(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.
I. Moanalua Valley
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), and the Federal-Aid Highway Act of 1966 section 15(a), as amended, 23 U.S.C. § 138 (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 pur*447suant 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. (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)(l), 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, 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 óf 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. 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 proper*448ties 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 *449Gardens 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, 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).
In this regard, the Department of Transportation had adopted its own internal procedures for historic preservation more than a year earlier. Policy and Procedure Memorandum 90-1, 37 Fed.Reg. 21809, 21812 (1972), 23 C.F.R. Pt. 1, App. A (Supp.1974). These procedures afforded NHPA protections only to properties actually listed on the National Register and not to those merely “eligible” for listing. The procedures gave the Secretary of the Interior no role in the identification of historic properties. The same memorandum also prescribed procedures for compliance with section 4(f). Specifically, “[t]he HA [in this case, the state highway department] shall request a determination of significance from the section 4(f) lands agency . . .” Id. H 6(c)(1). The memorandum does not elaborate on the identity of the “section 4(f) *450lands agency” but use of the singular “agency” negates appellants’ argument for concurrent “jurisdiction” of the Secretary of the Interior over historic sites of local significance.
On December 2, 1974, the Department of Transportation promulgated new regulations which implicitly afford NHPA protections to properties merely eligible for listing on the National Register by requiring that the section 4(f) statement (if any) include evidence that the Advisory Council’s recommended procedures have been followed for such properties. 23 C.F.R. § 771.19(b) (Supp.1975). Significantly, however, the new regulations also provide that “[a] section 4(f) statement is not required when the Federal, State or local official having jurisdiction over a park, recreation area, refuge or historic site determines that it is not significant” (id. § 771.19(c)), apparently even if the property has been determined to be “eligible” for National Register listing by the Secretary of the Interior. To sum up, the Secretary of the Interior has no authority to make a unilateral determination of the local significance of an historic site for section 4(f) purposes.
The majority’s final argument is that even if the Secretary of the Interior is not expressly given the authority unilaterally to determine a site’s local historic significance by any of the statutes, orders, or regulations cited by the appellants, none of those provisions preclude such power. I find no authority for nor could I endorse a doctrine that the Secretary of the Interior has all powers under the NHPA not expressly withheld from him. In my judgment, such a philosophy has extreme potential dangers. But even if I were to concede that the Secretary of the Interior has such authority, I do not think that he would be an official with jurisdiction to determine local historic significance of the valley within the meaning of section 4(f).
Turning then to section 4(f) itself, it was originally enacted in 1966 as part of the Department of Transportation Act. The section provided in part: “[T]he Secretary [of Transportation] shall not approve any program or project which requires the use of any land from a public park, recreation area, wildlife and waterfowl refuge, or historic site unless . . . .” Act of October 15, 1966, Pub.L. No. 89-670, § 4(f), 80 Stat. 934. This section and section 15(a) of the Federal-Aid Highway Act of 1966, which had been similar, were amended in 1968 so as to be virtually identical. Act of August 23, 1968, Pub.L. No. 90-495, § 18, 82 Stat. 823. The new statute provides, with the major 1968 additions emphasized:
(f) 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) (referred to herein as “section 4(f)”). I think it clear from an examination of the language of the statute itself and the legislative history that whatever authority the Secretary of the Interior may have with respect to the valley under the NHPA, he is not an official with jurisdiction of the valley within the meaning of this statute.
*451Before the 1968 amendment, the statute appeared to leave to the Secretary of Transportation, as the official who was to approve project or program plans, the determination whether land at issue indeed was a public park, recreation area, wildlife refuge, or historic site. See Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 621-22 (3d Cir. 1971). But the statute as amended in 1968 requires that a protected historic site have “national, State, or local significance” as determined by “the Federal, State, or local officials having jurisdiction thereof.” While the language may not be crystal clear, I think that the determination of the state or local historic significance of a privately-owned site such as the valley must be made by the state or local officials in charge of state or local historic preservation activities. See Pennsylvania Environmental Council, Inc. v. Bartlett, supra, 454 F.2d at 622-23; Environmental Defense Fund v. Brinegar, 6 E.R.C. 1577, 1593-94 (E.D.Pa.1974); Lathan v. Volpe, 350 F.Supp. 262, 267-68 (W.D.Wash.1972), vacated in part on other grounds sub nom. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974 ) (en banc).3
Appellants argue that the use by Congress of the plural “such officials” in section 4(f) demonstrates congressional recognition of the concurrent power of local and federal officials to determine the local significance of historic sites. However, the use of the plural could just as easily be an accommodation to state laws which may lodge historical preservation functions in more than one official. Further, a logical reading of that part of section 4(f) in the context of the question before us resolves the issue against appellants. The statute prohibits the Secretary of Transportation from approving any project “which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge [in three categories, i. e.] of national, State or local significance as determined by [three autonomous groups, i. e.] 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 . . . .” Applying logical canons of construction to this statute, it declares that each category of property is tied to its appropriate overseer insofar as jurisdiction and the rendering of at least the initial determination of significance are concerned. Each of the three categories is thus tied, respectively, to each of the designated officials; i. e., federal officials to property of “national” significance; property having state significance, to state officials; and property of local significance, to local officials. If this is true, the “as so determined by such officials” clause in section 4(f) would seem to me to require in this case a determination by the local (or perhaps state) officials as a condition precedent to bringing the section 4(f) protections into play.
However, whatever ambiguity may appear from the language of the statute is resolved by the legislative history. The *452committee report accompanying the Senate version of the Federal-Aid Highway Act of 1968 (which included the amendments under discussion here) noted: “The importance of the involvement of local officials in route selection, the public hearing process, and the resolution and establishment of community goals and objectives cannot be overstated. . . . With respect to a number of proposals contained in S. 3418, as reported, local authorities would be vital participants.” S.Rep.No.1340, 90th Cong., 2d Sess. 11 (1968), reprinted in 1968 U.S.C. Cong. & Admin.News 3482, 3492. While this passage of the report does not refer specifically to the role of local officials in determining the local historic significance of sites under section 4(f), the intent of Congress is made clear by an exchange on the floor of the Senate during discussion of the bill reported by the Conference Committee where the amendment of section 4(f) provoked one of the longest discussions. Senator Randolph, the leader of the Senate conferees, during a lengthy discussion provoked by the amendment of section 4(f) explained the theory thusly: “[I]t is important that the local people have a leadership. They can properly understand the importance of places that someone from afar may not realize. The importance of such places can only be understood by local people.” 114 Cong.Rec. 24029 (1968) (emphasis added). Some of the Senators, particularly Senator Yarborough of Texas who remembered the Brackenridge-Olmos Park lands case, see Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972), voiced the concern that local officials might determine that a park important to the local people was not “significant” within the meaning of section 4(f) so as to avoid the section 4(f) protections and the possibility of having to obtain a costly privately-owned alternate right-of-way. Senator Randolph’s response to this concern was not the contention asserted by the appellants that the determination of local significance is not exclusively delegated to local officials by section 4(f). Indeed, he seemed to concede the exclusive authority of local officials by answering that the only protection against local approval of the use of parklands and historic sites was the Secretary of Transportation’s authority under Title 23 to use his independent judgment in approving or disapproving highway construction plans. 114 Cong. Rec. 24036-37 (1968).
Senator Randolph’s interpretation of the amendment concerning the sole federal check on local determination of historical nonsignificance finds support in the most recent regulations promulgated by the Department of Transportation pertaining to section 4(f) procedures. The regulations provide that no section 4(f) statement is required where the official with jurisdiction determines that the property is not significant. But in that case, the regulations require: “The FHWA [Federal Highway Administration] Division Engineer shall review the agency’s non-significance determination to assure himself of the reasonableness of such determinations.” 23 C.F.R. § 771.19(c) (Supp.1975).
Thus, there can be no reasonable doubt, in my judgment, that Congress did not intend the Secretary of the Interior to have authority to decide unilaterally whether local sites have historical significance. On the contrary, the legislative history of section 4(f) is clear: the protections extend to an historic site of state or local significance only if the state or local officials with authority to pass on historic values determine that a given site is significant. In this case, the state officials with such authority did not determine that the valley had historic significance, the Secretary of Transportation did not exercise his independent veto power and, therefore, no section 4(f) findings were required.
II. The Petroglyph Rock
The petroglyph rock presents a different problem. The rock was placed on the National Register of Historic Places by the Secretary of the Interior after being nominated by the state Historic Places Review Board. The Board’s nomination of the rock *453should be considered a finding of local historic significance by state officials with jurisdiction so as to trigger section 4(f) protections, assuming the other prerequisites are met.
Besides “significance,” section 4(f) requires that the project “use” the historic site. The appellants alleged that H-3 would use the rock but the trial court made no findings on the issue and the point has not been argued during this appeal. Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972), requires a broad construction of the word “use” so as to require section 4(f) statements wherever there is a substantial question of adverse impact. In that case, we held that the encirclement of a public campground by the challenged highway was a “use” of the campground. In Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F.Supp. 627, 638-39 (D.Vt.1973), aff’d, 508 F.2d 927 (2d Cir. 1974), the court held that construction of a highway adjacent to a potential wilderness area was a “use” of that land.
In both of these cases, however, the significance of the recreation area depended on its solitude and isolation which would be jeopardized by construction of the highway. In this case, on the other hand, the significance of the rock is primarily as an object of viewing and study which could actually be facilitated by the construction of the highway. This view is supported by the findings of the state Historic Places Review Board. The application for listing on the National Register attached great significance to the rock itself but did not give any weight to the rock’s particular location. On the contrary, the Board has found that the valley is only of “marginal” significance.
On the record before us, I doubt whether the appellan s have established that the highway would “use” the rock within the meaning of section 4(f). Since the trial court made no findings on the issue, however, I would remand the case for a hearing and a determination by the district judge. Although we have held that the determination of “use” of a site by a highway is .a question of law and not fact, Brooks v. Volpe, supra, 460 F.2d at 1194, we cannot resolve the legal issue in the absence of evidence and findings on the effect of the highway on the rock.
I am not of the opinion that any of the other issues raised by the appellants require reversal and therefore would reverse and remand only to the limited extent indicated above.
. The letter stated in part:
In response to a recent request from the Council, we provided such an evaluation of Moanalua Valley. It reflected the consensus of the Advisory Board and the professional judgment of the National Park Service that, although not of national significance, Moanalua 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.
In making this assessment, we have discharged a responsibility vested in the Secretary of the Interior by the National Historic Preservation Act and section 3(f) of Executive Order 11593. I want to make clear that this assessment does not constitute a determination of prospective eligibility for National Register designation pursuant to section 2(b) of the Executive Order, and does not, therefore, have the effect of requiring consultation on this matter between the Secretary of Transportation and the Advisory Council on Historic Preservation.
The Department of Transportation is, of course, solely responsible for determining which provisions, if any, of the Executive Order, the National Historic Preservation Act, the Department of Transportation Act, and the National Environmental Policy Act are applicable to this undertaking. I understand that pending litigation on at least some of these issues must be favorably resolved before work on the highway can proceed. I hope this letter has clarified the responsibilities and actions of the Interior Department in relation to those of the Advisory Council and the Department of Transportation.
. The majority states at page 438, ante, that both the petroglyph rock and the valley were nominated by the Moanalua Gardens Foundation for National Register listing. The majority then argues in footnote 13, ante, that there was nothing irregular in the nomination of the valley and that the procedure was “essentially” the same as that leading to the National Register listing of the petroglyph rock, the validity of which the appellees do not challenge.
While it is true that the valley was nominated by the Moanalua Gardens Foundation, the petroglyph rock was in fact nominated by Hawaii’s state Department of Land and Natural Resources. This not only undercuts the argument of the majority but is significant evidence supporting the position taken in this concurring and dissenting opinion.
Further, the National Park Service form 10-300 (July 1969), upon which both nominations were made, includes an item 12, “State Liaison Officer Certification,” which reads in part: “As the designated State Liaison Officer for the National Historic Preservation Act of 1966 (Public Law 89-665), I hereby nominate this property for inclusion in the National Register and certify that it has been evaluated according to the criteria and procedures set forth by the National Park Service.” The inclusion of this item on the form is consistent with my reading of the NHPA as limiting the Interior Secretary’s statutory duty “to expand and maintain” the National Register to evaluation of nominations made in the first instance by designated state officials. Significantly, this item is at least partially filled in on the form nominating the petroglyph rock, including a designation of the title of the certifying officer as “Chairman and Member Board of Land and Natural Resources”; it is left completely blank on the form “nominating” the valley. That the Interi- or Secretary appreciated the significance of this difference no doubt explains why he placed the rock on the National Register, 39 Fed.Reg. 6422 (1974), but determined only that the valley “may be eligible” for such listing. Id. at 16175-76.
. Appellants assert, on the other hand, that a declaration by local officials of a preference for a highway through a locally significant site does not obviate the need for the special findings required by section 4(f) before the highway can be built. Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 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). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), reversing 309 F.Supp. 1189, 1195 (W.D.Tenn.1970). These cases are distinguishable in that the sites involved were admittedly “of local significance”; the local officials nevertheless declared their preference for a highway. In this case, on the other hand, the local officials have not declared a preference for a highway through a locally significant site; they have determined that the site is not locally significant. The distinction is important because there are much greater local political constraints against declaring a locally important site “insignificant” than against declaring a preference for a highway. See Gray, Section 4(f) of the Department of Transportation Act, 32 Md.L.Rev. 327, 384-85 (1973). Finally, it is noteworthy that the appellants here have not directly attacked the local officials’ determination that the valley is not significant as an abuse of discretion or against the law. Their only contention is that the Secretary of the Interior’s contrary determination is enough to trigger the section 4(f) protections, a contention which I would reject.