Eagle Foundation, Inc. v. Dole

• Decision Date: 27 February 1987
• Docket Number: No. 86-1861,86-1861
• Citation: 813 F.2d 798
• Parties: 17 Envtl. L. Rep. 20,912 The EAGLE FOUNDATION, INC., Plaintiff-Appellant, v. Elizabeth DOLE, Secretary of Transportation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

813 F.2d 798

17 Envtl. L. Rep. 20,912

The EAGLE FOUNDATION, INC., Plaintiff-Appellant, v. Elizabeth DOLE, Secretary of Transportation, et al.,

Defendants-Appellees.

No. 86-1861.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1986.

Decided Feb. 27, 1987.

Edward S. Boraz, Chicago, Ill., for plaintiff-appellant.

Russell R. Eggert, Asst. Atty. Gen., Chicago, Ill., John J. Harrison, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Before COFFEY and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

For more than 20 years state and federal officials have been planning a four-lane, limited access highway running east-west through central Illinois. The plans call for a highway that will connect Decatur, Springfield, and Jacksonville, Illinois, with Hannibal, Missouri. Parts of this highway have been built. One that has not is the segment spanning the Illinois River, which runs roughly north-south. The holdup is caused by the topography near the place the highway must cross the river. The western bank of the Illinois River is a steep granite bluff between 100 and 150 feet high, covered by loess soils that support trees and other vegetation. Erosion has produced ravines at places along the bluff, and these natural breaks in the rock are the best places through which to build highways. A broad, shallow valley is best of all. Napoleon Hollow is such a place. But ravines also are attractive to wildlife, wildlife is attractive to people, and the 862-acre Pike County Conservation Area (PCCA), which includes Napoleon Hollow, was established to preserve wildlife, some to be watched and some to be hunted.

The PCCA's status as a wildlife refuge brings into play Section 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303(c), which provides that the Secretary of Transportation may approve a highway "requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance ... 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 protected area. ¹ Before these restrictions became effective in 1968, state and federal officials had tentatively selected Napoleon Hollow as the place to cross the Illinois River. The new statute--and especially Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), which held that Sec. 4(f) forbids the use of park land except in rare circumstances--led the planners to conduct extensive studies of the effect of a highway through Napoleon Hollow and its alternatives. Between 1969 and 1972 state officials prepared and federal officials approved a lengthy "design location study" that addressed technological and environmental implications of building a 52-mile stretch of the new highway (between Jacksonville and Barry, Illinois) in different locations. This study included the inquiries and findings required by Sec. 4(f) and by the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-47. The Secretary approved the study in 1974 after receiving extensive comments. No one sued, and some of the construction began.

On July 21, 1978, the Keeper of the National Register of Historic Places complicated the picture. He concluded that the Wade Farm, 190 acres immediately to the west of the PCCA, was eligible for inclusion in the Register. The Wade Farm contains a limestone house built in the late 1840s or early 1850s. The Keeper concluded that the Wade Farm is significant as one of the first settlements in Pike County, Illinois, and because it contains a fine early 19th century stone farmhouse. Section 4(f) applies to the Wade Farm in the same way it applies to the PCCA, and the owners of the Wade Farm (Sam Wade and his sister Juliet Wade) did not approve of the highway. Joined by the Eagle Foundation, Inc., a conservation group with a leasehold interest in part of the Wade Farm, the Wades filed suit in 1980, seeking to block the construction of the highway on the ground that the Environmental Impact Statement in the location study was inadequate and that Sec. 4(f) prohibited the construction as a substantive matter.

After some skirmishing about intervention, Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.1982), the district court rejected the challenge to the Environmental Impact Statement. Wade v. Lewis, 561 F.Supp. 913, 945-48 (N.D.Ill.1983). The court concluded, however, that the Secretary had not adequately demonstrated that a route bypassing the PCCA and the Wade Farm is not "prudent". Id. at 948-53. The court thought that alternatives to the use of Napoleon Hollow had not been explored with sufficient care. The court also held that independent of the Sec. 4(f) obstacle no federal funds were available to build the bridge. Id. at 934-45. It enjoined further work. While the case was on appeal, Congress amended the funding legislation, specifically approving the building of this particular bridge across the Illinois River. Section 9 of Pub.L. 98-229, 98 Stat. 55. Because the defendants had completed a new study of alternatives, we concluded that the dispute about funding was moot and dismissed the appeal as moot to the extent it dealt with Sec. 4(f). Wade v. Baise, 767 F.2d 925 (7th Cir.1985) (unpublished order).

Sam Wade had died in the interim, but Juliet Wade and the Eagle Foundation promptly filed a new suit challenging the fresh decision (after the new study) to build through Napoleon Hollow and the Wade Farm. Juliet Wade died before the district court could make a new decision, and her successors did not take over the litigation. That left the Eagle Foundation as the sole plaintiff. The district court concluded that the Foundation has standing to challenge the routing through both the Wade Farm and the PCCA. Wade v. Dole, 631 F.Supp. 1100, 1105-07 (N.D.Ill.1986). The court then held that the Secretary did not act arbitrarily or capriciously in concluding that the new study establishes that no other placement of the bridge across the Illinois River is "feasible and prudent". Id. at 1107-17. It also held that the current plans satisfy the requirement of Sec. 4(f)(2) that the Secretary "minimize the harm" to the protected property. 631 F.Supp. at 1117-21. The new plan will consume 12.5 acres of the Wade Farm and 31 acres of the PCCA; the district judge concluded that the Secretary rightly minimized the net effects on the two properties considered as a unit and did not have to spare the Wade Farm at the expense of doing more damage to the PCCA. Id. at 1117-20.

The defendants concede that a highway through Napoleon Hollow and the Wade Farm will cause several of the kinds of injury with which Congress was concerned when it enacted Sec. 4(f). The site of the highway is rural, and the construction will not mar the only green area within miles, as the building of a superhighway through a park in downtown Memphis would have done. See Overton Park, 401 U.S. at 406-07, 91 S.Ct. at 818-19. Nonetheless, the Farm and PCCA contain not only historic buildings but also sites of archaeological interest, several important enough to justify their own listing in the National Register of Historic Places. See Wade v. Lewis, 561 F.Supp. at 922-24. Both the Farm and Napoleon Hollow contain plants and animals that have restricted habitats and precarious grips on existence. (The Foundation nonetheless does not raise any claim under the Endangered Species Act.) The bald eagle, an endangered species, maintains winter roosts along the Illinois River. It does not breed in Napoleon Hollow, but a few eagles forage during winter from trees in the Hollow and other ravines. A substantial percentage of all bald eagles outside Alaska winters in central Illinois, and Napoleon Hollow (together with ravines that feed into it) contains 17 of the 63 potential roosting trees in the PCCA. See also 561 F.Supp. at 930-34 (discussing in detail the potential effects of the highway on eagles). The extent of the effect of the highway on eagles is unclear, however. Only one eagle has been seen in Napoleon Hollow since 1980, and eagles in other places have tolerated highways. (Pesticides rather than noise have been the principal threat to eagles.)

Some less-known animals also inhabit the Hollow. A few Indiana bats live there. ² Illinois chorus frogs (see Figure 1) entertain passers by. The chorus frog is named for its habit of calling in unison. Although we have been unable to learn whether the frogs sing in four-part harmony, they are not repulsed by automobiles. "[D]uring the breeding season, choruses can be heard continually along the highways in the area.... The call of the male is a series of short, loud, birdlike whistles." Smith, Amphibians and Reptiles of Illinois, 28 Illinois Natural History Survey Bulletin 1, 85 (1961). See also Natural Land Institute, Endangered and Threatened Vertebrate Animals and Vascular Plants of Illinois 29 (1981). The Illinois chorus frog, a subspecies (Pseudacris streckeri illinoensis) of a frog that is abundant in central Texas and Oklahoma, has been found in only seven counties of Illinois and is "considered vulnerable because its restriction to sand areas could subject it to habitat degradation. Much of the original sand prairie is being encroached upon by cultivated fields. In addition, many of the remaining open sandy areas are now being planted to pines for the Christmas tree market." Ibid. As for plants: there is a beautiful (and unusual) double hedgerow of Osage orange trees more than 100 years old in the Wade Farm, and Napoleon Hollow contains jeweled shooting stars, American ginseng, and golden seal, all unusual in Illinois. ³

Figure 1--Illinois Chorus Frogs

(Courtesy Illinois State Natural...