Stop H-3 Ass'n v. Coleman
| Decision Date | 08 March 1976 |
| Docket Number | H-3,No. 75-1552,75-1552 |
| Citation | 533 F.2d 434 |
| Parties | , 6 Envtl. L. Rep. 20,424 STOPASSOCIATION et al., and Hui Malama Aina O Ko'olau et al., Appellants, v. William T. COLEMAN, Jr., * as Secretary of the United States Department of Transportation, et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before KOELSCH, ELY and WALLACE, Circuit Judges.
The Moanalua Valley, a beauteous natural wonder that many believe to be of great significance in Hawaiian history, 1 lies on Hawaii's Island of Oahu, directly in the path of a proposed Interstate Highway called H-3. The principal issue on this appeal is whether Moanalua qualifies for protection as an "historic site of . . . State, or local significance" under section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970), and section 18 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970). (Both statutes, which are essentially identical, are hereinafter referred to simply as "section 4(f)". 2) Relying on a published determination by the Secretary of the Interior that Moanalua is eligible for inclusion in the National Register of Historic Places, the appellants 3 contend that section 4(f) applies. The appellees, 4 who rely primarily on a determination by Hawaii State officials that Moanalua is only of "marginal" historic significance, argue that section 4(f) is inapplicable to the routing of H-3 through the Valley. Agreeing with the appellees, the District Court dissolved the injunctions that it had previously entered against construction of the highway. 5 Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974). We reverse.
Public interest in preservation of the physical reminders of our Nation's past has prompted Congress to implement a strong national policy in favor of historic preservation. See 16 U.S.C. §§ 461, 470; 23 U.S.C. § 138; 49 U.S.C. § 1653(f) (1970). In section 4(f), Congress has determined that historic preservation should be given major consideration in connection with all proposed highway construction programs that are to receive financial aid from the federal government. The statute provides, in declaring national policy, that " . . . special effort should be made to preserve . . . historic sites." The statute further provides that before the Secretary of Transportation (hereinafter "the Secretary") may approve the use of Federal funds for a highway that will "use" land from " . . . an historic site of national, State, or local significance as so determined by (the Federal, State, or local officials having jurisdiction thereof)," he must determine that no "feasible and prudent" alternative route exists. If there is no "feasible and prudent" alternative, the Secretary may approve the project only if there has been " . . . all possible planning to minimize harm . . . " to the historic site. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 821, 28 L.Ed.2d 136, 150 (1971). The requirements are stringent. Congress clearly reflected its intent that there shall no longer be reckless, ill-considered, wanton desecration of natural sites significantly related to our country's heritage.
As one step toward implementing the national policy in furtherance of historic preservation, Congress, in the National Historic Preservation Act of 1966 (hereinafter "the NHPA"), 16 U.S.C. §§ 470 et seq. (1970), authorized the Secretary of the Interior
to expand and maintain a national register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture, hereinafter referred to as the National Register . . . .
16 U.S.C. § 470a(a)(1) (1970). The National Register, which includes properties of State and local, as well as national, historic significance, is intended to provide a " . . . convenient guide to properties which should be preserved . . . ." H.R.Rep.No.1916, 89th Cong., 2d Sess., reproduced at 1966 U.S.Code Cong. & Admin.News pp. 3307, 3310. In the NHPA, Congress also created the Advisory Council on Historic Preservation (hereinafter "the Advisory Council"), which is composed of the head officials of certain Federal agencies and other persons, appointed by the President, who have experience and interests in the field of historic preservation. 16 U.S.C. § 470i (1970). The Advisory Council is responsible for coordinating the historic preservation efforts of Federal agencies, state governments, and other organizations, and for making recommendations on matters pertaining to the protection and preservation of historic sites. 16 U.S.C. § 470j (1970).
To facilitate the identification of properties of State and local historic significance that qualify for inclusion in the National Register, the Secretary of the Interior has established certain "National Register Criteria." These Criteria broadly provide, in pertinent part, as follows:
The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:
(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or
(2) That are associated with the lives of persons significant in our past; or
(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
(4) That have yielded, or may be likely to yield, information important in prehistory or history.
36 C.F.R. § 800.10 (1975).
As defined in 36 C.F.R. § 800.3(f) (1975), the phrase "property eligible for inclusion in the National Register" means "any district, site, building, structure, or object which the Secretary of the Interior determines is likely to meet the National Register Criteria." For the purposes of NHPA, the regulations place property that is eligible for inclusion in the National Register on an equal footing with property that is actually listed in the Register. See 36 C.F.R. §§ 800.4(a)-(b) (1975).
As planned, H-3 would constitute the third and final segment of Hawaii's Interstate Highway System. It would be a six-lane, controlled-access highway extending for approximately fifteen miles across the southern half of Oahu, from near Pearl Harbor, on the Island's leeward side, across the Koolau Mountains, to the Kaneohe Marine Corps Air Station, on the windward side. Two conventional highways, the Pali and Likelike Highways, now provide trans-Koolau routes, but according to some official projections, these highways will soon be inadequate to serve the growing population on Oahu's windward side. The Moanalua Valley, which is privately owned, lies within Oahu's interior. H-3's projected route extends for approximately three miles along Moanalua's narrow floor. Within Moanalua, H-3 would pass from within 100 to 200 feet of a large petroglyph rock that is known as Pohaku ka Luahine. 6
In March, 1973, the Moanalua Gardens Foundation, a private, non-profit organization that is interested in Moanalua's preservation, nominated both the Valley and Pohaku ka Luahine for inclusion in the National Register. On July 23, 1973, the Interior Secretary named Pohaku ka Luahine to the National Register. 39 Fed.Reg. 6402, 6422 (1974). In October of 1973, the Interior Secretary's Advisory Board on National Parks, Historic Sites, Buildings and Monuments considered the historic significance of Moanalua Valley. The Board noted that much of the information concerning Moanalua's importance existed only within the private notebooks of oral traditions about the Valley that had been kept by the Valley's former owner, Gertrude Damon, and that since the Damon notebooks had never been released by the Damon estate, they had never been subjected to rigorous scrutiny. Consequently, while the Board believed that Moanalua had not been conclusively demonstrated to be of national historic significance, it concluded that "(h)istorical, cultural, and natural values combined with outstanding potential for an environmental study area endow Moanalua Valley with an importance that makes its preservation clearly in the public interest." 7
On May 8, 1974, the Interior Secretary published a Notice in the Federal Register that Moanalua, along with a number of other properties,
may be eligible for inclusion in the National Register of Historic Places and are therefore entitled to protection under section 1(3) and section 2(b) of Executive Order 11593 and other applicable Federal legislation.
39 Fed.Reg. 16175-76 (1974). 8 Explaining his decision, then Interior Secretary Morton wrote in a letter to the Governor of Hawaii that while Moanalua was not of national historic significance, the Valley "possessed historical and cultural values of at least local dimensions and, therefore, could meet the less stringent criteria of the National Register for sites of local significance." 9
Thereafter, however, on August 5, 1974, the Hawaii Historic Places Review Board, a State body responsible for evaluating and nominating Hawaiian properties for inclusion in the National Register and for maintaining the Hawaii Register of Historic Places, 10 met concerning Moanalua and determined that the Valley was only of "marginal" local significance, 11 a classification that affords the Valley no protection from destruction.
Since Pohaku...
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