COMMENTS
DEPARTMENT OF TRANSPORTATION'S
SECTION 4(f): PAVING THE WAY
TOWARD PRESERVATION*
A man is rich in the things he can
afford to let alone.
-Henry David Thoreau
INTRODUCTION
The protection and preservation of parkland and historic resources is an important national goal.' The national interest in
preservation, however, conflicts with the government's traditionally
strong interest in the construction and maintenance of public highways. 2 The federal government established a federal aid program in
1916 to encourage states to build their own highway systems and to
*
© 1987 Barbara Miller
I. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412-13
(1971) (noting that congressional legislation reflects paramount importance of protecting
parkland); Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 437-38 (9th Cir.) (recognizing that Congress enacted legislation in response to strong public interest in historic preservation), cert.
denied, 429 U.S. 499 (1976); Named Individual Members of the San Antonio Conservation
Soc'y v. Texas Highway Dep't, 446 F.2d 1013, 1020-21 (5th Cir. 1971) (recognizing congressional intent to protect parklands and environmental values), cert. denied, 406 U.S. 933 (1972).
See generally THE CONSERVATION FOUNDATION AND THE NATIONAL CENTER FOR PRESERVATION
LAW, HANDBOOK ON HISTORIC PRESERVATION LAW 195-241 (1983) (discussing importance and
steady expansion of federal preservation law since 1800s); C. HOSMER, PRESENCE OF THE PAST:
A HISTORY OF THE PRESERVATION MOVEMENT IN THE UNITED STATES BEFORE WILLIAMSBURG
29-41 (1965) (detailing history of early preservation efforts).
2. See S. REP. No. 1410, 89th Cong., 2d Sess. 2, reprinted in 1966 U.S. CODE CONG. &
ADMIN. NEWS, 2800, 2800-02 (summarizing government's active role in constructing state and
federal highway systems); see also Comment, ProtectingPublic Parklandfrom Indirect FederalHighway Intruszon, 62 IowA L. REV. 960, 960-61 (1977) (asserting development of federal aid system for highway projects competes with national concern for protecting public parklands);
Note, FavoringParks Over Highways - A First Step Toward Resolving the Conflict Between Preservation
of Environmental Amenities and Expansion of the Highway System, 57 IowA L. REV. 834, 834-36
(1972) (illustrating conflict between preserving environmental values and highway
construction).
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create a national highway system.3 The absence of federal environmental legislation prior to 19664 enabled federal and state highway
departments to plan transportation projects on the basis of cost,
convenience, and need, without considering the environmental impact.5 Consequently, the lack of adequate barriers to encroachment
on parks and historic areas led to widespread destruction of irre3. See Act ofJuly 11, 1916, ch. 241, 39 Stat. 355 (allocating federal funds to provide up
to 50% of costs of interstate highways).
In 1944, Congress chartered the Interstate Highway System. Act of Dec. 20, 1944, ch. 626,
58 Stat. 838. Completion of the Interstate Highway System required acquisition of over 1.5
million acres of land. U.S. Bureau of Public Roads, Department of Commerce, America's Lifelines:
FederalAidfor Highways 11 (1962).
The federal government's share of interstate highway construction costs increased to 90%
in 1956. See Federal-Aid Highway Act of 1956, Pub. L. No. 89-574, § 15, 80 Stat. 771 (current
version at 23 U.S.C. § 138 (1982)); see also HearingsBefore the Subcomm. on Roads of the Senate
Comm. on Public Works, 91st Cong., 2d Sess. 36 (1970) (statement of Sen. Packwood) (stating
goal of 1956 Act was extremely ambitious commitment to build 42,500 miles of interstate
highways).
Subsequent to the 1956 legislation, the Interstate Highway System developed at a rapid
pace. By 1970, the full system was approximately 70% completed. See FederalHighway Act of
1970 & Miscellaneous Bills, Hearings Before the Subcomm. on Roads of the Senate Comm. on Public
Works, 91st Cong., 2d Sess. 1 (1970) (discussing need for extensive highway network in urban
areas). From 1957-1970, the federal government paid approximately $50 billion out of the
Highway Trust Fund. Id. Pt. 2, at 359 (statement of Rep. Edward Koch). Between 1970-1973,
the federal government applied $20 billion to the highway transportation program. Hearings
Before Subcomm. on Transp. of the Senate Comm. on Public Works, 93d Cong., 2d Sess. 1 (1974)
(statement of Sen. Bentsen).
Apart from providing funds for highways, the government also selected routes for new
highway projects. See Comment, supra note 2, at 960 (noting federal government's traditionally unfettered discretion in selecting routes for new highway projects); see also Note, supra
note 2, at 849-53 (discussing process for highway route selection).
4. Prior to the 1960s, the only way preservationists could limit state highway departments from condemning parkland was through the common law doctrine of prior public use
or through state statutes. See Note, supra note 2, at 837-38 (discussing legal limits on condemnation of parkland by state highway departments). Under the common law doctrine of prior
public use, states could condemn public land for a different or inconsistent public use only if
the legislature explicitly authorized the condemnation. Id; see, e.g., Starr Burying Ground
Ass'n v. North Lane Cemetery Ass'n, 77 Conn. 83, 88, 58 A. 467, 469 (1904) (stating that
condemnation of land devoted to public use must be clearly covered by statute); Lage v. Pottawattamie County, 232 Iowa 944, 955, 5 N.W.2d 161, 166 (1942) (concluding that general
authority to exercise eminent domain power is insufficient to condemn public land); In re City
of Buffalo, 68 N.Y. 167, 171 (1877) (analyzing legislative intent to condemn public land depends on nature of prior use and extent of impairment thereof by subsequent use).
Commentators note the inadequacy of common law and state level statutory protection for
parks. See Forer, Preservationof America's Park Lands: The Inadequacy of Present Law, 41 N.Y.U. L.
REv. 1093, 1103-05 (1966) (discussing need for stronger preservation laws because eminent
domain does not protect parkland); Note, supra note 2, at 837-38 (discussing ineffectual nature of common law and state remedial legislation in preventing highway encroachment on
parkland).
5. 114 CONG. REC. 24,032-33 (1968) (remarks of Sen. Metcalf (recognizing that local
officials often built highways through parks or historic areas to save money); see Comment,
supra note 2, at 961 (asserting highway planners tended to build projects on basis of engineering feasibility at least quantifiable economic costs); Comment, The Road to Overton Park"ParklandsStatutes" in FederalHighway Legislation, 39 TENN. L. REv. 433, 434 n.3 (1977) (recognizing relative ease of building highway across public land rather than condemning private
land).
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DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
635
placeable national resources. 6 Citizen groups responded by organizing throughout the country to challenge the routing of
7
highway projects.
Responding to the need to regulate the environmental impact of
public transportation projects, Congress passed several environmental statutes, including the Department of Transportation Act
(DOTA).8 DOTA includes a provision, commonly referred to as
"section 4()," which represents one of the strongest substantive en6. See Named Individual Members of the San Antonio Conservation Soc'y v. Texas
Highway Dep't, 400 U.S. 968, 972-73 (1970) (Black, J., with Douglas & Brennan, JJ., dissenting from denial of certiorari) (noting that 32 states reported devastation of streams and rivers
by highway construction).
Senator Yarborough referred to numerous losses of parks and historic resources by highway desecration, including an 1840 seawall in St. Augustine, Florida, 150 historic houses in
Philadelphia, Elysian Park in Los Angeles, Breckenridge Park in San Antonio, and the waterfront area in San Francisco. 112 CONG. REC. 17,631 (1966) (statement of Sen. Yarborough).
Although national statistics revealing the exact extent of highway encroachment on parks
and historic sites is unavailable, some cities and states collect such data. See Forer, supra note
4, at 1095-100 (examining severity of highway destruction in various states). The forest industry estimated highway projects destroy over one million acres of commercial forests each
year. Id. at 1096 n.16. In response to a loss of approximately 22,000 acres of parkland between 1964 and 1970, President Nixon recommended increased funding for a "Legacy of
Parks." Councilon EnvironmentalQuality, Second Annual Report of the Council on EnvironmentalQuality 200-01 (1971). For further discussion on the destructive effects of highways on natural and
historic resources, see Netherton, TransportationPlanningand the Environment, 1970 URBAN L.
ANN. 65, 69.
7. Citizen groups challenged the routing of highway projects in areas such as San
Antonio's Breckenridge Park, New Orleans' French Quarter, Minneapolis' Minnehaha Park,
and the Hudson River Valley. See, e.g., Scenic Hudson Preservation Conference v. Federal
Power Comm'n, 354 F.2d 608, 613 (2d Cir. 1965) (involving conservationist challenge to
electric plant in Hudson River Valley), cert. denied, 384 U.S. 941 (1966); Citizens Comm. for
the Hudson Valley v. Volpe, 297 F. Supp. 804, 808 (S.D.N.Y. 1969) (denying citizen group
application to enjoin expressway construction); Road Review League v. Boyd, 270 F. Supp.
650, 660 (S.D.N.Y. 1967) (recognizing citizen-group standing to challenge proposed highway
route).
For commentary on early disputes over highway projects, see Forer, supra note 4, at 1094;
Netherton, supra note 6, at 81; Wilburn, TransportationProjects and Historic Preservation:Recent
Develoments Under Section 4(f) ofDOTAct, 2 P.L.R. 2017 (1983); see also 112 CONG. REc. 17,64044 (1966) (recording examples of citizen groups' nationwide efforts to save parkland and historic sites from highway desecration).
8. Department of Transportation Act of 1966, Pub. L. No. 89-670, 80 Stat. 931-50
(1966) (current version at 49 U.S.C. § 101 (1983)). As provided by § 1(b) of Pub. L. No. 97449, 96 Stat. 2419 (1983), § 4(f) of the Act, 49 U.S.C. § 1653(o, is now codified at 49 U.S.C.
§ 303 (1983). Congress slightly reworded the new statute, yet did not intend to affect any
substantive change. See Department of Transportation Act of 1983, Pub. L. No. 97-449,
§ 1(a), 96 Stat. 2413 (1983) (stating that revision and codification of transportation law occurred without substantive change).
Subsequent to the enactment of the DOTA of 1966, Congress passed other transportation
laws dealing with specific modes of transportation and requiring protection of historic, cultural, and environmental resources. See, e.g., Airport and Airway Development Act of 1970,
49 U.S.C. § 1716(c)(4) (1976 & Supp. IV 1980) (repealed 1982) (regulating construction of
airports); Federal Aid Highway Act of 1968, 23 U.S.C. §§ 101-156 (1976 and Supp. V 1981)
(describing nature and scope of federal highway projects); Urban Mass Transit Act, 49 U.S.C.
§ 1610 (1982) (providing guidelines for planning, designing, and construction of urban masstransportation projects).
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vironmental laws in existence today. 9 Section 4(f) sets both procedural and substantive limitations upon the Secretary of
Transportation's (Secretary) authority to approve a federally funded
highway project.' 0 The enactment of section 4(f) in 1966 forced
federal and state highway departments to delay projects"I and, consequendy, to spend billions of dollars annually in efforts to comply
with the statute.' 2 The statute is an enormous success in preserving
numerous of priceless historic sites and thousands of acres of public
3
parkland.'
Section 4(f)'s achievements are due to the specificity of its directives to the Department of Transportation (DOT)' 4 and the coordinating efforts of state and federal officials to implement section 4(f)
9. Section 4(f) provides, in pertinent part:
The Secretary [of Transportation] may approve a transportation program or project
requiring the use ofpublicly owned land from a public park, recreation area, or wildlife refuge of national, state, or local significance or any land of an historic site of
national, state, or local significance (as determined by the federal, state or local officials having jurisdiction over the park, area, refuge, or site) only if (1) there is no feasible and prudent alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the
park, recreation area, wildlife and waterfowl refuge, or historic site resulting from
the use.
Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1982).
10. See 40 C.F.R. § 1502 (1985) (regulating procedures for implementing § 4(f)). The
§ 4(f) determination is transmitted to the federal level as part of a larger environmental document such as an Environmental Impact Statement (EIS). Id. The Federal Highway Administration (FHWA) is the operating agency responsible for reviewing the adequacy of the
§ 4(f)/EIS documents. 23 C.F.R. § 771 (1986). FHWA is required to distribute the draft EIS
statement containing the § 4(f) analysis to the public for comments. 23 C.F.R. § 771.123
(1986) (providing guidelines for drafting EIS). FHWA must also submit the § 4() analysis to
the officials havingjurisdiction over the property as well as to the Interior Department. There
is a 45-day comment period. 23 C.F.R. § 771.135(h) (1986).
DOT is further required to follow the mandates of the Federal-Aid Highway Act (FAHA).
23 U.S.C. § 10 1-156 (1982). The FAHA established rules governing federal and state officials
when they plan a highway under the Federal Interstate System. FAHA reiterates the environmental concerns of DOTA by including a virtually identical provision to § 4(f) in the FAHA.
23 U.S.C. § 138 (1982). The two acts will be referred to collectively as § 4() for the purpose
of this Comment.
11. See ProposedHighway Construction Through Overton Park, Memphis, Tenn., HearingBefore the
Subcomm. on Tramp. of the Senate Comm. on Env't and Public Works, 95th Cong., 2d Sess. 16-20
(1978) [hereinafter Hearing on Overton Park] (noting that Overton Park highway project was
delayed for over ten years).
12. Id. at 13-14. In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402
(1971), the state's proposed highway project cost $35 million, whereas the modified plan
designed pursuant to § 4(f) called for the construction of a tunnel alternative and cost $176
million with $41 million a year in operation costs. Id. at 19.
13. See Hearingon Overton Park, supra note 11, at 42 (statement of Brock Adams, Sec'y of
Transp.) (attributing success of § 4(f) to ability of transportation planners to adapt quickly to
new standards). In some § 4(f) situations, the state authorities have withdrawn controversial
projects. For example, the District of Columbia abandoned its proposal to build the Three
Sisters Bridge across the Potomac above Georgetown. Id. at 44. Louisiana abandoned its
Riverfront Expressway, which would have seriously affected New Orleans' historic French
Quarter, electing to spend its federal-aid funds elsewhere. Id.
14. The Supreme Court interpreted § 4() as issuing "dear and specific directives." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971). The Court inter-
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DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
637
in conjunction with other national laws. 15 The present force of section 4(f) is in serious danger of dilution, however, because of the
Federal Highway Administration's (FHWA) issuance of proposed
rules to amend the federal regulations implementing section 4(f).' 6
The proposed amendments represent a significant effort by highway
proponents to alleviate the heavy burden section 4(f) places on
7
DOT to obey preservation goals.'
Furthermore, the proposed regulations contrast sharply with the
current trend in judicial interpretation of section 4(o. Although the
Supreme Court examined the requirements of section 4(f) in only
one decision to date, Citizens to PreserveOverton Park, Inc. v. Volpe,' 8 a
majority of the federal circuit courts interpret the statute broadly. 19
preted § 4(0 as a "plain and explicit bar" to the Secretary's approval of a highway through
parkland. Id.
15. See National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 (1982) (constituting key federal law designed to encourage identification and preservation of America's
cultural resources). NHPA authorizes the Secretary of the Interior to expand and maintain a
National Register of Historic Places. Id. § 470a(2). The Register is composed of districts,
sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture. Id. § 470a(l)(A); see also National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. § 4321-61 (1982) (mandating that federal agencies evaluate environmental impacts
of their proposed actions and consider alternatives thereto). The environmental impact assessment process under NEPA has two major objectives. The first objective is to make federal
agencies more aware of the environmental impacts of their decisions. The second objective is
to involve the public at an early stage of the planning. SeeJ. HEER, JR. & D. HAGERTY, ENVIRONMENTAL ASSESSMENTS AND STATEMENTs
73-144 (1977) (providing detailed discussion of
NEPA and EIS requirements). See generally Note, Rejection of Risk Under NEPA: Stress and People
Against Nuclear Energy, 33 AM. U.L. REV. 535, 542-49 (1984) (stating NEPA's legislative history
chronicles congressional concern for natural resources, urban setting, and interaction between people and their surroundings).
For a general discussion of federal highway legislation and the interaction of various sections of the statutes, see Gray, Section 4(f) of the Departmentof TransportationAct, 32 MD. L. REV.
327, 328-42 (1973).
16. Proposed Rules to section 4(f) of the Department of Transportation Act, 48 Fed.
Reg. 34,905-06 (1983) (to be codified at 23 C.F.R. § 771.133) (proposed Aug. 1, 1983) (superseding 23 C.F.R. § 771.135). The rules, which are intended to delegate more decisionmaking authority to FHWA field offices, threaten to weaken substantially protection for
historic resources in projects funded by FHWA. See 23 C.F.R. § 771.133(d) (removing § 4(f)
protection from many historic properties, including bridges, for which repairs are proposed
that would not "damage historic significance"); 23 C.F.R. § 771.133(f)(1) (noting that archeological resources found important chiefly for information they contain would not be protected
under § 4(f) if DOT decided resources had minimal value for preservation in place); see also
infra notes 187-99 and accompanying text (examining effect of proposed regulations on historic resources).
17. The proposed amendments authorize DOT to approve projects threatening historic
sites by demonstrating compliance with NHPA § 106 consultation with the Advisory Council
on Historic Preservation, instead of having to demonstrate compliance with the more stringent § 4(f) requirement of examining feasible and prudent alternatives. See infra notes 187-99
and accompanying text (examining requirements under proposed regulations).
18. 401 U.S. 402 (1971). I will be referring to this landmark decision throughout the
Comment as a benchmark opinion for circuit courts. See Hearingon Overton Park, supra note 11,
at 22 (statement of William Futrell, Sierra Club President) (recognizing Supreme Court decision in Overton Park as one of the most important cases decided by Court this century).
19. The federal courts of appeal for the Second, Third, Fifth, Eight, Ninth, Eleventh, and
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The current trend recognizes a "constructive use" doctrine and
extends application of section 4(f) to highway projects that affect
protected land in less direct ways, such as through noise, pollution,
visual intrusion, and increased traffic. 20 In addition, circuit court
decisions impose a more rigorous duty upon the Secretary to
consider the "no-build" alternative as part of the section 4(f) inquiry
into feasible and prudent alternatives to the transportation pro2 1
ject.
This Comment examines the recent trend in case law to expand
the scope of section 4(f), and examines whether legislative reform to
restrain the judiciary is desirable. Part I provides a legislative background of the statute. Part II traces the most recent judicial interpretations of section 4(f). It emphasizes the emergence of the
constructive use doctrine and the no-build alternative as means of
expanding the protective force of section 4(f). Part III discusses the
judicial review of section 4(f) actions and examines how recent litigation affects DOT's authority to exercise its discretion. Part IV
analyzes and criticizes the proposed federal highway regulations and
recommends legislative reform to safeguard the goals of section
4(f). This Comment concludes that, although legislation to ease implementation of section 4(f) may be needed, the proposed regulations are inadequate and contrary to the congressional goal of
ensuring the protection of parks and historic sites.
I.
LEGISLATIVE HISTORY OF SECTION
A.
4(f)
Provisions of Section 4(f)
Section 4(f) was part of Congress' response to the growing public
District of Columbia Circuits apply § 4(f) to a wide range of situations. See infra notes 64-90
and accompanying text (discussing majority of case law interpreting statute broadly).
20. See, e.g., Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982) (applying § 4(f) to offsite activities impairing aesthetic value of site); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537
F.2d 79, 85 (5th Cir. 1976) (applying § 4(f) to highway route that would block view of lake);
Coalition for Responsible Regional Dev. v. Brinegar, 518 F.2d 522, 524 (4th Cir. 1975) (extending § 4(0 where bridge project would create auto traffic, pollution, and noise). Commentators also favor a broad construction of the statute. See Colton, The Case for a Broad
Construction of Use In Section 4(f) of the Department of TransportationAct, 21 ST. Louis U.L.J. 113,
123 (1977) (encouraging court challenges and administrative appeals to establish broad definition of use); Gray, supra note 15, at 362-68 (recognizing broad application of § 4(f)).
21. See, e.g., Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1455 n.21 (9th Cir. 1984) (explaining that need for highway fails to prove imprudence of not building highway), cert. denied, 105
S. Ct. 2344 (1985); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d
784, 790 (9th Cir. 1983) (invalidating consideration of "potential of federal funds" in § 4(0
determination of feasibility of alternatives); D.C. Fed'n of Civic Ass'n v. Volpe, 459 F.2d 1231,
1238 (D.C. Cir. 1971) (recognizing potential for Secretary to determine that traffic needs can
be met without construction of bridge), cert. denied, 405 U.S. 1030 (1972); see also infra notes
130-35 and accompanying text (discussing no-build alternative).
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concern for the preservation of our nation's natural beauty.2 2 In
section 4(f), Congress mandated that preservation of parkland and
historic sites merited major consideration in all federally funded
highway construction programs.23 The statute declares the national
the
policy to take special effort to preserve the natural beauty of
24
countryside, public parks, recreation lands, and historic sites.
The statute further provides that the Secretary may approve a
highway project that uses publicly owned parkland or land from a
historic site only if there is (1) no "feasible and prudent alternative
to the use of such land," and (2) the project includes "all possible
planning to minimize harm."' 25 Moreover, the implementing regulations promulgated by the Secretary pursuant to section 4(f) require
the Secretary to prepare and circulate a statement examining the
highway's proposed use of parklands and/or historic sites.2 6 The
section 4(f) regulations specifically require the 4(f) statement to analyze alternatives to the use of parklands and/or historic sites to de27
termine whether the alternatives are feasible and prudent.
B.
The "Use" Requirement
Section 4(f) applies whenever a federally funded highway project
will "use" public parkland or land from a privately or publicly
owned historic site.2 8 Hence, finding a use of the property is the
threshold requirement for the statute's application.
Defining the scope of the use requirement is difficult because the
legislative history is ambiguous. In the DOTA's accompanying Senate report, the Public Works Committee stated its firm commitment
to the protection of vital parklands, parks, and historic sites. 2 9 A
"Statement of the Management on the Part of the House," however,
asserted that the statute provided "discretionary authority" rather
than a mandatory prohibition against the use of the enumerated
lands. 30 The House conferees restricted the application of section
22. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 404 (1971) (discussing Congress' concern in enacting § 4(f)).
23. See Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1447 (9th Cir. 1984) (emphasizing Condenied, 105 S. Ct. 2344 (1985).
gress' strong interest in preservation), cert.
24. 49 U.S.C. § 303(c) (1982). See Federal-Aid Highway Act of 1968, 23 U.S.C. § 138
(1982) (containing identical language regarding national policy contained in § 4(f)).
25. 49 U.S.C. § 303(c) (1982).
26. 23 C.F.R. § 771.135(h) (1986).
27. Id.
28. 49 U.S.C. § 303(c) (1982).
29. See S. REP. No. 1340, 90th Cong., 2d Sess. 18-19, reprinted in 1968 U.S. CODE CONG.
& ADMIN. NEWS 3482, 3500 (emphasizing that everything possible should be done to preserve
parklands and historic sites from damage or destruction resulting from highway construction).
30. CONFERENCE REPORT TO ACCOMPANY S. 3418, FEDERAL-AID HIGHWAY Aar OF 1968,
H.R. REP. No. 1799, 90th Cong., 2d Sess. 32 (1968), reprinted in 1968 U.S. CODE CONG. &
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4(f) where the preservation of parklands and historic sites would necessitate the movement of substantial numbers of people. 3 ' The
Senate conferees strongly repudiated the House Managers' Statement, and insisted that the Statement was inconsistent with the statute's language.3 2 The Senate conferees stated, instead, that the
Secretary has no discretion to allow the use of protected lands in
situations in which the statutory requirements are not met.3 3
In 1970, the Senate introduced an amendment to expand the
scope of section 4(f). 34 The amendment would have substituted the
phrase "have an adverse effect on the environment" for "use." 3 5
The amendment elicited contradictory testimony as to the meaning
of the term use under section 4(f).3 6 Although Congress did not
pass the amendment, the debate demonstrated a consensus that
Congress did not intend use to apply solely to a direct taking of
land.
37
ADMIN. NEWS 3531, 3558. The House conferees stated: "[§ 4(f)] is a discretionary authority
which must be used with both wisdom and reason." Id. This statement reflects the House
conferees' awareness of the limitations and social consequences of preserving the parklands
and historic sites against highway construction. The statement was attached to the House
print of the Conference Report and signed by the House but not by the Senate conferees. Id.
31. Id.
32. See 114 CONG. REc. 24,033 (1968) (remarks of Sen. Cooper) (repudiating House conference report as contrary interpretation of § 4(f)'s language); id. (testimony of Sen. Randolph) (disagreeing with House interpretation).
33. See id. at 24,033 (1968) (remarks of Sen. Cooper) (narrowing discretion of Secretary
to approve projects using § 4(f) property); see also H.R. REP. No. 1799, 90th Cong., 2d Sess.
32, reprintedin 1968 U.S. CODE CONG. & ADMIN. NEWS 3531, 3537 (emphasizing limited nature
of Secretary's authority).
One commentator addressing the conflicting interpretations reflected in the House Managers' Statement concluded that the Senate's explicit disagreement with the House's interpretation fails to indicate any legislative intent by Congress, as a whole, other than that expressed
clearly in the wording of § 4(f). Gray, supra note 15, at 342.
34. See ProposedAmendments to the Department of TransportationAct: Hearing on S. 728 Before
the Subcomm. on Surface Transp. of the Senate Comm. on Commerce, 92d Cong., 1st Sess. 9 (1971)
(attempting to expand statutory determination of "use"). Senator Hartke, who introduced
the amendment, explained during the hearings:
I want to make it very clear, so far as I am concerned, that I did not intend by
introducing this bill, or in any statement I have made regarding it, to indicate that we
object to the utilization of the word "use." Nor do we mean that it is not now
proper. Ijust wanted to make sure that if we adopt legislation of this kind, that such
scope will be provided for explicitly in this bill.
Id. (remarks of Sen. Hartke).
35. Id. The phrase "have an adverse effect" would have created a much broader framework within which to apply § 4(f). Any instance in which a highway project threatened to
produce harmful consequences on parkland or historic sites would have constituted an "adverse effect." Id. (testimony of Herbert DeSimone, Assistant Secretary of DOT).
36. See id. at 6-7 (testimony of Herbert DeSimone) (noting DOT's narrow construction of
"use" and broad construction of "adverse effect").
37. See id. at 9-11 (statement of Sen. Hartke) (discussing varying uses that would indirectly affect land).
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DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
641
C. Resources Protected
If a use is established, section 4(f) will apply as long as the property at issue constitutes the kind of resource Congress enumerated
38
as eligible for protection from highway construction projects.
Natural resources, such as parks, recreation areas, wildlife and waterfowl refuges, are protected as long as two conditions are met.
First, the land used for the project must be publicly owned.3 9 Sec40
ond, the property must be of national, state, or local significance.
In addition to protecting parkland, section 4(f) is designed to pro41
tect land designated as a "significant" historic site.
The congressional intent behind the publicly owned requirement
for parks is subject to two possible interpretations. One view treats
the publicly owned requirement as specifically narrowing section
4(f)'s protection by excluding private parks. 42 The other view recognizes that the legislators intended the publicly owned requirement as a means of facilitating application of section 4(f) in
situations in which impediments to preservation are the greatest.43
Despite passing the "significance" requirement, the legislative
history indicates Congress' concern that officials might declare
parks or historic sites "insignificant" in order to avert application of
the statute.4 4 Because the statute expressly grants federal, state, or
38. See 49 U.S.C. § 303(c) (1982). Section 4(f) applies to "publicly owned land from a
public park, recreation area, or wildlife or waterfowl refuge of national, state, or local significance, [and to] land of an historic site of national, state, or local significance." Id.
39. Id; see infra notes 42-43 and accompanying text (discussing interpretations of "publicly owned" requirement).
40. 49 U.S.C. § 303(c) (1982). One commentator explains with regard to the significance requirement that significance "is assumed to have been determined" by local or other
officials, who provide funds for the maintenance of publicly owned parks, recreation areas and
wildlife or waterfowl refuges, "on the reasonable inference that otherwise they would not
spend public funds on the lands." Gray, supra note 15, at 384.
41. 49 U.S.C. § 303(c) (1982) (stating that § 4(f) applies to "any land of an historic site
of national, state, or local significance").
42. There is no support for this view in the legislative record. Subsequently, however,
courts adopted this interpretation. See National Wildlife Fed'n v. Coleman, 529 F.2d 359,
368-71 (5th Cir. 1976) (holding § 4(f) protection inapplicable to 1,708 acres of land being
held for future use as public property); Falls Road Impact Comm., Inc. v. Dole, 581 F. Supp.
678, 686 (E.D. Wis. 1984) (asserting § 4(0 protection inapplicable where land is not identified
as public park or recreation area in federal administrative record).
43. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412-13 (1971)
(recognizing that all parkland, public or privately owned, will be less expensive and less disruptive to use than developed lands); see also 114 CONG. REC. 24,025-26 (1968) (statement by
Sen. Metcalf). Senator Metcalf asserted that privately owned parklands are not as readily
available for highway use as public parks because they must be expropriated legally, and because "those who own them, relinquish them, if at all, only after the bitterest of fights. Public
lands, because they are already in public ownership, tend to be viewed as free for the taking."
Id.; see also id. at 24,025 (remarks of Sen. Young) (asserting opposition to exploitation of public lands by private interests).
44. See 114 CONG. REC. 24,033 (1968) (remarks of Sen.Jackson) (stating that Secretary of
Transportation retained right to veto local or state authorities' determinations of whether
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:633
45
local officials the authority to make the significance determination,
the statute may implicitly allow state and local officials to vitiate fed46
eral determinations that parks and historic sites are significant.
This view restricts the application of the statute and is contrary to its
47
language and purpose.
The statutory language supports the opposite view. Section 4(f)
was intended to have a broad effect. 4 8 In addition, the implementing regulations mandate that the section 4(f) determination applies
to historic sites "on or eligible for the National Register." 49 Therefore, the ability of any federal, state, or local official to declare a
property eligible expands the application of section 4(f). 5
D. Feasible and PrudentAlternatives
If the threshold requirements for invoking the statute exist, section 4(f) imposes strong substantive requirements upon DOT. Section 4(f)(1) asserts that if a highway project uses protected land, the
Secretary may approve the project only if there is no feasible and
prudent alternative to the use of such land. 5 1 A literal reading of
highway violated parklands). As an additional measure to protect parks, Congress decided
the Park Service and the Interior Department would also have thejurisdiction to declare property "significant." Id. at 24,033 (remarks of Sen. Jackson).
45. 49 U.S.C. § 303(c) (1982).
46. See 114 CONG. REC. 24,032-33 (1968) (remarks of Sen. Cooper) (interpreting meaning of significance provision).
47. See id. at 24,036-37 (1968) (discussing legislative intent in enacting significance requirement). In the Senate's floor debate on the conferee report pertaining to § 4(f), Senator
Yarborough questioned whether a local agency could disempower the federal government in
a situation involving federal funds from preserving a site of historic significance. Id. Senator
Randolph replied by stating that if local authorities find that a site has no historic significance,
the Secretary of Transportation and federal highway officials are authorized to review the
historic significance decision before allowing engineers to "ram a highway" through a site. Id.
48. The use of the plural "officials" indicates that Congress intended to enable any one
of the officials to declare the property significant. See Stop H-3 Ass'n v. Coleman, 533 F.2d
434, 443-45 (9th Cir.) (referring to legislative history to support broad interpretation), cert.
denied, 429 U.S. 999 (1976).
49. 23 C.F.R. §§ 771.135(d), (f)(1986).
50. 49 U.S.C. § 303(c) (1982). The protection extended to historic properties under
§ 4(o is much broader than the protection extended to historic properties under NHPA.
NHPA § 106 requires that federal agencies take into account the effects of their undertakings
on any historic property "included in or eligible for inclusion in the National Register." National Historic Preservation Act of 1966, 16 U.S.C. § 470(o (1982) (effect of federal undertakings upon property listed in National Register). Thus under NHPA, only properties listed or
eligible for listing in the National Register trigger the review process by the Advisory Council
of Historic Preservation. DOTA § 4(f), however, protects any property that federal, state, or
local officials having jurisdiction over the property deem historically "significant." Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1982). Implementing regulations
assert that § 4(f) determinations apply to historic sites "on or eligible for the National Register." 23 C.F.R. §§ 771.135(d), (f)(1) (1986). Any federal, state, or local historic site, however,
is assumed to be significant in order to invoke § 4(f) unless the official havingjurisdiction over
the property's location decides otherwise. Id. § 771.135(d).
51. See Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (1982) (requiring
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
643
the statute supports the view that Congress intended section 4(0 (1)
of a project if
as an explicit bar against the Secretary's 5approval
2
alternative.
prudent
and
feasible
a
is
there
The legislature intended to provide a balancing process to determine whether feasible and prudent alternatives exist. 53 This process weighed preservation of parklands and historic sites against the
effects of community dislocation and displacement by reason of
highway construction. 5 4 Consequently, implementation of the statute requires the Secretary to weigh carefully the need for more
highways against the need for preservation. 55 Although Congress
recognized the need for expanded transportation systems, the legis56
lative history indicates that preservation is a higher priority.
E. All Possible Planning To Minimize Harm
In addition to the feasible and prudent alternatives inquiry, Congress drafted a second provision strengthening the protection of
section 4(f) resources. In section 4(f)(2), Congress provided that
highway planners must demonstrate "all possible planning to minimize harm" to protected resources before the Secretary can approve
that Secretary inquire into feasible and prudent alternatives and minimization measures when
harmful use to § 4() resources exists).
52. See Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 438 (9th Cir.) (stating that § 4(f)'s
stringent requirements reflect Congress' intent to end desecration of natural sites, significantly related to our country's heritage), cert. denied, 429 U.S. 999 (1976); see also 114 CONG.
REC. 19,915 (1968) (remarks of Rep. Holifield) (recommending strict interpretation of feasible and prudent alternatives requirement); id. (remarks of Rep. Fraser) (asserting that § 4(f)
provides strict prohibition of highway encroachment through natural area unless no feasible
or prudent alternative exists).
53. See 114 CONG. REC. 19,915-16 (1968) (remarks of Rep. Fraser) (asserting that § 4()
carefully balances need for more highways with need for park preservation).
54. See S. REP. No. 1340, 90th Cong., 2d Sess. 18-19, reprintedin 1968 U.S. CODE CONG.
& ADMIN. NEWS 3482, 3499-3500 (emphasizing Committee's concern with protecting people
and parklands from harsh results of dislocation and displacement that result from highway
construction).
The Committee stated:
while the areas sought to be protected by § 4(f) are important, there are other high
priority items which must also be weighed in the balance. The Committee is extremely concerned that the highway program be carried out in such a manner as to
reduce in all instances the harsh impact on people which results from the dislocation
and displacement by reason of highway construction.
Id. See also 114 CONG. REC. 24,037 (1968) (statement of Sen. Randolph) (asserting "we are
going to give protection to parklands, historic sites, and shrines of national as well as local
interest to a greater degree than we have in any law hereto enacted").
55. See 114 CONG. REC. 19,915-16 (1968) (statement of Rep. Holifield) (noting that increased pressure to develop remaining conservation and recreation areas necessitates balancing process under § 4(0).
56. See Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 412 (1971) (holding Congress attached weighted preference to preservation of parkland); see also 114 CONG.
REC. 19,915 (1968) (remarks of Rep. Fraser). Congressman Fraser recognized that most major urban centers need vastly expanded systems but stated that those systems "must not ...
Id.
develop at the expense of our irreplaceable park and recreation facilities ....
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:633
the highway project.5 7 The legislators intended the minimization of
harm requirement to function as a separate inquiry from the feasible
and prudent alternatives examination. 58 The legislative history indicates Congress intended "all possible planning to minimize harm"
to include measures directed at reducing air, noise, and visual
pollution. 59
II.
JUDICIAL INTERPRETATION
A.
The "Use" Requirement
In examining cases under section 4(f), courts must first decide
whether challenged highway projects will actually use protected
land. The United States Supreme Court in Citizens to Preserve Overton
Park, Inc. v. Volpe 60 found a clear use of land where a proposed sixlane interstate highway ran directly through a Memphis public
park. 6 ' The Court ruled that section 4(f) constituted a "plain and
explicit bar" to the appropriation of federal funds for construction
of highways through parks, and that only the most unusual situa62
tions are exempted.
Subsequent to Overton Park, many cases arose challenging highway
projects that affected property in less direct ways than an actual appropriation of land. These cases challenge highway projects on
grounds of constructive use of protected property and involve
claims of adverse harm based on noise, visual and aesthetic intrusion, pollution, and increased traffic. 63 In determining whether
highway projects constitute an actual or constructive use under sec57.
58.
49 U.S.C. § 303(c)(2) (1982).
See S. REP. No. 1340, 90th Cong., 2d Sess. 18, reprinted in 1968 U.S. CODE CONG. &
ADmiN. NEws 3482, 3500 (asserting Committee's emphasis on statutory language providing
that efforts be made to minimize damage in event no feasible and prudent alternative exists).
59. See Federal Highway Act of 1970 and Misc. Bills, Part 1: Hearings Before the Subcomm. on
Roads of the Senate Comm. on Public Works, 91st Cong., 2d Sess. 338-64 (1970) (noting that § 307
of Highway Act of 1962 underemphasized environmental and social aspects of highway planning). During the hearings, experts testified regarding the effects of highways on the environment. See id. at 359-64 (statements of Robert Koch, President, National Limestone Institute
Inc., Washington, D.C.) (testifying to injurious effects of air, noise, and visual pollution, and
recommending minimization of harm through acoustic barriers and appropriate building
modifications).
Nevertheless, some senators expressed disapproval of minimization measures. See id. at 339
(statement of Sen. Randolph) (stating that "environmental business is getting a little overdrawn and a little over-emphasized").
60. 401 U.S. 402 (1971).
61. Id. at 406. In Overton Park, the highway required the destruction of twenty-six acres
of parkland. Id. Tennessee paid the City of Memphis $2,000,000 (1970 dollars) for the
twenty-six acre right-of-way and $206,000 (1970 dollars) to the Memphis Park Commission to
replace park facilities threatened by the highway. Id. at 407 n.15.
62. Id. at 411.
63. See infra notes 71-99 and accompanying text (discussing judicial interpretation of
constructive use doctrine).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
645
tion 4(f), the emerging trend in the case law defines use broadly to
extend application of section 4(f).64
1.
Actual use
Subsequent to the Supreme Court's decision in Overton Park, a
majority ofjurisdictions apply section 4(f) whenever there is a physical taking of parkland by highway encroachment, regardless of the
nature or size of the park. In the leading case of Louisiana Environmental Society, Inc. v. Coleman,65 the United States Court of Appeals
for the Fifth Circuit examined a proposed highway project that was
to cross a public lake in Louisiana. 66 The Fifth Circuit emphasized
that any park use for a federal highway project, "regardless of its
67
degree," merits section 4(f) protection.
A majority of jurisdictions follow the Fifth Circuit's holding in
Louisiana Environmental Society.68 Most courts recognize that any direct physical taking, no matter how small, is a use. 69 The preservation interest factor weighs in favor of extending section 4(f)
protection to all cases involving an actual use of parklands by trans64. See, e.g., Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770
F.2d 423, 441 n.23 (5th Cir. 1985) (noting that most courts embrace constructive use doctrine
and construe term use broadly); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 84-85
(5th Cir. 1976) (commenting favorably on cases from other circuits that interpret § 4(f)
broadly and adopt constructive use doctrine); Finish Allatoona's Interstate Right, Inc. v.
Brinegar, 484 F.2d 638, 639 (5th Cir. 1973) (per curiam) (interpreting use broadly by stating
alternate route that uses any part of park is not an alternative to use of park); Brooks v. Volpe,
460 F.2d 1193, 1194 (9th Cir. 1972) (construing use broadly in favor of environmental statements in cases in which environmental impact appears substantial); Conservation Soc'y v. Secretary of Transp., 362 F. Supp. 627, 639 (D. Vt. 1973) (construing use broadly), aff'd, 508
F.2d 927 (2d Cir. 1974).
65. 537 F.2d 79 (5th Cir. 1976).
66. Id. at 82-84. The district court held that the nature and substantiality of the taking
had to be determined before testing for compliance with § 4(f). Louisiana Envtl. Soc'y v.
Brinegar, 407 F. Supp. 1309, 1321 (1976), aff'd in part, rev'd and remanded sub nom. Louisiana
Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79 (5th Cir. 1976).
67. See Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1976) (asserting
no substantial taking threshold for applicability of § 4(f)). The court held that § 4(f) is applicable whenever a highway project will use parkland. Id. The court characterized this approach as a "thumb on the scale approach," which is required whenever parkland is to be
used. Id. The court further stated that if courts permitted an initial appraisal of whether the
use was substantial, it would infuse consideration of elements that Congress did not want
considered when it said, "if there is another way, take it." Id. The court concluded that "any
park use, regardless of its degree, invokes § 4()." Id.
68. See, e.g., Township of Springfield v. Lewis, 702 F.2d 426, 430 (3d Cir. 1982) (asserting that "any park use, regardless of its degree, invokes § 4(f)") (quoting Louisiana Envtl.
Soc'y, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1976)); Falls Road Impact Comm., Inc. v.
Dole, 581 F. Supp. 678, 690 (E.D. Wis. 1984) (holding that actual physical taking of parkland,
no matter how minor, constitutes § 4(f) use); Arkansas Community Org. for Reform Now v.
Brinegar, 398 F. Supp. 685, 692 (E.D. Ark. 1975) (stating § 4(f) applies "regardless of size or
nature of park"), aff'd sub nom. Arkansas Community Org. for Reform Now v. Coleman, 531
F.2d 864 (8th Cir. 1976).
69. See supra notes 67-68 (cases interpreting use requirement).
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:633
portation projects. Challenges to the application of section 4(f)
arise frequently, however, in cases involving more than the physical
taking of land. 70 Most courts have recognized that highway projects
71
may constitute a constructive use of statutorily protected sites.
2.
Constructive use
Courts recognize a constructive use of parklands and historic sites
where highway projects impose adverse visual, economic, safety,
noise, or aesthetic impacts on property. 72 The key issue to resolve
in constructive use challenges is the determination of the directness
of the harm required for section 4(f) to apply.7 3 The recent trend in
case law favors extending application of section 4(f) to cases alleging constructive use of protected land. 74 In examining for a constructive use of parkland or historic sites, courts articulate different
standards to determine the amount of harm to the particular site.
Courts apply two criteria for deciding whether a highway constructively uses a particular site: (1) the proximity of the harm to the
property, and (2) the nature of the effects of the harm on the prop75
erty's historic value or significance.
a. Closeness of harm standard
Several jurisdictions define a constructive use of property by ex70. See, e.g., Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982) (finding highway project
adjacent to park constitutes use); Monroe County Conservation Council, Inc. v. Adams, 566
F.2d 419, 424 (2d Cir. 1977) (finding highway reducing access to park constitutes use), cert.
denied, 435 U.S. 1006 (1978); Conservation Soc'y of S. Vt., Inc. v. Secretary of Transp., 362 F.
Supp. 627, 639 (D. Vt. 1973) (ruling that interstate highway encircling campground constitutes use).
71. See Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d
423, 441 (5th Cir. 1985) (recognizing constructive use where off-site activities of project substantially impair environmental, ecological, or historical value of site); see also Adler v. Lewis,
675 F.2d 1085, 1092 (9th Cir. 1982) (holding that highway project adjacent to park constitutes use of park); Monroe County Conservation Council, Inc. v. Adams, 566 F.2d 419, 424
(2d Cir. 1977) (holding that proposed highway that would reduce access to park and create
noise within park would constitute use of park), cert. denied, 435 U.S. 1006 (1978); Stop H-3
Ass'n v. Coleman, 533 F.2d 434, 445 (9th Cir.) (holding that construction of six-lane controlled access highway passing within 100-200 feet of petroglyph rock designated for inclusion in National Register of Historic Places would use historic sites), cert. denied, 429 U.S. 999
(1976); Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (concluding that interstate highway that would encircle campground would be constructive use).
72. See also Colton, supra note 20, at 123 (defining constructive use).
73. The holding in Overton Park provides little guidance in defining the limits of the constructive use doctrine because that case involved a highway that was to bifurcate a park. It was
undisputed that the highway would bisect Overton Park and use the parkland within the
meaning of the statute. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 406-08
(1971).
74. See infra notes 80-83 and accompanying text (discussing judicial application of constructive use doctrine to § 4(f) cases).
75. See infra notes 76-90 and accompanying text (analyzing judicial standards for establishing constructive use).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
647
amining the closeness or directness of harm to the property. 76 In
1972, the United States Court of Appeals for the Ninth Circuit first
established the constructive use doctrine in Brooks v. Volpe. 77 In
Brooks, environmentalists sued to prevent DOT from constructing a
seven-lane freeway that would have surrounded an alpine campground in Washington's Cascade Mountains. 78 The Ninth Circuit
interpreted the term use broadly in favor of environmental
79
statements.
Following Brooks, the Ninth Circuit further broadened section
4(f)'s application by recognizing a constructive use where a proposed highway passed within one to two hundred feet of historic
property.8 0 Other circuits, including the Second, Fifth, and D.C.
Circuits, similarly broadened the application of section 4(f).81
These courts recognize that a highway that comes very close to
property without physical instrusion, may still use the property by
83
blocking the view,8 2 or causing noise or air pollution.
76. See, e.g., Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770
F.2d 423, 427, 441 (5th Cir. 1985) (ruling that concrete columns erected five feet from park
constituted constructive use); Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 439 (9th Cir.) (finding constructive use where six-lane highway would pass within 100-200 feet of petroglyph
rock designated for inclusion in National Register of Historic Places), cert. denied, 429 U.S. 999
(1976); Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (finding constructive use where
interstate highway would encircle campground).
77. 460 F.2d 1193 (9th Cir. 1972).
78. Id. at 1194. The district court held that the highway project was not a use as contemplated by the statute. Brooks v. Volpe, 329 F. Supp. 118 (W.D. Wash. 1971) (finding no
violation of § 4(f) where plaintiffs alleged construction of highway would interfere with their
enjoyment of neighboring campground), rev'd and remanded, 460 F.2d 1193 (9th Cir. 1972).
79. Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972).
80. See Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 439, 445 (9th Cir.) (finding constructive use where highway passes within 100-200 feet of petroglyph rock), cert. denied, 429 U.S.
999 (1976).
81. See Monroe County Conservation Council v. Adams, 566 F.2d 419, 424 (2d Cir.
1977) (finding constructive use under § 4(f) where six-lane highway adjoined park), cert. denied, 435 U.S. 1006 (1978); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir.
1976) (holding highway route near lake and recreational area is § 4(f) use of area); D.C. Fed'n
of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir.) (extending § 4(f) protection to parkland located underneath bridge over Potomac River), cert. denied, 405 U.S. 1030 (1972); Citizens for Mass Transit Against Freeways v. Brinegar, 357 F. Supp. 1269, 1280 (D. Ariz. 1973)
(holding proposed freeway immediately adjacent to park required § 4(f) statement). But see
Sierra Club v. Dep't of Transp., 753 F.2d 120, 130 (D.C. Cir. 1985) (finding no constructive
use where commercial jet flights at airport would decrease overall noise levels because of
fewer flights, and have inappreciable visual impact).
82. See Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d
423, 427 (5th Cir. 1985) (finding overhead highway project that would obstruct view of historic building constituted constructive use under § 4(f)); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976) (applying § 4() to highway route that would block view
of lake).
83. Compare Monroe County Conservation Council v. Adams, 566 F.2d 419, 424 (2d Cir.
1977) (finding § 4(1) use where six-lane arterial highway carrying approximately 40,000
automobiles per day adjoined park), cert. denied, 435 U.S. 1006 (1973) with Falls Road Impact
Comm., Inc. v. Dole, 581 F. Supp. 678, 693 (E.D. Wis. 1984) (finding no constructive use of
publicly owned park where § 4() proposed highway was to cause "only slightly more traffic
648
THE AMERICAN UNIVERSITY LAw REVIEW
[Vol. 36:633
Besides finding a constructive use on the basis of the directness of
harm to the property, the federal courts of appeals adopt the "impairment of historic value" standard, as an alternate means of establishing constructive use. This standard focuses on the nature of the
property affected by the highway project and examines whether the
project will inflict harm that impairs the property's historic value or
84
integrity.
b. Impairment of historic value standard
Under the impairment of historic value test, courts require the
satisfaction of two criteria to find a constructive use under section
4(f). First, the highway's interference with the property must be an
adverse use of the site. 8 5 Second, the alleged harm must impair the
significance or historic value of the property. 8 6 In the leading case,
Stop H-3 Association v. Coleman,8 7 the Ninth Circuit examined whether
a highway passing within one hundred to two hundred feet of an
historic Hawaiian petroglyph rock would impair the value of the historic property so as to constitute a constructive use. 88 The court
and rise of 6.5 to 7.5 decibels over existing noise levels"), aff'dper curiam, 737 F.2d 1477 (7th
Cir. 1984).
84. See, e.g., Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770
F.2d 423, 441 (5th Cir. 1985) (finding constructive use where off-site activities of proposed
project substantially impaired environmental, ecological, and historical significance of site);
Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982) (applying § 4(f) to off-site activities that
substantially impaired historic value of site); D.C. Fed'n of Civic Ass'ns v. Volpe, 459 F.2d
1231, 1239 (D.C. Cir. 1971) (finding constructive use where projects dissipate aesthetic value
of property), cert. denied, 405 U.S. 1030 (1972).
The "impairment of historic value" standard employed in § 4(f) cases operates in tandem
with § 106 of NHPA. See 16 U.S.C. § 470(f) (1982). NHPA requires the head of any agency
contemplating a federally assisted project to "take into account the effect of the undertaking
on any district, site, building, structure, or object that is included in or eligible for inclusion in
the National Register." Id. For a discussion of procedures to implement § 106 of NHPA, see
Bell, Protectingthe Built Environment: An Overview of Federal HistoricPreservationLaw, 15 Envtl. L.
Rep. (Envtl. L. Inst.) 10,354, 10,360-62 (Nov. 1985).
85. See Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d
423, 436 (5th Cir. 1985) (finding constructive use where proposed highway expansion would
create negative visual impacts on historic building); Adler v. Lewis, 675 F.2d 1085, 1092 (9th
Cir. 1982) (recognizing constructive use where highway project adversely affected site of historic petroglyph rock); D.C. Fed'n Civic Ass'ns v. Volpe, 459 F.2d 1232, 1239 (D.C. Cir. 1972)
(finding § 4(f) use where project adversely affected property by creating noise, air pollution,
and general unsightliness), cert. denied, 405 U.S. 1030 (1972).
86. See Adler v. Lewis, 675 F.2d 1085, 1091-92 (9th Cir. 1982) (finding constructive use
where proposed highway would impair value of historic site in terms of its prior significance
and enjoyment); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976)
(finding constructive use where highway threatened value of recreational area); Nashvillians
Against 1-440 v. Lewis, 524 F. Supp. 962, 976 (M.D. Tenn. 1981) (asserting that constructive
use occurs where claimed harm will affect historic value of properties). But see Hall County
Historical Soc'y, Inc. v. Georgia Dep't of Transp., 447 F. Supp. 741, 750 (N.D. Ga. 1978)
(holding no congressional intent for § 4(f) to protect commercial property from potential
economic decline).
87. 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976).
88. Id. at 445. The district court held that there was no use of the property because the
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
649
found that the rock's historic value was "inseparably linked to historic events" associated with the surrounding property.8 9 The
court, therefore, held that the highway's proximity to the rock in its
historic location impaired the rock's value, creating a constructive
use of the property.9 0
Some courts use the impairment of historic value standard to limit
application of the constructive use doctrine. 9 ' Although these
courts recognize the constructive use doctrine, they narrowly construe the doctrine in situations involving urban property where adverse effects such as noise and pollution may already exist. 92 In
Arkansas Community Organization for Reform Now v. Coleman,98 the
Eighth Circuit ruled against applying the constructive use doctrine
to an inner-city park threatened by increases in noise, traffic, and
94
pollution.
Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole,95 a
recent Fifth Circuit decision, however, conflicts with Arkansas Community.9 6 The court in Citizen Advocates found a constructive use
rock was moved a short distance from its original location, the present surrounding no longer
constituted an historic site, and consequently, H-3 would not use any land from an historic
site. Stop H-3 Ass'n v. Brinegar, 389 F. Supp. 1102, 1105-07 (D. Haw. 1974), rev'd sub nom.
Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976).
89. Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 445 (9th Cir.), cert. denied, 429 U.S. 999
(1976). The court acknowledged that the rock was moved a few feet from its original location.
Id. The court, however, maintained that the immediate environs of the rock constituted a
historic site under § 4(f). Id.
90. Id. (citing Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972)).
91. See Falls Road Impact Comm., Inc. v. Dole, 581 F. Supp. 678, 693 (E.D. Wis. 1984)
(finding no constructive use of park), aff'dpercuriam, 737 F.2d 1477 (7th Cir. 1984); Nashvil-
lians Against 1-440 v. Lewis, 524 F. Supp. 962, 990-94 (M.D. Tenn. 1981) (finding that proposed highway would not constructively use historic property).
92. See Falls Road Impact Comm., Inc. v. Dole, 581 F. Supp. 678, 693 (E.D. Wis. 1984)
(finding no constructive use where proposed highway would increase traffic slightly and raise
decibels 6.5 to 7.5 over existing noise levels in publicly owned park), aff'dper curiam, 737 F.2d
1477 (7th Cir. 1984); Nashvillians Against 1-440 v. Lewis, 524 F. Supp. 962, 990-94 (M.D.
Tenn. 1981) (rejecting plaintiff's claim that highway's effects of noise, land use changes, property-value diminution, and air pollution would impair "architectural integrity" of historic
property).
93. 531 F.2d 864 (8th Cir. 1976) (per curiam).
94. Id. at 866.
95. 770 F.2d 423 (5th Cir. 1985).
96. Compare id. at 435-36 (requiring considerations of consequences such as noise, visual
aesthetics, and traffic, that project would have on historic building) with Arkansas Community
Org. for Reform Now v. Brinegar, 398 F. Supp. 685, 693 (E.D. Ark. 1975) (finding that increase of noise and pollution will not substantially affect users), aft'd, 531 F.2d 864 (8th Cir.
1976).
In I-C,4RE, environmentalists sued the Texas State Department of Highways and Public
Transportation, FHWA, and DOT, to enjoin the expansion of an existing overhead highway
from four to eight lanes on grounds that the proximity of the proposed highway to the park
and historic buildings constituted a constructive use of the property. Citizen Advocates for
Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d 423, 441 (5th Cir. 1985). The district court rejected the plaintiff's claim of constructive use finding the adverse environmental
effects would be minimal and undeserving of a § 4(f) statement. Citizen Advocates for Re-
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where the visual and aesthetic impact of a proposed highway expansion would impose on the urban park an "uninviting," "inhumane
quality," and "detract from its carefully conceived design." 9 7 The
court also found a constructive use of the historic properties. 98
The Fifth Circuit's decision in Citizen Advocates interprets the constructive use doctrine broadly, and recognizes that the section 4(f)
determination must consider the threatened harm in relation to the
particular site's characteristics. 9 9 This view protects parks and historic sites when proposed transportation projects jeopardize the integrity or value of the properties. The broad interpretation of the
use requirement is in harmony with the judicial interpretation of the
resources protected under section 4(f).100 The prevalent judicial
view extends section 4(f) protection to a wide range of properties.' 0 ' The liberal interpretation of the resources protected under
section 4(f) allows for a broad application of the statute.
B.
Resources Protected
Section 4(f) protects public parklands and historic sites of national, state, or local significance.' 0 2 Case law enlarges the definition of "land from a historic site" to include structures and objects
of historic significance.10 3 Courts usually deem land from an hissponsible Expansion, Inc. (I-CARE) v. Dole, 586 F. Supp. 1094, 1104-05 (N.D. Tex. 1984),
rev'd, 770 F.2d 423 (5th Cir. 1985). On appeal, the Fifth Circuit Court reversed and upheld
the plaintiff's challenge. Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v.
Dole, 770 F.2d 423, 441 (5th Cir. 1985).
97. Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d 423,
435-36 (5th Cir. 1985).
98. See id. at 427-28, 442 (finding that overhead highway would have created "awninglike" effect on front of historic building). In finding a use, the court stated, "it borders on the
ridiculous to suggest the expanded overhead would have minimal impacts." Id. at 442.
99. See id. at 441-42; see also supra notes 86-90 and accompanying text (discussing broad
judicial interpretations of constructive use of historic properties).
100. See infra notes 102-19 and accompanying text (discussing resources protected under
§ 4(f)).
101. See infra notes 103-07 and accompanying text (examining broad range of properties
protected under § 4(o); see also National Historic Preservation Act of 1966, 16 U.S.C. § 470
(1982) (establishing procedures to determine if property is historic). Properties are deemed
historic, and thus eligible for § 4(f) protection, pursuant to the criteria and procedures established in NHPA. NHPA authorizes the Secretary of the Interior to maintain and expand a
National Register of Historic Places. Id. § 470a(l)(A). For a summary of NHPA's procedures
and interaction with DOTA, see Bell, supra note 84.
102. 49 U.S.C. § 303(c) (1982).
103. Section 4(f) is applied to a diverse collection of historic sites. See Arizona Past &
Future Found., Inc. v. Lewis, 722 F.2d 1423, 1425 (9th Cir. 1983) (applying § 4(0 to Indian
archeological sites); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d
784, 788 (9th Cir. 1983) (applying § 4(f) to steel truss bridge); Stop H-3 Ass'n v. Coleman,
533 F.2d 434, 445-46 (9th Cir.) (applying § 4(f) to Hawaiian Petroglyph rock), cert. denied, 429
U.S. 499 (1976); Thompson v. Fugate, 347 F. Supp. 120, 126 (E.D. Va. 1972) (applying § 4(0
to ThomasJefferson's childhood home). See generally Wilburn, supra note 7 (recognizing broad
application of § 4(o).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
651
toric site "significant" under section 4(f) as long as the property is
listed or eligible for listing on the National Register. 10 4 The National Register is the nation's list of districts, sites, buildings, structures, and objects significant on a national, state, or local level in
American history, architecture, archeology, and culture. 0 5
Although the Secretary of the Interior lists the property in the National Register, state and local governing bodies also may have authority to designate property as historic landmarks.106 Deciding
whether property is of historic significance, a prerequisite to the application of section 4(f), often involves reconciling conflicting determinations by federal, state, and local officials.' 0 7
The statute authorizes any local, state, or federal official having
"jurisdiction thereof," to designate a property significant.' 08 Many
jurisdictions, therefore, consider a determination of significance
made by any one of the enumerated officials sufficient to qualify
property for protection under section 4(f).' 0 9 By allowing any one
official the authority to declare a property significant, the majority
view recognizes Congress did not intend the provision to operate as
a barrier to invoking section 4(f) protection. 110
104. See Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d
423, 438 (5th Cir. 1985) (stating that under § 4(f), property deemed eligible for inclusion on
National Register is afforded same protection as properties already listed); Benton Franklin
Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784, 788 (9th Cir. 1983) (applying
§ 4(0 to bridge eligible for listing in National Register); see also supra note 15 and accompanying text (discussing NHPA's mandates concerning property eligible for inclusion in National
Register); Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 442-43 (9th Cir.) (holding § 4() applies
to Interior Department Secretary's determination that property is "likely to meet" established
criteria of National Register), cert. denied, 429 U.S. 999 (1976).
105. See Bell, supra note 84, at 10,355 (defining National Register).
106. See Gray, supra note 15, at 386 (asserting that determination of property's historic
significance by local or state historic societies and landmarks commissions may trigger application of § 4(f) protection to property).
107. See supra notes 41-50 and accompanying text (discussing legislative history of"significance" provision); cf. Gray, supra note 15, at 387 (noting that significance requirement is not
prerequisite for applying § 4(f) to publicly owned parks and recreation areas). Gray states
that the significance of public parks is assumed on the reasonable inference that otherwise
officials would not spend public funds maintaining the lands. Id.
108. 49 U.S.C. § 303(c) (1982).
109. See Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784,
788 (9th Cir. 1983) (applying § 4(0 where State Historic Preservation officer declared bridge
eligible for inclusion in National Register); Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 443-44
(9th Cir.) (applying § 4(o where Interior Secretary declared site eligible for inclusion in National Register), cert. denied, 429 U.S. 499 (1976); National Wildlife Fed'n v. Coleman, 529
F.2d 359, 370 (5th Cir. 1976) (stating significance of wildlife refuge required determination
by Fish and Wildlife Service); Named Individual Members of San Antonio Conservation Soc'y
v. Texas Highway Dep't, 446 F.2d 1013, 1025 (5th Cir. 1971) (applying § 4(f) where City
Council of San Antonio deemed city owned parkland "significant"), cert. denied, 406 U.S. 933
(1972).
110. See supra notes 41-50 and accompanying text (discussing legislative history of"significance" requirement).
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A recent case, Stop H-3 Association v. Coleman, 1 1' expands applica-
tions of section 4(o even further, by holding that if officials disagree
over a site's significance, the statute still applies."12 In Stop H-3, the
United States Court of Appeals for the Ninth Circuit decided that a
state review board's finding that a site had only "marginal significance," could not invalidate the Interior Secretary's determination
of the site's historic value."13 Moreover, the court decided that the
Interior Secretary could determine, on his own initiative, whether a
property is significant, without requiring the concurrence of state or
local officials to invoke section 4(f).114 ChiefJudge Wallace's separate opinion in Stop H-3, however, found no authority empowering
the Interior Secretary to determine unilaterally the local significance
of an historic site for section 4(f) purposes."15
A minority ofjurisdictions follow an approach similar to the dis111. 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976).
112. Id. at 441-42. The principal issue on appeal was whether a Hawaiian Moanalua Valley qualified as an "historic site of... State or local significance." The district court relied on
a determination by state officials that the valley was only of "marginal" historic significance
and consequently dissolved the injunctions it had previously entered against construction of
the highway. See Stop H-3 Ass'n v. Brinegar, 389 F. Supp. 1102, 1117 (D. Haw. 1974) (denying § 4(f) protection), rev'dsub nom. Stop H-3 Ass'n v. Coleman, 533 F.2d 434 (9th Cir.), cert.
denied, 429 U.S. 999 (1976).
113. Stop H-3 Ass'n v. Coleman, 533 F.2d 434,439-42 (9th Cir.), cert. denied, 429 U.S. 999
(1976). The Ninth Circuit analyzed the "significance" of the property for § 4() pursuant to
the National Register criteria and found the Interior Secretary could independently determine
the significance of property. Id. at 441-42.
The Interior Secretary had stated that the property "may be eligible" for inclusion in the
National Register and published his determination in the Federal Register. Id. at 439. The
District Court found the Interior Secretary's Notice stating that the property "may be eligible" was not equivalent to a determination that the property "is eligible." Stop H-3 Ass'n v.
Brinegar, 389 F. Supp. 1102, 1117 (D. Haw. 1974), rev'd sub nom. Stop H-3 Ass'n v. Coleman,
533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976). Subsequent to the district court's
decision, the Interior Secretary resolved any doubt by publishing a new Notice, specifically
declaring the property "eligible." Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 440 (9th Cir.)
(citing to 40 Fed. Reg. 23,906-07 (1975)), cert. denied, 429 U.S. 999 (1976).
114. Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 444 (9th Cir.), cert. denied, 429 U.S. 999
(1976). The court's holding is consistent with the criteria for determining the significance of
property included under NHPA. See 16 U.S.C. § 470 (1982) (authorizing Interior Secretary to
identify property eligible for inclusion in National Register). Regulations implementing
NHPA provide that "if it is questionable" whether a property meets the National Register
criteria, the responsible agency official shall request the Interior Secretary's opinion. 36
C.F.R. § 800.4(a)(3) (1985).
115. See Stop H-3 Ass'n v. Coleman, 533 F.2d 434, 446-47 (9th Cir.) (Wallace, J., concurring and dissenting) (arguing that Interior Secretary had no express authority under NHPA to
determine state and local significance for purposes of triggering § 4() protections), cert. denied, 429 U.S. 999 (1976). Judge Wallace stated that under NHPA, the Secretary of the Interior may only "expand and maintain the National Register." Id. at 447 (referring to NHPA,
16 U.S.C. § 79(a)(1) (1982)). Judge Wallace cited Pennsylvania Envtl. Council, Inc. v. Bartlett, 454 F.2d 613, 620-23 (3d Cir. 1971) (holding Secretary could rely on state official's opinion for purposes of determining if § 4(f) applied to support his restrictive view of the Interior
Secretary's authority to make a § 4(f) determination). But see Stop H-3 Ass'n v. Coleman, 533
F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976). The majority in Stop H-3 distinguished
Bartlett, stating that the issue in Bartlett was whether the state considered state owned forest
lands as appropriate for public recreational uses. Id. at 442 n.14. The majority also recog-
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
653
senting opinion in Stop H-3, allowing the state and local officials to
make the threshold decision of significance without requiring DOT
to make an independent federal determination.' 16 This view allows
local officials to declare property insignificant and, consequently,
avoid invoking the statute.1 17 This minority view interpreting section 4(f) narrowly contrasts sharply with the legislative history."18
Recent case law supports the Stop H-3 holding extending section
4(f) where federal and state officials disagree over a site's significance.1 19 The trend in case law toward broadening section 4(f)'s
threshold requirements is consistent with the trend toward vigorously enforcing the statute's substantive requirements.
C.
Feasible and PrudentAlternatives
Once the threshold conditions triggering application of section
4(o exist, the Secretary may approve the project only if, (1) there is
no "feasible and prudent alternative" to the use of such land, and
(2) "all possible planning to minimize harm" to section 4(f) property occurs. 120
The Supreme Court in Citizens to Preserve Overton Park, Inc. v.
nized that the court in Bartlett held that the Secretary was entitled to rely on the State Attorney
General's opinion that the lands were not intended for public recreational purposes. Id.
116. See Falls Road Impact Comm., Inc. v. Dole, 581 F. Supp. 678, 686-88 (E.D. Wis.)
(denying § 4() application to public park where local officials declared property not significant local park or recreation area), aff'dpercuriam, 737 F.2d 1476 (7th Cir. 1984); Concerned
Citizens on 1-90 v. Secretary of Transp., 641 F.2d 1, 7 (1st Cir. 1981) (rejecting § 4(0's application where local body determined reservoir failed to constitute "significant ... recreation
lands"). The court in Concerned Citizens held that DOT could rely solely upon the local officials' determination that the property was insignificant, without having to make an independent federal determination. Id. (citing Pennsylvania Envtl. Council v. Bartlett, 454 F.2d 613,
623 (3d Cir. 1971)).
117. See Falls Road Impact Comm., Inc. v. Dole, 581 F. Supp. 678, 686-88 (E.D. Wis.)
(denying § 4(f) application to park when local officials determined property not significant),
aff'd per curiam, 737 F.2d 1476 (7th Cir. 1984); Concerned Citizens on 1-90 v. Secretary of
Transp., 641 F.2d 1, 7 (Ist Cir. 1981) (rejecting § 4(f)'s application where local body determined that reservoir was not significant).
118. The legislative history explicitly repudiates this restrictive interpretation. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 & n.28 (1971) (noting that
legislative history indicates Secretary's § 4(f) consideration should go beyond information
that state and local officials supply, and that Secretary should decide independently); see also
supra notes 47-48 and accompanying text (discussing support for broad interpretation of
§ 4(1) in legislative history).
Courts rely upon Congress' use of the plural "officials" to expand application of the statute.
Cf. Named Individual Members of San Antonio Conservation Soc'y, Inc. v. Texas Highway
Dep't, 466 F.2d 1013, 1026 (5th Cir. 1971) (holding that Congress did not intend that city
councils could decide unilaterally whether to use federal funds to build highways through
parks of local significance).
119.
Town of Belmont v. Dole, 766 F.2d 28, 33 (1st Cir. 1985), cert. denied, 106 S. Ct. 729
(1986).
120. See 49 U.S.C. § 303(c) (1982); see also supra notes 51-56 and accompanying text (discussing legislative history of "feasible" and "prudent" alternative inquiry); supra notes 57-59
and accompanying text (discussing legislative history of minimization of harm requirement).
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Volpe, 121 defined an alternative as "feasible" when it can be accomplished as a matter of sound engineering principles.1 22 An alternative is "prudent" unless a particular case has truly unusual factors,
or the alternative requires costs or community disruption of "ex23
traordinary magnitudes," or presents "unique problems."'
Hence, the Court considered the statutory language a "plain and
explicit bar" to the use of federal funds to construct highways
through parks and historic sites and held that exemptions applied
12 4
only to the most unusual situations.
The Court placed strong restrictions on the Secretary's authority
to reject alternatives to the use of section 4(f) land because the
Court perceived that there will always be a temptation to build highways through parks at the lowest cost. 12 5 Thus, although the Court
recognized that factors of cost, community disruption, and dislocation are relevant to the inquiry into alternatives, 126 the Court emphasized the "paramount importance" of the preservation of
7
parkland.12
Since Overton Park, most federal circuit courts of appeals have re121. 401 U.S. 402 (1971).
122. Id. at 411. In defining "feasible," the Court referred to the legislative record. See id.
at 411 & n.24 (noting 114 CONG. REc. 19,915, 19,916 (1968)) (statement by Rep. Holifield)
(stating that words feasible and prudent have definite meaning).
123. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411-13 (1971).
124. Id. at 411. The respondents, DOT, alleged that the "prudent" language required the
Secretary to engage in a wide-ranging balancing of competing interests. Id. The respondents
contended that the Secretary must weigh the detriment resulting from parkland destruction
against factors such as the cost of other routes, and safety considerations, to determine the
"prudence" of alternate feasible routes. Id. The Court disagreed and stated Congress did
not intend such a wide-ranging endeavor. Id. The Court asserted Congress obviously did not
intend that considerations of cost, directness of routes, and community disruption be weighed
equally with preservation of parkland. Id. at 412.
125. See id. at 412-13. The Court observed that there will always be a smaller outlay required when parkland is used because the public already owns the land and there will be no
need to pay for the right of way. Id. at 412. The Court further observed that because people
do not live or work in parks, highway construction through parkland requires no relocation of
residences and businesses. Id. The Court asserted that factors such as cost and community
disruption were common to all highway projects and concluded that if Congress intended
these factors to be on an equal footing with preservation of parkland, the statute would be
meaningless. Id.
126. Id. at 412. The Court acknowledged that the legislative committee reports supported DOT's view that the statute required the Secretary to consider the importance of parkland as well as cost, community disruption, and other factors. Id. at 412 n.29. The Court,
however, found the legislative history ambiguous and concluded that the Secretary could not
engage in a wide-ranging balancing of competing interests. Id. at 411-12; see also Gray, supra
note 15, at 368-73 (recognizing that consideration of cost raises problem of evaluating costs
as excessive or acceptable, and ofjudicial deference to Secretary's judgment).
127. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412-13 (1971) (holding
that the "few green havens that are public parks were not to be lost"). The Second Circuit
effectively paraphrased the Overton Park analysis in Monroe County Conservation Council v.
Volpe, 472 F.2d 693, 700 (2d Cir. 1972) (stating: "[iun other words, a road must not take
parkland, unless a prudent person, concerned with the quality of the human environment, is
convinced that there is no way to avoid doing so").
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
655
stricted DOT's authority to reject an alternate route to using parkland or historic sites to cases where alternate routes present truly
unusual conditions, or where cost or community disruption reaches
an extraordinary magnitude. 128 Although jurisdictions uniformly
uphold Overton Park's rigid standards, recent case law imposes an
even greater duty upon the Secretary in conducting the feasible and
prudent alternatives inquiry.' 29 Recent cases extend assessment of
feasible and prudent alternatives to consideration of the option of
not building the transportation project at all, commonly known as
30
the "no-build" alternative.'
A number of courts accept the no-build alternative as a requisite
component of the feasible and prudent alternatives examination.
These courts interpret the Overton Park standard as encompassing an
inquiry into alternate highway routes, as well as a consideration of
3
whether to undertake the project at all.' '
In the recent decision, Stop H-3 Association v. Dole,' 3 2 the United
128. See, e.g., Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1451-52 (9th Cir. 1984) (holding that
alternate route requiring additional $42 million (1979 dollars) and requiring dislocation of 1
church, 4 businesses, and 31 residences was not cost or community disruption of extraordinary magnitudes), cert. denied, 105 S. Ct. 2344 (1985); Louisiana Envtl. Soc'y Inc. v. Coleman,
537 F.2d 79, 87 n.6 (5th Cir. 1976) (holding alternative route requiring displacement of 377
families, 1,508 persons, 21 businesses, and 2 churches was not of extraordinary magnitude);
Coalition for Responsible Regional Dev. v. Brinegar, 518 F.2d 522, 526 (4th Cir. 1975) (finding state's inability to finance alternate route with proceeds from sale of bonds was not unique
problem which could render alternative imprudent); Association Concerned About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101, 1116-17 (N.D. Tex. 1985) (finding alternate route
requiring dislocation of elementary school prudent).
129. Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1450-55 (9th Cir. 1984) (finding that record
and Secretary's analysis did not meet stringent requirements of § 4()), cert. denied, 105 S. Ct.
2344 (1985); Benton Franklin Riverfront Trailway v. Lewis, 701 F.2d 784, 788-91 (9th Cir.
1983) (concluding that Secretary had acted arbitrarily by overlooking possible funding of alternatives in § 4(0 analysis).
130. For an early interpretation of the no-build alternative, see D.C. Fed'n of Civic Ass'n
v. Volpe, 459 F.2d 1231, 1238 (D.C. Cir. 1971) (stating that if Secretary determines that
"present and foreseeable traffic needs can be handled ... without construction of an additional river crossing ....
[A]n entirely prudent and feasible alternative to the Three Sisters
Bridge might be no bridge at all"), cert. denied, 405 U.S. 1030 (1972).
131. See Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1455-58 (9th Cir. 1984) (finding § 4(1)
violation in context of no-build alternative), cert. denied, 105 S. Ct. 2344 (1985); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784, 788-89 (9th Cir. 1983) (finding § 4(f) violation for failure to consider availability of federal funds for rehabilitation or
preservation); Coalition for Canyon Preservation, Inc. v. Bowers, 632 F.2d 774, 783 (9th Cir.
1980) (holding no-build alternative requisite to § 4(f) consideration); see also Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323, 1337-38 (4th Cir. 1972) (dictum) (stating "rapid rail
service might better satisfy needs of this area than [constructing] 1-66"), cert. denied, 409 U.S.
1000 (1972).
132. 740 F.2d 1442 (9th Cir. 1984), cert. denied, 105 S. Ct. 2344 (1985). The proposed H-3
route would have used land from two public parks on the island of Oahu. Id. at 1447-48 nn.5
& 6. Under the proposal, the interchange would take 3.5 acres from the 220 acre Pali Golf
Course. Id. at 1448 n.6. The highway, located within 100-200 feet of the property, would
constructively use land from the 450 acre Ho'omalunia Park. Id. at 1447 n.5.
The § 4(f) statement for the project concluded that there was no feasible and prudent alternative to the use of either park. Id. at 1448. On appeal, the appellants contested the district
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THE AMERICAN UNIVERSITY LAW REVIEW
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States Court of Appeals for the Ninth Circuit applied the Overton
Park feasible and prudent alternatives standard to the no-build alternative. The court held that the mere fact of an established transportation need did not preclude DOT from examining the prudence of
the no-build alternative. 133 Thus, the court required DOT to prove
that the implications of the no-build alternative presented truly unusual factors or represented cost and community disruption of an ex13 4
traordinary magnitude.
Courts accepting the no-build option require the Secretary to
consider the protection of parkland and historic sites in the initial
choice of planning a project.1 3 5 Some courts, however, consider the
no-build alternative an invalid section 4(f)(1) inquiry. 136 These
courts reason that the failure of an alternative to fulfill the need or
purpose of the transportation project renders the no-build alternative per se imprudent.' 3 7 The courts that reject the no-build altercourt's ruling that the Secretary had reasonably rejected the no-build alternative. See id. at
1448-49 (arguing that record did not support Secretary's decision).
133. See id. at 1455-58 (finding that Secretary could not reasonably conclude from record
that no-build alternative was imprudent).
The district court had disposed of the no-build alternative simply because the defendants
had established the need for the highway. Stop H-3 Ass'n v. Lewis, 538 F. Supp. 149, 180
(N.D. Haw. 1982), rev'd sub nom. Stop H-3 Ass'n v. Dole, 740 F.2d 1442 (9th Cir. 1982), cert.
denied, 105 S. Ct. 2344 (1985).
On appeal, the Ninth Circuit disagreed, concluding that the mere fact that a need for a
highway was established, did not prove that not building the highway would be imprudent
under Overton Park. Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1445 n.21 (9th Cir. 1982), cert
denied, 105 S. Ct. 2344 (1985). But see id. at 1466-68 (Wallace, J., concurring and dissenting)
(rejecting project-wide no-build proposition as prudent alternative for purposes of § 4(1)
analysis).
134. Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1455-58 (9th Cir. 1984), cert. denied, 105 S.
Ct. 2344 (1985). The Court in Stop H-3 found DOT's basis for rejecting the no-build option
rested on four reasons: (1) the no-build option would require purchase of 31 buses to meet
future travel demand at a total cost of $3.3 million (1977 dollars), (2) the no-build option
would result in traffic congestion and increased delays, (3) the no-build option would result in
increased safety hazards, and (4) the costs of providing increased bus service would not reduce congestion on existing highways. Id. at 1455. The court rejected all four reasons as
insufficient justifications for finding the no-build alternative imprudent. Id. at 1455-58.
135. Compare D.C. Fed'n of Civic Ass'n v. Volpe, 459 F.2d 1231, 1238-39 (D.C. Cir.) (stating that highway project should not be built if it could not be built consistently with applicable
§ 4() law), cert. denied, 405 U.S. 1030 (1972) with Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 146668 (9th Cir. 1984) (Wallace, J., concurring and dissenting) (asserting that § 4(f) permits project to be built if building project and avoiding use of park land are irreconcilable), cert. denied,
105 S. Ct. 2344 (1985).
136. See Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 78, 85 (5th Cir. 1976) (rejecting
no-build alternative to bridge project).
137. See, e.g., Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d 700, 715 (11th
Cir. 1985) (rejecting as imprudent any alternative that fails to fulfill transportation need);
Citizens to Preserve Wilderness Park v. Adams, 685 F.2d 438 (8th Cir. 1982) (recognizing
failure to meet goal of project proper factor in Secretary's § 4(f) consideration); Louisiana
Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976) (rejecting no-build alternative
for failing to serve project's purpose); Citizens to Preserve Foster Park v. Volpe, 466 F.2d 99 1,
996 (7th Cir. 1972) (finding no feasible and prudent alternative to use of park where any
alignment satisfying purpose of expressway would require use of § 4(1) land); Maryland Wild-
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
657
native solely on the basis of need implicitly recognize that the choice
to build the highway lies beyond the Secretary's section 4(f) discretion.' 3 8 The recent trend in case law, however, recognizes the nobuild alternative as a requisite step for the Secretary to follow prior
to approving a project.' 3 9 The trend in cases requiring a more rigorous inquiry into feasible and prudent alternatives follows a similar
trend in the law imposing a greater duty on DOT to comply with
section 4(f)(2).
D.
All Possible Planning to Minimize Harm
In section 4(f)(2), Congress legislated that highway planners must
demonstrate "all possible planning to minimize harm" to protected
resources before the Secretary can approve of the project. 140 Sec-
tion 4(0(2) differs from section 4(f)(1) in several ways.'
41
Section
4(0(1) requires the Secretary to find that each "alternative to the
use" of parkland or historic sites is either infeasible or imprudent
before approving the use of the protected resources.
42
Section
4(f) (2) is implicated when all of the feasible and prudent alternatives
require use of protected land.' 43 Hence, section 4(f)(2) requires the
Secretary to examine the various alternatives to determine how to
minimize harm to parklands and historic sites.144
life Fed'n v. Lewis, 560 F. Supp. 466, 473 (D. Md. 1983) (rejecting as imprudent alternatives
that would not involve community disruption of extraordinary magnitude), aft'd, 747 F.2d 229
(4th Cir. 1984).
138. See Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976) (holding
no-build option is imprudent and unacceptable once purpose for highway is established).
The court in LouisianaEnvironmental Society disregarded the holding in Overton Park that protecting parklands is of "paramount importance." Id.
139. See Druid Hills Civic Ass'n, Inc. v. Federal Highway Admin., 772 F.2d 700, 715-16 &
n.18 (11 th Cir. 1985) (rejecting no-build alternative as imprudent due to binding precedent
of Louisiana EnvironmentalSociety but recognizing that alternative may be more consistent with
Overton Park).
140. 49 U.S.C. § 303(c) (1982); see also supra notes 57-59 and accompanying text (discussing legislative history of § 4(0(2) requirement).
141. See Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir. 1982) (noting two-pronged analysis
of § 4(f) considerations); see also Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86 (5th
Cir. 1976) (discussing completely unconnected nature of §§ 4(0(1) & 4(0(2) considerations).
The court in Louisiana Environmental Society asserted that the difference between subsections
(1) and (2) is that considerations that might render an alternative imprudent (such as displacement of persons or businesses) were irrelevant to determining whether a different path would
minimize harm to the protected lands. Id.
142. 49 U.S.C. § 303(c)(1) (1982); see supra notes 120-24 and accompanying text (discussing feasible and prudent alternatives standard).
143. See Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976) (stating
that feasibility and prudence determination is only first half of § 4(0 inquiry).
144. See Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir. 1982) (stating § 4(0(2) inquiry
requires balancing of harm to site by proposed project with harm to same site by another
alternative, or plan to implement mechanisms to diminish that particular harm); see also D.C.
Fed'n of Civic Ass'n v. Volpe, 459 F.2d 1231, 1249 (D.C. Cir.) (remanding case where Secretary's approval of construction project was premature), cert. denied, 405 U.S. 1030 (1972); Ar-
658
THE AMERICAN UNIVERSrrY LAW REVIEW
[Vol. 36:633
The judicial interpretation of "all possible planning" imposes an
affirmative duty on the Secretary to ensure a minimization of damage of section 4(f) property.' 4 5 The critical inquiry under section
4(f)(2) is the extent of all possible planning. In section 4(0 cases,
DOT's compliance with the all possible planning requirement is crucial to approval of a transportation project. 146 If a court finds that
DOT failed to consider all possible minimization measures, the
47
court may overturn the Secretary's approval of a project.'
Most courts, however, construe the all possible planning provision within a standard of reasonableness.' 48 Uniformly, courts have
adopted the standard articulated by the Fifth Circuit in Louisiana Environmental Society, Inc. v. Coleman. 14 9 The court in Louisiana Environmental Society held that the relocation of a highway through another
portion of land is a possible means of minimizing harm to the
area. 150
In reaching this decision, the Fifth Circuit defined section 4(0(2)
as requiring DOT to engage in a two-step balancing process.' 5'
First, the Secretary must compute the amount of harm each alternalington Coalition on Transp. v. Volpe, 458 F.2d 1323, 1334-35 (4th Cir.) (recognizing that
duty to minimize harm extends throughout stages of construction until costs of minimization
charges outweigh whatever benefits might accrue from minimization), cert. denied, 409 U.S.
1000 (1972).
145. See Monroe County Conservation Council v. Volpe, 472 F.2d 693, 700-01 (2d Cir.
1972) (characterizing Secretary's § 4(0(2) examination as prerequisite condition to approving
project that uses federal park lands); see also Druid Hills Civic Ass'n, Inc. v. Federal Highway
Admin., 772 F.2d 700, 716 (11th Cir. 1985) (holding § 4(0(2) requirement as Secretary's
affirmative duty); Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85 (5th Cir. 1976)
(enforcing "all possible planning" obligation upon Secretary).
146. See Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85-86 (5th Cir. 1976) (asserting that if no balancing of harm is conducted, then matter must return for Secretary's
further consideration); see also Druid Hills Civic Ass'n Inc. v. Federal Highway Admin., 772
F.2d 700, 716 (1 lth Cir. 1985) (relying on court's conclusion in LouisianaEnvironmental Society
that balancing of relative harm is requisite to approval of route using § 4(0 property).
147. See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 785 (9th Cir. 1980)
(holding existence of unexamined but viable alternative to adopted plan provides basis for
overturning Secretary's decision approving project that uses parkland).
148. See Maryland Wildlife Fed'n v. Dole, 747 F.2d 229, 236 (4th Cir. 1984) (requiring
Secretary to choose alternative that reasonably could be viewed as one that minimized harm
to protected property); Adler v. Lewis, 675 F.2d 1085, 1094 (9th Cir. 1982) (asserting that
implied within statement "all measures" is condition that such efforts to minimize harm be
feasible and prudent, or reasonable); Louisiana Envd. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86
(5th Cir. 1976) (stating minimization must be reasonable); Nashvillians Against 1-440 v.
Lewis, 524 F. Supp. 962, 981 n.56 (M.D. Tenn. 1981) (holding abstract, total perfection not
required).
149. 537 F.2d 79 (5th Cir. 1976); see infra notes 150-56 and accompanying text (discussing
analysis in Louisiana Environmental Society).
150. Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976).
151. Id. at 85-86. The statute requires that the Secretary perform the balancing process.
The statute reads: "The Secretary shall not approve any ... project ... unless the program
includes all possible planning to minimize harm to [the] recreational area." 49 U.S.C.
§ 303(c)(2) (1982).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
659
tive route causes to section 4(f) areas.' 52 This inquiry involves an
examination of many factors, not merely a calculation of the number
of acres to be asphalted. 153 The only relevant factor in determining
whether an alternative minimizes harm is the quantum of harm the
alternative causes to the park or historic site. 154 Furthermore, if an
alternative does not minimize harm, the Secretary may reject the alternate route in favor of the suggested or adopted route. 155 Second, if an alternative route does minimize harm, only truly unusual
56
factors allow the Secretary to reject the route.'
Recent court decisions impose a heavy burden on the Secretary to
conduct a thorough inquiry of all alternatives. 5 7 The Secretary also
must coordinate efforts to minimize harm with other planning agencies. 158 In Druid Hills Civic Association, Inc. v. FederalHighway Administration,159 the Eleventh Circuit examined the adequacy of the
Secretary's section 4(f)(2) inquiry, when the Secretary approved
construction of a highway in Atlanta, Georgia that would circumscribe a presidential library, museum, policy center, and public
park. 160 The Secretary had rejected all alternatives as failing to min61
imize harm to section 4(f) property.'
152. Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85-86 (5th Cir. 1976).
153. Id.; accord Adler v. Lewis, 675 F.2d 1085, 1095 (9th Cir. 1982) (holding minimization
requirement encompasses all measures that would minimize harm); see also DOT Order
5610.1 (c), 44 Fed. Reg. 56,420, 56,431-32 (1979) (noting minimization measures may include
tunneling, planting, screening, and embankments, as well as relocating highway corridor
itsel).
154. Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976).
155. See id. (stating "Secretary is free to choose between equal damage alternatives"); accord Maryland Wildlife Fed'n v. Dole, 747 F.2d 229, 236 (4th Cir. 1984) (stating judiciary
should not read into Secretary's weighing process conclusion of equal harm).
156. See Louisiana Envt. Soc'y, Inc. v. Coleman, 537 F.2d 79, 86-87 (5th Cir. 1976) (rejecting alternate route location that minimizes harm where alternate route "swe[pt] too far to
the west to serve the purpose of an urban circumferential highway").
157. See, e.g., Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1455-58 (9th Cir. 1984) (finding
record did not establish that Secretary could conclude reasonably that no-build alternative
had to be rejected as imprudent), cert. denied, 105 S. Ct. 2344 (1985); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784, 789-90 (9th Cir. 1983) (requiring
Secretary to consider availability of federal funding to preserve bridge as alternative to demolition construction project); Coalition for Canyon Preservation, Inc. v. Bowers, 632 F.2d 774,
785 (9th Cir. 1980) (holding that Secretary should have considered improved and widened,
two-lane road alternative). But see Arizona Past & Future Found. v. Lewis, 722 F.2d 1423,
1429-30 (9th Cir. 1983) (upholding Secretary's decision where no historic sites would be used
in construction).
158. See supra note 109 and accompanying text (recognizing agencies' efforts to coordinate implementation of § 4(0); see also Gray, supra note 15, at 362-68 (discussing Secretary's
duty to consult with other federal and state agencies).
159. 772 F.2d 700 (1lth Cir. 1985).
160. Id. at 716-19. There were several alternative routes to the proposed route. All of the
proposed routes in the litigation would affect parklands and historic sites to some degree. Id.
at 718-19.
161. See id. at 717 n.20 (stating that it was unclear whether Secretary rejected various
alternatives because they failed to minimize harm or because they were imprudent).
660
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:633
The Eleventh Circuit found that the Secretary's section 4(0(2) inquiry was deficient in failing to include an accurate assessment of
62
the characteristics of the property affected by the alternatives.
The court stressed that the section 4(0(2) inquiry needed to specify
the kind of impact and the degree of harm that would accrue to the
park and historic property. 163 The court imposed strong requirements on the Secretary's review of harm to historic property, and
held that the Secretary needed to determine the extent of any previ164
ous commercial developments that affected the property.
The Eleventh Circuit's approach of requiring a careful, thorough
balancing in an effort to minimize damage to section 4(0 land conforms with the rulings of Overton Park and Louisiana Environmental
Society.' 65 The decision in Druid Hills is significant because it establishes a duty for the Secretary to provide a substantial discussion
detailing the reasons for rejecting alternatives. 16 6 When examining
the adequacy of the Secretary's 4(f)(1) and 4(0(2) determination,
courts are demonstrating an increasingly strict level of judicial
review.
III.
LEVEL OF JUDICIAL REVIEW
The Supreme Court in Overton Park established the standard of
judicial review governing the Secretary's action.' 6 7 The review
court must conduct a substantial three-step inquiry.' 6 8 First, the
court must determine whether the Secretary acted within the scope
162. Id. at 717-18. The appellate court determined that the district court upheld the Secretary's determination based only upon compliance with § 4()(1). Id.
163. See id. at 718 (holding Secretary's § 4(f)(2) review must consider nature of harm, e.g.,
visual impact or physical taking, accruing to park or historic site from each alternative).
164. See id. at 718 (requiring Secretary's § 4(f)(2) review to address impacts of prior commercial development on alternate routes). But see Hall County Historical Soc'y, Inc. v. Georgia Dep't of Transp., 447 F. Supp. 741, 750 (N.D. Ga. 1978) (holding § 4() is not intended to
protect commercial property from potential economic decline).
165. See supra notes 146-56 and accompanying text (discussing that all possible planning
must be done to minimize harm).
166. See Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d 700, 718 (11th Cir.
1985) (holding as insufficient, simple statement that alternative route would affect § 4() lands
without supplying "some rational, documented basis for such conclusion").
167. 401 U.S. 402, 415-20 (1971). The Court held that the Secretary's action is subject to
judicial review pursuant to § 701 of the Administrative Procedure Act (APA). Id. at 409-13.
The Court found that Congress did not intend to limit or prohibit judicial review. Id. at 410.
The Court further stated that the exemption for action "committed to agency discretion" did
not apply, and the Secretary did not have wide-ranging discretion. Id. at 410-13. For guidelines governing review of administrative decisions, see APA, 5 U.S.C. § 706 (1982) (stating
that reviewing court shall set aside agency action found to be arbitrary, contrary to constitutional right, in excess of statutory jurisdiction, without lawful procedure, unsupported by substantial evidence, or unwarranted by facts).
168. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-20 (1971).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
of his or her authority.'
69
661
Second, the court must find that the Sec-
retary's choice was not "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law."' 7 0 Third, the court must
find that the Secretary followed the necessary procedural
7
requirements.' '
In engaging in the three-part test, the reviewing court must focus
primarily on the administrative record, usually the Environmental
Impact Statement (EIS), in existence at the time of the Secretary's
decision.172 The EIS contains facts indicating whether the proposed
project will materially degrade any aspect of environmental quality. 173 A complete administrative record is crucial in order for the
reviewing court to carry out its searching and careful analysis.1 74 An
inadequate administrative record, therefore, frustrates judicial re-
view and may be a basis for overturning the Secretary's decision to
175
approve a project.
Courts impose a strict level ofjudicial review by requiring the ad169. Id. at 415-16. The Court limited the Secretary's authority to a small range of available choices, including a reasonable belief that there were no feasible alternatives. Id. at 416.
170. Id. at 416. The Court also must consider whether the decision was based on a clear
error of judgment. Id. (citing McBee v. Bowmar, 296 F.2d 235, 237 (6th Cir. 1961)); see also
APA, 5 U.S.C. § 706(2)(a) (1982) (establishing arbitrary and capricious standard).
171. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-17 (1971). In
Overton Park the only alleged procedural error was the Secretary's failure to make formal findings stating his reasons for approving highway construction through the park. Id. at 417. The
Court found no statutory requirement that the Secretary make formal findings. Id.
172. See id. at 419-20 (remanding case where lower courts based their review on litigation
affidavits); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (stating that focal point forjudicial
review is administrative record).
173. See National Environmental Policy Act of 1969 (NEPA) § 102, 42 U.S.C. § 4332
(1982) (setting forth EIS requirements). Section 102 of NEPA provides the threshold requiring preparation of an EIS. Id.; see also Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982)
(discussing effect of NEPA's requirements on compliance with § 4(0).
NEPA covers only the procedural requirements of the EIS statement. See Adler v. Lewis,
675 F.2d 1085, 1096 (9th Cir. 1982) (citing APA, 5 U.S.C. § 706(2)(D) (1976) (noting that
appropriate standard for review established by § 706(2)(D) is whether EIS was prepared
"without observance of procedure required by law"). Compliance with NEPA does not necessarily assure compliance with § 4(0's requirements. See id. (stating that finding of compliance
or noncompliance with NEPA provisions does not mandate identical conclusion as to § 4(f));
see also Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1461 (9th Cir. 1984) (stating role of reviewing
court under § 4() is stricter because mandate of § 4(f) is prohibitory, whereas NEPA is essentially procedural), cert. denied, 105 S. Ct. 2344 (1985).
174. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971)
(remanding case to district court for plenary review of Secretary's decision where administrative record was absent from reviewing court). The Court held the "whole administrative record" compiled by the agency is the basis for review required by § 706 of the APA. Id. at 419;
see APA, 5 U.S.C. § 706 (1982) (requiring reviewing court to set aside agency action unsupported by substantial evidence or unwarranted by facts).
175. See Brooks v. Coleman, 518 F.2d 17, 18 (9th Cir. 1975) (stating that EIS need not
consider in detail all possible variations of alternatives stated); Louisiana Envtl. Soc'y, Inc. v.
Brinegar, 513 F. Supp. 179, 187 (W.D. La. 1981) (finding Secretary's § 4(f) statement insufficient because it failed to describe how access is limited, and neglected consideration of mitigating factors to minimize the access limitation), rev'd sub nom. Louisiana Envtl. Soc'y, Inc. v.
Dole, 707 F.2d 116 (5th Cir. 1983).
662
THE AMERICAN UNIVERSrrY LAW REVIEW [Vol. 36:633
ministrative record to demonstrate that the Secretary has taken a
"hard look" at environmental consequences as well as secondary,
"socio-economic" effects of the project in question. 176 Although
some courts restrict judicial review, 177 a majority of courts advocate
more intensive judicial review. 178 This is reflected in the case law
under section 4(f), which restricts the Secretary's discretion by imposing a rigorous obligation upon the Secretary to make precise
179
findings of fact.
Thus, courts may require the Secretary to supplement the existing
EIS where the administrative record is insufficient to support the
Secretary's decision to approve a project.18 0 In addition, courts may
remand the case, requiring the Secretary to prepare a new EIS. 1a8
The extent to which courts require a detailed and extensive adminis176. Kleppe v. Sierra Club, 427 U.S. 390 (1976). See Save Our Sycamore v. Metropolitan
Atlanta, 576 F.2d 573, 576 (5th Cir. 1978) (holding EIS must establish that agency in good
faith objectively takes sufficient look at environmental consequences of proposed action and
all alternatives to that action); Environmental Defense Fund, Inc. v. Corps of Eng'rs, 492 F.2d
1123 (5th Cir. 1976) (stating that NEPA's required determination of "good faith objectivity"
applies to § 4(f) consideration of adequacy of EIS).
177. See Coalition for Responsible Regional Dev. v. Coleman, 555 F.2d 398, 403 (4th Cir.
1977) (upholding Secretary's approval of bridge project elevated 45 feet over park where
record included no showing of alternate measure to minimize intrusion); see also Adler v.
Lewis, 675 F.2d 1085, 1094 (9th Cir. 1982) (rejecting plaintiff's assertion that § 4(f) requires
that all measures "technically possible . . . be implemented"); Maryland Wildlife Fed'n v.
Lewis, 560 F. Supp. 466, 478 (D. Md. 1983) (holding rule of reason governs range of alternatives which agency must study), aff'd sub norm. Maryland Wildlife Fed'n v. Dole, 747 F.2d 229
(4th Cir. 1984).
178. See D.C. Fed'n of Civic Ass'n v. Volpe, 459 F.2d 1236, 1239 (D.C. Cir. 1972) (holding
that "all possible planning" requires Secretary to consult with other planning agencies to
coordinate efforts to minimize harm to park and historic sites), cert. denied, 405 U.S. 1030
(1972); see also Brooks v. Coleman, 518 F.2d 17, 18 (9th Cir. 1975) (recognizing that failure of
Secretary to consider all reasonable alternatives to use of parkland is grounds for overturning
Secretary's approval of using parkland as arbitrary and capricious).
179. See Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d 700, 718 (11th Cir.
1985) (finding § 4(f) violation where EIS failed to discuss with specificity quantity and characteristics of affected area); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701
F.2d 784, 790 (9th Cir. 1983) (finding that Secretary's report was insufficient where it failed to
consider specific proposals other than "no action" and "save the bridge"); Monroe County
Conservation Council v. Volpe, 472 F.2d 693, 700 (2d Cir. 1972) (stating that Secretary may
not give his approval until there has been "all possible planning to minimize harm"); see also
McMillan & Peterson, The PermissibleScope of Hearings, Discovery and Additional Fact-FindingDuringJudicialReview of Informal Agency Action, 1982 DuKE LnwJ. 333, 351 (recognizing trend by
courts in allowing supplementation of administrative record in order to facilitate complete
and probing judicial review).
180. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (remanding case for further explanation by Secretary where bare record did not disclose factors
considered by agency); D.C. Fed'n of Civic Ass'n v. Volpe, 459 F.2d 1231, 1249 (D.C. Cir.
1971) (stating that Secretary could best serve interests of parties and reviewing court by establishing full-scale administrative record), cert. denied, 405 U.S. 1030 (1972); see also McMillan &
Peterson, supra note 179 (discussing supplementation of administrative record).
181. See Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d 700, 718 (1 th Cir.
1985) (remanding case where EIS was inadequate); Benton Franklin Riverfront Trailway &
Bridge Comm. v. Lewis, 701 F.2d 784, 789 (9th Cir. 1983) (remanding and reversing § 4(1)
decision as arbitrary and capricious).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
663
trative record to support the Secretary's decision may lead to a
82
slower implementation of transportation projects.'
IV.
A.
PROSPECTS AND RECOMMENDATIONS
Implications of Proposed FederalHighway Administration Regulations
The prevalent judicial interpretation of section 4(f) narrows
DOT's discretion to approve highway projects that threaten parks
and historic sites. 183 Highway proponents, therefore, criticize the
judiciary's strong enforcement of section 4(f) and argue that implementation of the statute unreasonably restricts the development of
efficient transportation systems. 18 4 Many federal and state highway
officials criticize the application and administration of section 4(f) as
too exacting and overly thorough. 185
In an attempt to facilitate implementation of section 4(f), the
FHWA issued draft regulations in 1983, amending title 23, section
771.135 of the Code of Federal Regulations. 8 6 The proposed regulations weaken application of section 4(f) and entrust DOT with
greater discretion to approve highway projects.
The proposed FHWA rules for implementing section 4(f) create
two exemptions to application of section 4(f) to historic sites. First,
the proposed rules remove section 4(f) protection from historic
properties where proposed repair work will not damage the properties' historic significance. 18 7 Section 771.133(o)(1) makes the
FHWA responsible for deciding whether transportation work would
"adversely affect the historic qualities of the property."' 8 8
182. See National Wildlife Fed'n v. Marsh, 721 F.2d 767, 780 (11th Cir. 1983) (affirming
Secretary's decision on grounds that rigid application of regulation creates undue hardship to
beneficiaries of program conceived years before regulations were promulgated).
183. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-13 (1971)
(stating that duties imposed by § 4(f) are not matter of agency discretion); Louisiana Envtl.
Soc'y, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1976) (discussing limitations on DOT's
authority); see also supra note 125-30 and accompanying text (discussing case law restricting
DOT's authority).
184. See Hearngon Overton Park, supra note 11, at 42-44 (statement of Brock Adams, Sec'y
of Transp.) (discussing workability of § 4()'s standards).
185. See id. at 6-7 (statement of Ray Blanton, Governor of Tenn.) (discussing confusion
and administrative snarl resulting from § 4(o).
186. Proposed Rules to Section 4() of the Department of Transportation Act, 48 Fed.
Reg. 34,905 (1983) (to be codified at 23 C.F.R. § 771.133) (proposed Aug. 1, 1983) (superseding 23 C.F.R. § 77 1.135).
187. Sce Proposed Rules to Section 4(f) of the Department of Transportation Act, 48 Fed.
Reg. 34,905, 34,906 (1983) (to be codified at 23 C.F.R. § 771.133(o)(1) (proposed Aug. 1,
1983). The proposed regulation provides, -[§ 4(0] does not apply to work on transportation
fatilities that are on or eligible for inclusion in the National Register ... [ifn the Administration IFHWAI determines that such work will not adversely affect the historic qualities of the
property."
188. Id.
664
THE AMERC AN UNIVERSITY LAW REVIEW [Vol. 36:633
Second, proposed regulation section 771.133(f)(1) exempts application of section 4(f) to archeological sites where the FHWA determines that archeological artifacts are important chiefly because of
what can be excavated and have "minimal value for preservation in
place." 1 8 9 Although the current regulation also provides an exemption to section 4(f) for archeological resources that do not warrant
preservation in place,19 0 the current regulation provides a safeguard
to the archeological resources by requiring that the FHWA consider
a "resource recovery plan." 19 1 Thus, the current regulation provides for a resource removal plan prior to highway construction, ensuring that the archeological objects will be protected from highway
19 2
destruction.
The proposed amendment to the regulation, however, entirely
omits the resource recovery plan safeguard.19 3 The proposed regulation, therefore, removes the protection that the present regulation
provides to archeological resources, 19 4 enabling highway departments to pave directly over the archeological objects and destroy
19 5
the site's historic significance.
The draft regulations reduce the stringent requirements of sec196
tion 4(f) and delegate more decisionmaking authority to DOT.
189. Id. (to be codified at § 771.133(f)(1)).
190. 23 C.F.R. § 771.135(f)(1) (1986). The current regulation provides, "[§ 4(f)] applies
to all archeological sites on or eligible for inclusion on the National Register .... unless the
Administration, after consultation with the State Historic Preservation Officer and the Advisory Council on Historic Preservation, determines that the archeological resource is important chiefly for the information it contains and has minimal value for preservation in place."
Id.
191. See id. (stating that "archeological resources which do not warrant preservation in
place may be recovered in accordance with a resource recovery plan developed in compliance with 36 C.F.R.
Part 800") (emphasis added).
192. See 23 C.F.R. § 771.135(f)(2) (1986) (providing that § 4(f) process will be expedited
for archeological sites discovered during construction where preservation of resources in
place is warranted); see also 36 C.F.R. § 800 (1985) (providing for resource recovery plan).
193. See Proposed Rule to Section 4(f) of the Department of Transportation Act, 48 Fed.
Reg. 34,905, 34,906 (1983) (to be codified at 23 C.F.R. § 771.133(f)(1) (proposed Aug. 1,
1983) (denying application of § 4(f) where Federal Highway Administration, after consulting
with State Historic Preservation Officer and Advisory Council on Historic Preservation, determines that archeological resource is important chiefly because of what can be learned by data
recovery and has minimal value for preservation in place).
194. See id. (allowing construction of highways at "all archeological sites on or eligible for
inclusion on the National Register ... [where] the Administration [FHWA] . . . determines
that the archeological resource is important chiefly because of what can be learned by data
recovery even ifit is agreed not to immediately recover the resource." Id. (emphasis added). But see
Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784 (9th Cir. 1983)
(recognizing that entire purpose of § 4(f) would be defeated if DOT were allowed to remove
structures from historic sites, causing sites to lose historic significance and rendering § 4(o
inapplicable).
195. Interview with Ms. Elizabeth Merritt, Assistant General Counsel, The National Trust
for Historic Preservation, in Washington, D.C. (Oct. 13, 1985).
196. See supra notes 187-94 and accompanying text (discussing how FHWA's proposed
rules weaken § 4(f protection of historic resources).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
665
Proposed regulation section 771.133 allows DOT to approve a project by merely consulting with the Advisory Council on Historic
Preservation.1 97 Thus, although the proposed regulation requires
the FHWA to consult with historic preservation officers,' 98 the regulation authorizes DOT to make the final determination whether a
transportation project will "adversely affect the historic qualities of
the property."' 99
The proposed regulations grant broad discretion to DOT, undermining the purpose of section 4(f). 20 0 Furthermore, by authorizing
DOT officials, who are not experts on historic preservation, to determine the adverse effects of projects on historic properties, the
proposed regulations weaken the protection of historic proper-
ties. 201 The proposed regulations, therefore, limit the Secretary's
duty to comply with section 4(f), and depart significantly from prior
2 02
case law.
197. Compare Proposed Rules to Section 4(f) of the Department of Transportation Act, 48
Fed. Reg. 34,905, 34,906 (1983) (to be codified at 23 C.F.R. § 771.133(o)(2)) (stating that
§ 4(f) does not apply to work on transportation facilities that are eligible for inclusion on
National Register provided that "the Administrative determination has not been objected to
by a State or Federal Agency charged by law with responsibilities... of historic preservation
in accordance with NHPA") with 23 C.F.R. § 771.135(m)(2)(ii) (1986) (stating § 4(f) approval
made for additional work on protected property is valid only if there are "no feasible and
prudent design alternatives to the use of such section 4(f) land").
198. Proposed Rules to § 4(f) of the Department of Transportation Act, 48 Fed. Reg.
34,905 (1983) (to be codified at 23 C.F.R. § 771.133(d)). The DOT's consultation with the
State Historic Preservation Officer [SHPO] operates pursuant to the NHPA process. See 16
U.S.C. § 470(a)(b)(1) (1982) (requiring Interior Secretary to approve state programs that provide for designation of SHPO to administer state preservation efforts). The Act requires each
SHPO to identify and inventory historic properties in the state, nominate eligible properties
to the National Register, and serve as a liaison with federal and state agencies on preservation
matters. Id. § 470a(b)(3). For further discussion on the application of NHPA to federal agencies and the agencies' implementation of NHPA, see Bell, supra note 84, at 10,361-62 (discussing scope of consultation required by NHPA).
199. Proposed Rules to Section 4(0 of the Department of Transportation Act, 48 Fed.
Reg. 34,905, 34,906 (1983) (to be codified at 23 C.F.R. § 771.133(o)) (proposed Aug. 1,
1983).
200. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412-13 (1971)
(recognizing that existence of statute indicates Congress intended protection of historic sites
and parklands to be given "paramount importance"); Louisiana Envtl. Soc'y, Inc. v. Coleman,
537 F.2d 79, 84 (5th Cir. 1976) (stating that Congress intended "any... use, regardless of its
degree" to invoke § 4(0).
201. See supra notes 187-94 and accompanying text (discussing how FHWA's proposed
rules weaken § 4(f) protection of historic resources).
202. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971)
(stating § 4(f) is "a plain and explicit bar to the use of federal funds" for highway projects that
affect historic sites and parks); Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d
700, 716 n.19 (11 h Cir. 1985) (asserting that "Congress enacted no exceptions" to § 4(0
requirements); Benton Franklin Riverfront Trailway & Bridge Comm. v. Lewis, 701 F.2d 784,
788 (9th Cir. 1983) (asserting that DOT must comply strictly with § 4(f)); Louisiana Envtl.
Soc'y, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1976) (stating that Secretary must adopt
alternative if feasible and prudent alternative to use of § 4(0 resources exists).
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THE AMERICAN UNIVERSITY LAW REVIEW
B.
[Vol. 36:633
Recommendations
The proposed FHWA regulations represent an attempt by highway proponents to circumvent section 4(f) protections. Federal and
state highway officials object to the judicial interpretation of "feasible and prudent" under section 4(f)(1) as setting inflexible standards. 20 3 The highway proponents argue that strict application of
section 4(f) results in delays in transportation projects, creates high
increases in costs and traffic congestion, and overrules local
20 4
preferences.
Although these objections to section 4(f) raise legitimate social
concerns, the courts and the legislature should resist lightening the
Secretary's burden of meeting the statute's requirements. The proposed regulations will promote and encourage the systematic destruction of historic sites by highway construction. There are other
ways in which highway proponents may facilitate highway construction without weakening the force of section 4(f).
Instead of introducing loopholes to address the difficulties in administering section 4(f), highway proponents should amend the
Federal-Aid Highway Act (FAHA). 20 5 The existing FAHA provides
that the Secretary may approve Federal-Aid Interstate funds for feasible and prudent highway features that would minimize harm
where projects physically invade parkland and historic sites. 20 6 An
amendment to the Federal-Aid Highway Act, however, could specify
that the Secretary may approve federal funds for transportation
measures minimizing the adverse environmental impacts on section
4(f) properties. An amendment could state that the Secretary may
approve federal funds for feasible and prudent designs, locations, or
other construction features that would minimize harm to land pro203. See Hearing on Overton Park, supra note 11, at 1-2 (statement of Sen. Baker) (stating
that § 4(0 does not provide workable framework for balancing community disruption with
protection of parklands); id. at 8 (statement of Ray Blanton, Governor of Tenn.) (asserting
that judicial interpretation of § 4(f) sets inflexible standards not intended by Congress when
law was originally enacted). But see id. at 42-44 (statement of Brock Adams, Sec'y of Transp.)
(discussing success of § 4(0 in protecting nation's parklands by altering traditional tendency
of many federal, state, and local transportation agencies to minimize costs and social impacts
of new construction projects by building on parkland).
204. See id. at 1-2 (statement of Sen. Baker) (suggesting that § 4(0 causes delays in highway construction projects); id. at 9-10 (statement of Wyeth Chandler, Mayor of Memphis,
Tenn.) (discussing high costs attributable to implementation of § 4(0).
205. Federal-Aid Highway Act of 1956 (FAHA), Pub. L. No. 97-134, § 10, 95 Stat. 1702
(current version at 23 U.S.C. § 139 (1982)).
206. Id. Section 10 limits the use of federal interstate highway funds to:
the actual costs of any of those design concepts, locations, geometrics, and other
construction features . ., except in anY case where the Secretamy of Transportation delermines
that a provision oJ Federal law requires a different design, location, geometric, or other construction feature of a type authorized by this subsection. (emphasis added).
1987]
DEPARTMENT OF TRANSPORTATION'S SECTION 4(F)
667
tected under section 4(f) in cases where projects constructively use
the property. 20 7 Encouraging funds to minimize harm to the land in
constructive use cases would safeguard preservation and social values. Federal and state highway departments should strive to use
federal control over the funding of federal transportation assistance
to require better solutions to transportation problems.
CONCLUSION
Preservation of historic sites and public parkland remains as vital
a concern today as when Congress enacted DOTA section 4(f).
Although compliance with the requirements of section 4(f) may result in delays, cancellation of transportation projects, and increases
in costs of projects, the statute should remain intact. Courts should
continue enforcing the restrictive provisions of section 4(f) as a rigorous obligation upon DOT. The difficulties arising in the administration of the statute are attributable to the highway departments
that fail to incorporate preservation and social values into the planning process. The advantages of section 4(f) are significant. Instead
of weakening the scope of section 4(f), Congress and the courts
should continue to uphold the true purpose of the statute.
BARBARA MILLER
207. An amendment could replace the existing exception clause with new language authorizing funds if the Secretary determines that such different design is a feasible and prudent
alternative that would minimize harm to a public park or historic site.