Stop H-3 Assoc. v. Dole (II)

870 F.2d 1419 (9th Cir. 1989)


Plaintiff-Appellants’ Attorney:

  1. Stop H-3 Association, a Hawaiian non-profit corporation
  2. Life of the Land, a Hawaiian non-profit corporation
  3. Hui Malama Aina O Ko‘olau
  1. Boyce R. Brown, Jr., Johnston & Day, Honolulu, Hawai‘i



Defendant-Appellees’ Attorneys:

  1. Elizabeth Dole, Secretary of the United States Department of Transportation
  2. William Lake, Hawai‘i Division Engineer, Federal Highways Administration
  3. Edward Hirata, Director of the Department of Transportation of the State of Hawai‘i
  1. Kathryn A. Oberly, Special Deputy Atty. General, State of Hawai‘i
  2. Mayer, Brown & Platt, Washington, D.C.



United States Court of Appeals for the Ninth Circuit

Opinion by:

Judge Pregerson

Other Jurists:

Court Below:

  • Schroeder
  • Brunetti

United States District Court for the District of Hawai‘i

Key laws involved:

·        National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (1976 & Supp. V 1981) (NEPA)

·        Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982) (ESA)

·        Department of Transportation Act of 1966, 49 U.S.C. § 303 (1976 & Supp. V 1981) (DOTA)*

·        Federal-Aid Highway Act of 1966, 23 U.S.C. § 138 (1982) (FAHA)*

*  referred to as Section 4(f)


  1. The appellants appealed the district court’s decision to lift a previous injunction barring the construction of the H-3 highway (see Stop H-3 v. Dole, 740 F.2d 1442 (9th Cir. 1984) for prior case history).  The appellants also sought the re-imposition of the injunction based on violations of the Spending Clause, the Due Process Clause, and various other statutes.
  2. The appellants claimed that the appellees had not complied with the terms of the previous injunction, stating that the Court must determine the adequacy of a third Supplemental Environmental Impact Statement (SEIS).  In accordance with the previous injunction, the appellees prepared a SEIS in 1980 as directed by the Court to adequately discuss the project’s impact on Moanalua Valley.  The Court held that the SEIS was sufficient, but since it was two years old, the Court directed the appellees to conduct a second SEIS.  The Court reasoned that too much time had passed to reflect “new and significant” information that arose from the first SEIS.  The appellees prepared a second SEIS that was subsequently approved by the Federal Highway Administration (FHA) in 1982.  Based on this approval, the Secretary of Transportation granted new location and design approvals for the H-3 project—approvals that were never challenged by the appellants.
  3. The appellants challenged the Court’s 1982 decision; however that decision, with respect to the adequacy of the 1980 EIS, was affirmed by the Ninth Circuit Court of Appeals in 1984.  In that same case, the Court chose to reverse the district court’s conclusion that the Secretary complied with Section 4(f) of the DOTA, 49 U.S.C. § 1653(f) and Section 18 of FAHA, 23 U.S.C. § 138 (hereafter Section 4(f)).  After the 1984 Court of Appeal’s decision, the only obstacles blocking the H-3 construction were the compliance of Section 4(f) and the district court’s approval of the final EIS.  On October 18, 1986, President Reagan signed Public Law No. 99-500, 100 Stat. 1783 ordering the Secretary to approve the construction of H-3 (Section 114).  The Court held that this law was obviously intended to exempt the H-3 project from the requirements of Section 4(f) and that the approval of the final EIS was the only obligation left.
  4. After Section 114’s enactment, the appellees conducted a third EIS in accordance with 23 C.F.R. 771.129(c)(2), requiring a reevaluation when major steps to advance a project have not occurred within three years after the approval of a final EIS.  A draft of the third EIS was made available to the public, and the FHA Division Administrator approved the construction work pending the completion of the third EIS.  The appellees filed a motion to dismiss this action on the basis that the 1982 SEIS satisfied the requirements of NEPA and the district court’s 1982 decision.  The appellees further argued that all other issues remaining in litigation were void after the passage of Section 114.  The district court granted appellees motion to dismiss because the adequacy of the final SEIS (1982) had been determined by the court and “the formal reevaluation and subsequent preparation of the Third SEIS does not change the status of the Final EIS approved in 1982.”  The district court concluded that since the passage of Section 114 rendered all other issues moot, there was no basis to prevent construction of H-3.  The Court of Appeals AFFIRMED the district court’s ruling that the adequacy of the 1982 SEIS was never challenged by the appellants, and therefore properly concluded that the 1982 EIS was “final” and “adequate.” 
  5. The appellants argue that exempting H-3 from the requirements of Section 4(f) exceeds Congress’ power under the Spending Clause of the Constitution.  They claim Section 114 violates the Constitution because the clause only allows for expenditures for “national” purposes and the H-3 project is a local purpose.  The Court held that H-3 serves a national purpose because it functions as an important defense utility since it is designed in part to connect the military bases on the island.  Furthermore, Congress declared prompt completion of the entire Interstate System as a matter of national importance whether or not the highways were between states or within them.  The Court concluded that since Congress’ statement in Section 101(b) of the Federal-Aid Highways Act distinctly shows the completion of highways as a national importance, any spending to implement Section 114 will promote the general welfare.
  6. The appellants also argued that Section 114 violates the Equal Protection Clause of the Fifth Amendment.  They claimed that legislation that may allegedly harm the environment should be subjected to heightened judicial scrutiny because the right to a healthy environment is an important individual right. When Congress enacted Section 114, it discriminated against an individual right of the citizens of Hawai‘i.  The appellants argued that Section 114 violates the Constitution even using a minimum scrutiny standard because it created an arbitrary classification by denying residents of Hawai‘i the environmental protections provided by the Section 4(f) statute.  However, the district court rejected that argument because no court has yet to find a fundamental right to a healthy environment (therefore the heightened judicial scrutiny of Section 114 was inappropriate).  The district court also determined that Congress had a rational basis to enact Section 114 on account of the time delays and rising costs of the project.
  7. The Ninth Circuit Court of Appeals AFFIRMED the district court’s decision in regards to the Equal Protection Clause.  While the appellants maintained that Congress singled out Hawai‘i and its citizens for “unique and onerous” treatment by enacting Section 114, the court pointed out that section does not single out Hawai‘i from the other 49 states.  Section 114 applied only to the H-3 project and not to all federal highway construction.  Furthermore, Section 114 does not affect the state as a whole because it does not affect many of the residents on the other islands, and even some of the residents on Oahu do not feel its effects.  In addition, the court noted that all United States citizens who use and enjoy Hawai‘i’s environment are affected no matter what state they may reside in.  Therefore, depicting citizens of Hawai‘i as a disadvantaged class of people for the purposes of Equal Protection analysis is improper. The Court also mentioned that the appellants failed to show that Congress was motivated by discriminatory animus against Hawai‘i or its citizens when it enacted Section 114.  Instead, the enactment of Section 114 does not violate the appellants’ Equal Protection rights because it is substantially related to the achievement of important governmental purposes.
  8. The appellants contended that Congress overstepped its bounds by enacting Section 114 because the authority to execute laws belongs to the Executive Branch.  They claim that the enactment of Section 114 took away the Secretary’s control over the execution of the 4(f) statute because it ordered the Secretary to approve the H-3 project.  They also claimed that the enactment of Section 114 amounted to performance of a judicial function, but this claim was dismissed because Congress did not strip the Court of its jurisdiction over Section 4(f) compliance cases, instead it made Section 4(f) irrelevant to the case at hand.  The Court held that enacting legislation to exempt a project from statutory requirement was not an “execution” of law because it does not interpret Section 4(f), it only exempts H-3 from the statute.  Therefore the court AFFIRMED the ruling by the district court and removed the injunction.