Areas v. Fed. Highway Admin., Civil Action No. SA–08–CA–154–FB.

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: FRED BIERY, Chief Judge.
• Citation: 779 F.Supp.2d 542
• Parties: AQUIFER GUARDIANS IN URBAN AREAS, Plaintiff,v.FEDERAL HIGHWAY ADMINISTRATION; United States Fish and Wildlife Service; Amadeo Saenz, Executive Director, Texas Department of Transportation; Terry Brechtel, Executive Director, Alamo Regional Mobility Authority, Defendants.
• Docket Number: Civil Action No. SA–08–CA–154–FB.
• Decision Date: 22 April 2011

779 F.Supp.2d 542

AQUIFER GUARDIANS IN URBAN AREAS, Plaintiff,
v.
FEDERAL HIGHWAY ADMINISTRATION; United States Fish and Wildlife Service; Amadeo Saenz, Executive Director, Texas Department of Transportation; Terry Brechtel, Executive Director, Alamo Regional Mobility Authority, Defendants.

Civil Action No. SA–08–CA–154–FB.

United States District Court, W.D. Texas, San Antonio Division.

April 22, 2011.

[779 F.Supp.2d 544]

Charles Anthony Riley, Law Offices of Charles Riley, P.C., Charles Darby Riley, Attorney at Law, San Antonio, TX, William G. Bunch, Andrew Hawkins, Save Our Springs Alliance, Inc., Austin, TX, for Plaintiff.Clayton R. Diedrichs, U.S. Attorney's Office, Jonathan D. Pauerstein, Tuggey Rosenthal Pauerstein Sandoloski Agather LLP, San Antonio, TX, Jack Foster Gilbert, Federal Highway Administration, Lisa Marie McClain, Office of the Atty. General Transportation Division, C. Brian Cassidy, James W. Checkley, Jr., Locke Lord Bissell & Liddell, Andrew S. Miller, Kemp Smith, LLP, Darcy A. Frownfelter, Kemp Smith, PC, Austin, TX, Lawson Emmett Fite, Kevin W. McArdle, U.S. Department of Justice, Washington, DC, Elizabeth E. Mack, Locke Lord Bissell & Liddell, LLP, Dallas, TX, for Defendants.OPINION AND ORDER CONCERNING THE INTERNAL COMBUSTION ENGINE, H2O, Homo Sapiens and rhadine exilis. (AND THE SURVIVAL OF THE LATTER TWO) FRED BIERY, Chief Judge.

Progress might have been all right once, but it has gone on too long. ¹

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PROLOGUE

With a reverse cliché nod to Mr. Dickens,² it was the worst of times and the best of times.

“The Way We Were” ³ South Texas. 1950–1970 The Worst of Times

Men returned from World War II with medals for heroism, but could not serve on juries if their skin was brown.⁴

A family which would produce two United States Congressmen was not allowed to enjoy a public park because their name was Gonzalez.⁵

The Bellinger family on the segregated East Side of San Antonio paid taxes to support the University of Texas School of Law, but could not attend because their ancestors were brought involuntarily from Africa. Subsequently though, one Bellinger helped to right the wrong.⁶

The Velas and the Prados struggled to educate their children in the underfunded Edgewood Independent School District, notwithstanding the promise of equal education in the Texas Constitution.⁷ And Culebra Road seemed as wide as the Mississippi River to kids named Gloria and Ed.⁸

Women who preferred careers to domesticity could be secretaries, teachers or nurses. If they were married and wished to invest in real estate, husbands had to give permission based on the legal requirement of coverture.⁹ Nor were they seen

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on juries as full partners in a supposedly democratic society.¹⁰

Girls who wanted to participate in school activities had opportunities in band, choir, pep squad or cheerleading, but not in basketball, volleyball, track or softball until Title IX became federal law.¹¹

The Best of Times South Texas, 1950–1970

Air conditioning was virtually nonexistent.

Human obesity largely occurred in small numbers. “We're Number One,” was a chant denoting a winning sports team; now it refers to America's fatness (not fitness) ranking in the world.¹²

Allergies and asthma were rare.

Sleeping outside or on screened-in porches in August was normal.

Young Homo sapiens, born after World War II, whom the Court denominates Infantilus boomeramus, played outside, returning to those thrilling days of yesteryear with a hearty “Hi–Yo Silver!” ¹³ and leaped imaginary buildings in a single bound,¹⁴ wearing capes made from old pillowcases.

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They rode bikes or walked to schools which had windows that opened! The birth months of South Texas Infantilus boomeramae, minus nine, provide anecdotal evidence that the fundamental functioning of the procreation process took place in the cooler months, not in July or August.

Moms cooked and hung clothes on the line to dry. Dads supported the family on one income. Sons and daughters mowed the grass and washed the family car. Coaches had authority to apply wooden paddles to the gluteus maximus of misbehaving boys. But, alas, there was no three point shot for vertically-challenged basketball players. On the other hand, elderly people did not run multiple marathons as some do today.¹⁵

The nascent San Antonio Airport was surrounded by grazing land and cows. ¹⁶ Nearby, a youngster named Jim rode horses on property now covered with the asphalt, steel and concrete known as the Nowlin Building and the SWBC Tower. Meanwhile, about fifteen miles south, his future friend and colleague, affectionately known as Hippo, rarely ventured north of Hildebrand because his last name was Garcia. And the Rodriguez family could rent a home in Harlandale only if put in the name of an Anglo wife.¹⁷

Boerne, Kendall County, Texas had one flashing yellow light and one police officer who was also the Chief (Earl Buck). Kerr County had more goats and sheep than people.

One could drive north on two lane U.S. Highway 281 and see clear Edwards Aquifer water streaming from the limestone, some of which was used to brew La Cerveza Perla from the “Country of 1100 Springs.” ¹⁸

There were few traffic or water issues notwithstanding the severe drought of the 1950s.¹⁹

Lawyers Maverick, Cadena and Kauffman,²⁰ the Civil Rights Movement, and strong liberated women named Cockrell, Jarboe, Tafolla, and Valdez ²¹ addressed

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the worst of times, though a perfect union has yet to be formed.

The sounds of affordable air conditioning silenced the best of those mystic chords of memory.²²

A Funny Thing Happened on the Way to Modernity ²³

With artificially cooled cocoons, Homo sapiens theretofore unable or unwilling to take the heat in Texas began, and continue today, a diaspora from foreign states north, east and west of Texas:

Image 1 (3.28" X 3.51") Available for Offline Print

One wag once waxed wittily: “Texans, you are guarding the wrong river.” ²⁴

Instead of far from the madding crowd,²⁵ Texans saw the crowd getting closer and

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traffic more maddening. From a 1950 population of 500,000, Bexar County is now over 1,700,000 of suburban sprawl.²⁶ Comal, Kendall and Kerr, once pristine preserves of natural beauty, have fallen prey to avaricious, rapacious, and sometimes mendacious, development and its ubiquitous impervious cover of asphalt, roofs, concrete, shopping and eating venues. While many species live in the area in question, the subjects of this proceeding are Homo sapiens and karst invertebrates known as Rhadine exilis and Rhadine infernalis.

The conundrum facing this region is how to balance and manage finite resources of water, land, flora and fauna in light of exponential increases in the number of Homo sapiens and their vehicles, and the concomitant destruction of nature upon which all species rely for life. Perhaps a mission impossible.²⁷

The best solution would be a reverse migration of one million Homo sapiens to north of the Red River and east of the Sabine. The Court unfortunately does not have power to order such movement, but it could occur if air conditioning were unaffordable or the Edwards Aquifer becomes toxic or runs dry. Indeed, the slow cancerous death of drought visits again,³⁰ but with four times as many humans sucking from the same basic water hole.

The forty days and nights of Noah are looking better.³¹

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The lesson of move, adapt or die applies. Dinosaurs did not learn; cockroaches did.

In the meantime, the record reflects massive vehicular traffic congestion sought to be alleviated by proposed ramps connecting U.S. Highway 281 and Loop 1604.³²

The status quo of idling internal combustion engines on the subject roadways spews large quantities of carbon monoxide for Mother Earth to breathe, not a nice thing to do to one's mother, and causes automobile droppings onto and into the Edwards which the Court calls Petro Poop.

APOLOGUE The Law and Just the Facts, Ma'am ³³

Notwithstanding the foregoing historical observations and personal lamentation, the Court's obligation is to rule of law standards evolved through legislation, regulation, and stare decisis.

Rather than a case to be decided in the first instance in a court of law, this is an appeal from administrative and regulatory bodies to a court of law. As a result, this Court does not decide as a fact finder based on a preponderance of evidence standard, but instead sits in an appellate capacity to review administrative decisions ³⁴ based on a standard of whether such decisions were arbitrary and capricious.³⁵

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Summary of Arguments

Plaintiff seeks a preliminary injunction to maintain the aforesaid traffic congestion status quo until further environmental impact analysis can be accomplished. Plaintiff asserts a much larger expanse of the 281/1604 environs should be included rather than just the area over which the ramps would be built, and the administrative agency decision to exempt the project should be blocked by the Court because it was arbitrary and capricious.

Defendants respond that the administrative process provided appropriate public debate and the Federal Highway Administration decision to grant an exemption from environmental studies was made according to correct legal standards, was not arbitrary and capricious and, therefore, should not be reversed by the Court and that a two to three year environmental study of the larger area north of Loop 1604 is underway.³⁶

In lieu of a thousand words, two pictures show:

Image 2 (4.11" X 3.17") Available for Offline Print Image 3 (4.16" X 3.61") Available for Offline Print

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See Alamo Regional Mobile Authority website at http:// www. alamorma. org/ index. cfm/ projects/ us– 281– loop– 1604– interchange for more detail.

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Although it is undisputed that hundreds of thousands of vehicles pass through the U.S. 281/Loop 1604 interchange everyday, there is no...