Louisiana Environmental Soc., Inc. v. Dole, s. 81-3784

• Citation: 707 F.2d 116
• Decision Date: 26 May 1983
• Docket Number: 82-3042,Nos. 81-3784,s. 81-3784
• Parties: , 13 Envtl. L. Rep. 20,693 LOUISIANA ENVIRONMENTAL SOCIETY, INC. and Mrs. Vernon B. Chance, Sr., Plaintiffs-Appellees, v. Elizabeth Hanford DOLE, Secretary of Transportation, Defendant-Appellant, Department of Highways, State of Louisiana, Defendant-Appellant. LOUISIANA ENVIRONMENTAL SOCIETY, INC. and Mrs. Vernon B. Chance, Sr., Plaintiffs-Appellants, v. Elizabeth Hanford DOLE, Secretary Department of Transportation, Et Al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 116

707 F.2d 116

19 ERC 1874, 13 Envtl. L. Rep. 20,693

LOUISIANA ENVIRONMENTAL SOCIETY, INC. and Mrs. Vernon B.

Chance, Sr., Plaintiffs-Appellees, v. Elizabeth Hanford DOLE, Secretary of Transportation,

Defendant-Appellant,

Department of Highways, State of Louisiana, Defendant-Appellant.

LOUISIANA ENVIRONMENTAL SOCIETY, INC. and Mrs. Vernon B.

Chance, Sr., Plaintiffs-Appellants, v. Elizabeth Hanford DOLE, Secretary Department of

Transportation, Et Al., Defendants-Appellees.

Nos. 81-3784, 82-3042.

United States Court of Appeals, Fifth Circuit.

May 26, 1983.

Rehearing and Rehearing En Banc Denied July 19, 1983.

Sharon F. Lyles, Baton Rouge, La., Thomas H. Pacheco, Dirk D. Snel, Appellate Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Billy R. Pesnell, Shreveport, La., J. Arthur Smith, III, Baton Rouge, La., for Louisiana Environmental Soc. and Chance.

Appeals from the United States District Court for the Western District of Louisiana.

Before RUBIN and TATE, Circuit Judges, and Davis ^*, District Judge.

TATE, Circuit Judge:

Two appeals are consolidated for argument and decision: No. 81-3784, by the governmental defendants, from a district court judgment that set aside an administrative determination in connection with the proposed construction of a bridge; and No. 82-3042, an appeal by the plaintiff environmentalists from the district court's striking of twenty-three allegations from their third supplemental and amended complaint. We will discuss these appeals separately below. For reasons to be set forth more fully, in the former appeal we reverse the ruling of this district court, finding that the administrative record adequately supports the non-arbitrary administrative determination; and in the latter appeal we affirm the district court's ruling, finding no abuse of discretion in denying amendment of the plaintiff's prior complaints under the circumstances here reflected.

I. Appeal No. 81-3784

In this appeal, the central issue concerns the adequacy of the administrative determination that the route for a bridge across a large recreational lake met the requirements of section 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 1653(f) (hereinafter "Section 4(f)"). ¹ In essence, as applied to the present situation, this enactment requires that a highway may not be constructed across public park and recreational lands unless it is first determined that, of the feasible routes, the route selected is the one that minimizes harm to the recreational value of a parkland. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 86-87 (5th Cir.1976) (hereinafter, "Coleman ").

The plaintiffs commenced litigation to enjoin construction of the bridge in 1971. The facts surrounding the proposed construction, the administrative proceedings, and the litigation concerning it are fully set forth in the opinion of the district court presently under review, Louisiana Environmental Society, Inc. v. Brinegar, 513 F.Supp. 179 (W.D.La.1981), as well as in the prior reported decisions arising out of this litigation: Coleman (1976), supra; Louisiana Environmental Society, Inc. v. Coleman, 524 F.2d 930 (5th Cir.1975); Louisiana Environmental Society, Inc. v. Brinegar, 407 F.Supp. 1309 (W.D.La.1976).

In Coleman (1976), supra, this court found the Secretary's Section 4(f) determination deficient because it had not adequately balanced whether at least two of the alternative routes did less recreational harm to the lake than the route proposed by the Secretary for its crossing, and the case was remanded for the Secretary's balancing of the relevant considerations. 537 F.2d at 86-87. ² The present appeal results from the district court's decision on the remand. 513 F.Supp. 179 (W.D.La.1981). Except for the issues potentially implicated by the attempted amendment through the third amended and supplemental complaint (see Part II of opinion below), it is fair to state that, by the time of trial below, the only remaining issue concerned the sufficiency of the reaffirmed Section 4(f) determination of December 5, 1978 by the Federal Highway Administrator that the proposed route for the bridge (the "Adopted Line") minimized recreational harm equally to or more than the alternative C-Modified route for which the plaintiffs contend. 513 F.Supp. at 182.

Furthermore, as a result of the district court's non-erroneous determinations that the Administrator had properly found that "active" recreational harm and other impacts were approximately equal for both routes, for purposes of this appeal the threshold substantial issue is whether the district court erred in concluding that the Administrator's findings were insufficient to support his Section 4(f) determination approving the Adopted Line because, the Administrator found, the "passive" recreational harms of the C-Modified alternative would exceed those that would result from construction of the bridge on the proposed Adopted Line. ³

A. Standard of Review

The standard of judicial review of the Administrator's Section 4(f) determination is summarized in Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Since no issue is here raised as to whether the Administrator acted within the scope of his authority, 401 U.S. at 415, 91 S.Ct. at 823, nor of any procedural irregularity, 401 U.S. at 417, 91 S.Ct. at 824, our present review involves only whether--upon the "whole" agency record before the Administrator, 401 U.S. at 419, 91 S.Ct. at 825--the Administrator's Section 4(f) finding was arbitrary, capricious, or an abuse of discretion. 401 U.S. at 416, 91 S.Ct. at 823.

In determining on judicial review whether the Administrator's choice was so flawed, the court must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." 401 U.S. at 416, 91 S.Ct. at 824. In this regard, the Administrator's decision "is entitled to a presumption of regularity", although that presumption will not "shield his action from a thorough, probing, in-depth review." 401 U.S. at 415, 91 S.Ct. at 823. Although this judicial inquiry "into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." 401 U.S. at 416, 91 S.Ct. at 824.

The burden is on those parties attacking the agency's determination as arbitrary, capricious, or an abuse of discretion. Ward v. Campbell, 610 F.2d 231, 235 (5th Cir.1980). In applying that standard to review of the administrative determination, "the focal point for judicial review should be the administrative record already in existence [on the basis of which the administrator's determination was made], not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). Furthermore, since an appellate court reviews the administrative decision on the identical basis as did the district court, appellate court review need accord no particular deference to the district court's conclusion as to whether the identical administrative record does or does not support the administrative determination as reasonably based. Brown v. United States Department of Interior, 679 F.2d 747, 748-49 (8th Cir.1982); Washington State Farm Bureau v. Marshall, 625 F.2d 296, 302 (9th Cir.1980); Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1161 (9th Cir.1980).

B. The Administrator's Section 4(f) Determination

Pertinently, in Coleman, supra, the present case was remanded in order that the Administrator make the requisite Section 4(f) determination, upon "balancing of relevant considerations", whether one of several alternative routes did "less harm" than the Adopted Line to the recreational lake. 537 F.2d at 87. Following the remand, an additional hearing was held and additional reports were made, after which the Administrator reaffirmed his initial Section 4(f) determination that the Adopted Line, of all the alternatives, was least harmful to recreational aspects of lake use.

The bridge construction at issue is contemplated in aid of completion of the I-220 Shreveport bypass highway. The record adequately establishes, as held by the previous courts, that it is not feasible to construct the bypass without crossing at least part of the lake. The determinative issue, as finally distilled by prior proceedings, is whether the Adopted Line does less (or equal) harm to recreational value than would construction along the C-Modified route, one of the alternatives.

Cross Lake, the recreational site in question, has a surface area of nearly 9,000 acres lying immediately east of the Shreveport urban areas. The Adopted Line crosses the lake for a length of 8,600 feet and is situated approximately a mile west of the lake's eastern end. The C-Modified route skirts the eastern (or populated) shore of the lake and crosses it for only 2,100 feet at a small inlet on the eastern end. See generally map in Coleman, supra, 537 F.2d at 83.

After appropriate administrative proceedings, the Federal Highway Administrator on December 5, 1978 made his formal reaffirmed Section 4(f) determination that "the Adopted Line has the smallest impact on Cross Lake recreational activities" of the alternatives considered. Government Exhibit ("G.Ex.") 308. To this determination were attached a "4(f) Analysis" report dated August 1978 (G.Ex. 306) and an "Additional Information on the 4(f) Analysis" memorandum dated October 20, 1978 (G.Ex. 307). Upon remand by the district court to the Administrator to determine the nature of the attachments, the Administrator executed an affidavit that explained the attached documents. 513 F.Supp. at 181. The Administrator stated that "[t]he two documents attached to my reaffirmation of December 5, 1978, were a...