Stop H-3 Association v. Volpe, Civ. No. 72-3606.

Decision Date18 October 1972
Docket NumberCiv. No. 72-3606.
Citation349 F. Supp. 1047
PartiesSTOP H-3 ASSOCIATION, a Hawaiian nonprofit corporation, et al., Plaintiffs, v. John VOLPE, individually and as Secretary of the U. S. Department of Transportation et al., Defendants.
CourtU.S. District Court — District of Hawaii

Boyce R. Brown, Jr., Mattoch, Edmunds, Kemper & Brown, and Michael R. Sherwood, Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, Hawaii, for plaintiffs.

Jon T. Miho, Asst. U. S. Atty., and Warren H. Higa, Deputy Atty. Gen., Honolulu, Hawaii, for defendants.

DECISION AND ORDER

SAMUEL P. KING, District Judge.

For several years, the State of Hawaii and the Federal Department of Transportation have been planning the H-3 Highway from western Honolulu across the island to Kaneohe. Construction began at both ends. The middle portion of the highway right-of-way, known as the Moanalua-Haiku section (after the two valleys it would traverse), has not been cleared for construction.

In July 1972, several individuals who live in or near the path of the proposed Moanalua-Haiku section of H-3 and several organizations whose members use the Moanalua and Haiku valleys, e. g., by hiking, expressed their concern about environmental effects of the highway by filing the present action. One cause of action alleges that the defendants failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 and prays for a preliminary injunction, enjoining the highway project until an environmental impact statement is approved by the Secretary of Transportation. 42 U.S.C. § 4332(C).

The parties and their counsel have worked out a stipulation, whereby construction at the two ends will continue under certain guidelines,1 but all acquisition and clearing of land and all construction with respect to the middle section will stop pending the trial of this matter on the merits. The only dispute remaining at this time is whether the preliminary injunction's scope will also prohibit design work on the Moanalua-Haiku section. The State of Hawaii let five contracts2 for this design work, all after the effective date of NEPA (January 1, 1970). This court holds that the purposes and language of NEPA demand that all work, including design, be stopped pending approval of the impact statement. The termination of all work will extend to the trial of this matter on the merits.

Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1972) sets forth the proper test for determining whether a preliminary injunction should issue in a NEPA action. The Court of Appeals was "satisfied that this case does not call for a balancing of equities or for the invocation of the generalities of judicial maxims in order to determine whether an injunction should be issued..." 455 F.2d at 1116. A less stringent standard is required to effectuate the declared policy of Congress, set forth in NEPA, specifically § 101(a), 42 U.S.C. § 4331(a).

Defendants contend that the design phase of the Moanalua-Haiku segment should proceed because its specific effect on the environment is minimal. The only physical impact would be ten-foot clearings, necessary to take test-borings of the soil.

However, this court believes that the design phase should not be examined individually to determine its specific impact.3 Instead, it is appropriate to examine the purpose to which the engineering and design work will be put. It is not a part of the evaluation necessary to prepare a full impact statement; the statement has already been completed and is presently being reviewed by the Secretary of Transportation.

The only purpose for the design work is to advance the highway project itself. Because the contracts would involve the further expenditure of more than two million dollars, completion of these contracts would increase the stake which the state and federal agencies already have in the Moanalua-Haiku segment, as is. That is not the...

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8 cases
  • Stop H-3 Ass'n v. Dole
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 21, 1984
    ...No Build alternative. 1 The H-3 project has been the subject of extensive litigation spanning nearly 12 years. See Stop H-3 Ass'n v. Volpe, 349 F.Supp. 1047 (D.Hawaii 1972); Stop H-3 Ass'n v. Volpe, 353 F.Supp. 14 (D.Hawaii 1972); Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974)......
  • Stop H-3 Ass'n v. Dole
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 20, 1989
    ...* Substitution of officers in their official capacity have been made pursuant to Fed.R.App.P. 43(c).1 See Stop H-3 Ass'n v. Volpe, 349 F.Supp. 1047 (D.Hawaii 1972); Stop H-3 Ass'n v. Volpe, 353 F.Supp. 14 (D.Hawaii 1972); Stop H-3 Ass'n v. Brinegar, 389 F.Supp. 1102 (D.Hawaii 1974), rev'd. ......
  • Friends of the Earth v. Hall
    • United States
    • U.S. District Court — Western District of Washington
    • August 11, 1988
    ...EIS would become "merely a progress report.... if any work continued during the review of the impact statement." Stop H-3 Assoc. v. Volpe, 349 F.Supp. 1047, 1049 D.Haw.), amended, 353 F.Supp. 14 (D.Haw.1972). FOE cites additional authority for this proposition. Massachusetts v. Watt, 716 F.......
  • People of Enewetak v. Laird
    • United States
    • U.S. District Court — District of Hawaii
    • January 19, 1973
    ...impact statement may become merely a "progress report" filed sometime prior to the completion of the project. See Stop H-3 Assoc. v. Volpe, 349 F.Supp. 1047 (D.Hawaii 1972). See Judge Wright's discussion of the "strict standard of compliance" mandated by the procedural provisions of NEPA in......
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