Stop H-3 Ass'n v. Coleman
Citation: 6 ELR 20424
No. No. 75-1552, 533 F.2d 434/9 ERC 1383/(9th Cir., 03/08/1976) Rev'd
The Ninth Circuit Court of Appeals reverses a lower court order dissolving previously issued injunctions against the construction of a highway in Hawaii, and directs the district court on remand to enjoin construction until the Secretary of Transportation demonstrates full compliance with the requirements of § 4(f) of the Department of Transportation Act. As presently planned, highway H-3 will pass through Moanalua Valley, which the Secretary of Interior has designated as eligible for inclusion in the National Register of Historic Places under the National Historic Preservation Act, and within 100 feet of a large petroglyph rock in the valley already included in the Register. The Interior Secretary has authority under the latter Act to declare, on his own initiative, areas of local as well as national historical significance eligible for the Register. Once granted, such eligibility entitles the valley to the full protection for historic sites established by § 4(f) and cannot be vitiated by a state review board's determination that the valley has only "marginal" historic significance. To proceed with the highway, the Secretary of Transportation must therefore determine that there is no "feasible and prudent" alternative to highway construction through the valley. If he makes this determination, the § 4(f) inquiry with respect to the petroglyph rock must be whether there has been "all possible planning to minimize harm."
Judge Wallace, in dissent, argues that under the National Historic Preservation Act, the Secretary of Interior has no authority to make a determination of the local significance of an historic area for the purposes of § 4(f) without either an initial determination of significance by state or local officials or a request from the project agency for a ruling as to the area's eligibility for inclusion in the Register. The Judge concurs in the remand order, however, since in his view the trial court failed in the first instance to determine whether the highway would "use the petroglyph rock within the meaning of § 4(f).
Counsel for Plaintiffs-Appellants
Boyce R. Brown
Mattoch, Kemper & Brown
841 Bishop Street, Suite 1401
Honolulu HI 96813
Counsel for Defendants-Appellees
Warren H. Higa, Asst. U.S. Attorney
Honoluly HI 96809
Melvin Y. Mishimoto, Deputy Attorney General
Honolulu HI 96813
For himself and Koelsch, J.; Wallace, J. concurs and dissents in a separate opinion.