Keith v. Volpe

• Decision Date: 02 October 1996
• Docket Number: No. Civil 72-355-HP.,Civil 72-355-HP.
• Citation: 965 F.Supp. 1337
• 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.

965 F.Supp. 1337

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

No. Civil 72-355-HP.

United States District Court, C.D. California.

October 2, 1996.

COPYRIGHT MATERIAL OMITTED

Carlyle W. Hall, Jr., Hall & Associates, Los Angeles, CA, for Plaintiffs.

Robert L. McWhirk, Culver City, CA, for Century Housing Corp.

O.J. Solander, Sacramento, CA, for State of Cal. Dept. of Transp.

Charles F. Kester, Gibson, Dunn & Crutcher, L.L.P., Los Angeles, CA, for Robert L. Kudler.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

PREGERSON, Circuit Judge, sitting by designation.

This matter comes before the court on plaintiffs' request for a preliminary injunction prohibiting the State of California Department of Transportation ("Caltrans"), Gary W. Bush, James W. Van Loben Sels, and their agents from issuing any permit to non-party Robert L. Kudler that would allow him to place any billboard or other outdoor advertising displays along the Interstate 105 freeway ("I-105") in Los Angeles County.

The court has considered the documents filed in this matter, including the briefs of the parties and non-party Kudler. In addition, the court has heard argument and considered the affidavits and declarations submitted by the parties and non-party Kudler. The court has also reviewed the record of this litigation, including: this court's 1972 injunction, Keith v. Volpe, 352 F.Supp. 1324 (C.D.Cal.1972), aff'd sub nom Keith v. California Highway Comm'n, 506 F.2d 696 (9th Cir.1974) (en banc), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975); the Final Environmental Impact Statement for the Proposed Routes 1 & I-105 (El Segundo-Norwalk) Freeway-Transitway, vols. 1-2 ("the Final EIS") filed on July 21, 1977; and this court's Final Amended Consent Decree ("the Amended Decree") filed on September 22, 1981 and attached here as appendix A. Being fully advised, the court finds and rules as follows:

I. BACKGROUND AND PRIOR PROCEEDINGS

The matter before this court requires an interpretation of the Amended Decree and the proceedings leading up to it. The Amended Decree settled nearly a decade of litigation concerning the construction of I-105, a federally funded highway that is now part of the interstate highway system.

A. The 1972 Injunction

This environmental protection and civil rights suit was filed in February 1972 by persons living in the path of the I-105 freeway, and by the NAACP, the Sierra Club, Environmental Defense Fund, City of Hawthorne, and others.

Plaintiffs brought suit under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347, the California Environmental Quality Act of 1970, Calif. Pub. Res.Code §§ 21000-21151, the Federal-Aid Highway Act of 1968, 23 U.S.C. §§ 128(a), 501-511, and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655. Plaintiffs asked the court to halt work on the I-105 project, which would displace 21,000 persons, until government officials complied with the above mentioned statutes, which were enacted to protect the human environment, to protect homeowners, tenants, and businesses forced to relocate, and to secure public participation in the highway decision-making process through public hearings.

After conducting hearings on plaintiffs' 1972 motion for a preliminary injunction, the court determined that plaintiffs' claims were well-founded. The evidence presented to the court disclosed a number of deficiencies in the relocation studies on the availability of "decent, safe, and sanitary housing" required by 42 U.S.C. § 4623(a)(1)(A). The severest housing shortage was in the Watts-Willowbrook area.

Evidence presented to the court during the 1972 hearings also revealed that the federal and state defendants¹ had given little consideration to the freeway's environmental effects. On the evidence before it, the court found that as of 1972 the defendants had failed to comply with NEPA because they refused to prepare an EIS for the I-105 project. 352 F.Supp. at 1332. NEPA requires that an EIS be prepared for any major action significantly affecting the human environment. 42 U.S.C. § 4332(2)(C). In this case, the defendants agreed that I-105 was a major federal action significantly affecting the human environment, but argued that an EIS was not required for the I-105 project because the freeway had been planned and initiated before NEPA was enacted. 352 F.Supp. at 1330.

The court rejected that position, finding that the federal and state governments had "failed to satisfy NEPA's commandments." 352 F.Supp. at 1330. The court explained that an EIS, given the early stage of the I-105 project, was not optional under NEPA:

The message of NEPA is loud and clear. Section 101(a) declares that

it is the continuing policy of the Federal Government ... to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony....

Section 101(b) provides that in order to carry out this policy,

it is the continuing policy of the Federal Government to use all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.

352 F.Supp. at 1332 (quoting 42 U.S.C. § 4331(b)) (emphasis added).

Noting Congress's directive that NEPA be complied with "to the fullest extent possible," 42 U.S.C. § 4332, this court concluded that "the application of NEPA to [I-105] should not be considered impracticable" because "five of the freeway's eight segments were still in their planning stage." 352 F.Supp. at 1333. Because no final plan for I-105 had yet been approved, "the general judicial policy against the retroactive application of statutes ... was inapplicable." Id. (citations omitted).

On July 7, 1972, the court issued a preliminary injunction halting further work on I-105 until government officials prepared an EIS as required by NEPA. 352 F.Supp. at 1324. In addition, the court's order required that governmental officials hold additional public hearings, conduct further housing availability studies, and give satisfactory assurances that adequate replacement housing would be available as required by the Federal-Aid Highway Act and the Uniform Relocation Assistance and Real Property Acquisition Policies Act.

B. The Final EIS

The Final EIS was completed in July of 1977. During 1969 and 1970 (before the court's 1972 injunction), the Division of Highways (Caltrans's predecessor agency) studied the "environmental, physical, social and economic impacts" of the path of the proposed I-105. Final EIS at 2-13. The Division of Highway's original project design was developed by a "Design Concept Team," which was a group comprised of "environmental and urban planners, architects, economists, sociologists and others familiar with urban problems and impacts, as well as highway engineers." Final EIS at 3-4. The Design Concept Team conducted studies that were "aimed at seeking ways to blend the Project into its urban setting by pointing out ways of maximizing opportunities for enhancing the neighborhood-freeway relationship and minimizing potential disruptive effects of the facility." Final EIS at 2-13 (emphasis added). The design studies included consideration of a plethora of factors, including neighborhood environmental values, as well as design implications. Id. The I-105 design was a matter of great concern for the communities affected by the project and the Division of Highways held seven public hearings about the freeway's design. Over 5,600 people attended these meetings. Id.

The 1972 injunction, however, required the federal and state governments to conduct a more substantial review of the I-105 project. Accordingly, between 1972 and 1974, Caltrans and the Federal Highway Administration ("FHWA") undertook a formal environmental study, leading to preparation of an EIS. Upon order of the court, this study analyzed the I-105 project in light of NEPA's environmental policy mandates and federal housing availability requirements. A Draft EIS, containing summaries of the findings was made available for public comment on December 19, 1974.

There is no doubt that review of the Draft EIS was extensive. It included over 150 open meetings with public officials and the review of hundreds of letters, some expressing concerns and others supporting the project. During the spring of 1975, numerous public hearings were held to provide the Draft EIS project with more information and to afford the public an opportunity to discuss the Draft EIS. These public comment hearings were held in the various communities that abut the I-105. Total attendance at these meetings was 1,230 people. Final EIS at 2-12. Two additional hearings were held after two modifications to the project were suggested by the California Highway Commission (Caltrans) and the City of Hawthorne. Total attendance at these two meetings was 1,150. Id.

Freeway development requires extensive negotiations between federal, state, county, and local governments. The I-105 project was no exception. In these negotiations, determination of the vertical alignment of the freeway (i.e., at-grade, depressed, or elevated), the landscaping concept and features, and the placement of noise-attenuation and retaining walls, all became part of the federal and state government's negotiations with city and county officials. Final EIS at 2-12 to 2-13. As the Final EIS assures:

The Division of Highways (Caltrans), has always maintained close working relationships with local city staffs. Planning and design coordination efforts continued after execution of freeway agreements to insure that mutually agreeable and desirable design feature...