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Stop H-3 Ass'n v. Dole

ELR Citation: 14 ELR 20777
Nos. No. 82-4357, 740 F.2d 1442/21 ERC 1644/(9th Cir., 08/21/1984) Rev'd in part after remand

The court rules that the Secretary of Transportation's approval of Interstate Route H-3 In Hawaii violated the parkland protection provisions of the Department of Transportation Act (DOTA), but did not violate the Endangered Species Act (ESA) or the National Environmental Policy Act (NEPA). Since the proposed route of H-3 takes parkland, under DOTA §4(f) and the similar Federal-Aid Highway Act (FAHA) §18, the Secretary must make a finding that there is no feasible and prudent alternative before approving the route. A court should review the Secretary's §4(f) determination under the arbitrary and capricious standard; however, the court must thoroughly review the determination and the record to ensure that the Secretary observed the §4(f) requirements. Further, the court need give the district court opinion no particular deference, and if it is to uphold the administrative action it is limited to the grounds given by the agency. The court concludes that the Secretary failed to show the imprudence of two alternatives to the approved route. The problems the Secretary cited for the Makai Realignment alternative do not meet the Citizens to Preserve Overton Park v. Volpe criteria for a finding of imprudence. The displacement of a church, four businesses, and 31 residences is not a disruption of extraordinary magnitude. The increased cost of $42 million is not extraordinary, nor is the increased impact on nearby residences. The Makai Realignment is apparently not as safe as the selected alternative, but upon especially close review of the record, the court holds that the safety considerations reflected in the record are not so unique, truly unusual, or extraordinarily great as to render the alternative imprudent. In fact, the record poorly documents the magnitude of the safety risk and could not be the basis of a rational finding of imprudence on this ground. Even taken together, the discussed drawbacks do not justify a deterination on the record that the Makai Realignment is imprudent.

The court also holds that the Secretary did not sufficiently justify her rejection of the "No Build" alternative. The court holds that simply establishing a need for a highway does not justify taking §4(f) parklands. Although the Secretary found that the No Build alternative would necessitate purchase of new commuter buses, increase traffic congestion and safety hazards on existing roads, and increase the costs of mass transit, as documented in the record these drawbacks do not justify a finding of imprudence under the Overton Park standards.

The court next holds that the Secretary's agent, the Federal Highway Administration (FHwA), complied with the ESA in approving H-3. FHwA may not delegate its responsibility under the Act to insure that it does not jeopardize the existence of an endangered species. But FHwA's decision to rely on the United States Fish and Wildlife Service expert opinion that there would be no ill effects on the endangered Oshu creeper was not arbitrary or capricious, despite admitted weaknesses in the data underlying the opinion and disagreements over H-3's effects among experts.

The court also holds that FHwA complied with NEPA. The court notes that judicial review of NEPA compliance is much more limited than review of §4(f) compliance and requires only that the Agency has taken a "hard look" at environmental consequences. The district court's findings that the H-3 environmental impact statement (EIS) adequately addressed socioeconomic effects and adequately discussed conformity with local land use plans are not clearly erroneous. Neither changes in land use plans, changes in population estimates, nor census results were significant enough or so poorly discussed as to make the decision not to supplement unreasonable. Finally, the court rules that incorporation of the EIS by reference satisfied the environmental consideration requirements of the FAHA's location/design approval provision.

Judge Wallace, concurring in part, argues that DOTA §4(f) does not require consideration of the No Build alternative.

[Related cases appear at 2 ELR 20648, 3 ELR 20130, 3 ELR 20689, and 6 ELR 20424.]

Counsel for Appellants
Boyce R. Brown
Brown & Durant
222 Merchant St., Honolulu HI 96813
(808) 521-5337

Ronald A. Albu
Legal Aid Society of Hawaii
47-200 Waihee Rd., Suite 104, Kaneohe HI 96744
(808) 239-5707

Counsel for Appellees
Warren H. Higa, Deputy Attorney General
State Capitol, Honolulu HI 96813
(808) 548-4747

Thomas H. Pacheco
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Before ELY, WALLACE, and REINHARDT, Circuit Judges.