Scherr v. Volpe

Citation336 F. Supp. 882
Decision Date07 December 1971
Docket NumberNo. 71-C-347.,71-C-347.
PartiesAbraham SCHERR et al., Plaintiffs, in their own behalf and on behalf of all persons similarly situated, v. John VOLPE, individually and as Secretary of Transportation of the United States, Washington, D. C., et al., Defendants.
CourtU.S. District Court — Western District of Wisconsin

Frederick H. Miller, Madison, Wis., for plaintiffs.

Richard E. Barrett, E. Gordon Young, Asst. Attys. Gen., John O. Olson, U. S. Atty., James R. Mack, Asst. U. S. Atty., Madison, Wis., for defendants.

OPINION AND TEMPORARY RESTRAINING ORDER

JAMES E. DOYLE, District Judge.

Plaintiffs have moved for a preliminary injunction in the above entitled action to enjoin defendants from engaging in any and all further construction or development of the State Highway 16 construction project at or near Hartland, Wisconsin, to run from Oconomowoc to Pewaukee, Wisconsin, including any alteration of the natural habitat of said area; and specifically to enjoin them from constructing or excavating in the area for said project until a final determination of this action.

FACTS

For the purpose of the motion for a preliminary injunction, and only for such purpose, I find as fact the propositions stated in this section of this opinion. These findings are based on the record to date.

Plaintiffs are residents of the Village of Hartland, Wisconsin, and are members of various conservation and environmental organizations whose concern it is to conserve the material resources, aesthetic qualities and recreational values of areas such as the Lake Kettle Moraine area, in which the disputed highway is situated.

The present Highway 16 is to be converted from a 2-lane conventional highway to a 4-lane freeway over a length of approximately 12 miles. This portion of the state trunk highway system has been determined to be presently inadequate and deficient in providing safe and reasonable operating service to the motorists of southeastern Wisconsin. The project requires the acquisition of additional right of way throughout to provide for adequate width, frontage road and interchange construction. The project is part of a federal-aid highway program and is jointly financed and supervised by the Federal Highway Administration and the State of Wisconsin.

The construction project is located in the Lake Kettle Moraine area which contains: eleven lakes; two major rivers and their watershed and flood plains; wetlands located just west of the Village of Pewaukee and in and around the county park at Forest and Grass Lakes; the Kettle Moraine forests and other woodlands; wildlife habitats; ice age geological formations and rough topography unique to the Kettle Moraine area.

The immediate effects of the construction now in progress include damage to present natural habitats of various wild animals; stripping of forested land with attendant erosion problems; increased levels of noise, air and water pollution; impingement upon the aesthetic natural beauty and recreational value of the area.

An environmental impact statement (of the kind described in 42 U.S.C. § 4332(2) (C)) has not been filed by the Federal Highway Administration.

OPINION

Jurisdiction is present. 28 U.S.C. § 1331, 5 U.S.C. §§ 701-706.

Plaintiffs contend that the federal defendant Volpe and his federal subordinate officials failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2) (C) (hereinafter NEPA) in connection with the highway project.

Plaintiffs have standing to sue. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 616 (2d Cir. 1965). I find that a real controversy exists between the plaintiffs and defendant in this action and that the aesthetic, conservation and recreational interests asserted by plaintiffs lie "arguably within the zone of interests to be protected or regulated by the statute . . ."1 See Data Processing, supra, 397 U.S. at 153, 90 S.Ct. at 830, 25 L.Ed.2d 184.

Since 42 U.S.C. § 4332 does not expressly provide for judicial review of agency actions, I must look to the Administrative Procedure Act, 5 U.S.C. 701-706. Hereinafter "APA" The APA grants standing to a person "aggrieved by agency action within the meaning of a relevant statute . . ." 5 U.S.C. § 702. That interest may at times reflect "aesthetic, conservational, and recreational" as well as economic values. Data Processing, supra, 397 U.S. at 154, 90 S.Ct. at 830 (citing Scenic Hudson Preservation Conf. v. F. P. C., 354 F.2d 608, 616; Office of Communication of United Church of Christ v. F. C. C., 123 U.S.App.D.C. 328, 334-340, 359 F.2d 994, 1000-1006).

The amount in controversy is alleged to exceed $10,000, exclusive of costs and interest. In injunctive actions, the amount in controversy is not the amount that the plaintiffs might recover at law, but the value of the right to be protected or the extent of the injury to be prevented. 1 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.), § 24 n. 54. Absolute certainty as to amount is not essential. I find that there is a present probability that the value of the matter in controversy will exceed the jurisdictional amount. 1 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.), § 24, n. 50.4.

Section 4332(2) (C) provides as follows:

"(2) all agencies of the Federal Government shall—
(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 longterm productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

The basic issue presented is whether the Federal Highway Commission was required to file an impact statement under 42 U.S.C. § 4332(2) (C); that is, whether the project is a "major Federal action significantly...

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