Sierra Club v. Department of Transp., s. 90-15751

• Citation: 948 F.2d 568
• Decision Date: 30 October 1991
• Docket Number: Nos. 90-15751,90-15826,90-15754,s. 90-15751
• Parties: 22 Envtl. L. Rep. 20,018 SIERRA CLUB, a California non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration; Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration, Defendants-Appellants, and California Department of Transportation, an agency of the State of California, et al., Defendants. SIERRA CLUB, a California non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration; Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration, Defendants, and California Department of Transportation, an agency of the State of California, California Transportation Commission, Joe Levy, Defendants-Appellants. SIERRA CLUB, a non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration, Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration; California Department of Transportation, an agency of the State of California, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 568

948 F.2d 568

22 Envtl. L. Rep. 20,018

SIERRA CLUB, a California non-profit corporation; Committee

for Green Foothills, a non-profit corporation; Committee

for the Permanent Repair of Highway One, an unincorporated

association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her

official capacity as Secretary of the U.S. Department of

Transportation; Federal Highway Administration; Ray A.

Barnhart, in his official capacity as Administrator of the

Federal Highway Administration, Defendants-Appellants,

and

California Department of Transportation, an agency of the

State of California, et al., Defendants.

SIERRA CLUB, a California non-profit corporation; Committee

for Green Foothills, a non-profit corporation; Committee

for the Permanent Repair of Highway One, an unincorporated

association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her

official capacity as Secretary of the U.S. Department of

Transportation; Federal Highway Administration; Ray A.

Barnhart, in his official capacity as Administrator of the

Federal Highway Administration, Defendants,

and

California Department of Transportation, an agency of the

State of California, California Transportation

Commission, Joe Levy, Defendants-Appellants.

SIERRA CLUB, a non-profit corporation; Committee for Green

Foothills, a non-profit corporation; Committee for the

Permanent Repair of Highway One, an unincorporated

association, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Elizabeth Dole,

in her official capacity as Secretary of the U.S. Department

of Transportation; Federal Highway Administration, Ray A.

Barnhart, in his official capacity as Administrator of the

Federal Highway Administration; California Department of

Transportation, an agency of the State of California, et

al., Defendants-Appellees.

Nos. 90-15751, 90-15754, 90-15826.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 19, 1991.

Decided Oct. 30, 1991.

Martin Matzen, U.S. Dept. of Justice, Washington, D.C. and Norval Fairman, San Francisco, Cal., for defendants-appellants, defendants-appellees.

Robert M. Teets, Jr. and Maribeth Halloran, Alan Moss, San Francisco, Cal., for plaintiffs-appellees.

Christine Motley, Deputy County Counsel, Redwood City, Cal., for amicus.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, ALARCON and T.G. NELSON, Circuit Judges.

CHOY, Circuit Judge:

In this case we decide that a road does not "constructively use" a park if the road and park were jointly planned.

I. Factual and Procedural Background

The history of this case is long and complicated. The district court's published opinion, Sierra Club v. United States Department of Transportation, 695 F.Supp. 460 (N.D.Cal.1988), contains an extensive review of the factual and procedural history of this case. We summarize only the background information necessary to decide the questions presented to us.

Since California State Highway Route 1 was constructed in 1937, landslides have repeatedly closed a 600 foot section of this highway called "Devil's Slide." The California Division of Highways studied alternatives for roads that would bypass this portion of Highway 1 as early as 1958. In 1960, the California Highway Commission approved a bypass route that became known as the "adopted alignment alternative." Between 1969 and 1972 the California Department of Transportation (CalTrans) acquired fifty-five percent of the right-of-way needed for the adopted alignment alternative. Due to litigation and lack of funding, efforts to construct the bypass stopped in 1975.

In the late 1970s, the California Department of Parks and Recreation (DPR) began negotiations to purchase lands on both sides of the adopted alignment alternative, and in 1984 this land, McNee Ranch State Park, was turned over to the DPR to administer as part of the state park system. Land that CalTrans believed might be necessary for a bypass but that it had not yet acquired was deliberately excluded from the parcel of land that was to form the park.

In 1983, after Route 1 was extensively damaged in the Devil's Slide area, federal funds became available, and CalTrans began moving forward with plans for a bypass road. In the process of obtaining approval for a bypass road from various state agencies, CalTrans adopted a new plan for a bypass road called the "Martini Creek" alternative. In 1986, the Secretary of the Department of Transportation (Secretary) approved the Final Environmental Impact Statement and the Plans, Specifications and Estimates (PS & E) for the Martini Creek bypass road. Approval of the PS & E obligated about $47 million in federal funds for the project.

On January 12, 1987, the district court enjoined construction of the Devil's Slide bypass road on the basis of a preliminary determination that the Secretary had failed to comply with section 4(f) of the Department of Transportation Act of 1966 and section 18 of the Federal Highway Act of 1968. ¹ Sierra Club v. United States Dep't of Transp., 664 F.Supp. 1324, 1327-34 (N.D.Cal.1987). On July 7, 1988, the district court entered partial summary judgment in favor of the Sierra Club ² on the section 4(f) issue thus enjoining construction of the bypass road until the Secretary completed a section 4(f) study. Sierra Club v. United States Dep't of Transp., 695 F.Supp. 460 (N.D.Cal.1988). The district court held that the planned bypass road constructively used the McNee Ranch Park, and thus a section 4(f) study was necessary to determine if any "prudent and feasible alternative to using" park land existed. The court adopted the state of the park without any road as the baseline to determine whether there was constructive use. The district court held that as to the constructive use inquiry, it would make no difference whether the road and park had been jointly planned, or if the road was built next to an established park. Id. at 466. On April 10, 1990, the district court entered "final judgment" on the section 4(f) claim, deferred consideration of the Sierra Club's claim that the federal funding for a Devil's Slide bypass road should lapse, and held that the federal funds would remain obligated until it considered the funding issue after remand from the Ninth Circuit or the completion of a section 4(f) study.

On appeal the Department of Transportation (DOT) ³ claims that the district court erred in holding that a section 4(f) study was required. The DOT claims that the planned bypass road did not constructively use park land because the road and park were jointly planned.

The DOT claims that there was extensive cooperation between CalTrans and the park planners throughout the process of park acquisition and road alignment. The Sierra Club disputes this claim. The district court did not resolve this factual dispute because it rejected the DOT's legal argument that if there was joint planning there was no constructive use.

The Sierra Club claims in its cross-appeal that the district court erred in holding that the federal funds should remain obligated, pending further consideration, after it found that the Secretary had failed to comply with the requirements of section 4(f).

II. Jurisdiction

The district court permanently enjoined the Secretary from funding the Devil's Slide project until the Secretary completed a section 4(f) study. Under 28 U.S.C. § 1292(a)(1) the panel has jurisdiction to review this order because it is "continuing ... or refusing to dissolve or modify [an] injunction[ ]." The propriety of this injunction turns on whether the district court correctly entered partial summary judgment on the section 4(f) issues. Thus the panel has jurisdiction over the DOT's appeals. See Marathon Oil Co. v. United States, 807 F.2d 759, 763-65 (9th Cir.), cert. denied, 480 U.S. 940, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1986).

We cannot find a ground for asserting jurisdiction over Sierra Club's cross-appeal on the funding issue, however. The district court's order granted only a partial summary judgment in favor of Sierra Club. The court explicitly declined to resolve the funding issue until this panel ruled on the section 4(f) issue or the DOT complied with its order. District Court Order at 14-15 (filed April 3, 1990). Thus, the district court's order with respect to the obligation of federal funds is not "final" within the meaning of 28 U.S.C. § 1291 and is therefore not appealable.

Sierra Club maintains, however, that the district court failed to make an "express determination that there is no just reason for delay" in entering judgment on the section 4(f) claims as required by Fed.R.Civ.Proc 54(b). Without such a determination, the order is not final and thus not appealable. See Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985). Sierra Club asserts, therefore, that the district court's order must be construed as a final order under Rule 54(a), allowing an appeal of the funding issue as well as the section 4(f) issues. ⁴ The finality of the district court's order cannot rest upon Rule 54(a) because the summary judgment covered only some claims. See 6 James W. Moore, Federal Practice p 54.34, at 54-210 (2d ed.1991) (a partial judgment "does not constitute a judgment under Rule 54(a), and is not appealable, unless it is entered as a judgment in compliance with Rule 54(b)"). Moreover, a final judgment on all of the claims would have to comply with Rule 58's requirements, something the district court declined to do. District Court Order at 13, 14-15 (filed April 3, 1990).

Sierra Club argues that the panel should assert jurisdiction under the doctrine of "practical finality" because they will suffer irreparable harm. See Stone v. Heckler, 722 F.2d 464, 467 (9th Cir.1983). Sierra Club asserts that the objectivity of the section 4(f) study will be...