County of Bergen v. Dole, Civ. A. No. 82-4065.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtWilliam T. Smith, Franklin Lakes, N.J., for Franklin Lakes
Citation620 F. Supp. 1009
PartiesThe COUNTY OF BERGEN; the Borough of Franklin Lakes; the Township of Montville; the Franklin Lakes Homeowners Committee Against I-287; the New Jersey Citizens Coalition To Stop I-287; and the Passaic River Coalition, Plaintiffs, v. Elizabeth Hanford DOLE, as the Secretary of the United States Department of Transportation; the United States Department of Transportation; Ray Barnhart, as the Federal Highway Administrator; John G. Bestgen, Jr., as the Regional Administrator of Region 1 of the Federal Highway Administration; John J. Kessler, Jr., as the Division Administrator of the New Jersey Division of the Federal Highway Administration; the Federal Highway Administration; James G. Watt, as the Secretary of the United States Department of the Interior; the United States Department of the Interior; Lee Verstandig, as the Acting Administrator of the United States Environmental Protection Agency; Jacqueline E. Schafer, as Administrator of Region 2 of the United States Environmental Protection Agency; the United States Environmental Protection Agency; John P. Sheridan, Jr., as the Commissioner of Transportation of the New Jersey Department of Transportation, and the New Jersey Department of Transportation, Defendants.
Docket NumberCiv. A. No. 82-4065.
Decision Date10 October 1985

620 F. Supp. 1009

The COUNTY OF BERGEN; the Borough of Franklin Lakes; the Township of Montville; the Franklin Lakes Homeowners Committee Against I-287; the New Jersey Citizens Coalition To Stop I-287; and the Passaic River Coalition, Plaintiffs,
v.
Elizabeth Hanford DOLE, as the Secretary of the United States Department of Transportation; the United States Department of Transportation; Ray Barnhart, as the Federal Highway Administrator; John G. Bestgen, Jr., as the Regional Administrator of Region 1 of the Federal Highway Administration; John J. Kessler, Jr., as the Division Administrator of the New Jersey Division of the Federal Highway Administration; the Federal Highway Administration; James G. Watt, as the Secretary of the United States Department of the Interior; the United States Department of the Interior; Lee Verstandig, as the Acting Administrator of the United States Environmental Protection Agency; Jacqueline E. Schafer, as Administrator of Region 2 of the United States Environmental Protection Agency; the United States Environmental Protection Agency; John P. Sheridan, Jr., as the Commissioner of Transportation of the New Jersey Department of Transportation, and the New Jersey Department of Transportation, Defendants.

Civ. A. No. 82-4065.

United States District Court, D. New Jersey.

October 10, 1985.


620 F. Supp. 1010
COPYRIGHT MATERIAL OMITTED
620 F. Supp. 1011
COPYRIGHT MATERIAL OMITTED
620 F. Supp. 1012
David Paget, New York City, for all plaintiffs

William T. Smith, Franklin Lakes, N.J., for Franklin Lakes.

Priscilla Triolo, Hackensack, N.J., for Franklin Lakes Homeowners Committee Against I-287 and New Jersey Citizens Coalition to Stop I-287.

Valerie F. Mauceri, Asst. U.S. Atty., Newark, N.J., for U.S. Dept. of Transp., Federal Highway Admin., U.S. E.P.A., and U.S. Dept. of Interior.

Michael R. Dressler, Hackensack, N.J., Bergen County Counsel.

Lawrence K. Eismeier, Boonton, N.J., for Montville.

Alfred Porro, Lyndhurst, N.J., for Passaic River Coalition.

John J. Maiorana, Deputy Atty. Gen., Div. of Law, Trenton, N.J., for N.J. Dept. of Transp.

 TABLE OF CONTENTS
                 PAGE
                GLOSSARY .................................. 1012
                 I. SCOPE OF REVIEW ...................... 1016
                 II. FINDINGS OF FACT ..................... 1017
                 A. Procedural History of the I-287
                 Project ......................... 1017
                 B. Findings of Fact as to Each of
                 Plaintiffs' Claims .............. 1039
                III. CONCLUSIONS OF LAW ................... 1049
                 A. Overview of NEPA, DOTA and
                 FAHA ............................ 1049
                 B. Standard of Review ................ 1052
                 C. Conclusions of Law as to Each of
                 Plaintiffs' Claims .............. 1054
                 IV. CONCLUSION ........................... 1066
                 GLOSSARY
                ABBREVIATION EXPLANATION
                ACOE Army Corps. of Engineers
                Action Plan New Jersey Action Plan
                APA Administrative Procedure Act
                 5 U.S.C. § 701 et seq.
                CEQ Council on Environmental
                 Quality
                Citizens Coalition New Jersey Citizens Coalition
                 to Stop I-287
                DEIS Draft Environmental Impact
                 Statement (A.R., Vol. 3, Item
                 24)
                DOI United States Department of
                 Interior
                DOTA Department of Transportation
                 Act of 1966, 49 U.S.C
                 § 101 et seq.
                E.O. 11988 Executive Order 11988, 42
                 Fed. Reg. 26951, May 24
                 1977
                E.O. 11990 Executive Order 11990, 42
                 Fed. Reg. 26961, May 24
                 1977
                E.O. 12372 Executive Order 12372, Fed.
                 Reg. 30959, July 14, 1982
                EPA United States Environmental
                 Protection Agency
                ESA Endangered Species Act 16
                 U.S.C. § 1531 et seq.
                FAHA Federal-Aid Highway Act, as
                 amended, 23 U.S.C. § 101 et
                 seq.
                
620 F. Supp. 1013
ABBREVIATION EXPLANATION FEIS Final EIS/Section 4(f) Evaluation (A.R., Vol. 24, Item 101) FEMA Federal Emergency Management Administration FHWA Federal Highway Administration FWCA Fish and Wildlife Coordination Act 16 U.S.C. § 661 et seq. Homeowners Committee Franklin Lakes Homeowners Committee Against I-287 HUD U.S. Department of Housing and Urban Development ICA Intergovernmental Cooperation Act of 1968 31 U.S.C. § 6501 et seq. I-287 Interstate Route 287 of the National System of Interstate and Defense Highways, commonly known as the "Interstate Highway System." NEPA National Environmental Policy Act 42 U.S.C. § 4321 et seq. NHPA National Historic Preservation Act 16 U.S.C. § 470f NJDEP New Jersey Department of Environmental Protection NJDOT New Jersey Department of Transportation NJEO 53 New Jersey Executive Order 53 NJERA New Jersey Environmental Rights Act N.J.S.A. § 2A:35A-1 et seq. NJTPB New Jersey Transportation Planning Board OMB U.S. Office of Management and Budget PFEIS Preliminary Final Environmental Impact Statement/Draft Section 4(f) Evaluation (A.R., Vol. 15, Items 78A-78D) PPM 20-8 Policy and Procedure Memorandum 20-8 of the Federal Highway Administration PRC Passaic River Coalition PS & E Plans, Specifications & Estimates USDOT United States Department of Transportation V/C Ratio Volume to Capacity Ratio

OPINION

HAROLD A. ACKERMAN, District Judge.

Interstate 287 (hereinafter "I-287") was designated as part of the original interstate highway system in 1956. It was never completed. The plaintiffs herein seek to enjoin the construction of the remaining 20.6 mile stretch from the terminus of United States Route 202 in Montville Township, Morris County, New Jersey to the New York State Thruway in Suffern, New York. The Administrative Record, affidavits, briefs and correspondence submitted to the court in this vigorously litigated action to bar the planned construction are themselves sufficient to pave the remaining twenty miles. The Assistant United States Attorney representing the federal defendants to this action has stated that "this case holds the record in the U.S. Attorney's Office, both criminal and civil, for the highest xeroxing bill and the most amount of paper ever submitted to the U.S. District Court, at least of recent vintage, in the last 15 years." See Transcript of hearing, February 14, 1984 at 17. Taken literally or metaphorically, this statement confirms this court's impression that the gargantuan 46 volume Administrative Record in the instant litigation has not often been surpassed.

The plaintiffs herein are the County of Bergen, the Borough of Franklin Lakes (Bergen County), the Township of Montville (Morris County), Franklin Lakes Homeowners Committee Against I-287, New Jersey Citizens Coalition to Stop I-287 and the Passaic River Coalition. Three other plaintiffs, the Township of Pequannock, the Borough of Pompton Lakes and the Township of Mahwah have withdrawn from this litigation by consent orders filed with this court.

The defendants are a variety of individuals and agencies of the state and federal governments. The so-called "federal defendants" are as follows: the United States Department of Transportation (hereinafter "USDOT"), Elizabeth Hanford Dole in her capacity as Secretary of USDOT, the Federal Highway Administration (hereinafter "FHWA") (an administration within USDOT), Ray Barnhart in his capacity as Administrator of FHWA, John G. Bestgen, Jr. in his capacity as Regional Administrator of Region 1 of FHWA, John Kessler, Jr. in his capacity as Division Administrator of

620 F. Supp. 1014
the New Jersey Division of FHWA, the United States Department of the Interior (hereinafter "DOI"), James G. Watt in his capacity as former Secretary of DOI,1 the Environmental Protection Agency (hereinafter EPA), Lee Verstandig in his capacity as the Acting Administrator of EPA2, and Jacqueline E. Schafer in her capacity as the Administrator of Region 2 of EPA. The so-called "state defendants" are the New Jersey Department of Transportation (hereinafter "NJDOT") and John P. Sheridan, Jr. in his capacity as the Commissioner of NJDOT.

Plaintiffs seek declaratory and injunctive relief. They allege that the administrative process resulting in the approval of the I-287 highway project violated the Department of Transportation Act of 1966 as amended, 49 U.S.C. § 101 et seq. (hereinafter cited as "DOTA"); the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (hereinafter cited as "NEPA") and the regulations promulgated thereunder; the Federal Aid Highway Act as amended, 23 U.S.C. § 101 et seq. (hereinafter cited as "FAHA"), and the regulations promulgated thereunder; and Policy and Procedure Memorandum 20-8 (hereinafter cited as "PPM 20-8") superseded in 1974 by regulations codified at 23 C.F.R. Parts 771 and 790. Plaintiffs further allege violations of the Intergovernmental Cooperation Act of 1968, 31 U.S.C. § 6501 et seq. (hereinafter cited as "ICA"); the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq. (hereinafter cited as "FWCA"); the Endangered Species Act, 16 U.S.C. § 1531 et seq. (hereinafter cited as "ESA"); section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f (hereinafter cited as "NHPA"), and the regulations promulgated thereunder and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (hereinafter cited as "APA"). In addition, plaintiffs allege that defendants violated Executive Order 11990, 42 Fed.Reg. 26961, May 24, 1977 (hereinafter cited as "EO 11990"); Executive Order 11988, 42 Fed.Reg. 26951, May 24, 1977 (hereinafter cited as "EO 11988"); Executive Order 12372, 42 Fed. Reg. 30959, July 14, 1982 (hereinafter cited as "EO 12372"); the New Jersey Environmental Rights Act, N.J.Stat.Ann. 2A:35A-1 et seq. (hereinafter cited as "NJERA"); New Jersey Executive Order 53, October 15, 1972 (hereinafter cited as "NJEO 53") and the New Jersey Action Plan (hereinafter "Action Plan") adopted pursuant to FAHA by FHWA and NJDOT.3 In short, plaintiffs allege that the various environmental implications of the I-287 extension were not adequately considered by the defendants pursuant to the requirements of state and federal law.

Both state and federal defendants filed answers to the instant complaint denying the allegations therein and setting forth various defenses. Federal defendants filed Volumes 1 through 27...

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  • State Of N.J. v. United States Army Corp.S Of Eng'rs, Civil Action No. 09-5591 (JAP)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 12, 2011
    ...Environ. Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 356 (8th Cir.1972); Sierra Club, 935 F. Supp. at 1579; Bergen Cnty. v. Dole, 620 F. Supp. 1009, 1064 (D.N.J. 1985). The Court has already decided above that the Corps complied with NEPA. Moreover, DRN's claims that the Corps failed to g......
  • Raymond Proffitt Found v. U.S. Army Corps of Eng., No. CIV. A. 99-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 22, 2000
    ...Service and the state agency, rather it requires that these views "be given serious consideration." See County of Bergen v. Dole, 620 F.Supp. 1009, 1063 (D.N.J.1985) (internal citations omitted). FWCA applies to both "new project construction" as well as "modification or supplementation of ......
  • Raymond Proffitt Found. v. U.S. Army Corps of Eng., No. 99-CV-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 2001
    ...F.2d 346, 356 (8th Cir.1972); Sierra Club v. U.S. Army Corps of Engineers, 935 F.Supp. 1556, 1579 (S.D.Ala.1996); Bergen County v. Dole, 620 F.Supp. 1009, 1064 (D.N.J.1985). As a private right of action exists under NEPA, plaintiffs may assert their FWCA claims through that mechanism. See S......
  • Sierra Club v. U.S. Army Corps of Engineers, Civil Action No. 05-1724 (JAP).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 28, 2006
    ...665 (9th Cir.1998) (listing instances in which a court may review materials outside the administrative record); Bergen County v. Dole, 620 F.Supp. 1009, 1016-17 (D.N.J.1985) (discussing propriety of review of materials outside the administrative record). In particular, in NEPA cases, "a pri......
  • Request a trial to view additional results
16 cases
  • State Of N.J. v. United States Army Corp.S Of Eng'rs, Civil Action No. 09-5591 (JAP)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 12, 2011
    ...Environ. Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 356 (8th Cir.1972); Sierra Club, 935 F. Supp. at 1579; Bergen Cnty. v. Dole, 620 F. Supp. 1009, 1064 (D.N.J. 1985). The Court has already decided above that the Corps complied with NEPA. Moreover, DRN's claims that the Corps failed to g......
  • Raymond Proffitt Found v. U.S. Army Corps of Eng., No. CIV. A. 99-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 22, 2000
    ...Service and the state agency, rather it requires that these views "be given serious consideration." See County of Bergen v. Dole, 620 F.Supp. 1009, 1063 (D.N.J.1985) (internal citations omitted). FWCA applies to both "new project construction" as well as "modification or supplementation of ......
  • Raymond Proffitt Found. v. U.S. Army Corps of Eng., No. 99-CV-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 20, 2001
    ...F.2d 346, 356 (8th Cir.1972); Sierra Club v. U.S. Army Corps of Engineers, 935 F.Supp. 1556, 1579 (S.D.Ala.1996); Bergen County v. Dole, 620 F.Supp. 1009, 1064 (D.N.J.1985). As a private right of action exists under NEPA, plaintiffs may assert their FWCA claims through that mechanism. See S......
  • Sierra Club v. U.S. Army Corps of Engineers, Civil Action No. 05-1724 (JAP).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 28, 2006
    ...665 (9th Cir.1998) (listing instances in which a court may review materials outside the administrative record); Bergen County v. Dole, 620 F.Supp. 1009, 1016-17 (D.N.J.1985) (discussing propriety of review of materials outside the administrative record). In particular, in NEPA cases, "a pri......
  • Request a trial to view additional results

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