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

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pws J os A oy

FILED

OCTOBER TERM, 1990

&: VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, ET AL.,

Ri PETITIONERS

Vv.

. R.H. BARNHART, ADMINISTRATOR

=. FEDERAL HIGHWAY ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

PETER R. STEENLAND, JR.

ANNES. ALMY

ROBERT L. KLARQUIST

VICKI L. PLAUT

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

IS A ET OPP PST

QUESTIONS PRESENTED

1. Whether a city-funded bridge construction proj-

ect qualifies as a “major federal action” or a “federal

or federally assisted undertaking” that requires the

Federal Highway Administration to secure project

compliance with federal environmental statutes.

2. Whether the Federal Highway Administration

is obliged to comply with federal environmentai stat-

utes in regard to the city’s bridge construction proj-

ect based on the requirement under Section 404b of

the Federal Water Pollution Control Act (the Clean

Water Act), 33 U.S.C. 1344, that the city obtain a

dredge-and-fill permit for the project from the United

States Army Corps of Engineers.

(1)

TABLE OF CONTENTS

Page

Rel 2 Sri SEAN NRE Oe ee EOE ee 1

ERTIES ACE a Pe ce eT Oe 1

STAG EER RR A eo 2

NERS tic re or CE ee eee ee 9

ESE ee ee nee Ee 15

TABLE OF AUTHORITIES

Cases:

Citizens for Balanced Env’t & Transp., Inc. V.

Volpe, 376 F. Supp. 806 (D. Conn.), aff’d, 503

F.2d 601 (2d Cir. 1974), cert. denied, 423 U.S.

SEAS EE Ree ener 6, 10, 12

Citizens for Responsible Area Growth v. Adams,

Gee fume Goo (let Cir. 1068) ................................. 9

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

a et SESE Se ROR OO oe ae ne 13

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

I i atlas 13

La Raza Unida Vv. Volpe, 337 F. Supp. 221 (N.D.

Cal. 1971), aff'd, 488 F.2d 559 (9th Cir. 1973),

cert. denied, 417 U.S. 968 (1974) .........0000.. oe... 6, 12

Macht v. Skinner, 916 F.2d 13 (D.C. Cir. 1990) ..9, 12, 14

Maryland Conservation Couneil, Ine. Vv. Gilchrist,

808 F.2d 1089 (4th Cir. 1986) ..........000 12

Named Individual Members of San Antonio Con-

servation Soc’y v. Texas Highway Dep’t, 446

F.2d 1015 (5th Cir. 1971), cert. denied, 406

a a cele nleeibaaneiaas 13

Park Countu Resource Council, Ine. v. United

States Dep’t of Agriculture, 817 F.2d 609 (10th

I a a 9

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

1977), cert. denied, 434 U.S. 1008 (1978) ........ 13

Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.

1988) ...... Eka chsclenthebacedanddnGt eines ascaeaaioadatands Sinan tom Acticac 10

Cases—Continued Page

Weinberger v. Catholic Action of Hawaii/ Peace

Educ. Project, 454 U.S. 1389 (1981) 00.0.0... 9

Statutes and regulations:

Act of Aug. 9, 1975, Puk. L. No. 94-83, 89 Stat.

IE TAD AS a, ee oe Ce Me ae ee eee 4

Department of Transportation Act §4(f), 49

U.S.C. 303(f) ...... RE Ie eT 2, 8, 11, 12, 14

Federal-Aid Highway Act of 1968, 23 U.S.C. 138.. 2

Federal Water Pollution Control Act (Clean

Water Act, 33 U.S.C. 1251 et seq.) :

i I a rcsentianmeninoind 5

§ 404(b), 38 U.S.C. 1844 (b) ............ 8,14

National Environmental Policy Act of 1969, 42

I ceaneneebswiecinn 2

§ 102(2) (C), 42 U.S.C. 4832 (2) (C) -...000..... 2,9

§ 102(2) (D), 42 U.S.C. 4832 (2) (D) .........0...... 4

National Historic Preservation Act of 1966, 16

A I a ccininlisaaeenlonio 2

Ne Lk eo, | ena aera ON 8

a a cscemeneauctabek 6,8

23 C.F.R.:

Pt. 1, App. A, Policy and Proc. Mem. 20-8

| REET NEU Coe ARS ts WFR CRT 13

oo & eRe ea ti 13

Iu the Suprenw Court of the United States

OCTOBER TERM, 1990

No. 90-783

VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, ET AL.,

PETITIONERS

Vv.

R.H. BARNHART, ADMINISTRATOR

FEDERAL HIGHWAY ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

33a) is reported at 906 F.2d 1477. The district court

opinion (Pet. App. 36a-65a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on July 2, 1990. The court of appeals denied the pe-

tition for rehearing on August 22, 1990. The petition

for a writ of certiorari was filed on November 16,

(1)

1990. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

This case arises from a proposal by the City of

Albuquerque, known as the North Valley River cross-

ing project, to build new bridges over the Rio Grande

River in the northwest part of the city. Although the

Montano Bridge—the project component that is the

subject of this petition—is to be funded and built ex-

clusively by the City without any federal funds, Pet.

12, Pet. App. 5a-6a, petitioners nevertheless claim

that the bridge is a “major federal action” requiring

compliance by the Federal Highway Administration

(FHWA) with procedural obligations imposed by the

National Environmental Policy Act of 1969, 42 U.S.C.

4332 et seg. (NEPA),' the National Historic Preser-

vation Act of 1966, 16 U.S.C. 470 et seg. (NHPA),

and Section 4(f) of the Department of Transportation

Act, 49 U.S.C. 303 (f).*

1. In 1977, the local Urban Transportation Plan-

ning Policy Board (the Policy Board) began to study

alternative bridge sites in the area around the pro-

1 For example, Section 102(2) (C) of NEPA, 42 U.S.C. 4332

(2) (C), provides that all agencies of the federal government

shall prepare a detailed statement on the environmental con-

sequences of, and alternatives to, “proposals for legislation

and other major Federal actions significantly affecting the

quality of the human environment.”

2 Provisions in Section 4(f) of the Department of Trans-

portation Act, 49 U.S.C. 303(f), are identical to those con-

tained in the Federal-Aid Highway Act of 1968, 23 U.S.C.

i88. These provis:vns are commonly referred to as “Section

4(f),” and are cited as such by the plaintiffs in their com-

plaint. We will refer to the claims arising from these provi-

sions as the “Section 4(f)”’ issue.

posed Montano project, focussing on the engineering

feasibility of the alternatives and giving some con-

sideration to environmental effects. Although it was

determined early on in the project that no federal

funding would be used to build the bridges, see pp.

4-5, infra, the City and the State of New Mexico

decided to commence an environmental review process

in accordance with federal requirements.*

In 1979, the Policy Board initiated the preparation

of a full-scale Environmental Impact Statement

(EIS) of the North Valley River crossing project

with the State Highway Department serving as the

lead agency (DX 2 (Bower) at 16).‘ The Federal

8’ There were three reasons for the decision to proceed in

this manner. First, the City continued to hope that the fed-

eral government might create some “windfall” funding suit-

able for application to this project. Mathias Vol. 1, at 111;

DX 8 (Alonzo affidavit) at 2, °" 6, 7. In the unlikely event

that such a windfall did become available, continued compli-

ance with federal environmental review procedures would

place the State in the best position to receive funding. /d.

at 111-112, 116; DX 2 (Bower) at 89-90. Second, the City

and State had represented to the public that the bridge proj-

ects would be developed according to federal procedures.

Mathias Vol. 1, at 115-116; DX 2 (Bower) at 51-52; DX 10

(Hoover affidavit) at 2. Third, the City believed that com-

pliance with these procedures was a better way to develop

public projects. See DX 5 (Martin) at 29-30 (use of proce-

dures in compliance with federal requirements “leads to better

organization of project development”).

(Exhibits to the Defendants’ Motion for Summary Judg-

ment in the district court (Docs. 99-101) are cited as “DX,”

with a short description of the document and a page defer-

ence. Thus, “DX 2 (Bower) at 14” refers to Defendants’

Exhibit 2 to their Motion for Summary Judgment, which is

the Bower deposition, at page 14.)

*The 1975 amendments to NEPA permit state highway

agencies to prepare environmental impact statements, subject

Highway Administration (FHWA) provided techni-

cal advice and contributed $59,000 for expenses re-

lated to the preparation of the Environmental Impact

Statement. DX 8 (Alonzo affidavit) at 2; Pet. App.

5a.

The Federal Highway Administration approved

the Final Environmental Impact Statement on Sep-

tember 16, 1983, and, on January 23, 1984, issued a

Record of Decision for that approval. Federal in-

volvement ended at this point, however. After it be-

came clear that there were insufficient federal funds

for the bridge project and that devotion of federal

funds to the project would exhaust the state’s federal

highway money for years to come,’ the City of Al-

buquerque decided to finance the project exclusively

through general obligation bonds. Pet. App. 6a.°

to federal review and approval. 42 U.S.C. 4332(2) (D), added

in Act of Aug. 9, 1975, Pub. L. No. 94-83, 89 Stat. 424.

5 Together, the two proposed bridges were expected to cost

at least $50 million. The total annual allocation to New

Mexico of Urban System Funds—the only category of federal

funds available to finance the bridges—was $4 million. DX 2

(Bower) at 6.

* After the Final EIS was approved in 1983, the projects

were listed on the New Mexico State Highway Department’s

Five-Year Plan under the category of “Urban Relief Route—

Unfunded.” DX 2 (Bower) at 33. This category covered

projects that were planned for execution within the next five

years, but for which funding had not been identified. Jbid.

The State had no plans to commit federal funds to projects in

this category “and the people who were interested in those

projects clearly knew that.” Jd. at 34-35.

Ultimately, the Paseo del Norte Bridge, which opened in

December 1987, was constructed entirely with state and local

funds. To quell opposition to the Paseo del Norte project, the

State entered into an agreement and settlement with the peti-

tioners providing that the State would ‘“‘not provide any legal

The City proceeded to complete the design of the

bridge and to begin right-of-way acquisition without

any aid, assistance, or participation by the Federal

Highway Administration.‘

2. Petitioners filed suit in district court seeking a

declaration that the Montano Bridge project is a fed-

eral action that must comply with federai environ-

mental laws. Petitioners also sought an injunction

against the Federal Highway Administration’s fur-

ther participation in the project, and an order de-

claring the approval of the EIS by the FHWA to be

in violation of federal law. Pet. App. 38a-39a.

The federal defendants moved for summary judg-

ment, urging that the Montano Bridge (the only

project left in dispute after the settlement agreement

concerning the Paseo del Norte Bridge, see note 6,

supra) was not a federal project and that the

FHWA therefore could not provide the requested re-

lief. Finally, the FHWA argued that (1) petition-

ers lacked standing in failing to show how the feu-

eral government’s actions had harmed them, since

or technical advic-.” nor “participate in or provide assistance

to the development of” other proposed bridge crossings, in-

cluding the Montano River project. DX 11 (Settlement

Agreement) at 15. This agreement, signed in October 1985,

completely disabled the State from providing state funds for

the Montano Bridge Project and from seeking federal aid for

the project on behalf of the City. Jbid.

7 The City has, however, sought and received a Corps of

Engineers “dredge-and-fill” permit for the Montuno Bridge

pursuant to Section 404 of the Federal Water Poilution Con-

trol Act, 33 U.S.C. 1344. The Section 404 permit is the subject

of a separate action by petitioners against the Corps of Engi-

neers challenging the Corps’ compliance with NEPA and other

environmental statutes, which is now on appeal before the

Tenth Circuit. See Village of Los Ranchos de Albuquerque V.

Hatch, 10th Cir. Nos. 90-2026 & 90-2052. See note 12, infra.

the project was being built by the City alone and

(2) the suit was premature because the federal gov-

ernment’s approval of the EIS was not “final agency

action” subject to review under the Administrative

Procedure Act.

The district court rejected the government’s argu-

ments on standing and ripeness (Pet. App. 45a-49a),

but entered summary judgment for the federal de-

fendants. The court held that the project was local,

not federal, action, and that the FHWA therefore

had no duties under NEPA, the National Historic

Preservation Act of 1966, or the Department of

Transportation Act. Pet. App. 49a-59a; 63a-65a.”°

3. The court of appeals affirmed. Pet. App. la-

33a. Relying on the reasoning in Citizens for Bal-

anced Env’t & Transp., Inc. v. Volpe, 376 F. Supp.

806, 812-813 (D. Conn.), aff’d, 503 F.2d 601 (2d

Cir. 1974), cert. denied, 423 U.S. 870 (1975) [here-

inafter Citizens for Balanced Env’t], the court of

appeals concluded that mere eligibility for federal

funds does not create federal action sufficient to

trigger federal environmental obligations. Pet. App.

12a-15a. The court of appeals rejected the reason-

ing in La Raza Unida y. Volpe, 337 F. Supp. 221

(N.D. Cal. 1971), aff’d, 488 F.2d 559 (9th Cir.

1973), cert. denied, 417 U.S. 968 (1974), in which a

state agency that had taken preliminary steps to

keep open the option of federal funding was enjoined

8’ The court also held that the FHWA was not in violation

of Exec. Order No. 11,990, which requires the federal govern-

ment to minimize wetlands destruction, and that petitioners’

factual assertions were insufficient to establish that the cross-

ings project had been “improperly segmented” for NEPA

analysis from a federally funded highway widening project

several miles away. Pet. App. 59a-62a; see also Pet. App.

20a-26a.

from proceeding with a state-funded highway project

without complying with certain federal environ-

mental and relocation assistance requirements.

The court of appeals further rejected petitioners’

argument that certain actions by the FHWA in the

formative stages of the project—including the expen-

diture of $59,000 toward the $75,000 cost of the EIS

and approval of the EIS—rendered the project fed-

eral or constituted major federal action triggering ob-

ligations under NEPA and other federal environ-

mental statutes. Pet. App. 17a. The court noted that

the EIS on which federal funds were expended was

preliminary in nature, and that the amount expended

was insignificant in light of the $10.3 million esti-

mated cost of the entire project. The court further

explained (Pet. App. 16a-17a):

The fact that the state did voluntarily request a

federal EIS, though they were not legally bound

to do so, should not, without more, constrain the

state to make the entire project federal. Unless

the state is actually receiving or is planning to

receive federal funding for a project, mere prep-

aration and approval of an EIS is not ‘major of

eral action.’ * * * It would be anomalous indeed

to say that in a case such as this, where there is

no showing that the local defendants were in-

volved in a sham transaction to evade federal

environmental requirements, that the preparation

and approval of an EIS is a major federal action

for which an EIS must be prepared and approved.

The court of appeals characterized the role of the

FHWA in the project as, at most, “g[iving] advice

as to the location of the bridge.” The court con-

cluded that, absent some ability by the federal de-

fendants to control the outcome or direction of the

project, this was not enough to establish a “major

federal action.” Pet. App. 20a.

4. Petitioners filed a petition for rehearing. They

argued for the first time that the FHWA’s actions

should be classified as major federal action because

it was known “from the beginning” that it would be

necessary to obtain a dredge-and-fill permit from the

U.S. Army Corps of Engineers for the Montano

Bridge project pursuant to Section 404(b) of the

Clean Water Act. Reh’g Pet. 5, 9. The court denied

the petition for rehearing without opinion. Pet. App.

34a-35a.

® For essentially the same reasons underlying its NEPA

analysis, the court of appeals rejected petitioners’ claims that

the Montano bridge project was a “federally assisted under-

taking” requiring compliance with the National Historic Pres-

ervation Act of 1966, 16 U.S.C. 470(f) (Pet. App. 26a-28a),

and that it was a federal transportation project requiring

compliance with Section 4(f) of the Department of Trans-

portation Act. Pet. App. 28a-3la. The court also affirmed

the district court’s rejection of petitioners’ claims, not re-

newed in this Court, that the bridge project had been “im-

properly segmented” (Pet. App. 20a-26a), and that the fed-

eral government failed to comply with Exec. Order No. 11,990.

Pet. App. 3.a-33a.

ARGUMENT

Petitioners contend that the court of appeals’ de-

cision is in error because the court failed adequately

to consider “extensive federal involvement” in the

Montano Bridge project. Pet. i. The FHWA’s role,

however, was extremely limited and confined to only

the preliminary stages of the project. After the City

decided to proceed with the Montano Bridge project

using only local funds, federal involvement came to

an end. Because the Federal Highway Administra-

tion has no current role in the development and con-

struction of the Montano Bridge, there is no federal

action at all, much less major federal action that

triggers procedural obligations under NEPA.

1. The requirements established by NEPA apply

to any “major Federal actions significantly affecting

the quality of the human environment.” 42 U.S.C.

4332(2)(C). A number of courts have emphasized

that, for NEPA to apply, there must be action by a

federal entity. See Weinberger v. Catholic Action of

Hawaii/Peace Educ. Project, 454 U.S. 139, 143

(1981) (purpose of NEPA is “to inject environ-

mental considerations into the federal agency’s de-

cisionmaking process”) (emphasis added); Macht v.

Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990) (“NEPA

requires federal agencies—not states or private

parties—to consider the environmental impacts of

their proposed actions.”) (emphasis on last phrase

added); Park County Resource Council, Ine. vy.

United States Dep’t of Agriculture, 817 F.2d 609,

622 (10th Cir. 1987) (there is federal action requir-

ing environmental compliance if federal government

has “firm plans” to develop land); accord Citizens

for Responsible Area Growth vy. Adams, 680 F.2d

835, 839 (1st Cir. 1982).

In this case, the City of Albuquerque chose to pre-

pare a full-scale environmental impact study. Subse-

quent approval of that study by the FHWA had the

effect of temporarily keeping open the option of fed-

eral funding for the Montano Bridge, but the deci-

sion was made early in the project not to use federal!

funds. Where a project was originally treated as if

it might become a major federal action, but instead

becomes a purely local project before any environ-

mentally significant step is taken, NEPA does not,

and should not apply. As stated in the opinion for

the district court in Citizens for Balanced Env’t, 376

F. Supp. at 812 (which was adopted by the court of

appeals in that case, 503 F.2d at 601-602):

Solicitude for the environment cannot substitute

for legislation. Congress has not applied NEPA

to all highways that the states are eligible to fund

with federal dollars. * * * The State’s option to

use federal dollars, though open virtually until

the concrete is poured, is nonetheless an option,

and the State’s choice should not be restricted

simply because one alternative of the option (us-

ing state dollars) might result in less adequate

assessment of environmental considerations. If

the highway is not a federal action, then a state’s

decision to avoid federal involvement cannot have

the paradoxical effect of establishing federal in-

volvement.

Moreover, not only is it difficult to see why the

FHWA should be required to execute the Montano

Bridge project in a manner that complies with the

requirements of NEPA, it is also difficult to see how

it could do so. As the court of appeals observed (Pet.

App. 19a (quoting Sierra Club vy. Hodel, 848 F.2d

1068, 1089 (10th Cir. 1988))), “the distinguishing

feature of ‘federal’ involvement is the ability to in-

fluence or control the outcome in material respects.

The EIS process is supposed to inform the decision-

maker. This presupposes he has judgment to exer-

cise.” Because the FHWA did not provide any funds

for the actual construction of the Montano Bridge, it

lacks control over the execution of the project. Here,

the FHWA played, at most, a minor role in early

stages of the project, but has not exercised (and will

not exercise) any authority over the actual planning,

construction or financing of the Montano Bridge it-

self. As a practical matter, the FHWA simply does

not now have any “judgment to exercise.”

2. Petitioners err in asserting that the court of

appeals “arbitrarily removed from the scope of these

[environmental] statutes every state highway proj-

ect which had not, at the time it is challenged, re-

ceived federal funds for * * * construction or had

such funding approved.” Pet. 20-21. The court of

appeals did not hold that there is no obligation to

comply with NEPA for projects that eventually do

receive federal funds. Rather, the court of appeals

held, correctly in our view, that mere eligibility for

federal funding, without more, does not make a local

project federal. Pet. App. 10a-15a. And since the

preparation of an EIS is not in itself “major federal

action” sufficient to trigger NEPA, eligibility for

federal funding, even in combination with federal

approval of an EIS at a preliminary stage, is not

enough to establish federal action where the execu-

tion and financing of a project remains entirely un-

der local control.

3. The analysis under the other environmental

statutes cited by petitioners is similar. Procedural

obligations under the National Historie Preservation

Act of 1966 and Section 4(f) of the Department of

Transportation Act require a measure of ongoing fed-

eral involvement not present here. See Macht v. Skin-

ner, 916 F.2d at 15-16 n.4 (expenditure of federal

funds for preliminary planning and environmental

impact statements does not federalize an otherwise

locally funded project under NEPA or Section 4(f) ) ;

Maryland Conservation Council, Inc. v. Gilchrist, 808

F.2d 1039, 1043 (4th Cir. 1986) (federal funds for

preliminary planning was too small a portion of total

project cost to render, the project federal for Section

4(f) purposes).

4. Petitioners seek (Pet. 22-24 )to construct a cir-

cuit conflict between Citizens for Balanced Env’t, upon

which the court below relied, and the outdated and

factually distinct decision in La Raza Unida v. Volpe,

337 F. Supp. 221 (N.D. Cal. 1971), aff’d, 488 F.2d

559 (9th Cir. 1973), cert. denied, 417 U.S. 964

(1974). The supposed conflict between these cases,

however, has been presented to this Court before and

found unworthy of this Court’s consideration. See

Citizens for Balanced Env’t, cert. denied, 423 U.S.

870 (1975). As the government pointed out in its

brief in opposition to the petition for a writ of cer-

tiorari (at 4-5) in Citizens for Balanced Env’t, No.

75-255, La Raza Unida “was not decided under

NEPA,” nor did the La Raza court consider the issue

of major federal action under the current version of

any of the environmental statutes cited by petitioner

here. See La Raza Unida, 488 F.2d 559 (9th Cir.

1973) (listing statutory provisions at issue in that

case). Thus, although the La Raza court made state-

ments that appear to be at odds with the holdings in

this case and in Citizens for Balanced Env’t, there

is no real conflict among these decisions ’ because

10 Nor are the other cases cited by petitioners (Pet. 25-26)

the source of any conflict. In all of these cases, the projects

there have been important intervening changes in

federal environmental law since La Raza, and the

regulatory scheme on which the La Raza court based

its decision is no longer in effect."

3. Finally, petitioners seek this Court’s review of a

question not addressed by the court of appeals, which

was presented to that court for the first time in the pe-

tition for rehearing. Petitioners claim that the Mon-

tano Bridge project became a “major federal action”

triggering NEPA obligations on the part of the

FHWA very early in the planning phase when the

need for a Corp of Engineers Clean Water Act permit

for the project became manifest.

in question had either proceeded with federal approval and

funding through the design phase and to construction, or

the evidence showed that those funds were avoided in a

deliberate attempt to circumvent NEPA’s obligations. See

Named Individual Members of San Antonio Conservation

Soc’y Vv. Texas Highway Dep’t, 446 F.2d 1018, 1027 (5th Cir.

1971), cert. denied, 406 U.S. 933 (1972) (deliberate attempt

to circumvent NEPA by improperly segmenting project) ;

Scottsdale Mall v. Indiana, 549 F.2d 484, 489 (7th Cir. 1977),

cert. denied, 434 U.S. 1008 (1978) (project had proceeded

through design, preliminary engineering, and right of way

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

11, 16 (8th Cir. 1973) (no dispute that state seeking fed-

eral funding) ; City of Boston v. Volve, 464 F.2d 254, 256-

257 (1st Cir. 1972) (FAA allocated more than $1 million for

taxiway construction).

11 Since La Raza was decided 18 years ago, FHWA regula-

tions have eliminated the discrete actions of location and de-

sign approval that the La Raza court had used as triggers for

the obligation to comply with federal environmental obliga-

tions. The regulations now incorporate the procedures man-

dated by NEPA directly into the highway development proc-

ess. Compare 23 C.F.R. Pt. 1, App. A, Policy and Proc. Mem.

20-8 (1971) with 23 C.F.R. Pt. 771 (1984).

Petitioner’s contention must fail. Petitioners cite no

court of appeals or other decisions holding a federal

agency responsible for environmental compliance on

the basis of federal action by a completely unrelated

agency. Compare Macht v. Skinner, 916 F.2d at 18-

19 (Department of Transportation has no NEPA or

Section 4(f) obligations for local project, despite ul-

timate need for Corps of Engineers Section 404(b)

permit). As the lower courts found in this case, there

is no federal action by the FHWA that would obligate

that agency” to insure compliance with federal en-

vironmental standards. Pet. App. 20a, 55a. Without

such action, neither NEPA nor the other cited federal

environmental! statutes come into play.

Apart from the obvious flaws in this argument, re-

view of this issue is not warranted because it was not

properly raised in the court of appeals, and was there-

fore not addressed in the court of appeals’ decision.

12 Petitioners have prosecuted a separate action against the

only federal actor remaining, the Army Corps of Engineers,

alleging violations of NEPA, the Clean Water Act, and the

National Historic Preservation Act. Village of Los Ranchos de

Albuquerque Vv. Hatch, Nos. 90-2026 & 90-2052 (10th Cir.).

In that case, it is not disputed that issuance by the Corps of

a permit under the Clean Water Act is federal action within

the meaning of NEPA. The primary dispute centers on the

extent to which that federal action will significantly affect the

human environment. The district court concluded that the

Corps of Engineers fully complied with its procedural obliga-

tions under NEPA and granted summary judgment for the

government. That judgment is presently on appeal.

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.