February 2023 - Parks & Recreation - 30

LAW REVIEW
Section 4(f), the federal district
court, therefore, refused " to weigh
in on what is fundamentally a policy
disagreement between the plaintiffs
and the defendants about how
much Section 4(f) access to provide
and in what form. "
Land and Water
Conservation Fund Act
The federal district court then addressed
the alleged violation of
Section 6(f) of the LWCF. As cited
by the federal district court, Section
6(f) of the LWCF requires an
area has been funded with LWCF
assistance " must be continually
maintained
in
public
recreation
use unless National Park Service
(NPS) approves substitution property
of reasonably equivalent usefulness
and location and of at least
equal fair market value. " 36 C.F.R.
§ 59.3; 54 U.S.C. § 200305(f)(3).
In their complaint, plaintiffs had
identified one area funded with
LWCF assistance,
Barnesfield
Park. Plaintiffs alleged " NPS never
approved the as-built bridge in connection
with the use of this Section
6(f) land. " However, under the
Re-evaluation, the federal district
court noted " the redesigned bridge
would be built without taking Section
6(f) property. " Due to the redesign
of the Project, the court,
therefore, held " compliance with
the Land and Water Conservation
Act is no longer required. "
The plaintiffs, however, argued
" defendants' removal of Section
6(f) considerations
Re-evaluation "
failed
from their
to comply
with " the point of Section 6(f),
which is
to ensure quality and
public access to LWCF for future
generations. " In the opinion of the
federal district court, this failed ar30
Parks & Recreation | FEBR U AR Y 2 0 2 3
gument ignored the following " important
fact " :
The Historic Nice Bridge provided
no access to Section 6(f)
properties, for either cyclists or pedestrians.
The new bridge provides
more access for cyclists. Moreover,
it avoids taking any Section 6(f)
property whatsoever, which the
plaintiffs' preferred 2012 design
would do.
Absent a violation Section 6(f)
by " reducing access from what previously
existed, " the federal district
court reiterated its refusal to " wade
into policy disagreements between
the plaintiffs and the defendants regarding
what access to Section 6(f)
properties should look like. "
National Environmental
Policy Act
The plaintiffs also had claimed a violation
of NEPA based upon an alleged
failure to adequately consider
" the human and environmental impacts
of the decision to remove the
separated bike/ped path from the
new bridge. "
As cited by the federal district
court, NEPA requires federal agencies
to " take a 'hard look' at the potential
environmental consequences
of their actions. " The requisite
" hard look " under NEPA takes the
form of an Environmental Impact
Statement (EIS) for " every recommendation
or report on proposals
for major Federal actions significantly
affecting the quality of the
human environment. " When a
project is not likely to have significant
effects or the significance of
its effects is unknown, federal agencies
must draft an EA. The EA is
designed to determine whether to
prepare an EIS or issue a FONSI.
When an agency " makes sub|
PARK S ANDRECRE AT ION . OR G
stantial changes to the proposed
action that are relevant to environmental
concerns, " further environmental
review may be required in
the form of a supplemental environmental
impact statement. In the
alternative, a FONSI would suffice
" when an environmental assessment
indicates relevant environmental
concerns are not significant
enough to require a supplement. "
In assessing NEPA claims, the
federal district
acknowledged it
would not " second-guess agency
decisions, so long as the agency
has given a hard look at the environmental
impacts of its proposed
action " :
As long as the adverse environmental
effects of a proposed action
are sufficiently identified and evaluated,
an agency is vested with discretion
to determine under NEPA
that other values outweigh the
environmental costs. NEPA, therefore,
merely prohibits uninformed
rather than unwise agency action.
In this particular instance, the
federal district court found plaintiffs
had failed to articulate " how
the removal of the bike/ped path
impacts the areas with which
NEPA is concerned in a way that
was not addressed in the 2019
Re-evaluation " :
The 2019 Re-evaluation conducted
a thorough evaluation of
the impacts of the current bridge
design, including a protected bike
path option - that is, the option
to have either a protected bike/ped
path or shared bicycle lanes.
As characterized by the
" comprehensively
federal
district court, the 2019 Reevaluation
assessed
the environmental impacts
of the bridge design changes since
the 2012 FONSI, " summarizing
February 2023 - Parks & Recreation

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