City of South Pasadena v. Slater, CV98-6996DDP(MANx).
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California |
| Citation | 56 F.Supp.2d 1106 |
| Decision Date | 19 July 1999 |
| Docket Number | No. CV98-6996DDP(MANx).,CV98-6996DDP(MANx). |
| Parties | CITY OF SOUTH PASADENA; et al., Plaintiffs, v. Rodney E. SLATER; et al., Defendants. |
v.
Rodney E. SLATER; et al., Defendants.
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Joseph W. Pannone, Kane Ballmer & Berkman, Los Angeles, CA, Donald P. Johnson, H. Francisco Leal, Beltran & Medina, Los Angeles, CA, Antonio Rossmann, Roger B. Moore, Antonio Rossman Law Offices, San Francisco, CA, for plaintiff City of South Pasadena.
Steven M. Friedman, Heller Ehrman White & McAuliffe, Los Angeles, CA, Antonio Rossmann, Roger B. Moore, Antonio Rossman Law Offices, San Francisco, CA, Elizabeth S. Merritt, National Trust for Historic Preservation, Washington, DC, Steven Russell Tekosky, Johnson & Tekosky, Los Angeles, CA, for plaintiff Nat. Trust for Historic Preservation.
Jan Chatten-Brown, Jan Chatten-Brown Law Offices, Los Angeles, CA, Antonio Rossmann, Roger B. Moore, Antonio Rossman Law Offices, San Francisco, CA, for Plaintiffs Sierra Club, Los Angeles Conservancy, Pasedena Heritage, South Pasedena Preservation Foundation.
Antonio Rossmann, Roger B. Moore, Antonio Rossman Law Offices, San Francisco, CA, Carolyn Douthat, Carolyn Douthat Law Offices, Oakland, CA, for Plaintiff Cal. Preservation Foundation.
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David V. Rose, Wright Robinson Osthimer & Tatum, Los Angeles, CA, Antonio Rossmann, Roger B. Moore, Antonio Rossman Law Offices, San Francisco, CA, for Plaintiff South Pasedena Unified School Dist.
Leon W. Weidman, Monica L. Miller, Asst.U.S.Attty., Office of U.S. Attorney, Civil Div., Los Angeles, CA, for Defendants Rodney E. Slater, Kenneth R. Wykle, Fed. Highway Admin.
Glenn B. Mueller, Department of Transporation, Legal Division, San Diego, CA, for Defendants James W. Van Loben Sels, Cal. Transp. Comm'n.
Glenn B. Mueller, Jeffrey A. Joseph, Department of Transporation, Legal Division, San Diego, CA, for Defendant Cal. Dept. of Transp.
Jeffrey A. Joseph, Department of Transporation, Legal Division, San Diego, CA, for Defendant Jose Jose Medina.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
PREGERSON, District Judge.
The plaintiffs' motion for preliminary injunction came before the Court for oral argument on November 17, 1998 and July 1, 1999. After reviewing and considering the materials submitted by the parties and hearing oral argument, the Court grants in part and denies in part the motion for preliminary injunction.
The plaintiffs are the City of South Pasadena ("South Pasadena"), the National Trust for Historic Preservation, the Sierra Club, the California Preservation Foundation, the Los Angeles Conservancy, the Pasadena Heritage, the South Pasadena Preservation Foundation, and the South Pasadena Unified School District. The defendants are the United States Secretary of Transportation Rodney E. Slater, the Federal Highway Administrator Kenneth R. Wykle, the Federal Highway Administration ("FHWA"), the Director of the California Department of Transportation Jose Medina,1 and the California Department of Transportation ("Caltrans").
The plaintiffs seek to enjoin the extension of the 710 Freeway through Los Angeles, South Pasadena, and Pasadena.
The 710 Freeway begins in Long Beach and continues northward intersecting the 10 Freeway. It ends shortly thereafter as it leaves Alhambra to enter Los Angeles. It then resumes about a quarter of a mile south of the 210 Freeway in Pasadena where it terminates upon reaching the 210 Freeway. The defendants seek to extend the 710 Freeway a distance of 4.5 miles in order to connect both segments. This extension is known as the "710 Freeway Project."
The project has a long history. In 1964, Caltrans proposed what is known as the "Meridian Route" for the 710 Freeway Project. This route closely followed Meridian Avenue. In January 1973, the City of South Pasadena filed suit in this Court against the current defendants' predecessors because they had approved the 710 Freeway Project without preparing an environmental impact statement ("EIS"). The Honorable Judge E. Avery Crary issued an injunction mandating that the defendants prepare an EIS. Caltrans abandoned the Meridian Route between 1977 and 1981, focusing instead on a proposal to extend the 110 Freeway 1.5 miles to the north to connect with the 210 Freeway. The FHWA, however, rejected the 110 Freeway extension.
In 1982, Caltrans revived the Meridian Route and secured state approval in 1984. In 1983 and 1984 the Advisory Council on
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Historic Preservation ("Advisory Council"), a federal agency, suggested that because of the impact on historical resources, the FHWA should adopt a "no-build" alternative. This was rejected. In 1986, Caltrans circulated a draft EIS proposing a modified route, the "Meridian Variation." In April 1991, South Pasadena requested that the defendants evaluate a "low-build" alternative. On March 2, 1992, Caltrans released the final EIS ("FEIS") for the Meridian Variation.
In 1992, after the FEIS was signed, the FHWA convened the "Enhancement and Mitigation Advisory Committee"2 to address the concerns parties had with the Meridian Variation and minimize harms associated with the freeway extension.
In January 1993, the Advisory Council referred the 710 Freeway Project controversy to the President's Council on Environmental Quality ("CEQ").3 CEQ determined that the FHWA needed to conduct additional evaluations of the project's impacts on historical resources and that the FHWA needed to develop and analyze a low-build alternative.
In September 1993, South Pasadena developed a low-build alternative to the 710 Freeway Project known as the "Multi-Mode Low-Build Alternative" ("MMLB").
In November 1995, the Keeper of the National Register of Historic Places4 determined that the Short Line Villa Tract Historic District in El Sereno was eligible for the National Register. The Meridian Variation traversed this district. In response, Caltrans announced that it would shift the proposed route to avoid the district by 15 feet. This was known as the Berkshire Shift.
In December 1995, the Department of the Interior ("DOI") withdrew its concurrence to the project.5 The DOI stated that a supplemental EIS ("SEIS") was appropriate and necessary before the final decision was made. The defendants have not produced an SEIS.
In 1996, Caltrans studied the MMLB in a report entitled "State Route 710: A Model Evaluation of the City of South Pasadena's Multi-Mode Low Build Proposal." The report concluded that the MMLB was unsatisfactory because it would not meet the project's purpose and need.
In late 1997, Caltrans and the federal defendants modified the freeway route. This route is known as the "Depressed Meridian Variation Alternative Reduced
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with Shift Design Variation," which is the subject of this dispute.
In March 1998, the Environmental Protection Agency ("EPA") and the Advisory Council announced their objections to the route. They asserted that the defendants should conduct an SEIS and should "honestly" consider a low-build alternative.
On April 13, 1998, the Secretary of Transportation, Rodney Slater, authorized the issuance of a federal Record of Decision ("ROD") approving the project. The ROD is the final administrative decision which represents that the government has complied with all statutory requirements and allows the project to be built.
The ROD places limits on the defendants, imposes conditions on the use of federal funds, and requires the defendants to conduct an SEIS and certain feasibility studies. The ROD modified the final route by adding one additional cut-and-cover tunnel6 in the El Sereno neighborhood of Los Angeles. The ROD provided that if this tunnel is found to be infeasible then the ROD will be null and void. The ROD is binding on the federal defendants, but not on the California defendants. At oral argument, the attorney for the California defendants stated that the prior Caltrans director was committed to the ROD's terms. However, the California defendants were unable to represent that the commitment would continue given the election of a new administration.
The defendants submitted the full administrative record on May 10, 1999.7
The plaintiffs seek a preliminary injunction preventing future planning and monetary expenditures, and imposing certain requirements on the defendants. The plaintiffs claim that the defendants violated three federal statutes in developing the 710 Freeway Project: Section 4(f) of the Department of Transportation Act, the National Environmental Policy Act, and the Clean Air Act.
I. Legal standard for preliminary injunctions
Within the Ninth Circuit a court may issue a preliminary injunction if the moving party meets one of two alternative tests. See International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993). In the first test the moving party must demonstrate: "(1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of potential harm favors the moving party; and, depending on the nature of the case, (4) the public interest favors granting relief." Id. Alternatively, the moving party may demonstrate either "(1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor." Id. These standards "are not separate tests, but the outer reaches of a single continuum." Id.
II. Whether the defendants complied with Section 4(f) of the Transportation Act
A. Introduction and Standard of Review
The issue here is whether the Secretary of Transportation ("the Secretary") complied
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with Section 4(f) of the Department of Transportation Act ("DOTA"), 49...
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