Committee to Save the Derry Rail Trail Tunnel v. Bhatt, 1:24-cv-00262

The New Hampshire Department of Transportation (NHDOT), with FHWA approval, sought to build a new road crossing the Manchester and Lawrence Railroad Historic District, a resource protected by § 4(f) of the Department of Transportation Act.
Originally, an "Underpass Alternative" was proposed to allow trail users to pass beneath the new road, preserving the rail corridor’s linear integrity.
Due to cost concerns, officials later replaced the underpass with an "At-Grade Alternative," requiring users either to deviate from the historic district or rise 10 feet to an at-grade crosswalk over the new road.
Two rail trail groups challenged the approval of the At-Grade Alternative, arguing that FHWA failed its legal obligation under § 4(f) to compare both alternatives and select the one causing the least harm to the historic district.
The case came before the court on cross-motions for summary judgment, following the agencies’ documentation and public process but without a clear comparative analysis of harm between the two alternatives.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the agency perform the "least overall harm" analysis required by § 4(f) for the two alternatives?	FHWA did not compare the Underpass and At-Grade Alternatives as required by law; therefore, the decision is invalid.	The administrative record shows sufficient consideration of the alternatives; a comparative analysis is implicit.	The agency failed to do the required least-harm analysis; injunctive relief is granted until the agency complies.
Is explicit documentation of the least-harm analysis required?	Yes; the law and programmatic evaluation process require specific, documented analysis, not conclusory statements.	No "magic words" required; adequate if the record reflects understanding of the alternatives and their impacts.	Documentation is required; the record did not show the necessary comparative analysis.
Is the agency entitled to deference if it fails to perform required analysis?	No; deference is only appropriate if the agency has actually performed the review mandated by law.	Yes; agency expertise and decisionmaking should be respected.	No deference given when the record lacks the required analysis.
Can the agency use a programmatic 4(f) evaluation to avoid the least-harm analysis?	No; programmatic evaluation is a procedural shortcut, not a substantive waiver of statutory duties.	Yes; less documentation is required under the programmatic evaluation.	Programmatic evaluation does not relieve the agency of the statutory obligation.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (defining scope of review and agency obligations under § 4(f))
Conservation All. of St. Lucie Cnty., Inc. v. U.S. Dep’t of Transp., 847 F.3d 1309 (11th Cir. 2017) ("thumb on the scale" in favor of alternatives that avoid § 4(f) land)
Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700 (11th Cir. 1985) (agencies must conduct a qualitative comparison of harm)
Louisiana Envt’l Soc’y, Inc. v. Coleman, 537 F.2d 79 (5th Cir. 1976) (agencies must select the alternative causing least overall § 4(f) harm)
Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60 (D.C. Cir. 1987) (explaining the qualitative nature of the least-harm analysis)
Conservation Law Found. v. Fed. Highway Admin., 24 F.3d 1465 (1st Cir. 1994) (standard for overturning agency action under § 4(f))