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BROOKS v. VOLPE

August 12, 1974

Richard J. BROOKS, a citizen, et al., Plaintiffs,
v.
John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendants


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


The opinion of the court was delivered by: THOMPSON

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

 INTRODUCTION

 The propriety of the eventual completion of I-90; an interstate highway through the state of Washington, has again been raised before a federal court. The segment involved herein contemplates the addition of three lanes to an existing four-lane highway through the mountainous Snoqualmie Pass. The proposed section is located approximately 45 miles east of Seattle in the Cascade Mountain Range in an area that is totally within the Snoqualmie National Forest.

 The precise history of this case has been fully stated in earlier decisions of both the District Court and the Circuit Court of Appeal. Brooks et al. v. Volpe et al., 460 F.2d 1193 (9th Cir. 1972); district court decisions reported at 319 F. Supp. 90 (W.D.Wash.1970), and 350 F. Supp. 269 (W.D.Wash.1972). It, therefore, appears to be unnecessary to fully set forth those details here. The following summary is sufficient for the purposes of this opinion.

 The existing highway consists of four adjacent lanes on the southern portion of the Snoqualmie Valley providing both east-west travel. The proposed project would utilize the existing four-lane facility for easterly travel with three new lanes being constructed for westerly travel on the north wall of the valley. This proposed alignment would result in a partial "encirclement" of the recreational facilities located in the valley itself.

 After several years of study and the preparation of a design report, the project was approved by the Federal Highway Administration. No attempt was made to comply with the then recently enacted environmental legislation. Actual construction began June 26, 1970.

 Plaintiffs filed their original complaint on August 18, 1970, alleging that the defendants had failed to comply with 23 U.S.C. § 138, Preservation of Parklands, and 42 U.S.C. § 4321 et seq., National Environmental Policy Act (NEPA). The matter was originally heard by the Honorable William Beeks who has now assumed senior status. In his first opinion, Judge Beeks held that there was no use of parklands within the meaning of 23 U.S.C. § 138 and that 42 U.S.C. § 4321 et seq., which became effective January 1, 1970, was inapplicable to the 1967 location approval. Brooks et al. v. Volpe et al., 319 F. Supp. 90 (W.D.Wash.1970). The Court of Appeals reversed on both points and remanded the case for further review. Brooks et al. v. Volpe et al., 460 F.2d 1193 (9th Cir. 1972). The Circuit Court further ordered the defendants to file an environmental impact statement (EIS)/4(f) statement within 60 days of the entry of judgment of the Court of Appeals. If defendants failed to comply, the District Court was instructed to enjoin further construction.

 Thereafter, the defendants prepared an environmental impact statement and 4(f) report and requested approval from the District Court of their compliance with the order of the Ninth Circuit Court of Appeals. The District Court in its opinion dated August 4, 1972, concluded that the combination EIS/4(f) statement was legally insufficient. Brooks et al. v. Volpe et al., 350 F. Supp. 269 (W.D.Wash.1972). A hearing was held on August 18, 1972 leading to an order enjoining further construction activity by the defendants. An appeal was taken to the Ninth Circuit and on December 7, 1973, the opinion of the District Court was affirmed. Brooks et al. v. Volpe et al., 487 F.2d 1344 (9th Cir. 1973).

 Due to the protracted period of litigation, construction continued from June 26, 1970 to October 3, 1972. During these 27 months, the Highway Department completed significant portions of the proposed highway. Approximately $10,500,000.00 was expended on earth moving, engineering, and on the construction of required bridges. The work completed to date has left a permanent mark on the Snoqualmie Valley and cannot now be undone.

 The defendants have prepared a new combination EIS/4(f) report which has been approved by the Secretary of Transportation. The matter is now before this court on defendant's motion for an order of compliance and for dissolution of the existing injunction.

 After a thorough examination of the issues in contention, this court finds that the defendants have fully complied with the procedural requirements of NEPA and 23 U.S.C. § 138 and that the injunction should therefore be dissolved.

 Defendants contend that the administrative record and the combination EIS/4(f) statement clearly establish compliance with the mandates of NEPA and 23 U.S.C. § 138. In their attack on defendants' compliance, plaintiffs have raised three basic arguments:

 
1. The E.I.S. fails to comply with the requirements of NEPA;
 
2. The 4(f) determination by the Secretary of Transportation ...

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