author: MARCUS, Circuit Judge:

text:
    CONSERVATION ALLIANCE OF ST. LUCIE COUNTY, INC., a Florida Not-For-Profit Corporation, Treasure Coast Environmental Defense Fund, a.k.a. Indian Riverkeeper, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF TRANSPORTATION, Secretary, U.S. Department of Transportation, Federal Highway Administration, Victor Mendez, Administrator of the Federal Highway Administration, James Christian, Division Administrator of the Florida Division of the Federal Highway Administration, Defendants-Appellees, City of Port St. Lucie, Intervenor Defendant.
    No. 15-15791
    United States Court of Appeals, Eleventh Circuit.
    (February 3, 2017)

      Richard Grosso, Shepard Broad College of Law, Nova Southeastern University, Fort Lauderdale, FL, for Plaintiff-Appellant Conservation Aliance of St. Lucie County, Inc., a Florida Not-For-Profit Corporation.
    Robert N. Hartsell, Sarah Hayter, Robert N. Hartsell, PA, Pompano Beach, FL, Rachel S. Doughty, Greenfire Law, Berk-ley, CA, for Plaintiffs-Appellants.
    James Maysonett, U.S. Department of Justice, Appellate Section, Environment and Natural Resources Div., Brian Collins, Sean C. Duffy, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for Defendants-Appel-lees U.S. Department of Transportation, Secretary, U.S. Department of Transportation, Federal Highway Administration, Victor Mendez, Administrator of the Federal Highway Administration, James Christian, Division Administrator of the Florida Division of the Federal Highway Administration.
    Michelle S. Andotra, Ailya Zaidi, U.S. Department of Transportation, Atlanta, GA, for Defendants-Appellees U.S. Department of Transportation, Federal Highway Administration, Victor Mendez, Administrator of the Federal Highway Administration, James Christian, Division Administrator of the Florida Division of the Federal Highway Administration, Anthony Foxx.
    John J. Fumero, R. Gregory Hyden, Azlina Goldstein Siegel, Nason Yeager Gerson White & Lioce, Boca Raton, FL, for Amicus Curiae City of Port St. Lucie.
    Before MARCUS, DUBINA, and WALKER, Circuit Judges.

       Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation.

   MARCUS, Circuit Judge:

When the City of Port St. Lucie sought to build a new bridge spanning the North Fork St. Lucie River (NFSLR), it was required to work with the Federal Highway Administration (FHWA) and the Florida Department of Transportation (FDOT) to choose an acceptable location for that bridge. The selection process was complicated by the fact that each of the proposed paths for the new bridge impacted “publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge” that is protected under § 4(f) of the Department of Transportation Act. 49 U.S.C. § 303(c). Under § 4(f), the Secretary of Transportation may approve projects that use § 4(f) lands only if the agency first determines that there is no feasible and prudent alternative to using that land. Id. at § 303(c)(1). If there are no such alternatives, the agency must conduct “all possible planning” to minimize harm to the protected lands. Id. at § 303(c)(2).

The Federal Highway Administration and the City worked in concert with many federal, state, and local agencies to conduct a lengthy analysis of the sociocultural, economic, and environmental impacts each alternative carried in its wake before making a selection. The agencies also collaborated on a mitigation plan to remedy the adverse effects of the preferred alternative. Ultimately, all of the agencies involved in the review agreed on a path for the new bridge that would use approximately two acres of § 4(f) land.

Plaintiff-appellants Conservation Alliance of St. Lucie County, Inc., and Treasure Coast Environmental Defense Fund, Inc., are two environmental organizations that challenge the FHWA’s selected alternative. They claim that the FHWA abused its discretion in not selecting their proffered alternative that, when built with a spliced-beam construction, would avoid all use of § 4(f) lands. After examining this alternative, the FHWA determined that spliced-beam construction would cause significantly greater harm to non-§ 4(f) wetland areas and, therefore, deemed the spliced-beam construction “imprudent.” It also concluded that Appellants’ favored path was imprudent because it would cause “severe social impacts.” That path would require the construction of a new six-lane roadway running diagonally through an established residential neighborhood, which would result in residential and commercial relocations, would create substantial visual and noise impacts, would require the relocation of a retirement community’s access road, and would have the potential to affect neighborhoods with a higher than average number of minority households. Ultimately, the FHWA rejected Appellants’ favored alternative as “imprudent.” Appellants now claim that these determinations were arbitrary and capricious.

We recognize that § 4(f) sets a high bar that an agency must clear before it may approve a project that affects any § 4(f) lands. Here, however, the FHWA cleared that bar. “[Sjevere and immitigable social impacts” associated with Appellants’ preferred alternative would be sustained in order to avoid the use of barely two acres of parkland in parks with nearly 10,000 acres in total. What’s more, the FHWA worked with federal, state, and local agencies to develop ambitious mitigation plans that include the addition of nearly 110 acres to the affected parks. The FHWA was thorough and careful in its analysis and thoughtful in its determination, and we can discern neither an arbitrary or capricious action nor an abuse of discretion. Accordingly, we affirm.

I.

A.

The City of Port St. Lucie, some one. hundred and fifteen miles north of Miami, has grown rapidly in the past twenty-five years, nearly tripling in population from about 56,000 residents in 1990 to about 164,000 residents in 2010. The best predictions are that its population will exceed 225,000 by 2035. Currently, only two bridges within the City cross the North Fork St. Lucie River: the bridge at Port St. Lucie Boulevard and the bridge at Prima Vista Boulevard. Those bridges link the communities on the east and west sides of the river and provide the only means of east-west emergency evacuation in case of a natural disaster like a hurricane for residents east of the NFSLR. The existing traffic crossing those two bridges now well exceeds the bridges’ capacities.

Indeed, the City recognized the need for a third crossing of the NFSLR as early as 1980, and it was determined that merely widening the two existing bridges would not provide the necessary traffic relief. The general location for the new crossing was set between the two existing bridges, and in June 2008 the City conducted a study to identify an appropriate corridor for the bridge (the “Corridor Report”). After consulting advisory groups and the Federal Highway Administration, the City concluded that Corridor 5 (the “Crosstown Parkway Corridor”) was “the only location for a crossing that met the purpose and need for the project.”

After selecting the Crosstown Parkway Corridor for the project, the City conducted another report (the “Alternatives Report”) that examined ten alternative sites within Corridor 5: a Multimodal Alternative (which involved influencing travel behaviors and incentives), a Transportation System Management Alternative (which involved operational and intersection improvements), and eight build alternatives (which involved new crossings of the NFSLR). Both the Corridor Report and the Alternatives Report were reviewed by the Environmental Technical Advisory Team, which for this project included the FHWA, the U.S. Army Corps of Engineers (“Army Corps”), the U.S. Environmental Protection Agency (EPA), the U.S. National Marine Fisheries Service (NMFS), the U.S. Fish and Wildlife Service (FWS), the U.S. Coast Guard (USCG), the South Florida Water Management District (SFWMD), the Florida Department of Environmental Protection (FDEP), the Florida Fish and Wildlife Conservation Commission (FWC), the Florida Department of Economic Opportunity, the Florida Department of State, the Miccosukee Tribe, the Natural Resources Conservation Service, and the St. Lucie Transportation Planning Organization (TPO). The reports were also posted in the FDOT’s online Environmental Screening Tool. No comments were submitted on the reports, which were accepted by the FHWA on March 24, 2009. The City determined that the Multimodal Alternative, the Transportation System Management Alternative, and two of the eight build alternatives did not meet the project’s purpose and need. The FHWA reviewed the City’s reports and concluded that, “due to the sensitive social and environmental character of the project area and to ensure a comprehensive comparison and evaluation of alternatives, the remaining six build alternatives would be carried forward as potential viable alternatives for evaluation.” The six build alternatives are depicted below in Figure 1.

Figure 1. Project Build Alternatives

The FHWA, as the lead federal agency, then began preparing an Environmental Impact Statement (EIS), as it was required to do by the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), codified at 42 U.S.C. § 4321 et seq., and which was to be conducted by the City. In compiling the Draft EIS, the City considered obvious concerns, including social and economic impacts, physical-resource impacts, visual impacts, natural-resource impacts, and cumulative impacts associated with the alternatives. An analysis under § 4(f) of the Department of Transportation A.ct, Pub. L. No. 89-670, 80 Stat. 981, 934 (1966), codified as amended at 49 U.S.C. § 303(b)-(c), was also mandated, because three properties within the project area — the North Fork St. Lucie River Aquatic Preserve (AP), the Savannas Preserve State Park (SPSP), and Kiwanis Park — are “park[s], recreation area[s], wildlife and waterfowl refuge[s], or historic sitefs]” that are protected under § 4(f). 49 U.S.C. § 303(c). These analyses were compiled into a Draft EIS that the FHWA approved and made publicly available on July 1, 2011. The § 4(f) properties in relation to the build alternatives are depicted below in Figure 2.

Figure 2. Section 4(f) Properties within the Project Area

As the project sponsor, the City was tasked with the responsibility of selecting a Locally Preferred Alternative (LPA). On November 17, 2011, after a lengthy evaluation process, the City, the FDOT, and the TPO selected build Alternative 1C as the LPA. On January 23, 2012, the Port St. Lucie City Council adopted Alternative 1C as the LPA. On July 16, 2012, the FDOT wrote to the FHWA to formally request that it identify Alternative 1C as the preferred alternative, and on July 30, 2012, the FHWA concurred in the selection of Alternative 1C.

The FHWA then revised the Draft Environmental Impact Statement into a Final Environmental Impact Statement that was issued in June 2013 and was approved for public circulation on November 14, 2018. The Final EIS was subsequently incorporated into the FHWA’s final Record of Decision. The Final EIS recounted the considerable efforts taken by the City and the FDOT to select an LPA and restated the analyses that had previously been reported in the Corridor Report, the Alternatives Report, and the Draft EIS. It analyzed each build alternative carefully, and it also considered different methods of bridge construction. While one method— spliced-beam construction — would have resulted in Appellants’ favored Alternative 6A avoiding all use of § 4(f) land, the FHWA determined that spliced-beam construction was imprudent due to its substantially larger impact on non-§ 4(f) wetland habitats.

The FHWA concluded that each build alternative used some § 4(f) land and, therefore, that no feasible and prudent avoidance alternatives existed. Notably, Appellants’ favored Alternative 6A was not an avoidance alternative because it would use 0.01 acres of the Aquatic Preserve through the placement of piers in the riverbed. It was also deemed imprudent due to its “severe social impacts.” Although Alternative 6A would swing far to the north to avoid running through the Savannas Preserve State Park, its northerly route would require constructing a new six-lane roadway that would run diagonally through an established residential area where no road currently exists. The FHWA concluded that the new road’s negative impacts on community cohesion and local mobility were significant enough to render this alternative imprudent.

The Federal Highway Administration then considered various alternatives to determine which one resulted in the least overall harm. Based on its own analyses and on the reports generated by the City, and after coordination with the public, stakeholders, and regulatory and cooperating agencies including the FDOT, the FDEP, and the TPO, the FHWA eliminated four of the six build alternatives, including Alternative 6A, “due to the magnitude of their impacts to non-Section 4(f) resources after reasonable mitigation.” The FHWA then concluded that, of the remaining two options, Alternative 1C was the option with the least overall harm to § 4(f) lands. Although Alternative 1C would use 0.02 acres of the AP and 2.14 acres of the SPSP after mitigation, the FHWA concluded that it had “the least overall net harm” because “[i]t ha[d] fewer social impacts than any other build alternative, it ha[d] the least number of residential relo-cations, and it require[d] no business relo-cations.”

Following the selection of the Preferred Alternative, additional avoidance and mitigation efforts were developed in coordination with the Army Corps, the EPA, the NMFS, the SFWMD, the FDEP, and the FWS. Together, the agencies developed a Proprietary Mitigation Plan that offered compensatory mitigation for obtaining an easement to cross state-owned lands and a Regulatory Mitigation Plan that focused on compensating for unavoidable impacts to natural resources.

These plans included general efforts to reduce the impact on § 4(f) lands, such as reducing the width of the typical bridge section from 143 feet to 103 feet, which decreased the use of the SPSP by 0.07 acres (to 2.14 acres). They also included remedial efforts, such as water-quality improvement projects, rehabilitation of riverbed land, and the addition of 108.55 acres of land to the SPSP. The plans also included substantial improvements to the Halpatiokee Canoe and Nature Trail, because Alternative 1C would block access to the head of the trail. The FHWA and the Florida Department of Environmental Protection agreed on a mitigation plan that would relocate the trail access point approximately 1,000 feet to the south of its present location. In addition, the plan included improvements to and maintenance of the currently unimproved trails that pass through floodplain wetlands and are inundated or flooded for most of the year. The FDEP agreed that these plans would compensate fully for the impacts of Alternative 1C and indeed would provide substantial benefits to the SPSP by increasing the park by 108.55 acres. The FDEP also entered into a Memorandum of Understanding with the City stating that the City would provide the listed mitigation efforts in exchange for an easement to cross the North Fork St. Lucie River.

Alternative 1C was officially designated the “Preferred Alternative” in the FHWA’s final Record of Decision that was signed on February 24, 2014. In that decision, the FHWA concluded that “unique or unusual factors are involved in the use of alternatives that avoid Section 4(f) properties, and the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.” There were no feasible and prudent alternatives to using land from the AP and the SPSP, and the Preferred Alternative — Alternative 1C — “ha[d] the least net harm to Section 4(f) resources.” Final agency approval was thus given to Alternative 1C.

B.

Conservation Alliance of St. Lucie County (“Conservation Alliance”) is a nonprofit corporation whose mission is “to protect the water, soil, air, native flora and fauna upon which all the Earth’s creatures depend on for survival.” Many of its members regularly visit the Halpatiokee Trail to hike, sightsee, and take pictures. Treasure Coast Environmental Defense Fund, Inc., also known as the Indian Riverkeeper, is a nonprofit whose mission is “to protect and restore the waters of North America’s most diverse estuary, the Indian River Lagoon, its tributaries, fisheries and habitats.” Its members regularly use the AP, the SPSP, and the Halpatiokee Trail for recreational purposes.

On May 12, 2014, Conservation Alliance and Indian Riverkeeper (hereinafter collectively referred to as “Conservation Alliance”) filed a complaint in the United States District Court for the Southern District of Florida against the United States Department of Transportation (DOT), DOT Secretary Anthony Foxx,'the Federal Highway Administration, FHWA Administrator Victor Mendez, and FHWA Florida Division Administrator James Christian (hereinafter collectively referred to as the FHWA), seeking declaratory and injunctive relief. Specifically, Conservation Alliance alleged that the FHWA had arbitrarily and capriciously failed to identify Alternative 6A as a feasible and prudent alternative to Alternative 1C. It also claimed that, if constructed using a spliced-beam bridge construction, “Alternative 6A Spliced” would completely avoid the use of § 4(f) properties and thus should have been selected over Alternative 1C.

Conservation Alliance moved for summary judgment on March 16, 2015, and the FHWA cross-moved for summary judgment on May 12, 2015. In the interim, the City of Port St. Lucie moved to intervene in the case; that motion was denied. Instead, the City participated as an amicus curiae supporting the FHWA’s motion for summary judgment. A hearing on the motions for summary judgment was held on October 6, 2015, and on November 5, 2015, the district court granted the FHWA’s motion and denied Conservation Alliance’s motion. The district court reasoned that the FHWA “acted within the scope of its authority and reasonably concluded that neither alternative 6A or 6A with a spliced beam construction method was a prudent alternative.” Further, the FHWA’s “ultimate conclusion that Alternative 1C [would] cause the least overall harm [was] not arbitrary and capricious.” Because the court could “discern no clear error in judgment,” final summary judgment was entered for the FHWA.

Conservation Alliance timely appealed.

II.

‘We review a grant of summary judgment de novo and apply the same legal standards as the district court.” Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012). “When confronted with claims brought under the [Administrative Procedure Act], we may only set aside agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). “This standard is exceedingly deferential.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quotation and alteration omitted). In order to determine whether the agency’s decision was arbitrary and capricious, we “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Black Warrior Biverkeeper, Inc. v. U.S. Army Corps of Engineers, 833 F.3d 1274, 1285 (11th Cir. 2016) (“Our inquiry is limited by law to whether the agency’s decision was based on a consideration of the relevant factors and, ultimately, whether it made a clear error of judgment.”). This inquiry is “searching and careful, [but] the ultimate standard of review is a narrow one;” Overton Park, 401 U.S. at 416, 91 S.Ct. 814.

In reviewing the FHWA’s actions, our focus is “on the administrative record, not the district court’s opinion.” Citizens for Smart Growth, 669 F.3d at 1216. As a result, “we need accord no particular deference to the district court’s conclusions,” and “[w]hile the Secretary’s decision is entitled to a presumption of regularity, that presumption does not ‘shield his action from a thorough, probing, in-depth review.’ ” Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 714 (11th Cir. 1985) (quoting Overton Park, 401 U.S. at 415, 91 S.Ct. 814). But “[although the judicial inquiry should be penetrating, the court is not empowered to substitute its judgment for that of the Secretary.” Id

Section 4(f) of the Department of Transportation Act and § 138 of the Federal-Aid Highway Act, Pub. L. No. 89-575, 80 Stat. 771 (1966), codified as amended at 23 U.S.C. § 138, “are clear and specific directives.” Overton Park, 401 U.S. at 411, 91 S.Ct. 814. Together, they provide prescriptions for the construction of federally funded roads and highways through public lands. In particular, § 4(f) of the Department of Transportation Act “evidences Congresses] response to growing public concern over the preservation of our nation’s parklands, recreation areas, wildlife and waterfowl refuges, and historic sites (also referred to as section 4(f) properties).” Druid Hills, 772 F.2d at 713-14. By enacting § 4(f), “Congress determined that section 4(f) properties should be accorded paramount consideration in connection with all federally financed transportation projects.” Id. at 714. The legislators enacted so high a bar because

in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible.... [T]here will always be a smaller outlay required from the public purse when parkland is used since the public already owns the land and there will be no need to pay for right-Of-way. And since people do not live or work in parks, if a highway is built on parkland no one will have to leave his home or give up his business.

Overton Park, 401 U.S. at 411-12, 91 S.Ct. 814 (footnote omitted).

Section 4(f) is codified at 49 U.S.C. § 303(c). Regarding the approval of new programs and projects, it says:

[T]he Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if—
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

49 U.S.C. § 303(c); see also 23 U.S.C. § 138(a). The Supreme Court has recognized that the language of § 4(f) is “a plain and explicit bar to the use of federal funds for construction of highways through parks — only the most unusual situations are exempted.” Overton Park, 401 U.S. at 411, 91 S.Ct. 814. We must, therefore, put a thumb on the scale in favor of alternatives that avoid § 4(f) lands. In order to do so, this Court has developed a three-part test to review an agency’s compliance with the statute:

First, we ask whether the Secretary acted within the scope of his authority: did he construe his authority to approve projects to be limited to situations where no feasible and prudent alternatives to the use of 4(f) property existed, and could he have reasonably believed that no such alternatives existed? Second, we inquire whether the Secretary’s ultimate decision was arbitrary, capricious, or an abuse of discretion. Third, we ask if the Secretary followed the necessary procedural requirements.

Citizens for Smart Growth, 669 F.3d at 1216 (citations omitted). Compliance with procedural requirements was not raised in either party’s brief; only the first two inquiries are raised in this appeal.

A.

We begin our analysis, then, with the FHWA’s unambiguous determination that there were no feasible and prudent alternatives to the use of § 4(f) lands. “Section 4(f)(1) requires that the Secretary must make a finding that no feasible or prudent alternatives to the use of Section 4(f) lands exist.” Id. When analyzing avoidance alternatives under § 4(f)(1), “the Secretary need not consider options that impact Section 4(f) lands because ‘[a]n alternate route that also impacts upon parks and historic sites is not an alternative to the use of such property.’” Id. (citation omitted).

Regulations promulgated by the Secretary of Transportation define a “feasible and prudent avoidance alternative” as one that “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.” 23 C.F.R. § 774.17. More specifically, “[a]n alternative is not feasible if it cannot be built as a matter of sound engineering judgment.” Id. 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 [ ](i) through [ ](v) of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.

1⅛

In this case, the Final Environmental Impact Statement candidly acknowledged that “all build alternatives, including the Preferred Alternative, use at least one Section 4(f) property; therefore, no feasible and prudent avoidance alternative exists.” In making that determination, the Final EIS included a § 4(f) analysis with an extensive discussion of avoidance alternatives for both the SPSP and the AP. The FHWA’s determination that no feasible and prudent avoidance alternatives existed included the rejection of Appellants’ favored Alternative 6A Spliced as imprudent. Although this alternative was feasible, it was rejected for two distinct reasons: first, because spliced-beam construction was an imprudent construction method for the project; and second, because the path that Alternative 6A would follow was imprudent.

The Final EIS carefully considered different methods of construction and the impact they would have on § 4(f) lands. Pile-bent construction, which involves the installation of a series of piles using a top-down construction method, would require the placement of piers in the riverbed — thus using land within the AP. Spliced-beam construction, which uses •multiple prestressed concrete beams to span longer lengths, does not require piers in the riverbed but would require placing footings in the wetlands on the banks of the river that are fifteen times greater than the supports required for pile-bent construction. Using spliced-beam construction would allow Alternative 6A to completely span the AP and thus avoid § 4(f) land but, on account of the larger footings, it would use more than 67 times as much wetland acreage as pile-bent construction (0.1012 acres versus 0.0015 acres). The FHWA’s preferred Alternative 1C could likewise avoid using the AP if built with spliced-beam construction, but it would use 34 times as much adjacent wetland acreage as pile-bent construction (0.5188 acres versus 0.0154 acres). Notably, both the Florida Department of Environmental Protection — the agency with jurisdiction over the AP and the SPSP — and the South Florida Water Management District “expressed a preference for piers in the AP over additional impacts to any adjacent wetlands.” The agencies’ preference for piers in the AP, combined with the fact that the overall impact on adjacent wetland habitats was so much greater with spliced-beam construction, was sufficient reason to deem that construction method imprudent. This conclusion was neither arbitrary nor capricious.

Moreover, Alternative 6A was ultimately rejected as imprudent with any construction because it would have “severe social impacts on both sides of the NFSLR.” In considering the various alternatives, the § 4(f) analysis examined six build alternatives as well as several alternatives that would avoid a new crossing of the NFSLR, thereby avoiding the AP. The § 4(f) analysis cross-referenced other sections of the Final EIS that discussed the City’s evaluation process. Notably, this process included a scoring system that was designed by the FHWA, the City, and the FDOT. The system included five categories, each with different point totals reflecting their weight in the analysis: (1) meeting the project purpose and need (0-20 points); (2) social and community impacts (0-10 points); (8) natural environment impacts (0-10 points); (4) physical impacts (0-5 points); and (5) project cost (0-5 points). Scoring was done first by an independent team of consultants and then by a panel of officials from the City, the FDOT, and the TPO. Alternative 1C received the highest score on both rounds — ¾ and then 3⅜0— while Alternative 6A received the second-highest scores — ¾ and then 3%o. This thorough scoring contributed to the City’s selection of Alternative 1C as the LPA.

The FHWA’s concerns with Alternative 6A stemmed from the route’s construction of a new six-lane highway through an established residential neighborhood. As a result of the new road, Alternative 6A would require the second-highest commercial relocations. It would result in the highest number of properties with noise impacts that could not be benefited by a noise wall and would create a “substantial visual impact west of the NFSLR.” In fact, it would diagonally bisect neighborhood streets that are laid out on a grid system, thus creating substantial numbers of dead ends, cul-de-sacs, redirected roads, and continuity cuts. It was also the only alternative with the “potential for affecting neighborhoods with a higher than average number of minority households.” Of the residential relocations that Alternative 6A would require, 36 percent would be minority households — the highest percentage of all build alternatives. Alternative 6A would also require relocation of the access road into the La Buona Vita retirement community, which “would change traffic flows within the community, increasing noise and visual impacts.” This analysis yielded sound reasons for the FHWA to doubt the prudency of Alternative 6A. Under 28 C.F.R. § 774.17, an alternative is not prudent if it “involves multiple factors ... that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.” Noting that the “series of negative impacts” that were detailed “would have a collective adverse social impact to the neighborhoods on both sides of the NFSLR,” the FHWA found Alternative 6A to be imprudent “even if design and construction issues were resolved.”

Appellants nevertheless claim that the FHWA abused its discretion because the record did not establish that the cost or community disruption resulting from Alternative 6A “could possibly or logically rise to the level of ‘extraordinary magnitude’ and ‘unique problems’ as required to overcome the Overton Park bar.” Based on the analysis we have detailed, we disagree — the FHWA acted well within its discretion in concluding that the cumulative harms rendered Alternative 6A imprudent. And to the extent that Appellants suggest that Overton Park’s standard replaced or is different from the prudence standard found in § 4(f), that argument is not supported by Overton Park itself. While Overton Park recognized that “protection of parkland [is] to be given paramount importance,” it also acknowledged that “Congress clearly did not intend that cost and disruption of the community were to be ignored.” Overton Park, 401 U.S. at 412-13, 91 S.Ct. 814. See also, e.g., Safeguarding the Historic Hanscom Area’s Irreplaceable Resources, Inc. v. Fed. Aviation Admin., 651 F.3d 202, 208 (1st Cir. 2011) (“The Court’s mention of ‘truly unusual,’ ‘extraordinary,’ and ‘unique’ circumstances was intended as a gloss on the application of section 4(f) in a particular type of situation. Those descriptive terms were never meant to displace the statutory directive that the agency determine whether an alternative is ‘prudent.’”); Eagle Found., Inc. v. Dole, 813 F.2d 798, 804-05 (7th Cir. 1987) (“Overton Park was being emphatic, not substituting ‘unique’ for ‘prudent’ in the text of § 4(f).”).

Moreover, the fact that the FHWA did not expressly use the terms “extraordinary magnitude” or “unique problems” does not render its conclusions arbitrary or capricious. In Citizens for Smart Growth, we concluded that an agency’s thorough and detailed explanations “will not be found lacking simply because they did not include the terms ‘extraordinary’ or ‘unique.’ ” Citizens for Smart Growth, 669 F.3d at 1217. We are not alone in this conclusion. See, e.g., Comm. to Preserve Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1550-51 (10th Cir. 1993) (“The mechanical use of such language in the supporting documents is unrelated to the documents’ substantive merit.”); Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159, 162 (4th Cir. 1990) (“[T]he fact that the Secretary did not use the terms ‘unique’ and ‘extraordinary’ does not compel a finding that he did not comply with section 4(f) and the dictates of Over-ton Park.”); Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir. 1982) (“Whether or not the reports and studies use the ‘magic’ terminology, there has been a reasonable and thorough review of a voluminous record.”). In this case, the FHWA’s analysis was neither arbitrary nor capricious. It fell well within the FHWA’s discretion to determine that neither Alternative 6A nor Alternative 6A Spliced was a feasible and prudent alternative to the use of § 4(f) lands in the face of the substantial adverse impact.

B.

Having concluded that the FHWA acted within the scope of its authority in deciding that no feasible or prudent avoidance' alternatives, existed, we are required to examine whether the FHWA’s ultimate selection of Alternative 1C as the least-harm alternative was arbitrary, capricious, or an abuse of discretion. See Citizens for Smart Growth, 669 F.3d at 1216. Section 4(f)(2) requires that, if a determination is made that there is no feasible or prudent alternative, the project must include “all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c)(2).

Regulations promulgated by the Secretary of Transportation clarify that “[a]ll possible planning means that all reasonable measures identified in the Section 4(f) evaluation to minimize harm or mitigate for adverse impacts and effects must be included in the project.” 23 C.F.R. § 774.17. For cases involving “public parks, recreation areas, and wildlife and waterfowl refuges,” such measures may include, inter alia, “design modifications or design goals; replacement of land or facilities of comparable value and function; or monetary compensation to enhance the remaining property or to mitigate the adverse impacts of the project in other ways.” Id. To evaluate the reasonableness of possible remedial measures, the agency must consider the preservation purpose of the statute and:

(i) The views of the official(s) with jurisdiction over the Section 4(f) property;
(ii) Whether the cost of the measures is a reasonable public expenditure in light of the adverse impacts of the project on the Section 4(f) property and the benefits of the measure to the property, ... and
(iii) Any impacts or benefits of the measures to communities or environmental. resources outside of the Section 4(f) property.

Id. Notably, “[a]ll possible planning does not require analysis of feasible and prudent avoidance alternatives, since such analysis will have already occurred in the context of searching for feasible and prudent alternatives that avoid Section 4(f) properties altogether.” Id

Under the Secretary of Transportation’s regulations, the option that does the “least possible harm” is determined by balancing the following factors:

(i) The ability to mitigate adverse impacts to each Section 4(f) property (including any measures that result in benefits to the property);
(ii) The relative severity of the remaining harm, after mitigation, to the protected activities, attributes, or features that qualify each Section 4(f) property for protection;
(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 4(f); and
(vii) Substantial differences in costs among the alternatives.

23 C.F.R. § 774.3(c)(1). This is “a simple balancing process which totals the harm caused by each alternate route to section 4(f) areas and selects the option which does the least harm.” Druid Hills, 772 F.2d at 716. Unlike the § 4(f)(1) analysis, “the 4(f)(2) analysis requires the Secretary to consider alternatives that would use 4(f) lands.” Citizens for Smart Growth, 669 F.3d at 1216. As this Court has previously recognized, § 4(f)(2) means that “[i]f the route does not minimize harm, it need not be selected. The Secretary is free to choose among alternatives which cause substantially equal damage to parks or historic sites.” Druid Hills, 772 F.2d at 716.

The FHWA was not arbitrary or capricious in its designation of Alternative 1C as the least-harmful alternative. The § 4(f) evaluation in the Final Environmental Impact Statement included a least-harm analysis as required by § 4(f)(2). This section again relied on other portions of the Final EIS, and it measured the harms associated with the various build alternatives against the seven factors drawn from 23 C.F.R. § 774.3(c)(1). First, it considered the ability to mitigate adverse impacts to each § 4(f) resource. All of the alternatives were equal on this point, because the mitigation plan provided for the addition of 108.55 acres to the SPSP that would more than counterbalance the acreage used by any alternative. Second, it considered the relative severity of the remaining harm to the protected areas after mitigation. Again, all of the alternatives were equal, because the mitigation plan would result in a net improvement to natural resources. Third, it considered the relative significance of each § 4(f) property — all of the affected properties are important natural communities that provide recreational opportunities, and the AP is additionally an important fish habitat. Fourth, it considered the views of the officials with jurisdiction over the AP and the SPSP — in this case, the Florida Department of Environmental Protection, which “agreed that the mitigation plan compensates fully for the impacts and provides substantial benefits to the SPSP.” Fifth, it considered the. degree to which each alternative would meet the project’s purpose and need and concluded that Alternative 1C met the project’s purpose and need more efficaciously than any other alternative.

The least-harm analysis devoted the most time to the sixth factor, the magnitude of adverse impacts from each build alternative on non-§ 4(f) properties after reasonable mitigation. The report concluded that Alternative 1C would result in “considerably less overall non-Section 4(f) impacts compared with all other build alternatives,” because it would not pass near or through any existing neighborhoods on the east side of the river and would be aligned with existing streets on the west side of the river. While it was the only alternative that would affect the Halpa-tiokee Trail, the FDEP endorsed a mitigation plan that would relocate the trail entrance and improve the trails, which are “unimproved” or “inundated/flooded most of the year.” In sharp contrast, Alternative 6A “would result in the most harm to non-Section 4(f) resources compared with all other build alternatives.” As we have already detailed at some length, it would have “the most severe and immitigable social impacts to communities on both sides of the NFSLR” because it would bisect an established residential area, thereby creating substantial adverse impacts on community cohesion and local mobility as well as substantial visual and noise impacts. Alternative 6A was also the only alternative that “ha[d] the potential for affecting neighborhoods with a higher than average number of minority households.” Finally, on the seventh factor, costs were determined to be substantially similar for all of the alternatives. Based on these considerations, Alternatives IF, 2D, 6A, and 6B were eliminated from consideration, leaving only Alternatives 2A and 1C. Alternative 1C was ultimately selected as the least-harm alternative.

This analysis was careful and thoughtful rather than arbitrary and capricious. Section 4(f)(2) does not require the FHWA to avoid parkland at all cost, and the agency could reasonably determine that the severe social costs associated with adopting Alternative 6A far outweigh the social costs of Alternative 1C. While it is true that impacts to § 4(f) resources are greater for Alternative 1C after mitigation — 2.16 total acres compared to Alternative 6A’s 0.01 acre — a parcel of 2.14 acres in the SPSP constitutes less than 0.03 percent of the SPSP’s 7,186 acres, and a parcel of 0.02 acres in the AP constitutes less than 0.00068 percent of the AP’s 2,972 acres. And in exchange for using SPSP land, the mitigation plan includes the acquisition of 108.55 new acres (1.5 percent of total acreage) of wetland area for the SPSP. Moreover, the FDEP — the agency with jurisdiction over the AP and the SPSP — worked with the FHWA to evaluate the effects of the alternatives and to design the mitigation plan, which it agrees will fully compensate for any harm done by Alternative 1C. When the “[cjollective operational, visual, noise, cohesion, mobility, [] access impacts to neighborhoods,” and impacts on non-§ 4(f) lands are taken into account, it was reasonable for the FHWA to conclude that Alternative 6A would pose more harms than Alternative 1C. The FHWA’s least-harm analysis was sufficient, its rationale was clearly explained, and its conclusions were reasonable, rather than arbitrary or capricious.

Finally, as required by § 4(f)(2), the FHWA’s planning included careful consideration of reasonable measures to mitigate harm. The Final EIS’s § 4(f) evaluation included an eight-page section titled “Measures to Minimize Harm.” In it, harm-minimization efforts were analyzed with respect to each build alternative — not just for Alternative 1C. This section first discussed harm-minimization strategies that could be implemented for all build alternatives, which included, inter alia, a reduction in bridge width over natural habitats, use of a top-down construction method, placement of bridge piers to avoid restricting water movement, use of storm-water management systems, use of retaining walls, use of noise-minimization techniques, and use of specialized equipment. The harm-minimization section then considered measures to minimize harm for each individual build alternative. The spliced-beam construction method was analyzed as a potential minimization measure for Alternatives 1C and 6A. It was, again, rejected because “[t]he amount of land used for spliced beam support structures would be far greater than pile bent support structures,” causing harm to neighboring wetland habitats.

As part of its planning, the FHWA worked with the City, the Army Corps, the EPA, the NMFS, the SFWMD, and the FDEP to develop a compensatory mitigation strategy that includes two separate focal points. The Proprietary Mitigation Plan would provide compensatory mitigation for obtaining an easement to cross state-owned lands, while the Regulatory Mitigation Plan would provide compensatory mitigation for “unavoidable direct and indirect impacts to wetlands ..., [sovereignty submerged lands], and navigable and non-navigable waters, as required under federal and state regulations.” Collectively, these plans include four water-quality improvement projects, the addition of nearly 110 acres to the affected parkland, rehabilitation of trails and other recreational opportunities, and the maintenance of all acquired lands by the FDEP. The beneficial effects of these efforts well exceed the potential negative impacts of Alternative 1C, and the care with which they were considered evinces a careful and thorough analysis.

We recognize — as did the FHWA — that § 4(f) requires a thumb on the scale in favor of alternatives that avoid the use of § 4(f) lands. On this ample record, however, we conclude that the FHWA was not arbitrary or capricious in choosing Alternative 1C. The FHWA made its calculus carefully, giving thoughtful consideration to a wide variety of factors, and it worked with many agencies, even those that once opposed the project, to develop remediation plans that mitigate harms to the affected areas. Accordingly, we AFFIRM the district court’s grant of final summary judgment to the FHWA.

AFFIRMED.

      . The AP includes 2,972 acres of surface water area along sixteen river miles of the river. Build alternatives that require piers in the AP thus use protected land, because the bases of the piers use land in the AP. The SPSP includes three separate parcels of land: the original SPSP located east of U.S. 1, the former NFSLR Buffer Preserve located west of U.S. 1, and the Miller Tract located west of Fort Pierce. Together, these areas total 7,186 acres. Kiwanis Park is a neighborhood park that is owned and maintained by the City. Neither the FHWA’s preferred alternative nor Appellants’ proffered alternative uses land in the Kiwanis Park.


source: Caselaw Access Project

author: CHAPPELL, District Judge:

license: Public Domain

text:
    GREAT AMERICAN ALLIANCE INSURANCE COMPANY, Plaintiff-Appellee, v. Ulysses ANDERSON, Defendant-Appellant.
    No. 15-12540
    United States Court of Appeals, Eleventh Circuit.
    (February 8, 2017)

      Michael J. Athans, Gilson Athans, PC, Atlanta, GA, Karen Rebecca Dunbar, Casey Gilson, PC, Atlanta, GA, for Plaintiff-Appellee.
    James Darren Summerville, The Sum-merville Firm, LLC, Atlanta, GA, Joseph R. Neal, Sr., Joseph R. Neal, PC, Augusta, GA, Steven J. Newton, Law Office of Steven J. Newton, PC, Atlanta, GA, for Defendant-Appellant.
    Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and CHAPPELL, District Judge.

       Honorable Sheri Polster Chappell, United States District Judge for the Middle District of Florida, sitting by designation.

   CHAPPELL, District Judge:

The appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer’s permission. After a jury found the driver liable and awarded the appellant one million dollars, the employer’s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user — and thus not covered under the applicable insurance policies — because he broke internal company policies.

Except where specifically excluded, the general purpose of an insurance policy is to provide coverage. The Georgia Supreme Court has held that inquiries into permissive use should extend only to whether a vehicle is used for an approved purpose. See Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (Ga. 1968). A subsequent decision by the Georgia Court of Appeals, however, held that a company’s internal rules can govern the scope of permissive use, and that violations thereof can negate an individual’s status as an insured. See Barfield v. Royal Ins. Co. of Am. 228 Ga.App. 841, 492 S.E.2d 688 (Ga. Ct. App. 1997). Because the district court followed Barfield, and thereby narrowed the scope of permissive use beyond what was permitted by Strickland, we find that it erred. Therefore, we reverse and remand.

I. BACKGROUND

A. Factual Overview

In 1996, Looper Cabinet Co., Inc. (“LCC”), a Georgia company, hired Brian Hensley to perform services auxiliary to cabinet installation. In the years that followed, LCC permitted Hensley to drive its 2008 Chevrolet Silverado (the “Looper Vehicle”) for both work and personal purposes. In addition, LCC’s owner admitted that under the general permission granted to Hensley, he was allowed to drive the Looper Vehicle to and from his father’s lake house. Hensley exercised this privilege in early June of 2012, and stayed there for some time.

On June 10, 2012, Hensley drank four beers before driving the Looper Vehicle home from the lake house. While driving, he encountered Appellant-Ulysses Anderson, who approached the Looper Vehicle from behind on a motorcycle. The parties dispute the ensuing facts, but they agree that Anderson attempted to pass Hensley resulting in an accident that left Anderson severely injured.

Thereafter, Anderson sued Hensley and LCC, alleging that Hensley drove the Looper Vehicle while under the influence of alcohol and caused the accident. Although LCC was dropped as a defendant, a jury found Hensley liable and awarded Anderson approximately one million dollars in damages.

1. LCC Internal Policies

For two decades, LLC’s internal policies have banned alcoholic beverages on company property and prohibited employees under the influence of alcohol from working in the shop on and off the clock. LLC has also had a substance abuse policy that states, in pertinent part,

[a]n employee reporting to work visibly impaired will be deemed unable to properly perform required duties and will not be allowed to work. If, in the opinion of the supervisor, the employee is considered impaired, the employee will be sent home or to a medical facility by taxi or other safe transportation alternative — depending on the determination of the observed impairment and accompanied by the supervisor or another employee if necessary. A drug and/or alcohol test may be in order. An impaired employee will not be allowed to drive. Violating these policies may result in termination of employment.

The parties agree that Hensley had acknowledged these policies during his employment.

2. GAAIC Insurance Policies

Appellee-Great American Insurance Company (“GAAIC”) issued two insurance policies that covered the Looper Vehicle. The primary policy covered LCC as a named insured, as well as “anyone else while using with [its] permission a covered auto.... ” The umbrella policy also listed LCC as the named insured and covered “[a]ny person ... with respect to any ‘auto’ owned by [LCC], loaned to [it], or hired by [it] or on [its] behalf, and used by that person or organization with [its] permission.” Under the umbrella policy, GAA-IC would pay obligations imposed by law or assumed by the insured that exceeded the limits of the primary policy in the event of “ ‘bodily injury’ or ‘property damage’ that takes place[ ] or ‘personal injury’ ... arising from an offense committed.”

B. Procedural History

On May 5, 2014, GAAIC filed this action against Hensley and Anderson in the United States District Court for the Southern District of Georgia, seeking a declaration of its rights and responsibilities for the damages arising out of the car accident. Specifically, GAAIC sought a declaration that Hensley exceeded the scope of the permissive use granted by LCC at the time of the accident because he drove the Looper Vehicle while intoxicated. Alternatively, it sought a declaration that Hensley’s conduct fell under a policy-coverage exclusion. Finally, GAAIC sought a declaration that the language in its policies prevented the assessment of punitive damages awarded in the underlying trial.

At the close of discovery, GAAIC and Anderson each moved for summary judgment. The district court granted GAAIC’s motion, relying on Barfield to find that Hensley violated LCC’s internal policies by driving the Looper Vehicle while intoxicated, and, therefore, exceeded the scope of his permissive use at the time of the accident. As a result, the district court found that Hensley was not an insured at the time of the accident, and that GAAIC owed no duty to cover the damages awarded at the trial of the underlying action. Anderson now appeals.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment and draw “all reasonable inferences and review[ ] all evidence in light most favorable to the non-moving party.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary judgment is appropriate only if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Similarly, an issue is material if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

III. DISCUSSION

Anderson urges us to reverse the district court’s decision to grant summary judgment in GAAIC’s favor. He argues that the district court improperly deviated from the bright-line permissive use standard set forth by the Georgia Supreme Court in Strickland. GAAIC wants us to affirm the district court’s decision because it maintains that Bayfield, a decision from the Georgia Court of Appeals, controls the Eleventh Circuit’s' calculus and allows internal company rules to narrow the scope of an automobile’s permissive use. We thus must decide the scope of a permissive use clause under Georgia law.

For the purposes of insurance coverage, an individual using an automobile with the express permission of an insured is a permissive user. In the event of an accident, the permissive user is generally covered under the named insured’s insurance policy as a third-party' beneficiary. Once permission is given, whether liability coverage is provided to the third-party hinges on whether the individual exceeded the scope of permission granted by the owner.

Where, as here, an action is based on diversity, Georgia’s substantive law governs the interpretation of an insurance policy. SCI Liquidating Corp. v. Hartford Fire Ins. Co., 181 F.3d 1210, 1214 (11th Cir. 1999), certified question answered sub nom. SCI Liquidating Corp. v. Hartford Ins. Co., 272 Ga. 293, 526 S.E.2d 555 (2000). In Georgia, insurance policies are interpreted by ordinary rules of contract construction. See Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 269 Ga. 326, 327, 498 S.E.2d 492, 494 (1998). Questions of contract construction are matters of law and are properly handled by the court. See Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 334, 380 S.E.2d 686, 687 (1989).

“To determine whether an insurer owes its insured a duty to defend a particular lawsuit, Georgia law directs us to compare the allegations of the complaint, as well as the facts supporting those allegations, against the provisions of the insurance contract.” Elan Pharm. Research Corp. v. Employers Ins. of Wausau, 144 F.3d 1372, 1375 (11th Cir. 1998); see also Great Am. Ins. Co. v. McKemie, 244 Ga. 84, 85-86, 259 S.E.2d 39, 41 (1979). An insurance policy is “considered as a whole and each provision is to be given effect and interpreted so as to harmonize with the others.” Boardman Petroleum, 269 Ga. at 328, 498 S.E.2d at 494.

Moreover, “[e]xelusions from coverage sought to be invoked must be strictly construed.” SCI Liquidating, 181 F.3d at 1214-15 (quoting Tifton Mach. Works, Inc. v. Colony Ins. Co., 224 Ga. App. 19, 20, 480 S.E.2d 37 (1996)). In this vein, all ambiguities as to policy exclusions are interpreted in favor of coverage because “the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” York Ins. Co. v. Williams Seafood of Albany, Inc., 223 F.3d 1253, 1255 (11th Cir. 2000), certified question answered, 273 Ga. 710, 544 S.E.2d 156 (2001).

In 1968, the Georgia Supreme Court issued its seminal decision on the scope of permissive use in the context of an employee’s violation of company policy. In Strickland, an insured company allowed its employee, Carter, to use a company vehicle to drive himself and coworkers to and from work. 224 Ga. at 488, 162 S.E.2d 421 at 423. The company also let Carter keep the vehicle overnight at his home. Id. Yet, the company strictly prohibited another employee, Williams, from driving the vehicle. Id. Despite that express prohibition, Carter let Williams drive the vehicle along the normal route to Carter’s home, and an accident ensued. The company’s insurer later filed suit seeking a declaration that it had no duty to defend Williams or Carter, or to pay any judgment entered against them. Id. at 487-88, 162 S.E.2d at 422.

The insurance policy’s permissive use provision provided coverage for the company and “any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” Id. at 488, 162 S.E.2d at 423. The Georgia Supreme Court found no distinction between the terms “actual use” and “use.” Id. at 489, 162 S.E.2d at 423-24. It noted, however, that the term “use” had two meanings— first, as it related to the operation of the vehicle, and second as to the purpose served by the vehicle. See id. Under that lens, the court held that a finding of permissive use under the policy only required permission for the purpose served by the vehicle, and that the operational aspects were unimportant. See id. at 492, 162 S.E.2d at 425. Pertinently, the court found

[t]he policy, among other things, insures against obligations arising from the negligent or unlawful operation of the described vehicle. Under appellee’s contention if the named insured permitted the use of the vehicle and at the same time prohibited its negligent or unlawful operation, it would defeat the very purpose of the policy. Therefore, the ‘actual use’ of the vehicle within the meaning of the policy cannot reasonably relate to the particular manner of its operation. At most it could relate only to whether or not permission to operate the vehicle had been given. And even this would have no application to the first permittee who had been given permission to use the vehicle for a particular purpose since such authorization necessarily implies permission to operate the vehicle. Furthermore, the policy provides: ‘The purposes for which the automobile is to be used are ‘business and pleasure.’ This indicates to us that the policy is concerned with the purpose to be served by the vehicle and not its operation. If the policy intended that ‘actual use’ included the operation of the vehicle, it could have stated so plainly.

Id. at 489-90,162 S.E.2d at 424.

As to Carter and Williams, the Georgia Supreme Court found that, even in scenarios where employees violated express prohibitions, insurers had been found liable “where the use to which the car was being put was within the scope of the initial permission and the first permittee was riding in the car or its operation by the second permittee was for his benefit or advantage.” Id. at 491-92, 162 S.E.2d at 424. Given the possibility that the vehicle’s progression to Carter’s home would have been in the scope of the permission originally granted by his employer, and to Carter’s advantage, the court held that there were genuine issues of material fact that precluded summary judgment on whether the company had expressly or impliedly granted permission to operate.the vehicle at the time of the accident. See id. at 492, 162 S.E.2d at 425.

Twenty-nine years later, a Georgia Court of Appeal broke with Strickland by finding' that a company’s internal rules could govern the scope of permissive use. In Barfield, an insurance company and its named insured brought an action seeking a declaration of their liability for damages arising from an accident involving the insured’s employee, who drove a company vehicle while intoxicated. 228 Ga.App. at 841-42, 492 S.E.2d at 690. The insurance policy covered the company and “anyone else while using with [the company’s] permission a covered auto [the company] owns.” Id. at 848, 492 S.E.2d at 690. The company also had an internal policy that prohibited “possession and consumption of alcoholic beverages ... in company vehicles.... ”/d

Tellingly, the appellate court failed to even mention Strickland in its opinion, finding that permissive use clauses in Georgia could be narrowed by “instructions, rules or regulations.” Id., 492 S.E.2d at 691. The court continued that “where a driver uses a vehicle with permission, but violates the scope of the permission granted by engaging in activity the named insured has expressly forbidden, the driver is not an ‘insured’ under the permissive use clause ... for any collision occurring during the driver’s unauthorized use.” Id. As such, the appellate court held, because the company “told [the driver] he could not drive the vehicle when he was drinking, his ’ use of the vehicle at a time he was admittedly under the influence of alcohol was unauthorized and nonpermissive.” Id.

We find Strickland and Barfield to be irreconcilable because they represent mutually exclusive premises. Strickland holds that the only inquiry relevant to determining the scope of a generic permissive use clause is whether a vehicle is used for an approved purpose. See 224 Ga. at 492, 162 S.E.2d at 425. In so doing, the Georgia Supreme Court found that where a vehicle is used for an approved purpose, an employee’s violations of explicit company policies do not foreclose status as a permissive user. See id. at 492, 162 S.E.2d at 425. This does not square with Barfield, which allowed an insurer to look beyond the purpose and to a company’s internal rules to discern the scope of permissive use. See 228 Ga.App. at 848, 492 S.E.2d at 690.

An assessment of the jurisprudence of Georgia reveals that Strickland has not been overruled. When interpreting matters of state law, we “must follow the decision of the state’s highest court....” Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982). Hence, the Strickland decision requires us to hold that Hensley did not exceed the scope of his permission, despite his intoxication. Notably, we are not alone in following this rule. See Scott v. Government Employees Insurance Co., 305 Ga.App. 153, 158, 700 S.E.2d 198, 202 (Ga. Ct. App. 2010) (“[t]he permission to use contained in [the] omnibus clause refers to the purpose for which the permission was given and not to the operation of the vehicle.”); see also Allstate Ins. Co. v. Spillers, 252 Ga.App. 26, 28, 555 S.E.2d 489, 491 (Ga. Ct. App. 2001) (“[T]he permission to use contained in [the] omnibus clause refers to the purpose for which [the] permission was given and not to the operation of the vehicle.”) (quoting Ga. Farm & Ins. Co. v. Allstate Ins. Co., 190 Ga.App. 593, 594, 379 S.E.2d 619, 620 (Ga. Ct. App. 1989)); Auto-Owners Ins. Co. v. Smith, 178 Ga.App. 420, 422, 343 S.E.2d 129, 131 (Ga. Ct. App. 1986) (“[T]he ‘actual use’ contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.”) (quoting Strickland, 162 S.E.2d at 425).

Turning to this appeal, the district court cited Strickland for the proposition that the scope of permissive use was limited “to whether or not permission to operate the vehicle had been given.” In the end, however, the court employed a Bar-field analysis. In doing so, it found that Hensley did not have permission to use the Looper Vehicle in violation of LCC’s company rules — namely, while intoxicated. Because Hensley was under the influence at the time of the accident, the court held he was not a covered insured. This interpretation of permissive use contravenes Strickland. See 224 Ga. at 492, 162 S.E.2d at 425.

Had the district court properly applied Strickland, its analysis would have been limited to whether LCC approved of the purpose for which Hensley was using the Looper Vehicle at the time of the accident. See id. Under the objective standard employed for determining permissive use, see Allstate Ins. Co. v. Spillers, 252 Ga.App. 26, 28, 555 S.E.2d 489, 491 (2001), the undisputed record shows that Hensley was permitted to drive the Looper Vehicle for the purpose it was used on the day of the accident — to drive home from his father’s lake house. As such, we find that Hensley is an insured for purposes of the underlying action.

Notwithstanding the Georgia Supreme Court’s clear precedent, GAAIC urges us to distinguish Strickland. It maintains that its policies contain different language than the corresponding policy in Strickland, and that Strickland involved a decision implicating the second permittee doctrine while the instant matter presents no such issue. These arguments are nonstarters.

Although the Strickland policy involved the phrase “actual use,” the court there found it to be functionally equivalent to the term “use.” 224 Ga. at 489, 162 S.E.2d at 423-424. The policies here also include the term “use” or variants thereof, and as such, they offer no meaningful difference to their counterpart in Strickland. To the extent that GAAIC argues that the Strickland policy differed because it included the term “purpose,” the actual phrase there extended coverage for “[t]he purposes ... [of] ‘business and pleasure.’ ” Id. at 490, 162 S.E.2d at 424. Although Strickland implied that the language was important in determining that the policy concerned the purpose, rather than the manner of operation, the court also narrowed its findings by holding that “[i]f the policy intended that ‘actual use’ included the operation of the vehicle, it could have stated so plainly.” Id. As it was in Strickland, so it is here. If GAAIC had intended to bar coverage for violations of LCC’s internal rules, it could have included such language in its policies to the extent permitted under Georgia law. Moreover, that Strickland addressed the second permittee doctrine is of no consequence here. Strickland defined the scope of permissive use to include only the purpose of a third-party’s use of a vehicle. And merely because that case involved an additional level of analysis as to whether the proffered purpose was satisfied by a second permittee does not alone distinguish this case. See, e.g., Scott, 700 S.E.2d at 202-03 (a first permittee case).

In conclusion, the purpose test set forth in Strickland controls our inquiry into permissive use. Because the district court extended its analysis further, we reverse. Although this opinion disposes of the question of permissive use, the district court did not decide GAAIC’s argument that the provisions of its policies preclude the punitive damages awarded in the underlying trial. Accordingly, we remand the proceedings for a decision on that issue.

REVERSED AND REMANDED.

      . Because the GAAIC policies contained only general permissive use clauses, it is inconsequential for purposes of coverage whether Hensley was violating LCC company rules at the time of the accident.

      . GAAIC also argues that Hensley is not an insured because he either expected or intended to injure Anderson at the time of the accident. Although the district court did not decide this issue, a review of the record reveals this argument to be meritless. Consequently, we summarily reject this argument on appeal.


author: ROYAL, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jason VOTROBEK, Roland Castellanos, Defendants-Appellants.
    No. 14-12790
    United States Court of Appeals, Eleventh Circuit.
    (February 13, 2017)

      Laurel Boatright, Gary Scott Hulsey, Cassandra J. Schansman, Lawrence R. Sommerfeld, George Jeffrey Viscomi, Assistant U.S. Attorney, Sally Yates, U.S. Attorney’s Office, Atlanta, GA, for Plaintiff-Appellee.
    Lawrence Jason Zimmerman, The Law Office of Lawrence Zimmerman, Atlanta, GA, for Defendant-Appellant Roland Cas-tellanos.
    Walter Michael Welsh, The Welsh Law Firm, Palmetto, GA, for Defendant-Appellant Jason Votrobek (Federal Prisoner: 62966-019).
    Before WILSON and JULIE CARNES, Circuit Judges, and ROYAL, District Judge.

         Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation.

   ROYAL, District Judge:

A jury convicted Appellants Jason Vo-trobek and Roland Castellanos of conspiring to distribute drugs, in violation of 21 U.S.C. § 846; conspiring to launder money, in violation of 18 U.S.C. § 1956(h); and substantive charges of money laundering and maintaining a place for unlawful drug distribution. The district court sentenced both to 180 months in confinement, followed by three years of supervised release. Appellants challenge their convictions. After careful review, we AFFIRM.

BACKGROUND

Appellants’ convictions center on their involvement in a “pill mill” business. Appellants learned how to operate a pill mill clinic from Zachary Rose, who owned and operated three clinics in Jacksonville, Florida. Indeed, Appellants met each other while working on the staff at one of these clinics, Jacksonville Pain and Urgent Care (Jacksonville Pain). However, once law enforcement began to investigate Rose’s Florida clinics in early 2010, Appellants left Jacksonville Pain and established their own clinic, Atlanta Medical Group (AMG) in Cartersville, Georgia. AMG soon hired Dr. James Chapman as its prescribing physician.

Appellants operated AMG in the fashion typical of pill mills. Generally, AMG patients would pay about $300 in cash for a cursory examination by Dr. Chapman, whose prescriptions for pain medications were processed by AMG’s in-house pharmacy. To pass drug tests, patients frequently brought balloons containing urine and bribed AMG staff. Security guards searched patients for weapons. Moreover, Appellants charged more for prescriptions than AMG’s books reflected and purchased luxury vehicles with the undocumented cash.

As is also typical of these operations, nearby tenants soon began to complain to AMG’s landlord that unkempt patients arrived before business hours in cars with out-of-state license plates and loitered in the parking lot. Local pharmacies refused to fill AMG’s prescriptions because the patients did not appear to be in any pain. In May 20Í0, after a traffic stop of four AMG patients carrying large amounts of prescription narcotics, the Drug Enforcement Administration (DEA) began investigating AMG.

Although Appellant Votrobek had left Florida to open AMG in Georgia, his involvement in Rose’s Florida clinics caught up with him. On April 20, 2012, in the Middle District of Florida, a Grand Jury indicted Votrobek for conspiracy to distribute Oxycodone and Alprazolam not for a legitimate medicál purpose and conspiracy to launder money. After a fifteen-day trial, however, a jury found Votrobek not guilty.

Votrobek’s respite from conviction was fleeting. Less than two months after his acquittal in Florida, on June 25, 2013, a Grand Jury in the Northern District of Georgia returned a thirty-two count indictment against Appellants Votrobek and Castellanos, as well as Dr. Chapman, regarding their involvement in AMG. Pertinent to this appeal, the indictment charged Appellants with conspiracy to distribute Oxycodone, Hydroeodone with Acetomino-phen (Lorcet), and Alprazolam (Xanax) for other than a legitimate medical purpose; conspiracy to launder money; and substantive counts of money laundering and maintaining a place for unlawful drug distribution.

After almost four weeks of trial, a jury convicted Appellants on all counts. The district court sentenced each to a total of 180 months in prison, followed by three years of supervised release. Additionally, each was required to pay $200,000 in fines and forfeit to the United States a monetary judgment in the amount of $8,975,308.

On appeal, Votrobek and Castellanos each raise two issues. Votrobek argues the district court (1) committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds, and (2) assuming the conspiracy charges were barred by Double Jeopardy, committed plain error by not dismissing his substantive convictions based on prejudicial spillover. Castellanos argues the district court (1) erred by refusing to hold an evidentia-ry hearing concerning the affidavits supporting the four wiretaps, and (2) abused its discretion by refusing to instruct the jury on the entrapment-by-estoppel defense. For the reasons set forth below, we affirm both convictions.

DISCUSSION

I. Double Jeopardy

Votrobek first argues his conspiracy charges in the Northern District of Georgia arose from the same conspiracy for which he was acquitted in the Middle District of Florida and thus are barred by the Double Jeopardy Clause. We disagree.

Because Votrobek failed to raise this argument below, he forfeited his right to a Double Jeopardy defense, and we review for plain error. United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc). Under this standard, an appellant must establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). If the appellant meets all three conditions, “an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

The Double Jeopardy Clause of the Fifth Amendment provides “[n]o person shall ... be subject for the same offen[s]e to be twice put in jeopardy of life or limb.” U.S. Const, amend V. Specifically, the Double Jeopardy Clause protects against (1) “a second prosecution for the same offense after acquittal”; (2) “a second prosecution for the same offense after conviction”; and (3) “multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (internal quotation marks omitted). The Clause, however, does not “forbid a second prosecution involving a violation of exactly the same law.” United States v. Maza, 983 F.2d 1004, 1011 (11th Cir. 1993). Accordingly, “[w]hether a defendant has committed the same offense twice is a factual question” requiring a “determination that the underlying facts that gave rise to the first prosecution are, or are not the sole basis for the second.” Id.

Thus, to determine whether Vo-trobek’s conviction violated Double Jeopardy, we must decide whether he committed two separate conspiracies in Florida and Georgia or only one. To do so, we consider five factors: “(1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place.” United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978). Using these factors, the government bears the burden of proving a separate conspiracy by a preponderance of the evidence. Maza, 983 F.2d at 1013. In this analysis, we are free to consider the record in addition to the indictments. Marable, 578 F.2d at 154; see also United States v. Benefield, 874 F.2d 1503, 1506 (11th Cir. 1989).

Applying the Marable factors to this case, we conclude the government has shown Votrobek committed two separate conspiracies, one in Florida and one in Georgia. First, the Florida and Georgia conspiracies did not overlap in time. A temporal gap between the end of one conspiracy and the beginning of another indicates separate conspiracies. See United States v. Sturman, 679 F.2d 840, 844 (11th Cir. 1982). Here, Votrobek ended his involvement in the Florida conspiracies in April 2010, one month before the Georgia conspiracies began.

Second, Votrobek’s different co-conspirators in Florida and Georgia indicate separate conspiracies. The only named participant the conspiracies had in common was Votrobek himself. As we have previously noted, the participation of a single common actor fails to establish the existence of a single conspiracy. See United States v. Nino, 967 F.2d 1508, 1511-12 (11th Cir. 1992) (citing Kotteakos v. United States, 328 U.S. 750, 754-55, 66 S.Ct. 1239, 1242-43, 90 L.Ed. 1557 (1946)). Indeed, the absence of co-conspirators charged in both indictments indicates “two distinct conspiracies.” Sturman, 679 F.2d at 843. Moreover, the linchpin of the Georgia conspiracy was Dr. James Chapman, whose participation allowed AMG to distribute controlled narcotics. Yet Dr. Chapman did not participate in the Florida conspiracy. The fact that certain patients patronized both the Florida and Georgia clinics is irrelevant because no patients were co-conspirators. We agree with the government that the evidence indicates Votrobek learned the pill mill business in Florida, then left to start AMG in Georgia with new co-conspirators.

Third, although the offenses charged in both indictments were almost identical, this factor is not controlling. We have previously explained “it is possible to have two different conspiracies to commit exactly the same kind of crime.” Nino, 967 F.2d at 1512. Accordingly, we have described this factor as “clearly” the least important to the Marable analysis. See Sturman, 679 F.2d at 843. Moreover, although both indictments alleged violations of 21 U.S.C. § 846 and 18 U.S.C. § 1956(h), the controlled substances alleged in each drug conspiracy differed somewhat. Whereas the Florida indictment alleged only Oxyco-done and Alprazolam (Xanax), the Georgia indictment also alleged Hydrocodone with Acetaminophen (Lorcet), indicating Votro-bek distributed an additional drug in Georgia.

Fourth, the Florida and Georgia conspiracies involved similar but different overt acts. Different overt acts indicate separate conspiracies. See United States v. Nyhuis, 8 F.3d 731, 737-38 (11th Cir. 1993). Even if the overt acts charged are superfluous, they “serve to describe the offense charged,” and thus, “we may examine them for the' additional insight they provide into the nature and scope” of the conspiracies. Marable, 578 F.2d at 155. According to the Florida indictment, the conspirators distributed controlled substances without adequate examinations or treatment plans, solicited out-of-state patients, required $250 or $300 cash payments, referred patients to a certain individual who provided magnetic resonance images, allowed patients to evade drug tests, and made daily cash deposits in various Jacksonville banks. These overt acts were conceptually similar to but objectively different from those in Georgia, which included purchasing and selling excessive quantities of controlled substances, monitoring law enforcement actions against similar clinics, allowing AMG employees to accept bribes from drug addicts, and using proceeds to purchase additional controlled substances. That AMG utilized the same startup plan, hiring process, and policies and procedures as the Florida clinics is unsurprising, as Votrobek and Castellanos carried their knowledge of the pill mill business with them from Florida to Georgia. Thus, although similar, the overt acts in Florida and Georgia were different.

Finally, the fifth Marable factor strongly suggests the existence of two separate conspiracies because the conspiracies took place in two different states. Indictments alleging “the conspiratorial events occurred in separate places,” indicate separate conspiracies. Sturman, 679 F.2d at 843. Here, the Florida conspiracy revolved around three clinics in Jacksonville, Florida. In contrast, the Georgia conspiracy focused on AMG in Cartersville, Georgia. Indeed, the Georgia indictment is silent as to any of Votrobek’s activities in Florida, while the Florida indictment only briefly notes Votrobek left Florida “to open his own pain management clinic” in Georgia. Doc. 340 at 6. Although Votrobek argues both the Florida and Georgia clinics catered to patients from Tennessee, Kentucky, and Ohio, none of the events alleged as part of either conspiracy took place in these states. The origin of the clinics’ clientele does not establish the conspiracies occurred in the same place.

Based on (1) the absence of temporal overlap, (2) the lack of any common co-conspirators, (3) the additional substances distributed in Georgia, (4) the different overt acts, and (5) the entirely separate locations of the clinics, we conclude the government has established the existence of two separate conspiracies. Hence, Vo-trobek’s conviction is not barred by the Double Jeopardy Clause. At the very least, we cannot say the district court committed plain error by failing to dismiss the Geor- • gia conspiracy charges on Double Jeopardy grounds.

Finally, as to Votrobek’s second enumeration of error, because his conspiracy charges did not violate the Double Jeopardy Clause, there was no prejudicial spillover as to his substantive charges. Thus, we need not address his argument on this issue.

II. District Court’s Refusal to Hold a Franks v. Delaware Hearing

We now turn to Appellant Castellanos’ two enumerations of error. Castellanos first argues the district court erred in denying his request for a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), based on certain alleged false statements in the affidavits used to obtain court authorization for telephone wiretaps. We disagree.

To challenge the veracity of an affidavit in support of a wiretap order under Franks, a defendant must make “a substantial preliminary showing” that (1) “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” and (2) “the allegedly false statement is necessary to ’the finding of probable cause.” Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. “Allegations of negligence or innocent mistake are insufficient,” and the defendant’s “attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.” Id. at 171, 98 S.Ct. at 2684. Upon such a showing, the defendant is entitled to an evidentiary hearing on the issue. Id. at 155, 98 S.Ct. at 2676. Although we have not articulated the precise standard to review a district court’s denial of a Franks hearing, normally a district court’s decision regarding the need for an eviden-tiary hearing is reviewed for abuse of discretion. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006) (per cu-riam). We will apply that standard here.

Here, the United States submitted wiretap applications on February 16, March 18, April 19, and June 6, 2011. In the supporting affidavits, DEA Special Agent Lourdes M. Bowen averred that in May of 2010, the DEA identified AMG as a pill mill after receiving complaints from the public concerning AMG’s high volume of patients. During a traffic stop of four patients, agents discovered large amounts of controlled narcotics. Over the course of the investigation, agents interviewed three AMG patients, who all described receiving Oxycodone prescriptions after perfunctory exams performed by Dr. Chapman. For example, one patient met with Dr. Chapman for no more than twenty-five minutes, during which time he merely asked her to bend over, touch her toes, and move her legs against resistance, before prescribing pills. Based on this information, agents interviewed Dr. Steven Lobel, a medical doctor, who stated new patient examinations should include assessments of cranial nerves, concentration, speech, reflex, and sensation. Further, Dr. Lobel opined that the large doses of Oxycodone reflected “callous disregard for legitimate prescribing.” TT-1 Aff. ¶ 27.

Additionally, agents interviewed three former AMG employees, who all indicated the clinic initially accepted only cash payments. One former employee explained patients might pay up to $1,200 per visit, and she once collected approximately $22,000 in cash in a two-hour period. According to the same employee, patients arrived in groups of three to five, often in the same vehicle, and occasionally bribed AMG staff to let them pass drug screens. The employee found discarded condoms, bottles, and balloons in the restroom, but the office manager told her it was none of her business. Further, Castellanos instructed AMG nurses to search patients for weapons.

In a consensually recorded telephone conversation with a confidential source, Votrobek confided he could not sleep at night because he feared he would watch his child grow up from behind bars, repeatedly mentioned Zachary Rose’s Florida clinics, and discussed AMG’s sophisticated security systems. Moreover, he asserted AMG was not a pill mill because it did not process 120 patients per day or allow patients to sell pills in the parking lot. Based on Votrobek’s explicit contradiction of these details typical of pill mills, Agent Bowen concluded Votro-bek was identifying ways to avoid raising suspicion at a pill mill.

Finally, Agent Bowen explained why the wire intercepts were necessary to the investigation. Prior to seeking the wiretaps, agents had utilized toll-record analysis, financial transaction reports, confidential informants and sources, interviews with AMG patients and former employees, physical surveillance, video surveillance, GPS trackers, and trash searches; however, these investigative techniques had failed to reveal the knowledge and intent of the conspirators. According to Agent Bowen, AMG’s owners had become more guarded as the investigation progressed and had stopped communicating with two of the confidential sources. Agent Bowen believed other confidential sources or undercover agents would be unlikely to interact with those at the upper echelons of the conspiracy. Similarly, physical surveillance and pole cameras had only allowed agents to observe Dr. Chapman’s visits to a nearby liquor store and patients arriving and departing from the clinic. Finally, techniques such as surveillance and searches of the owners’ residences, interviews, and grand jury subpoenas would immediately alert the conspirators to the investigation.

Castellanos argues Agent Bowen had no basis to conclude (1) the four patients in the initial traffic stop possessed large amounts of controlled narcotics, and (2) AMG wrote prescriptions without sufficient medical reason based on inadequate examinations performed by AMG physicians. Castellanos contends both statements constitute unfounded medical opinions because Agent Bowen lacked medical training. These arguments are unfounded. Agent Bowen averred that after interviewing multiple patients, she conferred with Dr. Steven Lobel, who opined that AMG physicians prescribed narcotics in “relatively large quantities” and did not perform proper neurological and physical examinations. TT-1 Aff. ¶ 27. Hence, we conclude Agent’s Bowen’s statements were “supported by substantial evidence” and thus- were not knowingly and intentionally false or in reckless disregard of the truth. See O’Ferrell v. United States, 258 F.3d 1257, 1269-70 (11th Cir. 2001).

Castellanos’ next argument — that Agent Bowen misrepresented Votrobek’s statements during the consensually recorded phone call — also fails. Castellanos argues Agent Bowen had no basis to conclude Votrobek was identifying ways to avoid raising suspicion at a pill mill because Vo-trobek explicitly stated AMG did not see 120 patients per day or allow patients to sell pills in the parking lot. Based on Agent Bowen’s considerable experience investigating drug trafficking, however, Vo-trobek’s explicit contradiction of details typical of pill mill operations supported her conclusion Votrobek was identifying ways to avoid raising suspicion, especially considering Votrobek knew the conversation was being recorded. Thus, we cannot say Agent Bowen’s statement was either knowingly and intentionally false or in reckless disregard for the truth.

Finally, Castellanos argues Agent Bowen made only conclusory statements supporting the wiretap’s necessity. A wiretap order requires a showing that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c). This necessity requirement ensures “wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime,” but it does not require “a comprehensive exhaustion of all possible investigative techniques.” United States v. De La Cruz Suarez, 601 F.3d 1202, 1214 (11th Cir. 2010). As set forth above, Agent Bowen spends nearly 24 pages supporting each affidavit detailing the multiple investigatory techniques utilized by law enforcement and explaining why they were unlikely to reveal the knowledge and intent of the targets.

Castellanos has failed to make a substantial showing that Agent Bowen’s statements were knowingly and intentionally false or made in reckless disregard for the truth. Nor has Castellanos shown the affidavit lacked probable cause absent the challenged material. Accordingly, the district court did not abuse its discretion by refusing to hold a Franks hearing.

III. District Court’s Refusal to Give Requested Instruction on Entrapment by Estoppel

Castellanos next argues the district court erred in denying his request to instruct the jury on the entrapment-by-es-toppel defense.

We review a district court’s refusal to give a requested “theory of defense” instruction for abuse of discretion. United States v. Chastain, 198 F.3d 1338, 1350 (11th Cir. 1999). Such a refusal is reversible error only if the requested instruction “(1) was a correct statement of the law; (2) was not adequately covered in the instructions given to the jury; (3) concerned an issue so substantive that its omission impaired the accused’s ability to present a defense; and (4) dealt with an issue properly before the jury.” United States v. Westry, 524 F.3d 1198, 1216 (11th Cir. 2008) (per curiam) (internal quotation marks omitted). The instruction must have “legal support” and “some basis in the evidence.” United States v. Morris, 20 F.3d 1111, 1114-15 (11th Cir. 1994) (internal quotation marks omitted). Thus, a district court “has authority to refuse to instruct the jury on a defense where the evidence used to support it, if believed, fails to establish a legally cognizable defense.” United States v. Billue, 994 F.2d 1562, 1568 (11th Cir. 1993).

Although ignorance of the law generally is no defense, “[e]ntrapment-by-estoppel is an affirmative defense that provides a narrow exception” to this rule. United States v. Funches, 135 F.3d 1405, 1407 (11th Cir. 1998). Entrapment by es-toppel “applies to a defendant who reasonably relies on the assurance of a government official that specified conduct will not violate the law.” United States v. Alvarado, 808 F.3d 474, 484-85 (11th Cir. 2015). Thus, the defense “requires a showing that a government official affirmatively communicated to the defendant the official’s approval of the conduct at issue.” Id. at 485. Reliance on the official’s statement must be “objectively reasonable” in light of “the identity of the official, the point of law represented, and the substance of the misrepresentation.” Funches, 135 F.3d at 1407. Accordingly, when entrapment by estoppel is “asserted as a defense to a federal crime,” the defendant must show “reliance on a misstatement by an official or agent of the federal government.” Id.

Here, Castellanos requested an entrapment-by-estoppel jury instruction based on the testimony of Georgia Bureau of Investigation Agent Kenneth Howard. According to Agent Howard, in July 2010, he received a phone call from Castellanos, who volunteered that AMG had received complaints from local pharmacies, acknowledged the clinic’s out-of-state patients raised red flags, assured Agent Howard that AMG was a legitimate business, and asked whether AMG was under investigation. When asked whether he told Castellanos that law enforcement considered out-of-state patients to be red flags, Agent Howard answered, “No, I didn’t volunteer anything. I was very cautious with that conversation. He did most of the talking, and he volunteered that.” Doc. 361, at 146. Agent Howard reiterated that he did not advise AMG they were violating the law because “that would be contradictory to [the] investigation.” Doc. 362, at 80. Subsequently, Tara Atkins met with DEA agents on multiple occasions, but no testimony was given as to what, if anything, the agents told her.

We conclude that the issue of entrapment by estoppel was not properly before the jury. At no point did any witness testify that Agent Howard or the DEA agents affirmatively communicated to Castellanos or Atkins that AMG’s conduct was in compliance with the law. Therefore, the requested instruction had no factual basis in the evidence. Moreover, as an employee of a state agency, Agent Howard had no authority to bind the federal government to any erroneous interpretation of federal law. As a result, the requested instruction lacked legal support. Accordingly, the district court did not abuse its discretion by refusing to instruct the jury on entrapment by estoppel.

CONCLUSION

For the foregoing reasons, we AFFIRM Appellants’ convictions.

      . A "pill mill” is a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes.

      . The jury also convicted Dr. Chapman.

      . In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as binding precedent all cases decided by the former Fifth Circuit before October 1, 1981.

      . Although Votrobek argues the conspiracies briefly overlapped from May through July of 2010 based on the time periods set forth in the indictments, at trial three witnesses testified that Votrobek left the Florida conspiracy in April 2010. Moreover, in Votrobek's response to the government's 404(b) notice, he asserted that as of April 19, 2010, he had "intentionally severed ties with” and "had absolutely no involvement with” Rose's Florida clinics. Doc. 162 at 3.

      .The Florida indictment named twelve co-conspirators in addition to Votrobek: Zachary Rose, Dr. Hall, Dr. Perla, Dr. Tafflin, Dr. Posea, Dr. Brandt, Krystopher Legg, Ryan Young, Yevgeny Drubetskoy, Theodore En-quist, Brian Goldberg, and Theresa Faulker. In Georgia, the named indicted co-conspirators were Votrobek, Castellanos, Jesse Viol-ante, Tara Atkins, and Dr. Chapman, while the named undicted co-conspirators were Kim Bovino, John Cendor, Jamie Priest, Cheryl Votrobek, David Votrobek, Dr. Locke, Dr. Efobi, Dr. Daniachew, Dr. Nortick, and Timothy Spurlock. Although Castellanos worked at the Florida clinic before joining Votrobek in Georgia, "the identity of unindicted persons is inconsequential for this double jeopardy analysis.” Sturman, 679 F.2d at 843.

      . We note that the government is not required to prove an overt act under 21 U.S.C. § 846. United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 383, 130 L.Ed.2d 225 (1994). Because the indictment in this case included numerous overt acts, we consider them in our Marable analysis.