538 F. Supp. 149

STOP H-3 ASSOCIATION, a Hawaii non-profitcorporation; Life of the Land, a

Hawaii non-profit corporation, Plaintiffs,v.

Andrew L. LEWIS, as Secretary of the UnitedStates Department of

Transportation; Ralph Segawa, as HawaiiDivision Engineer, Federal Highways

Administration; and Ryokichi Higashionna, asDirector of the Department of

Transportation of the State of Hawaii,Defendants.

HUI MALAMA AINA O KO'OLAU, Plaintiff,v.

Andrew L. LEWIS, as Secretary of the UnitedStates Department of

Transportation; Ralph Segawa, as HawaiiDivision Engineer, Federal Highways

Administration; and Ryokichi Higashionna, asDirector of the Department of

Transportation of the State of Hawaii,Defendants.

Civ. Nos. 72-3606, 73-3794.

United States District Court, D. Hawai'i.

April 8, 1982.

*154 Boyce R. Brown, Jr., Honolulu, Hawaii, forplaintiffs Stop H-3 Association, et al.

Ronald Albu, Cynthia Thielen, Legal Aid Society ofHawaii, Honolulu, Hawaii, for Hui Malama Aina OKo'Olau.

Elliot Enoki, Asst. U. S. Atty., Wallace W.Weatherwax, U. S. Atty., Honolulu, Hawaii, forAndrew L. Lewis and Ralph Segawa, Federaldefendants.

Keith Y. Tanaka, Warren H. Higa, Sp. Counsel,Tobias C. Tolzmann, Honolulu, Hawaii, forRyokichi Higashionna, Director, DOT, State ofHawaii.

FINDINGS OF FACT AND CONCLUSIONS OFLAW

SAMUEL P. KING, Chief Judge.

I. PROCEDURAL HISTORY

This is the latest chapter in the continuing saga of

(T)H-3, a proposed Interstate Defense Highway whichwould connect the Kaneohe Marine Corps Air Station("KMCAS") to the Pearl Harbor Naval Base andHickam Air Force Base. [FN1]

FN1. For a more complete history of theproject, see this court's decision in Stop H-3Ass'n v. Coleman, 389 F.Supp. 1102(D.Haw.1974). Three alternative projectconfigurations were considered for the NorthHalawa Valley. TH-3 contained six lanes,four for mixed traffic and two for transit.H-3 (the adopted alternative) contained fourlanes for mixed traffic. T-3 would havebeen a two lane facility reserved exclusivelyfor transit use.

Originally, the project was to extend from Halawa toKaneohe, passing through Moanalua Valley, theKoolau mountains, and Haiku Valley. As more fullydiscussed below, the highway segment extendingfrom Halawa to the Koolaus has since been realignedthrough North Halawa Valley.

The project has been the subject of extensivelitigation. Plaintiff Stop H-3 Association filed theoriginal complaint in Civil No. 72-3606 on July 19,1972.[FN2] By injunctions entered by Stipulationand Order dated September 15, 1972 and by Decisionand Order dated October 18, 1972, Stop H-3 Ass'n v.Volpe, 349 F.Supp. 1047 (D.Haw.1972), this courtenjoined construction and design work for the portionof the freeway connecting the Halawa and Halekouinterchanges until defendants could demonstratecompliance with the National EnvironmentalProtection Act of 1969, 42 U.S.C. s 4321 et seq.("NEPA"). Two years of hearings, EnvironmentalImpact Statement (EIS) preparation, and other legaland administrative proceedings followed.

FN2. As this litigation has progressed, theincumbent Secretary of Transportation hasbeen substituted for his predecessor as anamed defendant.

On December 26, 1974, this court held that thedefendants had complied with the applicableenvironmental and transportation statutes andregulations, and lifted the injunctions. Stop H-3Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Haw.1974).A key ruling was that since "local officials" haddeclared that Moanalua Valley was not historicallysignificant, even though the U. S. Secretary of theInterior had determined that it was "likely to beeligible" for inclusion in the National Register ofHistoric Places, the protections of section 4(f) of theDepartment of Transportation Act of 1966, asamended, 49 U.S.C. s 1653(f) (1970) and section 18

of the Federal Aid Highway Act of 1968, 23 U.S.C.s 138 (1970), did not apply. These statutes,hereinafter referred to as "section 4(f)," are essentiallyidentical.[FN3]

FN3. In relevant part, these statutes state:It is hereby declared to be the nationalpolicy that special effort should be made topreserve the natural beauty of thecountryside and public park and recreationlands.... (T)he Secretary shall not approveany program or project which requires theuse of any publicly owned land from apublic park (or) recreation area, ... of State,or local significance ... unless (1) there is nofeasible and prudent alternative to the use ofsuch land, and (2) such programincludes all possible planning to minimizeharm to such park (or) recreation area....23 U.S.C. s 138; 49 U.S.C. s 1653(f).

*155 On appeal, the U. S. Court of Appeals for theNinth Circuit reversed, holding that Moanalua Valleyand Pohaku ka Luahini (petroglyph rock) wereentitled to the protections of section 4(f), andreinstating the injunctions until the Secretary ofTransportation (the "Secretary") could demonstratecompliance therewith. Stop H-3 Ass'n v. Coleman,533 F.2d 434 (9th Cir. 1976) cert. denied, 429 U.S.999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). Thecourt declined to rule on the other three issues whichhad been raised on appeal, instructing the districtcourt to reconsider them and the Secretary's 4(f)determination in the event that the Secretary didconclude that there are no "feasible and prudent"alternatives to the routing of the project throughMoanalua Valley. [FN4] 533 F.2d at 446.

FN4. The court need not consider theseclaims except to the extent that the plaintiffshave reasserted them in their latest AmendedComplaint.

Defendants filed a Section 4(f) Statement forMoanalua Valley with the U. S. Dept. ofTransportation ("DOT") in October 1976. In January1977, the Secretary concluded that since feasible andprudent alternatives existed to the use of MoanaluaValley, he could not approve the project.

After the Secretary's decision, defendants began toprepare a supplemental EIS examining in detail theenvironmental effects of aligning the project throughNorth Halawa Valley.

On August 26, 1977, defendants moved to terminatethis lawsuit, arguing that since the project would nolonger go through Moanalua Valley, the injunctions

reimposed by the Ninth Circuit no longer applied.This court held that any freeway segment connectingthe Halawa and Halekou interchanges was subject tothe injunctions and denied the motion on November17, 1977.

The Draft North Halawa Valley Supplemental EIS(Draft "NHV-SEIS") was first circulated onNovember 11, 1977 and public hearings wereconducted on December 12, 13, 14 and 15, 1977.

On May 5, 1978, Plaintiff Stop H-3 Associationfiled its 68 page, twelve count, SupplementedCompilation of Complaint for Injunctive andDeclaratory Relief, as Amended and Supplemented.The ninth cause of action alleged non- compliancewith section 4(f) with respect to the Ho'omaluhiaRecreation Project (later designated Ho'omaluhiaPark). Defendants moved to dismiss this cause ofaction, or in the alternative, for partial summaryjudgment, on July 11, 1978. On November 21,1978, this court ruled that constructive use of therecreation project triggered the protections of section4(f), and denied the motion. Defendantssubsequently prepared and circulated a 4(f) statementfor Ho'omaluhia Park.

The final NHV-SEIS and Ho'omaluhia Park 4(f)Statement were processed together, and approved bythe Federal Highway Administration ("FHWA") onDecember 10, 1980. Location and design approvalfor the project was given on February 5, 1981.

On April 10, 1981, the parties stipulated to thefiling of plaintiffs' present 142 page, 48 count,Amended and Supplemented Complaint forDeclaratory and Injunctive Relief. Defendantsanswered this complaint on April 20, 1981. On June6, 1981, defendants again moved to terminate theinjunctions. This motion was denied on July 7,1981.

On September 1, 1981, the parties filed aStipulation and Order Regarding a Plan and Schedulefor Identifying Issues for Dismissal, In LimineRuling, Summary Judgment or Trial on the Merits("Stipulation"), pursuant to which the plaintiffsvoluntarily *156 dismissed their sixth, seventh,ninth and twelfth causes of action.[FN5]

FN5. These causes of action were:6. NEPA-Failure to comply with NEPArequirement of consultation before EISprepared in final form.7. NEPA-Failure to comply with DOT Regsre : publ ic availability o f E I S 30 daysbefore hearing.9. NEPA-Failure to comply with CEQ Regs

re: list of preparers in EIS.12. NEPA-Failure to comply with 23C.F.R. s 771.14-who participates and whosigns off.

On September 9, 1981, plaintiffs moved for leave toamend their eighth cause of action and to add aforty-ninth cause of action. The court granted theirmotion as to the eighth cause of action on September16, 1981 and as to the forty-ninth cause of action onOctober 14, 1981. During trial, the court permittedplaintiffs to amend their twenty-seventh andforty-ninth causes of action to conform to theevidence.

Prior to trial, the court granted defendants'unopposed motion for summary judgment as to thefourth, fifth, nineteenth and twenty-first causes ofaction. The court also granted defendants' motionsfor summary judgment as to the eighth (as amended)and thirteenth causes of action.[FN6]

FN6. The fourth, fifth, nineteenth andtwenty-first causes of action involved thedefendants' alleged failure to consult withthe Army Corps of Engineers and the City& County of Honolulu Board of WaterSupply. The eighth cause of action allegedthat the decision to approve the EIS wasmade before the end of the comment period.The thirteenth cause of action assertedthat defendants discouraged comments andfailed to distribute the EIS for comments.

On October 23, 1981, the court granted defendants'motion to dismiss the twenty-second andforty-seventh causes of action.[FN7]

FN7. These causes of action alleged that thedecision to approve the EIS andHo'omaluhia 4(f) statement were based uponpol i t ical considerat ions. Plaintiffsintroduced no evidence as to these matters attrial.

On September 30, 1981, the court granted plaintiffHui Malama Aina O Ko'olau's ("Hui Malama's")Motion for Summary Judgment as to the twenty-fifthcause of action, and ordered defendants to initiateformal biological consultation with the U.S. Fishand Wildlife Service ("USFWS") regarding theAchatinella (Hawaiian Tree Snail), in accordance withsection 7(a)(2) of the Endangered Species Act of1973, 16 U.S.C. s 1536(a)(2), and its associatedregulations, 50 C.F.R. s 402.04 (1980). Defendantscomplied with this order on October 2, 1981. OnOctober 29, 1981, the USFWS issued a formalbiological opinion stating that constructing H-3

through North Halawa Valley would not endanger theAchatinella.

II. CURRENT POSTURE

Trial on Defendants' Motion to Terminate theInjunctions and Plaintiffs' Complaint for Injunctiveand Declaratory Relief took place from October 14 toOctober 29, 1981. During closing arguments,Defendants moved for reconsideration of this court'sdetermination that section 4(f) applied toHo'omaluhia Park.

On November 4, 1981, Plaintiffs moved forsummary judgment as to the thirty- fourth cause ofaction. Since the parties introduced evidence withrespect to this cause of action and argued the issue attrial, summary judgment is inappropriate.Accordingly, the issue will be considered togetherwith the other causes of action.

This court must now consider the adequacy andvalidity of: (1) the 1972 Moanalua Valley EIS ("1972EIS") and 1973 Supplemental EIS ("1973 Preface")as of their approval date; (2) the NHV-SEIS; (3) thePali Golf Course 4(f) determination; and (4) theHo'omaluhia Park 4(f) determination.[FN8]

FN8. The 1972 EIS, 1973 Preface andNHV-SEIS together constitute the "EIS" forthe North Halawa Valley alignment of theproject.

III. ISSUES

The remaining thirty-eight causes of action fall intoten broad categories, as follows (with their associatedissues): [FN9]

FN9. Briefly summarized, the remainingcauses of action are:1. NEPA-Reliance on Outmoded/StaleStudies.2. NEPA-Failure to Supplement EIS toReflect Change from 6 lanes to 4 lanes &Likelike Busway.3. NEPA-Failure to circulate EIS to andobtain and defer to Board of Water Supplycomments.10. NEPA-Failure to comply with CEQRegs. and NEPA wrongful delegation ofEIS preparation.11. NEPA-Failure to comply with 23C.F.R. s 771.7. Non-disclosure of conflictof interest.14. NEPA-Failure to comply with 23C.F.R. s 771.15 and 40 C.F.R. Parts1500-1508 re: need for Supplemental EIS

addressing change from 6 to 4 lanes,Likelike busway and passenger transferfacilities.15. NEPA-Failure to comply with CEQRegs. Need for highway based on falseassumption that highway needed to meetgrowth.16. NEPA-Failure to comply with CEQRegs & NEPA-EIS contains inadequateexamination of secondary impacts.17. NEPA-Failure to comply with CEQRegs & NEPA-OMEGA Station.18. NEPA-Failure to comply with CEQRegs & NEPA-EIS is a justification, not anexamination. 20. NEPA-Failure tocomply with CEQ Regs. Failure torecirculate Draft after acquiring significantnew information.23. NEPA-Decision approving project wasarbitrary and capricious.24. OMB Circular A-95.26. Endangered Species Act-Oahu Creeper.27. Endangered Species Act-Cyrtandra.28. Endangered Species-I'iwi (Part 195D,Haw.Rev.Stat.)29. Public Hearings-Selection of NorthHalawa Valley before hearings.30. Public Hearings-Combined Hearingswrong.31. Public Hearings-Design Hearing heldbefore corridor approved.32. Public Hearings & Approval-Designapproval given without proper designhearing.33. Study Report-Required reports notsubmitted. No report on social disruption.34. Public Hearings & Approval-Evidenceof NEPA and 4(f) compliance not submittedwith approval request.35. General Plan-H-3 in conflict withGeneral Plan. Conflict not reconciled.36. 4(f)-Ho'omaluhia-4(f) statement notcirculated properly.37. 4(f)-Ho'omaluhia-4(f) statement approvalb a s e d o n insufficient information. 3 8 .4(f)-Ho'omaluhia-Failure to includenon-highway alternatives.39. 4(f)-Ho'omaluhia-Failure to coordinate4(f) statement with Army Corps ofEngineers.40. 4(f)-Ho'omaluhia-Failure to discloseconflict of interest.41. 4(f)-Ho'omaluhia-Failure to conduct allpossible planning to minimize harm to thepark before 4(f) approval.42. 4(f)-Ho'omaluhia-Inadequate contents of4(f) statement.43. 4(f)-Ho'omaluhia-Failure to demonstrate

that no feasible and prudent alternativeexists.44. 4(f)-Ho'omaluhia-Wrongful rejection offeasible and prudent alternative-MaukaRealignment.45. 4(f)-Ho'omaluhia-Wrongful rejection offeasible and prudent alternative-MakaiRealignment.46. 4(f)-Ho'omaluhia-Wrongful rejection offeasible and prudent alternative-No Build.48. 4(f)-Pali Golf Course-4(f) statementinadequate; wrong conclusion of no feasibleand prudent alternative.49. CZMA-Failure to comply withcoordination provisions.

*157 A. NHV-SEIS Preparation.

1. Whether defendants improperly delegatedpreparation of the NHV-SEIS to private consultants(Counts Ten and Eleven).

2. Whether defendants failed to circulate theNHV-SEIS to and obtain and defer to commentsfrom the Board of Water Supply of the City andCounty of Honolulu (Count Three).

B. EIS Adequacy.

Whether the EIS is inadequate because it:

1. Relies on outmoded and stale studies (CountOne).

2. Fails to address the inconsistency of the projectwith the Oahu General Plan (Count Thirty-five).

3. Fails to adequately deal with socio-economicimpacts of the project (Counts Sixteen andThirty-three);

4. Is based upon inaccurate population assumptions.(Count Fifteen).

5. Fails to disclose the impact of the U.S. CoastGuard OMEGA transmitting station uponconstruction workers and freeway users (CountSeventeen);

* 1 5 8 6. Is a justification for rather than anexamination of the project (Count Eighteen).

C. Further Supplemental EIS (Counts Two,Fourteen and Twenty).

Whether Defendants are required to prepare anadditional Supplemental EIS to reflect:

1. Uncirculated studies concerning H-3'senvironmental aspects;

2. The terms upon which the Secretary's approval ofthe NHV-SEIS were conditioned; or

3. The applicability of section 4(f) to Ho'omaluhiaPark.

D. Project Approval.

Whether the Secretary's decision to pursue a "build"alternative was arbitrary and capricious (CountTwenty-three).

E. Location and Design Approval.

Whether location and design approval for the NorthHalawa Valley alignment of the project was invalidbecause:

1. The defendants were committed to the NorthHalawa Valley corridor prior to the public hearings(Count Twenty-nine);

2. Location and design hearings were improperlyheld (Counts Thirty, Thirty- one and Thirty-two);

3. The design/location study reports for the projectwere inadequate (Count Thirty-three).

4. The design/location study reports were untimelyfiled (Count Thirty-four).

F. OMB Circular A-95 Compliance.

Whether defendants complied with the coordinationprocess prescribed by OMB Circular A-95 (CountTwenty-four).

G. Endangered Species.

1. Whether defendants violated the EndangeredSpecies Act with respect to the Oahu Creeper (CountTwenty-six);

2. Whether defendants violated the EndangeredSpecies Act with respect to the Cyrtandra (CountTwenty-seven, as amended).

3. Whether constructing H-3 through North HalawaValley would violate the Hawaii Endangered SpeciesAct, Chapter 195D, Haw.Rev.Stat., by "taking" theI'iwi (Count Twenty-eight).

H. Coastal Zone Management.

Whether defendants have complied with the Coastal

Zone Management Act of 1972, 16 U.S.C. s 1451 etseq. (the "CZMA"), and its implementingregulations, codified at 15 C.F.R. part 930 (1981)(Count Forty-nine, as amended).

I. Section 4(f)-Ho'omaluhia Park.

1. Whether the 4(f) statutes apply to Ho'omaluhiaPark (Defendants' Motion for Reconsideration).

2. Whether defendants improperly delegatedpreparation of the Ho'omaluhia Park 4(f) Statement(Count Forty).

3. Whether defendants failed to coordinatepreparation of the 4(f) statement with the agencyhaving jurisdiction over the Park, as required by 23C.F.R. s 771.19(g)(5) (1980) (Count Thirty-nine).

4. Whether the 4(f) Statement was properlycirculated (Count Thirty-six).

5. Whether the 4(f) Statement is inadequate becauseit fails to:

a. Contain the information required by 23 C.F.R. s771.19(i) (1980) (Count Forty-two);

b. Discuss non-highway alternatives (CountThirty-eight).

6. Whether the Secretary's approval of the 4(f)Statement was based upon adequate informationregarding non-highway alternatives (CountThirty-seven).

7. Whether the Secretary properly concluded that nofeasible and prudent alternatives exist to the use ofthe park (Counts Forty-three, Forty-four, Forty-fiveand Forty-six); and

*159 8. Whether the 4(f) statement is deficientbecause it fails to demonstrate that all possibleplanning to minimize harm to the park has been done(Count Forty-one).

J. Section 4(f)-Pali Golf Course.

Whether the Secretary's section 4(f) determination forthe Pali Golf Course was proper (Count Forty-eight).

IV. STANDARD OF REVIEW

This court's role in evaluating compliance with therequirements of NEPA is narrowly limited. Asstated in Save Lake Washington v. Frank, 641 F.2d1330 (9th Cir. 1981),

Judicial review of an EIS covers only the issue of

whether NEPA's procedural requirements have beenmet, and whether the EIS performs its primary taskof presenting the decision-maker with anenvironmentally-informed choice. The correctstandard is provided in the AdministrativeProcedure Act, 5 U.S.C. s 706(2)(D), which directscourts to set aside an agency action if taken"without observance of procedure required bylaw..." (citations omitted)

Id. at 1334.

(1) A court is not to substitute its judgment for thatof the agency as to the environmental consequencesof its action. Rather, the court must ensure that theagency has taken a "hard look" at environmentalfactors. Kleppe v. Sierra Club, 427 U.S. 390, 410n.21, 96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576(1976); Columbia Basin Land Protection Ass'n v.Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981).

If the agency has followed the proper procedures, itsaction will only be set aside if the court finds theaction to be "arbitrary and capricious," given theknown environmental consequences. See ColumbiaBasin Land Protection Ass'n, 643 F.2d at 596; WarmSprings Dam Task Force v. Gribble, 565 F.2d 549,552 (9th Cir. 1977) (per curiam) ("Warm SpringsDam I ").

The court should not be used as a quasi-legislativeor quasi-executive forum by those who aredissatisfied with policy decisions made by governingbodies. [FN10] The environmental laws were neithermeant to be used as a "crutch" for chronicfault-finding, nor as a means of delaying theimplementation of properly approved projects.

FN10. One is reminded of the threefundamental rules of planning: 1. Let'smake a park out of the other fellow's lot.2. Let's tighten up the buildingrestrictions-after I've finished my building.3. Let's raise the gangplank-now that I'velanded.

(2) Moreover, an EIS will be found to be adequate ifit was prepared in good faith and contains areasonably thorough discussion of the significantaspects of the probable environmental consequences.Columbia Basin Land Protection Ass'n, 643 F.2d at592; see Lathan v. Brinegar, 506 F.2d 677, 693 (9thCir. 1974) (courts are not permitted to "flyspeck"environmental impact statements).

(3) The extent of judicial scrutiny of the Secretary's4(f) determination is prescribed by Citizens toPreserve Overton Park v. Volpe, 401 U.S. 402, 91S.Ct. 814, 28 L.Ed.2d 136 (1970). In order for the

4(f) determination to have been proper, the Secretarymust have (1) properly construed his authority toapprove the use of parkland as limited to situationswhere there are no feasible alternative routes or wherefeasible alternative routes involve uniquely difficultproblems; (2) reasonably believed that such asituation exists in the case at hand; (3) based hisdecision upon aconsideration of the relevant factors;and (4) not made a clear error of judgment. Id. at416, 91 S.Ct. at 823. Although this inquiry into thefacts is to be searching and careful, the ultimatestandard of review is a narrow one. The court is notempowered to substitute its judgment for that of theagency. Id.

(4) Finally, the burden of proof is on the plaintiffsto establish that the EIS is inadequate or that theSecretary acted improperly in approving the use ofparklands. Monroe County Conservation Council v.Adams, *160 566 F.2d 419, 422 (2d Cir. 1977),cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56L.Ed.2d 388 (1977).

V. DISCUSSION

In order to evaluate Defendants' compliance withNEPA, the Court must first determine which versionof the Council on Environmental Quality regulations(CEQ Regs.) is applicable.[FN11] 40 C.F.R. s1506.12 (1980) states in relevant part:

FN11. The 1973 CEQ Guidelines weresupplanted by the CEQ Regulations adoptedNovember 29, 1978, 43 Fed.Reg. 55990;codified at 40 C.F.R. parts 1500-1508.

(a) These regulations shall apply to the fullestextent practicable to on- going activities andenvironmental documents begun before theeffective date. These regulations do not apply to anenvironmental impact statement or supplement ifthe draft statement was filed before the effectivedate of these regulations. No completedenvironmental documents need be redone byreasons of these regulations. Until theseregulations are applicable, the Council's guidelinespublished in the Federal Register of August 1,1973, shall continue to be applicable. In caseswhere these regulations are applicable theguidelines are superseded. However, nothing shallprevent an agency from proceeding under theseregulations at an earlier time. (emphasis added)

Since the effective date of the regulations isNovember 30, 1979, and the draft NHV-SEIS wasfiled in 1977, it appears that the environmentaldocuments prepared to date should be evaluated inaccordance with the 1973 CEQ guidelines.[FN12]However, any further documentation ordered by this

court should be prepared in accordance with the 1979Regulations.

FN12. 40 C.F.R. s 1506.12 (1978) states inrelevant part:The effective date of these regulations isJuly 30, 1979, except that for agencies thatadminister programs that qualify under sec.102(2)(D) of the Act ... an additional fourmonths shall be allowed for the State orlocal agencies to adopt their implementingprocedures.The FHWA was one of the agencies allowedthe additional four months.

A. NHV-SEIS Preparation.

1. Delegation of EIS Preparation.[FN13]

FN13. This cause of action was submittedfor the court to determine the followingissues:(a) Is 23 C.F.R. s 771.7 (1980) invalid asbeing contrary to 42 U.S.C. s 4332(2)(C)(1975 amendment to NEPA) to the extentthat the regulation permits delegation of EISpreparation to other than a State agency orofficial?(b) If 23 C.F.R. s 771.7 is valid and if,therefore, it is permissible for an EIS to beprepared by a consultant in the mannerdescribed in the text, is it permissible forthe H-3 EIS to have been prepared by aconsultant which has a financial interest inseeing that H-3 is built?(c) If it is permissible for the H-3 EIS to beprepared by a financially interestedconsultant in the manner described, is itpermissible to not disclose in the EIS eitherthe manner of EIS preparation or the factthat the consultant is financially interested?

(5) 23 C.F.R. s 771.7 (1980) permits consultants tobe used in the preparation of environmental impactstatements.[FN14] Plaintiffs allege that to the extentthis regulation permits delegation of EIS preparationto other than a State agency or official, it is contraryto 42 U.S.C. s 4332(2)(C) (1975 amendment toNEPA) and invalid.

FN14. 23 C.F.R. s 771.7 (1974) states inrelevant part:Use of consultants.(a) Consultants may be utilized in preparingall types of environmental studies andreports. The responsibility for formulatingall conclusions and determinations shallremain with the HA and FHWA.

(b) Work by consultants on environmentalstudies and reports leading to a projectdecision should be carefully reviewed toinsure that complete and objectiveconsideration is given to all relevant projectimpacts and alternatives. This isparticularly important when the sameconsultants may be involved in subsequentphases of the highway section development.

Plaintiffs' arguments for invalidating the regulationare unpersuasive. It appears from the legislativehistory of the 1975 amendment to NEPA (PublicLaw 94-83) that the section permitting delegation ofEIS preparation to State agencies was added *161 toresolve the split in case law which had developed.The issue of consultants was not addressed. It doesnot appear that Congress intended to prohibit thedelegation of EIS preparation to private consultants.I conclude that the regulation is neither contrary toNEPA nor invalid. See Morton v. Mancari, 417U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d290 (1973).

This court has previously decided the question ofwhether preparation of an EIS may be delegated to afinancially interested consultant.

NEPA does not prevent the employment of aprivate contractor who has a financial interest in theproject to draft an EIS. NEPA does require thatthe final EIS be sufficiently reviewed andconsidered by the "responsible official" to insurethat it was a part of the decision making process.

Life of the Land v. Brinegar, 363 F.Supp. 1171,1175 (D.Haw.1972), aff'd 485 F.2d 460 (9th Cir.1973), cert. denied 416 U.S. 961, 94 S.Ct. 1979, 40L.Ed.2d 312 (1974).

(6, 7) Testimony at trial established that theconsultants, Parsons Brinkerhoff Hirota Associates("Parsons") prepared the first draft of the NHV- SEISand submitted it to the State and Federal Agenciesfor comments and revisions. This process wasrepeated until the draft was in final form. TheFHWA was involved with the preparation of the EISon an almost daily basis. I find that the FHWA wassufficiently involved in the preparation of the EIS tocomply with the requirements of the regulations. SeeEssex County Preservation Ass'n v. Campbell, 536F.2d 956 (1st Cir. 1976). Finally, I find that underthe circumstances, the consultants' financial interestin the outcome of the project need not be disclosed inthe EIS. It is sufficient that this interest was knownto the agencies responsible for the EIS.

On October 30, 1981, the FHWA adopted acompletely revised version of 23 C.F.R. part 771.The new regulations limit the role of private

institutions or firms to providing environmentalstudies and commenting on environmentaldocuments.[FN15] However, the new regulationsalso provide that:

FN15. 23 C.F.R. s 771.109(c)(4) (1981)states in relevant part:(4) Other. In all other cases the role of theapplicant is limited to providingenvironmental studies and commenting onenvironmental documents. All privateinstitutions or firms are limited to this role.

FEIS's accepted by the administration prior to July30, 1981, whose drafts were filed with theEnvironmental Protection Agency (EPA) prior toJuly 30, 1979 (for FHWA November 30, 1979),may be developed in accordance with theregulations in effect at the time the draft documentwas filed.

23 C.F.R. s 771.109(a)(4) (1981).

Since the original draft EIS (Moanalua) was filedwith the EPA in 1972, and the Draft NHV-SEIS wasfiled in 1977, defendants properly applied the olderregulations in preparing the NHV-SEIS andHo'omaluhia Park 4(f) Statement. However, the rolethat consultants may play in the preparation of anynew documentation ordered by this Court will beconstrained by the requirements of the newregulations.

2. Board of Water Supply.[FN16]

FN16. The parties submitted this issue onstipulated facts for the Court to decide thefollowing questions:(a) Is the Board of Water Supply a localagency which is authorized "to develop andenforce environmental standards" within themeaning of 42 U.S.C. s 4332(2)(A) and(C)?(b) Does 42 U.S.C. s 4332(2)(A) and (C)require the State D.O.T. to defer to theexpertise of the Board of Water Supply oronly require the State D.O.T. to obtaincomments from the Board of Water Supply,and if the Defendants are required to defer tothe Board of Water Supply, did they do so?(c) If so, is it permissible for defendants toobtain the comments and view of the Boardof Water Supply and not include them in theEIS?(d) If the comments are required to beincluded in the North Halawa Valley EIS, iswhat was included in the NHV-SEISsufficient to satisfy the statutoryrequirements?

(e) Does 42 U.S.C. s 4332(2)(A) and (C)require that the Final NHV-EIS withcomments be recirculated to the public?

(8, 9) NEPA requires that copies of the EIS and thecomments and views of the *162 appropriate Federal,State, and local agencies, which are authorized todevelop and enforce environmental standards, bemade available to the public and accompany aproposal through the agency review processes. 42U.S.C. s 4332(2) (C).

Plaintiffs contend that this statute required theDefendants to (1) obtain and defer to comments fromthe City and County of Honolulu Board of WaterSupply (the "Board of Water Supply"); and (2)recirculate the Final NHV-SEIS with comments tothe public.

Since NEPA only requires consultation with Federalagencies having expertise with respect to anyenvironmental impact involved, Defendants were notrequired to defer to the comments of the Board ofWater Supply, a local agency. Nevertheless, it is clearfrom the testimony and other evidence adduced attrial that the Defendants did circulate the NHV-SEISto and obtain comments from the Board of WaterSupply, and that the concerns of the Board of WaterSupply were resolved.[FN17] Finally, NEPA doesnot require that a Final EIS, with comments, must berecirculated to the public.

FN17. Any remaining doubts as to theproject's potential groundwater impacts arealleviated by the following condition to theSecretary's concurrence in the EIS:That the final design be coordinated with theHonolulu Board of Water Supply to assurethat groundwater impacts are avoided andthat coordination with the Board willcontinue throughout construction of theproject. If any conditions areencountered during construction whichwould significantly threaten the HonoluluWater Supply, construction will stop until asolution acceptable to the Board of WaterSupply is agreed upon.OST Concurrence Memorandum at 2.

B. EIS Adequacy.

1. Outmoded or Stale Studies.

(10) Plaintiffs allege that the EIS, as a whole, isinadequate because it relies upon studies conductedbetween nine and fourteen years ago.

It is a sad fact of environmental litigation that the

EIS approval process can stretch over many years.To hold that studies become invalid merely becauseof the passage of time would expand this timehorizon to infinity. While it is true thatcircumstances may change over time, such changescan best be handled through the supplementationprocess prescribed by section 1502.9 of the CEQRegs., 40 C.F.R. s 1502.9 (1980). Except forportions of the 1973 EDAW socio-economic impactstudy, discussed below, plaintiffs have failed todemonstrate that any of the studies contained in the1972 EIS or 1973 Preface are no longer valid.

2. Consistency with the 1977 Oahu General Plan.

(11) The regulations of both the DOT and CEQrequire that an EIS discuss the relationship betweenthe proposed action and the land use plans of theaffected community.[FN18] Where conflicts orinconsistencies exist, the EIS "should describe theextent of reconciliation and the reason for proceedingnotwithstanding the absence of full reconciliation."23 C.F.R. s 771.18(h) (1978); 40 C.F.R. s1500.8(a)(2) (1978).

FN18. 40 C.F.R. s 1500.8(a)(2) (1978)states in relevant part:(a) The following points are to be covered:(2) The relationship of the proposed actionto land use plans, policies, and controls forthe affected area. This requires a discussionof how the proposed action may conform orconflict with the objectives and specificterms of approved or proposed Federal,State, and local land use plans, policies andcontrols, if any, for the area affected ....Where a conflict or inconsistency exists, thestatement should describe the extent towhich the agency has reconciled its proposedaction with the plan, policy or control, andthe reasons why the agency has decided toproceed notwithstanding the absence of fullreconciliation.23 C.F.R. s 771.18(h) (1980) is similarlyworded.

On January 18, 1977, the City and County ofHonolulu adopted a revised Oahu General Plan,which became law on February 2, *163 1977.[FN19]Plaintiffs allege that H-3 is inconsistent with thepopulation and transportation objectives and policiesof this plan, and that these inconsistencies are notresolved in the EIS.

FN19. The 1977 General Plan discusses theimplementation process and the relationshipbetween the General Plan, DevelopmentPlans and zoning ordinances as follows:

By itself, the General Plan cannot bringabout all of the changes and improvementswhich the City and County governmentconsiders to be desirable and attainable. Itis, by design, a very general document; andone of its purposes is to establish a coherentset of broad guidelines which can be used indrawing up an islandwide set ofDevelopment Plans.Development Plans, according to theRevised Charter of 1973, are relativelydetailed guidelines for the physicaldevelopment of the Island. They are anintermediate means of implementing theobjectives and policies of the General Planin the various parts of the Island and, assuch, are meant to incorporate the provisionsfor land-use planning which were central tothe old General Plan. They are also meantto indicate the sequence in whichdevelopment will occur.Development Plans will contain 'statementsof standards and principles' with respect toland uses for residential, recreational,agricultural, commercial, industrial, andinstitutional purposes and with respect toopen spaces. In addition, they willcontain 'statements of urban-designprinciples and controls.' They should not,however, be confused with the existingDevelopment Plans, which are basicallyplans for the improvement of streets andpublic utilities. Nor should they beconfused with zoning ordinances. Zoningordinances will continue to regulate the useof and within clearly demarcated zones andset detailed standards for the height, bulk,size, and location of buildings.The new Development Plans will beprepared by the City and Countygovernment with the participation of thepeople of Oahu. Although their focus willbe somewhat different than that for the newGeneral Plan- individual areas rather than thewhole of the Island of Oahu-and althoughtheir range will be shorter than that of theGeneral Plan, they must nonetheless be fullyconsistent with the objectives and policiesof the General Plan.General Plan at 14.The Development Plan for the area inquestion has not yet been adopted.The Revised Charter of the City and Countyof Honolulu requires that the General Planbe reviewed every five years. This reviewprocess is presently taking place.

It should initially be noted that the H-3 project has

been under consideration by Federal, state and localofficials for many years. Copies of the NHV-SEISwere circulated to the Oahu Metropolitan PlanningOrganization (the State/City Cooperating agency), theCity and County of Honolulu Department of GeneralPlanning and Department of Land Utilization("DLU") and several other local agencies, none ofwhich have raised any legal challenges to the project.While it is true that the DLU did express a number ofconcerns as to the consistency of the project with theGeneral Plan, these comments were responded to bythe defendants. These comments and responses arereprinted in Vol. VII of the NHV- SEIS at pp.192-197.

While not conclusive, the failure of the responsibleofficials to raise any further objections to the projectraises an inference that the defendants couldreasonably have believed that the project wasconsistent with the General Plan.

The relationship between H-3 and the General PlanObjectives and Policies is described in Vol. I of theNHV-SEIS at pp. 100-110. It is important to recallthat the relevant standard of review is whether thisdiscussion reasonably addresses the pertinent issues.I only decide whether the agency could reasonablyreach the conclusions that it did, not whether thoseconclusions were in fact correct.

Policies three, seven, nine and ten of TransportationObjective "A" encourage the development and use ofpublic transportation on the island of Oahu.[FN20]See 1977 *164 Oahu General Plan at 39-40(hereinafter cited as "General Plan").

FN20. These policies are:3. Provide transportation services for peopleliving outside the Pearl City-Hawaii KaiCorridor primarily through a system ofexpress- and feeder- buses and limited tomoderate highway improvements.7. Promote the use of public transportationas a means of moving people quickly andefficiently, of conserving energy, andguiding urban development.9. Promote programs to reduce dependenceon the use of automobiles.10. Discourage the inefficient use of theprivate automobile, especially in congestedcorridors and during peak-hours.

Although the NHV-SEIS only directly discusses thepublic transportation policies in relation to the(T)H-3 alternative, see NHV-SEIS vol. I at 107-109,I find that this issue is adequately addressed in theNHV-SEIS. It is true that this discussion wouldhave been less subject to challenge had the (T)H-3

alternative been approved, but I find that defendantscould reasonably have believed that H-3 is consistentwith the Transportation Policies of the General Plan.

Population Objective "C" of the General Planestablishes the desired Oahu population distributionfor the year 2000.[FN21] The General Plan envisionslimited growth on the Windward side of Oahu. IfPolicy 4 of Population Objective "C" is met,Windward side population will increase in absoluteterms, but decrease as a percentage of the total Oahupopulation from 16.4% in 1975 to 14.4%, plus orminus 0.7%, in 2000. See Oahu General Plan at 21.

FN21. The percentage of total populationallocated to the various areas is a mean oraverage figure rather than a rigidrequirement. A year 2000 percentage whichfalls within 5% of the indicated mean for anarea would be consistent with the Plan'spopulation-distribution policy. GeneralPlan at 21.

The population objectives and policies of theGeneral Plan are thoroughly laid out and discussed atpp. 100-104 of the NHV-SEIS.

Defendants assert that H-3 is not inconsistent withthese objectives and policies because the highwaywill not have any long-term growth impacts.

Land use and development on the windward side ofOahu is currently controlled by the State Land UseDistrict Boundaries and the Oahu General Plan,Development Plans, and zoning ordinances. Giventhese plans and their continued implementation,the H-3 facility will not, in and of itself, inducepopulation growth and further development ofwindward Oahu. The Preface to the FinalEnvironmental Impact Statement (pp. 5-1 to 5-12)does however indicate that, initially, constructionof the H-3 facility could accelerate the rate ofdevelopment on windward Oahu. Thereafterpopulation growth would level off. In any case,land use densities on windward Oahu can onlyreach the maximum allowable under the GeneralPlan and Comprehensive Zoning Code with orwithout H-3. With H-3, these densities may ormay not be reached earlier. (emphasis added)

NHV-SEIS Vol. I at 127.

The court's role is not that of a "super-planner" todetermine the correctness of this assertion. It issufficient to pass judicial review that the EISconsidered the issue and came to a reasonedconclusion. Challenges to assumptions andconclusions are most appropriately handled throughthe EIS commenting process.[FN22]

FN22. It should be noted that defendantsapparently assume that the zoningordinances will be amended to conform withthe General Plan. Present zoning on theWindward side will accommodate apopulation of approximately 157,000, farmore than the year 2000 target population of125,700 to 138,500. However, since theDevelopment Plans must be consistent withthe objectives and policies of the GeneralPlan, it is reasonable to assume that theCity and County will act advisedly ina m e n d i n g t h e appropriate z o n i n gordinances.

3. Socio-Economic Impacts.

(12) NEPA, 40 C.F.R. s 1500.8(a)(3)(ii) (1978) and23 C.F.R. s 771.18(i)(1) (1980), require that an EISassess and discuss the secondary (socio-economic)effects of a project.[FN23] To date, the onlysocio-economic *165 impact study commissioned bythe Defendants was the 1973 EDAW study reprintedat pages 211-281 of Appendix "B" of the 1973Preface.[FN24] In 1974, I held that this study, inconjunction with the other discussions of socio-economic effects contained in the 1972 EIS and 1973Preface, constituted adequate consideration ofsecondary impacts. Stop H-3 Ass'n v. Brinegar, 389F.Supp. at 1111. Plaintiffs have not persuaded methat this decision was incorrect.

FN23. 40 C.F.R. s 1500.8(a)(3)(ii) states inrelevant part:Secondary or indirect, as well as primary ordirect, consequences for the environmentshould be included in the analysis. .... Forexample, the effects of the proposed actionon population and growth may be amongthe more significant secondary effects. Suchpopulation and growth impacts should beestimated if expected to be significant ...and an assessment made of the effect of anypossible change in population patterns orgrowth upon the resource base, includingland use, water, and public services, of thearea in question.

FN24. This study, entitled "H-3Socio-Economic Study-The Effects ofChange on a Windward Oahu RuralCommunity", was prepared by theconsulting firm of Eckbo, Dean, Austin &Williams on December 14, 1973.

A socio-economic assessment does not have to takethe form of a formal "study" and need not be allencompassing. The adequacy of the assessment is

governed by a "rule of reason". Conclusions andrecommendations may be based upon extrapolationsfrom empirical data, as well as upon the data itself.Although the 1973 EDAW study focused upon thearea expected to feel the greatest effects from theimplementation of the project, it also consideredimpacts outside of the study area.

While it is apparent that the area of potentialimpacts may well range wider than the study areaas defined above, it also appears that the primarysocio- economic concerns rest mainly in the studyarea. Potential Route H-3 impacts in the balanceof the Koolaupoko (windward) district would beless severe, in terms of impacts of degree ratherthan kinds, and could be characterized principallyas "more of the same". Potential Route H-3impacts on the Koolauloa District, further north ofthe study area, would be of the same kind andnature as impacts within the study area but far lesssevere due to the mitigating effects of distance.

1973 Preface, exhibit "B" at 229.

Thus, although the study only dealt directly with arelatively small portion of the affected region, thediscussion of socio-economic impacts was sufficientto meet the requirements of law.

As noted above in part V.B.2., the 1977 OahuGeneral Plan significantly altered the plannedpopulation distribution for the island of Oahu. TheLeeward side of the island will be developed into asecondary urban center, while growth on theWindward side will be limited. Plaintiffs contendthat the 1973 EDAW study must be supplemented toreflect this change.

It is obvious that the portion of the EDAW studywhich dealt with the effects of the 1969 General Planis no longer valid. A more difficult question iswhether the adoption of the new general planinvalidates the remainder of the study. I find that itdoes not. Most of the study addresses growthimpacts in general terms. Further, the NHV-SEISextensively discusses the project's secondary impactsin light of the planning changes which have occurred.See, e.g., NHV-SEIS Vol. I at 118-129. Finally,plaintiffs have failed to demonstrate that conditionshave changed so much that population growth willhave significantly different effects than thosedescribed in the EDAW study.

City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975), heavily relied upon by plaintiffs in support oftheir contention that defendants cannot attributegrowth impacts to the General Plan rather than thehighway, is readily distinguishable from the case athand.

In City of Davis, the City itself challenged theconstruction of a freeway interchange designed tostimulate and service future industrial development inthe neighboring Kidwell area. Davis and the Kidwellarea were in different counties. Expert opinions andstudies that Davis introduced during the litigationshowed that such development could place severedemands upon and contaminate Davis' water supply,disrupt the City's policy of controlled growth, andincrease demand for city services without providing acorresponding increase in the city's tax base.Defendants attempted to justify their failure toprepare an EIS on the basis of a three-page "NegativeDeclaration of Environmental *166 Impact," whichconcluded that the project would have no significantadverse environmental effects. The NegativeDeclaration did not consider any of the project'spossible impacts upon Davis. Similarly, the DesignStudy Report submitted to the FHWA dismissedsecondary effects as "speculative" and "uncertain".The court found that although the nature and extentof development which the project will induce isuncertain, it was unreasonable for the defendants toconclude, without further study, that theenvironmental impact of the proposed interchangewould be insignificant. See id. at 675.

In the case at hand, a socio-economic assessmentwas made and included in a properly circulated EIS.Further, Honolulu is in the rather unique position ofhaving a single statement of long-range social,economic, environmental and design objectives forthe entire island. Thus, unlike the situation in Cityof Davis, conflicting growth and development plansfor adjoining areas are resolved by a single body.Finally, as previously noted, the City and County ofHonolulu has not raised any legal challenges to theEIS or the project itself.

I find that it was reasonable for the defendants toassume that construction of H-3 will not adverselyaffect the City's efforts to implement the GeneralPlan and that the discussion of socio-economicimpacts was sufficient to meet the requirements ofNEPA.

4. Population Assumptions.

(13) 40 C.F.R. s 1500.8(a)(1) (1978) requiresagencies to identify the population and growthcharacteristics of the area affected by its action andthe population and growth assumptions used tojustify the project or program or to determinesecondary impacts resulting therefrom.[FN25]

FN25. 40 C.F.R. s 1500.8(a)(1) (1978)states in relevant part:Agencies should also take care to identify,

as appropriate, population and growthcharacteristics of the affected area and anypopulat ion a n d growth assumptionsused to justify the project or program or todetermine secondary population and growthimpacts resulting from the proposed actionand its alternatives ....

The population figures used in the General Plan, andconsequently in the NHV- SEIS, were derived fromthe "Series E-2" population projections issued by theState Department of Planning and EconomicDevelopment ("DPED") in 1974 to promoteuniformity and consistency in Federal, state,county,and private planning work. Oahu populationwas forecast to reach 1,039,000 by the year 2000.Applying the General Plan distribution percentages tothis figure yielded a target Windward side populationof between 142,300 and 156,900. However, as statedin the General Plan,

The figure of 1,039,000 for the year 2000 and thecorresponding distribution of the population to thevarious designated areas ... will be revised as theState Department of Planning and EconomicDevelopment ("DPED") revises its populationprojections.

General Plan at 21.

On March 1, 1978, the DPED issued a new set ofprojections, designated "II-F", designed to refine andupdate the E-2 series. Projected year 2000 Oahupopulation was revised downwards from 1,039,000to 917,400. Applying the General Plan distributionpercentages to this new figure yields a targetWindward side population of between 125,700 and138,500. It should be noted, however, that theSeries E-2 and II-F projections only forecast totalOahu population and do not provide regionalbreakdowns.

All of the population projections used in developingthe traffic projections for the H-3 corridor werederived from the Series E-2 population projections.The NHV-SEIS fails to discuss the series II-Fprojections, even though they were issued nearly twoyears before the NHV-SEIS was approved.

The Route H-3 Travel Demand Analysis assumed aWindward side population of 150,000, based uponthe series E-2 projections. This assumption wasreconsidered by the FHWA in light of the Series II-Fprojections. *167 See FHWA Region 9 StaffAnalysis, App. "B". The FHWA apparentlyconcluded that the General Plan populationdistribution goals would not be met, and decided thatbased upon a year 2000 Oahu population of 917,400,it was appropriate to continue to use a Windwardpopulation of 150,000 in its travel demand analysis.

Defendants' apparent assumption that the GeneralPlan goals will not be met and year 2000 Windwardside population will be approximately 150,000 maybe correct. However, this assumption contradictsdefendants' assertion that growth will be limited bythe General Plan. It would have been wiser for theFHWA to have considered whether the project wouldstill be viable if General Plan population goals aremet. Nonetheless, I find that defendants did meettheir responsibility of identifying the population andgrowth assumptions used to justify the project.

5. The OMEGA Station.

The U.S. Coast Guard operates an OMEGANavigation Station in Haiku Valley. Thetransmitting antenna consists of six insulated spanswhich extend across the valley and are fed at thecenter by a multi-conductor downlead systemconnected to the transmitter building. The antennaground system consists of a dense network of copperconductors extending radially outward from thetransmitter building for a distance of 1100 feet.Strong electric and magnetic fields exist in the regionbetween the antenna and the ground system.

As originally planned, the Windward viaduct of theproject would largely have avoided the groundsystem. Because the location of the trans-Koolautunnel portal in Haiku Valley had been determinedbased upon the location of H-3 in Moanalua Valley,the corridor shift to North Halawa Valley increasedthe tunnel length from just under 5,000 feet to over8,400 feet. During the preliminary investigationsand design of the North Halawa Valley alignment, itwas determined that the required tunnel length (andhence construction costs) could be reducedsignificantly by shifting the location of the Haikuportal and lengthening the Windward viaduct, butthat such a shift would require that a portion of theWindward viaduct pass directly over the groundsystem.

In late 1977, Defendants contacted the Coast Guardto pursue the concept of H- 3 and OMEGAcollocation. Continued coordination with the CoastGuard led to a study which was conducted by theelectronics consulting firm of Kershner & Wright.The study was primarily concerned with the effects ofthe proposed viaduct upon the OMEGA Station,although it also dealt with the effects of thetransmitter upon the highway and its users. Theconsultants considered two alignments of theWindward Viaduct, the original configuration(Alignment "A") and the proposed change(Alignment "B").

The first phase of the study concluded that thehighway could be constructed and operated withoutreducing the effectiveness of the OMEGA station,and that the hazards involved in the construction andoperation of the highway could be controlled ormaintained at negligible levels. NHV-SEIS Vol. VI,appendix "M" at 26. This conclusion applied to bothalignments. Id. Phase II of the study dealt with thetechnical modifications necessary to maintain theperformance of the ground system and the antenna.

As a result of the studies, the proposal was modifiedto reflect the adoption of Alignment "B". Thischange is discussed in Vol. I of the Final NHV-SEISat pp. xxxvi-xxxix. Copies of both reports wereincluded as Appendix "M" in Vol. VI of theNHV-SEIS, but were never circulated to the public,ostensibly because they were prepared too late to beincluded in the Draft NHV-SEIS.

Plaintiffs allege that the reports (1) are substantivelyinadequate and (2) contain "new and significant"information that must be circulated to the public inthe form of a supplemental EIS. In particular,plaintiffs challenge the report's discussion of thepotential hazards of the OMEGA Station'selectromagnetic radiation upon *168 heart pacemakerwearers, construction workers and highway users.

(14) Mere disagreements among experts will notinvalidate an EIS. Life of the Land v. Brinegar, 485F.2d 460, 472 (9th Cir. 1973), cert. denied, 416U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974);Kentucky ex rel. Beshear v. Alexander, 655 F.2d714, 720 (6th Cir. 1981). An expert opinioncontrary to that expressed in an EIS should besubmitted to the agency responsible for the EIS forconsideration as "new and significant" information.A court cannot be expected to decide the relativemerits of conflicting expert opinions.

(15) Although a plaintiff cannot quibble with theassumptions and conclusions made by an expertwithin his area of expertise, he may attempt todemonstrate that the author of a study wasincompetent to address particular issues. By his ownadmission, the preparer of the report in question wasnot an expert on biological effects of electromagneticradiation. On the other hand, he was qualified toconclude, as he did, that through proper shieldingtechniques, the electric field strength in the vicinityof the highway could be reduced to negligible levels.I find that the studies and the discussion of H-3/OMEGA Collocation contained in the FinalNHV-SEIS would have been sufficient to meet therequirements of NEPA had the proper proceduresbeen followed. The safety concerns raised byplaintiff are not sufficient to invalidate the reports.

Defendants have a responsibility to consider thisinformation if it is presented to them. However, thatexamination process is outside of the scope of thislawsuit.

It is undisputed that the information contained in thestudies is "new". However, defendants contend thatsince the electric field strength can be reduced to"safe" levels, the new information is not"significant", citing Warm Springs Dam Task Forcev. Gribble, 621 F.2d 1017 (9th Cir. 1980) ("WarmSprings Dam II "). I find that their reliance ismisplaced. In that case, information about apotentially serious earthquake hazard came to theattention of the Corps of Engineers after thepublication of a supplemental EIS. The study inquestion challenged a basic design assumption for aproposed dam. The Corps considered theinformation, conducted an extensive study of theirown, and concluded that their original assumptionswere correct. The court found that the Corps'decision not to prepare and circulate a supplementalEIS reflecting the issues raised by the study wasreasonable.

Here, the highway design must take the OMEGAStation electric field effects into consideration. Thisfact alone demonstrates that the information issignificant. Further, the trans-Koolau tunnelalignment was altered as a result of the studies. Thesituation here thus differs from that in Warm SpringsDam II, where the new information did notnecessitate any changes in the project.

6. Justification vs. Examination.

(16) The purpose of an EIS is to serve as the meansof assessing the environmental impact of proposedagency actions, rather than as a justification fordecisions already made. See 40 C.F.R. s 1500.7(a)(1978). Plaintiffs allege that defendants violated thisregulation because the 1972 EIS, 1973 Preface,Moanalua Valley 4(f) Statement, and 1977NHV-SEIS were prepared not as a means of assessingthe environmental impact of H-3, but rather asjustifications for prior decisions to build the projectthrough the designated valleys. I find no merit tothis contention.

The fact that an agency prefers one alternative overanother does not violate NEPA. What is importantis that the decision to proceed with the action not bemade until the EIS process has been completed. Thefacts are clear that events followed the requiredsequence in this case.

C. Further Supplemental EIS.

(17) A federal agency has a continuing duty to gatherand evaluate new information relevant to theenvironmental impact of its actions. Warm SpringsDam II at 1023; see 42 U.S.C. ss 4332(2)(A), (B).

*169 Pursuant to 40 C.F.R. s 1502.9(c)(4) (1980)and 23 C.F.R. s 771.15 (1980), the FHWA isrequired to prepare a supplemental EIS when (1)changes are made in the proposed action that willintroduce a new or changed environmental effect ofsignificance to the quality of the human environment,or (2) significant new information becomes availableconcerning the action's environmental aspects. Asupplemental EIS is to be processed in the samemanner as a new EIS (draft and final). Thesupplementation process applies to both draft andfinal EISs. [FN26] Thus, if significant newinformation becomes available while an EIS is indraft form, the draft must either be recirculated orsupplemented. It is not sufficient that the newinformation is incorporated into the final EIS.

FN26. 23 C.F.R. s 771.15 states:A draft EIS or final EIS may besupplemented at any time. Supplementswill be necessary when substantial changesare made in the proposed action that willintroduce a new or changed environmentaleffect of significance to the quality of thehuman environment or significant newinformation becomes available concerningthe action's environmental aspects. Thedecision to prepare and process a supplementto the final EIS shall not void or alterFHWA approval actions given prior to thedecision, or void or alter previouslyauthorized development of the highwaysection not directly affected by the changedcondition or new information. Asupplement is to be processed in the samemanner as a new EIS (draft and final).(emphasis added)

(18) An agency's decision not to supplement an EISin light of new information will be upheld ifreasonable. Warm Springs Dam II, 621 F.2d at1024.

When new information comes to light the agencymust consider it, evaluate it, and make a reasoneddetermination whether it is of such significance asto require implementation of formal NEPA filingprocedures. Reasonableness depends on suchfactors as the environmental significance of the newinformation, the probable accuracy of theinformation, the degree of care with which theagency considered the information and evaluated itsimpact, and the degree to which the agencysupported its decision not to supplement with a

statement of explanation or additional data. Id.

1. Uncirculated Studies.

Vol. VI of the NHV-SEIS contains a number ofstudies, none of which were circulated to the public.Plaintiffs contend that these studies containsignificant new information which must be reflectedin a supplemental EIS.

As discussed in part V.B.5., supra, I find that theH-3/OMEGA Station Collocation Studies contain"new and significant" information. Althoughcollocation was discussed in the Final NHV-SEIS,defendants failure to circulate the information in draftEIS form necessitates the preparation of a furthersupplemental EIS.

(19) I find that none of the other studies are "newand significant". It should first be noted that NEPAdoes not require that supporting studies be physicallyattached to the EIS. It is sufficient if they areavailable and accessible. Coalition for CanyonPreservation v. Bowers, 632 F.2d 774 at 782 (9thCir. 1980); Trout Unlimited v. Morton, 509 F.2d1276 at 1284 (9th Cir. 1974). Thus, the studiesthemselves need not be circulated as a supplementalEIS, provided that their findings are discussed andreferenced in a properly circulated supplemental EIS.

While it is true that Dr. Robert Schallenberger's1978 Avifaunal study, NHV- SEIS Vol. VI,appendix "K", did provide additional informationregarding the avian population and habitat of theCentral Ko'olau Range, it was reasonable fordefendants to conclude that this study did notprovide significant new information concerning theproject's environmental effects. At defendants'direction, Dr. Schallenberger had conducted two prioravifaunal surveys of North Halawa Valley. Theresults of these surveys were incorporated into anextensive discussion of the effects of the project uponthe bird life in the valley. See NHV-SEIS Vol. I at165-70. These studies concluded *170 that H-3would have a significant adverse impact upon suchlife. The 1978 study merely reinforced thisconclusion.

(20) In consonance with DOT's urban transportationpolicy, FHWA Region 9 reexamined the H-3proposal to insure that the alternatives involving therehabilitation of existing highways were givenadequate consideration. The study, referred to as the"Region 9 Staff Analysis", covered 16 differentalternatives, including contra-flow bus lanes, banningof trucks during peak hours, and one-way operationof either Likelike Highway or Pali Highway during

peak hours.

The Region 9 Staff Analysis contained a detailedcost-benefit analysis of the different alternatives. Thefact that the Secretary's selection of the H-3alternative instead of the recommended (T)H-3alternative was largely based upon the results of thecost-benefit analysis indicates the significance of thisinformation. I therefore conclude that the Region 9Staff Analysis also is "new and significant"information within the meaning of the relevantregulations.

2. Terms of Approval.

(21) One of the terms upon which the Secretary'sconcurrence in the EIS was conditioned was:

That the project include a l l FHWArecommendations-construction of a 4-lane H- 3;implementation of a one lane reversible bus lane onthe Likelike ; provision for passenger transferfacilities at the Likelike Highway and the H-3interchange in conjunction with the proposedHonolulu Area Rapid Transit System; and furtherstudy of transportation system mananagement (sic )measures, including peak hour prohibition oftrucks on the Likelike and Pali Highways.(emphasis added)

Office of the Secretary Concurrence Memorandum(Nov. 21, 1980).

Plaintiffs contend that a supplemental EIS must beprepared to reflect the required implementation of thereversible bus lane, provision for passenger transferfacilities, and the approval of the 4-lane H-3alternative.

The FHWA interpreted the condition requiringimplementation of the reversible bus lane to meanthat the standard highway development process forthe bus lane will proceed simultaneously with thedesign and ultimate construction of H-3. Thecorrectness of this interpretation was confirmed bythe Director of the Office of Environment and Safety.There was testimony at trial that a project whichundergoes the standard development process will notnecessarily be constructed. It thus appears that thehighway and the bus lane are separate projects.While it is certainly possible that an EIS for the buslane may ultimately be necessary, the environmentaleffects of the bus lane need not be considered in theH-3 EIS.

An EIS need not be supplemented merely because analternative other than the one preferred by the prepareris selected. Indeed, one of the purposes of an EIS isto help a decision maker to choose among competingproposals. I find that since the 4-lane H-3 alternative

was adequately discussed in the NHV-SEIS, a furthersupplemental EIS reflecting the selection of thatalternative is not required.

3. Ho'omaluhia Park.

(22) As more fully discussed in part V.I., infra, thearea surrounding the Kaneohe Flood Control Projectwas developed into a major regional park(Ho'omaluhia) after the windward alignment of theproject was established and the 1972 EIS and 1973Preface had been prepared. Pursuant to this court'sorder of November 21, 1978, Defendants prepared a4(f) statement addressing alternatives to the proposedconstructive use of the park. This statement did notundergo the normal EIS circulation process.

I find that the development of Ho'omaluhia Park andthe project's potential impacts upon it are new andsignificant information which must be reflected in asupplemental EIS.

*171 D. Project Approval.

(23) Plaintiffs contend a comparison of the projectedconstruction costs and environmental andsocio-economic impacts of H-3 with the expectedbenefits from the project renders the selection of otherthan a no-build alternative arbitrary and capriciousand a clear error in judgment.

As noted above, judicial review under NEPA is verynarrow. A court may require an agency to followprocedural requirements of NEPA and considerenvironmental factors, but cannot determine theweight to be accorded such factors. As long as adecision is based upon legitimate considerations, itcannot be set aside as "arbitrary and capricious". SeeColumbia Basin Land Protection Ass'n, 643 F.2d at596.

As stated in Strykers' Bay Neighborhood Council v.Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d433 (1979) (per curiam),

Vermont Yankee (Nuclear Power Corp. v. NRDC,435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460(1978) ) cuts sharply against the Court of Appeals'conclusion that an agency, in selecting a course ofaction, must elevate environmental concerns overother appropriate considerations. On the contrary,once an agency has made a decision subject toNEPA's procedural requirements, the only role fora court is to insure that the agency has consideredthe environmental consequences; it cannot "'interject itself within the area of discretion of theexecutive as to the choice of the action to be taken.'" (citations omitted)

Id. at 227, 100 S.Ct. at 500.

Defendants have demonstrated the need for animprovement in trans-Koolau transportation.Whether I would have balanced the competinginterests in the same manner or reached the sameconclusion as did the Secretary is immaterial. Icannot set aside his determination if it was based onlegitimate considerations. However, because thedefendants have violated the procedural requirementsof NEPA and the CEQ and DOT regulations byfailing to prepare a supplemental EIS addressing thenew and significant information, I must set aside theSecretary's decision on procedural grounds and neednot reach the substantive issue. Had the newinformation become available after the approval of theNHV-SEIS, potential relief would at best have beenlimited to requiring the Secretary to reconsider hisdecision in light of the new information.

E. Location and Design Approval.

1. Prior Commitment.

Plaintiffs have failed to establish that the defendantswere impermissibly "committed" to the NorthHalawa Valley corridor prior to the H-3 corridorhearings of December 1977. Further, it is doubtfulthat such a commitment would in itself constitute aviolation of the DOT Regs.

The first H-3 corridor studies took place in 1965.The trans-Koolau corridors were re-examined in detailduring the preparation of and hearings for the 1972EIS. These studies and hearings removed fromfurther consideration the Manoa Valley, NuuanuValley, Kalihi Valley and South Halawa Valleycorridors. The Secretary's 1976 determination thatthere existed feasible and prudent alternatives toMoanalua Valley eliminated that corridor fromconsideration. The only remaining trans-Koolaucorridor was North Halawa Valley. The alternatecorridors were again reexamined prior to thepreparation of the NHV- SEIS. There has been noserious suggestion that any of these corridors areviable alternatives to North Halawa Valley or thattheir prior rejection should be reconsidered. It wouldthus be absurd to require defendants to hold furtherhearings as to their desirability.

2. Combined hearings.[FN27]

FN27. These causes of action weresubmitted for the court to determine thefollowing issues:(a) Were the combined corridor and designhearings held in 1977 were held in violationof the applicable regulations and statutes?(b) If it was a violation of applicable

regulations and statutes to hold combinedlocation and design hearings, is the properremedy to invalidate corridor approval andorder new separate corridor and designpublic hearings?

The relevant facts are not in dispute. Defendantsheld combined corridor and design hearings as to theH-3 North Halawa *172 Valley (NHV) alignment ofDecember 12-15, 1977. Simultaneous location anddesign approval was given on February 3, 1981. Theissue before this court is whether the defendantsproperly combined the corridor and design hearingsfor the H-3 NHV alignment.

A key issue withregards to these causes of action isthe meaning of "project". Plaintiffs suggest that theindividual sections of the highway, e.g., the Halekouinterchange, Windward viaduct and trans-Koolautunnels be considered as separate "projects", sinceseparate construction contracts will be let for each ofthem. Such a restrictive definition is contrary to theintent of the relevant statutes.[FN28]

FN28. 23 C.F.R. s 1.2 (1980) states inrelevant part:(a) Terms defined in 23 U.S.C. 101(a) shallhave the same meaning where used in theregulations in this part, except as modifiedherein.(b) The following terms where used in thispart shall have the following meaning:....Project. An undertaking by a state highwaydepartment for highway construction,including preliminary engineering,acquisition of rights-of- way and actualconstruction, or for highway planning andresearch, or for any other work or activity tocarry out the provisions of the Federal lawsfor the administration of Federal aid forhighways.

(24) A highway connecting two logical termini maybe considered a single project for planning purposes,even though the construction phase may be brokendown into several separate contracts. See Lathan v.Brinegar, 506 F.2d 677 (9th Cir. 1974).

(25) With respect to location approval, this court haspreviously held that the H-3 "project" encompassesthe entire highway connecting the Halawa andHalekou interchanges.

(W)hatever administrative convenience may beserved by dividing the proposed highway intosegments, for purposes of public hearings it is oneproject. Construction of the Leeward segment up tothe Koolau Mountains makes no sense without the

Windward segment up to the other side of theKoolau Mountains, and neither segment makessense unless both are connected by a tunnelthrough the mountains.

Statement of Facts Conclusions of Law and Order,July 13, 1973. Further, in the Order InterpretingInjunction issued April 21, 1981, this court ruledthat the NHV and Moanalua Valley alignments ofH-3 were alternate routings of the same project.

23 C.F.R. s 790.5(g) (1980) permits combinedcorridor and design hearings to be held for projectswhich have had prior public hearings.[FN29] Publichearings were held for the Moanalua alignment of theproject. It was therefore proper for defendants tocombine the corridor and design hearings for theNHV alignment. Since a valid design hearing washeld, design approval was not improper on thegrounds asserted in this cause of action.

FN29. Although the regulations contemplatethat a design public hearing will be heldafter the route location has been approved,see 23 C.F.R. s 790.3(b) (1980), 23 C.F.R.s 790.5(g) (1980) states: (g) With respectto any project for which a public hearing hasbeen held under Federal-aid procedures, andfor which it is determined by the Statehighway department and the DivisionAdministrator that a new hearing is desirableto consider supplemental information onsocial, economic, or environmental effectsrelative to proposals presented at a previouspublic hearing to with respect to additionalproposals, then, as appropriate, a newcorridor or design hearing should be held.When recommended by the State andapproved by the Division Administrator, anew corridor hearing held in accordance withthis section may be combined with thedesign hearing, whether or not a designhearing for the project has been previouslyheld. In such instances, the location shallbe reconsidered and a new request forlocation approval shall be submittedtogether with the request for designapproval. (emphasis added)

3. Adequacy of Study Reports.

(26) A request for location or design approval mustbe accompanied by reports *173 and other documentswhich, inter alia, discuss the anticipated economic,social, and environmental effects of the proposedaction and alternatives under consideration. 23C.F.R. ss 790.9(c), 790.8(b)(2)(i) (1980). The H-3Location/Design Study Report, NHV-SEIS, 1973Preface and 1972 EIS were submitted as evidence of

compliance with this requirement. Plaintiffschallenge the adequacy of these reports with respectto socio-economic impacts and infrastructureavailability.

As more fully discussed in part V.B.3., supra, theEIS adequately discusses the socio-economic impactsof the project. Similarly, I find that defendantsreasonably concluded that the extensive planningprocess for Oahu in general and the windward side inparticular will insure that future infrastructurerequirements will be met.

4. Timeliness of Study Report Filing.

(27) Location and design approval is governed by 23C.F.R. part 790 (1980). If location or designapproval is not requested within three years after thedate of the respective hearings, new hearings must beheld. 23 C.F.R. ss 790.5(d), (e) (1980).

Location/Design hearings were held from December12-15, 1977. Location/Design approval wasrequested on December 10, 1980. Although thereports and studies analyzing the project weresomewhere within the FHWA bureaucracy on the dateof the request, they did not arrive at FHWA Region 9Office (the office where the request for approval wasfiled) until between two and five days after thethree-year time period for requesting approval hadlapsed. The decision to proceed with the project wasnot made until all of the required documents hadbeen submitted.

The stipulated question for this cause of action iswhether the applicable regulations require that theappropriate documentation physically accompany arequest for location/design approval, or whether it issufficient that such documentation may be found asof the day of the request somewhere in the FHWAbureaucracy.

To hold that the three year period during whichlocation or design approval may be requested istolled only when all of the documents supporting therequest are physically present in the particular FHWAoffice where the request is filed would inject aneedless technical requirement into an alreadycomplex process. I conclude that it is sufficient thatthe documents are in the hands of and have beenpreviously reviewed by the FHWA at the time of therequest.

F. OMB Circular A-95 Compliance.

Office of Management and Budget ("OMB") CircularA-95 (revised), 41 Fed.Reg. 2052 (Jan. 13, 1976),provides for coordination between Federal, state and

local agencies with respect to Federal and federallyassisted projects.

23 C.F.R. part 420, subpart C, implements theregulations in OMB Circular A-95 with respect toFHWA and Urban Mass Transit Administration("UMTA") projects. 23 C.F.R. part 450, subpart A,defines the relationship between state MetropolitanPlanning Organizations ("MPOs") and state A-95coordinating agencies. I find that the Defendantshave complied with the above-described coordinationrequirements.

G. Endangered Species.

1. The Oahu Creeper.

(28) This cause of action raises two legal issues: (1)whether or not the biological opinion issued by theUSFWS regarding the impact of the H-3 project uponthe Oahu Creeper was inadequate or otherwiseimproper as a matterof law and (2) whetherdefendants are under a legal obligation to continuethe biological consultation process with the USFWS.

As an initial matter, the USFWS is not a party tothis lawsuit, so even if the biological opinion hadbeen legally erroneous, this court would not have thepower to force the USFWS to reconsider its decisionor reinitiate consultation. Nevertheless, defendantshave demonstrated that they have met their initialconsultation responsibilities under the EndangeredSpecies Act.

*174 On September 11, 1978, the USFWS issued aformal biological opinion, pursuant to section 7(b) ofthe Endangered Species Act, that the H-3 project wasnot likely to jeopardize the continued existence of theOahu Creeper. Plaintiffs contend that this opinionwas "arbitrary, capricious, an abuse of discretion, aclear error in judgment and otherwise not inaccordance with law." Complaint P 355 at 74.

50 C.F.R. s 402.04 (1980) governs the consultationprocess under the Endangered Species Act. Plaintiffsdo not allege, nor do I find, that defendants violatedthe procedural requirements of this regulation.Rather, plaintiffs argue that the conclusion reached bythe USFWS was clearly erroneous and based uponinadequate information.

The facts do not support either of these contentions.The USFWS biological opinion was based upon Dr.Robert Schallenberger's 1978 Avifaunal Study, NHV-SEIS vol. VI app. K. The study took place fromDecember 1977 through February 1978. During thisperiod, only one positive and two possible sightingsof the Oahu Creeper occurred in the North Halawa

Valley. While it is true that conditions for birdsighting were suboptimal at the time of the survey, itcannot be concluded that as a matter of law thesurvey data was insufficient to support a biologicalopinion or that the conclusion drawn from the datawas clearly erroneous. Based upon the survey, theUSFWS could reasonably have concluded that theH-3 project is not likely to jeopardize the existence ofthe Oahu Creeper.

Even a biological opinion based upon inadequateinformation would not have been per se invalid. Inthe case of an incomplete opinion rendered uponinadequate information, the law merely imposes uponthe Federal agency the continuing obligation to makea reasonable effort to develop that information.North Slope Borough v. Andrus, 486 F.Supp. 332,352 (D.D.C.1979), mod. on other grounds, 642 F.2d589 (D.C.Cir.1980); H.Conf.Rep. No. 96-697, 96thCong., 1st Sess., reprinted in (1979) U.S.CodeCong. & Ad.News 2557, 2576; 50 C.F.R. s402.04(f).

The issue of data adequacy was decided by theUSFWS when it issued its formal biologicalopinion. It may be true that the decision was notclear-cut, but this court must defer to the reasonableconclusion stated in the biological opinion letter:

In essence, we have very little data for providing anopinion but feel it would be unreasonable torequest a study which would be unlikely to providedefinitive results. (emphasis added)

Pursuant to 50 C.F.R. s 402.04(e), once theUSFWS has issued its biological opinion, no furtherconsultation is required. In their request for formalconsultation regarding the Achatinella, Defendantsinquired of the USFWS whether further consultationwas required. By letter dated October 7, 1981, theUSFWS responded that no further consultation wasnecessary.

2. The Cyrtandra.

Section 7(c)(1) of the Endangered Species Act statesin relevant part:

To facilitate compliance with the requirements ofthis section, each Federal agency shall, with respectto any agency action of such agency for which nocontract for construction has been entered into andfor which no construction has begun on November10, 1978, request of the Secretary informationwhether any species which is listed or proposed tobe listed may be present in the area of suchproposed action (a "section 7(c) species list").(emphasis added)

16 U.S.C. s 1536(c)(1) (as amended 1978).

Defendants did not make such a request untilOctober 2, 1981.

Plaintiffs contend that if a timely request for theSection 7(c) species list had been made, then (1)defendants would have been apprised that new speciesof the Cyrtandra may exist in North Halawa Valley;(2) defendants would have discovered these newspecies; and (3) these species would have been placedon the Section 7(c) species list.

*175 With respect to this cause of action, Plaintiffsurge the court to block development of H-3 until thedefendants have completed formal biologicalconsultation with the USFWS, addressing the newspecies of the Cyrtandra, pursuant to sections 7(a)and (b) of the Endangered Species Act.

It is undisputed that the new species of Cyrtandra areneither listed nor proposed to be listed as endangeredspecies. Formal consultation addressing thesespecies is thus clearly not required under the ESA.Further, it is doubtful that the provision underlyingthis cause of action is even applicable to defendants,since it only applies to agency action for which nocontract for construction has been entered into and forwhich no construction has begun on November 10,1978. As noted before, construction of the H-3project (the Halawa and Halekou interchanges) beganin 1972.

3. The I'iwi.

(29) The I'iwi (a Hawaiian bird) is consideredendangered on Oahu. It is not considered endangeredon any of the other islands in this state, nor is itlisted as an endangered species by the USFWS.Plaintiffs contend that constructing H-3 through theNorth Halawa Valley will destroy the habitat of theI'iwi, thereby "taking" it in violation ofHaw.Rev.Stat., Chapter 195D. [FN30]

FN30. Haw.Rev.Stat. s 195D-4(e) states inrelevant part:Prohibited acts. With respect to anyendangered species of wildlife or plant, it isunlawful, ..., for any person subject to thejurisdiction of this State to:(2) Take any such species within this State;

The enforcement provision of Haw.Rev.Stat.,Chapter 195D states that:

Any employee or agent of the department uponwhom the board of land and natural resources hasconferred powers of police officers, including thepower to serve and execute warrants and arrestoffenders or issue citations throughout the State,and any police officer of the counties of this State

shall have the authority to enforce any of theprovisions of this chapter or any regulation or rulepromulgated pursuant hereto.

s 159D-7 (sic), Haw.Rev.Stat.

Since the statute contains a specific enforcementprovision, I conclude that a private right of actiondoes not exist.[FN31] Further, an injunction wouldbe an inappropriate remedy even if Plaintiffs did havea private right of action, since s 195D-9,Haw.Rev.Stat., provides criminal sanctions forviolation of the chapter.

FN31. In relevant part, Haw.Const. art. XI,s 9 states:Any person may enforce this right (to aclean and healthful environment) against anyparty, public or private, through appropriatelegal proceedings, subject to reasonablelimitations and regulation as provided bylaw. (emphasis added)Plaintiffs argue that this provision entitlesthem to a private right of action. I find thatit does not.

Finally, even if a private right of action did exist, itdoes not appear that constructing H-3 through NorthHalawa Valley will "take" the I'iwi. As defined in s195D-2(j), "take" means to "harass, harm, pursue,hunt, shoot, wound, kill, trap, capture or collectendangered species of wildlife ... or to attempt toengage in any such conduct". Destruction of habitatis not covered by the statute.

H. Coastal Zone Management.

Pursuant to the Coastal Zone Management Act of1972, as amended, 16 U.S.C. s 1451 et seq., and itsimplementing regulations, 15 C.F.R. part 930(1981), Federal agencies are required to conduct theiractivities in a manner consistent with state CZMprograms.

Agency actions are divided into four categories: (1)Federal Activities, 15 C.F.R. part 930C; (2)Activities Requiring a Federal License or Permit, 15C.F.R. part 930D; (3) Outer Continental ShelfExploration, Development and Production Activities,15 C.F.R. part 930E; and (4) Federal Assistance toState and Local Governments, 15 C.F.R. part 930F.

*176 H-3 falls into category (4), Federal Assistance.See Procedures Guide for Achieving FederalConsistency with the Hawaii Coastal ZoneManagement Program, at exh. "B". I find thatDefendants have fully complied with therequirements of the CZM statutes and regulations.Plaintiffs' other contentions with respect to this cause

of action are without merit.

I. Section 4(f)-Ho'omaluhia Park.

Background.

Ho'omaluhia Park began as a flood control projectdeveloped by the Army Corps of Engineers.Between 1966 and 1970, when the flood controlproject was authorized, the concept of the park wasexpanded from approximately 35 acres of "green-belt"surrounding the flood-control dam and reservoir, to75 acres. In 1973, the proposed park was furtherexpanded to 115 acres, taking into consideration theplanned windward alignment of H-3. A 115 acre areabetween the park and the highway was to act as a"buffer zone" between the two projects. This areawas subsequently purchased by the City and Countyand incorporated into the project, making theboundary of the park contiguous with the proposedhighway right-of-way. A master plan for the parkwas adopted in February, 1974. The plan restrictedall of the park's intensive uses, i.e., camping andpicnicking, to the interior 115 acres of the park. Theintensive use area is isolated from the highway by aperipheral park circulation road and a low densityrecreational use zone (primarily trails and openspace).

1. Motion to Reconsider.

(30) Defendants contend that since the parkboundaries were determined after the freewayalignment was established, the protections of 4(f)should not apply. Their argument is not withoutmerit. As noted above, the park design took intoaccount the potential impacts of the freeway. Inaddition, the flood-control reservoir was sized toaccommodate the inflow of sediment resulting fromthe construction of the highway, and landscaping andother measures are planned to visually shield the parkfrom the highway. Defendants also argue that toextend the coverage of the 4(f) statutes to includeparks which are planned concurrently with highwayswould discourage the development of such parks.

While defendants' arguments are intuitivelyappealing, their position is contrary to the explicitstatutory mandate that the Secretary not approve anyprogram or project which requires the use of parklandunless the provisions of the 4(f) statutes are compliedwith.

The 4(f) statutes were enacted to prevent public parksfrom being converted into masses of concrete andasphalt.As stated in Overton Park, 401 U.S. at 412,91 S.Ct. at 821.

(T)he very existence of the statutes indicates that

protection of parkland was to be given paramountimportance. The few green havens that are publicparks were not to be lost unless there were trulyunusual factors present in a particular case or thecost or community disruption resulting fromalternative routes reached extraordinary magnitudes.(footnotes omitted)

Id.

More specifically,These statutes prohibit the Secretary ofTransportation from authorizing the use of federalfunds to finance the construction of highwaysthrough public parks if a "feasible and prudent"alternative route exists. If no such route isavailable, the statutes allow him to approveconstruction through parks only if there has beenall possible planning to minimize harm" to thepark. (footnotes omitted)

Id. at 405, 91 S.Ct. at 817.

The statutory protections of 4(f) have been judiciallyextended to include constructive use as well asphysical taking of parkland. See, e.g., Brooks v.Volpe, 460 F.2d 1193 (9th Cir. 1972).

Constructive use is not an easily defined concept.The fact that traffic noise can be heard or that ahighway can be seen from a park does not necessarilymean that the *177 park is being "used" by thehighway. The degree or existence of constructive usedepends upon both the nature of the park and thedegree of impacts from the highway. For example, apark circulation road or parking lot would be muchless affected by highway noise than would a picnicarea or campsite. Mitigation measures such aslandscaping and noise barriers may reduce the impactof a highway sufficiently to eliminate park "use".However, absent strict application of the 4(f) statutes,highway departments would have no incentive to takesuch measures, especially where it would be costly toimplement them. Application of section 4(f) is thusappropriate in this case.

The fact that a park and a highway are jointlydeveloped may be sufficient to establish that there areno feasible and prudent alternatives to the use of suchpark. At the very least, joint development shouldsimplify efforts to minimize harm to the park.[FN32]However, for the reasons stated above, defendants'Motion to Reconsider is denied.

FN32. To a degree, this problem isalleviated by the DOT regulations. 23C.F.R. s 771.135(g) (1981) states inrelevant part:Designations of park and recreation lands ...are sometimes made and determinations of

significance changed late in the developmentof a proposed action. (A)n action mayproceed without consideration under section4(f) if the property interest in the section 4(f)type lands was acquired for transportationpurposes prior to the designation or changein the determination of significance and if anadequate effort was made to identifyproperties protected by section 4(f) prior toproject approval.The earlier version of this regulation, 23C.F.R. s 771.19(g) (1980), was similarly,although less restrictively worded.

2. Delegation.

For the reasons stated in the section discussingdelegation of the preparation of the EIS, supra, I holdthat preparation of the Ho'omaluhia Park 4(f)statement was not improperly delegated.

3. Coordination.

(31) The following facts with regards to this cause ofaction are not disputed: (1) Ho'omaluhia Park wasdeveloped by the Corps of Engineers in conjunctionwith its Keapuka flood control project; (2) duringthis period, the Corps of Engineers had control of thepark property; (3) in May, 1981, the Corps ofEngineers turned over control of the park property tothe City and County of Honolulu; (4) coordination ofthe 4(f) statement occurred prior to May, 1981; (5)the 4(f) statement was coordinated with the City andCounty of Honolulu, and not with the Corps ofEngineers; (6) throughout the relevant period, theCity and County of Honolulu has held fee title to thePark property; and (7) the City and County ofHonolulu presently operates and manages the Park.

The legal issues are: (1) whether defendants wererequired to coordinate the 4(f) statement with theCorps of Engineers; and (2) if so, whether theviolation may be excused by a showing of good faithand lack of prejudicial effect.

23 C.F.R. s 771.19(g)(1) (1980) requires that "(t)hesection 4(f) involvement must be coordinated withthe agency having jurisdiction over the 4(f) lands."Plaintiffs contend that the Corps of Engineers hadeither exclusive or joint jurisdiction over theHo'omaluhia property while the 4(f) statement wasbeing prepared. Defendants' submit alternatively that(1) as fee owner and ultimate manager and operator ofthe Park, the City and County was the sole agencywith jurisdiction over the property; or that (2) sincethe regulation only refers to coordination with theagency having jurisdiction over the property, it wasreasonable for them to coordinate the 4(f) statement

with only the primary agency having jurisdiction, theCity and County.

The Corps of Engineers developed the park pursuantto a contract with the City and County of Honolulu.Although the Corps of Engineers handled the designand construction work for the project, the City andCounty held ultimate control, as evidenced by theirsuccessive decisions to enlarge the project. Indeed, itwas the City *178 and County's decision to extendthe Park boundaries to the edge of the H-3right-of-way that triggered the protections of section4(f). Clearly, the City and County was "the agencyhaving jurisdiction" of the property, and coordinationof the 4(f) statement with them was thereforeproper.[FN33]

FN33. It cannot be disputed that the Cityand County presently has sole jurisdictionover the Park. Thus, even if defendantsshould have coordinated the 4(f) statementwith the Corps of Engineers, Plaintiffswould be without a remedy, since the properagency for coordination is the City andCounty.

4. Circulation.

(32) The issues raised by this cause of action are (1)whether the applicable regulations permittedDefendants to circulate the Ho'omaluhia 4(f)statement separately from the NHV-SEIS; and (2) ifso, whether the 4(f) statement should have beencirculated in the form and manner of a supplementalEIS.

Under ordinary circumstances, a 4(f) statement willbe prepared and circulated with the correspondingproject EIS. However, 23 C.F.R. s 771.19(g)(8)(i)(1980) provides for separate circulation of the 4(f)information when "(t)he section 4(f) area isdesignated after the ... final EIS is processed."

Since the final Moanalua EIS was approved in 1974and it was not determined that a 4(f) statement wasrequired for Ho'omaluhia Park until 1978, it followsthat separate circulation of the 4(f) statement wasproper.

23 C.F.R. s 771.19(g)(8) does not specify themanner in which a separate 4(f) statement is to becirculated. Defendants contend that since the final4(f) statement was processed in conjunction with theFinal NHV-SEIS, then either as a matter of law or asa reasonable interpretation of the applicableregulations, it was sufficient that the 4(f) statementwas only circulated to the agencies with whom theFHWA was required to coordinate preparation of the

statement.

Defendants' contention is not without merit.However, where, as here, a project's involvementwith 4(f) lands is sufficient to constitute "new andsignificant information" requiring the preparation of asupplemental EIS, see discussion under part V.C.3.,supra, the 4(f) statement must be circulated as asupplemental EIS. This manner of circulation isclearly contemplated by the regulations. See 23C.F.R. s 771.19(g)(5) (1980).

5. Adequacy.

(33) Plaintiffs contend that the Ho'omaluhia 4(f)statement is inadequate because it fails to contain allof the information required by 23 C.F.R. s 771.19(i)(1980). The forty-second cause of action recites alitany of items which allegedly are not addressed bythe 4(f) statement.

It is true that the 4(f) statement could have containedmore information. However, the same can be said ofany environmental document. Further, much of theomitted information will only be available once thedesign of the highway is finalized. Accordingly, Ifind that the Ho'omaluhia 4(f) statement containssufficient information to comply with 23 C.F.R. s771.19(i).

The thirty-eighth cause of action alleges that theHo'omaluhia 4(f) statement is inadequate because itfails to sufficiently address non-highway alternativesto the construction of H-3. This contention iswithout merit. A 4(f) statement need not reiterate indetail the reasons why a highway is necessary. As isthe case here, it is sufficient that the non-highway(no-build) alternatives are adequately addressed in theEIS or other documents considered by the Secretary.

6. Approval.

The thirty-seventh cause of action is based upon theassumption that the 4(f) statement was invalid forfailure to contain sufficient information regardingnon-highway alternatives. As discussed above, the4(f) statement sufficiently addressed the no-buildalternative. At trial, Defendants *179 offeredevidence that in reaching his decision, the Secretaryconsidered, inter alia, (1) the Ho'omaluhia Park 4(f)Statement; (2) Vol. I of the 1972 EIS; Vol. I of theNHV-SEIS; and the FHWA Region 9 Staff Analysis.It thus cannot be concluded that the Secretary'sdecision was based upon inadequate information.

7. Feasible and Prudent Alternatives.

The forty-third through forty-sixth causes of action

challenge the correctness of the Secretary'sdetermination that no feasible and prudent alternativeexists to the use of Ho'omaluhia Park.

It should be recalled that the two elements of the 4(f)statutes are that: (1) parklands cannot be used unlessall alternatives to their use are infeasible andimprudent; and (2) if parklands must be used, theSecretary must select the feasible and prudentalternative which minimizes harm to the park.

(34) An alternative route which does not use the parkcannot be found to be imprudent unless there aretruly unusual factors present in a particular case or thecost or community disruption resulting fromalternative routes reaches extraordinary magnitudes.Id. at 412, 91 S.Ct. at 821; Louisiana EnvironmentalSociety, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir.1979).

An alternative route which uses the park may berejected if it is infeasible or imprudent or does notminimize harm to the park. Two separate reasoningprocesses are involved here:

A route may be rejected because it does notminimize harm only for reasons relevant to thequantum of harm which will be done to therecreational area. If it does minimize harm, a routemay be rejected only for truly unusual factors otherthan its effect upon the recreational area.

Id. at 86.

(35) The Ho'omaluhia Park 4(f) statement consideredfive alternatives to the recommended alignment forthe portion of H-3 in the vicinity of Ho'omaluhiaPark: (1) Mauka Realignment (Scheme A); (2) MakaiRealignment (Scheme B); (3) Partial DepressedSection; (4) Viaduct Section; and (5) No-Build. Ofthese, the the Makai Realignment, PartiallyDepressed Section, and No-Build alternatives wouldnot have any impact upon Ho'omaluhia Park.[FN34]Plaintiffs assert that the Mauka Realignment, MakaiRealignment, and No-Build alternative are feasibleand prudent alternatives to the recommendedalignment.

FN34. The partially depressed section(partial cut and cover subalternative) wouldhave cost approximately $66 million morethan the recommended alignment. TheSecretary could reasonably have believedthis to be a cost of extraordinary magnitude.Plaintiffs do not contend that this alternativeis prudent.

For the Mauka Realignment, the highway would berealigned approximately 500 feet away from thepresent boundary of Ho'omaluhia Park toward the

mountain (mauka direction). The location of theKaneohe and Halekou interchanges would be thesame as in the recommended alignment. Due to thetopography of the area, the roadway would beapproximately 100 feet higher than in therecommended alignment. This alternative wasrejected because:

(I)t would negate the originally intended purpose ofthe common boundary to eliminate theurbanization of land between the park and H-3. Toavoid urbanization of the resulting 92-acre tract, itis likely that the State may be required to purchasethe land for inclusion in the park or the land maybe purchased by the city or county. The resultwould again be a common boundary of the parkand H-3 causing a "constructive use" Section 4(f)determination. In addition, it would requireadditional construction costs (approximately $6million), cause increased noise above the ambientlevels within the park because of the physicalrelationship of the highway and park elevations, bemore visible from the park, take additional landsout of banana production, and move the highwaycloser to the Koolau Pali Natural Landmark.

Ho'omaluhia Park Section 4(f) Determination at 3.

*180 For the Makai Realignment, the highwaywould be realigned makai, or to the ocean side, ofHo'omaluhia Park. It would follow the existingalignment of Likelike Highway and KamehamehaHighway on a viaduct structure from the KaneoheInterchange to the Halekou Interchange. Thisalternative was rejected because:

(I)t would require the dislocation of one church,four businesses and 31 residences adjacent toLikelike and Kamehameha Highways; increasenoise, air quality and visual impacts to residencesin the general vicinity; require additional costs dueto the need for the viaduct structure ($42 millionadditional); and require construction to lesserdesign geometric standards.

Id. at 3.

The described no-build alternative considered theeffect of not constructing H-3 at all. This alternativewas rejected because a no-build decision would:

(R)esult in additional traffic congestion andincreased delays experienced by windwardcommuters. Likewise, the increased safety hazardson Likelike and Pali Highways would directlyaffect Kalihi Valley and Nuuanu Valley residents.The costs of providing increased bus service whichwill not effectively reduce the congestion on theexisting highways have been documented in thesupplement to the Interstate H-3 EIS.

At trial, plaintiffs suggested that another "no-build"alternative would be to not construct the portion of

H-3 between the Kaneohe and Halekou interchanges.Defendants established that this alternative wasessentially the same as the Makai realignment.

The final alternative suggested by plaintiffs is theso-called "direct line" realignment. This alternativewas created by drawing a straight line from H-3 nearHospital Rock to Kamehameha Highway nearKaneohe School, totally ignoring considerations oftraffic flow, safety and terrain. Plaintiffs did notintroduce any evidence which suggested that thisalternative might be viable. Defendants testified thatdue to the terrain of the area, such an alignmentwould require a viaduct structure between 100 and200 feet high. It is obvious that even plaintiffs donot seriously believe that this alternative is feasibleor prudent. Accordingly, further consideration of thisalignment is unnecessary.

With respect to the first part of the 4(f) inquiry, Ifind that the Secretary reasonably believed that thereare no feasible and prudent alternatives to the use ofHo'omaluhia Park.

As discussed earlier, defendants have sufficientlyestablished the need for the highway. Rejection ofthe no-build alternative was thus reasonable.

The Makai Realignment was also properly rejected.Contrary to plaintiffs' contention, communityimpacts may be considered in determining theprudence of an alternative. While the displacementsresulting from the Makai Realignment are not, bythemselves, sufficient reason to justify the use ofparkland, I find that the Secretary could reasonablyhave believed that the sum of the factors listedrendered this alternative imprudent. In particular, theMakai Realignment would necessitate reducingdesign speeds on the through route from 55 MPH to30 MPH and require an unusually complex andunsafe ramp configuration. This is not to say thatthe Secretary is permitted to weigh the detrimentresulting from the destruction of parkland against thecost of other routes, safety considerations and otherfactors. Such a balancing of interests is expresslyprohibited by Overton Park. However, Overton Parkdoes not bar considering whether all of thedifficulties posed by an alternative route, takentogether, render that alternative imprudent.

Since it appears that there are no feasible and prudentalternatives to the use of Ho'omaluhia Park, theremaining issue is whether the recommendedalignment minimizes harm to the park.

Rejection of the Mauka Realignment was properonly if (1) it was not feasible and prudent, or (2) if itdoes not minimize harm. I find that there is

insufficient information *181 in the record to supportrejection on either of these grounds.

The possibility that the buffer zone between thehighway and the park may be added to the park,again creating a constructive use, is a legitimateconsideration in determining the prudence of thisalternative, although in this matter, it is not asufficient reason for rejection. As noted above, thepark has expanded to meet the boundary of theproject right-of-way. This situation was probably notcontemplated by either the drafters of the 4(f)statutes, or the Court in Overton Park, whichinvolved the proposed construction of a freewaythrough an important urban park. The removal ofland from banana production is also a permissibleconsideration, but not determinative.

On the other hand, the 4(f) statement does notdemonstrate that moving the freeway closer to theKoolau Pali Natural Landmark will have any adverseeffects. Further, an increase in construction costs of$6 million is probably not a cost of "extraordinarymagnitude". Finally, the fact that park noise levelswill be higher with the highway than without it isirrelevant in determining the prudence of analternative. I conclude that the Secretary could nothave reasonably determined, on the basis of theinformation before him at the time, that the MaukaRealignment was not "feasible and prudent".

I conclude that the Secretary properly found thatthere are no feasible and prudent alternatives to theuse of Ho'omaluhia Park. However, the Ho'omaluhiaPark 4(f) determination fails to establish that theSecretary selected the feasible and prudent alternativewhich minimizes harm to the park. Although it ispossible that because of its elevation the MaukaRealignment will have a greater visual impact uponthe park than will the recommended alignment, the4(f) statement does not adequately support theassertion that it would not minimize total harm tothe park. The Secretary's 4(f) determination musttherefore be set aside.

8. Planning to Minimize Harm.

(36) The forty-first cause of action alleges that:508. The Ho'omaluhia Park statement is deficientand fails to comply with the requirements of (23C.F.R. s 771.19(k) (1980)) in that the 4(f)statement does not contain the best availableinformation on possible measures to minimizeharm from H-3 to Ho'omaluhia Park both duringand after construction. (emphasis in original)

Complaint P 508 at 108.

Except to the extent that the 4(f) statement fails to

support the determination that the RecommendedAlignment is a harm-minimizing route, I find thatthe information contained in the 4(f) statement issufficient to meet the requirements of the citedregulation. More specific planning of mitigationmeasures will not be possible until the projectreaches the final design phase.

J. Section 4(f)-Pali Golf Course.

(37) In 1974, I held that the Secretary had properlymade the 4(f) determination for the use of Pali GolfCourse land. Stop H-3 Association v. Brinegar, 389F.Supp. at 1116. Pursuant to the instructions of theNinth Circuit, I now reconsider that decision.

Pali Golf Course is a 220 acre, 18 hole golf courselocated at the foot of the Nuuanu Pali Lookout. It isconsidered one of the most challenging publiccourses on the island and is heavily used. Thenortheast side of the golf course borders onKamehameha Highway.

As presently planned, the SE ramp of the Halekouinterchange and the acceleration lane connecting theSE ramp with Kamehameha Highway will necessitatethe acquisition of approximately four acres of golfcourse land at the northwest end of the course. Muchof the land to be acquired is subject to periodicflooding and is considered surplusage to the needs ofthe course. The Pali Golf 4(f) statement describedand discussed three alternatives to *182 therecommended action, and recommended that they berejected, as follows:

Alternate 1-shifting the Halekou Interchangenortherly into Hawaiian Electric Company'sKoolau Substation. This alternate was rejectedbecause it would involve costly adjustments toelectrical facilities, such as steel towers andhigh-tension lines. Such a shift would alsoencroach a great deal more into Hawaiian MemorialPark. Where our recommended location involvesunused property on a slope, a northerly shift wouldrun the highway through developed portions of thecemetery. It should also be noted that constructionis progressing on the segment of H-3 immediatelyto the east of Halekou interchange, and anyextensive realignment to Halekou Interchange willnecessitate construction changes. As mentionedbefore, the affected golf course properties arepresently unused, and realignment of HalekouInterchange will not provide any benefit to the golfcourse.Alternate 2-revising the interchange geometrics toprovide a loop off-ramp directly opposite the golfcourse on Hawaii Loa property. ... Such anarrangement will be more costly by approximately$145,000 and constitute a much greater

encroachment into Hawaii Loa College. Thisproposal is also objectionable from an operationalstandpoint because it would introduce anundesirable weaving section to KamehamehaHighway.Alternate 3-providing a T-intersection where the SEand SW Ramps meet Kamehameha Highway. Thisproposal has the advantage of eliminating theacceleration land onto Kamehameha Highway,thereby making the acquisition of golf course landalong the Kamehameha Highway frontageunnecessary. However, this alternate isoperationally unacceptable because theT-intersection will not have the capacity for theprojected 800 vehicles per hour of P.M. trafficdesiring to make a right turn onto KamehamehaHighway.

Pali Golf Course 4(f) statement at 5-6.

I find that the Secretary reasonably rejected alternatesone and three as not feasible and prudent. It isapparent that Alternate 1, the northward shift of theinterchange, would increase the project's impactsupon Ho'omaluhia Park. Thus, even if I did find thatthe reasons stated for the rejection of this proposalwere inadequate, I would conclude that thisalternative was not feasible and prudent. Moreover, Ifind that encroachment into the developed portions ofHawaiian Memorial Park is of sufficient importancethat rejection on this ground alone would have beenreasonable. With respect to Alternative 3, I find thatthe Secretary had enough information before him toconclude that a T-intersection would be operationallyunacceptable.

The Pali Golf Course 4(f) statement fails to supportthe rejection of Alternate 2, revised interchangegeometrics. $145,000 is not a cost of extraordinarymagnitude, especially in comparison to a total projectcost of over $386 million. While it may indeed beregrettable that this alternative will require the takingof property from Hawaii Loa College, there has beenno evidence that this taking would entail a disruptionof sufficient magnitude to render the alternativeimprudent. Finally, there has been no evidence thatto "introduce an undesirable weaving section toKamehameha Highway" is an unusual factorjustifying rejection of the alternative. Even taking allthree factors together, I find that on the basis of therecord before me, the Secretary could not havereasonably believed that this alternative is imprudent.

As with Ho'omaluhia Park, the inquiry does not endwith the determination that there are no feasiblealternatives to the use of the 4(f) property. TheSecretary must select the alternative which minimizesharm to the park. On the basis of the record beforeme, I cannot conclude that this has been done. The

Pali Golf Course 4(f) statement does not adequatelydescribe the relative impacts of the differentalternatives upon the Golf Course. Indeed, thestatement fails to even disclose the relative amountsof 4(f) land required. I conclude *183 that theSecretary's 4(f) determination for the Pali GolfCourse must be set aside.[FN35], [FN36]

FN35. I do not mean to imply that theSecretary may not reject Alternate 2. I onlyfind that the record contains insufficientinformation to support such a conclusion.

FN36. Because the Pali Golf Course 4(f)statement was prepared and originallyapproved prior to the adoption of theoriginal DOT 4(f) regulations, 23 C.F.R. s771.19 (1974), the statement need notcomply with the circulation and contentrequirements of the regulations.

VI. SUMMARY.

A brief summary of the disposition of the majorissues of this case is in order. I find that the 1972EIS and 1973 Preface, i.e., the Moanalua Valley EIS,complied with the requirements of NEPA, the CEQGuidelines and the DOT Regulations, and wereproperly approved. Thus, as of the end of the 1974trial of this matter, the project had a valid EIS.Defendants were required to prepare a supplementalEIS to reflect the realignment of the project throughNorth Halawa Valley. This has been done. TheNHV-SEIS was properly prepared and circulated, andadequately discusses the project's impact upon NorthHalawa Valley. As a whole, the EIS for the projectsufficiently addresses the project's socio-economicimpacts and relationship to the Oahu General Plan.However, defendants have failed to prepare a furthersupplemental EIS which reflects the new andsignificant information (such as the H-3/OMEGACollocation studies, the FHWA Region 9 StaffAnalysis and the highway's 4(f) involvement withHo'omaluhia Park), which has arisen since the draftNHV-SEIS was circulated.

Defendants properly held combined location anddesign hearings, timely filed the required studyreports, and complied with the Coastal ZoneManagement Act and OMB Circular A-95coordination requirements. Defendants have also mettheir responsibilities with respect to the Federal andState Endangered Species Acts.

The protections of section 4(f) apply to Ho'omaluhiaPark. The defendants properly coordinated andprepared the Ho'omaluhia Park 4(f) statement, butfailed to properly circulate it. The 4(f) statement

contains sufficient information to comply with 23C.F.R. s 771.19(i) and (k) (1980), and adequatelyconsiders non-highway alternatives. The Secretaryproperly concluded that no feasible and prudentalternatives exist to the use of the park. However,the 4(f) statement does not adequately support thefinding that all possible measures have been taken tominimize harm to the park. The Secretary'sdetermination is thus invalid.

The Secretary's Pali Golf Course 4(f) determinationis invalid because the record does not adequatelysupport the conclusion that all possible measureshave been taken to minimize harm to the golf course.

Because the defendants failed to further supplementthe EIS, and because the Secretary's Pali Golf Courseand Ho'omaluhia Park 4(f) determinations wereinvalid, I must set aside the Secretary's grant oflocation and design approval as an action takenwithout observance of procedure required by law.Administrative Procedure Act, 5 U.S.C. s 706(2)(D)(1977). See Save Lake Washington v. Frank, 641F.2d at 1334. Since the most recent location anddesign hearings were held more than three years ago,defendants must again hold such hearings beforelocation and design approval may be validly granted.See 23 C.F.R. ss 790.5(e), (f).

VII. RELIEF.

A court of equity has the power to terminate ormodify any injunctions that it has imposed. Theoriginal injunctions in this matter are nine and tenyears old. I find that circumstances have changedsufficiently to justify terminating those injunctionsand ordering new relief. At present, there are nooutstanding construction contracts for the project.Indeed, even if I were to give the "all clear" today,actual construction would not begin for at leasttwelve months. See Location/Design Study Reportat 12. Thus, little, if any, harm to the *184 publicwill result if the injunctions are lifted. Further, I donot share the opinion of many freeway opponents thatFederal and state highway department officials areevil people intent on ignoring the law. As stated inOverton Park, the decision of the Secretary is entitledto a presumption of regularity. See id. at 415, 91S.Ct. at 823. To require the defendants to receivecourt approval before proceeding would improperlyshift this presumption. Although it is certainlypossible that defendants may fail to comply withtheir statutory responsibilities at some point in thefuture, a determination whether an injunction shouldissue should be made at that time. Accordingly,

(1) I hereby set aside the injunctions presently inforce.

(2) I hereby deny Defendants' Motion forReconsideration.

(3) I hereby set aside the Secretary's grant of locationand design approval for the project.

(4) Defendants failure to prepare and circulate asupplemental EIS which reflects the project'sHo'omaluhia Park 4(f) involvement and theinformation contained in the H-3/OMEGACollocation Studies and FHWA Region 9 StaffAnalysis is a violation of NEPA, 40 C.F.R. s1502.9(c)(4) (1980), and 23 C.F.R. s 771.15 (1980).A supplemental EIS addressing these issues mayinclude other studies, such as those contained in Vol.VI of the NHV-SEIS, and other information.Further, the NHV-SEIS, Ho'omaluhia Park 4(f)statement and Region 9 Staff Analysis may be usedas a basis for the draft of this document. However,the role of consultants in the further development ofthe draft supplemental EIS is limited by 23 C.F.R. s771.109(c)(4) (1981).

(5) I hereby set aside the Secretary's Ho'omaluhiaPark 4(f) determination. The Ho'omaluhia Park 4(f)statement does not sufficiently discuss the relativeimpacts of the Recommended Alignment and theMauka Realignment upon the park. A revised 4(f)statement may reflect additional information aboutthe park which has become available since theoriginal statement was filed, and further discussalternatives other than the Mauka Realignment. Afterthe revised statement has been circulated andprocessed, a new 4(f) determination for Ho'omaluhiaPark will be made by the Secretary.

(6) I hereby remand the Pali Golf Course 4(f)determination to the Secretary for furtherdocumentation that no feasible and prudentalternatives exist to the use of the golf course landsand all possible measures to minimize harm to thegolf course have been taken.

The above constitute the findings of fact andconclusions of law required by Fed.R.Civ.P. 52.

SO ORDERED.