Ward v. Ackroyd

• Decision Date: 08 June 1972
• Docket Number: Civ. A. No. 71-930-M,71-1118-M.
• Citation: 344 F. Supp. 1202
• Parties: Thomas WARD v. Richard ACKROYD, Division Engineer, United States Department of Transportation Federal Highway Administration. SIERRA CLUB, INC., a California non-profit corporation on its own behalf and on behalf of its members and all the residents of the metropolitan Baltimore region similarly situated, et al. v. John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al.
• Court: U.S. District Court — District of Maryland

344 F. Supp. 1202

Thomas WARD v. Richard ACKROYD, Division Engineer, United States Department of Transportation Federal Highway Administration.

SIERRA CLUB, INC., a California non-profit corporation on its own behalf and on behalf of its members and all the residents of the metropolitan Baltimore region similarly situated, et al. v. John A. VOLPE, Individually and as Secretary of Transportation of the United States, et al.

Civ. A. Nos. 71-930-M, 71-1118-M.

United States District Court, D. Maryland.

June 8, 1972.

COPYRIGHT MATERIAL OMITTED

Henry L. Conway, Jr., Glen Burnie, Md., for plaintiff Ward.

George A. Nilson, and Joseph H. H. Kaplan, Baltimore, Md., for all plaintiffs in Sierra Club, Inc., and others.

James W. Moorman, San Francisco, Cal., for plaintiff Sierra Club, Inc.

John E. Bryson, Washington, D. C., for plaintiff Natural Resources Defense Council, Inc.

George Beall, U. S. Atty., Jean G. Rogers, and Jeffrey S. White, Asst. U. S. Attys., Baltimore, Md., Irwin L. Schroeder, Atty., Dept. of Justice, Washington, D. C., and Francis J. Locke, Regional Counsel, Dept. of Transportation, Baltimore, Md., for federal defendants Ackroyd, Volpe, and Turner.

Francis B. Burch, Atty. Gen., of Md., J. Michael McWilliams, Asst. Atty. Gen., Nolan H. Rogers, Sp. Asst. Atty. Gen., Norman Polski, Sp. Atty., and Lloyd J. Hammond, Asst. Atty. Gen., State Highway Administration, Baltimore, Md., for state defendants Fisher, Axelrod, and Hughes.

George L. Russell, Jr., City Sol., and Richard K. Jacobsen, Asst. City Sol., Baltimore, Md., for city defendants Mayor and City Council of Baltimore and F. Pierce Linaweaver.

Memorandum Opinion

JAMES R. MILLER, Jr., District Judge.

Pursuant to the order of this court on November 19, 1971, Civil Action No. 71-930-M and Civil Action No. 71-1118-M were consolidated for the limited purpose of hearing, trial, and decision on the common issues of fact and law as to the defendants' satisfaction of the applicable laws and administrative regulations on public hearing requirements for the approval of the location of Segment 9 of Interstate Highway 70N (I-70N) through portions of Leakin and Gwynns Falls Parks. In Civil Action 71-930-M (hereafter referred to as the Ward case), the plaintiff Thomas Ward, a resident taxpayer of Baltimore City and the State of Maryland, has brought an action against Richard Ackroyd, Division Engineer for the Maryland Division, Department of Transportation, who is responsible for the administration of federal highway funds in the State of Maryland by virtue of the delegation of this authority to him by the Secretary of Transportation. An injunction is sought by Ward to restrain Ackroyd from approving the highway design of I-70N from the City Line to Hilton Parkway, from authorizing right-of-way application, from approving construction plans, specifications and estimates, and from authorizing construction of this segment of I-70N until the public hearing requirements of 23 U.S.C. § 128 and Policy and Procedure Memorandum 20-8 (PPM 20-8) are met.

In Civil Action 71-1118-M (hereafter referred to as the Sierra Club case), the plaintiffs include three non-profit corporations, Sierra Club, Inc., Volunteers Opposing Leakin Park Expressway, Inc. (VOLPE, Inc.), and Natural Resource Defense Council, Inc. (NRDC), and two resident taxpayers of Baltimore, Maryland, Harold E. Sleightholm and Norman V. A. Reeves. For convenience the defendants will be classed into three groups: (1) federal defendants, (2) state defendants, and (3) city defendants. All the defendant officials involved are being sued individually and in their official capacities. The federal defendants, all employees of the Department of Transportation, are John A. Volpe, Secretary of Transportation, Francis C. Turner, Federal Highway Administrator, and Richard Ackroyd, Federal Highway Division Engineer for the Maryland Division. The state defendants are David H. Fisher, State Highway Administrator and Chairman-Director of the State Roads Commission for the State of Maryland, Joseph M. Axelrod, Chief of the Interstate Division for Baltimore City, State Roads Commission for the State of Maryland, and Harry R. Hughes, Secretary of the Maryland State Department of Transportation. The city defendants are the Mayor and City Council of Baltimore City and F. Pierce Linaweaver, Director of Public Works for Baltimore City. Plaintiffs in the Sierra Club case seek to enjoin the proposed construction of Segment 9 of I-70N, to restrain the city and state defendants from taking any further action toward construction of Segment 9, to enjoin the federal defendants from authorizing, approving or committing the payment of any federal funds for construction of Segment 9, to enjoin the construction by any defendant of any road connecting with Segment 9 which is likely to foreclose to any significant degree the proper consideration by defendants of alternate transportation facilities, and finally to have this court revoke the various approvals already given by the federal defendants to reconsider these approvals in a manner consistent with federal law.

Jurisdiction of this court is properly asserted under the Federal Question Statute, 28 U.S.C. §§ 1331 and 1361; the Department of Transportation Act, 49 U.S.C. §§ 1651-1659; the Administrative Procedure Act, 5 U.S.C. §§ 500-599, § 701, et seq.; and the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This consolidated action presents issues concerning the hearing requirements of the Federal Highway Act, 23 U.S.C. § 128 and the Bureau of Public Roads Policy and Procedure Memorandum 20-8, 34 Fed.Reg. 727-730, 23 C.F.R.App. A, pp. 12-16.

The highway at issue in this case, I-70N, is a part of the 42,500 mile Interstate Highway System authorized by Congress in 23 U.S.C. § 101 et seq. I-70N originates in Frederick, Maryland, where Interstate Highway 70 (I-70) divides into two roads, I-70S proceeding toward Washington, D. C., and I-70N proceeding toward Baltimore.

Congress has declared it to be in the national interest to accelerate the construction of the federal-aid highway system¹ and accordingly has provided for 90% federal financing for the construction of this system with the remaining 10% to be furnished by the respective states.

In the case of I-70N the actual construction is to be undertaken by the State of Maryland (in conjunction with Baltimore City in this particular instance) with federal approval necessary at successive steps in the process as a prerequisite to federal financial participation in defraying the cost of the project. The United States Court of Appeals for the Fourth Circuit has outlined these steps in its recent decision in Arlington Coalition of Transportation v. Volpe, 458 F.2d 1323 (April 4, 1972), opinion modified and rehearing denied (May 9, 1972):

"Before a highway may be constructed with 90 percent federal funds as a part of the Federal Interstate System, the procedure set out by the Federal-Aid Highway Act, 23 U.S.C.A. § 101 et seq., must be followed. First, a route must be selected by the highway department of a state and approved by the Secretary of Transportation. 23 U.S.C.A. § 103(d) & (e) (1). Next, the state highway department must submit to the Secretary for his approval a `program . . . of proposed projects' that the state wishes to construct with its portion of the funds appropriated for highway construction. 23 U.S.C.A. § 105(a). Then, the state highway department must submit to the Secretary for approval `such surveys, plans, specifications, and estimates for each proposed project included in an approved program as the Secretary may require.' 23 U.S.C.A. § 106(a). This is known as `P.S. & E. approval.' As a prerequisite to P.S. & E. approval for each `project,' the state highway department must certify to the Secretary that it has held public hearings on the location for each project and must submit a transcript of the hearings to the Secretary. 23 U.S.C.A. § 128. Following P.S. & E. approval, project agreements covering construction and maintenance are entered into between the Secretary and the state highway department. 23 U.S.C.A. § 110. Advertisements for bids may then be published and construction contracts awarded. Finally the highway is constructed under the supervision of the state highway department. 23 U.S.C. A. §§ 112, 114." 458 F.2d at p. 1328.

The following consolidated issues have been presented here for determination: (1) whether plaintiffs have standing to maintain this lawsuit; (2) whether plaintiffs are barred by laches from maintaining this lawsuit; (3) whether the doctrine of sovereign immunity precludes maintenance of this suit against the state defendants; (4) whether proper notice was given for a public hearing held on January 30, 1962, purportedly in compliance with 23 U.S.C. § 128 and PPM 20-8 as they existed at that time; (5) whether the hearing of January 30, 1962 was an adequate location hearing under the then applicable provisions of 23 U.S.C. § 128 and PPM 20-8; (6) whether detailed location approval given by defendant Ackroyd on February 28, 1967 complied with the then applicable statutes and regulations; (7) whether the hearing of July 1, 1967 was an adequate location hearing under the then applicable provisions of 23 U.S.C. § 128 and PPM 20-8; and (8) whether additional hearings are required by the 1968 and 1970 amendments to 23 U.S.C. § 128 and the 1969 version of PPM 20-8.

Facts

Leakin Park and the contiguous portions of Gwynns Falls Park proposed to be traversed by Segment 9 of I-70N together form a regional park of approximately 1200 acres comprising roughly 25% of the total public park acreage located within the city limits of Baltimore. The two parks are located in the western section of Baltimore City and are generally surrounded by fully developed residential areas. It is presently proposed that Segment 9 of I-70N be constructed as a 2½ mile long 8-lane expressway entering...