Case 79

Benton Franklin Riverfront Trailway &;Bridge Committee v. Lewis, 701 F.2d 784 (9th Cir. 1983).

The cities of Pasco and Kennewick, Washington, determined that the Old Truss Bridge across the Columbia River was inadequate and decided to build a new bridge. They obtained financial assistance from the Federal Highway Administration (FHWA) of the Department of Transportation. Since the new bridge would span a navigable river, construction required a permit from the Coast Guard. The Coast Guard approved the construction permit on the condition that the old bridge would be removed. FHWA prepared an environmental impact statement under the National Environmental Policy Act approving demolition of the old bridge. The new bridge was completed in 1978.

In 1979, before the old bridge was demolished, it was determined to be eligible for the National Register of Historic Places. FHWA then initiated the consultation process established by the regulations of the Advisory Council on Historic Preservation implementing Section 106 of the National Historic Preservation Act. The parties to the consultation executed a Memorandum of Agreement (MOA) in 1980. The MOA provided that if FHWA determined in its statement required under Section 4(f) of the Department of Transportation Act that there were no feasible and prudent alternatives to the destruction of the old bridge, then demolition could proceed after recordation of the bridge. However, FHWA agreed to put the question of demolition to the voters of the two cities and not to authorize funds for removal if the voters wished to maintain the old bridge. The citizens voted for demolition of the old bridge and, on this basis, FHWA concluded in its Section 4(f) statement that there were no feasible and prudent alternatives to demolition.

The Ninth Circuit affirmed the district court's holding that the plaintiff had standing to maintain the suit. Plaintiff's allegations that demolition would adversely affect its interests and those of its members in the historic and aesthetic appreciation of the bridge were sufficient to meet the injury-in-fact prong of the standing test. The plaintiff was also within the zone of interests protected by the Department of Transportation Act. 701 F.2d at 787.

On the merits, the district court ruled that FHWA's Section 4(f) determination was not arbitrary or capricious and dismissed the complaint. The Court of Appeals for the Ninth Circuit reversed, finding that Section 4(f) applied because removal of the bridge was a "use from an historic site." The court rejected FHWA's argument that demolition of a structure was not a "use" of land as set out in Section 4(f). The court held that "there would be no sense in allowing the destruction and removal of structures on land and then determining whether the 'land' will be used by the proposed federal action." Id. at 788.

The Ninth Circuit found that FHWA acted arbitrarily in making its Section 4(f) determination because it did not act in accordance with regulations when it failed to inventory the old bridge as a "potentially historically protected site" at a time when there were many alternatives. FHWA was required by Section 800.4(a) of the Council's regulations to identify property listed in or eligible for the National Register. The court also found that FHWA should have considered in its 4(f) determination the possibility of Federal funding for preservation or rehabilitation of the old bridge. The agency could not rely on the results of the ballot as the basis for its selection of alternatives to consider. Id. at 788-91.

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