OBJECTIVES
This portion of the document will acquaint you, briefly, with the legal
process associated with Section 4(f), and the history of the Overton
Park case. When you have finished, you should have a basic overview
of Section 4(f) litigation and an understanding of the important role
evaluations play in the legal process.
EVALUATIONS
The importance of developing legally sufficient Section 4(f) evaluations
cannot be underestimated when you consider the following facts:
Given Section 4(f)'s active legal history, it is not surprising that
many of the Federal
Highway Administration (FHWA) policies concerning the statute were
developed in response to court rulings. Among these policies is a requirement
for solid documentation to support findings of no feasible
and prudent alternatives (see explanation
on Avoidance & Minimization page) and to demonstrate all possible
planning to minimize harm (see explanation
on Avoidance & Minimization page).
Other FHWA policies that developed as a result of court rulings include
the stipulation that all Section 4(f) evaluations receive legal review
and concurrence by the Chief Counsel's office. This office has attorneys
in each of the four FHWA resource centers. A concurrence is normally
issued by an attorney at the resource center serving the division office
where the project is located.
LITIGATION
If a project's compliance with Section 4(f) is challenged, the case
is litigated by the U.S. Department of Justice and the FHWA in a federal
district court. Every state, and the District of Columbia, has at least
one federal district court. If a court ruling is appealed at this level,
the case goes to one of twelve federal circuit courts of appeal.
Note that a published decision by a circuit court of appeals is binding
on all future cases in the district courts of that circuit. In a few
instances, various circuit courts of appeal have interpreted Section
4(f) in different ways. This means that the Section 4(f) requirements
for highway projects sometimes vary, depending on what state the project
is in. For this reason, when it is apparent that Section 4(f) litigation
is likely, the FHWA Chief Counsel's Office strongly recommends that
legal advice be sought early in project development—before an alternative
is selected—so assistance can be provided to ensure an adequate
administrative record of the decision-making process and a defensible
decision.
If a federal circuit court of appeal's ruling is further appealed,
the case goes on to the U.S. Supreme Court, but only when it chooses
to hear the case. The Supreme Court has ruled on Section 4(f) only once,
in the 1971 case Citizens to Preserve Overton Park v. Volpe. See Overton
Park for a comprehensive discussion of an actual case.
