446 F.2d 1013 (5th Cir. 1971), 30915, Named Individual Members of San Antonio Conservation Soc. v. Texas Highway Dept.

Docket Nº:30915.
Citation:446 F.2d 1013
Party Name:NAMED INDIVIDUAL MEMBERS OF the SAN ANTONIO CONSERVATION SOCIETY, et al., Plaintiffs-Appellants, v. The TEXAS HIGHWAY DEPARTMENT et al., and the United States Department ofTransportation, et al., Defendants-Appellees.
Case Date:August 05, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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446 F.2d 1013 (5th Cir. 1971)



The TEXAS HIGHWAY DEPARTMENT et al., and the United States Department ofTransportation, et al., Defendants-Appellees.

No. 30915.

United States Court of Appeals, Fifth Circuit.

Aug. 5, 1971

Rehearing and Rehearing En Banc Denied Sept. 21, 1971.

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John Wesley Vardaman, Jr., Williams, Connolly & Califano, Washington, D.C., for appellants.

Seagal V. Wheatley, U.S. Atty., San Antonio, Tex., Samuel D. McDaniel, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen. of Texas, Austin, Tex., for State appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

We enter a new battleground in this case, guided by the solemn expression of Congressional will to preserve parklands and the environment from harm or destruction at the hands of federal aid projects. This appeal challenges the construction of a six-to-eight lane federalaid expressway through the Brackenridge-Olmos Parklands located in the City of San Antonio, Texas. It comes to us from the district court's order granting the federal and state defendants' joint motion for summary judgment and denying the appellants' motion for preliminary injunction. Since it is an appeal from a summary judgment, we have given the appellants the benefit of all favorable inferences that reasonably may be drawn from the evidence. See Pogue v. Great Atlantic & Pacific Tea Co., 5th Cir. 1957, 242 F.2d 575; 6 Moore's Federal Practice P56.15(3). So viewing the Record, we find supported therein the following long and tortuous tale of bitter controversy, which we relate along with the history of the proceedings to date in this action.

I. Background

The controversy over this highway began in 1955 or 1956 when certain officials in the City of San Antonio first suggested to the Texas Highway Department the building of a highway from what is now the San Antonio International Airport into downtown San Antonio. The highway was to be funded on a 50-50 basis between the City of San Antonio and the State of Texas for right-of-way acquisition costs, and on a

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50-50 basis between the State of Texas and the federal government for construction costs.

A period of four or five years elapsed before the first steps were taken to implement the 1955 suggestion. Then, in 1960, the Texas Highway Department prepared a report for the construction of the highway, recommending two alternate routes, one of which was the proposed present route through the Brackenridge-Olmos Parklands. In 1961, a bond issue election was held in San Antonio on the proposed acquisition of right-of-way for the new highway, which was to be called 'the North Expressway.' The bond issue passed by a vote of 40,799 to 23,775. 1

In 1963, the State actually settled upon the present proposed route through the Park, and at that time for the purpose of obtaining federal aid in the construction of the highway, the State conducted a Public Hearing on the 'North Expressway,' as required by 23 U.S.C.A. § 128. 2 In 1964, the Bureau of Public

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Roads, a federal agency then in charge of supervising federally-funded highways, notified the State Highway Engineer that insofar as public hearings are concerned, (we) will approve the successive steps in the development of this section of the highway.' 3 Another three years elapsed during which the City of San Antonio litigated and negotiated for the acquisition of certain portions of the proposed right of way owned or abutted by private persons. 4 Then, in 1967, the San Antonio Conservation Society requested the City Council to seek rerouting of the North Expressway in order to save the Park. The City Council denied their request. Thereafter, in December 1967, the San Antonio Conservation Society filed this action and also sought through administrative appeals in the Department of Transportation and in other federal agencies, to persuade the Secretary of Transportation to withhold federal approval of the project. In January 1968, the Secretary of Transportation stated to the district court, in an affidavit filed by an official of the Bureau of Public Roads, that, as of that time, no federal approval had been given to this highway project referred to as the North Expressway. 5 In April 1968, the then Secretary Boyd asked that an analysis of the highway be prepared and, by telegram, requested that the district court take no action in the case until he had acted on the Conservation Society's appeals.

On September 23, 1968, the Department of Transportation issued a press release stating that Secretary Boyd 'today announced conditional approval' of the State's request but the release stated specifically that 'no part of the project will be approved until after (certain) design changes have been submitted to and approved by the Federal Highway Administration's Bureau of Public Roads.' 6 This 'conditional approval' never became final, however, because in February 1969 the State rejected the design changes requested by Secretary Boyd.

Following the State's refusal to accept Secretary Boyd's conditional approval, there were further meetings and discussions between those opposing the route and the Department of Transportation. On December 23, 1969, the Department of Transportation issued a press release which stated that the new Secretary Volpe 'could not justify approval for construction of the North Expressway between Mulberry and Tuxedo Avenue (Mulberry being the southern border of Brackenridge Park, and Tuxedo being a northern boundary of the Olmos Basin Parklands).' He called for a further study of this 'middle segment.' With

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respect to the two 'end segments,' however, the press release stated:

Authorization will be given to the Texas Highway Department to construct those segments north of Tuxedo Avenue and south of Mulberry Avenue as soon as an agreement is reached to study an alternative route for the remaining segment.

As it had done with Secretary Boyd's conditional approval, the State also rejected Secretary Volpe's conditional approval, and in January 1970 made a counteroffer containing some conditions of its own on the Secretary's enforcement powers. 7 The Secretary rejected the States' proposal, 8 and the Department of Transportation advised that unless the State agreed to the conditions originally proposed, the Secretary's conditional approval of the two end segments 'must be withdrawn.' In April 1970 the State of Texas responded that the Texas Highway Department 'respectfully declines to make the study * * *' It maintained that no further study was necessary because there were no alternatives. At this point, the appellants relaxed, thinking that, with the State refusing to meet the Secretary's conditions, 'the battle for the Park had been won.' 9 All was quiet 10 for a period of months, until August 4, 1970, when the Texas Highway Department agreed to the proposed study of the 'middle segment' on the condition that federal funds would be made available for the two 'end segments.' On August 13, 1970, the Secretary, apparently without notice to the plaintiffs in the then pending suit challenging the North Expressway, authorized construction of the two 'end segments' and an agreement was reached that an independent consultant would study alternatives to the 'middle segment.' On August 24, 1970, the State Highway Engineer was notified that he was authorized to advertise for bids. On September 1, 1970, the appellants revived their pending action in the court below, claiming that they had found out about the Secretary's action only through the newspaper; that the Secretary's action was in violation of the Department of Transportation Act of 1966, the Federal Aid to Highway Act of 1968, and the National Environmental Policy Act of 1969; and that they needed immediate protection to preserve the status quo, since the state defendants had filed notices of contract letting proposing to announce

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contract specifications on September 1 and September 8, 1970. No reply to this motion for interlocutory relief even was filed by the defendants until September 10, 1970, and the district court took no action on the appellants' motion for interlocutory relief until after the bids on the southern segment of the project had been made public sometime around September 20. 11 The matter was finally heard on the parties' opposing motions for summary judgment on november 12, 1970. On November 13, 1970, the district court denied appellants' motion for preliminary injunction, granted the defendants' joint motion for summary judgment insofar as the construction of the two 'end segments' of the

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freeway was concerned, and retained jurisdiction over the case to hear and consider the complaints of the plaintiffs concerning the 'middle segment.' On November 16, the appellants filed a motion for stay pending appeal in this Court. This Court received the motion on November 17, 1970, and on November 18, 1970, denied the motion. On November 19 or 20, the State awarded the contracts to the low bidders and shortly thereafter construction on the southern segment commenced. On November 25, 1970, the President of the San Antonio Conservation Society wrote the Secretary of Transportation that the Society had, by Board action, dismissed all litigation on the North Expressway. Said the letter, 'It was a difficult decision to make but, in light of recent court action, it appeared to be the only reasonable choice at this time. Of course, we continue to deplore the possibility of desecration of public parklands by the route of this expressway.'

Nevertheless, some members of the Conservation Society, disgruntled with the Board's action, decided to...

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