Petition for Writ of Certiorari — Yamasaki v. Stop H-3 Ass'n

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B4- 1 278 vices us]

No. FEB 13 1995

——T -AUBSANDER STEVAS,

pa CLERK

Supreme Court of the United States

OcTOBER TERM, 1984

WayYnE J. YAMASAKI,

Drector, Hawatl DEPARTMENT OF TRANSPORTATION,

Petitioner,

Stop H-3 Association, a Hawaii non-profit

corporation, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MicHaArEt A. LILLY

Attorney General

State of Hawaii

Counsel of Record

Keith Y. TANAKA

RANDALL Y. K. Youna

Deputy Attorneys General

State of Hawaii

Hawaii State Capitol

Honolulu, Hawaii 96813

Attorneys for Petitioner

LE OT

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. ‘Whether those provisions of Section 4(f) of the

Department of Transportation Act of 1966 and Sec-

tion 18 of the Federal-Aid Highway Act of 1968 im-

posing certain conditions on any highway project which

‘*requires the use of any publicly owned land from a

public park’’ are applicable where a park was planned

based on the pre-existing location of a proposed high-

way, where there is no physical taking of parklands,

and where the effects of the highway on the park are

indirect and minimal.

2. Whether the Court of Appeals applied the wrong

standard of review when it refused to accord defer-

ence to an administrative determination that no feasi-

ble and prudent alternative existed to routing a high-

way project alongside, but not through, a public park.*

*The state defendant below was Ryokichi Higashionna, in his

capacity as Director of the State of Hawaii Department of Trans-

portation. He has been succeeded by Wayne J. Yamasaki. The

Director of the State of Hawaii Department of Transportation is

the petitioner before this Court.

Plaintiffs below and respondents before this Court were Stop H-3

Association, Life of the Land, and Hui Malama Aina O’Koolau.

‘TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........--. ese cess eceeeneees i

Oe Fe. rrr rT errr Te iv

SIE TM ca csi sacuacncessaeneceuae wanes 1

CO ee errr ere Tee re rs oe 2

SSE EOVORAUD oso ck vases evs cease cena 2

Beawmmeue OF THR CaM 2. osc. s ccccnccswetensecenge 3

ee rr ert fe en errr ee 3

B. Hawaii’s Interstate Highway System ........ 4

C. Ho’omaluhia Park Expanded to H-3 After the

Highway Alignment Was Fixed ............. 7

D. The Secretary of Transportation’s Section 4

(E>) TOOROWUIRREIOO os ic as ciccck on das. visines 9

EB. Prewendiones Dele «cask cc ceeceicccsasivevian 10

1. Eiehrint Comet EOOiSIOm .... 6.6 ede cie cc vce: 10

2. Court of Appeais Decision ................ 12

REASONS FOR GRANTING THE WRIT ..........--+2-0ee: 13

I. The Decision by the Ninth Cireuit that H-3 Uses

Ho’omaluhia Park Conflicts With Decisions of

Cee Cantey ooo ic caseisnveen eee 43

IL The Ninth Circuit Judges’ Substitution of Their

Own Judgment for that of the Secretary Is Un-

precedented and Points Up the Need for Guidance

from this Court Regarding the Limits of Review

of Such Administrative Decisions .............. 14

ili

TaBLE oF CoNnTENTS continued

Page

Iti. Misapplication of Section 4(f) Has Caused and

Will Continue To Cause Unwarranted Cost and

Delay for Transportation Projects Nationwide .. 18

en FURR GN cach Gk kaws tudksvaaukees 20

APPENDIX

Opinion of the United States Court of Appeals for the

Ninth Circuit (August 12, 1984) ............... la

Judgment of the United States District Court for the

District of Hawaii (April 20, 1982) ............. 53a

Opinion and Order of the United States District Court

._ for the District of Hawaii (April 2, 1982) ....... 55a

TABLE OF AUTHORITIES

CasEs: Page

A.C.O.R.N. v. Brinegar, 398 F.Supp. 685 (E.D.Ark.

1975), aff’d. A.C.O.R.N. v. Coleman, 531 F.2d 864

CR Sh BSED hn. 0k 6a v ks on ciebwnneesekesenees 13, 16

Adler v. Lewis, 675 F.2d 1085 (9th Cir. 1982), 506 F.2d

677 (9th Cir. 1974), 350 F.Supp. 262 (W.D. Wash.

1972), 455 F.2d 1111 (Sth Cir. 1971) ............ , 19

Arizona Past and Future Foundation v. Lewis, 722

f & §. Uo 9 eeeerrerrerr ererry 18

Baltimore Gas and Electric Co. v. NRDC, —— USS.

, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) .... 15,16

Citizens to Preserve Wilderness Park v. Adams, 543

F.Supp. 21 (D. Neb. 1981), aff’d. 685 F.2d 438 (8th

ee I noah Sc cas buss 040 sewee ek <a sauns 15, 17, 19

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ....14, 15, 16,

17-18, 20

Coalition for Responsible Regional Development v.

Coleman, 555 F.2d 398 (4th Cir. 1977) ......... 17,18

Falls Road Impact Committee, Inc. v. Dole, 581 F.

Supp. 678 (E.D. Wise. 1984), aff’d. 737 F.2d 1476

e. §: TAereperr errr? for Tee ee 15

Louisiana Environmental Society v. Coleman, 537 F.

Ba TH (Bt Gat. TBTB) cnn nna ec cccccsvccecnnvens 19

Louisiana Environmental Society v. Dole, 707 F.2d 116

ER GARG BEND cc cncaessavancacsedcassnets 17, 18, 19

Maryland Wildlife Foundation v. Lewis, 560 F.Supp.

466 (D.Md. 1983), aff’d. sub nom Maryland Wild-

life Federation v. Dole, 747 F.2d 229 (4th Cir.

BE ck nc 00.0000 c eck ce ddenkshanennehenseen 17,18

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d

GE SU nn ancccvsucgcsesasdeveasesncowensen 15

TaBLE OF AUTHORITIES continued

Page

Monroe County Conservation Council v. Adams, 566

F.2d 419 (2d Cir. 1977), cert. den. 435 U.S. 1006,

98 S.Ct. 1876, 56 L.Ed.2d 388 (1977) .......... 17,18

Nashvillians Against I-440 v. Lewis, 524 F.Supp. 962

reer eee epee 14,17

National Wildlife Federation v. Brinegar, 529 F.2d 359

Ge EL SE 5. dad de dscsbannbekutedusduusdeee 13

National Wildlife Federation v. Lewis, 519 F.Supp. 523

(D.Conn. 1981), aff’d. 677 F.2d 259 (2nd Cir. 1982) 17

Philadelphia Council of Neighborhood Organizations v.

Coleman, 437 F.Supp. 1347 (E.D. Pa. 1977), aff’d.

078 F.2d 1375 (3rd Cir. 1978) .................. 17

Stop H-3 Association v. Coleman, 533 F.2d 434 (9th

Se cae acekh cate ead tiaek Gaon we es 9

Strycker’s Bay Neighborhood Council v. Karlen, 444

U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) .... 15

Township of Springfield v. Lewis, 702 F.2d 426 (3rd

SL Me chase ¢ slcucdndcunk cca vcckeusebennse 17

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) .... 15

Weinberger v. Catholic Action of Hawaii, 454 U.S. 139,

102 S.Ct. 197, 70 L.Ed.2d 298 (1981) ............ 15

FEDERAL STATUTES:

Section 4(f) of the Department of Transportation Act

of 1966, 49 U.S.C. § 303, and Section 18 of the Fed-

eral-Aid Highway Act of 1968, 23 U.S.C. § 138 . passim

ooo sos ecig 2

I ios escheat 2

I ooo ove 2

TasBLeE oF AvuTHORITIES continued

Page

I i i ea Jn ba veewiiie 2

i in ow chu kee nieeewesnehauees 10

ORO 6G .............. SEER ea pag tear op 10

OrHerR AUTHORITIES:

112 Cong. Reo. 14073-74 (1966) ........sccccesceeees 13

112 Cong. Reo. 21192 (1966) ........ccccscsscecceees 13

SER ates, Beek, SITET CIDER) 0.0... osc cencscncecccccece 14

114 Cong. Rec. 24024 (1968) ...........cceeeeeeeees 13-14

IN THE

Supreme Court of the United States

OcToBER TERM, 1984

No. ——

Wayne J. YAMASAKI,

Director, Hawatmt DEPARTMENT OF TRANSPORTATION,

Petitioner,

Stop H-3 Association, a Hawaii non-profit

corporation, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Wayne J. Yamasaki, Director of the

Hawaii Department of Transportation, respectfully

prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in the above-entitled case.

OPINIONS BELOW

The majority and dissenting opinions of the Court

of appeals are reported at 740 F.2d 1442, and are re-

printed in the Appendix hereto, pp. 1la-52a, infra.

The opinion of the District Court for the District of

Hawaii is reported at 538 F.Supp. 149, and is reprinted

in the Appendix hereto, pp. 55a to 125a, infra."

JURISDICTION

The judgment o* the Court of Appeals was entered

on August 21, 195.. A timely Suggestion of Appro-

priateness of Rehearing En Banc was denied on No-

vember 15, 1984. The jurisdiction of this Cow is

invoked pursuant to 28 U.S.C. § 1254(1). Respondeut»’

asserted basis of jurisdiction in the Court of Appeals

was under 28 U.S.C. §§ 1291 and 1292(a) (1). The basis

for jurisdiction in the District Court was 28 U.S.C.

§ 1338(a).

STATUTES INVOLVED

Section 4(f) of the Department of Transporta-

tion Act of 1966, as amended, 92 Stat. 824, 49 U.S.C.

§ 1653(f),? and Section 18 of the Federal-Aid High-

way Act of 1968, 82 Stat. 823, 23 U.S.C. § 138 (here-

inafter jointly referred to as Section 4(f)), are identi-

eal. They provide as follows:

‘“‘Tt 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 ref-

uges, and historic sites. The Secretary of Trans-

1 Prior decisions of the Court of Appeals and the District Court

in this lengthy litigation are reported at 533 F.2d 434 (1976),

cert, denied, 429 U.S. 999, 97 S.Ct. 380, 50 L.Ed.2d 325 (1976),

389 F.Supp. 1102 (1974), 353 F.Supp. 14 (1972), and 349 F.Sapp.

1047 (1972).

? Recently recodified without substantive change as 49 U.S.C.

§ 303.

Cee shall cooperate and consult with the

ecretaries 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 e ce the

natural beauty of lands traversed. After the effec-

tive date of the Federal Aid Highway Act of 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 of-

ficials unless (1) there is no feasible and prudent

alternative to the use of such land, and (2) such

program includes all possible planning to mini-

mize harm to such park, recreational area, wild-

life and waterfowl refuge, or historic site resulting

from such use.”’

STATEMENT OF THE CASE

A. Introduction

The primary issue in this case is whether the Ninth

Circuit Court of Appeals, by merely substituting its

judgment for that of responsible administrative deci-

sion makers, may permanently enjoin the construction

of a highway found to be necessary by the State of

Hawaii and the United States Department of Trans-

portation. In spite of continuous approval by respon-

sible administrative agencies, the construction of In-

terstate Route H-3, connecting Kaneohe Marine Corps

Air Station on the windward side of Oahu with Pearl

Harbor on the leeward side, has been delayed some

thirteen years by litigation. During that period the

projected cost of the project has inflated threefold

from $230 million in 1972 to $742 million today. Most

recently, the Ninth Circuit has enjoined further de-

en and construction of the entire 15 mile highway

because of the alleged impact of a 1.7 mile segment

which skirts but does not enter a park. Even more

significantly, the park which the Ninth Circuit seeks

to protect by enjoining the construction of the entire

highway was conceived, designed and built after the

highway was planned, and the park planners clearly

accepted the presence of H-3, even to the point of

extending the park to the edge of the highway. A park

off-ramp was even considered.

B. Hawaii’s Interstate Highway System

The Hawaii Interstate Highway System, which con-

sists of the already built H-1 and H-2, and the yet-

to-be completed H-3, will provide an integrated trans-

portation network connecting the major population

areas, areas of employment and defense installations

on the Island of Oahu. H-3 was designed as the first,

and only, interstate/defense freeway crossing the

Koolau Mountain range, and it will connect the wind-

ward Oahu cities of Kailua and Kaneohe and the

Kaneohe Marine Corps Air Station with the city of

Honolulu, the secondary urban center of Ewa, the

nearly-completed deep-draft harbor at Barbers Point,

Barbers Point Naval Air Station and Hickam Air

Force Base. H-3 is necessary to serve the growing and

already heavily congested civilian traffic between the

leeward and windward sides of Oahu and to provide

direct access between important military installations.

A map showing the location of the proposed route in

relation to the population centers and major military

installations on Oahu appears on the facing page for

this Court’s reference.

r-—KANEOHE MARINE CORPS

AIR STATION

SCALE IN MILES

=~ ae

COMPLETED SECTION seu

UNDER CONSTRUCTION @eeceeeeeo

PLANNED ee

Cos Coot tes

CLOSED WATERSHED BARBERS POINT

(63) LIKELIKE HIGHWAY

= BEST AVAILABLE COPY

KALANIANAOLE HIGHWAY

HIGHWAY SYSTEM, ISLAND OF OAHU

The cempleted portion of H-3, from Halexou Inter-

change to Kaneohe Marine Corps Air Station, is about

4 miles long. In addition, by stipulation of the parties,

access ramps at Halawa Interchange from H-3 to H-1

and Moanalua Road have been constructed. The por-

tion remaining to be completed, from Halawa Inter-

change tv Halekou Interchange, is about 10.7 miles

long. Of that 10.7 miles, a segment of approximately

1.7 miles which ends at the Halekou Interchange runs

along a joint use flood control project and park called

Ho’omaluhia Park. It was this small segment which

caused the Ninth Circuit to halt all work on the entire

highway. 740 F.2d at 1465.

H-3 was conceived and designed as part of the ex-

tension of the national highway system of Interstate

and Defense Highways to Hawaii in 1960. In 1961,

the concept of an H-3 crossing the Koolaus and con-

necting the Kaneohe Mariue Air Station to the Hono-

lulu side of Oahu was approved by the Federal gov-

ernment. The corridor report for H-3 was completed

in 1965, and the Design Planning Report was com-

pleted in 1967. The City and County of Honolulu, which

encompasses the entire island of Oahu and thus plans

and controls development on the entire island, recog-

nized a need for the highway through the Koolau

Mountains from Pearl Harbor to Kaneohe Marine

Corps Air Station by its Council Resolution No. 54

in 1966. ,

C. Ho’omaluhia Park Expanded to H-3 After

the Highway Alignment Was Fixed

During the mid-1960’s, the City and County of Hono-

lulu began efforts to construct a flood control project

at the present site of Ho’omaluhia Park and created

a string of parks running from Nuuanu on the Hono-

lulu side of Oahu to Kaneohe on the island’s Wind-

ward side. As early as 1967, in the H-3 Design Report,

the plans for these parks and flood control project

were noted, and locating H-3 so as not to interfere

with these later proposed projects was made a pri-

ority. Thus, the alignment of H-3 in the Kaneohe area

was established so as to allow for future construction

of the flood control project as well as implementation

of the City’s park concept.

Coordination on the detailed design of H-3 and plan- -

ning of the flood control project and park continued.

As authorized by Congress in the Flood Control Act

of 1970, P.L. 91-611, the flood control/park project

boundaries were well removed from H-3. By this time,

final designs for H-3 were being prepared, and por-

tions of the route were under construction. Trail cross-

ings under H-3, which is to be elevated in the vicinity

of the park, were being coordinated as were hydraulic

engineering designs for H-3 and the flood control

project.

The flood control project/park boundaries were ex-

panded in 1971 and then again in 1974 at the request

of the City and County in order to foreclose the pos-

sibility of unwanted urban development between H-3

and the flood control/park project. This last expan-

sion brought the park’s boundaries up to H-3. In

September 1976, the City and County entered into a

contract with the United States Army Corps of En-

gineers for the construction of the flood control/park

project now known as Ho’omaluhia Park. This con-

tract was executed seven months after the United

States Court of Appeals for the Ninth Circuit, con-

+ cho el

(An AOUBI ALLO Nis LR is oe Yak fhe ee AB SN et

ut A Ra BEE AD RAE SLi ve oO

are a al 0 i

struing the applicability of Section 4(f) to the section

of H-3 on the Honolulu side of the Koolaus, re-imposed

an injunction on the construction of H-3; although the

deficiency found by the Ninth Circuit was on the Hono-

lulu side of the Koolaus, the Court enjoined all of the

project, including that section of H-3 around Ho’oma-

luhia Park. Stop H-3 Association v. Coleman, 533 F.2d

434 (9th Cir. 1976).

The histories of H-3 and Ho’omaluhia Park clearly

show that the Park expanded to meet H-3’s bound-

aries. In fact, the designers for H-3 considered an

off-ramp to the Park for improved park access, and

the City actually desired to use H-3 for access to the

park. Because H-3 is outside the park, no physical

use would be made of the park. Most of the park’s

active use areas were located away from H-3, and

the highway would not even be visible from the park’s

active use areas.

D. The Secretary of Transportation’s

Section 4(f) Determination

The administrative determination of the Secretary

of Transportation reflected this history of coordina-

tion. The finding by the Secretary that no feasible and

prudent alternative existed to routing H-3 along Ho’-

omaluhia Park’s border was based in part on this his-

tory of coordination.

In the Ho’omaluhia Park Section 4(f) Statement,

the Secretary considered five alternatives to the recom-

mended H-3 alignment. Two involved shifting the H-3

alignment towards the mountains (Mauka) or towards

the ocean (Makai). Two involved building H-3 aiong

the recommended alignment but either on an elevated

structure or lowered below grade as the highway went

around Ho’omaluhia Park. The fifth was not building

H-3 at all. All alternatives were rejected as not being

feasible and prudent alternatives to constructing H-3

in its recommended alignment. 740 F.2d at 1450-1458.

Rejection of the first four alternatives was compelled

by certain topographical, environmental, and geo-

graphical requirements which had to be met in the

design of H-3 These included avoidance of physical

taking of Section 4(f) land from a public golf course;

a minimum elevation of the tunnel necessary to go

through the Koolau Mountains to avoid sources of

artesian water; the sloping topography between the

Koolau Mountains and Ho’omaluhia Park, and the

existing, statutorily required geometric design require-

ments for Interstate freeway projects. See, 23 U.S.C.

$109.

Following the Secretary’s determination on Decem-

ber 10, 1980, the State of Hawaii and Federal gov-

ernment moved to terminate the injunction previously

imposed on the project by the Ninth Circuit. The

present phase of the litigation on H-3 followed.

E. Proceedings Below

1. District Court Decision. Trial was held on this

matter for two weeks, from October 14 to 29, 1981.

Fifteen witnesses testified, and 1394 pages of tran-

scripts were recorded. In addition to Section 4(f), at

issue was Petitioner’s compliance with the National

Environmental Policy Act of 1969, 42 U.S.C. § 4321,

et seq. and the Endangered Species Act of 1973, 16

U.S.C. § 1531, et seq. 740 F.2d at 1446.

POO ar.

ark a eae af

On the question of Section 4(f) compliance, the

District Court heard testimony on why the Secretary

of Transportation had rejected alternatives to construc-

tion of H-3 in the recommended alignment. This ex-

pert testimony from engineers was received in the

course of the introduction of exhibits and portions of

the administrative record which formed the basis for

the Secretary’s decision. 531 F. Supp. at 179-183. As

much of the evidence consisted of topographic maps,

diagrams of alternative alignments and traffic patterns,

and other raw data, the District Court received testi-

mony on that evidence to illuminate the determination

made by the Secretary. This testimony established that

complex traffic movements, undesirable curves, confus-

ing configuration were reasons against finding the

Makai alternative prudent and feasible, and that popu-

lation growth, increased trans-Koolau commuter traf-

fic, and inadequacy of existing facilities were reasons

against finding a No-build alternative to be prudent

and feasible.

The District Court found compliance by Petitioner

with all environmental statutes, including Section 4(f),

and lifted the injunction against the project which

had been in effect since the Ninth Circuit’s previous

1976 decision. 538 F. Supp at 183-4. It found that four

of the five Section 4(f) alternatives rejected by the

Secretary as not prudent and feasible were properly

rejected. However, it did require another Section 4(f)

determination, more completely supported by the ad-

ministrative record, that the Mauka alternative was

not prudent and feasible before it woul¢ permit con-

struction to proceed. Jd. This determination was made

and the Secretary granted the necessary location and

design approvals for construction of H-3 on November

12, 1983.

2. Court of Appeals Decision. The Ninth Circuit

subsequently reversed the District Court by a vote of

two to one, holding that the No-Build alternative had

been unreasonably rejected by the Secretary. 740 F.2d

at 1465-6. The Court also held unanimously that the

Makai alternative had been unreasonably rejected. Jd.

Based on what petitioners believe was a restrictive,

narrowly selective and incorrect view of the adminis-

trative record, the Ninth Cireuit found insufficient ~

support for the District Court’s determination that

Section 4(f) had been complied with. It ignored most

of the administrative record as well as the testimony

and evidence considered by the District Judge.

Circuit Judge Wallace dissented on the ‘‘no-build”’

issue, suggesting that a ‘‘no-build” alternative to go-

ing past Ho’omaluhia Park properly encompassed

only the segement of H-3 in the vicinity of the park,

and not the entire length of H-3. Both as a matter

of law and of common sense, he correctly viewed the

initial question of whether or not to build a project

as separate from how to build that project. 740 F.2d

at 1467-8. Analyzing Section 4(f)’s legislative history

and statutes similar to Section 4(f), he wrote that

“Congress took the choice of planning a highway as

a given under section 138. Congress did not envision

that the Section would have to reconsider that initial

choice of project in protecting park lands.” 740 F.2d

at 1467. He further argued that while in every case,

utilizing the majority’s reasoning, a complete ‘“‘no-

build’’ alternative would be an alternative to be con-

sidered under Section 4(f), no other court had previ-

dthtvnittioat:sintniie?

ously placed such restrictions on the Secretary. 740

F.2d at 1467. Such interference with the cooperative

federalism embodied by federally-aided highway proj-

ects could not have been contemplated by Congress.

740 F.2d at 1768.

REASONS FOR GRANTING THE WRIT

I. The Decision by the Ninth Circuit that H-3 Uses Ho’oma-

luhia Park Conflicts With Decisions of Other Courts.

The joint planning of H-3 and Ho’omaluhia Park,

the expansion of the park to its present common bound-

ary with H-3, and the design of H-3 to facilitate park

use are all factors similar to those which other courts

have held that the Secretary could properly consider

in concluding that Section 4(f) is not applicable.

A.C.O.R.N. v. Brinegar, 398 F.Supp. 685, 693 (E.D.

Ark. 1975), aff’d. A.C.O.R.N. v. Coleman, 531 F.2d

864 (8th Cir. 1976). See also National Wildlife Fed-

eration v. Brinegar, 529 F.2d 359, 370-71 (5th Cir.

1976).

Such factors are especially important where the

legislative history of Section 4(f) does not suggest

that Congress ever intended the statute to apply as

restrictively as the Ninth Circuit Court of Appeals

has applied it. H-3 will not physically take one square

inch of parkland, and, in fact, the park expanded to

meet the alignment of H-3. Reference to the legisla-

tive history on Section 4(f) shows Congressional con-

cern only with situations where highways would physi-

eally go through and destroy existing parks. See, Com-

ments by Senator Yarborough at 112 Cong. Ree. 14073-

74, and 21192 (1966), and 114 Cong. Kee. 24036-37

(1968), Comments by Senator Mansfield at 114 Cong.

Ree. 24024 (1968), Comments by Senator Rogers at

114 Cong. Ree. 23707 (1968). |

In addition, this Court’s only prior decision con-

struing Section 4(f), Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d

136 (1971), does not support the Ninth Circuit’s ‘‘con-

structive use’’ analysis of section 4(f). This Court

described Section 4(f) as “a plain and explicit bar to

the use of federal funds for construction of highways

through parks.’’ (Emphasis added), Ibid., 401 U.S.

at 417, 91 S.Ct. 821, 28 L.Ed.2d 150. At least one

court has found that there is no such thing as “‘con-

structive use’’ under Section 4(f). Nashvillians Against

I-440 v. Lewis, 524 F.Supp. 962, 975 (D. Tenn. 1981).

Petitioners believe this view to be consistent with

Overton Park.

Il. The Ninth Cireuit Judges’ Substitution of Their Own Judg-

ment for that of the Secretary Is Unprecedented and Points

Up the Need for Guidance from this Court Regarding the

Limits of Review of Such Administrative Decisions.

Whether or not “constructive use’’ exists as an

abstract concept, the facts of the interzelated develop-

ment of H-3 and Ho’omaluhia Park could surely have

been considered by the Secretary in finding that H-3

complied with Section 4(f).

The Ninth Circuit, in reviewing the validity of an

administrative determination by the Secretary of

Transportation pursuant to Section 4(f), clearly over-

stepped the bounds of acceptable judicial scrutiny. It

accorded absolutely no deference to the Secretary’s

determination that no feasible and prudent alterna-

tive existed to building H-3 along Ho’omaluhia Park.

15_

Nor, needless to say, did it accord any deference to

the opinion of the United States Dist:ict Court for

the District of Hawaii. Instead, the Ninth Circuit ig-

nored the bulk of the administrative record and evi-

dence received at trial and merely substituted their

judgment for that of the administrators. Although

purporting to apply this Court’s only prior decision

involving Section 4(f), Citizens to Preserve Overton

Park v. Volpe, supra, the Ninth Circuit in fact sub-

jected a Federally-funded undertaking to the type of

excessive and unfounded procedural requirements that

this Court has repeatedly disavowed. Weinberger Vv.

Catholic Action of Hawait, 454 U.S. 189, 102 S.ct.

197, 70 L.Ed.2d 298 (1981), Strycker’s Bay Neighbor-

hood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497,

62 L.Ed.2d 433 (1980), Vermont Yankee Nuclear

Power Corp. v. NRDC, 485 U.S. 519, 98 S.Ct. 1197,

55 L.Ed.2d 460 (1978). Only two terms ago, this Court

stressed the limited judicial role in assessing admin-

istrative agency compliance with environmental stat-

utes, concluding that the role was of necessity a

limited one in deference to the exvertise of admin-

istrative agencies. Baltimore Gas and Electric Co. v.

NRDC, — U.S. —, 103 S.Ct. 2246, 76 L.Ed.2a

437 (1983), Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 75 L.

Ed.2d 534 (1983).

The extreme position of the Ninth Circuit is em-

phasized by its extraordinary divergence from other

Circuits on the applicability of Section 4(f). See, Falls

Road Impact Committee, Inc. v. Dole, 581 F.Supp.

678, 693 (E.D. Wise. 1984) (Court rejected argument

that any impact on park could be construtive use,

and instead required a showing of substantial impacts),

aff’d. 737 F.2d 1476 (7th Cir. 1984); Citizens to Pre-

serve Wilderness Park v. Adams, 543 F.Supp. 21, 27-28

(D. Neb. 1981) (Court held that “‘Secretary need not

ignore the nature of the parklands or the effects of the

use of them. He must give parklands great deference

but need not treat all parklands exactly alike.’’), aff’d.

1685 F.2d 438 (8th Cir. 1982); A.C.O.R.N. v. Brine-

gar, supra, (location of prinepial facilities away from

highway, landscaping in area of the park, and loca-

tion of park after freeway route determined are all

factors in finding no constructive use).

Such an extreme result is contrary to the decisions

of other Circuits, is contrary to the spirit and intent

of Section 4(f), and is contrary to the intent of this

Court when it decided Citizens to Preserve Overton

Park v. Volpe, supra. The Ninth Cireuit’s decisions

in this action have placed extraordinary burdens upon

both the State and federal governments and have

directly caused the astronomical inflation of construc-

tion costs.

The Ninth Circuit, by ignoring the Secretary’s

assessment of the entire administrative record, also

ignored this Court’s most recent pronouncement that

the discretion exercised by federal decision-makers re-

garding particular facts must be given great weight

by a court. Baltimore Gas and Electric Co. v. NRDC,

supra. In fact, because review of the Secretarv’s de-

cision must be judged on the entire administrative

record, Citizens to Preserve Overton Park v. Volpe,

401 U.S. at 419, 91 S.Ct. at 825, 28 L.Ed.2d at 155,

failure by a court to consider part of an adminis-

trative record as a basis for an agency’s decision is

itself ground for reversal. Louisicna Environmental

Society v. Dole, 707 F.2d 116, 121-22 (5th Cir. 1983).

Fuli consideration of the record is required, for

under Section 4(f), as all other statutes, a court may

not substitute its judgment for that of an agency.

Louisiana Environmental Society v. Dole, supra, Town-

ship of Springfield v. Lewis, 702 F.2d 426 (3rd Cir.

1983), National Wildlife Federation v. Lewis, 519 F.

Supp. 523 (D.Conn. 1981), aff’d. 677 F.2d 259 (2nd

Cir. 1982), Coalition for Responsible Regional De-

velopment v. Coleman, 555 F.2d 398 (4th Cir. 1977),

Monroe County Conservation Council v. Adams, 566

F.2d 419 (2d Cir. 1977), cert. den. 435 U.S. 1006,

98 S.Ct. 1876, 56 L.Ed.2d 388 (1977). All that may

be determined is whether the Secretary applied the

proper statutory test and whether she could have rea-

sonably believed that the facts as presented in the

record met that test.

It is clear that cumulative impacts of alternatives,

similar to those set out in the Ho’omaluhia Section

4(f) Statement, may justify even the physical tak-

ing of parkland. Maryiand Wildlife Foundation v.

Lewis, 560 F.Supp. 466 (D.Md. 1983), aff’d sub nom

Maryland Wildlife Federation v. Dole, 747 F.2d 229,

(1984); Citizens to Preserve Wilderness Park v.

Adams, supra, Philadelphia Council of Neighborhood

Organizations v. Coleman, 437 F.Supp. 1347 (E.D.

Pa. 1977), aff’d 578 F.2d 1375 (3rd Cir. 1978).

The Ninth Circuit endorsed the Makai alternative

which was rejected by the Secretary in part because

of safety considerations. Safety was explicitly recog

nized as an appropriate Section 4(f) consideration in

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

at 416, 91 S.Ct. at 821, 28 L.Ed.2d at 151, Maryland

Wildlife Federation v. Lewis, 560 F.Supp. at 474,

and Coalition for Responsible Regional Development

v. Coleman, 555 F.2d at 402. Yet the Court of Ap-

peals, unlike the District Court, erroneously refused

to consider explanatory testimony on this safety ques-

tion. Louisiana Environmental Society v. Dole, 707

F.2d at 123

The Court of Appeals’ endorsement of the ‘‘no-

build’’ alternative was in error, for the law is clear .

that a proposed alternative which does not meet the

basic need for a project may be rejected as impru-

dent. Arizona Past and Future Foundation v. Lewis,

722 F.2d 1422, 1429 (9th Cir. 1983), Monroe County

Conservation Council v. Adams, supra, 566 F.2d at 424,

Coalition For Responsible Regional Development v.

Coleman, supra, 555 F.2d at 401. Indeed, so obvious

is the validity of this basic proposition that no other

court had previously ever required the Secretary to

re-examine a determination that a ‘‘no-build”’ alterna-

tive is not a feasible and prudent alternative to a

project. Other courts have correctly recognized that

an alternative to a project which does nothing is in a

real sense no alternative at all.

III. Misapplication of Section 4(f) Has Caused and Will Con-

tinue To Cause Unwarranted Cost and Delay for Trans-

portation Projects Nationwide.

Section 4(f) has spawned considerable litigation.

Resolution of an inter-circuit split on the scope and

application of Section 4(f) alone should warrant the

granting of certiorari. Certiorari would also be war-

ranted to firmly establish the proper role of the fed-

eral judiciary in reviewing discretionary administra-

tive decisions relating to highway construction.

It must also be stressed that some definitive guid-

ance in the application of Section 4(f) is necessary

as a practical matter. H-3 is, unfortunately, only one

of many highway projects which have been uncon-

scionably stalled and delayed in large part because

of extreme interpretations of Section 4(f). Consider,

for example, the section of Interstate Route I-220

near Shreveport, Louisiana, which received location

approval in 1965, but which had been repeatedly en-

joined by reviewing courts. Louisiana Environmental

Society v. Dole, supre, revg. 513 F.Supp. 179 (W.D.

La. 1981), Louisiana Environmental Society v. Cole-

man, 537 F.2d 79 (5th Cir. 1976) supra, revg. 407 F.

Supp. 1309 (W.D.La. 1974) ; 524 F.2d 930 (5th Cir.

1975). An even more extreme example of delay is

Interstate Highway I-90 in Washington, between Se-

attle and Bellevue. Adler v. Lewis, 675 F.2d 1085

(9th Cir. 1982), 506 F.2d 677 (9th Cir. 1974), 350

F.Supp. 262 (W.D.Wash. 1972), 455 F.2d 1111 (9th

Cir. 1971).

Delay has unreasonably escalated the cost of these

projects, and such delay has in large part been caused

by interpretations of Section 4(f) which occasionally

border on the incredible. Louisiana Environmental So-

ciety v. Coleman, 537 F.2d at 87 (Displacement of

1508 persons, 21 businesses and 2 churches held not

infeasible or imprudent.) Such decisions have been

so untenable as to be explicitly rejected by other courts,

Citizens to Preserve Wilderness Park v. Adams, 543

F.Supp. at 28. Finally, of course, long-awaited trans-

portation facilities needed by a traffic-weary public

have been kept from completion. A definitive ruling

by this Court is needed both to resolve the split among

circuits and to end the interminable delay of neces-

sary transportation projects.

CONCLUSION

The Ninth Circuit has ignored not only the rea-

soned decisions of the federal and State executives,

but also the clear development in Section 4(f) inter-

pretation since Overton Park. The Ninth Circuit has

also impermissibly substituted its notions of feasible

and prudent highway alternatives for that of the Sec-

retary of Transportation.

The questions presented by this Petition are sub-

stantial, important and recurring, and definitive ruling

by this Court would, therefore, serve the public in-

terest. For these reasons, this Court should issue a

writ of certiorari and reverse the Ninth Circuit’s

decision.

Respectfully submitted,

MicHAEL A. LILLY

Attorney General

State of Hawaii

Counsel of Record

Keith Y. TANAKA

RanDALL Y. K. Youne

Deputy Attorneys General

State of Hawaii

Hawaii State Capitol

Honolulu, Hawaii 96813

Attorneys for Petitioner

APPENDIX

OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(August 12, 1984)

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 82-4357.

Stor H-3 Assoctation, a Hawaii non-profit corporation,

Life of The Land, a Hawaii non-profit corporation,

Hui Malama Aina O Ko’Olau, Appellants,

Vv.

ExizasetH H. Dorz, as Secretary of the United States

Department of Transportation, Ralph Segawa, as

Hawaii Division Engineer, Federal Highways Adminis-

tration, and Ryokichi Higashionna, as Director of the

Department of Transportation of the State of Hawaii,

Appellees.

Argued and Submitted Nov. 29, 1983.

Decided Aug. 21, 1984.

Plaintiffs brought a complaint for declaratory and in-

junctive relief against federal and state transportation

officials challenging proposed highway project. The United

States District Court for the District of Hawaii, Samuel

P. King., Chief Judge, 438 F.Supp. 149, entered judgment,

and appeal was taken. The Court of Appeals, Ely, Circuit

Judge, held that: (1) the Secretary of the Department of

Transportation’s approval of proposed highway project

was an abuse of discretion; (2) record did not establish

that the Secretary could reasonably conclude that a no

build alternative had to be rejected as imprudent; (3)

Federal Highway Administration’s decision to rely on

United States Fish and Wildlife Service’s biological

opinion regarding endangered species was not arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law; (4) environmental impact statement

was sufficient; and (5) supplemental environmental impact

statement was not required.

Affirmed in part, reversed in part, and remanded.

Wallace, Circuit Judge, filed an opinion concurring in

part.

* > . * _ > . . *

Boyce R. Brown, Jr., Honolulu, Hawaii, Ronald Albu,

Legal Aid Soc. of Hawaii, Kaneohe, Hawaii, for appellants.

Randall Y.K. Young, Honolulu, Hawaii, Thomas H.

Pacheco, Dept. of Justice, Washington, D.C., George W.

Playdon, Jr., Honolulu, Hawaii, for appellees.

Appeal from the United States District Court for the

District of Hawaii.

Before Exy, Watuace, and Rernsarot, Circuit Judges.

Ey, Circuit Judge:

We are once again faced with environmental challenges

to the proposed construction by the State of Hawaii of the

remaining portion of Interstate Route H-3.' In this skir-

1The H-3 project has been the subject of extensive litigation

spanning nearly 12 years. See Stop H-3 Ass’n v. Volpe, 349 F.

Supp. 1047 (D.Hawaii 1972); Stop H-3 Ass’n v. Volpe, 353 F.

Sapp. 14 (D.Hawaii 1972); Stop H-3 Ass’n v. Brinegar, 389 F.

Supp. 1102 (D.Hawaii 1974), rev’d, 533 F.2d 434 (9th Cir.), cert.

denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976) ; Stop

H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429

U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976) ; Stop H-3 Ass’n v.

Lewis, 538 F.Supp. 149 (D.Hawaii 1982). The earlier history of the

controversy is reviewed thoroughly in Stop H-3 Ass’n v. Brinegar,

mish, the appellants* challenge on numerous grounds the

appellees’* approval of H-3, alleging violations of the

National Environmental Policy Act of 1969, 42 U.S.C.

§$§ 4321-4347 (1976 & Supp. V 1981) (NEPA), the Endan-

gered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982)

(ESA), the Department of Transportation Act of 1966,

49 U.S.C. $§ 1651-1660 (1976 & Supp. V 1981) (DOTA),

the Federal-Aid Highway Act of 1966, 23 U.S.C. §§ 101-157

(1982) (FAHA), and various implementing regulations.

The appellants appeal the District Court’s Findings of

Fact and Conclusions of Law, Stop H-3 Association v.

Lewis, 538 F.Supp. 149 (D.Hawaii 1982), which denied

many of their claims for declaratory and injunctive relief

and which dissolved the injunctions against construction

of H-3 that had been in place since 1972. The appeal

is timely, and we have jurisdiction to consider the ap-

389 F.Supp. at 1105-07. The more recent factual background and

procedural history of the controversy is set forth at 538 F.Supp.

at 154-56. It should also be noted that construction on the remain-

ing portion of H-3 was resumed in January 1983, but was en-

joined by this Court pending disposition of this appeal. This

Court’s injunction issued November 30, 1983, and will remain in

effect until the District Court issues a new injunction in con-

formity with our decision.

* The appellants are Stop H-3 Association and Life of the Land,

both of which are non-profit organizations chartered for the pur-

pose of opposing the construction of H-3, and Hui Malama Aina

O Ko’olau, an unincorporated association formed ‘‘to protect the

Hawaiian people, the Hawaiian lifestyle, and the land from de-

struction.’’

*The appellees are the Secretary of the United States Depart-

ment of Transportation, the Hawaii Division Engineer for the

Federal Highway Administration, and the Director of the Depart-

ment of Transportation of the State of Hawaii. As this litigation

has progressed, the incumbent Secretary of Transportation has

been substituted for his or her predecessor as a named defendant,

under the authority of Fed.R.App.P. 43(¢) (1).

peal under 28 U.S.C. 41291 (1982) and 28 U.S.C. § 1292

(a)(1) (1982). We affirm in part and reverse in part.

I. SECTION 4(f)

The principal issue in this appeal is whether the Secre-

tary of Transportation (Secretary) has complied with

section 4(f) of DOTA, 49 U.S.C. § 1653(f), and section 18

of FAHA, 23 U.S.C. §138. (Both statutes, which essen-

tially are identical,‘ are hereinafter referred to simply as

**section 4(f).’’)

A. Introduction

Section 4(f) is part of Congress’ response to the growing

public concern over the preservation of our Nation’s

* Section 4(f) states:

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 Trans-

portation shall cooperate and consult with the Secretaries of

the Interior, Housing and Urban Development and Agricul-

ture, 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 mini-

mize harm to such park, recreational area, wildlife and water-

fowl refuge, or historic site resulting from such use.

49 U.S.C. § 1653(f) (1976).

natural beauty. See Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 404, 91 S.Ct. 814, 817, 28 L.Ed.2d 136

(1971). In section 4(f), Congress has determined that the

preservation of our parklands should be given major con-

sideration in connection with all proposed highway con-

struction programs that are to receive financial aid from

the federal government. The statute provides, in declaring

national policy, that ‘‘special effort should be made to

preserve the natural beauty of the countryside and public

park and recreation lands ....’’ The statute further pro-

vides that:

[T]he Secretary [of Transportation] shall not ap-

prove any project or program which requires the use

of any publicly owned land from a public park .. . of

national, State, or local significance . . . unless (1)

there is no feasible and prudent alternative to the use

of such land, and (2) such program includes all possi-

ble planning to minimize harm to such park... result-

ing from such use.

23 U.S.C. § 138; 49 U.S.C. § 1653(f). It is obvious that the

requirements of section 4(f) are stringent. Moreover, the

implementing regulations promulgated by the Secretary

pursuant to section 4(f) 4(f) regulations) require the

Secretary to prepare and circulate a statement (4(f) state-

ment) that must examine the highway’s proposed use of

parkland in light of the requirements of section 4(f). See

23 C.F.R. § 771.19 (1980). The 4(f} regulations specifically

require the 4(f) statement to analyze alternatives to the

use of the parkland to determine whether the alternatives

are feasible and prudent. See id.

In its proposed configuration, H-3 will use land from

two public parklands: (1) Ho’omaluhia Park,’ a major

***Ho’omaluhia’’ in Hawaiian means ‘‘to make a place of peace

and tranquility.’’ Ho’omaluhia Park is a 450-acre mountain park;

it is the major non-ocean park on the island of Oahu. The park

regional park; and (2) Pali Golf Course Park,’ one of

Oahu’s most challenging and heavily used public golf

courses. Because of H-3’s use of the parklands, 4(f) state-

ments were prepared in 1971 (approved by the Secretary

includes a 32-acre lake, camping and picnicking areas, and eques-

trian and hiking trails. The Honolulu Department of Parks and

Recreation describes the park as follows:

Ho’omaluhia is a program park, where all activities are

directed toward the exploring, evaluating and appreciating of

the natural environment and our interaction with it. Recrea-

tion at Ho’omaluhia will offer many ways to become involved

in the environment, through nature walks, hiking, camping,

picnicking, cloud watching and other programs to enhance

environmental awareness. Variety is the key, and to ensure it,

the wilderness atmosphere of quiet and solitude must be main-

tained.

Department of Parks and Recreation of the City and County of

Honolulu, Ho’ike (1981).

Ho’omaluhia Park began as a flood control project developed by

the Army Corps of Engineers. Between 1966 and 1970 the concept

of the park was expanded from a 35-acre ‘‘green-belt’’ surround-

ing the flood control dam and reservoir to a 75-acre facility for

general recreational purposes. In 1973, the proposed park was

further expanded to 115 acres, taking into consideration the

planned Windward alignment of H-3. A 115-acre area between

the park and the highway was to act as a ‘‘buffer zone’’ between

the two projects. This area subsequently was purchased by the

City and County of Honolulu and incorporated into the project,

making part of the boundary of the park contiguous with the

proposed H-3 right-of-way. A master plan for the park was

adopted in February 1974. The plan restricts all of the park’s

intensive uses, t.e., camping and picnicking, to the interior 115

acres of the park. The intensive use area is separated from the

proposed path of H-3 by a peripheral park circulation road and

a low density recreational use zoue. Nonetheless, the largest three

eampsite areas begin 100, 200, and 700 feet, respectively, from

the proposed path of H-3. In addition, half of the length of the

equestrian trail is between 75 and 200 feet from the proposed

ee ee ee

in 1974) for Pali Golf Course Park and in 1979 (approved

by the Secretary in 1980) for Ho’omaluhia Park. In re-

sponse to the District Court’s order, 538 F.Supp. at 184,

the Pali Golf Course Park Section 4(f) Statement was

supplemented in i983. See Fed. Highway Admin., U.S.

Dep’t of Transp., Highways Div., State of Hawaii Dep’t

of Transp., Final Second Supplement to the Interstate

Route H-3 Environmental Impact/4(f) Statement (1982),

lodged with this Court on July 7, 1983.

All of the above mentioned 4(f) statements conclude

that there is no feasible and prudent alternative to the

path of H-3. On November 21, 1978, the District Court ruled that

the proximity of H-3 to the park constituted constructive use of

the park. Thereafter, the appellees moved the District Court to

reconsider its ruling. On April 8, 1982, the District Court affirmed

its earlier ruling by again holding that H-3’s impacts on Ho’oma-

luhia Park constituted a constructive use sufficient to bring section

4(f) into play, notwithstanding that the plan for the park and

the plan for H-3 had been designed together. See 538 F.Supp. at

176-77. The appellees did not appeal this ruling.

* Pali Golf Course Park lies approximately 700 feet southwest of

Ho’omaluhia Par's. Nestled at the foot of the Nuuanu Pali Look-

out, the 220-acre, 18-hole course is considered one of Oahu’s most

challenging public courses because of its rolling terrain and the

general layout of its fairways and greens. The course is open year

round and, being the only 18-hole public course in the Windward

region, is very heavily used. The northeast side of the golf course

borders on Kamehameha Highway.

In its proposed configuration, H-3 will occupy almost completely

the area separating Ho’omaluhia Park and Pali Golf Course Park.

Moreover, the Halekou Interchange, which is proposed to connect

H-3 to Kamehameha Highway, will take approximately 3.5 acres

from the northwest end of Pali Golf Course Park. See Fed. High-

way Admin., U.S. Dep’t of Transp., Highways Div., State of

Hawaii Dep’t of Transp., Final Second Supplement to the Inter-

state Route H-3 Environmental Impact/4(f) Statement (1982),

lodged with this Court on July 7, 1983. See also infra notes 7 & 9.

use of Ho’omaluhia Park or to the use of Pali Golf Course

Park.’ The Secretary concurred in that conclusion and the

.-District Court held that the Secretary properly found there

is no feasible and prudent alternative to the use of

Ho’omaluhia Park.’ See 538 F.Supp. at 181, 183. The Dis-

trict Court also held that the Secretary reasonably rejected

certain of the alternatives to the use of Pali Golf Course

Park.’ The appellants challenge the Secretary’s rejection

7™The Final Second Supplement, prepared in response to the

District Court’s order, is not part of the record on appeal ; indeed,

its adequacy has not been reviewed by any federal court. If such

a review is to take place, the proper tribunal to conduct the initial

review would be, of course, the District Court. We note in passing,

however, that the Final Second Supplement, at 29, rejects the

alternatives to the use of Pali Golf Course Park (namely, the

Makai Realignment and the No Build alternative) by reference to

the Ho’omaluhia Park Section 4(f) Statement. We note also in

passing that the Final Second Supplement, at 27-28, concludes that

the Secretary should adopt a new design for the Halekou Inter-

change, one which reduces the amount of golf course land taken

by the interchange from 4.09 to 3.49 acres. See also infra note 9.

8 While the District Court held that the Secretary’s Ho’omaluhia

Park Section 4/f) Determination was invalid and remanded the

4(f) satement, the basis for that decision was that ‘‘the 4(f) state-

ment does not adequately support the finding that all possible

measures have been taken to minimize harm to the park.’’ See 538

F.Supp at 183. The District Court affirmed the Secretary’s con-

clusion that no feasible and prudent alternatives exist to the use

of the park. See id. It is that conclusion which the appellants chal-

lenge and which we must now evaluate.

® The District Court held that the Secretary’s Pali Golf Course

Park Section 4(f) Determination was invalid because ‘‘the record |

does not adequately support the conclusion that all possible

maesures have been taken to minimize harm to the golf course.’’

See 538 F.Supp. at 183. The court also stated that ‘‘the inquiry

does not end with the determination that there are no feasible

co st Soi ae I ina ON rl Vici ot aed

of the alternatives to the use of Pali Golf Course Park and

Ho’omaluhia Park as being unsupported by the record.

They challenge the District Court’s holdings on the same

ground, as well as on the ground that the District Court’s

decision was made upon an erroneous application of Citi-

zens to Preserve Overton Park v. Volpe, 401 U.S. 402,

91 S.Ct. 814, 28 L.Ed.2d 136 (1971). After a thorough,

probing, and in-depth review of the administrative record,

we agree with the appellants’ contentions in respect to the

‘‘Makai Realignment’’ alternative and the ‘‘No Build’’

alternative, and, accordingly, we reverse."

alternatives to the use of the [Pali Golf Course] 4(f) property.’’

Id. at 182. Yet, the District Court remanded the Pali Goif Course

Park Section 4(f) Determination ‘‘for further documentation that

no feasible and prudent alternatives exist to the use of the golf

course lands and all possible measures to minimize harm to the golf

course have been taken.’’ Jd. at 184. In other words, the District

Court apparentiy held the Secretary’s determination invalid be-

cause it violated one prong of the 4(f) test, yet remanded the 4(f)

statement with instructions to remedy violations of both prongs

of the 4(f) test. For the purposes of this appeal, we will assume

that the District Court found that the Secretary had violated both

prongs of the 4(f) test. We, therefore, do not have jurisdiction

over the portion of the controversy that involves the challenges to

the Secretary’s Pali Golf Course Park Section 4(f) Determination.

10 We base our decision today on the Secretary’s rejection of the

Makai Realignment and the No Build alternative qua alternatives

to the use of Ho’omaluhia Park. For reasons discussed supra note

9, the issue of whether the Secretary properly rejected the above

specified alternatives qua alternatives to the use of Pali Golf Course

Park is not properly before this Court at this time. Since the

Makai Realignment and No Build alternative would avoid com-

pletely the use of either Ho’omaluhia Park or Pali Golf Course

Park, however, the following discussion sometimes will be framed

in reference to both parklands.

10a

B. Standard of Review

As to all of the Secretary’s section 4(f) determinations

at issue in this case, the standard of judicial review is

whether the Secretary’s decision was ‘‘arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accord-

ance with law.’’ Administrative Procedure Act, 5 U.S.C.

§ 706(2)(A) (1982) ; Overton Park, 401 U.S. at 416, 91 S.Ct.

at 823. While the Secretary’s decisions are entitled to a

presumption of regularity, that presumption does not

‘‘shield his action[s] from a thorough, probing, in-depth

review.’’ Overton Park, 401 U.S. at 415, 91 S.Ct. at 823.

The reviewing court is required to consider whether:

1. The Secretary acted within the scope of his authority

(not at issue in this case).

2. The Secretary properly construed his authority to

approve the use of parkland as limited to situations where

none of the alternatives to such use are feasible and

prudent.

3. The Secretary could have reasonably believed that in

the case under review there are no feasible and prudent

alternatives.

4. The Secretary’s decision was based on a consideration

of the relevant factors.

5. The Secretary made a clear error of judgment.

6. The Secretary’s action followed the necessary proce-

dural requirements (not at issue in this case). Jd. at 415-17,

91 S.Ct. at 823-24. See also Stop H-3 Association v. Cole-

man, 533 F.2d 434, 445 (9th Cir.) (the court, in reviewing

the Secretary’s decision, ‘‘must satisfy itself that the

Secretary evaluated the highway project with the mandates

of section 4(f) clearly in mind’’), cert. denied, 429 U.S.

999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976).

In its consideration of the Secretary’s determination,

the reviewing court must draw upon Overton Park’s defi-

lla

nition of a ‘‘feasible and prudent alternative’’:" park-

lands may be ‘‘used’’ for highway purposes only if ‘‘there

{are] truly unusual factors present in [the] case,’’ if

‘*feasible alternative routes involve uniquely difficult prob-

lems,’’ or if ‘‘the cost or community disruption resulting

from alternative routes [reach] extraordinary magni-

tudes.’’ 401 U.S. at 413, 416, 91 S.Ct. at 822, 823."

Moreover, the reviewing court should consider the full

administrative record of the agency’s action, id. at 420,

and if the record fails to show a sufficient basis for the

Secretary’s decision, the 4(f) determination must be over-

turned, see id. In addition, the ‘‘reviewing court, in dealing

with a determination or judgment which an administrative

agency alone is authorized to make, must judge the pro-

priety of such action solely by the grounds invoked by the

agency. If those grounds are inadequate or improper, the

court is powerless to affirm the administrative action by

*In Overton Park the Supreme Court stated that the section

4(f) requirement that an alternative be ‘‘feasible’’ means that the

alternative must be able to be built as a matter of sound engi-

neering: ‘‘For this exemption to apply the Secretary must find

that as a matter of sound engineering it would not be feasible to

build the highway along any other route.’’ 401 U.S. at 411, 91

S.Ct. at 821 (footnote omitted). All of the alternatives considered

in the Ho’omaluhia Park and Pali Golf Course Park Section 4(f)

Statements are ‘‘feasible’’ because they all can be built as a matter

of sound engineering. The only issue in dispute is whether the

alternatives that would avoid use of the parklands are prudent.

See infra note 18.

‘2 The Second Circuit has aptly paraphrased the Overton Park

test as follows:

In other words, a road must not take parkland, unless a pru-

dent person, concerned with the quality of the human environ-

ment, is convinced that there is no way to avoid doing so.

Monroe County Conservation Council v. Volpe, 472 F.2d 693, 700

(2d Cir. 1972) (footnote omitted).

12a

substituting what it considers to be a more adequate or

proper basis.’’ Securities & Exchange Commission ».

Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91

L.Ed. 1995 (1947).

In reviewing the District Court’s decision affirming the

Secretary’s action, this Court should apply the same stand-

ards of review used by the District Court. See Southeast

Alaska Conservation Council v. Watson, 697 F.2d 1305,

1312 (9th Cir. 1983). The District Court’s review is ac-

corded no particular deference, because the District Court,

limited to the administrative record, is in no better position

to review the Secretary’s action than is the Court of Ap-

peals. See Arizona Past & Future Foundation v. Lewis,

722 F.2d 1423, 1425-26 (9th Cir.1983); Asarco, Inc. v. En-

vironmental Protection Agency, 616 F.2d 1153, 1161 (9th

Cir.1980). Thus, this Court may review the administrative

record and determine for itself whether the Secretary’s

action was arbitrary, capricious, or an abuse of discretion.

Southeast Alaska Conservation Council, 697 F.2d at 1312.

Bearing in mind the specified legal standards, we now

turn to the appellants’ contentions.

C. Discussion

The appellants contend: (1) that the Ho’omaluhia Park

Section 4(f) Statement, the Ho’omaluhia Park Section 4(f)

Determination,"* and the rest of the administrative record

13 The He’omaluhia Park Section 4(f) Determination is a docu-

ment prepared by the Secretary and included in the Ho’omaluhia

Park Section 4(f) Statement. The opening paragraph of the

Ho’omalukia Park Section 4(f) Determination states:

This statement sets forth the basis for a determination that

there is no feasible and prudent «aiternative to the construc-

tive use of land from Ho’omaluhia Park for a proposed Fed-

eral-aid highway designated as Interstate H-3, and that the

highway proposal includes all possible planning to minimize

13a

fail to provide a basis for the Secretary to conclude that

no feasible and prudent alternative exists to H-3’s use of

Ho’omaluhia Park, and (2) that the District Court erred

in holding that, the Secretary could have reasonably

reached such a conclusion. Two of the rejected alternatives,

the Makai Realignment and the No Build alternative, would

have no impact upon either Ho’omaluhia Park or Pali Golf

Course Park. The appellants argue that these alternatives

have not been shown to be imprudent. We agree.

1. The Makai Realignment

In the Makai Realignment, H-3 would be realigned to

turn northward before reaching Ho’omaluhia Park and

would follow the existing alignment of Likelike Highway

and Kamehameha Highway from the Kaneoke Interchange

to the Halekou Interchange. The H-3 traffic would merge

with the Likelike Highway traffic, and, along Kamehameha

Highway, H-3 would be on a viaduct with at-grade front-

harm resulting from such use. This determination is made

pursuant to 49 U.S.C. 1653(f) and 23 U.S.C. 138.

Ho’omaluhia Park Section 4(f) Determination, at 1.

Its coneluding paragraph states:

Based on the above factors and considerations, it is our

determination that there is no feasible and prudent alterna-

tive to the constructive use of land from Ho’omaluhia Park

and that all planning to minimize harm resulting from such

use has been accomplished.

Id. at 5 (emphasis supplied).

Therefore, while the Secretary may have considered the entire

administrative record in reaching his decision that no feasible and

prudent alternatives exist to H-3’s use of Ho’omaluhia Park, the

actual basis for his decision is set forth in the Ho’omaluhia Park

Section 4(f) Determination. Cf. Securities & Exchange Comm’n

v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed

1995 (1947) (reviewing court is limited to judging the justifica-

tory grounds invoked by the agency).

l4a

age roads underneath to permit cross-corridor movement

for local ssidents.

As above noted, this alternative would avoid all use of

both Ho’omaluhia Park and Pali Golf Course Park. The

Secretary nonetheless rejected this alternative because:

[I]t would require the dislocation of one church, four

businesses and 31 residences adjacent to Likelike and

Kamehameha Highways; increase noise, air quality

and visual impacts to residences in the general vicin-

ity; require additional costs due to the need for the

viaduct structure ($42 million additional) ; and require

construction to lesser design geometric standards.

Ho’omaluhia Park Section 4(f) Determination, at 3.

The appellants argue that the above listed reasons do not

represent the ‘‘unique problems,’’ the ‘‘truly unusual fac-

tors,’’ or the ‘‘cost or community disruption [reaching]

extraordinary magnitudes’’ required by Overton Park. In-

deed, the District Court specifically found that the displace-

ments resulting from the Makai Realignment were not, by

themselves, sufficient to justify use of the parkland. See

538 F.Supp. at 180. Nevertheless, the District Court found

that the Secretary could reasonably have believed that the

sum of the listed factors rendered the alternative impru-

dent. See id. The court based its finding on the proposition

that ‘‘Overton Park does not bar considering whether all

of the difficulties posed by an alternative route, taken to-

gether, render that alternative imprudent.’’ Zd."* The only

‘* The appellants assert that the ‘‘totality of the cireumstances’’

anproach applied by the District Court is an erroneous application

of the law in that it violates the Overton Park prohibition against

a ‘‘wide ranging balancing of competing interests.’’ See Overton

Park, 401 U.S. at 411-13, 91 S.Ct. at 821-22. Since we find that

the reasons advanced in the Ho’omaluhia Park Section 4(f) Deter-

mination even when amalgamated, do not satisfy the Overton Park

15a

‘‘factor’’ the District Court discussed was ‘‘construction

to lesser geometric standards.’’ See id. After a painstaking

and thorough review of the record, we conclude that we

cannot affirm the District Court’s decision because the

reasons for finding the Makai Realignment imprudent ad-

vanced by the Secretary in his 4(f) determination do not

satisfy the stringent Overton Park standards that we must

apply.

The first three reasons need not long detain us, for these

are displacements that one would normally expect might

happen in following Overton Park. The dislocation of one

church, four businesses and thirty-one residences no doubt

is a community disruption of some magnitude. We do not

believe, however, that this disruption is of the ‘‘extraordi-

nary’’ magnitude required by Overton Park.** In Overton

Park the Supreme Court stated:

[S]ince people do not live or work in parks, if a high-

way is built on parkland no one will have to leave his

home or give up his business. Such factors are com-

mon to substantially all highway construction. Thus,

if Congress intended these factors to be on an equal

footing with preservation of parkland, there would

have been no need for the statutes. ... But the very

existence of the statutes indicates that protection of

parkland was to be given paramount importance.

Overton Park, 401 U.S. at 412-13, 91 S.Ct. at 821-22 (foot-

note omitted). We find that the Secretary could not have

reasonably concluded that the community displacements

standards, we need not reach the issue of the ‘‘totality’’ approach.

We express no opinion as to the propriety of such an approach.

**The District Court apparently conceded that the community

displacements resulting from the Makai Realignment are not, by

themselves, sufficient to render that alternative imprudent under

Overton Park. See 538 F.Supp. at 180.

16a

resulting from the Makai Realignment rose to the level

required by Overton Park.

Likewise, the increased cost of $42 million (1978 dollars)

is not a cost of extraordinary magnitude, especially in light

of the projected total cost of H-3—$386 million (1979 dol-

lars), see NHV-SEIS, vol. I, at 37. This is not to say that

$42 million is not a considerable sum of money; however,

when the taking of parkland is involved, ‘‘cost is a sub-

sidiary factor in all but the most exceptional cases.’’ Coali-

tion for Responsible Regional Development v. Brinegar,

518 F.2d 522, 526 (4th Cir. 1975). We hold that the Secre-

tary could not have reasonably concluded that the increased

cost of the Makai Realignment was of the ‘‘extraordinary

magnitude’’ required by Overton Park.**

As to the third reason—increased noise, air quality

and visual impacts to residences in the general vicinity—

there is nothing in the record to show that this factor

represents a disruption of extraordinary magnitude. Over-

ton Park amply made clear that only in the most excep-

tional cases may parkland be taken solely to prevent high-

ways from adversely affecting areas that are already de-

veloped. See Overton Park, 401 U.S. at 412-13, 91 S.Ct. at

821-22. We are not convinced that the Secretary could have

reasonably concluded that this is one of those exceptional

cases.

This brings us to the fourth and final reason—the only

reason that we find even somewhat troubling—‘‘lesser de-

sign geometric standards.’’ ‘‘Lesser design geometric

standards’’ has been translated in the context of this case

to mean ‘‘safety considerations.’’ See 538 F.Supp. at 180.

At the outset, we note that there appears to be a dearth

of case law that specifically addresses safety issues as they

In its analysis of the prudence of the Makai Realignment the

District Court made no mention of the increased cost of the

alternative.

17a

relate to the taking of 4(f) land.” Nonetheless, in Overton

Park the Supreme Court emphatically stated:

(The defendants] contend that the Secretary should

weigh the detriment resulting from the destruction of

parkland against the cost of other routes, safety con-

siderations, and other factors, and determine on the

basis of the importance that he attaches to these other

factors whether, on balance, alternative feasible routes

would be ‘‘prudent.’’.. .

([N]o such wide-ranging endeavor was intended... .

[I]f Congress intended these factors to be on an equal

footing with preservation of parkland there would

have been no need for the [4(f)] statutes .... [T]he

very existence of the statutes indicates that protection

of parkland was to be given paramount importance.

* Moreover, there is some question as to where ‘‘safety’’ fits

into the Overton Park requirements; that is, is ‘‘safety’’ properly

placed in the feasibility or the prudential requirement? Safety

might well be considered a matter of ‘‘sound engineering’’ and,

therefore, included in the feasibility requirement. See supra note

11. On the other hand, safety could just as well be considered a

matter of prudence. But, as one commentator points out:

‘Feasible’ smacks of technical considerations, ‘prudent’ of the

entire range of concerns relevant to wisdom. Since both words

appear it is not necessary to refine ‘feasible’ beyond the gen-

eral concept of capability of being built, or of being made

to work, with available technology. [citing Overton Park]

Nuances as to other factors which might tend to make an

engineering project inadvisable, . . . need not be addressed as

questions of feasibility, since they can be considered under

the requirement of prudence.

Gray, Section 4(f) of the Department of Transportation Act, 32

Md.L.Rev. 327, 367-70 (1973). We prefer to adopt this approach,

and, accordingly, we will consider safety’ under the requirement

of prudence.

18a

Overton Park, 401 U.S. at 411-13, 91 S.Ct. at 821-22 (foot-

note omitted) (emphasis supplied).

It seems obvious to us that safety considerations, since

they so directly involve human life, warrant extremely

close scrutiny when determining whether such considera-

tions satisfy the Overton Park standards. Neither a court

nor an agency should weigh lightly the potential risk to

human life an alternative might pose. On the other hand,

undue deference tc a prior pronouncement that an alterna-

tive is undesirable because of safety considerations would

transform such a pronouncement into a ‘‘talisman.’’ For

these reasons, there is a need for an especially ‘‘thorough,

probing, and in-depth review’’ when safety issues are pre-

sented for review. In the case at hand, we have conducted

just this sort of review, and we find that the record before

the Secretary could not have provided a sufficient basis for

him to conclude reasonably that the safety considerations

of the Makai Realignment were ‘‘truly unusual factors,’’

that they reflected ‘‘unique problems,’’ or that they repre-

sented cost or community disruption reaching ‘‘extraordi-

nary magnitudes.’’

The Ho’omaluhia Park Section 4(f) Statement, upon

which the Secretary relied, see 538 F.Supp. at 178-79, men-

tions ‘‘safety considerations’’ a scant three times:

CONS:

(e) Traffic movements will be complex due to the

high volume of H-3 traffic te be funneled into Likelike

Highway and the short distance between the Kaneohe

Interchange, Kaheliki Interchange, and Kamehameha

Highway.

(f) Undesirable curves for H-3/Likelike Highway

movements. Design speeds on the through route will

19a

have to be reduced from 55 MPH to 30 MPH to nego-

tiate the ramp curves safely and comfortably.

(j) ... The loop ramp configuration at Kaneohe In-

terchange is required, because of grade differences,

and is unusual for a through highway connection. The

confusing configuration, coupled with the high volume

of merging and weaving traffic from H-3 plus Likelike

Highway (3,300 v.p.h. on H-3 plus 3,300 v.p.h. on Like-

like) is undesirable because of safety considerations.

Ho’omaluhia Park Section 4(f) Statement, at 20-21.

Two points should be noted regarding the traffic density

figures cited in the Ho’omaluhia Park Section 4(f) State-

ment. First, the capacity of the Likelike Highway is 3650

vph (vehicles per hour) and the capacity of H-3 is pro-

jected to be 3900 vph. See NHV-SEIS, vol. ITI, app. B, at

29-30. Therefore, even at peak rush hour, the two highways

will be operating at less than capacity. See id. at 31. Second,

the 3300 vph figure was based on an outdated population

projection for the Windward side of 150,000; the most re-

cent official population projections forecast a Windward

side population of between 125,700 and 138,500. See 538

F.Supp. at 166.

The District Court, in finding that the Secretary prop-

erly rejected the Makai Realignment as imprudent, ex-

pressly relied upon the ‘‘safety considerations’’ of this

alternative: ‘‘In particular, the Makai Realignment would

necessitate reducing design speeds on the through route

from 55 MPH to 30 MPH and require an nnusually com-

plex and unsafe ramp configuration.’’ Jd. at 180.

A close examination of the record, however, reveals that

the above mentioned speed reduction would be necessary

only at one interchange, and then only to negotiate the

20a

‘‘exit’’ ramp safely—a total distance of less than one mile.

See, e.g., NHV-SEIS, vol. I, at fig. III-9. In other words,

the ramp configuration is not per se unsafe as suggested

by the District Court—the traffic on H-3 merely would have

to slow down to use the “‘exit’’ ramp.* The conclusion

that the ramp configuration or the rest of the Makai Re-

alignment for that matter, is not per se unsafe is further

supported by the fact that there is nothing in the record

to indicate that the Makai Realignment in any way fails

to meet the minimum criteria for safety standards set

forth by the Federal Highway Administration at 23 C.F.R.

§ 625.3(a)(3) (1979) (Am. Ass’n of State Highway &

Transp. Officials, Geometric Design Standards for the Na-

tional System of Interstate and Defense Highways (1967) ).

In addition, the Likelike Highway, a little over one mile

from its proposed interchange with H-3, contains a curve

** At trial the District Court heard testiraony from an engineer

who had assisted in the preparation of the Ho’omaluhia Park Sec-

tion 4(f) Statement that the Makai Realignment’s intersection

between H-3 and the Likelike Highway presented a ‘‘very unsafe

situation.’’ He offered no explanation as to why that conclusion

was not included in the final Ho’omaluhia Park Section 4(f)

Statement. Moreover, the testimony was not before the Secretary

when he made his decision. As the Supreme Court has stated, ‘‘In

applying [the arbitrary, capricious, or an abuse of discretion]

standard, the focal point for judicial review should be the admin-

istrative record already in existence, not some new record made

initially in the reviewing court.’’ Camp v. Pitts, 411 U.S. 138.

142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam).

The District Court also had before it a litigation affidavit from

a traffic engineer for the State of Hawaii that attested that the

curved exit ramp on H-3 was ‘‘unsafe.’’ Once again, this affidavit

was not before the Secretary when he made his decision. And, the

Supreme Court has characterized such affidavits as ‘‘merely ‘post

hoc’ rationalizations, . . . which have traditionally been found to

be an inadequate basis for review.’’ Overton Park, 401 U.S. at

419, 91 S.Ct. at 825 (citations omitted).

21a

of 40 mph design speed. See Fed.Highway Admin., U.S.

Dep’t of Transp., Region 9 Staff Analysis: Interstate H-3

and existing Trans-Koolau Highway Alternatives 13 (1979)

{hereinafter referred to as ‘‘Region 9 Staff Anailysis’’).

The current analyses do not investigate adequately the ex-

tent to which this may reduce the difference in speeds be-

tween the merging traffic from H-3 and the traffic on the

Likelike Highway.

Moreover, the Pali Highway contains ‘‘substandard

curves’’ on its Windward portion. See id. at 11. This, when

considered together with the existence of a 40 mph design

speed curve on the Windward portion of the Likelike High-

way, indicates to us that, in the absence of further evidence

suggesting a contrary conclusion, the existence of a ramp

on H-3 with a curve of 30 mph design speed does not rep-

resent an ‘‘unusual situation’’ or a community disruption

of ‘‘extraordinary magnitude.’’ In other words, since trans-

Koolau commuters currently are faced with travelling on

highways that contain curves similar to, if not worse than,

the curved ramp on H-3, we do not see that the H-3 curve

will extraordinarily disrupt the community or will present

an unusual situation such that the taking of 4(f) parklands

is warranted.

The record, then, paints the following picture. Emptying

H-3’s traffic onto a curved off-ramp, decreasing the speed

of that traffic from 55 mph to 30 mph, and merging that

traffic with the traffic on the Likelike Highway probably

raises more safety concerns than the less circuitous route

of H-3’s recommended alignment. The Makai Realignment,

like other highways commonly in use at present, probably

presents a safety risk of some magnitude. The question is,

however, whether this situation presents a safety risk of

the magnitude required by Overton Park. The problem is

that the record does not illustrate what magnitude of risk

22a

this alternative in fact poses ** and, consequently, does not

support adequately the Secretary’s conclusion that the al-

ternative is imprudent because of safety considerations.”

In other words, the record in this case does not provide a

sufficient basis for the Secretary to have reasonably con-

cluded that the safety considerations of the Makai Realign-

ment were of such a magnitude as to overcome the para-

mount importance given to the protection of parkland. See

Overton Park, 401 U.S. at 412-413, 91 S.Ct. at 821-22. More-

over, we note that the District Court did not rely on safety

reasons, per se, °s the basis for upholding the Secretary’s

rejection of the Makai Realignment. Rather, it found it

necessary to cumulate safety concerns with other unre-

lated factors in order to do so. Thus, even accepting the

District Court’s view of the record, the safety concerns

would be insufficient to warrant affirmance of the Secre-

tary’s findings.

® There is nothing in the record to indicate that a detailed safety

analysis of the Makai Realignment c«nnot be conducted relatively

easily. In fact, the record supports a contrary conclusion. For

example, the Region 9 Staff Analysis, at 14, contains an analysis

of the safety considerations of each of the 16 alternatives (2(T)H-3

alternatives, 2 H-3 alternatives, and 12 No Build alternatives),

couched in terms of ‘‘accidents and severity.’’

7° Brooks v. Coleman, 518 F.2d 17 (9th Cir. 1975) (per curiam)

cited by appellees, is readily distinguishable and does not alter our

conclusion. In that case, we affirmed the District Court’s finding

that the Secretary reasonably concluded that no feasible and pru-

dent alternative existed to the planned use of 4(f) parkland. 7d.

at 19-20. We based our decision, in part, upon safety conditions

because the record reflected that the ‘‘unusual safety problems’’

posed by the alternative in question represented a ‘‘truly unusual

factor’’ or a ‘‘unique problem.’’ Jd. By contrast, in the case at

hand, the record as it stands simply does not reflect that the safety

problems posed by the Makai Realignment are ‘‘unusual’’ or

**unique.”’

23a

In conclusion, we have examined against the record the

four reasons advanced by the Secretary, and wet find that

the specified reasons, even when amalgamated, are insuf-

ficient to support a determination that the Makai Realign-

ment is imprudent. Therefore, because the Secretary could

not have reasonably believed that no feasible and prudent

alternative exists to the use of the Ho’omaluhia Park, his

approval of H-3 was an abuse of discretion. See id. at 415-

17, 91 S.Ct. at 823-24. Accordingly, we must reverse the

District Court’s judgment affirming the Secreatry’s action

and remand to the District Court for that court to remand

to the Secretary for a more comprehensive 4(f) deter-

mination considering sufficiently the Makai Realignment.

We stress that we do not find, nor is it this Court’s role

to find, that the Makai Realignment is im fact a feasible

and prudent alternative. We obviously do not possess the

technical expertise of roadbuilders, and we should not in-

terfere in tae technical processes of building roads. At the

same time, however, it remains our solemn responsibility

to insure that those with technical expertise exercise it in

accordance with the laws of the United States and the

public welfare. See Citizens to Preserve Overton Park v.

Volpe, 432 F.2d 1307 at 1318 (6th Cir.1970) (Celebrezze,

J., dissenting). The record before us simply does not dem-

onstrate that the stringent requirements of section 4(f),

as defined in Overton Park and its progeny, have been

satisfied. Until those requirements are satisfied, we cannot

allow our Nation’s sacred parklands to be taken or used.

2. No Build Alternative

The No Build alternative entails not constructing the

portion of H-3 that runs between the Halekou Interchange

and the Halawa Interchange. See 538 F.Supp. at 180;

Ho’omaluhia Park Section 4(f) Determination, at 4.

24a

The record discloses that the Secretary based his rejec-

tion of the No Build alternative on four reasons:

1. The alternative would require that thirty-one addi-

tional buses be purchased to meet year 2000 trans-Koolau

travel demand at a total purchase cost of $3.3 million

(1977 dollars) and annual operating costs, defrayed by

fares, of $1.19 million (1977 dollars). See Ho’omaluhia

Park Section 4(f) Determination, at 4; Ho’omaluhia Park

Section 4(f) Statement, at 24.

2. The alternative would result in traffic congestion and

increased delays experienced by Windward commuters.

Ho’omaluhia Park Section 4(f) Determination, at 4.

3. The alternative would result in increased safety haz-

ards on Likelike and Pali Highways which would directly

affect Kalihi Valley and Nuuanu Valley residents. Id.

4. The costs of providing increased bus service which

will not effectively reduce the congestion on the existing

highways are documented in the supplement to the Inter-

state H-3 EIS. Id.

We hold that these four reasons, when viewed against

the record, do not establish that the Secretary could rea-

sonably conclude that the No Buiid alternative must be

rejected as imprudent.

*1 The District Court disposed of the No Build alternative in

the following manner : ‘*(The] defendants ‘have sufficiently estab-

lished the need for the highway. Rejection of the no-build alterna-

tive was thus reasonable.’’ 538 F.Supp. at 180.

The mere fact that a ‘‘need’’ for a highway has been ‘‘estab-

lished’’ does not prove that not to build the highway would be

‘‘imprudent’’ under Overton Park. To the contrary, it must be

shown that the implications of not building the highway pose an

“‘unusual situation,’’ are ‘‘truly unusual factors,’’ or represent

cost or community disruption reaching ‘‘extraordinary magni-

tudes.’’ See Overton Park, 401 U.S. at 411-13, 91 S.Ct. at 821-22.

25a

First, we can discern no basis in the record for the

Secretary to conclude reasonably that the purchase and

operation of thirty-one additional buses would cause

‘unique problems”’ or that the cost would be of ‘‘extraordi-

nary magnitude.’’ Moreover, under 23 U.S.C. § 103(e) (4)

(1982), the cost could be met by transferring funds already

allocated for H-3 construction to purchase and operate the

buses. The record, however, lacks an adequate analysis of

the effect the transferability of such funds has on the

prudence of the No Build alternative. Cf. Benton Franklin

Riverfront Trailway & Bridge Committee v. Lewis, 701

F.2d 784, 790-91 (9th Cir.1983) (section 4(f) determination

that no feasible and prudent alternatives exist held invalid

because there was no consideration of the ‘‘potential of

federal funds’’).

Second, we are not wholly convinced that the record

clearly demonstrates that the increased congestion or com-

muter delays projected for the year 2000 would be so un-

usual or extraordinary that the No Build alternative must

be rendered imprudent. The Pali Highway currently is

operating during peak hour at 3000 vph, with the Likelike

operating during peak hour at 3100 vph. NHV-SEIS, vol.

III, app. B, at 30. There is, therefore, a current unused

peak hour capacity of 1200 vph available to meet future

demand. See id. Indeed, the NHV-SEIS reveals that, if

H-3 is not built, the projected year 2000 peak hour demand

(7300 vph) can be met by the presen! combined capacity

of the Pali Highway (3650 vph) and the Likelike Highway

(3650 vph).” See id. at 29-31.

221t is also worth noting that the NHV-SEIS reveals that if

H-3 is not built, the average car occupancy rate for the year 2000

trans-Koolau commuter will increase from 1.7 person per car to

2.0 person per car. NHV-SEIS, vol. III, app. B, at 31. See gen-

erally City and County of Honolulu, 1977 General Plan 39-40 (a

goal of local planning is to encourage the development and use of

public transportation by ‘‘discourag[ing] the inefficient use of the

automobile’’).

26a

In addition, the population projections for Windward

Oahu originally used for H-3 planning were revised down-

ward in 1978 as part of the changes in the Oahu General

Plan that redirected growth from Windward Oahu to the

central plain of Leeward Oahu. See 538 F.Supp. at 166-67.

These revisions were made before the Ho’omaluhia Park

Section 4(f) Statement was prepared. Rather than analyze

the projected congestion and commuter delays in light of

the revised population projections, however, the Secretary

and the FHWA chose to ignore the revised projections and

to continue to use the pre-1978 figures. See id. Even the

District Court noted that ‘‘[i]t would have been wiser...

to have considered whether [H-3] would still be viable if

[the new] population goals are met.’’ Jd. at 167.

The question the Secretary failed to address, then, is

whether the current unused capacity of trans-Koolau high-

ways combined with the lower growth projections for

Windward Oahv will prevent year 2000 congestion and

commuter delays from becoming ‘‘truly unusual factors,’’

from becoming ‘‘most unusual situations,’’ or from dis-

rupting the community to an ‘‘extraordinary’’ degree. In

our view, this is a question that must be answered before

determining that the No Build alternative is imprudent.

Moreover, the Region 9 Staff Analysis states that the

rush hour capacity of the Pali and Likelike Highways could

be increased by fifty percent simply by banning trucks

during rush hour. Region 9 Staff Analysis, at 45. This in-

formation does not appear to have been included in any

analysis of current or future congestion.”

73 It should be noted, however, that one of the terms upon which

the Secretary’s concurrence in the H-3 EIS was conditioned was

‘‘further study of . . . peak hour prohibition of trucks on the

Likelike and Pali Highways.’’ Office of the Secretary, U.S. Dep’t

of Transp., Concurrence Memorandum 2 (Nov. 21, 1980) ; see 538

F.Supp. at 170. The Secretary, then, was aware of the reduction

in congestion that a truck prohibition might produce. Yet, the Sec-

27a

Finally, our review of the Region 9 Staff Analysis re-

veals that of the sixteen alternatives studied therein, two

non-H-3 (no build) alternatives have nearly identical pro-

jected operational characteristics as H-3: (1) the same

peak hour volume to capacity ratio, (2) the same projected

congestion, and (3) similar projected ‘‘accidents & sever-

ity.’’ Id. at 14. We note also that these two non-H-3 alter-

natives offer the following advantages over H-3: (1) they

have environmental impact ratings that are over three

times as favorable as H-3’s, (2) they increase the use of

mass transit,** and (3) they cost only one-thirtieth of the

cost of H-3. Jd. There is no analysis in the record as to

why these two alternatives should be rejected—or why they

are any less prudent than H-3 in terms of congestion. In

conclusion, we are not convinced that the No Build alter-

native must be rejected as imprudent because of traffic

congestion and increased commuter delays.

Third, except for the following excerpt, the ‘‘increased

safety hazards’’ are not substantiated or discussed in the

record: ‘‘[The increased traffic on the Likelike and Pali

Highways] is resulting in increased congestion and safety

hazards on Likelike and Pali Highways which will have a

direct effect on the residents of the valleys through which

these two facilities traverse.’’ Ho’omaluhia Park Section

4(f) Statement, at 24. This bald statement does not seem

to us to provide sufficient support for the Secretary’s con-

vetary apparently did not include this pertinent information in

his analysis ef the No Build alternative, preferring, instead, to

make his decision without the benefit of ‘‘further study of .. .

peak hour prohibition of trucks on the Likelike and Pali High-

ways.’’ It is our view ‘hat the truck prohibition should have been

studied before the Secretary rejected the No Build alternative as

imprudent.

2 One of the goals of the Oahu General Plan is to encourage the

development and use of public transportation on the island of

Oahu. Sez City and County of Honolulu, 1977 General Plan 39-40.

28a

clusion that the No Build alternative is imprudent because

of safety considerations. On the other hand, the Region 9

Staff Analysis indicates that all of the various permuta-

tions of the No Build alternative pose more safety hazards

than H-3 poses. The problem is that the Region 9 Staff

Analysis does not specifically mention the Nuuanu and

Kalihi Valleys in this respect; in addition, for the majority

of the No Build permutations, the increase in safety haz-

ards is slight—up one rating from ‘‘minor’’ to ‘‘moderate’’

‘‘accidents & severity.’’ Region 9 Staff Analysis, at 14.

And, if the revised population figures are used, projected

congestion will likely be decreased with a concomitant de-

crease in projected safety hazards. We are not convinced

that the present record sufficiently supports a conclusion

that the No Build alternative is imprudent because of the

‘*increased safety hazards to residents of the Nuuanu and

Kalihi Valleys.’’ .

Fourth, we are uncertain as to the significance, if any,

of the Secretary’s fourth ‘‘reason’’—that ‘‘[t]he costs of

providing increased bus service which will not effectively

reduce the congestion on the existing highways have been

documented in the supplement of the Interstate H-3 EIS.”’

The costs of the increased bus service indeed are docu-

mented in the supplemental EIS. As above discussed, how-

ever, the relatively modest cost of the increased bus service

does not provide a sufficient basis for the Secretary to

conclude that the No Build alternative is imprudent. As

to the failure to reduce congestion, we note that at least

four of the rejected No Build alternative’s permutations

(including the alternative of banning trucks at peak rush

hour) are projected to have identical levels of congestion

as that of H-3. Id. The inference is that if the No Build

alternative should be held imprudent because of its failure

to reduce congestion, so should H-3 for the same reason.”

*° The proposition that H-3 will not, in and of itself, greatly

reduce congestion is borne out by other portions of the record.

25 RE SRRERET PERRI ere RCRA Re RY ats NE Mvp

29a

Moreover, the inference from the record is that year 2000

traffic demand can be met by increased bus service alone.

See Ho’omaluhia Park Section 4(f) Statement, at 23-24;

NHV-SEIS, vol. I, at 272. And, again, if the lower revised

population figures and the banning of trucks are con-

sidered, the effectiveness of increased bus service in reduc-

ing congestion likely would be enhanced.

In conclusion, then, it is our view that the present record

does not support a determination that the No Build alter-

native must be rejected as imprudent. We emphasize that,

as with the Makai Realignment, we do not hold that the

No Build alternative is, in fact, reasonable and prudent.

We merely hold that the record before us does not demon-

strate that the stringent requirements of section 4(f) have

been satisfied. Therefore, we reverse the District Court’s

judgment affirming the Secretary’s action and remand to

the District Court for that court to remand to the Secre-

tary for a more comprehensive 4(f) determination con-

sidering sufficiently both the Makai Realignment and the

No Build alternative.

Il. THE ENDANGERED SPECIES ACT

A. Factual Background and Procedural History

The appellants also challenge the appellees’ compliance

with the ESA.

The Region 9 Staff Analysis indicates that only 27% of the daily

trans-Koolau trips are Ewa- or Central Oahu-bound—the remainder

are Honolulu- (70%) and Hawaii Kai- (3%) bound. Region 9

Staff Analysis, at 10. H-3 purportedly is being constructed pri-

marily to service the Ewa-Windward community corridor. It is

obvious that, if H-3 is built, virtually no Honolulu- or Hawaii

Kai-bound trans-Koolau commuter will travel on H-3 to Aiea

(where H-3 terminates) and then fight the Pearl City-Aiea traffic

back to Honolulu. In other words, H-3 does not seem to have the

potential to reduce greatly the congestion on the Likelike and Pali

Highways.

30a

On March 9, 1978, the Federal Highway Administration

(FHWA), pursuant to the ESA, initiated formal consulta-

tion with the United States Fish and Wildlife Service

(USFWS) with regard to the potential impact of the H-3

project on the Oahu Creeper.* The Oahu Creeper is an

extremely rare species of bird; is was officially listed as

endangered on October 13, 1970. See 50 C.F.R. § 17.11

(1980). As part of the consultation process, FWHA au-

thorized several avifaunal surveys to produce current in-

formation on the Creeper. The surveys were conducted by

Dr. Robert Shallenberger and confirmed the presence of

Creepers in the North Halawa Valley.

Based on these surveys, USFWS issued its biological

opinion, dated September 11, 1978. The opinion discusses

Dr. Shallenberger’s surveys and concludes with the fol-

lowing statement:

In essence, we have very little data for providing an

opinion, but feel it would be unreasonable to request

{an additional] study which would be unlikely to pro-

vide definitive results. We must, therefore, assume the

Oahu Creeper would be like most species in that a high-

way would not split a population.

Based on the available information, which we grant is

weak, it is our opinion the proposed project is not

likely to jeopardize the continued existence of the Oahu

Creeper. °

Also, in a biological opinion on the Achatinella, dated

October 7, 1981, USFWS states that FHWA need not re-

initiate consultation on the Creeper.

In district court, the appellants challenged the adequacy

of the biological opinion and charged that FHWA must

*¢ The consultation process under the ESA is governed by 50

C.F.R. § 402.2 (1980). The appellants have not alleged that the

appellees violated the procedural requirements of this regulation.

3la

reinitiate consultation with USFWS. In its Order Denying

Plaintiffs’ Motion for Partial Summary Judgment as to

the Twenty-Sixth Cause of Action, the District Court ruled

that the facts showed: (1) USFWS could reasonably con-

elude that the H-3 project is not likely to jeopardize the

continued existence of the Creeper, and (2) based on 50

C.F.R. § 402.04 (1980),?7 no further consultation was re-

quired. In addition, the District Court limited the scope

of review at trial to the issue of: ‘‘Whether or not the

USFWS has requested that [appellees] reinitiate formal

consultation regarding the Oahu Creeper ... .’’

At trial Dr. Shallenberger testified to the presence of

the Oahu Creeper in North Halawa Valley, to the signifi-

cance of the valley to the survival of the species, and that

the H-3 freeway ‘‘is likely’’ to jeopardize the Creeper’s

continued existence. The appellants attempted to use Dr.

Shallenberger’s testimony to show that FHWA’s decision

to grant location and design approval for H-3 was arbi-

trary and capricious in light of H-3’s potential impact

on the Creeper. The appellees moved to strike the testi-

mony of Dr. Shallenberger on the ground that USFWS

had informed the appellees that further consultation on

the Creeper was not required. The court granted the mo-

tion and, ultimately, ruled that FHWA had complied with

the ESA.

The appellants allege that it was improper for the Dis-

trict Court to strike Dr. Shallenberger’s testimony, since

it precluded inquiry into FHWA’s substantive decision

to grant location and design approval for H-3. They argue

that, by limiting the scope of review to the procedural

issue of consultation with USFWS, the District Court

27 Under 50 C.F.R. § 402.04(e) (1980), once the USFWS issues

its biological opinion, no further consultation by FHWA is re-

quired, unless the USFWS requests that FHWA reinitiate further

consultation under id. § 402.04(f) or unless the requirements of 1d.

§ 402.04(h) are satisfied.

32a

failed to examine FHWA’s decision under the proper legal

standard. Thus, the appellants urge this Court to conclude

that FHWA’s grant of location and design approval was

arbitrary, capricious, an abuse of discretion, and not in

accordance with the Endangered Species Act on the ground

that FHWA failed to make a rational determination, based

on the best available scientific data, that H-3 is or is not

likely to jeopardize the existence of the Creeper.

The appellees respond that the District Court properly

struck Dr. Shallenberger’s testimony because the testi-

mony did not offer any information that had not already

been considered by the USFWS before issuing the bio-

logical opinion. The appellees argue that the administra-

tive record, on its face, provides adequate support for the

conclusions reached in the biological opinion, and, there-

fore, there was no reason to go beyond the administrative

record to consider Dr. Shallenberger’s testimony. Finally,

the appellees contend that they have complied with the

requirements of the ESA, that they properly deferred to

the USF WS’s biological opinion, and that, therefore, their

decision to grant location and design approval for H-3

was not arbitrary and capricious.

B. Standard of Review

Under the ESA, FHWA has a duty to ‘‘insure’’ that its

action ‘‘is not likely to jeopardize’’* the continued exist-

ence of the Creeper. See 16 U.S.C. § 1536(a)(2) (1982).

To this end, FHWA is required to consult with an expert

agency (here, the USFWS). See 50 C.F.R. § 402.01 (1980).

Using the ‘‘best scientific and commercial data available,’’

** A project will ‘‘jeopardize’’ an endangered species if it ‘‘rea-

sonably would be expected to reduce the reproduction, numbers, or

distribution of a listed species to such an extent as to appreciably

reduce the likelihood of the survival and recovery of that species

in the wild.’’ 50 C.F.R. § 402.02 (1980).

33a

the expert agency is required to :ssue a biological opinion

to FHWA. See 16 U.S.C. § 1536(a) (2).

Here, since FHWA has complied with the consultation

requirements, the question is whether FHWA’s decision

to rely on USFW’s biological opinion in granting loca-

tion and design approval for H-3 was valid. FHWA’s deci-

sion is subject to review under the ‘‘arbitrary and ca-

pricious’’ standard of the Administrative Procedure Act,

5 U.S.C. § 706(2)(A) (1982). See Village of False Pass v.

Clark, 733 F.2d 605, 609-10 (9th Cir.1984). Thus, the issue

for review is whether the decision was based on a con-

sideration of the relevant factors and whether there has

been a clear error of judgment. See Overton Park, 40'

U.S. at 416, 91 S.Ct. at 823.

C. Discussion

In the case at hand, the District Court did not review

FHWA’s decision under the ‘‘arbitrary and capricious’’

standard. Rather, the District Court limited its review to

the substantive issue of the adequacy of USFWS’s bio-

logical opinion and the procedural issue of consultation

with USFWS; the court did not examine FHWA’s deci-

sion to rely on the biological opinion. The court limited its

review in this manner apparently because the appellants’

complaint, in respect to this cause of action, was couched

in language that challenged USFWS’s substantive com-

pliance with the ESA and language that challenged FH-

WA’s procedural compliance with the ESA. Appellants

made clear at trial, however, that the gravamen of the

cause of action was a challenge to FHWA’s sabstantive

compliance with the ESA—a challenge that the District

Court should have evaluated under the ‘‘arbitrary and

eapricious’’ standard. Thus, it appears the District Court

erred by not applying the proper legal standard.

34a

Remand is not required on this issue, however, because

we are able to determine from the record that as 2 matter

of law FHWA’s decision to rely on USFWS’s biological

opinion was not ‘‘arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law.’’ See

Southeast Alaska Conservation Council, 697 F.2d at 1212

(‘‘(T]he appellate court may review the administrative

record and determine for itself whether the [agency’s ac-

tion] was arbitrary, capricious, or an abuse of discre-

tion.’’); cf. Asarco, Inc. ». Environmental Protection

Agency, 616 F.2d at 1161 (‘‘ District court review of agency

action is generally accorde? no particular deference, be-

cause the district court, limited to the administrative rec-

ord, is in no better position to review the agency than the

Court of Appeals.’’). It is clear that FHWA complied

with all initial consultation obligations and relied on an

opinion issued by an expert agency. On its face, this does

not seem to be a ‘‘clear error of judgment.’’ Furthermore,

while the information used to form the opinion admittedly

was weak, the expert agency determined on two separate

occasions that no further inquiry was necessary.

The appellants are correct when they ague that FHWA

cannot abrogate its responsibility to decide whether it has

taken all possible action to insure that H-3 is not likely

to jeopardize the continued existence of the Creeper. See

National Wildlife Federation v. Coleman, 529 F.2d 359,

371 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489,

50 L.Ed.2d 587 (1976). But, no improper abrogation of

responsibility occurred here. Dr. Shallenberger’s testimony

may challenge the conclusions contained in the biological

opinion, but that testimony offered no information that

had not already been evaluated by the expert agency. Cf.

50 C.F.R. § 402.04(h)(1) (1980) (reinitiation of consulta-

tiou required when new information comes to light). In

these circumstances, it was not unreasonable for FHWA

to rely on the expert agency’s opinion in deciding not to

make a separate opinion regarding the Creeper. Thus,

35a

FHW4A’s ultimate conclusion that, based on the best avail-

able scientific data, H-3 is not likely to jeopardize the

existence of the Creeper clearly was grounded on ‘‘a con-

sideration of the relevant factors’’ and, not being unrea-

sonable as a matter of law, was not a ‘‘clear error of

judgment.’’ We hold, therefore, that the appeliees have

complied with the mandate of the ESA.

II. NATIONAL ENVIRONMENTAL POLICY ACT AND

FEDERAL-AID HIGHWAY ACT

The appellants also contend that the appellees have not

complied sufficiently with NEPA or, in addition to the

alleged noncompliance with section 4(f), with FAHA. We

are not persuaded by the appellants’ arguments in respect

to this contention and will only briefly discuss the perti-

nent issues.

A. NEPA-EIS Adequacy

The appellants challenge the adequacy of the Environ-

mental Impact Statement (EIS) on three grounds: (1)

that the EIS inadequately assess the secondary (socio-eco-

nomic) effects of H-3, (2) that the EIS inadequately ana-

lyzes whether H-3 is consistent with local land use plans,

and (3) that the EIS must be supplemented to include

discussions of significant new information. The EIS for

the North Halawa Valley alignment of H-3 consists of the

1972 EIS, 1973 EIS Preface, and the NHV-SEIS.

1. Standard of Review

In our Circuit, a district court’s finding that an EIS is

adequate will be reversed only if based upon an erro-

neous legal standard or upon clearly erroneous findings

of fact. Save Lake Washington v. Frank, 641 F.2d 1330,

—

36a

1334 (9th Cir. 1981). The district court’s review of an

EIS also is limited:

Judicial review of an EIS covers only the issue of

whether NEPA’s procedural requirements have been

met, and whether the EIS performs its primary func-

tion of presenting the decision-maker with an environ-

mentally-informed choice. The correct standard is pro-

vided in the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(D), which directs courts to set aside an

agency action if taken ‘without observance of proce-

dure required by law... .’

Id. (citations omitted). Under this standard, the court

employs a ‘‘rule of reason’’ that inquires: (1) whether the

EIS contains ‘‘a reasonably thorough discussion of the

significant aspects of the probable environmental conse-

quences,’’ Village of False Pass v. Clark, 733 F.2d at 613;

Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th

Cir.1974) ; and (2) whether the EIS’s ‘‘form, content and

preparation foster both informed decision-making and in-

formed public participation,’’ Village of False Pass v.

Clark, 733 F.2d at 613; California v. Block, 690 F.2d 753,

761 (9th Cir.1982). Once satisfied that the agency has taken

this procedural and substantive ‘‘hard look’’ at environ-

mental consequences in the EIS, see Kleppe v. Sierra Club,

427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.

2d 576 (1976); Village of False Pass v “lark, 733 F.2d

at 613, the court’s review is at an end.

The role of the reviewing court under NEPA, then, dif-

fers fundamentally from the role of the reviewing court

under section 4(f). While the mandate of section 4(f)

essentially is prohibitory, the mandate of NEPA is essen-

tially procedural. The court’s review, therefore, is much

more limited under NEPA than under section 4(f). In

the case at hand, the reviewing court should consider only

whether, under the Council on Environmental Quality reg-

37a

ulations implementing NEPA, the H-3 EIS satisfies the

above specified ‘‘hard look’’ standard.

2. Socio-Economic Impacts

The Council on Environmental Quality (CEQ) estab-

lished under 42 U.S.C. § 4342 (1976), promulgates uni-

form, mandatory regulations for implementing the proce-

dural provisions of NEPA. See Andrus v. Sierra Club,

442 U.S. 347, 357, 99 S.Ct. 2335, 2340, 60 L.Ed.2d 943

(1979); Village of False Pass v. Clark, 733 F.2d at 613;

40 C.F.R. § 1515.2 (1982). Under CEQ regulation 40 C.F.R.

§ 1500.8(a) (3) (ii) (1978), an EIS must assess and discuss

the secondary (socio-economic) effects of the project in

question.” In the case at hand, the District Court found

that the EIS adequately discusses the socio-economic im-

pacts of H-3. 538 F.Supp. at 166. Based on our review

of the relevant case law and the recerd, we cannot con-

clude that the District Court’s finding was ‘‘clearly erro-

neous.’’

The appellants allege that the EIS fails to assess ade-

quately the secondary effects of H-3 on population growth,

public services, and community cohesion and stability of

Windward Oahu. The appellants essentially are arguing

that the EIS discussion of secondary impacts lacks suf-

ficient detail and meaningful supporting data. To support

this argument, the appellants cite two cases, City of Davis

v. Coleman, 521 F.2d 661 (9th Cir.1975), and Coalition for

Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir.

1980), in which EIS’s were found inadequate. In both

eases, however, the EIS’s were not nearly as detailed as

the EIS in the case at hand. Here, while there are some

‘<general’’ discussions and ‘‘assumptions’’ in the EIS, and

while it may have been preferable to consider the sec-

2° The regulations that implement FAHA impose a similar re-

quirement. See 23 C.F.R. § 771.18(i) (1978).

38a

ondary impacts in more detail, it is our view that the

EIS contains reasonably sufficient data for decisionmakers

to take the requisite ‘‘hard look’’ at the environmental

consequences of H-3 and to reach subsequently an en-

vironmentally-informed and independent conclusion about

H-3.

First, an ‘‘H-3 Socio-Economic Study’’ was prepared

and circulated in 1973. The 1973 study briefly discusses

the socio-economic impacts of H-3 on Windward Oahu.

The appellants charge that the 1973 study is obsolete in

light of the new Oahu General Plan.

Second, even if portions of the 1973 study are obsolete,

the NHV-SEIS, prepared after the new Oahu General

Plan went into effect, adequately updates the 1973 study.

The NHV-SEIS contains a reasonably thorough discus-

sion of H-3’s secondary impacts in light of the planning

charges that have occurred. See NHV-SEIS, vol. I, at

118-29.

Third, the NHV-SKEIS, in a reasonably thorough fash-

ion, discusses socio-economic phenomena in Windward

region-wide terms, as well as island-wide terms. See, e.g.,

id. at xv-xviv, 45-55, 100-13, 118-29, 316-17.

Fourth, the NHV-SEIS relies upon, among other things,

the conclusions and data developed by the City and County

of Honolulu in connection with the updating of the Oahu

General Plan in 1977. See id. at 13-17, 49 (table ITI-3),

100-13.

On the other hand, the District Court found that the

appellees put forth contradictory assertions in respect to

the ability of the General Plan to control H-3 induced

growth. See 538 F.Supp. at 166. The appellants are cor-

rect when they point out that this may reflect a less than

complete.evaluation of H-3’s secondary impacts. None-

theless, NEPA only requires a ‘‘reasonably thorough dis-

cussion’”’ that ‘‘fosters informed decisionmaking,’’ not a

‘‘complete evaluation.’’ Therefore, it is our view that the

39a

District Court was not ‘‘clearly erroneous”’ in finding that

the EIS assesses and discusses adequately H-3’s socio-

economic impacts.

3. Consistency with Local Planning

The regulations of both the Department of Transporta-

tion (DOT) and CEQ require the EIS to analyze the

relationship of H-3 to local land use plans and to discuss

how H-3 ‘‘may conform or conflict with the objectives and

specific terms’’ of land use plans, policies, and controls

for the area. See 23 C.F.R. §771.18(h) (1978); 40 C.F.R.

§ 1500.8(a)(2) (1978). If a conflict or inconsistency exists,

the EIS ‘‘should describe the extent of reconciliation and

the reason for proceeding notwithstanding the absence of

full reconciliation.’’ 23 C.F.R. § 771.18(h) (1978) ; 40 C.F.R.

§ 1500.8(a)(2) (1978).

On January 18, 1977, the City and County of Honolulu

adopted a revised Oahu General Plan, which became law

on February 2, 1977. See NHV-SEIS, vol. I, at 100. The

obsolete Oahu General Plan had envisioned large-scale

development and population growth, including a deep draft

harbor, for Windward Oahu. The new 1977 Oahu General

Plan altered significantly the planning objectives for Wind-

ward Oahu. See 538 F.Supp. at 165. The new Plan envi-

sions limited growth for the region and calls for a reduc-

tion in the proportion of Oahu’s population living in the

region. Id. The appellants strongly urge that: (1) H-3 is

inconsistent with the population objectives and policies

of the 1977 Plan,* (2) the inconsistencies are not resolved

in the EIS, and, therefore, (3) the EIS is inadequate.

3° The appellants contend that H-3 is inconsistent with the 1977

Oahu General Plan because H-3 could stimulate rapid population

growth contrary to the new planning goals of limited growth for

Windward Oahu. As above noted, a goal of the 1977 Plan is to

create employment opportunities and to direct residential popula-

tion to the Ewa (Leeward) side. The appellants argue that H-3 is

40u

Indeed, the portion of the EIS that we find most trou-

bling is its analysis of the 1977 General Plan. For example,

the appellees, in both their H-3 Travel Demand Analysis

and Region 9 Staff Analysis, use outdated Windward re-

gion population projections, apparently assuming that the

1977 General Plan population goals will not be met. See

538 F.Supp. at 166-67. As the District Court points out,

‘*this assumption contradicts [the appellees’] assertion that

growth will be limited by the General Plan.’’ Jd. This would

seem to indicate that the appellees may not have reason-

ably concluded that H-3 is consistent with the 1977 Plan.

Moreover, in the NHV-SEIS the appellees assert several

times that H-3 was planned only in response to the pro-

jected and desired growth pattern in Windward Oahu

that appears in the 1977 General Plan. See, e.g., NHV-

SEIS, vol. I, at 87, 90, 103. The H-3 freeway, however,

was under development when the obsolete 1964 General

Pian was in effect, see, e.g., 1973 EIS Preface, at 5-1 to

5-12, app. B, at 69, and at that time the appellees asserted

that H-3 was consistent with the then current planning

and growth policies, see id. app. B, at 211-292. It seems

incongruous to us, therefore, that the appellees assert that

H-3 is only a response to the 1977 General Plan when H-3

originally was designed to help implement the 1964 Gen-

eral Plan vision of an urbanized, industrial Windward

Oahu.

Nonetheless, our role is not that of a ‘‘super-planner,’’

see 538 F.Supp. at 164, and, under NEPA, we are not

allowed to substitute our judgment for that of the agency

concerning the wisdom of a proposed action. See Cali-

forma v. Block, 690 F.2d at 761. Our role is limited to

insuring that the appellees have taken a ‘‘hard look’’ at

inconsistent with this goal becawse H-3 would encourage persons

employed in the EWA and Aiea-Pearl City areas to live on Wind-

ward Oahu and commute to work on Leeward Oahu. Thus, they

allege that H-3 virtually will insure that the population and

distribution targets of the 1977 Plan will not be met.

4la

H-3’s environmental consequences. The NHV-SEIS con-

tains a fairly detailed discussion of H-3’s relationship to

state and city land use plans, policies, controls, goals, and

objectives. See NHV-SEIS, vol. I, at 85-114, 126-29. Fur-

thermore, the relationship between H-3 and the 1977 Plan

specifically is discussed. Jd. at 100-10. And, one of the

terms upon which the appellee-Secretary’s concurrence in

the EIS was conditioned was:

That the Hawaii Department of Transportation will

cooperate with the City and County of Honolulu in

monitoring land use and development trends on Wind-

ward Oahu, including the impact of H-8 on such trends.

Hawaii DOT will cooperate with the City and County

in the implementation of measures proposed to achieve

General Plan objectives for Windward Oahu.

Office of the Secretary, U.S. Dep’t of Transp., Concur-

rence Memorandum 3 (Nov. 21, 1980). See also Fed. High-

way Admin., Decision Memorandum 4 (Dee. 5, 1980) (‘‘the

conditions required by the Office of the Secretary ... are

accepted and will be implemented by FHWA and the

Hawaii DOT’’).

Thus, while it may have been preferable to include a

comparison study of the interrelationship between H-3,

the 1964 Plan, and the 1977 Plan, we cannot conclude in

these circumstances that the District Court’s decision was

‘‘clearly erroneous’’ when it found that the EIS contains

adequate information for the relevant decisionmakers to

reach a reasoned conclusion concerning H-3’s conformity

with land use planning on Oahu.

4. Supplementation of the EIS

a. Siundard of Review

A federal agency has a continuing duty to gather and

evaluate new information relevant to the environmental

42a

impact of its actions, even after release of an EIS. Warm

Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-24

(9th Cir. 1980) (Warm Springs Dam II). The CEQ regu-

lations require that agencies ‘‘prepare supplements to

either draft or final environmental impact statements if

... [t]here are significant new circumstances or informa-

tion relevant to environmental concerns and bearing on

the proposed action or its impacts.’’ 40 C.F.R. § 1502.9(¢)

(1) (ii) (1980).

An agency’s decision not to supplement an EIS will be

upheld if it was reasonable. Warm Springs Dam II, 621

F.2d at 1024. When new information comes to light the

agency must consider it, evaluate it, and make a reasoned

determination whether it is of such significance as to re-

quire implementation of formal NEPA filing requirements.

Id. Reasonableness depends on the environmental signifi-

cance of the new information, the probable accuracy of the

information, the degree of care with which the agency con-

sidered the information and evaluated its impact, and the

degree to which the agency supported its decision not to

supplement with a statement of explanation or additional

data. Jd.

The appellants allege that the 1977 General Plan, re-

vised population projections, and 1980 census data are

‘‘significant new information’’ requiring EIS supplemen-

tation.

b. 1977 New General Plan

The appellants assert that the ‘‘complete reversal’’ of

Windward planning goals, as embodied by the 1977 Plan,

is a ‘‘significant new circumstance’’ requiring further sup-

plementation of the 1973 EIS. They argue that the shift

of planned population centers from Windward Oahu to

Ewa should be specifically addressed in a supplement to

the EIS.

43a

This argument has little merit. The 1977 Generai Plan

is not ‘‘new information’’ that has come to light after re-

lease of the EIS. The relationship between H-3 and the

1977 General Plan objectives and policies is addressed in

some detail in the NHV-SEIS, a supplement to the 1973

EIS. See NHV-SEIS, vol. I, at 100-10. We have already

concluded that the EIS adequately considers the 1977 Plan;

the appellees’ decision not to supplement further the EIS

was reasonable. See Warm Springs Dam II, 621 F.2d at

1024.

ce. Revised Population Projections

As above noted, in 1978 the State of Hawaii Department

of Planning and Economic Development (DPED) revised

its year 2000 population projections downward; DPED

reduced the Oahu population projection from 1,039,000 per-

sons to 917,400 for the year 2000. Applying the 1977 Gen-

eral Plan distribution percentages to this new figure yields

a target Windward Oahu population of between 125,700

and 138,500. See 538 F.Supp. at 166.

The NHV-SEIS fails to discuss in detail the 1978 pro-

jections, even though they were issued nearly two years

before the NHV-SEIS was approved. See id. The appellees,

however, did consider the 1978 projections in their Region

9 Staff Analysis. See Region 9 Staff Analysis, at app. B.

They apparently concluded that older projections, predict-

ing a Windward Oahu population of 150,500, were more

valid. See NHV-SEIS, vol. I, at xviii; 538 F.Supp. at 167.

The District Court found, under 40 C.F.R. § 1500.8

(a)(1) (1978)," that the appellees met their NEPA oblig-

3140 C.F.R. § 1500.8(a)(1) (1978) states in relevant part:

Agencies should also take care to identify, as appropriate,

population and growth characteristics of the affected area

and any population and growth assumptions used to justify

the project or program or to determine secondary population

44a

ations by identifying the population and growth assump-

tions used to justify H-3. See 538 F.Supp. at 166-67.

The appellants argue that the 18,000-person reduction in

population figures is ‘‘significant new information’’ be-

cause federal decisionmakers regarded population projec-

tions and goals important when they approved the EIS.

See, e.g., Office of the Secretary, U.S. Dep’t of Transp.,

Concurrence Memorandum 2 (Nov. 21, 1980) (‘‘Since con-

struction of H-3 is likely to stimulate development on

Windward Oahu, and could contribute to pressures for

development in excess of that contemplated in the General

Plan, monitoring of population growth and of traffic levels

on H-3 will be needed to assure that development objec-

tives of the plan are not exceeded.’’). The appellants also

allege that the NHV-SEIS fails to state any reason why

a discussion of the reduction in projected growth was

omitted from the EIS.

The appellees correctly respond that both the ‘‘out-

dated’’ and 1978 projected population figures are actually

a range of projections and that the NHV-SEIS discusses

the changing population projections and their ranges. See

NHV-SEIS, vol. I, at xvii-xviii. Moreover, the EIS ex-

plains, albeit briefly, the appellees’ reasons for selecting

the population projections used in the EIS. See id. at xviii.

On this record, the appellants simply have not shown

that the appellees have violated the Warm Springs Dam II

standards; accordingly, we will not disturb the appellees’

decision not to supplement further the EIS on account of

the revised populetion projections.

d. 1980 Census Data

The appellants argue that the 1980 census data is ‘‘sig-

nificant new information’’ because it shows that Windward

and growth impacts resulting from the proposed action and

its alternatives. . . .

45a

Oahu is growing faster than called for in the 1977 General

Plan, and that, therefore, the growth-inducing impact of

H-3 virtually will inswre that General Pian growth limits

will not be met. With regard to supplementing the EIS,

this argument has little merit for several reasons.

First, the appellants have not persuasively shown the

significance of the 1980 census data in terms of new en-

vironmental impact. Cf. Citizens Committee Against Inter-

state Route 675 v. Lewis, 542 F.Supp. 496, 554-56 (S.D.Ohio

1982) (census data does not require supplementation of

KIS).

Second, the appellants’ argument assumes, without show-

ing, that H-3 will induce growth beyond that envisioned

in the General Plan.

Third, as above noted, the Secretary’s concurrence in

the EIS was conditioned upon the Hawaii Department of

Transportation’s cooperation with the City and County of

Honolulu ‘‘in their implementation of measures proposed

to achieve General Plan objectives for Windward Oahu.’’

See Office of the Secretary, U.S. Dep’t of Transp., Con-

currence Memorandum 3 (Nov. 21, 1980). See also Fed.

Highway Admin., Decision Memorandum 4 (Dec. 5, 1980)

(FHWA’s and Hawaii DOT’s acceptance of Secretary’s

conditions).

For these reasons, the appellees acted reasonably in not

supplementing the EIS on account of the 1980 census data.

B. FAHA—Adequacy of Location/Design Reports

Under FAHA, a request for location or design approval

must be accompanied by reports nd other documents that

discuss, inter alia, the anticipated economic, social, and en-

vironmental effects of the proposed action and alternatives

under consideration. 23 C.F.R. §§ 790.9(c), 790.8(b) (2) (i)

(1978). The H-3 Location/Design Study Report, NHV-

46a

SEIS, 1973 EIS Preface, and 1972 EIS were submitted as

evidence of compliance with this requirement. The appel-

lants challenge the adequacy of these reports with respect

to socio-economic impacts.

The appellants allege that: (1) the FAHA requirements

cannot be satisfied by incorporating the EIS documents

by reference; and (2) even if incorporation by reference is

acceptable, the EIS is inadequate and needs to be supple-

mented by a detailed, current socio-economic study. The

first contention has no merit. The CEQ regulations clearly

permit the type of incorporation by reference to which ap-

pellants object. See 23 C.F.R. § 790.8(b) (2) (iv) (1978). As

to the second contention, we have already concluded that

the documents adequately discuss the secondary impacts

of H-3.

FV. CONCLUSION

The District Court’s rulings in respect to the ESA,

NEPA, and the portions of FAHA other than section 4(f)

are affirmed. The District Court’s Order dissolving the in-

junctions against construction of H-3, however, is reversed.

On remand, the District Court must enjoin construction of

the entire highway as proposed until such time that the

Secretary can demonstrate his full compliance with section

4(f) as the statute applies to Ho’omaluhia Park and has

made a determination in harmony with the statutory re-

quirements.** Our decision does not affect any injunctions

*? Pending the disposition of this appeal, an injunction has pro-

scribed the continued work and expense in connection with the

highway in question. Upon remand, the District Court will be in

a better position, considering the prospect of possibly needless ex-

penditures of the taxpayers’ funds, to determine the nature and

extent of the injunction that is necessary to protect the interests

of all parties to the litigation pending further developments. If

any of the litigants wish to suggest to this Court the question of

whether an additional injunction is now necessary, and the form

47a

the District Court has not dissolved that originated in the

district court.

The judgment of this Court shall issue forthwith, and

no Petition for Rehearing will be entertained. See Fed.R.

App.P. 2.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

Watuace, Circuit Judge, concurring in part:

I concur in the portions of the majority opinion that dis-

cuss the Makai Realignment, the Endangered Species Act

of 1973, and the National Environmental Policy Act of

1969 (NEPA) together with the Federal-Aid Highway Act

of 1968 (FAHA). I cannot concur, however, in the major-

ity’s unnecessary analysis of the No Build alternative in

connection with Ho’omaluhia Park.

The majority interprets ‘‘no build’’ to mean not build-

ing any of Interstate Route H-3 not already completed.

The portion of H-3 that affects Ho’omaluhia Park, how-

ever, runs only between the Kaneohe and Halekou inter-

changes. Common sense suggests that the No Build alter-

native concerned with Ho’omaluhia Park covers this short

segment, not all of H-3. See, e.g., Citizens’ Committee for

Environmental Proiection v. United States Coast Guard,

456 F.Supp. 101, 119-20 (D.N.J. 1978). The Stop H-3 Asso-

ciation (the Association) advanced this argument as an

alternative position in the district court. The Secretary of

Transportation (the Secretary), accepting the Associa-

tion’s suggestion, established to the district court’s satis-

faction that this No Build alternative essentially duplicated

the Makai Realignment. See Stop H-3 Association v. Lewis,

538 F.Supp. 149, 180 (D.Hawaii 1982). Properly analyzed,

questions about the No Build alternative should therefore

of any such injunction, if necessary, they may deem themselves at

liberty to do so.

48a

fall completely within our discussion of the Makai Realign-

ment. The majority’s discussion beyond that point, al-

though termed a holding, is actually dictum based on simi-

larly unnecessary portions of the district court’s opinion

and the section 4(f) statement prepared for Ho’omaluhia

Park that posited and rejected a No Build alternative

covering all of H-3. See, e.g., id. Nevertheless, I conclude

that by focusing solely on this definition of a No Build

alternative, the majority errs both in law and in not adopt-

ing a common sense approach to the issue.

For every proposed project, a first great question is

whether or not to undertake it. The second, equally im-

portant question after deciding to undertake a project is

which way to construct it. Under FAHA,

the Secretary shall not approve any program or proj-

ect which requires the use of any publicly owned land

from a public park ... 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....

23 U.S.C. § 138 (section 138); accord 49 U.S.C. § 303 (sec-

tion 303) (recodifying and amending section 4(f) of the

Department of Transportation Act of 1966 (DOTA), 49

U.S.C. §$1653(f) (1976), repealed by Pub.L.No. 97-449,

§7(b), 96 Stat. 2444). As the plain language indicates, this

statute chiefly prescribes which way to build the project.

The legislative histories of section 138 and the 4(f) prede-

cessor to section 303 shed littie additional light on the

meaning of this language. See, e.g., S.Rep. No. 1410. 89th

Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.

News 2800, 2837-38, 2840. 2844 (section 138); Conf. Rep.

No. 2236, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code

Cong. & Ad. News 3448, 3450 (section 4(f)). Thus, as the

Supreme Court observed in Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 412 n. 29, 91 S.Ct. 814,

49a

821 n. 29, 28 L.Ed.2d 136 (1971) (Overton Park), ‘‘we must

look primarily to the statutes themselves to find the legis-

lative intent.’’ On their faces, sections 138 and 303 do not

bar any particular project. Instead, they require the Secre-

tary to adjust projects to avoid the use of park land. If

building a project and avoiding the use of park land prove

irreconcilable aims, the statutes allow the project to go

forward. This scheme clearly regulates the way to build a

project rather than whether to undertake it.

But what is a project? Under 23 U.S.C. §101(a),

‘*« ‘project’ means an undertaking to construct a particular

portion of a highway... .’’ Under 23 U.S.C. §105(a), a

program consists of ‘‘proposed projects for the utilization

of the funds apportioned.’’ Consistent with these terms,

‘‘a ‘program for projects’ usually presents for approval

one or more stages or part [sic] of the work necessary

ultimately to be completed to result in the actual finished

construction of a highway.’’ Movement Against Destruc-

tion v. Volpe, 361 F.Supp. 1360, 1380 (D.Md.1973) (per

curiam) (two judge court), aff’d, 500 F.2d 29 (4th Cir.

1974). FAHA thus focuses on approval of alternative plans

for highways. Other statutes of environmental protection

have a much broader scope. NEPA, for example, clearly

allows consideration of alternatives to highways besides

other highways. See, e.g., 42 U.S.C. § 4332(2)(A), (C). For

purposes of FAHA, however, only highways, not other

modes of transportation, represent alternatives. Cf., ¢.g.,

Airport and Airway Development Act of 1970, §12(b),

Pub.L. No. 91-258, tit. I, § 12(b), 84 Stat. 221, repealed by

Pub.L. No. 97-248, tit. V, §523(a), 96 Stat. 695 (explicitly

requiring consideration of alternate forms of transporta-

tion); see also 49 U.S.C. § 2201(b) (statement of purpose

for ‘‘various modes of transportation’’ in airport plan-

ning); but see 49 U.S.C. 4 2208(b)(5) (equivalent of sec-

tions 138 and 303). Although I recognize statements to the

contrary exist, e.g., D.C. Federation of Civic Associations

50a

v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971), cert. denied,

405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972), the

language, intent, and scope of FAHA lead me to conclude

that Congress took the choice of planning a highway as a

given under section 138. Congress did not envision that the

Secretary would have to reconsider that initial choice of

project in protecting park lands.

Section 303 covers any ‘‘transportation program or pro)}-

ect,’’ 49 U.S.C. § 303(c) (emphasis added), not just high-

way building, but accepting the initial choice of project as

a given still seems appropriate. See, e.g., Monroe County

Conservation Council, Inc. v. Volpe, 472 F.2d 693, 700 (2d

Cir.1972). In Coalition for Canyon Preservation v. Bowers,

632 F.2d 774 (9th Cir.1980) (Bowers), we faced a situation

similar to the construction of H-3: the proposed construc-

tion of a four-lane highway in upper Montana. Examining

the adequacy of a section 4(f) review of the project, we

remanded because the alternative of an improved two-lane

road had not received consideration. Jd. at 784-85. We did

not suggest the Secretary consider a complete No Build

alternative, although, as in every case, that choice was

available. Cf. id. at 785 n. 5 (No Build was not one of the

five alternatives considered in the 4(f) statement); see

also Louisiana Environmental Society, Inc. v. Coleman,

537 F.2d 79, 85 (5th Cir.1976) (rejecting out of hand a

No Build alternative to an entire bridge project). As

Bowers shows, we have not previously given project-wide

No Build alternatives the status the majority would.

The decision in Maryland Wildlife Federation v. Lewis,

560 F.Supp. 466 (D.Md.1983), provides yet another argu-

ment why project-wide No Build alternatives have no place

in analyses under sections 138 and 303. There, the district

court found a complete No Build alternative to a freeway

in western Maryland imprudent because it would not satis-

fy the general purposes of the Appalachian Regional De-

velopment Act, 40 U.S.C. app. § 2. 560 F.Supp. at 473-74.

5la

The No Build alternative to H-3 proposed by the majority

would run afoul of similarly general purposes in FAHA.

See, e.g., 23 U.S.C. §101(b). In both cases, however, the

statutory purposes are so general that they add no more

than an extra measure of federal legitimacy to a project

decision already made. This indicates that project-wide No

Build propositions do not actually provide ‘‘prudent alter-

natives’’ for purposes of sections 138 and 303. The choice

whether to undertake a project stands as a condition prece-

dent to epplication of these sections. Other laws such as

NEPA guide that first choice and include consideration of

complete No Build alternatives. Section 138 and 303 simply

regulate the way the government may implement a chosen

project.

As a final example, in Overton Park the Supreme Court

analyzed a proposed interstate route by implicitly accept-

ing that the choice to build a highway lay beyond any

review made under sections 4(f) and 138. As proof, con-

sider that any project-wide No Build alternative is, by

definition, ‘‘feasible’’ under sections 303(c)(1) and 138.

The Supreme Court, however, limited the question of feasi-

ble alternatives to alternative highway routes. ‘‘For this

exemption to apply, the Secretary must find that as a mat-

ter of sound engineering it would not be feasible to build

the highway along any other route.’’ 401 U.S. at 411, 91

S.Ct. at 821. Nowhere in the opinion does the Court even

imply that a complete No Build option, or some substitute

mode of transportation, would ever represent a feasible

or prudent alternative for purposes of sections 4(f) and

138 after the choice of a highway as the project.

Large highway projects assisted by federal funding are

plain examples of cooperative federalism. Cf., e.g., Hodel v.

Virginia Surface Mining & Reclamation Association, Inc.,

452 U.S. 264, 289, 101 S.Ct. 2352, 2366, 69 L.Ed.2d 1 (1981)

(Surface Mining Control and Reclamation Act of 1977).

The majority, by proposing the complete rejection of an

52a

H-3 highway as an alternative to the use of Ho’omaluhia

Park by one portion of the proposed route, stands the sup-

position of an initial project choice in sections 138 and 303

on its head. This improperly interferes with the cooperative

system regulated by these statutes. The district court also

erred, in my judgment, by confusing the purposes of sec-

tions 138 and 303 with the initial decision to build a high-

way, see 538 F.Supp. at 180. A proper reading of those

sections, however, shows Congress intended them to regu-

late which way a government constructed a project, not

whether a government constructed a project at all. For

this reason, I do not concur in the majority’s unnecessary

discussion of their No Build alternative.

53a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Civil No. 72-3606

Stor H-3 Association, a Hawaii non-profit corporation;

Lire oF THE Lanp, a Hawaii non-profit corporation,

Plaintiffs,

vs.

Anprew L. Lewis, as Secretary of the United States

Department of Transportation; RatpH Secawa, as

Hawaii Division Engineer, Federal Highways Admin-

istration; and Ryoxicu1 HicasHionna, as Director of

the Department of Transportation of the State of

Hawaii,

Defendants.

Civil No. 73-3794

Hur Marama Arna O Ko’oxav,

Plaintiff,

vs.

Anprew L. Lewis, as Secretary of the United States

Department of Transportation; RatpH Sgcawa, as

Hawaii Division Engineer, Federal Highways Admin-

istration; and Ryoxicn1 HigasHionna, as Director of

the Department of Transportation of the State of

Hawaii,

Defendants.

[Filed in the United States District Court District of

Hawaii Apr 20 1982 at 4 o’clock and 25 min. P.M.

Walter A. Y. Chinn, Clerk]

54a

JUDGMENT

Judgment in the above-entitled matter is hereby entered

as follows:

1. Defendants’ Motion to Reconsider is Denied.

2. The injunctions originally entered in Civil No. 72-

03606 on July 19, 1972, and October 15, 1972, are hereby

dissolved.

3. The Secretary of Transportation’s grant of location

and design approval dated February 5, 1981, for the H-3

project is hereby set aside.

4. Defendants’ failure to prepare and circulate a sup-

plemental EIS which reflects the project’s Ho’omaluhia

Park 4(f) involvement, the information contained in the

H-3/Omega Collocation Studies, and the FHWA Region

9 Staff Analysis is a violation of NEPA, 40 C.F.R. §1502.9

(c)(4) (1980), and 23 C.F.R. § 771.15 (1980).

5. The Secretary of Transportation’s Ho’omaluhia Park

4(f) determination is hereby set aside.

6. The Pail Golf Course 4(f) determination is hereby

remanded to the Secretary of Transportation for further

documentation that no feasible and prudent alternatives

exist to the use of the golf course lands and all possible

measures to minimize harm to the golf course have been

taken.

Datep: Honolulu, Hawaii, April 20, 1982.

/s/ .. . signature illegible

United States District Judge

55a

OPINION AND ORDER OF THE UNITED STATES

‘DISTRICT COURT FOR THE DISTRICT OF HAWAII

(April 2, 1982)

Stop H-3 Assoctation, a Hawaii non-profit corporation;

Life of the Land, a Hawaii non-profit corporation,

Plaintiffs,

Anvprew L. Lewis, as Secretary of the United States De-

partment of Transportation; Ralph Segawa, as Hawaii

Division Engineer, Federal Highways Administration;

and Ryokichi Higashionna, as Director of the De-

partment of Transportation of the State of Hawaii,

Defendants.

Hur Marama Arna O Ko’Onau, Plaintiff,

Anvprew L. Lewis, as Secretary of the United States De-

partment of Transportation; Ralph Segawa, as Hawaii

Division Engineer, Federal Highways Administration;

and Ryokichi Higashionna, as Director of the De-

partment of Transportation of the State of Hawaii,

Defendants.

Civ. Nos. 72-3606, 73-3794.

United States District Court,

D. Hawaii.

April 8, 1982.

Plaintiffs brought complaint for declaratory and injunc-

tive relief against federal and state transportation officials

challenging a proposed highway project. The District

Court, Samuel P. King, Chief Judge, held that: (1) prepa-

ration of the supplemental environmental impact statement

56a

was not improperly delegated to private consultants; (2)

the EIS for the project sufficiently addressed project’s

socioeconomic impacts in relationship to the city and county

general plans; (3) a further supplemental EIS was re-

quired in order to reflect ‘‘new and significant informa-

tion’’ regarding impact of a J.S. Coast Guard transmit-

ting station, a staff analysis of different alternatives, and

highways’ impact on a park; (4) decision by Secretary of

Transportation to pursue a ‘‘build’’ alternative was not

arbitrary and capricious; (5) combined location and design

hearings for the highway were properly held; (6) defend-

ant did not violate the Endangered Species Act nor the

Hawaii Endangered Species Act; (7) the statement regard-

ing highway’s impact on the park did not adequately sup-

port the finding that all possible measures were taken to

minimize harm to the park; and (8) the determination

regarding highway’s impact on a golf course was invalid

since the record did not adequately support the conclusion

that all possible measures were taken to minimize harm

to the golf course.

Ordered accordingly.

* * e s * - J * al

Boyce R. Brown, Jr., Honolulu, Hawaii, for plaintiffs

Stop H-3 Association, et al.

Ronald Albu, Cynthia Thielen, Legal Aid Society of

Hawaii, Honolulu, Hawaii, for Hui Malama Aina O

Ko’Olau.

Elliot Enoki, Asst. U.S. Atty., Wallace W. Weatherwax,

U.S. Atty., Honolulu, Hawaii, for Andrew L. Lewis and

Ralph Segawa, Federal defendants.

Keith Y. Tanaka, Warren H. Higa, Sp. Counsel, Tobias

C. Tolzmann, Honolulu, Hawaii, for Ryokichi Higashionna,

Director, DOT, State of Hawaii.

57a

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

SamuE. P. Kine, Chief Judge.

I. PROCEDURAL HISTORY

This is the latest chapter in the continuing saga of

(T)H-3, a proposed Interstate Defense Highway which

would connect the Kaneohe Marine Corps Air Station

(‘*‘KMCAS’’) to the Pearl Harbor Naval Base and Hickam

Air Force Base.’

Originally, the project was to extend from Halawa to

Kaneohe, passing through Moanalua Valley, the Koolau

mountains, and Haiku Valley. As more fully discussed be-

low, the highway segment extending from Halawa to the

Koolaus has since been realigned through North Halawa

Valley.

The project has been the subject of extensive litigation.

Plaintiff Stop H-3 Association filed the original complaint

in Civil No. 72-3606 on July 19, 1972.2 By injunctions en-

tered by Stipulation and Order dated September 15, 1972

and by Decision and Order dated October 18, 1972, Stop

H-3 Ass’n v. Volpe, 349 F.Supp. 1047 (D.Haw.1972), this

court enjoined construction and design work for the por-

‘For a more complete histroy of the project, see this court’s

decision in Stop H-3 Ass’n v. Coleman, 389 F.Supp. 1102 (D.Haw.

1974). Three alternative project configurations were considered

for the North Halawa Valley. TH-3 contained six !anes, four for

mixed traffic and two for transit. H-3 (the adopted alternative)

contained four lanes for mixed traffic. T-3 would have been a two

lane facility reserved exclusively for transit use.

? As this litigation has progressed, the incumbent Secretary of

Transportation has been substituted for his predecessor as a named

defendant.

58a

tion of the freeway connecting the Halawa and Halekou

interchanges until defendants could demonstrate compli-

ance with the National Environmental Protection Act of

1969, 42 U.S.C. § 4321 et seq. (*“‘NEPA’’). Two years of

hearings, Environmental Impact Statement (EIS) prepa-

ration, and other legal and administrative proceedings

followed.

On December 26, 1974, this court held that the defendants

had complied with the applicable environmental and trans-

portation statutes and regulations, and lifted the injune-

tions. Stop H-3 Ass’n v. Brinegar, 389 F.Supp. 1102 (D.

Haw.1974). A key ruling was that since ‘‘local officials’’

had declared that Moanalua Valley was not historically

significant, even though the U.S. Secretary of the Interior

had determined that it was ‘‘likely to be eligible’’ for in-

clusion in the National Register of Historic Places, the

_ protections of section 4(f) of the Department of Transpor-

tation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970)

and section 18 of the Federal Aid Highway Act of 1968,

23 U.S.C. § 138 (1970), did not apply. These statutes, here-

inafter referred to as ‘‘section 4(f),’’ are essentially iden-

tical.*

On appeal, the U.S. Ccurt of Appeals for the Ninth

Circuit reversed, holding that Moanalua Valley and Pohaku

ka Luahini (petroglyph rock) were entitled to the protec-

* In relevant part, these statutes state :

It is hereby declared to be the national policy that special

effort should %e made to preserve the natural beauty of the

countryside and public park and recreation lands. ... [T]he

Secretary shall not approve any program or project which

requires the use of any publicly owned land from a public

park [or] recreation area, ... of State, or local significance

. unless (1) there is no feasible and prudent alternative to

the use of such land, and (2) such program includes all possi-

ble planning to minimize harm to such park [or] recreation

area... .

59a

tions of section 4(f), and reinstating the injunctions until

the Secretary of Transportation (the ‘‘Secretary’’) could

demonstrate compliance therewith. Stop H-3 Ass’n v. Cole-

man, 533 F.2d 434 (9th Cir. 1976) cert. denied, 429 U.S. 999,

97 S.Ct. 526, 50 L.Ed.2d 610 (1976). The court declined to

rule on the other three issues which had been raised on

appeal, instructing the district court to reconsider them

and the Secretary’s 4(f) determination in the event that

the Secretary did conclude that there are no ‘‘feasible and

prudent’’ alternatives to the routing of the project through

.Moanalue Valiey.* 533 F.2d at 446.

Defendants filed a Section 4(f) Statement for Moanalua

Valley with the U.S. Dept. of Transportation (‘‘DOT’’)

in October 1976. In January 1977, the Seeretary concluded

that since feasible and prudent alternatives existed to the

use of Moanalua Valley, he could not approve the project.

After the Secretary’s decision, defendants began to pre-

pare a supplemental EIS examining in detail the environ-

mental effects of aligning the project through North Hala-

wa Valley.

On August 26, 1977, defendants moved to terminate this

lawsuit, arguing that since the project would no longer go

through Moanalua Valley, the injunctions reimposed by the

Ninth Circuit no longer applied. This covrt held that any

freeway segment connecting the Halawa and Halekou in-

terchanges was subject to the injunctions and denied the

motion on November 17, 1977.

The Draft North Halawa Valley Supplemental EIS

(Draft ‘‘NHV-SEIS’’) was first circulated on November

11, 1977 and publie hearings were conducted on December

12, 13, 14 and 15, 1977.

*The court need not consider these claims except to the extent:

that the plaintiffs have reasserted them in their latest Amended

Complaint.

60a

On May 5, 1978, Plaintiff Stop H-3 Association filed its

68 pages, twelve count, Supplemented Compilation of Com-

plaint for Injunctive and Declaratory Relief, as Amended

and Supplemented. The ninth cause of action alleged non-

compliance with section 4(f) with respect te the Ho’oma-

luhia Recreation Project (later designated Ho’omaluhia

Park). Defendants moved to dismiss this cause of action,

or in the alternative, for partial summary judgment, on

July 11, 1978. On November 21, 1978, this court ruled that

constructive use of the recreation project triggered the

protections of section 4(f), and denied the motion. Defend-

ants subsequently prepared and circulated a 4(f) statement

for Ho’omaluhia Park.

The final NHV-SEIS and Ho’omaluhia Park 4(f) State-

ment were processed together, and approved by the Federal

Highway Administration (‘‘FHWA’’) on December 10,

1980. Location and design approval for the project was

given on February 5, 1981.

On April 10, 1981, the parties stipulated to the filing of

plaintiffs’ present 142 page, 48 count, Amended and Sup-

plemented Complaint for Declaratory and Injunctive Re-

lief. Defendants answered this complaint on April 20, 1981.

On June 6, 1981, defendants again moved to terminate the

injunctions. This motion was denied on July 7, 1981.

On September 1, 1981, the parties filed a Stipulation and

Order Regarding a Plan and Schedule for Identifying

Issues for Dismissal, In Limine Ruling, Summary Judg-

ment or Trial on the Merits (‘‘Stipulation’’), pursuant to

which the plaintiffs voluntarily dismissed their sixth, sev-

enth, ninth and twelfth causes of action.®

5 These causes of action were:

6. NEPA—Failure to comply with NEPA requirement of con-

sultation before EIS prepared in final form.

7. NEPA—Failure to comply with DOT Regs re: public avail-

ability of EIS 30 days before hearing.

6la

On September 9, 1981, plaintiffs moved for leave to

amend their eighth cause of action and to add a forty-ninth

cause of action. The court granted their motion as to the

eighth cause of action on September 16, 1981 and as to the

forty-ninth cause of action on October 14, 1981. During

trial, the court permitted plaintiffs to amend their twenty-

seventh and forty-ninth causes of action to conform to the

evidence.

Prior to trial, the court granted defendants’ unopposed

motion for summary judgment as to the fourth, fifth, nine-

teenth and twenty-first causes of action. The court also

granted defendants’ motions for summary judgment as to

the eighth (as amended) and thirteenth causes of action.°

On October 23, 1981, the court granted defendants’ mo-

tion to dismiss the twenty-second and forty-seventh causes

of action."

On September 30, 1981, the court granted plaintiff Hui

Malama Aina O Ko’olau’s (‘‘Hui Malama’s’’) Motion for

Summary Judgment as to the twenty-fifth cause of action,

9. NEPA—Failure to comply with CEQ Regs re: list of pre-

parers in EIS.

12. NEPA—Failure to comply with 23 C.F.R. § 771.14—who

participates and who signs off.

* The fourth, fifth, nineteenth and twenty-first causes of action

involved the defendants’ alleged failure to consult with the Army

Corps of Engineers and the City & County of Honolulu Board of

Water Supply. The eighth cause of action alleged that the decision

to approve the EIS was made before the end of the comment

period. The thirteenth cau vf action asserted that defendants dis-

couraged comments and fa:!ed to distribute the EIS for comments.

* These causes of action alleged that the decision to approve the

EIS and Ho’omaluhia 4(f) statement were based upon political

considerations. Plaintiffs introduced no evidence as to these matters

at trial.

and ordered defendants to initiate formal biological con-

sultation with the U.S. Fish and Wildlife Service (‘‘US-

FW9Q’’) regarding the Achatinella [Hawaiian Tree Snail],

in accordance with section 7(a)(2) of the Endangered

Species Act of 1973, 16 U.S.C. § 1536(a)(2), and its asso-

ciated regulations, 50 C.F.R. § 402.04 (1980). Defendants

complied with this order on October 2, 1981. On October 29,

1981, the USFWS issued a formal biological opinion stat-

ing that constructing H-3 through North Halawa Valley

would not endanger the Achatinella.

II. CURRENT POSTURE

Trial on Defendants’ Motion to Terminate the Injunc-

tions and Plaintiffs’ Complaint for Injunctive and Declara-

tory Relief took place from October 14 to October 29, 1981.

During closing arguments, Defendants moved for recon-

sideration of this court’s determination that section 4(f)

applied to Ho’omaluhia Park.

On November 4, 1981, Plaintiffs moved for summary

judgment as to the thirty-fourth cause of action. Since the

parties introduced evidence with respect to this cause of

action and argued the issue at trial, summary judgment is

inappropriate. Accordingly, the issue will be considered

together with the other causes of action.

This court must now consider the adequacy and validity

of: (1) the 1972 Moanalua Valley EIS (‘‘1972 EIS’’) and

1973 Supplemental EIS (‘‘1973 Preface’’) as of their ap-

proval date; (2) the NHV-SEIS; (3) the Pali Golf Course

4(f) determination; and (4) the Ho’omaluhia Park 4(f)

determination.’

® The 1972 EIS, 1973 Preface and NHV-SEIS together consti-

tute the ‘‘EIS’’ for the North Halawa Valley alignment of the

project.

63a

Ill. ISSUES

The remaining thirty-eight causes of action fall into ten

broad categories, as follows (with their associated issues) :°

* Briefly summarized, the rezaaining causes of action are:

1. NEPA—Rel‘ance on Outmoded/Stale Studies.

2. NEPA—Failure to Supplemenut EIS to Reflect Change

from 6 lanes to 4 lanes & Likelike Busway.

3. NEPA—Failure to circulate EIS to and obtain and defer

to Board of Water Supply comments.

10. NEPA—Failure to comply with CEQ Regs. and NEPA

wrongful delegation of EIS preparation.

11. NEPA—Failure to comply with 23 C.F_R. § 771.7. Non-

disclosure of conflict of interest.

14. NEPA—Failure to comply with 23 C.F.R. § 771.15 and

40 C.F.R. Parts 1500-1508 re: need for Supplemental EIS

addressing change from 6 to 4 lanes. Likelike busway and

passenger transfer facilities.

15. NEPA—Failure to comply with CEQ Regs. Need for

highway based on false assumption that highway needed to

meet growth.

16. NEPA—Failure to comply with CEQ Regs & NSPA—

EIS contains inadequate examination of secondary impacts.

17. NEPA—Failure to comply with CEQ Regs & NEPA—

OMEGA Station.

18. NEPA—Failure to comply with CEQ Regs & NEPA—

EIS is a justification, not an examination.

20. NEPA—Failure to comply with CEQ Regs. Failure to

recirculate Draft after acquiring significant new information.

23. NEPA—Decision approving project was arbitrary and

capricious,

24. OMB Circular A-95.

26. Endangered Species Act—Oahu Creeper.

27. Endangered Species Act—Cyrtandra.

28. Endangered Species—I’iwi (Part 195D, Haw.Rev.Stat.)

29. Public Hearings—Selection of North Halawa Valley be-

fore hearings.

30. Public Hearings—Combined Hearings wrong.

64a

A. NHV-SEIS Preparation.

1. Whether defendants improperly delegated preparation

of the NHV-SEIS to private consultants (Counts Ten and

Eleven).

31. Public Hearings—Design Hearing held before corridor

approved.

32. Public Hearings & Approvai— Design approval given

without proper design hearing.

33. Study Report—Required reports not submitted. No re-

port on social disruption. .

34. Public Hearings & Approval—Evidence of NEPA and

4(f) compliance not submitted with approval request.

35. General Plan—H-3 in conflict with General Plan. Con-

flict not reconciled.

36. 4(f)—Ho’omaluhia—4(f) statement not circulated prop-

erly.

37. 4(£)—Ho’omaluhia—4(f) statement approval based on in-

sufficient information.

38. 4(f)—Ho’omaluhia—Failure to include non-highway al-

ternatives.

39. 4(£f)—Ho’omaluhia—Failure to coordinate 4(f) statement

t=——-with Army Corps of Engineers.

40. 4(f)—Ho’omaluhia—Failu~e to disclose conflict of interest.

41. 4(f)—Ho’omaluhia—Failure to conduct all possible plan-

ning to minimize harm to the park before 4(f) approval.

42. 4(f)—Ho’omaluhia—Inadequate contents of 4(f) state-

ment.

43. 4(f)—Ho’omaluhia—Failure to demonstrate that no feasi-

ble and prudent alternative exists.

44. 4(f)—Ho’omaluhia—Wrongful rejection of feasible and

prudent alternative—Mauka Realignment.

45. 4(f)—Ho’omaluhia—Wrongful rejection of feasible and

prudent alternative—Makai Realignment.

46. 4(f)—Ho’omaluhia—Wrongful rejection of feasible and

prudent alternative—No Build.

48. 4(f)—Pali Golf Course—4(f) statement inadequate, wrong

conclusion of no feasible and prudent alternative.

49. CZMA—Failure to comply with coordination provisions.

65a

2. Whether defendants failed to circulate the NHV-SEIS

to and obtain and defer to comments from the Board of

Water Supply of the City and County of Honolulu (Count

Three).

B. EIS Adequacy.

Whether the EIS is inadequate because it:

1. Relies on outmoded and stale studies (Count One).

2. Fails to address the inconsistency of the projet with

the Oahu General Plan (County Thirty-five).

3. Fails to adequately deal with socio-economic impacts

of the project (Counts Sixteen and Thirty-three) ;

4. Is based upon inaccurate population assumptions.

(Count Fifteen).

5. Fails to disclose the impact of the U.S. Coast Guard

OMEGA transmitting station upon construction workers

and freeway users (Count Seventeen) ;

6. Is a justification for rather than an examination of

the project (Count Eighteen).

C. Further Supplemental EIS (Counts Two, Fourteen

and Twenty).

Whether Defendants are required to prepare an addi-

tional Supplemental EIS to reflect:

1. Uncirculated studies concerning H-3’s environmental

aspects ;

2. The terms upon which the Secretary’s approval of the

NHV-SEIS were conditioned; or

3. The applicability of section 4(f) to Ho’omaluhia Park.

66a

D. Project Approval.

Whether the Secretary’s decision to pursue a ‘‘build’’

alternative was arbitrary and capricious (Count Twenty-

three).

E. Location and Design Approval.

Whether location and design approval for the North Ha-

lawa Valley alignment of the project was invalid because:

1. The defendants were committed to the North Halawa

Valley corridor prior to the public hearings (Count

Twenty-nine) ;

2. Location and design hearings were improperly held

(Counts Thirty, Thirty-one and Thirty-two) ;

3. The design/location study reports for the project were

inadequate (County Thirty-three).

4. The design/location study reports were untimely filed

(Count Thirty-four).

F. OMB Circular A-95 Compliance.

Whether defendants complied with the coordination

process prescribed by OMB Circular A-95 (Count Twenty-

four).

G. Endangered Species.

1. Whether defendants violated the Endangered Species

Act with respect to the Oahu Creeper (Count Twenty-six) ;

2. Whether defendants violated the Endangered Species

Act with respect to the Cyrtandra (Count Twenty-seven,

as amended).

3. Whether constructing H-3 through North Halawa

Valley would violate the Hawaii Endangered Species Act,

Chapter 195D, Haw.Rev.Stat., by ‘‘taking’’ the I’iwi

(County Twenty-eight).

67a

H. Coastal Zone Management.

Whether defendants have complied with the Coastal

Zone Management Act of 1972, 16 U.S.C. § 1451 et seq. (the

‘‘CZMA’’), and its implementing regulations, codified at

15 C.F.R. part 930 (1981) (Count Forty-nine, as amended).

I. Section 4(f)—Ho’omaluhia Park.

1. Whether the 4(f) statutes apply to Ho’omaluhia Park

(Defendants’ Motion for Reconsideration).

2. Whether defendants improperly delegated prepara-

tion of the Ho’omaluhia Park 4(f) Statement (Count

Forty).

3. Whether defendants failed to coordinate preparation

of the 4(f) statement with the agency having jurisdiction

over the Park, as required by 23 C.F.R. § 771.19(g) (5)

(1980) (Count Thirty-nine).

4, Whether the 4(f) Statement was properly circulated

(Count Thirty-six).

5. Whether the 4(f) Statement is inadequate because it

fails to:

s. Contain the information required by 23 C.F.R. § 771.19

(i) (1980) (Count Forty-two) ;

b. Discuss non-highway alternatives (Count Thirty-

eight).

6. Whether the Secretary’s approval of the 4(f) State-

ment was based upon adequate information regarding non-

highway alternatives (Count Thirty-seven).

7. Whether the Secretary properly concluded that no

feasible and prudent alternatives exist to the use of the

park (Counts Forty-three, Forty-four, Forty-five and

Forty-six) ; and

8. Whether the 4(f) statement is deficient because it fails

to demonstrate that all possible planning to minimize harm

to the park has been done (County Forty-one).

68a

J. Section 4(f)—Pali Golf Course.

Whether the Secretary’s section 4(f) determination for

the Pali Golf Course was proper (Count Forty-eight).

IV. STANDARD OF REVIEW

This court’s role in evaluating compliance

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