11 ELR 20785 | Environmental Law Reporter | copyright © 1981 | All rights reserved


National Trust for Historic Preservation in the United States v. Adams

No. 80-1022 (4th Cir. January 23, 1981)

The Fourth Circuit Court of Appeals affirms the lower court's ruling that since the proposed widening of a South Carolina highway is purely local in nature, there is no need to comply with federal environmental laws. In addition to the proposed widening, the project would require removal of 28 trees. Although there was no federal involvement in this project, appellants argue that federal funds may be required to further widen the highway at a later time. The court rejects this argument, holding that the possibility of future federal funding of an entirely different project is insufficient by itself to constitute a federal nexus requiring compliance with the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and § 4(f) of the Department of Transportation Act. The court also rejects appellants' policy argument that the state should not be allowed to circumvent the requirements of NEPA and NHPA intentionally because the record is devoid of any evidence of such a deliberate intention. The court also declines to disturb the district court's imposition of a $56,000 surety for a stay pending appeal, noting that the imposition of a bond is discretionary. The district court did not abuse its discretion because appellants waived their right to raise the bond issue on appeal by failing to object in the district court.

Counsel for Appellants
Robert N. Rosen
Rosen, Oberman & Rosen
P.O. Box 1223, Charleston SC 29402
(803) 577-6726

Gary R. Lamberson
2121 Cosgrove Ave., Charleston SC 29405
(803) 554-9994

Counsel for Appellees
Ellison D. Smith IV
Long & Smith
P.O. Box 1112, Charleston SC 29402
(803) 577-4520

Perry Buckner
Wise, Cole & Pearlman
P.O. Drawer O, Charleston SC 29402
(803) 577-7032

Tom Lydon, U.S. Attorney; Lincoln C. Jenkins III, Ass't U.S. Attorney
P.O. Box 973, Charleston SC 29402
(803) 724-4381

James D. Billett, Regional Counsel; James E. Scapellato, Ass't Regional Counsel
Region 4, Federal Highway Administration, Suite 200, 1720 Peachtree Rd. NW, Atlanta GA 30309
(404) 881-4078

Mary Slocum, Richard D. Bybee, Ass't Attorneys General; Daniel R. McLeod, Attorney General
Box 11549, Columbia SC 29211
(803) 758-3970

Before Ingraham,* Hall, and Ervin, JJ.

[11 ELR 20786]

Per curiam:

Several preservation groups and individuals (hereafter, collectively called "National Trust") sued federal and state transportation officials to enjoin the proposed widening of South Carolina Highway 61 and the accompanying removal of twenty-eight trees (eighteen for safety purposes and eight for creation of a left turn lane) [sic]. National Trust contended below that the officials had not complied with certain federal environmental laws.1 Federal and state officials contended that the project was purely local in nature with no federal involvement so that compliance with those laws was not required.

The district court allowed National Trust to undertake extensive discovery for nearly fourteen months, solely on the question of federal jurisdiction. On December 5, 1979, the court granted summary judgment against National Trust with respect to the eighteen safety trees, on grounds that it lacked subject matter jurisdiction. National Trust then sought a stay of that order and a preliminary injunction pending appeal from Circuit Judge Russell, who denied the request on grounds that the facts presently before the court did not show any federal participation in the project and that federal jurisdiction therefore was "highly suspect." (See Appendix at 698; Order dated January 10, 1980). On February 5, 1980, the district court granted summary judgment against National Trust with respect to the remaining eight trees (the left turn trees), again because of lack of subject matter jurisdiction. A stay of that order pending appeal was granted, contingent upon National Trust's posting a $56,000 surety or cash bond.

National Trust now appeals the district court's entry of summary judgment and the court's requirement of a $56,000 bond.

We affirm.

I.

We first turn to the contention that the project was purely a state matter. The record supports such a determination: no federal funds or approval had been requested for this project; the improvements on Highway 61 were to be accomplished solely with state highway maintenance funds. National Trust alleges, however, that the state highway department may have plans to four-lane Highway 61 in the future, and that because federal funds would have to be used for such a project, sufficient federal involvement is shown. The mere possibility of future federal funding of a contested project has been held insufficient to support a finding of federal involvement where no federal participation has ever taken place, see Highland Park v. Train, 519 F.2d 681 [5 ELR 20408] (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976).The possibility of future federal funding of an entirely different project is certainly insufficient, without more, to constitute the major federal action required to bring a project within the purview of federal environmental laws.

The fact pattern in this case is striking similar to Civic Improvement Committee v. Volpe, 459 F.2d 957 [2 ELR 20249] (4th Cir. 1972) (per curiam), in which the court of appeals affirmed the district court's refusal to enjoin a road widening project. In CIC, the federal government had filed a memorandum stating that the project was entirely a

State project, and is not to be approved or rejected by the Secretary of Transportation . . ., nor dependent upon "Federal supervision" . . ., nor subject to any question of compliance with Federal "statutory and regulatory standards" . . . .

See 459 F.2d 958 (emphasis in original). The government contended that in order to subject the project to NEPA standards, it would have to be shown that there was an "eventuality of Federal participation" in the project. Id. The court agreed:

Despite the breadth of the NEPA we think there are doubtless local projects that may be destructive of environmental assets that are not within the ambit and protection of the Act.

Id. The record in this case shows that the widening project was conceived entirely by the state and is to be implemented entirely by the state, with state funds. The project is purely local; as the district court noted, it has "no relationship whatsoever to any Federal program of any kind." (See Appendix at 689.)

National Trust also relies on a broad policy argument that South Carolina should not be allowed to circumvent the requirements of NEPA and NHPA intentionally; it looks to Ely v. Velde, 497 F.2d 252 [4 ELR 20369] (4th Cir. 1974), and Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 [1 ELR 20379] (5th Cir. 1971), cert. denied, 406 U.S. 933 (1972), for support. Both cases are distinguishable from this one because there was ample evidence in each to show that the state did in fact intend to avoid federal environmental obstacles to construction.In San Antonio, a road construction project was divided into three segments: the two end segments did not cross a public parkland, while the middle one did. The Secretary of Transportation approved the two end segments for construction. The Fifth Circuit held that the Secretary had exceeded his authority in doing this; an impact statement was required. The court rejected the state's argument that it could now build the highway with its own funds, particularly in light of the state's candid admission that it would submit other projects "to take up available federal funding." 446 F.2d at 1027. Deliberate circumvention of the Act could not be approved. In Ely v. Velde, this court held that Virginia could not bypass the requirements of NEPA and NHPA by the expediency of requesting the withdrawal of a previously allocated federal grant for the construction of a penal reception and medical center and then diverting the federal funds to other projects within the penal system and constructing the center with state funds. Relying on San Antonio, the court found that a "state's avoidance of NEPA and NHPA, while retaining funds that were granted with the understanding that they would foster the Act's objectives, frustrates Congressional intent . . . ." 497 F.2d at 256. Because the center had not irrevocably become a federally funded project when the state withdrew its request for funds, however, the state's request would be honored if it reimbursed the federal government for all diverted federal money.

The emphasis in both of these cases is on the deliberate efforts of the state to avoid federal environmental laws; here, there is no evidence in the record that the state acted with such an intent. National Trust asserts only that this project is part of a plot to degrade Highway 61 so that in the future it can be widened without significant "impacts," thereby avoiding NEPA and NHPA difficulties. The state, on the other hand, argues persuasively, [11 ELR 20787] and the record reflects, that the project has not been improperly segmented to avoid the requirements of NEPA: it has substantial independent utility (safety) and logical termini (based on traffic count), it will not commit resources in the future (this is a variant of the independent utility inquiry), and it is not part of a larger plan that has become concrete enough to make it highly probable that the entire plan will be carried out in the near future. See Save Our Sycamore v. MARTA, 576 F.2d 573 [8 ELR 20611] (5th Cir. 1978).

Because there is no evidence in the record to support a finding that there is any federal participation, direct or indirect, in this project, and because no evidence shows an intent by federal and state officials to circumvent the requirements of federal environmental laws, we agree with the district court that it had no subject matter jurisdiction.

II.

National Trust also contests the district court's requirement of a $56,000 surety or cash bond. This bond was required before the court would agree to stay its order allowing tree removal to proceed, and in the absence of the bond, National Trust would not have been able to block an immediate cutting of the left turn trees.The trial court's decision to require a bond for this stay pending appeal is discretionary and may not be set aside except upon a showing of abuse of discretion. See FED. R. CIV. P. 62(d). Evidence in the record indicates that the estimated cost of putting in the left turn lane in 1977 was $86,326.39, and in 1979, $142,298.52, a nearly 65% increase of $55,972.13. The district court did not abuse its discretion in determining that the state potentially could be damaged in a like amount from 1979 to 1981 because of a delay in construction.

In any event, it appears that National Trust has waived its right to raise the bond issue on appeal. Nowhere in the record does it appear that National Trust excepted to the bond or did anything other than acquiesce in its imposition. Indeed, counsel at oral argument admitted that no such exception was taken. Because no objection was made to the district court, National Trust cannot now advance the complaint in the court of appeals, see, e.g., Newman v. Prior, 518 F.2d 97 (4th Cir. 1975).

AFFIRMED.

* Fifth Circuit, sitting by designation.

1. The statutes in issue are the Department of Transportation Act, 49 U.S.C. § 1653(f), the National Environmental Policy Act, 42 U.S.C. § 4321 [NEPA], and the National Historic Preservation Act of 1966, 16 U.S.C. § 470 [NHPA].


11 ELR 20785 | Environmental Law Reporter | copyright © 1981 | All rights reserved