Constance A. Adler, Roosevelt Lathan and Pearline Lathan, Etc. v. Andrew Lewis, Secretary of Transportation

675 F.2d 1085 18 ERC 1471 , 12 Envtl. L. Rep. 20 ,674 Constance A. ADLER, Roosevelt Lathan and Pearline Lathan, etc., et al., Plaintiffs/Appellants, v. Andrew LEWIS, * Secretary of Transportation, Defendants/Appellees. No. 79-4645. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1980. Decided April 30, 1982. Roger M. Leed, Seattle, Wash., argued, for plaintiffs/appellants; Michael W. Gendler, Seattle, Wash., on brief. David M. Shell, Pacific Legal Foundation, Sacramento, Cal., for amicus curiae. Robert B. Rutledge, Portland, Or., argued, for defendants/appellees; Charles F. Secrest, Olympia, Wash., on brief. Appeal from the United States District Court for the Western District of Washington. Before SNEED and ANDERSON, Circuit Judges, and EAST, District Judge. *** J. BLAINE ANDERSON, Circuit Judge: 1 The plaintiffs, numerous environmental organizations 1 and one private citizen, 2 appeal from the district court's judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants. 3 2 This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate…

The plaintiffs, numerous environmental organizations 1 and one private citizen, 2 appeal from the district court’s judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed high *1088 way expansion by State and Federal defendants. 3

This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (1-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between 1-5 in Seattle and 1-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive “lidded” sections in Seattle and…

Concurring:

I concur in the majority opinion, save for section II.B. With respect to it I concur in its result and add these observations.

I.

Under section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653 (f) (1970), the Secretary of Transportation, as Judge Anderson points out, may not approve any highway project which uses parkland unless (1) there is no feasible and prudent alternative to the use of such land, and (2) the project includes all possible planning to minimize harm to the park resulting from its use. A project which does not take parkland by condemnation nonetheless may “use” the park, provided the proximity of the project to the park impairs its value in terms of its prior significance and enjoyment. Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir. 1976) (Hawaiian stone monument with religious significance); Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972) (alpine campground encircled by highway); D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971) (parkland under bridge over Potomac). Application of section 4(f), therefore, requires a three-part test:

II.

APPLICATION TO 1-90 SEATTLEBELLEVUE…