# Petition for Writ of Certiorari — Fugate v. Arlington Coalition on Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1319%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1000 ## Text 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, v. 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. 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. 2 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. — 3 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). 4 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 5 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 A. 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: 6 “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, -_ 7 this case should have been dismissed Pursuant to the equit- able doctrine of laches. B. 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 en 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 10 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. 11 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). 12 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 13 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 14 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. 15 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. 16 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. 17 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- 18 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 19 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, v. 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 te oo ine! we 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 ms «’ ar 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. ee 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, wt 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. (c) The Congress recognizes that each person should 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 as 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 ——— 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 in 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 © Appellants also claimed below that the 1958 proceedings violated 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 a 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 sented thear views. The Arimeten Count Board remoniwendied than Comndior No. 2) Farfax Drve-Bhaceencat Dower te agree! ly Virginia State Highwas Common adhogied thie meen. mendation on February 25. 198 ad! sufmvitved! thee sere to the Federal Bureaw of Putte Reet om Mla eo Additonal miormanm was sulted! the thee Drom + Renonal Eneweers. ard! the Farias Drone -Bhecmonn Do cornder was formals adbogmed) om fuser 4 58 On Februar &. |OH) Federal! ftcialh ethernet! in 8) gama Departmecan of Hace ans than thee pnutidher thcavrepe |) li an Octvolser 29_ 8 thalthillked thee menqeerrenmeness hl OF TS € 128 amd than mo achdhineomalll teeavreme wae reuervert! fee 16! aed! ORY ruc oF ca aeeqpurestom, wae ayurtbrornpeer few the tonal bemertth) o@ Bi) freon tthe Beltrecam tee Rowdicn: The autial acquestvem wae for oe lbs fe MR a pr ier was expanded) ve cutie lhepmpe Wwe eercressiaers andidirmomn! 1 thowmatecens warm fuged! one x aero cates Hinerwverem fem dM, ame! 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TRAVAIPAAADHETES. ony OtEEERD! onerereeMtonY tater bgee diyeee Monon “54 carerwes oft Mom Ais Wet gees tae ratieete Hop onpe ti) ccromemnerernions ect Hd: Tee penne fae semeends (ter thee Upped wectees te dbesmaertnesverd! oon ote: Mkttbienerrny cone « eepeeread TLannaed ee Albaee cdiesrerd! Skeperme aft SHR cap caeranetaeddrorerrty oo speepggeds Wpermecnzers: afi OHH! TENG omseaner of! anand! cesste canecantidered! fis Sotbten: ‘rene Ctongemaes ffor ppaeetdi corned! Hetedbeccras: sentempnewees Agoyparorssionessredd: (Gree aneeres of) Syme Mere Wetedcents cd is ‘eedbrers: Hone Th By pee IB inthe pparropproweeed! HW UMRS or onttee ithe: hives Metres Wettie 8 Ubveddh: weonmaee ater oad eee Mean Wirrtisosn otf le ‘rammrcresetend ore othe WM itrertietas Merraetereeeny af Wi tetheccn a cunerres OY oeabhaneds cacti! thee catdbterred: fey 1 uaa. tes greed or pe ‘wenodiarererd) Hos: caneeanedindinten af) cera ardiament odie os penyee Wetbtinrettom: Mentions: TY ibe tbontidbers cane) WUE care ony Honddh: ocneestdbees ch cctbpeets Bak gpanerts att tbe MAE ppersatertt: scrmnaes ordre ty die: treveeyt HY TARE asi) Hee catereernspere: Tbtese cee crompnettterres! crrped ony iporsvereed! Mragerane alli h Miorentony ah) VLG Hanes bpereey ceamaettanreee! ott Bedbtaperr egy Coanannres IM sanibess rane Hamann Hever it dbp genet crmpeh hhedte a 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 a 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 ee 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 ; (C) include in every recommendation or report on pro- 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. (c) The Interstate System of highways is constructed by the States under a Federal grant on a 90-10 ratio—90% paid by the Federal Government and 10% by the States. 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Sete Hbebiniy (C eeretastes YS dernegs PRO rapablé cotter cae th there a, tt lite |) rmetion cebberert oc thes itdha tpi. Mey White 'Corrteber: VHS A thie reretecmeeweth) caer. ti reeebisthens. cthtatiore thie cones ttagtred! Heres Wi akhkerbirn 1 Preah {Eattiperent TY " ‘ Hdttonn cseesontbimttrett cc che Wetherall deren. 4 tynne ty, ‘terethion wwithi be tarmeeeaty liveecl theretr ee Whbeeh on Ye Reet On Wheedi te cone the Teelerel tpi. 'hremtee: eett {Ubi mateetad le: Si. segue) the Wee Theettrees nn heerrrensty Whetbdow! 6. MN ebeR yD, Prrenyree thie {bebry- ‘hint he erele pees crude = _— Mae ye Sebo ; > + 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1319%3A1. Public record. Not legal advice.