Clark v. Volpe
| Decision Date | 29 March 1972 |
| Docket Number | Civ. A. No. 72-541. |
| Citation | 342 F. Supp. 1324 |
| Parties | Albert CLARK et al. v. John A. VOLPE, Secretary of Transportation of the United States of America and Leon Gary, Director of Department of Highways, State of Louisiana. |
| Court | U.S. District Court — Eastern District of Louisiana |
Richard M. Troy, Jr., New Orleans, La., for plaintiffs.
Blake G. Arata, City Atty., New Orleans, La., for intervenor City of New Orleans, plaintiff.
Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, La., for intervenor Boh Bros., defendant.
John R. Schupp, Asst. U. S. Atty., New Orleans, La., for defendant United States.
Robert Jones, Dept. of Highways, State of La., Baton Rouge, La., for defendant State of La.
Plaintiffs, six individuals and two non-profit corporations, bring this class action for injunctive relief, seeking to delay, and ultimately to prevent, the construction of a federal-aid highway known as I-610 through City Park, in the City of New Orleans. Plaintiffs, claiming to represent a class of individuals who use the park frequently and are interested in its development, allege that defendants, John A. Volpe, Secretary of Transportation of the United States of America, and Leon Gary, Director of the Department of Highways, State of Louisiana, by failing to comply with provisions of five federal statutes, have rendered the construction of I-610 illegal. The City of New Orleans and Boh Brothers Construction Company have intervened on behalf of defendants.
The Department of Transportation Act of 1966, section 4(f)1 and the Federal Aid to Highway Act of 1968, section 1382 became effective law on August 23, 1968. These Acts provide that the Secretary of Transportation shall not approve any project which requires the use of parkland without making a determination that (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to the parkland. Plaintiffs allege that no such determinations have been made.
The National Environmental Policy Act of 1969, section 102(2)3 became effective law on January 1, 1970. This Act provides that in every major federal action significantly affecting the quality of the environment, the responsible official (the Secretary of Transportation in the case of federal highways) shall conduct studies and prepare a detailed statement concerning the environmental impact of a proposed action. Plaintiffs allege that no environmental impact statement has been made.
Section 128 of Title 23 of the United States Code became effective law on August 27, 1958. This statute provides that any state highway department which submits plans for a federal-aid highway to go through any city must certify to the Secretary of Transportation that public hearings have been held to consider the economic effects of such a highway. The statute was amended August 23, 1968 to require the state highway department to certify additionally that a public hearing has been held to consider the environmental impact of such a highway. Plaintiffs allege that no public hearings were had concerning the six-lane I-610 highway, but concede that a public hearing was held in 1958 before the New Orleans City Council concerning the effects of a four-lane federal-aid highway to be routed through City Park.
Section 134 of Title 23 of the United States Code, as amended, became effective law on July 1, 1965. The statute provides that after July 1, 1965, the Secretary of Transportation shall not approve any project in an urban area of more than fifty thousand population unless he finds that such project is based on a continuing comprehensive transportation planning process, carried on cooperatively by the state and local community in conformance with the objectives of the Act. Plaintiffs allege that no determination has been made that the I-610 highway was based on a "continuing comprehensive transportation planning process".
Defendants and intervenors moved to dismiss this action on the basis of laches. Defendants and intervenors assert that plaintiffs have delayed inexcusably in bringing suit and that plaintiffs' delay has resulted in prejudice to defendants and intervenors. An evidentiary hearing, confined to the issue of laches, was held on March 21, 1972. After careful consideration of the record, the testimony and exhibits introduced at the hearing, the stipulations of the parties, and the controlling legal authorities, the Court concludes, somewhat reluctantly, that plaintiffs' action is barred by application of the doctrine of laches.
The prospect of constructing a federal-aid highway through City Park first came to public attention some fifteen years ago in 1956 when the New Orleans City Council received a report by Howard, Needles, Tammen, and Bergendorf, consulting engineers, which considered the feasibility of planning a highway through the Park.4 A public hearing was held on February 11, 1958, at which the merits of constructing a highway through City Park was debated, and at which the City Planning Commission submitted a map on which was shown the proposed route of what is now known as the I-610 Highway.5 The route bisected the park from east to west and vice versa, and was immediately adjacent and parallel to railroad tracks which have been in place for many years prior to conception of any highway plan.
Defendants and intervenors have shown that the proposed construction of an interstate highway through City Park has been a matter of considerable and extensive public discussion ever since the 1958 hearing. On March 22, 1964, the Times-Picayune, a daily morning newspaper of wide circulation, published an article concerning the proposed highway, accompanied by two photographs showing clearly that the highway would traverse City Park parallel to the railroad tracks.6 Many other newspaper clippings demonstrating public notice of the I-610 project were admitted in evidence.7
During 1965, the New Orleans City Park Improvement Association negotiated with the State Department of Highways for the purchase outright of a 200 foot wide stretch of land adjacent to the railroad tracks to provide a highway location, and on February 4, 1966, the City of New Orleans and the City Park Improvement Association sold the strip of land in fee to the State of Louisiana for the sum of $1,240,000.00.8 The State became the owner of the highway location on that date, and the City expended the funds derived from the sale to develop the northern portion of City Park for public use.9
The task of highway design had been undertaken in 1958. Approval of design as a six-lane highway was given in October of 1962.10 Design approval for the section of land acquired from City Park was given on August 25, 1966.11
The piecemeal preliminary requirements for actual construction of the I-610 began in 1968. Advertisement for bids for sub-surface drainage work occurred in the middle of that year.12 Advertisement for bids for clearance of the strip was made in mid-1970.13
On May 25, 1971, the Secretary of Transportation gave final approval to the I-610 federal-aid highway project. On that same date highway contractors were invited to bid on the section of land parallel to the railroad tracks in City Park. Intervenor, Boh Brothers, was the successful bidder, and a construction contract was signed on July 14, 1971.14 Boh Brothers was authorized to begin construction on July 19, 1971.15
Photographs taken on July 22, 1971 show that signs were installed on the project advising the public that a federal highway was being constructed.16 Aerial photographs taken on July 25, 1971 showed clearly that obvious and extensive demolition of buildings and commencement of highway construction had taken place outside of the park and that the highway was heading inexorably toward the Park from both the East and the West.17
Highway construction work has proceeded on the sector of state owned land through the Park since July 19, 1971 and continues at the present time. The segment of land has been graded, and sub-surface drainage has been installed. The work has necessitated the relocation of Zachary Taylor Drive, a roadway in the Park. Permanent structures such as pilings and footings have been and are now being erected. Boh Brothers estimates that 25% to 30% of the total work has been completed.18
Plaintiffs' suit to enjoin further construction was not filed until February 24, 1972. Defendants and intervenors urge that it would be highly prejudicial to them to be required to halt construction at this late date.
Plaintiffs submit that laches cannot apply to a suit brought by a private citizen asserting a public right. In support of that contention plaintiffs cite Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), in which case plaintiffs, under Title II of the Civil Rights Act of 1964, were awarded attorneys' fees on the theory that plaintiffs were "private attorneys general" suing in protection of the public interest.
Styling themselves as "private attorneys general", plaintiffs claim derivative sovereign immunity to the defense of laches. The recent cases of Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238, 246 (M.D.Pa., 1970), aff'd 454 F.2d 613 (3d Cir., 1971) and Harrisburg Coalition Against Ruin. Envir. v. Volpe, 330 F.Supp. 918 (M.D.Pa., 1971), both suits seeking injunction of highway construction for ecological reasons, although holding that laches did not apply in those cases, clearly considered that the doctrine can apply in a case such as the instant one. This Court agrees that laches can constitute a defense in this case. The Court does not believe that Congress intended that a plaintiff should be permitted...
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Citizens Organized to Defend Environment, Inc. v. Volpe
...446 F.2d 1013 (5th Cir. 1971); Conservation Society of Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761 (D.Vt.1972); Clark v. Volpe, 342 F.Supp. 1324 (E.D.La.1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Calif.1972); Morningside — Lenox Park Association, Inc. v. Volpe, 334 F......
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