Coalition for Canyon Preservation v. Bowers

• Decision Date: 14 November 1979
• Docket Number: No. CV 79-1-M.,CV 79-1-M.
• Citation: 479 F. Supp. 815
• Parties: COALITION FOR CANYON PRESERVATION, Plaintiff, v. Karl S. BOWERS, in his official capacity as Administrator, Federal Highway Administration; Brock Adams, in his official capacity as Secretary, U.S. Department of Transportation; Ronald Richards, in his official capacity as Director, Montana Department of Highways; George Vucanovich, William Kessner, Dave McNally, Baxter Larson and John Cote, in their official capacity as members of the Montana Highway Commission; Charles F. Brooks, in his official capacity as District Ranger, Hungry Horse Ranger Station, U.S. Forest Service; John A. Galloway, Defendants.
• Court: U.S. District Court — District of Montana

479 F. Supp. 815

COALITION FOR CANYON PRESERVATION, Plaintiff, v. Karl S. BOWERS, in his official capacity as Administrator, Federal Highway Administration; Brock Adams, in his official capacity as Secretary, U.S. Department of Transportation; Ronald Richards, in his official capacity as Director, Montana Department of Highways; George Vucanovich, William Kessner, Dave McNally, Baxter Larson and John Cote, in their official capacity as members of the Montana Highway Commission; Charles F. Brooks, in his official capacity as District Ranger, Hungry Horse Ranger Station, U.S. Forest Service; John A. Galloway, Defendants.

No. CV 79-1-M.

United States District Court, D. Montana, Missoula Division.

November 14, 1979.

Steven J. Perlmutter, Helena, Mont., for plaintiff.

Terrence L. J. Clausen, Donald Douglas, James R. Beck, Nicholas A. Rotering, Helena, Mont., for Mont. Dept. of Highways, Ronald Richards, Vucanovich, William Kessner, Dave McNally, Baxter Larson and John Cote.

Allen McKenzie, Asst. U.S. Atty., Butte, Mont., for federal defendants Bowers, Adams and Brooks.

OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

Plaintiff, which is an environmentally concerned nonprofit corporation, and has standing to sue, brings this action to enjoin the reconstruction of that portion of U.S. Highway No. 2 extending from Hungry Horse, Montana, to West Glacier, Montana, because of failure of various state and federal agencies to comply with federal and state laws designed to protect the environment.

The highway in question was built in 1932. In 1962 the Montana Department of Highways (MDH) started planning to upgrade the segment in question. A public corridor hearing was held at Hungry Horse, Montana, in January 1969, and, at least by May 1, 1971, when a draft environmental impact statement (DEIS) was issued, the route, with possible alternatives, had been determined. At those times it was proposed that, in a first stage, four lanes be built on the west 6.0 miles starting at Hungry Horse and, in a second stage, that another two lanes be added to the final 4.8 miles. A final environmental impact statement (FEIS) and 4(f) statement, which followed a noticed public hearing on September 1, 1971, was mailed by the MDH to the Department of Transportation on March 13, 1973. In it the four-lane highway now proposed for the whole section was approved. The FEIS was sent to the Council on Environmental Quality on January 3, 1975, and noticed in the National Register on January 17, 1975. An informational hearing was held by MDH in February 1975. All requests for design approval were granted by the Federal Highway Administration by April 8, 1975, and right-of-way authorizations by May 15, 1975. Thus, the proposal for a four-lane highway has been before the public at least from 1969 on, and the proposal for the presently designed highway has been before the public since February 1975. This lawsuit was filed January 5, 1979, about ten years after the first proposals, and four years after the final plans by the Federal Highway Administration.

In this case it is conceded that the road section in question needs upgrading. There is not now and never was any question but that there would be some construction. The DEIS prepared here was the first one prepared by MDH. It noted that ratings for the foundation, surface, drainage, safety, and capacity of the existing highway were very low.¹ It described the project and the resources of the area, stated the alternate routes being considered and the impact of the proposed action on humans, the land, fish and wildlife, vegetation, water and air, geology, transportation, and utility systems resources. It noted adverse effects in the displacement of homes and businesses, removal of trees, and damage to parks. It noted the benefits of the project. It was not elaborate, but it was concerned with the reconstruction of an existing highway which ran through a sparsely settled mountain valley. To the people who lived in the valley and to the governmental agencies who had any interest in it, the map of the project in and of itself disclosed the impact of the project reasonably well. The FEIS which followed was more sophisticated, and it is apparent from it that the MDH was receptive to suggestions made at the public hearings and that it did respond to various comments which had been made about the project. I find nothing to indicate that there was any intent to avoid or evade the environmental protection laws.

Now plaintiff seeks to fault the procedures for many failures. Except on the issues presented at the hearing which this opinion treats in some detail, it is left to the court's imagination to conjure up what problems existed in many fields mentioned in the laws and regulations, such as the field of "impacts on social and community values and structures" and what might have been said about them. Complaint is made of the failure to discuss the noise and air pollution problems and to articulate something about them. Noise and air pollution were not discussed at the public hearings, nor in the DEIS. In the FEIS it is noted that noise and air pollution would increase during construction and that noise pollution could be expected to increase due to future increased use of the highway. It may be that there should have been more talk about noise and air pollution and more elaborate problem-solving. But the fact was that there was going to be construction and that problems of noise and air pollution would exist. It may be that the differences in decibel and dust levels as between repair and two-lane construction and four-lane construction could have been articulated. How that could have changed anyone's thinking is not clear to me. The public does have a right to the articulation of a problem, and if there was a right in the plaintiff here, and if that right survived the failure to raise the issue in any way prior to this lawsuit, the protection of that right does not weigh very heavily in any kind of a balancing of all of the values involved. For these reasons many of the plaintiff's claims are not discussed in this opinion.

Some substantial problems do appear. Plaintiff strenuously urges that an improved two-lane construction was a reasonable alternative to four-lane construction and should have been considered. As previously indicated, in 1969 the plans called for an initial four- and two-lane construction, and a subsequent additional two-lane construction. At the public meeting in January 1969, strong public opposition to any two-lane construction appeared, and, due to concerns for safety, there was no public support for two-lane construction on all or part of the highway between Hungry Horse and West Glacier. From then on the planning was directed to a four-lane construction. At none of the subsequent hearings was a two-lane alternative suggested, nor did MDH on its own motion consider and reject it as an alternative.

There is a conflict in the evidence as to whether an improved two-lane strip is feasible. Plaintiff's expert Skrotzki said "yes" and defendants' experts Stewart, Barnard, Walters, and Skoog said "no." Skrotzki traveled the road but once, in 1977, before he became professionally interested in it; he drew no plans and made no surveys. The defendants' experts, because of their training, years of experience in highway design, and actual work on the particular section, were, I believe, more credible than was plaintiff's expert. The road is a dangerous one. Safety was the concern of the public, and that in turn depended on the passing sight distance afforded. By improving the two lanes, the passing sight distance could be increased about 7%. This would provide a level of service of "D," "E," or "F," whereas the recommended level of service was "B."² A "B" level of service would permit 60-miles-per-hour traffic and accommodate actual traffic speeds of 45 to 50 miles per hour.

In a sense, it cannot be said that a two-lane alternative was not feasible when two lanes had been used for about 30 years prior to any planning to rebuild the highway, but the highway, as a matter of both common knowledge and engineering standards, was dangerous, and the FEIS specifically so finds. If a prime motive in the rebuilding was to achieve safety, then an improved two lanes was not feasible, and I so find. This finding is based on the evidence admitted in the court hearing and does nothing, of course, to eliminate any deficiency in the environmental impact statements.

A court is required to set aside agency action findings and conclusions reached "without observance of procedure required by law." 5 U.S.C. § 706(2)(D). The National Environmental Policy Act requires "a detailed statement by the responsible official on—(i) the environmental impact of the proposed action." 42 U.S.C. § 4332(C)(i). The purpose of this requirement is stated in Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974), as follows:

First, it should provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with

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