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BENTON FRANKLIN RIVERFRONT TRAILWAY & BRIDGE COMM.

October 21, 1981

The BENTON FRANKLIN RIVERFRONT TRAILWAY AND BRIDGE COMMITTEE, Plaintiff,
v.
Drew LEWIS, Individually and as Secretary of the United States Department of Transportation, City of Pasco, Washington, and City of Kennewick, Washington, Defendants



The opinion of the court was delivered by: QUACKENBUSH

MEMORANDUM OPINION

BACKGROUND

 This is an action for declaratory judgment that defendants have violated certain federal statutes. Plaintiff seeks to enjoin demolition of the Old Pasco-Kennewick Truss Bridge (hereinafter the "old bridge"), which was constructed in 1922 and crosses the Columbia River to connect the cities of Pasco and Kennewick, Washington. The old bridge is owned by the cities of Pasco and Kennewick.

 The facts are essentially undisputed. Early in the 1970's, area citizens sought replacement of the old bridge. Federal highway funds were made available under the National Bridge Replacement Program, 23 U.S.C. § 144 et seq. This statute required the Secretary of Transportation, in determining federal assistance, to "give consideration to those projects which will remove from service those highway bridges most in danger of failure."

 Pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C), draft and final environmental impact statements (DEIS and FEIS) were prepared and circulated, and in December of 1973, approved. The FEIS conclusion that the old bridge be demolished was based in part upon the United States Coast Guard's permit for the new bridge construction and the fact the cities did not want the expense of maintaining the old bridge. The old bridge was supported by fourteen (14) piers located across the Columbia River and the Coast Guard, as a condition of its approval required the removal of the old bridge and piers as "hazards to navigation". The new bridge and its supports was erected only 65 feet upstream from the old bridge.

 In 1978, erection of the new bridge was completed and opened to traffic. Shortly thereafter plaintiff citizens' group sought to include the old bridge in the National Register of Historic Places. In May of 1979, the bridge was declared eligible for inclusion on the Register. Hence, the requirements of the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq., were triggered. Section 470f requires federal agencies proposing to affect objects eligible for Register inclusion to afford the Advisory Council on Historic Preservation reasonable opportunity to comment.

 The comment process proceeded during 1979 and 1980 and a memorandum of agreement (MOA) was executed on September 15, 1980 by the Advisory Council, Washington State Historic Preservation Officer, and the Federal Highway Administration (FHWA). The pertinent parts of the MOA provided:

 
1. The FHWA would not approve funds to assist in demolition of the old bridge if a majority of the voters of the cities of Pasco and Kennewick voted against the demolition.
 
2. The Secretary of Transportation would conduct a review of the proposed demolition pursuant to Section 4(f) of the Department of Transportation Act, 49 U.S.C. 1653(f), to determine if a feasible and prudent alternative to the demolition of the old bridge existed. It was agreed that in the absence of a viable mechanism for maintenance and use of the old bridge, it was in the public interest to proceed with the demolition.

 Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) states in relevant part:

 
(f) It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development and Agriculture and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

 The combined vote by the citizens of both cities on September 16, 1980 was 67.5% to 32.5% in favor of demolition. On October 3, 1980, a draft 4(f) statement was circulated to Federal and State agencies as well as interested local citizens groups, including the plaintiff. The Department of Interior comments recommend the FHWA to engage in concerted federal and local planning for development of adaptive reuse of the old bridge. Following the comments from these parties, a final 4(f) determination was prepared in February, 1981, and forwarded to the FHWA Regional Federal Highway Administration who issued its final determination on March 10, 1981.

 The Administrator found none of the alternatives to be feasible and prudent. The bid for demolition was accepted by the cities, but upon agreement of the parties in open court execution has been delayed pending this court's determination of plaintiff's Motion for Preliminary Injunction. The hearing on plaintiff's Motion for Preliminary Injunction, held September 30, 1981, was by ...


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