Sierra Club v. US Dept. of Transp.

• Decision Date: 07 July 1988
• Docket Number: No. C 86-3384 RFP.,C 86-3384 RFP.
• Citation: 695 F. Supp. 460
• Parties: SIERRA CLUB, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.
• Court: U.S. District Court — Northern District of California

695 F. Supp. 460

SIERRA CLUB, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.

No. C 86-3384 RFP.

United States District Court, N.D. California.

July 7, 1988.

Law Offices of Maribeth Halloran, Robert J. Breakstone, Breakstone & Cotsirilos, Law Offices of Robert M. Teets, Law Offices of William S. Curtiss, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs Sierra Club, Committee for Green Foothills.

Law Offices of Alan Moss, San Francisco, Cal., for plaintiffs Tyler Ahlgren and Dana Denman.

Paul E. Locke, Asst. U.S. Atty., Land & Natural Resources Div., San Francisco, Cal., for defendant U.S. Dept. of Transp.

Christine Motley, Deputy County Counsel, County Counsel of County of San Mateo, Redwood City, Cal., for defendant County of San Mateo.

ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFFS ON SECTION 4(f) CLAIM

PECKHAM, Chief Judge.

INTRODUCTION

On January 12, 1987, this court enjoined construction of the proposed devil's slide bypass, based on a preliminary determination that the defendants had failed to comply with section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1982), and section 18 of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138 (1982). See Sierra Club v. United States Department of Transportation, 664 F.Supp. 1324, 1327-34 (N.D.Cal.1987). Section 4(f) requires that, before park land can be used by highway projects, the Secretary of Transportation must conduct a study to determine whether there are prudent and feasible alternatives to the proposed project, and whether all possible planning has been carried out to minimize harm to the park. Before us now are cross motions for summary judgment on the section 4(f) claim.

The facts as they are summarized below and in the court's previous opinion, see id., are for the most part not disputed by the defendants. See Defendants' Responses to Requests for Admissions (filed Sept. 18 and Oct. 1, 1987). The defendants do attack certain of the court's preliminary factual and legal determinations. To the extent that there are factual disputes, they must be resolved in the defendants' favor for the purposes of plaintiffs' motion. The plaintiffs' motion for summary judgment will nevertheless be granted, because under the applicable law these factual disputes are not material.

BACKGROUND

California State Highway Route 1, between Pacifica and Montara, is a scenic two-lane highway built along the cliffs overlooking the Pacific Ocean. Since Route 1 was constructed in 1937, landslides have repeatedly forced closure of a 600 foot segment of the highway commonly known as the Devil's Slide. The last major closure lasted for 84 days in early 1983, when the roadbed sank five feet after severe winter storms.

The California Division of Highways began studying bypass alternatives for the Devil's Slide area as early as 1958. In 1960, the California Highway Commission approved a 6.8 mile bypass of Devil's Slide. This proposed route, which left the existing Route 1 at the south end of Pacifica and rejoined it at the north end of Half Moon Bay Airport, became known as the "adopted alignment alternative." Between 1969 and 1972, the California Department of Transportation ("CalTrans") acquired fifty-five percent of the right-of-way needed for the adopted alignment alternative. Construction of the adopted alignment alternative was enjoined by Judge William T. Sweigert, however, in order to compel compliance with newly-enacted federal environmental laws. See Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal.1972). The defendants suspended their compliance efforts in 1975, due to a lack of funds. See State Defendants' Response to Requests for Admissions at 3-4.

In the late 1970's, the California Department of Parks and Recreation (DPR) began negotiations to purchase land situated on both sides of the adopted alignment alternative right-of-way. This land eventually became McNee Ranch State Park. The Public Works Board approved the purchase of the park land in 1979, and by 1981 the Department of General Services had completed eminent domain suits to acquire the land. In early 1984, the land was formally turned over to the DPR for administration as part of the state park system. See Federal Defendants' Brief at 13-14 & n. 16. At the time this land was acquired, the highway project was dormant and unfunded. However, the DPR was aware of the possibility that a highway might eventually be built between the two parcels of the park.

Federal funding was made available for a bypass project after Route 1 was severely damaged by winter storms in 1983. In March of 1983, CalTrans began to prepare a draft environmental impact statement for the bypass project. In 1985, however, the California Coastal Commission twice disapproved amendments to the San Mateo County Local Coastal Plan which were required by state law in order for construction to commence along the adopted alignment. In response, CalTrans abandoned the adopted alignment in favor of the "preferred" or "Martini Creek" alternative, which is the subject of the present suit. In February of 1986, the California Coastal Commission found that the Martini Creek alternative was consistent with the policies and objectives of the California Coastal Zone Management Program, thereby allowing the project to go forward. The federal defendants approved the Final Environmental Impact Statement FEIS on April 16, 1986.

As is set forth in the FEIS, the Martini Creek project is a 4.5 mile inland bypass with one lane in each direction plus a continual uphill passing lane on each side of the Saddle between San Pedro and Montara Mountains. At the top of the saddle cut, there would be four paved lanes for approximately three-tenths of a mile because each of the uphill lanes would continue over the top of the saddle and begin to descend before merging into a single downhill lane. There would be continuous vehicle recovery areas on the downhill side of the bypass except at the top of the saddle cut and over the four planned bridges. At three locations, there would be vehicle retention areas. The project would vary in width from approximately 79 to 108 feet. The four bridges would be 56 feet wide. The project would be located between the two parcels of McNee Ranch State park on the same right-of-way as the adopted alignment alternative, but it would turn west at the southern edge of the park and follow Martini Creek to rejoin the existing Route 1 just north of Montara.

It is estimated that total grading for the project would be 5.9 million cubic yards. The construction of the project will require seven "cuts" into the mountains greater than 150 feet deep, with the largest cut of 250 feet at the saddle between San Pedro and Montara Mountains. The lengths of these cuts will vary from approximately 350 to 2100 feet. The largest "fill" slope, on the north side of San Pedro Mountain, will be approximately 250 feet high. The cuts and fills will be visible to park visitors from various locations in the park, as will the highway itself.

DISCUSSION

The plaintiffs' motion challenges the propriety of the Secretary of Transportation's decision not to conduct a section 4(f) study before approving the devil's slide bypass project. The Secretary's action was based on a determination that the proposed project would not have a significant adverse impact on the park. See FEIS, Administrative Record Item A.R. 653 at 143-152. In reviewing the propriety of the Secretary's action, we of course start with the language of the statute itself:

The Secretary may approve a transportation program or project requiring the use of publicly owned land of a public park ... 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 park....

49 U.S.C. § 303(c) (1982). The Supreme Court and the Ninth Circuit have held that section 4(f) should be applied zealously to protect park land. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Alder v. Lewis, 675 F.2d 1085 (9th Cir.1982); Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972). In the face of this precedent, the defendants argue that section 4(f) should be read narrowly not to apply to highway projects that are jointly planned with parks. In the alternative, the defendants argue that even if section 4(f) applies, the devil's slide bypass would not constructively use McNee Ranch State Park.

1) Standard and Scope of Review

The standard for judicial review of the Secretary's determination not to conduct a 4(f) study is whether that action was "`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" This standard does not shield the Secretary's action "`from a thorough, probing, in-depth review.'" A reviewing court must determine "`whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Sierra Club, 664 F.Supp. at 1329 (quoting Citizens to Preserve Overton Park, 401 U.S. at 412-13, 415, 416, 91 S.Ct. at 821-22, 823, 823).

As a general rule, courts must review agency action "by scrutinizing the administrative record at the time the agency made its decision." Asarco v. EPA, 616 F.2d 1153, 1159 (9th Cir.1980). However, there are a number of exceptions to this rule, even when the Agency's fact-finding procedures were adequate. The trial court has the discretion to receive additional evidence, including expert testimony, for certain limited purposes.

If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency action only for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or

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