Coalition for Canyon Preservation v. Bowers
| Decision Date | 09 October 1980 |
| Docket Number | No. 79-4843,79-4843 |
| Citation | 632 F.2d 774 |
| Parties | , 63 A.L.R.Fed. 1, 11 Envtl. L. Rep. 20,053 COALITION FOR CANYON PRESERVATION, Plaintiff-Appellant, v. Karl S. BOWERS, Administrator, Federal Highway Administration et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven J. Perlmutter, Helena, Mont., for plaintiff-appellant.
James C. Kilbourne, Dept. of Justice, Washington, D.C., Terrance L. J. Clausen, Helena, Mont., for defendants-appellees.
Appeal from the United States District Court for the District of Montana.
Before KENNEDY, SKOPIL, and ALARCON, Circuit Judges.
This is an environmental case involving the proposed construction of a 10.8 mile four-lane segment of U.S. Highway 2, the main access route into Glacier National Park. The Coalition for Canyon Preservation (Coalition) appeals from the judgment of the district court denying it all relief.
Four issues are raised on appeal: (1) did the district court abuse its discretion in holding that the suit was barred by laches; (2) was the environmental impact statement (EIS) inadequate under state and federal environmental policy acts because it did not adequately discuss secondary impacts and the alternative of an improved two-lane road; (3) was the Secretary of Transportation's § 4(f) determination invalid because he failed to consider the "feasible and prudent" alternative of an improved two-lane road; and (4) did the public hearings procedures followed by defendants violate the regulations of the Federal-Aid Highway Act? For the reasons set forth below, we reverse and remand this case to the district court.
U.S. Highway 2 extends the width of Montana, running roughly parallel to the Canadian border and from 40 to 60 miles south of it; for most of its length in Montana the highway is a two-lane facility. In 1962, the Montana Department of Highways (MDOH) began planning to upgrade a 10.8 mile segment of Highway 2 running easterly from the South Fork Bridge crossing near Bad Rock Canyon through Hungry Horse, Martin City and Coram to West Glacier. The proposed improvement is the main highway approach to the west entrance of Glacier National Park. By late 1968, the MDOH had formal plans for a four-lane road between Hungry Horse and a point just east of Martin City, with the remaining segment to West Glacier to be an improved and widened two-lane road.
For the next eight years, the project progressed through various design changes, hearings, and authorizations. The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 (1976 & Supp. II 1978), was enacted effective January 1, 1970, and impact statements were prepared. The MDOH received right-of-way authorization from the Federal Highway Administration (FHWA) for the Coram to West Glacier segment on January 6, 1976. Right-of-way authorization for the Hungry Horse to Coram segment was received on May 15, 1978. Beginning in the spring of 1976, some local residents began advocating an improved and widened two-lane road in lieu of the four-lane proposal. They started a campaign of letter writing and petition circulation, but the record does not reveal the response to it.
On October 20, 1978, a timber sale contract was awarded by the U.S. Forest Service to remove timber from Forest Service parcels on the right-of-way for the Coram to West Glacier segment of the project. Timber cutting under the contract commenced on or about the second week in November, 1978, and has since been completed.
The Coalition for Canyon Preservation is a nonprofit corporation formed in November, 1978, and composed mainly of residents in the area affected. It filed suit against the Secretary of Transportation, the Administrator of the FHWA, the Director of the MDOH, and the members of the Montana Highway Commission on January 5, 1979. 1 The complaint alleged that: (1) the final EIS violated NEPA because it did not adequately discuss alternatives to the proposed action or its impacts on the environment; (2) the EIS violated the Montana Environmental Policy Act (MEPA), Mont.Code Ann. § 75-1-101 et seq. (1979), for similar reasons; (3) the public hearings on the draft EIS were not held in accordance with NEPA and appropriate regulations; (4) the MDOH did not timely request design approval, in violation of 23 U.S.C. § 128(a) and applicable regulations; and (5) the highway project included the taking of public parkland without the EIS-4(f) statement having considered the "feasible and prudent" alternative of an improved two-lane highway, in violation of § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, and § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f).
The Coalition sought declaratory equitable relief to prevent the federal and state defendants from taking any further action on the highway project, including accepting or opening bids, letting contracts, or acquiring further right-of-way, until they complied with NEPA and other applicable statutes and regulations.
After a two-day evidentiary hearing, the district court on November 14, 1979, denied all relief and dismissed the action on the ground of laches. Coalition for Canyon Preservation v. Bowers, 479 F.Supp. 815 (D.Mont.1979). That court additionally discussed the merits of some of the Coalition's substantive claims. On December 18, 1979, after having timely filed its notice of appeal, the Coalition applied to this court for injunctive relief and for expedition of its appeal. Injunctive relief was granted and the appeal was ordered expedited. Right-of-way acquisition is now complete, utilities have been relocated, and approximately 92 acres of timber have been cleared.
Laches is not a favored defense in environmental cases. Cady v. Morton, 527 F.2d 786, 792 (9th Cir. 1975); City of Davis v. Coleman, 521 F.2d 661, 678 (9th Cir. 1975). Its use should be restricted to avoid defeat of Congress' environmental policy. In considering laches claims, it is relevant that the plaintiff will not be the only victim of possible environmental damage. City of Rochester v. United States Postal Service, 541 F.2d 967 (2d Cir. 1976); City of Davis v. Coleman, 521 F.2d at 678. Citizens have a right to assume that federal officials will comply with the applicable law. Cady v. Morton, 527 F.2d at 792. As we stated in City of Davis v. Coleman : 521 F.2d at 678.
The question whether laches bars an action depends upon the facts and circumstances of the particular case. Lathan v. Brinegar, 506 F.2d 677, 692 (9th Cir. 1974) (en banc). The decision to apply laches is primarily left to the discretion of the trial court, id., but that discretion is, of course, confined by recognized standards. The district court must find (a) lack of diligence by the party against whom the defense is asserted and (b) prejudice to the party asserting the defense. Lathan v. Brinegar, 506 F.2d at 692.
An essential part of the diligence requirement is proof of knowledge of a legal right, assertion of which is delayed. City of Davis v. Coleman, 521 F.2d at 678. In determining a party's diligence, factors to be considered include: (1) whether the party has made an attempt to make his position known to the agency before the filing of suit; (2) the agency response to the request; and (3) developments such as preparatory construction that tend to motivate citizens to investigate the legal bases for challenging the agency action. See Cady v. Morton, 527 F.2d at 792; City of Davis v. Coleman, 521 F.2d at 673; Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir. 1975).
In determining whether delay is prejudicial, a pertinent inquiry is whether substantial work on the project had been completed before suit was brought. See Save Our Wetlands, Inc. v. United States Army Corps of Eng'rs, 549 F.2d 1021, 1027-28 (5th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). In some cases, even substantial completion has been insufficient to bar suit. See City of Davis v. Coleman, 521 F.2d at 678 (); Arlington Coalition on Trans. v. Volpe, 458 F.2d 1323, 1328 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972) (). The number of dollars spent or the percentage of project completion is significant primarily to indicate if it would be difficult to alter the basic plan. If the In holding that the Coalition's claims were barred by laches, the district court noted that the first formal proposals for the project were set out in a 1969 corridor hearing in Hungry Horse and that final location approval had been granted in April, 1975, while suit was delayed until 1979. The court also stressed that over one million dollars had been spent on the project, that if the plans were now altered "some of that expenditure (would) be lost," and that delay would be costly because of inflation. Coalition for Canyon Preservation v. Bowers, 479 F.Supp. at 819.
difficulty is substantial, compliance with state or federal environmental policy acts may not result in any major changes or environmental benefits. See Save Our Wetlands, Inc. v. United States Army Corps of Eng'rs, 549 F.2d at 1028; City of Rochester v. United States Postal Service, 541 F.2d at 977; Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 868-69 (5th Cir. 1975); Steubing v. Brinegar, 511 F.2d at 495; Organizations United for Ecology v. Bell, 446 F.Supp. 535, 551 (M.D.Pa.1978).
We hold the district court erred in attributing delay in suit...
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