Stop H-3 Association, and Hui Malama Aina O Ko'olau v. William T. Coleman, Jr., as Secretary of the United States Department of Transportation

The Moanalua Valley, a beauteous natural wonder that many believe to be of great significance in Hawaiian history, 1 lies on Hawaii’s Island of Oahu, directly in the path of a proposed Interstate Highway called H-3. The principal issue on this appeal is whether Moanalua qualifies for protection as an “historic site of State, or local significance” under section *437 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653 (f) (1970), and section 18 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970). (Both statutes, which are essentially identical, are hereinafter referred to simply as “section 4(f)”. 2 ) Relying on a published determination by the Secretary of the Interior that Moanalua is eligible for inclusion in the National Register of Historic Places, the appellants 3 contend that section 4(f) applies. The appellees, 4 who rely primarily on a determination by Hawaii State officials that Moanalua is only of “marginal” historic significance, argue that section 4(f) is inapplicable to the routing of H-3 through the Valley. Agreeing with the appellees, the District Court dissolved the injunctions that it had previously entered…

(concurring and dissenting):

I concur that this case must be remanded but cannot agree with the route the majority takes to that end, nor with what it requires. The most troublesome issue for me in this case pertains to the petroglyph rock but since the majority reverses largely on the basis of the protection supposedly accorded the Moanalua Valley, I will treat those issues first.

I. Moanalua Valley

While all who legitimately attempt to preserve the beauty and historical significance of our environment are to be applauded, our responsibility as .judges, as I see it, is to determine whether the congressionally mandated procedures for protection require halting an approved construction project. Our review, thus, is a narrow one, not broadened by policy considerations we might inject if we were the Congress. Therefore, the sole issue in this case with respect to the valley is whether it is an historic site of national, state or local significance as determined by the federal, state or local officials having jurisdiction thereof. If so, construction of H-3 must be enjoined pending the special findings required of the Secretary of Transportation by the Department of Transportation…

533 F.2d 434 9 ERC 1383 , 6 Envtl. L. Rep. 20 ,424 STOP H-3 ASSOCIATION et al., and Hui Malama Aina O Ko'olau et al., Appellants, v. William T. COLEMAN, Jr., * as Secretary of the United States Department of Transportation, et al., Appellees. No. 75-1552. United States Court of Appeals, Ninth Circuit. March 8, 1976. Rehearing and Rehearing En Banc Denied May 21, 1976. Boyce R. Brown, Jr. (argued), Honolulu, Hawaii, for appellants. Warren H. Higa, Asst. U. S. Atty., and Melvin Y. Nishimoto, Deputy Atty. Gen. (argued), Honolulu, Hawaii, for appellees. OPINION Before KOELSCH, ELY and WALLACE, Circuit Judges. ELY, Circuit Judge: 1 The Moanalua Valley, a beauteous natural wonder that many believe to be of great significance in Hawaiian history, 1 lies on Hawaii's Island of Oahu, directly in the path of a proposed Interstate Highway called H-3. The principal issue on this appeal is whether Moanalua qualifies for protection as an "historic site of . . . State, or local significance" under section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653 (f) (1970), and section 18 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970). (Both…