Arizona Past and Future Foundation, Inc. v. Lewis
| Decision Date | 22 December 1983 |
| Docket Number | No. 82-6062,82-6062 |
| Citation | 722 F.2d 1423 |
| Parties | ARIZONA PAST AND FUTURE FOUNDATION, INC., a non-profit Arizona corporation; Laurie Blank-Roper; William Arthur, Jr.; G.G. George; Richard B. Barlow; and Benjamin and Margaret Hammer, Plaintiffs-Appellants, v. Drew LEWIS * , Secretary of the United States Department of Transportation; Ray Barnhart, Administrator of the Federal Highway Administration of the United States Department of Transportation; Robert Young, Regional Administrator of the Federal Highway Administration of the United States Department of Transportation; Thomas O. Willett, Arizona Division Administrator of the Federal Highway Administration of the United States Department of Transportation; William A. Ordway, Director of the Arizona Department of Transportation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul V. Bonn, Phoenix, Ariz., for plaintiffs-appellants.
Kathryn A. Oberly, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY, CHOY, and ALARCON, Circuit Judges.
Arizona Past and Future Foundation Inc. (the Foundation) appeals from the final judgment dismissing its action seeking declarative and injunctive relief. The Foundation objects to the choice of the West Papago Alternative (Alternative Seven) as the means of completing Interstate 10, and brings this action to block construction. The Foundation challenges the Secretary of Transportation's [Secretary] decision as arbitrary, capricious, and an abuse of discretion as well as violative of section 4(f) of the Department of Transportation Act of 1966 (the Act), 49 U.S.C. Sec. 1653(f) (section 4(f)). 1
The Secretary has determined, pursuant to Section 4(f), that there is no feasible and prudent alternative to the use of two significant archeological sites that will be adversely affected by construction of Alternative Seven, and that all steps have been taken to minimize harm to these sites. The Foundation contends, however, that the Secretary has not complied with section 4(f) because: (1) there are feasible and prudent alternatives to the use of the archeological sites; and (2) the Secretary improperly found that no historic sites would be used in construction of Alternative Seven.
The district court found that although some archeological sites would be used in construction of Alternative Seven, no historic sites would be used. The district court also found that there were no feasible and prudent alternatives to such use because none of the other alternatives would effectively reduce traffic congestion within the city's central corridor. The district court then approved the proposed data recovery program for the archeological sites as meeting section 4(f)'s requirement of mitigation of harm. 2 The district court concluded that the Secretary's decision approving construction of Alternative Seven was not "arbitrary, capricious or otherwise unlawful." We agree.
Agency action must be set aside by the reviewing court if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", or if the action violates statutory, procedural, or constitutional requirements. 5 U.S.C. Sec. 706(2)(A), (B), (C), (D); 3 see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). In Overton Park, as here, plaintiffs challenged a route chosen by the Secretary for construction of an Interstate Highway. The Supreme Court held that in evaluating the Secretary's choice, the reviewing court must make three inquiries.
First, the reviewing court must determine whether the Secretary acted within the scope of his authority and whether his decision was reasonably based on the facts contained in the administrative record. Second, the reviewing court must determine whether the Secretary's decision was arbitrary, capricious or an abuse of discretion because he failed to consider all relevant factors or made a clear error of judgment. Third, the reviewing court should decide whether the Secretary complied with the applicable procedural requirements. See Overton Park, 401 U.S. at 415-417, 91 S.Ct. at 823-824; Adler v. Lewis, 675 F.2d 1085, 1091 (9th Cir.1982). 4
In reviewing the district court's decision upholding the agency's choice of Alternative Seven, this court applies the same standard applied by the district court, the Overton Park standard described above. See Southeast Alaska Conservation Council v. Watson, 697 F.2d 1305, 1312 (9th Cir.1983). This court does not defer to the findings of the district court that the Secretary's decision was reasonable and did not constitute an abuse of discretion, the district court, which is also limited to review of the administrative record, 5 is in no better position to review agency action than is the Court of Appeals. See Asarco, Inc. v. United States Environmental Protection Agency, 616 F.2d 1153, 1161 (9th Cir.1980); Washington State Farm Bureau v. Marshall, 625 F.2d 296, 306 (9th Cir.1980). Therefore, based upon a thorough, probing and in-depth review of the administrative record, we hold that the Secretary did not abuse his discretion but reasonably found that there are no feasible and prudent alternatives to construction of Alternative Seven and that no historic sites will be used in such construction. See, e.g., Adler v. Lewis, 675 F.2d 1085, 1092-95 (9th Cir.1982).
Interstate 10 (I-10) is a primary east-west route linking Phoenix with major metropolitan areas throughout the country. I-10 is complete in Arizona with the exception of a 15-mile segment.
In 1975, a majority of Phoenix voters approved a referendum requiring the city to support the West Papago highway proposal as a means of completing I-10. The United States Department of Transportation (DOT) included the West Papago proposal as one of the possible routes to be evaluated in the combined environmental impact and section 4(f) statement (FEIS/(4) Statement). 6 The DOT maintains that the overall purpose of the highway project is to close the gap in I-10 and to provide improved traffic service for central Phoenix.
Section 4(f) of the Act declares a national policy favoring preservation of historic sites and parkland. Section 4(f) provides in part that:
[T]he Secretary shall not approve any program or project which requires the use of ... any land from an historic site of national, State, or local significance as so determined by the [Federal, State, or local officials having jurisdiction thereof] ... 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 ... historic site resulting from such use.
49 U.S.C. Sec. 1653(f) (1976).
A number of properties involving public parks, recreation areas and historic sites were investigated in the vicinity of the proposed I-10 project to determine whether 4(f) was applicable. As a result of this investigation it was determined that the I-10 freeway would use the eastern portion of Berney Park. The DOT's FEIS/4(f) Statement concluded that there was no feasible and prudent alternative to the use of Berney Park. That conclusion is not at issue in this litigation.
The FEIS/4(f) Statement, however, called for additional archeological testing and investigation regarding possible use of three archeological sites, La Cuidad, Las Colinas and Los Aumentos 7, to determine whether the significance of the sites consisted of archeological data and artifacts that could be preserved by removal or if the sites contained structures that warranted preservation in place. 23 C.F.R. Sec. 771.135(f)(1). 8
On October 2, 1978, the Secretary approved the West Papago proposal conditioned upon the completion of the archeological testing and investigation. In accordance with section 4(f), the Arizona Historic Preservation Officer and the Advisory Council on Historic Preservation concurred.
Pursuant to the Secretary's conditional approval, the State Historic Preservation Office hired two archeological testing organizations, the State Museum of Arizona and the Museum of Northern Arizona, to conduct the testing. These organizations concluded that preservation in place was not required, and that a date recovery program would be imposed to remove and preserve archeological information. 9 The Secretary's conditions were met, clearing the way for final approval.
Due to the scope of the sites and the large quantity of material contained therein, the DOT prepared a supplemental 4(f) evaluation. The West Papago alternative was reconsidered in light of the information provided by the archeological testing. Factual data forming the basis for the original 1978 decision were also reconsidered.
After public comments on the supplemental 4(f) draft evaluation, the DOT released a final supplemental 4(f) evaluation on February 26, 1982. Accompanying this evaluation was the Secretary's final determination that there is no feasible and prudent alternative to the West Papago alternative and that all possible planning to minimize harm to the archeological sites contained therein has been undertaken.
The Foundation raises several questions pertaining to the Secretary's compliance with Department of Transportation Act of 1966 Sec. 4(f), 49 U.S.C. Sec. 1653(f) (1976). The issues on appeal are:
(1) Whether the Secretary acted properly in concluding that there were no feasible and prudent alternatives to the West Papago proposal?
(2) Whether the Secretary acted properly in concluding that only Las Colinas and La Cuidad and no historic buildings will be "used" within the meaning of section 4(f) in the construction of the West Papago alternative?
(3) Whether the district judge acted properly in refusing to recuse...
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