Section 4(f)

Lands Entitled to Section 4(f) Protection. In its September 2002 opinion, the District Court agreed with USDOT that the Stewart Buffer Lands were not protected by Section 4(f). The District Court reasoned that “the mere fact that the owners of the property permitted interim use does not entitle the land to section 4(f) protection.” The Court of Appeals reversed the District Court’s decision on this issue, stating as follows:

The principal question we must answer in this appeal is whether the publicly owned properties surrounding the airport, which for almost thirty years have been made available to the public for use as a park, are “parklands” subject to the protections of Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), notwithstanding the fact they were never permanently designated as such…. Here, as discussed above, for almost thirty years, state and local governments have determined that the Stewart Buffer Lands and the Crestview Lake property were to be principally used as a park. This uninterrupted period of use cannot be characterized as interim…. [I]n holding that a Section 4(f) analysis is required here, we are not establishing a bright-line test with respect to how long a particular tract of property needs to be used as a park before such an analysis is required. We hold only that the uninterrupted and purposeful use by the public of the Stewart Buffer Lands … for almost thirty years makes those lands a public park and recreation area of state and local significance within the meaning of Section 4(f).

In reaching this decision, the Court of Appeals acknowledged other cases in which courts had held that property “initially acquired for the purpose of highway construction” was not protected by Section 4(f). The court found those cases to be distinguishable because the Stewart Park Buffer lands had been acquired “to serve as noise buffer” and had been used continuously as parkland for nearly thirty years. The court also held that, “to the extent that these cases are inconsistent with our opinion in this case, we reject them.”

The Court of Appeals remanded the case to the District Court with instructions to enter judgment for the plaintiffs on this issue and to remand to USDOT to conduct a Section 4(f) analysis. In its February 2005 opinion on remand, following further Section 4(f) proceedings by the agencies, the District Court held that the defendants complied with the directions of the Second Circuit.

Use of Section 4(f) Land – Wetlands Mitigation Site. In its February 2005 opinion on remand, following further Section 4(f) proceedings by the agencies, the District Court upheld USDOT’s finding that a wetland mitigation site on the Stewart Buffer Lands would not “use” the property. The court based this decision in part on USDOT’s finding that the wetlands mitigation site was being developed in an area that was formerly a wetlands, and restoration as a wetland would be consistent with and/or enhance current uses of the site. The court also found that “this facet of the Project would amount to nothing more than a temporary occupancy of the land and, thus, did not fall within the purview of Section 4(f).” The court also considered new information regarding the presence of a potentially threatened plant species and held that this information did not require a Section 4(f) review but rather would be considered in the plans for the wetland mitigation project.

Constructive Use – Induced Development. The District Court also agreed with USDOT that “the possibility of future development does not amount to a constructive use and no 4(f) review is required on this point.”

NEPA

Use of Traffic Data. In its September 2002 opinion, the District Court held that the defendants did not violate NEPA or SEQRA in their use of traffic data. The court rejected the plaintiffs’ argument that the defendants had manipulated data, holding that no evidence showed data manipulation. The court also rejected the plaintiffs’ argument that the defendants ignored certain data, stating that defendants did consider these data and appropriately relied on the advice of their experts and consultants in determining that the analysis of the data was flawed. Finally, the court rejected the plaintiffs’ argument that the defendants applied an arbitrary or erroneous data analysis, stating that the defendants appropriately analyzed the data. The Second Circuit affirmed the District Court’s decision and adopted the District Court’s analysis.

Segmentation. In its September 2002 opinion, the District Court held that the defendants did not violate NEPA or SEQRA by segmenting the project from another project in the area. The court reasoned that although the two projects were initially coordinated, the projects had been divided into separate projects with independent utility. The court noted that “the development of one project can continue without the development of the other project,” and “[t]he mere fact that the two projects are interrelated as part of an overall transportation plan does not mean that they do not individually contribute to alleviation of the traffic problems and are therefore not improperly segmented as separate projects.” The Second Circuit affirmed the District Court’s decision, concluding that “each project would serve its respective purpose, regardless of whether the other is built” and “[t]hat the two projects were discussed together in the past is not dispositive.”

Cumulative Impacts. In its September 2002 opinion, the District Court held that the defendants appropriately considered the cumulative impacts of the project. The court considered three related projects: (1) construction of a hangar; (2) development of a plaza; and (3) two road projects. With respect to the hanger and the plaza projects, the court held that both projects were sufficiently considered in the EIS. With respect to the road projects, the court held that one project had been abandoned and the other project was too remote to have been considered in the EIS. The plaintiffs did not raise this issue on appeal.

Title 23

Interstate Access Approval – 23 U.S.C. 111. In its September 2002 opinion, the District Court held that FHWA did not violate the Federal-Aid Highway Act when it approved the addition of the I-84 interchange. The plaintiffs claimed that FHWA should have considered all three proposed new interchanges together when deciding whether to approve a change in Interstate access. The District Court reasoned that the project for one of the interchanges had been abandoned and the other interchange did not need to be included in the analysis because the project involves the reconstruction of an existing interchange. The District Court also held that FHWA had broad discretion to interpret its own policies on changes in Interstate access. The Second Circuit affirmed the District Court’s decision, adopting District Court’s analysis and adding that the plaintiffs failed to establish that they were within the “zone of interests” protected by the Federal-Aid Highway Act and, therefore, lacked standing to assert this claim.

Litigation Procedure

Stay and Injunction. In its November 2002 opinion, the District Court granted the plaintiffs’ motion for stay and a preliminary injunction pending their appeal to the Second Circuit. The court reasoned that absent a stay and injunctive relief, the defendants would likely proceed with the project and the plaintiffs would be irreparably harmed. The court also noted that any financial injury incurred by the defendants as a result of the stay and injunction would be a result of the defendants’ own hastiness in soliciting bids for the project. The court also noted that the public interest was best served by granting the stay. In its February 2005 opinion on remand, the court vacated the stay and injunction, having determined that the defendants complied with the directions of the Second Circuit. In its June 2005 opinion, the court denied the plaintiffs’ second motion for stay and injunction. The court reasoned that the plaintiffs failed to establish either a substantial likelihood of success on the merits or irreparable harm. The court also noted that the public interest favored moving ahead with the project.

Supersedeas Bond. In its November 2002 opinion, the District Court granted the plaintiffs’ request for a waiver of the supersedeas bond requirement, which requires an appellant to post a bond for the money judgment at stake in the appeal. The court reasoned that the case does not involve a money judgment and, therefore, no bond was necessary.

Jurisdiction to Hear Motion for Reconsideration. In its June 2005 opinion on remand, the District Court held that it had jurisdiction to deny the plaintiffs’ motion for reconsideration. The court reasoned that despite the general rule that the filing of a notice of appeal divests a district court of jurisdiction, “a district court may entertain and deny a [motion for reconsideration] filed during the pendency of any appeal without disturbing the jurisdiction of the Court of Appeals.” The court noted that if it had decided to grant the motion for reconsideration, it would have had to seek permission to do so from the Court of Appeals.