The Federal Highway Administration (FHWA), which was the Federal funding agency, decided that Section 4(f) of the Department of Transportation Act was not applicable to the project based on a section of its regulations that stated that Section 4(f) did not apply to archeological sites where FHWA, in consultation with the SHPO and the Advisory Council on Historic Preservation, had determined that the archeological resources were important chiefly for the information they contained and had minimal value for preservation in place.
The district court held that the requirements of Section 4(f) were triggered when the Secretary of the Interior, a Federal official with the jurisdiction to determine that a site had historic significance, found the site to be historically significant and listed it in the Register. Slip op. at 9-11. Because FHWA's regulation allowed it to circumvent the restrictions on agency action contained in Section 4(f) in contravention of the section's express language, the court held that the regulation was void. Id. at 13. The court permanently enjoined the defendants from continuing with the undertaking until a Section 4(f) statement could be prepared. Id. at 16.
The court of appeals reversed the district court and found the regulation to be consistent with the statute. Preliminarily, the court noted that FHWA promulgated the regulation pursuant to its general rulemaking authority to implement transportation statutes. 766 F.2d at 30. The court also noted that when promulgating its archeological regulation, FHWA reconciled the purposes of Section 4(f) with the requirements of the National Historic Preservation Act (NHPA) and that the SHPOs and the Council had found the regulation satisfactory. Id. at 31.
In evaluating the lawfulness of the regulation, the court applied the standard that a rule is lawful if it is reasonable and not contrary to the relevant statutes. Id. (citing Schweiker v. Gray Panthers, 453 U.S. 34, 43-44 (1981)). Applying this standard, the court found that the archeological regulation was consistent with Section 4(f). The court first analyzed the language of the statute which states its application to "the use of . . . land of an historic site of national, State or local significance." Id. at 29 (citing 49 U.S.C. § 303). According to the court, once the archeological data is removed, the site lacks "significance." The court also interpreted the term "use" as contemplating an adverse effect and said that the removal of archeological resources to preserve the data would thus not constitute a "use" within the meaning of Section 4(f). Id. at 32.
Upon examining the archeological regulation in light of the purpose of Section 4(f), the court found that the statute and the regulation were consistent. Id. The court explained that allowing retrieval of archeological resources which are significant only for the data which they contain would better preserve the historic resources than avoiding the archeological site. Because avoiding an archeological site would leave the site in the hands of private owners who are free to ignore the site's archeological value, the agency's retrieval of archeological resources in accordance with a carefully designed plan would better protect resources at issue. Id. To support its reasoning, the court cited comments made by several SHPOs who filed amicus briefs in the proceedings. Id. at 33. According to the court, if FHWA were to find significant archeological sites and avoid them rather than retrieve the valuable resources, such a program would not serve the preservation goals of Section 4(f). Id.
Finally, the court was persuaded by the regulation's substantive and procedural safeguards. Id. It observed that the archeological regulation would not apply if the items had "in place" significance, or if an appropriate recovery plan could not be developed. The court also noted that in this case FHWA claimed that there was no objection by State and Federal officials that the archeological site near the town of Belmont was valuable solely for the data it contained. However, the court declined to render an opinion on whether the archeological regulation could apply if the SHPO or the Council disagreed with FHWA's determination. 766 F.2d at 33 (citing Stop H-3 Association v. Coleman, 533 F.2d 434, 441-42 (9th Cir.), cert. denied, 429 U.S. 999 (1976)). The court noted there was authority for the position that a claim by the SHPO, the Council, or the Department of Transportation is sufficient to trigger the protection of Section 4(f).
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