explaining that state highway departments receiving federal assistance for highway planning, design and construction must comply with 23 U.S.C. § 101 et seq., as well as pertinent provisions in the Code of Federal Regulations
How later courts described this case
- explaining that state highway departments receiving federal assistance for highway planning, design and construction must comply with 23 U.S.C. § 101 et seq., as well as pertinent provisions in the Code of Federal Regulations
- stating that the "without observance of procedure" standard applies when a party claims that an environmental impact statement fails to comply with the requirements of NEPA
- finding “the two essential elements of laches — lack of diligence by plaintiff and injurious reliance thereon by de fendant”
- emphasizing that NEPA is a procedural statute and that the adequacy of an EIS depends on whether it was prepared in observance of proper procedures
Written by the judges who cited it.
The opinion
WALLACE, Circuit Judge
(concurring) :
I concur generally with the majority. I disagree that the case should be remanded for the district court to consider whether new hearings need now be held pursuant to 23 U.S.C. § 128 (a). The question whether the hearings required by section 128(a) have been held is immaterial until the state highway department submits plans for a federal-aid highway project. At that time, section 128(a) requires that the state highway department “shall certify to the Secretary that it has had [the requisite] public hearings . . . .’’If the state highway department decides not to submit plans, the question never arises. Once it does submit plans, compliance with section 128(a) is necessary, and appropriate judicial proceedings may be instituted to challenge the certification that required hearings have been held.
In the instant case, there has been no submission of plans and thus no certification. An action raising the question whether the hearings complied with section 128(a) is, therefore, premature. It is the responsibility in the first instance of the state highway department to hold such hearings as it deems necessary and to make the required certification to the secretary when it submits plans.
In addition, I cannot concur with the statements, which I deem to be dicta, pertaining to what constitutes further major federal action on this project. The majority concludes, without the benefit of briefs or argument, that certain actions are further major federal actions. I believe wisdom dictates that we wait before we make such a determination until a record raising this question is properly before us. It is at least equally arguable that once the final engineering design stage has been approved, all major federal action has. been completed. At that point, the eventual impact on the environmental has been established. Each house that is moved, each mound of dirt that is excavated, each ribbon of concrete that is laid has an impact on the environment, but that impact is determined by the plan already adopted. Of course, the federal government will participate substantially in the project subsequent to the approval of the design plan, but participation alone is not enough. The real question is whether the government’s continued participation constitutes “further major Federal actions having a significant effect on the environment.” 36 Fed.Reg. 7727 (1971) (emphasis added). It can be persuasively argued that after final design approval, nothing further occurs which (1) is major and (2) has a significant effect on the environment, because no action outside the contemplation of the approved design is undertaken. Such an analysis is completely consistent with our previous holding in San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-1026 (9th Cir. 1973).