Opposition Brief — Village of Los Ranchos de Albuquerque v. Barnhart

Supreme Court of the United States

October Term, 1990

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VILLAGE OF LOS RANCHOS DE ALBUQUERQUE and

RIO GRANDE VALLEY PRESERVATION SOCIETY,

Petitioners,

R.H. BARNHART, Administrator of the

Federal Highway Administration, et al.,

Respondents.

4.

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Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

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RESPONDENT CITY OF ALBUQUERQUE’S

BRIEF IN OPPOSITION

A.

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EpwarpD R. PEARSON

Assistant City Attorney

and Counsel of Record

Davip S. CAMPBELL

City Attorney

Counsel for Respondent,

City of Albuquerque

Post Office Box 1293

Albuquerque, New Mexico 87103

(505) 768-4500

COCKLE LAW BRIEF PRINTING CO,, =

OR CALL COLLECT (402) 342-283

i

QUESTION PRESENTED

Whether the City funded Montafio Project is a major

federal action significantly affecting the quality of the

human environment or a federal or federaily assisted

undertaking because the Federal Highway Administra-

tion funded a location environmental study, participated

in the preparation of an environmental impact statement

and approved the final environmental impact statement,

which selected the locations of the preferred alternative

alignments.

TABLE OF CONTENTS

2 ie al CO ios tiienns cacencoina dence ae

Reasons Why the Writ Should be Denied ..........

SION 5. k.i.s <5 os Aka haw ido shad Cold teen

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TABLE OF CITATIONS

Page

Cases:

Atlanta Coalition on Transportation Crisis, Inc. v.

Atlanta Regional Commission, 599 F.2d 1333 (5th

Be eMC POE TOV ETT? ct RTE RC eT Ee 4, 6

Bennett v. Taylor, 505 FSupp 800 (M.D.La. 1980) ....6, 9

Citizens for Balanced Environment and Transportation

- v. Volpe, 376 F.Supp. 806 (D.Conn. 1974), aff'd,

503 F.2d 601 (2nd Cir. 1974), cert. den., 423 U.S.

B70 CUSTS) «onc scsevecesccscvcscsccccscesscecs 4, 5, 6

Citizens Civic Association of Door County v. Coleman,

417 =Supp. 975 (W.D. Wisc. 1976) ..........---.+-- 6

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

CN iis sis Nish ee Wa ie NE KEDA danse cS vines case 8

City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972)...4, 7

City of Highland Park v. Train, 519 F.2d 681 (7th Cir.

1975), cert. den., 424 U.S. 927 (1976)............. 5, 6

Edwards v. First Bank of Dundee, 534 F.2d 1242 (7th

Se NE tas Olas Sais 0 KR 46 6044 +6 V5 9\0 4 6 cie cow eces 9

Ely v. Velde, 497 F.2d 252 (4th Cir. 1974) ............. 4

Friends of the Earth v. Coleman, 518 F.2d 323 (9th

a ea So Shalt ein RG Og tay 6

Hall County Historical Society v. Georgia Department

of Transportation, 447 F.Supp. 741 (N.D. Ga.

CPG PERN RELN SC AOU bey eidibdwe cues boveccccces 8

Hart v. Denver Urban Renewal Project, 551 F.2d 1178

CE ROUEN Ci Ge ou 8EN6 55 OFS Uae 60's dis ew'evess 9

Historic Preservation Guild of Bay View v. Burnley,

oe eae ee eee eee 6, 9

a

iv

TABLE OF CITATIONS - Continued

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

Ce SOD eka hs cccanecathseeccestptanacscye

Jette v. Bergland, 579 F.2d 59 (10th Cir. 1978) .....

La Raza Unida v. Volpe, 337 ESupp. 221 (N.D. Cal.

1971), aff’d, 488 F.2d 559 (9th Cir. 1973), cert.

GOD, Be Ace PO AEST havnt veccrovespenecs

Maryland Wildlife Federation v. Dole, 747 F.2d 229

ee Rey ee aS ET eee ELE

Named Individuai Members of San Antonio Conserva-

tion Society v. Texas Highway Department, 446

F.2d 1013 (Sth Cir. 1971), cert. den., 406 U.S. 933

CRNA iting aii od nds oo Seed CEES 4 CEaNE webs

Named Individual Members of San Antonio Conserva-

tion Society v. Texas Highway Department, 496

F.2d 1017 (Sth Cir. 1974), cert. den., 420 U.S. 926

CTD F EG hein hb kins on hind Ghee OCR ae cheek Moka eae 5s

Ringsred v. Duluth, 838 F.2d 1305 (8th Cir. 1987)..

River v. Richmond Metropolitan Authority, 359

F.Supp. 611 (E.D. Va. 1973), aff’d 481 F.2d 1280

CO UE FF igen x ig oheins waseoneee ctens > -

Scottsdale Mall v. State of Indiana, 549 F.2d 484 (7th

Cir. 1977), cert. den., 434 U.S. 1008 (1978)......

Weintraub v. Rural Electrification Administration,

457 FSupp. (M.D. Pa. 1978)..............0.e05:

CONSTITUTIONS AND STATUTES:

16 U.S.C. § 470 et seg. National Historic Preserva-

eo ee

v

TABLE OF CITATIONS - Continued

Page

So ee ks 50s DEG Rs CGS oa SA 6

23 U.S.C. § 138 Federal Aid Highways Act........... 8

Be Mn 6 ahs alee cook Sek eecs ceca caeess 5

aR kL Re ay Ceemnn we ear eee Yee 10

42 U.S.C. § 4331 et seq. National Environmental

eg es ) ees pcre ee 3

49 U.S.C. § 303 4(f) Department of Transportation

Be Tl SR eC ee eer e er Se eee 8

RULES AND REGULATIONS:

Be ee Oe I ITT 55 boo Ke ce ccccnsusivsuccevecs 6

23 CER. § 771.11Xe) CI96S, 1990) .............0.05.- 5

SD CP sree? GAMO wes es cncrccscsccesscceens 5

BG CPR: HOGG 2a) (ISG, BFGF) coc cece ccc ccc eee: 8

No. 90-783

-

In The

Supreme Court of the United States

October Term, 1990

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VILLAGE OF LOS RANCHOS DE ALBUQUERQUE and

RIO GRANDE VALLEY PRESERVATION SOCIETY,

Petitioners,

Vv.

R.H. BARNHART, Administrator of the

Federal Highway Administration, et al.,

Respondents.

a

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Tenth Circuit

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RESPONDENT CITY OF ALBUQUERQUE’S'!

BRIEF IN OPPOSITION

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STATEMENT OF THE CASE

In 1977, the Urban Transportation Planning Policy

Board of the local Council of Governments requested a

1 Respondent is a political subdivision of the State of New

Mexico and has no parent companies, subsidiaries or affiliates.

2

feasibility study of alternative river crossings in the Aibu-

querque metropolitan area. The study focused on the

engineering feasibility cf the alternatives, with some

attention to environmental impacts. As a result of this

study, in 1979, the Policy Board initiated the preparation

of an Environmental Impact Statement (“EIS”) and identi-

fied three principal corridors, including the Montafio and

Paseo del Norte corridors, for particular consideration.

The Policy Board requested the New Mexico Highway

Department to serve as lead agency to coordinate the

potential cooperative efforts of City, County, State and

Federal agencies concerned with transportation projects.

The Federal Highway Administration (“FHWA”) pro-

gramed federal financial assistance of $58,972.50 for

studies and technical tasks related to the EIS, took an

active part as a study team member in the preparation of

the EIS and reimbursed the New Mexico Highway

Department $48,113.00 for studies and tasks related to the

EIS.

In 1984, the FHWA issued its Record of Decision

which approved the final EIS and authorized the Mon-

tafio and the Paseo del Norte projects, which were

approved as the preferred alternative alignments, to pro-

ceed to the next stage of development as federal aid

highway projects. The Record of Decision provides that

the “Federal Highway Administration Division office will

monitor the project. . . if Federal-aid Highway funds are

used for its construction”. Federal involvement in the

preferred alterhatives ended at this point, because the

City of Albuquerque (“City”) and the State of New Mex-

ico determined that there were essentially no federal

funds available for the Montafio and Paseo del Norte

projects. The City and the State chose not to seek any

federal money to build either the Paseo del Norte or the

Montafio bridges.

In 1983 and 1985, when the possibility of federal

funds failed to materialize, the voters of Albuquerque

approved the issuance of municipal general obligation

bonds in the total sum of $10.3 million to fund the esti-

mated $10 million cost of the Montafio Project. The City

has completed the design of the Montafio Bridge and has

begun right-of-way acquisition. The Federal Highway

Administration has played no part in any of these activ-

ities. .

The City does not intend to apply for or use any

financial, technical or other assistance from the FHWA or

the State of New Mexico to complete the Montafio Project.

The Petitioners acknowledge that the Montafio Project

will be constructed with City funds (Petition, p.12) and

that the Montafio Project is a local project (Petition, p.43).

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REASONS WHY THE WRIT SHOULD BE DENIED

1. THE DECISION BELOW DOES NOT CONFLICT

WITH DECISIONS OF THE OTHER CIRCUITS.

A. National Environmental Policy Act of 1970

(“NEPA”), 42 U.S.C. § 4331 et seq.

The Tenth Circuit held that the contribution of nearly

$59,000.00 to the cost of the EIS and the approval of the

EIS by the FHWA and eligibility of the Montafio Project

for federal funds are not sufficient to establish a major

federal action requiring compliance with NEPA.

Petitioners rely primarily on La Raza Unida v. Volpe,

337 F.Supp. 221 (N.D. Cal. 1971), aff'd, 488 F.2d 559 (9th

Cir. 1973), cert. den., 417 U.S. 968 (1974), to demonstrate

that the Tenth Circuit’s decision conflicts with the deci-

sions of other circuit courts. La Raza held that NEPA

applies to a project when the FHWA grants location

approval. In the instant case, in accordance with the La

Raza precept, an EIS was prepared before the general

Montafio alignment was approved by the FHWA.

In La Raza, the court was concerned with identifying

the point at which NEPA obligations begin, not when

they might end. The district court specifically declined to

address “whether the federal protective devices would

continue to apply if the state forecloses the possibility of

federal assistance”. 337 F.Supp. at 231, n.5.

Once the federal government participates in a pro-

ject, the project is not necessarily forever federal. City of

Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972); Ely v. Velde,

497 F.2d 252, (4th Cir. 1974) (a prison project, which was

originally to have been funded with federal money, was

not a federal project because the State withdrew its

request for funds before construction had begun and

before the federal government had spent money on any

phase of the project).

The funding by the FHWA of the planning process of

a project is not a major federal action. Atlanta Coalition on

Transportation Crisis, Inc. v. Atlanta Regional Commission,

599 F2d 1333 (5th Cir. 1979) (federal assistance to the

planning process is not a commitment of the federal

government to fund the project); Citizens for Balanced

Environment and Transportation v. Volpe, 376 F.Supp. 806

i ee

(D.Conn. 1974), aff’d, 503 F.2d 601 (2nd Cir. 1974), cert.

den., 423 U.S. 870 (1975) (the expenditure of less than

$50,000.00 of FHWA funds for planning a proposed road

was insignificant to render a multi-million dollar high-

way a federal action).

The approval of an EIS is acceptance of the general

project location. 23 C.F.R. § 771.113(b) (1985, 1990). The

approval of an EIS, as location approval, is not an action

that has significant effect on the environment, Maryland

Wildlife Federation v. Dole, 747 F.2d 229 (4th Cir. 1984), or a

federal action, Jette v. Bergland, 579 F.2d 59 (10th Cir.

1978). It is a considered discussion of the environmental

consequences of proposed action that the agency may or

may not take. If the agency neither takes the proposed

action nor in any way aids others in taking it, it makes no

sense to continue imposing NEPA obligations. See City of

Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975), cert.

den., 424 U.S. 927 (1976).

Location approval does not commit the FHWA to

approve federal funds for a project, 23 C.FR. § 771.113(b)

(1990), or obligate local governments to accept federal

funding, 23 U.S.C. § 145. In Citizens for Balanced Environ-

ment, supra, the court refused to follow La Raza, supra, and

held that neither a location approval, nor its equivalent

(known as “route revision approval”), irrevocably com-

mitted the federal or state governments to FHWA fund-

ing or, consequently, to NEPA duties:

[Nleither step commits the state to build the

highway at all, nor to use federal funds if the

highway is built, and surely neither step com-

mits the agency to supply federal funds. More-

over, determination of whether the federal

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government is sufficiently involved in a high-

way to make it a “federal action” within the

meaning of NEPA should not depend on the

state of mind of the potential state applicant for

funds. 376 F.Supp. 812.

The possibility of future federal funding does not

make a project a federal action. City of Highland Park,

supra; Bennett v. Taylor, 505 F.Supp. 800 (M.D.La. 1980).

Where the planning process is structured or a project is

designed to preserve the eligibility for federal funding,

the possibility of future federal funding does not make a

project a federal action. Historic Preservation Guild of Bay

View v. Burnley, 896 F.2d 985 (6th Cir. 1989); Atlanta Coali-

tion on Transportation, supra; Friends of the Earth v. Coleman,

518 F.2d 323 (9th Cir. 1975); Citizens for Balanced Environ-

ment, supra.

Because the Montafio Project will be built with City

funds, the FHWA cannot reimburse the City for the cost

of the Montafio Project. The FHWA does not pay for

completed projects that were not subject to FHWA mon-

itoring and approval before and during construction. See

23 U.S.C. § 114(a) and § 121(c); and 23 C.FR. § 1.9{a)

(1987). NEPA cannot apply to the Montafio Project. Ben-

nett, supra.

In Citizens Civic Association of Door County v. Coleman,

417 F.Supp. 975 (W.D. Wisc. 1976), the FHWA participated

in the planning process of a project to preserve the state’s

eligibility for federal funds in the event the state should

seek federal aid; provided guidance for and participated

in the preparation of the EIS; approved the location of the

preferred alternative and approved the design of the

approach roadways to the project. The state did not seek,

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program, or authorize federal aid for preliminary engi-

neering, right-of-way, or construction. The Court held

that the project had not become a federal action.

In other cases relied on by Petitioners, the project in

issue had proceeded, with federal approval and funding,

through the design phase and to construction or the

evidence slowed that the decision to proceed without

those funds was a deliberate attempt to circumvent

NEPA’s requirements. Scottsdale Mall v. State of Indiana,

549 F2d 484 (7th Cir. 1977), cert. den., 434 U.S. 1008

(1978) (design, preliminary engineering and right-of-way

acquisition); Indian Lookout Alliance v. Volpe, 484 F.2d 11

(8th Cir. 1973) (no dispute that state seeking federal fund-

ing); City of Boston v. Volpe, supra, (FAA allocated more

than $1 million for taxiway construction); Named Individ-

ual Members of San Antonio Conservation Society v. Texas

Highway Department, 446 F.2d 1013 (5th Cir. 1971), cert.

denied, 406 U.S. 933 (1972) (deliberate attempt to circum-

vent NEPA by shifting funds). Congress subsequently

rejected the Fifth Circuit’s suggestion in San Antonio,

supra, that a project could remain federal for the purpose

of NEPA even if the State repaid all of the federal! fund-

ing. The Federal Aid Highway Act of 1973 provided that

the North Expressway in San Antonio, which had been

the subject of San Antonio, would cease to be a federal aid

highway program when all funds theretofore paid to the

State by FHWA had been returned. When Texas had

repaid the funds, the Fifth Circuit held that the North

Expressway was exempt from the application of NEPA.

Named Individual Members of San Antonio Conservation

Society v. Texas Highway Department, 496 F.2d 1017 (5th

Cir. 1974), cert. den., 420 U.S. 926 (1975).

B. Section 4(f) of the Department of Transportation

Act 49 U.S.C. § 303 and of the Federal Aid High-

way Act, 23 U.S.C. § 138.

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

402 (1971), the Court stated that Section 4(f) prohibits the

use of federal funds to finance the construction of high-

ways through public parks if feasible and prudent alter-

natives exist. Section 4(f) does not apply to the Montafio

Project because the City has funded the construction of

the Montafio Project through municipal general obliga-

tion bonds and will not seek any federal funds for the

project.

C. National Historic Preservation Act (“NHPA”),

16 U.S.C. § 470 et seq.

NHPA applies to a project only if the project is under

the direct or indirect jurisdiction of a federal agency or

licensed or assisted by a federal agency. 36 C.F.R.

§ 800.2(O) (1987, 1989). The Montafio Project is not under

the jurisdiction of the FHWA. There is no dispute that the

City can build the Montafio Project without FHWA

involvement. The FHWA has not issued any licenses for

the Montafio Project.

NHPA is not applicable unless federal funds are

approved to aid in construction of a project. River v.

Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D. Va.

1973), aff’d 481 F.2d 1280 (4th Cir. 1973); Hall County

Historical Society v. Georgia Department of Transportation,

447 F.Supp. 741 (N.D. Ga. 1978) (compliance with NHPA

was not required if the state withdrew requests for fed-

eral funds for project construction and reimbursed fed-

eral funds that had been expended); Hart v. Denver Urban

Renewal Project, 551 F.2d 1178 (10th Cir. 1977) (under

NHPA, the key element is federal funding, not federal

approval); Edwards v. First Bank of Dundee, 534 F.2d 1242

(7th Cir. 1976) (no NHPA duties if no federal funding);

Weintraub v. Rural Electrification Administration, 457

F.Supp. 78 (M.D. Pa. 1978) (to same effect). The fact that a

project is eligible for federal funding does not make it

subject to NHPA. Historic Preservation Guild, supra.

The analysis;under NHPA is essentially the same as

the analysis under NEPA. Ringsred v. Duluth, 838 F.2d

1305 (8th Cir. 1987) (treating NHPA’s “undertaking”

requirement as essentially coterminous with NEPA’s

“major federal action” requirement); Bennett, supra. If the

FHWA participation in the Montafio Project is not a major

federal action under NEPA, it is not a federal or federally

assisted undertaking under NHPA.

2. NEITHER THE DECISION BELOW NOR THE

RECORD RAISES THE ISSUE OF COMPLIANCE

BY THE CORPS OF ENGINEERS WITH FEDERAL

ENVIRONMENTAL LAWS.

In their second reason for the grant of a writ, Peti-

tioners assert that the Montafio Project is a major federal

action because the FHWA knew that the City would ha ve

to obtain a Section 404 dredge and fill permit from the

Corps of Engineers to build the Montafio Bridge.

A. The FHWA has no authority to issue Section 404

permits. The Secretary of the Army, acting through the

ee a. Se ee

10

Chief of the Engineers, has the exclusive authority to

issue Section 404 permits. 33 U.S.C. § 1344. The Secretary

of the Army and the Corps of Engineers are not parties to

the instant case.

B. The issue of whether the Secretary of the Army

properly issued a Section 404 permit for the Montafio

Bridge is the subject of separate litigation, Village of Los

Ranchos v. Hatch, No. CIV 88-1032JC (D.N.M.), Nos.

90-2012, 90-2026, 90-2052 (10th Cir.) (pending) (Petition,

p-70a).

C. The issue of whether the issuance of a Section

404 permit is a major federal action was not presented

below and is not within the scope of the decision below.

The facts of record do not support the formulation or

resolution of this issue.

D. The FHWA is not obligated to prepare an EIS for

issuance of a Section 404 permit.

E. The federal environmental laws do not apply

until there is a major federal action or federal undertak-

ing. The instant action was filed on August 31, 1984. The

Corps of Engineers issued the Section 404 permit for the

Montafio Bridge on July 6, 1986. If the FH'‘/A participa-

tion in the Montafio Project was not a major federal action

or undertaking, the subsequent issuance by the Corps of

Engineers of a Section 404 permit for the Montafio Bridge

cannot make the prior FHWA action a major federal

action or undertaking.

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CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

EpwarD R. PEARSON

Assistant City Attorney

— ye hae pondent,

ity o e

P.O. ‘ 1293 =

Albuquerque, New Mexico 87103

Telephone: 768-4500