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

ELR Citation: 18 ELR 20123
Nos. No. 85-6182, 828 F.2d 776/(D.C. Cir., 06/02/1987, 09/25/1987)

The court holds that construction of suicide barriers on a historic landmark bridge is not a transportation project requiring the use of historic land within the meaning of the Department of Transportation (DOT) Act, and the Federal Highway Administration's (FHwA's) determination that construction of the barriers was exempt from the National Environmental Policy Act's (NEPA's) environmental assessment (EA) requirements was not arbitrary or capricious. The court initially holds, in a note, that it is not precluded from reviewing FHwA's action under §4(f) of the DOT Act even though the agency did not refer in its brief to a "transportation purpose," since it is self-evident that the bridge is intended to serve such purposes. The court then holds that the installation of suicide-prevention barriers on Duke Ellington Bridge in the District of Columbia, a historic landmark eligible for inclusion in the National Register of Historic Places, is not a transportation project within the meaning of §4(f). There is no obvious relationship between preventing suicides and facilitating the flow of traffic over the bridge. The court holds that construction of the barriers also does not represent a "use" of land under §4(f), since there is no evidence that Congress intended §4(f) to apply to relatively minor changes, such as this, to an existing transportation facility.

Turning to plaintiffs' NEPA claims, the court holds that the arbitrary and capricious standard is the appropriate standard to use in this circuit when evaluating an agency's decision to invoke a categorical exclusion and exempt a project from preparation of an EA or environmental impact statement. The court then holds that the FHwA's determination that construction of the barriers qualified for the categorical exclusion covering highway safety improvement projects was not arbitrary or capricious. A dissent would require the FHwA to prepare an EA on the grounds that there is some conflict between the highway safety exclusion and another one that excepts historic bridges.

[This decision amends the court's earlier decision at 17 ELR 21171.]

Counsel for Appellants
C. Michael Buxton
Vinson & Elkins
1455 Pennsylvania Ave. NW, Washington DC 20004-1007
(202) 639-6500

Counsel for Appellees
Charles F. Flynn, Ass't U.S. Attorney
Room 2800, U.S. Courthouse, 3rd & Constitution Ave. NW, Washington DC 20001
(202) 633-5107

Before STARR and BUCKLEY, Circuit Judges, and GEORGE H. REVERCOMB[*], U.S. District Judge for the District of Columbia.