Conservation Society of Southern Vermont, Inc. v. Volpe

• Decision Date: 02 June 1972
• Docket Number: Civ. A. No. 6598.
• Parties: The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al. v. John A. VOLPE, Secretary of Transportation, et al.
• Court: U.S. District Court — District of Vermont

343 F. Supp. 761

The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al. v. John A. VOLPE, Secretary of Transportation, et al.

Civ. A. No. 6598.

United States District Court, D. Vermont.

June 2, 1972.

Williams, Witten & Carter, Bennington, Vt. (Harvey D. Carter, Jr., and Jeffrey E. Silver, Bennington, Vt., on the brief), for plaintiffs.

Norman Cohen, Asst. U. S. Atty., Rutland, Vt., Andrew J. Dilk, U. S. Dept. of Transp., Washington, D. C. and Fletcher Krause, Regional Counsel, U. S. Dept. of Transp., Delmar, N. Y., for defendants Volpe and Kelley.

Richard M. Finn and Robert Schwartz, Asst. Attys. Gen., State of Vermont, Montpelier, Vt., for all remaining defendants.

FINDINGS OF FACT, OPINION AND ORDER

OAKES, Circuit Judge (Sitting by Designation).

The above matter came on for hearing on May 22, 24 and 25 on plaintiffs' application for preliminary injunctive relief. By consent of the parties and order of the court, pursuant to Fed.R.Civ. P. 65, the hearing was transposed into one on the merits, i. e., plaintiffs' application for permanent injunctive relief. Defendants waived any objection to plaintiffs' standing to sue, Scenic Hudson Preservation Conference v. FPC(I), 354 F.2d 608 (2 Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), except as to plaintiff The Vermont Association of Railway Passengers, and the court finds that the individual plaintiffs, as residents and citizens of Bennington County, Vermont, as well as plaintiff The Conservation Society of Southern Vermont, Inc. ("The Society"), of which they are members, have the requisite personal interest or stake in the outcome of this litigation under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (Apr. 19, 1972), to maintain it. No showing having been made as to any standing of The Vermont Association of Railway Passengers, the complaint is dismissed as to it. Plaintiffs called four witnesses, defendant State of Vermont three, and defendant Volpe one. The court has considered all documentary and photographic proof offered, and makes the following findings of fact.

FINDINGS OF FACT

1. Bennington County, Vermont, is located in the southwest portion of the state and is a county of great scenic beauty, consisting of valleys, hills, glacially formed mountains (Taconic and Green), forest areas, some remaining pastoral scenery located primarily in the valleys, village and small towns, along with the larger towns, which are also highway crossroads, of Bennington and Manchester, Vermont, the former known for its college and varied residential-commercial and industrial economy, the latter known primarily as a winter-summer recreation area with four-season homes nearby.

2. Bisecting Bennington County, primarily running through the valley floors between the north-south range of Green Mountains and the more or less parallel north-south range of Taconic Mountains to the west, is U.S. Route 7, a major highway that runs through western Connecticut and Massachusetts, through Bennington County to Vermont's two major cities, Rutland and Burlington, and thence to the Canadian border where it leads to Montreal. Over 90 per cent of the County's population is in the towns through which Route 7 passes (Gov.Ex. 4, p. 4), but the highway itself is especially scenic since the principal valley land which it traverses is only 3 to 6 miles wide and the parallel mountain ranges that border it rise abruptly 2,000 feet or more in altitude from the valley floor. It is truly an area with the stuff of which poetry is made; one of Robert Frost's five Vermont farms lay there.

3. The average daily flow of traffic on Route 7 as of 1968 varied from 3,500 to 4,500 vehicles, rising to more than 13,000 per day (one of the highest in the State of Vermont) in the busy commercial center immediately to the north of Bennington Village. The design of Route 7 is obsolete for much of its length, in view of present day traffic patterns and volumes, being winding, narrow, hilly, with short sighting distances, relatively sharp curves, limited to two lanes, and presenting hazards to the traveling public as well as the local populace. It has, however, been improved in certain stretches, particularly in that part of the County north of Manchester.

4. Improvement of Route 7 has been talked about for at least 15 years, has been in various stages of highway thinking, planning and design for 8-10 years, has been in part the subject of a legislative mandate for construction since 1966, and is necessary not only to highway safety but also to the long-range planning needs of the County, as set forth in the Regional Plan, Bennington County Vermont Regional Planning Commission (1970) (Gov.Ex. 4).

5. "Design approval" as a term in highway thinking is new, originating after enactment of the National Environmental Policy Act (NEPA) and Department of Transportation regulations adopted, if not in accordance therewith, in accommodation thereof. "Design approval" is a term of art, so to speak, in that prior to the adoption of those regulations there was no formal step or procedure whereby the federal government, acting through the now defunct (if not extinct) Bureau of Public Roads, gave its "approval" to the "design" of any highway. The court finds, nevertheless, that, as explained in the testimony and particularly in Government Ex. 6, by Albert R. Purchase, longtime Division Engineer for the Bureau and the Federal Highway Administration (FHWA), design approval within the meaning of PPM 90-1 (DOT-Fed. Highway Adm'n) transmitted under date of August 24, 1971, Para. 5(e), was had for the following Route 7 projects as of July 17, 1968:

F 019-1(6); F 219-1(7); F 019-1(8); AP 019-1( ), F 110-1( ), AP 019-1( ); F 019-1(9) (except for the northerly 1.47 miles thereof, as to which there was no design approval until January 26, 1971.

The court limits this finding to the proposition that in substance the overall route, line, or general location was submitted by the state highway department to the federal agency and received substantial acceptance therefrom subject to minor refinements of line and such lesser changes as might be made in the course of survey, design and right of way acquisition. This finding is made by a court bearing in mind that so-called Section 222 hearings (19 V.S.A. § 222) were not held by the State until later and that so-called "design hearings" (a creature of PPM 20-8) were not held until after such "approval" had been granted, the "hearings" being intended to comply with an entirely new federal regulation or set of regulations (contained in PPM 20-8, issued on or about January 14, 1969, under the Federal-Aid Highway Act and the Department of Transportation Act). "Design approval" in this narrow and limited sense means general approval of an overall line, and is subject to specific engineering changes resulting from the preliminary survey and objections voiced by communities and landowners affected by the proposed route, as well as by ecologists.

6. No design approval in any sense of the term was had for the following projects until January 21, 1971: AP 219-1( ), F 110-1( ), AP 219-1( ), the southerly half of the so-called Bennington Belt-Line; and until January 26, 1971, the northerly 1.47 miles of Project F 019-1(9) leading easterly of the village of Manchester. No such approval has been had for any other Route 7 improvements other than those already construction-complete.

7. So-called Arterial 7, consisting of Projects F 019-1(6) and F 219-1(7), and meeting the highest traffic-flow requirements of the area (see Finding No. 3 above), is independent of and unrelated to the other projects in question; the construction of Arterial 7 is at a further stage of progress than any of the other projects; completion of Arterial 7, consisting mainly of re-routing and improving the traffic through and to the immediate north and south of Bennington Village will not require or affect the planning or construction of any other portion of Route 7; and such completion is necessary at the earliest possible moment both from a traffic and a cost standpoint. There are no foreseeable substantial adverse ecological or environmental effects of construction, were continuation of pending plans and completion of construction of Arterial 7 as above defined to occur.

8. Despite "design approvals" on July 17, 1968, of Projects F 019-1(8) and (9), and on January 21, 1971, of Projects AP 219-1( ), F 110-1( ), AP 219-1( ) and January 26, 1971, of Project F 019-1(9)'s northerly 1.47 miles, there are substantial ecological and environmental effects that may occur if the present highway design of these projects is pushed to completion, that have not been adequately considered by the federal and state highway engineers and that may, with relative ease of design and right of way acquisition, be avoided in any future construction. These effects —cognizable even from only a limited exploration of the area by the plaintiffs' expert ecologists—indicate that a review of environmental effects along this major portion of the proposed relocation of Route 7 is required to avoid upsetting ecological balances and to avoid the destruction of invaluable environmental resources. Any delay occasioned by such a revaluation—estimated by government witnesses to take one year—will cost the defendants little or nothing because design and acquisition of these portions of the highway have not reached a stage where bids are ready to be let, and may indeed preserve ecological values which will be cherished by succeeding generations although they may seem to some to be of little or no meaning now.

9. Specifically included in the adverse effects that may occur are those (1) to Jewett's Brook and its wetlands and marsh, which have botanical significance and require soil stabilization (avoidance of siltation and sedimentation together with preservation of the quality of run-off), and which attract...