Committee to Preserve Boomer Lake Park v. Department of Transp.

• Decision Date: 14 September 1993
• Docket Number: No. 92-6198,92-6198
• Citation: 4 F.3d 1543
• Parties: 24 Envtl. L. Rep. 20,142 COMMITTEE TO PRESERVE BOOMER LAKE PARK, an unincorporated association, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Samuel K. Skinner, Secretary of the United States Department of Transportation; Oklahoma Department of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1543

4 F.3d 1543

24 Envtl. L. Rep. 20,142

COMMITTEE TO PRESERVE BOOMER LAKE PARK, an unincorporated association, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Samuel K. Skinner, Secretary of the United States Department of Transportation Oklahoma Department of Transportation Defendants-Appellees.

No. 92-6198.

United States Court of Appeals Tenth Circuit.

Sept. 14, 1993.

John R. Couch, Jr., Stillwater, OK, for plaintiff-appellant.

Katherine L. Adams, Dept. of Justice (Vicki A. O'Meara, Acting Asst. Atty. Gen., Washington, DC, Tony Graham, U.S. Atty., Oklahoma City, OK, Steven Mullins, Asst. U.S. Atty., Tulsa, OK, John A. Bryson, Dept. of Justice, Jean Rogers, Office of Sol., with her, on the brief), Washington, DC, for defendant-appellee James B. Busey.

Dennis R. Box, Williams, Box, Forshee, Synar & Bullard, Oklahoma City, OK (Cydney Campbell, Williams, Box, Forshee, Synar & Bullard, Oklahoma City, OK, Mary Ann Karns, City Atty., Stillwater, OK, with him, on the brief, for City of Stillwater, Norman N. Hill, Gen. Counsel, Oklahoma City, OK, with him, on the brief, for OK Dept. of Transp.), for defendants-appellees OK Dept. of Transp. and City of Stillwater.

Before BALDOCK, HOLLOWAY, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This appeal stems from the proposed federal funding of a four-lane highway through Boomer Lake Park in Stillwater, Oklahoma. The Committee to Preserve Boomer Lake Park alleges the Federal Highway Administration's decision to fund the highway violated Sec. 4(f) of the Transportation Act, and further alleges the agency's decision not to conduct an environmental impact statement was erroneous.

Background

Boomer Lake Park is a 347-acre, municipally owned park in Stillwater, Oklahoma of which Boomer Lake comprises roughly 220 acres. Lakeview Road, an east-west route through the City of Stillwater, was a narrow, two-lane street with a one-lane bridge. The road's alignment followed a city section line until it intersected the southern part of Boomer Lake, whereupon the road turned south along the lake, then east over the Boomer Lake Dam, and then back north before returning to its original east-west alignment. In 1978, an inspection of Boomer Lake Dam revealed certain structural deficiencies which required the dam to be rebuilt. The portion of Lakeview Road on top of the old dam was demolished during the dam's reconstruction and due to concerns that traffic would cause structural stress to the new dam, Lakeview Road was not replaced on top of the dam.

The subject of this litigation is the reconstruction of Lakeview Road. After several public informational hearings, the Stillwater City Commission decided to rebuild Lakeview Road on an elevated causeway and bridge across Boomer Lake. The proposed alignment envisioned widening Lakeview Road into a four-lane undivided road which would follow the section line in a direct route across the lake, thus eliminating four curves in the original route, two of which were substandard and made ninety-degree turns. The proposed roadway was deemed a vital part of the city-wide transportation plan's "middle loop." The purpose of the project, in addition to replacing the section of road destroyed with the old dam, was to eliminate congestion and accommodate present and projected traffic needs by providing a major east-west arterial route through the city. Traffic safety and fire department response times were also factors in the project's design. The proposed construction, however, would cross the lake and park, taking up approximately 3.3 acres of land in Boomer Park and another 2.4 acres of Boomer Lake for the causeway and bridge. ¹ After conducting a cost analysis on the project and after holding more public hearings, the City Commission again voted in favor of the straight alignment across the lake.

In 1988, the Oklahoma Department of Transportation (ODOT) requested federal highway funds from the Federal Highway Administration (FHWA) for the reconstruction of Lakeview Road. The ODOT solicited comments from local, state and federal agencies concerning the possible social, economic and environmental effects of the proposed Lakeview Road project. The ODOT initially submitted a draft Environmental Assessment (EA) and Sec. 4(f) statement concerning the project which was rejected by the FHWA for failing to consider an alternative, in addition to a no-build alternative, which completely avoided the park. A second draft was submitted, hereinafter referred to as the EA/4(f) statement, which compared three alternatives: (1) a no-build alternative; (2) a four-lane road with a straight alignment across Boomer Lake built upon a causeway and bridge (the causeway alternative); and (3) a four-lane road with an alignment around the southern end of Boomer Lake and the park (the avoidance alternative). The avoidance alternative consisted of a southwesterly diversion from Lakeview Road's current alignment to a point approximately 850 feet south of the section line and roughly 500 feet south of the dam. ² The alternative then paralleled the section line roughly 1,500 feet before turning northeast onto an existing road which eventually rejoined Lakeview Road west of Boomer Lake. The FHWA accepted the new document and after a public hearing, found there was no prudent and feasible alternative to the proposed use of parkland under Sec. 4(f) of the Transportation Act. The FHWA also issued a finding of no significant impact (FONSI) under the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347 (1988).

Six Stillwater residents living in the vicinity of Boomer Lake Park formed the Committee to Preserve Boomer Lake Park (the Committee) and filed a lawsuit in district court challenging the FHWA's decision to provide federal funds for the road project and its decision not to prepare an environmental impact statement (EIS). The district court, in a factually detailed, twenty-nine-page order, granted the defendants' motion for summary judgment. The court held that under Sec. 4(f) of the Transportation Act, "the FHWA could have reasonably believed that all of the alternatives to the proposed project while ... arguably feasible, were not prudent and presented unique or uniquely difficult problems." The district court also held that the FHWA's decision to issue a FONSI was not arbitrary and capricious and the Committee failed to allege any substantial environmental issues omitted from the Agency's consideration.

On appeal, the Committee alleges the FHWA violated Sec. 4(f) of the Transportation Act by approving the use of federal funds for a highway project which involves the destruction of parkland. The Committee also alleges the FHWA was required to prepare an EIS and the decision to issue a FONSI was arbitrary and capricious.

Analysis

The Committee challenges the district court's decision to grant summary judgment under both Sec. 4(f) and NEPA by asserting that genuine issues of material fact exist. Under Fed.R.Civ.P. 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The party opposing summary judgment "may not rest upon ... mere allegations or denials ... but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 945 (10th Cir.1989). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The materiality of a factual dispute is identified by the governing substantive law and a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510.

I. Section 4(f)

The Committee alleges the FHWA violated Sec. 4(f) of the Transportation Act in approving the use of federal funds to construct a highway that would use parkland. Section 4(f) of the Transportation Act, 49 U.S.C. Sec. 303(c) (1988) states:

[t]he Secretary [of Transportation] may approve a transportation program or project ... requiring the use of publicly owned land of a public park [or] recreation area ... only if--

(1) there is no prudent and feasible alternative to using the land; and

(2) the program or project includes all possible planning to minimize harm to the park [or] recreation area ... resulting from the use.

A virtually identical provision is contained in the Federal-Aid Highways Act, 23 U.S.C. Sec. 138 (1988). ³

Our interpretation of these provisions is guided in part by the Supreme Court decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Overton Park instructed reviewing courts to conduct a three-tiered inquiry of the Secretary of Transportation's decision to fund a highway across land covered by Sec. 4(f). First, the reviewing court is "required to decide whether the Secretary acted within the scope of his authority" under Sec. 4(f). Id. at 415, 91 S.Ct. at 823. In this initial inquiry, we "must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems." Id. at 416, 91 S.Ct. at 823. Second, the court must decide whether the Secretary's ultimate decision was " 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.' " Id. (quoting 5 U.S.C. Sec. 706(2)(A) (1964 ed., Supp. V)). This inquiry involves determining "whether the [Secretary's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. Finally,...