Village of Los Ranchos de Albuquerque v. Barnhart
| Citation | 906 F.2d 1477 |
| Decision Date | 02 July 1990 |
| Docket Number | No. 87-2657,87-2657 |
| Parties | 20 Envtl. L. Rep. 21,433 VILLAGE OF LOS RANCHOS DE ALBUQUERQUE; and Rio Grande Valley Preservation Society, Plaintiffs-Appellants, and Elbert King; Joan McGinnis; Velma Whipple; Thomas Montoya; Priscilla Montoya; John Trotter; Kit Sargent, Plaintiffs, v. R.H. BARNHART, Administrator of the Federal Highway Administration; Elizabeth Dole, Secretary of the Department of Transportation; Peter A. Lombard, Environmental Protection Specialist for the Federal Highway Administration; Daniel Dake, Director, Office of Planning and Programming Development of the Federal Highway Administration; Dewey Lonsberry, Federal Highway Division, Administrator, Defendants-Appellees, and The City of Albuquerque; and The County of Bernalillo, Defendants-Intervenors-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Alice G. Hector of Hector & Associates, P.A., Albuquerque, N.M., for plaintiffs-appellants.
Vicki L. Plaut (Roger J. Marzula, Acting Asst. Atty. Gen., William L. Lutz, U.S. Atty., Herbert A. Becker, Asst. U.S. Atty., Albuquerque, N.M., Robert L. Klarquist, Atty., Dept. of Justice, Land and Natural Resources Div., and Jean G. Rogers, of Counsel, Federal Highway Admin., with her on the brief), for defendants-appellees.
James H. Foley, City Atty., and Edward R. Pearson, Asst. City Atty., for City of Albuquerque, and Joe C. Diaz, County Atty., and MaryAnn Lunderman, Deputy County Atty., for County of Bernalillo, on the brief, for defendants-intervenors-appellees.
Before LOGAN, MOORE and EBEL, Circuit Judges.
Plaintiffs (The Village of Los Ranchos de Albuquerque, the Rio Grande Valley Preservation Society, and certain named residents in Albuquerque's North Valley) appeal from a decision of the United States District Court for the District of New Mexico granting summary judgment in favor of defendants (certain officials in the Federal Highway Administration ("FHWA"), the City of Albuquerque, and the County of Bernalillo). We affirm.
The district court summarized the relevant facts as follows:
The North Valley river crossings project is a proposal for construction of two bridges across the Rio Grande River, one at Paseo del Norte just south of an existing crossing at Corrales Road, and another further south at Montano Road. Construction on the Paseo del Norte has begun as of this writing, while the Montano Bridge is still in the planning stage. Both bridges involve substantial right-of-way acquisitions within the Village [of Los Ranchos de Albuquerque], a rural community northwest of Albuquerque. Further, the project involves widening of Village roads and addition of new roads to handle the increased bridge traffic, with resulting effects of increased noise, etc., on neighboring Village landowners. The bridge at Paseo del Norte will be a four-lane crossing with an option for later expansion to six lanes, while the Montano crossing is proposed to be two lanes.
While few residential homeowners would react favorably to the prospect of having a major arterial traffic route built practically in their backyards, the citizens of the Village are particularly concerned about the impact of the new bridges on the rural quality of their neighborhood, various sites of historical interest in that area, and the effects of the project on the river bosque wetlands. The Village has thus brought suit under various federal environmental protection statutes, arguing that, in approving the bridge projects, the federal government is taking action which will adversely affect the environment, without adequate study and planning as required by law.
The central issue in this motion [for summary judgment] is whether or not the federal government's involvement in the river crossings project is sufficiently major to trigger the applicable statutes. Therefore, the extent of that involvement must here be set forth in some detail.
Federal involvement in the river crossings project was initiated by a January 1979 decision of the Urban Transportation Planning Policy Board ("UTPPB") of the Middle Rio Grande Council of Governments to seek a location-environmental study of the project. This request was presented to the Federal Highway Administration ("FHWA"), where, on February 5, 1979, the Division office in Santa Fe, New Mexico, authorized preliminary engineering work in preparation of the environmental study for the river crossings project. The authorization form for the project, Defendants' Exhibit 8A, estimated the cost of the location-environmental study at $75,000.00, and authorized federal financial assistance for part of these costs, in the amount of $58,972.50.
In addition to provision of funding, the federal government took an active role in the preparation of the EIS. Without going into exhaustive detail as the process is set forth in Defendants' Answers to Interrogatories, submitted as Plaintiff's Exhibit 1, it is safe to say that the actual preparation of the EIS required fairly exhaustive federal assistance from approving agencies and individual FHWA personnel. The process is lengthy and, as the actual sufficiency of the EIS itself is not at this time before the Court, the Court will not here reiterate those procedures. A Final Environmental Impact Statement ("FEIS") for the river crossings project was approved by Peter Lombard, Director of the Office of Planning and Program Development in the Region 6 Office of the FHWA, on September 16, 1983.
After approval of the FEIS, the City of Albuquerque programmed $4.2 million of 1983 general obligation bond money for the Montano crossing, and an additional $6.1 million was appropriated for the project from the 1985 bond election.
According to the affidavit/testimony of Joseph Martin, Director of New Mexico Department of Transportation, Harry E. Kinney, former Mayor of Albuquerque, and Kenneth E. Bower, Jr., Director of Technical Support for the New Mexico State Highway Department, federal funding has not been and will not be requested for any part of the Montano or the Paseo del Norte river crossings. Thus, as of the date of FEIS approval by the FHWA, federal involvement in the river crossing came to an end, as far as any financial assistance was concerned.
(Memorandum Opinion and Order at 3-5, June 9, 1987) (footnote omitted).
Plaintiffs sought a declaration that the federal environmental laws were violated and an injunction against all further federal participation in the project. After considering the evidence submitted by both sides, the district court granted summary judgment in favor of the federal defendants on the ground that the FHWA's participation in the bridge projects was not sufficient to trigger the federal laws. The district court subsequently granted summary judgment in favor of the local defendants "on the same grounds as stated by the Court for dismissal of Plaintiff's complaint against the Federal Defendants." (Order at 1, October 7, 1989.) Plaintiffs appeal.
Plaintiffs raise four issues on appeal: (1) whether construction of the Montano bridge is a "major federal action" subject to the requirements of the National Environmental Policy Act; (2) if construction of the bridge is not a major federal action, whether the bridge project was properly segmented from the federally funded I-25/Los Angeles project, which is a major federal action; (3) whether construction of the bridge requires compliance with section 106 of the National Historic Preservation Act; and (4) whether construction of the bridge requires compliance with section 4(f)
of the Department of Transportation Act or Executive Order 11990.
Plaintiffs argue that the federal defendants' improper approval of the EIS for the Montano bridge violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4332 et seq. NEPA provides in pertinent part:
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall--
....
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Section 4332 (emphasis added).
The requirements of NEPA apply only when the federal government's involvement in a project is sufficient to constitute "major federal action." Plaintiffs contend that the bridge project is a major federal action because of (1) the local defendants' eligibility for federal funding or (2) the FHWA's participation in and approval of the EIS. We disagree.
Federal courts have not agreed on the amount of federal involvement necessary to trigger the applicability of NEPA. In La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), cert. denied 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147 (1972) (prematurely filed), supplemented by 57 F.R.D. 94 (attorney's fees), aff'd 488 F.2d 559 (9th Cir.1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1138 (1974), the Federal District Court for the Northern District of California addressed the issue of whether "the federal regulations and statutes apply to a highway project upon location approval, construction approval, or some intermediate point...
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