Steubing v. Brinegar

• Decision Date: 20 May 1974
• Docket Number: Civ. No. 1973-576.
• Citation: 375 F. Supp. 1158
• Parties: Royal STEUBING et al., Plaintiffs, v. Claude S. BRINEGAR, Secretary of Department of Transportation, Raymond T. Schuler, Commissioner of New York State Department of Transportation, Albany, New York, Defendants.
• Court: U.S. District Court — Western District of New York

375 F. Supp. 1158

Royal STEUBING et al., Plaintiffs, v. Claude S. BRINEGAR, Secretary of Department of Transportation, Raymond T. Schuler, Commissioner of New York State Department of Transportation, Albany, New York, Defendants.

Civ. No. 1973-576.

United States District Court, W. D. New York.

May 20, 1974.

Richard J. Lippes, Buffalo, N. Y., for plaintiffs.

John T. Elfvin, U. S. Atty., Buffalo, N. Y. (C. Donald O'Connor, Asst. U. S. Atty., of counsel), for defendant Claude S. Brinegar, Secretary of Dept. of Transp.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Albany, N. Y. (Douglas S. Dales, Jr., of counsel), for defendant Raymond T. Schuler, Commissioner of New York State Dept. of Transp.

CURTIN, Chief Judge.

I. HISTORY OF THE LITIGATION

On November 23, 1973, the plaintiffs commenced this action seeking to enjoin the defendants from continuing the construction of a bridge over Lake Chautauqua. Plaintiffs base their motion for a preliminary injunction on the theory that defendants have failed to comply with the requirements of the National Environmental Policy Act N.E.P.A., 42 U.S.C. § 4321 et seq., the Federal Aid Highway Act F.H.W.A., 23 U.S.C. § 101 et seq., the Clean Air Amendments of 1970, P.L. 91-604, 84 F.Stat. p. 1676, and the Department of Transportation Act, as amended, 49 U.S.C. § 1651 et seq. Plaintiffs' major allegations are that public hearings as required by the statutes were not held, that an Environmental Impact Statement E.I.S. as required by Section 102(2)(C) of N.E.P. A. was not filed, and that a similar statement as required by Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f), and by 23 U.S.C. § 138, was not filed. Defendants generally deny the allegations and also set out various affirmative defenses, including an allegation that the action is barred because of laches.

On January 17, 1974 an order of reference to United States Magistrate Maxwell was signed by United States District Judge John O. Henderson. The order of reference is as follows:

This matter having come on before this Court upon the application of plaintiffs for a preliminary injunction, and upon the motion of the defendant, Brinegar, for a hearing solely on the issue of laches and/or delay and the equitable considerations in connection therewith, and upon the agreement of the parties that such hearing is necessary, and good cause appearing therefor, it is

ORDERED: that this matter is hereby referred to United States Magistrate Edmund F. Maxwell, as special master, to hear and report with all due dispatch, the facts of this matter concerning the issue of laches and/or delay and the equitable considerations in connection therewith as they relate to the appropriateness of granting a preliminary injunction or dismissing this action.

Following Judge Henderson's death in mid-February 1974, the matter was referred to my part. Oral argument was heard on April 30, 1974 on confirmation of the Magistrate's report.

II. THE MAGISTRATE'S REPORT

The Magistrate made two conclusions of law:

1. There has been no showing of unconscionable delay on the part of the plaintiffs, or such prejudice to the defendants, as to constitute laches.

2. The defense of laches should not apply in this action.

The Magistrate also found:

It is thus recommended that plaintiffs' motion for a preliminary injunction be granted, pending a trial of the merits of this case. (Magistrate's Report at 27.)

Defendants objected to the Magistrate's report on three major grounds: (1) that the Magistrate erred in finding the date of May 9, 1973 (Plans, Specifications and Estimates approval) as the date on which plaintiffs had noticed that defendants would not comply with the law; (2) that the Magistrate erred in failing to consider the entire highway project instead of only the bridge; (3) that the Magistrate's recommendations on the preliminary injunction were beyond the scope of his authority.

In respects other than the objections noted, the defendants accepted the facts found by the Magistrate. Further proceedings were adjourned two weeks so that defendants could present further information on the Appalachian Commission, but nothing more was received by the court on May 13, 1974 except a joint stipulation of certain facts. Neither defendant desired any further evidence to be presented upon the question of whether a preliminary injunction should issue.

III. LACHES

Defendants' disagreement with the Magistrate's finding that the defense of laches does not apply is based on two arguments: (1) that the time from which plaintiffs knew that their cause of action under N.E.P.A. and other relevant federal statutes accrued occurred prior to Plans, Specifications and Estimates P.S. & E. approval on May 9, 1973, and (2) that plaintiffs should be charged with notice that an action under N.E.P.A. accrued by taking into account the total project.

The Magistrate's findings of fact relevant to the question of laches are as follows:

In 1962, pursuant to New York State Highway Law, § 340-C, the general route of a highway designated as the Southern Tier Expressway was authorized. This highway was to run in a generally westerly direction from the Broome-Tioga County Line, near Binghamton, New York, a distance of approximately 250 miles to the Pennsylvania State line in Chautauqua County. The portion of the proposed highway which lies within Chautauqua County is approximately 35 miles long and is designated as Section 5. Section 5C includes the bridge spanning Chautauqua Lake from Stow to Bemus Point. This section is approximately 2.5 miles long and includes approximately .8 miles of structure over Lake Chautauqua and .18 miles over relocated Main Street and relocated Bemus Creek.

In August 1965, the concept of such bridge was approved by the United States Bureau of Public Roads (USBPR). In October 1965, the USBPR approved the Preliminary Location Plans and in November 1965, a public hearing relative to the construction of approximately 14 miles of the Southern Tier Expressway, including Section 5C, was held in the City of Jamestown, New York. In February 1966, the USBPR approved the transcript of the public hearing as satisfying the requirements of its Policy and Procedure Memorandum then in effect. In March 1966, the Appalachian Regional Commission designated the Southern Tier Expressway for inclusion in the Appalachian Regional Development Act Highway Program, the primary objective of the program being to promote the economic development of areas found by Congress to be significantly underdeveloped. In May 1967, the USBPR in a letter to the New York State Department of Public Works approved the location of the bridge to be constructed across the lake.

On January 1, 1970, NEPA was enacted into law.

On March 30, 1970, the USBPR authorized the commencement of negotiations for acquisition of a right of way in connection with Section 5C. On May 24, 1972, the Federal Highway Administration (FHWA), formerly the USBPR, granted Plans, Specifications and Estimates (PS & E) approval for contracts calling for the demolition of buildings on the rights of way encompassing Section 5C and portions of the bridge approaches located in Sections 5B (on the west side of Lake Chautauqua) and 5D (on the east side of Lake Chautauqua). These demolition contracts were awarded in June 1972, and the demolition work was completed in August 1972. Approximately 70 buildings were demolished and 20 families in Section 5C have been relocated. Construction of the bridge was planned in three phases: (1) demolition, which was completed in August 1972; (2) construction of the substructure of the bridge; and (3) construction of the superstructure of the bridge.

On May 9, 1973, the FHWA granted PS & E approval for construction of the bridge substructure. On July 9, 1973, a contract in the amount of $14,700,000 was awarded to Raymond International, Inc. for construction of the bridge substructure.

Between July 9, 1973, (the contract award date), and November 23, 1973, (the date of commencement of this action), trees have been removed, land has been stripped, channel relocation work, dredging, and other general work preparatory to the driving of pilings and construction of the substructure has been done. Subsequent to November 23, 1973 and prior to January 17, 1974, one of a contemplated five test pilings was put in. As of December 14, 1973, the contract for the bridge substructure was approximately 3 percent complete (affidavit of Donald Ketchum, Regional Director, New York Department of Transportation, Exhibit S-2), and approximately $4.7 million has been spent on the project from 1962 to date. The present contract for the substructure calls for the installation of approximately 250 pilings and for completion of the substructure in June 1976. A contract for the superstructure of the bridge would be expected to be completed one to two years thereafter and, thus, according to present expectations, the bridge could carry traffic in 1977 or 1978. The total estimated cost of the completed bridge is about $29 million.

Magistrate's Report at 3-6.

The court finds that the Magistrate's finding that P.S. & E. approval was the critical date is a correct determination. "Plaintiff had no right, let alone obligation, to bring suit until the FHWA's sponsorship . . . reached the point of a `proposal for . . . major Federal action' within the ambit of . . . N.E.P.A., 42 U.S.C. § 4332(2)(C) . . .." I-291 Why? Association v. Burns, 372 F.Supp. 223, at 234 (D.C.Conn.1974). In considering when a highway project has become federal for purposes of N.E.P.A., it is necessary to consider that in federal highway planning there are discrete stages and that federal approval is necessary at each stage: (1) a state's highway "system," (2) a particular highway location, (3) its design, (4) P.S. & E., (5) construction. See City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). "In all of the cases in...