Stop H-3 Association, and Hui Malama Aina O Ko'olau v. William T. Coleman, Jr., as Secretary of the United States Department of Transportation

The Moanalua Valley, a beauteous natural wonder that many believe to be of great significance in Hawaiian history,1 lies on Hawaii's Island of Oahu, directly in the path of a proposed Interstate Highway called H-3. The principal issue on this appeal is whether Moanalua qualifies for protection as an "historic site of . . . State, or local significance" under section 4(f) of the Department of Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f) (1970), and section 18 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970). (Both statutes, which are essentially identical, are hereinafter referred to simply as "section 4(f)".2) Relying on a published determination by the Secretary of the Interior that Moanalua is eligible for inclusion in the National Register of Historic Places, the appellants3 contend that section 4(f) applies. The appellees,4 who rely primarily on a determination by Hawaii State officials that Moanalua is only of "marginal" historic significance, argue that section 4(f) is inapplicable to the routing of H-3 through the Valley. Agreeing with the appellees, the District Court dissolved the injunctions that it had previously entered against construction of the highway.5 Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974). We reverse.

Public interest in preservation of the physical reminders of our Nation's past has prompted Congress to implement a strong national policy in favor of historic preservation. See 16 U.S.C. §§ 461, 470; 23 U.S.C. § 138; 49 U.S.C. § 1653(f) (1970). In section 4(f), Congress has determined that historic preservation should be given major consideration in connection with all proposed highway construction programs that are to receive financial aid from the federal government. The statute provides, in declaring national policy, that " . . . special effort should be made to preserve . . . historic sites." The statute further provides that before the Secretary of Transportation (hereinafter "the Secretary") may approve the use of Federal funds for a highway that will "use" land from " . . . an historic site of national, State, or local significance as so determined by (the Federal, State, or local officials having jurisdiction thereof)," he must determine that no "feasible and prudent" alternative route exists. If there is no "feasible and prudent" alternative, the Secretary may approve the project only if there has been " . . . all possible planning to minimize harm . . . " to the historic site. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 821, 28 L.Ed.2d 136, 150 (1971). The requirements are stringent. Congress clearly reflected its intent that there shall no longer be reckless, ill-considered, wanton desecration of natural sites significantly related to our country's heritage.

As one step toward implementing the national policy in furtherance of historic preservation, Congress, in the National Historic Preservation Act of 1966 (hereinafter "the NHPA"), 16 U.S.C. §§ 470 et seq. (1970), authorized the Secretary of the Interior

to expand and maintain a national register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture, hereinafter referred to as the National Register . . . .

16 U.S.C. § 470a(a)(1) (1970). The National Register, which includes properties of State and local, as well as national, historic significance, is intended to provide a " . . . convenient guide to properties which should be preserved . . . ." H.R.Rep.No.1916, 89th Cong., 2d Sess., reproduced at 1966 U.S.Code Cong. & Admin.News pp. 3307, 3310. In the NHPA, Congress also created the Advisory Council on Historic Preservation (hereinafter "the Advisory Council"), which is composed of the head officials of certain Federal agencies and other persons, appointed by the President, who have experience and interests in the field of historic preservation. 16 U.S.C. § 470i (1970). The Advisory Council is responsible for coordinating the historic preservation efforts of Federal agencies, state governments, and other organizations, and for making recommendations on matters pertaining to the protection and preservation of historic sites. 16 U.S.C. § 470j (1970).

To facilitate the identification of properties of State and local historic significance that qualify for inclusion in the National Register, the Secretary of the Interior has established certain "National Register Criteria." These Criteria broadly provide, in pertinent part, as follows:

The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:

(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(2) That are associated with the lives of persons significant in our past; or

(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(4) That have yielded, or may be likely to yield, information important in prehistory or history.

36 C.F.R. § 800.10 (1975).

As defined in 36 C.F.R. § 800.3(f) (1975), the phrase "property eligible for inclusion in the National Register" means "any district, site, building, structure, or object which the Secretary of the Interior determines is likely to meet the National Register Criteria." For the purposes of NHPA, the regulations place property that is eligible for inclusion in the National Register on an equal footing with property that is actually listed in the Register. See 36 C.F.R. §§ 800.4(a)-(b) (1975).

As planned, H-3 would constitute the third and final segment of Hawaii's Interstate Highway System. It would be a six-lane, controlled-access highway extending for approximately fifteen miles across the southern half of Oahu, from near Pearl Harbor, on the Island's leeward side, across the Koolau Mountains, to the Kaneohe Marine Corps Air Station, on the windward side. Two conventional highways, the Pali and Likelike Highways, now provide trans-Koolau routes, but according to some official projections, these highways will soon be inadequate to serve the growing population on Oahu's windward side. The Moanalua Valley, which is privately owned, lies within Oahu's interior. H-3's projected route extends for approximately three miles along Moanalua's narrow floor. Within Moanalua, H-3 would pass from within 100 to 200 feet of a large petroglyph rock that is known as Pohaku ka Luahine.6

In March, 1973, the Moanalua Gardens Foundation, a private, non-profit organization that is interested in Moanalua's preservation, nominated both the Valley and Pohaku ka Luahine for inclusion in the National Register. On July 23, 1973, the Interior Secretary named Pohaku ka Luahine to the National Register. 39 Fed.Reg. 6402, 6422 (1974). In October of 1973, the Interior Secretary's Advisory Board on National Parks, Historic Sites, Buildings and Monuments considered the historic significance of Moanalua Valley. The Board noted that much of the information concerning Moanalua's importance existed only within the private notebooks of oral traditions about the Valley that had been kept by the Valley's former owner, Gertrude Damon, and that since the Damon notebooks had never been released by the Damon estate, they had never been subjected to rigorous scrutiny. Consequently, while the Board believed that Moanalua had not been conclusively demonstrated to be of national historic significance, it concluded that "(h)istorical, cultural, and natural values combined with outstanding potential for an environmental study area endow Moanalua Valley with an importance that makes its preservation clearly in the public interest."7

On May 8, 1974, the Interior Secretary published a Notice in the Federal Register that Moanalua, along with a number of other properties,

may be eligible for inclusion in the National Register of Historic Places and are therefore entitled to protection under section 1(3) and section 2(b) of Executive Order 11593 and other applicable Federal legislation.

39 Fed.Reg. 16175-76 (1974).8 Explaining his decision, then Interior Secretary Morton wrote in a letter to the Governor of Hawaii that while Moanalua was not of national historic significance, the Valley "possessed historical and cultural values of at least local dimensions and, therefore, could meet the less stringent criteria of the National Register for sites of local significance."9

Thereafter, however, on August 5, 1974, the Hawaii Historic Places Review Board, a State body responsible for evaluating and nominating Hawaiian properties for inclusion in the National Register and for maintaining the Hawaii Register of Historic Places,10 met concerning Moanalua and determined that the Valley was only of "marginal" local significance,11 a classification that affords the Valley no protection from destruction.

Since Pohaku ka Luahine had already been named to the National Register, the Federal Highway Administrator, in compliance with 36 C.F.R. § 800.4 (1975), requested the Advisory Council on Historic Preservation to comment concerning H-3's potential impact on the petroglyph rock. The Advisory Council met on August 6th and 7th, 1974. Because the Interior Secretary had recently determined that Moanalua was eligible for inclusion in the National Register, the Council broadened its review of H-3 from that requested by the Federal Highway Administrator to include the highway's potential impact on the Valley. The Advisory Council's report, copies of which were furnished to the Secretary of Transportation and to the Secretary of the Interior, concluded that both Pohaku ka Luahine and the Moanalua Valley possessed "historical, cultural, and archeological significance warranting their preservation."

Notwithstanding the Advisory Council's report and the Interior Secretary's published determination that Moanalua "may be eligible" for inclusion in the National Register, the Secretary of Transportation concluded, in September of 1974, that ". . . the Valley does not come under the provisions of Section 4(f)."12

The District Court did not dispute the significance attached by the regulations to property that is eligible for inclusion in the National Register. The court wrote:

(D)etermination by the secretary of interior that a property is eligible for inclusion in the National Register triggers all protections given to a property actually included until the eligibility is resolved.

389 F.Supp. at 1117. The court believed, however, that the Interior Secretary's May 8, 1974, Federal Register Notice, which stated that Moanalua "may be eligible" for inclusion in the Register, was not equivalent to a determination that the Valley "is eligible." We cannot accept this purported distinction.

As noted above, the regulations define "eligible for inclusion" in the National Register as meaning "likely to meet the National Register Criteria." We are absolutely unable to perceive any meaningful distinction between "may be eligible" and "is likely to meet the criteria" for inclusion in the National Register. Furthermore, in his Federal Register Notice, the Interior Secretary specifically stated that the "may be eligible" designation entitled the listed properties to protection under the relevant Executive Order and "other applicable Federal legislation." This is the same protection that is provided under an "is eligible" determination. Finally, subsequent to the District Court's decision in this case, the Interior Secretary has resolved any remaining doubts by publishing a new Federal Register Notice concerning Moanalua. This Notice specifically states that the Valley has been determined "to be eligible for inclusion in the National Register." 40 Fed.Reg. 23906-07 (1975).

The District Court also concluded, and the appellees here contend, that since the Interior Secretary specifically determined Moanalua not to be of national historic significance, the question whether the Valley is significant in State or local history should be resolved solely by the Hawaii Historic Places Review Board. As previously noted, that Board has classified the Valley as being of only "marginal" historic significance. In our view, the District Court and the appellees have misconstrued section 4(f).

Section 4(f) applies to all properties that "the Federal, State, or local officials having jurisdiction thereof" determine to be of "national, State, or local significance." Under the NHPA, the Interior Secretary's " jurisdiction" to determine historic significance is not limited to properties of national importance.13 In defining the National Register, the NHPA speaks in terms of properties "significant in American history, architecture, archeology, and culture," 16 U.S.C. § 470a(a)(1) (1970). To us, it appears beyond dispute that such significance can be found in properties that relate only to the history of a particular region, state, or locality. See 36 C.F.R. § 800.10 (1975); H.R.No.1916, 89th Cong., 2d Sess. (1966) reproduced at 1966 U.S.Code Cong. & Admin.News, p. 3307. Since the Interior Secretary is the only official authorized to name properties to the National Register, we have no doubt that he has "jurisdiction" to determine whether properties have state or local historic significance.

Under section 4(f)'s disjunctive language, if any of the officials having jurisdiction to determine that a site has national, State, or local historic significance, so decides then section 4(f) applies. Consequently, the Interior Secretary's determination that Moanalua is eligible for inclusion on the National Register as a site of local historic importance is not vitiated, and cannot be vitiated, by the State Review Board's finding that the Valley has only "marginal" significance. See Named Individual Members v. Texas Highway Dept., 446 F.2d 1013, 1025-27 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972) (section 4(f) applicable even though city officials had determined that city-owned parkland was of "secondary" importance to the construction of a freeway).14

In our court, the appellees have advanced three additional arguments which, if correct, might serve to validate the Transportation Secretary's decision that section 4(f) does not apply to the Moanalua Valley. First, taking a position different from that adopted by the District Court, the appellees assert that, even though the Secretary of the Interior may have determined Moanalua to be eligible for inclusion in the National Register, that determination does not constitute a finding of Moanalua's "historic significance" for the purposes of section 4(f). Appellees argue that section 4(f)'s application is narrowly restricted to properties that are actually included in the National Register or perhaps a similar state or local compilation of historic sites. We disagree.15 In our view, the Interior Secretary's determination that Moanalua "is likely to meet" the established National Register Criteria constitutes a finding that the Valley has historic significance. A contrary conclusion would exalt form and ignore substance.

In making this argument, appellees rely on two paragraphs of a letter written by former Interior Secretary Morton concerning his determination that Moanalua is eligible for inclusion in the National Register. Secretary Morton wrote that his determination of Moanalua's eligibility for listing in the Register did not trigger the requirements of section 2(b) of Executive Order 11593 and that the Department of Transportation remained ". . . solely responsible for determining which provisions, if any, of the . . . Department of Transportation Act . . . are applicable" to H-3.16 We do not interpret Secretary Morton's letter as broadly as do the appellees. Section 2(b) of Executive Order 11593 establishes special requirements for the protection of historic sites that are located on lands owned by the United States. Since Moanalua is privately owned, the section, under its own terms, does not apply. Furthermore, there is no question that, as Secretary Morton stated, the Secretary of Transportation, not the Secretary of the Interior, is responsible for making the initial determination whether section 4(f) applies to a particular highway project.17 In making that determination, however, the Transportation Secretary must ascertain whether the project will use land from a site of historic significance, as determined by the Interior Secretary, or state or local historic preservation officials. Moreover, as here, the Transportation Secretary's decision is subject to judicial review.

Appellees next assert that the Interior Secretary's determination that Moanalua is eligible for inclusion in the National Register is invalid because the determination was not made in accordance with the procedures set forth in 36 C.F.R. § 800.4(a)(2) (1975). In pertinent part, that regulation reads:

If (the Federal) Agency Official (responsible for a specific project) determines that a property (that will be adversely affected by the project) appears to meet the (National Register) Criteria, or if it is questionable whether the Criteria are met, the Agency Official shall request, in writing, an opinion from the Secretary of the Interior respecting the property's eligibility for inclusion in the National Register. The Secretary of the Interior's opinion . .. shall be conclusive for the purposes of these procedures.

Appellees contend that, since the Secretary of Transportation, who was the agency official responsible for H-3, did not request the Interior Secretary to determine whether Moanalua was eligible for inclusion in the National Register, the Interior Secretary had no authority to make such a determination.

Initially, we note that in making this argument appellees expose their own hands, some of which are not wholly clean. The regulation expressly and unambiguously provides that "if it is questionable" whether a property meets the National Register Criteria, the responsible agency official shall request the Interior Secretary's opinion. It is manifest that throughout 1974 it was at least "questionable" whether Moanalua was eligible for the National Register. The Valley had been nominated for the Register as early as March, 1973, and in 1974, the Valley was the subject of studies by the Advisory Council and the State's historic review board. On May 8, 1974, the Interior Secretary published an official notice that the Valley "may be eligible" for the National Register. The Transportation Secretary here seeks to avoid the effects of his own, wholly inexcusable, noncompliance with the regulation.

Furthermore, we find nothing in NHPA or the implementing regulations that would preclude the Interior Secretary from determining, on his own initiative, whether a property is eligible for inclusion in the National Register. Such could prove to be one of his most important and enduring contributions. The procedures set forth in 36 C.F.R. § 800.4 (1975) apply only to the special situation wherein a property not previously evaluated in the light of the National Register Criteria, is in imminent danger of alteration or destruction because of an on-going or proposed Federal project. Here, before the Interior Secretary acted, Moanalua had been nominated for inclusion in the Register by the Moanalua Gardens Foundation and had been studied by the Secretary's Advisory Board on National Parks, Historic Sites, Buildings, and Monuments. We believe that the Interior Secretary's determination was well within his power under the Congressional authorization conferred by the NHPA.

Finally, appellees have suggested that the Transportation Secretary's review and approval of the Environmental Impact Statement (EIS) pertaining to H-3, which includes some material concerning Moanalua's historic significance, as well as discussions of several alternatives to H-3's proposed route through the Moanalua Valley,18 constitutes compliance with section 4(f). Section 4(f) does not require the Transportation Secretary to set forth specific findings and reasons for approving a project that will use land from parks or historic sites.19 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417-19, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 154 (1971). Nevertheless, a court reviewing the Secretary's 4(f) decision must satisfy itself that the Secretary evaluated the highway project with the mandates of section 4(f) clearly in mind. Id. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 154. On the administrative record, the Secretary's consistent position was not that he had complied with section 4(f) but that the statute was altogether inapplicable. In the light of that consistently recorded position, it is not possible, with factual accuracy, to conclude that the Secretary evaluated H-3 with the explicit directives of 4(f) firmly in mind. Furthermore, we note that the EIS provides no evidence that the Secretary complied with section 4(f). While the document does contain some discussion of the advantages and disadvantages of several alternatives to H-3, as the roadway is now planned, the analyses do not attempt to demonstrate, or purport to establish, that each of the alternatives is not "feasible or prudent," as those terms are defined within the context of section 4(f). Id. at 411-13, 91 S.Ct. at 821, 36 L.Ed.2d at 150.

We conclude that the Secretary of the Interior has determined Moanalua to be eligible for inclusion in the National Register of Historic Places and that this determination entitles the Valley to the protections Congress has established for historic sites in section 4(f). We further conclude that the Secretary of Transportation did not comply with the requirements of section 4(f) before he approved Federal funding for H-3.

Appellants contend that the Secretary also failed to comply with section 4(f) with respect to Pohaku ka Luahine, which, as we have heretofore noted, is included in the National Register. Because the petroglyph rock has once been moved and now rests a short distance from its original location, the District Court concluded that the rock, and its present surroundings, do not constitute an "historic site" for the purposes of section 4(f). 389 F.Supp. at 1116.

After careful consideration, we cannot escape the conclusion that Pohaku ka Luahine, and its immediate environs, qualify for protection under section 4(f). It is clear that the rock was originally located in the Valley, and it is inseparably linked to historic events that there occurred long since. Consequently, so long as the rock remains in the Valley, even though it may stand a few feet from its original location, we believe that it forms the basis for an historic site. Further, we believe that H-3, which will pass near the rock, will "use" land from that historic site. See Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (a proposed highway that would encircle a public campground would "use" that campground).

In the particular circumstances of this case, however, Pohaku ka Luahine's fate, like its historic significance, is linked to that of the Moanalua Valley. If the Secretary validly determines that there is no "feasible and prudent" alternative to the alleged desecration of the Valley, there will be no such alternative to the use of the petroglyph rock. Consequently, if the Secretary makes such a determination, the 4(f) inquiry with respect to the rock must be whether there has been "all possible planning to minimize harm."

Appellants have presented three other issues to us. They contend that the EIS for H-3 and the 4(f) statement pertaining to the Pali Golf Course are inadequate and that the H-3 project is not grounded in a continuing comprehensive State and local transportation planning process, as is required by 23 U.S.C. § 134(a) (1970). Because of our decision as to Moanalua Valley and Pohaku ka Luahine, we believe that we should not consider these issues at this time. It is altogether possible that future developments will moot these issues. In the event that the Secretary does conclude that there is no "feasible and prudent" alternative to the routing of a multi-lane highway through Moanalua, the District Court will reconsider that conclusion and these other issues in the light of all information that will then be available.

The District Court's Order dissolving the injunctions against construction of H-3 is reversed. On remand, the District Court will enjoin construction of the highway until such time that the Secretary can demonstrate his full compliance with section 4(f) as the statute applies to Moanalua Valley and Pohaku ka Luahine and has made a determination in harmony with the statutory requirements.

REVERSED AND REMANDED.

WALLACE, Circuit Judge (concurring and dissenting):

I concur that this case must be remanded but cannot agree with the route the majority takes to that end, nor with what it requires. The most troublesome issue for me in this case pertains to the petroglyph rock but since the majority reverses largely on the basis of the protection supposedly accorded the Moanalua Valley, I will treat those issues first.

While all who legitimately attempt to preserve the beauty and historical significance of our environment are to be applauded, our responsibility as judges, as I see it, is to determine whether the congressionally mandated procedures for protection require halting an approved construction project. Our review, thus, is a narrow one, not broadened by policy considerations we might inject if we were the Congress. Therefore, the sole issue in this case with respect to the valley is whether it is an historic site of national, state or local significance as determined by the federal, state or local officials having jurisdiction thereof. If so, construction of H-3 must be enjoined pending the special findings required of the Secretary of Transportation by the Department of Transportation Act of 1966 section 4(f), as amended, 49 U.S.C. § 1653(f) (Supp.1975), and the Federal-Aid Highway Act of 1966 section 15(a), as amended, 23 U.S.C. § 138 (Supp.1975) (the two sections are virtually identical and will hereafter be referred to together as "section 4(f)"). If not, the district court's denial of an injunction on this ground must be affirmed.

The facts are not seriously in dispute: the Secretary of the Interior has determined that the valley "may be eligible" for inclusion on the National Register of Historic Places; the Hawaii Historic Places Review Board determined that the valley had only "marginal" significance, an equivalent term for "no" significance, and was therefore not entitled to any protection under state historic site preservation laws. See Hawaii Rev.Stat. § 6-1 et seq. (1968, Supp.1973).

The plaintiffs-appellants (appellants) assert a novel theory, rejected by the district court, which involves the use of a different statute out of context to find the bootstrap necessary to inject the Secretary of the Interior as the decision maker pursuant to section 4(f). The problem they must overcome is that the valley has no national historic significance. The local authorities did not find that it had local historic significance. Thus, they must show (1) the Secretary of the Interior found the valley had local historic significance and (2) he is an official allowed to make such a finding pursuant to section 4(f). Therefore, they pose the argument that the Secretary of the Interior has authority under the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq. (1974) (NHPA), to determine the state and local historic significance of places in passing on nominations to the National Register and is therefore one of the officials having jurisdiction over the valley whose determination of historic significance triggers section 4(f) protections. This is the argument relied upon by the majority in reversing the decision of the district court and with which I cannot agree.

Turning to the statute appellants claim injects the Secretary of the Interior into section 4(f) decisions, I conclude that the Secretary had no authority based upon the facts of this case to place the valley on the National Register. Thus, even if appellants' theory were accepted that the NHPA in some fashion allows the Secretary of the Interior to decide a site has local historic significance, it would avail them nothing based upon the record in this case. Section 101(a)(1) of the NHPA, 16 U.S.C. § 470a(a)(1), provides that the Secretary of the Interior is "to expand and maintain" the National Register. The Act does not expressly specify the procedure for determining which properties are to be listed on the National Register but a reasonable interpretation of all the available sources indicates that properties of state and local historic significance are not to be listed by the Secretary of the Interior unilaterally without an initial determination of significance by state officials.

Supporting this view, section 101(a)(1) of the NHPA provides that the Secretary of the Interior shall grant funds to the states for statewide historic surveys to be conducted by the states. Executive Order 11593 promulgated to implement the NHPA provides that the Secretary of the Interior's role under the Act is merely to encourage state and local officials to nominate federally-owned properties to the National Register, Executive Order 11593 § 3(a), 3 C.F.R. 154 (Supp.1971), 16 U.S.C. § 470 (1974), and to advise federal agencies in the identification of historic sites. Id. § 3(f).

Of most significance is the notice published in the Federal Register by the Department of the Interior for the purpose of increasing "awareness of the means by which properties of State and local historical significance may be nominated for placement in the National Register . . . ." 39 Fed.Reg. 6402 (1974). It is critical to realize that this notice states that while under prior law (specifically, the Historic Sites Act of 1935, 16 U.S.C. §§ 461 et seq.) the National Register included only nationally significant properties which were few in number, the NHPA "provides a means for States to nominate properties of State and local significance for placement in the National Register." 39 Fed.Reg. 6402 (1974) (emphasis added). The notice then sets forth the procedures for nominations by state officials and the criteria to be used by the National Park Service in reviewing the nominations. 39 Fed.Reg. 6403-04 (1974). Nowhere in the NHPA, the Executive Order, or the applicable regulations is the Secretary of the Interior given the authority unilaterally to determine that a property has state or local historic significance.

The appellants place great emphasis on regulations promulgated by the Advisory Council on Historic Preservation, an advisory body created by the NHPA, 16 U.S.C. § 470i (1974). These regulations arguably confer some authority on the Secretary of the Interior to determine the state and local historic significance of properties but the regulations also restrict his part in the decision-making process and give no assistance to appellants' contention that the Secretary of the Interior possesses unilateral decision-making authority. The regulations provide that even though the NHPA protects only properties actually listed on the National Register, properties merely "eligible" for listing should also be protected. To this end, the "Agency Official" of the federal agency contemplating an undertaking (here, the Secretary of Transportation) is given the burden of identifying the properties within the undertaking's potential environmental impact which are listed or eligible for listing on the National Register. Only if, after consulting with the appropriate state historic preservation officer and applying the National Register criteria set forth in the regulations, the agency official determines that a property "appears to meet the Criteria, or if it is questionable whether the Criteria are met," is he required to "request, in writing, an opinion from the Secretary of the Interior respecting the property's eligibility for inclusion in the National Register." 36 C.F.R. § 800.4(a)(2) (Supp.1975).

The Governor of Hawaii has designated the chairman of the state Department of Land and Natural Resources as the state liaison officer responsible for state activities under the NHPA. See 39 Fed.Reg. 6402 (1974). The Federal Highway Department Division Engineer consulted this official concerning the eligibility of the valley for listing on the National Register as a property of state or local significance and was informed by letter of March 6, 1974, that the valley clearly did not meet the National Register criteria.

Appellants nevertheless argue that in this case the valley's eligibility for National Register listing was at least "questionable," especially in light of the Secretary of the Interior's published determination that the valley "may be eligible" for listing. They claim that in these circumstances, the regulations clearly give the Secretary of the Interior "jurisdiction" within the meaning of section 4(f) to determine the valley's local (not national) historic significance. But the regulations clearly put the initial burden of determining the eligibility of a site for National Register listing on the agency supervising the undertaking, here the Department of Transportation, and give the Secretary of the Interior no authority to make any determination until he has been asked for an opinion. Here the Secretary of Transportation consulted the appropriate state official who advised that the valley clearly was not eligible for listing. The Transportation Secretary never requested a ruling from the Secretary of the Interior and the Secretary of the Interior therefore had no authority under the regulations to make any determination with respect to the significance of the valley. It can be properly inferred that the Secretary of the Interior realized this was true when, in his letter to the Governor of the State of Hawaii, he deferred to the Secretary of Transportation's exclusive authority to make any such determination.1

The majority does not confront this point directly but instead asserts that the failure of the Secretary of Transportation to seek the Secretary of the Interior's opinion was "wholly inexcusable." They argue that the valley's significance was at least "questionable" in light of its "nomination" to the National Register by the private Moanalua Gardens Foundation2 and the studies of the valley by the state's Historic Places Review Board and the national Advisory Council. Yet the local historic significance of the valley was not determined by the Advisory Council or the Secretary of the Interior until 1974, after the determination by the chairman of the state Department of Land and Natural Resources that the valley was clearly not eligible for National Register listing, after design approval of H-3 by the FHWA, and after the original complaint in this action was filed. Moreover, appellants have never alleged an abuse of discretion by the Secretary of Transportation in not seeking the Secretary of the Interior's opinion. In these circumstances, especially in light of the determination of no historic significance by the state official whom the Secretary of Transportation is required to consult by the very regulation relied upon by appellants, the propriety of the failure of the Secretary of Transportation to seek the Interior Secretary's opinion should not be in issue.

However, even if appellants were correct, which they were not, and the Secretary of the Interior could be said to have "jurisdiction" of the valley pursuant to this regulation, the regulation itself does not apply to this case. The regulations were issued under the authority of Executive Order 11593 § 1(3), 3 C.F.R. 154 (Supp.1971), 16 U.S.C. § 470 (1974), which requires federal agencies to establish procedures to insure that federal activities contribute to the preservation and enhancement of non-federally owned historic sites. Thus, the Advisory Council in promulgating the regulations merely "recommends that Federal Agencies use these procedures as a guide in the development . . . of their (own) required internal procedures." 36 C.F.R. § 800.1(b)(2) (Supp.1975) (emphasis added).