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LATHAN v. VOLPE

August 4, 1972

Roosevelt LATHAN and Pearline Lathan, his wife, et al., Plaintiffs,
v.
John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendants


Beeks, Chief Judge.


The opinion of the court was delivered by: BEEKS

I. FACTS AND PROCEDURAL HISTORY

 This is one of a trilogy of cases involving the construction of I-90, an interstate highway, through the State of Washington. The proposed segment involved herein would create a ten-lane highway along the alignment of an existing four-lane highway. It would cross Lake Washington from the east on a floating bridge, enter Seattle by a tunnel through the Mount Baker district, emerge and continue through a heavily populated area, and join I-5, a north-south interstate highway. *fn1"

  Pursuant to the mandate of the court of appeals, *fn2" and upon the motion of plaintiffs, this court entered a preliminary injunction on May 22, 1972, enjoining defendants from further acquisition of land for the project. Defendants have moved for the dissolution of the preliminary injunction, for an order adjudging compliance with the decision of the court of appeals and with 23 U.S.C.A. ยง 138 (1972 Supp.), *fn3" and for an order striking certain portions of a brief filed by plaintiff-intervenors (intervenors). Intervenors have moved for an order requiring state defendants to comply with applicable environmental laws, *fn4" and to conduct another design hearing. *fn5" Plaintiffs have moved for an order requiring the preparation of a better relocation plan, and have joined intervenors in their objections to the adequacy of the impact statement. The court took these matters under submission following a hearing on June 12, 1972.

 II. THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970 (URA)

 State officials are required by regulation to supply federal highway program administrators with (1) satisfactory assurances that adequate relocation will be afforded for persons forced to move on a hardship basis, (2) an analysis of the relocation problems involved, and (3) a specific relocation plan. *fn6" Defendants have submitted exhibits *fn7" which purport to establish compliance with the applicable statutes and regulations. *fn8" Exhibit 1-A contains a thirty-nine page relocation plan, a statistical analysis of persons to be displaced and replacement housing available, detailed maps showing the relationship of the project to key points in the communities, and a computer printout in support of the statistical summary. I am satisfied that defendants have complied with the letter and spirit of the law. Plaintiffs complain that the addresses of the replacement dwellings are not listed. There is no requirement, by statute or regulation, that addresses be given.

 III. THE ENVIRONMENTAL IMPACT STATEMENT

 The National Environmental Policy Act of 1969 (NEPA), *fn9" requires the preparation and circulation of a "detailed statement" on the environmental effects of "major Federal actions." Application of NEPA to federal-aid highway projects presents special problems to the courts. There are many "major Federal actions" subject to NEPA which, unlike highway projects, must be preceded by a quasi-judicial *fn10" or quasi-legislative *fn11" hearing. Judicial review in such cases is aided by reference to an administrative record compiled at the hearing. In the administrative planning process for interstate highways, no such record is compiled. At highway hearings the public may express itself, but since such proceedings are neither quasi-judicial nor quasi-legislative, no reviewable record is made. *fn12" The public may also raise environmental questions by way of comment to the draft impact statement. Since the final impact statement must respond to these comments, as well as to the comments of government agencies, environmental harm which might have been overlooked by highway officials may be brought to their attention. For this reason, highway officials must give more than cursory consideration to the suggestions and comments of the public in the preparation of the final impact statement. The proper response to comments which are both relevant and reasonable is to either conduct the research necessary to provide satisfactory answers, or to refer to those places in the impact statement which provide them. *fn13" If the final impact statement fails substantially to do so, it will not meet the minimal statutory requirements. A sufficiently detailed final impact statement, which appends the comments received on the draft impact statement, provides the court with an administrative record which is reviewable.

 This court has recently expressed its views with regard to the legal adequacy of environmental impact statements, *fn14" and will not repeat those views here. These requirements have been imposed by Congress; this court did not legislate them, but is duty bound to enforce them. The impact statement submitted in this case fails to meet minimum legal standards. Although it is superior to the impact statements reviewed by this court in other I-90 cases, it nevertheless falls far short of the "detailed" analysis of environmental problems envisioned by NEPA. Defendants have simply failed to meet the minimum required standard. By seriously underestimating their duty, defendants have caused yet another costly delay in this project.

 Defendants suggest that they will conduct additional research on its environmental effects after the highway is constructed. NEPA, however, does not authorize defendants to meet their responsibilities by locking the barn door after the horses are stolen. *fn16" Plaintiffs and intervenors are warned, however, that chronic fault-finding alone will not invalidate an impact statement. When a detailed impact statement has been prepared and processed according to law, the court's task will be only to determine whether the decision was arbitrary or capricious, not whether another scientific study could have been conducted.

 Intervenors have asked that defendants be required to conduct a new design hearing. NEPA and the implementing regulations do indeed contemplate a reasonable opportunity for public comment on the impact statement. *fn17" Yet, this goal can be achieved without undue delay of the project if defendants give reasonable public notice of the major aspects of the proposal, and of the locations of the governmental offices where the public may see copies of the draft impact statement.

 Finally, intervenors have belatedly raised an entirely new issue of law -- whether federal duties under NEPA may be delegated to state officials. In disposing of this issue it is necessary to review the procedural history of this lawsuit.

 The complaint was filed on May 28, 1970. On November 19, 1970, the court denied a motion by plaintiffs and intervenors to preliminarily enjoin further activities in preparation for construction of the highway. The court of appeals reversed on November 15, 1971, *fn18" holding that an impact statement must be filed. It did not specifically refer to Policy and Procedure Memorandum (PPM) 90-1, which was promulgated by the Federal Highway Administration (FHWA) on August 24, 1971, and which specifically provides that the state is to prepare a draft impact statement, assume most of the responsibility for ...


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