515 F.2d 860 (5th Cir. 1975), 74-3907, Ecology Center of Louisiana Inc. v. Coleman

Docket Nº:74-3907.
Citation:515 F.2d 860
Party Name:The ECOLOGY CENTER OF LOUISIANA, INC., the Orleans Audubon Society, Inc., the Sierra Club, and the Louisiana Shrimp Association, Inc., Plaintiffs-Appellants, v. William T. COLEMAN, Secretary of the United States Department of Transportation, et al., etc., Defendants-Appellees.
Case Date:July 11, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 860

515 F.2d 860 (5th Cir. 1975)

The ECOLOGY CENTER OF LOUISIANA, INC., the Orleans Audubon

Society, Inc., the Sierra Club, and the Louisiana

Shrimp Association, Inc., Plaintiffs-Appellants,

v.

William T. COLEMAN, Secretary of the United States

Department of Transportation, et al., etc.,

Defendants-Appellees.

No. 74-3907.

United States Court of Appeals, Fifth Circuit

July 11, 1975

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[Copyrighted Material Omitted]

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J. Arthur Smith, III, Baton Rouge, La., for plaintiffs-appellants.

Michael Osborne, New Orleans, La., for Sierra Club.

John M. Holaham, New Orleans, La., for La. Shrimp Assoc.

Norman L. Sisson, Sharon P. Frazier, Robert J. Jones, Baton Rouge, La., for W. T. Taylor & C. L. Manuel.

John Schupp, Asst. U. S. Atty., New Orleans, La., Kathryn A. Oberly, Edmund B. Clark, Attys., Dept. of Justice, Edward V. A. Kussy, Fed. Hwy. Adm., U. S. Dept. of Trans., Walter H. Johnson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for defendants-appellees.

Alvin Rudy Eason, Gretna, La., for other interested parties.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.

GOLDBERG, Circuit Judge:

This case drives us into the bayous of environmental law, the estuaries of the

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equitable notion of laches, and the swamps of administrative procedure. We are called upon to decide whether plaintiffs have correctly navigated their legal barge through our procedural channels such that their case should have been heard in district court. The trial court was unimpressed with the plaintiffs' chart reading and located them on the sandbar of summary judgment. We take a different view and reverse the judgment below in several particulars.

This lawsuit stems from the defendants' plan to build a highway. The highway, designated I-410 would start west of New Orleans and branch off from U.S. Interstate I-10. It would then loop south and connect with U.S. 90 around Boutte, Louisiana. The loop would continue around, now heading in an easterly direction below New Orleans and would finally reconnect with I-10 east of New Orleans, in effect creating a by-pass around the city. The highway is to be built jointly by Louisiana and the Federal Highway Authority. Before building a federally aided highway planners are charged by the National Environmental Protection Act with assessing the effect such a development would have on the ecology of the area by issuing an Environmental Impact Statement. After some internal governmental debate the defendants to this suit decided to issue two impact statements, covering what they considered the differing environmental effects of different parts of the planned road. They decided to issue an EIS on what is termed "Section I" of the proposed highway, which covers the road from the moment it branches off of I-10 west of New Orleans to the point where it connects with U.S. 90 near Boutte. Section II would cover the road from the moment it leaves Boutte until it refinds I-10 east of New Orleans.

An impact statement for proposed Section I was circulated in draft from about May 7, 1971, and a public location hearing to determine the general area in which the highway would be constructed was held on July 1, 1971. The plaintiffs did not take part in that hearing. The EIS was approved by the federal government on March 9, 1972. A design public hearing to determine the exact placement and characteristics of the highway was held on March 1, 1973; plaintiffs appeared at this hearing. 1 Plaintiffs brought this suit on March 29, 1974.

Plaintiffs alleged in their complaint that a variety of illegalities were committed in the formulation of the Environmental Impact Statement accompanying Section I. Plaintiffs charged that the federal government improperly delegated the drafting of the Environmental Impact Statement to the State of Louisiana; that the EIS itself was deficient in that it did not correctly assess the environmental impact of the project and alternatives to the project; and that the EIS indicated an improper segmentation into two projects of what is really a unitary project, since it covered only what had been designated as Section I.

The district court held a hearing on July 3, 1974 and granted summary judgment to defendants in an order entered July 6, 1974. 2 The four conclusions of law stated that the highway project was not improperly segmented; that there was no improper delegation to the state of responsibility for the Impact Statement, since the Federal Highway Administration independently reviewed the statement; that "the plaintiffs failed to exhaust their administrative remedies with respect to Section I for failure to comment on the Draft Environmental Impact Statement and for failure to appear

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at the location public hearing of July 1, 1971"; and that "as plaintiffs waited more than two years in filing this suit from the date that the Final Environmental Impact Statement for Section I was approved, and considering the large expenditure of public funds with respect to this Section, the Court finds that plaintiffs are guilty (of) laches with regard to Section I."

We conclude that the district court properly found against plaintiffs on the claim of improper delegation. However, we believe that the district court erred in dismissing the remaining causes of action in this suit and therefore reverse its judgment in part.

I. Preliminary Issues

The law relating to our review of a grant of summary judgment is clear. We join the monotony of precedential pronouncement that summary judgment can be granted only when there is no genuine issue as to any material fact and where the moving party is entitled to a judgment as a matter of law. If there is a real factual dispute between the parties, relevant to a legal claim, then they must be afforded a trial. Fed.R.Civ.P. 56(c); McPhee v. Oliver Tyrone Corp., 5 Cir. 1974, 489 F.2d 718; Keating v. Jones Development of Missouri, Inc., 5 Cir. 1968, 398 F.2d 1011. In order to determine these matters we look at the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits. Fed.R.Civ.P. 56(c); Sherman v. Hallbauer, 5 Cir. 1972, 455 F.2d 1236.

It is on this basis that we must review the facts and legal issues which led the district court to believe that both the failure of administrative exhaustion and the presence of laches barred substantive consideration of plaintiffs' claims, and that no material issue of fact or question of law revolved around the segmentation of the project and the delegation of environmental planning to the state.

  1. Administrative Exhaustion

    The district court found as a matter of fact that a draft EIS was circulated on or about May 7, 1971 and that it was made available to the public according to law. The judge also stated that a Location Public Hearing for Section I was held on July 1, 1971 and that it was publicized according to law. He found that none of the plaintiffs either appeared at the location public hearing or submitted written comments on the draft EIS. On this basis he concluded that:

    The plaintiffs failed to exhaust their administrative remedies with respect to Section I for failure to comment on the Draft Environmental Impact Statement and for failure to appear at the location public hearing of July 1, 1971. (citations omitted).

    We believe that the district court was in error in its conclusions, because there remains a factual controversy as to whether plaintiffs were indeed properly notified of the administrative remedies which they were thought to flaunt.

    At the time that the draft EIS was circulated and the location public hearing held, the procedures which were to guide those holding hearings pursuant to grants from the Federal Highway Administration (FHWA) were set out in 23 C.F.R. Chap. 1, App. A. P 8.a. (2), which provided in part:

    In addition to publishing a formal notice of public hearing, the State highway department shall mail copies of the notice to appropriate news media, . . . The State highway department shall also mail copies to other federal agencies, and local public officials, public advisory groups and agencies who have requested notice of hearing and other groups or agencies who by nature of their function, interest, or responsibility the highway department knows or believes might be interested in or affected by the proposal. 3 (Emphasis supplied).

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    One plaintiff, Delta Chapter of the Sierra Club, submitted affidavits and supporting letters to the district court in which it claimed to have written to the Louisiana State Department of Highways on May 13 and 15, 1970, prior to the release of the EIS, about its concern for the environmental impact of a highway through the area that proposed I-410 would traverse. These letters, of course, reflected the Club's interest in the project. Nonetheless, the current chairperson attested that Delta Chapter was not advised of the location hearings later held:

    To the best of my knowledge the Louisiana Department of Highways did not attempt to, nor did it actually provide the Sierra Club with any information concerning the draft Environmental Impact Statement for the I-410 section from Interstate 10 (West) to Boutte or the Location Public Hearing held on July 1, 1971 despite the previously exhibited concern.

    According to Federal Highway Administration regulations, the State should have responded to these letters by giving the Club specific notice of any hearing at which the location of a project or its environmental effects would be discussed. 23 C.F.R. Chap. 1, App. A, PP 3., 4., 6.a., and 8.a. (2) (1971). In the State's "Answer to Plaintiffs'...

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