Arizona Wildlife Federation v. Volpe

No. Civ. 72-360 Pct. (D. Ariz. September 15, 1972)

The United States Forest Service abused its administrative discretion in declaring that the "Lakes Area" of Coconino National Forest is not a "proclaimed recreation area" within the meaning of Section 4(f) of the Department of Transportation Act of 1968 (49 U.S.C.A. § 1653(f)). Although the determination of whether an area is a recreation area of national, State, or local significance is given by the statute to the Forest Service in this instance, the Forest Service administered the "Lakes Area" as a recreation area, and it is recognized in fact as an area ofgreat significance. A preliminary injunction is issued against the construction of a highway through the area, and the Secretary of Transportation is ordered to conduct the review and findings required by Section 4(f). Defendants' allegations regarding 53 per cent completion of a grade and drain contract, and that this is the mid-segment of a highway of which both ends are completed, are without significance.

Counsel for Plaintiffs
Brown, Vlassis & Bain
222 N. Central Ave.
Phoenix, Arizona 85004
(602) 254-6033

Robert M. Kennan, Jr.
1412 16th Street, N.W.
Washington, D.C. 20005
(202) 483-1550

Counsel for Defendants
Richard K. Burke U.S. Attorney
5000 Federal Building
Phoenix, Arizona 85024
(602) 261-3131

[2 ELR 20584]

Copple, J.

MEMORANDUM AND ORDER

The Arizona Wildlife Federation and Maricopa Audubon Society (hereinafter "plaintiffs") seek a preliminary injunction against further construction of Forest Highway Project FH3-2(2) until such time as the Secretary of Transportation has made the findings and determinations required by Section 4(f) of the Department of Transportation Act of 1968 [49 U.S.C.A. § 1653(f)]. Section [2 ELR 20585] 4(f) provides in part that highway construction projects that make use of public lands from significant recreation areas cannot be undertaken until the Secretary of Transportation has made certain required "4(f) findings". Specifically Section 4(f) provides:

"It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." [Emphasis supplied.]

It is plaintiffs' contention that the right of way for the project passes through and otherwise makes use of public land from a prime Arizona recreation area that comes within the coverage of the foregoing statute. Defendant United States Forest Service, which has jurisdiction over the area, has made an express finding that the area along the east side of Mormon Lake is not a "proclaimed" recreation area within the meaning of the statute and consequently the Secretary of Transportation has not made any of the determinations required by the statute. It is plaintiffs' contention that this finding by the Forest Service that section 4(f) does not apply constitutes an abuse of administrative discretion, that such finding should be reversed, and that defendants should be enjoined from further construction until such time as the Secretary of Transportation has made the findings required by section 4(f).

The court decisions interpreting section 4(f) make it clear that the statute was intended "to curb the accelerating destruction of our country's natural beauty" and "to preserve parklands [and recreation areas] and the environment from harm or destruction at the hands of federal aid projects." Citizens to Preserve Overton park v. Volpe, 401 U.S. 405, 91 S. Ct. 814, 817 (1971); Individual Named Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971). The statute should be broadly interpreted to achieve the congressional purpose.Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972). The statute achieves the above-stated objectives by requiring the Secretary of Transportation himself to make, in each case where a project uses recreation lands, the specified substantive findings stated therein. Citizens to Preserve Overton Park v. Volpe, supra.

It is not the responsibility or prerogative of this Court to decide where or how the road in question should be built but only whether the law has been followed and complied with prior to construction.

The hearing in this matter demonstrated no dispute in the facts, and for purposes of this order and its review no detailed findings of fact or evaluation of conflicting evidence is necessary.The area in dispute is within a triangle, the points of which are Mormon Lake, Ashurst Lake and Kinickinnick Lake — generally known to the Forest Service as "The Lakes Area." The new road alignment in question follows generally one side of this triangle and is along a bluff immediately adjacent to the east side of Mormon Lake. There is another, old road along the east shore of the Lake at the bottom of the bluff and a third road around the west side of this lake. The entire "Lakes Area" receives the second greatest public recreational use of any particular area within Arizona's huge and widely-used Coconino Forest. The Forest Service and the Federal Highway Administration prefer the construction of this project in its present location over any other plan. The highway segment involved is approximately five miles long, has a 300-foot right of way, and will be a fast, heavily traveled through route running generally north and south.

That this project "uses" an area of national forest land which is a unique and significant recreational area used by the people of the state of Arizona and elsewhere in great numbers, and recognized in fact and administered as a recreation area of local, state and possibly national significance by the Forest Service, can hardly be denied.

16 U.S.C. §§ 528 et seq. (Multiple-Use Sustained Yield Act of 1960)

Mormon Lake Rangers District Multiple-Use Plan, Plaintiffs' Exhibit 1.

Recreation Management Plan for the Coconino National Forest, Plaintiffs' Exhibit 3.

Development of the Lakes Area Recreation Management Plan, Plaintiffs' Exhibit 5.

Testimony of Forest Service officials.

Brooks v. Volpe, 460 F.2d 1193 (1972).

D.C. Federation of Civic Associations v. Volpe, __ F.2d __, 3 ERC 1143, 1147 (D.C.Cir. 1971).

By law and in fact it is a "recreation area" in the sense intended by Congress in section 4(f).

In response to a section 4(f) inquiry the Forest Service, which administers the public lands in question, simply stated that "No proclaimed recreation areas are invaded by the proposed project." The Forest Service did not make a determination as to whether this is or is not in fact a use of a recreation area of national, state or local significance located on publicly-owned land. No evidence was introduced by defendants to show what more need be or could possibly be done to "proclaim" this a recreation area beyond the above-cited statute, the named administrative documents, and the actions of the Forest Service. Interpreted as a 4(f) finding of lack of significance, the statement of the Forest Service reflects a clear abuse of discretion, an error of judgment, a failure to follow the law. 5 U.S.C. § 706. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 16 (1971). See also Named Ind. Mem. of San Antonio Com. Soc. v. Texas Highway Dept., 446 F.2d 1013, 1026 (1971). No so interpreted, it is a clear evasion of the letter and intent of section 4(f).

In considering the relief requested, the fact that this is the mid-segment of a new highway, the two end segments of which have been completed, is without significance in this proceeding. Named Ind. Mem. of San Antonio Com. Soc. v. Texas Highway Dept., supra.

The Government argues that the injunction should not issue because the road is 53 percent complete. As the Court understands the evidence, the contractor has completed 53 percent of a grade and drain contract and no irreparable injury has yet been caused the environment. Completion of this project could very likely cause irreparable injury to the public interest in protecting the environment and subvert the expressed purpose of Congress. Further, in the view of the Court, the probability of plaintiffs' being successful on the merits is substantial. Under the facts here the Government cannot so easily evade the clear intent of Congress and the letter of the statutory requirements. See e.g., Arlington Coalition or Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972); Brooks v. Volpe, supra; Environmental Defense Fund v. Corps of Engineers, 324 F. Supp. 878 (D.D.C. 1971); Environmental Defense Fund v. Tenn. Valley Auth., 339 F. Supp. 806 (E.D. Tenn. 1972).

IT IS ORDERED:

1.That the defendants and each of them, their agents, employees, servants and any and all persons acting in concert with them, are preliminarily restrained and enjoined from the date of service on their counsel of a copy of this order until the defendant John A. Volpe, Secretary, Department of Transportation, has made the findings required by 49 U.S.C. § 1653(f) and until further order of Court, from performing or causing to be performed any further work or construction of any kind or nature upon that [2 ELR 20586] segment of Forest Highway Project FH3-2(2) along the east side of Mormon Lake and which is the subject of this action.

2. Plaintiffs shall file a bond for the payment of costs and damages as may be suffered by any party who is found to have been wrongfully or unlawfully restrained herein, in the amount of One Hundred ($100.00) Dollars.

3. The matter is remanded to the Secretary, Department of Transportation, for review and findings in accordance with 49 U.S.C. § 1653(f).

4. The injunction granted above is stayed until 5:00 P.M. Friday, September 22, 1972, to give defendants an opportunity to appeal and to permit an orderly shutdown of the job in the event such appeal is unsuccessful in setting the injunction aside by that time.