Stop H-3 Ass'n v. Dole

• Decision Date: 20 March 1989
• Docket Number: No. 87-2204,H-3,87-2204
• Citation: 870 F.2d 1419
• Parties: , 57 USLW 2569, 19 Envtl. L. Rep. 20,873 STOPASSOCIATION, a Hawaiian non-profit corporation; Life of the Land, a Hawaiian non-profit corporation; Hui Malama Aina O Ko'Olau, Plaintiffs-Appellants, v. Elizabeth DOLE, as Secretary of the United States Department of Transportation; William R. Lake as Hawaii Division Engineer, Federal Highways Administration; and Edward Hirata, as Director of the Department of Transportation of the State of Hawaii, Defendants-Appellees. *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1419

870 F.2d 1419

29 ERC 1390, 57 USLW 2569, 19 Envtl.

L. Rep. 20,873

STOP H-3 ASSOCIATION, a Hawaiian non-profit corporation;

Life of the Land, a Hawaiian non-profit

corporation; Hui Malama Aina O Ko'Olau, Plaintiffs-Appellants, v. Elizabeth DOLE, as Secretary of the United States Department

of Transportation; William R. Lake as Hawaii Division

Engineer, Federal Highways Administration; and Edward

Hirata, as Director of the Department of Transportation of

the State of Hawaii, Defendants-Appellees. ^*

No. 87-2204.

United States Court of Appeals, Ninth Circuit.

Argued Nov. 13, 1987.

Decided March 20, 1989.

Boyce R. Brown, Jr., Brown, Johnston & Day, Honolulu, Hawaii, for plaintiffs-appellants.

Kathryn A. Oberly, Sp. Deputy Atty. Gen., State of Hawaii, Mayer, Brown & Platt, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.

PREGERSON, Circuit Judge:

I. BACKGROUND

This appeal involves the construction of an interstate highway project in Hawaii which has been the subject of litigation now spanning some sixteen years. ¹ The litigation began in 1972, when the Stop H-3 Association sought permanently to enjoin construction of the highway, known as the H-3 project, out of concern for its impact on the environment. That same year the parties worked out a stipulation providing that construction would proceed at both ends of H-3, but would cease in the central portion of the highway pending a trial on the merits. ² The district court accordingly issued a temporary injunction enjoining work on the project pending resolution of the action. C.R. 43.

The consolidated complaint of the environmental organizations, appellants here, ³ raised a number of issues, two of which are relevant to this appeal. First, appellants contended that appellees ⁴ had violated the National Environmental Policy Act of 1969, 42 U.S.C. Secs. 4321-4347 ("NEPA"), by filing a deficient Environmental Impact Statement (EIS).

Second, appellants maintained that appellees had not complied with section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. Sec. 303, and section 18 of the Federal Aid Highway Act of 1968, 23 U.S.C. Sec. 138. These sections contain nearly identical language and are commonly referred to collectively as "section 4(f)" or the "4(f) statutes." Under section 4(f), the Secretary

shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

The Secretary's determination that the conditions of section 4(f) are satisfied is known as a "section 4(f) statement."

The case went to trial in 1974. After the trial, the district court found that appellees had not violated NEPA, section 4(f), or any other federal, state or local provisions. As a result, it lifted the preliminary injunction. Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D. Hawaii 1974), rev'd sub nom. Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). However, on appeal to this court, appellants sought and obtained reimposition of the preliminary injunction. Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). We held that appellees had failed to comply with section 4(f) before approving the release of federal funds for H-3. Id. at 445. Specifically, we held that the Moanalua Valley, through which H-3 would pass, was protected land; therefore we rejected the Secretary's argument that section 4(f) did not apply. Id.

Appellees subsequently filed a 4(f) statement for Moanalua Valley, but the Secretary found reasonable alternatives to using that land and did not approve the project. Appellees then decided to reroute H-3 to the north, filing a supplemental EIS (SEIS) and 4(f) statement which the Secretary approved in 1981. In the meantime, the district court continued to enforce the preliminary injunction, holding that the new route was within the purview of the 1972 stipulation.

Appellants challenged the new proposal, raising forty-eight separate claims. Appellants were primarily concerned with the impact of the new route on two protected areas, the Pali Golf Course and Ho'omaluhia Park. After a 1981 trial on the merits, the district court ruled in favor of appellees on nearly all counts. Most importantly, the district court affirmed the Secretary's determination that there was no prudent alternative to the new proposal, and approved both the EIS and SEIS. Having identified only minor noncompliance with NEPA and section 4(f), the district court decided to lift the preliminary injunction. Stop H-3 Ass'n v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982).

A second appeal to this court ensued, and we once again reimposed the preliminary injunction. We were not convinced that the "Makai Realignment" and the "No Build Alternative" were imprudent. We held that such a determination was an abuse of discretion on the record as it then existed, and remanded the matter to the Secretary for further consideration. We affirmed the district court in all other respects. Stop H-3 Ass'n v. Dole, 740 F.2d 1442 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985).

On October 18, 1986, the Continuing Appropriations Bill for Fiscal Year 1987, Pub.L. No. 99-500, 100 Stat. 1783 (later reenacted as Pub.L. No. 99-591, 100 Stat. 3341) became law. Section 114 of this bill, 100 Stat. 1783-349 (later reenacted as 100 Stat. 3341-349), ordered the Secretary to approve construction of H-3 "notwithstanding" section 4(f). On January 16, 1987, the Secretary approved the section of H-3's central portion lying between the Halawa and Kaneohe interchanges, but suspended approval for the small segment lying between the Kaneohe and Halekou interchanges.

Appellees then moved for dismissal of the complaint, arguing that section 114 had rendered moot all issues raised in appellants' complaint that remained after this court's 1984 decision. Appellees also moved for a lifting of the preliminary injunction, arguing that the requirements of the 1972 stipulation, NEPA and its regulations had all been complied with. The district court agreed with appellees, and on May 26, 1987 dismissed the complaint and lifted the preliminary injunction. C.R. 507, 508.

In this third appeal, appellants challenge the district court's decision to dismiss the complaint and lift the preliminary injunction. Specifically, they argue that the requirements of the 1972 stipulation, NEPA, and the applicable regulations have not been satisfied. They also contend that section 114 is an unconstitutional exercise of congressional power, violating the Spending Clause, the equal protection component of the Fifth Amendment's Due Process Clause, and the principle of separation of powers. Appellants seek reversal of the district court's decision and reimposition of the preliminary injunction.

II. STANDARD OF REVIEW

We review de novo the district court's decision to grant a motion to dismiss for mootness. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 319 (1986). The district court's decision to lift the preliminary injunction is reviewed for abuse of discretion. See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986).

III. DISCUSSION

A. NEPA and the Stipulated Injunction

Appellants argue that the district court erred in holding that appellees had complied with the terms of the stipulated injunction. According to appellants, the terms of the stipulation required that the court determine the adequacy of a Third Supplemental Environmental Impact Statement, which appellees were in the process of preparing, before construction of H-3 could proceed. Because appellants were not given the opportunity to litigate the adequacy of the Third SEIS, they argue, the injunction should be reinstated.

Appellants also contend that appellees' decision to prepare a Third SEIS lengthened the EIS process beyond the approval of the 1982 EIS and thus rendered premature the district court's dismissal of the action. According to appellants, the district court could not dismiss the action prior to its approval of the Third SEIS.

1. The Stipulation

In 1972, the parties entered into a stipulation that provided, in relevant part:

It is agreed that Defendants shall not permit construction, further acquisition of right of way, or further letting of contracts on the Moanalua-Haiku Segment until the adequacy of the Final Environmental Impact Statement is determined by this Court.

C.R. 34, at 3. ⁵

In 1980, FHWA approved a final SEIS for the North Halawa Valley alignment of the H-3 project. Together with the 1972 Moanalua Valley EIS ("1972 EIS") and the 1973 Supplemental EIS ("1973 Preface"), the 1980 SEIS constituted the EIS for the North Halawa Valley alignment of the project. Location and design approval for the H-3 project was given on February 5, 1981. On April 10, 1981, appellants filed a 142 page, 48 count, Amended and Supplemental Complaint for Declaratory and Injunctive Relief, challenging the appellees' decision to proceed with the H-3 project.

In its decision of April 8, 1982, the district court held that the 1972 EIS and 1973...