Maryland Conservation Council, Inc. v. Gilchrist, 86-3967

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation808 F.2d 1039
Docket NumberNo. 86-3967,86-3967
Parties, 17 Envtl. L. Rep. 20,499 MARYLAND CONSERVATION COUNCIL, INC., Quince Orchard Valley Citizens Association, Inc., West Riding Citizens Association, Inc., Appellants, v. Charles GILCHRIST, as County Executive of Montgomery County, Lewis Roberts, as Chief Administrative Officer of Montgomery County, Robert McGarry, as Director of Montgomery County Department of Transportation, John J. Clark, as Director of Transportation Planning for Montgomery County Department of Transportation, Robert Merryman, as Chief, Division of Transportation Engineering, Montgomery County Department of Transportation, Appellees.
Decision Date04 March 1987

David S. Eggert (Timothy J. Lindon, Neil M. Goodman; Arnold & Porter, Washington, D.C., Edwin V. Dutra, on brief), for appellants.

Diane R. Kramer, Asst. Co. Atty. (Paul A. McGuckian, Rockville, Md., on brief), for appellees.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

The Maryland Conservation Council and two other citizens' groups sought to enjoin officials of Montgomery County, Maryland from authorizing further construction of a highway allegedly designed to pass through Seneca Creek State Park. The plaintiffs alleged, inter alia, that the County's construction program violated the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4331 et seq. (1982). Without hearing oral argument, the district court granted the defendants' motion to dismiss. We reverse in part and affirm in part.

I.

Before proceeding with a statement of the facts, we must decide whether the district court's order should be treated as the entry of summary judgment or the granting of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. The question arises because the district court took notice of materials other than pleadings filed with the motion to dismiss. The parties agree that the district court decided only a motion to dismiss, and we also treat its ruling as one sustaining a motion to dismiss, especially because the district court did not purport to give notice to the parties that it would proceed under Rule 56 or to give them an opportunity to present "all materials made pertinent to a motion for summary judgment by Rule 56." Rule 12(b). It follows that for purposes of this appeal we treat as proved all facts well pleaded. They are as follows:

Seneca Creek State park is located in Montgomery County, Maryland, near Gaithersburg and Germantown. It comprises over 6,000 acres and follows Great Seneca Creek for about 12 miles. The State of Maryland acquired much of the park land with federal funds, including $6.2 million received from the Department of the Interior. The area in which the park is located has existing and future deficits in day-use recreational facilities.

In 1971, Montgomery County began planning to construct the "Great Seneca Highway" through the park to relieve traffic congestion in the Gaithersburg-Germantown area. Because the project had been considered for federal-aid highway funds, the Department of Transportation and the County prepared a draft environmental impact statement (EIS) in 1983. The final EIS is still pending. Although the County received $245,000 in federal funds for planning the highway, there is no allegation that it has sought additional federal financing. There is, however, an allegation that additional federal funds may be sought, i.e., that "additional ... Federal Aid, will be pursued to the extent feasible."

The plaintiffs and other environmentalists concede that some highway access through the park is essential. Controversy exists, however, over which route, or "alignment," the highway should take. Environmentalists, the National Park Service, and the Environmental Protection Agency have urged that the County should upgrade existing highways so as to hold to a minimum damage to the park. The County did begin improvements on existing roads in the vicinity of the park, but it also began authorizing road construction along Alternate 2A, a route preferred by it that did not coincide with existing highways. If extended through the park, Alternate 2A would take three times as much park land as any other alternative route. Two federal agencies, the National Park Service and the Environmental Protection Agency, have expressed dissatisfaction with Alternate 2A, the National Park Service characterizing it as having "the most severe, negative effects" on the park.

Private real estate developers, who have undertaken to construct real estate projects in the vicinity of Alternate 2A, have been required to develop the two segments of Alternate 2A entering and leaving the park, but not the middle segment, which would actually run through the park. The County has required them to dedicate to the County the right-of-way for that part of Alternate 2A passing through their properties and to design and grade four lanes and pave two lanes along the right-of-way. The County claims that this paving is merely for "access" to each subdivision. By this means, construction of approximately two miles, or 26% of the total, of Alternate 2A has already commenced on both sides of the park.

In 1985, the Maryland Conservation Council and two other citizens' groups filed suit against officials of Montgomery County, seeking to enjoin further construction along Alternate 2A other than that strictly needed for local access. The complaint alleges that the County has violated NEPA by authorizing construction of segments of the highway before the Department of Transportation has issued its final EIS, since construction will require federal approvals under Sec. 404 of the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1344 (the Water Act), under Sec. 6(f) of the Land and Water Conservation Fund Act, 16 U.S.C. Sec. 460l -8(f)(3) (the Conservation Act), and under Sec. 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303 (the Transportation Act), all of which allegedly render the construction a major federal action. The complaint also asserts that the County has directly violated Section 4(f) of the Transportation Act, 49 U.S.C. Sec. 303, which requires the Secretary of Transportation to make certain environmental determinations before approving a transportation program requiring the use of a public park. Finally, the complaint alleges that the County has directly violated Section 6(f) of the Conservation Act, 16 U.S.C. Sec. 460l -8(f)(3), which requires the Secretary of the Interior to approve any "conversion" from recreational use of park land that was acquired with federal aid, such as Seneca Creek Park. The district court granted the County's motion to dismiss all three counts for failure to state a claim upon which relief could be granted. We reverse as to NEPA but affirm as to the Transportation Act and the Conservation Act.

II.

We turn first to plaintiffs' claim under NEPA. That statute requires an EIS for "major Federal actions" that significantly affect the environment, 42 U.S.C. Sec. 4332(C), and authorizes the courts to enjoin federal actions that do not comply, see West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4 Cir.1971). See also 40 C.F.R. Sec. 1506.1. The district court held that the Great Seneca Highway is not a "federal" action; it therefore dismissed the NEPA count for failure to state a claim.

A non-federal project is considered a "federal action" if it cannot "begin or continue without prior approval of a federal agency." Biderman v. Morton, 497 F.2d 1141, 1147 (2 Cir.1974); Foundation on Economic Trends v. Heckler, 756 F.2d 143, 155 (D.C.Cir.1985). "Cases finding 'federal' action emphasize authority to exercise discretion over the outcome." W. Rodgers, Environmental Law Sec. 7.6, at 763 (1977).

We conclude that the Great Seneca Highway is a federal action within the meaning of NEPA. Because the highway, wherever located, must inevitably cross Seneca Creek State Park, a park established with a grant of substantial federal funds, the approval of the Secretary of the Interior for conversion of park land to other than public outdoor recreation uses will be required. Conservation Act Sec. 6(f), 16 U.S.C. Sec. 460l -8(f)(3). In addition, it is alleged that the section of the highway which will cross the park will...

To continue reading

Request your trial
52 cases
  • Mineral Policy Center v. Norton, Civil Action 01-00073 (HHK) (D. D.C. 11/18/2003)
    • United States
    • U.S. District Court — District of Columbia
    • November 18, 2003
    ... ... , Congress directed the National Research Council ("NRC") of the National Academy of Sciences 7 to ... areas such as the California Desert Conservation Area, Wild and Scenic Rivers, BLM-administered ... 2002); GCI Health Care Centers, Inc. v. Thompson , 209 F. Supp.2d 63, 67-68 (D.D.C ... Conservation Council, Inc. v. Gilchrist , 808 F.2d 1039, 1043 (4th Cir. 1986); Winnebago ... ...
  • Mineral Policy Center v. Norton
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • November 18, 2003
    ... ... , Congress directed the National Research Council ("NRC") of the National Academy of Sciences 7 to ... areas such as the California Desert Conservation Area, Wild and Scenic Rivers, BLM-administered ... 30-31 (D.D.C.2002); GCI Health Care Centers, Inc. v. Thompson, 209 F.Supp.2d 63, 67-68 ... Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1043 (4th Cir.1986); Winnebago ... ...
  • Stewart v. Potts
    • United States
    • U.S. District Court — Southern District of Texas
    • March 6, 1998
    ... ... Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 ... of Agriculture's Natural Resource Conservation Service, and ultimately determined that the upper ... Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 ... prior approval of a federal agency." Maryland Conservation Council, Inc. v. Gilchrist, 808 ... ...
  • Save Barton Creek Ass'n v. Federal Highway Admin. (FHWA), 91-8036
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 17, 1992
    ... ... in original); Environmental Defense Fund, Inc. v. Johnson, 629 F.2d 239, 241 (2d Cir.1980) ...         The Council on Environmental Quality ("CEQ") has issued ... Administration ("UMTA") had given Maryland $2.5 million for preliminary engineering studies ... Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d ... v. Gilchrist, 808 F.2d 1039 (4th Cir.1986); Winnebago Tribe ... ...
  • Request a trial to view additional results
4 books & journal articles
  • Chapter 5 SMALL HANDLES ON BIG PROJECTS: THE FEDERALIZATION OF PRIVATE UNDERTAKINGS
    • United States
    • FNREL - Annual Institute Vol. 41 Rocky Mountain Mineral Law Institute (FNREL)
    • Invalid date
    ...denied, 957 F.2d 869 (5th Cir.), cert. denied, 112 S. Ct. 3029 (1992). [110] 950 F.2d at 1136 (footnote and citations omitted). [111] 808 F.2d 1039 (4th Cir. 1986). [112] 808 F.2d at 1043. [113] Section 404 of the CWA, 33 U.S.C. § 1344 (1988 & Supp. V 1993); § 6(f) of the Land and Water Con......
  • Chapter 4 WHAT EVERY LAND PROFESSIONAL SHOULD KNOW ABOUT NEPA
    • United States
    • FNREL - Annual Institute Vol. 53 Rocky Mountain Mineral Law Institute (FNREL)
    • Invalid date
    ...2007). [22] Id. [23] Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 513-14 (4th Cir. 1992) (quoting Md. Conserv. Council v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir. 1986) & Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir. 1988)); Ross v. Fed. Highway Admin., 162 F.3d 1046, 1051 (10th C......
  • THE DEVIL IN NEPA'S DETAILS: AMENDING NEPA TO PREVENT STATE INTERFERENCE WITH ENVIRONMENTAL REVIEWS.
    • United States
    • February 1, 2021
    ...24 and accompanying text. (46.) See supra note 43 and accompanying text. (47.) See, e.g., Md. Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039,1042-43 (4th Cir. 1986) (recognizing that the final EIS and ROD would be unduly influenced if the state began construction of a federal highwa......
  • AN INSTITUTIONAL VIEW OF ALGORITHMIC IMPACT ASSESSMENTS.
    • United States
    • Harvard Journal of Law & Technology Vol. 35 No. 1, September 2021
    • September 22, 2021
    ...can be triggered by a federal funding or the need for a permit for private action. Md. Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir. 1986). Essentially a project requires an EIS if it cannot "begin or continue without prior approval of a federal agency." Id. State e......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT