Petition — Dickison v. Goldschmidt

Supreme Court, U.S.

FILED

80-464 SEP 16 1980

No. :

WCHAEE-RODAK, JR., CLERK

In the

Supreme Court of the Gnited States

Ocrorer TrErRM, 1980

DORIS M. DICKISON, KENNETH B. DICKISON,

DONALD L. SCHIELEIN, LOUISE TOBIN, GLENDEN

G. HANNAH and FEUCHTER ENTERPRISES,

Petitioners,

VS.

BROCK ADAMS, Individually and as Secretary of Trans-

poration for the United States, Washington, D.C.,

DONALD E. TRULL, Regional 5 Administrator of the

Federal Highway Administration, JAY W. MILLER,

Division Engineer of the Federal Highway Administration,

JAMES THOMPSON, Governor of the State of Illinois,

JOHN CRAMER, Individually and as Secretary of the

Department of Transportation of the State of Illinois,

RONALD BURRIS, Comptroller of the State of Illinois,

JERRY CONSTANTINO, Treasurer of the State of

Illinois,s CHARLES ROBERT BURRIS, District Engi-

neer of District No. 2, Illinois Department of Transporta-

tion, JACK E. HARLAND, District Engineer of District

No. 4, Illinois Department of Transportation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Tomas W. Kenr AND

Joun P. Epmonps

Kernr anp EpMonps, P.c.

1021 N. Fourth Street

Chillicothe, IL 61523

Telephone: (309) 274-2111

Attorneys for Petitioners.

The Scheffer Press, Inc.—(312) 263-6850

QUESTIONS PRESENTED

I. WHETHER BY TYF ENTRY OF SUMMARY JUDGMENT

FOR THE RESPONDENTS THE DISTRICT COURT IGNORED

MATERIAL ISSUES OF FACT AND FORECLOSED ITS

ABILITY TO ENGAGE IN A SUBSTANTIAL INQUIRY WITH

RESPECT TO THE RESPONDENTS' ALLEGEI LACK OF

COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL

POLICY ACT.

II. WHETHER BY THE ENTRY OF SUMMARY

JUDGMENT FOR THE RESPONDENTS THE DISTRICT COURT

IGNORED MATERIAL ISSUES OF FACT AND FORECLOSED

ITS ABILITY TO ENGAGE IN A SUBSTANTIAL INQUIRY

WITH RESPECT TO THE PETITIONERS' CONTENTION THAT

THE SELECTION OF THE PROPOSED ROUTE FOR FEDERAL

HIGHWAY PROJECT 405 WAS ARBITRARY AND CAPRICIOUS.

TABLE OF CONTENTS

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STATUTORY PROVISIONS AND RULES IQN-

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REASONS FOR GRANTING THE WRIT - QUES-

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REASONS FOR GRANTING THE WRIT - QUES-

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APPENDIX

Decision and Orders on Motions for Summary Judg-

ment (District Court, June 29, 1979) we la

Unpublished Order (Court of Appeals, June 19,

SITET Aili tdlicdcaiiaiadacennsdentenniniapinsinipnnebiniiasssaiabiiniwmennenis 10a

Statutory provisions and rules involved .............. 20a

TABLE OF AUTHORITIES

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289,

322, 95 S. Ct. 2336, 45 L. Ed. 2d 191 (1974) ............ 8

Appalachian Mountain Club v. Brinegar, 394 F. Supp.

EE OME UNUOS | sctenintntscnisadibvebsnemistoniabuckuibincedbenis 7,9

Camp v. Pitts, 411 U. S. 138, 36 L. Ed. 2d 106, 93 S.

I iis iinsintasonscitisinnsinaoapepandiohesiendisinasaies 8

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971) .....0..... 8,11

il

PAGE

Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731

GE, Ste SIN vicscaicises io hstcmpatadsseanindadberanioeteniaseeis

FPC vy. Transcontinental Gas Pipeline Corp., 423 U.S.

236, 46 L. Ed. 2d 533, 96 S. Ct. 579 (1976) ............ 8

Indian Lookout Alliance v. Volpe, 484 F. 2d 11 (8th

Cab. TFSI: stnniesnaiiicaiedincenianaiadaieaianasidanernns 7

Patterson v. Exon, 415 F. Supp. 1276 (D. Neb. 1976) 7

Swain v. Brinegar, 542 F. 2d 364 (7th Cir. 1976) ........ 8

In THE

SUPREME COURT OF THE UNITED STATES

Octoser TreRM, 1980

No.

DORIS M. DICKISON, KENNETH B. DICKISON,

DONALD L. SCHIELEIN, LOUISE TOBIN, GLENDEN

G. HANNAH and FEUCHTER ENTERPRISES,

Petitioners,

vs.

BROCK ADAMS, Individually and as Secretary of Trans-

poration for the United States, Washington, D.C.,

DONALD E. TRULL, Regional 5 Administrator of the

Federal Highway Administration, JAY W. MILLER,

Division Engineer of the Federal Highway Administration,

JAMES THOMPSON, Governor of the State of Illinois,

JOHN CRAMER, Individually and as Secretary of the

Department of Transportation of the State of Illinois,

RONALD BURRIS, Comptroller of the State of Illinois,

JERRY CONSTANTINO, Treasurer of the State of

Illinois, CHARLES ROBERT BURRIS, District Engi-

neer of District No. 2, Illinois Department of Transporta-

tion, JACK E. HARLAND, District Engineer of District

No. 4, Illinois Department of Transportation,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

a Pm

The Petitioners pray that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the Seventh Circuit, entered in the above-

entitled case on June 19, 1980.

QUESTIONS PRESENTED

I. Whether By The Entry Of Summary Judgment

For The Respondents The District Court Ignored Ma-

terial Issues Of Fact And Foreclosed Its Ability To

Engage In A Substantial Inquiry With Respect To The

Respondents’ Alleged Lack Of Compliance With The

National Environmental Policy Act.

II. Whether By The Entry Of Summary Judgment

For The Respondents The District Court Ignored Ma-

terial Issues Of Fact And Foreclosed Its Ability To En-

gage In A Substantial Inquiry With Respect To The

Petitioners’ Contention That The Selection Of The Pro-

posed Route For Federal Highway Project 405 Was

Arbitrary And Capricious.

OPINIONS BELOW

The opinions of the United States Court of Appeals for

the Seventh Circuit and the United States District Court

for the Central District of Illinois which are not reported

in official or unofficial reports appear in the appendix to

this petition.

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit is dated and was entered on June

19, 1980. The jurisdiction of this Court is involved un-

der 28 USC Section 1254,

me ee

STATUTES INVOLVED

ee SPO D | cchccicechcesssttasscsncrssdanssessosiens Appendix

(cited at p. 3)

5 USC Sec. 706(2) ............0. pidics lis ios sailenensbsbvteianiianateas Appendix

(cited at p. 3)

RULES INVOLVED

USCS Rules of Civil Procedure, Rule 56 ............ Appendix

(cited at p. 9)

23 C.F.R. Part 771-5(a), Federal Highway Ad-

ministration Policy and Procedure Memorandum

SN I CUI seteehiscinscsncpissnbskeraiuinindenscopmepivownbibies Appendix

STATEMENT OF THE CASE

The Petitioners are Illinois farmers and landowners

upon whose property a portion of the federally funded

highway project known as FAP 405 is to be constructed.

Since this proposed highway will be built in part with

federal funds it qualifies as a ‘‘major Federal (action)

significantly affecting the quality of the human environ-

ment’’, 42 USC See. 4332 (2)(¢c), for which an Environ-

mental Impact Statement (“EIS” hereafter) is required.

The Petitioners brought suit in the Federal District Court

for the Southern District of [Illinois seeking to perma-

nently enjoin the construction of the highway. They

have alleged, inter alia, that the final EIS was inadequate

under the National Environmental Policy Act (‘‘NEPA”’

hereafter), 42 USC Sec. 4321, et. seq., and that the selec-

tion of the highway route was arbitrary and capricious.

This action arises under the provisions of 42 Sections

1983 and 1988, 42 USC Sections 4321 through 4335, 23

USC Section 109 and the Fifth and Fourteenth Amend-

en

ments to the United States Constitution. Petitioners in-

voked the District Court’s jurisdiction under the pro-

visions of 28 USC Sections 1331, 1842 and 1361, and 5

USC Sections 701 through 706.

At all of the public hearings held in connection with

the highway project and in all public notices with respect

thereto, it was represented to the public that the state

and federal governments intended to construct approx-

imately 40 miles of highway in order to connect the junc-

tion of Routes 474 and 74 west of Peoria to FAI Route

180 west of Hennepin, Illinois. At issue herein is the

most southerly 12 mile long segment of FAP 405 which is

currently slated for construction over Petitioners’ prop-

erty extending from the junction of FAI Routes 474 and

74, north and east around Peoria to immediately north

of an east-west Peoria County highway designated No.

25, also known as Cedar Hills Drive. A final design EIS

was prepared for this 12 mile segment only.

The Petitioners contended in their complaint that the

final design EIS should have been prepared for the en-

tire 40 mile length of the proposed highway and not

just for the 12 mile segment currently slated for con-

struction. They further complained that the route selec-

tion was arbitrary and capricious because it was the re-

sult of political pressure rather than an adequate evalua-

tion of its effect upon farmland and wildlife especially

as compared with alternate routes which would have

affected significantly less farmland and wildlife.

Both sets of state and federal Respondents moved for

summary judgment. In support of their motion, the

Respondents argued that the 12 mile segment was appro-

priate for final EIS purposes, under the judicially deter-

mined tests of segmentation, in that the highway: (1)

or ee

had utility independent of the remainder of the project,

(2) did not preclude evaluation of alternate routes for

the remainder of the highway and (3) the plan had not

become concrete enough to make it highly probable the

entire plan would be carried out in the near future.

The Respondents attempted to support these arguments

by, inter alia, submitting affidavits, prepared for use in

connection with this litigation, suggesting that although a

design study has been authorized for the portion of FAP

405 north of the southern segment currently slated for

construction the northern 28 mile portion of FAP 405

may never be built, could be built in any direction, and

could even be built entirely outside of the 10 mile wide

corridor EIS which has already been prepared for the

northern 28 mile segment. (Appendix at page lda.) In

addition, the Respondents submitted sworn traffic studies,

prepared for use in connection with this litigation, to

support their suggestion that the northern terminus of

the 12 mile segment was logical. (Appendix at page 7a.)

The Petitioners responded, inter alia, averring that in-

asmuch as the project had been intended to connect the

junction of Routes 474 and 74 west of Peoria and FAI

Route 180 west of Hennepin, nothing less than that dis-

tance was appropriate for a final EIS. The Petitioners

supported their allegations concerning the true scope of

the federal projects by submitting affidavits describing,

inter alia, their attendance at all of the relevant public

hearings wherein the Respondents consistently represented

FAP 405 to be a 39.8 mile project and not a local 12

mile project and the Respondents’ communications to

the Petitioners at the corridor public hearings that there

was a need for the construction of the full 39.8 miles.

Additionally, they argued, inter alia, that material ques-

anon

tions of fact were presented as to whether the northern

terminus of the 12 mile segment qualified as a ‘‘logical

terminus’’ for EIS purposes and whether the route chosen

was arbitrary and capricious.

After taking briefs and holding a brief hearing at

which the Petitioners were given approximately five min-

utes within which to argue and no opportunity to initiate

any discovery or present any testimony as to the merits

of the controversy, the District Court ruled that the

affidavits of the Petitioners ‘‘do not appear to raise any

genuine issues of material fact for trial’’, (Appendix at

page 8a.); and, accordingly, summary judgment was en-

tered for the Respondents. Petitioners prosecuted an

appeal to the United States Court of Appeals for the

Seventh Circuit.

The court of Appeals for the Seventh Circuit affirmed

finding as a matter of law to-wit:

(1) The district Court made no error finding that the

segment before it connected logical termini, meet-

ing the first Swain (Swain v. Brinegar, 542 F. 2d

364 (7th Cir. 1976)) tes of independent utility

apart from the entire » Sree FAP 405. (Ap-

pendix at page 15a.)

(2) Affidavits indicate that at present no state funds

are available for completion of the remainder of

FAP 405 and the need for that completion is be-

ing reevaluated, although a design study has

been authorized for the portion of FAP 405

north of the southern segment. (Appendix at

page 15a.)

(3) Plaintiffs have failed to show any facts, nor does

the record reveal such facts, which would indicate

that the choice of route for the 12 mile segment

no arbitrary and capricious. (Appendix at page

16a.)

i eo

REASONS FOR GRANTING WRIT

I. WHETHER BY THE ENTRY OF SUMMARY

JUDGMENT FOR THE RESPONDENTS THE DIS-

TRICT COURT IGNORED MATERIAL ISSUES OF

FACT AND FORECLOSED ITS ABILITY TO ENGAGE

IN A SUBSTANTIAL INQUIRY WITH RESPECT TO

THE RESPONDENTS’ ALLEGED LACK OF COMPLI-

ANCE WITH THE NATIONAL ENVIRONMENTAL

POLICY ACT.

The refusal of the Court below to reverse the District

Court’s determination as to the true scope of the federal

project for EIS purposes is in direct conflict with the

general rule held by all federal jurisdictions which have

considered the question that where the major objective of

a proposed highway is to connect two cities by express-

way, then these two termini should determine the proper

scope of the final EIS. Indian Lookout Alliance v. Volpe,

484 F. 2d 11 (8th Cir. 1973); Committee to Stop Route 7

v. Volpe, 346 F. Supp. 731 (D. Conn. 1972).

The decision of the lower Court is also in conflict with

the general rule held by all federal jurisdictions that when

reason allows, the EIS should be more extensive than the

project which is currently slated for construction and that

the concepts of ‘‘independent utility’’ or ‘logical termini’’

are not litmus paper tests that foreclose further inquiry as

to the appropriate scope of an EIS. Indian Lookout

Alliance v. Volpe, 484 F. 2d 11 (8th Cir. 1973); Appala-

chian Mountain Club v. Brinegar, 394 F. Supp. 105 (D.

N. H. 1975); Patterson v. Exon, 415 F. Supp. 1276 (D.

Neb. 1976); Committee to Stop Route 7 v. Volpe, 346

F. Supp. 731 (D. Conn. 1972).

asian

In other words, the scope of the EIS should be at

least as broad as the scope of the federal action being

taken. Swain v. Brinegar, 542 F. 2d 364 (7th Cir. 1976) ;

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289,

322, 95 S. Ct. 2336, 45 L. Ed. zd 191 (1974). It is not

disputed that the scope of the federal action known as

FAP 405 has always been presented to the public at all

public hearings and in all public notices with respect

thereto as a 40 mile project designed to provide a direct

high volume highway service between Peoria and Chicago.

(Appendix at pp. 8a., 15a.) However, after the com-

mencement of the instant litigation the Respondents pre-

pared and submitted litigation affidavits indicating for

the first time that the scope of the federal project was

being reevaluated and that the highway might ultimately

encompass only 12 instead of 40 miles. (Appendix at

pp. 8a., 15a.) (Emphasis added) In addition, after the

commencement of the litigation the Respondents prepared

and submitted sworn traffic studies which suggested, inter

alia, the volume of traffic which would be generated at

the northern terminus of the 12 mile segment. (Appendix

at pp. 7a., 14a.-l5a.)

The heavy reliance of the Court below upon the litiga-

tion affidavits which never received the distribution and

circulation that NEPA requires is in conflict with the

holdings of this Court. Citizens to Preserve Overton

Park v. Volpe, 401 U. S. 402, 28 L. Ed. 2d 136, 91 S. Ct.

814 (1971); Camp v. Pitts, 411 U. S. 138, 36 L. Ed. 2d

106, 93 S. Ct. 1241 (1973); FPC v. Transcontinental Gas

Pipeline Corp., 423 U. S. 236, 46 L. Ed. 2d 533, 96 S. Ct.

579 (1976). For example, in Camp it was held that if

the decision is not supportable on the administrative

ae ae

record made, then the decision must be vacated and the

matter remanded for further consideration. 7d., 36 L. Ed.

2d at 111. In other words, the ‘‘focal point for judicial

review should be in the administrative record already in

existence, not in some new record made initially in the

reviewing Court’’. Zd., 36 L. Ed. 2d at 111.

Moreover, it should be noted that the heavy reliance of

the Court below upon the sworn traffic studies is in

direct conflict with the holding in Appalachian Mountam

Club v. Brinegar, 394 F. Supp. 105 (D. N. H. 1975) where-

in the Court stated: ‘‘It is beyond this Court’s competence

to assess the adequacy of traffic data and the conclusions

drawn therefrom’’. Id., 394 F. Supp. at 115 (D. N. H.

1975).

It should also be emphasized that the Court below

affirmed the entry of summary judgment. It is respect-

fully submitted that at a bare minimum genuine issues

of material fact have been presented as to the true scope

of the federal action ix. question for EIS purposes. See

USCS Rules of Civil Procedure, Rule 56 and the citations

thereunder.

Finally, due to the fact that the appropriate scope of

an EIS .or federal highway construction has not been

settled by this Court, a definitive statement by this Court

is needed to insure that NEPA does not become a paper

tiger.

one Sine

II. WHETHER BY THE ENTRY OF SUMMARY

JUDGMENT FOR THE RESPONDENTS THE DIS-

TRICT COURT IGNORED MATERIAL ISSUES OF

FACT AND FORECLOSED ITS ABILITY TO EN.

GAGE IN A SUBSTANTIAL INQUIRY WITH RE.-

SPECT TO THE PETITIONERS’ CONTENTION THAT

THE SELECTION OF THE PROPOSED ROUTE FOR

FEDERAL HIGHWAY PROJECT 405 WAS ARBI-

TRARY AND CAPRICIOUS.

At the public hearing held on November 8, 1972, two

alignments (within the gorridor) known as Alternate 1

and Alternate 2 were presented to the public as having

been selected for final study. Alternate 1 was then selected

as the chosen alignment subsequent to the November 8,

1972 hearing (Design EIS at p. 111).

The Petitioners would have offered proof that the

selection of Alternate 1 was arrived at by political pres-

sures and in fact was not even the alternate which was

recommended by the Illinois Department of Transporta-

tion (Plaintiffs’ Brief in Opposition to Motion to Dismiss

pages 12 and 138).

The selection of Alternate 1 will cost 4.9 million dollars

more to construct than Alternate 2. Alternate 1. will

destroy 143 more acres of prime farmland than Alternate

2. Alternate 1 will destroy 22 more acres of virgin wood-

land than Alternate 2. Alternate 1 will displace nearly

twice the number of people and businesses as Alternate

2 (Final Design EIS p. 109).

More specifically, Petitioners would have offered evi-

dence indicating that the main objective behind the politi-

cal pressure which culminated in the selection of Alter-

nate 1 was a plan by the City of Peoria to annex Cater-

a

pillar’s industrial plant at Mossville, Illinois to the City

of Peoria, Ilinois with the use of federa tax dollars by

the means of strip annexation. There presently exists

an intergovernmental agreement between the City of

Peoria and the Illinois Department of Transportation

wherein the City of Peoria has hired the transportation

department to acquire certain land immediately west of

the right-of-way in order to accomplish this strip an-

nexation of Caterpillar.

In assessing such a claim, the Courts must first consider

‘‘whether the Secretary acted within the scope of his

authority’? and second whether the ultimate decision was

‘farbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.’’ Citizens to Preserve

Overton Park v. Volpe, 401 U. S. 402, 415 (1971). Cer-

tainly Plaintiffs’ claim, if true, establishes an abuse of

discretion. It would seem to be equally clear that such a

claim should not be resolved upon the cold and summary

assertions of the pleadings.

ame 123 am

CONCLUSION

For the reasons stated, it is respectfully submitted that

this petition should be granted.

Respectfully submitted,

Tuomas W. Keur anp

Joun P. Epmonps

Krnr and Epmonps, P.C.

1021 N. Fourth Street

Chillicothe, TL 61523

Telephone: (309) 274-2111

Attorneys for Petitioners,

Of Counsel:

MicHart T, MaHonry

KrHr AND EpMonps, P.c.

Attorneys and Counsellors at Law

P. O. Box 335

Chillicothe, TL 61523

Telephone: (309) 274-2111

== la —

APPENDIX

————---- +

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

No. 79-1012

DORIS M. DICKISON, KENNETH @G. DICKISON,

DONALD L. SCHIELEIN, LOUISE TOBIN, GLENDEN

G. HANNAH and FEUCHTER ENTERPRISES,

Plaintiffs,

vs.

BROCK ADAMS, individually and as Secretary of Trans-

portation for the United States, Washington, D.C.;

DONALD E. TRULL, Regional 5 Administrator of the

Federal Highway Administration; JAY W. MILLER,

Division Engineer of the Federal Highway Administra-

tion; JAMES THOMPSON, Governor of the State of

Illinois; JOHN KRAMER, individually and as Secretary

of the Department of Transportation of the State of

Illinois; ROLAND BURRIS, Comptroller of the State

of Illinois; JERRY COSENTINO, Treasurer of the State

of Illinois; R. H. BLASIUS, District Engineer of Dis-

trict No. 3, Illinois Department of Transportation; JACK

E. HARLAND, District Engineer of District No. 4, Dli-

nois Department of Transportation; W. E. BURNS, Dis-

trict Engineer of District No. 6, Illinois Department of

Transportation,

Defendants.

DECISION AND ORDERS

ON MOTIONS FOR SUMMARY JUDGMENT

(Filed June 29, 1979)

Plaintiffs, by their complaint, seek to enjoin acquisi-

tion of further right-of-way for, and construction of,

Freeway FAP 405, or disbursement of funds in connec-

tion therewith, as well as a declaration that actions thus

oe

far taken by defendants thereon are violative of the Na

tional Environmental Policy Act of 1969 (hereinafter

NEPA), 42 U.S.C. §4321ff. The federal and state defen.

dants have moved for summary judgment in two separate

motions which are here considered, after hearing and

briefs submitted by the parties.’

The following facts are clearly established in the rec-

ord before the court. Freeway FAP 405 is the designa-

tion recognized by Illinois and federal highway authori-

ties as referring to a completely new highway which, if

and when completed, will extend for 39.8 miles from the

junction of FAI Routes 474 and 74 west of Peoria,

northerly to FAI Route 180 west of Hennepin, Illinois.

A segment of that proposed highway is here presently

involved. It is the most southerly section which extends

about 12 miles from said junction of FAI Routes 474 and

74, north and east around Peoria to immediately north

of an east-west Peoria County highway designated No.

25, also known as Cedar Hills Drive. That portion of

FAP 405 will be a northern area by-pass, serving local

and regional traffic within the Greater Peoria area. It is

expected to serve substantially greater volumes of traffic

than the remaining portion of FAP 405 to the north,

i.e., approximately 23,000 vehicles per day against 13,000

vehicles per day in the year 1990 on maximum traffic seg-

ments. For that reason it has been assigned a higher

construction priority than the more northerly 27.8 mile

balance of the project.

Under attack is the present decision, currently being

implemented, to commence the highway improvement at

‘Defendants Blasius and Burns have been dismissed

because they are Illinois district highway engineers of

districts not involved in the present project, and Charles

Robert Burris, District Engineer of District Number 2 has

been substituted in his official capacity, with the same

representation here as the other state defendants, by the

Illinois Attorney General, because a small portion of

District 2 is involved.

— » F

== $9 ==

the southern terminus of FAP 405 with a 12-mile seg-

ment. That decision is believed justified by the highway

authorities because the southern terminus is located at the

western junction of the area’s two interstate routes, FAI

474 and 74;? and the northern end of said 12-mile priority

segment intersects Cedar Hills Drive in the Mossville

area, which is near two major industrial complexes (being

the Mossville plants of Caterpillar Tractor Company and

Pioneer Industrial Park), and which are unquestionably

major automobile traffic generators. In addition, Cedar

Hills Drive (County Highway 25) provides a practical

outlet for northbound traffic back to existing Illinois

Route 29 (the present connection of the Peoria area with

FAI Route 180) until the remaining northerly portion

of FAP 405 to FAI 180 is completed. Less traffic con-

gestion and greater traveling safety is expected to result

from realization of this 12-mile segment of fully con-

trolled access freeway. The whole Supplemental Freeway

FAP 405, if and when completed, will provide a modern,

direct, regional connection between Peoria and Chicago,

previously non-existent.

Two final environmental impact statements were pre-

pared which embraced this proposed 12-mile highway

improvement. A draft impact statement was prepared in

1971 for the 39.8 mile corridor from FAI Routes 474 and

74 to FAI Route 180 west of Hennepin. A final impact

statement (EIS) thereon was adopted by the Federal

Highway Administration (FHWA) on June 12, 1972. In

this corridor EIS, three separate corridors were studied.

Public hearings were held in conjunction with the draft

*FAI 74 is an interstate facility traversing directly

through the Peoria urbanized area. FAI 474 is the area’s

east-west interstate by-pass route traversing the southerly

portions of the Greater Peoria area. Supplemental Free-

way FAP 405, commencing at the junction of these two

major interstate routes, was designed to provide a con-

tinuation of interstate quality, high-volume highway serv-

ice to the north, and to be a part of an eventual Chicago-

Kansas City highway.

—~

corrridor statement and 585 people attended. The second

final impact statement was prepared for the location

alignment and design of the 12-mile segment here in-

volved, beginning at the junction of FAI Routes 474 and

74 and ending shortly north of County Highway 25. The

12-mile segment is entirely within the selected one of the

three corridors carefully considered in the final corridor

statement adopted on June 12, 1972.

The draft design EIS on the 12-mile segment was pre-

pared in 1973, and the final statement thereon was adopted

by FHWA on August 3, 1976. Public hearings were held

in connection with the draft EIS for the 12-mile seg-

ment as well, and again over 500 people attended the

hearing. The final statement incorporated the views of

the public expressed at the public hearings. A full dis-

cussion of alternative alignments is set forth in the final

design EIS, and the decision on the selected alignment

for the 12-mile segment was made from the analysis

contained in the two impact statements, for the corridor

and location alignment, respectively.

It is clear that the environmental consequences of the

entire 39.8 mile Supplemental Freeway 405 were fully

evaluated before the decision to build was made on the

proposed 12-mile segment. The administrative record

of actions taken by the state and federal defendants for

Federal Aid Project 405, including copies of the Final

Environmental Impact Statements for the 39.8 mile cor-

ridor and the 12-mile segment, are before the court.

Since the date of final approval of the final design

EIS on August 3, 1976, approximately $7.5 million has

been expended by the defendants on the proposed high-

way improvement. Two miles of right-of-way have been

acquired and construction has begun. Design and plan-

ning consultant contracts have been awarded for the

remaining ten miles. Additional right-of-way is scheduled

to be acquired within the next few months. Additional

construction contracts will be advertised for bid. The

—

total project cost for the 12-mile segment is estimated

to be $52,000,000.

Both parties rely heavily upon the law as expounded

in the case of Swain v. Brinegar, which arose in this

court.* In that case this court entered judgment for the

highway authority defendants and against plaintiffs who

sought to prevent the building of a single segment of

new highway on environmental grounds. Swain v. Brine-

gar, 378 F.Supp. 753 (1974). The majority of a three-

judge panel of the United States Court of Appeals for

the Seventh Circuit held that there had been an improper

delegation of authority by FHWA to the Tllfnois Depart-

ment of Transportation (IDOT) with respect to prep-

aration of the EIS, required by 42 U.S.C. §4332(2) (ce),

and remanded the case to the district court\ to retain

jurisdiction pending submission of a proper EIS’ by

FHWA, Swain v. Brinegar, 517 F.2d 766 (7th Cir. 1975).

Thereafter, Congress amended NEPA essentially to val-

idate the procedure which had been followed by FHWA

and IDOT; and upon subsequent consideration by the

Court of Appeals en banc, by a 4 to 3 vote, it was ob-

served that the panel decision could not stand, but that

since there was no EIS which embraced the entire high-

way for its full length as projected, the statute was not

satisfied with respect to the segment, by environmental

statements limited to the segment involved. Swain v.

Brinegar, 542 F.2d 364 (7th Cir. 1976). It is recognized,

of course, that any principles of law enunciated in the

latter opinion which are applicable here, are controlling

here. However, the two earlier published opinions in that

ease can be of little, if any, help, and furnish only back-

ground information.

The Court of Appeals en banc in Swain (542 F.2d

367 ff.) observed and held as follows: (All citations

omitted.)

* Plaintiffs here assert that the Swain case “parallels”

the present matter, and in many respects that is true,

—

“Our study of the present EIS, consisting of forty-

six pages of textual material and numerous maps,

charts and pictures, persuades us of the statutory

adequacy of the EIS if this 15-mile segment of FAP

406 were to be considered alone. The EIS gives the

requisite ‘hard look’ at the proposed action.”

* * *

“We believe that that this section of the EIS fully

complied with NEPA’s mandate.

* * *

“However, we cannot agree that it was proper to

confine the EIS to this 15-mile segment. Based on

the standards articulated in NEPA, the regulation

and the cases, it is clear that under the facts of this

case, the proposed federal action being taken in-

cludes funding the entire 42 miles of FAP 406. There-

fore, the judgment of the district court must be re-

versed.”

* 7 ”

“The purpose of NEPA is to require that federal

decision-makers consider the environmental conse-

quences of their actions before deciding to proceed.

Their source of information, the EIS, must there-

fore be a pragmatic and realistic view of the scope

of the action being contemplated. The view must be

one neither confined to the literal limits of the specific

proposal nor one unbounded except by the limits of

the designer’s imagination. The task of the court is

not to decide where to draw the line, but to review

the matter to ascertain whether the agency has made

a reasonable choice.”

* * ”

“Taken together, the factors used by the courts

and PPM 90-1 suggest that the scope of the pro-

posed project can be determined by applying the fol-

lowing three standards:

“1, Does the proposed segment have a substan-

tial utility independent of future expansion?

== 7a —

**2. Would its construction foreclose significant al-

ternative routes or locations for an extension from

the segment?

“3. If, as here, the proposed segment is part of

a larger plan, has that plan become concrete enough

to make it highly probable that the entire plan will

be carried out in the near future?”

In Swain, for that case, the en banc court answered

those questions: 1.-No. 2.-Yes. 3.-Yes. Here the initial

EIS for the corridor did cover the entire length of the

total project, and the answers to those questions are

shown factually by uncontroverted affidavits before the

court to be: 1.-Yes. 2.-No. 3.-No. Upon the basis of the

standards specified in Swain, the defendants’ motions

for summary judgment must be allowed.

Plaintiffs argue that the corridor EIS, drafted first in

1970 and approved in final form in 1972, is inadequate

as a design EIS. It is true, as observed by plaintiffs, that

this corridor EIS was never intended to satisfy the re-

quirements of NEPA for a meaningful design EIS. As a

practical matter, a design could hardly be conceived un-

til a decision to build on a particular route is taken, and

only the present segment of FAP 405 has yet been de-

signed. That is the reason PPM 20-8 requires two stages.

The corridor EIS, however, does consider and specify

design standards to protect the environment, and the de-

sign EIS later provides the detail for the segment in-

volved. If it were necessary to have a design EIS for

the total length of the final highway as totally conceived,

before proceeding on any segment, questions 2 and 3

from the Swain case standards would be meaningless,

and no segment of a total concept would be built and

utilized until the whole concept was completely finalized.

The Swain ease opinion expressly rejects this extreme.

Plaintiffs also argue that the 1972 corridor EIS is

“woefully outdated” by the intervention of inflated costs

and the national 55 m.p.h. speed limit, but the significance

== 80 oo

of these factors is not explained. It would seem that the

fact that the taxpayer receives less highway for his

dollar now than he once did, and can’t drive as fast as

some did in the past, in no way depreciates the environ-

mental observations and conclusions of the corridor EIS

here. Certainly it doesn’t tend to indicate that the seg-

ment involved is less needed for use.

Plaintiffs also observe that the present appearance of

less need for construction (in relation to cost) of the

northerly 27.8 miles of FAP 405 shows an error in the

corridor EIS; that at one time a design EIS for this

northerly 27.8 miles was contemplated by state authori-

ties; and that the fact that the northerly 27.8 miles could

be built in the future, if built at all, outside of the pre-

viously seleeted corridor, somehow destroys the value

of the corridor EIS here. The intended logic is not ap-

parent. If and when the northern segment is built in the

future, it is obvious that then existing law must be satis-

fied; but the fact that there may be many changes of

many kinds in the interim does not destroy the reason-

ableness of the present program or render it violative

of present law.

Plaintiffs also contend that the Swain case tests for

unlawful segmentation are not met; but little is advanced

in support of that conclusion. It is argued that whether

major industrial complexes are traffic generators or not

is a material question of fact precluding summary judg-

ment; but there is no factual contest of the existence of

such industrial complexes as stated by defendants’ affi-

davits. It is hard to conceive a more precise description

of an automobile traffic generator in today’s world than

an industrial plant; but neither do plaintiffs contest the

sworn traffic volume studies comparing the southern and

northern segments here. It is equally clear that if and

when the northerly segment of FAP 405 is built, it will

connect directly both to the southern segment and to

T-180 at the north, but whether it traverses a shorter or

longer route in between, either within or without corri-

== 9g —

dor B of the corridor EIS, is in no sense otherwise fixed.

Neither the fact that a new EIS might then be needed,

if the latter is determined to be otherwise in the public

interest, nor the fact that the beginning and end must ob-

viously connect up the highway as a whole, certainly

does not mean that ‘‘significant alternative routes’’ in be-

tween are foreclosed.

With respect to the third question from the Swain case

test, plaintiffs simply assert that FAP 405 has always

been presented to embrace the same single concept of

connecting the two points mentioned _ahove with a 39.8

mile-high quality highway in response to a conceived need

therefor, and as part of a larger interstate system. This

does not even suggest that it can’t be changed in response

to possible changed circumstances, or that a shorter seg-

ment shouldn’t be built to fulfill primarily a local part

of the overall need if the statutory plan of environmertal

considerations is met. That may offend plaintiffs’ col-

lective view of right and justice; but it has nothing to

do with whether “it is highly probable that the entire plan

will be carried out in the near future.” Perhaps because

of skyrocketing costs, perhaps because of changed trends

in the northern sector, it is clear, from sworn statements

before the court, that, as a matter of fact, construction

of the northern segment at any time is now highly prob-

lematical. This fact, quite obviously, destroys neither

the need for the southern segment nor the two EIS’s

which support it. This fact does show that the answer

here to the third question in the Swain case test is “No.”

Aside from immaterial and conclusory statements,

plaintiffs’ affidavits show their interest, their early and

continued opposition to FAP 405, the loss of farmland

and wildlife refuge to highway use, if it is built, and the

fact that they always were led to believe that the 12-mile

segment was part of the 39.8 mile total highway, rather

than a local project. It is obviously both. These asser-

tions do not appear to raise any genuine issues of ma-

terial fact for trial.

—

Defendants also argue that plaintiffs have been guilty

of laches in filing this suit, having been aware of all de-

velopments from the beginning. On this point plaintiffs

argue that there is “a vital public environmental interest

against the application of laches.” Since the court has

decided the motions for summary judgment for defen-

dants on the merits, the possible application of laches is

moot and need not be decided or further discussed.

Plaintiffs make a number of other possibly true al-

legations of factual adverse effects of the taking of prop-

erty for this highway, which, if considered alone and in

a vacuum, would indicate that it might not be a public

improvement. However, it appears that they were con-

sidered and evaluated against the benefits and were found

outweighed. Meaningful environmental studies were made

prior to any decision to move ahead. Each EIS here

speaks for itself and cannot be depreciated by either un-

sworn or conclusory assertions by persons who simply

disagree. Defendants here have important public re-

sponsibilities. To the extent that plaintiffs’ lands are

taken, they must be compensated under the law, and that

issue is not involved here. The federal defendants also

argue several other propositions which it is not believed

necessary to discuss.

Accordingly, IT IS ORDERED that defendants’ mo-

tions for summary judgment are ALLOWED and judg-

ment will enter in favor of defendants and against plain-

tiffs, at plaintiffs’ cost.

/s/ Robert D. Morgan

Robert D. Morgan

United States District Judge

Entered: June 29, 1979

—lla—

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued January 21, 1980)

June 19, 1980

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

DORIS M. DICKISON, KENNETH B. DICKISON, DON-

ALD L. SCHIELEIN, LOUISE TOBIN, GLENDEN

G. HANNAH and FEUCHTER ENTERPRISES,

Plaintiffs-A ppellees,

No. 79-2015 vs.

BROCK ADAMS, Individually and as Secretary of Trans-

portation for the United States, Washington, D.C.,

DONALD E. TRULL, Regional 5 Administrator of the

Federal Highway Administration, JAY W. MILLER,

Division Engineer of the Federal Highway Adminis-

tration, JAMES THOMPSON, Governor of the State

of Illinois, JOHN CRAMER, Individually and as Secre-

tary of the Department of Transportation of the State

of Illinois,s RONALD BURRIS, Comptroller of the

State of Illinois, JERRY CONSTANTINO, Treasurer

of the State of Illinois, CHARLES ROBERT BURRIS,

District Engineer of District No. 2 Illinois Department

of Transportation, JACK E. HARLAND, District En-

gineer of District No. 4, Illinois Department of Trans-

portation,

Defendants-A ppellants.

Appeal from the United States District Court for the

Central District of Illinois, Peoria Division.

No. 79-C-1012

ROBERT D. MORGAN, Judge.

ons ks

ORDER

This case involves the construction of a limited access

highway over land owned by MMmintiffs, who allege that

defendant highway officials’ have taken actions in viola-

tion of the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. §§ 4321-61 and seek to permanently

enjoin the construction of the highway. The district court

granted defendants’ motions for summary judgment. We

affirm.

The proposed highway involved in this action is a

twelve mile long segment of Freeway FAP 405 in cen-

tral Illinois. Were it ever completed, FAP 405 would ex-

tend for 39.8 miles from the junction of FAI Routes 474

and 74 west of Peoria, northerly to FAI Route 180 west of

Hennepin, Illinois. Involved in this action is the most

southerly section of FAP 405, extending from the junc-

tion of FAT Routes 474 and 74, north and east around

Peoria to immediately north of an east-west Peoria Coun-

ty highway designated No. 25, also known as Cedar Hills

Drive.

Plaintiffs claim that the final environmental impact

statement (EIS)’ required by law was inadequate in this

‘Named as defendants are officials of the United States

Department of Transportation and the Federal Highway

Administration as well as fiscal and transportation officials

of the state of Illinois.

*The environmental impact statement serves as a basis

by which the agency can fully and completely evaluate

the environmental consequences of the project. The en-

vironmental impact statement aspires to guarantee that

the most intelligent, optimally beneficial environmental

decision will ultimately be made. It also provides an ac-

cessible means by which those outside the agency can

critically evaluate the agency decisions.

Florida Wildlife Federation v. Goldschmidt, 611 F.2d

547, 549 (5th Cir. 1980).

— 13a —

case because it was concerned only with the 12 mile seg-

ment rather than with the entire route of FAP 405 of

about 40 miles and that the choice of the route at issue

was arbitrary and capricious because it involves the re-

moval from cultivation of more farmland than alterna-

tive routes.

This highway segment will be built in part with fed-

eral funds and thus qualifies as a “major Federal [ac-

tion] significantly affecting the quality of the human

environment,” 42 U.S.C. § 4332(2)(C), for which an EIS

is required. Two draft and two final environmental im-

pact statements have been prepared regarding this high-

way project. In 1971 a draft impact statement was pre-

pared for the 39.8 mile corridor® through which the road

would go. After publication of the draft corridor EIS,

public hearings were held and a final corridor EIS was

2 (Continued)

The agency involved in the project is required to pre-

pare a report on

(i) the environmental impact of the proposed ac-

tion.

(ii) any adverse environmental effects which can-

not be avoided should the proposal be implemented.

(iii) alternative to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented.

41 U.S.C. § 4832(2)(C)

*A corridor is the location through which a road will

travel. It extends well beyond the actual boundaries of

the proposed road. In this case, the alternative corridors

considered were about forty yiles in length but varied

from one to five miles in width. Answer, Exhibit V at 8.

Three alternative corridors were considered for this road.

—l4a —

issued in 1972. A draft design EIS* for the 12 mile seg-

ment was prepared in 1973. Following public hearings, a

final design EIS was issued in 1976.

The final corridor EIS recognized that the selected cor-

ridor “would displace few families, although some farm

units would be taken.” Final corridor EIS at 10. It fur-

ther noted, at 16, that:

The commitment of agricultural lands to highway

purposes is controversial in terms of environmental

effect. Since farm commodity surpluses and the

amount of acreage in land banks is increasing, it would

seem that the small per cent needed for highway con-

struction is warranted. This trend is expected to con-

tinue unless some unforeseen circumstances causes

farm surpluses to vanish. In this case, it could be

possible to utilize right-of-way for crop production

or the freeway could be eradicated and turned back

to farm lands.

All parties agree that the route chosen would require

790 acres including 575 acres of crop land; an alternative

route considered would use 603 and 430 acres, respectively.

The final design EIS chose the proposed route over the

alternative and over the option of constructing no new

road, giving reasons for the choice. Final design EIS at

111-13.

The final design of EIS reiterated the possibility of

farming the right of way and of removing the road in the

event of severe food shortages, provided statistical tables

of the amount of cropland and the kinds of crops which

would be lost by building of the road along two alternative

routes, and predicted that building of the road would

accelerate commercial, industrial, and residential develop-

ment along the route. Jd. at 128-34.

‘A design EIS is intended to assure adequate con-

sideration of environmental factors and of public comment

regarding the specific location and major design features

of the proposed highway.

— 15a —

The adequacy of a final EIS prepared by a federal

agency is subject to limited judicial review, to “determine

whether it passes muster under the scope of review pro-

visions of the Administrative Procedure Act, 5 U.S.C.

§ 706.” Farmland Preservation Ass’n v. Goldschmidt, 611

F.2d 233, 237 (8th Cir. 1979). See Matsumoto v. Brinegar,

568 F.2d 1289, 1291 (9th Cir. 1978) ; Coalition for Respon-

sible Regional Development v. Coleman, 555 F.2d 398, 399

(4th Cir. 1977). 5 U.S.C. § 706 provides, in relevant part,

that ‘‘[t]he reviewing court shall ... (2) hold unlawful

and set aside agency action, findings, and conclusions

found to be (A) arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law.” “[I]t is

not the function of the federal court ultimately to pass on

the merits of the contemplated action or to substitute its

judgment for that of the agency.” Farmland Preservation

Ass’n v. Goldschmidt, 611 F.2d 233, 237 (8th Cir. 1979).

See City of Des Plaines v. Metropolitan Sanitary Dis., 552

F.2d 736 (7th Cir. 1977).

Appellants’ first contention is that the final design EIS

was inadequate because it was addressed to only the 12

mile segment rather than to the total 40-mile length of

FAP 405. The length of an appropriate segment of a

highway to be included in an EIS has been discussed in

Federal Highway Administration (FHWA) Policy and

Procedure Memorandum (PPM) 90-1, §6 (1976)° as

follows:

The highway section included in an environmental

statement should be as long as practicable to permit

consideration of environmental matters on a broad

scope. Piecemealing proposed highway improvements

in separate environmental statements should be

avoided. If possible, the highway section should be a

substantial length that would normally be included

in a multiyear highway improvement program.

593 C.F.R. Part 771.5(a) (1979).

— 16a —

Highway section is defined in PPM 90-1, §3(a) (1976) as

**[a] substantial length of highway between logical ter-

mini (major crossroads, population centers, major traffic

generators, or similar major highway control elements)

as normally included in a single location study.’’

This court considered the appropriateness of a proposed

highway segment in Swain v. Brinegar, 541 F.2d 364 (7th

Cir. 1976) (en bane). Plaintiffs in Swain sought to enjoin

construction of a 15 mile segment of a proposed federally-

assisted highway of 42 miles between Peoria and Lincoln,

Illinois. The road was divided into three segments of

which the middle 344 mile segment had already been con-

structed. The segment at issue would have gone from the

southern end of the middle segment to the southern end

of the entire highway. The court found that the EIS was

sufficient as an evaluation of the 15 mile segment but that

it was improper to confine the EIS to that segment be-

cause the segment alone did not constitute the “proposed

action,” 42 U.S.C. § 43832(2)(C)(i), for which the EIS had

to be prepared. After reviewing the decisions of other

courts and the provisions of PPM 90-1, this court set out

three standards to be used to determine whether or not a

highway segment constituted “proposed action” under the

statute:

1. Does the proposed segment have a _ substantial

utility independent of future expansion?

2. Would its construction foreclose significant alter-

native routes or locations for an extension from

the segment?

3. If, as here, the proposed segment is part of a

larger plan, has that plan become concrete enough

to make it highly probable that the entire plan will

be carried out in the near future?

Id. at 369.

The Swain court found that the northern terminus of

the proposed segment at the southern end of the pre-

viously constructed segment had no independent utility

— 17a —

other than as part of the larger road because the “nor-

thern terminus ends in the country at no logical or major

terminus” and was “near no major crossroad, population

center or traffic generator ... as specified in Section 3(a)

of PPM 90-1.” 7d. at 370. Building this segment to con-

nect with the middle segment was held to foreclose alter-

native routes or extensions from the southern segment.

Id. Because of draft EIS had already been prepared for

the northern segment of the road and the government

conceded that it had sought or would seek funding for all

segments of the road, the court coneluded that the

southern segment was part of a concrete plan which would

probably be carried out in the near future. Jd.

Plaintiffs here claim that the first test of Swarm is not

met because the segment lacks independent utility. Argu-

ing that the northern end of the segment at issue was not

a logical terminus, plaintiffs assert that this was a dis-

puted material issue of fact and thus that the district

court erred in granting summary judgment to the defen-

dants. It is uncontested that the southern terminus of the

12 mile segment is a logical one, located as it is at the

junction of two major interstate roads. The southern

segment is expected to serve 23,000 vehicles per day in

1990.° As a northern by-pass of Peoria, it will benefit both

local and through traffic. The northern terminus of the

segment is located near a Caterpillar Tractor Comnany

plant and Pioneer Industrial Park, which would generate

an estimated 14,000 car trips per day by 1985 on this seg-

ment. In addition, County Highway 25 ‘‘affords an oppor-

tunity to reroute northbound traffic back to existing Tllinois

Route 29...’’ Final design EIS at 4-6. The district court

found no material issue of fact regarding the existence of

major traffic generators at the northern terminus of the

*Tn contrast, the northern 28 miles of the total road are

expected to serve only 13,000 vehicles daily. This disparity

in use is indicated as a reason for giving a greater prior-

on _ er southern segment for construction. Final design

KIS at 4.

— 18a —

segment: ‘‘It is hard to conceive a more precise descrip-

tion of an automobile traffic generator in today’s world

than an industrial plant; but neither do plaintiffs contest

the sworn traffic volume studies . . . Dickison v. Adams,

No. 79-1012, slip op. at 7 (C.D. Tll., June 29, 1979). Cases

in which a road was found to terminate at a place other

than a major traffic generator involve segments ending at

county lines. Indian Lookout Alliance v. Volpe, 484 F.2d

11 (8th Cir. 1973); in the middle of woods, Patterson v.

Exon, 415 F.Supp. 1276 (D. Neb. 1976); or at very small

towns, Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975). How-

ever, the situation before us is dissimilar. We find as a

matter of law that the district court made no error in

finding that the segment before it connected logical ter-

mini, meeting the first Swain test of independent utility

apart from the entire proposed FAP 405.

Affidavits before the court indicate that there has been

no clear or irreversible commitment by federal or state

officials to build the remainder of FAP 405 along any

particular route or at all, although it is clear that the

segment before us has long been presented to the public

as part of a larger road. Were the road to be completed,

nothing would foreclose its being built along a variety of

routes from the northern terminus of the 12 mile segment

to I-180 at Hennepin, Illinois. Further extensions of this

segment might go through the previously approved cor-

ridor or through another corridor or simply connect with

Tllinois 29, the existing route from Peoria to I-180. That

a future continuation of this road might go outside the

previously approved corridor presumably would require a

new corridor EIS to be prepared, but that fact does not

affect the validity of the corridor or design EIS involved

in the present road segment. Affidavits indicate that at

present no state funds are available for completion of the

remainder of FAP 405 and the need for that completion

is being reevaluated, although a design study has been

authorized for the portion of FAP 405 north of the

southern segment. We find no error in the conclusion of

— 19a —

the district court that the second and third tests of Swain

should be answered in the negative.

Because we have found that the. district court was

correct in ruling that the design EIS was properly lim-

ited to the 12 mile segment of FAP 405, we must now

consider plaintiff’s challenge to the adequacy of that EIS.

Plaintiffs appear to assume that the existence of an alter-

native plan for the segment which would take a smaller

amount of farmland shows conclusively that the design

EIS was arbitrary and capricious because that alterna-

tive was not chosen. Such an assumption is unwarranted.

The amount of farmland to be used by the segment and

its alternative were discussed in the design EIS and the

impact of the loss of productive farmland was discussed

in general terms in the corridor EIS.’ The two final

environmental impact statements met NEPA’s purposes

of allowing the highway agencies to fully evaluate the

environmental consequences of the project. The amount

of farmland to be used by the segment was only one of

many criteria used in deciding which specifie route should

be approved for this segment. After considering all of

these criteria, the design EIS recommended the segment

before us as serving more traffic, not taking park lands

involved in the alternative route, and providing better

access to commercial and industrial development, Final

design EIS at 111-13. In balancing the benefits and detri-

ments involved in building this segment, the EIS con-

cluded:

The proposed highway improvement will be on an

entirely new location resulting in increases in the

ambient noise levels and air pollution concentrations,

a non-reversible commitment of natural and human

resources, the diversion of approximately 790 acres of

land to highway-orientated use, the displacement of

families, the potential for ground water pollution and

the alteration of area topography. These are the most

™See p. 3 supra.

digi

pronounced adverse effects which must be weighed

against the need for long-term area economic develop-

ment and a safe and efficient means of transportation.

Although the proposed highway improvement will

transport traffic through areas previously void of such

means; it will also divert traffic from the existing local

road system. The proposed improvement will not

require the use of Section 4(f) lands nor involve any

existing or potential historical landmarks of local,

State or National significance.

Final design EIS at 1.

The law is clear that although environmental matters

must be considered by an agency before proceeding with a

project subject to NEPA, “Congress has nowhere deter-

mined that . .. interstate highway traffic moving goals

. should be set aside whenever a highway would have

some detrimental effect on the environment.” Daly v.

Volpe, 514 F.2d 1106, 1110 (9th Cir. 1975). Both final

environmental impact statements here considered the tak-

ing of farmland as having a detrimental effect. We find

that there was adequate consideration of this effect of the

segment. Plaintiffs have failed to show any facts, nor does

the record reveal such facts, which would indicate that

the choice of route for the 12 mile segment was arbitrary

and capricious.

Accordingly, the judgment appealed from is

AFFIRMED.

42 USC See. 4332(2)(e) provides:

The Congress authorizes and directs that, to the fullest

extent possible: (2) all agencies of the Federal Govern-

ment shall—

(C) include in every recommendation or report on

proposals for legislation and other major Federal

actions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

— 21a —

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between short-term uses

of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

Prior to making any detailed statement, the responsible

Federai official shall consult with and obtain the comments

of any Federal agency which has jurisdiction by law or

special expertise with respect to any environmental

impact involved. Copies of such statement and the ecom-

ments and view of the appropriate Federal, State, and

local agencies, which are authorized to develop and

enforce environmental standards, shall be made available

to the President, the Council on Environmental Quality

and to the public as provided by Section 552 of Title 5,

United States Code (5 USCS See. 552), and shall accom-

pany the proposal through the existing agency review

processes.

5 USC See. 706(2) provides:

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions

of law, interpret constitutional and statutory provisions,

and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall—

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre.

tion, or otherwise not in accordance with law;

— 22a —

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, author-

ity, or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

ease subject to sections 556 and 557 of this title

(5 USCS See. 556 and 557) or otherwise reviewed

on the record of an agency hearing provided by

statute, or

(F) unwarranted by the facts to the extent that

the facts are subject to rial de novo by the

reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of preju-

dicial error.

USCS Rules of Civil Procedure, Rule 56 provides in

pertinent part:

(b) FOR DEFENDING PARTY. A party against

whom a claim, counterclaim, or cross-claim is asserted

or a declaratory judgment is sought may, at any time,

move with or without supporting affidavits for a sum-

mary judgment in his favor as to all or any part

thereof.

(C) MOTION AND PROCEEDINGS THEREON.

The motion shall be served at least 10 days before

the time fixed for the hearing. The adverse party

prior to the day of hearing may serve opposing

affidavits. The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law. A

summary judgment, interlocutory in character, may

— 23a —

be rendered on the issue of liability alone although

there is a genuine issue as to the amount of damages.

23 C.F.R. Part 771.5(a) (1979), Federal Highway Admin-

istration 90-1, See. 6 (1976) provides in pertinent part:

The highway section included in an environmental

statement should be as long as practicable to permit

consideration of environmental matters on a broad .

scope. Piecemealing proposed highway improvements

in separate environmental statements should be

avoided. If possible, the highway section should be a

substantial length that would normally be included

in a multiyear highway improvement program.