Petition for Writ of Certiorari — Fugate v. Arlington Coalition on Transportation

Supreme Court brief1972

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ...

EN eae eee ee eee ee

JURISDICTION OF THE COURT ..........---..----c-scecceesesneeseseceeeesenencenenneenseses

QuesTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED ..............---c--00eecee-eee-eee

STATEMENT OF THE CASE

ARGUMENT:

A. Laches i aisciniianiniasinstasisitiieiiupitienbmpeiin nsintlaaisaigiins

B. Applicability of § 102 of NEPA and § 128(a) of Federal-Aid

Highway Act of 1968. 7

ConcLusION 19

CERTIFICATE OF SERVICE 19

TABLE OF CITATIONS

Cases

Arlington Coalition on Transportation v. Volpe, 332 F.Supp.

1218 (E.D. Va. 1971) 2

Arlington Coalition on Transportation v. Fugate, 458 F.2d 1323.

(4th Cir. 1972) 1, 13, 15

Citizens to Preserve Overton Park v. Volpe, 3 E.R.C, 1510 (W.D.

Tenn. January 5, 1972) .

Clark v. Volpe, 4 E.R.C. 1254 (E.D. La. 1972) 6

Concerned Citizens v. Volpe, 4 E.R.C. 1042 (3rd Cir. April

28, 1972) 12, 14

Conservation Society v. Volpe, 4 E.R.C. 1226 (D. Vt. June 2, 1972) 13

Elliot v. Volpe, 328 F.Supp. 831 (D. Mass. 1970) 6

Page

Environmental Law Fund v. Volpe, 3 E.R.C. 1941 (N.D. Cal.

March 22, 1972) 9, 14

Harrisburg Coalition v. Volpe, 330 F.Supp. 918 (M.D. Pa. 1971) 6

Keith v. Volpe, ...... E.R.C. ...... (C.D. Cal. July 7, 1972) .............. 15

Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971) 6

Nolop v. Volpe, 333 F.Supp. 1364 (S.D. S.D, 1971) -.........---....-.2.. 6

Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238

(M.D. Pa. 1970), aff'd. 454 F.2d 613 (3rd Cir. 1971) .............. 6

Road Review League v. Boyd, 270 F.Supp. 650 (S.D. N.Y. 1967) 6

San Francisco Tomorrow v. Romney, 4 E.R.C. 1065 (N.D. Cal.

April 25, 1972) 15

Ward v. Ackroyd, 4 E.R.C. 1209 (D. Md. June 8, 1972) .............. 14

Statutes

Federal-Aid Highway Act of 1958, § 128(a), 23 U.S.C. § 128(a) .. 2

Federal-Aid Highway Act of 1968, 23 U.S.C. § 101, et seq. ............ 3,7

Federal-Aid Highway Act of 1968, § 101(b), 23 U.S.C. § 101(b)....5, 6

Federal-Aid Highway Act of 1968 § 128(a), 23 U.S.C. § 128(a)

2, 11, 12, 13, 16, 19

Federal-Aid Highway Act of 1968 § 138, 23 U.S.C. § 138 ................ 4

28 U.S.C. § 1254(1) 2

National Environmental Policy Act of 1969, 42 U.S.C, § 4331,

et seq. 7, 9, 10, 11, 12, 13, 15, 18, 19

National Environmental Policy Act of 1969, § 102, 42 U.S.C.

§ 4332 2,4

Virginia Code (1950), as amended:

Section 33.1-90 16

Other Authorities

Department of Transportation Policy and Procedure Memorandum

20-8 10, 16

Council on Environmental Quality Guidelines [36 Fed. Reg. 7724

(1971) ] 11

Supreme Court of the United States

DOUGLAS B. FUGATE, Commissioner, DEPARTMENT

oF Hichways, CoMMONWEALTH OF VIRGINIA,

Petitioner,

ARLINGTON COALITION ON

TRANSPORTATION, er AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PRELIMINARY STATEMENT

Douglas B. Fugate, Commissioner, Department of High-

ways, Commonwealth of Virginia, prays that a writ of

certiorari issue to review the order of the United States

Court of Appeals for the Fourth Circuit entered on April 4,

1972, and modified on May 9, 1972.

OPINIONS BELOW

The opinion of the court below is reported at 458 F.2d

1323, and is included herein as Appendix A.

The order of the court below granting an injunction

pending appeal is included herein as Appendix B.

The opinion of the District Court for the Eastern District

of Virginia, Alexandria Division, is reported at 332 F.Supp.

1218, and is included herein as Appendix C.

JURISDICTION

The order of the Court of Appeals for the Fourth Circuit

was entered on April 4, 1972, and modified on May 9, 1972.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1). ”

QUESTIONS PRESENTED

1. Whether under the facts of this case the respondents’

claims are banned by the equitable doctrine of laches.

2. Whether under the facts of this case the Virginia State

Highway Commissioner should be required to comply with

the National Environmental Policy Act and conduct a new

location hearing for Arlington I-66 pursuant to § 128(a) of

the Federal-Aid Highway Act of 1968, where approval for

the location and design of the project was given prior to

the effective date of either act.

STATUTORY PROVISIONS INVOLVED

The statutory and regulatory provisions involved are set

forth in Appendix D and include the following:

(1) Section 128(a) of the Federal-Aid Highway Act of

1958, 23 U.S.C. § 128(a).

(2) Section 128(a) of the Federal-Aid Highway Act of

1968, 23 U.S.C. § 128(a).

(3) Section 102 of the National Environmental Policy

Act of 1969, 42 U.S.C. § 4332.

—

STATEMENT OF THE CASE

This is an appeal from an order granting a declaratory

judgment and injunctive relief against federal and state

officials concerning the proposed construction of a six-mile

section of interstate highway (hereinafter I-66) in Arlington

County, Virginia. This highway is a part of the Interstate

System of Highways authorized by 23 U.S.C. § 101, et. seq.

Pursuant to this statute the highway is constructed by the

States under a federal grant whereby 90% of the cost is paid

by the Federal Government and 10% by the States (Stip.

(1), App. 47). The section of I-66 in question, as planned,

is to be constructed in a corridor connecting I-495 and the

Theodore Roosevelt Bridge.

A public hearing was held in 1958 to consider a corridor

for the highway (Stip. (2), App. 48). The present location

was approved by the Bureau of Public Roads (predecessor

tothe Federal Highway Administration) in 1959 (Stip. (3),

App. 49). Right-of-way authorizations which commit

federal funds for right-of-way acquired pursuant to au-

thorization, were given for the entire length of the cor-

ridor between January 12, 1961 and January 11, 1965 (Stip.

(7)(a), App. 52). Design approvals were given for the

entire project between June 23, 1961 and August 7, 1968

(Stip. (9), App. 54).

Beginning in 1958 and continuing to the present there

has been extensive newspaper coverage in the locality of

the I-66 project, and the general route has been published

on many occasions since that date. The Arlington County

General Land Use Plan has shown the location of I-66 since

1961; and Arlington County’s planning with respect to

zoning, traffic, utilities, etc., has relied upon this location.

In addition numerous businesses have relocated in reliance

on the present location (Stip. (11) (d), App. 57).

As of January 31, 1971, more than 924 parcels of land

had been acquired in the corridor in question at a cost of

$28,670,123.07. In this corridor 94% of the 619 dwellings

have been acquired, only one of the 69 businesses remained

to be acquired, and 76% of the 628 families and 85% of the

80 businesses caused to be relocated have done so. The esti-

mated cost to complete the acquisition of right-of-way way

$5,329,876.93. In addition $1,500,000.00 for preliminary

engineering has been expended (Stip. (8), App. 54).

In February, 1971, the respondents filed suit in Federal

District Court for the Eastern District of Virginia, Alex-

andria Division, requesting that right-of-way acquisition

and construction with respect to I-66 be enjoined on the

bases, inter alia:

(1) an environmental impact statement should be filed

pursuant to § 102 of the National Environmental Policy Act

of 1969.

(2) a 4(f) statement should be filed pursuant to § 138

of the Federal-Aid Highway Act of 1968.

(3) a new location hearing is required to consider the

environmental effects of the entire project.

(4) a new location hearing is required to consider the

economic effects of the expansion of Routes 29-211.

The Commissioner denied all allegations and in addition

asserted the defenses of sovereign immunity, lack of federal

question and laches. The District Court found for the de-

fendants on the merits and dismissed the action.

An appeal was taken to the Court of Appeals for the

Fourth Circuit, raising all of the aforementioned issues. In

reversing and remanding the case the court found in favor

of the appellants-in-error as to the substantive issues and

against the Commissioner, both as to a lack of federal ques-

tion and laches. Inasm---ch as the Commissioner intends to

file an environmental impact statement and a 4(f) state-

ment and intends to conduct a hearing to consider the

economic effects of the expansion of Routes 29-211, these

issues are not before this Court. The Commissioner raises

~ only the questions of the requirement of a new location

hearing for the entire project to consider the environmental

effects and the denial of the claim of laches.

ARGUMENT

Laches

The court below in discussing the doctrine of laches found

the requisite elements for its invocation; however, it de-

clined to assert it against the appellants therein:

“Nevertheless, we decline to invoke laches against

appellants because of the public interest status accorded

ecology preservation by the Congress.” (App. 7)

In effect the court has declared that as a matter of law

laches cannot be a defense in ecology cases. We submit that

this is in error.

In declining to permit the defense of laches in an environ-

mental suit, the court has once again advanced the cause

of environmental protection at the expense of every other

Congressionally-declared public interest. Apart from an in-

terest in avoiding the inordinate expense and wastage of

road user funds, there is also a significant public interest

as expressed by Congress in the early completion of the

Interstate System of Highways. 23 U.S.C. § 101(b), pro-

vides:

“It is hereby declared to be in the national interest

to accelerate the construction of the Federal-Aid High-

way System, including the National System Of Inter-

state and Defense Highways, since many of such high-

ways, or portions thereof, are in fact inadequate to meet

the needs of local and interstate commerce for the

national and civil defense.

“It is hereby declared that the prompt and carly

of the National System of Interstate and

Defense Highways, so named because of its primary

importance to the national defense and hereinafter re-

ferred to as the “Interstate System’ is essential to the

national interest and is one of the most important

objectives of this Act... .”

The court, however, made no mention of these interests,

much less, gave to them any weight.

It is significant that no other court in the consideration

of a claim of laches has used this approach. In those cases

where the defense of laches has not been sustained, the

denial has been due to a finding that there was due diligence

in bringing the action or that there was not substantial preju-

dice to the defendant, or both. See Nolop v. Volpe, 333

F.Supp. 1364 (S.D. S.D. 1971); Harrisburg Coalition v.

Volpe, 330 F.Supp. 918 (M.D. Pa. 1971) ; Elliot v. Volpe,

328 F.Supp. 831 (D. Mass. 1970) ; Pennsylvania Environ-

mental Council v. Bartlett, 315 F.Supp. 238 (M.D. Pa.

1970), aff'd 454 F.2d 613 (3rd Cir. 1971) ; while two cases

involving the defense of laches in a claim pursuant to NEPA

have sustained the defense: Lathan v. Volpe, 455 F.2d

1111 (9th Cir. 1971) ; Clark v. Volpe, 4 ERC 1254 (ED.

La. 1972). See also, Road Review League v. Boyd, 270

F.Supp. 650 (S.D. N.Y. 1967).

In summary it is submitted that there was undue delay

on the part of respondents in bringing this action and that

the petitioner has suffered prejudice thereby. Accordingly,

this case should have been dismissed Pursuant to the equit-

able doctrine of laches.

Applicability Of § 102 Of NEPA And § 128(a) Of

Federal-Aid Highway Act of 1968.

i icy

Act (NEPA) and the amendments to the Federal-Aid High-

way Act of 1968 will be applicable to ongoing highway

projects, stated :

(1) “We believe that Arlington I-66 has not pro-

gressed to the point where the costs of altering or

abandoning the proposed route would certainly out-

weigh the benefits that might accrue therefrom to the

general public.” (App. 7-8) (Emphasis in the original. )

a “Ses (D)oubt about whether the critical stage

has been reached must be resolved in favor of ap-

plicability.” (App. 10)

It is respectfully submitted that the test adopted by the

court provides an uncertain and unworkable standard.

In adopting the “certainly outweigh” test, the court has

of the statute. By this approach, the court has apparently

intended to reject a rule of thumb in favor of a rule of

reason, assessing each case on its facts and determining from

those facts whether striking the balance in favor of ap-

Plication of the environmental Statutes, with the concomitant

delay and expense, would be appropriate. Petitioner respect-

fully submits, however, that by attempting to implement

this approach through the language previously quoted, the

court as a practical matter has been equally as arbitrary as

had they chosen to utilize cutoff dates. The court’s opinion

Wile have all of the steps al

cakes townsde commwustion of Adages 1&6 och

of the steps yet to be taken and have concluded that

this highway has not yet reached that state of com-

that cuts off application of Section 102(c).”

(App. 12) (Emphasis in original.)

No criteria are offered by the court for this conclusion; it

is impossible for States and federal agencies to assess other

projects with any measure of confidence to determine the

applicability of this decision. Indeed, the “I know it when

I see it” approach taken by the court can only result in

extensive and unnecessary litigation over every ongoing

project, resulting in delays which Congress certainly never in-

tended or envisioned in enacting the environmental statutes.

While money may be no object when natural resources are

at stake, it must not be forgotten that in many major on-

going projects, such as Arlington I-66, much more than mere

dollars are involved. A case such as this, where many

families have been uprooted and relocated, where county,

State, and private planning has relied on the completion

of the highway as proposed for 13 years, where the right-of-

way already purchased, unless utilized for transportation

purposes, cuts a naked and useless swath through an urban

area, requires more judicial explication than mere fiat of

the reasons for the court's ruling.

Furthermore, the “certainly outweigh” test by its own

terms indicates that its operation cannot result in any-

thing but another arbitrary cutoff point. Even without re-

solving all doubts in favor of applicability, the “costs” and

“benefits” referred to by the court are simply not susceptible

ee cetie

of measurement, especially when the costs must certainly

outweigh the benefits. It is a comparison between apples

no pollution is created through the use of electric engines?

Do the costs ever outweigh the benefits? Indeed, if they do

not in this case, where (as the court found) 93.9 percent

of all dwellings, 98.5 percent of all famili and 84.6 per-

be found in the recent case of Environmental Law Fund vy.

Volpe, 3 ERC 1941 (N.D. Cal. 3-22-72). In that case the

court stated, as did the court below, that NEPA was

Congress’ strongest statement of environmental policy and

that the courts must be diligent in the enforcement of its

provisions. The court noted, however, that the Council on

Environmental Quality in its Guidelines for the implementa-

tion of NEPA had recognized the need to distinguish between

new projects and projects already in progress as of January

1, 1970. These latter projects were to comply with the re-

quirements of NEPA only to the “maximum extent prac-

ticable” rather than to the “fullest extent possible.” The

next task was to decide when the maximum extent prac-

ticable required application to the particular highway proj-

ect. Clearly, said the court, if design approval had not been

granted by January 1, 1970, it was still practicable to require

compliance with NEPA as envisioned by PPM 20-8.’ Even

where design approval had been obtained prior to that

date, however, compliance might still be practicable depend-

ing on the facts of the case. In such situations, the court

recommended four factors to be considered :

(1) Community participation in the planning of the

project.

(2) The state’s consideration of environmental factors in

its own planning.

(3) The likely harm to the environment if the project is

constructed as planned.

(4) The cost of halting construction while the NEPA

statement is prepared and filed.

Petitioner believes that in the balance of these factors the

Court would reach a different conclusion than it did with

regard to Arlington I-66 but, even if it did not, the adop-

1 The court rendered no opinion as to projects approved between

January 1, 1970 and February 1, 1971. See note 12.

tion of this test would provide State and federal officials with

guidelines which could be applicd to other ongoing projects

instead of the visceral reaction effect of the “certainly out-

weigh” test. It is not important in terms of the facts of the

instant case whether an environmental impact statement is

required, in that one has already been prepared and circu-

lated in its draft form; and, indeed, the final draft was near

submission on the eve of the decision of the court below.

Such a requirement is important of course with respect to

providing a basis for a selection of future courses of action

by governmental agencies with respect to highway projects.

Even more significant is the court’s application of the

“certainly outweigh” test to Section 128(a) of the Federal-

Aid Highway Act of 1968 to require a relocation hearing

on Arlington I-66. The fallacies of this argument are that,

as pointed out supra, even the Council on Environmental

Quality, which is charged with the implementation of

NEPA, has not applied the “fullest extent possible” standard

to ongoing projects, but has applied the “maximum extent

practicable test.” Secondly, neither of those standards apply

to the public hearing provisions of § 128(a) of the Federal-

Aid Highway Act. By their terms, they apply only when a

NEPA statement must be filed, not when amendments to an

unrelated statute must be applicable to projects which had

consequences not fully evaluated at the outset of the project or

program.” 36 Fed. Reg. 7724 (1971).

complied with the original requirements of that statute prior

to the effective date of the amendment; yet, through some

curious juxtaposition of NEPA and the Federal-Aid High-

way Act of 1968, the court required a retroactive applica-

tion of the provisions of the latter act on the basis of language

found in the former.’ In other words, the Court here decides

not just whether NEPA should be applied retroactively but

whether § 128(a), and all other new statutes or regulations

for that matter, should be applied retroactively, and it uses

the same “certainly outweigh” test, without any objective

standards, resulting in the uncertainties hereinbefore men-

tioned. The court below further stated that there was no

retroactive application of the statutes in question. It is

respectfully submitted, however, that for the court on the

one hand to require the petitioner to conduct another hear-

ing when the previous hearing admittedly was lawful at

the time it was held* and on the other hand to assert that it

is simply applying NEPA to the facts as they exist today, is

to engage in semantic sophistry. There can be no doubt that

NEPA and § 128(a) are being retroactively applied.

Other courts have recently considered the question of the

retroactivity of NEPA and reached a variety of results. The

only recent decision by a circuit court is Concerned Citizens

v. Volpe, 4 ERC 1042 (3rd Cir., April 28, 1972). In that

case the plaintiffs sought to have a highway enjoined for

failure to comply with NEPA and § 128(a) of the Federal-

Aid Highway Act of 1968. Both location and design ap-

proval were given prior to the effective date of either of

the acts. In refusing to retroactively apply these acts to an

ongoing federal project, the court stated:

“Plaintiffs next contend that the defendants failed to

comply with the public hearing provisions of § 128(a)

of Title 23, as construed by Policy & Procedure Memo-

randum (PPM) 20.8 issued by the Department of

Transportation, 23 C.F.R., Part I, App. A (1972).

These provisions were discussed at length in this court’s

opinion in Wildlife Preserves, Inc. v. Volpe, 443 F.2d

1273 [2 ERC 1094] (1971). And, as was there recog-

nized, they do not apply retroactively to projects which

received federal design approval prior to passage of

either provision. Id. at 1274. The effective date of

§ 128(a) of the FAHA is August 23, 1968. Id. PPM

20.8 became effective on January 29, 1969. Pennsy]-

vania Environ. Council, Inc. v. Bartlett, _..... lem

[3 ERC 1421] (No. 19453, filed December 1, 1971).

The district court found that final design approval oc-

curred in this case no later than 1967. And the record

clearly supports this finding. Therefore, we agree with

the trial court’s ultimate conclusion that § 128(a) of

the FAHA and PPM 20.8 were not here applicable.”

4 ERC 1044.

Thus, the standard for a determination of retroactive ap-

plication of NEPA and the Federal-Aid Highway Act of

1968 in the Third Circuit is in direct conflict with that de-

lineated in the instant case in the Fourth Circuit. A case

illustrating the difference is Conservation Societ y Vv. Volpe,

# ERC 1226 (D.C. Vt., June 2, 1972). In that case the

court rejected the “broad view” (ACT) advocated by the

< m RAO Ra

plaintiffs and the “narrow view” (Concerned Citizens,

supra) offered by the defendants in favor of the guidelines

as suggested by the Environmental Law Fund case, supra.

Another case in which a preference for the Environmental

Law Fund approach was favored is Ward v. Ackroyd, 4

ERC 1209 (D.C. Md., June 8, 1972) ; however, the court

was bound by the decision in the instant case. In adopting

the “certainly outweigh” test the court observed:

“While bound by the test, I respectfully must dis-

agree with the test established by the Fourth Circuit

in Arlington Coalition for determining when a project

has reached the critical stage of completion beyond

which the revisions to 23 U.S.C. § 128(a) do not apply.

Without remanding the case for a factual determina-

tion, the Fourth Circuit panel in Arlington Coalition de-

termined on unknown facts by unknown criteria that

‘the cost of altering or abandoning the proposed loca-

tion would not certainly outweigh whatever benefits

might be derived therefrom,’ Such a standard is vague,

subjective and extremely difficult to apply unless it

means that the costs of changing would never outweigh

the benefits of changing. In this case, the problem of

application of the standard has been alleviated some-

what because of the great factual similarity of the rele-

vant circumstances here with those in Arlington Coali-

tion. If anything, I-66 had progressed substantially

further toward completion than has Segment 9 of

I-70N. If, as the Fourth Circuit has held, NEPA re-

quires application of revised § 128(a) to a project

which has passed the point at which old § 128(a) used

to apply but which has not yet reached the ‘critical

stage of completion,’ this court believes that standards

of the type set forth in Environmental Law Fund v.

Volpe, 3 ERC 1941 (N.D. Cal., decided March 22,

1972) are more appropriate for that determination.”

4 ERC 1224-1225, n. 71.

This represents an eloquent expression of the erroneous

holding of the instant case.

Other cases which have considered the retroactivity of

NEPA issue and which have adopted various standards are:

Keith v. Volpe ...... ERC ...... (C.D. Cal., July 7, 1972) (the

standards are essentially those of ACT, but there is more

emphasis on design approval as a significant factor) ; San

Francisco Tomorrow v. Romney, 4 ERC 1065 (N.D. Cal.,

April 25, 1972) (the court appears to base a decision as to

the retroactivity of NEPA to an urban renewal project on

whether there have been significant design changes subse-

quent to January 1, 1970, the effective date of NEPA) ;

Citizens to Preserve Overton Park v. Volpe, 3 ERC 1510

(W.D. Tenn., January 5, 1972) (NEPA was held to be in-

applicable because the approval of location occurred prior

to the effective date of the act, notwithstanding that a 4(f)

submission was required.) Thus, it_is manifest that there is

a need for this Court to provide a definitive standard in this

very complex and controversial area of the law.

The reasons this particular holding is of great significance

to the State are several. Firstly, as stated previously the

precedential effect of this holding has momentous implica-

tions for other ongoing projects. Secondly, as to Arlington

I-66, the requirements of compliance with NEPA and

§4(f) are not unduly burdensome as these statements have

been prepared and submitted, while the requirement of a

new public hearing not only creates additional delay and

expense” but may place the State in difficulty under Virginia

law which requires that Property acquired for highway

* Present estimates are that a new hearing is at least a year away,

and the cost of the study by independent consultants will be in the

neighborhood of five to seven hundred thousand dollars. These costs

are exclusive of the ultimate additional expenses due to inflation, both

as to land values and construction éosts.

construction must be resold to its original owner if not so

used within 12 years. Va. Code Ann. § 33.1-90.° Thirdly,

the requirement of a new public hearing raises the specter

of further protracted litigation of a kind in which the State

would be at a decided disadvantage, since if the current plan

is not abandoned, opponents of the highway are certain to

claim that objective consideration was not given to alterna-

tive routes due to the massive investment in the current

location. Furthermore, the court’s opinion is unclear whether

a new design hearing must be held as well as a location hear-

ing, and opponents of the highway are once again certain to

assert that retroactive application of § 128(a) demands

retroactive application of the two-hearing requirement of

PPM 20-8 as well.

In order to justify a decision to order a new location hear-

ing with attendant costs of seven to eight hundred thousand

dollars exclusive of inflation costs, it would appear that_at

a minimum there should exist a reasonable possibility of

substantial alteration in the project as presently planned as

a result of such study and hearing. The court below justified

its requirement for a new location hearing on the premise

that I-66 might not now be needed in light of the proposed

rapid rail service to the Rosslyn area, which service was not

considered at the time of the 1958 hearing (App. 28).

Several observations appear to be in order:

1. As the court noted, the rail service in part is scheduled

to be located in the I-66 median. If such median is not

available, rapid rail service may never be constructed.

2. The court assumes that rapid transit could alleviate

the need for a highway. Yet, there is absolutely no evidence,

* This section was amended effective July 1, 1972, to exempt from

its operation highways delayed by litigation. Whether this amendment

can lawfully relate to property already acquired, as in I-66, remains

to be decided.

including the traffic studies offered as exhibits by the re-

spondents to support this, In fact all of the affirmative

evidence supports the need for a highway in addition to the

rapid transit. It is not enough to say that rapid transit was

not considered. There should also be some evidence to show

rapid rail transit could replace the highway. There has been

none and there can be none,

The respondents recognized this. It is for this reason that

they used a “scatter gun” approach to arguing the need for

a new location hearing. They apparently hoped that lack

of quality as to their individual arguments with respect to

changes in population, traffic patterns and job locations, as

well as unforeseen rapid transit, could be overcome through

the sheer quantity of those arguments. Yet, the court below

seized upon one of these elements and elevated it to a level

greatly disproportionate to its merit. In fact the plan of

rapid transit is a concomitant, not an alternate, mode of

transportation with respect to the traffic facilities here in

question.

3. While it is true that rapid transit was not considered

in 1959, at the time the location of I-66 was approved, as

early as 1962, a consideration of such service had begun

(Stip. (23) (d), App. 63). It cannot be doubted that there

has been reevaluation over a period of ten years by the

appropriate agencies of a need for I-66 in light of rapid

transit. In fact there was no need for a new hearing with

respect to rapid transit because no information was available

to indicate that such service could meet the traffic needs of

the area. As Previously stated all of the evidence affirma-

tively showed that, indeed, the highway was needed, as well.

Assuming, therefore, that the highway is needed, it is

almost inconceivable that there could be a substantial altera-

tion of the present location. Apart from the economics in-

volved, environmental considerations alone would dictate

that a virtually undeveloped corridor be utilized for high-

way purposes, rather than displacing hundreds of families

and businesses elsewhere in the area.

While it is true that the “monitoring” of the traffic needs

of the area is not the same as holding public hearings to

solicit the opinions of affected persons, it is submitted that

the existence of monitoring is an important fact in the

determination whether there is a likelihood of change in

present plans as a result of a new study. Given the absence

of evidence to support the argument that either (1) the

highway is not needed, or (2) that there is a preferable

location, one can only conclude that the likelihood of a sub-

stantial change with respect to the present plans for the

project even after the expenditure of seven to eight hundred

thousand dollars for the study is extremely slight. It is sub-

mitted therefore that not only do the costs of abandonment

of this project exceed the potential benefits; indeed, the costs

of a restudy of the project do so.

In summary, it is submitted that Congress simply did not

intend this type of protracted litigation over the minutiae

of ongoing projects, and that Congress did not intend, in its

understandable concern for future damage to the environ-

ment, to give disgruntled landowners ammunition to end-

lessly delay sorely needed projects which had complied with

the laws and regulations as they existed at the time of their

planning, and whose planners could not have been expected

to foresee the continually expanding requirements imposed

by judicial decisions under the National Environmetal Policy

Act. This Court should not permit a “certainly outweigh”

test to be used to further such delays. On the contrary, it

should recognize the needs of all the citizens, including legi-

mate environmentalists, and adopt a test for the application

of these statutes that takes into consideration the complex

EWALD I PHATE ALINE AT) TOILE TIME OED

realities of life as well as the hypothetical theories of en-

vironmental crisis.

CONCLUSION

Petitioner submits that the decision below should be re-

viewed in that it adopts an unworkable standard with respect

to the applicability to the federal highway program of the

National Environmental Policy Act of 1969 and the Federal-

Aid Highway Act of 1968, resulting in serious consequences

to the nationwide program in general and to the Common-

wealth of Virginia in particular. Such decision is also in

conflict with those of many other jurisdictions, including the

Court of Appeals for the Third Circuit.

Respectfully submitted,

ANDREW P. MILLER

Attorney General

Stuart H. Dunn

VANN H. LeEFcor

Assistant Attorneys General

Supreme Court-State Library Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Andrew P. Miller, Attorney General of Virginia, a

member of the Bar of the Supreme Court of the United

States and one of counsel for the State Highway Com-

missioner of Virginia, hereby certify that on this the 7th

day of August, 1972, three copies of the foregoing Petition

For A Writ Of Certiorari were served upon counsel of

record herein by depositing the same in the United States

Post Office, first class postage prepaid to Lawrence J. Latto,

Esq., 734 15th Street, N.W., Washington, D. C. 20005,

Robert S. Lynch, Esq., Department of Justice, Room 2344,

Ninth and Pennsylvania Avenue, Washington, D. C. 20530,

Charles McDonnell Radigan, Esq., 1415 N. Courthouse

Road, Arlington, Virginia 22201, Arthur B. Vieregg, Jr.,

Esq., Post Office Box 547, Fairfax, Virginia 22030, James

Tate, Esq., Assistant U.S. Attorney, Post Office Building,

Alexandria, Virginia 22313 and Robert Funicello, Esq., 1346

Connecticut Avenue, N.W., Washington, D. C. 20036.

Anprew P. MILLer

Attorney General

~ i i tee

FitiktD

AUS 7 S72

“WICHREL RODTK, /R.CLERK

+° FILE COPY

,»

y IAPPENDIX|

Supreme Court of the United States

“F2- 215

DOUGLAS B. FUGATE, Commissioner, DEPARTMENT

or Hichways, ComMMONWEALTH OF VIRGINIA,

Petitioner,

ARLINGTON COALITION ON

TRANSPORTATION, er at.

Respondents.

Anprew P. Miter

Attorney General of Virginia

Stuart H. Dunn

Vann H. Lercor

Assistant Attorne ys General

Supreme Court-State Library Building

Richmond, Virginia 23219

oo ine!

TABLE OF CONTENTS

Page

Appendix A

Opinion of the United States Court of Appeals for the Fourth

Circuit 1

Order—Entered May 9, 1972 28

Appendix B

Order—Entered November 24, 1971 29

Appendix C

Memorandum Opinion—Entered October 8, 1971 _................ 30

Order—Entered October 8, 1971 43

Appendix D(1)

Federal-Aid Highway Act of 1958 _ 43

Appendix D(2)

Federal-Aid Highway Act of 1968 .. 44

Appendix D(3)

National Environmental Policy Act of 1969 44

Appendix E

Stipulation as to Facts—Filed June 9, 1971 47

APPENDIX A

Opinion of the United States Court of Appeals for the Fourth Circuit

Decided April 4, 1972

* * *

Craven, Circuit Judge:

This is an ecology case. It is the declared public policy of

the United States to protect and preserve the national en-

vironment “to the fullest extent possible.” National Environ-

mental Policy Act of 1969, 42 U.S.C.A. § 4332 (NEPA).

The NEPA is a value judgment by the Congress that in

order to “foster and promote the general welfare” each

generation of Americans must, beginning now, act “as

trustee of the environment for succeeding generations.” 42

U.S.C.A. § 4331. We hold that even essential highway con-

struction must yield to the congressionally structured pri-

ority.

Appellants are individuals who live in Arlington and own

land in the path of the proposed highway, and associations

whose objectives are the preservation of environmental and

community values and the development of a sound transpor-

tation system in the Washington metropolitan area. Appel-

lees are the Secretary of the United States Department of

Transportation, the Commissioner of the Virginia Depart-

ment of Highways, and their agents. Intervening appellees

are the Arlington and Fairfax Counties Chambers of Com-

merce. Appellants filed suit in February 1971, seeking a

declaration that in the planning of the segment of Interstate

Route 66 (I-66) scheduled to run through Arlington County,

Virginia, appellees violated certain federal statutes, and an

injunction restraining appellees from proceeding with the

planning and construction of this part of I-66. The district

court refused relief and this appeal resulted.

On November 24, 1971, we granted appellants’ request

App. 2

for an injunction pending appeal. State appellee Fugate

and his agents were enjoined “from condemning additional

land for . . . Interstate-66 located in Arlington County, Vir-

ginia, and from requiring the appellants . . . to vacate their

properties in the county.” Federal appellee Volpe and his

agents were enjoined “from approving, pursuant to 23

U.S.C. § 106(a), plans, surveys, specifications and estimates

for . . . Interstate-66 located in Arlington County, Virginia.”

We conclude that the federal statutes invoked by appel-

lants are applicable to Arlington I-66 and must be com-

plied with before further steps may be taken towards con-

struction of this highway. Compliance means not only

reconsideration of the proposed location of Arlington I-66

in the light of environmental, social, and economic policies

set forth in the statutes; it means also suspension of work

on Arlington I-66 pending this reconsideration. Further in-

vestment of resources by appellees in the proposed route

would render alteration or abandonment of the proposed

route increasingly costly and, therefore, increasingly unwise.

If appellees were thus allowed to limit their options during

their reconsideration of the location of Arlington I-66, re-

consideration would be a hollow gesture. See Calvert Chffs

Coordinating Committee, Inc. v. Atomic Energy Commis-

sion, 449 F.2d 1109, 1128 (D.C. Cir. 1971). We reverse the

decision of the district court and remand this case for entry

of an order enjoining further steps towards the construction

and acquisition of right-of-way for Arlington I-66 pending

reconsideration of the proposed location of this highway in

accordance with the applicable statutes. Upon entry of such

order, our injunction of November 24, 1971, will expire.

I. Factual Background

Interstate-66 is scheduled to extend from I-81, near Stras-

burg, Virginia, over 75 miles to the Potomac River in Arl-

App. 3

ington County. The section in controversy begins at the

Arlington County line, after the highway has passed through

Fairfax County from the Washington Beltway, and ends at

the Theodore Roosevelt Bridge. For the route of I-66

through Arlington, appellees intend to use 9.6 acres of Bon

Air Park and about 5 acres of Spout Run Parkway. Bon Air

Park is a tract of land acquired by Arlington County for

park and highway purposes and presently used for a park.

Spout Run Parkway is a park owned by the federal govern-

ment and administered by the National Park Service. It is

planned that I-66 will be connected in Spout Run Parkway

to another proposed interstate highway, I-266, with a bridge

to be constructed across the Potomac at a point called

“Three Sisters.” Whether and where I-266 and the Three

Sisters Bridge should be built have been the subject of con-

siderable public controversy and litigation. See D.C. Fed-

eration of Civil Associations v. Volpe, 434 F.2d 436 (D.C.

Cir. 1970) ; D.C. Federation of Civic Associations v. Volpe,

F.2d... (D.C. Cir. 1971). If the proposed 1-266

route to the Three Sisters Bridge is built, the 31.6 acres of

Spout Run Parkway will be conveyed to the Virginia De-

partment of Highways in exchange for funds to acquire the

same number of acres along George Washington Parkway,

and 13.97 acres of Spout Run Parkway will be used for I-

266. After emerging from Spout Run Parkway, I-66 is

scheduled to converge with Lee Highway for about one mile

until it reaches the Potomac. Lee Highway, currently a

three-to-four-lane road, will be separated at this point by

the six lanes of I-66 into four eastbound lanes south of I-66

and four westbound lanes north of I-66, so that for about

one mile there will be a fourteen-lane road.

Before a highway may be constructed with 90 percent

federal funds as a part of the Federal Interstate System, the

FLATT EMG EN ot EPPO GT GETHIN

App. 4

procedure set out by the Federal-Aid Highway Act, 23

U.S.C.A. § 101 et seq., must be followed. First, a route must

be selected by the highway department of a state ‘and ap.

proved by the Secretary of Transportation. 23 U.S.C.A.

§ 103(d) (1) & (e). Next, the state highway department

must submit to the Secretary for his approval a “program

. .. of proposed projects” that the state wishes to construct

with its portion of the funds appropriated for highway con-

struction. 23 U.S.C.A. § 105(a). Then, the state highway

department must submit to the Secretary for approval “such

surveys, plans, specifications, and estimates for each pro-

posed project included in an approved program as the Secre-

tary may require.” 23 U.S.C.A. § 106(a). This is known as

“P.S.&E. approval.” As.a prerequisite to P.S.&E. approval

for each “project,” the state highway department must cer-

tify to the Secretary that it has held public hearings on the

location for each project and must submit a transcript of

the hearings to the Secretary. 23 U.S.C.A. § 128. Following

P.S.&E. approval, project agreements covering construction

and maintenance are entered into between the Secretary and

the state highway department. 23 U.S.C.A. § 110. Adver-

tisements for bids may then be published and construction

contracts awarded. Finally, the highway is constructed under

the supervision of the state highway department. 23

U‘S.C.A. §§ 112, 114.

The next step towards the construction of the Arlington

County “project” of I-66 appears to be P.S.&E. approval.

The public hearing relating to the location of this project

was held in October 1958. In February 1959, the Virginia

State Highway Commission chose the Fairfax-Bluemont

Drive corridor as the location for Arlington I-66, and their

recommendation was approved by the Federal Bureau of

Public Roads in June 1959. This process was given extensive

_—

newspaper coverage. The route selected has been shown in

the Arlington County General Land Use Plan since 1961.

_ Arlington County has relied upon the proposed route in its

zoning, traffic, and utilities location planning, and numerous

| businesses have located near the proposed route. By January

11, 1965, acquisition of the right-of-way for the entire Arl-

ington I-66 project had been approved, and by July 28,

1966, acquisition-of-right-of-way agreements between the

state highway department and the Secretary had been

entered into for the entire project. In the proposed corridor,

93.9 percent of all dwellings have been acquired; 98.5 per-

cent of all businesses have been acquired ; 75.6 percent of all

families have been relocated; 84.6 percent of all businesses

have been relocated ; and 84.4 percent of all necessary right-

of-way has been acquired. The cost of these acquisitions, for

which the state has been reimbursed pursuant to the acqui-

sition agreements, was $28,670,123.07. The estimated cost

to complete the acquisition of right-of-way is $5,329,876.93.

The Commonwealth of Virginia has expended $1,500,000

in preliminary engineering which will not be reimbursed by

the federal government. In short, most planning and pre-

liminary work has been done. Most of what remains to be

done is actual construction, which has scarcely begun: a

0.298-mile approach to the Theodore Roosevelt Bridge, mis-

cellaneous construction work on the bridge, and a 10-foot-

by-10-foot box culvert under Lee Highway near Kirkwood

Road. A series of on-site inspections of the Arlington I-66

route was conducted between 1961 and 1968 by state and

federal officials. During these inspections, plans for the de-

sign of the highway were compared with actual conditions

for the purpose of finalizing plans to be submitted to the

Secretary for approval.

App. 5

«’

S Py

App. 6

Il. Jurisdiction and Laches .

Before turning to appellants’ claims, we dispose of two

obstacles put in their path by appellees. First, Appellee

Fugate, Commissioner of the Virginia Department of High-

ways, Claims that he is not subject to federal jurisdiction. Be-

cause the challenged activities of his department—condem-

nation of right-of-way and eviction of the landowners—are

authorized by state law and could be carried out inde-

pendently of the Arlington I-66 project, he claims that no

federal question exists with respect to these activities. 28

U.S.C.A. § 1331(a). We disagree, because these activities

would not in fact be independent of this project. See Named

Individual Members of the San Antonio Conservation So-

ciety v. Texas Highway Department, 446 F.2d 1013, 1028

(5th Cir. 1971); Morningside-Lenox Park Association v.

Volpe, 334 F. Supp. 132, 146 (N.D. Ga. 1971). Appellee

Fugate does not suggest that the Commonwealth of Virginia

no longer seeks to build this highway with federal funds. If

we were to find—as we do—that federal law requires that

the proposed route for Arlington I-66 be reconsidered, ac-

quisition by the state of right-of-way along the proposed

route during the reconsideration would make proceeding

with the proposed route increasingly easier and, therefore,

a decision to alter or abandon the route increasingly undesir-

able. Thus the challenged activities of the state highway

department would make a sham of the reconsideration re-

quired by federal law.* Action of a state highway depart-

ment, challenged because furthering a project that under

federal law allegedly must be reconsidered, is a matter in

controversey arising under the laws of the United States. Fed-

1In Ely v. Velde, F.2d .... (4th Cir. 1971), the court declined

to enjoin state officials from proceeding with a federally funded proiect

covered by the NEPA. In that case, however, the problem of the effect

of the state’s action on federal law was not before the court.

YORE TTA RT MEE IEE LE LIN MIM VE MRALRREA A SPE AAT TARE IS

App. 7

eral jurisdiction over such state actions is essential to preserve

federal question jurisdiction in the application of federal

statutes. It is a form of pendant jurisdiction, but based upon

necessity rather than convenience and limited to preventing

emasculation of remedy clearly available against the federal

respondents.

Secondly, appellees claim that appellants’ suit should be

barred by laches. Appellees as representatives of the general

public and specific interest groups will be prejudiced by ap-

pellants’ delay in bringing suit if the proposed route for Arl-

ington I-66 is altered or abandoned. Most of the right-of-way

for the proposed route has been acquired; Arlington

County’s planning with respect to zoning, traffic, and loca-

tion of utilities has been based upon the route; and the loca-

tion of numerous businesses has been chasen in reliance upon

the route. Appellants could have brought suit earlier to

minimize or avoid this harm; all of the relevant statutes

were in effect by January 1, 1970, but appellants did not file

suit until February 19, 1971. Nevertheless, we decline to in-

voke laches against appellants because of the public interest

status accorded ecology preservation by the Congress. We

*In Lathan v. Volpe, F.2d (9th Cir. 1971), the court held

that laches precluded a challenge to the validity of a hearing on the

location of an interstate highway. The hearing in that case was chal-

lenged because it was allegedly procedurally defective. In our case

appellants complain because no hearing was held on certain, effects

of the proposed route for Arlington I-66. See Part V. The public,

we think has a greater interest in the outcome of the present suit.

Furthermore, there is no indication in Lathan that the public’s stake

in the suit was considered at all. In Triangle Improvement Council

v. Ritchie, 314 F. Supp. 20 (S.D.W.Va. 1969), aff'd 429 F.2d 423

(4th Cir. 1970) (per curiam decision), cert. dismissed, 402 U.S. 497

(1971), laches was held to bar a suit challenging the validity of a

hearing on the location of a highway. The basis of the complaint is

not stated in the opinion. The court believed that the complaint was

without merit, however, and presumably concluded that the public

interest would not be served by the suit. As discussed in Part V, we

believe that the complaint in our case is valid.

App. 8

believe that Arlington 1-66 has nor*progressed to the pom

where the costs of altering or abandoning the proposed route

therefrom to the general public. In their reconsideration of

the proposed route, the Secretary of Transportation and the

Commissioner of the Virginia Department of Highways may

decide, of course, that the costs do outweigh the benefits. If

the opposite conclusion is a reasonable possibility, however,

as it is here, the congressional declaration of policy in the

relevant statutes of the importance of the benefits that might

accrue demands that the merits of the question be con-

sidered by the appropriate agencies.

Ti. Section 102 of the National Environmental Policy Act of 1969

We hold that the federal appellees must file and consider

an environmental impact statement in accordance with Sec-

tion 102(C) of the National Enviromental Policy Act of

1969 (42 U.S.C. § 4332(C) ) before taking further steps to-

wards the construction of Arlington I-66. Section 102(C)

reads as follows:

—

App. 9

(ii) amy adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local 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

4 action should it be imo! ,

Prior to i detailed statement, the responsi-

Ate Poderal Odsal hell cna enann St sumpend

comments of any Federal agency which has juris-

diction by law or sep rane with vexpect to any

environmental impact i ved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are au-

thorized to develop and enforce environmental stan-

dards, shall be made available to the President, the

Council on Environmental Quality and to the public

as provided by section 552 of Title 5, and shall ac-

review processes ;

It is undisputed that prior to the filing of this suit no Sec-

tion 102(C) statement had been prepared for the project in

question. It is also uncontested that this six-to-cight-lane

highway is a “major Federal action significantly affecting

- the quality of the human environment.” Appelices claim,

however, that Section 102(C) is not applicable to Arlington

1-66 because this project was in progress prior to January

1, 1970, the effective date of the Act. Arlington 1-66, how-

ever, was and is a project ongoing after the effective date of

the Act. We believe that applying Section 102 to Arlington

1-66 would not violate the rule invoked in Brool-s v. Volpe,

App. 10

319 F. Supp. 90 (W.D. Wash. 1970), that a statute does not

have retroactive effect absent a clear indication that Con-

gress so intended. For reasons subsequently stated, we think

applying Section 102(C) to this highway would simply not

be a retroactive application of the Act. See Named Indi-

vidual Members of the San Antonio Conservation Society,

supra at 1025.

Doubtless Congress did not intend that all projects on-

going at the effective date of the Act be subject to the re-

quirements of Section 102. At some stage of progress, the

costs of altering or abandoning the project could so definitely

outweigh whatever benefits that might accrue therefrom

that it might no longer be “possible” to change the project

in accordance with Section 102. At some stage, federal action

may be so “complete” that applying the Act could be con-

sidered a “retroactive” application not intended by the Con-

gress. The congressional command that the Act be complied

with “to the fullest extent possible” means, we believe, that

an ongoing project was intended to be subject to Section

102 until it has reached that stage of completion, and that

doubt about whether the critical stage has been reached

must be resolved in favor of applicability.

We must stress as forcefully as that this lan-

guage does not provide an hatch for footdrag-

ging agencies; it does not make ‘A's procedural re-

somehow “ 1 ” Congress did

requirements discretionary.

not intend the Act to be such a paper tiger. Indeed. the

ype of environmental consideration “to the

extent possible” sets a high standard for the

agencies, a standard which must be rigorously enforced

by the reviewing courts.

Calvert Clifs’ Coordinating Committee, supra at 1114. See

also Ely v. Velde, ... F.2d _.... (4th Cir. 1971) ; Morning-

—_

App. 11

side-Lenox Park Association, supra; Environmental Defense

Fund, Inc. v. Corps of Engineers, 324 F. Supp. 878 (D.D.C.

1971). The cases refusing to apply Section 102(C) “retro-

actively” to projects ongoing at the effective date of the

work which had into this

and planning costs, but to have it completed is on

orderly manner

The only duty remaining on the Secretary after Novem.

ber 20, 1969 was to make a final inspection of the proj-

ect after construction. 23 U.S.C. 117(c). For all prac-

tical purposes, therefore, final action on the

App. 12

In Elliot v. Volpe, 328 F. Supp. 831 (D. Mass. 1971), con-

struction contracts had been awarded and actual construc-

tion had begun.

We cannot, of course, define for all cases the point of com-

pletion beyond which Section 102(C) is no longer applic-

able. We are certain, however, that Arlington 1-66 has not

yet.reached that point: P.S.&E. approval has not been given,

construction contracts have not been awarded, and actual

construction on the highway itself has not begun.

Appellees claim that the district court correctly held that

Section 102(C) is not applicable to Arlington I-66 because

design approval for this project was obtained on January

21, 1971. Section 5 of the Federal Highway Administra-

tion Instructional Memorandum of November 30, 1970,

states that an environmental study is not mandatory for

projects obtaining design approval before February 1, 1971.

We have held that Section 102(C) is applicable to a project

until it has reached the state of completion where the costs

of abandoning or altering the proposed route would clearly

outweigh the benefits therefrom. In light of the “to the

fullest extent possible” language, we have compared all of

the steps already taken towards construction of Arlington

1-66 with all of the steps yet to be taken and have concluded

that this highway has not yet reached that stage of comple-

tion that cuts off application of Section 102(C). Manifestly

the date of design approval alone does not accurately meas-

ure whether Arlington I-66 has reached the crucial stage,

and determining the applicability of Section 102(C) by this

standard alone would be arbitrary and capricious agency

action and an abuse of administrative discretion. Adminis-

trative Procedure Act, 5 U.S.C.A. § 706(2(A).

The district court suggested and appellees assert that Sec-

tion 102(C) is not applicable to highways. We disagree. In

"so spel aaa a a OPER SET TT ‘

- ; Sue - =

App. 13

the introduction to this section Congress demands that “pub-

lic laws of the United States shall be interpreted and ad-

ministered in accordance with the policies set forth” and that

“all agencies of the Federal Government” shall comply with

the requirements of the statute. Without a doubt the De-

partment of Transportation was intended to be included

within this sweeping language. See Named Individual Mem-

bers of the San Antonio Conservation Society, supra at 1024.

We read the cases relied upon by the district court and dis-

cussed above to mean that the refusals to apply the National

Environmental Policy Act were occasioned not by a “high-

way” label but because construction had reached an ad-

" vanced stage of completion. Pennsylvania Environmental

Council, Inc., supra; Elliot, supra; Brooks, supra.

Finally, the district court held and appellees claim that

the question whether Section 102(C.) must be complied with

is moot because the Secretary has agreed voluntarily to file

an environmental impact statement. We disagree. Filing a

report without suspension of work on Arlington I-66 until the

report has been considered by the Secretary is not the sort

of compliance that is likely to change the result. Section

102(C) contemplates not only that a report be compiled but

also that the Secretary take into account the information

contained therein in determining the final location and de-

sign of a highway. \ oe

This statute does not limit the authority of any govern-

mental agency in any permanent or conclusive manner.

It does, however, contain a mandate that action can be

taken only following complete awareness on the part

of the actor of the environmental consequences of his

action and following his having taken the steps required

by the Act.

National Helium Corporation vy. Morton, P26 ......

App. 14

(10th Cir. 1971). We are led to this conclusion by language

in Section 102(C)—e.g., “proposed action,” “should the pro-

posal be implemented,” “alternatives to the proposed ac-

tion” —and the congressional intention to actually affect and

preserve the environment, expressed in the declaration of

policy in the Act (42 U.S.C.A. § 4331) :

(a) The Congress, recognizing the profound impact

of man’s activity on the interrelations of all

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

grams, and resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation

as trustee of the environment for succeeding genera-

tions;

PA REI TE GES

App. 15

(2) assure for all Americans safe, healthful, pro-

ductive, and esthetically and culturally pleasing sur-

roundings;

(3) attain the widest range of beneficial uses of

the environment without degradation, risk to health

or safety, or other undesirable and unintended con-

sequences ;

(4) preserve important historic, cultural, and

natural aspects of our national heritage, and main-

tain, wherever possible, an environment which sup-

ports diversity and variety of individual choice;

(5) achieve a balance between population and re-

source use which will permit high standards of living

and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

enjoy a healthful environment and that each person has

a responsibility to contribute to the preservation and

enhancement of the environment.

When the Secretary decides whether the proposed route

for Arlington I-66 should be altered or abandoned because

of information contained in the environmental report, he

may, of course, take into account previous investment in the

proposed route. Morningside-Lenox Park Association, supra

at 145. Further investment of time, effort, or money in the

proposed route would make alteration or abandonment of

the route increasingly less wise and, therefore, increasingly

unlikely. If investment in the proposed route were to con-

tinue prior to and during the Secretary’s consideration of

the environmental report, the options open to the Secretary

App. 16

would diminish, and at some point his consideration would

become a meaningless formality.

Given the purpose of NEPA to insure that actions by

federal agencies be taken with due consideration of

environmental effects and with a minimum of such ad-

verse effects, it is especially important with regard to

federal-aid highway projects that the § 102(2) (C)

statement be prepared early. If defendants’ contention

were accepted—that no environmental impact state-

ment is required until the final approval state—then it

could well be too late to adjust the formulated plans so

as to minimize adverse environmental effects.

Once the highway-planning process has reached

these latter stages, flexibility in selecting alternative

plans has to a large extent been lost. To paraphrase the

District of Columbia Circuit, “In the language of

NEPA, there is likely to be an ‘irreversible and ir-

retrievable commitment of resources,’ which will in-

evitably restrict the [highway officials’] options. Either

the [highway planners] will have to undergo a major

expense in making alterations in a completed [plan] or

the environmental harm will have to be tolerated. It is

all too probable that the latter result would come to

pass.” [Calvert Cliffs’ Coordinating Committee, supra

at 1128.]

Lathan v. Volpe, ...... F.2d ......, .....- (9th Cir. 1971).

We hold that appellants are entitled to an injunction

against any and all further work on Arlington I-66 pending

preparation and consideration of the environmental report.

IV. Section 138 of the Federal-Aid Highway Act of 1968 and

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

We conclude that before further steps are taken towards

the actual use of Spout Run Parkway and Bon Air Park for

the route of Arlington I-66, federal appellees must ascertain

PETA IE OEE RTO SS ae RE

App. 17

that there is “no feasible and prudent alternative” to the use

of these parklands and that the project includes “all possible

planning to minimize harm” to the parklands, in accordance

with Section 138 of the Federal-Aid Highway Act of 1968

(23 U.S.C.A. § 138), and Section 4(f) of the Department

of Transportation Act of 1966 (49 U.S.C.A. § 1653(f). The

language of these sections is virtually identical and reads

(49 U.S.C.A. § 1653(f) ) as follows:

(f) It is hereby declared to be the national policy

that special effort should be made to preserve the natu-

ral beauty of the countryside and public park and

recreation lands, wildlife and waterfowl refuges, and

historic sites. The Secretary of Transportation shall co-

operate and consult with the Secretaries of the Interior,

Housing and Urban Development, and Agriculture, and

with the States in developing transportation plans and

programs that include measures to maintain or enhance

the natural beauty of the lands traversed. After August

23, 1968, the Secretary shall not approve any program

or project which requires the use of any publicly owned

land from a public park, recreation area, or wildlife

and waterfowl refuge or national, state, or local signifi-

cance as determined by the Federal, State, or local of-

ficials having jurisdiction thereof, or any land from an

historic site of national, State, or local significance as

so determined by such officials unless (1) there is no

feasible and prudent alternative to the use of such land,

and (2) such program includes all possible planning to

minimize harm to such park, recreational area, wildlife

and waterfowl refuge, or historic site resulting from

such use.

It is undisputed that Sections 138 and 4(f) have not been

complied with. Appellees claim, however, that these sections

are not applicable to the use of Bon Air and Spout Run

parks because these parks are part of a project “approved”

App. 18

before August 23, 1968, the effective date of the Acts. Even .-.

if date of approval were the criterion for the applicability of

these sections to projects ongoing at the effective date of the

Acts, these sections would be applicable to Arlington I-66

because the Secretary’s “approval” is necessary at several

remaining stages of this project: the Secretary must “ap-

prove” the surveys, plans, specifications, and estimates for

the project, 23 U.S.C.A. § 106; the Secretary must “ap-

prove” each construction contract awarded, 23 U.S.C.A.

§ 112(c) & (d); and construction will be “subject to the

inspection and approval of the Secretary,” 23 U.S.C.A.

§ 114. See Named Individual Members of the San Antonio

Conservation Society, supra at 1025 n. 23, in which the

court applied these sections to a highway which had been

“approved” both before and after the effective date of the

Acts. Date of approval, however, is not the criterion for ap-

plicability, because according to this criterion every project

being built with federal funds would be subject to these sec-

tions since the Secretary’s “approval” extends through con-

struction. We agree with the district court that Congress

did not intend that all projects ongoing at the effective date

of the Acts be subject to these sections. At some stage short

of completion the costs already incurred in a project could

so outweigh the possible benefits of altering or abandoning

the proposed route to avoid using parkland or to minimize

harm from the use that because of the stage of progress

alone “no feasible and prudent alternative to the use” would

*Bon Air Park is located in the I-66-1(43)73 project segment;

authorization for the acquisition of this segment occurred on June 28,

1962, and the agreement for acquisition of this right-of-way was en-

tered into on July 28, 1966. Spout Run Parkway is located in the

1-66-1(35) 75 project segment; acquisition authorization occurred on

March 8, 1962, and the right-of-way acquisition agreement was entered

into on January 28, 1963.

_—

App. 19.

-+ exist and “all possible planning to minimize harm” would

have been done. We disagree with the district court, how-

ever, that because these sections are not applicable to some

ongoing projects they are not applicable to all ongoing proj-

ects. Congress has declared through Sections 138 and 4(f)

that conservation of parkland is of the utmost primary im-

portance. Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402 (1971). Congress has also directed in Section 102

of the National Environmental Policy Act (42 U.S.C.A.

§ 4332) that “to the fullest extent possible . . . public laws

of the United States shall be interpreted and administered

in accordance with the policies” set forth in the declaration

of policy of the Act (42 U.S.C.A. § 4331 ), quoted above in

Part III. We are compelled, therefore, to conclude that

these sections are applicable to a project until it has reached

that stage of progress where the costs of altering or aban-

‘doning the proposed route would certainly outweigh what-

ever benefits might accrue therefrom, and that doubts about

whether this stage has been reached must be resolved in

favor of applicability. Arlington I-66 has not yet reached

that stage of completion. The parklands have not been ac-

quired, P.S.&E. approval has not been given, construction

contracts have not been awarded, and construction on the

highway itself has not begun. The court in the San Antonio

case emphasized the date of approval as the factor de-

termining applicability of these sections. The holding: in that

case is not inconsistent with ours, however, because these

sections, we think, would have been applied to the highway

in that case under our standard: P.S.&E. approval had not

been given for the use of the park in question, construction

contracts for the portion of the highway to run through the

park had not been awarded, and construction of the portion

to run through the park had not begun. In Wildlife Pre-

CHI ey eee

App. 20

serves, Inc. v. Volpe, 443 F.2d 1273 (3rd Cir. 1971), the

court declined to apply Sections 138 and 4(f) retroactively

to a highway ongoing at the effective date of the Acts. The

factor determining applicability in that case, we believe, was

the stage of completion of the highway; construction con-

tracts had been awarded and construction had begun. As

suggested above in Part III, a project might be so nearly

complete that applying these sections to it could be termed

“retroactive” application.

The district court adopted appellees’ contention that Sec-

tions 138 and 4(f) are not applicable to the use of Bon Air

Park and Spout Run Parkway because these parks have not

been determined “significant” by the federal or local of-

ficials having jurisdiction thereof. Furthermore, the court

viewed the willingness of both local and federal officials to

use these parks for highway right-of-way as a determination

that these parks are insignificant. Because “the very exist-

ence of [these sections] indicates that protection of parkland

was to be given paramount importance,” Citizens to Pre-

serve Overton Park, supra at 412-13, we must interpret these

sections to mean that land used as a public park is presumed

“significant” unless explicitly determined otherwise, in a

manner envisioned by these sections, by the appropriate

federal or local officials. There is no such determination

before us with respect to Bon Air and Spout Run parks.’

We conclude, therefore, that these parks are “significant”

and protected by Sections 138 and 4(f). In the “signifi-

cance” determination envisioned by Sections 138 and 4 f°.

the desirability of using the particular parkland in question

as a highway must be ignored and only the value of the park

* Additionally, the plan to replace Spout Run Parkway with other

parkland in the same vicinity indicates to us that Spout Run 1s er-

nificant as a park.

App. 21

as a park can be considered. See Named Individual Mem-

bers of the San Antonio Conservation Society, supra at 1026.

Were this not so, land valuable to the community as a park

could be used for a highway even though “feasible and pru-

dent alternatives” existed because federal or state officials

had decided that using the park for highway purposes was

desirable according to criteria other than whether such al-

ternatives existed, the only criterion allowed by the Acts.

For this reason, the choice by federal and local officials to

use Bon Air and Spout Run parks for Arlington 1-66 stand-

ing alone is not a determination that these parks are not

“significant” as parks.*

Finally appellees claim that the question whether they

must comply with Sections 138 and 4/f) is moot because

they have agreed to comply voluntarily. We disagree because

voluntary compliance alone does not give appellants full re-

lief. In the first place, as discussed above in Part ITT, suspen-

sion of work on Arlington 1-66 is necessary if the Secretary's

determination under Sections 138 and 4 f is to be mean-

ingful; continuing investment in the project at its present

state of development would render alternatives to use of the

parks less feasible and prudent. In the second place. the

Secretary's determination with respect to Spout Run Park-

way will be meaningful only if made after it is known with

reasonable assurance whether the proposed 1-266 and Three

Sisters Bridge project will be built and. if ©. where the

bridge will be located. Pursuant to an order of the Circunt

*We have been adviesd ty cone that subweguenn te the dere

Courts open. on January & 1972 the Arie Csounm Beast

adopted the following statement “The Arhmeion Ciuwrm Bound dhe

Cares specfealh that Bon Aor and Sprout Room quaridiamds ae of smeamew

Semhrance te Arhinetem and are more ee ee

mrad neght of way ~ Qur demon worth wesnert am the swmife-cerce

of these parklands does met descend aoe thie erecting

——— a

App. 22

Court of the District of Columbia, the Secretary is now in

the process of reexamining the proposed location for the

1-266 project. D.C. Federation of Civic Associations vy.

Volpe, F.2d (1971). Although the district court's

finding that “(t)he Three Sisters Bridge is not a part of

1-66—ncither is the proposed connecting road, 1-266” is not

clearly erroneous, it failed to consider the relationship be-

tween the projects. If the I-266 project is not built at all or

if the location of the bridge is changed, it is apparent that

avoiding Spout Run Parkway for the use of I-66 will be

more feasible and prudent because present plans call for

1-266 to connect with I-66 in this park.* In order to specify

the appropriate time for the reconsideration of the proposed

use of Spout Run Parkway, we must first decide the thres-

hold question of whether reconsideration is required at all.

V. Section 128(a) of the Federal-Aid Highway Act of 1968

We conclude that before further steps may be taken to-

wards the construction of Arlington I-66, the state appellees

must hold a public location hearing in accordance with Sec-

tion 128(a) of the Federal-Aid Highway Act of 1968 (23

U.S.C.A. § 128(a)).” When the 1958 public hearing on

* Appellants claim that continuing with the 1-66 project in the face

of the uncertain status of the Three Sisters Bridge is in itself arbitrary

and capricious action on the part of the Secretary. Consideration of

this claim is unnecessary because our order that the Sections 138 and

4(f) determination must be made after the Three Sisters Bridge dis-

te has been resolved, coupled with our injunction of further work on

1.66 -66 until the determination is made, gives appellants the same relief—

injunction until the dispute is settled—that they request under this

claim.

* We agree with the district court that Arlington I-66 is excluded

from the hearing requirements of the Federal Highway Administra-

tion's Policy and Procedure Memorandum 20-8, 23 C.F.R. Part 1,

Appendix A. Section 6(d), which contains the guidelines for projects

on which a hearing has been held before January 14, 1969, applies

only to projects which have not received location approval.

SR ERT Rh wee Y= . Tomer my

_—

App. 23

We think that the requirements added to Section 128 (a)

apply to a highway ongoing at the effective date of the

cies” set forth in the declaration of policy of the Act (42

U.S.C.A. § 4331), quoted in Part III above. As we have

concluded in Parts III and IV above, Arlington I-66 has

not yet reached the critical stage of completion. It is dis-

tinguishable, therefore, from those highways actually under

construction to which Section 128(a) as amended was held

inapplicable. Wildlife Preserves, Inc., supra; Elliot, supra.

Our case is distinguishable also from Triangle Improvement

een

App. 24

Council v. Ritchie, 314 F. Supp. 20 (S.D.W.Va. 1969),

aff'd 429 F.2d 423 (4th Cir. 1970) (per curiam decision),

cert. dismissed, 402 U.S. 497 (1971), in which the effect of

the National Environmental Policy Act upon the hearing

requirement of Section 128(a) was not considered.

Furthermore, we think that the new hearing on the loca-

tion of Arlington 1-66 must not only seek information about

the social effects of the proposed location, its impact on the

environment, and its consistency with the community's urban

planning goals, but also must seek information about the

economic effects of the location in light of the proposed

rapid rail service to the Rosslyn area. One line of the pro-

posed Washington Metro will run along the same route as

Arlington I-66 to Rosslyn. At the time of the 1958 hearing,

this development was not anticipated." From today’s vantage

point, the economic effects of Arlington 1-66 might be sig-

nificantly different than projected in 1958—rapid rail serv-

ice might better satisfy the needs of this area than would

1-66. Moreover, Arlington I-66 has not yet reached the stage

of completion where alternation or abandonment of the pro-

posed route is impossible. We are certain that Congress in-

tended that if there is a reasonable possibility that a mistake

has been made in the planning of a project as expensive, dis-

ruptive, and permanent as a highway, and if that project

can still be altered or abandoned, the project must be held

in abeyance pending determination of whether a mistake

has in fact been made. We cannot accept the district court's

decision that a new hearing on the economic effects of Arl-

ington I-66 is unnecessary because “the transportation needs

* Although rapid rail service in the Washington metropolitan area

was being planned in 1958, a line in the general area of Arlington 1-66

was not planned. See National Capital Planning Commission, Trans-

portation Plan for the National Capital Region (1959) .

I ON PT ,

App. 25

of the area have been monitored over the years by the many

agencies responsible therefor—and the officials charged by

law for selecting the location for I-66 have reaffirmed their

choice on numerous occasions up to the present time.” Sec-

tion 128(a) requires that included in the information con-

sidered in evaluating the economic effects of a highway

must be information obtained at a public hearing. Study by

experts is not the equivalent of a public hearing, and con-

tinuing evaluation of the economic effects of Arlington 1-66

based only on such study is, therefore, not consideration

within the meaning of the statute.”

Appellants claim also that a new public hearing must be

held on the economic effects of the juncture of Arlington

1-66 with Lee Highway. At the time of the 1958 hearing, the

plan to divide and expand Lee Highway apparently had not

been formulated and, therefore, was not considered. We

agree with appellants that because a fourteen-lane highway

might have significantly different economic effects than a

six-to-eight-lane highway in tse same location, the 1958

hearing cannot be considered to have taken into account the

economic effects of the highway as planned. As discussed

above, since the proposed route can still be altered or aban-

= ; = ; , :;

ee ae the number of jobs available in

suburbs has increased more rapidly than the number

available in the District, that businesses have located in substantial

economic effects of Arlington 1-66 would be different than expected

was .

that changes in the highway system within the city of Washington were

not so unforeseeable as to require a new hearing.

App. 26

doned in response to information obtained from a hearing,

we think that a hearing in addition to the 1958 hearing must

be held on this portion of the highway. We believe, however,

that the hearing held to consider the design of the portion

of 1-66 including Lee Highway on September 29, 1970, and

continued on December 7, 8, and 9, 1970, satisfies the re-

quirements of Section 128(a). Although Section 128(a) re-

quires a hearing only on the “location” of a proposed high-

way, the regulations of the Department of Transportation

require a hearing on the “design” of a highway as well. Fed-

eral Highway Administration, Policy and Procedure Memo-

randum 20-8, § 6, 23 C.F.R., Part 1, Appendix A. This, we

think, is recognition by the Secretary that the effects of a

highway’s location depend not only on the corridor of a

highway but also on what type of highway will occupy the

corridor. Since the economic effects of the Lee Highway

section of Arlington I-66 might be substantially different

than expected in 1958 because of the design of this portion,

a hearing on the design alone of this portion is sufficient.””

Section 128(a) contemplates that information gathered

from a public hearing be “considered” by the state -highway

department in fixing the location of a highway. As discussed

above, reconsideration of the location of Arlington I-66 will

be meaningful only if further expenditure of time and effort

in the present route is suspended. Therefore, the progress of

Section 128(b) of the Act because a tape recording of the 1958 hear-

ing rather than a written record was submitted to the Secretary. Sub-

sequent to the 1958 hearing, the Department adopted regulations per-

Highs only written records of the Section 128(a) hearing. Federal

Administration, Policy and Procedure Memorandum 20-8,

§ ac) y (1), 23 C. F. R., Part 1, Appendix A. We agree with the dis-

trict court that a tape recording i is the functional equivalent of a written

transcript and that even were it not, the Secretary's regulations should

not be given retroactive effect.

WSO FRET PT IA PR EEO ,

App. 27

the present route must be enjoined pending certification by

the state highway department to the Secretary that a new

public hearing has been held (or that the opportunity for

such a hearing has been afforded) to obtain the information

required by the 1968 amendments and that the reconsidera-

tion of this information and the information obtained at the

design hearing on the Lee Highway portion of Arlington

I-66 has been accomplished.

VI. Relief

In summary, we hold that further acquisition of right-of-

way and construction of Arlington I-66 must be enjoined

until federal appellees have

(1) filed and considered an environmental impact

statement, in accordance with Section 102(C) of the

National Environmental Policy Act, and,

(2) ascertained that there is “no feasible and prudent

alternative” to the use of Bon Air Park and Spout Run

Parkway (the determination with respect to Spout Run

Parkway to be made after the resolution of the Three

Sisters Bridge controversy) and that the project in-

cludes “all possible planning to minimize harm” to these

parklands, in accordance with Section 138 of the Fed-

eral-Aid Highway Act and Section 4(f) of the Depart-

ment of Transportation Act,

and until state appellees have certified to the Secretary that

a new public hearing has been held (or that opportunity

for such hearing has been afforded )

(1) to obtain information about the social effects of

the proposed location, its impact on the environment,

and its consistency with the community’s urban plan-

ning goals, and .

App. 28

(2) to obtain information about the economic effects

of the proposed location in light of the planned rapid

transit service to Rosslyn,

and that the information obtained from this hearing and

the hearing upon the design of the Lee Highway portion of

Arlington I-66 have been considered, in accordance with

Section 128(a) as amended of the Federal-Aid Highway

Act.

On remand the district court will enter an appropriate

judgment granting injunctive and such other relief as may

be necessary.

Reversed and Remanded.

* * *

ORDER

Entered May 9, 1972

On petition to rehear we modify our prior opinion to de-

lete (page 40, slip opinion) the requirement that federal

appellees shall not proceed until after Three Sisters Bridge

is finally located or finally abandoned.

Whether Three Sisters Bridge will be built and where it

will be located are factors that cannot be ignored in deciding

what to do about I-66 and I-266. But our judgment shall not

be construed to prevent simultaneous consideration of all

three inter-related propects and their probable impact on

each other.

s/ J. Braxton Craven, Jr.

United States Circuit Judge

App. 29

APPENDIX B

ORDER

Entered November 24, 1971

The appellants, plaintiffs below, seek an in junction pend-

ing their appeal from an order of the district court denying

their prayer for an injunction against construction of that

portion of the federal interstate highway designated as

Interstate-66 located in Arlington County, Virginia.

Without considering all of the issues pressed by the appel-

lants, it is sufficient to say that the record raises substantial

question about the legality of constructing a section of the

highway through a national park and the legality of pro-

ceeding without the environmental impact statement re-

quired by law.

Therefore, with the concurrence of Judge Craven and

Judge Russell, it is ADJUDGED AND ORDERED that

Douglas B. Fugate, Commissioner, Virginia Department of

Highways, and his officers, agents, employees, and attorneys,

and those persons in active concert or participation with

them who receive notice of this order are enjoined and re-

strained from condemning additional land for that portion

of the federal interstate highway designated as Interstate-66

located in Arlington County, Virginia, and from requiring

the appellants, Vera Koehler, Harold D. McCoy and Eliza-

beth Snedden to vacate their properties in the county.

It is further ADJUDGED AND ORDERED that John

A. Volpe, Secretary of Transportation, his officers, agents,

employees, and attorneys, and those persons in active con-

cert or participation with them who receive notice of this

order are enjoined and restrained from approving, pursuant

to 23 U.S.C. § 106(a), plans, surveys, specifications and

estimates for that portion of the federal interstate highway

App. 30

designated as Interstate-66 located in Arlington County,

Virginia.

This injunction shall remain in full force and effect pend-

ing the appeal of this case, or until further order of the

court; provided that the appellants, or someone in their be-

half, shall post bond in the penalty of $100.00, conditioned

as the law directs.

John D. Butzner, Jr.

United States Circuit Judge

* * *

APPENDIX C

MEMORANDUM OPINION

Entered October 8, 1971

The plaintiffs want this Court to stop further construction

of I-66 through Arlington County. The defendants and in-

tervenors insist that this interstate highway be completed

without further delay.

The plaintiffs are four residents of Arlington owning land

in the corridor selected for the highway and two unincorpo-

rated associations interested in the preservation of environ-

mental and community values, including sound transporta-

tion planning in Arlington County.

They contend that a new location or corridor public hear-

ing must be held before further action can be taken in re

the planning and construction of the highway—first, be-

cause state authorities failed to submit a transcript of the

1958 public hearing to the Secretary of Transportation prior

to federal approval as required by 23 U.S.C. § 128—second,

because the 1958 hearing in any event was outdated due to

the passage of time—and third, because the 1968 amend-

ment of § 128 requires consideration of the economic and

Ns Seem ee) ta nea a le , PUT

—

social effect of the highway’s location and its impact on the

environment.

The plaintiffs also contend that the 1958 hearing is in-

sufficient to permit the use of I-66 funds for the planning,

relocation and construction of a Portion of Lee Highway

(US 29-211) in that this item was then neither mentioned

or discussed—and that the Secretary of Transportation is

in clear violation of § 138 of the Federal Highway Act, 23

U.S.C. § 138, and 4(f) of the Department of Transporta-

tion Act, 49 U.S.C. § 1653(f), both of which provide that

the Secretary shall not approve any program or project

that contemplates the use of any public park unless he has

| determined that (1) there is no feasible and prudent al-

| ternative for the use of such land, and (2) such program

includes all possible planning to minimize harm to the

park.

Lastly, the plaintiffs say the Secretary of Transportation

has violated § 102 of the National Environmental Policy

Act, 42 U.S.C. § 4332(c), by failing to require the filing

of an environmental impact statement before permitting

further completion of I-66 after the effective date of the

Act.

The defendants are the Secretary of Transportation and

the Division Engineer of the Federal Highway Administra-

tion, and the Commissioner of the Virginia Department of

Highways and the Recorder of Deeds of Arlington County,

Virginia. (The latter has been dismissed as a party de-

fendant.) The intervenors are the Arlington County Cham-

ber of Commerce and the Fairfax County Chamber of

Commerce.

The defendants insist that the Congress of the United

States has entrusted to their discretion the desirability and

necessity for the construction of I-66 and that their exercise

App. 31

App. 32

of this discretion is not subject to review, absent arbitrary

and capricious action. They do not-question judicial review

of their administrative actions subject to the provisions of

the Administrative Procedure Act, 5 U.S.C. § 701, et seq.

—They further say they have fully complied with all fed-

eral and state statutes requisite to the location and construc-

tion of I-66.

The Commissioner of the Virginia Department of High-

ways asserts the additional defense of sovereign immunity

under the Eleventh Amendment of the Constitution of the

United States.

The intervenors say their respective counties have re-

aligned their highway systems and have predicated much

of their business and industrial zoning in reliance upon the

building of I-66. Further, that millions of dollars of public

and private money has been spent on both private and pub-

lic developments, much of which will be seriously impaired

or lost if the completion of the highway is either unduly

delayed or abandoned.

Both claim laches on the part of the plaintiffs in not

timely filing this suit.

This case was heard and decided upon the well prepared

stipulation of facts and exhibits and agreed issues of law,

all of which have been filed herein and made a part hereof—

and upon the briefs and argument of counsel.

A brief summary of the stipulated facts and history of the

development of I-66 discloses that it is a part of the forty-

one thousand mile system of highways authorized by Con-

gress in 1956, 23 U.S.C. § 103(e). The highways are built

through Federal-State cooperation—the Federal govern-

ment, ninety per cent of the cost; the State, ten per cent—

Actual construction is undertaken by the State with prior

Federal approval of the successive steps required to com-

plete the project.

_—

App. 33

I-66 connects Washington, D. C., with I-81, a major

inland north-south route running through the Shenandoah

Valley—and provides major arterial service along the cor-

ridor through northern Fairfax and Arlington Counties and

to the center of the District of Columbia.

The building of an interstate highway begins with the

inclusion of the route on the interstate system, which places

a route on a map connecting points without specification of

the place on the ground where the road will be built.

Next, the corridor for the highway is chosen by the State.

There is are no established limits to the width of the cor-

ridor—anything from five hundred yards to a half mile—

Corridor approval by the Federal highway officials is pre-

ceded by a public hearing at which alternate corridors are

presented for public comment, at which interested citizens

are given an opportunity to record their views as to the

effect of the proposed highway on the community.

After the corridor has been approved the engineers and

survey crews further narrow the location of the roadway

as the design is developed—Eventually a detailed location

is made and approved. Thereafter acquisition of the neces-

sary right-of-way is authorized—Federal funds are then

committed to the extent necessary to acquire the right-of-

way.

The total mileage of I-66 is 75.4 miles, 25 miles of which

have been completed.

The Virginia Department of Highways began prelimi-

nary studies for the location of I-66 through Fairfax and

Arlington Counties prior to 1958 and completed three of the

studies regarding the location of the highway in April and

October 1958.

A public hearing was held in Arlington on October 29,

1958 to consider a corridor for I-66 through Arlington. Four

App 34

alternate routes were then oomedered and discuswed) Thy:

Federal and State engmeers and seame od the polammifls wry

present at this hearmne. Thos hearing fell word a semuilian year

ing held before the Ariimewm Cones Beaord) om Seppe ier

27, 1958, at which tame citerss and one asHermarors jee

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No. 2) Farfax Drve-Bhaceencat Dower te agree! ly

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App. 36

Theodore Roosevelt Bridge, 1962—construction on the

bridge over Little River, 1963—median barrier and guard

rail on the bridge, 1963—box culvert under Lee Highway

near Kirkwood Road, 1968.

The Old Dominion right-of-way was acquired in 1965—

The Metro took an option in 1967 to use the median of the

right-of-way for rapid transit—The option was exercised

April 24, 1970— Major design features for 1-66 was of Glebe

Road for joint use with Metro have been completed.

Right-of-way acquisition approval for division and ex-

pansion of Lee Highway (29-211) between Kirkwood Road

and Lynn Street was given in January of 1961 and April of

1962.

The State defendants’ claim of sovereign immunity under

the Eleventh Amendment of the United States Constitution

is without merit—This is not a suit brought against the

State of Virginia—It is a suit brought against its Commis-

sioner of the Department of Highways to compel him and

others to comply with the requisite Federal laws in the build-

ing of 1-66 through northern Virginia. Suits involving various

aspects of interstate highway projects have been filed in the

Federal courts—None have found jurisdiction over State

officials lacking. See Citizens Committee for Hudson Valley

v. Volpe, 302 F.Supp. 1083 (SDNY 1969), affirmed 425

F.2d 97 (2nd Cir. 1970) ; Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402 (1971) ; Ely v. Velde, 321 F.Supp.

1088 (EDVa. 1971).

Although this suit could and probably should have been

brought sooner, the delay—standing alone—is hardly suf-

ficient to justify dismissal—It has been considered, however,

in determining whether the errors complained of were pre-

judicial to the plaintiffs.

eg Owe PP ag se atin

App. 37

The plaintiffs have failed to sustain their claim—that a

new location or corridor hearing must be held before further

work can proceed—by law or fact.

The transcript requirement of 23 U.S.C. § 128(b) was

satisfied by the submission of a complete tape recording of

the October 29th public hearing—It was reviewed ex-

tensively by the Federal officials and was only a part of the

evidence that was considered in deciding upon the present

route.

PPM 20-8, in effect at the time of the 1958 hearing, pro-

vided that “a public hearing shall be held and a transcript

made thereof”—Nothing then was said about a written

transcript. Tape recordings were then and now used in cer-

tain phases of federal court proceedings—and often heard

by Circuit and District Court judges—in lieu of written

transcripts.

The fact that PPM 20-8 was amended June 16, 1959—

some seven months after the date of the public hearing and

twelve days after date of approval—stating that tape record-

ings will not be accepted as a transcript does not vitiate the

October 29th hearing: first, because the amendment is not

retroactive; and secondly, because the question was specifi-

cally raised by the Virginia Location and Design Engineer

in his letter of November 18, 1959—and the Federal of-

ficials, after reviewing the matter, advised the Virginia De-

partment of Highways on February 25, 1960 that no ad-

ditional hearing was required.

Submitting a tape recording instead of a written trans-

script at best constitutes harmless error.

Neither is a new location hearing required because of the

alleged changes in the transportation situation during the

past thirteen years or because of the 1968 amendments of

§ 128.

Time alone is not enough, especially when the record dis-

closes that design planning and actual construction have

App. 38

continued uninterrupted from the date of the corridor ap-

proval to the date of the filing of this suit.

The transportation needs of the area have been monitored

over the years by the many agencies responsible therefor—

and the officials charged by law for selecting the location for

1-66 have reaffirmed their choice on numerous occasions up

to the present time.

The evidence in this record supports their decision to

continue the originally approved location of 1-66 without a

new location hearing—and it will not be disturbed.

PPM 20-8 as amended January 14, 1969 is not applicable

because 6(d) of that PPM exempts projects which received

location approval prior to January 14, 1969—The corridor

for 1-66 was approved June 4, 1959—The plaintiffs’ re-

liance on D.C. Federation of Civic Associations v. Volpe,

316 F.Supp. 754 (DCDC 1970) is misplaced. See Elliot v.

Volpe, 328 F.Supp. 831 (DC Mass. 1971), and Wildlife

Preserves v. Volpe, F.2d (3rd Cir. 1971).

Although the plaintiffs now tacitly concede that a new

corridor hearing would not change the location of 1-66, they

insist that the 1959 corridor approval did not include the

division and relocation of Lee Highway between Kirkwood

Road and Lynn Street.

The Congressional declaration of policy for the construc-

tion of the interstate system, as set forth in 23 U.S.C. § 101,

states “existing highways located on an interstate route

should be used to the extent that such use is practicable,

suitable and feasible. . . .”

The Federal Highway Administrator has always con-

strued this policy to mean that it should and may include

the cost of improvement of local roads when necessary or

convenient to accommodate the traffic related to the inter-

state roads being built.

ila aacacmammamae

App. 39

The grade separation structure and interchange at Lee

Highway near Kirkwood Road, including the ramps and

roadway coming off the ramps, and the separation structure

from Veitch Street to North Lynn, were both approved to

provide local access and to replace disrupted service—The

transcript of the 1958 hearing and the subsequent design

tion of Lee Highway here questioned was within the corridor

as approved in June of 1959.

The Federal officials have concluded that the 1958 public

hearing adequately considered the essential features of these

plans. They have also approved the costs of these local im-

provements as a part of the cost of 1-66. These determina-

vant statutes. See Udall v. Tallman, 380 U.S. 1 (1965).

Further public hearing on this phase of the building of

1-66 is not required.

Next, the plaintiffs seek to stop further construction of

1-66 by invoking the provisions of § 138 of the Federal-Aid

Highway Act, 23 U.S.C. § 138, and 4(f) of the Department

of Transportation Act, 49 U.S.C. § 1653(f), both of which

provide that the Secretary of Transportation shall not ap-

prove any program or project that contemplates the use of

any public park until he has made certain determinations.

They claim the Secretary of Transportation approved

construction of the culvert for Spout Run Creek—the desien

for the whole segment, including five acres of Spout Run

Parkway and the 1968, 1969 and 1970 utility relocations—

Although they do not contend these statutes are retro-

active, they say they should be construed to cover all work

begun after their effective dates—August 23, 1968 for § 138

and April 1, 1967 for § 1653 (f)—since the purpose of the

— =

App. 40

statutes is to bar the use of park land for highway purposes

except under certain conditions.

To do so would require the abrupt halt of all work then

being performed on all interstate highways that traversed

any park land regardless of the percentage of completion or

costs incurred—Clearly that was not the intent of Congress.

These statutes are not applicable to interstate highways ap-

proved prior to their effective dates—I-66 was approved

June 4, 1959.

The Court of Appeals for the Third Circuit expressly

held in Wildlife Preserves v. Volpe, supra, that these statutes

were not to be given retroactive effect. See also Triangle Im-

provement Council v. Ritchie, 314 F.Supp. 20 (SDWVa.),

affirmed 429 F.2d 423 (4th Cir. 1970).

The box culvert under Lee Highway and the utility re-

locations complained of do not directly involve any of the

so-called park land—The box culvert is some 950 feet from

the nearest publicly owned land, the construction of which

was authorized more than a month prior to the effective

date of 23 U.S.C. § 138. Although the utility relocations

took place after the effective date of § 1653(f), they were

but a part of the right-of-way approvals given in 1962—

Site preparation, including utility relocations, is authorized

by the right-of-way approval.

Further, these statutes are inapplicable to I-66 because

Arlington County and the National Park Service have not

found that the areas under their respective jurisdictions are

of local or national significance for park purposes, as re-

quired by these statutes.

Bon Air Park was acquired by Arlington County in 1950

for the specific purpose of highway use—The portion to be

utilized for I-66 has been designated on the County’s General

Land Use Plan since 1961.

App. 41

Spout Run Parkway is now being used for park purposes

and has been since prior to 1-66 approval in 1959. The Na-

tional Park Service has agreed to the use of five acres of this

area for I-66 and 13.97 acres for 1-266 (the proposed con-

nection with the proposed Three Sisters Bridge) on condi-

tion that the land be replaced with other similar land. Al-

though there has been no specific finding by the appropriate

Arlington County and National Park Service officials that

these lands are of local or national significance for park

purposes, the only inferences that can be drawn from the

facts clearly indicate that these officials view these areas

more important for highway than for park purposes.

Finally, the plaintiffs invoke the provision of the National

Environmental Policy Act of 1969. This Act became ef-

fective on January 1, 1970. Section 102(2) (c) requires that

major federal action be accompanied by the filing of a state-

ment of environmental impact of this action with the Council

on Environmental Quality. :

A number of courts have held that this Act is not ap-

plicable particularly to cases involving interstate highways.

See Pennsylvania Environmental Council y. Bartlett, 315

F.Supp. 228 (MDPa. 1970) ; Brooks v. Volpe, 319 F.Supp.

90 (WDWash. 1970) ; and Elliot v. Volpe, supra.

The only activity on 1-66 since January 1, 1970 has been

the completion of work authorized or approved prior to that

date.

The instructional memorandum of the Federal Highway

Administration, issued November 30, 1970, stated that an

environmental impact statement under NEPA would be re-

quired on all projects which had not received design ap-

proval prior to February 1, 1971.

Design approval for I-66 was had January 21, 1971~—

Nevertheless the defendants in this case have stated in their

App. 42

answer that regardless of the technical question of the ap-

plicability of NEPA to future actions, they intend to re-

quire the filing of an impact statement prior to further con-

struction approval—Virginia is now preparing that state-

ment.

The federal defendants have further assured the Court

that they will give the impact statement, prior to approval

of construction, the objective evaluation urged by the court

in the Gillham Dam case, EDF v. Corps of Engineers, 2

ERC 1260.

Although it has not been made one of the issues here to

be determined, it is well known that Virginia has employed

a nationally known landscape architect to imvestigate the

environmental effects of 1-66 and that he is proposing noise

abatement requirements that would make Arlington County

quieter than it now is.

The Three Sisters Bridge is not a part of 1-66—neither

is the proposed connecting road, I-266. Some adjustments

in the I-66-I-266 interchange will be required if 1-266 is

not built. They have been considered and approved.

Therefore, there is no justification or legal requirement

for further delay in completing the construction of 1-66.

The plaintiffs’ suit will be dismissed as of this date.

The Clerk will send a copy of the dismissal order and of

this memorandum opinion to all counsel of record.

/s/ Oren R. Lewis

United States District Judge

App. 43

ORDER

Entered October 8, 1971

In accordance with the memorandum opinion of the

Court this day filed herein, the above styled matter is hereby

dismissed and stricken from the docket of this Court.

/s/ Oren R. Lewis

United States District Judge

APPENDIX D(1)

Federal-Aid Highway Act of 1958

§ 128. Public hearings

(a) Any State highway department which submits plans

for a Federal-aid highway project involving the bypassing

of, or going through, any City, town, or village, either in-

corporated or unincorporated, shall certify to the Secretary

that it has had public hearings, or has afforded the oppor-

tunity for such hearings, and has considered the economic

effects of such a location. Any State highway department

which submits plans for an Interstate System project shall

certify to the Secretary that it has had public hearings at a

convenient location, or has afforded the opportunity for such

hearings, for the purpose of enabling persons in rural areas

through or contiguous to whose property the highway will

pass to express any objections they may have to the proposed

location of such highway.

(b) When hearings have been held under subsection (a),

the State highway department shall submit a copy of the

transcript of said hearings to the Secretary, together with the

App. 44

APPENDIX D(2)

Federal-Aid Highway Act of 1968

§ 128. Public hearings

(a) Any State highway department which submits plans

for a Federal-aid highway project involving the bypassing

of, or going through, any city, town, or village, either in-

corporated or unincorporated, shall certify to the Secretary

that it has had public hearings, or has afforded the oppor-

tunity for such hearings, and has considered the economic

and social effects of such a location, its impact on the en-

vironment, and its consistency with the goals and objectives

of such urban planning as has been promulgated by the com-

munity. Any State highway department which submits plans

for an Interstate System project shall certify to the Secre-

tary that it has had public hearings at a convenient location,

or has afforded the opportunity for such hearings, for the

purpose of enabling persons in rural areas through or con-

tiguous to whose property the highway will pass to express

any objections they may have to the proposed location of

such highway. Such certification shall be accompanied by

a report which indicates the consideration given to the eco-

nomic, social, environmental, and other effects of the plan

or highway location or design and various alternatives which

were raised during the hearing or which were otherwise con-

sidered.

APPENDIX D(3)

National Environmental Policy Act of 1969

§ 4332. Cooperation of agencies; reports; availability of

information; recommendations; international and national

coordination of efforts /.

The Congress authorizes and directs that, to the fullest ex-

tent possible: (1) the policies, regulations, and public laws

CTR ET NES Gye eT PPMENERY:

App. 45

of the United States shall be interpreted and administered

in accordance with the policies set forth in this chapter, and

(2) all agencies of the Federal Government shall—

(A) utilize a systematic, interdisciplinary approach which

will insure the integrated use of the natural and social

sciences and the environmental design arts in planning and

in decisionmaking which may have a impact on man’s en-

vironment ;

(B) identify and develop methods and procedures, in

consultation with the Council on Environmental Quality

established by subchapter II of this chapter, which will in-

sure that presently unquantified environmental amenities

and values may be given appropriate consideration in de-

cisionmaking along with economic and technical considera-

tions ;

posals for legislation and other major Federal actions sig-

nificantly affecting the quality of the human environment,

a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

(ili) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement

of long-term productivity, and

(v) any irreversible and irretrievable commitments of re-

sources which would be involved in the proposed action

should it be implemented.

App. 46

Prior to making any detailed statement, the responsible

Federal 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 comments and

views of the appropriate Federal, State, and locai 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 pro-

vided by section 552 of Title 5, and shall accompany the

proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alternatives

to recommended courses of action in any proposal which

involves unresolved conflicts concerning alternative uses of

available resources;

(E) recognize the worldwide and long-range character

of environmental problems and, where consistent with the

foreign policy of the United States, lend appropriate support

to initiatives, resolutions, and programs designed to maxi-

mize international cooperation in anticipating and prevent-

ing a decline in the quality of mankind’s world environ-

ment;

(F) make available to States, counties, municipalities, in-

stitutions, and individuals, advice and information useful in

restoring, maintaining, and financing the quality of the

environment ;

(G) initiate and utilize ecological information in the plan-

ning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality estab-

lished by subchapter II of this chapter.

RARELY GEL AN LOR AMES MEP OAT AY EAE IRAE IETS * 231% SSH AR

App. 47

APPENDIX E

STIPULATION AS TO FACTS

Filed June 9, 1971

The parties hereto, by counsel, jointly agree that the state-

ments contained herein are assumed to be true and correct

for the purpose of the motions to dismiss and motion for

judgment filed herein.

1. (a) The highway in this action is known as Interstate

Route 66 and is a part of the Interstate System of Highways

authorized by 23 U.S.C. 103. It runs from Interstate 81 near

Strasburg, Virginia, through a portion of Fairfax County

and Arlington County, Virginia, to the Potomac River, a

distance of 75.4 miles, approximately 25 miles of which has

been completed.

(b) The Virginia Department of Highways began pre-

liminary studies for the location of I-66 through Fairfax

County and Arlington County prior to 1958 and completed

three studies regarding the location of the highway: to wit,

(1) preliminary study and feasibility estimate for Virginia

Route 66 dated April 1958 and a supplement to this study

dated October 1958 by Consulting Engineers Howard,

Needles, Tammen, and Bergendoff; (2) a report on I-66

by the Office of Planning of the Virginia Department of

Highways dated October 25, 1958; (3) the location study

of I-66 through Arlington County dated October 28, 1958,

by Wilbur Smith & Associates. Copies of these studies are

attached hereto as Exhibits A-1, A-2, and A-3 and asked to

be read as a part hereof.

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App. 50

State was the only route supported at the public hearing.

neer to the Regional Engineer by memorandum dated May

22, 1959. See Exhibit D-4. The Regional Engineer on May

25, 1959, submitted this information to the Assistant Com-

missioner, Office of Engineering, Bureau of Public Roads,

Washington, D.C., with the recommendation that line 2,

the presently approved route, be approved. See Exhibit D-5.

By memorandum of June 4, 1959, the Assistant Commis-

sioner informed the Regional Engineer as follows:

“In view of the statements made in the State's letter of

May 28, Line 2, the so-called Fairfax Drive-Bluemont

Drive corridor, as proposed by the State after considera-

tion of the material presen at the public hearing held

on October 29, 1958, and initially recommended by the

State on February 20, 1959, may be approved subject

to any required adjustments in the financing of im-

provements on the previously location which

involved Federal-aid Interstate The State may

also be authorized to proceed with the necessary surveys

to determine a detailed location for the ultimate im-

provement of Interstate Route 66.” (See Exhibit D-6).

On June 26, 1959, the Division Engineer informed the Vir-

ginia Department of Highways that the so-called Fairfax

Drive-Bluemont Drive Corridor, the presently proposed

route, was approved June 4, 1959. See Exhibit D-7. A lay-

out map showing the approved route from the Beltway to

the Potomac River is attached as Exhibit D-8.

4. On March 19, 1959, the Virginia Department of High-

ways certified to the Federal Division Engineer that a public

hearing had been held and consideration was given to the

economic effects of the location of 1-66. See Exhibit E-1.

Also submitted was an eight page summary of written state-

BON ON ere ee

App. 51

ments submitted at the hearing or thereafter by 71 interested

persons and groups. See Exhibit F-2.

5. A tape recording of the actual hearing was submitted

by the Virginia Department of Highways to the Division

Engineer of the Bureau of Public Roads on March 17. 1959

(see Exhibit F-1), which tape was reviewed by the Bureau

of Public Roads, and has recently, since the institution of .

this suit, been reduced to writing, a copy of which is attached

hereto as Exhibit F-2 and asked to be read as a part hereof.

Policy and Procedure, Memorandum having to do with pub-

lic hearings and transcripts were issued at various relevant

times, with the first issued August 10, 1956, attached hereto

as Exhibit F-3 and another issued June 16, 1959, attached

hereto as Exhibit F-4. These were superseded by an issuance

of January 14, 1969, attached hereto. as Exhibit F-5.

6. On November 18, 1959, by letter, the Virginia Depart-

ment of Highways submitted to the Division Engineer ad-

ditional information reviewing the hearing and presenting

additional consideration of the economic effects. See Exhibit

G-1. The Division Engineer transmitted this on December

4, 1959, to his superior, the Regional Engineer of Hagers-

town, Maryland. See Exhibit G-2. This material was trans-

mitted to the Washington Office of the Bureau of Public

Roads on January 6, 1960, and on February 17, 1960, the

Assistant Commissioner, Office of Engineering, Bureau of

Public Roads, Washington, D.C., informed the Regional

Engineer that the State could be advised that on the basis

of the State’s letter of November 18, 1959, the public hear-

ing held on October 29, 1958, fulfilled the requirement of

section 128, title 23, U.S.C. See Exhibit G-3. On February

25, 1960, the Division Engineer informed the Virginia De-

partment of Highways that on the basis of the State’s letter

of November 18, 1959, it had been determined that the

App. 52

public hearing held on October 29, 1958, fulfilled the re-

quirement of section 128, title 23, U.S.C., and no additional

7. (a) In 1961 and 1962 right-of-way acquisition was au-

thorized for the five sections that comprised the total length

of 1-66 from the Beltway to Rosslyn. This initial acquisition

was for six lanes. In 1965 the project was expanded to eight

lanes. These authorizations, which permitted Federal fund-

ing for the costs to Virginia, were given by the Division Engi-

neer of the Bureau of Public Roads in seven separate actions

between January 12, 1961, and January 11, 1965. These

same sections were placed under agreement in separate

actions between June 18, 1962, and July 28, 1966, which

allowed the State to be reimbursed for the right-of-way that

was acquired under previous authorization. The project

number with the project termini and original date of au-

thorization to acquire (notice that the State of Virginia

would be reimbursed for the right-of-way work, including

appraisals and incidentals connected with right-of-way ac-

quisition ), and the original date of right-of-way agreement

(notice that a specified amount of Federal funds is obligated

and allocated for the project) are set forth herewith:

Original Date of

Date of Right-of-

Authori- Way

Federal Project Project zation Agree-

Number Termini to Acquire ment

1-66-1(36)78 1-66 from the intersection 1-12-61 6-18-62

(Exhibit H-1) with Nash St. to the Vir-

ginia-D.C. State line.

1-66-1(38)74 1-66 from 0.369 mile east 6-22-61 7-28-66

(Exhibit S-2) Patrick Henry Dr. to

Washington Blvd.

App. 53

1-66-1(37)69 1-66 from Fairfax County 6-27-61 6-3-64

(Exhibit H-3) line to 0.359 mile east of

west intersection Routes

29-211 (Sycamore Street).

1-66-1(45)69 1-66 from 0.425 mile east 9-6-61 12-6-63

(Exhibit H-4) intersection Route 1-495

to Arlington County line

1-66-1(35)75 1-66 from Washington Blvd. 3-8-62 1-28-63

(Exhibit H-5) to N. Nash Street.

1-66-1(43)73 1-66 from 0.359 mile east 6-28-62 7-28-66

(Exhibit H-6) of west intersection Rts.

29-211 (Sycamore St.) to

0.369 mile east Patrick

Henry Drive.

1-66-1 (600) W&OD Railroad Acquisition. 1-11-65 2-26-65

(Exhibit H-7)

(b) In addition, the following utility relocation projects

have been approved:

Project Company Amount Date

1-66-1 (37) 69 Washington Gas & Elec. $ 96,500 4-466

(66-000-101 RW 201)

1-66-1 (43) 73 County Const. 14,420 8-8-66

(66-000-102 RW 201) — ba

(PE 101)

Arlington County Const. 10.057 8-9-65

County Const. 12,391 10.9.64

Arlington County Const. 1,992 10-9-64

Arlington County Const. 26,450 3-17-69

$ 65,310 |

1-66-1(35) 75 VEPCO 25,573 6-9-66

(66-000-102 RW 206) Arlington Co. Sewer 3,338 3-8-68

Arlington Co. Sewer 8,754 5-13-68

Washington Gas & Elec. 57.000 3-23-70

Arlington Co. Water 220,000 3-23-70

$314,665

1-66-1 (45) 69 C&P 11,430 8-13-64

(66-029-103 RW 202) VEPCO 41,712 5-26-64

VEPCO 34,317 7-16-64

$ 87,459

App. 54

8. From the date of the location approval over 924 parcels

of property have been acquired along the approved location

of I-66 in Arlington County and Fairfax County at a cost

of $28,670,123.07. In this corridor, 581 dwellings have been

acquired, with 38 remaining to be acquired; 68 businesses

have been acquired, with 1 remaining; 475 families have

been relocated, with 153 remaining; 68 businesses have been

relocated, with 12 remaining. The estimated cost to complete

the acquisition of right-of-way is $5,329,876.93. These mat-

ters are more fully set out in the affidavit dated March 2,

1971, of the State Right-of-Way Engineer Alvah S. Mattox

and attached as Exhibit I. The State of Virginia has ex-

pended $1,500,000 in preliminary engineering which will

not be reimbursed by the Federal Government.

9. Beginning in 1961, there occurred a series of field in-

spections of the highway of I-66 to I-495 (Capital Beltway

to Rosslyn) which inspections were jointly made by repre-

sentatives of the State of Virginia and the Federal Bureau

of Public Roads with sets of plans in hand. These inspections

are documented by a series of letters dated June 23, 1961

(Exhibit J-1); June 13, 1962 (Exhibit J-2); August 21,

1963 (Exhibit J-3); May 19, 1966 (Exhibit J-4); March

11, 1963 (Exhibit J-5) ; and August 7, 1968 (Exhibit J-6).

Each of these letters contain the following two paragraphs:

“Tt is understood that two sets of plans were marked in

the field to indicate the detailed recommendations of

the inspecting party. One set of plans will be forwarded

to your Design Division by your District Engineer and

will constitute a record of our detailed recommenda-

tions, as well as those of your field representatives.

Agreement has been reached in the field on all points

except those which are discussed on the second page of

this letter. We request your consideration of these

points, or any other special features which are empha-

YOR AEA PO TET? Dye ORT, DO Ore

App. 55

sized, and shall appreciate your further comments when

appropriate.

“If you or your staff find it necessary to modify the final

plans so as to differ from details upon which agreement

was reached in the field, we shall appreciate your noti-

fying this office so that we may have the opportunity

of discussing the matter with you and reaching a satis-

factory understanding.”

On November 30, 1970, the Federal Highway Administra-

tion issued a draft Instructional Memorandum which is still

in effect for the implementation of the National Environ-

mental Policy Act of 1969 (P.L. 91-190), which stated that

an environmental statement as required by section 102 of the

Act would be required on all projects which received design

approval after February 1, 1971. On January 6, 1971, De-

fendant Fugate wrote to Defendant King (Exhibit J-7) and

suggested that the above letters be deemed to constitute de-

sign approval for the purpose of the draft Instructional

Memorandum. Defendant King, by letter of January 21,

1971 (Exhibit J-8), concurred in Defendant Fugate’s sug-

gestion.

10. Plaintiff Arlington Coalition on Transportation was

founded November 4, 1970, and currently has 350 individual

dues paying members plus six civic associations. Plaintiff

Arlingtonians for the Preservation of the Potomac Palisades

was founded in 1951 and its members consist of the follow-

ing civic groups:

The Parkway Citizens Association

North Highland Citizens Association

Riverwood Citizens Association

Bellvue Forests Citizens Association

Rivercrest Citizens Association

Gul Branch Citizens Association

—

App. 56

The Arlington Chamber of Commerce was organized in

1939 and has been in continuous operation since that time.

It has a present dues paying membership of 649 different

firms, corporations or professional people who either work

or do business im Arlington County, Virginia.

11. (a) Plaintiff Nordby purchased his home in 1966.

Plaintiff Vera Koehler with her husband, purchased their

home in Arlington in 1965. Plaintiff Harold McCoy pur-

chased his home site in Arlington in 1940 and adjoining land

in 1941. Plaintiff Ellen Snedden purchased her home in

Arlington in 1960. Plaintiff McCoy has carried on extensive

correspondence and held conferences with officials of the

Virginia Department of Highways at various times since

1958. The other individual plaintiffs had information at the

various times indicated that the I-66 route was proposed

to pass through their general area: Koehler in October

1969, Nordby in November 1969, and Snedden in September

1960.

(b) The following named individual plaintiffs learned of

an intention of the Virginia Highway Department to ac-

quire some of their respective properties at the various times

indicated: Vera Koehler, spring of 1970; Harold McCoy,

early 1962; Raider Nordby, May 1970; Ellen Snedden,

January 1970.

individual plaintiffs received notice as to exactly what

amounts of their respective properties would be acquired by

the Virginia Highway Department in connection with I-66:

Vera Koehler, September 1, 1970; Harold McCoy, August

13, 1970; Raider Nordby, October 19, 1970; and Ellen

Snedden, November 1970.

App. 57

(d) That beginning in 1961 and continuing to the

present, the location of I-66 has been shown on the Arlington

County General Land Use Plan, a copy of which is attached

hereto as Exhibit K. Arlington County’s planning regarding

zoning, traffic, utilities, etc., has relied upon the location of

1-66 as approved. See affidavit of Richard Arms, former

Planning Director of Arlington County, Exhibit K-1. Ex-

tensive newspaper coverage of the I-66 project has been pro-

vided in local newspapers since 1958 and the general route

or corridor has been published in local newspapers on many

occasions since that date. See Exhibit K-3. Numerous busi-

* messes have located near the corridor since 1959, relying on

the location of I-66 as approved. See Exhibit K-1.

12. A public hearing was held in Arlington County on

September 29, 1970, pursuant to notice published in a local

newspaper under date of August 19, 1970, by the Virginia

Department of Highways to consider “the proposed design

of Route 66 from 0.069 mile east of Washington Boulevard

(Route 237) to 0.109 mile east of Lynn Street (in Rosslyn),

in Arlington County.” See Exhibit K-2. This public hearing

was continued on December 7, 8 and 9, 1970.

13. There have been no other public hearings pursuant to

Federal law held in Arlington County on other segments of

I-66 in Arlington County, except those mentioned in these

stipulated facts.

14. The land of individual plaintiffs Koehler, McCoy and

Nordby lies within the areas affected by the project which

was the subject of public hearings in September and De-

cember 1970. The land of individual plaintiff Snedden lies

in an area not affected by the public hearings held in De-

cember 1970.

App. 58

15. (a) The amount of acreage of Bon Air Park to be

taken for use in connection with I-66 is 9.6 acres. The por-

tion of this park which will be utilized for the highway is

designated on the Arlington County General Land Use Plan

Map, adopted August 12, 1961, with amendments through

January 15, 1964, as open space and to be used for the

specific purpose of locating a highway thereon. See Exhibit

K. The tract was acquired by Arlington County for park

and highway purposes. See Affidavit of A. R. Ratcliff, Ex-

hibits L and L-1. All of the tract in question is presently

being used as a park.

(b) The acreage of Spout Run Parkway to be taken for

I-66 is approximately 5 acres. If the proposed I-266 route

to the Three Sisters Bridge is built, the 31.6 acres of Spout

Run Parkway would be conveyed to the Virginia Depart-

ment of Highways, of which 13.97 acres will be utilized for

1-266 roadway.

16. The Virginia Department of Highways has agreed

to provide funds to replace the 31.6 acres of parkland in

Spout Run, and Arlington County and the National Park

Service have concurred, a copy of the Arlington County

Board’s Resolution of Approval is attached hereto as Exhibit

M and is asked to be read as a part hereof. The 31.6 acres

would be replaced by acquisition of tracts located im-

mediately adjacent to the George Washington Parkway. See

Exhibit M-1, letter from the Department of Interior to the

Arlington County Manager dated January 13, 1970. Con-

ditional approval of this plan, with the promise of Federal

funding, was given in a letter from Mr. F. C. Turner, Fed-

eral Highway Administrator, to Commissioner Fugate on

October 2, 1969, Exhibit M-2. See also Pages 7 & 8 of Arms .

affidavit, Exhibit K-1.

PEAT PERI N CRATER STI EL Sm PETES NE NEE EE NED

—

App. 59

17. Construction of the Three Sisters Bridge is presently

enjoined by an order of the U.S. District Court of the Dis-

trict of Columbia pending the holding of a design hearing

and resolution of certain safety considerations. This design

hearing was held on December 14, 15, & 16, 1970, and the

District of Columbia submitted the plans for the Bridge for

approval to the Federal Highway Administration on April

2, 1971. Appeals from the injunction have been taken by all

parties. In the plaintiff's appeal, it is contended that a new

determination under 23 U.S.C. 138 is required and that a

new location hearing is required.

18. If no bridge is built at the Three Sisters site and 1-266

is not constructed, some changes in the design of I-66 would

be necessary, including as a minimum the elimination of the

connections between’ I-266 and I-66 with attendant ramps

and approaches. Alternate proposals have been considered

and approved by the Division Engineer for the construction

of I-66 without I-266 if Three Sisters Bridge is not built.

This approval was given in a letter of August 7, 1968. See

Exhibit J-6. The Virginia Department of Highways projects

the average daily traffic count to 1990 from Lee Highway

near Kirkwood Road to Rosslyn to be 66,700 (both ways),

with the construction of I-266. This projection without the

construction of I-266 is 106,760 (both ways). If I-266 is not

built, the alternate design of I-66 from Lee Highway to

Rosslyn calls for construction of two additional lanes. In the

opinion of the Virginia Department of Highways the alter-

nate design will provide adequate capacity for the larger

traffic flow (106,760).

19. The following project agreements have been executed

by the Federal Bureau of Public Roads authorizing prelimi-

nary engineering to commence by Virginia Department of

Highways:

App. 60

(a) Preliminary engineering on Interstate Route 66, from

0.57 mile east of the intersection with Route 123 to the

west intersection with Routes 29 and 211; agreement dated

January 14, 1960.

(b) Preliminary engineering on Interstate Route 66 from

the west intersection with Routes 29 and 211 to the west end

of the proposed Constitution Avenue Bridge; agreement

dated January 14, 1960.

20. There have been the following construction projects

completed on I-66 segment in Arlington County:

(a) Construction on Interstate Route 66 from 0.298 mile

east of Lynn Street to the west end of Theodore Roosevelt

Bridge, authorized October 3, 1962.

(b) Construction on Theodore Roosevelt Bridge over

Little River of superstructure, authorized January 14, 1963.

Little Creek of substructure, authorized January 15, 1963.

(d) Construction of median barrier and guard rail on

Theodore Roosevelt Bridge, authorized December 18, 1967.

(e) Construction on Interstate Route 66, a 10’x10’ box

culvert under Lee Highway near Kirkwood Road, au-

thorized July 17, 1968. The culvert construction is located

950 feet from that portion of lands administered by the

National Park Service as part of the Spout Run Parkway.

A plan sheet showing location of this project is attached

as Exhibit M-3.

21. Plans, estimates and specifications were submitted and

approved by the Bureau of Public Roads on April 15, 1964,

—

App. 61

and approved July 17, 1964, on that part of I-66 that runs

from the Beltway to within one-half mile of the Arlington

County line. The Virginia Department of Highways adver-

tised on July 22, 1964, and received construction bids on this

project on August 26, 1964. The bids were never opened

due to the uncertainty of the acquisition of the W&OD Rail-

road right-of-way at that time and necessity of revising the

number of lanes needed due to elimination of the use of the

median for rapid transit, because of the expiration of func-

tion of the National Capital Transit Authority.

22. Defendants estimate construction costs will be $55

million from Beltway to Bridge and the Department tabula-

tions of construction cost indices compiled for the calendar

year 1970 indicate that the construction cost index statewide

is up 16 percent over 1969.

23. (a) A January 1959 report of the National Capital

Planning Commission and the National Capital Regional

Planning Council on the Mass Transportation Survey of

Washington Region, states that in order to meet anticipated

future transportation needs along this corridor, a bus and

freeway development would be needed, and includes a hypo-

thetical plan for rail and freeway use in this corridor. See

Exhibit N. A study called “A Policies Plan for the Year

2000—the Nation’s Capital,” issued May 8, 1961, contains

a sectional diagram showing combination freeway and

transit system in the I-66 corridor. See Exhibit N-1.

(b) A report dated June 30, 1966, called “The Regional

Development Guide, 1966-2000,” on pages 58 & 59 thereof,

has maps of the Washington Metropolitan Area, indicating

that a rail transit and highway will occupy the presently

designated corridor of I-66 through Arlington County. Copy

of these maps attached as Exhibit N-5. In the report, at

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App. 64

creased from 758 thousand in 1960 to 997 thousand in 1968.

The District of Columbia located portion of these jobs has

declined from about 63 percent in 1960 to about 52 percent

in 1968 on an absolute increase from 483 thousand to 515

thousand. The Virginia located portion of these jobs has in-

creased from about 17 percent to about 23 percent on an

absolute increase from 130 thousand to 225 thousand. See

Exhibit N-13. “Travel to Work,” Tables I & II.

(b) In 1960 a total of 111.1 thousand persons lived in

Virginia suburbs and held their jobs in Virginia suburbs. In

the same year 90.1 thousand persons that lived in Virginia

suburbs commuted to the District of Columbia for their em-

ployment. In 1968 a total of 173.9 thousand persons lived

in Virginia suburbs and held their jobs in Virginia suburbs.

In the same year 104.1 thousand persons lived in the Vir-

ginia suburbs and commuted to the District of Columbia

for their employment. See Exhibit N-13. The projected

changes in availability of jobs, by jurisdiction, indicate that

the number of jobs in the Washington Metropolitan Area

will increase from 1,270,400 jobs in 1970 to 2,731,100 jobs

in the year 2000. The District of Columbia portion of these

jobs in 1970 is 662,000; in the year 2000 it will be 1,020,000,

an increase of 54.1 percent. The Virginia suburbs portion

of the total in 1970 is 301,000 and in 2000 will increase to

877,000 or 191.4 percent. See Exhibit N-12. Also see Ex-

hibit N-11 on changes from 1968 to 1970.

Roosevelt Bridge in a twenty-four hour period was 48,080

with 26,040 being eastbound and 22,040 being westbound.

In the morning rush hour on Roosevelt Bridge 5,320 auto-

mobiles were eastbound and 1,192 westbound. The 1970

actual count of automobiles crossing the five center city

a SGP LI

aietiatehen tiara Terenas RES S

App. 65

bridges was 331,810. The 1959 projection of the Mass

Transportation Survey, page 51 (Exhibit N) for total daily

crossings (both ways) for 1970 was 550,000 without im-

proved rapid transit and 500,000 with improved transit. See

Fig. 38 of Exhibit N.

(d) Forecasts of average daily traffic for the year 1975

for the use of the proposed I-66 route in north Arlington

near Rosslyn were made by the Virginia Department of

Highways in 1958 and are contained in Exhibit O-1. (Espe-

cially Blueline with Chantilly Access). A forecast of average

daily traffic for the year 1990 for the use of the proposed

I-66 route in north Arlington near Rosslyn was made by the

Virginia Department of Highways in 1969 and is contained

in Exhibit O-2. An analysis of traffic entering the District of

Columbia was made in 1968 by the National Capital Plan-

ning Commission and is contained in Exhibit O-3. Volumes

of persons and traffic actually entering the District of Colum-

bia in 1968 were studied in 1969 by the National Capital

Region Transportation Planning Board as shown in Exhibit

0-4.

(e) The D.C. freeway plan of 1959 is shown in Exhibit

N, figure 40. Changes made to this plan in 1962 by the

National Capital Transportation Agency are described and

shown in Exhibit O-5. The 1968 national capital major

thoroughfare plan is shown in Exhibit O-6. The current

recommended freeway and parkway network of the D.C.

Highway Department is shown in Exhibit O-7

created office space amounting to over five million Square

SEIS TE FETS PSE -

App. 66 ,

feet. See Arlington County publication “Office Buildings”

(1968) ; see Exhibit O-9.

(g) The Crystal City development has to date about

20,000 filled positions of employment. There is housing in

the same area for about 3,200 persons.

(h) The Washington metropolitan area, including Arling-

ton County, has developed an air pollution measuring sys-

tem and adopted some standards for the control of air pol-

lution. See Affidavit of Dr. Cal Cohn and accompanying

exhibits, attached hereto as Exhibit O-10.

(i) A committee of the Arlington County Planning Com-

mission has recently expressed its concern about the dimin-

ishing supply of open space in the country and this com-

mittee has recommended that the country purchase land to

increase the amount of publicly owned open space. See Re-

port of the Open Space Committee of the Arlington County

Planning Commission (March 2, 1971), attached hereto as

Exhibit O-11. This report states that approximately 98 per-

cent of the land in Arlington County, exclusive of that owned

by the Federal Government, is fully developed. The word

“developed” in the previous sentence includes the approxi-

mately 650 acres of land in Arlington zoned S3A, open space

currently devoted to park use. If the parkland were con-

sidered “non-developed,” the figure for improved land in

Arlington would be approximately 90 percent. None of the

above cited percentages have been documented as to the

method of computation. The Arlington County Planning

Commission has taken no action to adopt or accept any

part of the said report.

(j) That the Fairfax County Board of Supervisors has

consistently planned the proposed location of Rt. 66 upon

its comprehensive plans since 1959.

App. 67

25. Lee Highway (29-211) will be expanded at two points

in Arlington County and divided and expanded at one of

these points. Thus, beginning at the west side of the Kirk-

wood Road-Lee Highway intersection and extending for

1,638 feet westerly along Lee Highway, Lee Highway will

be expanded from three to six lanes. Beginning at a point

just west of N. Uhle Street, and continuing to N. Lynn Street

in Rosslyn, Lee Highway will be separated with east bound

traffic lanes being south of I-66 Proper (essentially along the

existing location of Lee Highway) and its west bound lanes

will be north of the actual I-66 roadway, crossing Rt. 66 at

N. Courthouse Road. Each of these traffic roadways on Lee

Highway will consist of four lanes from near N. Uhle Street

to N. Lynn Street in Rosslyn. Right-of-way acquisition ap-

proval was given to one segment on January 12, 1961, and

on the other on April 19, 1962 (see Exhibits H-1 and H-8).

enemas

—_—— es ole

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.