Miss Youngman? May it please the court. I'm Julie Youngman from the Southern Environmental Law Center, and I represent defenders of wildlife and the National Wildlife Refuge Association. We're here on Denovov review from a case before the Eastern District of North Carolina. The fate in the future of P. Island National Wildlife Refuge is at the heart of this case, and because Section 4F of the Department of Transportation Act of 1966 imposes such stringent and mandatory protections for wildlife refuges, and because the defendant agencies in this case have so clearly violated some of those requirements, I'm going to start my argument there. In this case, the North Carolina Department of Transportation and the Federal Highway Association are proposing to build only one small part of a 15-mile highway project. And that's a bridge into a National Wildlife Refuge that's located on any roading, fragile, thin ribbon of island in North Carolina's outer banks. As I think this court described a similar project in the Maryland Conservation Council case, and Justice Black described in his descent in the San Antonio case, the bridge is standing like a gun barrel pointing into the refuge. In this case, Do you take issue with the bridge itself as the best alternative in this regard, or are you taking issue with the rest of the plan in terms of the other phases of the project? Most of the other phases of the project. So we, I think all the parties in the case, recognize that Bonner Bridge is near the end of its service life and needs to be replaced. But the way that the parties, the defendant agencies have gone about selecting an alternative violates federal law, and that's the NEPA National Environmental Policy Act, but especially for F. In this case, it's a very un... I'm sorry. And your contention is essentially that the Pamela Co. sound alternative is the better alternative? We're, again, not here advocating any particular outcome in the case. We do have a strong inkling that if the laws were followed, that the Pamela Co. sound bridge alternative would not have been ruled out as not prudent. Do you know the whole merger, a team agreed to the contrary in 2007? So that is not actually what happened, Your Honor, and in 2003, the entire merger team of all the agencies that will have to issue state or federal permits agreed actually to the Pamela Co. sound bridge alternative as the sole alternative to be brought forward. But that was earlier. Right. And Governor... They revisited it. They revisited it, and in 2007, could not come to an agreement. And in fact, let me find my... And it's in the joint appendix. I think I thought they all agreed, but that's... No, no, no. When they could not agree in quite a few of the resource agencies, didn't agree to it
. The merger team resolution board consisting of just four agencies picked a different alternative. And Governor Easley's secretary of transportation actually explained the decision at the last point in which all the merger team agencies agreed. He said the parallel bridge options are no longer viable due to recent trends in shoreline erosion, ocean overwashing, and conditions like that. So our main concern... Oh, yes. The bridge. So, one if they had selected phase one as it is with this bridge, and in one of those alternatives from 2005 and 2007, would it have had those supplemental graphs? Would that have been okay? If they... excuse me, if they had picked the bridge in the location where the current bonner bridge is, and then one of the alternatives that had been studied... That they had fully studied. They would have come a whole lot closer to... They would have probably... that would have satisfied NEPA. I think it still would not have satisfied section 4F, and that's why I want to start with that. In this case, the main problem is that they... Okay. I know for F, for F is limited in terms of where it reaches with the Department of Transportation, but as I understand it, so this is dealing with the NEPA requirements. And so if it had had 2005 or 2007, one of those would have been fine. Is the problem that you can't tell as to whether it's going to stay within that easement? Right. NEPA requires a record of decision to actually announce a decision. I think this is the only time in my career that I have seen a record of decision announce. An intention to at some point... At some later point, make a decision about what the project is going to look like
. And your point is not that it can't be done, is that they didn't tell you what it is. It's left it open. So what keeps us from saying, okay, put the bridge up, but we don't approve that aspect of the second part of it, because you haven't articulated anything, and that's still subject to an EA. And that gets at the heart of what's why segmentation is a problem and illegal. If you have a project that you have for the life of the project as a transportation agency defined as going all the way from the end of Body Island to Rodanthi, pass the refuge. And you've said over and over again that the bridge by itself will not satisfy the purpose and need of the project. It will not be able to stand alone. It will necessarily require later projects to be built to keep an access road open to it, because a bridge without any ability of traffic to get to it is a useless bridge, and it's a bridge to nowhere, and it doesn't serve the people that it's designed to serve. You're defeating the dual purpose of NEPA. Should the later analysis only be reflected with respect to the other phases of the project? In other words, you've agreed upon the bridge, but then you just need a further analysis on the... No, you're on air. NEPA requires a decision on an entire project. The Federal Highway Administration has its own regulations that say you can't do a partial project. Are we starting over? Are you asking us to start over? They need to pick... The transportation agencies to comply with federal law need to pick an alternative that satisfies the entire purpose and need. Because the people of Deer County and North Carolina are counting on this bridge to provide reliable access for the life of the project, they need to not hide the ball and not hide the true costs and impacts and downsides of the full alternative. They need to pick something that satisfies the entire length of the project. So basically you're saying we can't just say the bridge is okay, because if you say that would be segmented, because the others. But could we say the bridge is okay, subject to the court making a determination as to one of these alternatives that fits within something's been studied? The court actually dictating which of the alternatives would be... But determining, you know, the parties, maybe the other side, once we make that subject to it, they know it cannot be built until they pick an alternative. In other words, the court perhaps has a remand to evaluate those alternatives and more fully develop the record. Right. I think on remand what needs to happen is the record... Is that an acceptable alternative? I mean, I'll come for this case. If I'm understanding your honor correctly, I think it could be so long as the agencies... I said it earlier that if you'd pick one of the 2005, 2007 alternatives, then you would probably have met at least NEPA
. Right. So it has to be from that perspective, would you not say? Right. So my full answer, Your Honor, was going to be... That probably is okay as long as they're required to comply with section 4F at the same time, because that is still... That's not a procedural. I wanted to kind of... Maybe because I just got to understand this a little simplicity that's merging it too. I wanted to full way have to kind of be different, because that's dealing with the refuge in a whole different light. You've got to prove it's another stuff there. So that's why I wanted to kind of get that aspect of it together. So the record of decision needs to comply both with unremanned must be vacated and then it needs to comply both with the requirements of NEPA and not be a segmented project, but they need to evaluate and consider an entire alternative. And then it has to also comply with 4F. And so if I could spend a few minutes on the requirements of 4F and why that is so important. And Congress... Oh, I'm sorry. I am sorry to belabor this, but I'm a little bit confused now, because I had understood perhaps incorrectly your argument someone did. So in response to the questions from just when it just chose, you seem to be saying that the bridge is okay. We could say that the bridge is okay, but we may end for more thorough consideration of the alternatives. And that's not segmentation. And I'm sorry if I've not being clear. On remand, the agencies will have to comply with NEPA and not commit segmentation. And so they can be directed to pick a short bridge alternative, but they're going to have to consider it in full. And it may well be the case that when they consider the full impacts and full cost of any one of those alternatives they may in fact revert to the Pamlico Sound Alternatives. Or there's been proposals of shorter causeways. Why is this the bridge? I feel that the agency has to be left to comply with NEPA itself. So if you would understand, I guess that we couldn't write an opinion that directs a court or an agency to comply with NEPA. And what I'm trying to understand is how the bridge fits into what you would see as an acceptable remand. I'm not sure that the court has the authority to direct the outcome of a NEPA process
. I answer my question specifically. And drawing from the questions of my colleagues, what would an acceptable remand look like that wouldn't segment but would say that the effective bridge needs to be addressed? I don't think that this court has the authority to direct the outcome of a NEPA process. So I don't believe that the court has the authority to direct them to select an alternative with the parallel bridge. That's not my question. I'm not understanding your question in your honor. I understood the questions directed to you to be that to recognize the practical reality of a structurally deficient bridge. Yes. And that there seems to be general agreement that something needs to be done about and you reference that when you were discussing the residents of their county. So it would go back as I think the questions anticipated to remand it to the district court to say there is a need to accommodate the structural requirements for remitting the defective bridge. And that given taken into consideration in articulating the requirements that flow from that and considering the options that flow from that. But that to me sounds like segment, the segmentation that you would object to. And that's my only question. Yes, your honor. So as I was saying, I think this court can direct the agencies to address the problem of the defective bridge. But I don't believe that this court can tell the agencies which alternative to pick. And I know that you're not saying that. But I was there was nothing in my question. I don't think or that I intended to suggest that. But my question was perhaps we shouldn't spend any more time on it. It would seem to me that you would find that to be segmentation as well. Yes. So just not communicating is clearly and I'm sure it's my fault. No, and I'm not. The answer is that it's not segmentation if one of those alternatives that's been studied is picked. And with we send it back and say subject to the fact because you've not said they've not said which one we're going. And that is going to be okay. But you got to pick one of those study at once. And if you pick one of study one, there's no segmentation. That's right, your honor. As long you can direct the. You can just incorporate Judge Winsy and try to balance the state. Right. Thank you. Okay. As long as they you can certainly direct the court to either the agencies to address the defects of the bridge. But they have to be free to do a neapoprocess that fully and fairly considers alternatives for the entire length of the project
. And it wouldn't. And it also been incorporate their prior study which is to have the phase one parallel bridge if that's already been done. They need to pick an alternative that addresses the entire length of the project and not one small segment of it. And the segmentation problem also bears on 4F. And in enacting 4F Congress recognized that national wildlife refuge are a precious resource of the nation. And this court actually recognized that also in the Audubon Society versus Navy case. And they enacted 4F to prevent harm to refuges from national or from highway construction projects. And you can't an agency cannot build a construction project through a refuge unless two things are true. And these are not procedural. These are absolute substantive requirements. The first. The question of standing to talk about this issue of ownership in the refuge on 4F. What is the standing? Do you have standing to see that? We do. My two clients are two conservation organizations whose members submitted affidavits of the district court that. Show their interest in the aesthetic and environmental and recreational values of the wildlife refuge. And we're found to have standing by the district court. So if I could the first in the couple minutes. This applies to the federal highway administration not to the state. The 4F. Yes, it's primarily requirement of 4F. The project as it's described and presented by the Department of Transportation has to comply with 4F. But the obligation is on the secretary of transportation and the federal government, the secretary of the US transportation to comply with NEPA. And they cannot. Because it's looked like that joint planning exception turns on the issue of easement. I don't see anything in here about state law, North Carolina state law, which. Typically that's not a federal question in terms of real estate. There's no analysis in terms of the easement here. The way that that ties into 4F is that there is an exception to the requirements of 4F. And those are very specifically that you cannot build a road project through a refuge. If you haven't picked the alternative that causes the lease overall harm. And by not picking any method at all, they've left themselves open to pick even the most damaging alternative. And they've also left open the possibility of introducing new ideas like a sea wall or jetties along the refuge or some other way of hardening the shoreline of the refuge that would absolutely be incompatible with the refuge. So they've left themselves open to creating that or implementing the most harmful of the alternatives. And the reason it matters whether this joint planning exception applies is that if they don't have to comply with 4F, they will be able to escape all and avoid all obligated. And if they're able to protect the refuge from harm, the joint planning exception is a matter of federal law. It says that 4F does not apply to protect a wildlife refuge if a road was formally reserved at or same time that the refuge was created
. And the agencies have talked some about vehicles using informal pathways and driving on the beach and driving on private roads. But that's not the same thing as a formal. There's not time for finding out how that exception applies here given what is required for it. Right. It's just the refuge was created 16 years before the federal government formally granted an easement for the state to build and see Highway 12. And any private driveways or whatever might have existed before that do not constitute a formal reservation of a road by the federal government. And so that is just a red herring the refute that exception doesn't apply and 4F does impose that obligation on the agencies to pick the alternative that will cause the least overall harm. And that gets me back to a question I had earlier. A transportation project can only use the refuge if there's no prudent and feasible alternative. And the project includes all possible planning to minimize harm. And below I thought you argued that the district court incorrectly determined that the feasible and prudent alternative, the Pamela Co. Soundbridge was not available. Was that not correct? That's right, you're right. And I noticed that I'm out of time. But should I? I've only taken up a lot of your time. Okay. So I think that may have been why I was struggling so much with the questions. Before is that while one alternative might not be illegal segmentation underneath a there's this very substantive requirement of 4F that says you have as you said you're on or you have to pick the method of building the transportation corridor that causes the least overall harm. And it has to not be potentially replaceable by a prudent and feasible alternative that wouldn't use the refuge. And that's why one of these parallel bridge options with a road through the refuge may not satisfy that they need to fairly they need to pick a method and then fairly compare its costs for the entire route to other options like the Pamela Co. Sound alternative. I understand you to be challenging the determination that a feasible improving avoidance alternative. So don't you have to at least put one in play. Yes, Your Honor. It wasn't that the Pamela Co. Sound bridge alternative. Yes, that's one of them. We've also discussed refuges and in the very last pages of the joint appendix there's discussion of a seven mile cause way that would avoid half of the refuge. And those are all ones that will cause far less harm to the refuge. But yes, the main one that the agencies have long recognized will not use the refuge in any way is the Pamela Co. Sound bridge alternative. And I think we pointed out in our brief and I can point out again the selected alternative has an estimated cost of 615 million to 1.5 billion. It's a really broad range and that's because they have left themselves open to building everything. And the Pamela Co. Sound alternative is within that range
. And what I thought the district court relied on was that the Pamela Co. Sound option required a lump sum payment, whereas the alternative under consideration could be paid over time. Yes, Your Honor. And while that is what the district court held, what the- Is it clearly a real yes? I believe it is, Your Honor. Right now the agencies are not only building and considering the first bridge that we've all been talking about as the parallel bridge. But they're currently planning and building two additional bridges of two to three miles apiece within the refuge. And the sum total of all that cost is going to be in the range of 600 million. Is that in the record? That is in the record, Your Honor. It's, I think it joined appendix 2718 and 42. It's certainly in our briefs too. I actually have a clear understanding. Feasibility is not an issue here. It's prudence. And in the district court's analysis, even with the Pamela Co. Sound alternative, they never did crunch the numbers. Never looked at the alternatives on it. So I'm not sure what we can do with that at this point. I don't think we can do it. So I don't know what- I don't know where we go with that in terms of that as an alternative. On the map, it looks pretty like a pretty place to put a bridge, but I don't think that's a basis for doing it. You got to have crunched the numbers. Right. And so the last time that the agency's crunched the numbers on any alternatives as a comprehensively and put it in the record is 2006. And those are the numbers I was talking about. They've said the selected alternative would be in this broad range. But when they get to the district court, they're just comparing the first bridge to the longer Pamela Co. Sound bridge. It sounds like a lot of money. We should use numbers that are seven years old and make a decision. Well, that's right. You're right. Those numbers are outdated and they never fairly compared the selected alternative to the Pamela Co. Sound bridge alternative. They had ruled that out long ago. And just as a final point, this court and coalition for responsible development, it's a four-circuit case specifically said, you can't rely on the vagaries of state law and your preferred methods of funding for ruling out an alternative. You have to look at all available alternative or funding
. You have time for a bottle. Thank you very much. Mr. Lundman. May I please the court, Robert Lundman, representing the Federal Highway Administration. I'm going to use five minutes of argument time and Mr. Madri for the state of North Carolina will use. I'll use 15. He'll use five. Yeah, that's in his own right. So I want to jump right to the start off with segmentation. You're going to get a lot and he's going to get a little. Exactly. The final environmental impact statement here did not just look at the Bonner Bridge. It looked at replacing the Bonner Bridge, the option for the bridge through the sound, the long bridge option, and all the different potential alternatives for highway 12 down to Rodanthi. Then, and this is where a plate this argument kind of cut off. You're going to help me on that. Yep. You did do all that, but that's not what your final plan says. You're not going to look at the ones you're not letting yourselves in one just studied beyond that bridge. Bridge has been studied and the rest of it is like, well, we're going to figure out what goes on from this bridge down to that then. Right. Now, plaintiffs and others made that very complaint after the final EIS before this lawsuit. That's what it is. That's what your statement says. Well, I was going to tell you the rest of the story. Okay. After the final EIS, then we get the environmental assessment to another big environmental analysis of this issue. And that's where the agencies here set forth in detail what the transportation management plan means for highway 12. And so it just was, do you have a transportation management plan in this record? We do. So that's, that's the environmental assessment in volume 5. I did not bring that in. So you will maintain you have a transportation management plan. I noted that. That's the letter in this record. That's the selected alternative that the agency chose
. Replace the bond bridge. I've got a selective alternative, but you have a transportation management plan in this record. Use those things a real thing. Well, it's for this for this for this for this highway 12. And it describes all the different alternatives that the agency considered. And and and what they're what could they choose from. Now, so far so good. We have an analysis of the whole, a whole picture here. Bridge down to Rodanthay. We have an analysis in the EIS and further analysis in the EA. Then what we have is in the record of decision. The agency finally decided what to do here. And that's where it did its first phasing. And phasing is different than segmentation. The agency here decided we have the money. The agencies to fund the replacement of the bridge. And we're going to choose the transportation management plan for highway 12 for the other alternative. So by making that choice, that phasing choice in the record of decision. You know, confused about this transportation plan. You're going to choose it. So what what are you disclosing. So the public and everybody can know. What's going to happen beyond this bridge. The environmental impact statement in the EA discloses all of the environmental impacts beyond the bridge. It talks about the impacts of nourishment. It talks about the impacts of a short replacement bridge. It talks about the impacts of longer replacement bridges. Those documents do the heart. The selection. Well, the selection time is at the record of decision. The environmental impact statement in the EA don't make selections. Selection occurs at record of decision. And you're right at selection time. They said replace the bridge and continue this plan for the lower part. And the plan is going to provide for additional study and further analysis. And this is where their legal argument just completely collapses
. There's no cases. And nothing that says agencies can't phase in the decision. As long as they've done the analysis on the whole thing, they can pick a phase and implement it and then do a later phase and implement it. But I think the concern that's being articulated is, when you say you're going to phase something in, that implies that you have a plan laid out. And the concern is that you're making assessments as you go along, not toward a predetermined, pre-considered end. Well, it's not predetermined here. All those options are... That's the point. Right. Well, note it. But you can do that. I think this is the key point. You have to do a full environmental analysis of the impacts and the effects. But when you come time to choose what you're going to do, NEPA simply doesn't apply to the decision choice and the record of decision to implement only part of what you studied. If you study the whole thing, you can implement part of it now and part of it later. When it comes time for the later implementation, then you have to do one of two things. You have to say, we've already studied this. This is covered by our prior EIS and EA. We're just going to go forward with another record of decision. Or you have to do further NEPA analysis. Is the EA limited just to the EISMIS because the environmental impact statement is limited just to the EISMIS? No, the environment is the EA also limited to it? Neither of them is limited just to the EISMIS. They both study alternatives that are outside the EISMIS and in the EISMIS. The final environmental impact statement, for example, as a thorough analysis of their preferred all the way through the sound alternative. None of that's an EISMIS. That's all for this end. The element of the EISMIS, the final impact statement, but I don't think the assessment is. The environmental assessment and the problem is, of course, with that is, you know, before you issue a record decision on anything, you ought to have a preferred alternative. It seems out to me and there is nothing here. One other, there is a preferred alternative. What there isn't is a choice exactly how to implement the later phases. And that's okay. It's not segmentation if you've done the hard environmental analysis. That's where it is. I mean, if you have a choice to implement, that's not disclosure. There's no one that doesn't know something. I mean, that's a reason for NEPER as a procedural type thing. But is that in the public entitled to know this? And the public, that's what we did. The environmental impact statement, EA. What did they know? They know that you can look through the environmental impact statement and say, what are the effects if we keep the road on the ground in the EISMIS? That alternative. There's an analysis of how that affects the environment across all the environmental considerations in the wildlife refuge. Then there's analysis, what if we put this whole area in the EISMIS on bridges, called the total bridge solution? I don't know, the costs are concluded too. That's the... Well, NEPER, you can have it on the bridge or you can have it on the ground or wherever. NEPER, you don't have to put that just so you don't be one of these. That's good enough. Well, NEPER doesn't require... NEPER, you don't make a choice when you're doing this... You do disclose, right? I know what I'm saying is the disclosure is all there. If you look at the record, it's in the EIS and it's in the EA. There's no law. I'm still looking for that TMP. I'm not sure that... No, no, your partner can bring them and tell me what that is because that's kind of where this is. If that thing is disclosing something, I want to know what it is because I can't find it. And the other point I want to make here on this issue is the law. The CEQ regulations on this say that cumulative and connected actions must be considered in the same impact statement. And that's what we're talking about. In the impact statement, not in the rod. The 11th Circuit's decision in defenders of wildlife versus United States Navy is directly on this point. They're the Navy analyzed both the construction of an undersea warfare training center and the operation of the warfare training center in the environmental impact statement. So just like here, impact statement looks at the whole thing. Then the Navy said, what we're going to do is just implement the construction
. There's no one that doesn't know something. I mean, that's a reason for NEPER as a procedural type thing. But is that in the public entitled to know this? And the public, that's what we did. The environmental impact statement, EA. What did they know? They know that you can look through the environmental impact statement and say, what are the effects if we keep the road on the ground in the EISMIS? That alternative. There's an analysis of how that affects the environment across all the environmental considerations in the wildlife refuge. Then there's analysis, what if we put this whole area in the EISMIS on bridges, called the total bridge solution? I don't know, the costs are concluded too. That's the... Well, NEPER, you can have it on the bridge or you can have it on the ground or wherever. NEPER, you don't have to put that just so you don't be one of these. That's good enough. Well, NEPER doesn't require... NEPER, you don't make a choice when you're doing this... You do disclose, right? I know what I'm saying is the disclosure is all there. If you look at the record, it's in the EIS and it's in the EA. There's no law. I'm still looking for that TMP. I'm not sure that... No, no, your partner can bring them and tell me what that is because that's kind of where this is. If that thing is disclosing something, I want to know what it is because I can't find it. And the other point I want to make here on this issue is the law. The CEQ regulations on this say that cumulative and connected actions must be considered in the same impact statement. And that's what we're talking about. In the impact statement, not in the rod. The 11th Circuit's decision in defenders of wildlife versus United States Navy is directly on this point. They're the Navy analyzed both the construction of an undersea warfare training center and the operation of the warfare training center in the environmental impact statement. So just like here, impact statement looks at the whole thing. Then the Navy said, what we're going to do is just implement the construction. We're not going to implement operation yet. And so the rod was limited and it will phase just like the rod is here. And the 11th Circuit said, you know, limiting the rod in that way just simply does not implement NEPA segmentation concerns. And that's exactly the argument we have here that the 11th Circuit has ruled on recently. Could I go back for just a moment? When Miss Younglin stood up, she spoke in terms of our consideration of NEPA as a matter of law. And of course, we review questions of law, de novo. But what about the district court's decision? What wasn't the district court's standard of review just simply to see whether the agency's action was the arbitrary, conquecious, abusive discretion, otherwise unlawful, the highly deferential standard that is given to agency decisions? Exactly. That's how the district court reviews the record and that's how this court reviews the record de novo. So it doesn't rely on the district court opinion, but it's this court's de novo review is that arbitrary and capricious standards. So this court should review with that difference in mind what the agencies did here. So you have a, do you have a problem if we said, okay, bridge makes meets the NEPA requirements here. But we're going to send it back, of course, subject to the fact that essentially those little extra things are going to be those that you've already studied, in words, will make it subject to what you have studied. I don't think you have to do that because I think that's where we are. That would make me wonder. I don't think it's okay because I think it's inconsistent with NEPA because the agencies here have already done that. They've done the full environmental analysis in the EIS. So what I'm not really saying is just limited to those what you've done to full analysis and you've done all the studies that are necessary for these alternative groups. Right. Subjects that are those are the ones you consider. You can't come up with something you haven't studied. Subject to the agency can do further studies, of course. It's not locked in in all time to 2007. It could do a further study, a further environmental assessment or a further supplemental environmental impact statement and then make a choice after doing so. What's up, Mell, if you need to disclose. Right. And that's what's happening. That's what's happening in phases 2A and B. How would you do it now? They're doing it because, well, the record explains this exactly why this is the case. It's hard to make this choice because of the dynamic nature of this island. The land is moving. No one knows for sure where the next storm is going to hit, where a breach might or might not occur. And the analysis of this goes out to 2060 and explains it's not possible to precisely forecast where those impacts will be. And so we can't know right now where the money will need to be spent. It doesn't make sense to spend $300 million where there might not be a breach. It procedurally were we to remained. It wouldn't go, it would go through the district court back to the agency
. We're not going to implement operation yet. And so the rod was limited and it will phase just like the rod is here. And the 11th Circuit said, you know, limiting the rod in that way just simply does not implement NEPA segmentation concerns. And that's exactly the argument we have here that the 11th Circuit has ruled on recently. Could I go back for just a moment? When Miss Younglin stood up, she spoke in terms of our consideration of NEPA as a matter of law. And of course, we review questions of law, de novo. But what about the district court's decision? What wasn't the district court's standard of review just simply to see whether the agency's action was the arbitrary, conquecious, abusive discretion, otherwise unlawful, the highly deferential standard that is given to agency decisions? Exactly. That's how the district court reviews the record and that's how this court reviews the record de novo. So it doesn't rely on the district court opinion, but it's this court's de novo review is that arbitrary and capricious standards. So this court should review with that difference in mind what the agencies did here. So you have a, do you have a problem if we said, okay, bridge makes meets the NEPA requirements here. But we're going to send it back, of course, subject to the fact that essentially those little extra things are going to be those that you've already studied, in words, will make it subject to what you have studied. I don't think you have to do that because I think that's where we are. That would make me wonder. I don't think it's okay because I think it's inconsistent with NEPA because the agencies here have already done that. They've done the full environmental analysis in the EIS. So what I'm not really saying is just limited to those what you've done to full analysis and you've done all the studies that are necessary for these alternative groups. Right. Subjects that are those are the ones you consider. You can't come up with something you haven't studied. Subject to the agency can do further studies, of course. It's not locked in in all time to 2007. It could do a further study, a further environmental assessment or a further supplemental environmental impact statement and then make a choice after doing so. What's up, Mell, if you need to disclose. Right. And that's what's happening. That's what's happening in phases 2A and B. How would you do it now? They're doing it because, well, the record explains this exactly why this is the case. It's hard to make this choice because of the dynamic nature of this island. The land is moving. No one knows for sure where the next storm is going to hit, where a breach might or might not occur. And the analysis of this goes out to 2060 and explains it's not possible to precisely forecast where those impacts will be. And so we can't know right now where the money will need to be spent. It doesn't make sense to spend $300 million where there might not be a breach. It procedurally were we to remained. It wouldn't go, it would go through the district court back to the agency. Right. So it we would simply be asking for. You to do your argument is we would simply be asking you to do what you think you've already done. And then we would begin the track back up here again. Right. But we've already done and what we're already doing for the future phases. We've already done the full analysis of the entire entire area. And we're doing future analysis as well as those phases come up. I'm into my. Are you going to talk about for a. I would love to talk about for a. That's the only issue for the federal parties. I'll just make a few very quick points about prudence here. The sound was the alternative to the long bridge of the sound was the alternative plaintiffs said should be termed by the murder team to be infeasible. In 2007. And is that subject is that a part of that. Subject to the arbitrary and capricious standard of review. Yes, it's subject to the differential review. This court has made clear that those sort of technical costs forecasting items are subject to particular differential review. It was about to do that. The district court wouldn't actually conduct the financial analysis fresh. It would not and the agencies did the financial analysis here and the issue of prudence is. Is it in the record before us. It is in the record before us. We've cited both in the 4F evaluation the revised final 4F evaluation. There's a thorough financial review. There's federal highways independent look at that as well. J207. J207. I don't. 2007. No, that was it was later. It was the revised final 4F evaluation was in I think 2009. Or early 2010. And the comparison here between the sound alternative and the parallel bridge. I think if you look at the same number
. Right. So it we would simply be asking for. You to do your argument is we would simply be asking you to do what you think you've already done. And then we would begin the track back up here again. Right. But we've already done and what we're already doing for the future phases. We've already done the full analysis of the entire entire area. And we're doing future analysis as well as those phases come up. I'm into my. Are you going to talk about for a. I would love to talk about for a. That's the only issue for the federal parties. I'll just make a few very quick points about prudence here. The sound was the alternative to the long bridge of the sound was the alternative plaintiffs said should be termed by the murder team to be infeasible. In 2007. And is that subject is that a part of that. Subject to the arbitrary and capricious standard of review. Yes, it's subject to the differential review. This court has made clear that those sort of technical costs forecasting items are subject to particular differential review. It was about to do that. The district court wouldn't actually conduct the financial analysis fresh. It would not and the agencies did the financial analysis here and the issue of prudence is. Is it in the record before us. It is in the record before us. We've cited both in the 4F evaluation the revised final 4F evaluation. There's a thorough financial review. There's federal highways independent look at that as well. J207. J207. I don't. 2007. No, that was it was later. It was the revised final 4F evaluation was in I think 2009. Or early 2010. And the comparison here between the sound alternative and the parallel bridge. I think if you look at the same number. So through 2060, if you look at both the low estimates or the high estimates, it's clear that the sound alternative is more expensive compared to the other options. And the phasing as the court pointed out, all that money is due up front for the sound bridge in order to run the report. So I think the report will replace the bridge while here working to do phasing. See what needs to be done over time and spend that money when the time comes up. I can address joint planning really briefly if the court is interested or leave time for. I'm just trying to understand in terms this has been going on for a while. Of course, how we 12 and this bridge is always a continuing problem down there. I guess it just looks to me. I'm wondering why the just not bridges being built down there. As you said, you got this continuing shifting of the coastline. And in one of the alternatives, you got parallel bridges, you got the pammalical sound bridge, it goes out in water. You got all these things that I'm trying. And then you got the hot spots you show on it in the whole bit. And I'm just trying to figure out what how did this all fall apart. In the process of it, there must be some other considerations here, developers or somebody that's shaping this thing. And I know this is a policy question, but it's really not. I'm not following what's going on here with the passage. That bridge is not going to stay up if it's on the ground. We all know that. It's right. It's a red nurse or something has to happen. I mean, you can't keep how we 12. So if you put it up in the air, it seems like a bridge might stay. I don't know that. Right. And that's what the analysis here shows is we need to replace the bridge. The environmental planning here started in 1990. I know the bottom bridge is. And then through the. Talking about that area. Right. South of the bridge to Brunanti. And that's where there are lots of functions at the table with complicated pluses of minuses of each of them. And that's where the agencies are saying, look, we are going to keep studying what's happening to these islands. And we're going to make decisions when the time is right rather than sink all the money in now. Plants are saying, you need to make a decision now
. So through 2060, if you look at both the low estimates or the high estimates, it's clear that the sound alternative is more expensive compared to the other options. And the phasing as the court pointed out, all that money is due up front for the sound bridge in order to run the report. So I think the report will replace the bridge while here working to do phasing. See what needs to be done over time and spend that money when the time comes up. I can address joint planning really briefly if the court is interested or leave time for. I'm just trying to understand in terms this has been going on for a while. Of course, how we 12 and this bridge is always a continuing problem down there. I guess it just looks to me. I'm wondering why the just not bridges being built down there. As you said, you got this continuing shifting of the coastline. And in one of the alternatives, you got parallel bridges, you got the pammalical sound bridge, it goes out in water. You got all these things that I'm trying. And then you got the hot spots you show on it in the whole bit. And I'm just trying to figure out what how did this all fall apart. In the process of it, there must be some other considerations here, developers or somebody that's shaping this thing. And I know this is a policy question, but it's really not. I'm not following what's going on here with the passage. That bridge is not going to stay up if it's on the ground. We all know that. It's right. It's a red nurse or something has to happen. I mean, you can't keep how we 12. So if you put it up in the air, it seems like a bridge might stay. I don't know that. Right. And that's what the analysis here shows is we need to replace the bridge. The environmental planning here started in 1990. I know the bottom bridge is. And then through the. Talking about that area. Right. South of the bridge to Brunanti. And that's where there are lots of functions at the table with complicated pluses of minuses of each of them. And that's where the agencies are saying, look, we are going to keep studying what's happening to these islands. And we're going to make decisions when the time is right rather than sink all the money in now. Plants are saying, you need to make a decision now. You need to do the whole thing now. And that's not right. We need to do the entire analysis now of the environmental impacts which we did. We don't need to make a decision on the money and where the bridges are built now. That we can wait and update the analysis, see what happens and then, and then make a decision down the road. We're not in a position to, to say, okay, but you are at least have, you got all these things you've studied. You say you've studied, you're subject to those things you've studied. If you want to do something else, then you got to go back through the procedure again. You got to do something different. If we do something that we haven't studied, we have to go through the procedure. That's what NEPA says. If we do something we've studied, then we're okay. And that's... That's what I said in the scope of where we go with this. This is okay. What you got so far is fine as long as you stay within what's studied. Right. And that's, and that's the point is we've, we've studied. If we choose something to do that's not been studied, then we have to do an environmental impact statement. That's outside about, oh, the decision I think. But, but I guess I'm still confused. I asked the question, what's wrong if we said it say, okay, fine. But you got to stay within the alternatives you've studied. Because nothing prevents the agency from coming up with a new alternative. Well, it's studying it. And then... We should find subject to that. Now, if you want to do something different once you get out, you got to get outside of this and find a way to do it. But you can't do it within the confines of our opinion. We're not saying this is the only way. But we're saying it for what you've asked us to do. This is fine as long as you do what's been studied
. You need to do the whole thing now. And that's not right. We need to do the entire analysis now of the environmental impacts which we did. We don't need to make a decision on the money and where the bridges are built now. That we can wait and update the analysis, see what happens and then, and then make a decision down the road. We're not in a position to, to say, okay, but you are at least have, you got all these things you've studied. You say you've studied, you're subject to those things you've studied. If you want to do something else, then you got to go back through the procedure again. You got to do something different. If we do something that we haven't studied, we have to go through the procedure. That's what NEPA says. If we do something we've studied, then we're okay. And that's... That's what I said in the scope of where we go with this. This is okay. What you got so far is fine as long as you stay within what's studied. Right. And that's, and that's the point is we've, we've studied. If we choose something to do that's not been studied, then we have to do an environmental impact statement. That's outside about, oh, the decision I think. But, but I guess I'm still confused. I asked the question, what's wrong if we said it say, okay, fine. But you got to stay within the alternatives you've studied. Because nothing prevents the agency from coming up with a new alternative. Well, it's studying it. And then... We should find subject to that. Now, if you want to do something different once you get out, you got to get outside of this and find a way to do it. But you can't do it within the confines of our opinion. We're not saying this is the only way. But we're saying it for what you've asked us to do. This is fine as long as you do what's been studied. That keeps it from being segmented. What I'm saying is you can affirm a poll agency decision. Because what's happening now is exactly what you're describing. If we do something that's not in the alternative, there's further review. Yeah, yeah. I think I understand. You're saying that we would be telling you to do what... Go back and we order you to do exactly what you're doing. Proceed along the lines that you've already studied in a laid out. And if you deviate from that, then... Then review gets triggered again. Right. And I think that's a fine statement of NEPA law. So if the court wants to put that in the opinion, I think that's fine. I think it's clear... That's kind of what I was asking. Right. I guess the point is I don't think that means you need to reverse. I think that means you affirm... It's an affirmus. Affirmus. Well... I mean, too. I'm all for affirmus. Affirmus. Affirmus
. That keeps it from being segmented. What I'm saying is you can affirm a poll agency decision. Because what's happening now is exactly what you're describing. If we do something that's not in the alternative, there's further review. Yeah, yeah. I think I understand. You're saying that we would be telling you to do what... Go back and we order you to do exactly what you're doing. Proceed along the lines that you've already studied in a laid out. And if you deviate from that, then... Then review gets triggered again. Right. And I think that's a fine statement of NEPA law. So if the court wants to put that in the opinion, I think that's fine. I think it's clear... That's kind of what I was asking. Right. I guess the point is I don't think that means you need to reverse. I think that means you affirm... It's an affirmus. Affirmus. Well... I mean, too. I'm all for affirmus. Affirmus. Affirmus. It doesn't give you this open opportunity to go out and just build something you want to build. Right. What you studied. Right. One of those alternatives. Okay. Nothing further unless the court has questions for me. Thank you. Thank you very much. Mr. Madri, come in and lighten us. Please, the court. I'm John Madri, solicitor general for the state of North Carolina. I'd like to start by emphasizing what I understand to be the selected alternative. And that is the parallel bridge corridor with the NC-12 highway management plan. And I think that's important, Judge Wynn, because it goes to your question. What the decision after the 20-year environmental study process was to determine the corridor within which the highway bridge replacement and highway issues would be addressed. And that was the parallel bridge corridor with the future transportation management plan. Is there a complete total transportation management plan in the record? No. There is the environmental assessment, which is... Tell me at some point in time, I would like to know where it is in the record. That thing you call... That's a term of all. Yes, it is, Your Honor. I'm going to know where it is. I'll try to help you out. The environmental assessment, some 300 pages, is in the Joint Appendix at Pages 2151 through 2455. That was a, I believe, a May 2010 document. The December 2010 record of decision is at Joint Appendix Pages 2482 to 2756. Of particular note, Your Honor, is at Joint Appendix Pages 2497 through 2500. That's the three-page section of the record of decision entitled Later Faces in C-12 Transportation Management Plan. No, it is not a 300-page complete transportation management plan
. It doesn't give you this open opportunity to go out and just build something you want to build. Right. What you studied. Right. One of those alternatives. Okay. Nothing further unless the court has questions for me. Thank you. Thank you very much. Mr. Madri, come in and lighten us. Please, the court. I'm John Madri, solicitor general for the state of North Carolina. I'd like to start by emphasizing what I understand to be the selected alternative. And that is the parallel bridge corridor with the NC-12 highway management plan. And I think that's important, Judge Wynn, because it goes to your question. What the decision after the 20-year environmental study process was to determine the corridor within which the highway bridge replacement and highway issues would be addressed. And that was the parallel bridge corridor with the future transportation management plan. Is there a complete total transportation management plan in the record? No. There is the environmental assessment, which is... Tell me at some point in time, I would like to know where it is in the record. That thing you call... That's a term of all. Yes, it is, Your Honor. I'm going to know where it is. I'll try to help you out. The environmental assessment, some 300 pages, is in the Joint Appendix at Pages 2151 through 2455. That was a, I believe, a May 2010 document. The December 2010 record of decision is at Joint Appendix Pages 2482 to 2756. Of particular note, Your Honor, is at Joint Appendix Pages 2497 through 2500. That's the three-page section of the record of decision entitled Later Faces in C-12 Transportation Management Plan. No, it is not a 300-page complete transportation management plan. What it is is the description in the record-on decision as to where and how things will proceed after Phase 1. It's important not to equate phases with segmentation. Basically, is it just a few little pages you're talking about here to transmit this transportation management plan? Is it up to three little pages? Your Honor, as I said earlier, it's not... Where did you see one like that before? I know it. You know the other thing. I know exactly what you're talking about. What I have described to you is the decision-making process for the parallel bridge corridor with the transportation management plan. Phase 1, build the replacement for the bonner bridge in the parallel corridor. Go with. To the refuge where no one lives. To connect the two islands, the existing transportation corridor that's been there for close to 75 years. To allow... There's nothing up in that refuge. It's no good unless it connects with road-entered. Down the road. So you've got to have something to connect back. Otherwise, you've got to bridge to nowhere. Your Honor, it replaces an existing bridge so it's not a bridge to nowhere. It connects existing highway. You can't tell me where you're going to be. But you know how way 12 the next hurricane is gone. Well, and that's a very good point, Your Honor, because opposing counsel talks about the bridges now in Phase 2 and that she says that add up to a certain amount of money. Those bridges came after the record on decision when Hurricane Irene came through that area. So that validates the process that's approved in the road. We can't tell you exactly what we're going to do in that corridor because we have to wait until it's time to do them to know what's best. There could be bridges. There could be one or more bridges. Will you stay within the easement? The approved alternative stays within the corridor, the Highway 12 corridor. And that's by definition down the barrier island. Quarter easement. Will it stay within the easement? I know this court didn't talk about North Carolina law at all on this thing. I thought that probably we should talk a little bit about North Carolina law since it applies on easement
. What it is is the description in the record-on decision as to where and how things will proceed after Phase 1. It's important not to equate phases with segmentation. Basically, is it just a few little pages you're talking about here to transmit this transportation management plan? Is it up to three little pages? Your Honor, as I said earlier, it's not... Where did you see one like that before? I know it. You know the other thing. I know exactly what you're talking about. What I have described to you is the decision-making process for the parallel bridge corridor with the transportation management plan. Phase 1, build the replacement for the bonner bridge in the parallel corridor. Go with. To the refuge where no one lives. To connect the two islands, the existing transportation corridor that's been there for close to 75 years. To allow... There's nothing up in that refuge. It's no good unless it connects with road-entered. Down the road. So you've got to have something to connect back. Otherwise, you've got to bridge to nowhere. Your Honor, it replaces an existing bridge so it's not a bridge to nowhere. It connects existing highway. You can't tell me where you're going to be. But you know how way 12 the next hurricane is gone. Well, and that's a very good point, Your Honor, because opposing counsel talks about the bridges now in Phase 2 and that she says that add up to a certain amount of money. Those bridges came after the record on decision when Hurricane Irene came through that area. So that validates the process that's approved in the road. We can't tell you exactly what we're going to do in that corridor because we have to wait until it's time to do them to know what's best. There could be bridges. There could be one or more bridges. Will you stay within the easement? The approved alternative stays within the corridor, the Highway 12 corridor. And that's by definition down the barrier island. Quarter easement. Will it stay within the easement? I know this court didn't talk about North Carolina law at all on this thing. I thought that probably we should talk a little bit about North Carolina law since it applies on easement. But I know you say court. What do you tell him? Is it easement? Is it staying within the easement or is easement corridor? I don't think the tour synonymous because as the record indicates over time, there have been instances where the path of Highway 12 has been moved with the approval and acquiescence of the Department of Interior and the management entity, the owner of the federal lands that upon which the road is located. So I don't believe easement is synonymous with corridor. I think corridor is broader than the existing easement. Again, that illustrates the point of the approved alternative, the selected alternative, is to allow that sort of flexibility and reaction when it's time, when there's money to do it and there's time to do it to make the complete connection between the North and the South. I see my time is up. I would encourage this court to affirm the judgment of the district court. Thank you. Thank you very much. Miss Youngman, you reserve two minutes for a bottle. Yes, Your Honor. I'll just address a couple of the questions that you've raised and that my colleagues have talked about. The first thing I wanted to distinguish is the treatment of the defenders of wildlife versus Navy case that talked about phased implementation. That's a very different thing and I think Judge Wynne you may have pointed this out. Phased decision making is not allowed underneath. You have to make a decision upfront. You can implement the decision in phases if you like. In that case, that's what happened. They have a plan for the entire construction of the entire structure and they're just going to implement it later. That's okay. I just look at just a net. I think I would agree that segmented is because that seems to imply that you're deciding phased to me unless it's a term of art and you can correct me if I'm wrong. You implement something in phases that has been predetermined. That's what didn't happen in this case. Nothing has been determined except that one small segment. I'm going to read to you some of the description of the transportation management plan that you've been interested in. It is a couple of pages of the record of decision. Transportation management plan. It is a plan to at some point in the future will make a plan. It's not a plan right now. It's a promise to at some point figure out what we're going to do. Because we're talking about disclosure to the public. Here's how they describe it, Your Honor. It says, and I'm reading from those pages, one or more of a combination of options drawing from the alternatives previously studied as well as any other alternatives determined at the time to be reasonable. The sky is literally the limit. They can pick an EPA actually ask them to take one option off the table, the one that was the most environmentally damaging that would have moved the bridge and to your point, Your Honor, about easement versus corridor
. This is something that would take the road completely out of its easement, destroy dozens of wetlands within the refuge, and the agency said, no, we're not going to even take that one off the table. They literally have left themselves the opportunity to implement anything, even the most expensive and the most damaging. That is not what the people deserve. The public is supposed to be able to participate and scrutinize an entire plan. If you build the first bridge with no plan to get traffic to and from it, I mean as we've seen every time there's a hurricane, it's not the bridge that stops everything. It's the fact that the road is washed out for two months that keeps people from getting on and off the island. So if you don't have a plan for those later phases, it's not a plan and you can't ask the people to, I mean, you're hiding the ball on the people and the other agencies that need to make decisions. Thank you very much