Wade v. Lewis
| Decision Date | 06 April 1983 |
| Docket Number | No. 80 C 3072.,80 C 3072. |
| Citation | 561 F. Supp. 913 |
| Parties | Juliet WADE, Plaintiff, v. Drew LEWIS, Secretary of the United States Department of Transportation, et al., Defendants, and John D. Kramer, Secretary of the Illinois Department of Transportation, et al., Defendants-Intervenors. |
| Court | U.S. District Court — Northern District of Illinois |
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David Lincoln Ader, Ader & Ader, Chicago, Ill., for plaintiff.
Tyrone C. Fahner, Atty. Gen. of State of Ill., by Phillip C. Parenti, Thomas R. Chiola, Douglas P. Karp, Chicago, Ill., for State defendants.
Dan K. Webb, U.S. Atty. by Kevin J. Egan, Asst. U.S. Atty., Chicago, Ill., for Federal defendants.
The plaintiff seeks a permanent injunction against the construction of two bridges over the Illinois River at a point between Valley City and Florence, Illinois, known as Napoleon Hollow. The proposed bridges would be part of a four-lane expressway designated FAP 408 (Federal Aid Primary Route), which would extend from Decatur, Illinois, to the Mississippi River, a distance of approximately 145 miles. On June 26, 1980, after a hearing and after finding that substantial questions existed as to the adequacy of the Environmental Impact Statement, the application of section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) and section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, and the propriety of using funds appropriated for the Highway Bridge Replacement and Rehabilitation Program established pursuant to 23 U.S.C. § 144(a), we entered a preliminary injunction against construction of the bridges and against construction of FAP 408 beyond the point it had reached by that date, approximately four miles east of the proposed site for the bridges.
By agreement, rather than having the case remanded to the Department of Transportation for further administrative proceedings, the parties then compiled and, with the Court's permission, supplemented the administrative record. The issues raised in the plaintiff's amended complaint have been briefed on the basis of that record, which now consists of more than 1200 pages plus 29 appendices, some of which are multi-volume and some of which exceed one hundred pages in length. As might be expected, the record is archival in its scope and length and is occasionally esoteric, containing detailed descriptions and evaluations of the biological, environmental, archeological, and historic characteristics and significance of the area and the extent to which they would be affected by construction of the bridges as proposed. Nevertheless, the essential facts can be stated fairly briefly.
In the area between Valley City and Florence, the west bank of the Illinois River is bounded by rocky bluffs overburdened with loess soils capable of sustaining trees and vegetation. These bluffs are 100 to 150 feet high, but at several points are broken by wooded ravines of varying sizes and configurations. See A.R.App. 4 at 28; A.R. App. 5, Vol. I at 6-7. In a few locations quarries have been established. A.R.App. 4 at 28. Because of the difficulty which the bluffs present for construction of two bridges and a segment of highway adjacent to the western end of the bridges, choosing a natural or a man-made gap in the bluffs for the location of the bridges (and the highway's western approach to them) would facilitate construction. See A.R.App. 4 at 17.
When this action was filed, the proposed bridge and highway plan contemplated that the highway to and from the west end of the bridges would be built on a portion of the property owned by Sam Wade and his sister Juliet Wade.1 The Wade property consists of 190 acres of farm land, pasture, and woodland approximately one mile west of the Illinois River. That property was settled by the plaintiff's ancestors during the 1830's, and contains a house, two "basement barns," and several smaller outbuildings. The house is limestone construction, dates from the late 1830's or early 1840's, and is significant as one of the earliest settlements in Pike County and as an example of an early nineteenth century stone farmhouse. A.R. at 455; A.R.App. 20 at 8-9. On July 31, 1978, the Wade property was determined by the Keeper of the National Register of Historic Places to be eligible for inclusion in the National Register of Historic Places. See preface to A.R.App. 20. Since such a listing gave the property the protections afforded by section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f), and section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f as well as the regulations of the Department of Transportation (23 C.F.R. § 771.135), the Illinois Department of Transportation (IDOT) has, since this action was filed, revised the highway plan to avoid construction of any part of the highway on the Wade property.2
Between the Wade property and the west bank of the Illinois River lies the Pike County Conservation Area ("the PCCA"). The PCCA consists of approximately 862 square acres, is owned by the State of Illinois, and is operated by the Illinois Department of Conservation. The PCCA was not purchased by the Illinois Department of Conservation until 1970, which was after the federal authorities had already approved the proposed corridor on August 18, 1969. The PCCA is also subject to the requirements of section 4(f) and the related statutes and regulations. Both the earlier proposed highway alignment and the current alignment as modified to avoid the Wade property call for construction of the highway through a ravine, known as "Napoleon Hollow," in the middle of the PCCA, thereby destroying a portion of the PCCA and cutting the remainder into separate and smaller areas.
Defendants initially challenged the plaintiff's standing to bring this lawsuit and we denied that challenge in a memorandum opinion dated January 28, 1982.
Since the filing of this action, several "biota" studies of the flora and fauna of Napoleon Hollow and of other locations identified as possible highway crossings of the Illinois River have been undertaken by various authorities,3 with particular reference to the extent that certain endangered species or threatened species inhabit or use Napoleon Hollow or any of the other locations suggested as alternative bridge and highway sites.4 Most prominent among the species whose use of Napoleon Hollow (and its environs) has been watched and studied is the American Bald Eagle.
As IDOT itself notes, "there is strong evidence of continued, uninterrupted use of the Pike County Conservation Area by bald eagles as a wintering site." A.R.App. 7 at 1-2. Such evidence consists in part of the observations of recent study groups, the observations of Robert Smith, a tenant farmer occupying part of the PCCA, A.R. at 927, and reports from 50 to 70 years ago of eagles nesting in the area. A.R.App. 19 at 9; A.R.App. 7 at 4-6.
Bald eagles generally inhabit and migrate through two areas of North America, the Pacific Coast up into Alaska, and the valleys formed by the Mississippi and Illinois Rivers. A.R.App. 19 at 2. During the winter months, Illinois is host to approximately 14% of the North American bald eagle population: More bald eagles winter in Illinois than in any of the other lower 48 states. A.R.App. at 1.
A group or a "community" of eagles will return year after year to a particular wintering area as long as a sufficient supply of food and sufficient protection from the elements remain available. A.R.App. 19 at 2-3. These "roosting" sites are used both by particular communities of eagles as their winter habitation and by other eagles en route to or from other winter roosting sites if severe weather occurs during migration. Id. at 3. There is some evidence that maintenance of the population of bald eagles at its current level5 requires a chain of roosts along the rivers which serve the eagles as migration routes.6Id. at 5.
Nocturnal roosts and the features thought to be important for a suitable wintering site are discussed in several places in the administrative record. See A.R. at 930, et seq.; A.R.App. 7 at 4 and 7; A.R.App. 13 at 35-36; see also A.R.App. 19 at App. II. Trees used as nocturnal roosts along the Illinois River are on "east-facing slopes that are protected from the prevailing westerly winds." A.R. at 928. Roosts are usually large trees, and include oaks, cottonwoods, sycamores, and silver maples. Id. A severe weather nocturnal roost requires greater protection from the wind than does a fair weather nocturnal roost. A.R.App. 7 at 4. Although a roost tree must be sheltered from the wind, it must also have an "open branch system" which faces the "flyway of the ravine." A.R.App. 13 at 35. In other words, the shelter must be easily accessible from the flyway or common flight pattern.
Also important are the physical characteristics of the ravine, particularly its depth, the steepness of its slopes, and its general direction. Given the prevailing westerly winds in the area, a general direction of NE-SW or E-W is preferred. Id. The nature and amount of human activity in the area are also relevant to a ravine's suitability as a roosting site. A.R. App. 7 at 7.
The eagles' tolerance of nearby human activity is a matter of some debate. Automobile traffic is considered less disturbing to eagles than is the presence of pedestrians, particularly if cars do not slow down or stop so that their occupants can look for eagles. A.R.App. 7 at 9-10; A.R.App. 19 at 12-13. There are instances of known eagle activity near other bridges and highways in Illinois.
At the major eagle wintering area at Lock and Dam 19 on the Mississippi River, one feeding site is as close as...
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