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Druid Hills Civic Ass'n v. Federal Highway Admin.

Citation: 17 ELR 20797
No. No. C-84-1931-A, 650 F. Supp. 1368/(N.D. Ga., 12/23/1986) Defendants' motion for summary judgment granted, plaintiffs' motion for attorneys fees denied

The court holds that the Secretary of Transportation's approval of construction of the Presidential Parkway through historic properties in Georgia was based on consideration of relevant factors and was neither arbitrary and capricious nor an abuse of discretion, and plaintiffs are not prevailing parties entitled to attorneys fees under either the Civil Rights Act or the Equal Access to Justice Act (EAJA). An earlier decision of this court upheld the Secretary's choice of a highway route against challenges under § 4(f) of the Department of Transportation Act and the National Environmental Policy Act. On appeal, the Eleventh Circuit reversed a portion of the district court decision, holding that the lower court erred in concluding that the defendants' § 4(f) evaluation of the alternative routes was adequate and remanding the case to the Secretary for additional factfinding. The court first holds that the Federal Highway Administration's (FHA's) motion for summary judgment does not improperly ask the court to approve the agency's decision to go ahead with the Presidential Parkway alternative in an advisory opinion. The court holds that its adoption of the Eleventh Circuit's mandate does not constitute a final judgment, and thus the issue is still before the court. The court holds that there is still a live case or controversy before the court even though plaintiffs have not brought additional challenges, since its decision on the § 4(f) issue in the original complaint has not been resolved. The court holds that granting plaintiffs' motion for voluntary dismissal would result in hardship to defendants, since the case has been in litigation for more than two years and the defendants have spent considerable effort in preparing the new § 4(f) findings. The court denies plaintiffs' motion to file an interlocutory appeal. Although whether there is a case or controversy before the court is a controlling question of law, allowing an interlocutory appeal would result in undue delay.

Turning to the merits, the court upholds the Secretary's decision to pursue the Presidential Parkway alternative, which involves the use of § 4(f) historic properties. The court first holds that the Secretary properly construed her authority to use § 4(f) properties only when there were no other feasible and prudent alternatives. The court holds that the Secretary could have reasonably believed that no feasible and prudent alternatives existed. Although one of the alternative routes could have been changed to not require the use of any § 4(f) land, the FHA reasonably determined that the route failed to meet their safety and congestion concerns and that it would have adverse air quality impacts in the area. The court holds that the decision to build the Presidential Parkway rather than choose another alternative using § 4(f) property satisfies the section's requirement that the option that causes the least harm to § 4(f) land be chosen. The defendants undertook extensive analysis of the quality and quantity of the § 4(f) properties and the extent to which each alternative would affect the historic sites. Although the route chosen requires more land from one historic district than the alternatives, it does not require the use of contributing structures. The record contains sufficient information to enable the Secretary to weigh the damage to the protected properties under each alternative, and there is no evidence of a clear error in judgment.

The court holds the plaintiffs are not prevailing parties and thus are not entitled to attorneys fees from the state defendants under the Civil Rights Act or the federal defendants under the EAJA. Plaintiffs did not obtain significant success on any of the issues raised in their complaint, nor did they obtain any of the relief which they sought. The Eleventh Circuit did not find that the defendants' actions were arbitrary and capricious or contrary to law, holding instead that the reasonableness of the decision could not be determined from the environmental impact statement that had been prepared. The court also holds that plaintiffs' motion to file a supplemental brief in support of their application for fees is moot.

[The Eleventh Circuit's decision is published at 15 ELR 21082.]

Counsel for Plaintiffs
David F. Walbert
Walbert & Hermann
Suite 500, 100 Peachtree St., Atlanta GA 30303
(404) 584-8238

Counsel for Defendants
Miles Eastwood, Ass't U.S. Attorney
State Law Dept., 132 State Judicial Bldg., Atlanta GA 30334
(404) 656-4585