Case 93

National Trust for Historic Preservation v. Dole, No. 85-2749 (D.D.C. Oct. 3, 1985), aff'd, 828 F.2d 776 (D.C. Cir. 1987).

Plaintiffs alleged that the Federal Highway Administration (FHWA) approved and funded a project to construct suicide prevention barriers on the Duke Ellington Bridge in Washington, D.C., without complying with the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act, and the National Historic Preservation Act (NHPA). Plaintiffs sought injunctive relief to prevent construction of the barriers until FHWA complied with the statutes and also sought a declaratory judgment mandating compliance with the statutes prior to construction of similar barriers on the nearby William Howard Taft Bridge.

Under NEPA, plaintiffs challenged FHWA's determination that the Ellington Bridge project fell within a categorical exclusion in FHWA's regulations. The district court, however, held that FHWA's decision to classify the project within the categorical exclusion was neither arbitrary nor capricious. With regard to the Section 4(f) claim, the court also ruled in favor of FHWA after applying the arbitrary and capricious standard of review of the Administrative Procedure Act. The court agreed with FHWA's determination that erection of the suicide barriers did not constitute a "use" as defined by the statute because the barriers would not harm the bridge. Discussing the relationship between NEPA and Section 4(f), the court observed that a finding that an action does not "significantly affect the quality of the human environment" under NEPA "suggests that the project also is not a 'use' under § 4(f)." Slip op. at 8.

The relationship between NHPA, and NEPA and Section 4(f), however, is different, according to the district court. Slip op. at 12. The court observed that a project that triggers Section 106 does not necessarily trigger NEPA and Section 4(f), reasoning that the barriers may have an adverse effect on the historic bridge without constituting a "significant effect" on the human environment or a "use." Id. The court found that FHWA properly complied with NHPA by consulting with the State Historic Preservation Officer and the Council and entering into a Memorandum of Agreement (MOA). The court observed that under the Council's regulations, execution of an MOA constitutes the comments of the Council and evidences satisfaction of the Federal agency's Section 106 responsibilities. Slip op. at 11. Thus, the court denied plaintiffs' request for injunctive relief to prevent the Duke Ellington Bridge project.

With regard to the Taft Bridge project, the court denied declaratory judgment relief because the matter was not yet ripe for review; FHWA was preparing an Environmental Assessment and a Section 4(f) evaluation and had expressed its intention to initiate consultation pursuant to Section 106 of NHPA.

On appeal, the district court affirmed the district court's ruling on NEPA and Section 4(f), finding that the barriers did not serve a transportation purpose in the first place, but did not address the NHPA issue because plaintiffs had not raised it on appeal. 828 F.2d at 777 n. 2.

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