Concerned Citizens of Rapides Parish v. Hardy

• Decision Date: 26 March 1981
• Docket Number: No. 8110,8110
• Citation: 397 So.2d 1063
• Parties: 11 Envtl. L. Rep. 20,881 CONCERNED CITIZENS OF RAPIDES PARISH and Lorena Pospisil, Plaintiffs-Appellees, v. Paul HARDY, Secretary of the Louisiana Department of Transportation and Development, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1063

397 So.2d 1063

11 Envtl. L. Rep. 20,881

CONCERNED CITIZENS OF RAPIDES PARISH and Lorena Pospisil Plaintiffs-Appellees, v. Paul HARDY, Secretary of the Louisiana Department of Transportation and Development, Defendant-Appellant.

No. 8110.

Court of Appeal of Louisiana, Third Circuit.

March 26, 1981.

Dissenting Opinion March 30, 1981.

Rehearing Denied May 11, 1981.

William J. Doran, Jr., Baton Rouge, for defendant-appellant.

Christopher J. Roy, Alexandria, for plaintiffs-appellees.

Before DOMENGEAUX, GUIDRY, CUTRER, SWIFT and LABORDE, JJ.

GUIDRY, Judge.

In this suit the plaintiffs, Ms. Lorena Pospisil and a group of people who style themselves as "Concerned Citizens of Rapides Parish" ¹ seek issuance of a permanent injunction and/or declaratory relief which would prevent the State of Louisiana, Department of Transportation and Development (hereafter DOTD) from going forward with the letting of bids and the construction of a vertical lift-style bridge over the Red River in Rapides Parish, Louisiana, on State Project No. 700-08-69. In support of their demand for the relief sought plaintiffs urge that DOTD has failed to comply with the provisions of the National Environmental Policy Act (42 U.S.C.A. § 4321 et seq.). Defendant filed exceptions of no right and no cause of action and an answer averring full compliance with NEPA and other laws of the State of Louisiana.

The exceptions were referred to the merits and after a lengthy hearing the exceptions were overruled and judgment was rendered by the trial court granting a preliminary injunction enjoining and restraining defendant from taking any further steps in connection with State Project 700-08-69 pending further orders of the court. From this judgment defendant has prosecuted this appeal.

Before proceeding to a discussion of the issues raised on appeal it is appropriate and necessary to set forth the factual circumstances giving rise to the instant litigation.

The cities of Alexandria and Pineville, Louisiana, are separated one from the other by the Red River. There are three bridges which cross the Red River in the immediate vicinity of these two cities, the O.K. Allen bridge, a high-rise bridge located some distance from the downtown area of the two cities; and, two lift-style bridges known as the Fulton Street and Murray Street bridges, which are located approximately 2000' apart, in and/or near the downtown area of both cities. Pursuant to State Project No. 700-08-69 the DOTD proposes to replace the existing "Murray Street" bridge, ² which connects downtown Alexandria and downtown Pineville, with a semi-high-level vertical lift span to be constructed approximately 400 feet northwest from the existing structure. After construction the bridge would connect Main Street in Pineville to Jackson Street in Alexandria.

Planning for the construction of the new bridge began in the year 1973. In the initial planning stages the DOTD informed local officials that a semi-high lift-style bridge serving the same traffic corridor was contemplated. ³ Sometime in late 1973 or early 1974 the DOTD contracted with the firm of Palmer and Baker, an engineering firm of Mobile, Alabama, to prepare design proposals for a lift-style bridge to replace the existing Murray Street bridge. In addition to this action the DOTD began to make environmental studies for the purpose of ultimately complying with NEPA. ⁴ On April 27, 1975, pursuant to 42 U.S.C. § 4332(2)(C), the DOTD prepared, in consultation with the Federal Highway Administration (hereafter, FHA), a document entitled "Environmental Assessment". The latter document described the proposed action, the alternatives considered, and the probable social, economic and environmental impact of such action. Thereafter, along these same lines, a document entitled "Draft Negative Declaration" was prepared and filed on July 29, 1975. This latter document indicates that the proposed replacement of the Murray Street bridge will have no significant impact on the environment and that a "Negative Declaration" rather than an "Environmental Impact Study" is warranted under the provisions of NEPA. Petitioners point out that in neither of these documents was a high-rise bridge replacement considered as an alternative nor do such studies address the frequent openings of such proposed bridge for river traffic and the environmental impact such openings will have on traffic, air pollution, noise, loss of man hours and expense to employers and employees etc.

On September 16, 1975 the DOTD conducted a "Corridor Location Public Hearing" in Alexandria. ⁵ At this meeting interested persons were afforded an opportunity to express their views concerning the proposed location of the facility, its general design features and the environmental effects of the proposed project. Many persons in attendance at this hearing expressed the need for a high-rise bridge as opposed to a lift-style bridge although there was no real disagreement over the need for a new facility or that it should be located so as to keep the corridor at Jackson and Murray streets as proposed by the DOTD. Sometime following this hearing the DOTD contacted Palmer & Baker and requested a study regarding the feasibility of a high-rise bridge at various locations but basically in the Jackson Street corridor. As a result of this study several alternatives were proposed by Palmer and Baker, however, none were acceptable. Two of the proposed alignments were unacceptable because such proposed projects could not be constructed with bridge replacement funds. Another alignment (the "Elliott Street Alignment") was rejected because of its proximity to an existing hospital and the taking of properties adjacent to property belonging to the Catholic Diocese of Alexandria and because the touchdown point would have been well beyond Fourth Street. Another alignment, referred to in the record as Scheme 1, with a touchdown on Jackson Street was rejected because although structurally satisfactory it was geometrically imperfect. ⁶ Following the latter study and on March 29, 1978, the DOTD prepared and filed pursuant to 42 U.S.C. § 4332(2)(C) and 23 U.S.C. § 128(a) a "Final Negative Declaration" proposing to construct a vertical lift bridge ⁷ as a replacement for the old "Murray Street" bridge. The "Final Negative Declaration" states as follows regarding the sufficiency of such declaration in lieu of a detailed environmental impact statement:

"The effect of the project on the air, noise, and water will be minimal as explained in Section 3. The relocations will be few and will not constitute a major disruption of the community. The existing and proposed land use will not be adversely affected. Construction impacts will be temporary, and the existing bridge will continue to be used until the new bridge is completed. Because the adverse environmental effects will be few and temporary, this project is not expected to cause any long-term ill effects to the cities of Alexandria and Pineville."

The FHA concurred in the filing of the "Final Negative Declaration" and thereafter, presumably when the DOTD advertised for bids for the construction of the proposed bridge, this suit was instituted.

At trial on the merits, it was basically the position of plaintiffs that the proposed action by the DOTD was not preceded by a thorough investigation and study of the impact frequent openings of a vertical lift bridge would have on the environment. Particularly, plaintiffs urge that the studies do not consider or allude to the effect frequent bridge closures for the passage of water traffic will have on traffic in the downtown areas of Alexandria and Pineville; the cost to employers and employees of delays caused by bridge closures; and, the overall loss in productivity. In this same vein, plaintiffs contend that the consideration and study by Palmer and Baker and the DOTD of high-rise bridge alternatives was perfunctory and that neither ever seriously and conscientiously studied or considered the high-rise bridge alternatives available to the Alexandria-Pineville area. Plaintiffs contended that if such studies had been made a substantial impact on the environment would be demonstrated requiring an "Environmental Impact Statement" (EIS) as opposed to a "Negative Declaration". Thus plaintiffs contend the proposed action by defendant is in violation of the provisions of NEPA and should be enjoined.

The trial court, after overruling defendant's exceptions of no right and no cause of action, concluded, for written reasons assigned, that the requirements of NEPA had not been satisfied. In reaching this conclusion the trial court made the following findings:

"1. Local officials acquiesced in the lift-style bridge proposal in the early meetings because they were told by state and federal officials that funding was not available except for a lift-style bridge. The record reflects that funding for a high-rise bridge was available.

2. The Department of Transportation and Development operated under the faulty premise that the proposed bridge could not penetrate Main Street in Alexandria whereas the then Alexandria mayor and the commissioner of streets and parks in meetings with defendant and federal and highway officials offered to lower Main Street to have a high-rise bridge with a touchdown on the north end of Third Street. The record does not reflect that this proposal was ever studied or presented at any public hearing or included in the final Negative Declaration.

3. The consulting engineers, Palmer and Baker of Mobile, Alabama, substituted their judgment rather than considering that of local city officials on the effect of a bridge touchdown point past Main Street. Because of this error in judgment they did not conduct a thorough and competent study of the bridge alternatives available to the Alexandria-Pineville area, and make a fully informed recommendation to the defendant.

4. From the beginning of the...