Hickory Neighborhood Defense League v. Skinner

910 F.2d 159, 1990 WL 112354
Court of Appeals for the Fourth Circuit·Decided August 8, 1990·No. No. 90-2641·Published·Cited by 12 cases

Opinion

WILKINS, Circuit Judge:

Hickory Neighborhood Defense League appeals the order of the district court on remand from our decision in Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58 (4th Cir.1990) (Hickory Neighborhood I). We affirm.

I.

The genesis of this litigation was a proposal by the North Carolina Department of Transportation (NCDOT) to widen a portion of N.C. Highway 127 in Hickory, North Carolina. Approximately three blocks of the proposed widening will occur in the Claremont Historic District. The history of this project is set forth in our prior opinion and need not be repeated in detail. See id. at 59-60.

Because the proposed project would use land on which an historic site is located, defendants prepared an evaluation of the project as required by section 4(f) of the Department of Transportation Act of 1976, 49 U.S.C.A. § 303 (West 1990), and section 18(a) of the Federal-Aid Highway Act, 23 U.S.C.A. § 138 (West Supp.1990) (collectively “section 4(f)”).1 The section 4(f) evaluation considered the following alternatives:

Alternative 1 — widening N.C. Highway 127
Alternative 2A — one way pair — 127 and N. Center Street
Alternative 2B — one way pair — 127 and 1st Street N.E.
Alternative 3A — Eastern Bypass
Alternative 3B — Middle Bypass
Alternative 4 — postponement
Alternative 5 — no build

The section 4(f) evaluation concluded that there were no feasible and prudent alternatives to widening existing N.C. Highway 127 and that all means to minimize harm to the historic land had been considered. The United States Department of the Interior agreed with these conclusions. After the Federal Highway Administration (FHWA) approved the section 4(f) evaluation and the NCDOT gave design approval, the FHWA authorized right-of-way acquisitions.

Hickory Neighborhood filed suit seeking to enjoin the widening of N.C. Highway 127. It alleged that the Secretary of Transportation failed to comply with section 4(f) and with section 102 of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332 (West 1977) (requiring environmental impact statements in certain circumstances). The district court entered judgment denying Hickory Neighborhood’s request for injunctive relief and dismissing [162]*162its action. Hickory Neighborhood Defense League v. Burnley, 703 F.Supp. 1208 (W.D.N.C.1988). On appeal, we affirmed the decision of the district court that the Secretary had complied with section 102. Hickory Neighborhood I, 893 F.2d at 63. However, we vacated its decision that the Secretary had complied with section 4(f) and remanded for findings as to whether the Secretary determined that the alternatives to the widening of N.C. Highway 127 were not prudent in light of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and whether the facts before the Secretary supported his determination. Hickory Neighborhood I, 893 F.2d at 62. On remand, the district court specifically found that the Secretary determined that the alternatives to widening N.C. Highway 127 were not prudent and that the facts before the Secretary supported his decision to reject those alternatives. Hickory Neighborhood Defense League v. Skinner, 731 F.Supp.207 (W.D.N.C.1990).

II.

Section 4(f) prohibits the Secretary from approving a highway project that requires the use of a public park, recreation area, wildlife and waterfowl refuge, or land of an historic site of national, state, or local significance unless:

(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

49 U.S.C.A. § 303(c). In Overton Park the Supreme Court addressed review of a determination by the Secretary under section 4(f) noting that under section 706 of the Administrative Procedure Act, 5 U.S.C.A. § 706 (West 1977), the reviewing court is “to engage in a substantial inquiry.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. The Court identified three factors for the reviewing court to consider. First, the court must determine whether the Secretary acted within the scope of his authority. Id. In making this determination, the court must find that the Secretary could have reasonably believed that there were no feasible and prudent alternatives. Id. at 416, 91 S.Ct. at 823. Second, the court must determine that the Secretary’s decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. In deciding whether the decision was arbitrary or capricious, “the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. However, the reviewing court may not “substitute its judgment for that of the agency.” Id. The final factor to consider is whether the Secretary followed all procedural requirements. Id. at 417, 91 S.Ct. at 824.

III.

In Overton Park the Supreme Court indicated that section 4(f) land could not be used “unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.” Id. at 413, 91 S.Ct. at 822. The Court also noted that the Secretary could not approve the use of section 4(f) land unless the alternatives presented unique problems. Id. Hickory Neighborhood contends that in determining that the alternatives to widening N.C. Highway 127 were not prudent, the Secretary failed to correctly apply the Overton Park test. It points to our prior opinion in which we stated that “the administrative record does not indicate that the Secretary determined that there were unique problems or that the disruption associated with the alternatives reached extraordinary magnitudes.” Hickory Neighborhood I, 893 F.2d at 61. However, the fact that the Secretary did not use the terms “unique” and “extraordinary” does not compel a finding that he did not comply with section 4(f).and the dictates of Overton Park. See Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir.1982) (use of “magic” terminology not required in section 4(f)(2) analysis). In Hickory Neighborhood I we did not hold that the Secre[163]*163tary failed to make the required analysis. Rather, we only found that in the absence of specific findings of unique problems, it was unclear whether the Secretary determined that such problems existed. Thus, we remanded to the district court to make a specific finding as to whether the Secretary complied with section 4(f) in light of Overton Park.

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Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159, 1990 WL 112354 (4th Cir. 1990).

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