Coalition on Sensible Transp., Inc. v. Dole, 86-5557

Decision Date04 September 1987
Docket NumberNo. 86-5557,86-5557
Citation826 F.2d 60
Parties, 8 Fed.R.Serv.3d 1044, 17 Envtl. L. Rep. 21,191 COALITION ON SENSIBLE TRANSPORTATION, INC., et al., Appellants, v. Elizabeth DOLE, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-02759).

Brian P. Leitch and Bruce M. Cormier, Washington, D.C., for appellants.

J. Carol Williams, Attorney, Dept. of Justice, Washington, D.C., and David E. Beller, Asst. Atty. Gen., Baltimore, Maryland, with whom Joseph E. diGenova, U.S. Atty., Rebecca L. Ross, Asst. U.S. Atty., Jacques B. Gelin, Attorney, Dept. of Justice, Stanley D. Abrams, Bethesda, Md., Joseph M. Mott, David R. Podolsky and Francis T. Lacey were on the joint brief for appellees. R. Craig Lawrence, Asst. U.S. Atty., Washington, D.C., entered an appearance, for appellees.

Before GINSBURG, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Appellants Coalition on Sensible Transportation ("COST") and other groups 1 bring a number of challenges concerning a road construction project in Montgomery County, Maryland. The project will widen approximately sixteen miles of Interstate 270 ("I-270") and modify five interchanges along the way; it is expected to take five years and cost more than $113 million. COST claims that various federal, state, and local officials 2 violated Sec. 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303(c) (1982), the procedural requirements of Sec. 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. Sec. 4332(2)(C) (1982), and the hearings requirement of Sec. 128 of the Federal-Aid Highway Act, 23 U.S.C. Sec. 128 (1982). It also contends that the district court erred in refusing to consider certain evidence and in denying a discovery request. The court below granted summary judgment for the defendants. Coalition on Sensible Transportation v. Dole, 642 F.Supp. 573 (D.D.C.1986). The district court granted a short stay pending appeal, which this court extended on February 11, 1987; after oral argument the court vacated the stay. For the reasons given below, we now affirm the district court's decision.

I. SECTION 4(f) ISSUES

The stretch of I-270 at issue runs north from the Spur connecting I-270 to I-495 (the Washington Beltway). It is a heavily travelled route for traffic entering and leaving the District of Columbia and also for local traffic between and within the various nearby towns. Traffic conditions in this area are congested, and unchallenged administrative findings indicate that the population growth anticipated in the coming years is likely to add to the congestion. See Joint Appendix ("J.A.") vol. 3, 3-4, 6-7. Among the amenities of the area are its parks, several of which are presently bordered or crossed by I-270. These parks will be affected by the proposed widening.

Under Sec. 4(f) of the Department of Transportation ("DOT") Act, the Secretary may approve a use of significant public park land 3 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 ... resulting from the use." COST brings essentially three challenges to the district court's decision. It contests (1) the court's findings that the I-270 project's effect on parks did not amount to a statutory "use";

(2) the court's acceptance of DOT's conclusions that there was no prudent and feasible alternative within the meaning of Sec. 4(f)(1); and (3) its acceptance of DOT's conclusion that harm to the parks could not have been minimized by adoption of a rejected alternative. We agree with plaintiffs' view of what constitutes a park use, but reject their claim that DOT neglected its Sec. 4(f) duties.

A. Use of Parklands Under Sec. 4(f)

Before analyzing the adequacy of the administrative Sec. 4(f) analysis, the district court found that the effects of the I-270 project on adjacent land were too insubstantial to amount to a "use" within the meaning of Sec. 4(f). 642 F.Supp. at 595-96. We find that the court construed the term too narrowly and that the project triggered the statutory requirements.

At issue are four parks--Cabin John Regional Park, Middlebrook Hill Neighborhood Conservation Area, Metropolitan Grove Road Park, and Seneca Creek State Park. In none of the four are there popular facilities in the immediate vicinity of the highway, and the expansion project seems unlikely to change this state of affairs. In each park the expansion plan calls for "temporary construction easements," narrow strips of parkland adjacent to the roadway. The topography will be graded to facilitate use in the construction project, leaving slopes along the edge of the highway; at the conclusion of the project, these strips, landscaped and revegetated, will be returned to their governmental owners. The district court characterized the uses as temporary and sought to apply "constructive use" cases that made the finding of a Sec. 4(f) use contingent on "substantial" harm. Sierra Club v. Dep't of Transportation, 753 F.2d 120, 130 (D.C.Cir.1985); Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir.1982). Finding the harms not substantial, 642 F.Supp. at 596, the court found no Sec. 4(f) use.

In the circumstances of this case, it hardly seems necessary to explore the nuances of "constructive uses." The I-270 project is expected to last five years and to change about ten acres of parkland permanently. This is enough. The encroachment during the construction period might be a sufficiently substantial harm to trigger Sec. 4(f) despite its temporary nature, but we need not decide this in view of the permanent changes. These take two forms. First, the project will remove 50-year-old oaks that will take two generations to replace; as man measures time, this is permanent. Second, the parks' topography will be altered, presumably forever. The appellees seek to undercut the permanence of the changes by pointing to the promise of mitigation measures at the end of the project. While these bear on the satisfaction of Sec. 4(f)(2)'s requirement that harms be minimized, they do not help in determining whether a use exists.

This is not to say that every change within park boundaries constitutes a use. For example, in Sierra Club v. Dep't of Transportation, the court considered whether permitting limited commercial jet landings in an airport in Grand Teton National Park amounted to a use triggering Sec. 4(f). The agency had determined that the change would result in a cumulative noise increase that was not significant. 753 F.2d at 128. This court characterized the increase in flights as an "insignificant adjustment[ ]" and a "relatively minor change[ ] in the operational characteristics of an established transportation facility" because the land had been used as an airport for 43 years and had had some jet traffic for years. Id. at 130. The court then held that such adjustments did not fall within Sec. 4(f). We do not think that Sierra Club signals a new approach to the use issue, but rather embraces what has been characterized in other administrative contexts as a de minimis exception to the statute. See Monsanto Co. v. Kennedy, 613 F.2d 947, 955-56 (D.C.Cir.1979). At some point a constructive use becomes too constructive, and the Sierra Club court discerned such a point. The holding does not speak to the problem of direct, physical uses. The project here will use parkland.

Despite its viewpoint on the use question, the district court proceeded to a careful review of the administrative Sec. 4(f) findings

and found no violation of the statute. We agree and in the two sections below address the claims based on Sec. 4(f)(1) and Sec. 4(f)(2).

B. Feasible and Prudent Alternatives

Before the Secretary approves a park use, he must under Sec. 4(f)(1) find that there is no feasible and prudent alternative to use of protected lands. Here at least one alternative is concededly feasible, but DOT contends that none is prudent. In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971) (emphasis added), the Supreme Court stated that the Department may reject alternatives as imprudent only if there are "truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reach[es] extraordinary magnitudes." See also id. at 416, 91 S.Ct. at 823; 23 C.F.R. Sec. 771.135(a)(2) (1986).

DOT and the other appellees concede that the use of construction easements for the I-270 project could have been avoided entirely through the use of retaining walls. Appellees do not argue that the cost of these retaining walls would have reached "extraordinary magnitudes," though our calculations indicate they are by no means cheap: $7,901,000. Nor do appellees argue that the retaining walls would cause any community disruption. Overton Park, 401 U.S. at 413, 91 S.Ct. at 822. Rather, appellees argue that there are other "truly unusual factors" that justify rejection of the retaining walls alternative as imprudent. 4 Brief for Appellees at 21-23.

Unlike the usual park-or-concrete choice posed by a Sec. 4(f) decision, the judgment here was essentially aesthetic. The DOT determination noted that the retaining walls of the alternative would be "long and high." J.A. vol. 2, N, 2. At oral argument it was asserted without contradiction that some would have reached 50 feet in height. At such points, a park user would look 50 feet down onto the highway. Highway users would have faced high walls for considerable stretches; so would park users, in those areas where the park surface was below the highway. DOT could well have regarded the results as grotesque. In the selected alternative, by contrast,...

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