# Petition for Writ of Certiorari — Yamasaki v. Stop H-3 Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2114%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1108 ## Text Py P 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, v. 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 i 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. rH ‘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 iv 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 . * _ > . . * 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, 3a 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). 4a 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). 5a 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 6a 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 Ta 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. 8a 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 9a 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.”’ i 4 : 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 ‘) If it was a violation of applicable regulations and statutes to hold combined location and design hearings, is the proper remedy to invalidate corridor approval and order new separate corridor and design public hearings? 2823 C.F.R. § 1.2 (1980) states in relevant part: (a) Terms defined in 23 U.S.C. 101(a) shall have the same meaning where used in the regulations in this part, except as modified herein. (b) The following terms where used in this part shall have the following meaning: Project. An undertaking by a state highway department for highway construction, including preliminary engineering, ac- quisition of rights-of-way and actual construction, or for high- 98a A highway connecting two logical termini may be con- sidered a single project for planning purposes, even though the construction phase may be broken down into several separate contracts. See Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974). With respect to location approval, this court has pre- viously held that the H-3 ‘‘project’’ encompasses the entire highway connecting the Halawa and Halekou interchanges. [W]hatever administrative convenience may be served by dividing the proposed highway into segments, for purposes of public hearings it is one project. Con- struction of the Leeward segment up to the Koolau Mountains makes no sense without the Windward segment up to the other side of the Koolau Mountains, and neither segment makes sense unless both are con- nected by a tunnel through the mountains. Statement of Facts Conclusions of Law and Order, July 13, 1973. Further, in the Order Interpreting Injunction issued April 21, 1981, this court ruled that the NHV and Moanalua Valley alignments of H-3 were alternate rout- ings of the same project. 23 C.F.R. §790.5(g) (1980) permits combined corridor and design hearings to be held for projects which have had prior public hearings.” Public hearings were held for way planning and research, or for any other work or activity to carry out the provisions of the Federal laws for tne ad- ministration of Federal aid for highways. 7° Although the regulations contemplate that a design public hearing will be held after the route location has been approved, see 23 C.F.R. § 790.3(b) (1980), 23 C.F.R. § 790.5(g¢) (1980) states : (g) With respect to any project for which a public hearing has been held under Federal-aid procedures, and for which it is determined by the State highway department and the 99a the Moanalua alignment of the project. It was therefore proper for defendants to combine the corridor and design hearings for the NHV alignment. Since a valid design hearing was held, design approval was not improper on the grounds asserted in this cause of action. 3. Adequacy of Study Reports. A request for location or design approval must be ac- companied by reports and other documents which, inter alia, discuss the anticipated economic, social, and environ- mental effects of the proposed action and alternatives un- der consideration. 23 C.F.R. §§ 790.9(c), 790.8(b) (2) (i) (1980). The H-3 Location/Design Study Report, NHV- SEIS, 1973 Preface and 1972 EIS were submitted as evi- dence of compliance with this requirement. Plaintiffs chal- lenge the adequacy of these reports with respect to socio- economic impacts and infrastructure availability. As more fully discussed in part V.B.3., supra, the EIS adequately discusses the socio-economic impacts of the project. Similarly, I find that defendants reasonably con- cluded that the extensive planning process for Oahu in general and the windward side in particular will insure that future infrastructure requirements will be met. Division Administrator that a new hearing is desirable to consider supplemental information on social, economic, or en- vironmental effects relative to proposals presented at a pre- vious public hearing to with respect to additional proposals, then, as appropriate, a new corridor or design hearing should be held. When recommended by the State and approved by the Division Administrator, a new corridor hearing held in accordance with this section may be combined with the design hearing, whether or not a design hearing for the project has been previously held. In such instances, the location shall be reconsidered and a new request for location approval shall be submitted together with the request for design approval. {emphasis added] 100a 4. Timeliness of Study Report Filing. Location and design approval is governed by 23 C.F.R. part 790 (1980). If location or design approval is not requested within three years after the date of the respec- tive hearings, new hearings must be held. 23 C.F.R. §§ 790.5 (d), (e) (1980). Location/Design hearings were held from December 12- 15, 1977. Location/Design approval was requested on De- cember 10, 1980. Although the reports and studies analyz- ing the project were somewhere within the FHWA bu- reaucracy on the date of the request, they did not arrive at FHWA Region 9 Office (the office where the request for approval was filed) until between two and five days after the three-year time period for requesting approval had lapsed. The decision to proceed with the project was not made until all of the required documents had been sub- mitted. The stipulated question for this cause of action is whether the applicable regulations require that the appro- priate documentation physically accompany a request for location/design approval, or whether it is sufficient that such documentation may be found as of the day of the request somewhere in the FHWA bureaucracy. To hold that the three year period during which location or design approval may be requested is tolled only when all of the documents supporting the request are physically present in the particular FHWA office where the request is filed would inject a needless technical requirement into an already complex process. I conclude that it is sufficient that the dovuments are in the hands of and have been previously reviewed by the FHWA at the time of the request. 10la F. OMB Circular A-95 Compliance. Office of Management and Budget (‘‘OMB’’) Circular A-95 (revised), 41 Fed. Reg. 2052 (Jan. 13, 1976), pro- vides for coordination between Federal, state and local agencies with respect to Federal and federally assisted projects. 23 C.F.R. part 420, subpart C, implements the regula- tions in OMB Circular A-95 with respect to FHWA and Urban Mass Transit Administration (‘‘UMTA’’) projects. 23 C.F.R. part 450, subpart A, defines the relationship between state Metropolitan Planning Organizations (**MPOs’’) and s.cte A-95 coordinating agencies. I find that the Defendants have complied with the above-de- scribed coordination requirements. G. Endangered Species. 1. The Oahu Creeper. This cause of action raises two legal issues: (1) whether or not the biological opinion issued by the USFWS regard- ing the impact of the H-3 project upon the Oahu Creeper was inadequate or otherwise improper as a matter of law and (2) whether defendants are under a legal obligation to continue the biological consultation process with the USFWS. As an initial matter, the USFWS is not a party to this lawsuit, so even if the biological opinion had been legally erroneous, this court would not have the power to force the USFWS to reconsider its decision or reinitiate con- sultation. Nevertheless, defendants have demonstrated that they have met their initial consultation responsibilities under the Endangered Species Act. On September 11, 1978, the USFWS issued a formal biological opinion, pursuant to section 7(b) of the En- 102a dangered Species Act, that the H-3 project was not likely to jeopardize the continued existence of the Oahu Creeper. Plaintiffs contend that this opinion was ‘‘arbitrary, ca- pricious, an abuse of discretion, a clear error in judgment and otherwise not in accordance with law.’’ Complaint 7 355 at 74. 50 C.F.R. § 402.04 (1980) governs the consultation pro- cess under the Endangered Species Act. Plaintiffs do not allege, nor do I find, that defendants violated the proce- dural requirements of this regulation. Rather, plaintiffs argue that the conclusion reached by the USFWS was clearly erroneous and based upon inadequate information. The facts do not support either of these contentions. The USFWS biological opinion was based upon Dr. Robert Schallenberger’s 1978 Avifaunal Study, NHV-SEIS vol. VI app. K. The study took place from December 1977 through February 1978. During this period, only one posi- tive and two possible sightings of the Oahu Creeper occurred in the North Halawa Valley. While it is true that conditions for bird sighting were suboptimal at the time of the survey, it cannot be concluded that as a matter of law the survey data was insufficient to support a biological opinion or that the conclusion drawn from the data was clearly erroneous. Based upon the survey, the USFWS could reasenably have concluded that the H-3 project is not likely to jeopardize the existerce of the Oahu Creeper. Even a biological opinion based upon inadequate infor- mation would not have been per se invalid. In the case of an incomplete opinion rendered upon inadequate informa- tion, the law merely imposes upon the Federal agency the continuing obligation to make a reasonable effort to develop that information. North Slope Borough v. Andrus, 486 F. Supp. 332, 352 (D.D.C.1979), mod. on other grounds, 642 F.2d 589 (D.C.Cir.1980); H.Conf.Rep. No. 96-697, 96th Cong., Ist Sess., reprinted in [1979] U.S. Code Cong. & Ad.News 2557, 2576; 50 C.F.R. § 402.04(f). 103a The issue of data adequacy was decided by the USFWS when it issued its formal biological opinion. It may be true that the decision was not clear-cut, but this court must defer to the reasonable conclusion stated in the biological opinion letter: In essence, we have very little data for providing an opinion but feel it would be unreasonable to request a study which would be unlikely to provide definitive results. [emphasis added] Pursuant to 50 C.F.R. § 402.04(e), once the USFWS has issued its biological opinion, no further consultation is required. In their request for formal consultation regard- ing the Achatinella, Defendants inquired of the USFWS whether further consultation was required. By letter dated October 7, 1981, the USFWS responded that no further consultation was necessary. 2. The Cyrtandra. Section 7(c)(1) of the Endangered Species Act states in relevant part: To facilitate compliance with the requirements of this section, each Federal agency shall, with respect to any agency action of such agency for which no con- tract for construction has been entered into and for which no construction has begun on November 10, 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action [a ‘‘section 7(c) species list’’]. [emphasis added] 16 U.S.C. §1536(c)(1) (as amended 1978). Defendants did not make such a request until October 2, 1981. 104a Plaintiffs contend that if a timely request for the Section 7(c) species list had been made, then (1) defendants would have been apprised that new species of the Cyrtandra may exist in North Halawa Valley; (2) defendants would have discovered these new species; and (3) these species would have been placed on the Section 7(c) species list. With respect to this cause of action, Plaintiffs urge the court to block development of H-3 until the defendants have completed forma! biological consultation with the USFWS, addressing the new species of the Cyrtandra, pursuant to sections 7(a) and (b) of the Endangered Species Act. Ié is undisputed that the new species of Cyrtandra are neither listed nor proposed to be listed as endangered species. Formal consultation addressing these species is thus clearly not required under the ESA. Further, it is doubtful that the provision underlying this cause of action is even applicable to defendants, since it only applies to agency action for which no contract for construction has been entered into and for which no construction has begun on November 10, 1978. As noted before, construction of the H-3 project (the Halawa and Halekou interchanges) began in 1972. 3. The I’iwi. The I’iwi [a Hawaiian bird] is considered endangered on Oahu. It is not considered endangered on any of the other islands in this state, nor is it listed as an endangered species by the USFWS. Plaintiffs contend that construct- ing H-3 through the North Halawa Valley will destroy the habitat of the I’iwi, thereby ‘‘taking’’ it in violation of Haw.Rev.Stat., Chapter 195D.” °° Haw.Rev.Stat. § 195D-4(e) states in relevant part: Prohibited acts. With respect to any endangered species of 195a The enforcement provision of Haw.Rev.Stat., Chapter 195D states that: Any employee or agent of the department upon whom the board of land and natural resources has conferred powers of police officers, including the power to serve and execute warrants and arrest offenders or issue citations throughout the State, and any police officer of the counties of this State shall have the au- thority to enforce any of the provisions of this chapter or any regulation or rule promulgated pursuant hereto. § 159D-7 [sic], Haw.Rev.Stat. Since the statute contains a specific enforcement provi- sion, I conclude that a private right of action does not exist." Further, an injunction would be an inappropriate remedy even if Plaintiffs did have a private right of action, since 4 195D-9, Haw.Rev.Stat., provides criminal sanctions for violation of the chapter. Finally, even if a private right of action did exist, it does not appear that constructing H-3 through North Halawa Valley will ‘‘take’’ the I’iwi. As defined in § 195D- 2(j), ‘‘take’’ means to ‘‘harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect endangered species of wildlife ... or to attempt to engage in any such conduct’’. Destruction of habitat is not covered by the statute. wildlife or plant, it is unlawful, ..., for any person subject to the jurisdiction of this State to: (2) Take any such species within this State ; 32 In relevant part, Haw.Const. art. XI, § 9 states: Any person may enforce this right [to a clean and healthful environment] against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. [emphasis added] Plaintiffs argue that this provision entitles them to a private right of action. I find that it does not. 106a H. Coastal Zone Management. Pursuant to the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. § 1451 et seq., and its implementing regulations, 15 C.F.R. part 930 (1981), Federal agencies are required to conduct their activities in a manner con- sistent with state CZM programs. Agency actions are divided into four categories: (1) Federal Activities, 15 C.F.R. part 930C; (2) Activities Requiring a Federal License or Permit, 15 C.F.R. part 930D; (3) Outer Continental Shelf Exploration, Develop- ment and Production Activities, 15 C.F.R. part 930E; and (4) Federal Assistance to State and Local Governments, 15 C.F.R. part 930F. ; H-3 falls into category (4), Federal Assistance. See Pro- cedures Guide for Achieving Federal Consistency with the Hawaii Coastal Zone Management Program, at exh. ‘‘B’’. I find that Defendants have fully complied with the re- quirements of the CZM statutes and regulations. Plaintiffs’ other contentions with respect to this cause of action are without merit. I. Section 4(f)—Ho’omaluhia Park Background. Ho’omaluhia Park began as a flood control project de- veloped by the Army Corps of Engineers. Between 1966 and 1970, when the flood control project was authorized, the concept of the park was expanded from approximately 35 acres of ‘‘green-belt’’ surrounding the flood-control dam and reservoir, to 75 acres. 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 highwav was to act as a “‘ buffer zone’’ between the two projects. This area was subsequent- ly purchased by the City and County and incorporated 107a into the project, making th2 boundary of the park con- tiguous with the proposed highway right-of-way. A master plan for the park was adopted in February, 1974. The plan restricted all of the park’s intensive uses, t.e., camping and picnicking, to the interior 115 acres of the park. The in- tensive use area is isolated from the highway by a periph- eral park circulation road and a low density recreational use zone (primarily trails and open space). 1. Motion to Reconsider Defendants contend that since the park boundaries were determined after the freeway alignment was established, the protections of 4(f) should not apply. Their argument is not without merit. As noted above, the park design took into account the potential impacts of the freeway. In addi- tion, the flood-control reservoir was sized to accommodate the inflow of sediment resulting from the construction of the highway, and landscaping and other measures are planned to visually shield the park from the highway. Defendants also argue that to extend the coverage of the 4(f) statutes to include parks which are planned concur- rently with highways would discourage the development of such parks. While defendants’ arguments are intuitively appealing, their position is contrary to the explicit statutory mandate that the Secretary not approve any program or project which requires the use of parkland unless the provisions of the 4(f) statutes are complied with. The 4(f) statutes were enacted to prevent public parks from being converted into masses of concrete and asphalt. As stated in Overton Park, 401 U.S. at 412, 91 S.Ct. at 821. [T]he very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly un- 108a usual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. [footnotes omitted] Id. More specifically, These statutes prohibit the Secretary of Transporta- tion from authorizing the use of federal funds to fi- nance the construction of highways through public parks if a ‘‘feasible and prudent’’ alternative route exists. If no such route is available, the statutes allow him to approve construction through parks only if there has been all possible planning to minimize barm”’ to the park. [footnotes omitted] Id. at 405, 91 S.Ct. at 817. The statutory protections of 4(f) have been judicially extended to include constructive use as well as physical taking of parkland. See, e.g., Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972). Constructive use is not an easily defined concept. The fact that traffic noise can be heard or that a highway can be seen from a park does not necessarily mean that the park is being ‘‘used’’ by the highway. The degree or existence of constructive use depends upon both the nature of the park and the degree of impacts from the highway. For example, a park circulation road or parking lot would be much less affected by highway noise than would a picnic area or campsite. Mitigation measures such as landscaping and noise barriers may reduce the impact of a highway sufficiently to eliminate park ‘‘use’’. However, absent strict application of the 4(f) statutes, highway departments would have no incentive to take such measures, especially 109a where it would be costly to implement them. Application of section 4(f) is thus appropriate in this case. The fact that a park and a highway are jointly developed may be sufficient to establish that there are no feasible and prudent alternatives to the use of such park. At the very least, joint development should simplify efforts to minimize harm to the park.*? However, for the reasons stated above, defendants’ Motion to Reconsider is denied. 2. Delegation For the reasons stated in the section discussing delega- tion of the preparation of the EIS, supra, I hold that prep- aration of the Ho’omaluhia Park 4(f) statement was not improperly delegated. 3. Coordination. The following facts with regards to this cause of action are not disputed: (1) Ho’omaluhia Park was developed by the Corps of Engineers in conjunction with its Keapuka flood control project; (2) during this period, the Corps of Engineers had control of the park property; (3) in May, 1981, the Corps of Engineers turned over control of the 32To a degree, this problem is alleviated by the DOT regula- tions. 23 C.F.R. § 771.135(g) (1981) states in relevant part: Designations of park and recreation lands . . . are some- times made and determinations of significance changed late in the development of a proposed action. [A]n action may proceed without consideration under section 4(f) if the prop- erty interest in the section 4(f) type lands was acquired for transportation purposes prior to the designation or change in the determination of significance and if an adequate effort was made to identify properties protected by section 4(f) prior to project approval. The earlier version of this regulation, 23 C.F.R. § 771.19(g) (1980), was similarly, although less restrictively worded. 110a park property to the City and County of Honolulu; (4) coordination of the 4(f) statement occurred prior to May, 1981; (5) the 4(f) statement was coordinated with the City and County of Honolulu, and not with the Corps of Engineers; (6) throughout the relevant period, the City and County of Honolulu has held fee title to the Park property; and (7) the City and County of Honolulu pres- ently operates and manages the Park. The legal issues are: (1) whether defendants were re- quired to coordinate the 4(f) statement with the Corps of Engineers; and (2) if so, whether the violation may be excused by a showing of good faith and lack of preju- dicial effect. 293 C.F.R. §771.19(g)(1) (1980) requires that ‘‘[t]he section 4(f) involvement must be coordinated with the agency having jurisdiction over the 4(f) lands.’’ Plaintiffs contend that the Corps of Engineers had either exclusive or joint jurisdiction over the Ho’omaluhia property while the 4(f) statement was being prepared. Defendants’ sub- mit aiternatively that (1) as fee owner and ultimate man- ager and operator of the Park, the City and County was the sole agency with jurisdiction over the property; or that (2) since the regulation only refers to coordination with the agency having jurisdiction over the property, it was reasonable for them to coordinate the 4(f) statement with only the primary agency having jurisdiction, the City and County. The Corps of Engineers developed the park pursuant to a contract with the City and County of Honolulu. Although the Corps of Engineers handled the design and construc- tion work for the project, the City and County held ulti- mate control, as evidenced by their successive decisions to enlarge the project. Indeed, it was the City and County’s decision to extend the Park boundaries to the edge of the H-3 right-of-way that triggered the protections of section llla 4(f). Clearly, the City and County was ‘‘the agency having jurisdiction’’ of the property, and coordination of the 4(f) statement with them: was therefore proper.* 4. Circulation. The issues raised by this cause of action are (1) whether the applicable regulations permitted Defendants to circu- late the Ho’omaluhia 4(f) statement separately from the NHV-SEIS; and (2) if so, whether the 4(f) statement should have been circulated in the form and manner of a supplemental EIS. Under ordinary circumstances, a 4(f) statement will be prepared and circulated with the corresponding project EIS. However, 23 C.F.R. § 771.19(g) (8) (i) (1980) provides for separate circulation of the 4(f) information when ‘*[t]he section 4(f) area is designated after the . . . final KIS is processed.’’ Since the final Moanalua EIS was approved in 1974 and it was not determined that a 4(f) statement was required for Ho’omaluhia Park until 1978, it follows that separate circulation of the 4(f) statement was proper. 23 C.F.R. §771.19(g)(8) does not specify the manner in which a separate 4(f) statement is to be circulated. Defendants contend that since the final 4(f) statement was processed in conjunction with the Final NHV-SEIS, then either as a matter of law or as a reasonable interpretation of the applicable regulations, it was sufficient that the 4(f) statement was only circulated to the agencies with whom the FHWA was required to coordinate preparation of the statement. ** It cannot be disputed that the City and County presently has sole jurisdiction over the Park. Thus, even if defendants should have coordinated the 4(f) statement with the Corps of Engineers, Plaintiffs would be without a remedy, since the proper agency for coordination is the City and County. 112a Defendants’ contention is not without merit. However, where, . here, a project’s involvement with 4(f) lands is sufficient to constitute ‘‘new and significant information’’ requiring the preparation of a supplemental KIS, see dis- cussion under part V.C.3., supra, the 4(f) statement must be circulated as a supplemental EIS. This manner of circu- lation is clearly contemplated by the regulations. See 23 C.F.R. §771.19(g)(5) (1980). 0. Adequacy. Plaintiffs contend that the Ho’omaluhia 4(f) statement is inadequate because it fails to contain all of the informa- tion required by 23 C.F.R. §771.19(i) (1980). The forty- second cause of action recites a litany of items which alleg- edly are not addressed by the 4(f) statement. It is true that the 4(f) statement could have contained more information. However, the same can be said of any environmental document. Further, much of the omitted information will only be available once the design of the highway is finalized. Accordingly, I find that the Ho’omalu- hia 4(f) statement contains sufficient information to comply with 23 C.F.R. § 771.19(i). The thirty-eighth cause of action alleges that the Ho’- omaluhia 4(f) statement is inadequate because it fails to sufficiently address non-highway alternatives to the con- struction of H-3. This contention is without merit. A 4(f) statement need not reiterate in detail the reasons why a highway is necessary. As is the case here, it is sufficient that the non-highway (no-build) alternatives are adequate- ly addressed in the EIS or other documents considered by the Secretary. 6. Approval. The thirty-seventh cause of action is based upon the assumption that the 4(f) statement was invalid for failure 113a to contain sufficient information regarding non-highway alternatives. As discussed above, the 4(f) statement suffi- ciently addressed the no-build alternative. At trial, De- fendants offered evidence that in reaching his decision, the Secretary considered, inter alia, (1) the Ho’omaluhia Park 4(f) Statement; (2) Vol. I of the 1972 EIS; Vol. I of the NHV-SEIS; and the FHWA Region 9 Staff Analysis. It thus cannot be concluded that the Secretary’s decision was based upon inadequate information. 7. Feasible and Prudent Alternatives. The forty-third through forty-sixth causes of action chal- lenge the correctness of the Secretary’s determination that no feasible and prudent alternative exists to the use of Ho’omaluhia Park. It should be recalled that the two elements of the 4(f) statutes are that: (1) parklands cannot be used unless all alternatives to their use are infeasible and imprudent; and (2) if parklands must be used, the Secretary must select the feasible and prudent alternative which minimizes harm to the park. An alternative route which does not use the park cannot be found to be imprudent unless there are truly unusual factors present in a particular case or the cost or com- munity disruption resulting from alternative routes reaches extraordinary magnitudes. Jd. at 412, 91 S.Ct. at 821; Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1979). An alternative route which uses the park may be re- jected if it is infeasible or imprudent or does not minimize harm to the park. Two separate reasoning processes are involved here: A route may be rejected because it does not minimize harm only for reasons relevant to the quantum of harm ll4a which will be done to the recreational area. If it does minimize harm, a route may be rejected only for truly unusual factors other than its effect upon the recrea- tional area. Td. at 86. The Ho’omaluhia Park 4(f) statement considered five alternatives to the recommended alignment for the portion of H-3 in the vicinity of Ho’omaluhia Park: (1) Mauka Realignment (Scheme A); (2) Makai Realignment (Scheme B); (3) Partial Depressed Section; (4) Viaduct Section; and (5) No-Build. Of these, the Makai Realignment, Par- tially Depressed Section, and No-Build alternatives would not have any impact upon Ho’omaluhia Park.* Plaintiffs assert that the Mauka Realignment, Makai Realignment, and No-Build alternative are feasible and prudent alter- natives to the recommended alignment. For the Mauka Realignment, the highway would be realigned approximately 500 feet away from the present boundary of Ho’omaluhia Park toward the mountain (mauka direction). The location of the Kaneohe and Ha- lekou interchanges would be the same as in the recom- mended alignment. Due to the topography of the area, the roadway would be approximately 100 feet higher than in the recommended alignment. This alternative was rejected because : [I]t would negate the originally intended purpose of the common boundary to eliminate the urbanization of land between the park and H-3. To avoid urbani- zation of the resulting 92-acre tract, it is likely that 3*The partially depressed section (partial cut and cover sub- alternative) would have cost approximately $66 million more than the recommended alignment. The Secretary could reasonably have believed this to be a cost of extraordinary magnitude. Plaintiffs do not contend that this alterntive is prudent. 1l5a the State may be required to purchase the land for inclusion in the park or the land may be purchased by the city or county. The result would again be a common boundary of the park and H-3 causing a ‘‘constructive use’’ Section 4(f) determination. In ad- dition, it would require additional construction costs (approximately $6 million), cause increased noise above the ambient levels within the park because of the physical relationship of the highway and park elevations, be more visible from the park, take addi- tional lands out of banana production, and move the highway closer to the Koolau Pali Natural Landmark. Ho’omaluhia Park Section 4(f) Determination at 3. For the Makai Realignment, the highway would be re- aligned makai, or to the ocean side, of Ho’omaluhia Park. It would follow the existing alignment of Likelike High- way and Kamehameha Highway on the viaduct structure from the Kaneohe Interchange to the Halekou Interchange. This alternative was rejected 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 re- quire construction to lesser design geometric standards. Td. at 3. The described no-build alternative considered the effect of not constructing H-3 at all. This alternative was re- jected because a no-build decision would: [RJesult in additional traffic congestion and increased delays experienced by windward commuters. Likewise, the increased safety hazards on Likelike and Pali 1l6a Highways would directly affect Kalihi Valley and Nuuanu Valley residents. The costs of providing in- creased bus service which will not effectively reduce the congestion on the existing highways have been documented in the supplement to the Interstate H-3 KIS. At trial, plaintiffs suggested that another ‘‘no-build”’ alternative would be to not construct the portion of H-3 between the Kaneohe and Halekou interchanges. Defend- ants established that this alternative was essentially the same as the Makai realignment. The final alternative suggested by plaintiffs is the so- called ‘‘direct line’’ realignment. This alternative was created by @rawing a straight line from H-3 near Hospital Rock to Kamehameha Highway near Kaneohe School, totally ignoring considerations of traffic flow, safety and terrain. Plaintiffs did not introduce any evidence which suggested that this alternative might be viable. Defendants testified that due to the terrain of the area, such an align- ment would require a viaduct structure between 100 and 200 feet high. It is obvious that even plaintiffs do not seriously believe that this alternative is feasible or pru- dent. Accordingly, further consideration of this alignment is unnecessary. With respect to the first part of the 4(f) inquiry, I find that the Secretary reasonably believed that there are no feasible and prudent alternatives to the use of Ho’omaluhia Park. As discussed earlier, defendants have sufficiently estab- lished the need for the highway. Rejection of the no-build alternative was thus reasonable. The Makai Realignment was also properly rejected. Contrary to plaintiffs’ contention, community impacts may be considered in determining the prudence of an alterna- 117a tive. While the displacements resulting from the Makai Realignment are not, by themselves, sufficient reason to justify the use of parkland, I find that the Secretary could reasonably have believed that the sum of the factors listed rendered this alternative imprudent. In particular, the Makai Realignment would necessitate reducing design speeds on the through route from 55 MPH to 30 MPH and require an unusually complex and unsafe ramp configura- tion. This is not to say that the Secretary is permitted to weigh the detriment resulting from the destruction of park- land against the cost of other routes, safety considerations and other factors. Such a balancing of interests is express- ly prohibited by Overton Park. However, Overton Park does not bar considering whether all of the difficulties posed by an alternative route, taken together, render that alternative imprudent. Since it appears that there are no feasible and prudent alternatives to the use of Ho’omaluhia Park, the remain- ing issue is whether the recommended alignment minimizes harm to the park. Rejection of the Mauka Realignment was proper only if (1) it was not feasible and prudent, or (2) if it does not minimize harm. I find that there is insufficient information in the record to support rejection on either of these grounds. The possibility that the buffer zone between the highway and the park may be added to the park, again creating a constructive use, is a legitimate consideration in deter- mining the prudence of this alternative, although in this matter, it is not a sufficient reason for rejection. As noted above, the park has expanded to meet the boundary of the project right-of-way. This situation was probably not con- templated by either the drafters of the 4(f) statutes, or the Court in Overton Park, which involved the proposed construction of a freeway through an important urban 118a park. The removal of land from banana production is also a permissible consideration, but not determinative. On the other hand, the 4(f) statement does not demon- strate that moving the freeway closer to the Koolau Pali Natural Landmark will have any adverse effects. Further, an increase in construction costs of $6 million is probably not a cost of ‘‘extraordinary magnitude’’. Finally, the fact that park noise levels will be higher with the highway than without it is irrelevant in determining the prudence of an alternative. I conclude that the Secretary could not have reasonably determined, on the basis of the information before him at the time, that the Mauka Realignment was not ‘‘feasible and prudent’’. I conclude that the Secretary properly found that there are no feasible and prudent alternatives to the use of Ho’omaluhia Park. However, the Ho’omaluhia Park 4(f) determination fails to establish that the Secretary selected the feasible and prudent alternative which minimizes harm to the park. Although it is possible that because of its elevation the Mauka Realignment will have a greater visual impact upon the park than will the recommended align- ment, the 4(f) statement does not adequately support the assertion that it would not minimize total harm to the park. The Secretary’s 4(f) determination must therefore be set aside. 8. Planning to Minimize Harm. The forty-first cause of action alleges that: 508. The Ho’omaluhia Park statement is deficient and fails to comply with the requirements of [23 C.F.R. § 771.19(k) (1980)] in that the 4(f) statement does not contain the best available information on possible measures to minimize harm from H-3 to Ho’- omaluhia Park both during and after construction. [emphasis in original] Complaint 1; uv8 at 108. 119a Except to the extent that the 4(f) statement fails to support the determination that the Recommended Align- ment is a harm-minimizing route, I find that the informa- tion contained in the 4(f) statement is sufficient to meet the requirements of the cited regulation. More specific planning of mitigation measures will not be possible until the project reaches the final design phase. J. Section 4(f)—Pali Golf Course. In 1974, I held that the Secretary had properly made the 4(f) determination for the use of Pali Golf Course land. Stop H-3 Association v. Brinegar, 389 F.Supp. at 1116. Pursuant to the instructions of the Ninth Circuit, I now reconsider that decision. Pali Golf Course is a 220 acre, 18 hole golf course located at the foot o7 the Nuuanu Pali Lookout. It is considered one of the most challenging public courses on the island and is heavily used. The northeast side of the golf course borders on Kamehameha Highway. As presently planned, the SE ramp of the Halekou in- terchange and the acceleration lane connecting the SE ramp with Kamehameha Highway will necessitate the acquisition of approximately four acres of golf course land at the northwest end of the course. Much of the land to be acquired is subject to periodic flooding and is con- sidered surplusage to the needs of the course. The Pali Golf 4(f) statement described and discussed three alter- natives to the recommended action, and recommended that they be rejected, as follows: Alternate 1—shifting the MHalekou Interchange northerly into Hawaiian Electric Company’s Koolau Substation. This alternate was rejected because it would involve costly adjustments to electrical facilities, such as steel towers and high-tension lines. Such a shift would also encroach a great deal more into Ha- 120a waiian Memorial Park. Where our recommended loca- tion involves unused property on a slope, a northerly shift would run the highway through developed por- tions of the cemetery. It should also be noted that con- struction is progressing on the segment of H-3 im- mediately to the east of Halekou interchange, and any extensive realignment to Halekou Interchange will ne- cessitate construction changes. As mentioned before, the affected golf course properties are presently un- used, and realignment of Halekou Interchange will not provide any benefit to the golf course. Alternate 2—revising the interchange geometrics to provide a loop off-ramp directly opposite the golf course on Hawaii Loa property. ... Such an arrange- ment will be more costly by approximately $145,000 and constitute a much greater encroachment into Hawaii Loa College. This proposal is also objection- able from an operational standpoint because it would introduce an undesirable weaving section to Kameha- meha Highway. Alternate 3—providing a T-intersection where the SE and SW Ramps meet Kamehameha Highway. This proposal has the advantage of eliminating the acceler- ation land onto Kamehameha Highway, thereby mak- ing the acquisition of golf course land along the Kamehameha Highway frontage unnecessary. How- ever, this alternate is operationally unacceptable be- cause the T-intersection will not have the capacity for the projected 800 vehicles per hour of P.M. traffic desiring to make a right turn onto Kamehameha Highway. ; Pali Golf Course 4(f) statement at 5-6. I find that the Secretary reasonably rejected alternates one and three as not feasible and prudent. It is apparent that Alternate 1, the northward shift of the interchange, 12la would increase the project’s impacts upon Ho’omaluhia Park. Thus, even if I did find that the reasons stated for the rejection of this proposal were inadequate, I wouid conclude that this alterantive was not feasible and prudent. Moreover, I find that encroachment into the developed portions of Hawaiian Memorial Park is of sufficient impor- tance that rejection on this ground alone would have been reasonable. With respect to Alternative 3, I find that the Secretary had enough information before him to conclude that a T-intersection would be operationally unacceptable. The Pali Golf Course 4(f) statement fails to support the rejection of Alternate 2, revised interchange geo- metrics. $145,000 is not a cost of extraordinary magnitude, especially in comparison to a total project cost of over $386 million. While it may indeed be regrettable that this alternative will require the taking of property from Hawaii Loa Coliege, there has been no evidence that this taking would entail a disruption of sufficient magnitude to render the alternative imprudent. Finally, there has been no evi- dence that to ‘‘introduce an undesirable weaving section to Kamehameha Highway’’ is an unusual factor justifying rejection of the alternative. Even taking all three factors together, I find that on the basis of the record before me, the Secretary could not have reasonably believed that this alternative is imprudent. As with Ho’omaluhia Park, the inquiry does not end with the determination that there are no feasible alterna- tives to the use of the 4(f) proper». The Secretary must select the alternative which minimizes harm to the park. On the basis of the record before me, I cannot conclude that this has been done. The Pali Golf Course 4(f) state- ment does not adequately describe the relative impacts of the different alternatives upon the Golf Course. Indeed, the statement fails to even disclose the relative amounts of 4(f) land required. I conclude that the Secretary’s 4(f) 122a determination for the Pali Golf Course must be set aside.** ** VI. SUMMARY. A brief summary of the disposition of the major issues of this case is in order. I find that the 1972 EIS and 1973 Preface, 1.e., the Moanalua Valley EIS, complied with the requirements of NEPA, the CEQ Guidelines and the DOT Regulations, and were properly approved. Thus, as of the end of the 1974 trial of this matter, the project had a valid EIS. Defendants were required to prepare a supplemental EIS to reflect the realignment of the project through North Halawa Valley. This has been done. The NHV-SEIS was properly prepared and circulated, and adequately discusses the project’s impact upon North Halawa Valley. As a whole, the EIS for the project sufficiently addresses the project’s socio-economic impacts and relationship to the Oahu General Plan. However, defendants have failed to prepare a further supplemental EIS which reflects the new and significant information (such as the H-3/OMEGA Collocation studies, the FHWA Region 9 Staff Analysis and the highway’s 4(f) involvement with Ho’omaluhia Park), which has arisen since the draft NHV-SEIS was circulated. Defendants properly held combined location and design hearings, timely filed the required study reports, and com- plied with the Coastal Zone Management Act and OMB **T do not mean to imply that the Secretary may not reject Alternate 2. I only find that the record contains insufficient infor- mation to support such a conclusion. ** Because the Pali Golf Course 4(f) statement was prepared and originally approved prior to the adoption of the original DOT 4(f) regulations, 23 C.F.R. § 771.19 (1974), the statement need not comply with the circulation and content requirements of the regulations. 123a Circular A-95 coordination requirements. Defendants have also met their responsibilities with respect to the Federal and State Endangered Species Acts. The protections of section 4(f) apply to Ho’omaluhia Park. The defendants properly coordinated and prepared the Ho’omaluhia Park 4(f) statement, but failed to prop- erly circulate it. The 4(f) statement contains sufficient in- formation to comply with 23 C.F.R. $771.19(i) and (k) (1980), and adequately considers non-highway alternatives. The Secretary properly concluded that no feasible and prudent alternatives exist to the use of the park. However, the 4(f) statement does not adequately support the finding that all possible measures have been taken to minimize , harm to the park. The Secretary’s determination is thus invalid. The Secretary’s Pali Golf Course 4(f) determination is invalid because the record does not adequately support the conclusion that all possible measures have been taken to minimize harm to the golf course. Because the defendants failed to further supplement the EIS, and because the Secretary’s Pali Golf Course and Ho’omaluhia Park 4(f) determinations were invalid, I must set aside the Secretary’s grant of location and design approval as an action taken without observance of pro- cedure required by law. Administrative Procedure Act, 5 U.S.C. § 706(2)(D) (1977). See Save Lake Washington v. Frank, 641 F.2d at 1334. Since the most recent location and design hearings were held more than three years ago, de- [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2114%3A1. Public record. Not legal advice.