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Coalition Against a Raised Expressway v. Dole

Citation: 17 ELR 20466
No. No. 84-1219-C, (S.D. Ala., 10/20/1986)

The court holds that the Department of Transportation (DOT) and the Federal Highway Administration violated § 4(f) of the DOT Act by failing to determine that significant indirect impacts on historic sites located near a proposed interstate highway connector in Mobile, Alabama, constitute a constructive use of the sites under the Act. After initially reviewing the appropriate standard of judicial review for agency actions, the court first holds that the environmental impact statement (EIS) prepared in connection with the construction of highway I-210 is adequate under the National Environmental Policy Act (NEPA). The defendants conducted numerous studies and reviews of several alternative routes, and gave detailed reasons for why the alternative preferred by plaintiffs was rejected. Defendants' predisposed preference for the chosen route does not automatically invalidate the EIS, since there is no evidence that the decisionmakers' good faith objectivity was tainted or that DOT failed to adhere to NEPA requirements. The court then holds that the Secretary of DOT arbitrarily and capriciously decided that the I-210 highway did not use any property protected under § 4(f) of the DOT Act. Construction vibrations, noise, and visual obstructions would cause significant indirect harm to various historic and archaeological sites located close to the proposed route that would substantially impair the enjoyment and value of these properties, resulting in a constructive use.

The court next holds that defendants have not violated the comprehensive and cooperative planning process required under the Federal Aid Highway Act (FAHA), 23 U.S.C. § 134, for certain urban areas. Differences between the city's and state highway department's master transportation plans concerning the location of the proposed highway connector do not mandate a conclusion that the statute has been violated. The court also holds that defendants have not violated the FAHA's public hearing requirements, 23 U.S.C. § 128. The court holds that defendants have complied with DOT regulations concerning abatement of highway traffic and noise impacts during construction. There is no evidence that the noise study reports conducted for the project are technically inadequate, and defendants are attempting to develop mitigation measures. The court holds that defendants complied with § 106 of the National Historic Preservation Act (NHPA). Defendants' responses to the comments of the Advisory Council on Historic Preservation indicate that they took those comments into consideration, even though they disagreed with them. The court holds moot plaintiffs' claim that defendants violated § 110(f) of the NHPA by not protecting the Mobile City Hall, a national historic landmark, to the maximum extent possible by taking action to minimize harm to the building. The court notes that § 110(f) establishes a higher standard of care than does § 106, which requires federal agencies to take into account the effect of their actions on historic properties, but concludes that its ruling under § 4(f) of the DOT Act concerning the constructive use of this and other historic properties renders unnecessary a need to rule on this claim independently. Finally, the court holds that the administrative record is adequate under the Administrative Procedure Act for judicial review.

Counsel for Plaintiff
Barry J. Cutler, Joseph E. Pettison
Suite 800, 1919 Pennsylvania Ave. NW, Washington DC 20006
(202) 887-1400

Counsel for Defendant
Edward Buledich Jr., Ass't U.S. Attorney
P.O. Drawer E, Mobile AL 36601
(205) 832-7280

Counsel for Intervenor
Elizabeth S. Merritt, Ass't General Counsel
National Trust for Historic Preservation
1785 Massachusetts Ave. NW, Washington DC 20036
(202) 673-4000