Constance A. Adler, Roosevelt Lathan and Pearline Lathan, Etc. v. Andrew Lewis, Secretary of Transportation

ANDERSON, Before SNEED and Circuit EAST, Judges, and Judge.*** District ANDERSON, J. BLAINE Judge: Circuit plaintiffs, The numerous environmental organizations citizen,2 one private ap- peal from the district judgment court’s dis- solving injunction prohibiting acquisi- of right-of-way tion proposed high- *** East, Council, Improvement Earth, Honorable William G. Senior Unit- chi Friends of the Judge, Inc., Oregon, ed States Council, District Washington District Environmental Ma- sitting by designation. Council, Community drona Seattle Urban League, Metropolitan Democratic Club. organizations (Citizens 1. The include: CARHT accompanying See footnote 7 and text. Against Thompsen Freeway), R. H. Central Se- Community Federation, attle Council Montlake remaining plaintiff one individual Di- Club, Community Bryant Community Ravenna ane Halverson. See footnote 7. Association, Community Club, Mt. Baker Les-

way expansion by understanding litigation, and Federal de- of this case’s see State (9th Volpe, fendants.3 Lathan v. 455 F.2d 1111 I, opinion court Lathan district appeal yet phase This involves another remand, Volpe, F.Supp. Lathan v. the continuing saga concerning a corridor (W.D.Wash.1972), appeal to and the second Highway (1-90) for Interstate in the court, Brinegar, Lathan v. 506 F.2d 677 Washington state of between cities 1974),Lathan II. proposed facility Seattle and Bellevue. The eight-lane, consists of an access court, I, limited the trial This Lathan reversed highway consisting of two three-lane road- injunction, preliminary court’s denial of a ways private for the use of motor vehicles holding, inter alia that the State roadway and a two-lane center devoted to were prepare Federal defendants an en- the use of pools transit car and limited (EIS) for the impact vironmental statement general traffic from Mercer Island. The project pursuant to the National Environ- project length is 6.9 miles in located be- (NEPA), Policy mental Act of 1969 tween 1-5 in and 1-405 near Belle- Seattle seq. (1970), and that U.S.C. et §§ vue, generally alignment follows the of displaced persons plan pre- the relocation existing highway the in facility the corri- pared by defendants was insufficient to dor. The facility incorporate new will a provide adequate housing assurances of to immediately adjacent new tunnel to the Act, comply with the Uniform Relocation existing through Ridge, tunnel Mt. Baker (URA). injunction was Statute 1894 An require floating the construction of a new pursuant entered the district court bridge adjacent existing floating the instruction, specifying this court’s that the bridge Washington, across Lake and will enjoined acquiring defendants were from contain two extensive “lidded” sections in right-of-way pending compliance the with Seattle and Mercer Island. Access to and I, “applicable federal law.” Lathan from facility provided by the several in- F.2d at 1122. terchanges throughout length: its to Inter- Subsequently, partial prepared a was EIS state project, the western terminus of (for segment between 1-5 in Seattle by major interchange with the center lane and Mercer Segment”) Island—“Seattle ramp terminating existing South plan. Following a new relocation rul- Street, Dearborn major and at another in- court, ing of the this court in La- district terminus, terchange project’s at the eastern affirmed, than II finding the Environmen- already 1-90, completed portion of tying (EIS) 4(f)4 Impact tal Statément § the facility major into Interstate inadequate.5 statements II The Lathan highway north-south facility east of Lake court, however, portion reversed a of the Washington. district court’s' decision and that a ordered I. BACKGROUND public hearing new be held for the entire

The pertinent appeal facts to this are length project of the 1-90 between 1-5 and briefly, 1-405, here recited complete pursuant but for a to 23 In U.S.C. § original approving funding high- 3. The Federal defendants included Neil State and State for all Goldschmidt, Secretary way projects). the United States Transportation, Train, and Russell R. the Envi- 4(f) 4. Section refers to that section in the De- Agency ronmental Protection Administrator. partment Transportation Act of summary judgment The district court entered a 1653(f) (1970). subsequent See dis- dismissing the defendant EPA and all issues part opinion. B cussion of this Act, raised under the Clean Air 42 U.S.C. 740Í, seq. prior §§ et to trial. Washington Department Transporta- 5. The original state defendants included Wil- court, (WDOT) supplied tion the Lathan II Bulley, Secretary liam A. ington Department of the Wash- along appeal, with its briefs on a new draft EIS Transportation, Segment.” for the “Seattle The court in La- Washington Transportation (the Commission adequacy than II declined to consider the authority responsible ultimately within WDOT this document and remanded the matter to the determining transportation policies district court. addition, 4(f) that court ordered an EIS the Involvements of the project. requirements Jr., consistent NEPA Judge Thompson, following agreement hearing, was to public parties, basis Secretary wrote to the (cid:127) injunction pending and continued the com- Transportation requesting Sep- decision. pliance. No was regarding issue raised 7, 1978, tember issued his district court’s determination 4(f) 4(f) findings de- Determina- “§ complied require- fendants had with the tion,” pru- there were no feasible and ments of the URA based on the new reloca- dent alternatives the use of the § plan. tion project plan- lands that the included all ning minimize harm to such lands. II, prepared

After Lathan WDOT a new covering draft uncompleted EIS entire approved project Adams portion project of the 1-90 to serve as the encompassing uncompleted por- the entire public hearings basis for new under tion of the 1-90 between 1-5 and 128(a). Three public hearings were held upon 1-405 based the FEIS and “§ during January February 1976. Fol- Analysis” his “Decision Document” dated lowing hearings, these it was clear that September Final Environ- conflict existed regarding the size of the Impact/§ mental Statement was ap- then plan ten-lane between the .State and proved adopted by High- Federal local jurisdictions. affected an In effort way (FHWA) September Administration on conflicts, resolve those negotiations were 22, 1978. initiated between the State of Washington 3, Defendants moved on October 1978 to Seattle, DoT and the of cities Mercer Is- injunction dissolve the entered after Lathan land, Bellevue, King County, and and MET- I requested the district court enter 6RO concerning project develop- further an establishing order a schedule to control ment. aAs result negotiations, of these an the course of litigation future in the consol- interjurisdictional in consensus was reached parties stipulated, idated cases.7 The not- December 1976. This of Memorandum withstanding case, other issues in the Agreement (MOA) provided for an eight- proceed WDOT should necessary with safe- plan, lane incorporation continued of all ty improvements corridor, within the 1-90 protection environmental measures which including removing “bulge” the in La- the had previously incorporated been into the cey bridge. V. Murrow floating larger project, independent and an study to During discovery proceed- course of undertaken of various “transit access” provisions ings, many parties plaintiff at in both termini of the 1-90 consoli- project (Seattle dated actions pretrial on the were dismissed.8 The West and Bellevue East), on NEPA, parties order framed issues under subsequently Federal seeking Highway 128(a), Federal funds Aid to finance the Act 23 U.S.C. access §§ project. 138, Act,9 134(a), and the Clean Air 1983, Pro- § Administrative A Final EIS for the eight-lane project Act, 551, seq. cedure et U.S.C. § was prepared by WDOT and submitted to 12, Transportation of April Trial was to court in June 1979. The 1977, including separate report parties addressing Proposed Findings submitted Municipality 6. Metropolitan plaintiffs METRO the 8. The were dismissed for failure to Seattle, public agency operates appear depositions pre- which the court had system King County. viously transit result, in ordered them to attend. As a original plaintiffs of the none in the Lathan pendency (only organizations During 7. appeal case remain included Lathan II, plaintiffs/intervenors (Adler Brinegar) new action v. remain the Lathan was filed seeking injunction case) only plaintiff against project, one individual remains 1-90 alleging NEPA, 4(f) Adler case. same violations of 128(a), and § as in the Lathan case. On de- motion, fendants’ the cases were consolidated 9. footnote See for trial in the district court. appellants also contend- the district the court of Law as and Conclusions Fact 1979, independently review the failed to the court court August requested. On by ignor- actions appellees’ administrative dissolving injunc- Judgment entered its excluding relevant defendants, ing central issues based ruling for the tion and to the These assertions relate evidence. Findings its of Fact Conclusions upon and the section adequacy of EIS August of Law dated statement, within and will be considered II. DISCUSSION issues, respectively. of these the discussions Duty to Take a “Hard Court A. District Look” B. Determination appellants’ summarily dispose of We per- questions raise several Appellants erred in assertion that the district court Transportation’s taining to the findings of fact “mechanically” adopting Department of Trans- compliance with the virtually There is and conclusions of law. 4(f), 49 U.S.C. portation Act of nothing support in this record to the bald 1653(f) (1970). policy, The national an- is, however, that assertion. The evidence language nounced in identical findings and conclu the court studied 18(a) Highway the Federal-Aid Act parties and that sions submitted both (1970), is to take U.S.C. § completely some were rewritten or substan preserve effort ... “special natural tially principles apply we modified. The parks countryside public beauty are well established and we see no need ” lands. . . . and recreation Section See, again. Hagans reiterate them once provides: denied, Andrus, (9th Cir.), 651 F.2d 622 cert. to be the nation- hereby “It is declared Watt, - U.S. -, Hagans v. 102 S.Ct. should be jiolicy special effort al (1981); Mayview v. . beauty of preserve the natural made to Rodstein, 1980); (9th 620 F.2d 1347 Cir countryside public park and rec- the Schlesinger, Property Westside Owners v. lands, wildlife and waterfowl ref- reation (9th 1979); 597 F.2d 1214 and Photo Secretary The of uges, and historic sites. Corp. England, Electronics v. 581 F.2d 772 cooperate and con- Transportation shall 1978). Interior, of the sult with the Secretaries Appellants’ argument the district Development, and Urban Housing objective court did review is not conduct an with in devel- Agriculture, and the States upon by based a the court to the letter programs transportation plans and oping Secretary Transportation. Ap- federal maintain or en- that include measures to pellants “personal contend the court had a beauty the natural of the lands hance seeing project through commitment to 23, 1968, the August traversed. After completion, judge to . . made . [the had] [a] any program Secretary approve shall not Adams, personal plea Secretary written to any use of project requires or urging expedite required approv- him to public park, a publicly owned land from ” Appellants als.... Brief of at 13. area, or wildlife and waterfowl recreation analysis, nothing From our there is in the national, State, signifi- refuge of or local Federal, record indicate trial acted with to court by cance as determined pro- bias toward the defendants and their State, having jurisdiction local officials or gram. (RT 734). judge thereof, The remarked that land from an historic site any or Secretary, requesting national, State, he had written to the as significance or local (1) him approve thing approve “to or not unless by such officials so determined it, prudent or on it ...” alterna- at least make a decision there is no feasible and land, (2) (RT 734). The bold assertions of one-sided- to the use of such such tive possible planning to by appellants supported by program ness are not includes all park, recreational record. minimize harm such area, refuge, Appellants objection wildlife and waterfowl or have not any voiced Secretary’s resulting compliance proce- historic site from such use.” to the Instead, requirements. dural the issues 1653(f).10 presented (1) are: Secretary whether the by appellants par The issues raised improper relied on considerations his questions judicial allel the re involved in 4(f) determination, (2) the correctness of by Supreme view as announced Court the conclusion that there were no feasible case, leading Citizens to Preserve Over alternatives, prudent whether ton Volpe, Park incorporate was a possi- there failure to all (1971). discussing In planning ble measures minimize harm. 4(f), rejected the Court both the substan-' tial evidence test de novo review Application by whether the decision was “unwarranted triggered is only Section when the Though Secretary’s facts.” decision Transportation ap- is asked to is presumption regularity, entitled prove a transportation program or reviewing still engages court in a sub funds, seeking employ federal which re- stantial inquiry presumption because the quires public park, the “use” of land from does not “shield a thorough, his action from area, recreation wildlife or waterfowl ref- probing, in-depth review.” 401 U.S. at uge, or labeling from an historic site. 91 S.Ct. at 28 L.Ed.2d at 153. property “not “used” or used” prerequisite to further examination and to opinion ques enunciates three compliance 4(f). provisions with the of § tions for the reviewing court to consider. phase This was not First, discussed the court must examine whether the the Court in Overton Park. It was not scope acted within the of his au disputed that the slated highway, to dissect review, thority. Analyzing this facet of the Overton Park separating the zoo from if, facts, the court must determine park, the rest of the would be a “use” Secretary’s decision can reasonably statute; the meaning within it was range said to be within the small of choices Here, acknowledged. assertion is Congress specified, and whether the Secre that, Secretary incorrectly concluded that, tary reasonably could have believed in sites, used,” and, potential “not were particular case there were no feasible and result, 4(f)’s as a failed to examine two alternatives, prudent or alterna requirements with respect to those sites. problems. tives involved unique 401 atU.S. Appellants argue some of these 29 sites are 416, 823, 91 at at S.Ct. 28 L.Ed.2d 153. The project closer than the site classified Act, Administrative Procedure 5 U.S.C. Coleman, Stop as used in H-3 Association v. 706(2)(A) (1964 ed., Supp. V) requires § denied, (9th Cir.), 533 F.2d 434 cert. 429 actually determination made be not “arbi 999, 526, (1976). 97 S.Ct. 50 L.Ed.2d 610 trary, discretion, capricious, an abuse of or otherwise not in accordance with law” to Though Stop correct in discussing H-3 being avoid set by reviewing “use,” aside interpretation for the appellants Second, decision, court. in examining the do not correctly opinion characterize the as reviewing court must proximity evaluate whether emphasizing the between the “the decision was based on a project consideration and the threatened site cru- as the of the relevant geo- facts whether there has cial factor. This court discussed the been graphic a closeness of Pohaku Ka Luahine judgment.” clear error of Overton Park, 416, 823-4, (the site, 401 U.S. at 91 protected rock) 28 petroglyph S.Ct. L.Ed.2d (the at 153. third inquiry proposed highway), merely and final H-3 is distance, the Secretary’s whether utility action followed terms of but rather its or necessary procedural requirements. importance impaired by as a site would thorough 4(f), Act, Department Transportation 10. For a § discussion of includ- 32 Md. ing legislative history, Gray, 4(0 (1973). see Section 326 L.Rev. 1092 location, highway’s requiring preparation and hence was The threshold test Similarly, Volpe,

“used.” in Brooks v. 460 impact NEPA’s statement is met when a (9th 1972), which, true, F.2d 1193 the court found a plaintiff alleges Cir. “facts if show used, campground meaning to be within the project proposed materially would 4(f), proposed when by encircled degrade aspect quali § of environmental any project. highway There would be ad- ty.” Environmental Defense Fund v. Arm campground verse on the from impact 817, 814, (9th 1973), strong, 487 F.2d n.5 highway since its isolation would be inter- denied, 974, 2002, cert. 416 U.S. rupted. (1974), L.Ed.2d 564 overruled on other grounds, Springs Warm Dam Task Force v. The term “use” is to be construed Gribble, 549, 552, 565 F.2d n.3 broadly, not concept limited to the of a 1977). physical taking, but includes areas are significantly, adversely affected Secretary’s 2. Determination project. Department Transportation Or court, reviewing This 5610.1A, Secre para. 9(c)(1), der No. Fed.Reg. decision, tary’s satisfy “must itself that the (1971). Even off-site activities are project highway evaluated the governed by 4(f) if they could create suf 4(f) clearly with the mandate of in mind.” ficiently impacts serious that would sub H-3, 445; Park, Stop 533 F.2d at Overton stantially impair the value of the site 828, 401 U.S. at 91 S.Ct. at 28 L.Ed.2d prior significance terms of its enjoy at 154. The Final combined Environmental ment. D.C. Federation of Civic Associa Impact/Section 4(f) recites the Statement11 Volpe, (D.C.Cir. tions v. 459 F.2d applied determining standard here for use: denied, cert. 405 U.S. 92 S.Ct. (1972). “A site is considered ‘used’ whenever land buildings from or on the site are taken The importance analysis of this is proposed project, or whenever obvious since absent a determination of pro])osed project significant has adverse “use,” the provisions section’s apply. do not air, water, noise, land, accessibility, aes An analogy can be drawn between this clas thetic, impacts or other environmental sification and the initial determination that site, per Stop or around the as H-3 “significantly one which affects [opinion].” Association v. Coleman the quality of the human environment” in FEIS, IV at 4. vol. volving preparation of an environmental impact (EIS) standard,12 statement per Using National con- Policy (NEPA), sites, Environmental Act of potential 4(f) cluded that of the 50 102(2)(c), 42 4322(2)(c) (1970). only 18 were used.13 The doc- FEIS/§ Hereinafter, 4(f) Analysis,” Department 11. Transportation, “§ Volume IV: Federal Analysis Environmental Highway Determination. Administration Section Determi- nation, King County, Washington, Interstate (herein- Freeway [September It is not evident Route 90 from the 1978] Determina- “§ (see infra, 4(f) Determination,” approved 13) tion” per after project “§ note nor the Decision Pa- 1-90, Seattle, prudent Washington, by and found no feasible and alter- the Secre- tary Transportation, 20, 1978, September native to the use of certain land. This thirteen- page Secretary applied, though what document further from the con- standard the excludes use, presume applied we clusion of Analysis five sites that the Environmental he a correct standard until 4(f) Determination, contrary proven. Secretary the for vol. IV of is The cites to 4(f) 4(f) Impact/Section Analysis 4(f) Final Envir. Statement had FEIS/§ in his “§ Deter- FEIS, supports included as mination” used. vol. IV at 161-163 which further the conclu- (hereinafter, applied 4(f) Analysis”). sion he “§ the standard there enunciated. noted, Secretary Paper proposed It must be the Decision concluded that on 1-90 (hereinafter Park, Document”) Sturgus 1-90 Playground, would use: “Decision includes Judkins Park, 4(0 discussion of both and NEPA. As Burbank Lake Luther Wash- overlap, closely ington, Lacey Bridge of this result look we more at Murrow V. Memorial and 4(0 Analysis" 4(0 Plaza, the “§ Elementary Determi- “§ Laurence J. Colman School 4(0 Playground, Playground nation” for resolution of the issues. Play- Colman

1093 utilizing an appropriate standard relative to ument was used as a basis for Secre- decision; tary’s we examine it to determine satisfy segment the 50 sites would the first according given if consideration was to being range as “small within the of choices 4(f) Appellants’ argument mandates. Secretary could make.” The second Secretary determined incorrectly that part question concerning Secre- “used,” 21 of the 50 sites were only authority tary’s encompasses whether he supported by not to the record of references only could have believed reasonably particular sites that should have been classi- given were used. Attention is in affected, i.e., as adversely fied “used.” We sites, 4(f) Analysis” to all detail- “§ independently in the found the differences ing possible environmental effects from this number of sites in these docu- discussed project. appears reasonably This section ments, specifically but believe the failure to noise, complete, discussing such factors as discuss the four sites in the Deter- “§ aesthetics, quality, air access and more. Secretary’s mination” and in the “Decision Secretary, in his “Decision Docu- significant disposi- Document” is nor ment,” part, “In making my states deci- and, sites, “unused,” tive. All 50 “used” sion, EIS, including I have before me the investigated thoroughly during were 4(f), pursuant submission to section long process. and tedious All sites are other elements of the administrative rec- extensively Analysis.” treated the “§ Document,” p. ord.” “Decision He lists together We all read three documents reports several other he has reviewed in alone, fully no one of them satisfies the his making decision. The con- 4(f). above, commands As noted paragraph, cludes the “I have considered 4(f) Analysis” provides the standard the “§ both impacts the adverse beneficial “use,” Secretary applied determining alternatives and the will measures which 4(f) Determination” cites “§ alternatives impacts.” taken to minimize the adverse considered, the conclusion that there is no prudent feasible and alternative to the use The district court found the sites, of 18 and recites to efforts minimize reasonably could have believed that less harm. The “Decision Document” records than the were agree. 50 sites used. We the decision of the Secretary that no alter- findings clearly These are not erroneous. natives prudent are feasible and to “the use The Secretary determined “use” based on parks required and historic sites him, the studies before which considered project, possible planning and that all to concerning relevant facts environmental minimize harm to the affected has areas impacts. place,” taken and his approve “decision to proposed construction of 1-90 as by the Moving Secretary’s “§ Washington Department Transpor- State Determination,” relative to the alternatives Id., Document,” tation.” “Decision at 5 and sites, using we review it under the 1, respectively. standard, same Park. Overton The Su preme meaning Court clarified the We first “use” attached examine the classification applying prudent “feasible analysis Overton Park alternatives.” Secretary’s Recognizing then the that “feasible” allows for little conclusion Looking discretion, the same scope standard. to the administrative the Court con the Secretary’s authority, mean, any conclusion it sidered as a matter of “sound ground Building, Lady Virgin Our of Mount at dence Place South and the Hiaw.atha Church, House, Ridge LaTumer Mount Baker Residence at 1409 Lakeside Avenue South.

Tunnels, South, appellants Residence at 1371 31st Avenue Both district court and the Apartment Street, Irving figure S. involving House Resi- discuss the use as “21”— Southeast, Jeffrey dence at 2231 60th though Avenue the number found in vol. IV of the Final House, Martine Impact/Section 4(f) (the and the at Residences 8107 and 23 Envir. Statement is 8115 Southeast 28th residences). Street. last site includes 2 Secretary Park, Lin- excluded Jose’ Rizal Park, Landing Park, Sweyolocken coln Resi- 1094

engineering judgment Secretary. it not for that of the We would be feasible to build highway along any any portion other route.” Over have not been directed to Park, 411, 821, ton demonstrating 401 U.S. at 91 28 record an erroneous decision S.Ct. 150, and, result, L.Ed.2d find citing Cong.Rec. grounds 114 19915 as a no to disturb (1968) (statement Holified.) Rep. there are no Secretary’s conclusion that alternative, Whether prudent feasible routes would feasible and alternatives to the use “prudent” 4(f) be was not intended to focus on of such lands.15 § community disruption cost and unless the Once the determines “extraordinary magnitudes” results reached 4(f) adversely impacted lands will be § or prudent was not because there were prudent finds there are no feasible and “truly present particu unusual factors in a use, alternatives to such he must address Park, 413, lar case.” Overton 401 91 U.S. 4(f) portion requires the final § 822, S.Ct. at 28 L.Ed.2d at 151. finding pos- program that “such includes all planning concluded that there was sible to minimize harm to such prudent no feasible park alternative to the . resulting . . from such use.” 49 use of the Appellants argue 1653(f)(2). 18 sites. he Appellants assert 4(f) based his decision on irrelevant factors and requires “technically all measures inadequate 4(f) an Analy- possible implemented” and outdated ... if there is no “§ Appellees sis.” Secretary’s assert the con- prudent feasible and alternative to the use clusion properly based findings protected of fact lands. This goes statement erroneous, clearly (1) including other beyond willing where this court is to ven- require alternatives would still required “use” of is not ture and the Act nor 4(f) lands, (2) other corridors would existing precedent. cause (3) severe community disruption, design al- circuits, addressing ques Other ternatives involve their own involve- tion, implied have said that within the ment and would not serve the function measures,” “all statement is the condition project, even the no-build alter- that such efforts to minimize harm be feasi native perpetuate would congestion.14 prudent, ble and or reasonable. Louisiana Though most appear Coleman, alternatives Society, deal Environmental Inc. v. 537 with the composite project, 79, 1976); F.2d De- “§ Citizens to Pre n states, termination” “the alternatives dis- serve Park v. Volpe, F.Supp. Overton cussed here are generally common to (W.D.Tenn.1972) (§ 4(f) all or requires to a number of the lands “all reasonably possible associated planning”). See proposed with the project.” 4(f) Deter- generally, D.C. Federation of Associa “§ Civic mination” at 1. The Secretary’s Volpe, (D.C.Cir. decision is tions v. 459 F.2d entitled presumption to a regularity. denied, cert. argument

Absent by appellants pointing (1972); and Monroe the record and demonstrating with specific- Council, County Volpe, Inc. Conservation ity the alleged judgment (2d errors of 1972). or irrele- 472 F.2d 700-701 Such vant factors that formed the basis for his a reading fully practicalities considers the decision, we are not inclined to make yet their involved and maintains the strict com case for them. Even if the decision of the mand of the language. section’s Monroe Secretary be different from County the one this creating characterizes the section as court would make if it responsibil- were our duty” “affirmative to minimize the dam choose, ity to we will not our age parkland substitute as: Appellees appellants’ here, employed assert concern over ir- tives but rather as a statement sup- relevant factors is relating appellate process confused because their to the function of the port position for the responsibilities comes from the “Decision participants Document” rather than the “§ Determina- support, thereto. Absent bold assertions that tion." truly factors considered were not unusual and justify therefore did not a conclusion of non- opinion broadly 15. This should not be read prudence, warrant little attention. commending discussing the method of alterna- precedent minous approving] span condition record accumulated over a

“[a] a taking highway purposes such for greater years, than ten which includes ex- involved; are where federal lands and public tensive contribution. Secretary approval must withhold his greenbelt of the 180-acre Substitution is and until is ... unless he satisfied full important here as a measure to minimize implementation planning of such ... is harm, though per it dispositive is not se of obligated project.” an condition of the compliance 4(f). with prong the second of § Id., 472 F.2d at 701. pointed Even with some of the deficiencies phase This of is second discussed § by appellants, considering out the entire by the District of Circuit which Columbia plan whole, record a we are as it concludes involves far more than merely opinion standards have been § calculating the number acres be as- satisfied. Federation, phalted. F.2d D.C. alternatives, considering When other all emphasized, “the Court location of the i.e., ones, no-build, conceptual nonstruc- affected acres in relation to the remainder tural, south, design corridors north or alter- parkland may important be a more natives, improve- transit safety rail determination than the number acres ments, did, as the the conclusion Id., affected.” 459 F.2d at 1239. compliance, there been has reasonable important It is also note the bifurcated even pressed with the minor by deficiencies analysis of 4(f). the two considerations § appellants. There is a foundation in the The Fifth Circuit has the com- discussed record for reasonable belief that no pletely unconnected nature two prudent feasible and alternatives exist 4(f) considerations: § that all possible planning to harm minimize significant difference between . . . “[t]he has been undertaken. The district court so (1) (2) assays subsections is that con- found agree. and we might siderations an make alter-' As to of the project, several areas imprudent (such hate as displacement of n Secretary’s approval was conditional. We persons or prob- businesses or a Title subject are proceed satisfied the will lem) simply are not relevant to determin- to those conditions. The ing path whether a different would mini- agencies, State, both Federal and have com- protected mize harm to the of the [value plied prior with the directives of this court lands].” II, I Lathan and the mandates of Louisiana Society, Environmental 537 F.2d 4(f). at 86. Inquiry under subsection 4(f) requires balancing a of the harm to C. NEPA Issues site the proposed project, with the harm to the same site another alterna- argument appellants third be raise plan tive or implement mechanisms to fore this Envi court involves National particular diminish that harm. Policy ronmental Act of 42 U.S.C. (hereinafter NEPA). seq. et be, assert, §§ may appellants

There some NEPA requires the preparation of an envi “technical” deficiencies or some actions may impact (EIS) not ronmental statement (the under “technically” correct four sites 102(2)(c), when agency a federal recom discussed Analysis” yet not “§ “proposals legislation mends Secretary’s decision). discussed and other final However, major actions exacting significantly even under the Federal affect ing requirements, quality human judicial environ may branch “fly speck,” review, 4332(2)(c). if it ment....” appears, in its One all factors purpose “provide and standards were considered. EIS is to decision- reports Whether or not the makers studies use with environmental disclosure the “magic” terminology, there has been sufficiently detailed to aid in the substan thorough reasonable and review of a proceed volu- tive decision whether to 1096 compliance light of its environmental conse with

project in another. In Preservation Morton, Coalition, Pierce, (9th Unlimited v. 509 Inc. v. quences.” Trout 667 F.2d 851 addition, 1276, 1282(9th 1982), 1974). Cir. In F.2d Cir. we discussed the commands public with in preparation “provide[s] found the National Historic Preservation Act, 470, impact seq., formation on the environmental 16 of et and those in §§ proposed project, encouragefsj as well as NEPA. In of buildings, the case historic public participation development in the separate of each statute “mandates and dis- that Id. procedures, information.” tinct both must be ” complied Similarly, with . . . . Id. at 859. 1. of Review Standard finding compliance noncompliance or Department Transpor- of the

The appropriate standard for re tation Act does not mandate the identical view of the adequacy of an is EIS well provisions. conclusion as to NEPA established in this circuit as that set forth 706(2)(D) the Administrative Proce 2. Hearing Public dure Act: whether the prepared was EIS “without procedure observance of required Appellants raise five subissues con by 706(2)(D) (1976). law.” 5 U.S.C. § See cerning compliance. NEPA summarily We Coalition for Canyon Preservation v. Bow reject their argument public first ers, 774, (9th 632 F.2d 1980); 781 Cir. Trout hearing inadequate was since not conducted Morton, 1282; Unlimited v. 509 F.2d at La court, “approved, with an final This EIS.” II, than 506 F.2d at 692-3. The determina II, in Lathan did not direct such a document tion of adequacy essentially pragmatic. be the basis of a new hearing. Circula Springs Gribble, Warm Dam Task Force v. tion of even a deficient draft may EIS 549, (9th 565 F.2d 1977) 552 (per Cir. cu sufficient so long as it does not frustrate riam). Whether an will EIS be found in goal obtaining agency informed compliance with NEPA an involves evalua public comment. National Wildlife Federa tion of whether the discussion of environ Adams, tion v. (9th 1980); 629 F.2d 587 Cir. impacts mental “reasonably forth suf set[s] II, also, Lathan 506 F.2d at 693. Warm See ficient information to enable the decision- Springs Gribble, Dam Task Force v. 621 maker to consider the environmental fac 1017, (9th 1980). F.2d Regu 1022-1023 Cir. tors and make a reasoned decision.” West require lations the draft to be EIS circulat side Property Owners v. Schlesinger, 597 ed to enable informed comments at 1214, (9th F.2d 1979). 1217 Cir. See Colum public hearing. 23 CFR 177.12.16 bia Basin Land Protection Assn. v. Schlesin ger, (9th 1981); F.2d Coali Segmentation tion Preservation, for Canyon 632 F.2d at Appellants argue in their next subissue 782; Unlimited, Trout 509 F.2d at 1283. proposed project that the did not involve an Preparing requires an EIS the exercise of “adequate highway segment.” leading judgment; however, a court in its review case in Daly Volpe, this circuit is v. 514 F.2d may not judgment, substitute its but in which set forth criteria stead is limited to ensuring agency that the that, found, when portion demonstrated the has considered the environmental conse was suitable for consideration EIS quences of its action. Strycker’s Bay highway segment. The four considera- Neighborhood Council, Karlen, al., Inc. v. et (1) tions are: long section must be as 100 S.Ct. 62 L.Ed.2d 433 practicable permit consideration of envi- (1980); II, Lathan 506 F.2d at 693. (2) ronmental matters on a scope, broad We note initially, compliance with section independent (3) must have utility, one environmental statute does not length assure highway selected must Additionally, the definition sions of a final EIS to reflect comments received from circu- under 23 CFR § 771.3 states it is the same as public hearing lation process.” the draft EIS and the EIS, the draft “appropriate but includes revi- adequate opportunity for con- 416 U.S. assure an alternatives, seg- (1974).

sideration complained The three alternatives important ment should fulfill state and the appellants are discussed 1109-1111; local needs. Id. at Lange trial court. The withdrawal and substitu- (9th 1980). Brinegar, 625 F.2d 812 Cir. tion alternatives are considered in the FEIS addition, in six variations. In two studies In determining whether there discussing option are in incorporated compli was sufficient evidence to establish appendix. the It technical is further evi- ance with NEPA the we are segment, for jurisdictions (Seattle, dent that local findings bound trial court Bellevue, Mercer Island and King County) they unless at clearly are erroneous. Id. unanimously voted not to withdraw and 815; Sessions, Morton, 854, v. Inc. 491 F.2d substitute the funds elsewhere. Neither (9th 1974). 858 Cir. Appellants question Mayor’s second alternative nor the in- only first two criteria. We have exam High Occupancy study terim Vehicle aid record, ined including Findings appellants’ argument. Mayor’s The 2-2-2 Fact and of Law Conclusions made merely alternative was a variant of another Thompson. Judge An adequate discussion fully which discussed alternative Brooks v. Daly found, criteria is that including Coleman, 17, (9th 1975), 518 F.2d 19 project major the termini of the both are concludes does not have to be addressed. (1-5 405) population cross-roads 1— interim study HOV was not an alterna- (Seattle Bellevue). City centers improve- to project, tive but rather project The court found the would be able begins. ments to occur before construction to its purposes serve without the construc range findWe of alternatives con- facilities, tion of additional and that there permit sidered was sufficient to a reasoned major were pending proposals no feder choice, complies with NEPA the trial regarding projects. al action related Appellants court found. have not shown Connecticut Street Viaduct had not reached clearly the district court was erroneous the stage “project” of a and hence not did its determination that the discussion of al- require the preparation of an In EIS. ternatives in the EIS was reasonable. See Club, Kleppe 390, v. 427 Sierra U.S. 96 S.Ct. Corpora- Vermont Yankee Nuclear Power 2718, (1976), 49 L.Ed.2d the Supreme 576 NRDC, 519, 1197, v. tion 435 98 U.S. S.Ct. contemplation Court stated the mere fu (1978); Daly, 55 L.Ed.2d F.2d 460 514 at ture action was not require sufficient 1111. preparation case, of an EIS. In this adequate

EIS covered an highway segment. Planning Data Base 4. Alternatives Appellants’ fourth subissue is that

Appellants assert transportation plan developed the state defend pursuant ants develop failed to alternatives 23 U.S.C. 13417was not based on correct thereby violated NEPA. data. is recognized Section and accurate It that 4332(2)(C)(iii) requires alternatives administrative consideration of evidence proposed action gaps be included the EIS. creates between the time the record is However, this court has held the alterna closed and the decision is made. Vermont subject Yankee, 555, tives discussion 1217, to “reasona 435 at 98 at U.S. S.Ct. 55 bleness.” Life Brinegar, of Land v. 485 L.Ed.2d at There is an “to the end denied, F.2d 472 period during reopen cert. agency must 17. 23 provides NEPA, proposed Though part that § 134 this section is projects continuing bring together by asserting appellants should be “based on a com- the two prehensive transportation planning process plan inadequate transportation data was EIS, cooperatively” by though on carried the State and local used more current and accu- area, proposed communities in rate data available. was social, projects take due consideration their economic and environmental effects. 1098 to consider new facts.” Nance v. We have

the record examined the EIS and Agency, Protection 645 F.2d conclude, court, Environmental as did the trial denied, (9th Cir.), cert. sub nom. traffic, impacts city air - E.P.A., Crow Tribe of Indians U.S. noise, aesthetics, quality, social and -, (1981). L.Ed.2d 615 S.Ct. adequately economic effects were con The standard applied regards administra housing sidered. The issue of relocation being “judged by tive action as the infor subject stipulation was the of a between the mation then available to it.” Vermont parties and will not be addressed here. The Yankee, at noise, analyzes the effects of EIS increased L.Ed.2d at 485. including a chart demonstrating an increase perceived in 10 decibels to be twice as Apache In Jicarilla Tribe of Indians Morton, loud as the sound if reduced 10 decibels. 471 F.2d 1275 we study stated that even if a contained infor Appellants argue the inadequate EIS is mation relating to environmental effects “ignored” because it impacts: three other which would be assistance to of those com energy consumption, locating effects of a EIS, menting on an the mere fact that it is facility ventilation in neigh- a residential enough included “is not to sustain a borhood, impacts and using on drivers the finding the violated NEPA project. The anticipa- FEIS discusses the by acting prior to the issuance of the fuel, ted increases in gasoline both and die- study.” Id. at In evaluating 1281. whether sel, electricity from the construction the delayed EIS should have been to await operation subject project. Ap- the the new study, the factors to consider are: pellants impacts, have failed to direct us to (1) the consequences delay, (2) significant probable, both to result present state of information relative to en from project that render the inade- EIS factors, (3) vironmental the relevance quate. The before us FEIS identifies and and degree probative value of the infor significant discusses the environmental im- mation. Id. pacts in sufficient agree detail and we The trial court the demo found court, the conclusion of the district NEPA graphic unavailable, data considered the has been satisfied. factors, above-mentioned and concluded the preliminary information would not have D. significantly altered the already conclusions Appellants’ argument final is that in the agree. FEIS. We We do not view the district court erred in dismissing their requiring case as one reopening claim for relief under 42 U.S.C. the decision-making process to review later The district court is remarking correct in available data. that defendant State officials must be sued in their individual capacity in an action for Impacts monetary damages. Jordan, Edeiman v. Appellants’ final involving subissue NEPA concerns adequacy of the discus (1974). found, We have not in reviewing sion of impacts in the EIS. Under this pleadings, record and request a for re heading, appellants object in five areas be Nonetheless, lief in damages. the form of cause they impacts believe the were “inade upheld. trial court’s dismissal can be quately required discussed.” What is of an Following review, independent our we find EIS is “a reasonably thorough discussion of there is neither a in arguments basis the significant aspects probable of the envi appellants support nor the record to ronmental consequences.” Trout Unlimit 1983 claim. ed, 509 F.2d at 1283. question When the the adequacy consideration, of the we ex III. CONCLUSION amine to determine whether consideration of those factors was “arbitrary capri or We have reviewed the action of the dis- Nance, cious.” which, F.2d at 712. trict following court a “hard look” at record, (either injunction. project Does the dissolved the We use actual- taking significance action or proper ly by impairing find that and further affirm of) public findings stringent enjoyment park? stan- procedures have dards and NEPA (2) Is prudent there a feasible and alter- addition, been appellees. satisfied In (typically, native to such use not building appellants’ claim for relief under highway choosing or a different appropriately route)?1 was dismissed. (3) If no pru- there are reasonable and

AFFIRMED. alternatives, does dent include possible all planning minimize harm? SNEED, Judge, Concurring: Circuit II. I majority opinion, concur save section II.B. With to it I respect concur APPLICATION TO 1-90 SEATTLE- its result add these observations. BELLEVUE CORRIDOR complied here with the re-

I. 4(f). quirements of section Secretary’s “4(f) Analysis” properly determined that Department Under section more than twenty fifty potentially Transportation Act of 49 U.S.C. protected sites pro- would “used” 1653(f) (1970), Transpor- posed “4(f) highway. The Secretary’s De- tation, out, Judge points may as Anderson termination,” conjunc- when considered in not approve any highway project which planned “greenbelt,” tion ade- parkland (1) uses unless there is no feasible quately established that no feasible and prudent to the such alternative use of prudent proposed alternative to the corridor land, project includes possible all exists, project pos- that the includes all planning to minimize park harm to the re- planning sible to minimize to harm affected sulting project from its use. A does parkland. not parkland take by condemnation none- may park, theless “use” provided Although a number small more to proximity project park impairs twenty than sites listed as in “used” its prior significance value in terms of its “4(f) Analysis” “4(f) in are discussed and enjoyment. Stop H-3 Association v. Determination,”2 the final Environmental Coleman, (9th (Ha- 533 F.2d 1976) 434 Cir. Statement, 9, 1978, Impact dated March waiian stone monument with religious sig- in fact does consider these sites rather ex nificance); Volpe, Brooks v. 460 F.2d 1193 haustively, planning indicates that (9th 1972) (alpine campground Cir. encircled place. minimize harm to them took The by highway); D. C. Federation of Civic “fly-speek admonition that we must avoid 1231, v. Volpe, Associations impact statements, 459 F.2d 1239 ing” environmental La (D.C.Cir.1971) (parkland bridge 677, (9th under over v. Brinegar, than F.2d 506 693 Cir. Potomac). Application 4(f), 1974) (en banc); section Isle Hope Historical therefore, requires Association, three-part a test: v. Inc. United Army States prong gives 1. This section teeth. An alter- The reason Overton Park makes it so native uphold finding is “feasible” unless “as a matter of difficult a that no “feasible engineering prudent sound explained it would not be feásible to alternative” exists is highway any circumstances, along building build the other Citi- therein. highway through route.” Under usual a park always Volpe, zens Preserve To Overton Park will 401 be the 814, 821, disruptive cheapest least S.Ct. route (1971). “prudent,” government. purpose despite greater A route is The section protect parkland highway spite community disruption, costs from economic or use un- disruption less the or “reasonableness” such use the ab- costs reach “extraordina- 411-13, ry magnitudes” “truly sence of the Id. at at statute. S.Ct. or there are unusual present 821-22. particular factors” in a case. id. at See 413, 91 (majority opinion). supra 2. See note 13 (5th 646 F.2d Corps Engineers, 1981); Basin Land

Cir. Columbia Protection Schlesinger,

Association v. 643 F.2d

(9th 1981) (dissent); Citizens for Mass Adams,

Transit, 630 F.2d Inc. v. appropriate in is also decision makers con-

context. While the

ducting might have organ- review manner,

ized their better analysis requires

documentation a whole read

that we affirm. possible all planning conclusion that

to minimize harm has been undertaken is fact

strengthened by the that affirmative

actions to enhance environmen-

tally prominent constitute a feature of the size,

project. topography, and meas- revegetation incorporated

ures for in the

planned greenbelt greatly.mitigate will parkland project.

loss of from the Togeth-

er planning incorporated with other in the documentation,

section the conclusion

that all possible planning minimize harm

is proper. 4(f) has been Section satisfied. Virginia Romero,

Joe D. ROMERO and

Plaintiffs-Appellants, HARRIS, Secretary Health,

Patricia Welfare, &

Education

Defendant-Appellee.

No. 79-1737.

United Appeals, States Court of

Tenth Circuit.

March

Case Details

Case Name: Constance A. Adler, Roosevelt Lathan and Pearline Lathan, Etc. v. Andrew Lewis, Secretary of Transportation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 30, 1982

Citation: 675 F.2d 1085

Docket Number: 79-4645

Court Abbreviation: 9th Cir.