Pennsylvania Environmental Council, Inc. v. Bartlett

Decision Date30 April 1970
Docket NumberNo. 70-123 Civ.,70-123 Civ.
Citation315 F. Supp. 238
PartiesPENNSYLVANIA ENVIRONMENTAL COUNCIL, INC., a Pennsylvania Corporation, the Allegheny Mountain Chapter of Trout Unlimited, an unincorporated association, Colson E. Blakeslee, Marion E. Brooks, Robert L. Kolek, Bertil L. Anderson, and Joseph H. Fritz, Plaintiffs, v. Robert G. BARTLETT, individually and as Secretary of the Department of Highways of the Commonwealth of Pennsylvania, John Volpe, individually and as Secretary of Transportation of the United States, Central Pennsylvania Quarry, Stripping and Construction Co., Stabler Construction Co., and Reed and Kuhn, Inc., Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

Killian, Gephart & Snyder, Harrisburg, Pa., Robert Broughton, Meyer, Unkovic & Scott, Pittsburgh, Pa., for plaintiffs.

Robert W. Cunliffe, Lansford, Pa., Edward Hosey, Plymouth, Pa., for Pennsylvania Dept. of Highways.

Francis J. Locke, Regional Counsel, Region 2, Baltimore, Md., for John Volpe, individually and as Secretary of Transportation.

S. John Cottone, U. S. Atty., Scranton, Pa., for the United States.

J. Thomas Menaker, McNees, Wallace & Nurick, Harrisburg, Pa., for Central Pennsylvania Quarry, Stripping and Construction Co., Stabler Construction Co. and Reed and Kuhn, Inc.

OPINION

NEALON, District Judge.

In this action, plaintiffs seek to enjoin defendants from proceeding further with the planned relocation of Pennsylvania Route 872 and from approving, granting or using any Federal funds for this project and, further, to order the defendant, Robert G. Bartlett, Pennsylvania Secretary of Highways, to upgrade and repair the existing roadbed of Route 872.1 Plaintiffs are the Pennsylvania Environmental Council, Inc., and the Allegheny Mountain Chapter of Trout Unlimited, as well as several individual sportsmen. Defendants are the Pennsylvania Secretary of Highways, the Secretary of Transportation of the United States, and the contractors who were awarded construction contracts for the project. Plaintiffs contend that defendants are violating the National Evironmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (Supp. 1, 1970); the Department of Transportation Act, 49 U. S.C. §§ 1651-1658 (Supp.1970), particularly §§ 1651, 1653 and 1657; the Federal-Aid Highway Act, 23 U.S.C. §§ 101-141, specifically § 138; 23 C.F.R. Part 1, Appendix 1; the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; the General Bridge Act of 1946, 33 U.S.C. § 525, and the Ninth Amendment of the United States Constitution. Hearings were held and evidence presented on April 20, 21, and 22, 1970, and oral argument made April 24, 1970.2 From the testimony taken and exhibits received, the following facts appear:

Pennsylvania Legislative Route 52001, also known as Traffic Route 872 (hereinafter Route 872), runs in a northerly-southerly direction for approximately fifty miles through Potter and Cameron Counties from its point of origin, where it intersects Route 6 near Coudersport, to its terminus, where it intersects Route 120 at the town of Sinnemahoning. The First Fork of Sinnemahoning Creek (First Fork)3 runs in a southerly direction, immediately parallel and to the East of Route 872, from Wharton to Sinnemahoning for a distance of approximately twenty miles and then courses in an easterly direction for approximately ten miles to where it flows into the Susquehanna River. On the First Fork, approximately midway between Wharton and Sinnemahoning, Sinnemahoning State Park is located, a part of which contains the George B. Stevenson Dam, erected primarily for flood control purposes. Route 872 was constructed approximately forty years ago and is a narrow road which, at many points in the First Fork area, is cut out of the side of the mountain. The difference in elevation from the Sinnemahoning Creek to Route 872 ranges from 75 feet to 250 feet. Maintenance of this road for a distance of one mile South of the confluence of Bailey Run with First Fork has been difficult as slides occur after rainstorms and the retaining wall has had to be rebuilt on three different occasions. The present width of the template4 in this one-mile stretch is as low as 20 feet and the paved portion runs from 6 feet to 10 feet in width. Because of the maintenance difficulties and the dangers presented for vehicular traffic by the present road, residents in the Potter and Cameron County vicinity have been agitating for the construction of a new road from the Potter-Cameron line, North through Potter County past the confluence of Bailey Run, to the village of Wharton, a distance of approximately 5.1 miles, in hopes of alleviating the present dangers. Prior to May, 1967, on recommendation of the Pennsylvania Highways Department, the Pennsylvania Highway Commission approved a proposal to improve this 5.1-mile stretch. Advertisements were placed in the Potter Enterprise, Coudersport, Pennsylvania, on May 8 and May 15, 1967, notifying all interested persons of the proposed construction; advising that plans were available for inspection in the office of the District Engineer in Clearfield, Pennsylvania, and that any interested citizens from the communities affected might request a public hearing respecting such proposed construction by delivering a written request to the District Engineer on or before May 22, 1968. No requests were made for such a hearing. Location studies were made by the Pennsylvania Highways Department in the Fall of 1967 and the Winter of 1968. Because of the narrowness of the road and past difficulty with slides and maintenance, the Highways Department considered three possible alternatives in improving a section of the road running South from the confluence of Bailey Run for a distance of 7/10 of a mile (this is the precise area involved in this lawsuit). The alternatives were: (a) widening and improving the existing road on the westerly side of the Creek; (b) leaving the present route at a point 7/10 of a mile South of the confluence of Bailey Run and placing a bridge across the Creek to the easterly side, proceeding up the easterly side to a point where it would be necessary to place another bridge across the curving Creek and then rejoin Route 872 above Bailey Run, and (c) leaving the present route at a point 7/10 of a mile South of the confluence of Bailey Run and extend partially into the streambed on the westerly side and continue North on the westerly side, connecting with the road above Bailey Run. Inasmuch as the template proposed for the improved road would be 52 feet, it was decided not to attempt to widen and improve the existing road because the sandy and silty soil would necessitate making a massive cut into the mountain, which would be extremely expensive and would lead to uncontrolled erosion. According to Assistant District Engineer David Bobanick, a 1-foot vertical rise for every two feet in distance would be required and this would mean sloping the entire mountain. In addition, the cut would extend for 900 feet and in the process of filling-in the easterly bank of the road, a large amount of soil would be caused to go into the Creek. The Highways Department decided that the proposal to extend into the Creek on the westerly side was the most preferred and design plans were prepared. This proposal provided for the placing of fill along a 4100-foot corridor, encroaching into the westerly side of the Creek for a minimum of 10 feet and a maximum of 60 feet, as well as a 2300-foot channel change at another point in the stream. The bridging of the Creek was not acceptable, presumably because it would be more expensive and would also involve constricting the stream channel and building up the area on the easterly side of the stream. Since December 30, 1963, a Memorandum of Understanding existed between the Department of Highways and the Pennsylvania Fish and Game Commissions whereby the Secretary of Highways has agreed, inter alia, to provide a copy of advance plans for each project to the Executive Directors of the Fish and Game Commissions and furnish a notice of all public hearings advertised and/or held concerning Federal-aid highway construction projects. The Executive Director of the Fish Commission was furnished with notices concerning the public hearings, but no plans were furnished until late September, 1968, when a blueprint was submitted requesting approval of a proposed channel change, which approval was granted on October 3, 1968. A new Memorandum of Understanding between the Highways Department and the Fish and Game Commissions was adopted on September 19, 1968, and sent to Field Representatives on October 12, 1968. On November 8, 1968, a meeting was held between representatives of the Fish Commission and the Highways Department and certain requirements of the Fish Commission, e. g., sloping the new channel toward the center and seeding the side slopes, were adopted. Since the plans were considered to be in the preliminary stages, the Fish Commission withheld approval or further comment until revised plans and cross-sections of the channel changes were submitted for review. Plans were then developed in accordance with the wishes of the representatives of the Fish Commission and transmitted to the Fish Commission on December 6, 1968. On December 20, 1968, the Department of Highways filed an application with the Pennsylvania Department of Forests and Waters, Water and Power Resources Board, seeking its consent to change the channel of the First Fork, and such consent was granted on January 16, 1969. On January 20, 1969, the Engineering Division of the Fish Commission approved the plan submitted on December 6, 1968. On January 21, 1969, the Bureau of Design for the Highways Department in Harrisburg notified the Potter County District Engineer that the channel change had been approved by the Pennsylvania Department of Forests and Waters and that the project may proceed accordingly. The Potter County...

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