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DALY v. VOLPE

March 31, 1972

George and Mary DALY et al., Plaintiffs,
v.
John A. VOLPE, as Secretary of Transportation, et al., Defendants


Beeks, Chief Judge.


The opinion of the court was delivered by: BEEKS

BEEKS, Chief Judge.

 Plaintiffs, individual residents and property owners in or near the proposed corridor of I-90, a federally funded interstate highway through the State of Washington, seek to enjoin its construction. They base their claim on essentially two grounds: First, that selection of the location of this corridor was arbitrary and capricious, and second, that defendants violated the provisions of certain federal statutes. *fn1"

 The facts of this case are not essentially in dispute. The state proposes to construct a section of I-90 in the vicinity of North Bend, Washington. The first corridor location hearing was held on April 8, 1957. The issues lay dormant until July 30, 1969, when the location design engineer sent letters to interested parties, requesting comment on corridor A-3, a segment of the proposed highway that would parallel the location of the existing highway, U.S. 10, and also pass through the town of North Bend. A second location hearing was held on December 3, 1969. Meetings with interested groups were held through the summer of 1970. Late in August, 1970, the state made public an "Environmental Report of the Upper Snoqualmie Valley," which did not discuss alternative routes, but did provide a summary of information which bore on choosing a route most favorable to the environment. This "Environmental Report" was distributed at the third corridor location hearing of September 1, 1970. Following this last hearing, the state and federal defendants for the first time advocated construction through corridor E-3, which would completely bypass North Bend to the south.

 ARBITRARY AND CAPRICIOUS ACTION

 Plaintiffs charge that the state arbitrarily changed the corridor location because of extraneous political pressure on FHWA officials brought by the mayor and/or town council of North Bend. *fn2" This contention is rejected. I am satisfied that new evidence and studies led the federal administrators to reevaluate their decision and change the corridor location to one which they believe is better suited to the area.

 Plaintiffs further urge that arbitrary and capricious conduct is established by compelling evidence that corridor A-3 is superior to E-3. They claim, among other things, that A-3 would cover more land occupied by existing highways, that E-3 will destroy the last and best residential land in the valley, that the state will be forced to sell the property it has already purchased for A-3 at a loss, and that a change in routes would disrupt the private plans of many individuals who have since 1957 governed their affairs on the assumption that A-3 would be the route. Defendants, on the other hand, argue that A-3 would cut through Si View County Park, that less property would be taken from the tax rolls by E-3, that A-3 would create a barrier for natural growth of the town, and that E-3 passes through a relatively undeveloped area of land.

 The court may not, however, weigh the evidence de novo, to decide which of several alternatives is to the court most desirable. Only if the administrative decision is so clearly erroneous that it has no rationally supportable basis may the court rule that it is arbitrary and capricious. *fn3" The complexity of variables to be considered by defendants in the location of a major highway route such as this illustrate well the reasons for the rule. Both proposed routes have advantages and disadvantages. Defendants studied both proposals in depth, and came to a decision that is eminently reasonable. The decision approving E-3 was made after a consideration of the relevant factors; it was not clearly erroneous, and therefore it was not arbitrary and capricious. *fn4"

 Even so, defendants must follow the procedural requirements outlined by the applicable federal statutes and regulations with respect to highway location.

 ENVIRONMENTAL PROTECTION

 1. Kimball Creek Marsh

 23 U.S.C.A. § 138 (1972 Supp.) provides:

 
§ 138. Preservation of parklands

 Plaintiffs contend that, because Kimball Creek Marsh is a wildlife and/or waterfowl refuge, federal defendants erred in failing to make the required findings with respect thereto. This ...


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