Case 24

Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976).

Plaintiffs sued to enjoin construction of a highway through the Moanaloa Valley in Hawaii that was to be funded by the Federal Highway Administration (FHWA). The Secretary of the Interior had determined in 1974 that the valley "may be eligible" for inclusion in the National Register of Historic Places based on its local significance. In addition, the proposed route was to pass close to a large petroglyph rock, an object that was listed in the Register in 1973. The State historic review board, however, had decided that the valley was of marginal significance and concluded that it did not warrant protection from destruction.

FHWA requested the Advisory Council on Historic Preservation to comment under Section 106 of the National Historic Preservation Act (NHPA) on the impact of the highway on the petroglyph rock. The Council broadened its review to include the entire valley and concluded that both the rock and the valley possessed historical, cultural, and archeological significance justifying their preservation. After this review had been completed, FHWA decided that the valley was not a historic site under the provisions of Section 4(f) of the Department of Transportation Act and Section 15(a) of the Federal-Aid Highway Act despite the findings of the Secretary of the Interior and the Council.

Plaintiffs alleged that FHWA must comply with Section 4(f) with regard to the entire valley because the Secretary of the Interior had determined the valley to be eligible and the Council had assessed the property as having historic significance. Plaintiffs argued that the Federal determination took precedence over the evaluation made by the State board. The district court disagreed, attaching more significance to the State board's determination of marginal significance than to the determinations of the Secretary of the Interior and the Council.

The Ninth Circuit reversed, holding first that the Secretary of the Interior's determination that the valley "may be eligible" satisfied the definition of an "eligible property" in the Council's regulations implementing Section 106 of NHPA. The Secretary's designation could not be vitiated by the State board's finding of marginal significance. 533 F.2d at 440-41. The Secretary's power to determine properties to be eligible extends to properties of National, State, or local significance. Id. at 441.

Second, the court rejected defendants' argument that Section 4(f) is limited to properties actually listed in the National Register. Id. at 442. Rather, the court held that an Interior Department determination that a property is "likely to meet" the National Register criteria constitutes a finding that the property has historic significance for purposes of Section 4(f). Id. at 443-44.

Third, the court found that Section 2(b) of Executive Order No. 11593, by its own terms, did not apply to the valley because the valley was privately owned property. Id. at 443.

Fourth, the court held that neither NHPA nor the Council's regulations preclude the Secretary from determining, on his own initiative, that a property is eligible for inclusion in the Register. Id. at 444.

Finally, the court noted that although Section 4(f) does not require FHWA to set forth specific findings and reasons for approving a project that will use land from a historic site, FHWA must evaluate the highway project with the mandates of Section 4(f) clearly in mind. Id. at 445. The court remanded the case to the district court with an order to enjoin construction of the highway until defendants could demonstrate compliance with Section 4(f).

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