Association Concerned About Tomorrow, Inc. v. Dole

• Decision Date: 04 June 1985
• Docket Number: Civ. A. No. 3-83-0585-H.
• Citation: 610 F. Supp. 1101
• Parties: ASSOCIATION CONCERNED ABOUT TOMORROW, INC. (ACT), et al., Plaintiffs v. Elizabeth DOLE, as Secretary of United States Department of Transportation, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

610 F. Supp. 1101

ASSOCIATION CONCERNED ABOUT TOMORROW, INC. (ACT), et al., Plaintiffs v. Elizabeth DOLE, as Secretary of United States Department of Transportation, et al., Defendants.

Civ. A. No. 3-83-0585-H.

United States District Court N.D. Texas, Dallas Division.

June 4, 1985.

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Walter A. Cober, Grand Prairie, Tex., for plaintiffs.

James A. Rolfe, U.S. Atty. by Claude Brown, Fort Worth, Tex., Mary Ann Moore, Asst. U.S. Attys., Dallas, Tex., James O. Price, Sp. Asst. U.S. Atty., Fort Worth, Tex., for Federal defendants.

David R. Thomas, Asst. Atty. Gen., State of Tex., Dallas, Tex., for State defendants.

REVISED FINDINGS OF FACT AND CONCLUSIONS OF LAW

SANDERS, District Judge.

This is an action brought for declaratory and injunctive relief challenging the construction of a federally-funded primary highway route, designated State Highway 161, through Grand Prairie, Texas. Plaintiffs seek a declaratory judgment that Defendants have violated certain federal statutes in the planning and processing of the highway, and a preliminary and permanent injunction requiring Defendants to prepare a full, complete and adequate environmental impact statement (EIS) and § 4(f) statement, and to conduct additional public hearings before taking further steps toward completion of the highway.

This case was tried before the Court without a jury on March 11-15, 18, and 20, 1985. Based on the pleadings, the evidence adduced at trial, the stipulations, the arguments of counsel, the notes of the Court and the law clerk, the Court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). Any findings which constitute conclusions or conclusions which constitute findings should be deemed the other, as appropriate.

Findings of Fact

Parties

1. Plaintiff Association Concerned About Tomorrow, Inc. (ACT) is a voluntary association of Grand Prairie, Texas, homeowners formed to oppose the construction of State Highway 161.

2. The individual Plaintiffs have alleged specific concerns that the SH 161 project will harm their property and/or welfare. None of the individual Plaintiffs allege membership in ACT.

3. Defendants Elizabeth Dole, Secretary of the United States Department of Transportation and Ray Barnhart, Administrator of the Federal Highway Administration are charged with the enforcement of and adherence to the statutes that form the basis of this action.

4. Defendants Robert C. Lanier, Robert H. Dedman and John R. Butler, Jr. are appointed members of the Texas State Highway and Public Transportation Commission and are charged with directing the State Department of Highways and Public Transportation (SDHPT) to assist and participate in the environmental processing of SH 161.

History of Project

5. SHPTC passed Minute Order 62250 on May 6, 1969, establishing an outer loop highway around Dallas County, designated Loop 9. Defendants' Exhibit 1 (DX 1).

6. For purposes of environmental processing and public hearings, Loop 9 was divided into four "legs". The west leg of Loop 9 was to originate at the intersection of Interstate Highway (IH) 20 in Grand Prairie north to Denton Tap Road in Coppell, Texas. DX 14, 78 7. SHPTC passed Minute Order 63299 on January 30, 1970, authorizing State Highway Spur 484 in Irving from IH 635 southwesterly to an intersection with the proposed route of the west leg of Loop 9. DX 16.

8. Following published notice, a public hearing on the route location of the west leg of Loop 9 and the route location of Spur 484 was held in Grand Prairie on April 15, 1970. DX 29, 30, 31.

9. SHPTC passed Minute Order 64852 on April 29, 1971, approving the route of the west leg of Loop 9 between IH 20 and Rock Island Road in Grand Prairie. DX 67, 78.

10. The route for the west leg of Loop lies in the same corridor as does the route for proposed SH 161. The alignment of the two roads diverges in the area near C.P. Waggoner Park and near the intersection with U.S. 80. DX 437, 438; Englert testimony.

11. The Final Environmental Impact Statement (FEIS) for the west leg of Loop 9 was approved by the Federal Highway Administration (FHWA) on August 17, 1971. DX 98.

12. Following published notice, a public hearing for the design of the west leg of Loop 9 from IH 20 north to NW 19th Street, north of Kensington/Cain Street, was held in Grand Prairie on June 14, 1973, and, subsequently, FHWA approval of the design was published. DX 134, 135, 136, 137.

13. Following published notice, a public hearing for the design of the west leg of Loop 9 from NW 19th Street, north of Kensington/Cain Street, to north of the Rock Island Road in Grand Prairie was held on January 15, 1975. DX 202, 204, 205.

14. No further public hearings on SH 161 have been held since January 15, 1975.

15. On October 21, 1977, SHPTC cancelled Loop 9 as part of the State Highway System (Minute Order 73581) after failure of a bond issue and designated a controlled access state highway described as originating at IH 20 in Grand Prairie northerly to SH 114 in Irving by Minute Order 73580. This highway subsequently was designated SH 161 by SHPTC. DX 242, 243.

16. On October 31, 1979, SHPTC lengthened SH 161 by the addition of Spur 484. The designation of Spur 484 was withdrawn, and the entire route from IH 20 to IH 635 carried the designation of SH 161 by Minute Order 76416. DX 270.

17. The City of Grand Prairie and many Grand Prairie residents who lived in the area of Waggoner Park began an effort in 1971 to urge the shift in alignment of West Loop 9 from its present location through the Wildwood Oaks residential area near Waggoner Park into the park itself. Plaintiff Englert authored a petition, ultimately signed by 284 citizens, requesting such a shift. DX 108, 205, at 22, 52, 58.

18. In 1979 FHWA determined that a "Section 4(f) evaluation", pursuant to 49 U.S.C. § 1653(c), would be necessary before the utilization of any public parkland for the right-of-way of SH 161. A final 4(f) evaluation, determining that there existed no feasible and prudent alternative to the utilization of parkland, was approved by FHWA on April 3, 1981. As a part of the determination, FHWA required that the City of Grand Prairie provide replacement land contiguous to the park which was suitable for park development. DX 306, 306A.

19. As a result of this shift in alignment, approximately 11 acres of Waggoner Park became included in the right-of-way for SH 161.

20. An alignment modification of SH 161 between its proposed intersection with U.S. 80 northerly to NW 19th Street was approved by FHWA on December 14, 1982, upon advice from SDHPT that each property owner and tenant affected by the shift alignment had been contacted, informed and asked to comment. DX 351.

21. The entire route of the SH 161 project was re-evaluated in 1984 by FHWA, pursuant to 23 C.F.R. 771.129. The Reevaluation concluded that changes in the project since the FEIS was approved for the west leg of Loop 9 in 1971 were minimal and that no new significant impacts were identified that required the development and processing of a supplemental Environmental Impact Statement. DX 410. No public hearings were held on the Re-evaluation, and the resulting document was not circulated among other federal agencies or the public for comment.

22. Plaintiffs have stipulated that they will not suffer any injury from the construction of SH 161 in the City of Irving, north of Rock Island Road. Stipulation of May 23, 1984.

Jurisdiction and Standing: Conclusions

1. This Court has subject matter jurisdiction of this case under 28 U.S.C. § 1331. Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916 (D.Miss.1972), aff'd, 492 F.2d 1123 (5th Cir. 1974).

2. The Court has jurisdiction over all parties in this case.

3. Venue is proper in the Northern District of Texas, Dallas Division.

4. Although the Court has doubts as to the standing of Plaintiff ACT to seek relief in this case, Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Sierra Club v. SCM Corp., 747 F.2d 99, 103 (2d Cir.1984), the individual Plaintiffs have alleged sufficient and specific injuries-in-fact to prove standing. Stipulation on Testimony of Plaintiffs; Joseph v. Adams, 467 F.Supp. 141, 149 (E.D. Mich.1978).

NEPA: Findings and Conclusions

1. The National Environmental Policy Act of 1969, (NEPA), 42 U.S.C. § 4321 et seq., requires federal agencies to consider the significant environmental consequences of their actions and to inform the public of the results of their research. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). NEPA's requirements are "essentially procedural", Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), and the scope of judicial review of an agency's compliance with NEPA is limited. Texas Committee on Natural Resources v. Marsh, 736 F.2d 262 (5th Cir.1984), modified, 741 F.2d 823 (1984).

The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. Baltimore Gas, supra, 103 S.Ct. at 2753. Courts must not "fly speck" an EIS, Sierra Club v. Sigler, 695 F.2d 957, 965 (5th Cir.1983), reh. denied, 704 F.2d 1251 (5th Cir.1983), and must "avoid placing extreme or unrealistic burdens on the compiling agency". Isle of Hope Historical Ass'n, Inc. v. United States Army Corps of Engineers, 646 F.2d 215, 220 (5th Cir.1981) (per curiam).

The burden of proof remains on Plaintiffs to establish the inadequacy of NEPA actions by a preponderance of the evidence, rather than by a prima facie showing of deficiencies. Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir.1975).

2. Defendants do not claim...