Thompson v. Fugate

• Decision Date: 14 August 1972
• Docket Number: Civ. A. No. 316-71-R.
• Citation: 347 F. Supp. 120
• Court: U.S. District Court — Eastern District of Virginia
• Parties: William Taliaferro THOMPSON, III, et al. v. Douglas B. FUGATE et al.

347 F. Supp. 120

William Taliaferro THOMPSON, III, et al. v. Douglas B. FUGATE et al.

Civ. A. No. 316-71-R.

United States District Court, E. D. Virginia, Richmond Division.

August 14, 1972.

E. Milton Farley, III, T. S. Ellis, III, Hunton, Williams, Gay & Gibson, Richmond, Va., for plaintiffs.

Vann F. Lefcoe, Asst. Atty. Gen. of Virginia, Raymond Carpenter, Asst. U. S. Atty., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

This case represents yet another clash between the ecology and the construction of modern urban highway systems. The plaintiffs, owners of Tuckahoe Plantation, a large tract of land containing more than five hundred acres of much historical significance, seek to enjoin the Commissioner of the Virginia Highway Commission and the Secretary of Transportation (hereinafter "Commissioner" and "Secretary") from proceeding with a project to construct the final segment of a circumferential urban highway designated as Route 288 through a portion of their property. Specifically at issue in this proceeding is the location of the final 8.3-mile segment of this highway, part of a 75-mile circumferential belt-way around the City of Richmond, Virginia.

Jurisdiction is attained pursuant to Title 5 U.S.C. §§ 701-706; 28 U.S.C. §§ 1331(a), 1332, 1361, and 2201-02.

Pursuant to the mandate of the United States Court of Appeals for the Fourth Circuit, an injunction entered by this Court after an evidentiary hearing was extended to prohibit the condemnation of the subject property pending trial and decision of the case on the merits.¹

The matter is now before the Court on cross motions for summary judgment, filed by plaintiffs and the defendant Volpe. Defendant Fugate has filed a motion to dismiss. The Court has considered all filings by the respective parties, including attachments to counsel for Fugate's letter of February 7, 1972. The parties have exhaustively and thoroughly briefed the issues herein, and the case is now ready for disposition on the respective motions.

A. THE PARTIES

Plaintiff Jessie Baker Thompson, daughter of Isabelle Ball Baker (deceased), is the owner of an undivided one-half of the remainder interest in Tuckahoe Plantation. Plaintiffs William Taliaferro Thompson, III, Addison Baker Thompson, and Jessie Ball Thompson are, respectively, sons and daughter of Jessie Baker Thompson, each of whom owns an undivided one-sixth of the remainder interest in Tuckahoe.

Defendant Douglas B. Fugate is Commissioner of the Virginia Highway Commission and in that capacity is responsible for planning, designing and constructing highways, including federal-aid highways, within the Commonwealth of Virginia.

Defendant John A. Volpe is the Secretary of the Department of Transportation and is charged with responsibility for the administration of the various federal-aid highway programs.

B. TUCKAHOE

Tuckahoe Plantation is located in Goochland and Henrico Counties along the James River approximately twenty miles from the center of Richmond, Virginia, and within this judicial district. It was the home of the mother of Thomas Jefferson, third president of the United States, who lived there during an early period of his life. The property is also intimately associated with other prominent figures of early American history, including Chief Justice John Marshall and Thomas Mann Randolph, Governor of Virginia. The dwelling house dates from about 1712 and is believed to be the oldest wooden house remaining in Virginia. The house is a unique example of the H-shaped form of architecture, containing exceptional carved staircases and paneling. Both the exterior and interior of the house are well-preserved. In addition to the main dwelling house, there are also original plantation buildings, including a schoolhouse, kitchen, smokehouse, and other dependencies. The complex of buildings is located in a setting of great trees and extensive gardens. The historic value of Tuckahoe is beyond question and undisputed.

Pursuant to the Historic Sites Act of 1935, the Secretary of the Interior has designated the property as a Registered National Historic Landmark, being one of a limited number of historic sites found by the Secretary to "possess exceptional value as commemorating or illustrating the history of the United States." 16 U.S.C. § 462(b).

As such, Tuckahoe is included in the National Register of Historic Places, 36 Fed.Reg. 1337 (February 20, 1971), under the provisions of the National Historic Preservation Act of 1966 (16 U.S. C. § 470a).

C. THE IMMUNITY QUESTION

The Commissioner has moved to be dismissed as a party defendant on the grounds of sovereign immunity under the eleventh amendment to the Constitution. That contention must fail, for this is not a suit against the State of Virginia, but one against its Commissioner of the Department of Highways to compel him and others to comply with the requisite federal laws in the building of the highway involved in this case. See also Ely v. Velde, 321 F.Supp. 1088 (E. D.Va.1971); Citizens Committee for Hudson Valley v. Volpe, D.C., 302 F. Supp. 1083, 425 F.2d 97 (2 Cir. 1970). See Arlington Coalition on Transportation v. Volpe, D.C., 332 F.Supp. 1218, 1222, rev'd on other grounds, 458 F.2d 1323 (4 Cir. 1972).

D. BACKGROUND

The Richmond metropolitan beltway began as Interstate 295 in plans originated in 1955 for the Interstate Highway System. Approximately two-thirds of the beltway is designated I-295 and will be constructed with ninety per cent federal funds. The remaining third, Virginia Route 288, was planned in the late 1960's. Route 288 will be a medianstrip, multi-lane, limited access, high speed highway built to federal interstate highway standards. It will form the southwestern portion of the beltway between I-64 and I-95.

The evidence discloses that in 1968 an unsuccessful application was made by the Virginia authorities to the Federal Highway Administration to include proposed Route 288 as part of the interstate system. This effort failed by reason of a lack of availability of additional interstate mileage allocations because of Congressional limitations on the interstate system.

In March, 1970, federal approval was granted as to the location of a 12.9-mile segment of Route 288.

On January 20, 1971, federal approval was granted for a second segment of 5.0 miles, a segment described in the letter of approval as "only a segment of the total project considered at the hearing and is all the Department requested our approval of at this time."

The facts further disclose that prior to the request for location approval of the segments aforementioned the Virginia Deputy Commissioner of Highways had by letter of February 6, 1970, requested of the federal authorities that the proposed Route 288 be added to the federal-aid primary system. An approval subsequently was in fact granted for the entire 29.2 miles of Route 288 which will connect with I-295 to make up the entire Richmond metropolitan beltway.

The significance of being an addition to the federal-aid system was described as being approved for further use of federal funds. "It says it is a legitimate intrical integral part of a total system of highways."

The approval granted for the 29.2 miles of Route 288 to be part of the federal-aid system was made on March 26, 1970. In January, 1971, federal location approval was granted Virginia for the middle segment of Route 288, that being 8.3 miles and the particular segment which is a focal point of this litigation. Location approval involves corridors up to one mile in width within which the actual specific right of way will ultimately pass.

While the appropriate Virginia authorities have not yet requested federal approval of it, the location of certain portions of Route 288 are planned to pass through the eastern portion of Tuckahoe. It is conceded that although corridor approval for the two segments of Route 288 to which the Court has already alluded have been requested and received, the formality of seeking federal aid has not been taken.

We deal here with a highway project which must be viewed in proper perspective. The Richmond beltway, including Route 288 in its entirety, is indeed one which must be characterized as a major federal action and a proposed federally-assisted undertaking. To characterize the Tuckahoe segment as an isolated portion of Route 288, which might well result in a subversion of the announced Congressional policy with reference to our national environment, is to ignore the facts and the reasonable inferences to be drawn therefrom.

The beltway system must be viewed as a whole, and at the very least, Route 288 must be so viewed. Defendants suggest the Court do otherwise in the face of admitted significant federal participation in approximately 67 miles of a 75-mile circumferential highway.

The highway project with which we are concerned cannot be fractionalized. We do not deal here with an isolated street, local in nature, such as Sharon Lane in Civic Improvement Committee, et al. v. Volpe, et al., 459 F.2d 957 (4 Cir. 1972), but with a major federal-state project. See Named Individual Members of The San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5 Cir. 1971); Citizens Committee for Hudson Valley v. Volpe, supra; D. C. Federation of Civic Associations v. Volpe, 316 F.Supp. 754 (D.D.C.1970); New York City v. United States, 337 F.Supp. 150; Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4 Cir. 1972). Any conclusion to the contra would be to participate in the frustration of Congressional policy,² a function which the courts are duty bound to avoid where possible. The meeting of federal requirements for 21 miles of a 29.2-mile highway project in order to partake of the federal financial allotments for that 21-mile segment, and at the same time circumvent the need to protect the national environment to the fullest extent possible on the remaining 8.3-mile...