455 F.2d 1111 (9th Cir. 1971), 71-1149, Lathan v. Volpe

Docket Nº:71-1149.
Citation:455 F.2d 1111
Party Name:Roosevelt LATHAN and Pearline Lathan, his wife, et al., Plaintiffs-Appellants, v. John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendant-Appellee.
Case Date:November 15, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1111

455 F.2d 1111 (9th Cir. 1971)

Roosevelt LATHAN and Pearline Lathan, his wife, et al., Plaintiffs-Appellants,

v.

John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendant-Appellee.

No. 71-1149.

United States Court of Appeals, Ninth Circuit.

November 15, 1971

Rehearing Denied Feb. 8, 1972.

Page 1112

Opinion On Petition For Rehearing

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J. Anthony Kline (argued), Berkeley, Cal., Michael J. Fox, John Gant, Hall Baetz, Peter E. Paget, of Schweppe, Doolittle, King & Tausend, Roger M. Leed, of Schroeter, Jackson, Goldmark & Bender, Seattle, Wash., for plaintiffs-appellants.

Thomas R. Garlington, Asst. Atty. Gen. (argued), Slade Gorton, Atty. Gen., Tumwater, Wash., Walter Fleischer (argued), Robert E. Kopp, Ronald R. Glacz, Dept. of Justice, Washington, D. C., Stan Pitkin, U. S. Atty., Albert E. Stephen, Asst. U. S. Atty., Seattle, Wash., for defendant-appellee.

Before JERTBERG, DUNIWAY and CHOY, Circuit Judges.

DUNIWAY, Circuit Judge:

Plaintiffs, residents of a section of downtown Seattle through which a proposed interstate highway is to be built, seek to halt all further acquisitions of property by state highway officials until certain statutory, administrative, and constitutional requirements are met. Defendants are the Secretary of Transportation and various federal and state highway administrators. Plaintiffs appeal from denial of their motion for a

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preliminary injunction. We vacate the order and remand.

A. The facts.

After several years of preliminary study, beginning in 1944 and continuing into the 1960s, the State of Washington proposed an interstate highway (I-90) to be built in a corridor between particular interchanges of two existing interstate highways (I-5 and I-405) under the terms of the Federal-Aid Highways Act, 23 U.S.C. § 101 et seq. Within the selected corridor, three routes were chosen by the State as possible ones to be considered at a public hearing pursuant to 23 U.S.C. § 128, which was held on March 5, 1963. Following the hearing, the State selected a corridor for the final location of I-90, which received approval by the Federal Bureau of Public Roads on May 20, 1963.

In June 1970, the State held a public hearing on the design of that segment of I-90 to be constructed within the chosen corridor in Seattle. Federal approval of the design has not yet been sought or obtained, nor has federal approval for right-of-way acquisition or construction. However, federal authorization has been given to the State for the acquisition of 184 housing units which the property owners asked the State to buy because "undue hardship" would result from following the standard procedure of deferring acquisition until after federal approval of the design. These so-called hardship acquisitions, authorized by a Department of Transportation regulation (DoT IM 20-1-69, April 8, 1969), had by September 4, 1970, resulted in 103 families moving out of the corridor area to other parts of Seattle.

The trial judge found that the persons requesting these "hardship" acquisitions have obtained decent, safe and sanitary housing. The defendants assert and we assume that these persons have also received the payments for relocation authorized by the Act (23 U.S.C. §§ 504-507), and have been assisted by an active program of scrutiny to be sure that replacement housing is decent, safe and sanitary. For the purpose of this case, we also assume that the state has been endeavoring to maintain the properties sold to it in a decent, safe and sanitary condition.

Nevertheless, it is not really disputed that the choice of a corridor, such as occurred in this case in 1963, is bound to have a deleterious effect on the area within the corridor. As a practical matter, there is no longer an open market for the property in the corridor; there is only one potential buyer, the state. The inevitable effect is a lessening of the property owner's motivation to maintain his property and a depressing effect upon property values and the general physical, economic and social tone of the area. Residents know that many, if not all, of them are going to have to move out; owners know that most, if not all, of them are going to have to sell. The type of community spirit that seeks to preserve, protect, and improve a neighborhood is bound to disappear under these conditions. These effects are so well known, and so obvious, to those familiar with the urban scene that we would be naive indeed to believe that they do not exist within the corridor here in question, or that they do not exist in this case to an exacerbated extent. The corridor runs through a densely populated, low income, city area; the residents are primarily the poor and persons of minority races.

Plaintiffs, residents of the portion of the corridor area called the Central Area, seek to prevent continued progress on the planning and construction of I-90, until inter alia, (1) the defendants comply with the relocation provisions of the Federal-Aid Highway Act of 1968, 23 U.S.C. §§ 502 and 508; (2) the federal defendants comply with the National Environmental Policy Act of 1969, (NEPA), 42 U.S.C. § 4321 et seq.; and (3) a new public hearing on the proposed highway route is had.

B. The statutory scheme.

We take from the brief of the federal defendants a description of the statutory scheme. The Federal-Aid Highways Act,

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23 U.S.C. § 101 et seq., establishes a grant-in-aid program under which the federal Government will pay 90% of the cost of interstate highways if the Secretary of Transportation finds the State plans comply with standards set forth in the Act.

The building of any section of federally-funded roadway (designated a "project") involves a series of successive stages. There is, at the outset, the "program" stage, during which a state desiring financial assistance is to "submit to the Secretary for his approval a program or programs of proposed projects for the utilization of the funds apportioned" for any fiscal year (23 U.S.C. § 105). The Secretary's approval of any "program" does not bind the Government to a contractual obligation.

Next come the "routing" and "engineering design" stages, which form the focus of this litigation. Following approval of the program by the Secretary, the State selects the different project routes (23 U.S.C. § 103(d)) and prepares, for the Secretary's review-and approval if the proper standards are met-"such surveys, plans, specifications, and estimates for each proposed project included in an approved program" as relate to the route location. 23 U.S.C. § 106(a). The same process is repeated with respect to design.

23 U.S.C. § 128(a) provides that any State highway department which submits plans for a federal-aid highway project involving the "going through" of any city shall certify to the Secretary that it has held public hearings and has considered the effects of such location. As originally enacted (P.L. 85-767, Aug. 27, 1958, 72 Stat. 902) this section required only that the "economic" effects of such highway location be considered. The amended version of this section (P.L. 90-495, § 24, Aug. 23, 1968, 82 Stat. 828) now provides that in addition to the economic effects of such location, these hearings should also consider its "social [effect] * * *, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." This statute has been interpreted by the Department of Transportation as requiring two public hearings on a highway "going through" a city; once for the location of the route, i. e., a "corridor hearing", and once concerning the design, i. e., a "design hearing". See PPM 20-8 (January 14, 1969) para. 6.

If the Secretary is satisfied with the certification and other information he receives, he first approves the route location and thereafter the design as part of the approval under Section 106; even after such approvals, there is still no contractual obligation on the part of the Government to expend funds for right-of-way acquisitions or project construction.

No purchase of right-of-way ordinarily occurs during the "routing" and "engineering design" stages. However, Policy and Procedure Memorandum (PPM) 20-8 (January 14, 1969), para. 10.e, and Instructional Memorandum (IM) 20-1-69, para. (4), as amended by IM 20-1-69(2) provide that where a property owner demonstrates he is suffering hardship due to the possible construction of an interstate highway, he may request the State authorities to purchase his property. The State, with federal approval, is authorized to make such purchase and obtain federal reimbursement.

The "right-of-way acquisition" stage follows the "engineering design" stage. Apart from the hardship exception and certain others defined in IM 20-1-69, supra, no right-of-way acquisition can be authorized until after the design has been approved. PPM 20-8 (January 14, 1968), para. 10.d(2). By regulation, right-of-way surveys, plans and specifications are then filed with the Federal Government (PPM 20-5). After the adoption of Chapter 5 of the Federal Highway Act of 1968, 23 U.S.C. § 501 et seq., the Federal Highway Administration issued an Instructional Memorandum (IM) 80-1-68, which became the

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applicable regulation for implementing the new relocation assistance program. Pursuant to 23 U.S.C. § 502, and paragraph 5 of IM 80-1-68, the State must submit "satisfactory assurances" that it can provide prospective displacees with adequate relocation housing and payments. Under paragraph 7 of the IM, "prior to proceeding with right-of-way negotiations and/or construction," a State is required to prepare a detailed plan of relocation "for...

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