Patterson v. Exon

• Citation: 415 F. Supp. 1276
• Decision Date: 14 June 1976
• Docket Number: Civ. No. 73-0-434.
• Parties: Ronald PATTERSON, Plaintiff, v. J. James EXON and William T. Coleman (formerly Claude Brinegar), Defendants.
• Court: U.S. District Court — District of Nebraska

415 F. Supp. 1276

Ronald PATTERSON, Plaintiff, v. J. James EXON and William T. Coleman (formerly Claude Brinegar), Defendants.

Civ. No. 73-0-434.

United States District Court, D. Nebraska.

June 14, 1976.

COPYRIGHT MATERIAL OMITTED

James T. Gleason, Omaha, Neb., for plaintiff.

Clarence A. H. Meyer, Atty. Gen. of Neb., Lincoln, Neb., for Governor Exon.

Stephen L. Muehlberg, Asst. U. S. Atty., Omaha, Neb., for William T. Coleman, Secretary of Transportation.

MEMORANDUM OPINION

SCHATZ, District Judge.

This is an action to enjoin the defendants from spending any money or beginning any construction on a section of Nebraska State Highway 31 until a proper environmental impact statement has been prepared and approved. Plaintiff owns and leases property abutting the right-of-way of Highway 31 in the area of the proposed construction. The defendants are the governor of the State of Nebraska and the Secretary of the United States Department of Transportation. This matter was tried to the Court without a jury and the Court conducted a view of the section of the highway in question and the surrounding environment on December 30, 1975, pursuant to a request from all parties. Jurisdiction is present under 28 U.S.C. § 1331.

FINDINGS OF FACT

Nebraska State Highway 31 is a state highway approximately thirty-one miles long and generally running north and south. The portion in issue here is an unpaved stretch of that highway between Interstate 80 on the north and Nebraska State Highway 50 on the south, consisting of eleven miles, more, or less. (See Appendix I.) It is the only unpaved section of the highway. For the first three miles south of I-80, Highway 31 passes through rolling farmland with cultivated fields and pastures on either side of the right-of-way. There are few trees adjacent to the right-of-way immediately south of I-80, but the trees and underbrush become thicker as the highway progresses south. About three miles south of I-80 the terrain through which Highway 31 passes becomes thickly wooded. The highway continues for about four miles through this wooded area and along the banks of the Platte River. The terrain becomes rolling farmland for approximately the last four miles until the highway intersects with Highway 50.

The above-mentioned wooded area includes some land owned by the Nebraska Game and Parks Commission, part of which is known as the Gretna Fish Hatchery and part of which is land known as the Schram Tract. The Fish Hatchery is no longer actively operated as such, but it serves as a picnic area and place for outdoor recreation. The Schram Tract was willed to the State for use as an outdoor recreation and nature study area. It is adjacent to the Fish Hatchery and tentative plans call for using the Fish Hatchery and Schram Tract as a single recreation area for 4-H camping activities such as picnicking, camping, hiking, etc. The wooded area contains a wide variety of trees and plants and it provides shelter for different types of birds and small game, such as deer, fox, rabbits and the like. There is a small lake near the right-of-way and several streams run through the area. It is an area rich in natural scenic beauty.

The portion of Highway 31 in issue is a gravel road which passes over several narrow bridges and which contains a number of sharp turns. A driver's visibility is restricted because of the sharp turns and because the trees and vegetation grow up to or near the road in some places. The road is dusty during dry weather and muddy during wet weather. During the winter snow tends to drift across the road and snow removal is hampered because of the lack of cleared places or shoulders adjacent to the roadway on which to push the snow. The area served by the highway is primarily agricultural and residential. A small housing development containing a few houses has been started adjacent to the right-of-way. The highway carries mostly local traffic with an average daily volume of two hundred sixty-five (265) vehicles. Traffic is light on weekdays but becomes heavier on weekends as people travel to the Fish Hatchery and surrounding areas for recreational purposes.

The defendants have prepared plans for the improvement of a 4.1 mile stretch of the road. It is this project that the plaintiff wishes to enjoin. The proposed project, identified as Project S-31-2(101)177, calls for a reconstruction of a section of the highway from the I-80 interchange to a point 4.1 miles south, which is about one-half mile north of the north boundary of the Fish Hatchery/Schram Tract. (See Appendix II). The reconstruction will generally follow the existing alignment of the highway, except that the new highway will deviate in such a manner as to eliminate an "S" curve. The plans also call for an existing bridge over a stream to be replaced with a concrete bridge forty (40) feet by one hundred (100) feet, along with a realignment of the channel of the stream. It should be emphasized that this project calls for a total reconstruction of the road section, not merely a widening of the existing highway. The new road will be built to a design speed of sixty-five (65) miles per hour, which is determined according to the functional classification of the road and the projected traffic volume. In order to meet these design standards it will be necessary to level and widen the roadbed, straighten curves and improve approaches to bridges. It will be necessary to acquire about forty-five (45) acres of additional right-of-way. The present right-of-way is sixty-six (66) feet and the proposed right-of-way will vary between one hundred twenty (120) feet and two hundred seventy-five (275) feet. The plans call for grading to remove all vegetation within the proposed construction limits, which area will then be seeded with grass after the construction is completed. The state intends to mow the grass within fifteen (15) feet of either side of the highway. The state estimated that about four hundred (400) trees, some of which were infected with Dutch elm disease, would have to be removed, but the evidence at trial showed the number to be about eight hundred (800). The project will require the moving of about four hundred thousand (400,000) cubic yards of dirt and the pouring of over six thousand (6,00) cubic yards of concrete. The estimated cost of the project in 1973 was about $900,000, of which the federal government would pay seventy per cent (70%). As yet, the defendants have not begun proceedings to acquire additional right-of-way nor have they begun construction on the project.

At the time this project was being planned, the Nebraska Department of Roads was planning to improve the balance of the highway south of the project in question all the way to Highway 50. It did not intend to seek federal funds for that project, or at least for that part which crossed the Fish Hatchery and Schram Tract.

The Department of Roads conducted a study of the environmental impact of the 4.1 mile project and concluded that the project would not have a significant effect on the quality of the human environment and, consequently, an environmental impact statement was not needed. A negative declaration, which discussed the factors in this decision, was prepared and submitted to the Federal Highway Administration FHWA for approval. Officials of the FHWA initially recommended disapproval for the negative declaration for the reasons that, among others, the state was dividing the project into sections in order to avoid a thorough assessment of the environmental consequences of building a road through the Fish Hatchery/Schram Tract area. They noted that area might be land covered by Section 4(f) of the National Transportation Act of 1966, 49 U.S.C. § 1653(f)¹ and that the project foreclosed alternatives which could avoid Section 4(f) lands. Subsequently, the Nebraska Department of Roads voluntarily agreed to prepare an environmental impact statement for the remainder of the road before any improvement on the balance of the highway was undertaken. The FHWA then approved the negative declaration for the project in question.

CONCLUSIONS OF LAW

There are two issues in this litigation: whether an environmental impact statement was required for the project in question and, if so, whether the negative declaration prepared by the defendants meets the statutory requirements of an impact statement.

The National Environmental Policy Act of 1969 NEPA, 42 U.S.C. § 4321 et seq., recognizes the need to preserve and protect the environment in a manner which will allow the most beneficial uses of our natural resources. It requires all federal agencies to fully assess and strike a balance between the benefits to be obtained from a proposed action, on the one hand, and the environmental costs on the other hand.² To that end it has established certain procedures which must be followed by all federal agencies. Among those procedures the federal agency must

(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.

42 U.S.C. § 4332(2).

NEPA is an "environmental full disclosure law." The environmental impact statement serves as a basis by which the agency can fully and completely evaluate the environmental consequences of the project. Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 850 (8th Cir. 1973). It also provides...