Harrisburg Coalition Against Ruin. Envir. v. Volpe, 71-143 Civ.

• Decision Date: 12 May 1971
• Docket Number: No. 71-143 Civ.,71-143 Civ.
• Citation: 330 F. Supp. 918
• Parties: HARRISBURG COALITION AGAINST RUINING the ENVIRONMENT (by Clifford R. Dillman, Trustee ad litem), et al., Plaintiffs, v. John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al., Defendants, City of Harrisburg, Intervening Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

330 F. Supp. 918

HARRISBURG COALITION AGAINST RUINING the ENVIRONMENT (by Clifford R. Dillman, Trustee ad litem), et al., Plaintiffs, v. John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al., Defendants, City of Harrisburg, Intervening Defendant.

No. 71-143 Civ.

United States District Court, M. D. Pennsylvania.

May 12, 1971.

COPYRIGHT MATERIAL OMITTED

Robert J. Sugarman, Philadelphia, Pa., Edward Finkelstein, Harrisburg, Pa., for plaintiffs.

Thomas McKevitt, David E. Wells, Joseph J. Leahy, U. S. Department of Justice, Washington, D. C., S. John Cottone, U. S. Atty., Scranton, Pa., for Volpe, Turner and Fenton.

Robert H. Raymond, Jr., Asst. Atty. Gen., Department of Transportation, Robert W. Cunliffe, Deputy Atty. Gen., Department of Highways, Harrisburg, Pa., J. Shane Creamer, Atty. Gen., for Kassab, Dept. of Transportation.

Francis Haas, Jr., Edward W. Rothman, Asst. City Sol., Harrisburg, Pa., for Swenson and City of Harrisburg.

Joseph H. Jones, William Hutchinson, Pottsville, Pa., for J. Robert Bazley.

OPINION

NEALON, District Judge.

This class action arises from the planned construction of two major highways through a public park in the City of Harrisburg, Pennsylvania. Plaintiffs are a community group, the Harrisburg Coalition Against Ruining the Environment, several students and faculty members of the Harrisburg Area Community College (hereinafter HAC), and certain black residents of the Uptown area of Harrisburg. They seek to permanently enjoin the Federal, State and City Governments, as well as the State contractor, from constructing Interstate Route 81 (hereinafter I-81) and the Harrisburg River Relief Route through Wildwood Park in the northern section of Harrisburg. Hearings, including a view of Wildwood Park, were held on April 15, 16, 19, 20 and 21, 1971.¹

Jurisdiction is properly asserted under the Civil Rights Act of 1871, 42 U.S.C. § 1981 et seq.; the Federal Question Statute, 28 U.S.C. § 1331, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 n. 1 (M.D.Pa.1970). Relief is sought under the Mandamus Statute, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

The action arises under the Department of Transportation Act, 49 U.S.C. §§ 1651-1658; the Federal Aid Highway Act, 23 U.S.C. §§ 101-104, and Policy and Procedure Memorandum 20-8 (hereinafter PPM 20-8) issued thereunder, 34 Fed.Reg. 727-730, and Bureau of Public Roads Instructional Memorandum 21-5-63 also issued thereunder; the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (hereinafter NEPA); the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000b-6, and the Fourteenth Amendment of the United States Constitution. Pendent jurisdiction is asserted over plaintiffs' claims under the provisions of the Pennsylvania Department of Transportation Act of 1970, 71 P.S. § 512 (hereinafter Penn DOT).

Seven issues are raised in this action: (1) whether plaintiffs and the class they represent are barred from maintaining this lawsuit by the doctrine of laches; (2) whether the doctrine of sovereign immunity precludes maintenance of this suit against Secretary Kassab and J. Robert Bazley, Inc., the State contractor; (3) whether the construction of I-81 and the River Relief Route through Wildwood Park is a denial to black residents of equal opportunities to housing and recreation in violation of the Fourteenth Amendment and the Civil Rights Acts of 1871 and 1964; (4) whether the Court has pendent jurisdiction over plaintiffs' claim under the Penn DOT Act against Jacob Kassab, Pennsylvania Secretary of Transportation (hereinafter Secretary Kassab); (5) whether the United States Secretary of Transportation John A. Volpe (hereinafter Secretary Volpe) made the proper parkland determination as required by Section 4(f) of the Department of Transportation Act of 1966 and by Section 138 of the Federal Aid Highway Act of 1968; (6) whether Secretary Volpe complied with the public hearing requirements of Section 128 of the Federal Aid Highway Act and PPM 20-8 and Bureau of Public Roads Instructional Memorandum 21-5-63 issued thereunder, and (7) whether Secretary Volpe submitted an adequate environmental statement to the Council on Environmental Quality pursuant to Section 102(2) (C) of NEPA.

FACTS

The City of Harrisburg is the Capitol of the Commonwealth of Pennsylvania and, according to the 1970 census, has a population of 68,000. This is a significant population decline from 79,000 in 1960 and 89,000 in 1950. Harrisburg has seven developed public parks within its boundaries, Paxtang Park, Cameron Park, Reservoir Park, Rose Garden, Island Park, Italian Lake and River Park, and, in addition, has the subject matter of this lawsuit, Wildwood Park, located approximately four miles north of downtown Harrisburg. Longer than it is wide, Wildwood Park protrudes as the northern extremity of Harrisburg into neighboring Susquehanna Township. To the west of the Park are the main lines of the Penn Central Railroad, the Lucknow Freight Yards and a privately-owned industrial park. To the north and east are more populated areas. Wildwood Park has sharply rising hills and ridges on its easterly side and a narrow strip of flat land on its westerly border. Access to the Park, therefore, is limited and is realistically confined to the north and to the south.

Prior to the 1960's, Wildwood Park had a total of 850 acres within its boundaries and consisted of a 90-acre lake (which still exists) adjoined on the southern end by a section of flat land. It appears that in the early part of the Twentieth Century, Wildwood Park was a major recreational asset for the people of Harrisburg. Since then, however, the Park experienced a steady decline in use, maintenance and care. Some of the flat section of land, for instance, was used as the Harrisburg City dump and was frequently on fire, often causing noxious fumes to settle over portions of Harrisburg. The remainder of the Park also suffered from indiscriminate dumping. Security, especially at night, became a problem. Siltation from two feeder streams gradually filled Wildwood Lake to such an extent that it created two small deltas and reduced the Lake depth to a few feet, thus making extensive dredging of the Lake necessary and highly expensive. In addition, few species of fish now remain in the Lake. One final example of the Park decline was the closing of a small zoo located on the flat portion of the land, where HAC is now located.

During the 1960's various plans and good intentions to develop Wildwood Park were never followed through to completion. For example, the National Audubon Society conducted a survey of Wildwood Park and in April, 1964, recommended many improvements to the Park, including construction of a nature center on the flat section of the parkland. And in 1964-65, the Harrisburg City Council authorized a bond issue of $50,000 to finance the dredging of Wildwood Lake, but did not spend the money when it was realized that the cost of meaningfully dredging the Lake would be prohibitive.

In 1963, 157 acres of the flat area of Wildwood Park were chosen as the site for HAC, a multi-county facility. Harrisburg City Council gave its consent to the sale of the land and upon receiving the required Court approval, formally deeded the land to HAC in 1965. After the selection of this land for HAC, all of the City-sponsored recreational activities, particularly a children's day camp, a pavillion and archery sites were phased out of Wildwood Park. HAC construction was completed in 1967 and now has a student population of 3800. As presently planned, the highways would be located in close proximity to HAC with an intersection on the north of the campus with I-81 and on the south with Elmerton Avenue.

About the time that Wildwood Park was experiencing a general decline in use, maintenance and care, Harrisburg's transportation problems began to develop in direct proportion to the expansion of the surrounding suburbs. Severe traffic congestion — automobile and truck — occurred in the northern portions of the City along the Susquehanna River. The plan to relieve this condition ultimately became known as the River Relief Route. A public hearing on the River Relief Route was held on July 22, 1965, in the City of Harrisburg, at which time the route through Wildwood Park was presented. Previously, in October, 1963, the City Council of Harrisburg had approved the transfer of the land in Wildwood Park for the River Relief Route right of way. The highway project is funded 50-50 by the Federal and State Governments.

Specifically, the River Relief Route is intended to proceed north from a point near the Cameron Street-McClay Street intersection adjoining the Pennsylvania Farm Show Complex, into Wildwood Park along its easterly side, over the ridges and steep hills of the Park, to the northern tip of Wildwood Lake and to connect with completed highway projects farther north. For purposes of this action, the River Relief Route is divided into two parts, one known as Section 1 between the Cameron Street-McClay Street intersection and the southern delta in Wildwood Lake and the other, known as Section 2, between the latter point and the area beyond the Park's northern boundary.² Section 1 is 1.59 miles in length, 1.38 of which is located within Wildwood Park and will include 93 acres of the Park. Section 2 is 1.63 miles in length, 1.21 of which will be located within Wildwood Park and will include 41 acres of the Park.

On August 12, 1970, J. Robert Bazley, Inc. was awarded the contract for Section 2 of the River Relief Route. Work began in September, 1970, with a Bazley subcontractor clearing and grubbing the land, followed by actual Bazley construction on October 15, 1970. Clifford Dillman, a faculty member at HAC and a plaintiff here, first observed the Bazley...