Town of Fenton v. Dole
| Decision Date | 19 March 1986 |
| Docket Number | No. 72-CV-254.,72-CV-254. |
| Citation | 636 F. Supp. 557 |
| Parties | TOWN OF FENTON, Plaintiff, v. Elizabeth M. DOLE, United States Secretary of Transportation; John G. Bestgen, Regional Administrator, Federal Highway Administration, U.S. Department of Transportation; Victor E. Taylor, Division Administrator, Federal Highway Administration, U.S. Department of Transportation; Franklin E. White, Commissioner of the New York State Department of Transportation; Donald N. Geoffrey, Regional Engineer, Region I, New York State Department of Transportation, Defendants. |
| Court | U.S. District Court — Northern District of New York |
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Hinman, Howard & Kattell, James M. Hayes, James F. Lee, Albert J. Millus, Jr., of counsel, Binghamton, N.Y., for plaintiff.
Frederick J. Scullin, Jr., U.S. Atty., N.D. of N.Y., William Fanciullo, Asst. U.S. Atty., Kenneth Dymond, Asst. Regional Counsel, Albany, N.Y., for the U.S. Dept. of Transp., defendants.
Robert Abrams, Atty. Gen., James M. Zaccaria, Asst. Atty. Gen., William S. MacTiernan, Associate Atty. N.Y. State Dept. of Transp., Albany, N.Y., for New York State Dept. of Transp., defendants.
After years of planning, debate, reconsideration and the preparation of Environmental Impact Statements EISs, the Secretary of the United States Department of Transportation USDOT has made a final selection of a route for the construction of the I-88/I-81 Connector at the southwest end of I-88 which will complete the last segment of Route I-88 between Schenectady and Binghamton, New York. Plaintiff, the Town of Fenton, opposes the selection of the connector route chosen from the alternatives considered and has moved for a preliminary injunction to prevent the construction of the selected route, known as the "Modified River Crossing".
In December, 1968 the Federal Highway Administration of the USDOT FHWA approved the development of a highway for inclusion in the Interstate Highway System to be designated Interstate Route 88 I-88 connecting I-90 in Schenectady, New York to I-81 north of Binghamton, New York, a distance of approximately 130 miles. The existing highway at that time between the Albany and Binghamton areas was Route 7 which remained essentially as it was constructed forty to fifty years prior; it was not regarded as a modern highway and was deemed deficient for medium and long distance travel and inadquate to serve future projected traffic demands.1 Interstate Route 88, a limited-access highway was intended to provide adequate capacity to carry the forecasted traffic volume and a high degree of comfort and safety for the traveler between Albany and Binghamton. Administrative Record A.R. 1, p. CS-2.
Local citizen groups and individuals commenced this action in May 1972 seeking to enjoin the construction of I-88 until the state and federal Departments of Transportation complied with various environmental statutes.2 The late Judge Port of this court issued a preliminary injunction on November 14, 1973 restraining the FHWA from (1) disbursing any further funds for construction of those sections of the project which were then currently under construction but for which EISs has not been filed, and (2) granting Plans, Specifications, and Estimates PS & E approval for those segments for which EISs had not been filed.3
As the defendants completed EISs, Judge Port, in a series of orders, released all segments of the project from the injunctive restraint with the exception of PIN 9357.18, the remaining unconstructed section of I-88 known as the I-88/I-81 connector which is the subject of the present controversy before the court. A final EIS FEIS on PIN 9357.18 was issued on October 3, 1983. The Secretary of Transportation issued her Record of Decision ROD on September 20, 1984 indicating her final selection from among the alternative routes for the Connector.4 Defendants thereafter moved to vacate the injunction to allow construction of the selected route for this final segment of I-88. The Town of Fenton, which had been granted leave to intervene on October 31, 1979, opposed the defendants' motion and filed a cross-motion for the issuance of a superseding preliminary injunction. Finding that the equitites had shifted upon defendants' apparent compliance with the National Environmental Policy Act NEPA by completing the FEIS, this court on April 10, 1985 vacated Judge Port's order enjoining the FHWA from approving the plans for construction of PIN 9357.18. The Town of Fenton was granted leave to file an amended complaint on the same date.
A hearing on the plaintiff Town of Fenton's motion for a preliminary injunction consolidated with a trial on the merits was held on July 2, 1985. Briefs were subsequently submitted by the parties. Plaintiff presented no testimony at the hearing but introduced into evidence the Administrative Record and documents obtained through discovery. Plaintiff makes the following arguments in support of its motion for a preliminary injunction:
(1) The Secretary of Transportation erroneously determined that there exist no prudent and feasible alternatives to the route chosen which traverses a public park and will destroy a historic site in violation of § 4(f) of the Department of Transportation Act of 1966, recodified in 49 U.S.C. § 303, and § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138.
(2) The public hearing held by the New York State Department of Transportation "NYSDOT" or "State DOT" did not comply with 23 U.S.C. § 128 because the State DOT had irrevocably committed itself to the selected route prior to holding the statutorily mandated public hearing.
(3) The FEIS insufficiently sets out facts which would allow for a fully-informed choice on the route to be selected in contravention of NEPA, 42 U.S.C. §§ 4331-35.
(4) The state and federal defendants, as evidenced by the FEIS, failed to give sufficient consideration to environmental effects of the proposed highway construction, in violation of NEPA.
Studies and planning for the I-88/I-81 Connector proceeded separately from the planning for the remainder of I-88. Preliminary reports developing and analyzing alternative routes for the Connector were prepared and circulated among federal and state DOTs and federal, state and local agencies from May 1972 through 1977. NYSDOT and FHWA prepared an EIS issued in August of 1977 which discussed six alternatives for construction. Project Report V, A.R. 2. The proposed route was a river crossing alternative north of the route currently proposed. Local officials requested a reevaluation of locations for the Connector; the 1977 EIS was withdrawn. NYSDOT hired an independent consulting firm, Tippetts, Abbott, McCarthy-Stratton TAMS to study alternative routes.
In 1980 NYSDOT and FHWA decided to prepare a new EIS to study alternatives for the Connector. Public participation in the planning process was sought through the involvement of the Binghamton Metropolitan Transportation Study BMTS Policy Committee of the designated Metropolitan Planning Organization pursuant to 23 U.S.C. § 134,5 and the Community Advisory and Review Team CART. BMTS was comprised of local officials and state commissioners; CART was made up of local officials of potentially-affected communities: Binghamton, Port Dickinson, Chenango, Fenton, Dickinson, Kirkwood, Colesville and Windsor. CART met six times from October 1980 to June 1981 but reached no agreement on a preferred route for the Connector. When BMTS could not reach an agreement on a preferred route, BMTS created an Ad Hoc Committee, which included the CART representatives, to make recommendations to BMTS. The Ad Hoc Committee held five meetings in which each affected community presented and discussed their concerns as outlined in the FEIS (Chapter 10). A strong area of disagreement among the communities was in the location at which the Connector would cross the Chenango River to connect with I-81 on the west side. Though some of the towns objected to particular locations for the crossing of the Connector over the Chenenago River, the Town of Fenton remained opposed to any crossing of the Chenango River. The committee considered the alternatives, and at the final meeting of the Ad Hoc Committee on June 28, 1982 the Committee endorsed the Modified River Crossing alternative. The Committee's endorsement was presented to the BMTS Policy Committee on July 1, 1982 at which time BMTS adopted Resolution 82-3 endorsing the Modified River Crossing route. NYSDOT requested authorization to hire a consultant to design the proposed Connector on September 29, 1982. A draft EIS DEIS was prepared in November 1982 which was circulated for review and comment to various agencies and to the public. Following receipt of comments on the DEIS and a public hearing as mandated by 23 U.S.C. § 128, the FEIS was issued in October 1983. The ROD of the Secretary was issued on September 20, 1984.
The three build alternatives considered are as follows:
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