to a presumption of regularity." Overton Park, 401 U.S. at 415. The reviewing court may not "substitute its judgment for that of the agency." Id. at 416. These constraints, however, do not "shield" the Secretary's findings from "a thorough, probing, in-depth review" or preclude a "searching and careful" inquiry into the factual basis for the Secretary's decisions. Id. at 415-16.
The first step for a reviewing court is "to decide whether the Secretary acted within the scope of his authority." 401 U.S. at 415. The court "must be able to find that the Secretary could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems." Id. at 416. The court then "must consider whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment." Id. Finally, the court must consider "whether the Secretary's action followed the necessary procedural requirements." Id. at 417.
1. Applicability of Section 4(f)
In this case it is undisputed that the I-270 project will affect some parklands and recreation areas that fall within the ambit of Section 4(f).
Nor does the fact that the I-270 project involves expansion of an existing highway, rather than the construction of an entirely new roadway, remove this case from the scope of Section 4(f). Courts frequently have applied Section 4(f) to proposed expansions of existing highways.
The Court believes, however, that no parkland or recreation area property will be "used" for Section 4(f) purposes because the I-270 project will require only temporary construction easements on parkland and recreation areas.
This conclusion is strongly supported by a recent decision of the court of appeals for this circuit. See Sierra Club v. United States Dep't of Transportation, 243 U.S. App. D.C. 302, 753 F.2d 120 (D.C. Cir. 1985). In that case, the Sierra Club brought a Section 4(f) challenge to Federal Aviation Administration ("FAA") orders which amended operations specifications of two airlines. Id. at 122. The amended specifications granted the airlines permanent authorization to operate jet airplanes out of Jackson Hole Airport, located within the Grand Teton National Park in Wyoming. Id. The court concluded that the FAA action would not involve "use" of protected areas because there would not be "a new and actual use of parkland, or activity on adjoining land that would have a severe physical impact on the parkland." Id. at 130. Rather, the FAA action was merely an "insignificant adjustment" to preexisting use of the airport. Id. As such, any increased noise levels resulting from the use of jet aircraft would not constitute a "use" of parkland, and Section 4(f) was thus inapplicable to the FAA action. Id. at 122.
In this case, a strong argument may be made that the I-270 project's temporary impact upon parkland during the construction period, followed by revegetation and reforestation under the close supervision of park authorities, does not amount to "use" within the meaning of Section 4(f). The Court notes that many courts have stated that "use" should be broadly construed. See, e.g., Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d 423 (5th Cir. 1985); Arizona Past & Future Foundation, Inc. v. Lewis, 722 F.2d 1423 (9th Cir. 1983); Coalition for Responsible Regional Development v. Brinegar, 518 F.2d 522 (4th Cir. 1975). Nevertheless, to constitute "use" an action must "substantially impair the value of the [parkland] site in terms of its prior significance and enjoyment." Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982); see also I-CARE, 770 F.2d at 441; Sierra Club, 753 F.2d at 130; Falls Road Impact Committee v. Dole, 581 F. Supp. 678, 693 (E.D. Wis.), aff'd, 737 F.2d 1476 (7th Cir. 1984).
In this case, the narrow strips of parkland affected by the I-270 project are currently in close proximity to the existing highway and thus are already exposed to noise and visual impairment. Cf. Sierra Club, 753 F.2d at 130 ("The land to be used in this case has already been used as an airport for over forty-five years."). In addition, the administrative record establishes that none of the affected parkland is actively used, nor is any such use contemplated by park authorities. See FONSI at VII-1-7. Finally, after construction is completed, the parkland will be returned to its current state through revegetation and reforestation. Cf. Ashwood Manor Civic Ass'n v. Dole, 619 F. Supp. 52, 81 (E.D. Pa.), aff'd, 779 F.2d 41 (3d Cir. 1985), cert. denied, 475 U.S. 1082, 106 S. Ct. 1460, 89 L. Ed. 2d 717 (1986); National Wildlife Federation v. Lewis, 519 F. Supp. 523, 536 (D. Conn. 1981), aff'd, 677 F.2d 259 (2d Cir. 1982). In view of these circumstances, the Court cannot say that the I-270 project will "substantially impair the value" of the parkland at issue in this case.
Moreover, the parties have not cited, and the Court's independent research has not uncovered, any cases which have applied Section 4(f) to temporary encroachment upon parkland. Rather, the cases relate to projects that would result in some permanent "loss" of parkland as a result of highway construction. See, e.g., Overton Park, 401 U.S. at 412-13. No permanent loss of parkland will occur as a result of the I-270 project.
The only permanent effects upon parkland that will result from the I-270 project will be slightly increased noise levels in some areas and potential visual impairment through construction of off-site noise barriers and retaining walls. Plaintiffs assert that these effects should be found to constitute "constructive use" of the parkland. While courts have construed Section 4(f) to encompass "constructive use" of parkland, such "constructive use" will be found only if the off-site activities will have a "severe physical impact" on the parkland, Sierra Club, 753 F.2d at 130, or will "substantially impair" its value. Adler v. Lewis, 675 F.2d at 1092. In view of the current proximity of the affected parkland to I-270 and the mitigation measures to be employed as part of the I-270 project, the Court concludes that the project will not have a severe physical impact on the parkland and will not substantially impair the value of that parkland.
2. Section 4(f) Analysis
Even if the I-270 project were found to result in "use" of parkland under Section 4(f), the Court would conclude that Section 4(f) was not violated.
a. Section 4(f)(1) Requirements
Plaintiffs raise two challenges to defendants' compliance with Section 4(f)(1). First, plaintiffs assert that the April, 1984 realignment of the planned I-270 roadway in a manner that would increase use of parkland by one-half acre
violated Section 4(f)(1) because the initial location of the roadway was feasible and prudent. Second, plaintiffs allege that defendants improperly rejected the alternatives to the approved I-270 project as infeasible or imprudent.
Case law has established that, for purposes of Section 4(f)(1), any alternate routes that also "use" parkland do not constitute an "alternative to using that land." See, e.g., Druid Hills Civic Ass'n v. Federal Highway Administration, 772 F.2d 700, 715 (11th Cir. 1985); Maryland Wildlife Federation v. Dole, 747 F.2d 229, 234 (4th Cir. 1984); Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976); Citizens to Preserve Wilderness Park v. Adams, 543 F. Supp. 21, 28 (D. Neb. 1981). When alternate routes do involve "use" of parkland, their consideration by administrative officials is properly tested under the requirements of Section 4(f)(2). See Maryland Wildlife Federation, 747 F.2d at 234; Citizens to Protect Wilderness Park, 543 F. Supp. at 28.
In this case, the alignment shift challenged by plaintiffs cannot be a violation of Section 4(f)(1), since maintaining the original location of the roadbed would have "used" parkland. This issue therefore must be analyzed under Section 4(f)(2).
Similarly, the administrative record of the I-270 project indicates that all of the "build" alternates to the approved project would have involved some use of Section 4(f) properties. See FONSI at VII-1 ("Only the No-Build Alternative fully avoids all taking of parklands.").
Accordingly, consideration of the "build" alternates also must be analyzed pursuant to the requirements of Section 4(f)(2). It therefore appears that, strictly speaking, only the rejection of the no-build alternative, alone and in connection with ramp metering, could violate Section 4(f)(1).
As has been noted, the no-build alternative would entail only normal maintenance of I-270, with no widening. The Department of Transportation's Section 4(f) Determination states:
The No-Build alternate was considered and rejected as being not prudent and feasible since it would not relieve existing or future congestion. Further, traffic congestion on other routes in the area would increase as traffic demand increases beyond the capacity of I-270 as traffic diverts to these other routes.