Sierra Club v. US Dept. of Transp.

Decision Date12 January 1987
Docket NumberNo. C-86-3384 RFP.,C-86-3384 RFP.
PartiesSIERRA CLUB, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.
CourtU.S. District Court — Northern District of California

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan Moss, Maribeth Halloran, Robert Breakstone, Breakstone & Cotsirilos, Charles D. Chalmers, Flynn, Steinberg, Dick & Lee, Robert M. Teets, San Francisco, for plaintiffs.

Paul E. Locke, Asst. U.S. Atty., Norval Fairman, San Francisco, Christine Motley, Deputy, Hall of Justice & Records, Redwoody City, Dwight Herr, County Counsel, Santa Cruz, for defendants.

MEMORANDUM AND ORDER GRANTING PRELIMINARY INJUNCTION

PECKHAM, Chief Judge.

INTRODUCTION

The plaintiffs in this case seek to prevent the construction of a proposed highway bypass of California State Highway Route 1 between Pacifica and Montara. This portion of Route 1 is presently a rural and scenic two-lane highway built along the cliffs overlooking the Pacific Ocean. The highway was built in 1937 on the old Ocean Shore Railroad alignment, which had been abandoned by the railroad in the 1920's. Since 1937, landslides have repeatedly forced closure of the road along a 600-foot segment of highway commonly known as Devil's Slide. The last major closure occurred for 84 days during the severe winter storms of 1982-83, when a portion of the roadbed sank five feet.

In 1958, the State Division of Highways began studying bypass alternatives for the Devil's Slide area, and in 1960, the California Highway Commission approved a 6-lane inland freeway route which left the existing Route 1 at the south end of Pacifica and rejoined it approximately 6.8 miles south at the north end of the Half Moon Bay Airport. This proposed route came to be known as the "adopted alignment alternative." Between 1969 and 1972, the California Department of Transportation ("CalTrans") acquired approximately 150 parcels of land totaling 55% of the right-of-way needed for this bypass alternative. However, the highway project was abandoned in 1972 when it was preliminarily enjoined by Judge William T. Sweigert in order to compel compliance with the newly enacted federal environmental laws. See Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal. 1972).

In the mid-1970's, the State Department of Parks and Recreation ("DPR") began negotiations to purchase McNee Ranch State Park. During this period of time, the highway bypass project remained dormant and unfunded, but DPR was aware of the possibility that it might eventually be revived. The directors of CalTrans and DPR discussed the park and the highway project, and the director of CalTrans assured the director of DPR that the bypass would be built only if there were no other alternative. With this understanding, DPR apparently agreed not to purchase a portion of land alongside Martini Creek because CalTrans indicated that it might later be needed for the bypass. However, both the director of CalTrans and the director of DPR understood that DPR hoped eventually to acquire the CalTrans right-of-way as part of the park. In 1978, the Public Works Board approved the purchase by DPR of the two parcels of land on either side of CalTrans' right-of-way, and by 1981 DPR had completed the eminent domain suits to acquire the land.

After the severe damage to Devil's Slide in 1983, a bill was introduced in Congress to make the highway eligible for emergency relief funds. After hearings before the House Surface Transportation Committee, the bill was passed and additional funding for eligible projects made available. In March 1983, CalTrans began preparation of a draft environmental impact statement on an expedited basis in order to meet the federal funding obligation deadline of September 30, 1986. In 1985, however, the California Coastal Commission twice disapproved amendments to the San Mateo County Local Coastal Plan which were required under state law for the adopted alignment alternative to proceed. CalTrans then abandoned the adopted alignment alternative in favor of the "preferred" or "Martini Creek alternative," which is the subject of this lawsuit. This alternative was approved by the California Coastal Commission in February 1986. The Final Environmental Impact Statement for the project was approved by the federal defendants in April 1986.

The proposed bypass at issue here is a 4.5 mile inland bypass with one lane in each direction plus a continual uphill passing lane on each side of the San Pedro Mountain saddle. At the top of the saddle cut, there would be four paved lanes for approximately half a mile, because each of the uphill passing lanes are planned to continue over the top and begin to descend before merging with the single downhill lane. There would be continuous vehicle recovery/retention areas on the downhill sides of the bypass, except at the top of the bypass and over four bridges. The width of the bypass, including vehicle recovery/retention areas, is planned to vary from 79 to 100 feet. The four paved bridges would be 56 feet wide. Total grading for the project is estimated at 5.9 million cubic yards. The bypass would take the same route along the right-of-way through McNee Ranch State Park as the "adopted alignment alternative," but it would turn west at the southern park boundary and follow the southern edge of Martini Creek to rejoin the existing Route 1 just north of Montara.

This case is now before the court on plaintiffs' motion for a preliminary injunction to prevent the defendants from: (1) advertising, awarding, or approving any bids, testing, or construction work on the highway bypass; (2) engaging in any physical intrusion on the land without further order of this court; (3) filing condemnation actions or taking any other action to acquire right-of-way; (4) expending federal funds for the project or seeking reimbursement from federal funds for work engaged in after September 3, 1986, when the parties stipulated to a temporary restraining order; and (5) seeking any further permits or approvals for this project. The plaintiffs also seek to set aside the federal defendants' approval of the Plans, Specifications and Estimates for this project. The court held a hearing in this matter on November 7, 1986, and has reviewed numerous declarations submitted by the parties as well as the voluminous administrative record.

DISCUSSION

The Ninth Circuit has enunciated both a "traditional" and an "alternative" test for evaluating a claim for preliminary injunctive relief. Under the traditional test, the court must consider three questions: (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? See American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 965 (9th Cir.1983). "The `alternative' test permits the moving party to meet its burden by demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in its favor." Id. (citations omitted). The Ninth Circuit has also made clear, however, that the tests are "`not really two entirely separate tests, but ... they are merely extremes of a single continuum.'" Village of Gambell v. Hodel, 774 F.2d 1414, 1419 (9th Cir.1985) (quoting Benda v. Grand Lodge of IAM, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979)), cert. granted, ___ U.S. ___, 106 S.Ct. 2274, 90 L.Ed.2d 717 (1986). Because the differences between the formulations are insignificant, either will suffice. See id. Thus, we begin by reviewing the traditional three criteria for preliminary injunctive relief.

I. Probability of Success on the Merits

Plaintiffs challenge the bypass on the following grounds: (1) failure to comply with § 18 of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138 (1982), and § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1976) (recodified at 49 U.S.C. § 303(c) (1982)), which prohibit the use of parkland for highway purposes unless there is no feasible and prudent alternative1; (2) failure to comply with administrative regulations that govern the use of federal emergency relief funds; and (3) failure to prepare a sufficient environmental impact statement under the National Environmental Policy Act, 42 U.S.C. § 4332(C) (1982).

A. Section 4(f)

Section 4(f) of the Department of Transportation Act of 1966 prohibits the Secretary of Transportation from approving any transportation project that requires the use of a public park of state or local significance unless: (1) there is no prudent and feasible alternative, and (2) the project includes all possible planning to minimize harm to the park. See 49 U.S.C. § 303(c) (1982). The implementing regulations promulgated by the Secretary require the Secretary to prepare a written "§ 4(f) Statement" justifying any such "use" of a park. See 23 C.F.R. § 771.135(h), (i) (1984). The plaintiffs in this case contend that the bypass project must be halted until the defendants have prepared a § 4(f) Statement analyzing whether there are prudent and feasible alternatives to the bypass.2

In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court rejected the argument that the Secretary's determinations under § 4(f) are immune from judicial review. The court noted:

The very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that
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