact report ("EIR"). See Cal. Pub. Res. Code § 21002.1. Plaintiff Downtown Fresno Coalition is currently challenging the City's actions under CEQA in state court in Downtown Fresno Coalition v. City of Fresno, California Court of Appeal, Fifth Appellate District, Case No. F070845.¹⁴ Plaintiffs do not bring any CEQA claims in this action, but the court reviews the project's CEQA process as helpful background to its NEPA and Section 4(f) processes.

13 Caltrans assumed responsibility for environmental review of the Fulton Mall Reconstruction Project under NEPA and Section 4(f) as provided by a Memorandum of Understanding with the FHWA. See 23 U.S.C. § 327(a)(2); ECF No. 21-1.

14 As plaintiffs request, the court takes judicial notice of the opening brief in the state court proceeding under Federal Rule of Evidence 201. See Fed. R. Evid. 201(b)(2), 201(c)(2); Pls.' Ex. A, ECF No. 36; see also Missud v. Nevada, 861 F. Supp. 2d 1044, 1054 (N.D. Cal. 2012), aff'd, 520 Fed. App'x 534 (9th Cir. 2013) (filings and orders in other court proceedings are judicially noticeable to demonstrate the existence of other court proceedings).

IV. ENVIRONMENTAL REVIEW OF PROJECT

A. Early Planning and CEQA Process

In 2010, the City began work on the Fulton Corridor Specific Plan ("FCSP"), a planning document intended to guide future development along the Fulton Mall and in the surrounding area. AR 005047, 005189. In October 2011, the City published a draft FCSP, which devotes an entire chapter to the future of the Fulton Mall. AR 001588-833; see AR 001642-60.

In June 2013, the City applied to the U.S. Department of Transportation ("DOT") for a grant from the Transportation Investments Generating Economic Recovery program ("TIGER program") for a proposed project to reintroduce vehicular traffic to the Fulton Mall, dubbed the Fulton Mall Reconstruction Project. AR 000150-256. In August 2013, the DOT announced the City had been awarded nearly sixteen million dollars in TIGER funding for the project. AR 005185, 008166. In October 2013, the City decided to prepare a separate EIR under CEQA for the Fulton Mall Reconstruction Project, independent from the EIR for the larger FCSP, to meet the deadlines for environmental review required by the TIGER grant. See AR 005883-84, 008166.

In November 2013, the City released the Draft EIR for the Fulton Mall Reconstruction Project for public comment. AR 008132-425. The Draft EIR states, "It is in light of the TIGER grant . . . that the City is preparing this new CEQA document, which addresses the project on its own, and is also focused on the Project as being conditioned on the allowed purposes of the TIGER grant funds." AR 008167. The Draft EIR concluded the project would cause significant and unavoidable impacts to only two environmental factors: visual character, for five to ten years while replacement trees mature, and historic resources. AR 008180-81, 00820203. In February 2014, after lengthy public debate, the Fresno City Council certified the Final EIR and approved the proposed project to reintroduce vehicular traffic to the Fulton Mall, finding the specific economic, legal, social, technological, or other benefits of the project outweighed its unavoidable adverse environmental effects. AR 006108-21; see also AR 012029-70.

B. NEPA Environmental Assessment

1. Alternatives Considered

In February 2013, Caltrans made the preliminary determination that opening Fulton Street to vehicular traffic could have adverse environmental effects, and formed the preliminary conclusion that a "Complex Environmental Assessment" should be completed to satisfy NEPA.¹⁵ AR 000023-32. In October 2013, Caltrans and the City prepared a draft Complex EA that screened ten Build Alternatives and one No-Build Alternative for practicality and feasibility. AR 000088-110. The ten Build Alternatives were derived from multiple sources, including (1) a compilation of alternatives developed by the City; (2) concepts evaluated as part of proposed planning documents; and (3) alternatives suggested by the public at scoping meetings. AR 005207. The process of developing alternatives considered a range of engineering and environmental constraints, particularly avoiding or minimizing use of features of Section 4(f) properties. AR 005410.

15 Under Caltrans' implementation of 23 U.S.C. § 327, EAs have been divided into two categories: complex EAs and routine EAs. See AR 000033, 005616. Complex EAs are defined as those EAs that have complex issues or impacts in that they may include multiple location alternatives, debate related to purpose and need, strong public controversy, issues related to logical termini or independent utility, individual Section 4(f) determinations, complex Endangered Species Act issues, numerous cumulative impacts or high mitigation costs. See AR 000033, 005616. "Local termini" refers to rational end points for a transportation improvement, and rational end points for a review of the environmental impacts. Memorandum, FHWA, The Development of Logical Project Termini (Nov. 5, 1993), https://www.environment.fhwa.dot.gov/projdev/tdmtermini.asp. "Independent utility" refers to a requirement under Section 4(f) that the transportation improvements have independent utility or significance, even if no additional transportation improvements in the area are made. See id.; see also 23 U.S.C. § 771.111(f).

Alternative 1 consists of reopening the entire Fulton Mall to two-way streets, with one lane of vehicular traffic in each direction alongside bicycle, pedestrian, and potentially other travel modes. AR 005198, 005362. A total of 162 on-street vehicle parking spaces would be added along the length of the Mall, along with twenty-eight new spaces along cross streets; mid-block pedestrian crossings would be provided; and improvements would be made to the streetscape. AR 005198, 005362. Pedestrian walkways would include a fourteen-foot sidewalk on one side of the street and a twenty-eight-foot promenade on the other. AR 005198, 005362. Alternative 1 would utilize and incorporate all of the works of sculpture and mosaic benches currently displayed on the Mall; reconstruct sixteen of the Mall's original twenty water features;¹⁶ and retain the total number of trees at approximately 154, after replanting 131 of the trees. AR 005198. The two existing "tot lots" (children's playgrounds) would be relocated and combined into one larger "tot lot." AR 005199, 005362.

16 The Final EA provides the following: "Seven of the existing twenty fountains are currently functioning. Five would be rebuilt and remain in place. Eleven others would be newly built to resemble the originals and re-scaled and located in other locations along the Mall promenade." AR 005198.

Alternative 2 consists of reconnecting the street grid similar to Alternative 1, but would include rebuilding distinctive elements of the Fulton Mall in five to six specific locations, identified as "vignettes." AR 005203. The vignettes are intended to preserve existing shade trees and features of the historic Eckbo design and would include many of the existing elements. Id. To best preserve existing elements, the street would have "gentle curves," rather than a straight curb line. Id. One lane of vehicular traffic would run in each direction and would curve through the vignettes. Id. Outside the vignette areas, the landscape would include an eight-foot-wide parallel parking lane and a pedestrian-only walking, seating, vegetation, and public art area that varies between fourteen- and forty-four-feet-wide on one side or both sides of the street. Id. Within the vignettes, there would be no parking lane, and the existing landscape elements would be kept intact as much as possible. Id. A total of fifty-two new on-street parking spaces would be introduced along the length of the Fulton Mall, and an additional thirty new spaces along cross streets. Id. Fourteen of the twenty existing sculptures would remain in their current location, and the other six would be relocated to the vignettes or other sidewalk areas. Id. Sixteen of the twenty fountains would be rebuilt to resemble the originals, and the total number of trees would decrease from 154 to ninety-seven. Id. As in Alternative 1, the two existing "tot lots" would be relocated and combined into one larger "tot lot." Id.

Alternatives 3 and 4 would restore and renovate the Mall's features and artwork without reopening the Mall to vehicular traffic. AR 000095-99, 005404-05. They include the option of adding an electric tram system along the length of the Mall. AR 000095-99, 005404-05. Alternatives 5 through 8 would each restore portions of the Mall and open up the rest to vehicular traffic. AR 000099-108, 005216. Alternatives 9 and 10 would introduce traffic on top of the existing Mall pavement. AR 000108-09, 005408. The No-Build Alternative would not re-open the Mall to vehicular traffic or make any improvements to the Mall. AR 000090, 005207, 005407.

After applying five criteria relating to financial feasibility, the ability to meet the purpose of the project, safety, and impacts to historic resources, the Draft EA identified Alternatives 1 and 2 as those that should move forward for further evaluation under NEPA. AR 000088-110. The Draft EA also carried forward an evaluation of the No-Build Alternative because it is required under NEPA. AR 00090.

2. Selection of Preferred Alternative

On January 10, 2014, Caltrans made the Draft EA available for public and affected agency comment. AR 005333, 005541. On February 25, 2014, a group of District 6¹⁷ executive managers, including the District Director and the Environmental Division Chief, met to consider impacts to historic properties, Section 4(f) Least Overall Harm, purpose and need, and safety, construction and operations of the project. AR 005214. The team also reviewed and considered public input received on the Draft EA and Section 4(f) Analysis. Id.; AR 005163-69. Based on the available data, the group selected Alternative 1 as the preferred alternative. AR 005163, 005214. Alternative 1 was determined to best meet the Section 4(f) Least Harm criteria, to best meet the project's purpose and need, and to be the superior alternative from a safety and operations standpoint. AR 005215. Specifically, the team found it significant that Alternative 1, through its wide promenade, better preserves the feel of an urban park than Alternative 2; preserves more of the aggregate pavement with river rock ribbons than Alternative 2; creates 190 new parking spaces, in comparison to the eighty-two parking spaces created by Alternative 2; incorporates a straight curb line, which is safer than the curving curb line incorporated by Alternative 2; and allows for maintaining 154 trees, in comparison to the ninety-seven trees allowed by Alternative 2. AR 005163. In addition, Alternative 1 was favored by the public over Alternative 2 in comments received on the Draft EA. AR 005215. As the Section 4(f) process and Section 106 consultation were still ongoing, Caltrans continued to consider new information relating to the various alternatives prior to completing the Final EA. AR 005214-15. Because Caltrans did not receive any new material information, it issued a Final EA identifying Alternative 1 as the preferred alternative on May 14, 2014. See AR 005175-351.

17 District 6 is one of Caltrans' twelve districts in California. See Cal. Dep't of Transp., District 6 Profile, http://dot.ca.gov/dist6/. It includes Madera, Fresno, Tulare, Kings and Kern counties, and is headquartered in Fresno. See id. The court takes judicial notice of these facts as provided by Federal Rule of Evidence 201, because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).

3. Finding of No Significant Impact (FONSI)

The Final EA determined an EIS was not required for the project, because Alternative 1 would have no significant impact on the human environment. AR 005179. The Final EA found there were no adverse impacts to growth, community character and cohesion, relocations and real property acquisition, utilities and emergency services, hydrology and floodplain, water quality and storm water runoff, paleontology, hazardous waste and materials, air quality, noise, climate change and greenhouse gas, or biological environment. AR 005219-21. The Final EA provided more detailed discussion of the impacts to land use, the community, traffic and transportation, visual/aesthetics, and cultural resources, as well as construction impacts and cumulative impacts, but ultimately concluded these impacts would not be "significant" within the meaning of NEPA. AR 005222-328. The impacts relevant to this action are the project's community impacts and impacts to traffic, pollution, and infrastructure.

a) Community Impacts

All projects involving a federal action—funding, permit issuance, or land development—must comply with Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Feb. 11, 1994), which directs federal agencies to take the appropriate and necessary steps to identify and address disproportionately high and adverse effects of federal projects on the health or environment of minority and low-income populations. See AR 005243. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance. See AR 005244. To assess the impacts to the local economy and environmental justice, the Final EA relied on the 2011 Economic Impact Analysis, AR 014481-505, 2012 Fulton Mall Urban Decay Study, AR 014506-77, 2013 Technical Analysis Memorandum, AR 003479-85, and 2013 Community Impact Assessment, AR 003999-4068. Caltrans found the project study area is in a state of urban decay due to economic disinvestment, with high vacancy rates, low lease rates, low retail sales, high crime rates, and deteriorating physical conditions. AR 005241. Caltrans concluded Alternatives 1 and 2 would influence business growth through the reoccupation of existing vacant buildings as vehicle access and parking become available, which could result in a substantial benefit to the economy over an unspecified period of time. AR 005242-43. Alternative 1 would potentially increase average retail sales from $92 per square foot to $184 per square foot, reduce ground-floor vacancies from 26% to 9%, and provide approximately 2,100 new jobs. Id.

For its analysis of environmental justice impacts, Caltrans defined the project study area as three census blocks within Census Tract 1, encompassing Fulton Mall, Kern Mall, Mariposa Mall, and Merced Mall. AR 004011, 005244. The project study area was established based on land uses within structures adjacent to the malls and existing circulation. AR 004011. The original vision for the malls in the late 1950s was the establishment of a core superblock that encompassed twelve city blocks with a ring road adjacent to the superblock. Id. The creation of a car-free core superblock was not fully implemented because Tulare Street and Fresno Street continued to provide access through the Mall area. Id. The boundaries of the original superblock form the boundaries of the project study area. Id. This area contains primarily commercial development, but also features three apartment complexes with about 466 residents. AR 005244. Most of the households in Tract 1 are single persons living below the poverty level. Id. The population as of 2010 in Tract 1 is 73.4% white, but population and ethnic census data were not available at the census block level for 2010. AR 005245. Most ground-floor retail businesses on the Mall are minority owned, and many retail businesses are oriented toward Hispanic customers. AR 005246. Day users of the Mall include a mix of office workers and shoppers, and foot traffic counts in 2010 found an average of 4,805 people passing through the Mall daily from 10:00 a.m. to 6:00 p.m. AR 005247. "Hispanic/Latino" identity was claimed by 62% of survey respondents passing daily through the Mall, and a smaller number of day users are homeless or underemployed. Id. Based on a comparison of the census data for Tract 1 with the census data for the other tracts in the downtown area, the technical analysis memorandum concluded "the construction and operation of the Fulton Mall project would not result in an inequitable environmental burden borne by low-income or minority populations." AR 003482. The Community Impact Assessment likewise concluded Alternatives 1 and 2 would not cause disproportionately high and adverse effects on any minority or low-income populations. AR 004061.

Because the proposed project does not include demolition or reconstruction to any of the buildings on the Mall, Caltrans found the project would not physically displace any residents or businesses in the study area. AR 005247-48. In addition, Caltrans found residents near the construction activities would not suffer any substantial impacts to air quality, noise, traffic, or the local economy. AR 005248-49. Because current traffic volumes would simply be redistributed onto the new narrow roadways from the existing neighboring roadways, long-term air emissions and noise levels are not expected to substantially increase from current levels. AR 005248. Caltrans identified gentrification as a potential concern, but identified steps that would be taken to help avoid gentrification, such as including affordable housing in future development.¹⁸ AR 005247. Caltrans found all businesses, including minority-owned businesses, would benefit from the increased access and parking provided by the project. AR 005248. With respect to day users, the proposed project would reestablish and repair features of the Mall that currently draw visitors, including benches, fountains, and artwork currently found along the Mall. AR 005249. Caltrans found the addition of twenty-foot sidewalks would provide a park-like setting for those who wish to linger, and additional parking spots could encourage more people to visit the area. Id. For these reasons, Caltrans concluded the project would have no significant community impacts.

18 Plaintiffs do not specifically challenge Caltrans' consideration of gentrification, and it appears to have only been raised as a potential concern in one of the comments to the Draft EA and Section 4(f) Analysis, see AR 005566 ("I hope best efforts are made to minimize 'gentrification' + displacement of current businesses + homeless. However, the current state of the mall is not working . . . . A relatively small change to one street in our city will help to bolster the well-being of every resident + will improve the City's brand + identity. Open the mall ?."). Accordingly, the court's analysis focuses on plaintiffs' argument that the project may significantly impact low-income, minority day users' enjoyment of an urban park.

b) Impacts to Traffic, Pollution, and Infrastructure

The Final EA relied on various studies relating to traffic, pollution, and infrastructure. With respect to traffic, the Final EA relied on the findings of the 2013 Transportation Impact Report, AR 003489-751. The report analyzed eighteen study intersections and sixteen roadway segments in the Mall area. See AR 005249-50. Future traffic conditions were evaluated based on the assumption that land use plans currently anticipated by the City, such as the FCSP, will be implemented. See AR 005255. Because the Fulton Mall Reconstruction Project does not propose any new buildings or new residential or commercial development, Caltrans concluded the project is not expected to affect traffic volumes, but is instead expected to accommodate and redistribute existing traffic by providing access to existing and anticipated businesses along the Mall. AR 005255; see AR 003521. In addition, Caltrans found the nominal increase in average daily traffic with Alternative 1 would not significantly impact emissions. AR 005255. Construction of the High-Speed Rail station and the Bus Rapid Transit station, anticipated in relatively near future, would reduce the use of automobiles in the project study area, and development in urban centers has been shown to reduce the need for vehicle travel. Id.

Because the alternatives would create narrow, two-way vehicular streets, Caltrans found these new roadways would primarily carry local trips to access adjacent businesses and would not affect traffic volumes outside the project area. AR 005255-56; see AR 003521-22. To evaluate the shift in traffic patterns, a locally validated version of the 2010 Fresno Council of Governments Travel Demand Forecasting (COG TDF) model was used to estimate the re-distribution of traffic in the study area. AR 005256. The COG TDF model confirmed opening Fulton Mall to vehicular traffic would not affect traffic volumes outside the study area, and would result in minor changes to local traffic patterns. AR 003522, 005256.

With respect to air quality and greenhouse gas, the Final EA relied on the findings of the 2013 Air Quality Analysis Report, AR 003835-996. Caltrans found the proposed project meets regional conformity, and the Environmental Protection Agency concurred that the project is not a Project of Air Quality Concern on August 5, 2013. AR 005220; see also AR 005507 ("FHWA concurs that this is not a project of air quality concern."). According to the Air Quality Analysis Report, the project would not generate significant quantities of criteria air pollutants or ozone precursors, contains no meaningful potential for mobile source air toxics effects, and would not generate localized CO impacts from project operation. AR 003854-67; see AR 005220. The Air Quality Analysis Report also concluded the project would not generate an increase in operational emissions of greenhouse gases and would not conflict with any applicable plan, policy or regulation of an agency adopted for the purpose of reducing the emissions of greenhouse gases. AR 003850-51; see AR 005221.

As to public infrastructure, Caltrans found the project would not directly affect existing or planned land uses in the project study area. AR 005229. Caltrans found the project would result in an increase in the economic productivity of the Mall, but this indirect growth would result in a beneficial impact on the future land uses within the project study area. Id.; see also AR 005242-43, 005248. As discussed above, the Final EA's analysis of the impacts to the local economy provided: "Alternatives 1 and 2 have the potential to influence business growth through the reoccupation of existing vacant buildings as vehicle access and parking become available, which on a regional (city) level could result in a substantial benefit to the economy by providing a catalyst for additional development in the downtown area." AR 005242. In addition, Caltrans found the cumulative impacts from growth were not substantial. AR 005327-28. The City separately approved projects to replace storm drains, water lines, and sewer facilities concurrently with the Fulton Mall Reconstruction Project. AR 005225, 005619.

C. Section 4(f) Evaluation

1. Impacts to Section 4(f) Properties

Caltrans published its Final Section 4(f) Evaluation together with its Final EA in May 2014. AR 005353-504. Caltrans determined there are fourteen Section 4(f) properties within the architectural Area of Potential Effects: the Fulton Mall Historic Landscape, the Fulton Street/Fulton Mall Historic District, and twelve historic buildings. AR 005368-75. The Fulton Mall Historic Landscape was found eligible for listing on the National Register of Historic Places ("NRHP") for its importance as an urban park¹⁹ and for its landscape architecture, with a period of significance of 1964. AR 005296. The Fulton Mall Historic District was identified as a commercial corridor along six blocks of the Fulton Mall. AR 005297. This District was found eligible for listing for its association with early-to mid-20th century commercial development in Downtown Fresno from 1914 to 1970. Id. The twelve historic buildings were listed or found eligible for listing for their architectural features, with various periods of significance. See AR 005295-301. Caltrans did not separately evaluate the Mall as a public park under Section 4(f), because the Mall is not publicly owned, is not intended by the City to function as a park, and does not meet the Section 4(f) definition of a park. See AR 005368; see also AR 001988-89;²⁰ cf. AR 005239 ("No parks sit within the project study area.").

19 The Final EA notes that despite this finding, the Mall "is not legally designated as a park or intended by the City of Fresno for that use." AR 005296.

20 Certain documents in the administrative record appear to be assigned duplicate page numbers. As cited throughout this order, AR 001988-89 refers to the statement "The City Has Not Designated the Fulton Mall as a City Park" in Volume 7 of the record.

Caltrans considered the same ten Build Alternatives and one No-Build Alternative for its Section 4(f) Evaluation as it considered for its NEPA EA. Caltrans determined several of the proposed project alternatives would result in the use of two of the Section 4(f) properties: the Fulton Mall Historic Landscape and Fulton Street/Fulton Mall Historic District. See AR 005368-75, 005385. Caltrans determined none of the alternatives would use the twelve individual historic buildings, because the alternatives would implement measures to avoid impacts to the buildings during construction. AR 005385.

2. Avoidance Alternatives

Because several of the alternatives require the use of Section 4(f) properties, Caltrans considered whether any feasible and prudent avoidance alternatives exist under 49 U.S.C. § 303(c)(1). Caltrans withdrew Alternatives 9 and 10 from consideration because they do not comply with City design standards, and therefore are not "feasible" as defined by 23 C.F.R. § 774.17. AR 005408-09; see 23 C.F.R. § 774.17 ("(2) An alternative is not feasible if it cannot be built as a matter of sound engineering judgment."). Caltrans concluded Alternatives 3 and 4 and the No-Build Alternative would avoid use of the Section 4(f) historic sites but are "imprudent" under criterion (i) of § 774.17 ²¹—"[the alternative] compromise[] the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need." See AR 005403-10. Specifically, Caltrans found these alternatives would not increase the mobility and accessibility in the project study area, would not increase the visibility of business storefronts to drivers, would not reopen the downtown street grid in coordination with proposed local planning documents, and would not be eligible for TIGER grant funding or other currently available funding sources. AR 005406-08. As a result, Caltrans concluded there are no feasible and prudent alternatives to using the Section 4(f) properties under 49 U.S.C. § 303(c)(1).

21 The full text of § 774.17 is provided supra, in Section III.B.

3. Least Overall Harm and Mitigation Measures

Caltrans next considered the factors listed under 23 C.F.R. § 774.3(c)(1) ²² and determined Alternative 1 would cause the least overall harm to the Section 4(f) properties. AR 005439. Although Caltrans found Alternative 5 would best minimize the impacts to the Section 4(f) properties, Caltrans rejected that alternative because it fails to meet the purpose and need of the project, as described below. Id. Caltrans concluded Alternative 1 best meets the purpose and need of the project and causes slightly less harm than Alternative 2 after mitigation. Id.

22 The full text of § 774.3(c)(1) also is provided supra, in Section III.B.

a) Purpose and Need

Caltrans found Alternative 1 would provide the best mobility and access in the study area, because it would create significantly more parking than any other alternative and has a straight curb line. AR 005431-33. Alternative 1 would also best increase visibility to businesses, traffic circulation, and economic development. AR 005433-36. Improvements in these areas would be limited under Alternatives 5 through 8, because they retain pedestrian-only access for portions of the Mall. AR 005436. For example, it is estimated Alternative 5 would increase gross sales revenues by only 21%, in comparison to the 47% increase estimated under Alternative 1. Id. Caltrans found that this factor alone would compromise Alternatives 5 through 8 to a point where it would be unreasonable to expect the City to proceed with the project. Id. Finally, Caltrans found Alternative 1 would be equivalent or slightly superior to Alternative 2 and superior to other alternatives in consistency with local land use plans. AR 005437-38.

b) Harm to Section 4(f) Properties

Every alternative would result in the destruction of the Mall as an historic property by the change in historic use from pedestrian to mixed modes of transportation. AR 005424, 005427. Although Alternative 2 would retain a slightly greater number of historic features in their present locations, Alternative 1's incorporation of the wide promenade and straight street would be more consistent with Eckbo's original design intent and the Mall's historic function.²³ AR 005425, 005427-28. Alternative 1's promenade would allow for prominent display for artwork and other character-defining features of the current Mall, as well as a wide area with benches and areas for groups to congregate. AR 005425-27. Alternative 1 also retains a greater percentage of the original stained concrete with river rock aggregate and results in fifty-seven more trees than Alternative 2. AR 005427.

23 Specifically, the evaluation reasoned that Alternative 2's design would create a somewhat disconnected pattern not consistent with earlier period of significance for the Historic District, and that Alternative 2's curving road would make placement of vendor booths and exhibits more difficult, thereby making it more difficult to continue the Mall's historic function of hosting special events. See AR 005425, 005427-28.

For these reasons, Caltrans concluded Alternative 1 causes the least overall harm under 23 C.F.R. § 774.3(c)(1).

c) Mitigation Measures

To comply with 23 C.F.R. § 774.3(c)(2), Caltrans developed a number of measures for Alternative 1 to minimize harm to the Section 4(f) properties. For example, Caltrans determined it would be preferable to offset the center of the street and provide a wider promenade on one side of the street to preserve the greatest number of original landscape features and maintain the urban park atmosphere of the Mall. AR 005411. In addition, through the Section 106 consultation process, Caltrans executed a Memorandum of Agreement with the State Historic Preservation Officer and the Advisory Council on Historic Preservation in May 2014 regarding measures to mitigate harm to historic resources. See AR 005412-16, 005521-33. Caltrans found the agreed upon mitigation measures would resolve the anticipated adverse effects of the project and would satisfy the requirement under 23 C.F.R. § 774.3(c)(2) that the alternative selected include "all possible planning" to minimize harm. AR 005412; see also AR 005522.

In June 2014, after Caltrans completed the NEPA and Section 4(f) processes, FHWA executed a contract committing itself to funding the proposed project. AR 000273-83.

V. LEGAL STANDARD

A. Summary Judgment Under the APA

A court must grant summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure when the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). After giving notice and a reasonable time to respond, the court may also grant summary judgment to a nonmoving party under Rule 56(f)(1). Fed. R. Civ. P. 56(f)(1); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982).

A court considering a challenge to agency action under the APA "sits as an appellate tribunal," Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and the "complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion[s] to be drawn about the agency action," Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). Because the APA requires the court to review the whole record or those parts of it cited by a party, the court does not determine whether there are disputed issues of material fact, as it would in a typical summary judgment proceeding. Occidental Eng'g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985); see also S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 723 F. Supp. 2d 1247, 1256 (E.D. Cal. 2010) (stating usual summary judgment standards do not apply). Rather, the reviewing court's function "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g, 753 F.2d at 769; see also Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) ("Because this is a record review case, we may direct that summary judgment be granted to either party based upon our review of the administrative record.").

B. Standard of Review

A reviewing court can only set aside an agency's decision not to prepare an EIS upon a showing that the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Dep't of Transp. v. Pub. Citizen, 541 U.S. at 763; Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 376-77 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976). Likewise, agency action under Section 4(f) is reviewed under the arbitrary and capricious standard. 5 U.S.C. § 706(2)(A); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977); Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1449 (9th Cir. 1984). To determine whether agency action was arbitrary or capricious, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Volpe, 401 U.S. at 416; see also Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 865 (9th Cir. 2004) (quoting Marsh, 490 U.S. at 378).

"Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency." Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015) (quoting Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)); see also Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) ("The arbitrary and capricious standard is 'highly deferential, presuming the agency action to be valid . . . .'" (citation omitted)). Rather, the court will reverse a decision only if

the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.

Cascadia, 801 F.3d at 1110 (quoting Castaneda, 574 F.3d at 656); see Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (applying the standard to agency rule making).

VI. DISCUSSION

A. Environmental Impact Statement Under NEPA

As stated above, an agency must prepare an EIS if a project may significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C); see Babbitt, 241 F.3d at 736. To determine whether the impacts of a proposed project will be "significant," an agency must evaluate the "context" and "intensity" of the environmental effects. 40 C.F.R. § 1508.27. Context relates to the scope of the agency's action, including the locale and interests affected, and intensity relates to the severity of the impact. Id.; Babbitt, 241 F.3d at 731. In evaluating intensity, an agency should consider, inter alia, "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4). The effects of a project on the environment are not "controversial" within the meaning of § 1508.27(b)(4) simply because opposition exists to the project. Found. for N. Am. Wild Sheep v. U.S. Dep't of Agr., 681 F.2d 1172, 1182 (9th Cir. 1982). Rather, the effects are "controversial" when "substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor," Babbitt, 241 F.3d at 736, or when "a substantial dispute exists as to the size, nature, or effect of the major federal action," Wild Sheep, 681 F.2d at 1182 (citation omitted). For example, in Sierra Club v. U.S. Forest Service, 843 F.2d 1190 (9th Cir. 1988), the Forest Service awarded several timber contracts that contained groves of giant sequoia redwoods without preparing an EIS. Id. at 1191-92. The plaintiffs produced evidence from numerous experts who were highly critical of the EAs and disputed the Forest Service's conclusion that there would be no significant effects of logging because the sequoias could be protected and their regeneration enhanced. Id. at 1193-94. The court observed that "[t]his is precisely the type of 'controversial' action for which an EIS must be prepared." Id. at 1193.

In evaluating intensity, an agency should also consider "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks." 40 C.F.R. § 1508.27(b)(5). For example, in Babbitt, the National Park Service began implementing a plan to increase the number of cruise ship visits to Glacier Bay National Park. 241 F.3d at 725. The Park Service issued a finding of no significant impact, even though the EA concluded that the intensity or practical consequences of the environmental effects was "unknown." Id. at 732-35. Although the EA proposed a park research and monitoring program to "understand the effects of vessel traffic on air quality, marine mammals [and] birds," id. at 733 (alteration in Babbitt), the court found "[t]hat is precisely the information and understanding that is required before a decision that may have a significant adverse impact on the environment is made, and precisely why an EIS must be prepared in this case," id. (emphasis in original). Similarly, in Anderson v. Evans, 371 F.3d 475 (9th Cir. 2002), the federal government approved a quota for whale hunting by Makah Indian Tribe. The Ninth Circuit found the uncertainty of the effects required the preparation of an EIS, because "[n]o one, including the government's retained scientists, ha[d] a firm idea what [would] happen to the local whale population if the Tribe [were] allowed to hunt and kill whales pursuant to the approved quota and Makah Management Plan." Id. at 490. Specifically, it was difficult to predict how the harvesting of resident whales could affect the resident population, because the recruitment mechanism of the resident whales was not known and required further study. Id. at 490-91.

Plaintiffs contend Caltrans violated NEPA because its environmental assessment raised substantial questions as to whether the project may have significant effects on low income, minority communities, or on traffic, air quality, greenhouse gas, and public infrastructure. Pls.' Mot. Summ. J. at 5-10. The court addresses each argument in turn.

1. Community Impacts

Plaintiffs argue the EA's analysis and the studies on which it relies are defective because they limit the project study area to three census blocks within Census Tract 1 and do not adequately consider the impact on low-income, minority day users who enjoy the Mall as an urban park. Pls.' Reply at 5-6.

First, the court finds Caltrans' definition of the project study area was not unreasonable. The Community Impact Assessment provided a rational basis for its definition of the project study area: the boundaries were established based on "land uses within structures adjacent to the malls" and existing circulation, and extend to the boundaries of the core superblock that was envisioned in the late 1950s. AR 004011. Moreover, it is a matter of common sense that residents and businesses in the immediate project area would be most impacted by the air quality, noise, traffic, relocation, and economic effects of a project to reintroduce vehicular traffic to particular streets. See AR 005247-49. There is no evidence of arbitrary line-drawing with the goal of excluding an area that would have undermined the analysis. Furthermore, although the defined project study area only consists of three census blocks, the Final EA considered the demographics of and impacts to day users of the Mall, regardless of where they reside. See AR 005247 (demographics of day users), 005249 (impacts to day users); cf. AR 004059-61 ("Following is a discussion of potential impacts to the residences within the Project Study Area and the Mall 'day' users."). The Final EA considered all of the affected interests—those of residents and businesses in the project study area and day users—and provided a thorough analysis of potential social, economic, and land use impacts on each group.

Second, the court finds Caltrans considered the relevant factors and articulated a rational basis for its conclusion that the project would not significantly impact day users. Although the Final EA did not label the Mall an "urban park," it considered the potential impact to day users' enjoyment of the park-like setting of the Mall. See AR 005249. The Final EA concluded the impact would be minimal, because the project includes measures to preserve the park-like setting of the Mall, and the increased parking and access would benefit day users. See id.; cf. AR 005190 (finding that people tend to prefer to reach their destinations quickly to take care of shopping or business needs, especially if they have young children or are elderly and/or disabled). The court finds this conclusion reasonable given the evidence in the record. After the project is completed, features of the Mall that currently draw visitors will be reestablished, including access to benches, fountains, and artwork currently found along the Mall. AR 005249. All of the sculptures and benches and most of the fountains will be relocated, refurbished, and/or restored, and Alternative 1 will retain the total number of trees at approximately 154. See AR 005198. In addition, the twenty-eight-foot-wide promenade will provide a park-like setting where pedestrians can walk, sit, and gather. See AR 005249.

In contrast to Sierra Club, 843 F.2d at 1192-93, plaintiffs have not produced affidavits from experts identifying the EA's inadequacies or evidence casting doubt on the reasonableness of Caltrans' conclusion that the project would not significantly impact day users. Cf. Babbitt, 241 F.3d at 736 ("A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI, casts serious doubt upon the reasonableness of an agency's conclusions." (internal citations omitted)). And unlike in Babbitt or Anderson, plaintiffs have not shown that the effects of the project on the community are highly uncertain or involve unknown risks requiring further study. See Babbitt, 241 F.3d at 732-35; Anderson, 371 F.3d at 490-91. Plaintiffs' mere characterization of the project as "demolishing" an "urban park" does not suffice to raise "serious questions" as to whether the project may cause significant degradation of some human environmental factor. See Babbitt, 241 F.3d at 736. Because Caltrans considered the relevant factors and did not make a clear error of judgment in light of the record before it, the court finds Caltrans' decision was not arbitrary or capricious. See Volpe, 401 U.S. at 416.

2. Impacts to Traffic, Pollution, and Public Infrastructure

Plaintiffs argue there are substantial questions as to whether the project will significantly impact traffic, air quality, greenhouse gas effects, and public infrastructure, "[a]ssuming the Project is intended to maximize growth and development in the City's urban core." Pls.' Mot. Summ. J. at 8; see also Pls.' Reply at 7. For purposes of environmental assessment under NEPA, "effects" include both "direct effects" and "indirect effects." 40 C.F.R. § 1508.8. "Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." Id. § 1508.8(b). Defendants respond that the purpose of the project is not to maximize growth, and that any "growth" anticipated from the project is economic, not physical. City's Mot. Summ. J. at 13; Caltrans' Mot. Summ. J. at 8. Moreover, defendants contend Caltrans' conclusions are supported by various studies prepared for the project. See, e.g., City's Mot. Summ. J. at 13-14.

The court finds plaintiffs have not raised substantial questions as to whether the growth resulting from the project will cause significant environmental impacts. The court recognizes the apparent tension in Caltrans' position that the project will significantly increase retail sales and lead to the repopulation of vacant commercial spaces, yet will not increase the volume of traffic or otherwise lead to significant growth-inducing environmental effects. See, e.g., AR 005436 (Alternative 1 would increase gross sales revenues by $47 million (47%)). However, because Caltrans considered the relevant factors, noted that transit will serve the redeveloped mall and offset vehicle traffic, and provided support for its finding of no significant impact, the court finds plaintiffs have not met their burden of showing that Caltrans' actions were arbitrary or capricious. The court notes that the stated purpose of the project is to increase access and visibility in the area and to increase the area's consistency with proposed land use plans, rather than to maximize growth in the downtown area. See AR 005189-90. Moreover, Caltrans articulated a rational explanation for its conclusions that the project will not significantly increase traffic volumes and will not affect traffic beyond the immediate area: the project does not propose any traffic-generating land uses, such as new buildings or residential development, and will create narrow, two-way vehicular streets that primarily carry local trips to businesses adjacent to the Mall. See AR 005255 (concluding the project would primarily shift local traffic patterns from existing streets to the reintroduced roadways adjacent to the Mall); see also AR 003521. Finally, Caltrans supported its finding of no significant impact with evidence from various studies. For example, the Transportation Impact Report upon which Caltrans relied utilized a COG TDF model to confirm the project would not significantly affect traffic volumes, AR 005256, and accounted for existing and future land uses in its analysis, see, e.g., AR 005255 (evaluating future traffic conditions based on the assumption that land use plans currently anticipated by the City, such as the FCSP, will occur). In light of the support in the record, the court does not find Caltrans' conclusion unreasonable on its face.

In making this determination, the court has reviewed precedent for guidance. While there is a dearth of cases directly analogous, one Ninth Circuit decision the court has considered is Barnes v. U.S. Department of Transportation, 655 F.3d 1124 (9th Cir. 2011). While Barnes addresses the particular circumstances posed by airport development projects, in that case the Circuit held the EA failed to take a "hard look" at whether a new runway would have growth-inducing effects on aviation activity. Id. at 1136-39. In Barnes, the agencies did not conduct a demand forecast based on three, rather than two runways, and could not point to any documents in the record that actually discussed the impact of a third runway on aviation demand. Id. at 1136, 1138. In addition, the Federal Aviation Administration had described a new runway as "the most effective capacity-enhancing feature an airfield can provide," and other courts had noted the unique potential of a new runway to spur demand. Id. at 1138. Here, in contrast, the EA considered the potential traffic-generating effects of the project and accounted for expected future land uses in its modeling. In addition, there is no evidence suggesting the addition of a narrow two-lane street in the downtown area here would necessarily have the same kind of growth-generating effects as, for example, the addition of a runway at an airport that has only two runways.

With respect to air quality, the proposed project meets regional conformity, and the Environmental Protection Agency concurred that the project is not a Project of Air Quality Concern. See AR 005220. As to infrastructure, the City has approved projects to replace storm drains, water lines, and sewer facilities concurrently with the project. See AR 005225, 005619. Throughout the Final EA, Caltrans properly considered the relevant factors and the potential impacts of indirect growth on the environment. Again, plaintiffs have not identified any evidence casting doubt on the reasonableness of Caltrans' finding of no significant impact.

3. Conclusion

In making its finding of no significant impact, Caltrans considered the relevant factors and articulated a rational basis, supported by evidence, for its conclusion. As stated above, the Supreme Court has made clear that "NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson, 490 U.S. at 350. Because Caltrans took a "hard look" at the potential environmental impacts of the project and has not made a clear error of judgment, the court concludes Caltrans' actions under NEPA were not arbitrary or capricious.

B. Section 4(f) Evaluation

Plaintiffs argue Caltrans violated Section 4(f) for three reasons: it did not analyze Fulton Mall as a "public park"; it unreasonably rejected Alternatives 3 and 4 and a proposed alley alternative in its avoidance alternative analysis; and it unreasonably rejected Alternatives 5 through 8 in its least overall harm analysis. Pls.' Mot. Summ. J. at 10-18. The court addresses each argument in turn.

1. Whether Fulton Mall is a "Public Park"

Section 4(f) only applies to the use of public parks, recreation areas, wildlife and waterfowl refuges, and historic sites. 49 U.S.C. § 303(a). The parties agree that the Mall and Fulton Mall Historic District are "historic sites" under Section 4(f) but dispute whether Caltrans was also required to analyze the use of the Mall as a "public park." The parties specifically dispute whether the primary purpose of the Fulton Mall is to provide an urban park setting or to provide a pleasant retail environment to attract shoppers traveling through the Mall. Compare City's Mot. Summ. J. at 18-20, with Pls.' Reply at 9. The parties also dispute the significance of the facts that the land making up the Mall is owned in fee simple by the owners of the buildings adjacent to the Mall, and that the City holds only a right-of-way easement across the length of the Mall. Compare City's Mot. Summ. J. at 15, with Pls.' Reply at 12.

Although the statute does not provide a definition for "public parks," the FHWA's Section 4(f) Policy Paper provides that publicly owned land is a park "when the land has been officially designated as such by a Federal, State or local agency, and the officials with jurisdiction over the land determine that its primary purpose is as a park." City's Ex. A, at 23, ECF No. 40-2.²⁴ "Primary purpose is related to a property's primary function and how it is intended to be managed. Incidental, secondary, occasional or dispersed activities similar to park . . . activities do not constitute a primary purpose within the context of Section 4(f)." Id. An easement interest in privately-owned land may be adequate for Section 4(f) to apply, especially when the easement is a conservation or historic preservation easement. See id. at 24. FHWA's Section 4(f) Policy Paper directs courts to consider the views of the official(s) with jurisdiction, purpose of the easement, term of the easement, degree of public access to the property, how the property is to be managed and by whom, what parties obtained the easement, termination clauses, and what restrictions the easement places on the property owner's use of the easement area. Id.

24 Plaintiffs and the City each request judicial notice of excerpts of FHWA's Section 4(f) Policy Paper at FHWA's website: www.environment.fhwa.dot.gov/4f/4fpolicy.asp#ppra. See ECF No. 36; ECF No. 40-2. A court may take judicial notice of government agency records and reports. See Interstate Nat'l Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953); see also U.S. ex rel. Modglin v. DJO Global Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014). Because the existence of the Policy Paper "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," the court takes judicial notice of the excerpts provided under Federal Rule of Evidence 201(b)(2). --------

Plaintiffs have not met their burden of establishing that Caltrans violated Section 4(f) by not analyzing the Mall as a "public park." First, plaintiffs have not shown the primary purpose of the land is as a park. The City Council's ordinance approving creation of the Fulton Mall in 1964 referred to it as a "pedestrian mall," and established the Mall under the California Pedestrian Mall Law of 1960, Cal. Sts. & High. Code §§ 11000 et seq. AR 000344-48. Section 11006 of the Pedestrian Mall Law defines "pedestrian mall" as "one or more 'city streets,' or portions thereof, on which vehicular traffic is or is to be restricted in whole or in part and which is or is to be used exclusively or primarily for pedestrian travel." Cal. Sts. & High. Code § 11006. The historical context of the Mall suggests its purpose was to "modernize" the downtown shopping district and compete with the newly created suburban malls, rather than to create park space. AR 001840, 001988-89, 004891.

Plaintiffs rely on Stewart Park & Reserve Coalition, Inc. (SPARC) v. Slater, 352 F.3d 545 (2d Cir. 2003), but the property at issue in that case was "heavily used for hunting, fishing, hiking, biking, birdwatching, horseback riding, and numerous other outdoor pursuits" for almost thirty years prior to the proposed project to construct an interchange connecting an interstate highway to an airport. Id. at 550. In this case, the Mall was first established as a pedestrian mall and has not been used for most of the activities at issue in Stewart Park. Plaintiffs' also rely on HonoluluTraffic.com v. Federal Transit Administration, No. 11-00307, 2012 WL 5386595 (D. Haw. Nov. 1, 2012), aff'd, 742 F.3d 1222 (9th Cir. 2014), in their reply brief, but overstate the holding of that case. See Pls.' Reply at 10. In HonoluluTraffic.com, the district court evaluated an urban park that was "primarily used by pedestrians walking through the area" as both a public park and as an historic site under Section 4(f). Id. at *10. However, the issue adjudicated in that case was whether the proposed fixed guideway transit project constructively "used" the park within the meaning of Section 4(f), rather than whether the land constituted a "public park." Id. It is not clear from the opinion whether the parties disputed the characterization of the land as a public park, and the opinion does not provide many factual details relating to its eligibility as a park. See id. Accordingly, it is difficult to determine exactly why the urban park in that case was found eligible as a public park under Section 4(f).

Second, the record does not contain a copy of the easement or any evidence showing the easement's purpose was to allow use of the land as a park. The limited evidence available suggests the adjacent businesses that own the land in fee simple granted the City a right-of-way easement to allow travel across the land. See AR 005185, 013960.

Finally, plaintiffs have not provided evidence that the City of Fresno designated the Mall as a "park." Neither the 2025 General Plan nor the Central Area Community Plan refers to the Mall as a "park," and the Fresno Municipal Code regulates the Mall as a type of street, rather than as a park. AR 001988. Although the City maintains the Mall landscape through the Department of Parks, Public Utilities, and Public Works, see AR 005222, the management of that department is not limited to parks, and other City departments also help operate the Mall, such as Community Sanitation and Facilities. See AR 001988. Individuals seeking to conduct special events on the Mall must obtain an encroachment permit from the City's Public Works Department, not a Special Activity Permit issued for special events conducted in city parks. See id. Although plaintiffs note that the Keeper of the National Register of Historic Places found the Mall to be "an important urban park," AR 010026-30, the Keeper's determination is only legally relevant as to whether the Mall is an historic resource, see 23 C.F.R. § 774.17 (defining "historic site" as "includ[ing] any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register").

Because plaintiffs have not established the City designated the land as a park, or the primary purpose of the Mall is as a park, plaintiffs have not shown Caltrans' decision was arbitrary or capricious.

2. Avoidance Alternatives

Plaintiffs argue that Caltrans' rejection of Alternatives 3 and 4 was unreasonable, because these alternatives meet the project's purpose of increasing mobility, accessibility, and visibility without using the Section 4(f) historic sites. Specifically, plaintiffs assert Alternatives 3 and 4 would increase mobility and accessibility in the Mall by improving the condition of the Mall and adding an electric tram, and would improve visibility of the Mall through additional lighting and signage. Pls.' Mot. Summ. J. at 14.

The court does not find Caltrans' rejection of Alternatives 3 and 4 was arbitrary or capricious. The Ninth Circuit has held that "[a]lternatives that do not accomplish the purposes of the project may properly be rejected as imprudent." Ariz. Past & Future Found., Inc. v. Lewis, 722 F.2d 1423, 1428 (9th Cir. 1983); Alaska Ctr. for Env't v. Armbrister, 131 F.3d 1285, 1288 (9th Cir. 1997). Here, the stated purpose of the proposed project is to increase mobility and access in the Fulton Mall study area by providing more convenient multi-modal access options on the Mall and its cross streets; to improve visibility of businesses and other amenities by improving traffic circulation, thereby encouraging additional economic development in the area; and to increase the Fulton Mall study area's consistency with the requirements and goals of proposed land use plans. AR 005189-90, 005360. The Section 4(f) Evaluation correctly evaluated the alternatives under the criteria listed in 23 C.F.R. § 774.17 and provided specific reasons why Alternatives 3 and 4 would compromise the project to a degree making it unreasonable to proceed with the project in light of its stated purpose and need. AR 005406-07; see 23 C.F.R. § 774.17 (criterion (i)). Although one of the reasons provided was that Alternatives 3 and 4 would not be eligible for TIGER grant funding, AR 005406-07, the evaluation provided a number of additional reasons why these alternatives are imprudent. Id. For example, because these alternatives would not reintroduce any vehicular traffic to the Mall, the evaluation found they would not increase the visibility of business storefronts to drivers, improve multi-modal access to businesses, or add any on-street parking. See AR 005405-06. In addition, the evaluation found these options have the least potential for reversing urban decay. See id. Whereas reconnection of the street grid, as in Alternatives 1 and 2, would improve annual retail sales by $47 million, and reconnecting portions of the street grid, as in Alternatives 5 through 8, would improve annual sales by $27 million, Alternatives 3 and 4 would only improve retail sales by $6.1 million. AR 005406. Accordingly, this case is distinguishable from Coalition for Responsible Regional Development v. Brinegar, 518 F.2d 522, 526 (4th Cir. 1975), in which the Fourth Circuit held a project site could not be rejected as an avoidance alternative solely due to the inability to use certain funding sources to finance the option. Id. at 526; see also Defs. of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374, 400 (4th Cir. 2014) ("[A] state may not use 'self-imposed restrictions' on financing mechanisms to render an alternative imprudent." (quoting Brinegar, 518 F.2d at 526)). There is ample support in the record for the conclusions that Alternatives 3 and 4 would not accomplish the stated purpose and need of the project, independent of the availability of TIGER funds, and plaintiffs have not provided evidence that this determination was arbitrary or capricious.

Plaintiffs next contend the stated purpose and need of the project is "unreasonably narrow" and was inappropriately developed and adopted from the TIGER grant application in order to foreclose consideration of alternatives. Pls.' Mot. Summ. J. at 15-16; Pls.' Reply at 13-14. Agencies enjoy "considerable discretion" to define the purpose and need of a project. Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998). However, "an agency cannot define its objectives in unreasonably narrow terms." City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). "An agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency's power would accomplish the goals of the agency's action, and the EIS would become a foreordained formality." Friends, 153 F.3d at 1066 (citation omitted) (evaluating agency action under NEPA). For example, in Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002), the Tenth Circuit found it would be too narrow to express the purpose and need of a project as providing a river crossing across the Jordan River at the 11400 South corridor in Utah, when the general overarching objective of the project was to improve traffic flow in the area. Id. at 1119. The court found alternatives of providing a river crossing at different intersections would potentially accomplish the overarching objective of the project. Id.

Here, the stated purpose and need was not unreasonably narrow or contrived to avoid consideration of alternatives under Section 4(f). The record provides support for Caltrans' identification of the need to improve access and visibility in the Mall to reverse urban decay. Moreover, the City and Caltrans considered public input in developing the alternatives. See AR 005207. Contrary to plaintiffs' contention, Caltrans did not draw on the terms of the TIGER grant to preordain the selection of Alternative 1. Although the City applied for the TIGER grant in June 2013 and received it in August 2013, Caltrans continued to consider ten Build Alternatives and one No-Build Alternative throughout the NEPA and Section 4(f) processes, which concluded in May 2014. The FHWA did not commit itself to funding the project until June 2014, after the NEPA and Section 4(f) processes were completed. See AR 000273-83. The Section 4(f) Evaluation provided an especially rigorous comparison of both Alternative 1 and Alternative 2, signalling an openness to either.

Finally, plaintiffs argue that Caltrans violated Section 4(f) by failing to consider an alternative that would convert the alleys adjoining the Mall into an alternative route for vehicular traffic, rather than reintroducing vehicular traffic to Fulton Street. See Pls.' Mot. Summ. J. at 16-17. The Ninth Circuit has held that "the existence of an unexamined but viable alternative to the adopted plan can . . . provide a basis for overturning" the decision that a Section 4(f) property be used, if the alternative was "reasonable." Coal. for Canyon Pres. v. Bowers, 632 F.2d 774, 784-85 (9th Cir. 1980) (concluding agency should have considered alternative of widening an existing two-lane road, because it was a "reasonable and obvious" alternative to building a new four-lane road). Here, however, plaintiffs have not presented evidence that the alley alternative was a viable or "reasonable" alternative. When DFC members raised the idea at a Section 106 consultation meeting on April 29, 2014, representatives of the City identified a significant concern, that the buildings along the Mall would need to be reconstructed to face the alleys. See AR 003329. When a DFC member inquired about the alley alternative at the subsequent meeting on May 6, 2014, a representative responded that the alternative was considered but was not economically feasible. AR 003344. The record does not provide more detail or evidence that the idea was brought up again. The court finds that reference to this limited discussion of the alley alternative, absent evidence of its viability, is not sufficient to demonstrate the idea was a "reasonable" alternative that Caltrans was required to consider under Section 4(f). See Bowers, 632 F.2d at 785.

For the foregoing reasons, plaintiffs have not shown Caltrans' rejection of Alternatives 3 or 4 or the alley alternative was arbitrary or capricious.

3. Least Overall Harm and Mitigation Measures

Plaintiffs argue that even if there were no "feasible and prudent" avoidance alternatives, Caltrans unreasonably rejected Alternatives 5 through 8 in its least harm analysis. Pls.' Mot. Summ. J. at 17-18. As with the avoidance alternatives analysis, plaintiffs argue the stated purpose and need is overly narrow and Caltrans' decision was inappropriately influenced by the TIGER grant application. For the reasons discussed above, the court rejects these arguments. Caltrans provided a detailed, rational explanation supporting its conclusion that Alternative 1 best meets the project's legitimate purpose and need. See AR 005433-38.

Plaintiffs also argue in their reply brief that Caltrans' finding that the relative harm for Alternative 1 is less than Alternative 8 and nearly the same as Alternative 7 is unreasonable. See Pls.' Reply at 16. The court finds to the contrary, that Caltrans' evaluation properly balanced the factors listed under 23 C.F.R. § 774.3(c)(1), supra, and provided a detailed explanation of why Alternative 1 causes the least overall harm. Although Alternatives 7 and 8 would retain a portion of the pedestrian mall, Caltrans found they would create a somewhat disconnected pattern—a street with multiple dead ends intertwined with a pedestrian mall—that is not consistent with the Fulton Mall Historic District's period of significance, which included a downtown business district with local through-street. AR 005426. Because the majority of the District's period of significance, 1914 through 1970, see AR 005297, predates the existence of the pedestrian mall, Caltrans found the transition to a city street would more closely resemble the original District. AR 005426. Caltrans found Alternatives 1, 7, and 8 would each allow for the continuation of special events. Id. Caltrans found each of the alternatives would be equally destructive to the Fulton Mall Historic Landscape, because they would each result in that Landscape's inability to be considered an historic property eligible for inclusion in the NRHP. AR 005425. Alternative 7 would cause less harm to protected historic features than Alternative 8 because it would retain three of the six blocks of the Mall as pedestrian-only, instead of two blocks under Alternative 8, and would retain five statues in their existing location, instead of three statutes under Alternative 8. See AR 005445. Caltrans found none of the alternatives would negatively impact the twelve individual historic buildings. AR 005249. Based on this analysis, it was not unreasonable for Caltrans to find the relative harm to historic properties for Alternative 1 is less than Alternative 8 and nearly the same as Alternative 7.

For the foregoing reasons, plaintiffs have not shown Caltrans' conclusion that Alternative 1 would cause the least overall harm was arbitrary or capricious.

VII. CONCLUSION

The court concludes Caltrans' actions and determinations with respect to NEPA and Section 4(f) were not arbitrary or capricious. Accordingly, the court makes the following orders:

(1) The court DENIES plaintiffs' motion for summary judgment and GRANTS defendants' motions for summary judgment as to the three APA claims.

(2) The court DENIES AS MOOT plaintiffs' motion for a preliminary injunction pending the court's ruling on the cross-motions for summary judgment.

(3) The parties are ordered to meet and confer and file a joint statement no later than February 12, 2016 regarding how to proceed with the remaining claim under California Government Code section 11135, for which the STAY currently in effect is LIFTED.

IT IS SO ORDERED. DATED: January 12, 2016.

/s/_________

UNITED STATES DISTRICT JUDGE