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National Wildlife Fed'n v. Adams

Citation: 10 ELR 20959
No. No. 79-4223, 629 F.2d 587/15 ERC 1444/(9th Cir., 10/02/1980)

The Ninth Circuit Court of Appeals affirms the lower court's denial of a request for a preliminary injunction barring construction of two federally funded highway projects located adjacent to a Trident submarine base. Appellants challenged (1) the Federal Highway Administration's compliance with Executive Order No. 11990, governing federal construction in wetland areas, (2) the adequacy of the draft environmental impact statement (EIS) prepared for the project on the grounds that it failed to consider the full impact of the project on wetlands, and (3) the decision of the Secretary of Defense to pool impact funds for construction of the highway, pursuant to the Military Construction Authorization Act of 1975. In light of its conclusion that the prohibition in the executive order is less stringent than that of § 4(f) of the Department of Transportation Act, the court finds that appellees adequately complied with the executive order by considering alternative proposals and adopting mitigation measures. Approval of the project was therefore neither arbitrary, capricious, nor an abuse of discretion. The court further finds that the discrepancy between the draft and final EISs regarding the number of acres of wetlands affected by the project did not preclude meaningful comment on the draft EIS by interested agencies or parties. Lastly, the court finds that the Military Construction Authorization Act of 1975, which authorizes payment of federal funds to communities located near the Trident base, does not prohibit the pooling of such funds so long as the project funding does not exceed the total Trident-related share of the overall cost of improving state and federal highways.

Counsel for Appellant
Roger M. Leed, Michael W. Gendler
Smith, Brucker, Winn & Ehlert
1411 4th Ave., Seattle WA 98101
(206) 624-8901

Terence Thatcher
Pacific N.W. Clinic
University of Oregon Law School, Eugene OR 97403
(503) 686-3852

Counsel for Appellees
Nancy B. Firestone, Carl Strass; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Charles F. Secrest
5th Floor, Highway License Bldg., Olympia WA 98504
(206) 753-6054

Counsel for Intervenor Kitsap County
Ronald A. Franz, Prosecuting Attorney
614 Division St., Port Orchard WA 98366
(206) 876-7174

Before KENNEDY and HUG, Circuit Judges, and WILLIAMS*, District Judge.