SIERRA CLUB v. DEPARTMENT OF TRANSP.

Nos. 90-15751, 90-15754, 90-15826.

948 F.2d 568 (1991)

SIERRA CLUB, a California non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration; Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration, Defendants-Appellants, and California Department of Transportation, an agency of the State of California, et al., Defendants. SIERRA CLUB, a California non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association; Tyler Ahlgren; Dana Denman, Plaintiffs-Appellees, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration; Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration, Defendants, and California Department of Transportation, an agency of the State of California, California Transportation Commission, Joe Levy, Defendants-Appellants. SIERRA CLUB, a non-profit corporation; Committee for Green Foothills, a non-profit corporation; Committee for the Permanent Repair of Highway One, an unincorporated association, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Elizabeth Dole, in her official capacity as Secretary of the U.S. Department of Transportation; Federal Highway Administration, Ray A. Barnhart, in his official capacity as Administrator of the Federal Highway Administration; California Department of Transportation, an agency of the State of California, et al., Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided October 30, 1991.


Attorney(s) appearing for the Case

Martin Matzen, U.S. Dept. of Justice, Washington, D.C. and Norval Fairman, San Francisco, Cal., for defendants-appellants, defendants-appellees.

Robert M. Teets, Jr. and Maribeth Halloran, Alan Moss, San Francisco, Cal., for plaintiffs-appellees.

Christine Motley, Deputy County Counsel, Redwood City, Cal., for amicus.

Before CHOY, ALARCON and T.G. NELSON, Circuit Judges.


CHOY, Circuit Judge:

In this case we decide that a road does not "constructively use" a park if the road and park were jointly planned.

I. Factual and Procedural Background

The history of this case is long and complicated. The district court's published opinion, Sierra Club v. United States Department of Transportation, 695 F.Supp. 460 (N.D.Cal.1988), contains...

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