Daly v. Volpe

• Decision Date: 04 August 1972
• Docket Number: Civ. A. No. 9490.
• Citation: 350 F. Supp. 252
• Parties: George and Mary DALY et al., Plaintiffs, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

350 F. Supp. 252

George and Mary DALY et al., Plaintiffs, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants.

Civ. A. No. 9490.

United States District Court, W. D. Washington, at Seattle.

March 31, 1972.

On Rehearing August 4, 1972.

COPYRIGHT MATERIAL OMITTED

Irving M. Clark, Jr., J. Richard Aramburu, Seattle, Wash., for plaintiffs.

Stan Pitkin, U. S. Atty., Albert E. Stephan, First Asst. U. S. Atty., Seattle, Wash., for Federal Defendants.

Thomas R. Garlington, Asst. Atty. Gen., Olympia, Wash., for State Defendants.

OPINION

BEEKS, Chief Judge.

Plaintiffs, individual residents and property owners in or near the proposed corridor of I-90, a federally funded interstate highway through the State of Washington, seek to enjoin its construction. They base their claim on essentially two grounds: First, that selection of the location of this corridor was arbitrary and capricious, and second, that defendants violated the provisions of certain federal statutes.¹

The facts of this case are not essentially in dispute. The state proposes to construct a section of I-90 in the vicinity of North Bend, Washington. The first corridor location hearing was held on April 8, 1957. The issues lay dormant until July 30, 1969, when the location design engineer sent letters to interested parties, requesting comment on corridor A-3, a segment of the proposed highway that would parallel the location of the existing highway, U.S. 10, and also pass through the town of North Bend. A second location hearing was held on December 3, 1969. Meetings with interested groups were held through the summer of 1970. Late in August, 1970, the state made public an "Environmental Report of the Upper Snoqualmie Valley," which did not discuss alternative routes, but did provide a summary of information which bore on choosing a route most favorable to the environment. This "Environmental Report" was distributed at the third corridor location hearing of September 1, 1970. Following this last hearing, the state and federal defendants for the first time advocated construction through corridor E-3, which would completely bypass North Bend to the south.

The "Environmental Report" and an "Advance Planning Study" were transmitted to the Federal Highway Administration (FHWA) division engineer on September 25, 1970. The state's request for approval of corridor E-3 was submitted November 4, 1970, and its draft environmental impact study was sent to FHWA on November 25, 1970. Corridor E-3 was approved November 30. A second draft environmental statement of January 13, 1971, and a "Final Environmental Statement" of February 8, 1971, were subsequently sent to FHWA. Neither of these environmental reports considered the ecological effects of the highway on Kimball Creek Marsh, a non-publicly owned refuge for waterfowl close to which the proposed highway will pass.

ARBITRARY AND CAPRICIOUS ACTION

Plaintiffs charge that the state arbitrarily changed the corridor location because of extraneous political pressure on FHWA officials brought by the mayor and/or town council of North Bend.² This contention is rejected. I am satisfied that new evidence and studies led the federal administrators to reevaluate their decision and change the corridor location to one which they believe is better suited to the area.

Plaintiffs further urge that arbitrary and capricious conduct is established by compelling evidence that corridor A-3 is superior to E-3. They claim, among other things, that A-3 would cover more land occupied by existing highways, that E-3 will destroy the last and best residential land in the valley, that the state will be forced to sell the property it has already purchased for A-3 at a loss, and that a change in routes would disrupt the private plans of many individuals who have since 1957 governed their affairs on the assumption that A-3 would be the route. Defendants, on the other hand, argue that A-3 would cut through Si View County Park, that less property would be taken from the tax rolls by E-3, that A-3 would create a barrier for natural growth of the town, and that E-3 passes through a relatively undeveloped area of land.

The court may not, however, weigh the evidence de novo, to decide which of several alternatives is to the court most desirable. Only if the administrative decision is so clearly erroneous that it has no rationally supportable basis may the court rule that it is arbitrary and capricious.³ The complexity of variables to be considered by defendants in the location of a major highway route such as this illustrate well the reasons for the rule. Both proposed routes have advantages and disadvantages. Defendants studied both proposals in depth, and came to a decision that is eminently reasonable. The decision approving E-3 was made after a consideration of the relevant factors; it was not clearly erroneous, and therefore it was not arbitrary and capricious.⁴

Even so, defendants must follow the procedural requirements outlined by the applicable federal statutes and regulations with respect to highway location.

ENVIRONMENTAL PROTECTION

1. Kimball Creek Marsh

23 U.S.C.A. § 138 (1972 Supp.) provides:

§ 138. Preservation of parklands

It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.

The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

Plaintiffs contend that, because Kimball Creek Marsh is a wildlife and/or waterfowl refuge, federal defendants erred in failing to make the required findings with respect thereto. This contention is rejected; the marsh is not publicly owned.

2. National Environmental Policy Act (NEPA)

Plaintiffs next contend that defendants failed to follow the required procedures with respect to drafting and filing an environmental impact statement. NEPA, which became law on January 1, 1970, requires that "all agencies of the Federal Government shall—⁵

. . . . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; . . .

Such "detailed statement" should "be prepared at the earliest practicable point in time" so that the statement can provide "significant inputs to the decision-making process."⁶

Given the purpose of NEPA to insure that actions by federal agencies be taken with due consideration of environmental effects and with a minimum of such adverse effects, it is especially important with regard to federal-aid highway projects that the environmental impact statement be prepared early.⁷

NEPA requires compliance "to the fullest extent possible."⁸ Such compliance would seem to demand that environmental issues be considered at every important stage in the decision making process concerning a particular action—at every stage where an overall balancing of environmental and non-environmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs.⁹

The environmental impact statement helps to ensure

that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own.¹⁰

The impact statement must be in the form and detail required by NEPA, and then circulated among the agencies described in the statute for comment.¹¹

The state has argued that it is not subject to the provisions of NEPA. This position is rejected in Lathan v. Volpe¹² and Brooks v. Volpe.¹³ It should be noted that the Court of Appeals assumed jurisdiction in both of these cases without specifically discussing the jurisdictional issue. These cases must, however, stand for the implied...