Quince Orchard Valley Citizens Ass'n, Inc. v. Hodel

• Decision Date: 07 April 1989
• Docket Number: No. 88-2803,88-2803
• Parties: 19 Envtl. L. Rep. 20,942 QUINCE ORCHARD VALLEY CITIZENS ASSOCIATION, INC.; West Riding Citizens Association, Inc., Plaintiffs-Appellants, v. Donald P. HODEL, as Secretary of the U.S. Department of Interior; James H. Burnley, IV, as Secretary of the U.S. Department of Transportation; Raymond A. Barnhart, as Administrator of the Federal Highway Administration; Sidney Kramer, as County Executive of Montgomery County; Robert McGarry, as Director of Montgomery County Department of Transportation; Elvin R. Heiberg, III, General, as Commander of the U.S. Army Corps of Engineers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 75

872 F.2d 75

19 Envtl. L. Rep. 20,942

QUINCE ORCHARD VALLEY CITIZENS ASSOCIATION, INC.; West Riding Citizens Association, Inc., Plaintiffs-Appellants, v. Donald P. HODEL, as Secretary of the U.S. Department of Interior; James H. Burnley, IV, as Secretary of the U.S Department of Transportation; Raymond A. Barnhart, as Administrator of the Federal Highway Administration; Sidney Kramer, as County Executive of Montgomery County; Robert McGarry, as Director of Montgomery County Department of Transportation; Elvin R. Heiberg, III, General, as Commander of the U.S. Army Corps of Engineers, Defendants-Appellees.

No. 88-2803.

United States Court of Appeals Fourth Circuit.

Argued Nov. 4, 1988.

Decided April 7, 1989.

Randal Michael Shaheen (David S. Eggert, Arnold & Porter, on brief), for plaintiffs-appellants.

Michael Paul Healy (David F. Shuey, Dirk D. Snel, Dept. of Justice, Roger J. Marzulla, Asst. Atty. Gen., Breckinridge L. Willcox, U.S. Atty., David P. King, Asst. U.S. Atty., on brief), Joseph Michael Mott (Miles & Stockbridge, on brief), for defendants-appellees.

Before ERVIN, Chief Judge, BUTZNER, Senior Circuit Judge, and JACKSON L. KISER, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Chief Judge:

The Quince Orchard Valley Citizens Association and the West Riding Citizens Association ("the Associations") filed this action for declaratory and injunctive relief. The Associations hope to halt construction of a new four lane road, the proposed Great Seneca Highway, through the Seneca State Park. They contend that officials of Montgomery County, Maryland ("the County") and various federal agencies connected with this road project have failed to comply with environmental laws which protect the park. Noting that the Associations delayed in bringing this action until six months after all necessary federal approvals for the project had been granted, the district court denied the Associations' motion for a preliminary injunction. The Associations then brought this appeal. Finding no abuse of discretion in the district court's decision, we affirm.

I

Although the facts and procedural history of this case are rather involved, the parties' basic dispute can be easily summarized. In 1971 the County began planning construction of the Great Seneca Highway to alleviate traffic congestion in the Gaithersburg-Germantown area. The Seneca Creek State Park is comprised of roughly six thousand acres along twelve miles of the banks of the Seneca Creek. The park lies squarely between Gaithersburg and Germantown in the middle of the highway's path. Both sides concede that the highway must traverse the park at some point. They strongly disagree, however, over how to route the highway through the park. Several alternative routes have been proposed. The County prefers a plan, or "alignment", known as Alternate 2A. This plan calls for the construction of a new four lane divided highway which will convert 21 acres from park to road use and require the filling of 2.7 acres of wetlands. The Associations prefer either Alternate 4 or 6, which merely involve widening and improving roads that already run through the park. Each of these alignments requires several miles of new road surface to be built on either side of the park although, obviously, the alignment of these approaching road sections will depend upon where the highway eventually crosses the park.

Before sketching the protracted history of this litigation, it will be helpful to note the various federal statutes which apply to the Great Seneca Highway project. These statutes require a number of federal agencies to study the proposed alignments, to make certain factual findings regarding the environmental consequences of each alignment, and to issue construction permits or approvals for the best alignment in accordance with these findings. The eventual resolution of the underlying dispute will turn on the merits of the parties' contentions under these statutes.

The parties agree that no matter which alignment is eventually chosen, section 6(f) of the Land and Water Conservation Fund Act, 16 U.S.C. Sec. 460l-8(f)(3) ("the Conservation Act"), requires the County to obtain the approval of the National Park Service ("NPS") before converting park land to road use. The conversion of park land may be approved "only if [the NPS] finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as [the NPS] deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location." 16 U.S.C. Sec. 460l-8(f)(3). The Conservation Act applies here because, although the park is owned by Maryland, it was purchased with federal financial assistance. The NPS granted approval for Alternate 2A in June of 1987. See, 52 Fed.Reg. 23724 (June 18, 1987). The Associations assert that this approval is contrary to law because the NPS, in its Record of Decision, did not consider "all practicable alternatives" or make any finding that Alternate 2A was the only "prudent and feasible alternative that minimized harm" to the park. The Associations argue that such a finding is required by NPS regulations. See, 36 C.F.R. 59.3. The County and the federal defendants, of course, assert that the record of decision reveals that the proper findings were made.

The parties also recognize that because Alternate 2A requires filling and dredging of almost three acres of wetlands in the park, the County must obtain the approval of the Army Corps of Engineers ("the Corps") pursuant to section 404 of the Water Pollution Control Act, 33 U.S.C. Sec. 1344 ("the Water Act"). Regulations under the Water Act prohibit the issuance of a wetlands permit "if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. Sec. 210.10(a). Here again, the Associations assert that the Corps failed to undertake the reviews and make the environmental findings required by law. In support, the Associations point out that Alternate 4 would require no wetlands construction and Alternate 6 would only impact upon 1.6 acres.

The Associations also argue that section 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303 ("the Transportation Act") applies. Section 4(f) requires the Federal Highway Authority ("the FHWA") to make certain environmental determinations before approving federally funded transportation programs which require the conversion of public park land. The County contends, with the apparent agreement of the Secretary of Transportation, that section 4(f) does not apply here because this project is not federally funded. To date no application for federal assistance has been submitted, although it does appear that the County received some $245,000 in federal planning funds.

Finally, the National Environmental Protection Act (NEPA) requires the foregoing federal agencies to prepare an Environmental Impact Statement ("EIS") concerning the alternative alignments before granting their respective approvals. See Maryland Conservation Council v. Gilchrist, 808 F.2d 1039 (CA4 1987). The FHWA, acting as the lead agency for this project, issued a final EIS contemporaneously with the NPS park land conversion approval. The Associations allege a number of deficiencies in the EIS, based upon the FHWA's failure to supplement its conclusions as a result of alleged changes in population forecasts for the Germantown area.

II

This is the second time that this court has traveled the Great Seneca Highway's proposed alignments. In 1984, prior to any federal approval, the County obtained easements and began building those sections of Alternate 2A that lie outside the park. The Associations then filed suit in the United States District Court for the District of Maryland. The Associations sought to enjoin all construction along Alternate 2A approaching the park until the County obtained the necessary federal approvals of a final alignment through the park. The complaint stated, among other things, that federal approval of the eventual park alignment was required under a variety of environmental statutes, and therefore the National Environmental Protection Act (NEPA) required the County and the relevant federal agencies to prepare an Environmental Impact Statement ("EIS") concerning the alternative alignments. The Associations argued that ongoing or completed construction along Alternate 2A outside the park would necessarily prejudice federal environmental review and cost-benefit analyses of all the proposed alignments. The district court, however, dismissed the Associations' complaint on the grounds that state financed construction of Alternate 2A on land outside the park was not a "federal action" subject to the strictures of NEPA.

This court reversed. In Maryland Conservation Council v. Gilchrist, 808 F.2d 1039 (CA4 1987), we held that NEPA applied because the highway's final alignment through the park must be approved by federal decision makers. The court reasoned that:

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 rcreation uses will be required. Conservation Act Sec. 6(f), 16 U.S.C. Sec. 4601-8(f)(3). In addition, it is alleged that the section of the highway which will cross the park will impinge on wetlands when it crosses Seneca Creek so that a permit from the Secretary of the Army to dredge wetlands will be required pursuant to the provisions of Sec. 404 of the Water Act, 33 U.S.C. Sec. 1344. Finally, if defendants seek additional federal funds for the...