Stop H-3 Ass'n v. Lewis, Civ. No. 72-3606

Citation538 F. Supp. 149
Decision Date08 April 1982
Docket Number73-3794.,Civ. No. 72-3606
PartiesSTOP H-3 ASSOCIATION, a Hawaii non-profit corporation; Life of the Land, a Hawaii non-profit corporation, Plaintiffs, v. Andrew L. LEWIS, as Secretary of the United States Department of Transportation; Ralph Segawa, as Hawaii Division Engineer, Federal Highways Administration; and Ryokichi Higashionna, as Director of the Department of Transportation of the State of Hawaii, Defendants. HUI MALAMA AINA O KO'OLAU, Plaintiff, v. Andrew L. LEWIS, as Secretary of the United States Department of Transportation; Ralph Segawa, as Hawaii Division Engineer, Federal Highways Administration; and Ryokichi Higashionna, as Director of the Department of Transportation of the State of Hawaii, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Boyce R. Brown, Jr., Honolulu, Hawaii, for plaintiffs Stop H-3 Association, et al.

Ronald Albu, Cynthia Thielen, Legal Aid Society of Hawaii, Honolulu, Hawaii, for Hui Malama Aina O Ko'Olau.

Elliot Enoki, Asst. U. S. Atty., Wallace W. Weatherwax, U. S. Atty., Honolulu, Hawaii, for Andrew L. Lewis and Ralph Segawa, Federal defendants.

Keith Y. Tanaka, Warren H. Higa, Sp. Counsel, Tobias C. Tolzmann, Honolulu, Hawaii, for Ryokichi Higashionna, Director, DOT, State of Hawaii.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SAMUEL P. KING, Chief Judge.

I. PROCEDURAL HISTORY

This is the latest chapter in the continuing saga of (T)H-3, a proposed Interstate Defense Highway which would connect the Kaneohe Marine Corps Air Station ("KMCAS") to the Pearl Harbor Naval Base and Hickam Air Force Base.1

Originally, the project was to extend from Halawa to Kaneohe, passing through Moanalua Valley, the Koolau mountains, and Haiku Valley. As more fully discussed below, the highway segment extending from Halawa to the Koolaus has since been realigned through North Halawa Valley.

The project has been the subject of extensive litigation. Plaintiff Stop H-3 Association filed the original complaint in Civil No. 72-3606 on July 19, 1972.2 By injunctions entered by Stipulation and Order dated September 15, 1972 and by Decision and Order dated October 18, 1972, Stop H-3 Ass'n v. Volpe, 349 F.Supp. 1047 (D.Haw. 1972), this court enjoined construction and design work for the portion of the freeway connecting the Halawa and Halekou interchanges until defendants could demonstrate compliance with the National Environmental Protection Act of 1969, 42 U.S.C. § 4321 et seq. ("NEPA"). Two years of hearings, Environmental Impact Statement (EIS) preparation, and other legal and administrative proceedings followed.

On December 26, 1974, this court held that the defendants had complied with the applicable environmental and transportation statutes and regulations, and lifted the injunctions. Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Haw.1974). A key ruling was that since "local officials" had declared that Moanalua Valley was not historically significant, even though the U. S. Secretary of the Interior had determined that it was "likely to be eligible" for inclusion in the National Register of Historic Places, the protections of section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970) and section 18 of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), did not apply. These statutes, hereinafter referred to as "section 4(f)," are essentially identical.3

On appeal, the U. S. Court of Appeals for the Ninth Circuit reversed, holding that Moanalua Valley and Pohaku ka Luahini (petroglyph rock) were entitled to the protections of section 4(f), and reinstating the injunctions until the Secretary of Transportation (the "Secretary") could demonstrate compliance therewith. Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir. 1976) cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). The court declined to rule on the other three issues which had been raised on appeal, instructing the district court to reconsider them and the Secretary's 4(f) determination in the event that the Secretary did conclude that there are no "feasible and prudent" alternatives to the routing of the project through Moanalua Valley.4 533 F.2d at 446.

Defendants filed a Section 4(f) Statement for Moanalua Valley with the U. S. Dept. of Transportation ("DOT") in October 1976. In January 1977, the Secretary concluded that since feasible and prudent alternatives existed to the use of Moanalua Valley, he could not approve the project.

After the Secretary's decision, defendants began to prepare a supplemental EIS examining in detail the environmental effects of aligning the project through North Halawa Valley.

On August 26, 1977, defendants moved to terminate this lawsuit, arguing that since the project would no longer go through Moanalua Valley, the injunctions reimposed by the Ninth Circuit no longer applied. This court held that any freeway segment connecting the Halawa and Halekou interchanges was subject to the injunctions and denied the motion on November 17, 1977.

The Draft North Halawa Valley Supplemental EIS (Draft "NHV-SEIS") was first circulated on November 11, 1977 and public hearings were conducted on December 12, 13, 14 and 15, 1977.

On May 5, 1978, Plaintiff Stop H-3 Association filed its 68 page, twelve count, Supplemented Compilation of Complaint for Injunctive and Declaratory Relief, as Amended and Supplemented. The ninth cause of action alleged non-compliance with section 4(f) with respect to the Ho'omaluhia Recreation Project (later designated Ho'omaluhia Park). Defendants moved to dismiss this cause of action, or in the alternative, for partial summary judgment, on July 11, 1978. On November 21, 1978, this court ruled that constructive use of the recreation project triggered the protections of section 4(f), and denied the motion. Defendants subsequently prepared and circulated a 4(f) statement for Ho'omaluhia Park.

The final NHV-SEIS and Ho'omaluhia Park 4(f) Statement were processed together, and approved by the Federal Highway Administration ("FHWA") on December 10, 1980. Location and design approval for the project was given on February 5, 1981.

On April 10, 1981, the parties stipulated to the filing of plaintiffs' present 142 page, 48 count, Amended and Supplemented Complaint for Declaratory and Injunctive Relief. Defendants answered this complaint on April 20, 1981. On June 6, 1981, defendants again moved to terminate the injunctions. This motion was denied on July 7, 1981.

On September 1, 1981, the parties filed a Stipulation and Order Regarding a Plan and Schedule for Identifying Issues for Dismissal, In Limine Ruling, Summary Judgment or Trial on the Merits ("Stipulation"), pursuant to which the plaintiffs voluntarily dismissed their sixth, seventh, ninth and twelfth causes of action.5

On September 9, 1981, plaintiffs moved for leave to amend their eighth cause of action and to add a forty-ninth cause of action. The court granted their motion as to the eighth cause of action on September 16, 1981 and as to the forty-ninth cause of action on October 14, 1981. During trial, the court permitted plaintiffs to amend their twenty-seventh and forty-ninth causes of action to conform to the evidence.

Prior to trial, the court granted defendants' unopposed motion for summary judgment as to the fourth, fifth, nineteenth and twenty-first causes of action. The court also granted defendants' motions for summary judgment as to the eighth (as amended) and thirteenth causes of action.6

On October 23, 1981, the court granted defendants' motion to dismiss the twenty-second and forty-seventh causes of action.7

On September 30, 1981, the court granted plaintiff Hui Malama Aina O Ko'olau's ("Hui Malama's") Motion for Summary Judgment as to the twenty-fifth cause of action, and ordered defendants to initiate formal biological consultation with the U.S. Fish and Wildlife Service ("USFWS") regarding the Achatinella Hawaiian Tree Snail, in accordance with section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2), and its associated regulations, 50 C.F.R. § 402.04 (1980). Defendants complied with this order on October 2, 1981. On October 29, 1981, the USFWS issued a formal biological opinion stating that constructing H-3 through North Halawa Valley would not endanger the Achatinella.

II. CURRENT POSTURE

Trial on Defendants' Motion to Terminate the Injunctions and Plaintiffs' Complaint for Injunctive and Declaratory Relief took place from October 14 to October 29, 1981. During closing arguments, Defendants moved for reconsideration of this court's determination that section 4(f) applied to Ho'omaluhia Park.

On November 4, 1981, Plaintiffs moved for summary judgment as to the thirty-fourth cause of action. Since the parties introduced evidence with respect to this cause of action and argued the issue at trial, summary judgment is inappropriate. Accordingly, the issue will be considered together with the other causes of action.

This court must now consider the adequacy and validity of: (1) the 1972 Moanalua Valley EIS ("1972 EIS") and 1973 Supplemental EIS ("1973 Preface") as of their approval date; (2) the NHV-SEIS; (3) the Pali Golf Course 4(f) determination; and (4) the Ho'omaluhia Park 4(f) determination.8

III. ISSUES

The remaining thirty-eight causes of action fall into ten broad categories, as follows (with their associated issues):9

A. NHV-SEIS Preparation.

1. Whether defendants improperly delegated preparation of the NHV-SEIS to private consultants (Counts Ten and Eleven).
2. Whether defendants failed to circulate the NHV-SEIS to and obtain and defer to comments from the Board of Water Supply of the City and County of Honolulu (Count Three).

B. EIS Adequacy.

Whether the EIS is inadequate because it:

1. Relies on outmoded and stale studies (Count One).

2. Fails to address...

To continue reading

Request your trial
19 cases
  • Stop H-3 Ass'n v. Dole
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 21, 1984
    ...implementing regulations. The appellants appeal the District Court's Findings of Fact and Conclusions of Law, Stop H-3 Association v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982), which denied many of their claims for declaratory and injunctive relief and which dissolved the injunctions against c......
  • Sierra Club v. US Dept. of Transp.
    • United States
    • U.S. District Court — Northern District of California
    • January 12, 1987
    ...that the statute must be "construed broadly," see Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). 6 In Stop H-3 Association v. Lewis, 538 F.Supp. 149, 176-77 (D.Haw.1982), aff'd in part and rev'd in part, 740 F.2d 1442 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed......
  • Friends of the River v. F.E.R.C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 11, 1983
    ...123 See supra p. 117. 124 See, e.g., Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 782 (9th Cir.1980); Stop H-3 Ass'n v. Lewis, 538 F.Supp. 149, 169 (D.Haw.1982). 125 Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1074 (1st Cir.1980). 126 Id. at 1073. 127 Id. at 1074; see a......
  • Stop H-3 Ass'n v. Dole
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 20, 1989
    ...only minor noncompliance with NEPA and section 4(f), the district court decided to lift the preliminary injunction. Stop H-3 Ass'n v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982). A second appeal to this court ensued, and we once again reimposed the preliminary injunction. We were not convinced t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT