Falls Road Impact Committee, Inc. v. Dole

No. 83-C-529 (581 F. Supp. 678, 20 ERC 1960) (E.D. Wis. March 14, 1984)

ELR Digest

The court holds that the planning and proposal for routing a federally funded road through wooded public land alongside a public park violated neither § 4(f) of the Department of Transportation Act (DOTA), the National Environmental Policy Act (NEPA), nor the Federal-Aid Highway Act (FAHA). Defendants propose to build a road and bridge across the Milwaukee River at Grafton, Wisconsin. Plaintiff first contends that the Secretary of Transportation failed to make findings under DOTA § 4(f) that there was no feasible alternative to routing the road through a public park recreation area. The court discusses, but does not decide, the proper standard for reviewing a failure to make a § 4(f) determination. Under either the Overton Park standard or de novo review, the Secretary's omission was lawful. Scout Park, through which the road will pass, is not a park or recreation area under the statute. Though wooded and publicly owned, it adjoins commercial development and was purchased to be the site of a sewage treatment plant, which now occupies part of the land and may expand. The Village of Grafton considered using the land for public recreation, some unofficial maps designate the land as a park, and the land gets limited recreational use, but the Village Board has declined to designate the site officially as a park. The village intends to use the land for industrial purposes; even if § 4(f) is construced broadly, Scout Park is therefore not a park.

Nearby Lime Kiln Park is a park under § 4(f). Tentative plans show the proposed road occupying 15 square feet of the park. Though this use would be enough to require a § 4(f) determination, these plans were not before the Secretary when the decision not to make a § 4(f) determination was made, and there is evidence that the plans will be revised to avoid taking the 15 square feet. Where there is no physical taking, the proposed road must have a substantial impact on the park for the court to find a constructive "use" of the park under § 4(f). There is no such impact here.

The court next considers whether the agency's decision not to prepare an environmental impact statement under NEPA was arbitrary and capricious. Though a major federal action, the road will not have a significant impact on the environment as judged by the standards in the Federal Highway Administration's NEPA regulations. The agency's findings on traffic congestion, noise, and aesthetic impact are all reasonable. The mere possibility that an endangered species may be present, since two are known to exist in the county, does not constitute a significant impact. The effect on parkland is not significant. The agency's findings on environmental impact have been endorsed sub silentio by federal, state, and local government agencies. The court holds there was no need for the agency to expand its assessment beyond the limits of actual construction to "logical termini."

Further, the court holds that the agency satisfied FAHA and NEPA by adequately considering alternatives to the project and the project's potential social, economic, and environmental impacts. Finally, the court holds that neither changed circumstances nor minor procedural irregularities at a hearing justify a second hearing under FAHA.

The full text of this opinion is available from ELR (21 pp. $3.25, ELR Order No. C-1326).

Counsel for Plaintiff
Raymond R. Krueger
Charne, Glassner, Tehan, Clancy & Taitelman
First Bank Bldg., 211 W. Wisconsin Ave., Milwaukee WI 53203-2377
(414) 273-2000

Counsel for Defendants
Nathan A. Fishbach, Ass't U.S. Attorney
330 Fed. Bldg., 517 E. Wisconsin Ave., Milwaukee WI 53202
(414) 291-1700

Peter A. Peshek
DeWitt, Sundby, Huggett, Schumacher & Morgan
P.O. Box 2509, Madison WI 53701
(608) 255-8891

Richard J. Boyd, Ass't Attorney General
Department of Justice, P.O. Box 7857, Madison WI 53707
(608) 266-1221

Warren, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]