Keith v. Volpe

• Decision Date: 11 September 1972
• Docket Number: Civ. No. 72-355-HP.
• Citation: 352 F. Supp. 1324
• Court: U.S. District Court — Central District of California
• Parties: Ralph W. KEITH et al., Plaintiffs, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants.

352 F. Supp. 1324

Ralph W. KEITH et al., Plaintiffs, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants.

Civ. No. 72-355-HP.

United States District Court, C. D. California.

July 7, 1972.

Motion to Amend Denied September 11, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brent N. Rushforth and Frederic P. Sutherland, Center for Law in the Public Interest, Los Angeles, Cal., Rosalyn M. Chapman, Western Center on Law & Poverty, Los Angeles, Cal., Thomas J. Graff, Environmental Defense Fund, Berkeley, Cal., Kenneth L. Nelson, City Atty., Hawthorne, Cal., Beatrice Challiss Laws, Sierra Club Legal Defense Fund, J. Anthony Kline, San Francisco, Cal., for plaintiffs.

William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civil Division, Gary H. Giesler and Matthew A. Schumacher, Asst. U. S. Attys., Los Angeles, Cal., for federal defendants.

Harry S. Fenton, Sacramento, Cal., Joseph A. Montoya, Los Angeles, Cal., Kingsley Hoegstedt, Sacramento, Cal., Norval Fairman, San Francisco, Cal., Charles E. Spencer, Jr., Los Angeles, Cal., for state defendants.

Royal M. Sorensen, City Atty., Downey, Cal., and Burke, Williams & Sorensen, Los Angeles, Cal., for intervenors.

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

PREGERSON, District Judge.

This suit was brought to halt work on the proposed Century Freeway until such time as the responsible federal and state officials comply with certain constitutional, statutory, and administrative requirements which, plaintiffs contend, they have heretofore failed to satisfy. The matter came on for hearing on May 2, 3, 4, and 5, 1972, on plaintiffs' motion, filed pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction. Having studied the briefs, affidavits, and exhibits submitted by counsel prior to the aforesaid hearing, having heard the testimony offered and the arguments of counsel made at the aforesaid hearing, having studied the briefs and affidavits submitted by counsel after the conclusion of the hearing, and having studied the authorities cited by counsel, the Court has concluded that defendants have adequately complied with some of the aforementioned legal requirements, but have failed to comply with others. Therefore the Court will issue a preliminary injunction.

Plaintiffs herein are four couples who live in the path of the proposed freeway, the National Association for the Advancement of Colored People, the Sierra Club, the Environmental Defense Fund, an unincorporated association named "Freeway Fighters," and the City of Hawthorne. Defendants herein are various state and federal officials and agencies. One group of defendants, sometimes referred to as "federal defendants," consists of John A. Volpe, the Secretary of the United States Department of Transportation; Sheridan A. Farin, the Administrator of Region 7 of the Federal Highway Administration, an agency within the Department of Transportation; and Donald E. Trull, the Division Engineer for the Federal Highway Administration in California. A second group of defendants, sometimes referred to as "state defendants," consists of the California Highway Commission; the California Department of Public Works; James A. Moe, the Director of the Department of Public Works; and Robert Datel, the State Highway Engineer of the California Division of Highways, an agency within the Department of Public Works. Plaintiffs contend that defendants have failed to comply with a federal environmental protection statute;¹ a California environmental protection statute;² federal statutes protecting homeowners, tenants, and businessmen who must relocate because of the construction of highways funded with federal aid;³ and a federal statute requiring that public hearings be held prior to the construction of any federal-aid highway.⁴ Plaintiffs also charge that federal defendants are violating the due process clause of the Fifth Amendment to the United States Constitution and that state defendants are violating the due process and equal protection clauses of the Fourteenth Amendment.

A sketch of the proposed freeway is in order. If and when the Century Freeway is completed, it will, as presently planned, stretch a distance of 17 miles across the southern portion of the densely populated Los Angeles basin. It will connect the Los Angeles International Airport on the west with the San Gabriel River Freeway (Route I-605) on the east; it will also intersect with the San Diego, Harbor, and Long Beach Freeways (Routes I-405, 11, and 7, respectively). The freeway will traverse the cities of El Segundo, Hawthorne, Inglewood, Lynwood, South Gate, Paramount, Downey, and Norwalk, the Watts section of the City of Los Angeles, and unincorporated areas of Los Angeles County, including the communities of Willowbrook and Del Aire. Federal officials have designated the freeway as a part of the interstate highway system — specifically, Route I-105. Therefore 90% of the cost of the freeway will be borne by the federal government, although the California Division of Highways will actually acquire the right-of-way and construct the road. The total cost of acquiring the land and actually constructing the freeway has been estimated at $501,800,000. It has also been estimated that 9000 families, consisting of 21,000 individuals, will be displaced by the freeway and that 3900 single-family dwellings and 3000 multiple-family dwellings will be acquired in order to clear the right-of-way.

The planning and design of a federal-aid highway is a lengthy process. The applicable statutes and regulations require a series of public hearings and, in addition, the submission by state officials of detailed proposals and assurances to officials of the Department of Transportation hereinafter DOT and the Federal Highway Administration hereinafter FHWA for approval. See, e. g., the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq.; the FHWA's Policy and Procedure Memorandum 20-8 (Jan. 14, 1969) hereinafter PPM 20-8, 23 C.F.R. Part 1, Appendix A; Lathan v. Volpe, 455 F.2d 1111, 1115-1116 (9th Cir. 1971). A public hearing on one aspect of the Century Freeway was held as long ago as June 1963, and the Division of Highways is now in the midst of acquiring the right-of-way for the freeway. According to the testimony of an official of the Division of Highways, as of approximately April 24, 1972, the Division had acquired 3388 parcels of land for the freeway, which represented 55.8% of the 6073 parcels that it intended to eventually acquire. It had acquired these parcels for a total of $88,651,000. In addition, the Division had reached agreements with the owners of 169 other parcels that were still in escrow. In one segment of the freeway corridor, however, the Division had already acquired 85.1% of the parcels, while in another segment it had only acquired 39.7%. A second official testified that as of approximately May 3, 1972, 2840 residences in the freeway corridor had been vacated. According to the testimony of a third official, the Division of Highways at present intends to begin actual construction of the freeway during the third quarter of 1972 and to complete construction by the middle of 1977.

With that picture of the proposed freeway and of the work that has already been performed in mind, the Court will turn to the specific legal issues raised by this lawsuit.

The National Environmental Policy Act of 1969:

Nearly three years ago, in response to growing public concern with the deterioration of the nation's environment, Congress enacted the National Environmental Policy Act of 1969 hereinafter NEPA, 42 U.S.C. §§ 4321-4347. The statute went into effect on January 1, 1970. Section 101 of NEPA, 42 U.S.C. § 4331, contains a declaration by Congress of a comprehensive national environmental policy. Section 102(2) (C), 42 U.S.C. § 4332(2)(C), establishes a mechanism for carrying out that policy. It "authorizes and directs that, to the fullest extent possible," every agency of the federal government shall

"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."

In the words of Judge Skelly Wright, "NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department." Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Comm'n, 146 U.S. App.D.C. 33, 449 F.2d 1109, 1112 (1971). NEPA also established a Council on Environmental Quality hereinafter Council, and in guidelines promulgated pursuant to NEPA that body stated,

"The objective of section 102(2)(C) * * * is to build into the agency decision making process an appropriate and careful consideration of the environmental aspects of proposed action * * *." Statements on Proposed Federal Actions Affecting the Environment, 36 Fed.Reg. 7723, 7724, ¶ 1 (April 23, 1971).

To quote again from the Calvert Cliffs' decision, moreover,

"* * * The Section 102 duties are not inherently flexible. They must be complied with to the fullest extent, unless there is a clear conflict of statutory authority." 449 F.2d at 1115. Emphasis in original.

See also Daly v. Volpe, 350 F.Supp. 252 (W.D.Wash.1972). The federal defendants have not filed the environmental impact statement required by ...