Brief for the Respondent in Opposition — Sullivan v. Brinegar

“TL.

AUG 23 1973

en

MICHAEL RODAK, JR.C

—

sc No. 73-49

IN THE

SUPREME COURT OF THE UNITED STATES

RAYMOND R. SULLIVAN and JAMES T.

MARSH, on behalf of themselves and all others

similarly situated,

Petitioners,

vs.

JOHN A. VOLPE, ex rel.,

Respondents.

CITY OF SACRAMENTO,

a municipal corporation,

Intervenor,

GRANITE CONSTRUCTION COMPANY,

a corporation, and

A. TEICHERT & SON, INC., a corporation,

Respondents in Intervention.

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Respondents’ Brief in Opposition to Petition for a

Writ of Certiorari

HARRY S. FENTON, Chief Counsel

KINGSLEY T. HOEGSTEDT, Assistant Chief Counsel

1120 N Street, Sacramento, California 95814

Attroneys, Respondent

State of California

ELIAS D. BARDIS

Attorney for California Department of Public Works

Of Counsel

printed im CALIFORNIA OFFICE OF STATE PRINTING

INDEX

Page

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STATUTES AND REGULATIONS _____-----__--______-_ 1

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I, The Respondents Complied with NEPA and Its

Implementing Regulations _-._._..._-_-__.-------____ 7

II. There Is No Conflict of Decisions on the Issue of Laches

and the District Court Properly Applied This Doctrine 12

III scssiishesiacdscanbinsisaedceihineccidotins 16

APPENDIX 1 Council on Environmental Quality—

Guidelines (Sections 3, 11, and 12)_._-.____- 19

APPENDIX 2 Federal Highway Administration—Interim

Guidelines (Section 4)_......-...---______- 23

APPENDIX 3 District Court’s Findings of Fact and

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TABLE OF AUTHORITIES

FEDERAL CASES

Arlington Coalition on Transportation v. Volpe, 458

F.2d 1323 (C.A. 4th Cir. 1972)

Burnett v. New York Central Railroad Company, 380

U.S. 424, 85 S.Ct. 1050 (1965)_----- a

Clark v. Volpe, 342 F.Supp. 1324, 1329, 1330 (D.C.

ED. La. 1972)

Ehlert v. U.S., 402 U.S. 99, 91 S. Ct. 1319 (1971) -----

Environmental Law Fund v. Volpe, 340 F.Supp. 1328,

1331, 1332 (D.C.N.D. Cal. 1972) __

Pewer Reactivator Development Co. v. International

Union of Electric Radio and Machine Workers, 367

U.S. 396, 408, 81 S.Ct. 1529 (1961) an

Udall v. Tallman 380 U.S. 1, 85 S. Ct. 792 (1965) ----

FEDERAL REGULATIONS

36 Federal Register 7724 (1971) Sections 3, 11, and 12_-

FEDERAL MISCELLANEOUS

Federal Highway Administration Memorandum,

Beste © cececnnciennninentncmndndimmae

sc No. 73-49

IN THE

SUPREME COURT OF THE UNITED STATES

RAYMOND R. SULLIVAN and JAMES T.

MARSH, on behalf of themselves and all others

similarly situated,

Petitioners,

vs.

JOHN A. VOLPE, ex rel.,

Respondents.

CITY OF SACRAMENTO,

a municipal corporation,

Intervenor,

GRANITE CONSTRUCTION COMPANY,

a corporation, and

A. TEICHERT & SON, INC., a corporation,

Respondents in Intervention.

Respondents’ Brief in Opposition to Petition for a

Writ of Certiorari

QUESTION PRESENTED

Did the District Court properly find, after a trial on

the merits, that the respondents complied with NEPA

and the plaintiffs are barred by laches?

STATUTES AND REGULATIONS

This appeal involves the National Environmental

Policy Act of 1969 (hereinafter referred to as NEPA)

a

and the regulations promulgated thereunder. The

Council on Environmental Quality (hereinafter re.

ferred to as CEQ) issued GUIDELINES FOR FEp.-

ERAL AGENCIES UNDER THE NATIONAL

ENVIRONMENTAL POLICY ACT (Appendix 1)

(36 Fed. Reg. 7724 [1971]), and the pertinent regula-

tions involved in this writ are:

(1) Section 3;

(2) Section 11;

(3) Section 12.

The Federal Highway Administration issued its

draft interim memorandum entitled Implementation

of Section 102(2)(C) of the National Environmentd

Policy Act of 1969 (now Policy and Procedural

Memorandum 90-1). The pertinent section of said

memorandum is Section 4 (Appendix 2).

STATEMENT OF CASE

Introduction

In order to simplify the response to petitioners’

petition for writ of certiorari, respondents in in-

tervention Granite Construction Company and A.

Teichert & Son, Inc., as well as respondents, file the

instant brief on behalf of all respondents.

The highway project involved in this matter is

Interstate 5. The termini of this interstate project are

the Canadian and the Mexican borders. It traverses

the States of Washington, Oregon, and California for

a distance of approximately 1,382 miles. All but 40

miles of Interstate 5 in California is complete, except

— yon

minor alterations from Redding, California, to Oregon

(Appendix 3, Findings of Fact and Conclusions of

Law, page 28).

The portion of Interstate 5 involved in this litigation

is a 19-mile segment of highway and, for the con-

venience of this Court, will be referred to as Inter-

state 5.

Interstate 5 is located in Sacramento, California,

and was jointly and independently studied by the

State of California, County of Sacramento, and the

City of Sacramento. Public hearings were held on

the location of this project. These hearings were well

attended by the public, and received a great amount

of exposure in the local press (Appendix 3, Findings

of Fact and Conclusions of Law, page 32).

After these public hearings, Interstate 5 received

location approval, design approval, and right of way

authorization from the Federal Highway Administra-

tion (Appendix 3, Findings of Fact and Conclusions

of Law, page 32).

State respondents commenced right of way acquisi-

tion, which involved the displacement of approxi-

mately 500 individuals (Appendix 3, Findings of Fact

and Conclusions of Law, page 33). All the right of way

has been acquired, individuals displaced, and the

project is now under construction.

Trial on the Merits

Interstate 5 was an “‘ongoing”’ project when NEPA

was enacted. State respondents had received location

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approval, design approval, and right of way authori-

zation prior to its effective date, January 1, 1970,

After the enactment of NEPA, the Federal and State

respondents reassessed this project pursuant to the

CEQ’s Guidelines, Section 11, and the Federal High-

way Administration Interim Guidelines, Section 4,

This reassessment oceurred on February 17, 1971

(Appendix 3, Findings of Fact and Conclusions of

Law, pages 35, 36). Said respondents concluded that it

was not practical to alter the basic course of action on

Interstate 5, and that this project was developed in

such a manner as to minimize adverse environmental

consequences (Appendix 3, Findings of Fact and

Conclusions of Law, page 36).

Environmental fact sheets were prepared by State

respondents and submitted to the Federal Highway

Administration. Said environmental fact sheets con-

tained detailed discussions of some, but not all, of

the factors considered by the respondents in the re-

assessment of this project (Appendix 3, Findings of

Fact and Conclusions of Law, page 36). The Federal

Highway Administration approved the environmental

fact sheets, and concluded that an environmental im-

pact statement was not required on the project (Ap-

pendix 3, Findings of Fact and Conclusions of Law,

pages 36, 37).

i At the trial of this action, the parties presented

expert testimony on the impact this project would

have on the quality of human environment. The re-

spondents presented evidence on each of the alleged

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impacts as contained in the complaint, and established

to the satisfaction of the Court that these factors

were adequately considered by the respondents in the

development of this project (Appendix 3, Findings of

Fact and Conclusions of Law, pages 41, 42).

Additionally, the respondents modified the project

so as to minimize its impact on the quality of human

environment. One such modification was the addition

of sound barriers, in order to protect development

that existed at the time of route adoption (Appendix

3, Findings of Fact and Conclusions of Law, page 42).

After the trial of this action, which encompassed

five days, the District Court held that the respondents

had complied with NEPA and its implementing regu-

lations. The District Court concluded that the guide-

lines gave proper effect to the provisions of NEPA

as to ‘‘ongoing’’ projects. The District Court further

concluded that the respondents did not abuse their dis-

cretion in determining that it was not practical to

alter the basic course of action on this project (Ap-

pendix 3, Findings of Fact and Conclusions of Law,

page 43).

Laches

Petitioner Sullivan resides approximately three-

fourths mile from the nearest point at which Inter-

state 5 passes. Petitioner Marsh resides approximately

600 feet from Interstate 5, and has resided in this

dwelling since 1964. He has known of the plans for

this project since that time (Appendix 3, Findings of

Fact and Conclusions of Law, pages 28, 29).

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Both petitioners were aware of the proposed con-

struction of Interstate 5 for several years prior to the

start of actual construction. They undertook no in-

vestigation to determine if an environmental impact

statement had been prepared. Petitioner Sullivan con-

tacted the Environmental Defense Fund concerning

this project in early July, 1972, prior to the award

of any construction contracts (Appendix 3, Findings

of Fact and Conclusions of Law, page 41). This suit

was not filed until November 2, 1972, after:

(1) right of way acquisition at a cost of $12,347-

195.00 (Appendix 3, Findings of Fact and

Conclusions of Law, page 33),

(2) displacement of 500 individuals (Appendix 3,

Findings of Fact and Conclusions of Lav,

page 33),

(3) substantial right of way clearance (Appendix

3, Findings of Fact and Conclusions of Lav,

page 33),

(4) utilities relocated at a cost of $1,405,196.58

(Appendix 3, Findings of Fact and Conelu- —

sions of Law, page 33),

(5) plans and engineering completed at a eost of

$3,500,000.00 (Appendix 3, Findings of Fact

and Conelusions of Law, page 40),

(6) award of construction contracts in the amount

of $18,524,050.00 (Appendix 3, Findings of

Fact and Conclusions of Law, pages 37, 38),

and

—

(7) payments to the contractors in the amount of

$2,500,000.00 (Appendix 3, Findings of Fact

and Conclusions of Law, page 40).

The District Court concluded that petitioners un-

reasonably delayed bringing this action, and by reason

of their delay the respondents would be unjustly

harmed by the issuance of an injunction.

ARGUMENT

|. The Respondents complied with NEPA and its imple-

menting regulations.

There was a five-day trial on the merits of the

action. The District Court received evidence on the

alleged adverse impact this project would have upon

the quality of human environment, the respondents’

consideration of the environment in the development

of this project, the investigation and studies made by

the respondents on each of the alleged impacts, the

respondents’ compliance with NEPA, and the factual

background on the issue of laches.

At the conclusion of the trial, the District Court

denied petitioners’ request for injunctive relief on two

independent grounds:

(1) the respondents complied with NEPA, and

(2) the petitioners are barred by laches.

Petitioners apparently have confused the District

Court decision and seem to assert that NEPA was not

complied with because an environmental impact state-

ment was not prepared. An environmental impact

statement is not always synonymous with NEPA. It

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is a part of, and a very important part of, NEPA,

However, the implementing regulations prescribe

under what circumstances a project complies with

NEPA. Therefore, one must examine these imple.

menting regulations to determine if NEPA has beep

complied with by the respondents in the development

of this project.

In enacting NEPA, Congress was aware of the fact

that highway projects take from five to ten or fifteen

years from conception to completion. Congress did not

intend that NEPA should stop all pending public

projects and start them anew. Otherwise, Congres

would have expressly provided for the retroactive

application of NEPA. This it did not do.

The CEQ, the agency charged with the duty of in-

plementing and enforcing NEPA, promulgated regu-

lations. The regulations directed Federal agencies

to establish procedures for compliance with NEPA

consistent with the guidelines. (Appendix 1, Council

on Environmental Quality, Guidelines, Sections 3

and 12.)

The CEQ was concerned with ‘‘ongoing”’ projects

that is, projects that were initiated prior to the effee-

tive date of NEPA. Interstate 5 is such a project.

Section 11 of the CEQ Guidelines addresses itself te

this issue and provides:

“11. Application of Section 102(2)(C) procedur

to existing projects and programs. To the max

mum extent practicable the Section 102(2)(()

procedure should be applied to further major

cay ean

federal actions having a significant effect upon the

environment even though they arise from projects

or programs initiated prior to the enactment of

the Act on January 1, 1970. Where it is not prac-

ticable to reassess the basic course of action, it is

still important that further incremental federal

actions be shaped so as to minimize adverse en-

vironmental consequences. It is also important in

further action that account be taken of environ-

mental consequences not fully evaluated at the out-

: set of the project or program.’’ (emphasis added)

In Environmental Law Fund v. Volpe, 340 F. Supp. -

1328 (D.C.N.D. Cal. 1972), the court discusses the

application of NEPA to ongoing projects and states

on pages 1331 and 1332:

“The CEQ Guidelines make a clear distinction

between projects initiated before January 1, 1970

and projects initiated after January 1, 1970. For

the latter an environmental impact statement is

required ‘to the fullest extent possible’ but for

the former a statement is required only ‘to the

maximum extent practicable’. This distinction is in

concert with the legislative history and the general

principles against retroactive application of stat-

utes.” Plaintiffs contend that the NEPA should

apply in toto to ongoing projects but fail to cite

any persuasive authority that this was the intent

of Congress. The court agrees with the reasoning

in Elliot v. Volpe, 328 F.Supp. 831 (D. Mass.

1971) that one must distinguish between projects

initiated before January 1, 1970 and projects ini-

tiated after January 1, 1970.”’

——

a ed

Pursuant to the mandate of the CEQ, the Federal

Highway Administration issued its memorandum to

implement NEPA (Appendix 2). Seetion 4(b) of

said memorandum addresses itself to ongoing proj-

ects, and provides in part:

**4, APPLICATION

3 ‘*b. The provisions of this memorandum do not

apply to projects that received or receive design |

approval before February 1, 1971... .”’ |

Although Interstate 5 received design approval

F prior to February 1, 1971, it is on a new location. For

; projects on a new location, Section 4(e) is con-

j trolling, and provides in part:

‘‘e, However, the following two types of proj-

ects must be reevaluated by the SHD [State High-

way Department] even though such projects re-

ceived design approval before February 1, 1971:

‘**(1) projects on new location, .. .

8 * & &

; “The SHD’s reassessment, which shall be done

in consultation with the division engineer, shall

: be made to determine if such projects were de-

i veloped in such a manner as to minimize adverse

environmental consequences. Such projects, to

the extent practicable, should be modified to in-

corporate additional elements of features iden-

’ tified and considered prudent to minimize harm.

> No environmental statement need be submitted,

however, unless requested by the division engi-

neer.”’

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The District Court found that the above guidelines

gave proper effect to the provisions of NEPA as to

ongoing projects. This finding is consistent with the

basic and fundamental principle of administrative law

as set forth in the ease of Udall v. Tallman, 380

U. S. 1, 85 S.Ct. 792 (1965).

In said ease, this Court addresses itself to the issue

of administrative interpretation of statutes and held

on page 16:

‘“When faced with a problem of statutory con-

struction this court shows great deference to the

interpretations given the statute by the offices or

agency charged with its administration .. . When

the construction of an administrative regulation

rather than a statute is in issue the deference is

even more in order.’’

Again, in Ehlert v. U. S., 402 U. 8. 99, 91 S.Ct. 1319

(1971), this Court holds on page 105:

6

°

. we are obligated to regard as controlling

a reasonable, consistently applied administrative

interpretation .. .”’

It is evident that the deference given to an admin-

istrative agency is great, particularly when it “. ..

involves a contemporaneous construction of a statute

by the man charged with the responsibility for setting

its machinery in motion...’ Power Reactivator

Development Co. v. International Union of Electric

Radio and Machine Workers, 367 U. 8. 396 at 408,

81 S.Ct. 1529 (1961).

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After the trial on the merits, in which the District

Court received evidence on the history of this project,

its present status, its effeet upon the environment, and

the reassessment by the respondents, the District

Court concluded that the respondents did not abuse

their discretion in making the threshold decision that

it was not practical to reassess the basic course of

action.

There is no evidence that the respondent admin-

istrators abused their discretion in making this

threshold decision. On the contrary, the evidence

establishes that of the 135 ongoing major highway

projects planned in this highway district, the re-

spondent administrators concluded that 133 would

require environmental impact statements. It was also

determined that it was not practicable to reassess the

basie course of action on the other two projects. The

project involved in this action is one of those other

two projects (Appendix 3, Findings of Fact and

Conclusions of Law, page 36).

ll. There is no conflict of decisions on the issue of laches

and the District Court properly applied this doctrine.

It is respondents’ contention, and the District Court

so found, that the respondents complied with NEPA

and that the guidelines authorize certain ongoing

projects to be completed without a Section 102(2) (C)

statement of NEPA.

Petitioners repeatedly contended that Section

102(2)(C) of NEPA should be retroactively applied

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to this project and that laches should not bar this

action. They cited Arlington Coalition on Transporta-

tion v. Volpe, 458 F.2d 1323 (C.A. 4th Cir. 1972), in

support of this contention. Arlington Coalition on

Transportation v. Volpe, supra, and the other cases

cited by petitioners in support of this contention, in-

yolve the basic question of whether or not a project is

subject to NEPA. In each of these cases, the defend-

ants contend that NEPA was not applicable. That was

the basic issue in each of these cases. No case cited by

petitioners involved the reassessment procedure au-

thorized by Section 11 of the Council on Environ-

mental Quality Guidelines and Section 4(c) of the

Federal Highway Administration’s memorandum for

ongoing projects. Interstate 5 was processed under

this reassessment procedure. Therefore, the issue be-

fore this Court is not the retroactive application of

NEPA, but did respondents comply with Section 11

of the Council on Environmental Quality Guidelines

and Section 4(¢e) of the Federal Highway Adminis-

tration’s memorandum.

By interweaving cases involving the retroactive ap-

plication of NEPA with the principle of laches, one

might conelude that there is a conflict in decisional

ease law. However, if these unrelated issues are prop-

erly separated, it is erystal clear that the case law

decisions are not in conflict. On the contrary, these

decisions uniformly apply the doctrine of laches to

the facts of the ease.

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In the instant case, the District Court applied the

standard test for laches that this Court established jy

Burnett v. New York Central Railroad Company, 380

U. S. 424, 435; 85 S.Ct. 1050 ( 1965) :

*** Whether laches bars an action in a given ease

depends upon the circumstances of that case and

‘is a question primarily addressed to the dis-

cretion of the trial court” [citation omitted].’”

The District Court received evidence on the dle-

velopment of the project, the money expended, the

people displaced, the clearance of the right of way,

the award of construction contracts, and the extent of

actual construction. In addition, evidence was pre-

sented concerning petitioners’ knowledge of the his-

tory of this project and their failure to take any

positive action until suit was filed. Based on this evi-

dence, the District Court concluded that laches was

applicable.

The case of Clark vy. Volpe, 342 F.Supp. 1324

(D.C.E.D. La. 1972) involved a similar factual situ-

ation, except for the fact that there was no attempt

to comply with NEPA. The court held that laches

was applicable and states on pages 1329 and 1330:

**. . . It is inconceivable that plaintiffs, charged

with knowledge of approximately fifteen years of

publicity concerning the highway, were not on

notice as of May 25, 1971 that actual construction

would soon proceed unless legal action was

promptly initiated. Nevertheless, plaintiffs stood

idly by during the remaining months as bulldozers

and chain saws stripped and leveled the land and

as vast sums of public money were expended on

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highway construction. Finally, after the area had

been laid barren of trees or grass, and after sev-

eral million dollars had been spent for highway

development, plaintiffs, on February 24, 1972, be-

latedly filed suit to halt construction. The Court

holds that, under the circumstances of this par-

ticular case, plaintiffs’ delay in filing suit, during

which delay the very acts of which they complain

were being performed, was unreasonable, and de-

fendants and intervenors would be substantially

prejudiced if plaintiffs were allowed injunctive

relief.

“In ruling as it does, the Court is keenly aware

of the importance of preservation and protection

of our parklands in particular and of the environ-

ment in general. . . . In the Court’s opinion, it

is logical to conclude that the Congress did not

intend that plaintiffs should delay until after sub-

stantial alteration of the environment to demand

studies as to the consequences of that alteration.

Conversely, the statutes are designed te promote

inquiry as to ecological impact before an area of

natural beauty is affected. Had plaintiffs not pro-

erastinated while bulldozers desolated a strip of

land through the park and while vast sums of

public money were expended, then they might

have proceeded without prejudice to anyone. The

Court is of the opinion that, unfortunately, plain-

tiffs did not take action until it was too late. The

Court is compelled, therefore, to dismiss the action

by application of the doctrine of laches.”

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CONCLUSION

This action was filed on November 2, 1972. Peti-

tioners requested a temporary restraining order. The

Court denied this request, but set the matter for trial

on December 15, 1972, pursuant to Rule 65(a) (2) of

the Federal Rules of Civil Procedure.

After a long and involved trial on the merits, the

District Court found that the respondents complied

with NEPA and that laches was applicable to the

action.

Petitioners petitioned the District Court of Appeal

for a stay pending appeal. The record on appeal con-

tained the file of this action together with the peti-

tioners’ petition and our reply. The Appellate Court

denied the stay.

We are now before this Court with the same issues

and facts. Two lower courts have ruled on these

matters adverse to petitioners. There are no new

issues or facts that would justify a hearing on this

matter. There is no conflict in decisional law.

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Wherefore, Respondents respectfully pray that the

Petition for a Writ of Certiorari to the Supreme

Court of the United States be denied.

Dated: August 20, 1973

Respectfully submitted,

HARRY S. FENTON

Chief Counsel

KINGSLEY T. HOEGSTEDT

Assistant Chief Counsel

Attorneys, Respondent

California Department of

Public Works

Of Counsel

ELIAS D. BARDIS

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APPENDIX 1

GUIDELINES FOR FEDERAL AGENCIES UNDER THE

NATIONAL ENVIRONMENTAL POLICY ACT

(Issued by the Council on Environmental Quality

April 23, 1971)

STATEMENTS ON PROPOSED FEDERAL ACTIONS

AFFECTING THE ENVIRONMENT

3. Agency and OMB procedures. (a) Pursuant to

section 2(f) of Executive Order 11514, the heads of

Federal agencies have been directed to proceed with

measures required by section 102(2)(C) of the Act.

Consequently, each agency will establish, in consulta-

tion with the Council on Environmental Quality, not

later than June 1, 1970 (and, by July 1, 1971, with

respect to requirements imposed by revisions in these

guidelines, which will apply to draft environmental

statements circulated after June 30, 1971), its own

formal procedures for (1) identifying those agency

actions requiring environmental statements, the ap-

propriate time prior to decision for the consultations

required by section 102(2)(C), and the agency review

process for which environmental statements are to

be available, (2) obtaining information required in

their preparation, (3) designating the officials who

are to be responsible for the statements, (4) con-

sulting with and taking account of the comments of

appropriate Federal, State, and local agencies, in-

cluding obtaining the comment of the Administrator

of the Environmental Protection Agency, whether or

not an environmental statement is prepared, when

required under section 309 of the Clean Air Act, as

amended, and section 8 of these guidelines, and (5)

meeting the requirements of section 2(b) of Execu-

tive Order 11514 for providing timely public infor-

a

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mation on Federal plans and programs with environ-

mental impact including procedures responsive to

section 10 of these guidelines. These procedures should

be consonant with the guidelines contained herein,

Each agency should file seven (7) copies of all such

procedures vith the Council on Environmental Qual-

ity, which vill provide advice to agencies in the

preparation of their procedures and guidance on the

application and interpretation of the Council’s guide-

lines. The Environmental Protection Agency will

assist in resolving any question relating to section 309

of the Clean Air Act, as amended.

(b) Each Federal agency should consult, with the

assistance of the Council on Environmental Quality

and the Office of Management and Budget if desired,

with other aopropriate Federal agencies in the de-

velopment of the above procedures so as to achieve

consistency ia dealing with similar activities and to

assure effective coordination among agencies in their

review of pryposed activities.

(ec) State ind local review of agency procedures,

regulations, ind policies for the administration of

Federal programs of assistance to State and local

governments yill be conducted pursuant to procedures

established by the Office of Management and Budget

Circular No. 4-85. For agency procedures subject to

OMB Circula No. A-85 a 30-day extension in the

July 1, 1971, deadline set in section 3(a) is granted.

ES Pe eee + MEDA FPS R tee 39

ie

(d) It is imperative that existing mechanisms for

obtaining the views of Federal, State, and local agen-

cies on proposed Federal actions be utilized to the

extent practicable in dealing with environmental mat-

ters. The Office of Management and Budget will issue

instructions, as necessary, to take full advantage of

existing mechanisms (relating to procedures for han-

dling legislation, preparation of budgetary materials,

new procedures, water resource and other projects,

ete.).

11. Application of section 102(2)(C ) procedure to

existing projects and programs. To the maximum

extent practicable the section 102(2)(C) procedure

should be applied to further major Federal actions

having a significant effect on the environment even

though they arise from projects or programs initiated

prior to enactment of the Act on January 1, 1970.

Where it is not practicable to reassess the basie

course of action, it is still important that further in-

cremental major actions be shaped so as to minimize

adverse environmental consequences. It is also im-

portant in further action that account be taken of

environmental consequences not fully evaluated at

the outset of the project or program.

12. Supplementary guidelines, evaluation of pro-

cedures. (a) The Council on Environmental Quality

after examining environmental statements and agency

procedures with respect to such statements will issue

such supplements to these guidelines as are necessary.

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—

(b) Agencies will continue to assess their experience

in the implementation of the section 102(2)(C) pro-

visions of the Act and in conforming with these guide-

lines and report thereon to the Council on Environ-

mental Quality by December 1, 1971. Such reports

should include an identification of the problem areas

and suggestions for revision or clarification of these

guidelines to achieve effective coordination of views

on environmental aspects (and alternatives, where ap-

propriate) of proposed actions without imposing un-

productive administrative procedures.

RUSSELL E. Train,

Chairman.

Sia ai 282 a ita EA Se i i a ag ah a

Re Ot tre Den wt

CS ee

a yee

APPENDIX 2

SUBJECT: Interim Guidelines for Implementation of Section

102(2)(C) of the National Environmental Policy Act of

1969

4, APPLICATION

a. The State highway department (SHD)' shall

evaluate the environmental consequences of all

direct Federal, Federal-aid, Public Lands, Re-

gional Development including Appalachia, De-

fense Access, Forest Highway, planning, re-

search, and demonstration projects except those

cited in paragraph 4b and make a determination

in consultation with the division engineer (1)

that a negative declaration is applicable because

the project will have no significant affect upon

the quality of human environment, or (2) that

an environmental statement is necessary because

the project will have or is likely to have a sig-

nificant affect upon the quality of human en-

vironment.

b. The provisions of this memorandum do not ap-

ply to projects that received or receive design

approval before February 1, 1971. Design ap-

proval may be established and documented in one

of the following three ways, depending on when

such design approvals were or are given. (1)

prior to issuance of revised PPM 20-8 in Janu-

ary of 1969, procedures of the Bureau of Public

Roads (BPR) did not require a SHD to receive

design approval from the BPR before under-

taking preparation of the plans, specifications

1The term State highway department means the agency with pri-

mary responsibility for initiating and carrying forward the

planning and construction of the project.

RIUM Tey Seta ee

> ia

PE bea ASR

—

and estimate (PS&E). Therefore, design ap-

proval was that action or series of actions by the

BPR which indicated to the SHD that the es-

sential elements of the highway (paragraph 10

of PPM 20-8) were satisfactory or acceptable

for preparation of the PS&E. Such actions may

have consisted of review and comments upon

preliminary plans, schematic drawings, design

studies, layouts, or reports. The SHD shall iden-

tify those projects (both Federal-aid and non

Federal-aid) in the above catagory which it

anticipates Federal-aid funds will be requested

for a subsequent stage and furnish the division

engineer for his concurrence a letter similar to

Appendix D of this memorandum citing the

document(s) which constitute the design ap-

proval. The division engineer’s coneurrence in

the State’s determination will serve as verifica-

tion of previous design approval. (2) Written

approval by the BPR of the design study report

submitted in accordance with paragraph 10 of

PPM 20-8 revised January 14, 1969. (3) For

those projects which the SHD is presently pre-

paring the construction PS&E and there is not

documentary evidence that the BPR indicated

its acceptance of the essential design elements

prior to the SHD undertaking preparation of

the PS&E, the SHD may furnish the FHWA

copies of drawings, plans, or other material

showing the present status of the plan prepara-

tion. The SHD shall submit such material and

the FHWA division engineer shall advise the

State in writing, prior to February 1, 1971, that

the design for a project or for a proposal is

approved if he determines that the present

—— won

status of the design or plan preparation meets

the requirements for design approval outlined

in paragraph 10 of PPM 20-8.

However, the following two types of projects

must be reevaluated by the SHD even though

such projects received design approval before

February 1, 1971:

(1) projects on new locations, and

(2) major reconstruction projects which will

require additional right-of-way over at

least 50 percent or more of its length.

The SHD’s reassessment, which shall be done in

consultation with the division engineer, shall be

made to determine if such projects were de-

veloped in such a manner as to minimize adverse

environmental consequences. Such projects, to

the extent practicable, should be modified to in-

corporate additional elements of features iden-

tified and considered prudent to minimize harm.

No environmental statement need be submitted,

however, unless requested by the division en-

gineer.

. Statements may be prepared for planing and

research projects on the basis of the annual work

program.

. The provisions of this memorandum shall not

apply to projects or programs of projects where

the Federal Highway Administrator has made

a formal determination that the project is ur-

gently needed because of a national emergency,

a natural disaster, a catastrophic failure, or for

similar reasons of great urgeney.

Po ——

a ee

4 f. In those instances where a highway is being

Fl jointly planned by two or more agencies, or is one

3 element of a jointly planned undertaking, only

a single environmental determination and/or

statement shall be made. The highway proposal

submitted to the FHWA for approval (location,

design, ete.) shall include a copy of the statement

shat,

Pre

i prepared and processed by another Federal

4 agency or reference to such a statement pre-

4 viously furnished to FHWA. Highway projects

: in this category could include forest highways

i (where forest service handles the Environmental

: Policy Act requirements), defense access roads

: planned in conjunction with a defense installa-

: tion and similar joint efforts.

RESORTS aR Ac a ay Ree nites ee aS

BAe Te ty pase eae

a gee

APPENDIX 3

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

RAYMOND R. SULLIVAN, et al.,

Plaintiffs,

v.

JOHN A. VOLPE, et al.,

Defendants.

CIVIL NO. S-2609

CITY OF SACRAMENTO, a municipal

corporation, FINDINGS OF FACT

Plaintiff in Intervention, | AND CONCLUSIONS

OF LAW

GRANITE CONSTRUCTION COMPANY, a cor-

portion, and A. TEICHERT & SON, INC., a

corporation,

Defendants in Intervention.

The above-entitled cause came on regularly for hear-

ing on December 14, 1972, in the courtroom of the

Honorable Philip C. Wilkins, United States District

Judge. Plaintiffs appeared by and through their at-

torney Angus G. MacDonell, Esq. Plaintiff in Inter-

vention appeared by and through its attorney James

P. Jackson, City Attorney, by Richard H. Hyde and

G. Richard Brown, Deputy City Attorneys. Defend-

ants John A. Volpe, Sheridan E. Farin, and Donald

Trull appeared by and through their attorney Dwayne

Keyes, United States Attorney, by Richard W. Nichols,

Assistant United States Attorney. Defendants Cali-

fornia Department of Publie Works, James A. Moe,

and Robert Datel appeared by and through their at-

torney Harry S. Fenton, Chief Counsel of the Cali-

fornia Department of Publie Works, by Elias D.

” ° , plies ECE MT re tt poe, Pn el

ee, nT Da Side ee ae ce ee LY We eC) ae Ee Gio ee ee

wn ited abi sleet

en

=—

Bardis and Daniel E. Wilcoxen, Attorneys for the

California Department of Publie Works. Defendant

in Intervention Granite Construction Company, a

corporation, appeared by and through its attorneys

Grunsky, Pybrum, Skemp & Ebey, by Elmer Pybrun,

Esq. Defendant A. Teichert & Son, Ine., a corporation,

appeared by and through its attorneys MeDonough,

Holland, Schwartz, Allen & Wahrhaftig, by V. Barlow

Goff, Esq., and Richard E. Brandt, Esq. Trial of the

matter continued from December 14, 1972, through

December 21, 1972. Evidence, by way of testimony,

affidavits, documents, photographs, and other exhibits,

was introduced. The matter having been argued by

the parties, and the Court having taken the matter

under submission for decision, and the Court being

fully apprised in the premises, and good cause ap-

pearing therefor, the Court does now hereby make

the following:

FINDINGS OF FACT

1. Interstate Highway 5 is part of the National

System of Interstate and Defense Highways System,

in which the United States of America is participat-

ing by supplying 90 percent of the cost of said high-

way. The terminals of Interstate 5 are the Canadian

and Mexican borders. Interstate 5, which is 1,382

miles long, passes through the states of Washington,

Oregon and California of which 797 miles is located

in the State of California. All but 40 miles of Inter-

state 5 in California is completed except for minor

alterations from Redding north to Oregon.

2. Plaintiff Raymond R. Sullivan resides at 3631

East Lincoln Way, Sacramento, California. This resi-

dence is approximately three-quarters of a mile from

the nearest point at which the Interstate 5 passes.

=

Said residence is located within 1,000 feet of Freeport

Boulevard, a main thoroughfare and State highway

passing through the southern portion of the City of

Sacramento. Land Park Drive, another main thor-

oughfare passing through the southern portion of the

City of Sacramento, is located approximately half-

way between Sullivan’s residence and the Interstate 5

construction involved in this case.

3. Plaintiff James T. Marsh resides at 1109 Silver

Lake Drive, Sacramento, California. This residence is

approximately 600 feet from the nearest Interstate 5

construction involved in this ease. Plaintiff Marsh has

lived in said house since March 1964, and purchased it

in January 1970. During all of the time he lived in

said house, Marsh knew of the plans for the proposed

routing of Interstate 5, as more specifically described

hereinafter in these findings.

4. Plaintiff in Intervention City of Sacramento is a

municipal corporation through which a portion of the

Interstate 5 will pass. Said plaintiff in intervention

has taken no steps to control land usage in areas abutt-

ing and adjoining the proposed freeway, since the rout-

ing of said freeway was adopted.

5. Defendant John A. Volpe is the Secretary of

Transportation of the United States of America, and

has the overall authority and responsibility for ap-

proval and supervision of programs conducted by the

Federal Highway Administration (hereinafter re-

ferred to as FHWA), an agency within the Depart-

ment of Transportation. Defendant Sheridan A. Farin

is the Administrator for Region 9 of the FHWA, and

is responsible for approval and supervision of pro-

grams conducted by FHWA within said Region, within

which the instant construction of Interstate 5 is pend-

pw eer ee eR ee Pore) ae AD ila tei atin thease

a.

ing. Defendant Donald E. Trull is the Division

Engineer of the FHW in the State of California, and

is responsible for approval of federal-aid highway pro-

grams within the State of California, including por-

tions of the interstate highway system in California,

Said defendants are hereinafter referred to collectively

as the ‘‘federal defendants”’.

6. Defendant California Department of Public

Works is an agency of the State of California, author-

ized and directed to provide for the construction of

all State highways, including those which are part of

the interstate system of federal-aid highways, on loea-

tions designated by the California Highway Commis-

sion. Defendant James A. Moe is the Director of the

California Department of Public Works, and is

charged with the overall control and supervision of

the activities of said Department. Defendant Robert

Datel is the State Highway Engineer and Chief of the

Division of Highways, a subagency within the Depart-

ment of Public Works, and said defendant is charged

with the overall control and supervision of the actiy-

ities of said Division. Said defendants are hereinafter

referred to collectively as the ‘‘state defendants”.

7. Defendant in Intervention Granite Construction

Company, a corporation, is a corporation which has

contracted with defendant California Department of

Public Works for the construction of the Segment A—

Granite portion of Interstate 5, as more specifically

hereinafter described. Said construction is presently

proceeding. Defendant in Intervention A. Teichert &

Son, Inc., a corporation, is a corporation which has

contracted with defendant California Department of

Public Works for the construction of the Segment A—

Teichert portion of Interstate 5, as more specifically

i ee el ee =

=

hereinafter described. Said construction is presently

proceeding.

8. The portions of Interstate 5 at issue in this case

are as follows: Broadway (Vallejo Way) south to

43rd Avenue (described herein as ‘‘Segment A—

Granite’’), 43rd Avenue south to Pocket Road (de-

seribed herein as ‘‘Segment A—Teichert’’), Pocket

Road south to Beach Lake (described herein as ‘‘Seg-

ment B’’), and Beach Lake south to Lambert Road

(described herein as ‘‘Segment C’’). Construction has

already commenced on Segment A—Granite, and on

Segment A—Teichert. There has been location and

design approval as to Segments B and C, and bids are

to be advertised as to said segments shortly.

9. Interstate 5 (as located in the City and County

of Sacramento) was initially planned in the mid-

1950s. The State of California, the County of Sacra-

mento, and the City of Sacramento, jointly and in-

dividually, studied the various route alternatives of

Interstate 5 as it was to pass through Sacramento

County. The proposed routing of Interstate 5, as it

is presently under construction, was known to and

incorporated by the City of Sacramento in its 1958

general plan.

10. Public hearings were held by the California

Highway Commission in connection with the adoption

of the present route of Interstate 5. On April 21, 1960,

a public hearing was held by said Commission involv-

ing route location of Segment C and most of Segment

B of Interstate 5. The said route location was adopted,

after said hearing, on April 13, 1961. On January 30,

1962, and again on May 17, 1962, public hearings

were held involving route location of the remaining

portion of Segment B, and all of Segment A. The said

—_—___a

a

—=

route location was adopted by the Commission, after

said hearings, on June 26, 1962. These hearings were

well attended by the public and received a great deal of

exposure in the local newspapers. Interstate 5 in

Sacramento County was, in general, a cause celebre

during the 1960s, with much public discussion.

11. The FHWA granted location approval of Seg-

ment C and most of Segment B on May 9, 1961, and

granted location approval of the remainder of Seg-

ment B and all of Segment A on June 29, 1962.

FHWA granted basic design approval of Segment ©

: and most of Segment B on September 20, 1961, and

granted basic design approval of the remainder of

Segment B and all of Segment A on August 16, 1962,

Subsequent minor revisions of said design approvals

occurred thereafter, the last of which occurred on

July 30, 1968.

12. The State of California entered into freeway

agreements with the County of Sacramento on October

9, 1961, and with the City of Sacramento on June 13,

1963. Said agreements, in accordance with state law,

detailed such basic design features as rearrangement

of local roads and streets and location of interchanges.

These freeway agreements were subsequently modified,

the final modification having occurred on September 8,

1969.

13. The State of California received authorization

from FHWA to procure right-of-way, and the right-

of-way acquisition program was funded for Segment A

during the fiscal year 1962-1963. The right-of-way ac-

quisition program was funded for Segments B and C

during the fiscal year 1963-1964. The State of Califor-

nia has acquired title to all the right-of-way involved

in the construction of these portions of Interstate 5, by

i Ae i Ah dan

Be as i i eit Les

(eB aad A ene eee ae

RUE ESPN PD, RYTON SHON aL LO Sek EARS SE ee OP aes 7

—

acquiring 361 parcels directly from the property

owners and instituting condemnation proceedings on

the remaining 28 parcels. The State of California has

expended $12,347,195.00 on right-of-way acquisition,

and has removed the improvements that existed on the

right-of-way. The State of California has also displaced

approximately 500 persons in connection with said

right-of-way acquisition.

14. Since the right-of-way acquisition authorization,

the State of California has been involved in utility re-

location in connection with and preparation for the

construction of those portions of Interstate 5 involved

in this action. This relocation has involved gas, tele-

phone, power, drainage, sewer and water lines. The

sum of $1,405,196.58 has been expended by the State of

California on such relocation, involving 41 various

utility agreements. The remaining utility relocation

will cost the State of California an estimated $153,-

110.21.

15. The community of Sacramento has developed on

the basis of the proposed routing of Interstate 5. City

and County general development plans and other area

general development plans have been predicated on the

construction of Interstate 5. Subdivisions have de-

veloped adjacent to the proposed right-of-way line.

Streets, sewers, water mains, and power facilities have

been planned and constructed on the assumption that

Interstate 5 would be constructed as planned.

16. In their planning relating to the construction of

Interstate 5, the state and federal defendants have

taken into consideration, among other things and with-

out limitation by the following list, factors involving

the effect of Interstate 5 upon flora and fauna, arche-

ological studies, aesthetic considerations, noise control,

Sa igtie: “ = =

> I

a dh a Se Rt a i ag ae Osa eh aN

ee

ED ON ee |

a oe

air pollution control, preservation of community ip-

tegrity and street continuity, utility planning and de-

sign, recreational improvements, levee control, and

community dependence upon the planned freeway

over a substantial period of time. In these considera-

tions the state and federal defendants have beep

abundantly cautious to preserve environmental con-

siderations to the maximum practicable extent.

17. NEPA became effective on J anuary 1, 1970,

Section 102(2)(C) of NEPA directed that there be

prepared in connection with major federal actions

significantly affecting the quality of the human en-

vironment a detailed statement by the responsible

official, relating to the environmental impact of the

proposed action, unavoidable adverse environmental

effects therefrom, alternatives thereto, short-term and

long-term goals, and irreversible commitments of re-

sources. Provision was made in said section for ap-

propriate consultation. Pursuant to NEPA, the Coun-

cil on Environmental Quality (hereinafter referred to

as CEQ) promulgated interim guidelines on April 30,

1970. Said guidelines were finalized on April 23, 1971,

and published at Volume 36, Page 7724 of the Federal

Register. Section 11 of said final guidelines provides

as follows:

“11. Application of section 102(2)(C) procedure

to existing projects and programs. To the maxi-

mum extent practicable the section 102(2)(C) pro-

cedure should be applied to further major Federal

actions having a significant effect on the environ-

ment even though they arise from projects or pro-

grams initiated prior to enactment of the Act on

January 1, 1970. Where it is not practicable to

reassess the basic course of action, it is still im-

ETE NaS LEYS LE! NATION PRAISE SG ERR EMS SEES SATE LOLI, | PO NETS :

om Bias,

portant that further incremental major actions be

shaped so as to minimize adverse environmental

consequences. It is also important in further action

that account be taken of environmental conse-

quencies not fully evaluated at the outset of the

project or program.”’

18. Pursuant to the directives of NEPA and the

CEQ, the FHWA issued its interim guidelines on

November 24, 1970. Provision was made in section 4

thereof for the reassessment of ongoing projects

which were on new location. Said FHWA interim

guidelines provided that ‘‘The State highway depart-

ment (SHD) shall evaluate the environmental con-

sequences of all... Federal-aid . . . planning, re-

search and demonstration projects . . . .”” Said guide-

lines further provided that:

‘*The SHD’s reassessment, which shall be done in

consultation with the [FHWA] division engineer,

shall be made to determine if such projects were

developed in such a manner as to minimize adverse

environmental consequences. Such projects, to the

extent practicable, should be modified to incorpo-

rate additional elements of features identified and

considered prudent to minimize harm. No environ-

mental statement need be submitted, however, un-

less requested by the division engineer.”’ (emphasis

in original).

The FHWA interim guidelines have subsequently been

finalized, without substantive change in this area, in

the FHWA’s Policy and Procedure Memorandum

(PPM) 90-1.

19. Pursuant to the provisions of § 11 of the CEQ

guidelines, and § 4 of the FHWA interim guidelines,

officials of the FHWA and defendant California De-

ris att

RSP Bae A ec te

DiS AESE RS ei ritaseain

i tea alk Sis enc R ah Cais

— sn

partment of Public Works, Division of Highways,

met together in Marysville, California, on February

17, 1971, to reassess the planning and development

involved in the proposed construction of Interstate 5,

At said time, the state and federal defendants con-

cluded, in consultation with each other, that the Inter.

state 5 project had been developed in such a manner

as to minimize adverse environmental consequenees,

Accordingly, they concluded that an environmental

impact statement, such as described in Section 109

(2)(C) of NEPA, was not required. There are 135

major highway projects planned in this District of the

Division of Highways. Federal and state defendants

determined that 133 of these projects would be proe-

essed with environmental impact statements. Because

of the advanced stage of the other two projects, it was

determined that it was impractical to alter their basic

course of action and they were processed by environ.

mental fact sheets. This Interstate 5 project was one

of the two such projects.

20. Subsequent to said reassessment, the California

Division of Highways submitted an ‘environmental

fact sheet’’ dated March 10, 1971, relating to Segment

A, to the FHWA. Said environmental fact sheet con-

tained a detailed discussion of some but not all of the

factors considered by the state and federal defendants

in their reassessment. Said fact sheet was not required

under the procedure set forth in §11 of the CEQ

guidelines and §4 of the FHWA interim guidelines,

The cover letter to said fact sheet recited that an en-

vironmental impact statement as to said portion of

Interstate 5 would not be prepared. Said fact sheet

was approved by defendant Trull of the FHWA on

April 30, 1971. On May 25, 1971, the California Di-

oa ea

vision of Highways submitted an ‘‘environmental fact

sheet’’ of said date relating to Segments B and C of

Interstate 5, to the FHWA. Said environmental fact

sheet contained a detailed discussion of some but not

all of the factors considered by the state and federal

defendants in their reassessment. Said fact sheet was

not required under the procedure set forth in § 11 of

the CEQ guidelines and §4 of the FHWA interim

guidelines. The cover letter to said fact sheet recited

that an environmental impact statement would not be

prepared. Said fact sheet was approved by defendant

Trull of the FHWA on June 14, 1971.

91. On May 30, 1972, the California Division of

Highways was authorized to advertise, and did ad-

vertise, for receipt of bids for construction of a por-

tion of Segment A. Bids as to said segment were

opened on July 26, 1972, and the FHWA concurred

in the award of the contract for construction of said

segment to Granite Construction Company on August

9, 1972, in the sum of $12,180,302.00. Said contract was

awarded to Granite Construction Company on August

15, 1972. On-site work under said contract actually

started on September 15, 1972, although considerable

preparatory work on said project had been under-

taken by Granite prior to the on-site work. The ad-

vertising of this construction project was covered by

the local newspapers. On May 31, 1972, both the Sac-

ramento Bee and the Sacramento Union contained

articles indicating that the state and federal defend-

ants were presently advertising this project for con-

struction. The Sacramento Bee carried notices of

advertising on July 12 and July 19, 1972. The Saere-

mento Union announced the bid opening on July 27,

1972.

a

— 38 —

22. On June 28, 1972, the California Division of

Highways was authorized to advertise, and did ad-

vertise, for receipt of bids for construction of the

other portion Segment A. Bids as to said segment

were opened on September 6, 1972, and on September

27, 1972, the FHWA concurred in the award of the

contract for construction of said segment to A. Teich-

ert & Son, Inc., in the sum of $6,343,748.00. Said con-

tract was awarded to A. Teichert & Son, Ine., and

on-site work under said contract actually started on

October 2, 1972, although considerable preparatory

work on said project had been undertaken by Teichert

prior to the on-site work. The advertising of this con-

struction project was covered by the local newspapers.

On July 26, 1972, the Sacramento Bee and on July

27, 1972, the Sacramento Union contained articles

indicating that the state and federal defendants were

presently advertising this project for construction.

The Sacramento Union carried notice of advertising

on August 23 and August 30, 1972. The Sacramento

Union announced the bid opening on September 8,

1972. :

23. As of December 19, 1972, construction under

the Granite contract was approximately 12 percent

completed, and Granite had earned for work com-

pleted approximately $1,600,000.00. Granite is em-

ploying sixty-eight (68) employees on said job, with

an average weekly payroll of $28,000.00. Granite has

forty-six (46) pieces of major equipment on the job

site, with an aggregate value of $1,800,500.00, and a

monthly rental value of $88,900.00. Granite has nego-

tiated twenty-five (25) subcontracts with an aggregate

price of $4,440,000.00, and those subcontractors em-

ploy eighty-six (86) employees with a weekly payroll

of approximately $34,400.00. Those subcontractors

ee ee a

BAP rns chai Sa BE Ra Bb Tei eG FRIESE AERTS th i en wo SC

— 39 —

have seventy-five (75) pieces of major equipment on

the job site, with an aggregate value of $1,500,000.00,

and a monthly rental value of $96,000.00. Granite has

thirteen (13) outstanding purchase orders in con-

nection with said project, with an aggregate price of

$1,012,000.00. An injunction prohibiting Granite from

continuing with its work in performance of said con-

tract would cause a monthly loss to the community

and to Granite Construction Company of not less

than $448,600.00 as follows: (a) $233,000.00 lost

wages from employee lay-offs, (b) $88,900.00 loss of

use of equipment of Granite, (¢) $62,500.00 admin-

istrative costs in connection with the job, (d) $24,-

900.00 for erosion control, street maintenance, drain-

age maintenance and public safety, and (e) $40,000.00

loss of profits. Additionally, Granite would be faced

with problems resulting from its existing purchase

orders ($1,012,000.00), tied-up bonding capacity ($12,-

000,000.00), delays in the completion of the work caus-

ing costs to increase, recruitment of new personnel

upon resumption of work, repair of deterioration oc-

curring during the delay, and inconvenience to the

public by reason oi the necessity for reduced speeds

through the project site

24. As of December 20, 1972, construction under the

Teichert contract was approximately 5 percent com-

pleted, and Teichert had earned for work completed

approximately $300,000.00. There are approximately

one hundred (100) workmen employed on the Teichert

job, with an average monthly payroll of $150,000.00.

Construction of the Gloria Drive sewer line is ap-

proximately 50 percent completed, clearing on the

project is 100 percent completed, and fencing is 25

percent completed. An injunction prohibiting Teichert

from continuing with its work in performance of said

Re rerun prea seter ac peaaton in rennet nace teR cnet ata rea neess terrae

. a i a ES

salen i cas

contract would cause a loss to Teichert and to the

community as follows: (a) $87,000.00 under agreement

for sale of imported borrow, which must be removed

on or before August 15, 1973, (b) purchase orders for

materials on the project in the sum of $480,000.00,

(ce) twelve subcontracts in the aggregate sum of

$1,726,428.00, (d) inerease in job overhead presently

estimated at $8,000.00 per month and general overhead

attributable to the project presently estimated at $15,-

000.00 per month, (e) move-in and move-out costs, and

(f) other costs of a general nature similar to those

described as accruing to Granite in paragraph 23 of

these findings of fact. Teichert has incurred costs of

$3,500,000.00, or more than half of the total contract

price.

25. The State of California has incurred costs of

and expended, the sum of approximately $19,500,-

000.00 to date on these portions of Interstate D, as

follows: (a) $3,500,000.00 for engineering, (b) $12,-

000,000.00 for right-of-way, (e¢) $1,500,000.00 for

utility relocation, and (d) $2,500,000.00 to the con-

tractors.

26. The environmental fact sheets described in para-

graph 20 of these findings of fact are publie doeu-

ments, and are available to the public on request. They

were in fact referred to at a public hearing conducted

by the County of Sacramento in February 1972 con-

cerning the proposed addition of an interchange on

this project. State officials also testified at said hear-

ing that an environmental impact statement was not

prepared on this project, and that the project was

proceeding under the environmental fact sheets.

27. Plaintiffs Sullivan and Marsh were aware of

the proposed construction of Interstate 5 for several

on

years prior to the start of actual construction. They

undertook no investigation to determine if an environ-

mental impact statement had been prepared, although

they are both intelligent individuals capable of ascer-

taining this fact with a minimum of effort. Plaintiff

Sullivan contacted the Environmental Defense Fund

concerning this project in early July 1972, prior to

the award of the Granite and Teichert contracts, but

this suit was not brought until November 2, 1972,

after substantial construction had already occurred

and the right-of-way had been substantially cleared

in Segments A—Granite and A—Teichert.

28. Plaintiff in Intervention City of Sacramento is

charged with knowledge of the provisions of NEPA,

the CEQ guidelines, and the FHWA guidelines, as

they apply to ongoing projects. The City of Sacra-

mento could not reasonably rely upon the assumption

that the construction of these portions of Interstate 5

would be processed with an environmental impact

statement, and the City was under a duty to ascertain

the true facts, a duty it failed to perform.

29. Plaintiffs allege various factors that were not

adequately considered by the federal and state de-

fendants in the development of this project. Among

the factors alleged are air pollution, lack of consider-

ation for land use plans, disruption of municipal

services, noise pollution, depletion of land in urban

areas and trees, aesthetics, and ecological spectrum of

streams, marshlands and other areas along the route.

Plaintiff offered little evidence at the trial of this

action of the above factors, with the exception of noise

pollution. Federal and state defendants testified to

each of the above factors, indicating extensive investi-

gation and research into each of the factors and es-

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j tablished to the satisfaction of the Court that these

; factors were, indeed, considered by federal and state

defendants in the development of this project.

With respect to sound pollution, state and federal

defendants conducted extensive studies and investiga-

tion concerning this problem, and as part of this

project are providing sound barriers in order to pro-

tect development that existed at the time of route

adoption. These barriers will cost $700,000.00, and

are consistent with, or exceed, existing state and fed-

eral standards relating to sound impact.

And from the foregoing Findings of Fact the

Court does hereby make the following:

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CONCLUSIONS OF LAW

1. Plaintiffs Raymond R. Sullivan and J ames T.

Marsh are barred from any relief in this action by

reason of laches and unreasonable delay, in that they

failed to bring this action, seeking injunctive relief,

until November 2, 1972, although they had actual

knowledge of the planned construction of this portion

of Interstate 5 for a substantial period of time prior

to said date. By reason of their delay, defendants and

defendants in intervention would be unjustly harmed

by the issuance of an injunction in this action.

2. Plaintiff in intervention City of Sacramento is

barred from any relief in this action by reason of

laches and unreasonable delay, in that it failed to

bring this action until December 11, 1972, although

it had constructive knowledge of the planned con-

struction of this portion of Interstate 5 without the

issuance of an environmental impact statement since

April 30, 1971 (as to Segment A) and since June 14,

1971 (as to that portion of Segment B located within

the City of Sacramento).

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3. All members of plaintiffs’ purported class are

barred from relief in this cause for the same reasons

that plaintiffs Sullivan and Marsh are so barred. To

the extent that there may be persons not so barred,

they are not members of a class of persons of whom

plaintiffs are typical, and are therefore not members

of the class of persons purported to be represented by

plaintiffs.

4. The state and federal defendants acted, with re-

spect to the portions of Interstate 5 involved in this

action, in full compliance with the requirements im-

posed upon them by NEPA, Section 11 of the CEQ

guidelines, and Section 4 of the FHWA interim guide-

lines. Said guidelines give proper effect to the provi-

sions of NEPA as to ongoing projects, as applied to

the facts of this case. Accordingly, plaintiffs, members

of their purported class, and plaintiff in intervention,

are all precluded from relief.

5. The state and federal defendants did not abuse

their discretion in determining that it was not practi-

eable to alter the basic course of action of the portions

of Interstate 5 involved in this action. In this con-

nection the state and federal defendants could prop-

erly have concluded, and this Court concludes, that

(a) there has been massive participation of the local

community in the planning of this project, (b) the

state and federal defendants have been extremely

sensitive to the impact this project will have on the

environment and have taken environmental factors

into account in their planning of this project, (c)

the likelihood of harm to the environment from this

project is minimal, especially in contrast to the pres-

ent status of cleared right-of-way and partially com-

pleted construction, and also in consideration of the

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heavy reliance of the Sacramento community in plan.

ning the development of said community upon the

proposed freeway, (d) the cost to the state and federal

defendants, and to the defendants in intervention, of

halting construction while an environmental im

statement is prepared is immense, and (e) that to the

extent practicable, this project was modified to in-

corporate additional features to minimize its impact,

By reason of each of the foregoing Findings of

Fact and Conelusions of Law, plaintiffs and plaintiff

in intervention are not entitled to a preliminary in-

junction, a permanent injunction, or any other relief

as prayed for in the complaint. Let judgment be en-

tered in favor of defendants and defendants in inter-

vention accordingly.

Dated this/4____ day of lekcuary, 1973.

UNITED STATES DISTRICT JUDGE