Citizens Organized to Defend Environment, Inc. v. Volpe

• Decision Date: 15 December 1972
• Docket Number: Civ. A. No. 72-289.
• Citation: 353 F. Supp. 520
• Parties: CITIZENS ORGANIZED TO DEFEND the ENVIRONMENT, INC., et al., Plaintiffs, v. John VOLPE et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

353 F. Supp. 520

CITIZENS ORGANIZED TO DEFEND the ENVIRONMENT, INC., et al., Plaintiffs, v. John VOLPE et al., Defendants.

Civ. A. No. 72-289.

United States District Court, S. D. Ohio, E. D.

December 15, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joel E. Thomas, Isaac and Isaac, Columbus, Ohio, for plaintiffs.

William Milligan, U. S. Atty., and Gary Brinsfield, Asst. U. S. Atty., for defendants Volpe and Leathers.

William Brown, Atty. Gen. of Ohio, Donald Guitar, Asst. Atty. Gen., for defendants Gilligan and Richley.

Thomas P. Mulligan, Jones, Day, Cockley & Reavis, Cleveland, Ohio, for defendant Consolidated Coal Co.

Herbert Brown, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendant Consolidated Coal Co.

OPINION AND ORDER

KINNEARY, District Judge.

This is an action under the Federal-Aid Highway Act hereinafter Highway Act, 23 U.S.C. § 101 et seq., and under the National Environmental Policy Act hereinafter NEPA, 42 U.S.C. § 4331 et seq., to review decisions of the Secretary of the United States Department of Transportation concerning the construction of an interstate highway in Belmont County, Ohio and the proposed crossing of the highway by mining equipment owned and operated by Consolidation Coal Company. The Court has jurisdiction to review the actions of the Secretary, and his delegates, under the provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

This matter is before the Court on plaintiffs' motion for summary judgment, the cross-motion for summary judgment of the defendants John Volpe, Secretary of the United States Department of Transportation and Rex C. Leathers, a division engineer of the Federal Highway Administration hereinafter Secretary Volpe and his delegates, including Mr. Leathers, will be referred to as the "Secretary" unless individually named, the cross-motion for summary judgment of the defendants John J. Gilligan, Governor of the State of Ohio and J. Phillip Richley, Director of the Ohio Department of Transportation hereinafter Governor Gilligan, Director Richley, and their delegates are referred to as "Ohio" unless individually named, and the defendant Consolidation Coal Company hereinafter "Consol".

The parties have entered a stipulation of fact.¹ The relevant facts material to the legal issues herein are uncontroverted. Summary judgment is proper under the provisions of Rule 56 of the Federal Rules of Civil Procedure.

The Court will first set out a brief summary of the uncontroverted facts. Then there will be a short discussion of the scope of review. Thereafter, the Court will discuss and determine the Highway Act claim for relief, the pendent Ohio law claim, and the NEPA claim.

FACTS

Interstate 70 is a limited access, divided highway which is a part of the interstate highway system connecting major American cities; and it is a part of the Ohio highway system. Twenty-seven miles of I-70 travel through Belmont County, Ohio. The posted speed limits are 70 miles per hour for automobiles, and 55 miles per hour for trucks. I-70 is specifically designed to safely accommodate such traffic flow at such speeds.

In 1964, Consol owned or had mining interests in an area known as Egypt Valley in Belmont County, Ohio. Part of Consol's land in Belmont County, Ohio was in the path of the proposed route of I-70. The State of Ohio attempted to negotiate with Consol for the necessary right-of-way for the part of I-70 which divided the Egypt Valley coal field. Consol claimed damages caused by the dividing of its coal field by I-70 in a total amount of 8-10 million dollars. Ohio agreed with Consol to construct two underpasses under I-70 to permit Consol's coal trucks to pass under I-70 and agreed to permit Consol to cross over I-70 with mining equipment 10 times during a period of 40 years.²

The Secretary approved this agreement by a letter of September 3, 1964.³

On November 12, 1964, the State of Ohio and the Department of Commerce now the Department of Transportation entered a project agreement for the construction of I-70. The project agreement contained a paragraph approving the right-of-way with a reservation by Consol of a right to cross I-70 10 times during a period of 40 years.⁴

Construction of I-70 in Belmont County began in 1964. It was completed no later than the end of 1968.

On January 28, 1972, Consol requested Ohio's permission to cross I-70 pursuant to the 1964 agreement. Ohio gave its approval on March 6, 1972. The Secretary of Transportation approved the crossing plans on April 14, 1972.

A permit was issued on August 7, 1972 for the crossing of I-70 by the GEM strip mining shovel. On September 29, 1972, Consol requested Ohio to amend the crossing permit to substitute instead of the GEM the strip mining shovel known as the Mountaineer and the strip mining shovel known as the 46A shovel.

The crossing plans call for the rerouting of traffic off I-70 for approximately 1¼ miles around a causeway over which Consol will move its shovels over the highway. Temporary cross-over entrance and exit ramps will be constructed. They will connect with State Route 800. Traffic will thus flow for approximately 1¼ miles from I-70 onto exit ramps to State Route 800 onto entrance ramps and back to I-70. Uniformed flagmen will be stationed to direct traffic through the bypass. Other safety precautions will be taken including grading of the ramps to engineering specifications and signing of the detour.

To protect the pavement during the shovels' crossing a minimum of six feet of crushed stone and earth will be placed over the road. Heavy wooden mats would then be placed over the crushed stone and earth.

The proposed crossing would take approximately 24 hours.

The Department of Transportation has made a determination that the review and approval of the crossing plans submitted by Consol does not constitute major federal action which makes the National Environmental Policy Act of 1969 applicable.

SCOPE OF REVIEW

Review of federal administrative decisions is governed by the Administrative Procedure Act, 5 U.S.C. § 701 et seq., unless the decision is committed by law to agency discretion. 5 U.S.C. § 701(a)(2).⁵

Acts are committed to agency discretion only in the exceptional circumstance where statutes are so broadly drawn that there is no law to apply. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The actions of the Secretary to be reviewed were not committed entirely to his discretion, and they are, therefore, subject to review.⁶

Section 706 of the Administrative Procedure Act provides that:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

The Secretary's decision is entitled to a presumption of regularity, "but that presumption is not to shield his action from a thorough, probing, in-depth review." Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. supra at 415, 91 S.Ct. at 823.

In reviewing the Secretary's decision the Court must make the following determinations:

1. What is the scope of the Secretary's authority?

2. On the facts, was the Secretary's decision reasonably within the range of his authority?

3. Was the decision "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?" 5 U.S.C. § 706(2)(A).

4. Did the Secretary follow the necessary procedural requirements.⁷

Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. supra at 415-416, 91 S.Ct. 814.

One final caveat must be clearly stated in connection with judicial review of administrative actions. The Court does not act in place of the administrator. As the Supreme Court noted in Citizens To Preserve Overton Park, Inc. v. Volpe, 410 U.S. supra at 416, 91 S.Ct. at 824:

Although the Court's inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

The legality, not the wisdom, of the Secretary's actions is at issue.

HIGHWAY ACT

Plaintiffs contend that under the provisions of the Highway Act the Secretary was not empowered to authorize Consol to cross over I-70 with mining equipment 10 times during a period of 40 years. Plaintiffs advance two arguments in support of this position. Each will be considered in turn.

A. The Highway Act does not authorize a special non-highway use of any part of the federal interstate highway system which is not specifically provided for in the Act.

This argument rests upon the principle of statutory construction that when a legislative body circumscribes administrative authority with detailed limitations on its exercise, administrative authority is limited to powers expressly conferred or necessarily implied. See, e. g., Youngblood v. United States, 141 F. 2d 912, 913 (...