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

OPINION

Before KOELSCH, ELY and WALLACE, Circuit Judges.

ELY, Circuit Judge:

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.

I. Statutory Background

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, 411-18, 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)(l) (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).

II. The Factual Setting

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 transKoolau 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 Interi- or 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 “[hjistorical, 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 Interi- or, 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

III. Discussion

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:

[Djetermination 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 “i's 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)(l) (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. & AdmimNews, 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.

IV. Other Issues

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.

1 . According to the Advisory Council on Historic Preservation,

The historical and cultural significance of the [Moanalua] [V]alley stems from Hawaiian folklore and tradition and continues into the 20th century. The valley contains Kamanui, the valley of the great power, and Waolani, the valley of the spirits which was, in tradition, “the dwelling place of the gods.” The forest of the valley retains a traditional natural state associated with the legend and history of the area.

The valley was the property of the royal house of Oahu, the scene of battles and other exploits which are extolled in the ancient Hawaiian chants, the Kahikilaulani. After King Kamehameha conquered the island of Oahu in 1796, the valley was the home of his supporters and eventually passed, in 1848, to . his grandson, King Kamehameha V, then to Princess Ruth Keelikolani in 1872, and, upon her death, to her cousin, Princess Bernice Pauhi Bishop who willed it, in 1883, to her friend, Samuel Mills Damon. .

Advisory Council on Historic Preservation, Comments on an Undertaking by the Federal Highway Administration Having an Effect upon Pohaku ka Luahine and Moanalua Valley, Oahu, Hawaii (August 7-8, 1974) (hereinafter referred to as “Advisory Council, Comments ”).

2 . Section 4(f) states:

It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

49 U.S.C. § 1653(f) (1970).

3 . The appellants are the Stop H-3 Ass’n, the Moanalua Valley Community Ass’n, the Kaiku Village Community Ass’n, Life of the Land, the Moanalua Garden Foundation, all of which are non-profit organizations chartered for the purposes of opposing the construction of H-3 or preserving the Moanalua Valley, and several named individuals.

The National Wildlife Federation has filed a brief as amicus curiae, supporting the appellants.

4 . Appellees are the Secretary of Transportation, the Hawaii Division Engineer for the Federal Highway Administration, and the Director of the Department of Transportation of the State of Hawaii.

5 . The prolonged history of the present controversy in the District Court is thoroughly and carefully reviewed in the District Court’s Opinion. Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102, 1105-07 (D.Hawaii 1974).

We have hitherto issued an injunction designed, pending the disposition of this appeal, to prevent irreversible damage or destruction of the natural environment involved in the controversy. That injunction will remain in effect pending the eventual disposition of the appeal and the issuance of a new injunction by the District Court in conformity with our conclusion.

6 . The Advisory Council states that

Pohaku ka Luahine, a large boulder marked with petroglyphs, is located in the center of Moanalua Valley . . . . Pohaku ka Luahine is the largest free-standing petroglyph boulder on the island of Oahu and measures some 11' X 8' X 6'. There are only ten known petroglyph sites on the island of Oahu and only three such free-standing petroglyph boulders in the entire State.

The rock shows 22 carvings which have been identified as petroglyphs (rock carvings) of human figures and bird men which range in sizes up to approximately 20 inches. All these were carved or pecked into the boulder surface with crude stone tools and endless hours of labor. The rock carving is described by the State Historic Preservation Officer as a “superb artistic expression of form in a medium of hard rock, using the crudest of tools and an unknown duration of labor reason enough for ensuring the preservation of Pohaku ka Luahine.” [T]he ancient Hawaiians believed that natural phenomena — both animate and inanimate — possess spiritual form and being. In tradition, the rock is sacred.

Advisory Council, Comments, supra note 1.

7 . United States Department of the Interior, Memorandum from the Chairman, Advisory Bd. on Nat’l Parks, Historic Sites, Bldgs. & Monuments, to the Secretary of the Interior, October 3, 1973.

8 . Section 1(3) of Exec.Order No. 11,593, 36 Fed.Reg. 8921 (1971), 16 U.S.C. § 470 (Supp. I, 1971), requires Federal agencies to establish procedures for the protection and enhancement of non-federally owned historic sites. Section 2(b) of the Order pertains only to historic sites located on federally-owned land.

9 . Letter from Rogers C. B. Morton, Secretary of the Interior, to Governor Burns of Hawaii, May 13, 1974.

10 . Hawaii Rev.Stat. §§ 6-16.1, 6-16.2(1 l)(g) (1974 Supp.).

11 . The State’s review board acted on the basis of a motion from one of its members that, in view of “deficiencies and apparent inaccuracies in historical information” and “inconsistencies in legendary material that has been presented,” the Moanalua Valley “be given a marginal status.” The same member stated that his motion would not preclude the later submission of additional information that might qualify the Valley for a higher classification. Minutes of the Meeting of the Hawaii Historic Places Review Board, August 5, 1974.

12 . United States Dept, of Transportation, Federal Highway Administration, Memorandum from the Associate Administrator for Right-of-Way and Environment to the Regional Federal Highway Administrator, San Francisco, September 19, 1974.

13 . “Jurisdiction means the right to say and the power to act; and, as between agencies of the government, jurisdiction is the power of that particular agency to administer and enforce the law.” Carroll Vocational Institute v. United States, 211 F.2d 539, 540 (5th Cir.), cert. denied, 348 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657 (1954).

The NHPA authorizes the Secretary “to expand and maintain” the National Register, and the only requirement for a property’s inclusion in the Register is that the property be “significant in American history, architecture, archeology, [or] culture.” 16 U.S.C. Sec. 470a(a)(l) (emphasis added). The Act does not distinguish in any way between properties of “national” significance and those of “state or local” significance. There is nothing whatsoever in the Act or its legislative history to indicate that the Secretary may name some properties to the Register — those of importance in the history of a region, state, or locality — only after obtaining the concurrence of state and local authorities. For the purposes of the Register, properties of national, state, and local significance are treated equally. They all are deemed significant in American history, and they should be. If it should be held that the Interior Secretary has no power to determine that properties have state or local historic significance, there would, in our view, be a virtual nullification of the NHPA and Section 4(f). Only properties of “national” significance would have any lasting protection from destruction. Whenever a city or state preferred a Federally-funded highway to an historic site, the local body could simply declare the site insignificant. Such a holding would be without precedent and would completely defeat Congress’s clear attempt to protect such properties by passing the NHPA and 4(f).

The Advisory Council’s regulations, upon which the appellees have relied, undoubtedly support our interpretation of the Secretary’s power under the NHPA. Those regulations require Federal agency officials to request opinions from the Interior Secretary concerning a property’s eligibility for inclusion in the Register. The Secretary’s opinion is then said to be conclusive. 36 C.F.R. Sec. 800.4 (1975). The regulations do not require the concurrence of a state or local preservation official before the Secretary may conclude that a property is eligible for the Register.

Further, in our view, there has been nothing irregular or precipitous about the Interior Secretary’s decision concerning the Valley with which we are concerned. The Secretary acted on the basis of an application submitted by the Moanalua Gardens Foundation, on forms provided by the Secretary for the purpose of making such nominations, and upon the expert recommendations of the Advisory Board on National Parks, Historic Sites, Buildings and Monuments and the Advisory Council on Historic Preservation. Indeed, the Secretary’s decision concerning the Valley followed essentially the same channels as did his determination concerning Pohaku ka Luahine, and not even the appellees have questioned the validity of the latter decision.

14 . See also Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 386 (1973).

Appellees contend that Named Individual Members 'is distinguishable from the instant appeal because there the city council did not find the park to be of no significance but only stated that the park was of “secondary” importance to the highway. We note that, somewhat similarly, the Hawaii Historic Places Review Board did not specifically find Moanalua to be of no historic significance. The Board classified the Valley as having “marginal” significance. See note 11 supra. As do the appellees here, the Highway Department in Named Individual Members argued that the local body’s action constituted a finding of no significance. Named Individual Members, 446 F.2d at 1026.

Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 620-23 (3d Cir. 1971), presented a different issue. There, the question was whether certain forest lands, owned by the State of Pennsylvania, had ever been set aside by the State as parkland or for other public recreational uses. The court held that the Secretary of Transportation was entitled to rely on an opinion letter from the State’s Attorney General which stated that the lands had not been set aside for such purposes.

15 . Section 4(f) focuses on Federal, not state or local, activities. It forbids the Secretary of Transportation from approving the use of Federal funds for highway projects not meeting the section’s requirements. The statute has no application to purely state or local construction efforts. Section 4(f) begins by requiring, as a matter of national policy, that special effort be made to preserve historic sites. In view of the section’s focus and obvious purpose, we simply cannot believe that either the Transportation Secretary or our court can ignore or avoid the Interior Secretary’s pronouncement concerning the Valley.

We have concluded that under section 4(f) the Interior Secretary undoubtedly had the power, or jurisdiction, to investigate Moanalua, and while he decided that the Valley was not significant in the evolution of our history as a Nation, he nevertheless concluded that the Valley was likely of importance in our history as a people (i. e., significant in American history) and consequently declared the property eligible for the Register. His finding, when fitted into the mold of section 4(f), constitutes a finding of state or local significance. Congress’s use of the plural “officials” in section 4(f) supports our interpretation of the statute’s meaning. If the statute had read “as so determined by the Federal, State, or local official having jurisdiction thereof,” it could then be interpreted as meaning that only the appropriate state official could determine that a site has state significance, etc. That is not what the statute says.

The legislative history of section 4(f) indicates that Congress inserted the language in question into the statute in order to broaden the statute’s applicability. There is no hint in either the committee reports or the floor debates that Congress was seeking, by using the language, to give state and local officials power to vitiate Federal determinations that park-lands or historic sites are significant. One of Congress’s objectives was to require the Transportation Secretary to apply the statute whenever state or local officials declare a property significant, regardless of what Federal officials might think of the site. Congress’s other goal was to guard against the situation wherein state or local officials decide that they would rather have a highway than a park or historic site and consequently declare the property to be insignificant. It is inconceivable that Congress intended that a local agency, by action or inaction, could disempower the Federal government, in a situation involving Federal funds, from preserving a site of historical American significance.

In the Senate’s floor debate on the conference report pertaining to 4(f), Senator Yarborough asked Senator Randolph, who chaired the conference committee, the very question that concerns us:

[Senator Yarborough], The question has been raised that, if the local authorities said that a site had no historic significance, engineers could ram a highway through regardless of a site’s being of historic significance. Is that correct?

MR. RANDOLPH. No; they could not ram it through, as the Senator has said.

MR. YARBOROUGH. Do the Secretary of Transportation and the highways officials of the Federal Government have the power to apply this provision of the bill as written even though the local officials say such a site has no significance?

MR. RANDOLPH. Under their power to approve plans, specifications, and estimates they can review such decisions.

* * * * * *

MR. YARBOROUGH. * * * If you run a highway through a long, slender park . . you do not have to pay any tax money for right-of-way. Thus the city council, hard pressed for money, is seeking to run a highway right through the center of one of the best parks in the State.

MR. RANDOLPH. We are not going to allow that. [Indicating that the Federal power is transcendent.]

114 Cong.Rec. 24036-37 (1968).

The only commentator to consider the question also agrees with our interpretation of section 4(f):

Historic sites present special problems. Unlike the other protected lands they need not be publicly owned. When they are not publicly owned, no presumption of a determination of significance can arise from the fact of public maintenance since normally only publicly owned property is publicly maintained. It is, on the other hand, customary for historic sites to be designated as such by someone such as a local or state landmarks commission, or by the United States Department of the Interior. Any such designation is presumably equivalent to a determination of significance for purposes of section 4(f).

The determination may be made by any of the local, state or federal officials who can claim to have “jurisdiction thereof.” For these purposes “jurisdiction” may refer to more than merely political authority, although governing bodies having general jurisdiction over the land in question would be able to trigger the application of the last sentence of Section 4(f) by declaring their determination of the significance of land which they wish to protect. An agency which is authorized to decide that properties have historic importance may be regarded as having “jurisdiction” over determinations of historic significance. Some properties, for instance, are listed by the Secretary of the Interior in the National Register of Historic Places.129 It is inconceivable that a National Register property could be regarded as ineligible for protection under section 4(f), regardless of whether it was considered “significant” by the local or state governing bodies having political jurisdiction over the property. A similar triggering function may inhere in a local or state historic society, if it has official status to designate landmarks. It might also be found in a state parks or recreation commissioner with respect to local parks which he has the authority to classify for state purposes, although they may not be under his administrative control. (Emphasis added)

Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 386 (1973).

16 . Letter, supra note 9.

17 . Our interpretation of Secretary Morton’s letter is supported by a subsequent letter from Nathaniel P. Reed, Assistant Secretary of the Interior, to Acting Governor Ariyoshi of Hawaii. Secretary Reed’s letter states, in pertinent part:

As was explained in Secretary Morton’s May 13 letter to Governor Burns, our evaluation of the eligibility of Moanalua Valley for inclusion in the National Register was not made pursuant to Section 2(b) of Executive Order 11593, since the property is not in public ownership.

* * * * * *

I would like to reiterate . . . that once we assist an agency in making an evaluation on a property, it is the agency’s responsibility to assess its own legal obligations under Federal law. The Secretary of the Interior is not at liberty to exempt the Department of Transportation from that obligation.

18 . The alternatives discussed range from not building H-3 but instead improving, in various ways, the existing Pali and Likelike Highways, to placing H-3 along different routes across Oahu. Appellants contend that the City of Honolulu, containing a major portion of Oahu’s population and undeniably having a vital interest in the trans-Koolua traffic flow, supports an alternative to the construction of H-3 which would add to the Likelike Highway a single, reversible-flow lane, to be used exclusively for public bus transportation.

19 . The Secretary’s own procedures do, however, contemplate the preparation of combined “environmental impact/Section 4(f)” statements. See Dept, of Transportation, Federal Highway Administration, Policy and Procedure Memorandum 90-1, reproduced at 23 C.F.R. 15-26 (1974).