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DALY v. VOLPE

May 20, 1974

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


Gordon Thompson, Jr., District Judge, Sitting by Designation.


The opinion of the court was delivered by: THOMPSON, JR.

GORDON THOMPSON, Jr., District Judge, Sitting by Designation.

 INTRODUCTION

 This is another of the growing myriad of cases involving the construction of I-90, an interstate highway through the state of Washington. The segment involved herein would create a multiple lane bypass of the community of North Bend, Washington. Plaintiffs, individual residents and property owners in or near the proposed highway corridor, originally brought this suit in the Western District of Washington in February of 1971. The matter was assigned to the court of the Honorable William Beeks but is now before this court as a result of his assumption of senior status. The questions at issue are essentially based upon a challenge to the adequacy of the environmental impact statement (EIS) prepared to satisfy the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1973) (NEPA). It is presently before this court on defendants' motion to dissolve the injunction originally issued by Judge Beeks.

 This project, now known as SR 90, Echo Lake to Tanner, was begun in the early 1950's when studies were undertaken for a new highway bypass. In 1957 the first route or corridor hearing for the project was held. The corridor presented at that proceeding generally ran adjacent to the existing highway except for a southward diversion to the west of the town of North Bend.

 Further implementation of those plans was delayed until 1965 because of revised construction priorities. However, other design and corridor hearings were conducted which culminated in the rejection of the original corridor (A-3) in favor of a new route (E-3). Corridor E-3, commonly known as the south route, coincides with the originally adopted corridor A-3 from its western beginning to the vicinity of Kimball Creek Marsh. From this point, corridor E-3 turns southward from the existing highway and bypasses the town of North Bend to the south before rejoining the other proposed corridors at Tanner.

 This is a class action for declaratory and injunctive relief. Plaintiffs alleged at the original hearings in 1971 that the defendants, officials responsible for federal and state highway planning, were in violation of a number of applicable laws and regulations.

 At the time of the initial hearing in 1971, plaintiffs based their demands for relief on three grounds: first, that the selection of the location of the highway corridor by the Washington Department of Highways and its approval by the Federal Highway Administration was arbitrary and capricious; second, that 23 U.S.C. § 138, (1974), Preservation of Parklands, prevented the state and federal government from proceeding with the proposed highway corridor; and third, that the defendants failed to comply with the procedural requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1973).

 The court also rejected plaintiffs' second contention finding that 23 U.S.C. § 138 (1974), Preservation of Parklands, was not in issue in the construction of this segment. Section 138 is limited to the preservation of publicly owned property. Due to the fact that none of the land in the E-3 corridor was publicly owned, the statute precluding its use for highway construction was inapplicable. Daly v. Volpe, supra, at 256.

 On plaintiffs' third issue, the court was compelled to agree that the defendants had failed to comply with the procedural requirements of NEPA. In rejecting the sufficiency of the state's first draft environmental impact statement, the court detailed its shortcomings:

 
. . . The discussion of the environmental impact of the proposed location is not acceptable; . . . adverse environmental effects should be listed and discussed in a single section of the statement, and not scattered throughout the report. The court believes that the alternatives to the proposed corridor are adequately discussed in the "Advance Planning Study," which may be incorporated by reference in the new environmental impact study. Neither report sufficiently discussed the relationship between local short-term uses of man's environment and long-term productivity. Finally, there is virtually no discussion of irreversible and irretrievable commitments of resources involved in locating the highway in corridor E-3. Daly v. Volpe, supra at 258.

 Accordingly, the court ordered the defendants to prepare a new draft environmental impact statement conforming to the relevant regulations, circulate it among interested agencies, and to make it available to the public prior to another public location hearing. The court also provided that:

 
The state shall then prepare a final environmental impact statement, append it to a compilation of the comments received, and submit these, together with a new application for approval of the state's suggested location of I-90, to the Regional Federal Highway Administrator. [Footnote omitted]. Federal defendants shall than process the application according to existing regulations. Daly v. Volpe, supra at 260.

 The court then proceeded to enjoin the defendants from undertaking any further construction or land acquisition until the state established compliance with NEPA.

 Motions were subsequently filed by defendants to amend the findings of fact, conclusions of law and judgment of the District Court under F.R. Civ. P. 52(b) and 59(a). In response to these motions, the case was reheard on June 15, 1972. Following the rehearing, the court filed an opinion on August 4, 1972. The court partially reversed its earlier position and held that:

 
Because of the urgency of the situation in this case, and because the alternative routes (including E-3) were clearly outlined at the September 1, 1970 hearing, defendants will not be required to conduct a new location hearing. Daly v. Volpe, supra at 260.

 However, the court again required the defendants to prepare a new EIS, while providing that "defendants may use the impact statement filed herein as the draft impact statement."

 This matter is now before this court on defendants' motion to dissolve the existing injunction. The state urges the court to conclude that it is now in compliance with the dictates of NEPA, while plaintiffs continue to argue that the existing impact statement is still unsatisfactory.

 After a thorough examination of the issues in contention and a reexamination of Judge Beeks' original opinion, this court must conclude that the defendants have fully complied with the procedural requirements of NEPA ...


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