Committee to Save the Derry Rail Trail Tunnel and Rails to Trails Conservancy v. Shailen Bhatt, et al.
Case No. 24-cv-00262-PB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
June 30, 2025
Opinion No. 2025 DNH 078
This case lies at the intersection of highway development and historic preservation. At issue is the Federal Highway Administration‘s (FHWA) approval of a new six-lane road in Derry that will cut through a segment of the Manchester and Lawrence Railroad Historic District (“the Historic District“), a resource protected by § 4(f) of the Department of Transportation Act.
In 2020, the New Hampshire Department of Transportation (NHDOT) proposed a design for the new road that included an underpass (“the Underpass Alternative“) to allow people walking and bicycling along the rail corridor to pass beneath the new road. But in 2024, transportation officials abandoned the Underpass Alternative and instead opted for a less costly design featuring two different ways for users to cross the new road: one that diverges from the Historic District and follows a grade-separated path under
The plaintiffs are two rail trail advocacy groups that are challenging the FHWA‘s decision to abandon the Underpass Alternative in favor of the At-Grade Alternative. The plaintiffs’ principal argument is that defendants made this determination without complying with their obligation under § 4(f) and its implementing regulations to compare both proposals and choose the one that causes the least overall harm to the Historic District. They seek an injunction to prevent construction activities that could affect the Historic District until the defendants comply with their obligations under § 4(f).
I. BACKGROUND
To understand this case, it is helpful to know something about the requirements that § 4(f) places on federally funded-transportation projects. Accordingly, I begin by discussing § 4(f) before turning to a description of the Historic District and how it will be affected by the new road.
A. Legal Framework
1. Section 4(f)
Congress enacted § 4(f) of the Department of Transportation Act of 1966 to protect significant public resources, such as parks, recreation areas,
Section 4(f) places both substantive and procedural limitations on the U.S. Secretary of Transportation‘s ability to authorize the use of federal funds for a project that affects a site protected by the statute. The Secretary—or his designee1—may approve funding for projects affecting § 4(f) protected land only when particular conditions are met. See
If the Secretary determines there is no prudent and feasible alternative that would avoid use of the § 4(f) protected property altogether, the Secretary must then meet the requirements of § 4(f)(2) before approving a project: He must take steps to ensure that the proposed “project includes all possible planning to minimize harm” to the protected resource.
Several circuits have considered what “all possible planning to minimize harm” entails and have concluded that this statutory hurdle is not merely procedural but substantive as well. In situations where the Secretary is considering several alternative proposals—all of which use the § 4(f)
In order to ensure adequate compliance with the “all possible planning to minimize harm” requirement, the Secretary of Transportation promulgated regulations that delineate the contours of the harm minimization and mitigation analysis. See
First, the Secretary may select “only the alternative that causes the least overall harm in light of the statute‘s preservation purpose.”
Second, once the Secretary has selected the alternative that causes the least overall harm, the regulations further specify that the Secretary must engage in “all possible planning, as defined in
“With regard to historic sites, the measures normally serve to preserve the historic activities, features, or attributes of the site as agreed by the Administration and the official(s) with jurisdiction over the Section 4(f) resource in accordance with the consultation process[.]”
While some of these factors overlap with those of the “least overall harm” analysis described above, they are independent and distinct. See
In a typical § 4(f) case, the Secretary must comply with a host of documentation and consultation requirements in the regulations. See
If there were any doubt on this point, an FHWA notice describing the § 4(f) Net Benefit Programmatic Evaluation is clear: “[T]his programmatic evaluation is not a waiver or relaxation of any of the Section 4(f) standards or judicial interpretations of the legislative requirements.”
2. National Historic Preservation Act
Section 4(f) is not the only law the federal government must comply with when it funds or undertakes a project that affects a historic site. Section 106 of the National Historic Preservation Act (NHPA) requires that officials with jurisdiction over a federally funded project, including the heads of the relevant federal and state agencies, “take into account the effect of an undertaking on any historic property.” See
Section 106 of the NHPA requires that federal and state authorities assess the adverse effects of a proposed project on the historic property, see
3. National Environmental Policy Act
Certain federally funded projects must also run the procedural gauntlet of the National Environmental Policy Act (NEPA). See
When a federal agency undertakes a project, it can document its compliance with NEPA, § 106 of the NHPA, and § 4(f) all in the same place,7 but each statutory provision represents a separate obligation involving different procedural—and sometimes substantive—components.
B. The Manchester and Lawrence Railroad Historic District
1. The Railroad
The Historic District is a twenty-two-mile corridor that follows the historic route of the railroad between Manchester and the state line near Salem, New Hampshire. Doc. 1 at 6. Chartered in 1847 and added to the Boston and Maine Railroad network in 1887, the Manchester and Lawrence Railroad (“M&L Railroad“) was an important transportation artery in nineteenth and early twentieth century New England.
In 2009, the New Hampshire Division of Historical Resources (NHDHR) determined that the portion of the railroad corridor in New Hampshire was eligible for inclusion on the National Register of Historic Places, a status that protects the property from potentially harmful transportation projects pursuant to § 4(f).
2. The Derry Rail Trail
Whereas the Historic District is a product of nineteenth-century engineering, the Derry Rail Trail is a creature of twenty-first century recreation. Local authorities in Derry and Londonderry have developed portions of the historic corridor into a paved path for pedestrians and cyclists, with plans to connect it with a larger network of New Hampshire rail trails stretching from the Connecticut River to the Massachusetts state line. Doc. 1 at 11-12. The rail trail currently ends approximately 1,860 feet south of the proposed highway development site. Admin. Rec. at 0016092.
It bears noting that while the Derry Rail Trail follows the Historic District‘s path, it is not itself a § 4(f) property. Doc. 1 at 11-13. Furthermore, the segment of the Derry Rail Trail at issue here remains unconstructed—it exists merely as a planned northward extension of the trail from its current terminus.
C. The New Road
NHDOT is building a 3.2-mile road connecting a new I-93 Exit 4A interchange with the town of Derry. The purpose of the Exit 4A project is “to reduce congestion and improve safety along State Route 102 [. . .] from I-93
1. The Underpass Alternative
In moving forward with the Exit 4A project, the agencies opted to conduct a § 4(f) Net Benefit Programmatic Evaluation—rather than a standard § 4(f) evaluation—in order to streamline the process and reduce paperwork. See
The required agreement was memorialized in an Adverse Effect Memo dated August 13, 2019. Admin. Rec. 0005182 (“NHDHR and NHDOT agree with FHWA‘s finding that this undertaking is a Net Benefit to the M&L Railroad Historic District under Section 4(f) due to its measures to minimize harm to the historic district by allowing the continuity of the M&L Railroad,
One proposed “mitigation measure” for the Historic District would involve the construction of an “underpass and 900-foot paved path” which would “enable trail construction to the north as part of a separate project by others, which in turn will help protect more of the historic district from other development.”
2. The At-Grade Alternative
The first public indication that NHDOT had changed course with respect to the Underpass Alternative came on April 8, 2021, during a Cultural Resource Agency Coordination Meeting. Admin. Rec. at 0028808. At the meeting, NHDOT proposed eliminating the underpass and replacing it with a winding path that changed elevations, departed approximately 245 feet from the Historic District, and crossed the new road beneath a bridge over the nearby Shields Brook.
Prior to that meeting, NHDOT had disclosed the proposed redesign to NHDHR representative Laura Black in an email on April 5, 2021.
During the April 8, 2021, Cultural Resources meeting, Black publicly expressed her concerns to NHDOT “that the [Shields Brook] path deviated too far from the historic feel of the rail corridor (flat and straight).”
On September 22, 2022, NHDOT presented this updated two-route design at a Public Informational Meeting. Admin. Rec. at 0021089. At the meeting, NHDOT estimated the cost savings of eliminating the underpass at $770,000—approximately 2.3 percent of the projected $33 million total cost for the one-mile segment of the project affecting the Historic District. See Doc. 23-6 at 43; Admin. Rec. at 0020497.
NHDOT responded to Bernhard‘s letter on February 29, 2024, noting that “[w]hile the at-grade crossing does change the existing elevation and grade” of the railroad right-of-way and “the open view of the linear railroad corridor is temporarily interrupted,” the At-Grade Alternative was “the most prudent and feasible alternative to recreate the linear corridor.” Admin. Rec. at 0027294.
3. Approval of the At-Grade Alternative
Having determined that the At-Grade Alternative, like the Underpass Alternative, would result in a “net benefit” to the Historic District compared to the “no build” alternative, the Secretary once again proceeded with a § 4(f) Net Benefit Programmatic Evaluation pursuant to
To satisfy these requirements, FHWA, NHDOT, and NHDHR executed a written agreement letter on May 13, 2024 (“the Agreement Letter“), which identified the proposed measures to minimize and mitigate harm to the Historic District. Admin. Rec. at 0028951-54. That same day, the Secretary issued a Written NEPA Re-Evaluation (“NEPA Re-Evaluation“) for the Derry Rail Trail/Shields Brook Crossing site, which also purports to fulfill the programmatic evaluation‘s documentation requirement.
Because the NEPA Re-Evaluation found that the At-Grade Alternative did not result in substantially different adverse impacts from those previously assessed, the Secretary determined that the original FEIS/ROD remained valid and that a supplemental EIS was not necessary. Id. at 0028817. Later that month, the Secretary formally approved the At-Grade Alternative, and construction was set to proceed. Id. at 0028809.
C. Procedural Background
Plaintiffs commenced this action on August 26, 2024. Doc. 1. Their principal argument is that the defendants violated § 4(f) by abandoning the Underpass Alternative in favor of the At-Grade Alternative without first determining which alternative “causes the least overall harm” to the Historic District.
On October 8, 2024, plaintiffs moved for a preliminary injunction to halt construction at the Folsom Road crossing pending resolution of the lawsuit. See Doc. 20. Following a status conference on November 25, 2024, the plaintiffs agreed to drop their motion for a preliminary injunction based on the defendants’ assurances that there was no planned construction in the immediate proximity of the Historic District that would preclude completion of the Underpass Alternative. See Doc. 32. The defendants indicated that
The parties subsequently filed cross-motions for summary judgment on March 20, 2025, with objections and replies completed in April 2025. A hearing on the summary judgement motions was held on May 21, 2025, and the matter is now properly before me for adjudication.
II. STANDARD OF REVIEW
Summary judgment is warranted when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In administrative law cases, however, “[t]his rubric has a special twist.” Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). Here, the plaintiffs challenge administrative agency action and seek judicial review pursuant to Section 706 of the Administrative Procedure Act.
Instead, “[t]he entire case on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation omitted); see also Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999). Accordingly, the court should rely on the administrative record and not “some new record made initially for the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973).
Under the APA, an agency decision made pursuant to § 4(f) will not be overturned unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
The “highly deferential abuse of discretion standard of review,” Conservation L. Found., 24 F.3d at 1471, requires that I determine whether the agency examined the relevant evidence, considered the appropriate factors, and articulated a rational connection between the facts found and the decision made. Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 202 (1st Cir. 1999). I may not substitute my judgment for that of the Secretary of Transportation, but I must still undertake a careful review of the record to ensure that the Secretary‘s action reflects a reasoned evaluation. Hist. Bridge Found. v. Buttigieg, 22 F.4th 275, 282 (1st Cir. 2022). And, in resolving pure questions of law, the APA provides that it is “the reviewing court” not the agency that “shall decide all relevant questions of law.” Mayburg v. Sec‘y of Health & Hum. Servs., 740 F.2d 100, 145 (1st Cir. 1984) (citing §706).
In effect, the district court sits as an appellate tribunal tasked with deciding whether the agency could have reasonably drawn the conclusions it did. See Uddin v. Mayorkas, 862 F. Supp. 2d 391, 400 (E.D. Pa. 2012). I must ask “whether the agency relied on factors outside those Congress intended for consideration, completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in
III. ANALYSIS
This case turns on a single issue: Did the defendants conduct the “least overall harm” analysis required by
Defendants concede that they were required to compare the At-Grade and Underpass Alternatives in a least overall harm analysis. See, e.g., Doc.
Defendants do not identify any document, or any part of a document, in the administrative record that is denominated as a least overall harm analysis. Nor do they point to anything in the record that reasonably can be read as an attempt to assess the Underpass and At-Grade Alternatives using the seven-factor test for a least overall harm analysis called for by
Defendants prepared the NEPA Re-Evaluation primarily to permit FHWA to determine whether NHDOT‘s proposal to replace the Underpass Alternative with the At-Grade Alternative required the preparation of a supplemental EIS. Admin Rec. at 0028791. Accordingly, it begins with a “Comparison of the Selected Alternative and the Proposed Alternative” that
telling given that the underpass was touted as a mitigation measure in the FEIS/ROD. Thus, the NEPA Re-Evaluation cannot serve as a least overall harm analysis of the Underpass and At-Grade Alternatives.
Defendants also rely on the Agreement Letter in which FHWA, NHDOT, and NHDHR concurred that “the final mitigation measures of the Updated Memorandum of Agreement executed on May 7, 2024 satisfy the requirements of Section 4(f).” Id. at 0027243-46. But this document does not suggest in any way that the defendants compared the At-Grade and Underpass Alternatives in a least overall harm analysis. Although this letter refers to both the At-Grade Alternative and the Underpass Alternative, it does so only to demonstrate that both alternatives achieve a net benefit to the Historic District in a similar way. Id. at 00277243-44. What it does not do is evaluate the At-Grade and Underpass alternatives to determine which causes the least overall harm to the Historic District. Id.
Although defendants also cite isolated statements in the Amended Adverse Effect Memo, id. at 0028958, and the Updated Memorandum of Agreement, id. at 0028931, these documents were created to show compliance with the defendants’ obligations under § 106 of the NHPA. They do not mention § 4(f) and they do not attempt to determine which of the two alternatives cause the least overall harm to the Historic District. In short, neither these documents nor any other entries in the administrative record
Defendants present several additional arguments in an effort to undermine the plaintiffs’ request for an injunction. None of them are persuasive. First, the defendants complain that the plaintiffs are holding them to too high a standard by requiring them to use “magic terminology” to document their least overall harm analysis. Doc. 36-1 at 18. This argument mischaracterizes the problem. As I have explained, defendants have an obligation to document their findings when undertaking a § 4(f) Net Benefit Programmatic Evaluation. Although magic language is not needed to satisfy this requirement, the administrative record must contain sufficient documentation to support a finding that the required evaluation was conducted. See 70 Fed. Reg. 20630. In this case, there is simply no evidence in the record that defendants ever compared the At-Grade and Underpass Alternatives in a least overall harm analysis.
Defendants also argue that the Secretary was free to choose the At-Grade Alternative over the Underpass Alternative because they are substantially equal in mitigating harm to the Historic District. See Doc. 37-1 at 16-17. The problem with this argument is that it works only if defendants reached this conclusion after undertaking the required analysis. Because
Defendants next remind the Court of the deference that a reviewing court must give to agency decision making. But when an agency fails to conduct analysis that the law requires, the court cannot give deference to a decision that was never made. Because the defendants never undertook a least overall harm analysis, the Court cannot defer to the Secretary‘s decision to approve the At-Grade Alternative.
Defendants raise one final issue that warrants discussion. On June 17, 2025, the defendants filed a pleading captioned “Federal Defendants’ Notice of Supplemental Authority.” Doc. 52. This filing includes a footnote in which the defendants state: “[w]hile Federal Respondents have argued that evidence in the [administrative record] provides a basis for the analysis outlined in
If I were to assess the defendants’ new argument now, I would have to resolve several complex legal issues without the benefit of briefing from the parties. For example, if, as it appears,
The First Circuit has recognized that “a party who aspires to oppose a summary judgment motion must spell out his arguments squarely and distinctly, or else forever hold his peace. The district court is free to disregard arguments that are not adequately developed.” Higgens v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (cleaned up). And, as the court more recently observed, “[t]his is particularly true where, as here, the undeveloped argument raises complexities that defy an easy answer.” Coons v. Indus. Knife Co., 620 F.3d 38, 44 (1st Cir. 2010) (cleaned up).
Here, the defendants’ new argument is flatly inconsistent with its concession that it was required to conduct a least overall harm analysis. It comes too late. And it is not accompanied by sufficient supportive legal argument to warrant consideration.
V. CONCLUSION
Plaintiffs are not seeking to prevent the defendants from completing their road project. They merely ask that the defendants be enjoined from proceeding until they give proper consideration to their claim that the Underpass Alternative will cause substantially less harm to the Historic District than the At-Grade Alternative. Because defendants concede that they must conduct this analysis and I determine that they have so far failed to do so, I enjoin the defendants from performing construction in the immediate proximity of the Historic District that would in any way foreclose
SO ORDERED.
/s/Paul Barbadoro
Paul J. Barbadoro
United States District Judge
Date: June 30, 2025
cc: Counsel of Record
Exhibit 1: Underpass Alternative design showing the tunnel beneath Folsom Road and route of the proposed 900-foot path. Admin. Rec. at 0009708.
Exhibit 2: The At-Grade Alternative‘s two proposed routes in purple and green. The earlier Underpass Alternative route is shown in yellow. Admin. Rec. at 0028902.
Exhibit 3: Profile view of the At-Grade Alternative prepared by Friends of the Northern Railroad and submitted to NHDHR. Admin. Rec. at 0028920.
Exhibit 4: Digital rendition of the At-Grade Alternative‘s signalized crosswalk. Admin. Rec. at 0028918.