Steubing v. Brinegar

Decision Date13 February 1975
Docket NumberD,Nos. 278,336,s. 278
Citation511 F.2d 489
Parties, 5 Envtl. L. Rep. 20,183 Royal STEUBING et al., Plaintiffs-Appellees, v. Claude S. BRINEGAR, Secretary of Department of Transportation, and Raymond T. Schuler, Commissioner of New York State Department of Transportation, Albany, New York, Defendants- Appellants, Thom Shagla et al., and County of Chautauqua, Intervenors. ockets 74--1911, 74--2162.
CourtU.S. Court of Appeals — Second Circuit

Richard J. Lippes, Buffalo, N.Y. (Sargent & Lippes, Buffalo, N.Y., on the brief), for plaintiffs-appellees.

Eva R. Datz, Dept. of Justice, Washington, D.C. (Edmund B. Clark, Dept. of Justice, Washington, D.C., Wallace H. Johnson, Asst. Atty. Gen., John T. Elfvin, U.S. Atty., Buffalo, N.Y., C. Donald O'Connor, Asst. U.S. Atty., Buffalo, N.Y., on the brief), for Claude S. Brinegar, defendant-appellant.

Douglas S. Dales, Jr., Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Ruth Kessler Toch, Sol. Gen., on the brief), for Raymond T. Schuler, defendant-appellant.

Norman J. Landau, New York City (Paul D. Rheingold, New York City, on the brief), for Thom Shagla et al. and County of Chautauqua, intervenors.

Debevoise, Plimpton, Lyons & Gates, New York City, on the brief of amicus curiae, The Environmental Defense Fund.

Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.

LUMBARD, Circuit Judge:

This is an appeal from the entry of a preliminary injunction on May 20, 1974, by Chief Judge Curtin in the Western District, against Claude S. Brinegar, Secretary of the United States Department of Transportation, and Raymond T. Schuler, Commissioner of the New York State Department of Transportation, enjoining construction of a federally-funded expressway bridge over Lake Chautauqua in Western New York pending preparation and filing of an Environmental Impact Statement (EIS) pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). 1 Steubing v. Brinegar, 375 F.Supp. 1158 (W.D.N.Y.1974). Appellants do not seriously contend that NEPA was complied with. Instead they argue that the issuance of the injunction pending compliance was improper because plaintiffs delayed in bringing the action, because the bridge and adjacent highway sections are allegedly at advanced stages of planning or construction, with substantial sums having been spent thereon, and because delay would result in substantially increased costs. We affirm.

I. Background.

The proposed bridge over Lake Chautauqua is intended to be part of the Southern Tier Expressway, first authorized by the State of New York in 1962 to run 250 miles from the state line near Erie, Pennsylvania, east to the Broome-Tioga County Line near Binghamton, New York. 2 'Section 5' is a 35-mile section in Chautauqua County at the western end of the highway, with Section 5C consisting of a 2.5-mile segment running from the town of Stow east across Lake Chautauqua to Bemus Point. Lake Chautauqua itself is over eighteen miles long and shaped like an 'L'. The bridge, over four-fifths of a mile long and estimated to cost over $29 million, is designed to cross the lake at its narrow midpoint, near where the southern half of the lake swings to the east. East of the bridge and Bemus Point the expressway will run north of and roughly parallel to the lower half of the lake and just north of the town of Jamestown which is located at the southeastern end of the lake. An alternative route running south of the lake from Jamestown was rejected early even though it was only five miles longer. Apparently one reason for that rejection was that an expressway from Jamestown to Bemus Point was going to be built for local traffic, even if there were no bridge. Thus extending that section across the lake and including it as part of the Southern Tier Expressway would require that fewer total miles of highway be built. Moreover, it would provide a crossing for local residents, where only a ferry now runs. The Southern Tier Expressway, whether across or around Lake Chautauqua, was considered important to the economic growth of this part of the state. 3 Indeed in 1967 the Southern Tier Expressway was designated for inclusion in the Appalachian Regional Development Act Highway Program, which was intended to promote economic growth in areas found by Congress to be underdeveloped.

Federal involvement in the proposed Lake Chautauqua Bridge project began prior to the effective date of NEPA (January 1, 1970), but the basic facts found below leave no question but that an EIS should have been prepared in accordance with section 102(2)(C). Section 102 requires that federal agencies implement NEPA to the 'fullest extent possible.' As of January 1, 1970, the United States Bureau of Public Roads (USBPR) had approved the concept and the location of the bridge, and may have approved its design, 4 but no federal money had been committed to the construction of the bridge as then designed and tentatively located. No construction contracts had been let, as not even the right of way for the approaches had been acquired. In addition, adjacent sections of the expressway were largely unbuilt, with the rights of way only recently acquired, and an alternative route south of the lake remained a viable possibility. 5 In these circumstances subsequent decisions by the USBPR and its successor, the Federal Highway Administration (FHWA) approving final plans and committing federal funds for construction of the bridge, constituted major federal actions requiring preparation of an EIS. See, e.g., Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). 6 An EIS might well have pointed out potential environmental savings well worth the cost involved in altering the design, location, or construction methods for the bridge, or even in rerouting the highway south of the lake and abandoning the plan for the bridge altogether.

Nevertheless, an EIS was not prepared. In March 1970, Plans, Specifications, and Estimates (P.S. & E.) approval was granted by the USBPR authorizing New York to acquire the rights of way for the approaches to the bridge. P.S. & E. approval marks the point at which the federal government finally commits funds for specified purposes. 7 On May 24, 1972, the FHWA granted P.S. & E. approval for contracts to demolish buildings located on the approaches to the bridge. Demolition of approximately seventy buildings and relocation of twenty families were completed that August. On May 9, 1973, the FHWA granted P.S. & E. approval for construction of the bridge substructure, and a $14,700,000 contract was awarded to Raymond International, Inc. on July 9, 1973. Work commenced soon thereafter.

Plaintiffs brought this suit on November 23, 1973, charging, inter alia, that no EIS had been filed and seeking injunctive relief against further construction of the bridge substructure pending compliance with NEPA. 8 Pursuant to the stipulation of the parties, the matter was referred to a special master, Magistrate Edmund F. Maxwell, for findings of fact with regard to the defense of laches and the equitable considerations relating to preliminary injunctive relief.

The special master found that as of December 14, 1973, the bridge substructure contract was only three percent complete. Although the final substructure was to consist of approximately 250 pilings, only one of five test pilings had been implanted in the lake bed. The work which had been done was largely preparatory, including the removal of trees and the stripping of some land along the approaches, as well as some dredging and channel relocation.

With regard to the other segments of highway in Section 5, the master found that they were at various stages of construction. Section 5B (10 miles long), immediately west of the bridge, had not yet received design or P.S. & E. approval (although the right of way had been acquired and some buildings removed), and an EIS was being prepared. Section 5A (10 miles long), which was west of 5B, was completed but for the paving. 9 East of the bridge the right of way for Section 5D (Bemus Point to Jamestown--six miles) had been acquired, some buildings had been demolished, and a construction contract was in the process of being awarded. The master noted that there was testimony and evidence that if a bridge were not built, some or all of Sections 5A and 5B might be salvaged if an alternate route were found. Moreover, Section 5D would be used in any event.

The state alleged that as of the date of the hearing, January 14, 1974, it had spent $4.7 million on Section 5C. Of this money, the state had spent approximately $2.8 million prior to May 1973, the date of P.S. & E. approval for the bridge substructure; $1 million between that date and the institution of the lawsuit; and $1.9 million since that time. Moreover, the state alleged that the cost of shutting down construction for seven months would be.$1.8 million, and the cost of cancelling the substructure contract and later reletting it (assuming a delay of over two years) would be $2.8 million. Substantial parts of these latter figures were due to anticipated inflation. At a post-hearing conference attended by all parties, the state indicated that the cost of any delay would be considerably lessened if the court permitted it to complete five test pilings. Apparently the state expected that it could determine from the test pilings the necessary specifications for the main pilings and then have them manufactured during any court-ordered delay.

The special master found that plaintiffs' claim should not be barred because of their delay in bringing this action. He held first that laches should not be applied because of the nature of the suit, but if that defense were to be considered, then ...

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