ELR Citation: ELR 20018
No(s). s. 90-15751 et al (9th Cir. Oct 30, 1991)

The court holds that the California Highway Commission and the U.S. Department of Transportation's (DOT's) plan to redesign a road did not constructively use park land, which would require a study under §4(f) of the Department of Transportation Act, where the road and the park were jointly planned. In response to repeated closings of a 600-foot section of California State Highway Route 1 due to landslides, California studied alternatives for roads that would bypass the landslide segment of the highway. During the same period, the California Department of Parks and Recreation negotiated for and purchased lands for a park on both sides of the highway alternative, deliberately excluding from the park parcel land that was necessary for the bypass. Although plaintiff environmental groups obtained injunctive relief in the district court from further construction of the bypass road until DOT completed a §4(f) study, the district court ruled that the federal funding for the bypass should remain obligated, pending further consideration.

The court first rules that it does not have jurisdiction over plaintiffs' cross-appeal on the federal funding issue, since the district court declined to resolve the funding issue until the panel ruled on the §4(f) issue or the DOT complied with the court's order. Thus, the district court's order, with respect to the obligation of federal funds, is not the final decision of a district court under 28 U.S.C. §1291. In addition, the finality of the district court's order cannot rest on Federal Rule of Civil Procedure 54(b), because only some claims were covered in the district court's summary judgment ruling and a partial judgment does not constitute a judgment under Rule 54(a). Finally, the court rejects plaintiffs' jurisdiction claims that the objectivity of the §4(f) study will be compromised if funding remains obligated and that the district court's order is an interlocutory order modifying an injunction, both supporting reviewability. As to plaintiffs' first claim, institutional safeguards, such as administrative review of DOT's findings and recourse to the federal courts, will prevent DOT from acting improperly. As to plaintiffs' second claim, the district court explicitly stated that it intended to defer the funding issue and refused to rule on that issue.

The court observes that the legislative history of §4(f) reveals that Congress contemplated joint development of parks and roads and thought that joint planning of roads and parks was desirable. Thus, the legislative history rejects the district court's baseline that a nonexistent park should be evaluated as if it existed without any road. Moreover, joint planning would be extremely difficult if §4(f) is read to require that a road that is jointly planned with a park must be relocated unless no "prudent and feasible alternative" exists. Since the determination of the park and the road is made in the first instance, it is difficult to see how the road would significantly and adversely affect the park, which is what §4(f) seeks to address. Thus, the court reverses the district court's interpretation of §4(f) and remands for a factual determination as to whether the road and park were jointly planned.

[The district court opinion is published at 19 ELR 20320.]

Counsel for Plaintiffs-Appellees
Robert M. Teets Jr.
240 Stockton St., 3rd Fl., San Francisco CA 94108
(415) 398-2336

Counsel for Defendants-Appellants
Martin Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Choy, J. (before Alarcon and Nelson, JJ.)