Adler v. Lewis

Citation675 F.2d 1085
Decision Date30 April 1982
Docket NumberNo. 79-4645,79-4645
Parties, 12 Envtl. L. Rep. 20,674 Constance A. ADLER, Roosevelt Lathan and Pearline Lathan, etc., et al., Plaintiffs/Appellants, v. Andrew LEWIS, * Secretary of Transportation, Defendants/Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Roger M. Leed, Seattle, Wash., argued, for plaintiffs/appellants; Michael W. Gendler, Seattle, Wash., on brief.

David M. Shell, Pacific Legal Foundation, Sacramento, Cal., for amicus curiae.

Robert B. Rutledge, Portland, Or., argued, for defendants/appellees; Charles F. Secrest, Olympia, Wash., on brief.

Appeal from the United States District Court for the Western District of Washington.

Before SNEED and ANDERSON, Circuit Judges, and EAST, District Judge. ***

J. BLAINE ANDERSON, Circuit Judge:

The plaintiffs, numerous environmental organizations 1 and one private citizen, 2 appeal from the district court's judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants. 3

This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (I-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between I-5 in Seattle and I-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive "lidded" sections in Seattle and Mercer Island. Access to and from the facility is provided by several interchanges throughout its length: to Interstate 5, the western terminus of the project, by a major interchange with the center lane ramp terminating at the existing South Dearborn Street, and at another major interchange at the project's eastern terminus, an already completed portion of I-90, tying the facility into Interstate 405, the major north-south highway facility east of Lake Washington.

I. BACKGROUND

The facts pertinent to this appeal are here recited briefly, but for a complete understanding of this case's litigation, see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), Lathan I, the district court opinion on remand, Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972), and the second appeal to this court, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), Lathan II.

This court, in Lathan I, reversed the trial court's denial of a preliminary injunction, holding, inter alia (1) that the State and Federal defendants were to prepare an environmental impact statement (EIS) for the project pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq. (1970), and (2) that the displaced persons relocation plan prepared by defendants was insufficient to provide assurances of adequate housing to comply with the Uniform Relocation Act, 84 Statute 1894 (URA). An injunction was entered by the district court pursuant to this court's instruction, specifying that the defendants were enjoined from acquiring the right-of-way pending compliance with "applicable federal law." Lathan I, 455 F.2d at 1122.

Subsequently, a partial EIS was prepared (for the segment between I-5 in Seattle and Mercer Island-"Seattle Segment") and a new relocation plan. Following the ruling of the district court, this court in Lathan II affirmed, finding the Environmental Impact Statement (EIS) and § 4(f) 4 statements inadequate. 5 The Lathan II court, however, reversed a portion of the district court's decision and ordered that a new public hearing be held for the entire length of the I-90 project between I-5 and I-405, pursuant to 23 U.S.C. § 128. In addition, this court ordered that an EIS consistent with the requirements of NEPA was to be the basis of the public hearing, and continued the injunction pending compliance. No issue was raised regarding the district court's determination that the defendants had complied with the requirements of the URA based on the new relocation plan.

After Lathan II, WDOT prepared a new draft EIS covering the entire uncompleted portion of the I-90 project to serve as the basis for new public hearings under § 128(a). Three public hearings were held during January and February 1976. Following these hearings, it was clear that conflict existed regarding the size of the then ten-lane plan between the State and local affected jurisdictions. In an effort to resolve those conflicts, negotiations were initiated between the State of Washington DoT and the cities of Seattle, Mercer Island, and Bellevue, King County, and METRO 6 concerning further project development. As a result of these negotiations, an interjurisdictional consensus was reached in December 1976. This Memorandum of Agreement (MOA) provided for an eight-lane plan, continued incorporation of all environmental protection measures which had previously been incorporated into the larger project, and an independent study to be undertaken of various "transit access" provisions at both termini of the I-90 project (Seattle on the West and Bellevue on the East), with the parties subsequently seeking Federal funds to finance the access project.

A Final EIS for the eight-lane project was prepared by WDOT and submitted to the Secretary of Transportation on April 12, 1977, including a separate report addressing the § 4(f) involvements of the project. Judge Thompson, Jr., following agreement by the parties, wrote to the Secretary of Transportation requesting a decision. September 7, 1978, the Secretary issued his § 4(f) findings in the " § 4(f) Determination," that there were no feasible and prudent alternatives to the use of the § 4(f) lands and that the project included all planning to minimize harm to such § 4(f) lands.

Secretary Adams approved the project encompassing the entire uncompleted portion of the I-90 project between I-5 and the I-405 based upon the FEIS and " § 4(f) Analysis" in his "Decision Document" dated September 20, 1978. The Final Environmental Impact/s 4(f) Statement was approved and adopted by the Federal Highway Administration (FHWA) on September 22, 1978.

Defendants moved on October 3, 1978 to dissolve the injunction entered after Lathan I and requested the district court to enter an order establishing a schedule to control the course of future litigation in the consolidated cases. 7 The parties stipulated, notwithstanding other issues in the case, that WDOT should proceed with necessary safety improvements within the I-90 corridor, including removing the "bulge" in the Lacey V. Murrow floating bridge.

During the course of discovery proceedings, many parties plaintiff in the consolidated actions were dismissed. 8 The pretrial order framed issues under NEPA, Federal Aid Highway Act 23 U.S.C. §§ 128(a), 134(a), and 138, the Clean Air Act, 9 42 U.S.C. § 1983, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.

Trial was to the court in June 1979. The parties submitted Proposed Findings of Fact and Conclusions of Law as the court requested. On August 27, 1979, the court entered its Judgment dissolving the injunction and ruling for the defendants, based upon its Findings of Fact and Conclusions of Law dated August 22, 1979.

II. DISCUSSION
A. District Court Duty to Take a "Hard Look"

We summarily dispose of appellants' assertion that the district court erred in "mechanically" adopting findings of fact and conclusions of law. There is virtually nothing in this record to support the bald assertion. The evidence is, however, that the court studied the findings and conclusions submitted by both parties and that some were completely rewritten or substantially modified. The principles we apply are well established and we see no need to reiterate them once again. See, Hagans v. Andrus, 651 F.2d 622 (9th Cir.), cert. denied, Hagans v. Watt, --- U.S. ----, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); Mayview v. Rodstein, 620 F.2d 1347 (9th Cir. 1980); Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979); and Photo Electronics Corp. v. England, 581 F.2d 772 (9th Cir. 1978).

Appellants' argument that the district court did not conduct an objective review is based upon a letter by the court to the federal Secretary of Transportation. Appellants contend the court had a "personal commitment to seeing the project through to completion, ... (the judge had) made (a) personal written plea to Secretary Adams, urging him to expedite required approvals...." Brief of Appellants at 13.

From our analysis, there is nothing in the record to indicate the trial court acted with bias toward the defendants and their program. (RT 734). The judge remarked that he had written to the Secretary, requesting him "to approve this thing or not approve it, or at least make a decision on it ..." (RT 734). The bold assertions of one-sidedness by appellants are not supported by the record.

The appellants also contend the district court failed to independently review the appellees' administrative actions by ignoring central issues and excluding relevant evidence. These assertions relate to the adequacy of the EIS and the section 4(f) statement, and will be considered within the discussions of these issues, respectively.

B. 4(f) Determination

Appellants raise several questions pertaining to the Secretary of Transportation's compliance with the Department of Transportation Act of 1966, § 4(f), 49 U.S.C. § 1653(f) (1970). The national policy, announced...

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