Section 4(f) of the 1966 Transportation Act

"It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." [emphasis added]
– 82 Stat. 824, 49 U.S.C. 1653 (f)

"Next to the National Environmental Policy Act (NEPA), Section 4(f) has been the most frequently litigated environmental statute in the Federal Highway Program.
"Section 4(f) has been the most frequent cause of court injunctions halting highway projects."
-- Maryland State Highway Adminstration, Section 4(f) interactive training, "legal overview," (2003) www.section4f.com/case_studies.htm

"Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary [of Transportation]. But the very existence of the statutes [4f] 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 unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extra-ordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems."
– U.S. Supreme Court, "Citizens to Preserve Overton Park v. Volpe," 401 U.S. 402 (1971)

 

Section 4(f) of the 1966 Transportation Act is one of our most important, and strongest environmental laws. Indeed, the FHWA report "Summary of Environmental Legislation Affecting Transportation" (http://www.fhwa.dot.gov/environment/env_sum.htm) lists 4(f) second, only after the National Environmental Policy Act of 1969 (which requires the Environmental Impact Statement process, among other things).

4(f) is not merely a procedural law that merely forces adequate disclosure of impacts -- it requires avoidance of destruction, with minimization of impacts if avoidance is not possible. It is a tough hurdle that has prevented many highway boondoggles, protected many public parklands, and forced highway departments from coast to coast to scale back many of their proposals to be more compatible with the surrounding environment.

4(f) prohibits the use of federal transportation dollars in park, recreation area, or wildlife and waterfowl refuges, and historic sites. It is not necessary for a public property to be called a "park" or a "refuge" to receive 4(f) protection if the land functions as a refuge.

4(f) is not a blanket prohibition on using park lands - it merely is a tool to reduce impacts if the highway can be shown to be unavoidable. However, this reduction can include a shift in alignment from going through the heart of a park to clipping the edge of one, or a change in design feature in the highway to reduce park impacts.

An avoidance alternative to the "use" of Section 4(f) land has to meet the "purpose and need" specified in the proposal's Environmental Impact Statement. Most of these purpose and need statements are narrowly crafted so that only building a new highway is the only possible outcome of the "study." Nevertheless, 4(f) has been the most effective law for stopping excessive highway construction but most highway proposals are not subject to this law (as they do not go through parks or historic properties).

 

"The US has as many acres of roads as wilderness"
– Gloria Flora, former National Forest supervisor
Public Interest Environmental Law Conference, March 9, 2002

The origin of Section 4(f): Brackenridge Park, San Antonio, Texas

Construction of freeways through urban areas across the US in the 1960s resulted in citizen protests against destruction of neighborhoods. Boston, New York, Detroit, Baltimore, Washington, D.C., Los Angeles, San Francisco, Memphis, Chicago, Atlanta and many other cities had citizen movements that succeeded in canceling some of the proposed roads. Highway planners soon realized that slicing through densely populated communities risked cancelation of their projects since bulldozing thousands of homes - and potentially worse - having even more people living next to the route - resulted in political efforts that sometimes stopped their plans.

In response, highway departments aimed their routes at urban parks where taking homes would not be a concern (or an expense). However, paving parks created a new backlash, culminating in 1966 in a federal law banning federal aid highways through parks.

Section 4(f) of the Transportation Act of 1966 was written by Senator Ralph Yarborough (D-Texas). Its inspiration was the effort to block an interstate highway through Brackenridge Park in San Antonio, Texas, one of the main parks in that city.

When this highway was approved, the State of Texas tried to bypass Section 4(f) by only asking for Federal funds for the segments on either side of the park, since 4(f) does not apply to transportation projects built without any federal money. This approach was not successful in court.

An additional piece of legal trivia: the San Antonio Conservation Society gave up challenging the project when it was initally approved. Some of the individuals in that organization refused to capitulate (the highway had not been built) and they filed a lawsuit titled "Named Individual Members of the San Antonio Conservation Society v. Texas Highway Deartment." The highway was later built but not on the original route.

A postscript: One of my earliest memories was a visit to Brackenridge Park in 1967. My dad was in the US Army and was in boot camp at a nearby Army base while the military considered sending him to Viet Nam. Fortunately they did not do that, even though he is an M.D. and the military needed lots of doctors to treat the soldiers being wounded in the war. My mom and I went to visit him during his training and one of the two remembrances I have of our trip was visiting the Zoo and Brackenridge Park. Ironically, the two main highway fights I have been deeply involved in -- the Intercounty Connector in Maryland and the West Eugene Porkway in Oregon -- both involved Section 4(f).

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III. Case Law
The major court case for highway projects relative to project termini involved Brackenridge Park in San Antonio, Texas (San Antonio Conservation Society Members v. Texas Highway Department and USDOT. 446 F.2d 1013 (5th Cir. 1971)). With this project, years of controversy had stalled the "North Expressway" in San Antonio, primarily because the highway would use as many as 250 acres of Brackenridge Park located in the middle section of this planned expressway. As a compromise, and to satisfy competing interests, the Secretary of Transportation had allowed the two outer sections of the road to be advertised for construction, while not approving the controversial center section. In overturning this decision, the court specifically addressed this compromise as inappropriate and as forcing eventual construction through the park in the middle segment. "Patently, the construction of these two 'end segments' to the very border, if not into, the Parklands, will make destruction of parklands inevitable, or, at least, will severely limit the number of 'feasible and prudent' alternatives to avoiding the Park."
This decision stated that project termini must be selected to ensure that environmental matters are treated on a broad scope and to prevent a highway improvement from being a "loaded gun," forcing further improvements which may have negative consequences not addressed in environmental studies. Additional urgency was given by the court to not forcing an action which would use 4(f) land.
-- Federal Highway Administration, "The Development of Logical Project Termini"

 

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A Look at the History of the Federal Highway Administration
August 5

1971 In Named Individual Members of the San Antonio Conservation Society, et al. v. The Texas Highway Department, the U.S. Court of Appeals, Fifth Circuit, resolves whether a State, having accepted Federal-aid funds for a project (for construction of the North Expressway through Brackenridge Park in San Antonio), can then build the road with State funds to avoid Federal requirements. The court says no. "The state, by entering into this venture, voluntarily submitted itself to federal law. It entered with its eyes open," the court finds. Section 154 of the 1973 Federal-Aid Highway Act provides relief for Texas by declaring an end to the contractual relationship between the Federal and State governments with respect to the North Expressway.

 

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The Spending Clause as a Positive Source of Environmental Protection: A Primer
Denis Binder*
Chapman Law Review [Vol. 4:147] pp. 155-156

www.chapman.edu/law/_files/publications/law-review-2001.pdf

excerpt:

A highway dispute from thirty years ago also sheds light on the issue. The state of Texas wanted to extend a highway from the San Antonio Airport into downtown San Antonio. The route would go through Brackenridge-Olmos Basin Parklands. The road was planned before enactment of § 4(f) of the Federal Aid to Highways Act71 and the National Environmental Policy Act of 1970.72 Amendments to the Highways Act preclude construction of federally funded highways through parklands unless there are no feasible and prudent alternatives, and the proposed program includes all possible planning to minimize harm to the park.

NEPA, of course, requires the preparation of an environmental impact statement on any major federal action significantly affect- ing the quality of the human environment.73 Section 4(f) was en- acted in 196474 and NEPA became effective on January 1, 1970.

The state attempted to avoid § 4(f) by splitting the highway into three sections with only the middle section going through parkland. Texas did not wish to prepare an environmental impact statement or comply with the conditions of § 4(f).

The state tried to avoid the conflict by offering to fully fund the highway itself. The Court of Appeals rejected the state's approach, holding the road became a federal project once the Secretary of Transportation authorized federal participation in the project on August 30, 1970.75 The court held the state could not subvert the Supremacy Clause "by a mere change in bookkeeping or by shifting funds from one project to another"76 even though no federal funds had yet exchanged hands. As a result, the state voluntarily submitted itself to federal law:

It entered with its eyes open, having more than adequate warning of the controversial nature of the project and of the applicable law. And while this marriage between the federal and state defendants seems to have been an unhappy one, it has produced an already huge concrete offspring whose existence it is impossi- ble for us to ignore.77

Congress ultimately resolved the siting dispute through enact- ment of legislation, which enabled the city and state to construct the highway segment without federal funds.78

If we are to respect the core values of federalism, then states need the right to withdraw their consent. If a statutory scheme does not expressly provide for revocation, then courts should im- ply the right of rescission as a fundamental tenet of federalism.

71 49 U.S.C. § 303(c) (2000).
72 42 U.S.C. §§ 4321-4370(d) (1994).73 See 49 U.S.C. § 303(c) (2000).
74 The long-standing dispute over Brackenridge Park was the impetus for the enactment of § 4(f). See Stanley D. Olesh, The Roads Through Our Ruins: Archaeology and Section 4(f) of the Department of Transportation Act, 28 WM. & MARY L. REV. 155, 158-59 (1986).
75 Named Individual Members of the San Antonio Conservation Soc'y v. Texas High- way Dep't, 446 F.2d 1013 (5th Cir. 1971).

 

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www.texashighwayman.com/us281n.shtml

History

US 281 opened to traffic on February 7, 1978 and was certified on September 11, 1978. Named for Walter McAllister, San Antonio's mayor when the freeway was proposed. McAllister was influential in getting the freeway built. Was originally called the "North Expressway."

This highway was one of the most controversial freeway projects in US history. It was widely acknowledged by the early '50s that the city needed a north-central freeway and planning for the route had quietly begun by 1955. By 1960, several routes for the North Expressway were being considered: San Pedro, McCullough, and Broadway. The San Pedro route was dismissed because it did not provide access to San Antonio International Airport. The Broadway route would require too much expensive right-of-way to be acquired. The McCullough route was also too expensive. So a route midway between Broadway and McCullough that wound around Brackenridge Park (clipping-off a corner of the golf course), through the suburb of Olmos Park, and over the Olmos flood control basin was selected. The City of Olmos Park blocked that route though, so the Texas Highway Department chose an alternate route that skirted around the eastern edge of the suburb. The route ran between Alamo Stadium, the Sunken Gardens and the San Antonio Zoo. On January 10, 1961, San Antonio voters approved a bond issue to purchase land to replace the parkland that would be taken for the freeway. There was, however, heated debate over this routing as well. The protests by conservationists and preservationists centered on the "Yarborough Rule"-- a caveat in federal highway funding rules prohibiting the taking of parklands for highways. The section of the freeway skirting Olmos Park would run through the Olmos flood control basin, a wooded area viewed as "parkland" by many. In 1969, after years of protests and legal wrangling by the San Antonio Conservation Society, work began on the undisputed southern and northern thirds of the freeway while the debate over the routing of the center section continued. In May of 1971, construction on the whole project was halted by a federal court, which also revoked the project's federal funding. This delay caused problems for the City, which was trying to secure the land for a planned interchange at Loop 410. In 1972, the US Supreme Court upheld the lower court's injunction and it appeared that the North Expressway was dead. However, in 1973, Senators John Tower and Lloyd Bentsen sponsored legislation which would allow the City and State to build the freeway without federal money. The legislation passed both houses of Congress and was upheld by a US District Court on December 10, 1973, removing all federal involvement in the project and allowing the City and State to go it alone. Work resumed on the project's stalled northern and southern segments within 24 hours of the ruling. A last-ditch court challenge suspended the project for five more months in mid-1974, but that case was dismissed and work started on the controversial center section on November 13, 1974. The freeway opened on February 7, 1978, and in 1981 was named by the American Association of State Highway and Transportation Officials (AASHTO) as one of the nation's three most attractive urban freeways.

 

From: "Brian Purcell"
Subject: San Antonio's McAllister Freeway
Date: Sun, 15 Mar 1998

Mark,

I finally got a chance to do some more research on the McAllister Freeway issue and I have determined that my original position, that the McAllister Freeway was built WITHOUT federal funds, was correct. Here is part of a preliminary re-write of my Web page that clarifies this issue:

<<It was widely acknowledged that the city needed a north-central freeway, and planning for the route had begun in the late 50's. Several routes for the North Expressway were considered: San Pedro Ave., McCullough Ave., and Broadway. The San Pedro route was dismissed because it did not provide access to San Antonio International Airport. The Broadway route would require too much expensive right-of-way to be acquired. The McCullough Ave. route was also too expensive. So a route that wound around Brackenridge Park (clipping-off a corner of the golf course), through the suburb of Olmos Park, and over the Olmos flood control basin was ultimately chosen. The City of Olmos Park blocked the route, so the Texas Highway Department chose an alternate route adjacent to Brackenridge Park around the eastern edge of the suburb. The route ran between Alamo Stadium and the Sunken Gardens and San Antonio Zoo. After years of protests and legal wrangling by the San Antonio Conservation Society, work began on the southern and northern parts of the freeway while the debate over the routing of the center section dragged-on.

The protests by conservationists and preservationists centered on the Yarborough Rule- a caveat in federal highway rules prohibiting the taking of parklands for highways. In May of 1971, construction was halted by a federal court which also revoked the project's federal funding. In 1972, the US Supreme Court upheld the lower court's ruling and it appeared that the North Expressway was dead. However, in 1973, Senators John Tower and Lloyd Bentsen sponsored legislation which would allow the City and State to build the freeway without federal funds. The legislation passed both Houses of Congress and was upheld by a US District Court on December 10, 1973, removing all federal involvement in the project and allowing the City and State to go it alone. Work resumed on the project's stalled northern and southern segments within 24 hours of the ruling. Another court challenge suspended the project for five months in mid-1974, but that case was dismissed and work started on the controversial center section on November 13, 1974. The freeway opened on February 7, 1978, and in 1981 was named by the American Association of State Highway and Transportation Officials (AASHTO) as one of the nation's three most attractive urban freeways.>>

It should also be noted that on January 10, 1961, the residents of San Antonio passed a bond issue that provided $500,000 for the acquisition of land to replace parklands taken by the McAllister Freeway. This money was used to purchase the Northeast Preserve, now McAllister Park, the city's largest park by acreage, located just of SA International Airport. I will include this info in my Web page article before I publish it.

--Brian

Web site: www.enconnect.net/greengrl

**San Antonio freeways page on-line!**

now moved to www.texashighwayman.com

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Named Individual Members of the SAN ANTONIO CONSERVATION SOCIETY v. The TEXAS HIGHWAY DEPARTMENT et al., and the U.S. Department of Transportation.

400 U.S. 968 (91 S.Ct. 368, 27 L.Ed.2d 388)

No. 1101.

Decided: December 21, 1970

Dissent, BLACK, DOUGLAS, BRENNAN [HTML]
Dissent, DOUGLAS, BLACK, BRENNAN [HTML]
See 401 U.S. 926, 91 S.Ct. 884.

On petition for a writ of certiorari, before judgment, to the United States Court of Appeals for the Fifth Circuit.

The petition for writ of certiorari is denied.

TOP

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.

This case disturbs me greatly. On December 7, 1970, this Court stayed the construction of two federally funded highways in order to save two public parks. One park serves the people of Memphis, Tennessee. 1 The park in this case is for the rest and recreation of the the people of San Antonio, Texas. Both cases involve important and timely problems of interpretation of § 138 of the Federal Aid Highway Act, passed by Congress to stem the destruction of our Nation's parks by highway builders. These cases give this Court an opportunity to insure that lower courts and certain federal agencies administer this vital environment-saving legislation in the way that Congrees intended. The Tennessee case is still scheduled for oral argument at the earliest possible date January 11, 1971. Yet, the Court now dissolves the stay previously entered in the San Antonio case, 400 U.S. 961, 91 S.Ct. 361, 27 L.Ed.2d 381, and denies certiorari. I respectfully dissent from these orders.

The San Antonio park has two golf courses, a zoo, a sunken garden, an open air theater and many acres of open space, covered with trees, flowers, and running brooks. It is a lovely place for people to retreat from the frantic pace of bustling urban life to enjoy the simple pleasures of open space, quiet solitude, and clean air. It is a refuge for young and old alike—the kind of a park where a family man can take his wife and children or lovers can while away a sunny Sunday afternoon together. After today's decision, the people of San Antonio and the birds and animals that make their home in the park will share their quiet retreat with an ugly, smelly stream of traffic pouring down a super six-lane 'North Expressway.' Trees, shrubs, and flowers will be mown down. The cars will spew forth air and noise pollution contaminating those acres not buried under concrete. Mothers will grow anxious and desert the park lest their children be crushed beneath the massive wheels of interstate trucks.

The San Antonio Conservation Society and its individual members filed suit to block federal approval and funding of this expressway. The United States District Court held that the Secretary of Transportation and state officials were free to proceed with federal funding and construction of two segments of the road coming into the park from north and south. It retained jurisdiction to review any later decision on the design and routing of the connecting middle section, which had not been formally approved by the Secretary.

In addition to substantial questions under the Federal Aid Highway Act, 23 U.S.C. 138, this case involves the newly enacted National Environmental Policy Act, Pub.L. 91-190, 83 Stat. 852. The latter requires a detailed study of the probable effects before approval of 'major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. 4332(2)(C). Even the respondent appears to concede that the decision to fund this expressway is a 'major federal action' requiring careful study because he has promised that a study will be made before the middle section is approved. However, the approval of the two end segments took place in August 1970, eight months after the effective date of the Act. It is undisputed that no environmental study has been made with respect to these two segments, which themselves desecrate parklands and which make the destruction of further parkland inevitable.

Section 138 of the Federal Aid Highway Act provides:

'It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands. * * * 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, * * * as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park * * *.' (Emphasis added.)

Even the Secretary admits that he has failed to make formal findings about feasible and prudent alternative routes. Respondents have argued that formal findings are unnecessary. This seems an unlikely reading of the Act because without findings it will be difficult for courts to review the Secretary's determinations, and the intent of Congress to protect parklands is likely to be frustrated. 2 Furthermore, it is simply not realistic to consider the construction of this expressway 'section by section' as the District Court and the Secretary of Transportation have done here. Once construction is begun and heavy investment made on the two end segments, the available options for routing the middle segment are severely limited. In the words of the Act alternatives for the middle segment which were 'feasible and prudent' will no longer be 'feasible' once the two end segments are constructed.

In the last several years, Congress has enacted coordinated legislation designed to protect our Nation's environment from destruction by water pollution, air pollution, and noise pollution. This legislation has come about in response to aroused citizens who have awakened to the importance of a decent environment for our Nation's well-being and our very survival. Section 138 of the Federal Aid Highway Act and the National Environmental Policy Act are two major parts of this broad plan. The former was designed to prevent the systematic and thoughtless burial of public parks under the concrete of federally funded highways. The implementation of this legislation by the Department of Transportation is disheartening. The Act prohibits the Secretary from approving highway construction through parklands unless there is no 'feasible and prudent' alternative. Congress has assigned a high value to parks, trees, and clean air. Parks are not to be condemned and taken in order to try to save a few dollars on a multi-million dollar highway project. Congress was willing to sacrifice parks only when there is 'no feasible alternative.' Yet the Secretary has proceeded without formal findings to approve two segments of a highway which devour parkland. And the two segments now approved stand like gun barrels pointing into the heartland of the park. The Secretary and his staff are not wholly inexperienced in highway construction. They know full well the difficulty of preserving the park's heartland once the barrels have been loaded and the guns cocked. The efforts of our citizens and the Congress to save our parklands and to preserve our environment deserve a more hospitable reception and more faithful observance than they have apparently found either in the Executive Branch, or thus far, in the courts.

 

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

This case is here on a stay presented to Mr. Justice BLACK and by him referred to the Court. We granted a stay pending consideration of a petition for certiorari before judgment of the Circuit Court of Appeals, which has now been filed. The Court dissolves the stay and denies certiorari, all without any opinion. I dissent. This is an important case that involves the construction of 9.6 miles of an expressway through 250 acres of the Brackenridge Basin-Olmos Basin parklands situated at the headwaters of the San Antonio River within the city of San Antonio. It involves the application of a new law—the National Environmental Policy Act ( 42 U.S.C. 4331), which was signed by the President on January 1, 1970. The new Act applies by § 102(2) to 'all agencies of the federal government' and provides that such agencies shall include in every recommendation for

'major federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.' Section 102(2)(C).

There can be no doubt that federal funding of a state highway project is covered by the 1970 Act. The most controversial aspect of the highway design and location is that it proposes to run a massive elevated eight- and six-lane expressway through a park in San Antonio. The Brackenridge-Olmos Basin parklands is a unique park, recreational, and open spaces area. Specific land uses include the original Brackenridge Park grant, the Sunken Gardens, and adjacent outdoor amphitheater, the San Jacinto Park, the Alamo Stadium, the San Antonio Zoo, the Olmos Basin picnic area, the Franklin Fields, and numerous other parks, public and open space areas.

Many including Senator Metcalf of Montana had sounded the alarm over the devastation caused by federal highways: 1

'Today the land is being covered by four and six lane highways, supermarket parking lots, suburban high rise apartment buildings and lost to itself and to the people alike.'

Parks—the breathing space of urban centers—were part of the concern of Congress, not only wilderness areas, rivers, lakes, and other aspects of the biosphere. 2 The Senate Committee stated in its report:

'The inadequacy of present knowledge, policies, and institutions is reflected in our Nation's history, in our national attitudes, and in our contemporary life. We see increasing evidence of this inadequacy all around us: haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man's social and psychological well-being; the loss of valuable open spaces; inconsistent and, often, incoherent rural and urban land-use policies; critical air and water pollution problems; diminishing recreational opportunity; continuing soil erosion; the degradation of unique ecosystems; needless deforestation; the decline and extinction of fish and wildlife species; faltering and poorly designed transportation systems; poor architectural design and ugliness in public and private structures; rising levels of noise; the continued proliferation of pesticides and chemicals without adequate consideration of the consequences; radiation hazards; thermal pollution; and increasingly ugly landscape cluttered with billboards, powerlines, and junkyards; and many, many other environmental quality problems.' S.Rep.No. 91-296, 91st Cong., 1st Sess., p. 4. (Italics added.)

The report noted that environmental programs were administered by 63 federal agencies located within 10 of the 13 departments, as well as in 16 independent agencies. Id., at 6.

'Poor land-use policies and urban decay' can no longer be deferred, the report stated. Id., at 5.

'We no longer have the margins for error that we once enjoyed. The ultimate issue posed by shortsighted, conflicting, and often selfish demands and pressures upon the finite resources of the earth are clear.' Id., at 5.

And so the Act was drafted 'to assure that all Federal agencies plan and work toward meeting the challenge of a better environment.' Id., at 9.

Yet in spite of this mandate embodied in § 102(2)(C) the Department of Transportation has made no findings on the impact of this massive elevated freeway on the environment of San Antonio. The Court does not tell us why none need be made.

On August 4, 1970, the State, after revising its plans, agreed to the federal plan for the end segments of the projects. But we are advised that it was not until August 13, 1970, that the Secretary of Transportation approved the construction by Texas of the two end segments; and he has not yet approved the middle section. It is said:

'The Secretary expressly reserved final approval on the middle section because there is much parkland contained in the middle section.

'As a matter of fact, one of the primary reasons the Secretary has not approved the middle section is due to the consideration of the views expressed by plaintiffs in opposition to the proposed route the middle section will take through the parklands.'

We were told on November 16, 1970 that there are 'at least four (4) possible alternative routes on which the middle section could be constructed to connect the two ends which the District Court has approved.'

That is to say, 11 months after the Environmental Policy Act became effective, the gist of the location problem so far as the park is concerned had not been resolved.

The Solicitor General contends that the two end segments were approved in 1969. But the facts are that while Secretary Volpe gave preliminary approval of these segments on December 23, 1969, he withheld authorization of federal funds pending an agreement by the State to study further the middle segment. As already stated, Texas agreed to the end segments on August 4, 1970, and the Secretary gave his 'unqualified approval' and authorization of them on August 13, 1970, long after the new Act became effective. Yet no findings under the 1970 Act were made.

It seems obvious, moreover, that approval of the two end segments has some effect on the alternatives for the middle section. For once the expressway is split into segments and each segment considered separately, the environmental impact of the entire project will turn at least in part on the fact that the two ends are already built.

The Solicitor General states: 'The Secretary could well approve a route in the middle segment that would involve little or no use of parklands, or substantially less than the proposed route location now contemplates.'

Thus we have a fair indication that some of the park is going to be a freeway regardless. Yet as I read the Act a federal highway project 'significantly affecting' even an acre of park land cannot be launched without a finding on the environmental consequences.

The legal questions posed by § 102(2)(C) include at least the following:

Should any piece of the park be destroyed to accommodate the freeway?

How can end segments of a highway aimed at the heart of a park be approved without appraising the dangers of drawing a dotted line between the two segments?

How important is the park to the people of San Antonio? How many use it? For what purposes? What wildlife does it embrace? To what extent will a massive eight and six-lane highway decrease the value of the park as a place of solitude or recreation?

What are the alternatives that would save the park completely? Could a passage by way of tunnels be devised? Could the freeway be rerouted so as to avoid the parklands completely and leave it as a sanctuary?

Is not the ruination of a sanctuary created for urban people an 'irreversible and irretrievable' loss within the meaning of § 102(2)(C)?

I do not think we will have a more important case this Term. Congress has been moving with alarm against the perils of the environment. One need not be an expert to realize how awful the consequences are when urban sanctuaries are filled with structures, paved with concrete or asphalt, and converted into thoroughfares of high speed modern traffic.

Those are some of the things with which Congress was concerned in the 1970 Act.

No federal question would, of course, be presented if Texas or San Antonio decided to turn these parklands into a biological desert. But when Congress helps finance a project like this freeway, 3 it becomes a federal project. See Wickard v. Filburn, 317 U.S. 111, 131, 63 S.Ct. 82, 87 L.Ed. 122; Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313; Simkins v. Moses H. Cone Memorial Hosp., 4 Cir., 323 F.2d 959. And if one thing is clear from the legislative history of this 1970 Act, it is that Congress has resolved that it will not allow federal agencies nor federal funds to be used in a predatory manner so far as the environment is concerned. Congress has, indeed, gone further and said that the Department of Transportation, like other federal agencies, may no longer act as engineers alone and design and construct freeways solely by engineering standards. Congress has said that ecology has become paramount and that nothing must be done by federal agencies which does ecological harm when there are alternative albeit more expensive, ways of achieving the result.

I would continue the stay, grant the petition for certiorari, 28 U.S.C. 1254(1), and let the bureaucracy know that § 102(2)(C) is the law of the land to be observed meticulously.

APPENDIX

Much of the legislative history of the Act is a discussion of air pollution, water pollution, and solid waste disposal. But when specifics are mentioned highway problems are present. And the mention of highway problems at every stage in the legislative history leaves no doubt that the Department of Transportation's highway programs are subject to the Act.

At the Senate Hearings on the Act, the Department was represented by the Assistant Secretary for Urban Systems and Environment. He immediately recognized the reason he was present.

'I think that perhaps the reason that the Department of Transportation was asked to have a representative here before your committee was because within the purview of the Department of Transportation has lain in the past and will continue to lie in the future many of the activities that, at least, are most apparent to the people of the country in the field of environmental impact.'

He talked about the views of those people who live in metropolitan areas of the country. They have, he stated:

'a growing concern, though in most instances it is not a deep knowledge perhaps of the scientific implications * * * as to what might happen to life itself in some of the areas of which we are destroying our environment, it is concerned with the things they see about them in their daily lives. And in this area, I think, transportation and the activities of transportation organizations have been one of those which they have observed and which has created perhaps as much controversy and concern as any other area of the State and Federal operations.' Hearings before the Committee on Interior and Insular Affairs, United States Senate, 91st Cong., 1st Sess., on S. 1075, S. 237, and S. 1752, p. 76.

Included in the House Hearings is a letter from the Chairman of the House Subcommittee considering the 1970 Act to the Chairman of the President's Council on Environmental Quality which notes that neither the Department of Transportation nor the Department of Interior have promulgated the procedures they will use under the Act. 'The fact there has not been full compliance by these Departments disturbs me greatly.' House Hearings, No. 91-32, p. 67 (1969). And before the House Hearings were printed the Department of Transportation had complied with the request and the Department's procedures under the Act were printed with the House Hearings. Id., at 153-159.

The debates on the Act on the floors of both Houses were relatively short, attesting in some measure to the popularity of enacting an extensive environmental bill. Yet just as the Senate and House Hearings had demonstrated that the Department of Transportation was an integral part of the Federal Government's creation of environmental problems, so, too, did the debates alert one to the fact that highways caused environmental problems when not approached from an ecological perspective. In the House only a handful of speakers addressed the bill for any length of time and all spoke in broad generalities. Rep. Pelly, a member of the subcommittee which considered the Act, provided the focus on the problems of highways.

'We have experts in the field of transportation coping with the problem of moving people from one city to another in the least possible time with the greatest degree of safety. We have constructed a vast system of interstate highways to accomplish this. Yet at the same time, we have created serious problems of soil erosion, stream pollution, and urban displacement.

'* * * The experts have, by and large, done their job well, but we must remember their job is building highways, increasing our food production, preventing floods and so on. Their primary concern is not with the quality of our environment considered as a totality.' 115 Cong.Rec., 91st Cong., 1st Sess., 26573 (1970).

The Senate debates were also brief and again often dealt largely with the generalities of air and water pollution. Senator Allott, a member of the committee which considered the Act, recognized this and reminded his colleagues that more was involved.

'I think there is a little too much of a tendency, probably not in the committees involved here, but on the part of the public, to regard environment as involving only air and water pollution * * * the environment does not involve only water and air; * * * it involves noise—and we are all becoming acutely conscious of this factor. More and more as time goes on—environmental questions will also involve land distribution, planning for the future, what kind of future cities we will plan, and what we will do about the ghettos for the ghettos are a part of the environmental picture. * * *' Id., at 29061.

Senator Jackson, chairman of the committee which considered the Act, reviewed the legislative history of the Act for the benefit of the other Senators. He stated that concepts and ideas were drawn from the many other bills before Congress when the Senate Committee considered the Act. These bills

'were directly concerned with environmental issues, covering a broad area of interest—cleaning up the Nation's rivers and better approaches to smog control, improving the use of open space and prevention of disorderly encroachment by super-highways, factories and other developments * * * and the control of urban sprawl, unsightly junk yards, billboards, and power facilities that lower the amenities of the landscape.' Id., at 29069.

Thus there can be no doubt but that Congress intended the Act to apply to federally funded highways and the Department of Transportation.

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1

See No. 1066, Citizens to Preserve Overton Park, Inc. et al. v. Volpe, 400 U.S. 939, 91 S.Ct. 246, 27 L.Ed.2d 262.

2

Ironically, the Secretary of Transportation now appears to recognize that written findings should be made for highway grant-in-aid approvals and such findings are now provided for by his own regulation, Dept. Transportation Order 5610.1, issued October 7, 1970. But the Secretary has not been willing to apply his regulation to this case. In my view the regulation alone is sufficient reason to reverse and remand for findings of fact. Cf. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969).

1

Speech, Stanford University, April 9, 1969.

Senator Metcalf on January 24, 1963, spoke of the great need for consideration of ecological factors before highway construction was launched:

'When Congress adjourned last fall, I decided to determine the extent to which highway construction was threatening our streams and rivers. I sent questionnaires to fish and game management officials in each of our 50 States. To date, Mr. President, I have received responses from 46 States.

'The questionnaire consisted of 10 questions, one of which was: 'Are trout streams or other important fishing streams or lakes adversely affected by highway construction in your State?' Thirty-two of the forty-six States which have responded to the questionnaire answered affirmatively, although damage varies in seriousness from State to State.

'Perhaps more significant were the responses to the question: 'Do you feel that additional legislation at the Federal or State levels is necessary to bring about a satisfactory degree of coordination of highway and wildlife conservation interests and objectives in your State?' To this question, Mr. President, fish and game management men in 37 States replied, 'Yes.' Two States were undecided about the necessity for legislation, and only seven see no need for action in this area.

'Mr. President, my questionnaire revealed general agreement, among those most qualified to know, that there is a need for legislation. This is not a partisan, political issue; it is a conservation problem cutting across party lines, as shown by responses to my questionnaire. Fish and game officials working for Republican and Democratic State administrations agreed there is a need for legislation to protect fish, wildlife, and recreation resources from damage due to highway construction.

'Our bill, Mr. President, provides a method of meeting that need. I urge my colleagues to study this problem as it relates to their own States. I hope this matter will receive the attention of the Congress this year.' 109 Cong.Rec. 828.

2

For the legislative history see the Appendix to this opinion.

3

The Federal Government is providing the funds for 50% of the cost of this expressway.

 

---

 

Named Individual Members of the San Antonio Conservation Society v. Texas Highway Dept.

No. 30915 (5th Cir. August 5, 1971)

Section 4(f) of the Department of Transportation Act prohibits the Secretary of Transportation from dividing a proposed highway project into segments for the purposes of route approval where the effect of such a piecemeal approach would be to leave planners with no alternative but to condemn parkland for the road. The Secretary has failed to comply with the reporting requirements of the National Environmental Policy Act, although a federal-aid highway project estimated to cost $18 million clearly comes within the ambit of that Act. The Supreme Court's reversal of the district court in Citizens Committee to Preserve Overton Park v. Volpe, (1 ELR 20110) indicates that where local officials classify parkland as of little or no "local significance" in order to frustrate the mandates of Section 4(f), their "preferences" are to be accorded little weight. Finally, although Texas intends to build the road entirely with state funds, if necessary, the North Expressway has been a "federal project" since the Secretary of Transportation authorized federal participation on August 13, 1970 and, even though no federal funds have as yet been expended, the planning and construction process is still subject to federal law.

Counsel for Plaintiffs-Appellants
John W. Vardaman, Jr.
1000 Hill Building
Washington, D.C. 20006
(202) ME 8-6565

Counsel for Defendants-Appellants
Samuel D. McDaniel Assistant Attorney General
Capitol Station
Austin, Texas 78711
(512) 475-2501

Ted Butler Assistant United States Attorney
P.O. Box 1701
San Antonio, Texas 78206
(512) 225-5511

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

 

THORNBERRY, Circuit Judge:

We enter a new battleground in this case, guided by the solemn expression of Congressional will to preserve parklands and the environment from harm or destruction at the hands of federal aid projects. This appeal challenges the construction of a six-to-eight lane federal-aid expressway through the Brackenridge-Olmos Parklands located in the City of San Antonio, Texas. It comes to us from the district court's order granting the federal and state defendants' joint motion for summary judgment and denying the appellant's motion for preliminary injunction. Since it is an appeal from a summary judgment, we have given the appellants the benefit of all favorable inferences that reasonably may be drawn from the evidence. See Pogue v. Great Atlantic & Pacific Tea Co., 5th Cir. 1957, 242 F.2d 575; 6 Moore's Federal Practice P56.15[3]. So viewing the Record, we find supported therein the following long and tortuous tale of bitter controversy, which we relate along with the history of the proceedings to date in this action.

I. Background

The controversy over this highway began in 1955 or 1956 when certain officials in the City of San Antonio first suggested to the Texas Highway Department the building of a highway from what is now the San Antonio International Airport into downtown San Antonio. The highway was to be funded on a 50-50 basis between the City of San Antonio and the State of Texas for right-of-way acquisition costs, and on a 50-50 basis between the State of Texas and the federal government for construction costs.

A period of four or five years elapsed before the first steps were taken to implement the 1955 suggestion. Then, in 1960, the Texas Highway Department prepared a report for the construction of the highway, recommending two alternate routes, one of which was the proposed present route through the Brackenridge-Olmos Parklands. In 1961, a bond issue election was held in San Antonio on the proposed acquisition of right-of-way for the new highway, which was to be called "the North Expressway." The bond issue passed by a vote of 40,799 to 23,775.¹

In 1963, the State actually settled upon the present proposed route through the Park, and at that time for the purpose of obtaining federal aid in the construction of the highway, the State conducted a Public Hearing on the "North Expressway," as required by 28 U.S.C.A. § 128.² In 1964, the Bureau of Public Roads, a federal agency then in charge of supervising federally-funded highways, notified the State Highway Engineer that "insofar as public hearings are concerned, [we] will approve the successive steps in the development of this section of the highway."³ Another three years elapsed during which the City of San Antonio litigated and negotiated for the acquisition of certain portions of the proposed right of way owned or abutted by private persons.⁴ Then, in 1967, the San Antonio Conservation Society requested the City Council to seek rerouting of the North Expressway in order to save the Park. The City Council denied their request. Thereafter, in December 1967, theSan Antonio Conservation Society filed this action and also sought through administrative appeals in the Department of Transportation and in other federal agencies, to persuade the Secretary of Transportation to withhold federal approval of the project. In January 1968, the Secretary of Transportation stated to the district court, in an affidavit filed by an official of the Bureau of Public Roads, that as of that time, no federal approval had been given to this highway project referred to as the North Expressway.⁵ In April 1968, the then Secretary Boyd asked that an analysis of the highway be prepared and, by telegram, requested that the district court take no action in the case until he had acted on the Conservation Society's appeals.

On September 23, 1968, the Department of Transportation issued a press release stating that Secretary Boyd "today announced conditional approval" of the State's request but the release stated specifically that "no part of the project will be approved until after [certain] design changes have been submitted to and approved by the Federal Highway Administration's Bureau of Public Roads."⁶ This "conditional approval" never became final, however, because in February 1969 the State rejected the design changes requested by Secretary Boyd.

Following the State's refusal to accept Secretary Boyd's conditional approval, there were further meetings and discussions between those opposing the route and the Department of Transportation. On December 23, 1969, the Department of Transportation issued a press release which stated that the new Secretary Volpe "could not justify approval for construction of the North Expressway between Mulberry and Tuxedo Avenue [Mulberry being the southern border of Brackenridge Park, and Tuxedo being a northern boundary of the Olmos Basin Parklands]." He called for a further study of this "middle segment." With respect to the two "end segments," however, the press release stated:

Authorization will be given to the Texas Highway Department to construct those segments north of Tuxedo Avenue and south of Mulberry Avenue as soon as an agreement is reached to study an alternative route for the remaining segment.

As it had done with Secretary Boyd's conditional approval, the State also rejected Secretary Volpe's conditional approval, and in January 1970 made a counteroffer containing some conditions of its own on the Secretary's enforcement powers.⁷ The Secretary rejected the States' proposal,⁸ and the Department of Transportation advised that unless the State agreed to the conditions originally proposed, the Secretary's conditional approval of the two end segments "must be withdrawn." In April 1970 the State of Texas responded that the Texas Highway Department "respectfully declines to make the study . . ." It maintained that no further study was necessary because there were no alternatives. At this point, the appellants relaxed, thinking that, with the State refusing to meet the Secretary's conditions, "the battle for the Park had been won."⁹ All was quiet¹⁰ for a period of months, until August 4, 1970, when the Texas Highway Department agreed to the proposed study of the "middle segment" on the condition that federal funds would be made available for the two "end segments." On August 13, 1970, the Secretary, apparently without notice to the plaintiffs in the then pending suit challenging the North Expressway, authorized construction of the two "end segments" and an agreement was reached that an independent consultant would study alternatives to the "middle segment." On August 24, 1970, the State Highway Engineer was notified that he was authorized to advertise for bids. On September 1, 1970, the appellants revived their pending action in the court below, claiming that they had found out about the Secretary's action only through the newspaper; that the Secretary's action was in violation of the Department of Transportation Act of 1966, the Federal Aid to Highway Act of 1968, and the National Environmental Policy Act of 1969; and that they needed immediate protection to preserve the status quo, since the state defendants had filed notices of contract letting proposing to announce contract specifications on September 1 and September 8, 1970.No reply to this motion for interlocutory relief even was filed by the defendants until September 10, 1970, and the district court took no action on the appellants' motion for interlocutory relief until after the bids on the southern segment of the project had been made public sometime around September 20.¹¹ The matter was finally heard on the parties' opposing motions for summary judgment on November 12, 1970. On November 13, 1970, the district court denied appellants' motion for preliminary injunction, granted the defendants' joint motion for summary judgment insofar as the construction of the two "end segments" of the freeway was concerned, and retained jurisdiction over the case to hear and consider the complaints of the plaintiffs concerning the "middle segment." On November 16, the appellants filed a motion for stay pending appeal in this Court. This Court received the motion on November 17, 1970, and on November 18, 1970, denied the motion. On November 19 or 20, the State awarded the contracts to the low bidders and shortly thereafter construction on the southern segment commenced. On November 25, 1970, the President of the San Antonio Conservation Society wrote the Secretary of Transportation that the Society had, by Board action, dismissed all litigation on the North Expressway. Said the letter, "[I]t was a difficult decision to make but, in light of recent court action, it appeared to be the only reasonable choice at this time. Of course, we continue to deplore the possibility of desecration of public parklands by the route of this expressway."

Nevertheless, some members of the Conservation Society, disgruntled with the Board's action, decided to continue the suit, and thus came their present style, "Named Individual Members of the San Antonio Conservation Society."¹² The "Named Individuals" then applied to Mr. Justice Black for a stay. The Justice referred the matter to the entire Supreme Court, and the Court on December 7 granted the motion for stay on condition that "a petition for a writ of certiorari, before judgment, is filed in this Court by December 14, 1970." San Antonio Conservation Society v. Texas Highway Department, 400 U.S. 939, 91 S. Ct. 231 (1970). Accordingly, on December 14, 1970, the appellants filed a petition for certiorari, before judgment and on December 18, 1970, over the dissents of four Justices, the Supreme Court vacated its stay.Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 400 U.S. 961, 91 S. Ct. 361 (1970). Subsequently, on December 21, 1970, the Supreme Court denied certiorari, 400 U.S. 968, 91 S. Ct. 368 (1970). On March 2 1971, the Supreme Court handed down its decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814 (1971), and soon thereafter, the persevering remnant of the otherwise litigation-weary San Antonio Conservation Society returned to this Court seeking reconsideration of our original denial of their motion for stay on grounds that conditions had now changed, and that the Overton Parkdecision compelled reversal of the district court's action in this case. Because the appellants were claiming that changed conditions warranted their reapplication for stay, we required them to reapply first to the district court for a stay, in compliance with F.R.A.P., Rule 8(a).The district court denied their motion on May 11, 1971, and they returned to this Court on May 18. After reviewing the file in the case, and studying the Overton Park decision, we concluded that this case is in all essential respects controlled by Overton Park, and we granted the appellants' motion for stay on May 27.

The entry of our stay order precipitated a virtual barrage of motions from the state and federal defendants seeking reconsideration of our stay order and a stay of the mandate on the order until they could seek relief in the Supreme Court. On Memorial Day, May 31, 1971, the state and federal defendants presented their motions to a single member of this Panel, Judge Clark, in Jackson, Mississippi. On that day, Judge Clark entered a single judge order modifying our stay order to permit the contractors to continue with construction for one week, and then to proceed with "an orderly deactivation of each of . . . [the construction] projects in such a manner as to preserve the work actually accomplished and as may be necessary to prevent soil erosion and maintain public safety." On June 1, 1971, the full Panel considered the state and federal defendants' motions, and on June 2, 1971 entered an order staying for a period of 15 days the mandate on our order of May 27, but only insofar as it applied to the State, in order that the State might seek relief in the Supreme Court. The State filed its motion for relief in the Supreme Court some 10 days later, and on June 21, 1971, it was unanimously denied by the Supreme Court. Texas Highway Department v. Named Individual Members of the San Antonio Conservation Society, 39 U.S.L.W. 3555 [No. 1807, June 22, 1971]. The state and federal defendants immediately filed motions to expedite the appeal. We granted their motions, and set the matter down for hearing in New Orleans at the earliest possible date.

After hearing oral argument and studying the case on its merits, we remain convinced that our stay order of May 27 was completely justified by the Overton Park decision, and for the reasons stated herein, we reverse the judgment of the district court and remand the case for further proceedings in strict accordance with this opinion.

II. Preservation of Parklands

The Brackenridge-Olmos Basin Parklands are unique park and recreation areas situated at the headwaters of the San Antonio River and surrounded by a densely populated urban area in San Antonio, Texas.The Parklands contain Sunken Gardens, an open air theatre, two golf courses, the San Antonio Zoo, picnic areas, nature trails, and many acres of green, open space. While there is a factual dispute concerning the exact number of acres threatened by this proposed expressway,¹³ it appears that the expressway will require the use of between 116 and 250 acres of parkland.

In recent years, the Congress of the United States has enacted several statutes designed to preserve just such parks as this from destruction by massive federal projects.¹⁴ Specifically, we deal with three such statutes in this case: (1) Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C.A. § 1653(f) (Supp. 1971), which provides as follows:

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

(2) Section 138 of the Federal Aid to Highway Act of 1968, 23 U.S.C.A. 138 (Supp. 1971) which provides as follows:¹⁵

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

(3) Section 102(2) of the National Environmental Policy Act of 1969, which provides in pertinent part, that¹⁶

all agencies of the Federal Government shall

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;

 

It is these statutes which, through our judgment, we enforce herein.

III. Noncompliance with the Statutory Law

Our task is simplified greatly to begin with because it is undisputed that the Secretary of Transportation complied with none of the above-quoted statutes in his approval of the two "end segments" of this expressway. No environmental study under N.E.P.A. has been made with respect to these two "end segments," and the Secretary has demonstrated no effort by anyone to examine the section 4(f) "feasible and prudent" alternatives to the route followed by these two "end segments," which come right up to, if not in to, the Parklands from both the north and the south. Thus, it requires no discussion to establish that there has been no compliance with any of the above-quoted statutes.

Instead, we must devote our efforts to examining the numerous defenses¹⁷ raised by the federal and state defendants seeking to establish their positions that for various reasons these statutes do not apply to the North Expressway.

IV. Division of the North Expressway into Three Segments

Both the state and federal defendants argue that section 4(f) does not apply to this case because the construction of the two "end segments" involves no taking of parkland, and because there is nothing unlawful in the Secretary's division of the project into three "segments" for purposes of section 4(f) approval.

In the first place, there is a factual dispute between the parties over whether any parkland is taken by the two "end segments." If that issue were material therefore, the mere existence of a disputed fact manifestly would require us to reverse the district court's summary judgment, since summary judgment is always improper when there are disputed issues of material fact. We have determined, however, that it is unnecessary to base our decision on the existence of a factual dispute over whether parklands are taken by the two "end segments," because we have concluded that the Secretary's division of the project into three "segments," for purposes of giving his approval to the two "end segments," was unauthorized by section 4(f). Section 4(f) provides that "the Secretary shall not approve any . . . project which requires the use of any publicly owned land from a public park . . ." Section 4(f) does not authorize the Secretary to separate a "project" into "segments" In short, the Secretary acted beyond the scope of his authority and in violation of section 4(f) when he approved "segments" of a project before he had complied with his section 4(f) responsibilities.¹⁸

We note that the word "project" becomes a key word in the statute on this point. While it is conceivable that in other cases the question of how broadly the Secretary must define "project" may be presented, that question is not, and never has been, presented in this case.¹⁹ There is nothing in this Record to support the conclusion that the North Expressway has ever been anything but one project for purposes of federal approval. It has consistently been denominated the "North Expressway." It was presented as a single project at the Public Hearing in 1963. The state defendants presented it to the federal defendants as a single project for federal participation. And indeed the Secretary's attempt to condition federal approval of the entire project on a section 4(f) study of the middle "segment" demonstrates that he has construed it as one "project" for purposes of section 4(f).

The question therefore, is whether the Secretary may take a single "project" and divide it into "segments" for purposes of section 4(f) approval. We have already stated that such fragmentation of a "project" is unauthorized by section 4(f).But there is another reason why we refuse to authorize such action: The frustrating effect such piecemeal administrative approvals would have on the vitality of section 4(f) is plain for any man to see. Patently, the construction of these two "end segments" to the very border, if not into, the Parklands, will make destruction of further parklands inevitable, or, at least, will severely limit the number of "feasible and prudent" alternatives to avoiding the Park. The Secretary's approach to his section 4(f) responsibilities thus makes a joke of the "feasible and prudent alternatives" standard, and we not only decline to give such an approach our imprimatur, we specifically declare it unlawful.²⁰

At this point, we would comment on one final argument made by the Secretary in defense of his piecemeal approval. He contends that the appellants' argument against piecemeal approval depends for success "on innuendos, utter bad faith, and some conspiracy type of clandestine activity on the part of the Secretary . . . to build this highway, 'come hell or high water.'" The appellants' brief, however, makes no charges of conspiracy or clandestine activity on the part of the Secretary. And the Secretary is wrong if he is suggesting that a finding of "bad faith" is essential to support a holding that he violated the applicable law in this case. By the Secretary's own admission,²¹ he adopted this piecemeal solution in order to defuse a controversial situation by attempting to strike a compromise between those who were determined to build the highway and those who were determined to save the Park. The problem with the Secretary's solution to the controversy is that he misconceived his role. The conflict between Parklands and Highways has already been resolved in the Halls of Congress, which is the proper place in our system of Government for priority decisions to be made. And, as the statutes here in question make clear, parklands and environmental values are considered paramount. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at , 91 S. Ct. at 821-22 (1971).

V. National Environmental Policy Act of 1969

Both the federal and state defendants argue that NEPA has no application to this Project. The federal defendants' position, however, is predicated on their argument that the division of the Project into segments was permissible, and that since the two end segments involved no taking of parklands, NEPA did not apply. We have already dealt with, and rejected, this argument. We proceed, therefore, to the State's arguments.

Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332 (Supp. 1971), requires "all agencies of the federal government . . . [to] include in every recommendation or report on proposals for . . . major federal actions significantly affecting the quality of the human environment, a detailed statememt by the responsible official on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

It is undisputed that no section 102(2) statement has been prepared or filed by anyone in this case. The State argues none was required because (a) federal authorization of a federal-aid highway is not a "recommendation" within the meaning of section 102(2); (b) there is no one for the Secretary to make his report or recommendation to; and (c) "approval of a section of a roadway in Texas" is not a major federal action within the meaning of the statute.

The legislative history of NEPA and the language of the statute itself refute each of these arguments. That federal-aid highways were among the federal actions affecting the human environment, and therefore covered by the Act, can be seen from the hearings and debates over the Act. "Super-highways" were pointedly cited among the list of modern phenomena threatening the environment. See 115 Cong. Rec. 91st Cong., 1st Sess., 29068 (1970). And the Department of Transportation was asked to send, and did send, a representative to testify at the Senate hearings on the Act.²²

To the State's argument that there is no one for the Secretary to file a statement with, the language of section 102(2) provides an answer: "[c]opies of . . . [the] statement . . . shall be made available to the President, the Council on Environmental Quality, and to the public . . . and shall accompany the proposal through the existing review processes . . ."

Finally, the State's argument that this is not a major federal action seems doubtful. It has been estimated that the project ultimately will cost a total of $18,000,000.00. Total initial costs, according to the defendants' pleadings, were projected in 1960 at $12,600,000.00, of which half was to be funded by the federal government. Without belaboring the point, we conclude that we have no difficulty in characterizing a project of this size as "major."

The State also argues that NEPA does not apply to this Project because NEPA cannot be applied retroactively. The simple answer to this contention is that no retroactivity would be involved in the application of NEPA to this case. NEPA was the law at the time the Secretary authorized federal funding of the two "end segments" of the North Expressway on August 13, 1970, and it had been the law since January 1, 1970.²³

We move next to two defenses presented by the State in which the federal defendants do not participate.

VI. Are the Brackenridge-Olmos Parklands of Local Significance?

Section 4(f) of the Department of Transportation Act protects from federal-aid highways parks "of local significance as determined by the Federal, State or local officials having jurisdiction thereof . . ."

After section 4(f) was passed and became effective, the City Council of San Antonio passed the following resolution:

The portions of public lands owned by the City of San Antonio and required by present plans for the construction of this expressway facility are of primary local significance as part of the right of way for the North Expressway and of secondary local significance as parts of park and recreation areas.²⁴ (Emphasis in original).

The State argues that this resolution is a determination by local officials that Brackenridge Park is of "no local significance." The Resolution, however, does not say that Brackenridge Park is of no local significance. Indeed, it says that Brackenridge Park is of local significance as a Park, but that the City Council would prefer to see it used for a highway. The question, therefore, is whether Congress intended to leave the choice between parks of local significance and federal-aid highways to local authorities; or whether Congress, in passing section 4(f), has already made the choice between the two uses. Only one construction fairly can be given to section 4(f), and that is that Congress itself has made the choice between the two uses. Clearly, Congress did not intend to leave the decision whether federal funds would be used to build highways through parks of local significance up to the city councils across the nation. If there was any doubt about this question before Overton Park, there most assuredly is no longer any doubt. The following appears in the district court's opinion in Overton Park:

With respect to the reference to ". . . local preference," it should here be pointed out that the Mayor and City Council of the City of Memphis have heretofore approved this corridor and design and have approved the sale of the strip through Overton Park to the State of Tennessee . . . . Since [section 4(f)] by its terms is invoked only if park "is of local significance as determined by federal, state or local officials having jurisdiction thereof" in view of the approval by the Mayor and Council, it may well be that [section 4(f)] has no application here.

Citizens to Preserve Overton Park v. Volpe, W.D. Tenn. 1970, 309 F. Supp. 1189, 1195.

The Record in this case reveals that the state defendants relied heavily on this district court opinion in opposing application of section 4(f) to the North Expressway.²⁵ Now, of course, that argument is foreclosed by the Supreme Court's decision in reversing the district court in Overton Park. We must conclude from the Supreme Court's action that the Court attached little if any significance to the local officials' preference to use Overton Park for highway right-of-way.²⁶

VII. May the State Now Proceed with this Project Using its Own Funds?

The State argues that it is "absolutely committed" to building the North Expressway regardless of what this Court decides about the validity of the Secretary's action, and that this Court has no power to require the State to comply with the law in building the Project because the State is determined to build the highway with its own funds, "if necessary." In connection with this argument, the State has presented this Court with a document which was not part of the Record on appeal, but which deserves reproduction in this opinion. The document is a Minute Order of the Texas Highway Department, passed on June 1, 1971, five days after this Court entered its stay order of May 27, 1971:

WHEREAS, there is presently pending on appeal in the United States Court of Appeals for the Fifth Circuit, Cause No. 30915 styled, Named Individual Members of the San Antonio Conservation Society, v. Texas Highway Department, et al, and The Department of Transportation, et al, and there is some apparent doubt concerning whether a stay of highway construction should be effected, in part because of apparent doubt concerning the nature of the State's commitment to construct the highway involved; and, because such doubt should not exist;

THEREFORE, IT IS HEREBY AFFIRMED that the commitment of the State of Texas made by this Commission to build said highway, is absolute. The highway will be built with 100% state money if necessary. While this Commission continues to believe that this highway is eligible for federal funding, such eligibility is neither determinative of whether or not the highway will be built, nor of the schedule of its construction.

FURTHERMORE, the construction contracts authorized by this Commission in the Fall of 1970, under which construction is presently proceeding on the end segments of the highway, are in no way contingent upon federal funding. (Emphasis in original)

In addition to presenting us with the foregoing "Minute Order," the State argued before the Supreme Court in its petition for relief from our stay order, and repeated before this Court, the following:

In all candor, it must be admitted that in the event the Secretary of Transportation or the Courts, should rule that federal law prohibits federal participation in the "North Expressway" construction project, other eligible projects will be submitted to take up available federal funding.

We are not impressed with this argument. If we were tp accept it, we would be giving approval to the circumvention of an Act of Congress. The North Expressway is now a federal project, and it has been a federal project since the Secretary of Transportation authorized federal participation in the project on August 13, 1970. As such, the North Expressway is subject to the laws of Congress, and the State as a partner in the construction of the project is bound by those laws.²⁷ The supremacy of federal law has been recognized as a fundamental principle of our Government since the birth of the Republic. United States Constitution, Art. VI, cl. 2. The State may not subvert that principle by a mere change in bookkeeping or by shifting funds from one project to another.

The State seems to contend that the North Expressway is not yet a federal project because, at the time of oral argument, no federal funds had exchanged hands between the federal and state defendants.²⁸ This argument misses the point. The point is that on August 13, 1970 the Secretary of Transportation, at the State's request, authorized federal participation in the North Expressway.That authorization triggered the advertisement for contract bids, the letting of contracts, and the commencement of construction that has erected almost 1/3 of the southern "segment" of the North Expressway. No one forced the State to seek federal funding, to accept federal participation, or to commence construction of a federal aid highway.The State, by entering into this venture, voluntarily submitted itself to federal law. It entered with its eyes open, having more than adequate warning of the controversial nature of the project and of the applicable law. And while this marriage between the federal and state defendants seems to have been an unhappy one, it has produced an already huge concrete offspring whose existence it is impossible for us to ignore.²⁹

In short, the state, as well as the federal defendants must comply with the law in the completion of the North Expressway.

VIII. Conclusion

The district court erred in granting a summary judgment in favor of the federal and state defendants before the Secretary of Transportation had complied with his statutory responsibilities under 23 U.S.C.A. § 138 (Supp. 1971); 42 U.S.C.A. § 4332 (Supp. 1971); and 49 U.S.C.A. § 1653(f) (Supp. 1971). That judgment is now reversed, and the case is remanded with directions to hold the case until the Secretary has completed his administrative review of the North Expressway as one project under the law.Once the Secretary has completed his review, the district court shall conduct a full review of the case as soon as possible in accordance with the guidelines laid down here and in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814 (1971). Construction shall not proceed until there has been full compliance with the law.

REVERSED AND REMANDED WITH DIRECTIONS.

1. The proposition that was presented to the voters of San Antonio described the subject highway simply as "a North Expressway to be constructed from the east leg of the Expressway west of Broadway to U.S. Highway No. 281 north of Loop 13." No particular route was otherwise specified on the proposition as it appeared on the voters' ballots. The state defendants have entered certain exhibits in the Record, in the form of newspaper clippings, which indicate that even at this early date the proposed route, which had not yet been unequivocally settled upon, was highly controversial. One of the clippings tells the following story:

Several women members of the Conserve Our Parks Committee, opponents of the proposed N. Expressway to be voted on in the election, were ordered out of Brackenridge Park Tuesday after they attempted to erect a signboard near the Sunken Garden on Alpine Dr.

The five foot sign read: "This is the view you will see of the Sunken Garden." Officials said the sign apparently was meant to represent a fence planned to deaden sound of traffic if the expressway were routed through the park.

San Antonio Express, Dec. 28, 1960, at 8A.

The State relies on this clipping, and others, to show that the voters of San Antonio knew what they were voting on when they voted on the Bond issue in 1961, Thus, they seem to argue, since the voters of San Antonio decided to finance part of the right-of-way for this highway in 1961, the controversy ended at that point, and we should defer to that determination. Even if the voters of San Antonio did know what they were voting on, however, the bond issue election was only the first step in a long series of steps necessary to obtain approval for the highway; as such it was but the first battle in the long war over this highway. And, as the history of this case demonstrates so vividly, the war is not over until the last battle has been won.

See also note 23 infra.

2. 23 U.S.C.A. § 128 provided at that time that (a) [a]ny State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic effects of such a location. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway.

(b) When hearings have been held under subsection (a), the State department shall submit a copy of the transcript of said hearings to the Secretary, together with the certification. Section 128 has since been amended to provide as follows:

§ 128. Public hearings

(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway.

3. See note 23 infra.

4. For related history see City of San Antonio v. Congregation of Sisters of Charity, 360 S.W.2d 580 (Tex. Civ. App. -- Waco 1962, no writ) cert. denied, 372 U.S. 967, 83 S. Ct. 1093 (1963); City of San Antonio v. Congregation of Sisters of Charity, 404 S.W.2d 333 (Tex. Civ. App. -- Eastland 1966, no writ).

5. The affidavit reads in pertinent part as follows:

[A]s to U.S. 281 (referred to as the North Expressway), there has been no approval by the Department of Transportation, the Federal Highway Administration or the Bureau of Public Roads of any Federal-aid funds for right-of-way acquisition or construction . . . .

6. At the time the Secretary announced this conditional approval, he also notified counsel for the San Antonio Conservation Society that "our approval of the project is not final, but rather is conditional upon the Texas State Highway Department making four design changes which must first be submitted to and approved by the Federal Highway Administration."

7. In its counteroffer, the State offered "to initiate studies and preparation of detailed cost estimates for that portion of the project between Mulberry and Tuxedo and to construct with Federal participation the sections north of Tuxedo and south of Mulberry," (emphasis added) but it stipulated that if the State could not "reach agreement with the Department of Transportation within six months after submission of the study to the DOT, the State of Texas will be free to proceed with construction on the section between Mulberry and Tuxedo with whatever funds may be available."

8. The Federal Highway Administrator's response, rejecting the State' counteroffer, is instructive. He stated:

The Secretary will not approve funds for the non-controversial segments pursuant to any understanding that would permit the Texas Highway Department to complete the North Expressway along a route ineligible for Federal participation. (Emphasis added)

9. The appellants have entered in this Record an exhibit of some irony -- a speech made by the Secretary of Transportation on "Earth Day" April 22, 1970, in which the Secretary, extolling the Department of Transportation's commitment to the preservation of parklands, stated, "We have made decisions in other areas -- we saved a park in Memphis, Tennessee; another in San Antonio, Texas."

10. Except for a rather critical meeting held on July 22, 1970, in Secretary Volpe's Washington office, attended by the Mayor of San Antonio, Texas United States Senator John Tower, officials of the Texas Highway Department and the Federal Highway Administrator. The appellants were not represented at this meeting. They complained below that they received no notice of it, and there is no denial of that claim.Yet, it was at this meeting that the principal decision which is the subject of this appeal was formulated.

11. The date on which the contract bids were made public assumed considerable significance in this case because the opening of the bids triggered the tolling of a sixty day statutory period, in which the State had either to act on the bids or forfeit them. The bids on the southern "segment" of the Project were due to expire on November 20, 1970. Bids on the northern "segment" were due to expire a month later. Thus, when the appellant's first motion for stay pending appeal was presented to this Court on November 17, 1970 (discussed infra), only two days remained before the sixty-day period on the southern "segment" would expire. Likewise, the expiration date on the northern "segment" occurred somewhere around December 20, 1970, two days after the Supreme Court vacated its stay order in this case, (also discussed infra). The state and federal defendants relied heavily on these impending deadlines in opposing the appellants' stay motions, contending that a stay would cause irreparable harm to the low bidders, who would lose their advantageous positions, and to the State, since "rebidding probably would result in increased costs to . . . [the defenants]."

It is clear to us why the district court failed to act immediately -- one way or the other -- upon the plaintiffs' motion for interlocutory relief, which was presented well in advance of the date on which the first bids were made public. The district court did hold a hearing on September 10, 1970, but announced no decision at that time on the appellants' motion for an injunction.A transcript of that hearing appears in the Record. It reveals that the district court set the matter for a hearing on the merits on October 19, almost a full months after the bids would have been made public. This date was set at the request of the defendants.

Thereafter, on October 8, 1970, the plaintiffs did file a motion for continuance because the defenants had failed to supply the plaintiffs with requested information concerning the Secretary's review of the project. There is no indication that this motion was ever acted on, but the Record does reveal that a subsequent motion for continuance filed by the state and federal defendants for additional time to file supporting documents to their joint motion for summary judgment was granted on October 16, 1970, causing the hearing set for October 19 to be moved up to October 28. At the hearing on October 28, the plaintiffs renewed their October 8 motion for continuance, contending that it had been on file for two weeks, that no response had been received from the defendants, and that they were still without the needed information concerning the Secretary's review of the project. The Court granted this motion for continuance, and reset the case for November 12, 1970.

We remarks on this sequence of events only because we recall that on November 17, 1970, when this Court was presented with the appellants' first motion for stay two days beforethe bids were due to expire on the southern "segment," the state and federal defendants, in opposing the motion represented to this Court that the "nearness of hearing and judgment to the date for letting of contracts for construction was caused by a continuance of hearing granted at the request of petitioners;" that the last minute nature of the relief sought was "petitioners' fault;" and that at the September 10, 1970 hearing, "petitioners were not ready for trial."

We now find, upon reading the papers filed and the transcript of hearing below -- which were not available to the Court is November -- that these representations were not entirely supported by the Record. In the first place, it was the defendants, not the plaintiffs, who requested that the matter be postponed at the September 10 hearing. Indeed, the transcript of that hearing reveals that when the district court asked the plaintiffs whether they would agree to a postponed hearing, counsel for the plaintiffs, laboring under an apparent misunderstanding that the hearing on the merits would be a hearing not on the two "end segments," but on the whole project, stated the following:

Your honor, our motion, it sounds like, is virtually granted. They are willing to sit down and try this case . . . . We think -- I think this case can be presented in full, and, in fact, we can present it right now, we feel, but to give them a chance to pull their case together, the we are ready to proceed. (Emphasis added)

Furthermore, it appears that the plaintiffs' motion for continuance was not filed until October 8, after the contract bids had been made public, and that the reason for their motion was the defendants' continued refusal to supply them with requested information. Finally, we notice that the defendants themselves contributed to the delay with their own motion for extra time to prepare their supporting documents.

12. Although the state defendants have sought to make an issue of the Society Board's vote to discontinue the Society's participation in this suit, we see no reason why that vote should have any bearing on the appellant's right to continue. In the first place, both the original and supplemental complaints in this case were filed in the name of the San Antonio Conservation Society "and individual members thereof." It frequently occurs, of course, that some parties to a lawsuit decide to quit at the trial level, while others determine to take an appeal. Secondly, the appellants' motion for stay was received in the Supreme Court, granted for a time, and while the petition for certiorari before judgment was denied, the appeal was not dismissed, as the defendants assert it should be here. Finally, a list of the named individuals who are carrying on this suit has been supplied to both the Supreme Court and to this Court.There is no merit, therefore, to the State's argument that members of the San Antonio Conservation Society may not carry on this suit in their own names after the Board of the Society has voted to discontinue its role in the litigation.

13. This is one of several factual disputes emerging from the pleadings and affidavits filed in the court below, where summary judgment was entered. Not all the factual discrepancies arising from the pleadings and affidavits, however, concerned material issues. For example, this issue of exactly how many acres of parkland are to be taken is immaterial for summary judgment purposes because it is clear that some parkland has been, or is to be, used. The relevant statutes in this case apply to projects which require the use of ANY parkland. See, e.g., 23 U.S.C.A. § 138 (Supp. 1971).

14. Indeed, the legislative history of section 4(f) reveals that the Brackeridge Park controversy was foremost in the minds of the Senators as they debated this Act and rejected a House amendment that was specifically designed to allow federal participation in the North Expressway. The Senate version prevailed. Compare 114 Cong. Rec. 90th Cong. 2d Sess., 19914, 19915 with 114 Cong. Rec. 90th Cong. Rec. 2d sess., 24023, 24032 (1968).

15. Since section 138 of the Federal Aid to Highway Act tracks, almost word for word, section 4(f) of the Department of Transportation Act of 1966, our references to section 4(f) hereinafter should be construed to include a reference to section 138 of the Federal Aid to Highway Act.

16. 42 U.S.C.A. § 4332 (Supp. 1971).

17. We have discussed in the text only the major contentions of the federal and state defendants. We have treated other of their defenses in footnotes. Their remaining defenses have been considered and disposed of without comment on grounds that they lack merit and warrant no discussion.

18. The defendants argue that there is "no law which would prohibit" the Secretary from dividing the projects into three segments. This argument misses the point. The Secretary is not so omnipotent that he must be presumed to possess power to act as he chooses unless there is some law prohibiting him from so acting. He possesses only the power which Congress has given him, and the scope of that power is defined by Congress. His action is specifically reviewable under the Federal Administrative Procedure Act, 5 U.S.C.A. § 706(a) (C) for being "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."

19. The federal defendants purport to rely on the letting of the contracts in "segments" as evidence that the project "had always been divided into three segments." This, of course, is of no probative value since the letting of the contracts occurred after, not before, the Secretary's decision to fragment the project.

20. The type of piecemeal planning evident here has been held unlawful in other cases. See Citizens Committee for the Hudson Valley v. Volpe, S.D.N.Y. 1969, 302 F. Supp. 1083, aff'd, 2d Cir., 425 F.2d 97, cert. denied, 400 U.S. 949, 91 S. Ct. 237 (1970); D.C. Federation of Civic Ass'ns v. Volpe, 316 F. Supp. 754 D.D.C. 1970).

21. The Secretary states in his brief that he acted "to satisfy the various competing interests in the total highway . . . [and] to approve construction of the two ends . . . where the controversy centered on the middle section."

22. At the Senate Hearings, DOT was represented by the Assistant Secretary for Urban Systems and Environment, who stated the following:

I think that perhaps the reason that the Department of Transportation was asked to have a representative here before your Committee was because within the purview of the Department of Transportation has lain in the past and will continue to lie in the future many of the activities that at least, are most apparent to the people of the country in the field of environmental impact.

Hearings Before the Committee on Interior and Insular Affairs, United States Senate, 91st Cong., 1st Sess. on S.1075, S.237. (emphasis added) at 76 (1969).

23. The State has argued throughout its brief that because of the completion before NEPA and section 4(f) of certain steps in the process of obtaining approval of this North Expressway, it is now too late to apply those statutes to this case. Specifically, the State has relied on the bond issue election in 1961, note 1 supra, the Bureau of Public Roads approval of the Public Hearing in 1963, supra, note 3, and the acquisition of part of the right-of-way. As we pointed out in note 1, supra, the legality of this Project has been contested from its inception, and the contest has been an ongoing one. The Secretary's approval of the Project for federal funding was the last step in the process; subject, of course, to judicial review. And since the Secretary's approval came on August 13, 1970, that date becomes the operative date for determining what law should apply in this case. This much is clear from the Overton Park case, which, as the State has admitted, note 25 infra, is "strikingly similar" to the instant case. In Overton Park, the Bureau of Public Roads had given route approval in 1956; local officials had already made a determination to go through the Park; and acquisition of right-of-way had been approved in 1967.

We recognize, of course, that there have been several cases which have declined to apply NEPA retroactively. See Investment Syndicates v. Richmond, D. Ore. 1970, 318 F. Supp. 1038; Brookes v. Volpe, W.D. Wash. 1970, 318 F. Supp. 90 (1970); Pennsylvania Environmental Council, Inc. v. Bartlett, M.D. Pa. 1970, 315 F. Supp. 238. In each of these cases, however, the critical act of federal approval of the challenged project had come prior to the effective date of NEPA, January 1, 1970. In Bartlett, the project was approved on November 20, 1969; in Richmond, Congress had approved the project in 1967; and in Brookes, the critical determination had been made in 1967.

24. The Resolution was a transparent attempt to by-pass section 4(f).

Among the "whereas" clauses, we find the following:

Whereas, the Congress of the United Stated States of America in 1968 amended section 4(f) of the Department of Transportation Act and Section 138 of Title 23 of the United States Code so as to include identical declarations of policy in each instance, reading in part as follows . . . [whereafter section 4(f) is quoted]

Shortly thereafter followed the resolution quoted in the text above.

25. The following language appears in a letter dated April 7, 1970 from Chairman Greer of the Texas Highway Commission to Mr. Francis C. Turner, the Federal Highway Administrator: . . . due recognition should be given to the fact that courts in other areas of the country have already ruled in favor of Highway Departments in cases raising the same objections as continue to be repeated by the San Antonio Conservation Society. We refer specifically to the . . . [case] . . . involving the Overton Park in Memphis.

The situation in Memphis, as we understand it, is strikingly similar to our situation in San Antonio in the following respects:

A. Both route locations were established long before Congress made any provision for preservation of parklands in federal highway laws.

B. Much of the right of way had been acquired prior to the time the active legal controversy arose.

C. The Mayor and City Council . . . had approved the route location.

D. Remedial measures had already been taken to restore areas and facilities taken from the parks involved.

26. The Supreme Court was clearly aware of the Memphis City Council's decision in Overton Park. See 401 U.S. at 408, 91 S. Ct. 25 819.

27. This principle has been characterized as "beyond challenge" by the Supreme Court. See Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S. Ct. 1174, 1185 (1958).

28. The Record in this case reveals that the Secretary of Transportation himself is partially to blame for the State's belief that it may so easily circumvent section 4(f). It appears that at the July 22, 1970 meeting in Secretary Volpe's office, the Secretary agreed that if the State refused to comply with the Secretary's recommendations after the section 4(f) study on the middle "segment" had been completed, the State could then withdraw from the Project and complete it with state funds. This action by the Secretary, coming with his authorization which triggered the commencement of construction on the two "end segments" leading into the Park, was a clear abdication of his section 4(f) responsibilities. The obvious purpose of requiring federal approval of a project before federal funding will be allowed is to induce in the construction of the project compliance with some Congressional purpose -- like preservation of parklands. Compare Air Line Pilots Ass'n v. Department of Transportation, 5th Cir. 1971, __ F.2d __ [No. 29564, slip opinion dated July 12, 1971]. The Secretary's action thwarted the very purpose of section 4(f) and ignored the will of Congress. We note how sharply it contrasts with his original position in February 1970, when he refused to approve any action that would permit the Texas Highway Department to complete the North Expressway along a route ineligible for federal participation. See note 8 supra. He evidenced a much better understanding of his responsibilities under the law in February than he did in July.

29. At oral argument in this case, the State argued that construction of the two end segments of the North Expressway has proceeded as far as it has "largely because of this Court's and the Supreme Court's actions in November and December of last year." We would remind the State, however, that this case has never been presented to this Court or the Supreme Court when things had not gone so far that the granting of a stay would have resulted in considerable financial loss to the defendants. See note 11 supra. Moreover, we would point out to the State that it was neither this Court nor the Supreme Court, but rather the defendants, who made the decision to commit large sums of public money to a highly controversial project, the legality of which was still in question, and over which an appeal was still pending. Finally, we now know from the Overton Park case that courts should not shrink from halting construction of projects such as the North Expressway which are being erected in clear violation of the law.

 

CLARK, Circuit Judge, concurring in part and dissenting in part.

I completely concur with all of the majority opinion save Part VII, and with the grant of injunctive relief against the federal defendants pending their full compliance with federal law. With deference, however, I dissent from so much of the opinion as holds that we can or should compel the State of Texas to hazard damages or possibly to forfeit the millions of dollars of her taxpayers' money now invested in the construction work which has been accomplished on the two end "segments" and in the parcels of right-of-way bought and paid for over the length of the entire project. See the cases cited in footnote 4 to the majority opinion. I do not say we should condone any form of subterfuge. However, no federal funds have yet been received for or expended on this project and should the State of Texas unqualifiedly renounce any federal fund participation in this project in the future, I cannot conceive of any equitable basis upon which the court below could enjoin the completion of this work as a purely State action. Texas is fortunate to have a tax base large enough to permit her to qualify for all permissible federal fund highway assistance each fiscal year. Thus, I do not see the withdrawal of her unaccepted application for federal funding of this project as any sort of an illicit or improper diversion of funds to thwart national policy. If Texas makes a final disengagement from what appears to me more nearly a proposal than a marriage, then neither Section 4(f) of the Department of Transportation Act of 1966 or the National Environmental Policy Act of 1969 would govern the execution of the remaining construction.

The plaintiffs have suggested that Texas would still be bound by its own law -- Tex.Rev.Civ.Stat.Ann. art. 5421q (Supp. 1971), an almost literal embodiment of Section 4(f) -- and that the court below would have pendent jurisdiction to enforce this State statute. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). There has been no development of this jurisdictional issue in that court. But assuming that the district court would have power to adjudicate this claim on such a jurisdictional basis, I believe it should exercise its discretion not to proceed on this wholly State cause of action and thus avoid a needless decision of State law. See C. Wright, Law of Federal Courts, 62-65 (2d ed. 1970). The mere fact that State law parallels federal law, without more, is no reason to warrant a federal forum in adjudicating a contention that a State may be violating its own statute. Such litigation ought to be strictly the business of State courts.

To this extent and on the condition set out, I respectfully dissent as to this point.

4(f) upheld at the Supreme Court: I-40, Memphis, Tennessee

The famous Overton Park case prevented I-40 from tearing through a park in Memphis,TN (the park is still there to this day).

www.section4f.com/case_overton.htm

source: http://en.wikipedia.org/wiki/Citizens_to_Preserve_Overton_Park_v._Volpe

Four decades later, the Memphis metropolitan region is building an Outer Beltway, about halfway completed on the east side. I-269 is part of the much longer I-69 "NAFTA Superhighway." Major sections are under construction in Indiana and Texas, and a segment recently was completed in Mississippi just south of the Memphis area. I-40 did not get built through Overton Park but that didn't change transportation priorities -- it just made highway planners leery of routing some of their roads through parks and historic sites.

 

I-40 vs. Overton Park

I-40 was originally routed directly through the middle of Memphis, including through Overton Park. The segment east of the park was built but the Supreme Court ruling upholding 4(f) protected the park and the I-40 designation was used for the northern, shorter half of the I-240 beltway.

 

Memphis Outer Beltway, partly completed, partly underconstruction (late 2014)

Federal Highway Administration and State of Maryland Guides to Using 4(f) (a resource for highway planners)

http://environment.fhwa.dot.gov/4f/index.asp

Program Overview
The Department of Transportation Act (DOT Act) of 1966 included a special provision - Section 4(f) - which stipulated that the Federal Highway Administration (FHWA) and other DOT agencies cannot approve the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges, or public and private historical sites unless the following conditions apply:

• There is no feasible and prudent alternative to the use of land.
  The action includes all possible planning to minimize harm to the property resulting from use.

Section 4(f) of the Department of Transportation (DOT) Act of 1966 was set forth in Title 49 United States Code (U.S.C.), Section 1653(f). A similar provision was added to Title 23 U.S.C. Section 138, which applies only to the Federal-Aid Highway Program.

Since 1966, Section 4(f) has undergone several changes. The first of these changes was a 1968 amendment to Section 4(f)'s wording-an effort by lawmakers to reconcile the language of 49 U.S.C. Section 1653(f) and 23 U.S.C. Section 138. The wording in the two provisions was somewhat different; therefore, the Federal-Aid Highway Act of 1968 amended the wording in both sections to be consistent. The second change was a result of the 1983 recodification of the DOT Act, in which Section 4(f) became 49 U.S.C. Section 303.

In August 2005, Section 6009(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), made the first substantive revision to Section 4(f) since the 1966 US Department of Transportation Act. Section 6009, which amended existing Section 4(f) legislation at both Title 49 U.S.C Section 303 and Title 23 U.S.C. Section 138, simplified the process and approval of projects that have only de minimis impacts on lands impacted by Section 4(f). Under the new provisions, once the US DOT determines that a transportation use of Section 4(f) property results in a de minimis impact, analysis of avoidance alternatives are not required and the Section 4(f) evaluation process is complete. Section 6009 also required the US DOT to issue regulations that clarify the factors to be considered and the standards to be applied when determining if an alternative for avoiding the use of a section 4(f) property is feasible and prudent. On March 12, 2008 FHWA issued a Final Rule on Section 4(f), which clarifies the 4(f) approval process and simplifies its regulatory requirements. In addition, the Final Rule moves the Section 4(f) regulation to 23 CFR 774.

SAFETEA-LU Section 6009(c) requires that US DOT study the implementation of Section 6009 and the amendments to Section 4(f) and provide two reports to Congress, the Department of Interior, and the Advisory Council on Historic Preservation. The Phase I Report of the SAFETEA-LU Section 6009 Implementation Study was submitted to them on September 15, 2010. The Phase II Report of the SAFETEA-LU Section 6009 Implementation Study was submitted to them on January 31, 2012.

 

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www.section4f.com

Maryland State Highway Administration site about 4(f), prepared when they were still seeking approval of the Intercounty Connector (which had been stalled over 4(f) issues).

 

FHWA's Section 4(f) Policy Paper
www.fhwa.dot.gov/environment/guidebook/vol2/4fpolicy.htm

FHWA graphic showing agency consideration of Section 4(f)

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57 decibels is the standard required for "tracts of land in which serenity and quiet are of extraordinary significance and preservation of those qualities in essential if the area is to continue its intended purpose." 23 CFR Ch.1 (4-1-95 Edition) 771.135(p)(4)(i) states that a "constructive use" of parkland occurs if "the projected noise level increase attributable to a project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f) ... [such as] enjoyment of an urban park where serenity and quiet are significant attributes."

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FHWA 4(f) paper
6. Public Multiple-use Land Holdings
Question: Are multiple-use public land holdings (e.g., National Forests, State Forests, Bureau of Land Management lands, etc.) subject to the requirements of Section 4(f)?
Answer: Section 4(f) applies to historic sites and only to those portions of lands which are designated by statute or identified in the management plans of the administering agency as being for parks recreation, or wildlife or waterfowl refuge purposes and which are determined to be significant for such purposes. For public land holdings which do not have management plans (or where existing management plans are not current) Section 4(f) applies to those areas which function primarily for Section 4(f) purposes. Section 4(f) does not apply to areas of multiple-use lands which function primarily for purposes not protected by Section 4(f).

 

For purposes of Section 4(f), a historic site is significant only if it is on or eligible for the National Register of Historic Places, unless the FHWA determines that the application of Section 4(f) is otherwise appropriate. If a historic site is determined not to be on or eligible for the National Register of Historic Places, but an official (such as the Mayor, President of the local historic society, etc.) provides information to indicate that the historic site is of local significance, FHWA may apply Section 4(f). In the event that Section 4(f) is found inapplicable, the FHWA Division Office should document the basis for not applying Section 4(f). Such documentation might include the reasons why the historic site was not eligible for the National Register." (FHWA 4(f) Policy Paper)

 

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www.fhwa.dot.gov/environment/guidebook/vol2/4fpolicy.htm

Section 4(f) Policy Paper

4f policy paper
2. Public Parks, Recreation Areas, and Wildlife and Waterfowl Refuges

Question: When is publicly owned land considered to be a park, recreation area or wildlife and waterfowl refuges? Who makes the decision?
Answer A: Publicly owned land is considered to be a park, recreation areas, or wildlife and waterfowl refuge when the land has been officially designated as such or when the Federal, State, or local officials having jurisdiction over the land determine that one of its major purposes or functions is for park, recreation, or refuge purposes. incidental, secondary, occasional, or dispersed recreational activities do not constitute a major purpose. For the most parts the "officials having jurisdiction" are the officials of the agency owning or administering the land. There may be instances where the agency owning or administering the land has delegated or relinquished its authority to another agency, via an agreement on how some of its land will be used. The FHWA will review this agreement and determine which agency has authority on how the land will be used. If the authority has been delegated/relinquished to another agency, that agency must be contacted to determine the major purpose(s) of the land. After consultation and in the absence of an official designation of purpose or function by the officials having Jurisdiction, the FHWA will base its decision on its own examination of the actual functions that exist.
The final decision on applicability of Section 4(f) to a particular type of land is made by FHWA. In reaching this decision, however, FHWA normally relies on the official having jurisdiction over the land to identify the kinds of activity or functions that take place.

 

Question B: How should the significance of public parks, recreation areas, and waterfowl and wildlife refuges be determined?

Answer B: "Significance" determinations (on publicly owned land considered to be parks recreation areas, or wildlife and waterfowl refuge pursuant to Answer A above) are made by the Federal, State, or local officials having jurisdiction over the land. For the most part, the "officials having jurisdiction" are officials of the agency owning or administering the land. For certain types of Section 4(f) lands, more than one agency may have jurisdiction over the site. The significance determination must consider the significance of the entire property and not just the portion of the property being used for the project. The meaning of the term "significance" for purposes of Section 4(f) should be explained to the officials having jurisdiction. Significance means that in comparing the availability and function of the recreation, park, or wildlife and waterfowl refuge area with the recreational, park, and refuge objectives of that community, the land in question plays an important role in meeting those objectives. If a determination from the official with jurisdiction cannot be obtained, the Section 4(f) land will be presumed to be significant. All determinations (whether stated or presumed) are subject to review by FHWA for reasonableness.

Question C: Are publicly owned parks and recreation areas which are significant but not open to the public as a whole, subject to the requirements of Section 4(f)?
Answer C: The requirements of Section 4(f) would apply if the entire public is permitted visitation at any time. Section 4(f) would not apply when visitation is permitted to only a select group and not the entire public. Examples of such groups include residents of a public housing project; military and their dependents; students of a school; and students, faculty, and alumni of a college or university. The FHWA does, however, strongly encourage the preservation of such parks and recreation areas even though they may not be open to the public at large.

 

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www.fhwa.dot.gov/environment/guidebook/vol1/doc14t.pdf
Applicability of Section 4(f) to Wetlands under Easement to the U.S. Fish and Wildlife Service
Date: May 3, 1983
From: Chief, Environmental Programs Division HEV-11
Washington, D.C.
To: Mr. Morris C. Reinhardt HEP-08 Regional Federal Highway Administrator, Denver, Colorado

The following is an explanation of the reasons why Section 4(f) applies to wetlands under easement to the U.S. Fish and Wildlife Service. Three points are addressed in making this determination, First, whether these easements constitute public ownership. Secondly, whether wildlife refuges must be open to public use or access to be protected by Section 4(f). Finally, whether these protected wetlands are wildlife and waterfowl refuges.
Although not owned in fee simple, two factors in these easements result in a public ownership determination. "Publically owned" does not have to be ownership in fee to qualify for Section 4(f) protection, The U.S. Fish and Wildlife Service exercises control, although not complete control, over the activities allowed on the subject property to a sufficient degree to assure that it will be available for wildlife habitat. Also, and more importantly, these easements are in perpetuity. The permanence of these easements and the control over the property clearly indicate a degree of ownership. Where the easements are short-term or revokable, Section 4(f) may not apply. The application of Section 4(f) protection would have to be determined on a case-by-case basis.
We recognize that access to these wetlands by the public can be controlled by the private landowner and that the landowner maintains full use of the land. However, the term "public" when applied to parks and recreation areas refers to public purposes and benefit as well as public access and use. Public access and use are not essential for wildlife refuges provided there is some public purpose or benefit served. It is generally held that "public" wildlife refuges need only be for public purpose or benefit to qualify for Section 4(f) protection, provided there is at least partial ownership by some level of government.
The final question is whether these wetlands under easement are wildlife and waterfowl refuges. These easements have been acquired by the Department of the Interior under the authority of the amended Migratory Bird Hunting Stamp Act. As defined in 50 CFR 25.12, "Waterfowl production area means any wetland or pothole acquired pursuant to . . . the amended Migratory Bird Hunting Stamp Act . . . and administered by the U.S. Fish and Wildlife Service as part of the National Wildlife Refuge System" While birds may not be protected from in-season hunting within the wetland easement areas, such areas are still considered a refuge because of-their primary purpose. Public Law 89-669, Section 4(d), states 'The Secretary is authorized to ... permit the use of any area within the (National Wildlife Refuge) System for any purpose, including but not limited to hunting, fishing, public recreation . . . whenever ... such uses are compatible with the major purposes for which such areas were established." The purpose of the easements is to protect the nesting, resting, feeding and habitat areas of certain migratory birds for the reproduction and maintenance of the species.
It is our conclusion that the subject wetlands are publicly owned wildlife refuges administered for public benefit. Therefore, Section 4(f) protection must be applied to these properties.
We hope the above information explains the reasoning behind this determination.

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Title 23, United States Code, Section 771.125

(c) The Administration will indicate approval of the EIS for an action by signing and dating the cover page. Final EISs prepared for actions in the following categories will be submitted to the Administration's Headquarters for prior concurrence:

(1) Any action for which the Administration determines that the final EIS should be reviewed at the Headquarters office. This would typically occur when the Headquarters office determines that (i) additional coordination with other Federal, State or local governmental agencies is needed; (ii) the social, economic, or environmental impacts of the action may need to be more fully explored; (iii) the impacts of the proposed action are unusually great; (iv) major issues remain unresolved; or (v) the action involves national policy issues.

(2) Any action to which a Federal, State or local government agency has indicated opposition on environmental grounds (which has not been resolved to the written satisfaction of the objecting agency).

 

"While the Federal Highway Administration makes everyreasonable effort to obtain consensus with officialshaving jurisdiction over parkland resources, Section 4(f) does not require the approval of such officials. The Blue Route Project near Philadelphia, Pennsylvania is an example of ahighway project which required the condemnation of public parkland despite objections of the officials with jurisdiction over the resource. A slight variation of this occurred for the E.C. Lawrence Park in Northern Virginia. In this project, a reversionary clause in the deed which originally donated the land to the park required park officials to contest any taking of park property or risk having the property revert to another party. FHWA prevailed in court and the park property has been acquired."

source: FHWA Memorandum, August 7, 1997

The "Blue Route" is Interstate 476, the western bypass of Philadelphia.

 

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Region 3's Environmental Guidebook ...

 

U. S. Department of Transportation

Federal Highway Administration

MEMORANDUM

Subject: Processing Final EISs

Date: November 25, 1987

From: Director, Office of Environmental Policy

Washington, D.C. 20590

Reply to Attn. of: HEV-11

To: Regional Federal Highway Administrators Regions 1-10

 

Revisions to FHWA's environment al regulation will become effective November 27, 1987. These revisions contain new criteria (23 CFR 771.125(c)) for determining which final EISs need concurrence of the Washington Headquarters prior to approval. The criteria are somewhat subjective. Furthermore, the regulation does not state who is to determine the need for prior concurrence on individual projects. The following guidance addresses these issues.

Our memorandum transmitting draft EIS comments will state whether prior concurrence on the final EIS is needed. This will be based primarily upon the draft EIS review. Prior concurrence will not be necessary when:

a. The draft EIS shows sufficient coordination with Federal, State or local government agencies (i.e., adequate scoping);

b. the draft EIS shows that the social, economic or environmental impacts (including mitigation) are adequately explored;

c. the proposed action does not have impacts which appear to be unusually great, and

d. the proposed action does not involve National policy issues.

Where (1) it is apparent from the final EIS that the conditions in a-d above are no longer met, (2) the action is opposed by a Federal, State or local government agency on environmental grounds at the time the final is submitted to FHWA for approval, (3) the final EIS contains major unresolved issues, or (4) there is a strong likelihood of litigation, it will be incumbent on the Regional Office to forward the final EIS to the Washington Headquarters for prior concurrence.

The following examples illustrate some of the common Instances of opposition on environmental grounds and major unresolved issues:

1.EPA rates a project environmentally unacceptable even after all mitigation (found to be in the public interest) has been negotiated with them.

2.An agency states that the project may be referred to CEQ.

3.It appears that issuance of Federal permits (such as a Section 404 permit) will be a major controversy.

4.The project requires massive relocations or causes other severe impacts.

5.Opposition from local governments.

6.Substantial community opposition based on environmental or community impacts.

7.Major cultural resource conflicts where agreement with the Advisory Council on Historic Preservation cannot be reached.

8.Disposal or treatment of hazardous wastes from the project has not been resolved.

 

/ Original signed by /

Ali F. Sevin

 

U. S. Department of Transportation

Federal Highway Administration

MEMORANDUM

Subject: ACTION: Streamlined Environmental Impact Statement (EIS) Review and Approval Process

Date: 10/01/96

From: Rodney E. Slater Administrator

Reply to Attn. of: HEP-30

To: Regional Administrators, Federal Lands Highway Program Administrator

I am pleased to announce measures to streamline the EIS review and approval process. Effective immediately, Headquarters' routine review of draft EISs is eliminated and Regional Administrators and the Federal Lands Highway Program Administrator are delegated the authority to make determinations concerning which final EISs require the prior concurrence of FHWA Headquarters.

....

One critical issue in this overall effort is the involvement of Headquarters in projects which are highly controversial or involve issues of national significance. Our environmental regulation requires Headquarters prior concurrence of final EISs on such projects. Since our Headquarters staff will not routinely review draft EISs, we will rely on you to notify us of those projects that might require prior concurrence and to confer with Headquarters on the need for Headquartersí involvement. Indeed, I expect that on such projects, these discussions would occur at the earliest possible stage, long before a draft EIS has been released to the public.

Constructive Use

4(f) also applies to indirect impacts to parklands, called "constructive use." The FHWA 4(f) Policy Paper notes that "A constructive use of a Section 4(f) site can occur when the capability to perform any of the site's vital functions is substantially impaired by the proximity impacts from a transportation project. Such substantial impairment would occur when the proximity impacts to Section 4(f) lands are sufficiently serious that the value of the site in terms of its prior significance and enjoyment are substantially reduced or lost."

23 CFR 771.135(p)(4)(i) states that a "constructive use" of parkland occurs if "the projected noise level increase attributable to a project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f) ... [such as] enjoyment of an urban park where serenity and quiet are significant attributes." This means that Congress intended parks that are not highly developed should get equal evaluation under 4(f) as parks with amphitheaters, parking lots, picnic tables and other built-up facilities.

4(f) examples: Maryland, Oregon, Kentucky

I-70 and I-170, Baltimore, Maryland

In the 1970s, I-70 was blocked from bulldozing through two parks in southwestern Baltimore, MD and the funds were transferred to Baltimore's subway system. I-70 would have terminated at I-95, with an interchange for an I-170 spur into the downtown (now US 40). The last "ghost ramp" (ramp to nowhere) built at the I-95 / I-70 interchange was removed in the late 1990s.

http://bcrp.baltimorecity.gov/Parks/GwynnsFallsLeakinPark.aspx

Gwynns Falls/Leakin Park is one of the few large tracts of land in Baltimore to retain its original collection of structures in relationship to its well-preserved natural landscape. This integrity of setting contributes to the estate's architectural significance as a rural picturesque environment that was essential to the concept of a country estate in the mid-19th century. ...
The park has suffered from many controversies over the years. Initially, some of the funds for the park came from the estate of John Wilson Leakin who donated five properties along Howard and Fayette Streets, the proceeds of which were to be dedicated for the purchase of park land. Later, plans were developed to place Interstate I-70 through the Gwynns Falls Park in front of the mansion, which would have required the demolition of the carriage house. Fortunately, the I-70 project was stopped. The park is situated on the fall line of the Piedmont plateau where streams cut ravines to drop to the coastal plain and to the Chesapeake Bay. Located in West Baltimore, Gwynns Falls/Leakin Park is bounded to the north by Windsor Mill Road and to the south by Wilkens Avenue. As a greenway it is projected that the new Gwynns Falls Trail initiated in 1997 will connect to the Middle Branch Park along the Patapsco River, totaling '4 miles in length for recreational use.

 

www.friendsofgwynnsfallsleakinpark.org/history.php

Gwynns Falls/Leakin Park-one contiguous parkland with two names--comprises one of the largest woodland parks in an eastern United States city. Consisting of over 1000 acres, this is by far Baltimore's most extensive park, stretching from the western city line along the valley of the Gwynns Falls and its tributaries all the way to Wilkens Avenue.

 

www.friendsofgwynnsfallsleakinpark.org/advocacy.php

FOGFLP evolved from a coalition of concerned volunteers, VOLPE (Volunteers Opposed to Leakin Park Expressway), who opposed the construction of Interstate 70 through Gwynns Falls/Leakin Park. This section of expressway was designed to bisect the park en route to downtown Baltimore.

Community resistance against this project arose in 1962 and lasted until 1982. At that time plans to build the city section of the expressway were abandoned due to a change in the funding formula and continued community opposition. Remaining members of VOLPE reorganized to establish the Friends of Gwynns Falls/Leakin Park (FOGFLP) in 1983 with the goal to help preserve, improve and promote the 1000-acre urban wilderness park.

 

my note: John Volpe was US Secretary of Transportation for President Richard Nixon. He was also the first administrator of the Federal Highway Administration, appointed by President Dwight Eisenhower.

 

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Intercounty Connector - I-370 - Maryland Route 200

One thing that Washington, D.C. is famous for its Capitol Beltway, a ring road that opened in 1964. "Inside the Beltway" is a slang term for political insiders. But after decades of expansion of the military industrial complex and its related suburban sprawl in Maryland and Virginia, "Washington insiders" no longer fit solely inside the Beltway.

The original highway plans for post-World War II metropolitan area Washington included multiple beltways plus loop roads inside the city. Inner city D.C. had some of the most sustained freeway fights of any community in the 1960s (for details, see "Interview with a Freeway Fighter" at www.peaktraffic.org/compromise.html - also some of the maps are available at www.peaktraffic.org/dc.html). Only about half of the downtown loop system was built (around the "Federal enclave) and much of the rest inside the city was scrapped. The initial construction funds for Metro, D.C's subway, came from highway funds for these canceled roads.

Plans for an Outer Beltway went through countless changes, reroutes, truncations and alterations. One relic of these 1950s proposals in Maryland is the Intercounty Connector, a northern arc of the original Outer Beltway. It took about six decades between inital plans and the grand opening (in 2011).

I was involved in the 1990s effort to prevent this highway and our efforts succeeded in the withdrawal of the Environmental Impact Statement for the ICC, although not cancellation.

In 1997, the Federal Highway Administration put these plans on hold after realizing the preferred alternative lacked "legal sufficiency" regarding Section 4(f), since it would have sliced through six stream valley parks over its 18 mile length. Essentially, the ICC goes from park to park to park, the maximum park impact possible for a highway. The neighborhood impact is indirect -- the suburbs built around the ICC route have the misfortune to live next to the highway.

It's hard to know whether it's worse to live in the path of a highway or next to it -- at least those forced to move get some compensation for destroying their homes. People who live immediately next to a new superhighway don't receive a penny for the noise, dirt, smog and diminished property values.

The parks decimated by the ICC have much of the remaining natural habitat in the Maryland suburbs of D.C. They habor forest interior habitat, forested wetlands and intact forest ecosystem. Seven County champion trees were found in and next to the route of the ICC -- a fact that was embarassing to County planners.

Governor Glendening kept the ICC on life support - including the continued purchase of right of way - after the FHWA privately concluded it would lose its potential legal challenge. He convened a panel to further "study" the project and the panel concluded they wanted a so-called "parkway" on the main route. Now that he is no longer in office, he is now at "Smart Growth America," where the staff claims that the Governor was always against the ICC.

A new EIS was started under the Bush administration, this time it was successful. The feds added a new reason for the highway -- it supposedly would help "Homeland Security" in the National Capitol Region. The EIS claimed it would enable evacuation of the area in case of an attack on D.C., although the highway is circumferential and does not go into the metropolitan area's core. Perhaps the real "Homeland Security" purpose is that the ICC has an embedded surveillance system that tracks every vehicle on it via electronic tolling. It's similar to the "ring of steel" in the City of London in Britain that tracks every vehicle in real time.

It is noteworthy that the eastern terminus of the ICC is near the global headquarters of the National Security Agency, the largest electronic spy agency on Earth. The ICC's western terminus, the "270 Technology Corridor," is full of government contractors including many with NSA and other military connections. Perhaps this is part of the real "Homeland Security" purpose -- facilitating commutes of the US government's "intelligence community."

The Bush era EIS made a change to the "Master Plan Alignment" to reroute the road around part of Rock Creek Regional Park. It still slice through that park, but at a narrower crossing, although this had severe damage to the adjacent neighborhood, including home demolitions. This was done to meet the "minimization" requirement of Section 4(f), which requires avoidance, and if avoidance is not possible then minimization of the impact. The other parks along the route - Mill Creek, North Branch Rock Creek, Northwest Branch, Paint Branch and Little Paint Branch - had no minimization of the impact. Worse, the 2004 Environmental Impact Statement pretended that the route through much of Paint Branch stream valley park was not actually parkland (and therefore not subject to 4(f)). The law contains an exemption for designated highway corridors established through parkland when the park is established.

Several of the ICC parks had a highway reservation set aside when the parkland was acquired, including part of Paint Branch. However, part of the Paint Branch park was acquired so long ago that the original route (back when it was still called "Outer Beltway) had the highway reservation, not the "Alignment G Modified" that was ultimately selected years later. The 1997 Draft EIS correctly showed the park and highway reservation. While there was a small mention of this illegality in the federal lawsuit filed by Audubon Naturalist Society and Maryland Native Plant Society, it was not highlighted and they chose not to appeal when their suit was dismissed. Paint Branch had the most public controversy of any ICC segment because its Good Hope tributary had some of the cleanest water remaining in suburban Montgomery County, including a naturalized trout population that is an indicator species of stream health. The ICC parallels the main forested section of this stream and the highway crossing is now full of trash and sediment.

The ICC route through Mill Creek, Rock Creek Regional Park, North Branch Rock Creek, Northwest Branch, Paint Branch and Little Paint Branch Park. The "dogleg" shift (just below "Redland") shows where the ICC route detoured around some of Rock Creek Regional Park (and through a suburban neighborhood).

 

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West Eugene Porkway, Eugene, Oregon

The West Eugene Porkway was first proposed in 1951 and canceled in 2007. It was originally the "Roosevelt Freeway" but was not at the top of the priority list . Interstate 5 and its "tributary" highways (Beltline, Delta, 126 in Springfield) were built in the 1950s and 1960s.

During the 1960s, there was public outrage about the encroachment of I-105 into Eugene. The initial construction chewed up a neighborhood and threatened to slice into south Eugene, with severe community impact. Eventually 105 was scaled back and only extended as far as 6th and 7th (the original stub went to 1st Street, a minor road inappropriate for a freeway terminus). The Roosevelt Freeway would have had an interchange with 105, and its route westward would have had major neighborhood and park impacts.

Following the freeway revolts, the Roosevelt project was scaled back to avoid the neighborhoods and parks. Several proposals were offered through the 1970s and ultimately in 1985 the "West Eugene Parkway" concept was unveiled in a Draft EIS. This went through a Supplemental DEIS and then a Record of Decision was issued in 1990.

While the WEP was being designed, the US Bureau of Land Management started purchasing property in west Eugene for a nature preserve to protect extremely rare habitat for endangered species. West Eugene has some of the last remnants of Willamette Valley wet prairie, an ecosystem that has about one-thousandth of the original amount thought to exist before European settlement. It is so rare that for many years there was only one example known to exist (at Finley wildlife refuge south of Corvallis); now about a dozen are known, including the West Eugene Wetlands. Federally endangered plants depend on this biome including Kincaid's Lupine, the host plant for the Federally Endangered Fender's Blue Butterfly. Most of the vanished 99.9% of wet prairie became farmland (and most of that is now growing grass seed), although some is ideal for urbanization if wintertime drainage systems are built. Wet prairies are flooded in the rainy season and bone dry in the summer.

The WEP study and the BLM acquisitions deepened understanding of the rarity of this habitat and tied up the WEP in bureaucratic process for many years. In 1996, when construction looked imminent, Barbara Kelley and her Save Our ecoSystems (SOS) group filed a Federal suit. Federal Highway immediately withdrew their approval rather than defend it in court. The following year, a Supplemental Draft EIS was filed, shifting the route slightly to reduce impact on the endangered species but ironically increasing the Section 4(f) impacts.

My involvement in the efforts to prevent the WEP began in 1999, after moving to Eugene. I attended an ODOT public information session and read the SDEIS, which included a 4(f) analysis. A few months later, the project manager of the WEP told me that 4(f) no longer applied to the project. The Oregon Department of Justice had written a legal analysis claiming 4(f) did not apply to the BLM properties and therefore the Final EIS need not consider these impacts. However, 4(f) is very clear that these types of nature reserves are covered by the law, and after reminding ODOT of this they dropped plans to remove 4(f) protection for these parks. These protections were further strengthened when the BLM named one of the parcels along the route "Bertelsen Nature Park," removing any ambiguity over whether these public parklands were parks or not.

FHWA and ODOT never completed the Final EIS and a No Build decision was issued in 2007.

The green areas represent the BLM's West Eugene Wetlands nature park. Purple represents the ODOT highway reservations not subject to 4(f). Most of these ODOT properties are now for sale, although given the fact most are wetlands they do not have much real estate value.

 

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I-265 Kentucky / Indiana

In 2012, the Record of Decision was issued for extending I-265 from Kentucky to Indiana, an Outer Beltway around Louisville. One of the parts of the decision is to build a part of the road in an 1,800 foot long tunnel underneath a historic property subject to Section 4(f) as a minimization option to reduce impact. Details on this project are at the Kentucky page.

2005 transportation law reduced applicability of Section 4(f)

The 2005 transportation law "SAFETEA-LU" exempted 4(f) impacts from Federal Highway consideration if they are small enough to be considered "de minimus." Clipping the edge of a park could be considered de minimus if it would not have substantial impact on the park's function. It's not as bad of a legal rollback as it could have been but it suggests the highwaymen will be back in future transportation laws with worse attacks on 4(f).

Advice from the No I-710 campaign, Pasadena, California

www.no710.org/quarterly/lawsviolated.html [no longer online]
The Department of Transportation Act, through its "Section 4f", contains specific substantive limits on federal transportation projects:
They cannot harm historic or recreational resources unless no feasible and prudent alternative exists
All planning to minimize harm has been carried out. ...
Especially in the western United States, the federal courts have interpreted Section 4(f) to disapprove freeway construction even when the only alternative was "no project." In light of the incomplete historical assessment for the Route 710 extension proposal, the availability of a "low build" alternative ... it is extremely unlikely that Route 710 can pass muster under Section 4f.

www.landwater.com/pasadena/pasadena.html#plaintiffs_have_amply
Section 4(f) of the Department of Transportation Act is one of the two most stringent federal environmental statutes ever enacted by Congress. Only the Endangered Species Act ranks with it. As an historic preservation measure, Section 4(f) stands alone. The statute explicitly prohibits the Secretary of Transportation from approving any project that requires the "use" of historic sites or parkland, unless (1) there is no "prudent and feasible" alternative to the use of the sites, and (2) "all possible planning" has been taken to minimize harm to the sites. 28 U.S.C. 138; 49 U.S.C. 303).
In contrast to the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), whose mandates are ultimately "procedural," Section 4(f) imposes a substantive constraint on the exercise of agency discretion. [emphasis added]
Section 4(f) operates as a "plain and explicit bar to the use of federal funds" for transportation projects that would use historic sites and parks; "only the most unusual situations are exempted." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411 (1972). Indeed, the language of Section 4(f) shows that Congress intended the protection of parks and historic sites to be given "paramount importance" in the planning of federal transportation projects. Id. at 412-13.
The circumstances under which an alternative can be rejected as not "feasible and prudent" have been very narrowly defined by the Supreme Court in the Overton Park case. The Secretary is not permitted to "engage in a wide-ranging balancing of competing interests." Id. at 413. An alternative is "infeasible" only if it cannot be built "as a matter of sound engineering." Id. at 411. And in order to find an alternative "not prudent" under Section 4(f), the Secretary must find that "truly unusual factors" are present, or that "alternative routes present unique problems," or that the "cost or community disruption" resulting from the alternative would reach "extraordinary magnitudes." Id[3]. Without such a showing, even the asserted "need" for the project cannot suffice to rule out alternatives that would avoid using protected sites. See Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1450-58 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985).
....
Agencies may not circumvent the assessment of alternatives by narrowly defining project purposes so that only the project could meet them, or by employing methodologies that slant the analysis in favor of the project. See Sierra Club, Illinois Chapter v. U.S. Department of Transp., 962 F. Supp. 1037, 1042, 1046 (N.D. Ill. 1997); Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991); accord, Stop H-3 Ass’n v. Dole, 740 F.2d at 1455 n.21; see also note 16 infra.

www.wildlandscpr.org - WIldlands CPR / Road RIPorter

Section 4(f) Can Protect Public Parks from Development

by Peter Belmont, from The Road-RIPorter 1.5

"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 (USDOT) 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...unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm..."
­ 1966 Department of Transportation Act, Section 4(f)

This is the law and has been for 30 years. First adopted by Congress as part of the 1966 Dept. of Transportation Act and referred to ever since as "section 4(f)" this Congressional directive is one of our strongest environmental laws. The section 4(f) mandate is much stronger then the National Environmental Policy Act's (NEPA) environmental impact statement (EIS) process.

Section 4(f) is much stronger than NEPA

Under NEPA, an agency is required to gather and consider information about the impacts of the proposed federal action. NEPA mandates nothing more. For the purpose of determining NEPA compliance, an agency is free to proceed with any project alternative, regardless of the environmental impact, so long as the agency has completed an EIS.

Under section 4(f), however, the agency must do more than gather information and review project alternatives. According to this law, the USDOT Secretary cannot approve the construction of a highway through parks, recreation areas, or wildlife and waterfowl refuges except under the most unusual situation: when there is no other feasible and prudent alternative to the use of such lands.

Tested and proven in the courts

Section 4(f) was "tested" and "proven" in the courts not long after its adoption. In 1956 a highway route was first approved which would have taken 26 acres from Overton Park in Memphis, Tennessee for the construction of I-40. The route was reapproved in 1966 and the state began purchasing right-of-way on either side of the park, culminating in acquisition of the parkland from the city in 1969. The decision to proceed with the construction of the highway through the park was challenged by citizen groups.

After being denied relief at the trial and appellate levels of court, the U.S. Supreme Court in 1971 ruled in the citizen's favor. The Supreme Court concluded that the protection of parkland was to be given paramount importance and held, "the few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes."

Important features of Section 4(f)

What is important to remember about section 4(f)? First, it applies to primarily to federally aided highway projects (other transportation projects such as airport expansions are also subject to similar requirements). Second, to trigger section 4(f) the area proposed for the construction of the highway must be a publicly owned park, recreation area, or wildlife and waterfowl refuge of national, state or local significance (it will be the rare exception where such a land will not be of national, state or local significance). A highway project is usually classified as a federally aided project where federal dollars help pay for its construction.

A project can become "federalized" in other ways too. Federal planning dollars in conjunction with non-federal construction dollars can present a sufficient federal nexus to invoke section 4(f). It is also possible that federal permitting (i.e., sec. 404 dredge and fill permit) without federal construction dollars will also be of sufficient nexus to require section 4(f) compliance.

Direct or indirect use of a public park requires review of road projects under Section 4(f)

In deciding if "use" of park, recreation, or wildlife lands will occur, the word "use" is to be construed broadly in favor of environmental protection. Thus, "use" may result from direct or indirect impacts. A "direct" use is normally easy to determine. Such a use arises where the land to be used for the construction of the highway actually is a publicly owned park, recreation area or wildlife and waterfowl refuge.

An "indirect" use would come about where the impacts of a proposed highway substantially impair the use of adjacent or nearby parkland for the purposes which the lands were used prior to the highway project. For example, the construction of a proposed highway around a campground or in close proximity to a designated wilderness area have both triggered section 4(f) review.

If a section 4(f) review is to be undertaken then a 4(f) statement will be completed by the agency. This statement is in many ways like an EIS. It should discuss project impacts and alternatives and be subject to interagency and public review and comment. The purpose of the statement is to document the agency decision making process. That is, assuming the agency has decided to use a public park, recreation, or wildlife land for a highway project the section 4(f) statement should document the alternatives considered to the use of such lands, why the alternatives are not feasible and prudent alternatives, and what steps are being taken by the agency to minimize harm to the lands at issue.

Section 4(f) has been successful in directing highway projects away from our parklands. However, its ultimate success depends upon the involvement and vigilance of citizens and communities.