Lathan v. Brinegar

• Decision Date: 27 September 1974
• Docket Number: Nos. 72-2932,72-2974,s. 72-2932
• Citation: 506 F.2d 677
• Parties: , 4 Envtl. L. Rep. 20,802 Roosevelt LATHAN and Pearline Lathan et al., Plaintiffs, Citizens Against Freeways et al., Intervenor-Plaintiffs-Appellants, v. Claude S. BRINEGAR, Secretary of the United States Department of Transportation et al., Defendants-Appellees. Roosevelt LATHAN and Pearline Lathan et al., Plaintiffs-Appellees, v. Claude S. BRINEGAR, Secretary of the United States Department of Transportation, et al., Defendants, Washington State Highway Commission et al., Defendant-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 677

506 F.2d 677

7 ERC 1048, 4 Envtl. L. Rep. 20,802

Roosevelt LATHAN and Pearline Lathan et al., Plaintiffs, Citizens Against Freeways et al., Intervenor-Plaintiffs-Appellants, v. Claude S. BRINEGAR, Secretary of the United States

Department of Transportation et al., Defendants-Appellees.

Roosevelt LATHAN and Pearline Lathan et al., Plaintiffs-Appellees, v. Claude S. BRINEGAR, Secretary of the United States

Department of Transportation, et al., Defendants,

Washington State Highway Commission et

al., Defendant-Appellants.

Nos. 72-2932, 72-2974.

United States Court of Appeals, Ninth Circuit.

Sept. 27, 1974.

Roger M. Leed (argued), of Schrocter, Jackson, Goldmark Bender, P.S., Seattle, Wash., for appellants and cross-appellees.

Stephen F. Eilperin (argued), Civ.Div., U.S. Dept. of Justice, Washington, D.C., for appellees in 72-2932 and for appellants in 72-2974.

Thomas R. Garlington, Asst. Atty. Gen. (argued), Olympia, Wash., for appellants in 72-2974.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

OPINION

DUNIWAY, Circuit Judge:

We elected to hear these appeals, and the appeal in Keith v. California Highway Commission, 506 F.2d 696, which we also decide today, in banc, primarily to consider whether a new public hearing, under 28 U.S.C. 128(a), must be held before further actions are taken to carry out the construction of two portions of interstate freeways.

The present case involves a new chapter in the continuing saga of Interstate Highway 90 (I-90) in the state of Washington, ¹ specifically that portion which has been proposed to connect two existing interstate highways (I-5 and I-405) near Seattle. Most of the relevant facts are set out in Lathan v. Volpe, 9 Cir., 1971, 455 F.2d 1111, 1114. The following events have occurred since that decision:

In an attempt to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and with our mandate in Lathan v. Volpe, supra, the Washington State Department of Highways (WSDH) prepared an environmental impact statement (EIS) for the so-called 'Seattle segment' of I-90. ² The EIS was approved by the Secretary of Transportation on May 5, 1972. Shortly thereafter WSDH sought and obtained Federal Highway Administration (FHWA) approval of the design of the Seattle segment. On August 4, 1972, in response to a motion by intervenors Citizens Against Freeways (Citizens), the district court ruled that the EIS did not satisfy the requirements of NEPA and that the statement required by 49 U.S.C. 1653(f) and 23 U.S.C. 138 regarding the proposed taking of parkland (the 4(f) statement) was inadequate. The court continued in effect its order enjoining the further acquisition of land in the proposed freeway corridor until proper impact and 4(f) statements were prepared and circulated. However, the court refused to order new public hearings for the project pursuant to 23 U.S.C. 128(a) and struck Citizens' belatedly raised claim that the Secretary of Transportation, rather than WSDH, must prepare the impact statement. These appeals followed.

I. The Section 128(a) Hearing.

Citizens argues that a new public hearing must be held pursuant to 23 U.S.C. 128(a).

Consideration of this issue requires an exposition of the history of relevant statutes, regulations, and policy memoranda that have been in effect during the time when the I-90 freeway segment was being planned, and what has been done to comply with them up to now.

Under the Federal-Aid Highway Act, ³ 23 U.S.C. 101 et seq., ⁴ primary responsibility for highway planning, design and construction rests on state highway departments, aided by federal assistance. ⁵ The FHWA, which administers the Federal-Aid Highway Program, ascertains that the state highway departments have adhered to federal law and regulations before authorizing reimbursement to the states for a portion of the federal-aid highways' cost. This adherence to federal standards is assured by requiring the state highway departments to obtain federal approval at various stages during the conception and building of a highway project.

The matrix of rules governing the stages of FHWA approval is found not only in the Federal-Aid Highway Act, 23 U.S.C. 101 et seq., but also in the Code of Federal Regulations and numerous FHWA directives, including Policy and Procedure Memoranda (PPM's), Instructional Memoranda (IM's) and Administrative Memoranda (AM's). ⁶

The key concept in the Federal-Aid Highway Program is the 'project.' For example, state highway departments must submit 'programs of proposed projects' for approval under 23 U.S.C. 105(a), and section 106(a) requires approval of plans, specifications and estimates for 'each proposed project' included in a program approved under section 105(a). Unfortunately, a 'project' assumes chameleon-like characteristics under the Act. ⁷ For example, a state highway department could seek to obtain FHWA approval of a 'project' which includes all the items of work necessary to construct Interstate X, a fifty-mile highway. On the othe hand, it could also submit to the FHWA several 'project,' each of which forms a part of highway X. Thus, the department might simply submit a grading and paving 'project' for twenty miles of I-X, or a right-of-way acquisition 'project' for five miles of I-X, or simply a demolition 'project' for one mile of the highway. ⁸ The statutory and regulatory definitions of 'project' are broad enough to embrace a one-mile demolition 'project' or a fifty-mile planning, surveying, mapping, right-of-way acquisition, relocation assistance, demolition, grading and paving 'project.' ⁹

With this caveat, we proceed to examine the statutory, regulatory and administrative scheme controlling this litigation. ¹⁰

1. Program approval.

The first decision that must be made by the FHWA is whether to approve a state's federal-aid highway program. Under 23 U.S.C 105(a), a state highway department 'of any State desiring to avail itself of the benefits of this chapter shall submit to the Secretary for his approval a program or programs of proposed projects for the utilization of the funds apportioned.' Every project in a proposed program must be 'located upon an approved Federal-aid system,' or it will not receive approval. The Secretary may approve a program in whole or simply approve individual projects within a program. Id.

2. Public hearings.

a. Those that have been held.

(1) The 1963 hearing.

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 a city must certify to the Secretary that it has held public hearings and has considered the effect of such locations. As originally enacted, ¹¹ section 128(a) required only that the economic effects of such a highway be considered at the hearing.

This was the statute in effect when, in 1963, WSDH held a corridor or location hearing on the freeway segment. (See Lathan v. Volpe, supra, 455 F.2d at 1114.) At that time there was no Regulation dealing with such a hearing; it was governed by a PPM. In Lathan v. Volpe, supra, we rejected an attack, based upon due process grounds, upon the validity of this 1963 hearing. 455 F.2d at 1122. We assume, for the purpose of this decision, that the hearing complied with 128(a) as it then read, and with the then applicable PPM. Thereafter, the FHWA approved the proposed location or corridor.

(2) The 1970 hearing.

Section 128(a) was amended effective August 23, 1968, ¹² to require that the hearings also consider the social and environmental impact of the proposed highway. The amended version reads as follows (the requirements added in 1968 are italicized):

'Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effect of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.'

On January 1, 1970, the National Environmental Policy Act of 1969, 42 U.S.C. 4321-4347, became effective. We discuss its impact on the hearing issue later in this opinion.

On June 2-6, 1970, WSDH held a design public hearing on the Seattle segment. ¹³ This hearing was governed by PPM 20-8, effective January 14, 1969. It defines and describes a 'highway design public hearing' as set out in the margin. ¹⁴ Federal approval of the design was received on June 23, 1972. Again, we assume that the hearing complied with these requirements.

b. The question whether there must be another hearing.

In December, 1970, section 128(a) was further amended ¹⁵ to require the state to file a report with the Secretary indicating the consideration given to the economic, social, environmental and other effects of a proposed highway.

The Secretary has now adopted regulations governing 'corridor' and 'design' hearings. Part 790 of 23 Code of Federal Regulations (1973) expands upon the requirements of section 128(a). The purpose of these regulations

'is to insure, to the maximum extent practicable, that highway locations and designs reflect and are consistent with Federal, State, and local goals and objectives. The rules, policies, and procedures established by this part are intended to afford full oportunity for effective public participation in the consideration of highway location and design proposals by highway departments before submission to the Federal Highway Administration (FHWA) for approval. They provide a medium for free and open discussion and are designed to encourage early and amicable resolution of controversial issues that may arise.' 23 C.F.R. 790.1(a) (...