1 / 19

2006 Conference Section 4(f)

2006 Conference Section 4(f). Lance Hanf, Senior Agency Counsel, HCC-WE, San Francisco 415-744-8272. APA – the Door to Sue. Final agency actions Arbitrary & capricious or unlawful Courts may not substitute their judgment for the agency’s. Deference to Agency. Introduction.

lance-suarez
Download Presentation

2006 Conference Section 4(f)

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 2006 Conference Section 4(f) • Lance Hanf, Senior Agency Counsel, HCC-WE, San Francisco • 415-744-8272

  2. APA – the Door to Sue • Final agency actions • Arbitrary & capricious or unlawful • Courts may not substitute their judgment for the agency’s. • Deference to Agency

  3. Introduction • New 4(f) Policy Paper • Major Area of concern • Three examples on picking alternatives

  4. 4(f) Flexibility • Moving away from the black box.

  5. Example One • Must choose the alternative the does not use 4(f) if there is a prudent and feasible alternative

  6. Example Two • If there are no prudent and feasible alternatives, need to use one one with the least net use after minimizing harm.

  7. NewExample Three • What happens when all the alternatives use 4(f), but there are other important non- 4(f) resources involved?

  8. Case Law • Four Cases from four difference circuits that held that in determining what is prudent, a totality of factors can add up to making an alternative not prudent.

  9. The Cases • Hickory Neighborhood Defense League v. Skinner, 910 F.2d 159 (4th Cir. 1990)

  10. Louisiana Env. Society v. Dole,707 F.2d 116 (5th 1983)

  11. Eagle Foundation v. Dole, 813 F.2d 798 (7th Cir. 1987)

  12. Committee to Preserve Boomer Lake Park v. Skinner, 4 F.3d 1543 (10th Cir. 1993)

  13. Must start with strong presumption against using 4(f) • Create record of why it is not prudent. • Get other resource agencies to support. • Make a conclusion based on that.

  14. Totality • Adding up the items that in and of themselves would not make it imprudent.

  15. Prudent Test Balancing factors Are there other factors that make the least net harm not prudent?

  16. FHWA Judgment • A prudent judgment by an agency is one that takes into account everything important that matters. A cumulation of small problems may add up to a sufficient reason to use 4(f) lands

  17. 4(f) Problems • Substantive statute (less deference) • Not reviewing feasible and prudent w/ EA • Not providing basis for eliminating alternatives (extraordinary factors) • Not doing Statement • Not doing all possible planning to mitigate harm

  18. Use your lawyers • Difficult area. • Work as a team. • Use when you really need.

  19. Help is on the way! • New statutory programs • New policy paper • New understanding

More Related