ELR Citation: ELR 21282
No(s). 87-1381 (10th Cir. Mar 28, 1989)

The court holds that the Federal Highway Administration's (FHwA's) approval of a final environment impact statement (EIS) for an Oklahoma highway project did not violate the National Environmental Policy Act (NEPA) or the parkland protection provision of the Federal-Aid Highway Act of 1968. The court first holds that the FHwA properly complied with the Federal-Aid Highway Act, 23 U.S.C. §138, which requires that parkland not be used for highway projects unless no other prudent or feasible alternatives exist. The alternative routes to the selected plan all presented unique problems that justified the FHwA's decision to allow the use of land from Lake Hefner Park. The court next holds that the failure of the draft EIS to include two of the eight alternatives ultimately contained in the final EIS was not fatal. One purpose for soliciting public comments on the draft EIS is to allow the agency to develop new alternatives that may have been overlooked. The court finally holds that the FHwA's rejection of the "no build" alternative because existing streets could not accommodate future traffic volumes was not arbitrary, capricious, or an abuse of discretion.

Counsel for Plaintiff-Appellant
William W. Gorden Jr.
4000 Classen Ctr., Oklahoma City OK 73118
(405) 528-0191

Counsel for Defendants-Appellees
Jean C. Rogers, Regional Counsel
Federal Highway Administration
819 Taylor St., Rm. 8A00, Fort Worth TX 76102
(817) 334-3225

William S. Price, U.S. Attorney; William Lee Borden Jr., Ass't U.S. Attorney
4434 U.S. Courthouse, 200 NW Fourth St., Oklahoma City OK 73102
(405) 231-5281

Before BALDOCK, EBEL, and McWILLIAMS, Circuit Judges.