740 F.2d 1442 (9th Cir. 1984), 82-4357, Stop H-3 Ass'n v. Dole

Docket Nº:82-4357.
Citation:740 F.2d 1442
Party Name:STOP H-3 ASSOCIATION, a Hawaii non-profit corporation, Life of The Land, a Hawaii non-profit corporation, Hui Malama Aina O Ko'Olau, Appellants, v. Elizabeth H. DOLE, as Secretary of the United States Department of Transportation, Ralph Segawa, as Hawaii Division Engineer, Federal Highways Administration, and Ryokichi Higashionna, as Director of th
Case Date:August 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 1442

740 F.2d 1442 (9th Cir. 1984)

STOP H-3 ASSOCIATION, a Hawaii non-profit corporation, Life

of The Land, a Hawaii non-profit corporation, Hui

Malama Aina O Ko'Olau, Appellants,

v.

Elizabeth H. DOLE, 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, Appellees.

No. 82-4357.

United States Court of Appeals, Ninth Circuit

August 21, 1984

Argued and Submitted Nov. 29, 1983.

Page 1443

[Copyrighted Material Omitted]

Page 1444

[Copyrighted Material Omitted]

Page 1445

[Copyrighted Material Omitted]

Page 1446

Boyce R. Brown, Jr., Honolulu, Hawaii, Ronald Albu, Legal Aid Soc. of Hawaii, Kaneohe, Hawaii, for appellants.

Randall Y.K. Young, Honolulu, Hawaii, Thomas H. Pacheco, Dept. of Justice, Washington, D.C., George W. Playdon, Jr., Honolulu, Hawaii, for appellees.

Appeal from the United States District Court for the District of Hawaii.

Before ELY, WALLACE, and REINHARDT, Circuit Judges.

ELY, Circuit Judge:

We are once again faced with environmental challenges to the proposed construction by the State of Hawaii of the remaining portion of Interstate Route H-3. 1 In this skirmish, the appellants 2 challenge on numerous grounds the appellees' 3 approval of H-3, alleging violations of the National Environmental Policy Act of 1969, 42 U.S.C. Secs. 4321-4347 (1976 & Supp. V 1981) (NEPA), the Endangered Species Act of 1973, 16 U.S.C. Secs. 1531-1543 (1982) (ESA), the Department of Transportation Act of 1966, 49 U.S.C. Secs. 1651-1660 (1976 & Supp. V 1981) (DOTA), the Federal-Aid Highway Act of 1966, 23 U.S.C. Secs. 101-157 (1982) (FAHA), and various 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 construction of H-3 that had been in place since 1972. The appeal is timely, and we have jurisdiction to consider the appeal under 28 U.S.C. Sec. 1291 (1982) and 28 U.S.C. Sec. 1292(a)(1) (1982). We affirm in part and reverse in part.

I. SECTION 4(f)

The principal issue in this appeal is whether the Secretary of Transportation (Secretary) has complied with section 4(f) of DOTA, 49 U.S.C. Sec. 1653(f), and section 18 of FAHA, 23 U.S.C. Sec. 138. (Both statutes, which essentially are identical, 4 are

Page 1447

hereinafter referred to simply as "section 4(f).")

A. INTRODUCTION

Section 4(f) is part of Congress' response to the growing public concern over the preservation of our Nation's natural beauty. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 404, 91 S.Ct. 814, 817, 28 L.Ed.2d 136 (1971). In section 4(f), Congress has determined that the preservation of our parklands should be given major consideration in connection with all proposed highway construction programs that are to receive financial aid from the federal government. The statute provides, in declaring national policy, that "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands ...." The statute further provides that:

[T]he Secretary [of Transportation] shall not approve any project or program which requires the use of any publicly owned land from a public park ... of national, State, or local significance ... unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park ... resulting from such use.

23 U.S.C. Sec. 138; 49 U.S.C. Sec. 1653(f). It is obvious that the requirements of section 4(f) are stringent. Moreover, the implementing regulations promulgated by the Secretary pursuant to section 4(f) (4(f) regulations) require the Secretary to prepare and circulate a statement (4(f) statement) that must examine the highway's proposed use of parkland in light of the requirements of section 4(f). See 23 C.F.R. Sec. 771.19 (1980). The 4(f) regulations specifically require the 4(f) statement to analyze alternatives to the use of the parkland to determine whether the alternatives are feasible and prudent. See id.

In its proposed configuration, H-3 will use land from two public parklands: (1) Ho'omaluhia Park, 5 a major regional park;

Page 1448

and (2) Pali Golf Course Park, 6 one of Oahu's most challenging and heavily used public golf courses. Because of H-3's use of the parklands, 4(f) statements were prepared in 1971 (approved by the Secretary in 1974) for Pali Golf Course Park and in 1979 (approved by the Secretary in 1980) for Ho'omaluhia Park. In response to the District Court's order, 538 F.Supp. at 184, the Pali Golf Course Park Section 4(f) Statement was supplemented in 1983. See Fed. Highway Admin., U.S. Dep't of Transp., Highways Div., State of Hawaii Dep't of Transp., Final Second Supplement to the Interstate Route H-3 Environmental Impact/4(f) Statement (1982), lodged with this Court on July 7, 1983.

All of the above mentioned 4(f) statements conclude that there is no feasible and prudent alternative to the use of Ho'omaluhia Park or to the use of Pali Golf Course Park. 7 The Secretary concurred in that conclusion and the District Court held that the Secretary properly found there is no feasible and prudent alternative to the use of Ho'omaluhia Park. 8 See 538 F.Supp. at 181, 183. The District Court also held that the Secretary reasonably rejected certain of the alternatives to the use of Pali Golf Course Park. 9 The appellants

Page 1449

challenge the Secretary's rejection of the alternatives to the use of Pali Golf Course Park and Ho'omaluhia Park as being unsupported by the record. They challenge the District Court's holdings on the same ground, as well as on the ground that the District Court's decision was made upon an erroneous application of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). After a thorough, probing, and in-depth review of the administrative record, we agree with the appellants' contentions in respect to the "Makai Realignment" alternative and the "No Build" alternative, and, accordingly, we reverse. 10

B. STANDARD OF REVIEW

As to all of the Secretary's section 4(f) determinations at issue in this case, the standard of judicial review is whether the Secretary's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1982); Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. While the Secretary's decisions are entitled to a presumption of regularity, that presumption does not "shield his action[s] from a thorough, probing, in-depth review." Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. The reviewing court is required to consider whether:

1. The Secretary acted within the scope of his authority (not at issue in this case).

2. The Secretary properly construed his authority to approve the use of parkland as limited to situations where none of the alternatives to such use are feasible and prudent.

3. The Secretary could have reasonably believed that in the case under review there are no feasible and prudent alternatives.

4. The Secretary's decision was based on a consideration of the relevant factors.

5. The Secretary made a clear error of judgment.

6. The Secretary's action followed the necessary procedural requirements (not at issue in this case). Id. at 415-17, 91 S.Ct. at 823-24. See also Stop H-3 Association v. Coleman, 533 F.2d 434, 445 (9th Cir.) (the court, in reviewing the Secretary's decision, "must satisfy itself that the Secretary evaluated the highway project with the mandates of section 4(f) clearly in mind"), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976).

In its consideration of the Secretary's determination, the reviewing court must draw upon Overton Park's definition of a "feasible and prudent alternative": 11 parklands may be "used" for highway purposes only if "there [are] truly unusual factors present in [the] case," if "feasible alternative routes involve uniquely difficult problems," or if "the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes." 401 U.S. at 413, 416, 91 S.Ct. at 822, 823. 12

Page 1450

Moreover, the reviewing court should consider the full administrative record of the agency's action, id. at 420, and if the record fails to show a sufficient basis for the Secretary's decision, the 4(f) determination must be overturned, see id. In addition, the "reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis." Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).

In reviewing the District Court's decision affirming the Secretary's action, this Court should apply the same standards of review used by the District Court. See Southeast Alaska Conservation Council v. Watson, 697 F.2d 1305, 1312 (9th Cir.1983). The District Court's review is accorded no particular deference, because the District Court, limited to the administrative record, is in no better position to review the Secretary's action than is the Court of Appeals. See Arizona Past & Future...

To continue reading

FREE SIGN UP