National Wildlife Federation v. Adams

• Decision Date: 02 October 1980
• Docket Number: No. 79-4223,79-4223
• Citation: 629 F.2d 587
• Parties: , 10 Envtl. L. Rep. 20,959 The NATIONAL WILDLIFE FEDERATION et al., Plaintiffs-Appellants, v. Brock ADAMS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 587

629 F.2d 587

15 ERC 1444, 10 Envtl. L. Rep. 20,959

The NATIONAL WILDLIFE FEDERATION et al., Plaintiffs-Appellants, v. Brock ADAMS et al., Defendants-Appellees.

No. 79-4223.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1980.

Decided Oct. 2, 1980.

Ronald A. Franz, Port Orchard, Wash., Roger M. Leed, Seattle, Wash., Terence Thatcher, Washington, D.C., for plaintiffs-appellants.

Nancy B. Firestone, Washington, D.C., Charles F. Secrest, Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY and HUG, Circuit Judges, and WILLIAMS ^*, District Judge.

HUG, Circuit Judge:

This is an appeal from an order of the district court denying appellants' motion for a preliminary injunction to restrain further construction of two highway segments approved for federal funding in connection with the Trident Submarine Base located in Bangor, Kitsap County, Washington. ¹ The issues on appeal are whether the appellees complied with provisions of: (1) Executive Order 11,990, 42 Fed.Reg. 26,961 (1977), which is titled "Protection of Wetlands"; (2) the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4369; and, (3) section 608 of the Military Construction Act of 1975, Pub.L.No. 93-552, 88 Stat. 1745, 1763 (1974), which authorizes the use of federal funds to assist communities near the Bangor Trident site in meeting the cost of providing increased services and facilities for residents of the area. The district court found that appellees had complied with all the statutory requirements. The district court refused to enjoin the construction, concluding that appellants had not shown a probability of success on the merits, and that the public interest would suffer far more serious harm if an injunction were issued than would appellants if it were not. We affirm.

I

One of the primary problems anticipated as a result of the construction of the Trident Base at Bangor, with the concomitant population increase, was the lack of a transportation network sufficient to provide access to the base. ² Two highway projects are involved in the present dispute. One project is the proposed new 8.14 mile section of State Route 3 (SR-3). The existing section of SR-3, which is presently a two-lane road, and is the main north-south route through Kitsap County, will be replaced by a controlled-access highway with two lanes in each direction. This new highway will run from the Clear Creek Road Interchange near Silverdale to the existing SR-3 near Poulsbo. The route selected for this new highway, known as the T-5 alternative, runs through the Clear Creek Valley to the west of the present section of SR-3. The second proposed improvement challenged in this appeal, the Bucklin Hill Bypass, is a county road which will connect to the new SR-3 at the Clear Creek Road Interchange and provide service to Silverdale. ³

The principal environmental concerns raised by the appellants relate to the effect of SR-3 on wetlands and agricultural land. Specifically, appellants contend that appellees have not complied with the mandate of Executive Order 11,990 of strict protection of wetlands, and that the effect of SR-3 upon such lands was not adequately described in the Draft Environmental Impact Statement (DEIS). In addition, appellants contend that the Department of Defense is providing a larger amount of funding for the SR-3 and Bucklin Hill Bypass projects than is permitted by section 608.

II

This case was originally filed on November 3, 1978 in the United States District Court for the District of Columbia. On January 31, 1979 a preliminary injunction was entered preventing any action on SR-3 until February 20, 1979; this injunction was later extended to March 9, 1979. A motion to change venue to the Western District of Washington was granted. The State of Washington was granted leave to intervene on February 2, 1979, and Kitsap County was granted such leave on February 9, 1979.

On March 8, 1979, a hearing was held on appellants' renewed motion for a preliminary injunction. The district court issued a memorandum opinion and order denying injunctive relief and entered judgment on March 13, 1979. This appeal followed.

III

Our review on an appeal from denial of a preliminary injunction is limited to determining whether the district court has "abused its discretion or based its decision upon an erroneous legal standard or clearly erroneous finding of fact." City of Anaheim, California v. Kleppe, 590 F.2d 285, 288 n. 4 (9th Cir. 1978); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir. 1978). In recent cases this court has approved a tripartite test for determining the propriety of injunctive relief:

(1) Have the movants established a strong likelihood of success on the merits? (2) Does the balance of irreparable harm favor the movants? (3) Does the public interest favor granting the injunction?

Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir. 1977); Sierra Club v. Hathaway, 579 F.2d at 1167. ⁴

The district court, in denying the injunction in the present case, correctly considered these factors. The court found that the appellants had not shown a strong likelihood of success on any of their claims, and that the public interest would "suffer far more serious harm" if injunctive relief were granted than would appellants if it were not. We agree with the district court's evaluation.

IV

Appellants argue that the selection of the T-5 route did not comply with the directive of Executive Order 11,990 that each federal agency shall avoid undertaking or providing assistance for new construction in wetlands unless there is "no practicable alternative to such construction." ⁵ Appellants contend that there was an inadequate search for alternatives to the T-5 route, pointing to at least three alternatives they allege are preferable to T-5 in terms of impact on wetlands. The district court found that the Federal Highway Administration (FHWA) did construe its authority consistently with the Order and reasonably made the determination therein mandated.

Appellants analogize Executive Order 11,990 to section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f), and section 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, as amended. The language of these statutes protecting public parks is similar though not identical to that of Executive Order 11,990. ⁶ The two statutes provide that the Secretary of Transportation "shall not approve" any project which requires use of park land unless "there is no feasible and prudent alternative." The Executive Order provides that each agency "shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds . . . that there is no practicable alternative to such construction . . . ." The Executive Order also adds a sentence on making the determination of practicability not contained in the two statutes: "In making this finding the head of the agency may take into account economic, environmental and other pertinent factors."

It is apparent that the language of the statutes is more restrictive than Executive Order 11,990. The statutes prohibit approval absent a finding of no feasible alternative, whereas Executive Order 11,990 states that the use of wetlands is to be avoided absent a finding of no practicable alternative. Furthermore, the agency, under Executive Order 11,990, is expressly allowed to take into account economic, environmental and other pertinent factors.

The Supreme Court has held that the two statutes permit the construction of highways through park lands only in "the most unusual situations," specifically, "where alternative routes present unique problems." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971).

We have no doubt that Executive Order 11,990 extends a broader protective aura to wetlands than would NEPA standing alone. We conclude, however, that the Order does not go so far as the statutes discussed in Overton Park. The wording of the Executive Order is less prohibitive and contemplates more balancing of other factors than the statutes at issue in Overton Park. The test for determining whether an alternative propounded by agencies promulgating regulations under Executive Order 11,990 is practicable is whether it is capable of attainment within relevant, existing constraints. ⁷

Our review of the decision of the head of the agency is limited to determining whether the choice is "arbitrary, capricious, (or) an abuse of discretion" under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Overton Park, 401 U.S. at 416, 91 S.Ct. at 823.

To make this finding 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. Although this 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.

Id. (citations omitted).

After issuance of the DEIS, in response to extensive comments received by the FHWA from the United States Fish and Wildlife Service (FWS), the FHWA undertook a study in order to determine if the mandate of Executive Order 11,990 had been met. ⁸ A biology report was prepared, entitled "Wetlands on the Trident Base Access Study Area," which carefully examined the impact of SR-3 on wetlands and the impact on wetlands of alternatives discussed in the DEIS. This study classified as wetlands much of the land previously identified as pastureland in the DEIS. After reviewing all the relevant information, the FHWA, on March 20, 1978, issued a "Wetlands Determination." This report concluded that there was no practicable alternative to T-5 under Executive Order 11,990, and, in...