Petition for a Writ of Certiorari — California Highway Commission v. Keith
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Text
States”
MICHAEL RODAK, JR., ¢
ON. 4-508
CALIFORNIA HIGHWAY COMMISSION, DEPARTMENT
OF PUBLIC WORKS, ez al.,
Petitioners,
Supreme Court of the Uni
vs.
RALPH W. KEITH and ESTHER MAY KEITH, husband and
al.,
—— Respondent.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
PETITION FOR WRIT OF CERTIORARI.
Harry S. FENTON,
Chief Counsel,
JosEPH A. Montoya,
ROBERT V. CoHUNE,
107 South Broadway, Suite 9111,
Los Angeles, Calif. 90012,
Attorneys for Petitioners.
ROBERT L. MEYER,
Of Counsel.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
PIN Ig a re a RE A A SO ETS
SUBJECT INDEX
Page
Petition for Writ of Certiorari ...... pa 1
i: SI MII giicacintcctssnicatcecciccentnnnmnasetaiiin 1
RE 2
C. Questions Presented for Review ................ 2
D. Statutes and Regulations Involved in the
Roe su OIE SaaS ee ei ee Ce 3
E. Statement of the Case 4
F. Reasons for Granting the Writ : 7
I.
Certiorari Must Issue to Disapprove the Simplistic
Formula Used by Lathan and Keith for Imple-
mentation of NEPA, and End Conflict With
Controlling Authority Throughout the Nation,
and Particularly Within the Ninth Circuit ...... 7
II
A Critical Question Involving Federal-State Cooper-
ation Is Presented and Should Command This
I a edianiaals 11
Ill.
Lathan and Keith Are Contrary io United States
v. SCRAP, and Congressional and Regulatory
Enactments Intended to Insure Compliance With
PRIN sis liccketuntnanncaiaioninncnmiends 15
IV.
If the Ninth Circuit Court Opinions in Keith and
Lathan Are Correct Statements of the Law,
There Can Be No Injunction Herein .................. 17
, —
ie Bi ES cia SIE SEE TESS RPE SEA A DRI
ii.
INDEX TO APPENDICES
Page
Appendix A. Opinion of the United States Court
of Appeals for the Ninth Circuit, Dated Decem-
ber 3, 1973.
Appendix B. Opinion of the United States Corrt
of Appeals for the Ninth Circuit, No. 72-3072,
Dated September 27, 1974.
Appendix C. Opinion of the United States Court
of Appeals for the Ninth Circuit, Nos. 72-2932
and 72-2974, Dated September 27, 1974.
Appendix D. Motion and Order Granting in Part
and Denying in Part Plaintiffs’ Motion for a
Preliminary Injunction.
Appendix E. Statutes and Implementing Regula-
tions
tt ie re. eee
TABLE OF AUTHORITIES CITED
Cases Page
Arlington Coalition on Transportation v. Volpe (4th
Cir. 1971) 458 F.2d 1323, cert. den. 409 USS.
NN a ee 8
Citizens Ninieaniianibil Council v. Volpe (10th
Cir. 1973) 484 F.2d 870, cert. den. 42 U.S.L.W.
MIE dhe camutitenelicinciedcaadeacaieeibaainansiias tacadapiaisttles 9
Citizens of Marlboro v. Volpe (3rd Cir. 1972) 459
BP UN i cacihciaararlgs sac ose atcee he tooaderscerecoenaeaasiaoasebicns 9
Clark v. Volpe (Sth Cir. 1972) 461 F.2d 1266,
affirm. 342 Fed. Supp. 1324 ...............--...--.-csesssss 9
Environmental Defense Fund v. Froehlke (8th Cir.
Se GE te ND Critic sncctcnccietselbonsianams 9
Jicarilla Apacne Tribe v. Morton (9th Cir. 1973)
ee ioeccccsecenicnccccapacemionintnncatancins 9, 10
LaRaza Unida v. Volpe (9th Cir. 1973) 488 F.2d
559, cert. den. 409 U.S. 890 ......000002....e 9, 13
Lathan v. Brinegar, No. 72-2932 ...............---ss+000+-+- 2
Lathan v. Volpe (9th Cir. 1971) 455 F.2d 1111 ....
REED ee Ba 9, 10, 11, 12, 13, 14, 16, 17
Lathan v. Volpe, Nos. 72-2974 and 72-2932 —
5 Env. Law Rep. 20083) ................ 1
Lathan v. Washington State Highway Ostiaiicn,
No. 72-2974 ..........--- : 2
Monroe County Conservation Council, Inc. v. Volpe
(2nd Cir. 1972) 472 F.2d 693 ..... 8
Movement Against Destruction v. Volpe (4th Cir.
1974) 499 F.2d 29, affirm. Movement Against
Destruction v. Volpe, 361 Fed. Supp. 1360 ........ §
Pennsylvania Environmental Council, Inc. v. Bart-
lett (3rd Cir. 1971) 454 F.2d 613 = 9
RE REVO RY etme FEMI ITIL IR GAL A PP TOE GI
RELL Ph Sete Rea ATMEL GSE Gt cee pe
iv.
Page
Ragland v. Muller (Sth Cir. 1972) 460 F.2d 1196 ..
Ralph W. Keith v. John A. Volpe (D.C. C.D.
Cal. 1972) 352 Fed. Supp. 1324 .......... i a
ssheietiniishdaiahamaiaiba 7, 9, 10, 11, 13, 14, 15, 16,
Robinswood ee Club v. Volpe (9th Cir.
1974) .... F.2d ...., rep. 5 ELR 20378, 6 ERC
1401 .. Pee ey Re NOC ORES IIIT. 9,
San Antonio ia ian Society v. Texas (Sth
I nc, UNEIIEIN sad -<.ccctcinccpeeanmsacndisdabenenidioaidncios
San Francisco Tomorrow v. Romney, 472 F.2d
1021
Swain v. Brinegar (D.C. S.C. Ill.) 378 Fed. Supp.
753 RMON oe Ree ee PE e's Fr OT
Township of Hopewell v. Volpe (3rd Cir. 1971)
I i cateee
Township of Hopewell v. Volpe (3rd Cir. 1973)
482 F.2d 376 8,
Wildlife Preserves, Inc. v. Volpe esi Cir. ne
443 F.2d 1273
Federal Register
38 Federal Register, p. 20556, Sec. 1500.94 ..........
38 Federal Register, p. 20556, Sec. 1500.10 ..........
38 Federal Register, pp. 20555-20556 (8-1-73),
Sec, 1500.13 ...ecceeesccoeeeeeooes oe
Miscellaneous
Mam Tne FB cain ceceseecevecincsresesenese
8 U.S. Code Congressional and Administrative
8 A eens ee
14
10
i a ee
ter wees.
Vv.
Rules Page
Supreme Court Rules, Rule 23(5) ..........-.---.--:0+-
Statutes
California Public Resources Code, Sec. 21000 ........
Code of Federal Regulations, Title 23, Sec. 1.38
Code of Federal Regulations, Title 23, Sec. 772 ....
Code of Federal Regulations, Title 23, Sec. 772.6
I chica ssecetnasiscavecaseshesiokevchiadscdivinianbansbaubiaiion
Code of Federal Regulations, Title 23, Sec. 790 ....
Code of Federal Regulations, Title 23, Sec. 790
I siiscistccettncccincnitamnbuscentsshsucliveinaibsidisiesasdumanittaniriaiaes
Code of Federal Regulations, Title 23, Sec. 790
EE OD scbaclectnicbiessias-ccckagpaenicceiniineretahibuindcaleiaaiieenemiabiiiien
Code of Federal Regulations, Title 23, Sec. 790.3
IID scescsslscalastsssbaisosie ai recccmaiiahciabiivenebstiancnsdsniebisbioosimnbialaineail
Code of Federal Regulations, Title 23, Sec. 790.3
(b) ‘ adamaiicsdscicnliedibaiasdiaiiunstticapiesanie
Code of Federal Regulations, Title 23, Sec. 790.5
a a scl pb aehstllin soe cateaddigablbnaga
Code of Federal Regulations, Title 23, Sec. 790.5
I i ces aneeteneansclindainibialabenitaemsaiauenaniannibtiaihains
Code of Federal Regulations, Title 23, Sec. 790.6
(g) - srtaeenmnacnneensiivcemcemineeteisinines
Code of Federal Regulations, Title 23, Sec. 790.8
IE ic adciiniscnasnicsacercnsceeinnstniaaennbeaoeienaaancaaeinennee
Code of Federal Regulations, Title 23, Sec. 795 ....
Code of Federal Regulations, Title 23, Sec. 795.4
ERE tase CE P ;
12
12
15
vi.
Page
Highway Act of 1973, Sec. 154.222.222.220... 13, 14
Public Law 91-605 (1970) .....c...ec.ccec00-0. eee 15
I i I i ciceessossasabiidisaniniceses 12, 14
United States Code, Title 5, Sec. 706(2)(A) cs Se
United States Code, Title 5, Sec. 706(2)(D) .... 8
United States Code, Title 23, Sec. 101(b) .......... il
- United States Code, Title 23, Sec. 103(e) .......... 3
United States Code, Title 23, Sec. 105(a) .......... 3
United States Code, Title 23, Sec. 106(a) ......3, 7
United States Code, Title 23, Sec. 108(c)(2) .... 12
United States Code, Title 23, Sec. 109 .............--. 16
United States Code, Title 23, Sec.'109(h) ....4, 15, 16
United States Code, Title 23, Sec. 109(i) ....4, 15, 16
United States Code, Title 23, Sec. 128 ................ 4
United States Code, Title 23, Sec. 128(a) ..........
adi eee oy te oe
United States Code, Title an, Set. 1254(4) ........ 2
United States Code, Title 28, Sec. 2201 .............,.... 4
United States Code, Title 42, Sec. 4332(2)(c)
NS oc a A “ane 3
Supreme Court of the United States
October Term, 1974
Ni ncsadeatenases
CALIFORNIA HIGHWAY COMMISSION, DEPARTMENT
OF PUBLIC WORKS, et al.,
Petitioners,
vs.
RALPH W. KEITH and ESTHER MAY KEITH, husband and
wife, et al.,
Respondent.
Or Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
PETITION FOR WRIT OF CERTIORARI.
A. OPINIONS BELOW.
This petition concerns Ralph W. Keith v. John A.
Volpe (D.C. C.D. Cal. 1972) 352 Fed. Supp. 1324
(Appendix “D”), appealed by petitioner, resulting in
reversal by the opinion filed December 4, 1972 which
is set forth in Appendix “A”. That opinion was with-
drawn to consider en banc a conflict with the December
7, 1973 opinion in Lathan v. Volpe, Nos. 72-2974
and 72-2932 (reported at 5 Exv. Law Rep. 20083).
Opinions filed Septembex 27, 1974 following rehearing
en banc in Keith and Lathan are set forth in Appen-
dices “B” and “C” respectively and are the subject of
this petition.
LAIRD FINE SSC IIS AES ”
FOP CTEE FRAN REMI Saar POLO ELLE LLY,
culties
B. JURISDICTION.
Jurisdiction of this Court is invoked to review the
judgments of the Ninth Circuit Court of Appeals filed
September 27, 1974 in Keith, et al v. California
Highway Commission (No. 72-3072) (hereinafter
Keith) and, pursuant to Supreme Court Rule 23(5),
the closely related cases of Lathan v. Brinegar, No.
72-2932 and Lathan v. Washington State Highway Com-
mission, No. 72-2974 (hereinafter Lathan).
Plaintiffs in the first Keith opinion (Appendix “A”)
and defendants in the Lathan case moved for rehear-
ing. By order of April 11, 1974, both motions were
granted and a rehearing en banc ordered for June 12,
1974, resulting in simultaneous filing of both opinions
on September 27, 1974.
On October 17, 1974, petitioner moved to stay is-
suance of mandate for thirty days pending this petition.
By order filed October 18, 1974, the stay was denied
as to Lathan and granted to Sunday, October 27, as to
Keith. Application for continued stay of mandate was
filed by petitioner October 25, seeking an additional
stay to November 4.
28 U.S.C. 1254(1) confers jurisdiction upon this
Court to review both opinions.
C. QUESTIONS PRESENTED FOR REVIEW.
In a case involving at least 10 years of close Federal-
State planning and cooperation and right of way acquisi-
tion in anticipation of construction of a Federal-Aid
Highway, the following questions are posed:
1. Is the step at which to test compliance with ap-
plicable federal statutes and regulations postponed until
the final Federal action?
citiliens
2. If the answer to the first question is affirmative,
must all State and Federal compliance be judged by
the law as it may exist at that future time?
3. Is there only one major Federal action which
affects the quality of the human environment and is
therefore subject to NEPA?
4. Did the enactment of NEPA impliedly repeal
other statutes and regulations governing the orderly ad-
ministration of the Federal-Aid Highway Act?
5. Is the orderly planning process of the Federal-Aid
Highway Act and envisioned in NEPA to be vitiated by
a strained construction of the Highway Act?
D. STATUTES AND REGULATIONS INVCUVED IN
THE CASE.
This case involves the National Environmental Policy
Act (hereinafter NEPA), the Federal-Aid Highway Act
and implemeriing regulations for both. Statutes fol-
lowed by implementing regulations are set forth in Ap-
pendix “E”, in the following sequence:
42 U.S.C. 4332(2)(c) (NEPA);
CEQ Guidelines for preparation of Environmental
Impact Statements, 38 Fed. Reg. 20556, §§ 1500.9
(d), 1500.10, 1500.13
Federal Highway Administration Guidelines for
Implementation of NEPA, PPM 90-1, 23 C.F.R.
1.38, App. A, paragraphs 5(b), 5(c), 6(h),
6(i)
23 U.S.C. 103(e)
23 U.S.C. 105(a)
23 U.S.C. 106(a)
23 U.S.C. 128(a)
— oe
Implementing regulations in 23 C.F.R. 790.3,
790.5(d), 790.5(g)
23 U.S.C. 109(h)
23 U.S.C. 109(i)
Implementing regulations in 23 C.F.R. 772.6(c)
(1), 790.6(g), 790.8(b)(2)(v) and in 795.4(d).
E. STATEMENT OF THE CASE.
Plaintiffs sought declaratory and injunctive relief in
the district court to halt all further activity on the Inter-
state 105 Freeway-transit facility in Los Angeles
County. It was proposed as a multi-lane facility with
center median reserved for rapid transit or high-speed
bus lanes intended to connect Los Angeles International
Airport on the west with Interstate 605 in the City of
Downey on the east. It would traverse approximately 17
miles through nine separate cities. Federal jurisdiction
over the California Highway Commission was alleged to
rest upon the doctrine of pendent jurisdiction and the
provisions of 28 U.S.C. 2201 (R.A., pp. 3-6).
Eleven public hearings were held between 1963 and
1970 with total attendance of more than ten thousand.
They were divided between corridor hearings (also
called “location” hearings) and design hearings. The
former were held on June 5, 1963; August 13, 1965;
March 30, 1967; and April i6, 1968. The latter were
held on June 24, 1969; July 8, 1969; September 17,
1969; October 15, 1969; January 28, 1970; April 22,
1970; and May 13, 1970. On August 23, 1968, 23
U.S.C. 128 was amended to require that in addition to
consideration of the economic effects, a state highway
department must consider the “. . . social effect of such
a location, its impact on the environment and its con-
mae
a
sistency with the goals and objectives of such urban
planning as has been promulgated by the community.”
During this same time period the Federal Highway Ad-
ministration issued Policy and Procedure Memorandum
20-8 (January 17, 1969) and NEPA became effec-
tive on January 1, 1970.
The Department of Transportation issued Guide-
lines for Implementation of NEPA, PPM 90-1, August
24, 1971, establishing regulations governing prepara-
tion of Environmental Impact Statements for projects
commenced prior to NEPA. Under paragrepi 5(b)
thereof, Interstate 105 was reassessed and it was con-
cluded that an EIS was not required.
During this period, and on the strength of those
public hearings and “location” and “design” approvals
by the Federal Highway Administration (hereinafter
FHWA), petitioner commenced acquisition of needed
right of way. It made agreements with the separate
cities which, in turn, adjusted their public services,
transportation plans and financing to accommodate In-
terstate 105. Well over $88 million worth of right of
way was acquired at state expense. The combination of
acquisition and clearance left a severe impact on corri-
dor cities when the district court issued its preliminary
injuaction on July 7, 1972. Petitioner had not yet sought
Federal approval of its plans, specifications and esti-
mates (hereinafter PS and E approval).
In the opinion accompanying the injunction the dis-
trict court found no deficiencies in the hearings (352
Fed. Supp. 1339, 1340). Rather, it divined a shortcom-
ing not raised by any participant at any hearing: insuffi-
cient consideration of noise and air pollution. Coupling
that with the strong policy statement in NEPA, it re-
5) Slat he Mati oat hn tag whe ah de ot
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Sit AANA a, | cNeblte ME CLG a oe
i ah a
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a wo
quired that all “corridor” and “design” hearings be re-
peated. Further, it required those hearings to be used as
a forum to redetermine the “need for” the project. Addi-
tionally, it ordered compliance with NEPA, CEQA
(California Environmental Quality Act, Cal. Pub. Res.
Code §21000 et seq.), new studies of replacement hous-
ing, and specific project assurances to FHWA of its
availability.
State defendant appealed. As an administrative con-
cession to expedition and not the correctness of the dis-
trict court’s reasoning, the State and Federal defendants
commenced preparation of an Environmental Impact
Statement to comply with NEPA and CEQA. Neverthe-
less, and contrary to the opinions of the Circuit Court
herein, all issues were before the Circuit Court.
By its December 4, 1973, opinion the circuit court
reversed the district court, holding that new “corridor”
and “design” hearings were not required (Appendix
“ ‘A”).
The latest opinion in Keith, relying upon Lathan,
rejected the clear intent of NEPA that further major
federal actions be shaped to minimize their impact on
the environment. It did this by erroneously establish-
ing PS and E approval as the only major federal action,
ignoring the scheme of federal-state cooperation in the
planning and construction of Federal Aid Highways.
It then relied on NEPA to buttress its erroneous conclu-
sion.
California Highway Commission files this petition
not out of any desire to avoid compliance with NEPA
or escape full public participation in the decision-
making process. Those are assured by the medium of
the draft environmental impact statements and antici-
pated public meetings.
eal
Rather, it is filed in the belief that the Keith and
Lathan opinions of which review herein is sought are
contrary to established authority and could jeopardize
the scheme of federal-state cooperation employed by
Congress to achieve its objectives.
F. REASONS FOR GRANTING THE WRIT.
1 oy
Certiorari Must Issué to Disapprove the Simplistic
Formula Used by Lathan and Keith for Imple-
mentation of NEPA, and End Conflict With Con-
trolling Authority Throughout the Nation, and
Particularly Within the Ninth Circuit.
Central issues presented to the Ninth Circuit in
Lathan and Keith were: (1) The extent to which
NEPA applied to projects substantially under way prior
to its effective date; (2) The degree to which NEPA
should be applied to actions taken before and after its
effective date.
Ignoring different approaches taken by other cir-
cuits it held: .
1. There is no Federal “commitment” to an inter-
state highway until a state seeks, and the Federal
government gives, approval of plans, specifications and
estimates, pursuant to 23 U.S.C. 106(a), and starts
construction.
2. If that “commitment” occurs after enactment of
NEPA, it becomes the major Federal action having a
significant effect on the environment, making NEPA
applicable to all prior state actions.
3. Each state and federal action taken prior to the
“federal commitment”, regardless of its date, is to be
tested by the laws and regulations in effect at time of
the “commitment.”
PLS A OE PREETI POE eg IEE mrs
~
~
~
BIO FOE L I BEE PY
a ‘em
. 4. Corridor and design hearings held before the
1968 amendment of 23 U.S.C. 128(a), between that
date and the 1970 enactment of NEPA, and subsequent
thereto are presumed invalid.
5. Review of compliance with NEPA is tested for
procedural compliance under 5 U.S.C. 706(2)(D) as
opposed to substantive compliance under 706(2)(A).
Cases reviewing the questions have taken four ap-
‘proaches. The Second ani Fourth Circuits applied an
equitable balancing tes: to govern application of Con-
gress’ concern for the environment in NEPA and amend-
ment of 128(a), applying them only “. . . if the cost of
altering or abandoning . . . would not certainly out-
weigh whatever benefits might be derived . . .” from
a NEPA reassessment. Arlington Coalition on Trans-
portation v. Volpe (4th Cir. 1971) 458 F.2d 1323,
1337, cert. den. 409 U.S. 1000; cf. Movement Against
Destruction v. Volpe (4th Cir. 1974) 499 F.2d 29
affirming Movement Against Destruction v. Volpe, 361
Fed. Supp. 1360, 1389-1391; Monroe County Conserva-
tion Council, Inc. v. Volpe (2nd Cir. 1972) 472 F.2d
693, 701.
A second line of cases looks to prospective agency
compliance, holding that expressions of concern for the
environment in NEPA, in the amendment of 23 U.S.C.
128(a) and in PPM 20-8 not retroactive. These author-
ities require further major actions be shaped to mini-
mize their impact on the environment. This accords
with this court’s view in United States v. SCRAP, 412
U.S. 669, infra, and with the view of the Council on
Environmental Quality, 38 Fed. Reg. 20555-20556 (8-
1-73) §1500.13; (see also 23 C.F.R. §1.38, Appendix
A, 5). Township of Hopewell v. Volpe (3rd Cir. 1971)
446 F.2d 167, 172; Township of Hopewell v. Volpe
BRINE IDO BALE NE Re, 8
PEROT Pe ITT Tb
~
i a
sniiie
(3rd Cir. 1973) 482 F.2d 376, 379; Wildlife Preserves,
Inc. v. Volpe (3rd Cir. 1971) 443 F.2d 1273, 1275-
1277; Jicarilla Apache Tribe v. Morton (9th Cir. 1973)
471 F.2d 1275, 1284; Citizens Environmental Council
v. Voipe (10th Cir. 1973) 484 F.2d 870, 873, cert.
den. +2 U.S.L.W. 3584; Environmental Defense
Fund v. Froehlke (8th Cir. 1973) 477 F.2d 1033;
Swain v. Brinegar (D.C.S.C. Ill.) 378 Fed. Supp. 753.
A third group looks for a “peg” upon which to test
compliance with NEPA. If the Secretary of Trans-
portation issues his design approval prior to NEPA, the
entire project need not be reassessed. Robinswood Com-
munity Club v; Volpe (9th Cir. 1974) .... F.2d ....
(mandate stayed), reported at 5 ELR 20378, 6 ERC
1401; Citizens of Marlboro v. Volpe (3rd Cir. 1972)
459 F.2d 332, 335; Pennsylvania Environmental Coun-
cil, Inc. v. Bartlett (3rd Cir. 1971) 454 F.2d 613, 618-
619.
Finally, some circuits rely on equitable doctrines of
laches, Ragland v. Muller (Sth Cir. 1972) 460 F.2d
1196; Lathan v. Volpe (9th Cir. 1971) 455 F.2d
1111, 1122; Clark v. Volpe (Sth Cir. 1972) 461 F.
2d 1266, affirming 342 Fed. Supp. 1324.
The conflict of Keith and Lathan with prior Ninth
Circuit opinions is even more pronounced:
LaRaza Unida v. Volpe, 488 F.2d 559 holds that
there is Federal commitment on program submission.
These cases are contra.
The first Lathan decision, Lathan v. Volpe, 455 F.2d
1111, holds that there are five specific major Federal
actions affecting the environment in a Highway project.
This delineation has been uniformly followed in all
circuits. These cases are contra.
* c % ie DADO AIRS Hea Rem Rao eT A TEtoc a
SEE AER RE ate mT ett 7%
—10—
Jicarilla, supra, holds actions prior to NEPA need
not be redone and that future actions may be tailored
by proper prospective decisions of the administrator.
These cases are contra.
San Francisco Tomorrow v. Romney, 472 F.2d 1021,
1024-1026 eschews retroactive application of NEPA,
yet concludes that a mere agreement to change the
West Berkeley Project after NEPA was a major feder-
al action. Cf. Robinswood, supra. Lathan and Keith,
supra, are contra.
In short, these cases eviscerate all decisions relating
to ongoing projects and those pertaining to intermediate
steps in new or old projects. It holds, contrarily, that
there is only one federal action upon which. environ-
mental and participating action hinges—the last act
possible in Federal approval.
The California Highway Commission (and also
FHWA) was attempting to comply with the second
category of authority noted above prior to the July
1972 injunction. A good faith effort was under way to
forge future major actions pursuant to NEPA.
In each of these four lines of authority, questions of
compliance with hearing statutes [23 U.S.C. 128(a)]
were judged independently on the basis of facts before
the court. The district court in Keith required new
128(a) hearings. It found compliance with the law
as it then existed, but concluded in its view insufficient
consideration was given to noise and air pollution.
Ninth Circuit opinions in Lathan and Keith go beyond
that tenuous conclusion to hold that no hearing, or
other action, is valid unless it complies with whatever
law and regulations may be in effect in the future
when the final federal approval is sought. Clearly, that
CE NNO Nn 2TH we RETIRE Ye,
EET ae Pee ES SSE AREY EY SOMOS DSL ED NAY ee Ths
a
imputes to NEPA the power to sub silentio repeal
other statutes. That concept was disapproved in United
States v. SCRAP.
Moreover, the opinion below implies that there need
be no compliance with the policies of NEPA until the
last act of Federal approval in a joint Federal-State
project. This simplistic formula deviates from all re-
ported cases. It vitiates the policy of NEPA because
uncertain future standards of NEPA cannot be com-
plied with during planning stages. Assured compliance
can occur only at the last Federal Act.
Il.
A Critical Question Involving Federal-State Coopera-
tion Is Presented and Should Command This
Court’s Attention.
Keith and Lathan dealt with Highway projects and
only those under way or substantially completed on
the effective date of NEPA. The Ninth Circuit opinions
go beyond these issues and will apply to all Federal-
State joint endeavors regardless of the time of their
conception.
Four types of highways were made eligible for fed-
eral participation by the Federal-Aid Highway Act of
1973: the primary system, the urban system, the sec-
ondary system and the Interstate System. Both Keith
and Lathan concern Interstate System highways, eligi-
ble for 90% federal financing, but can be applied to
any federal aid highway.
Congress declared in 1973: “. . . the prompt and
early completion of the National System of Interstate
and Defense Highways... (is) . . . essential to the
national interest and . . . one of the most important
objectives of this Act.” Federal-Aid Highway Act of
1973; 23 U.S.C. 101(b).
SHLAA! IE MOSES RPS
|
It authorized a $20 billion expenditure to complete
the 41,000-mile Federal Aid Interstate Highway Sys-
tem by 1979, completing a $76.3 billion system com-
menced in 1956. H.R. 93-118, P.L. 93-87, 8 USS.
Code Congressional and Administrative News 2612-
2614. It chose the mechanism of close federal-state
cooperation as the means.
That cooperation in planning has five: distinct stages
(Lathan v. Volpe, 455 F.2d 1111). The FHWA first
approves inclusion of the project in the Interstate Sys-
tem. Second, it approves the State’s program for com-
pletion of the project. Then the State selects the precise
corridor or location of the project (23 C F.R. 790.3(a),
App. “E”) after public hearings; FHWA gives its cor-
ridor or Jocation approval. Precise design features are
prepared by the State and presented at “d-sign” hearings
(23 C.F.R. 790.3(b), App. “E” hereto). federal design
approval is then given, authorizing purchase of needed
right of way. State-prepared plans, specifications and
estimates are then submitted to FHWA for approval.
Regardless of the size or scope of a “project,” PS&E
approval is the last and final step in this chain of major
federal actions prior to ultimate construction of such
federal-state project.
Federal-state cooperation is also the means em-
ployed to finance the Interstate System. One option
available to a state is to advance its funds through the
first four of the five steps and obtain federal reim-
bursement at PS&E approval. Another permits federal
funding of right of right-of-way acquisition and pay-
ment of relocation expenses (23 U.S.C. 108(a), (c)
(2)). Administrative expenses during the five-step proc-
ess can also be advanced to the states. Typically, com-
pletion of the five-step cooperative process takes ten
or more years.
si
ences Bien
A state looking to ultimate federal participation can
and should comply with the extremely important poli-
cies expressed in NEPA. It must comply with the im-
perative of public participation. Keith demonstrates peti-
tioner’s compliance with those policies. Petitioner, Cali-
fornia Highway Commission, complied with FHWA
guidelines for implementation of NEPA (paragraph 5b,
PPM 90-1, 23 C.F.R. 1.38, App. “A”) in addition to
a pre-NEPA study of project impacts conducted by
retained engineering consultants. It nevertheless under-
took a two-year study of environmental impacts under
NEPA including a careful assessment of the impacts of
abandonment. Public participation through corridor
and design hearings complied with and exceeded ap-
plicable statutes and regulations, and the district court
so found (footnote 7, App. “A”).
Yet on a theory not raised, briefed or argued by any
party, Lathan and Keith require state compliance with
federal statutes and regulations at that mythical point
in time when the federal agency becomes “committed”
to the project, and worse, that commitment occurs
only after the last act of approval by the federal gov-
ernment.
Lathan and Keith jeopardize that process. They hold
that this partnership does not exist until the last act
of federal approval because there is no federal “com-
mitment” until then.
This same Circuit held a state is committed to ever-
changing federal statutes and regulations by the mere
anticipation of federal funds in the future. LaRaza
Unida v. Volpe (9th Cir. 1973) 488 F.2d 559, cert.
den. 409 U.S. 890. Indeed, an act of Congress is re-
quired to extract a state from that commitment. Section
= =
154 of the Highway Act of 1973, P.L. 93-87, for
example, terminates the federal-state relationship on
the oft litigated San Antonio North Expressway. San
Antonio Conservation: Society v. Texas (5th Cir. 1974)
.... F.2d .... acknowledged the power of Congress tu
do so.
What state highway agency would embark on that
lengthy process, committing its resources on the slender
hope that no statute or regulation affecting its per-
formance would be altered before it sought approval
of its Plans, Specifications and Estimates?
Lathan and Keith will cut across a wide range of
cooperative federal-state ventures and, are not limited
by. the peculiarities of federal-state cooperation in the
highway program. Congress has emploved similar fed-
eral-state partnerships in implementing many of its
policies, culminating in federal agency approval and
reimbursement. It can be expected to do so in the future.
A state intending to use its resources in anticipation
of 2 federal monetary “commitment”, 1c now faced with
equally unsatisfactory alternatives. It ma; set out to
carefully assess the environmental consequences of its
action, seek maximum public participation and care-
fully coordinate planning of the facility with affected
counties and cities. This lengthy process invokes the
huge risk of a change in statute or regulation prior to
federal “commitment.” Pursuant to the opinions below
if such change occurs all that has gone before is nulli-
fied and thereafter void.
The other alternative is.to furtively plan its project,
compressing EIS preparation, cooperative planning and
public participation in the shortest possible time prior
to federal commitment to minimize that risk.
i
eee |
a
Neither alternative was intended by Congress. The
first would prolong projects forever through constant
recompliance or abort them through fear of such great
financial drain and loss. The second would totally de-
stroy the policy of NEPA.
III.
Lathan and Keith Are Contrary to United States v.
SCRAP, and Congrcssional and Regulatory Enact-
ments Intended to Insure Compliance With NEPA.
This court recently stated “The statutory language in
fact indicates that NEPA was not intended to repeal
by implication any other statute.” United States v.
SCRAP (1973) 412 U.S. 669, 694-696.
Congress has enacted “other statutes” governing the
Federal Aid Highway Program. Paramount is 23 U.S.C.
109(h)(i) (added by P.L. 91-605, 1970, set forth in
App. “E”) requiring the Secretary of Transportation
to issue guidelines properly balancing between “. . .
the need for fast, safe and efficient transportation”
and environmental concerns for “. . . all projects with
respect to which plans, specifications and estimates are
approved after the issuance of such guidelines.” The
Secretary responded with regulations now at 23 C.F.R.
1.38, Appendix “A” (PPM 20-4, 90-1), 23 C.F.R.
Parts 772 (noise standards), 790 (Public Hearings)
and 795 (Action Plan—Process Guidelines), con-
tained, in part, in Appendix “E”.
An unchallenged reassessment was made of the
Century Freeway concluding an Environmental Impact
Statemeat was not required, pursuant to paragraph 5b,
of PPM 90-1. The guideline, not the reassessment,
was thrown out by the District Court as an emascula-
tion of NEPA (352 Fed. Supp. at 1333, footnote 9).
a
Public hearings were held pursuant to 23 U.S.C. 128
(a) and PPM 20-8 (now 23 C.F.R. 790, (2)(1),
(b)(1)) and found sufficient, yet ordered anew be-
cause the district court, not the public, wanted “need
for” the project redetermined by the public solely on
the basis of any noise or air quality impact. Housing
studies and project assurances were ordered repeated
on a finding that plaintiffs’ evidence was “unconvinc-
ing”, “meager,” and “skimpy” (352 Fed. Supp. 1344-
1346) because it was a NEPA case (352 Fed. Supp.
1350).
The Ninth Circuit concurred for the reason that
there has not yet been PS and E approval. These con-
clusions fly in the face of 23 U.S.C. 109 and its follow-
ing regulations. 23 U.S.C. 109(h) implicitly allows
PS&E approval prior to July 1972 without compliance
with its provisions. 23 U.S.C. 109(i) does two things;
it recognizes location approval as a Federal commit-
ment, and it exempts projects having such approval
prior to July 1972 (the project here in question) from
compliance with noise standards adopted by the Secre-
tary of Transportation.
Petitioner complied with statutes and regulations ap-
plicable to it, only to have its performance set aside by
the district court on the basis of an implied repeal of
those statutes and regulations by enactment of NEPA.
The Ninth Circuit opinions in Keith and Lathan ignore
this court’s disapproval of “implied repeal” and reach
an even more contrary result. By falsely characterizing
the contractual commitment of funds as the “major
&
= =
federal action”, ignoring the years of federal participa-
tion that precede that point, it even more drastically
departed from this court’s announcement in United
States v. SCRAP, supra.
The district court voided valid hearings on its view
of what the law should be. The Ninth Circuit went
further, holding that hearings can only be valid if they
comply with unknown laws and regulations at some
uncertain time in the future.
IV.
If the Ninth Circuit Court Opinions in Keith and
Lathan Are Correct Statements of the Law, There
Can Be No Injunction Herein.
If the opinion below is the law, it becomes clear,
contrary to all other reported decisions that there is
only one major Federal action in a joint Federal-State
project. That is final Federal approval of the project
(PS&E approval). If this be true, then there can be no
violation of NEPA to be enjoined prior to that act.
No court can determine that a violation of NEPA
is even threatened until the project is submitted
for PS&E approval. First, under the Federal Highway
Act PS&E approval cannot occur until it is requested.
It is axiomatic that until it is requested it cannot threat-
en. Secondly, until the act of PS&E approval is about
to occur (and after its request) no trial court could
begin to guess what the law might or might not require
at such time of occurrence.
TEFL RL LEP OOT LEGGE T NS bE CE OE A I RT ite a
=
Contrary to the opinion below petitioner has ap-
pealed at all stages the validity of the entire injunction
herein. Under the opinion below there can be no vio-
lation or threatened violation of Federal law in this
case so the injunction should be vacated.
Dated: October 29, 1974.
Respectfully submitted,
Harry S. FENTON,
Chief Counsel,
JosEPH A. MONTOYA,
RoBERT V. COHUNE,
Attorneys for Petitioners.
RosBERT L. MEYER,
Of Counsel.
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48
APPENDIX “A.”
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Ratpu W. Kerru and EsrHer May Ke!tn, i
husband and wife, et al.,
Plaintiffs-Appellees,
Vs.
CauirorNiA Highway ComMIssion, DEPARTMENT
or Pusiic Works, Jimes A. Mor, individua-
ally and in his capacity as Director of Cali-
fornia Department of Public Works, and
Rosert Date, individually and as State
Highway Engineer, California Division of
Highways, California Department of Public
Works,
Defendants-A ppellants. . No. 72-3072
Ravpu W. Kerry and EsrHer May Kerrn,
husband and wife, et al.,
Plaintiffs-Appellces,
VS.
JOHN A. VoLpE, as Secretary of Transportation;
SHERIDAN A. Farin, as Administrator for
Region 7, Federal Highway Administration,
Department of Transportation; Donato E.
TRULL, as Division Engineer, Federal High-
way Administration, Department of Transpor-
tation,
Defendants-A ppellants. j
[December 3, 1973]
Appeal from the United States District Court
for the Central District of California
2 Ralph W. Keith and Esther May Keith, et al. vs.
OPINION
Before: HAMLEY and CHOY, Circuit Judges, and
SMITH,®* District Judge
SMITH, District Judge:
The Century Freeway is a 17-mile section of interstate highway
which, if constructed, will cross the southern portion of the densely
populated Los Angeles basin. The district court on the petition of
plaintiffs, interested individuals, associations, and corporations,
enjoined all further activity (with some expressly permitted excep-
tions) in furtherance of the freeway until:
(a) The federal defendants (appropriate federal officials)
comply with the requirements of the National Environmental
Policy Act of 1969 (42 U.S.C. §§ 4321-4347) (hereinafter
NEPA).
(b) State defendants (appropriate departments and officials
of the State of California) comply with the requirements of the
California Environmental Quality Act of 1970 (West’s Ann.
Cal. Public Resources Code §§ 21000-21151 (1970)) (herein-
after CEQA).
(e) State defendants certify to Defendant Volpe that they
have held, or provided the opportunity for, additional public
hearings on the Century Freeway, which hearings shall focus
on the effect of the freeway on air and noise pollution in
accordance with § 128(a) of the Federal Aid Highway Act
(23 U.S.C. § 128(a)) and PPM 206, 23 C.F.R. Part 1, App.
A (Jan. 1, 1972, Revision).
(d) State defendants submit to federal defendants the specific
project assurances required by Par. 7(b) of IM 80-1-71, 23
C.F.R. Part 1, App. A (Jan. 1, 1972, Revision).
(e) State defendants submit to the Federal Highway Admin-
istration and said Administration approves additional housing
availability studies.
This appeal, which is prosecuted by the California defendants
alone, presents no problems as to the propriety of conditions (a),
*The Honorable Russell E. Smith, Chief Judge of the United States
District Court for the District of Montana, sitting by designation.
BOAT *Sanenn Te eer catty +
ORT Se yee Speer oe:
RT RPL S i ae Le ne a ee —
. SI Mra. Se
‘
es a
. REE Ra OLE ESE
——E——EE———————e
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ee
California Highway Commission, et al. 3
(b), (d), and (e) of the court’s injunctive order. It does pose prob-
lems as to the propriety of condition (c) and as to the breadth of
the injunction which was granted. We proceed to an examination
of those problems.
The building of any section of federally-funded roadway involves
a series of stages. See Lathan v. Volpe, 455 F.2d 1111 (9th Cir.
1971). We are here concerned with the “routing” and “engineer-
ing design” stages in which the state prepares and submits for
approval of the Secretary of Transportation such surveys, plans,
specifications, and estimates as relate to each stage. 23 U.S.C.
§ 106(a).
23 U.S.C. § 128(a)! provides that any state highway department
which submits plans for a federal-aid highway project involving the
“going through” of any city shall certify to the Secretary that it
has held public hearings and has considered the effect of such loca-
tion. As originally enacted (Act of Aug. 27, 1958, Pub. L. No.
85-767, 72 Stat. 902) this section required only that the “economic”
effects of such highway location be considered. The amended version
of this section (Act of Aug. 23, 1968, Pub. L. No. 90-495 § 24, 82
Stat. 828) (hereinafter amended Federal Highway Act) now pro-
vides that in addition to the economic effects of such location, these
hearings should also consider its “social effect . . . , its impact on
1“Pyblic 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 incorporated or unincorpo-
rated, sis!l certify to the Secretary that it has had public hearings,
or has afforded the opportunity for such hearings, and has considered
the economic and social effects of such a location, its impact on the
environment, and its consistency with the goals and objectives of such
urban planning as has been promulgated by the community. 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.
Such certification shall be accompanied by a report which indicates
the consideration given to the economic, social, environmental, and other
effects of the plan or highway location or design and various alterna-
tives which were raised during the hearing or which were otherwise
considered.”
VOLES IELTS FILE UE a Be tent Ce gti BSP Regma,
4 Ralph W. Keith and Esther May Keith, et al. vs.
the environment, and its consistency with the goals and objectives
of such urban planning as has been promulgated by the commu-
nity.” This statute has been interpreted by the Department of
Transportation as requiring two public hearings on a highway
“going through” a city; one for the location of the route, ie., “a
corridor public hearing,” and one concerning the design, i.e., “a
design public hearing.” See PPM 20-8, 23 C.F.R. App. A (Jan. 1,
1972, Revision) .?
The facts relative to the Century Freeway “corridor” hearings
are these: All hearings had been held by the end of April 1968. The
location of the western portion of the freeway was approved by
the Department of Transportation in April 1968. In July 1968 the
California Highway Commission approved the location of the east-
ern portion of the corridor. Federal approval followed in October
. 68. It appears, then, that all of the location hearings and
upprovals had been completed prior to January 1, 1970, the effec-
tive date of NEPA, but that the federal location approval of the
eastern portion followed the enactment on August 23, 1968, of the
amended Federal Highway Act. The locations were fully approved
prior to the effective date (January 17, 1969) of PPM 20-8. The
location hearings did comply with the law and the regulations in
effect at the time they were held and at the time they were sub-
mitted for approval.
A problem is posed: Did the amended Federal Highway Act,
effective August 23, 1968, by itself, or taken in conjunction with
NEPA, effective January 1, 1970, operate retroactively to require
that that which had been lawfully done prior to the enactment of
either act be redone? The rule is that civil statutes are presumed
to operate prospectively and will be applied retroactively only if it
can be found that Congress has clearly and unambiguously indi-
cated its intention to make the statute retroactive.* The trial court
did not consider the problem of retroactivity as such but did hold
that the language of 42 U.S.C. § 4332, “[t]he Congress authorizes
2The citation is to the Policy and Procedure Memorandum effective
at the time of the entry of the preliminary injunction in this case.
3Greene v. United States, 376 U.S. 149 (1964; Hassett v. Welch,
303 U.S. 303 (1938); United States v. Perry, 431 F.2d 1020 (9th
Cir. 1970).
California Highway Commission, et al. 5
and directs that, to the fullest extent possible: (1) the policies,
regulations, and public laws of the United States shall be inter-
preted and administered in accordance with the policy set forth in
this chapter,” compelled the conclusion that new corridor hearings
were required. This result is supported by the decisions in Arling-
ton Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.
1972), Monroe County Conservation Council, Inc. v. Volpe, 472
F.2d 693 (2d Cir. 1972),4 and D.C. Federation of Civic Associa-
tions, Inc. v. Volpe, 434 F.2d 436 (D.C. Cir. 1970) (MacKinnon, J.,
dissenting). Contra, Township of Hopewell v. Volpe, 446 F.2d 167
(3d Cir. 1971).
Examining the amended Federal Highway Act separately and in
conjunction with NEPA we do not find that unambiguous indi-
cation of congressional intent necessary to retroactivity. There is
nothing in the language of the amended Federal Highway Act
which indicates a congressional intent that it should be given retro-
active effect. In the enactment of NEPA Congress did not use any
language suggesting the retroactivity of the amended Federal High-
way Act. It appears from the location approvals granted and from
the regulations that the interpretation of the highway adminis-
trator, which is entitled to some weight, was against retroactivity.5
The amended Federal Highway Act required hearings on the
economic, social, and environmental impacts of federal highways.
Certainly it could not be the purpose of NEPA (concerned only
with the environment) to make the amended Federal Highway Act
4In Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d
693 (2d Cir. 1972), the court made the requirement for new hearings
turn upon the date of federal approval. We see no purpose in this.
The law in question imposed a duty on. state highway departments.
We think that the adequacy of the performance of the duty should
be judged by the law in effect when the duty was performed. We do
not think that a state’s duty should be made to depend upon the “in-
basket” and “out-basket” flow in a federal bureau unless Congress
expressly says so.
5PPM 20-8, par. 6(d) provides with respect to projects which had
had location approval prior to PPM 20-8 that new hearings were re-
quired only under circumstances not relevant here. See Triangle Im-
provement Council v. Ritchie, 314 F. Supp. 20 (S.D. W.Va. 1969),
aff'd, 429 F.2d 423 (4th Cir. 1970), cert. dismissed as improvidently
granted, 402 U.S. 497 (1971).
Aue DS pete ead Se RSS te, = a ——
PS SE Tw SRERPELAE GEL Rete SG: RS
ease ERSTE FS
iam (ODES TTR TR eH NSTC ARM RANI E Jeo ot Np: te
6 Ralph W. Keith and Esther May Keith, et al. vs.
retroactive so as to require new social and economic impact hear-
ings. If Congres: ..*onded that NEPA give the amended Federal
Highway Act a partial retroactivity to preserve the environmental
hearing requirements of that Act, why was such a simple intention
buried in a statement of general policy rather than expressly stated?
Can it be fairly inferred that Congress, which did not in NEPA
require mandatory hearings,® did by enacting NEPA disclose an
unambiguous intention to make hearings mandatory in federal high-
way projects as distinguished from other federal projects by giving
retroactivity to the amended Federal Highway Act, which Act did
not provide for its own retroactivity? Can it be fairly inferred that
NEPA, which is directed to federal rather than state agencies,
makes retroactive that portion of the amended Federal Highway
Act which is directed to the duties of state agencies? We think not.
The district court required that new design hearings be held. The
facts relative to the design hearings are these:
The State defendants divided the Century Freeway into eight
segments for the purpose of planning the highway design and secur-
ing Federal Highway Administration approval. The design of one
segment was approved on August 14, 1968. Our reasons for holding
that the amended Federal Highway Act was not retroactive so as
to require new corridor hearings lead us to the conclusion that
neither it nor PPM 20-8 were retroactive as to design hearings.
Design hearings for the remaining seven segments were held
between June 24, 1969, and May 13, 1970. The following discussion
applies only to the seven design hearings held after the effective
date of PPM 20-8.
There was a full compliance with the amended Federal Highway
Act. Public hearings were held and the reports filed did indicate
“the consideration given to the economic, 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 considered.” (Emphasis supplied.) See note 1, supra.
The district court recognized the fact that hearings had been held
and that there had been some consideration given to environmental
problems but decided that there had been an insufficient compliance
SJicarilla Apache Tribe v. Morton, 471 F.2d 1275 (9th Cir. 1973).
California Highway Commission, et al. 7
with PPM 20-8 because little information about the problem of air
and noise pollution was made available to the public.7
7The district court said in its original opinion (Keith v. Volpe, 352
F.Supp 1324 (C.D.Cal. 1972)') at page 1339:
Having examined the transcripts of the hearings and the reports
on the hearings submitted to the FHWA by the state defendants,
the Court is not prepared to say that the hearings were totally
inadequate in their consideration of the relevant social, economic,
and environmental effects, nor that they provided an inadequate
“public forum * * * for presenting views” on alternate locations
and designs for the freeway. The hearings may not have been
ideal, but as paragraph 4c of PPM 20-8 recognizes, each possible
social, economic, or environmental effect need not necessarily “be
given equal weight in making a determination upon a particular
highway location or design.” Nevertheless, the transcripts and the
reports reveal that very little consideration was given to one of
the most important of the Century Freeway’s effects—i.e., its effect
on noise and air pollution. This effect is so crucial and the con-
sideration given to it so minimal that the Court believes that
further work on the freeway should be enjoined until the state
defendants certify to the FHWA that they have held, or have
provided an opportunity for, new public hearings focusing on the
likely effect of the freeway on air and noise pollution.
Later, in its decision on a motion to amend the preliminary injunc-
tion the court said at page 1353:
. The Court believes that the public hearing requirement is broader
in scope than the federal defendants contend. The state highway
authorities must do more than merely permit members of the
public to come to an auditorium and express whatever concerns
they might have at the time. PPM 20-8, 23 C.F.R. Part 1, Ap-
pendix A, which implements Section 128(a), imposes upon the
state authorities the responsibility to provicie people who attend
public hearings with information about the alternatives that exist.
Paragraph 8a(3) of PPM 20-8 provides that the state highway
authorities must notify the public, in advance of hearings, that
“maps, drawings, and other pertinent information developed by
the State highway department * * © will be available for public
inspection and copying” prior to the public hearings. Paragraph
8b(3) of PPM 20-8 provides,
“At each required corridor public hearing, pertinent information
‘about location alternatives studied by the State highway depart-
ment shall be made available. At each required highway design
public hearing information about design alternatives studied by
the State highway department shall be made available.”
The state defendants did not meet their obligations by simply
convening hearings. Air and noise pollution is one of the social,
Nsiy J
yas \ .
RPO Lue NARADA RRR BITS Hue vosereNEn ABR NRE RAR ET TERETE PAROS SAINTE UAN BE at
8 Ralph W. Keith and Esther May Keith, et al. vs.
In our opinion the district court imposed a burden on the defend-
ants not required by the law or regulations. We start with the
proposition that the building of highways is a function of the
executive, subject to court control only when the executive acts
contrary to the Constitution, the Acts of Congress, or its own regu-
lations, We look, therefore, to the amended Federal Highway Act
and the regulations to ascertain the duties of the Federal Highway
Administration and the State defendants.
Insofar as the amended Federal Highway Act is concerned we
. find a congressional intent to provide a public forum and nothing
more, If the public, afforded the right to a hearing, is apathetic
enough not to request one, then there need be none. This indicates
to us that Congress placed the duty of going forward at the hearing
upon the public. There is no suggestion in the Act that the con-
cerned agencies were required to conduct an educational campaign
or gather source material for the debate.
(
The regulation, PPM 20-8, required more. Paragraph 8a(3) does
require that the state highway authority notify the public in
advance of the hearings, that “maps, drawings, and other pertinent
information developed by the State highway department . . . will be
available for public inspection and copying” prior to the hearings.
(Emphasis supplied.) PPM 20-8, par. b(3) does require that at
the public design hearing information about “design alternatives
studied by the State highway department shall be made available.”
(Emphasis supplied.)
_, We think the fair import of PPM 20-8 is that the highway
department reveal what it has studied, what it has developed, and
what alternatives have been considered so that the public may know
the route and principal design features of the highway and at the
public hearing make known their views as to any effect that the
economic, and environmental effects listed in paragraph 4c of
PPM 20-8; information about the problem clearly is pertinent to
the consideration of the design alternatives that are available on
a given freeway project. The consideration given to air and noise
pollution at the design hearings on the Century Freeway was
inadequate not because the members of the public in attendance
expressed little interest in the problem, but because little’ infor-
mation about the problem was made available to the public. There-
- fore additional design hearings are appropriate.
California Highway Commission, et al. 9
highway may have. We do not believe that it ean be construed to
require highway departments to develop any given quantity of
information about the 23 effects* mentioned in PPM 20-8, par. 4(c),
before a valid design hearing may be held. We do not review the
highway department’s obligation, political in nature, intelligently
to consider all the effects that a proposed action may have. We are
considering only what is required to be done to fulfill the require-
ment for a public hearing.® It may be that in any given case inade-
8These are:
“(1) Fast, safe and efficient transportation.
(2) National defense.
(3) Economie activity.
(4) Employment.
(5) Recreation and parks.
(6) Fire protection.
(7) Aesthetics.
(8) Public utilities.
(9) Public health and safety.
(10) Residential and neighborhood character and location.
(11) Religious institutions and practices.
(12) Conduct and financing of Government (including effect on
local tax base and social service costs).
(13) Conservation (including erosion, sedimentation, wildlife and
general ecology of the area).
(14) Natural and historic landmarks.
(15) Noise, and air and water pollution.
(16) Property values.
(17) Multiple use of space.
(18) Replacement housing.
(19) Education (including disruption of school district opera-
tious).
(20) Displacement of families and businesses.
(21) Engineering, right-of-way and construction costs of the
project and related facilities.
(22) Maintenance and operating costs of the project and related
facilities.
(23) Operation and use of existing highway facilities and other
transportation facilities durirg construction and after completion.
This list of effects is not meant to be exclusive, nor does it mean
that each effect considered imust be given equal weight in making
a determination upon a particular highway location or design.”
PPM 20-8, par. 4(c)
9We note PPM 20-8, par. 6(a) requires only that “a public hearing
must be held or an opportunity afforded” and that whether there be
a hearing or not the Federal Highway Administrator is required to
review the obligation of the state to do adequate planning.
10 Ralph W. Keith and Esther May Keith, et al. vs.
quate information will be developed on one or more of the effects
of the proposed federal highway. It may be that in some instance
the effect of the highway on historic landmarks will be completely
ignored. In that case the prehearing planning would be poor, but
it does not appear to us that deficiencies in planning should vitiate
a hearing, the purpose of which is to reveal those deficiencies. In
short, we think that what is required is that the highway depart-
ment reveal what it has planned and that at a public hearing the
public be given an opportunity to tell the highway department why
what has been planned should be abandoned or changed because of
the evil effect which would flow from it.!¢
It may be that the compliance with NEPA and CEQA required
by the decree will reveal such deficiencies in the location and design
planning in light of the environmental impacts that the Century
Freeway project must be abandoned or the location and design sub-
stantially altered, but we are of the opinion that neither new cor-
ridor nor design hearings are required by NEPA, the amended
Federal Highway Act, or PPM 20-8.!!
We see no merit in the argument made with respect to the breadth
of the injunction. See Lathan v. Volpe, supra.
The case is remanded to the district court for further proceed-
ings not inconsistent herewith.
HAMLEY, Circuit Judge (Dissenting) :
I respectfully dissent. After lengthy hearings, the district court
wrote a thoroughly documented twenty-nine page opinion (352
F.Supp. 1324 (C.D. Cal. 1972)), dealing with all of the issues in
this case, including the necessity of new design and corridor hear-
ings. I agree with the conclusions reached by the district court.
10Tt should be noted here that we are considering only the require-
11We do not intimate if, as a result of the
studies changes in location or design are thought to be required to be
made, additional public hearings would not then be
i NPS ES. + AED
California Highway Commission, et al. 11
Design Hearings
The district court’s determination that new design hearings were
necessary was predicated upon the fact that, but for one segment
of the Century Freeway, the State’s design hearings were held after
the amendment of section 128(a) of the Federal-Aid Highway Act,
23 U.S.C. § 128(a), on August 23, 1968. Prior to this amendment,
section 128(a) required only that the State hold public hearings to
consider the “economic effects” of constructing the proposed free-
way. Under the amendment, however, the State was required to hold
public hearings to consider the economic and social effcets of such
a location, its impact on the environment, and its consistency with
the goals and objectives of such urban planning as has been pro-
mulgated by the community.
As the district court pointed out, regulations prepared by the
Federal Highway Administration (FHWA) pursuant to amended
section 128(a), clarify the basic statutory requirements. See PPM
20-8, 23 C.F.R., Part I, App. A. Under these regulations, State
highway e2uthorities are required to hold two sets of hearings: first,
a “corridor public hearing,” and second, a “highway design public
hearing.” Paragraph 4c of PPM 20-8 lists twenty-three possible
“social, economic, and environmental effects” that are relevant to
the selection of routes and designs for proposed highways. The
fifteenth of these possible effects is: “(15) Noise, and air and water
pollution.”
The district court, after examining the transcripts of the hear-
ings and the reports on the hearings submitted to the FHWA by
the state defendants, concluded that very little consideration had
been given to the effect of the Century Freeway on noise and air
pollution. This led the district court to state:
“This effect [of noise and air poilution} is so erucial and
the consideration given to it so minimal that the Court believes
that further work on the freeway should be enjoined until the
state defendants certify to the FHWA that they have held,
or have provided an opportunity for, new public hearings
focusing on the likely effect of the freeway on air and noise
pollution.” 352 F.Supp. at 1339.
In rejecting this district court view, the majority construes sec-
tion 125‘a) and PPM 20-8 as requiring only that the State provide
OT OP VE ON ee
12 Ralph W. Keith and Esther May Keith, et al. vs.
an opportunity for a public hearing and, if one is demanded, that
the State need make available to the public only the data actually
considered by the State. According to this view, if the State has
given minimal consideration to particular social, economic and
environmental effects, it need only so indicate. The duty of provid-
ing additional relevant data regarding possible adverse effects of
the proposed project, the majority holds, lies with the public.
It seems to me this view of the State’s duties regarding public
hearings is inconsistent with the express language of PPM 20-8.
The regulation “requires State highway departments to consider
fully a wide range of factors in determining highway locations and
highway designs.” PPM 20-8, par. 1. (Emphasis added.) One of the
factors which must be given full consideration is the possible effect
on noise and air pollution. PPM 20-8, par. 4(¢c) (15). The regulation
requires that this factor be fully considered, not merely that it be
given some passing consideration, as the majority seems to suggest.
The hearing procedures established by PPM 20-8 “are intended
to afford full opportunity for effective public participation in the
consideration of highway location and design proposals. . . .” PPM
20-8, par. 1. (Emphasis added.) To accomplish this end, the State
must make available to the public “maps, drawings and other per-
tinent information developed by the State highway department”
regarding its design proposals. PPM 20-8, par. 8(a) (3). The major-
ity emphasizes that this latter requirement extends only to such
pertinent information as is actually developed by the State high-
way department. But this ignores the fact that the State has an
obligation to develop that quantity of information necessary for
full consideration of noise and air pollution effects.
In my opinion, PPM 20-8 does, therefore, place on the State the
duty of developing the information necessary for full considera-
tion of the possible effects of the proposed freeway on noise and air
pollution. That information must then be made available to the
publie for consideration at a publie hearing.
The majority would separate the question of the adequacy of the
hearings from the question of whether the State has fulfilled its
obligation “intelligently to consider all the effects that a proposed
action may have.” In my view, the questions are not separable. If
the State has failed to conduct suffic‘ent studies and develop that
California Highway Commission, ct al. 13
quantity of information necessary for full consideration of the pos-
sible effeets of the project on noise and air pollution, then it is
impossible for there to be a full and effective publie participation
in the consideration of the project and its alternatives.
Corridor Hearings
The district court held that new corridor hearings are required
beeause section 102(2)(¢) of the National Environmental Policy
Act of 1969 (NEPA) requires the federal defendants to prepare
an environmental impact statement. Such a statement, the court
noted, requires reconsideration of the entire Century Freeway
project. As the district court said:
“Not only must they reexamine the specifie route and design
that they have proposed for the freeway, bur they must also
consider alternative means of transportation an? even aban-
donment of the project entirely. Section 21100 of CEQA
[California Environmental Quality Act of 1970] places similar
demands on the state defendants. Since NEPA and CEQA
demand a thorough reevaluation, it would make little sense to
require the state defendants to seek the views and observations
of the public on the design of the freeway, but to exeuse them
from consulting with the public on the broad issue that PPM
20-8 reserves for corridor hearings—i.e., the issue of ‘the need
for’ the freeway.” 352 F.Supp. at 1340.
The majority concludes that new corridor hearings need not be
held because neither section 128(a) of the Federal-Aid Highway
Act nor NEPA specifically provides that the 1968 amendment to
section 128(a) is to be applied retroactively. This conclusion is
reached by focusing attention on the fact that corridor hearings
were completed prior to the 1968 amendment, rather than on the
fact that the entire project was still under consideration, and no
final approval of it had been given by that date. In my view, retro-
activity, as such, must pertain to the project as a whole and not to
the fragments of procedure, such as the corridor hearings.
The majority acknowledges that the determination of the district
court is supported by the decisions in Arlington Coalition on Trans-
portation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), Moaroc County
Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972),
14 Ralph W. Keith and Esther May Keith, et al. vs.
and D.C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d
436 (D.C. Cir. 1970).
In Arlington, the court felt compelled by the Congressional direc-
tive in section 102 of NEPA to conclude that the requirements
added by the 1968 amendment to “Section 128(a) apply to a high-
way ongoing at the effective date of the amendment if the costs of
altering or abandoning the proposed location would not certainly
outweigh whatever benefits might be derived therefrom.” Id. at
1337.
In the Monroe County case, the Second Circuit reached a similar
conclusion but adopted a standard different from Arlington. There
the initial hearing on the highway project in question had been held
several years earlier, in 1966. In holding that new hearings are
required whenever federal approval of plans, specifications and
estimates for the project (“P S and E approval”) has not been
given prior to the effective date of the amendment, the Second Cir-
cuit said:
“This rule is based upon the fact that a hearing is a condi-
tion precedent to the granting of federal aid, and, therefore,
the Secretary must apply the statute which is in effect when
he awards that aid. This concept is consistent with the federal
policy which favors the advancement of environmental con-
cerns. 42 U.S.C. § 4332(1) [Section 102 of NEPA], and gives
recognition to the importance of the hearings to proper deci-
sion making [citing D.C. Federation of Civic Associations, Inc.
v. Volpe, 434 F.2d at 436, 441-442 (D.C. Cir. 1970)].” 474
F.2d at 701.
Although the standard adopted in Monroe County does have the
virtue of definiteness, I believe that Arlington states the better test
for determining whether new corridor hearings must be held. The
purpose of corridor hearings is to insure an opportunity for public
participation in the process of determining the need for, and the
location of, a federal highway. PPM 20-8(4) (a) (2). If the costs of
altering or abandoning a proposed location would certainly out-
weigh whatever benefits might be derived therefrom, the new hear-
ings would be a mere formality, and it would be futile to require
that they be held simply because P S and E approval was not given
prior to the effective date of the amendment.
CAS eee LP TELEEOTESIOEGO POR EA IE VIO
California Highway Commission, et al. 15
The Arlington test is desirable also because it is similar to the
“practicability” test for determining whether a reassessment of the
“basic course of action” is required by NEPA. Thus, in practice,
it is only where a reassessment of the basic course of action of the
proposed project is practicable and therefore required by NEPA,
and the original corridor hearings failed to meet the requirements
of the 1968 amendment, that the corridor hearing procedures of
section 128 should be reinstituted.
The reassessment of the project required by NEPA necessarily
entails consideration of the “need for” the project. Section 128(a)
and PPM 20-8 deeree that state officials may not make decisions on
such basic issues as the “need for” a highway without public par-
ticipation at corridor hearings. It is appropriate, therefore, that
those hearing procedures be utilized for the reevaluation that both
NEPA and CEQA require. This approach is entirely consistent with
the Congressional directive that the laws of the United States be
interpreted and administered in accordance with the policies of
NEPA “to the fullest extent possible.” See Arlington Coalition on
Transportation v. Volpe, supra, at 1337.
In rejecting the district court’s conclusion that new corridor hear-
ings must be held, the majority emphasizes the fact that “[i]n the
enactment of NEPA Congress neither mentioned the amended Fed-
eral Highway Act nor used any language suggesting its retro-
activity.” This statement, it seems to me, cither ignores the strong
policy directive contained in NEPA, or misconceives the reasons
for inclusion of that directive. Indeed, the only case the majority
cites in support of its position is Townshin of Hopewell v. Volpe,
446 F.2d 167 (3d Cir. 1971), a ease in which NEPA was not even
mentioned.
It is probable than when Congress enacted NEPA it did not even
consider the issue raised on this appeal. Congress recognized that
it was impossible for it to examine each existing piece of federal
legislation in order to identify a construction which would best
serve its environmental protection goals under all circumstances.
Thus, instead of undertaking such a task, Congress directed that
“to the fullest extent possible: (1) the policies, regulations, and
publie laws of the United States shall he interpreted and admin-
istered in accordance with the policy sect forth in this chapter. . . .”
EEE PE DENI OE BRS EE)
a i a
ELE LPI IDR EB NS ate ae, ne
16 Ralph W. Keith and Esther May Keith, et al. vs.
42 U.S.C. § 4332. This clear statement of Congressional intent is
rendered meaningless by the conclusion that a suggested applica-
tion of a federal statute in furtherance of the policies of NEPA
is to be rejected, as the majority states, because Congressional
intent is “buried in a statement of general policy rather than
expressly stated.”
I am in full agreement with the views expressed by the district
court with regard to the necessity for new design and corridor
hearings.
While the State urges a defense of laches, the majority did not
find it necessary to discuss that issue. Whether the defense of laches
bars a cause of action depends upon the circumstances of the case
and is a question addressed to the equitable discretion of the trial
court. Burnett v. New York Central R. Co., 380 U.S. 424, 435
(1965). Under all of the circumstances of this case, I do not believe
there was such lack of diligence and unreasonable delay as would
require us to hold that, in rejecting this defense, the distriet court
abused the discretion vested in him.
PERNAU-WALSH PRINTING CO., SAN FRANCISCO 12-7-73—480
RS ar & Ee e, EG Sap ITE BY Boe BE OM _—
APPENDIX “B.”
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
s
Ratpo W. KeirH and Esruer May KEITH,
husband and wife, et al.,
Plaintiffs-A ppellees,
vs.
CALIFORNIA HiGHway ComMissION, DeEpart-
MENT OF PusLic Works, JaMEs A. Mog, indi-
vidually and in his capacity as Director of
CALIFORNIA DEPARTMENT OF PUBLIC Works,
and Ropert Date, individually and as State
Highway Engineer, California Division of
Highways, California Department of Public
Works,
Defendants-Appellants. \ v.29 3979
RatpH W. Keira and Estuer May KEITH,
husband and wife, et al.,
Plaintiffs-A ppellees,
vs.
CLaupE S. BrineGar, as Secretary of Trans-
portation; SHERaN A. Farin, as Adminis-
trator for Region 7, Federal Highway
Administration, Department of Transporta-
tion; DonaLp E. Tru.t, as Division Engineer,
Federal Highway Administration, Depart-
ment of Transportation,
Defendants-A ppellants. J
[September 27, 1974]
FEE EI EER OGLE BR EEE SLIT PT TINS ite
2 Ralph W. Keith, et ux., et al. vs.
On Appeal from the United States District Court
for the Central District of California
Before: CHAMBERS, MERRILL, KOELSCH, BROWNING,
DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK,
CHOY, GOODWIN, WALLACE and SNEED, Circuit
Judges.
OPINION
DUNIWAY, Circuit Judge:
We elected to hear this case in bane, together with Lathan v.
Brinegar, ......... | ee , also decided today, to consider whether
the court erred in enjoining further work on an interstate free-
way until a further public hearing is held under section 128(a)
of the Federal-Aid Highway Act, (23 U.S.C. §128(a)), as
amended.
This case, like Lathan v. Brinegar, supra, deals with an inter-
state highway. Highway I-105, also called the Century Freeway,
is a proposed seventeen-mile section of interstate highway which,
if constructed, will stretch across the southern portion of the
densely populated Los Angeles basin. It would connect the Los
Angeles International Airport on the west with the San Gabriel
River Freeway (I-605) on the east, and would traverse the cities
of El Segundo, Hawthorne, Inglewood, Lynwood, South Gate,
Paramount, Downey, and Norwalk, the Watts section of the city
of Los Angeles, and unincorporated areas of Los Angeles County,
including the communities of Willowbrook and Bel Aire.
In Lathan v. Brinegar, supra, we have described the statutes,
policy memoranda, and regulations in effect at various times dur-
ing the planning of the portion of highway I-90 there involved.
We do not repeat that description here. The following recital of
what has been done about highway I-105 assumes familiarity
with that description.
The state defendants divided the Century Freeway into two
segments or the purpose of conducting corridor public hearings.
Two hearings were held for each segment, the first conducted
by the California Division of Highways and the second by the
California Highway Commission. The two corridor hearings for
the western segment of the freeway were held on June 5, 1963,
and August 13, 1965, and the two hearings for the eastern
CHI OE eS Sens
= ELIT a Oe Cae i ate ea ae vat
$ PTS CRITE FRR DUET IIE Nee eae Pe
RT NIE SES Le SOLIS IT PME NP SOIC RNR %
James A. Moe, et al. 3
segment were held on March 30, 1967, and April 16, 1968.
Department of Transportation approval of the location of the
western portion of the freeway was received on April 22, 1968,
and approval of the location of the eastern portion was received
on October 14, 1968.
The state defendants then divided the proposed freeway into
eight segments for the purposes of planning the highway design,
holding design hearings, and securing FHWA approval of their
design proposals, One segment received FHWA design approval
on August 14, 1968.1 All of the highway design public hearings
for the remaining seven segments were held after August 23,
1968, and were therefore subject to the amended version of
section 128(a). In addition, three of the seven hearings were held
after January 1, 1970, the effective date of the National Environ-
mental Policy Act of 1969 (NEPA), 42 U.S.C. §§4321-4347.2
Federal design approvals of seven of the eight segments were
received after August 23, 1968, and fve of the seven were
received after September 1, 1970.3
.No environmental impact statement (EIS) had been prepared
for the freeway before February 16, 1972, when this action was
filed. The district court ordered the defendants to prepare one,
352 F.Supp. at 1330-36, and the defendants acquiesced. They
have not appealed from this part of the district court’s order
and have informed this court that an EIS is being prepared.
As of April 24, 1972, the state had acquired, at a cost of over
$88 million, 55.8% of the right-of-way property for the freeway.4
1The record does not indicate whether a highway design public hearing
was held for that segment.
*The seven highway design public hearings were held on June 24,
July 8, September 17 and October 15 of 1969 and January 28, April 22
and May 13, 1970. R.A. 426-28, 430-31.
8The eight highway design approvals were obtained on the following
dales: Augusi 14, 1968; September 10 and Decomber 23, 1969; and
February 12, April 14, July 2, December 1 and December 15, 1970. In
addition, the design that was approved on September 10, 1969, was
subsequently revised; the revisions received approval on December 23,
1970.
4If it should ultimately decide that the freeway should not be built,
or that some or all of it should be relocated, that would not mean a loss
of $88 million. Presumably, the state has received for this money real
property having a fair market value of $88 million.
ROMP OYE yo aoe geese STARS GOT I 8S oY: paren ¥ : TT,
4 Ralph W. Keith, et us., et al. vs.
It is estimated that the total cost of the freeway will be
$501,800,000. It is also estimated that 9,000 families, including
21,000 individuals, will be displaced, and that 3,900 single family
dwellings and 3,000 multiple family dwellings will be acquired
in order to clear the right-of-way. Thus the Century Freeway is
further along in development than the I-90 freeway segment
under consideration in Lathan v. Brinegar, supra. It is still true,
however, that no PS&E approval has been sought or obtained,
by no means all of the land in the corridor has been acquired,
and no construction has been undertaken.
The opinion of the district court, which embodies its findings
of fact and conclusions of law, is reported in Keith v. Volpe,
C.D.Cal., 1972, 352 F.Supp. 1324. The pertinent portions of the
preliminary injunction entered are as follows:
“1. Defendants be and hereby are enjoined from any and
all activities in furtherance of the Century Freeway, except
for such activities as may be necessary for defendants to
comply with this Preliminary Injunction and except for such
activities that are specifically authorized by this Court pur-
suant to paragraph 3 of this Preliminary Injunction.
2. This Preliminary Injunction shall remain in effect
until further order of this Court or until:
*#* ¢
(ec) state defendants certify to defendant Volpe that they
have held, or provided the opportunity for, additional public
hearings on the Century Freeway, which hearings shall focus
on the effect of the freeway on air and noise pollution, in
accordance with Section 128(a) of the Federal-Aid Highway
Act, 23 U.S.C. §128(a), and PPM 20-8, 23 C.F.R. Part 1,
Appendix A;’*
Under our decision in Lathan v. Brinegar, supra, it was
proper for the eourt te condition lifting the injunction on a new
hearing or hearings under section 128(a). Indeed, under that |
decision, his order could have been considerably more broad than
it is. The appellees, however, have not cross-appealed, and thus
5PPM 20-8 has now been codified as 23 C.F.R. §§790.1-790.11 (1973),
with some modifications. Other provisions of the preliminary injunction
have not been attacked on this appeal.
EES OPTS BN SOLE NG SATEEN HI +.
SENET De" IOP Ty Mela yen 4 BERET t
NE LTE ELL IN TNL LI I, UN AE IR Seer arr temsren negate 4
. ts <a ais
RA ay oe
FEE PRY MEE REO RT Tye
James A. Moe, et al. 5
the only question’ before us is whether the portion of the pre-
liminary injunction that we have rr. should be reversed.
Clearly, it should not.
We do not read the injunction as anit other matters from
consideration at the new section 128(a) hearing or hearings.
For the reasons stated in our decision in Lathan v. Brinegar,
supra, it should not. We also think that the EIS, now in prepara-
tion (perhaps, by now, actually prepared), should be available
before and at, and considered at, the hearing or hearings.
Affirmed.
CHAMBERS, ‘Circuit Judge, concurring :
On the basis of my concurring opinion in Lathan v. Brinegar,
ine F.2d ......, I econeur in the result reached in this case. The
information omitted was clearly relevant to the considerations in
23 C.F.R: § 790.3(c)(6). The district court’s findings that the
considerations were of paramount importance and that almost
no information was given on the subjects. have not been shown
to be clearly erroneous.
WALLACE, Circuit Judge, Dissenting:
I respectfully dissent. '
The district court enjoined further highway action until the
state holds new hearings complying with 23 U.S.C. §128(a). In
effect, the district court has assumed that the state wants the
highway and has, therefore, ordered new hearings.
The state has, as yet, submitted no plans to the secretary. For
the reasons stated in a concursing opinion in Lathan v.
Brinegar, ...... F.2d . (9th Cir. ........ 1974), I would hold
that the judicial ‘enaniine “with the hearing process was prema-
ture and that compliance with section 128(a) cannot be chal-
lenged in the courts until the state certifies to the secretary that
the requisite hearings have been held.
PERNAU-WALSH PRINTING CO., SAN FRANCISCO 10-3-74—480
«erpanetbontegy: RAED AIT AER GRIT Re
APPENDIX “C.”
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
I
Roosevett LatHan and PEaRLINE LaTHAN,
et al,
Le Plaintiffs,
CITIZENS AGAInst FREEways, et al.,
Intervenor-Plaintiffs-Appellants,
vs. No. 72-2932
CLaupe S. Brineaar, Secretary of the United
State Department of Transportation, et al.,
t
Defendants-Appellees.
RoosEvELT LaTHAN and PEARLINE LaTHAN,
et al.,
Plaintiffs-A ppellees,
vB. | \
CiaupE S. BrineGar, Secretary of the United
. State Department of Transportation, et al.,
Defendants,
Wasuineton State, Highway ComMISSsION;
WASHINGTON STATE DFPARTMENT OF HIGH-
ways; GrorcE D. ZAHN, as Chairman of the
Washington State Highway Commission; G.
H, ANpbrEws, as Director of the Washington
State Department of Highways; E: I. Ros-
ERTS, District Engineer, District No. 7, Wash-
ington,
No. 72-2974
_ Defendant-Appellants.
i y,
[September 27, 1974]
SINR PN EN OT SPE Mae: Late ae
seed PSE DEED LONE NEAR NILES NORRIE 3 AURA a PERE Seni ve
SEC ernierwecea
PE TREES TESLA ELE LR ORO R ILE EL EIA AO BNE
2 Roosevelt Lathan and Pearline Lathan, et al. vs.
On Appeal from the United States District Court
for the Western District of Washington
Before: CHAMBERS, MERRILL, KOELSCH, BROWNING,
DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK,
CHOY, GOODWIN, WALLACE and SNEED, Circuit
Judges.
OPINION
DUNIWAY, Circuit Judge:
We elected to hear these appeals, and the appeal in Keith v.
California Highway Commission, No. 72-3072, ......... | - ee , which
we also decide today, in bane, primarily to consider whether
a new public hearing, under 28 U.S.C. §128(a), must be held
before further actions are taken to carry out the construction
of two portions of interstate freeways.
The present case involves a new chapter in the continuing saga
of Interstate Highway 90 (1-90) in the state of Washington,!
specifically that portion which has been proposed to connect two
existing interstate highways (I-5 and I-405) near Seattle. Most
of the relevant facts are set out in Lathan v. Volpe, 9 Cir., 1971,
455 F.2d 1111, 1114. The following events have occurred since
that decision: ,
In an attempt to comply with the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. §§4321-4347, and with
our mandate in Lathan v. Volpe, supra, the Washington State
Department of Highways (WSDH) prepared an environmental
impact statement (EIS) for the so-called “Seattle segment” of
I-90.2 The EIS was approved by the Secretary of Transportation
1See generally Brooks v. Volpe, 9 Cir., 1972, 460 F.2d 1193; Latham
v. Volpe, 9 Cir., 1971, 455 F.2d 1111; Daly v. Volpe, W.D.Wash., 1972,
350 F.Supp. 252; Lathan v. Volpe, W.D.Wash., 1972, 350 F.Supp. 262;
Brooks v. Volpe, W.D.Wash, 1972, 350 F.Supp. 269.
2This illustrates the practice of state highway departments of dividing
proposed freeway projects into small segments for purposes of applying
for funding. While this practice is certainly rational in view of the way
in which Federal-aid highway funds are allocated, it makes coherent
environmental planning extremeiy difficult. See Peterson and Kennan,
The Federal-Aid Highway Program: Administrative Procedures and
Resexsy
IS SEARO RAYA ORR srRNe TERE sR AIMS Bo yee eR
COM ET Se Dc a tates
Claude 8. Brinegar, etc., et al. 3
on May 5, 1972. Shortly thereafter WSDH sought and obtained
Federal Highway Administration (FHWA) approval of the
design of the Seattle segment. On August 4, 1972, in response
to a motion by intervenors Citizens Against Freeways (Citizens),
the district court ruled that the EIS did not satisfy the require-
ments of NEPA and that the statement required by 49 U.S.C.
§1653(f) and 23 U.S.C. §138 regarding the proposed taking of
parkland (the 4(f) statement) was inadequate. The court con-
tinued in effect its order enjoining the further acquisition of land
in the proposed freeway corridor until proper impact and 4(f)
statements were prepared and circulated. However, the court
refused to order new public hearings for the project pursuant
to 23 U.S.C. §128(a) and struck Citizens’ belatedly raised claim
that the Secretary of Transportation, rather than WSDH, must
prepare the impact statement. These appeals followed.
I. The Section 128(a) Hearing.
Citizens argues that a new public hearing must be held pur-
suant to 23 U.S.C. §128(a).
Consideration of this issue requires an exposition of the history
of relevant statutes, regulations, and policy memoranda that have
been in effect during the time when the I-90 freeway segment
was being planned, and what has been done to comply with them
up to now.
Under the Federal-Aid Highway Act,? 23 U.S.C. §101 ef seq.,*
primary responsibility for highway planning, design and con-
Judicial Interpretation, 2 Env. L. Rep. 50001 (1972). For the rake of
a this opinion will refer to the entire five-mile segment of 1-90
involved in this case as the “freeway segment,” and the portion for
which an environments! impact statement has been prepared will be
referred to as the “Seattle segment.”
3For a thorongh statutory history of the Federal-Aid Highway Act,
see Mashaw, The Legal Structure of Frustration: Alternative Strategies
for Public Choice Concerning Federally Aided Highway Construction,
122 U. Pa. L. Rev. 1, 5-12 (1973).
4Under 23 U.S.C. §103, the Federal-Aid Highway Program consists
of three — (1) the Interstate System (§103(d)), which is to
“connect . . . the principal metropolitan areas” ely Egger
defense. . . .” (2) the Federal-aid primary system (§103(b)), which
“shall consist of an adequate system of connected main highways”; and
2
4 Roosevelt Lathan and Pearline Lathan, et al. vs.
struction rests on state highway departments, aided by federal
assistanee.> The FHWA, which administers the Federal-Aid High-
way Program, ascertains that the state highway departments
have adhered to federal law and regulations before authorizing
reimbursement to the states for a portion of the federal-aid high-
ways’ cost. This adherence to federal standards is assured by
requiring the state highway departments to obtain federal ap-
proval at various stages during the conception and building of a
highway project.
The matrix of rules governing the stages of FHWA approval
is found not only in the Federal-Aid Highway Act, 23 U.S.C.
§101 et seq., but also in the Code of Federal Regulations and
numerous FHWA directives, including Policy and Procedure
Memoranda (PPM’s), Instructional Memoranda (IM’s) and Ad-
ministrative Memoranda (AM’s).®
The key concept in the Federal-Aid Highway Program is the
“project.” For example, state highway departments must submit
(3) the Federal-aid secondary system (§102(c)), which may inelude
“farm-to-market roads, rural mail routes, publie school bus routes, local
rural roads, county roads, township roads, and roads of the county road
class . . . .” I-90 is part of the Interstate System.
®We must and do give considerable deference to the regulations
promulgated by the Secretary of Trarsportation and published in the
Code of Federal Regulations. 23 U.S.C. §315 authorized the Secretary
of Commerce to “prescribe and promulgate all needful rules and regu-
lations for the carrying out of the provisions of this title.” This
authorization was transferred to the Secretary of Transportation in 1966
pursuant to 49 U.S.C. §1655(a). See generally K. Davis, Administra-
tive Law Treatise, §5.04 (1970 Supp.)
The legal effect of the PPM’s, IM’s and AM’s however, is much less
clear. The Department of Transportation has ruled that the FHWA’s
memoranda and orders do not rise to the status of regulations: “The
[Federal Highway] Administrator shall promulgate and require the
observance of policies and procedures, and may take other action as he
deems appropriate or necessary for carrying out the provisions and
purposes of Federal laws, the policies of the Federal Highway Adminis-
Claude 8. Brinegar, etc., et al. 5
“programs of proposed projects” for approval under 23 U.S.C.
§105(a), and section 106(a) requires approval of plans, specifi-
cations and estimates for “each proposed project” included in a
program approved under section 105(a). Unfortunately, a “proj-
ect” assumes chameleon-like characteristics under the Act.? For
example, a state highway department could seek to obtain
FHWA approval of a “project” which includes all the items of
work necessary to construct Interstate X, a fifty-mile highway.
On the other hand, it could also submit to the FHWA several
“projects,” each of which forms a part of highway X. Thus, the
department might simply submit a grading and paving “project”
for twenty miles of I-X, or a right-of-way acquisition “project”
for five miles of I-X, or simply a demolition “project” for one
mile of the highway.’ The statutory and regulatory definitions
of “project” are broad enough to embrace a one-mile demolition
“project” or a fifty-mile planning, surveying, mapping, right-of-
way acquisition, relocation assistance, demolition, grading and
paving “project.”®
tration, and the regulations in this part. No such direction, policy, rule,
procedure, or interpretation contained in a Federal Highway Adminis-
tration order or memorandum shall be considered a regulation or create
any right or privilege not specifically stated therein.” 23 C.F.R. §1.32(a)
(1973). But see Gray, Environmental Requirements of Highway and
Historic Preservation Legislation, 20 Catholic U. L. Rev. 45, 61-2, n. 66
(1970).
7Cf. Named Individual Members of the San Antonio Conservation
Society v. Texas Highway Dep’t, 5 Cir. 1971, 446 F.2d 1013, 1022-24.
8See Peterson and Kennan, supra, n. 2 at 50003.
Section 101(a) of the Act defines the term “project” to mean “an
undertaking to construct a particular portion of a highway, or if the
context so implies, the particular portion of a highway so constructed.”
That section defines the term “construction” to mean
“the supervising, inspecting, actual building, and all expenses inci-
dental to the construction or reconstruction of a highway, including
locating, surveying, and mapping . . . , acquisition of rights-of-way,
improvements which directly facilitate and control traffic flow, such
as grade separation of intersections, widening of lanes, channeliza-
—_
6 Roosevelt Lathan and Pearline Lathan, et al. vs.
With this caveat, we proceed to examine the statutory, regula-
tory and administrative scheme controlling this litigation.1°
1. Program approval.
The first decision that must be made by the FHWA is whether
to approve a state’s federal-aid highway program. Under 23
U.S.C. §105(a), a state highway department “of any State desir-
ing to avail itself of the benefits of this chapter shall submit to
the Seeretary for his approval a program or programs of pro-
posed projects for the utilization of the funds appointed.” Every
project in a proposed program must be “located upon an ap-
proved Federal-aid system,” or it will not receive approval. The
Secretary may approve a program in whole or simply approve
individual projects within a program. Jd.
2. Public hearings.
a. Those that have been held.
(1) The 1963 hearing.
23 U.S.C. §128(a) provides that any state highway depart-
ment which submits plans for a federal-aid highway project
involving the “going through” of a city must certify to the See-
retary that it has held public hearings and has considered the
effect of such locations. As originally enacted," section 128(a)
required only that the economic effects of such a highway be
considered at the hearing.
This was the statute in effect when, in 1963, WSDH held a
corridor or location hearing on the freeway segment. (See Lathan
v. Volpe, supra, 455 F.2d at 1114.) At that time there was no
tion of traffic, traffie control systems, and passenger loading and
unloading areas.” 23 U.S.C. §101(a).
23 C.F.R. §1.2(b) (1973) defines a “project” as “[a)n undertaking
by a State highway department for highway construction, including
preliminary engineering, acquisition of rights-of-way and actual
eonstruction, or for highway planning and research, or for any
other work or activity to carry out the provisions of the Federal
laws for the administration of Federal aid for highways.”
10See also Lathan v. Volpe, supra, 455 F.2d at 1114-16. But see
Peterson and Kennan, supra, n. 2, at 50017-18.
11Act of Aug. 27, 1958, Pub. L. No. 85-767, 72 Stat. 902.
Claude S. Brinegur. etc., et al. 7
Regulation dealing with such a hearing; it was governed by a
PPM. In Lathan v. Volpe, supra, we rejected an attack, based
upon due process grounds, upon the validity of this 1963 hear-
ing. 455 F.2d at 1122. We assume, for the purpose of this deci-
sion, that the hearing complied with §128(a) as it then read, and
with the then applicable PPM. Thereafter, the FHWA approved
the proposed location or corridor.
(2) The 1970 hearina.
Section 128(a) was amended effective August 23, 1968,!2 to
require that the hearings also consider the social and environ-
mental impact of the proposed highway. The amended version
reads as follows (the requirements added in 1968 are italicized) :
“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 incor-
porated or unincorporated, shall certify to the Secretary that
it has had puolie hearings, or has afforded the opportunity
for such hearings, and has considered the economic and
social effect of such a location, its impact on the environ-
ment, and its consistency with the goals and objectives of
such urban planning as has been promulgated by the com-
munity.”
On January 1, 1970, the National Environmental Policy Act
of 1969, 42 U.S.C. §§4321-4347, became effective. We discuss its
impact on the hearing issue later in this opinion.
On June 2-6, 1970, WSDH held a design public hearing on
the Seattle segment.' This hearing was governed by PPM 20-8,
effective January 14, 1969. It defines and describes a “highway
design publie hearing” as set out in the margin.’* Federal ap-
12Act of Aug. 23, 1968, Pub. L. No. 90-495, §24, 82 Stat. 828.
13See n. 2, supra.
14PPM 20-8, quoted in 3 Env. 1. Rep. 46505:
4. DEFINITIONS
(As used in this PPM)
~~
..@ .«@
“bh. A ‘highway design publie hearing’ is a public hearing that:
(1) Is held after the route location has been approved, but
before the State highway department is committed to a specific
design proposal;
8 Roosevelt Lathan and Pearline Lathan, et al. vs.
proval of the design was received on June 23, 1972. Again, we
assume that the hearing complied with these requirements.
(2) Is held to ensure that an opportunity is afforded for effective
participation by interested persons in the process of determining
the specific location and major design features of a Federal-aid
highway; and
(3) Provides a publie forum that affords a full opportunity for
presenting views on major highway design features, including the
social, economic, environmental, and other effects of alternate de-
e. ‘Social, economic, and environmental effects’ means the direct
and indirect benefits or losses to the community and to highway
users. It includes such effects that are relevant and applicable to
the particular location or design under consideration such as:
(1) Fast, safe and efficient transportation.
(2) National defense.
(3) Economie activity.
(4) Employment.
(5) Reereation and parks.
(6) Fire protection.
(7) Aesthetics.
(8) Publie utilities.
(9) Public health safety.
(10) Residential and neighborhood character and location.
(11) Religious institutions and practices.
(12) Conduct and financing of Government (including effect on
local tax base and social service costs).
(13) Conservation (including erosion, sedimentation, wildlife and
general ecology of the area).
(14) Natural and historic landmarks.
(15) Noise, and air and water pollution.
(16) Property values.
(17) Multiple use of space.
(18) Replacement housing.
(19) Edueation (including disruption of school district opera-
(20) Displacement of families and businesses.
(21) Engineering, right-of-way and construction costs of the
project and related facilities.
(22) Maintenance and operating costs of the project and related
facilities.
(23) Operation and use of existing highway facilities and other
transportation facilities during construction and after completion.
This list of effects is not meant to be exclusive, nor does it mean
that each effect considered must be given equal weight in making
a determination upon a particular highway location or design.
. + .
SET RA
Claude S. Brinegar, etc., et al. 9
b. The question whether there must be another hearing.
In December, 1970, section 128(a) was further amended™ to
require the state to file a repert with the Secretary indicating
the consideration given to the economic, social, environmental
and other effects of a proposed highway.
The Secretary has now adopted regulations governing “corri-
dor” and “design” hearings. Part 790 of 23 Code of Federal
Regulations (1973) expands upon the requirements of section
128(a). The purpose of these regulations
“is to insure, to the maximum extent practicable, that high-
way locations and designs reflect and are consistent with
Federal, State, and local goals and objectives. The rules, pol-
icies, and procedures established by this part are intended
to afford full opportunity for effective public participation
in the consideration of highway location and design pro-
posals by highway departments before submission to the Fed-
eral Highway Administration (FHWA) for approval. They
provide a medium for free and open discussion and are
designed te encourage carly and amicable resolution of con-
troversial issues that may arise.” 23 C.F.R. §790.1(a) (1973).
9. CONSIDERATION OF SOCIAL, ECONOMIC,
AND ENVIRONMENTAL EFFECTS
State highway departments shall consider social, economic, and
environmental effects before submission of requests for location or
design approval, whether or not a publie hearing has been held.
Consideration of social economic, and environmental effects shall
inelude an analysis of information submitted to the State highway
department in connection with publie hearings or in response to the
notice of the location or design for which a State highway depart-
ment intends to request approval. It shall also include consideration
of information developed by the State highway department or
gained from other contacts with interested persons or groups.
7 . oo
10. LOCATION AND DESIGN APPROVAL
. * . *
(b) Design study reports must describe essential elements such
as design standards, number of traffic lanes, access control features,
general horizontal and vertical alignment, right-of-way requirements
and location of bridges, interchanges, and other structures.”
15Act of Dee. 31, 1970, Pub. L. No. 91-305, Tit. I, §135, 84 Stat. 1734.
i tia r ley SRN RR tse et en one i 4
10 Roosevelt Lathan and Pearline Lathan, et al. vs.
The regulations require a state highway department to obtain
two FHWA approvals in order to receive federal reimbursement :
“route location approval,” which follows a “corridor public hear-
ing,”'® and “design approval,”!7 which follows a “design public
hearing.”18
The regulations thus require that the state highway depart-
ments must hold two public hearings, or provide an opportunity
for those hearings.!® First, there must be a “corridor publie hear-
ing,” which is held “to ensure that an opportunity is afforded
for effective participation by interested persons in the process of
\ determining the need for, and the location of, a Federal-aid
highway.” 23 C.F.R. §790.3(a)(2)(1973). It must provide “a
public forum that affords a full opportunity for presenting views
\ on each of the proposed alternative highway locations and the
social, economic, an:l environmental effects of those alternate loca-
\ tions.” 23 C.F.R. §790(a) (3) (1973).
Seeond, the state highway department must hold a “highway
design public hearing,” which is held “to ensure that an oppor-
tunity is afforded for effective participation by interested per-
sons in the process of determining the specific location and major
design features of a Federal-aid highway,” and to provide “a
public forum that affords a full oppertunity for presenting views
on major highway design features, including the social, economic,
environmental, and other effects of alternate designs.” 23 C.F.R.
§790.3(b) (2)-(3).20
, ae
16See 23 C.F.R. §790.9(e) (1) (ii) (1973).
17See 23 C.F.R. §790.3(d) (1973).
18See 23 C.F.R. §790.9(e) (2) (iii) (1973).
19See 23 C.F.R. §§790.1(b), 790.5(a) (1973).
20The “social, economic, and environmental effects” which must be
considered in both a corridor hearing and a design hearing (see 23
C.F.R. §§790.3(a)(3) and (b)(3) (1973)) are now defined in 23
C.F.R. §790.3(e) (1973):
“(e) ‘Social, economic, and environmental effects’ means the
direct and indirect benefits or losses to the community and to high-
way users. It includes such effects that are relevant and applicable
to the particular location or design under consideration as to:
(1) Regional and community growth including general plans and
proposed land use, total transportation requirements, and status
of the planning p :
Se oe an eee ee OBES RT OLLI Y ERE PONE IL ESE LOGIT CUO RR. ae SFE IRE IO
Claude S. Brinegar, etc., et al. 11
Neither location approval nor design approval by the FHWA
creates a contractual obligation on the part of the federal gov-
ernment to reimburse a state for costs incurred in the project.
There is one more stage to be completed before the federal gov-
ernment is finally committed to the project. This is called plans,
specifications and estimates approval (PS&E approval).
After a state highway department has certified to the Seere-
tary that it has held appropriate section 128(a) hearings, or has
afforded the opportunity for such hearings, the state department
must
“submit to the Secretary for his approval, as soon as prac-
ticable after program approval, such surveys, plans, specifi-
cations, and estimates for each proposed project included in
an approved program as the Secretary may require... .
|The Secretary’s] approval of any such project shall be
deemed a contractual obligation of the Federal Govern-
ment. .. .” 23 U.S.C. §106(a) (emphasis supplied).
(2) Conservation and preservation including soil erosion and
sedimentation, the general ecology of the area as well as manmade
and other natural resources, such as: park and recreational facilities,
wildlife and waterfowl areas, historic and natural landmarks.
(3) Public facilities and services including religious, health, and
educational facilities; aud public utilities, fire protection and other
emergency services.
(4) Community cohesion including residential and neighborhood
character and stability, highway impacts on minority and other
specifie groups and interests, and effects on local tax base and
property values.
(5) Displacement of people, businesses ,and farms including
relocation assistance, availability of adequate replacement housing,
economic activity (employment gains and losses, ete.).
(6) Air, noise, and water pollution including consistency with
approved air quality implementation plans, FHWA noise level
standards, and any relevant Federal or State water quality standards
(as set forth in Parts 770, 771, 772, and 773 of this chapter).
(7) Aesthetic and other values including visual quality, such as:
‘view of the road’ and ‘view from the road,’ and the joint develop-
ment and multiple use of space.
This listing is not meant to be exclusive, nor does it mean that each
effect considered must be given equal weight in making a determina-
tion upon a particular highway location or design.”
12 Roosevelt Lathan and Pearline Lathan, et al. vs.
The federal government is not obligated to fund a project until
the Secretary has given approval to a project. Monroe County
Conservation Council, Inc. v. Volpe, 2 Cir., 1972, 472 F.2d 693,
699. After PS&E approval has been given to a “project,” a state
is entitled to full reimbursement of the federal government’s
share of the project’s cost if the department has conformed to
all applicable federal laws.2! It is important to emphasize that
PS&E approval is given to an individual “project,” which, as
noted infra, p. 13, may consist of all the work on an entire
highway or merely the right-of-way acquisition for an inter-
change.
The question now before us is whether the WSDH must now
hold, before applying for PS&E approval, another hearing com-
plying with section 128(a) as it now reads, and as it may be
affected by NEPA.
The parties have framed the question in terms of “retroac-
tivity”—i.e., are amended section 128(a) and NEPA “retroac-
tive” so that a new “corridor” or “location” hearing must be
held, or a new “design” hearing must be held, thus in effect
“nullifying” the two hearings that have been held. This position
misses the mark. I-90 is an ongoing project, to which the federal
government is not yet committed because there has been as yet
no PS&E approval. The district court sits in this case as a court
of equity, as do we, and it is well settled that a court of equity
may, and often does, apply the law in effect at the time of judg-
ment, rather than that in effect when the action is filed. Chap-
man v. Sheridan-Wyoming Co., 1950, 338 U.S. 621, 630.
Moreover, we have no doubt that the Congress can require that
there now be a hearing complying with amended section 128(a)
and witn the policies of NEPA, and we are of the opinion that
it has done so.
21Under 23 U.S.C. §110(a), the Secretary cannot enter into a “formal
project agreement” with a state highway department until he has given
PS&E approval, and under 23 U.S.C. §121(c), no federal payments
may be made unless the project is located on a Federal-aid highway
system and is covered by a project agreement. Moreover, under 23
U.S.C. §121(b), a state is entitled to final payment from the federal
government only if the project has been completed “in accordance with
the plans and specifications. . . .”
Claude S. Brinegar, etc., et al. 13
First, section 128(a) speaks in the present tense:
“Any State highway department which submits plans .. .
shall certify to the Secretary that it has had public hear-
ings . . . and has considered the economic and social effects
of such a location, its impact on the environment, and its
consistency with the goals and objectives of such urban plan-
ning as has been promulgated by the community.” (Empha-
sis supplied)
This is the law currently in effect. Moreover, to obtain PS&E
approval, WSDH must submit plans, specifications and estimates »
to FHWA. When it does so, it must have held a hearing or hear-
ings at which consideration has been given to the matters now
listed in section 128(a), or it must have afforded the opportunity
for such hearings.
This view of the statute’s present effect upon the inchoate 1-90
project is strengthened by the adoption of NEPA. In that stat-
ute, the Congress, recognizing “the critical importance of restor-
ing and maintaining environmental quality to the overall welfare
and development of man,” declares that it is the policy of the
federal government “to create and maintain conditions under
which man and nature ean exist in productive harmony, and ful-
fill the social, economic, and other requirements of present and
future generations of America.” 42 U.S.C. §4331(a). To realize
this goal, Congress has directed that, “to the fullest extent pos-
sible . . . the policies, regulations, and public laws of the United
States shall be interpreted and administered in accordance with
the policies” of NEPA. 42 U.S.C. §4332(1). (Emphasis added)
The meaning of the phrase “to the fullest extent possible” was
clearly expressed by the Senate and House conferees who wrote
the language:
“[I]t is the intent of the conferees that the provision ‘to the
fullest extent possible’ shall not be used by any Federal
agency as a means of avoiding compliance with the direc-
tives set out in section [4332]. Rather, the language in sec-
tion [4332] is intended to assure that all agencies of the
Federal Government shall comply with the directives set out
in said section ‘to the fullest extent possible’ under their
statutory authorizations and that no agency shall utilize an
PEL BP ar lt ten
RE aS Maem een canyes - 3
FEIN TLRS ONE LSE: ORS ENR eas Tle pe rene Mae ae
RRSP ete a eager: ERED Ot SEY TO TRON ‘
14 Roosevelt Lathan and Pearline Lathan, et al. vs.
excessively narrow construction of its existing statutory au-
thorizations to avoid compliance.”22
The language “to the fullest extent possible” indicates an in-
tent to apply NEPA’s standards to ongoing projects such as I-90.
It has been so construed by the Council on Environmental Qual-
ity, a NEPA-created entity. Its language concerning the appli-
eability of NEPA’s requirement of environmental impact state-
ments to ongoing projects demonstrates the approach which
should also be taken to the question of section 128(a) hearings.
To paraphrase:
“To the maximum extent nails the Section [128(a) ]}
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 the
enactment of [NEPA] on January 1, 1970. Where it is not
practicable to reassess the basic course of action, it is still
important 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 consequences not fully evaluated at the out-
set of the project or program.” Council on Environmental
Quality, Statements on Proposed Federal Actions Affecting
the Environment—Guidelines, 11, 36 Fed. Reg. 7724, 7727
(April 23, 1971). (Emphasis added)
It is clear that “further major Federal actions having a signifi-
cant effect on the environment” will occur here. As noted earlier,
formal federal commitment to this project has not yet occurred,
because no PS&E approval has been given. The Federal-Aid
Highway Act envisions numerous areas of further federal par-
ticipation beyond corridor and design approval: aiding states in
the aequisition of rights-of-way,?* regulation of the letting of con-
tracts,24 final inspection and approval before construction,25 and
22115 Cong. Rec. 40417, 40418 (“Major Changes in S. 1075 as Passed
by the Senate”); 115 Cong. Ree. 39701, 39703 (House Conference
Report on S. 1075).
23See 23 U.S.C. §107.
24See 23 U.S.C. §112.
25See 23 U.S.C. §114(a).
OL SRIEE TREC NS ANE TON MAR DS HET ES A Mite werd
i as it sada tts 2
i
Claude'S. Brinegar, etc., et al., 15
reimbursement to the states of construction costs,26 to name but
a few.26
Although WSDH and the federal government ll had various
.formal and informal contracts since 1963 concerning the free-
way segment, the Secretary of Transportation has not given
PS&E approval to this “project,” and the federal government is
therefore not contractually obligated to provide highway aid, 23
U.S.C. §106(a). If and when the Seeretary does give PS&E
approval to the freeway segment, however, he must apply the
law which is in effect when he commits federal funds to the proj-
ect. This means that there must have been a hearing held or
opportunity for a hearing in compliance with section 128(a) as
it now reads, at which the matters considered include those now
specified in section 128(a) and those now specified in‘ NEPA,
particularly 42 U.S.C. §4332(2)(C) and (2)(D).27
We cannot ignore, as judges, what we know as citizens. The
knowledge and attitudes of the public, of the Congress, and of
state and local governments about the environmental, and social
consequences of freeway building have drastically changed within
the last decade. With knowledge has come con¢dern, and that con-
26See 23 U.S.C. $121.
26aBy listing these examples we do not at all imply that there must
be. an additional section 128(a) hearing before each step is taken. See
page 13, infra.
27(C) inelude in every andiietaiion 4 or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human cuvircoment, a detailed statement by the respon-
sibie official on—
(i) the environmental pices of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(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 commitments of resources
which would be involved in the proposed action should it be imple-
mented.
e s &
(D) study, develop, and describe appropriate alternatives to recom-
mend courses of action in any proposal which involves unresolved con-
flicts concerning alternative uses of available resources”
16 Roosevelt Lathan and Pearline Lathan, et al. vs.
cern is reflected in the 1968 and 1970 amendments to section
128(a) and in NEPA. The proposed segment of I-90 is to be
built in the future, an decisions about it are to be governed by
the law at it reads now, not as it read in 1963.
In short, we hold under the facts here that the policies of NEPA
and section 128(a) must be construed together and that section
128(a) provides a public forum at which, among other things, the
NEPA required EIS will be a basis for the hearing.
In so holding, we have the support of our own prior decisions,
and of those of other circuits. We have held that agencies are
not relieved of the obligation to evaluate the environmental con-
sequences of their actions merely because a particular project
was initiated before the effective date of NEPA. See Jicarilla
Apache Tribe of Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275,
1282-83; Lathan v. Volpe, supra, 455 F.2d at 1120-21. With
respect to ongoing projects, section 128(a) and the regulations
which implement it must be interpreted and administered, “to
the fullest extent possible,” in accordance with the policies of
NEPA. In appropriate cases this may mean total reassessment
of the project in light of its potential evironmental impact, i.e.,
the consideration of its wholesale alteration or abandonment. Cf.
Jicarilla Apache Tribe of Indians v. Morton, supra.
Although NEPA itself does not provide for public hearings,
its general directives contain one clear message: Environmental
protection is a part of every federal agency’s mandate; the Act
requires “agencies to consider environmental issues just as they
consider other matters within their mandates.” Calvert Cliffs’
Coordinating Comm., Inc. v. United States Atomic Energy
Comm'n, D.C.Cir., 1971, 449 F.2d 1109, 1112. (Emphasis in orig-
inal) Section 128(a) provides the forum for doing so. In cases in
which the Seeretary has not given PS&E approval to a project,
other Cireuits have ordered new section 128(a) hearings. Monroe
County Conservation Council v. Volpe, 2 Cir., 1972, 472 F.2d
693, 701-02; Arlington Coalition on Transp. v. Volpe, 4 Cir.,
1972, 458 F.2d 1328, 1337-38.28
*8While the court in Arlington Coalition states at one point that
“P. S. & E. approval has not yet been given,” 458 F.2d at 1332, the
court at another point states that “by July 28, 1966, acquisition-of-right-
of-way agreements between the state highway department and the Secre-
Claude S. Brinegar, etc., et al. 17
We think that section 128(a) embodies its own test as to when
a hearing must have been held—before WSDH “submits plans”
—i.e., in this ease before WSDH seeks PS&E approval. We there-
fore do not discuss the relative merits of the “tests” adopted in
Arlington Coalition, supra, and in Monroe County, supra. We do
not mean that there must have been a new hearing every time that
WSDH submits some change in plans to the Secretary. We are
fully aware of the complexity of such a major porject as the
I-90 segment, and of the fact that, in such a project changes in
plans may be necessary as planning or actual work proceeds.
We refer only to major submission, and these are set out in the
Federal-Aid Highway Act and the Secretary’s regulations as we
have outlined them in this opinion.
Nor are repeated section 128(a) hearings required in any case
in which a hearing, fully complying with section 128(a) and the
policies of NEPA, has once been held, at least absent some really
drastic changes in plans occurring thereafter.
We stress that the hearing under section 128(a) must take into
account the factors that are now outlined in that section and in
NEPA. It will not be merely a new “corridor” or “location”
tary had been entered into for the entire project,” and the state had
been reimbursed $28,679,123.07. Id, at 1328. The court therefore may
have meant to say at p. 1332 that no PS&E approval for construction
In Monroe County, the state highway department had not yet sub-
mitted its plans, specifications and estimates, but it was undisputed that
the federal government was prepared to give PS&E approval after
at 696.
Where the highway in question has actually been under
i the amendments do not apply. Wildlife Preserves,
ir., 1971, 443 F.2d 1273. That is not this case. See
~
a
=
SJ
2
8
w
also Citizens Environmental Council v. Volpe, 10 Cir., 1973, 484 F.2d
870.
18 Roosevelt Lathan and Pearline Lathan, et al. vs.
hearing or “design” hearing, although of course what was consid-
ered at those hearings can be considered. The major focus must
be on the total impact of the project as a whole, including whether
it should be built at all, as well as whether, if it is to be built,
it should be built where and as previously planned.
e. The claimed sufficiency of the June, 1970, hearing.
To all of the foregoing the state defendants respond that the
design hearing that was held in June of 1970 did comply with
section 128(a) as amended, that the matters that we have out-
lined were considered at that hearing, and that in addition
WSDH has had a large number of meetings with interested per-
sons and groups at which the same matters were considered. In
short, they claim that there has been substantial compliance with
section 128(a), and that no further hearing should be required.
On the record before us, we cannot tell whether this claim is sus-
tainable. We do note at least one weakness in it. At the time of
the hearing, no EIS had been prepared, and it was the position
of WSDH that none was required. See Lathan v. Volpe, supra,
455 F.2d at 1120-21. Thus it is not as likely that full considera-
tion was given to the environmental impact of I-90 as would have
been given had there been an EIS available for discussion at the
hearing. Nevertheless, because the point is strongly pressed, the
district court on remand may, if it wishes, consider this claim.
The district court may feel, however, that the case can and
should be disposed of more expeditiously by requiring a new
hearing or opportunity for a hearing, of the type that we have
outlined. The district court might feel that a decision that the
June, 1970, hearing was sufficient would simply invite another
appeal and further delay. This question we leave to the district
court.
WSDH has advised us that the state and FHWA have now
prepared a new EIS for the Seattle segment “in strict com-
pliance with’’ the district court’s order, entered following our
remand. A copy has been lodged with this court. We decline to
consider whether it complies with the district eourt’s order. That
is for the district court. However, assuming that the proper
administrative approval has been received, this new EIS should
form one of the bases of the new section 128(a) hearing, if such
Oe eee
=
~ Claude 8. Brinegar, etc., et al. 19
hearing is ordered. The importance of the EIS in the decision-
making process cannot be underestimated; the EIS
“seeks to ensure that each agency decision maker has before
him and takes into proper account all possible approaches
to a particular project (including total abandonment of the
project) which would alter the environmental impact and
the cost-benefit balance. Only in that fashion is it likely that
the most intelligent, optimally beneficial decision will ulti-
mately be made.” Calvert Cliffs’ Coordinating Comm. Inc. v.
United States Atomic Energy Comm’n, supra, 449 F.2d at
1114.
The new EIS should also be made available to the public
before the section 128(a) hearings. See FHWA PPM 90-1 at {6c
(August 24, 1971), quoted in 3 Env. L. Rep. 46106, 46108. Of
course, the hearing itself should not necessarily be limited to the
contents of the new EIS. The hearing is “meant to be a ‘town
hall’ type meeting in which people are free to express their views.
The hearing was not intended to be a quasi-judicial or adversary
legal type hearing.” H. Rep. No. 911554, 91st Cong., 2d Sess.
(1970), quoted in 1970 U.S. Code Cong. & Admin. News, 5392,
5396.
Defendants urge expedition in the disposition of this case.
They represent that the costs of construction are rising at the
rate of more than $30,000,000 per year. Furthermore, they have
pointed to 23 U.S.C. 103(g), which provides, in part:
“Any segment of the Interstate System, with respect to which
a State has not submitted by July 1, 1975, a schedule for
the expenditure of funds for completion of construction of
each segment or alternative segment within the period of
availability of funds authorized to be apportioned for eom-
pletion of the Interstate System, and with respect to which
the State has not provided the Secretary with assurances
satisfactory to him that such schedule will be met, shall
be removed from designation as a part of the Interstate
System.”
We agree that the district court should proceed with expedition.
Cf. Lathan v. Volpe, supra, 455 F.2d at 1120-21.
20 Roosevelt Lathan and Pearline Lathan, et al. vs.
d. Res judicata and laches.
The defendants argue that our mandate in Lathan v. Volpe,
supra, is res judicata on the section 128(a) question, because we
there rejected Citizens’ due process challenge to the 1963 corri-
dor hearing.*® This is not correct. The ease has not proceeded to
final judgment, and the applicable doctrine is therefore law of
the case, not res judicata. See 1B J. Moore, Federal Practice
10.404[1] (2d ed. 1974). Although the object of both rules of
law is finality in litigation, the former doctrine applies only to
foreclose the reconsideration of matters actually decided. See
Electrical Research Prod. v. Gross, 9 Cir., 1941, 120 F.2d 301,
307.39 All that we decided in Lathan v. Volpe, supra, was that
the plaintiffs’ attack on the 1963 hearing, on procedural due
process grounds, was barred by laches. Because we did not con-
sider the effects of the section 128(a) amendments on the previ-
ous appeal, that issue is properly before us now. Id.
Nor can we say that the doctrine of laches precludes plain-
tiffs from raising the section 128(a) issue. “Laches requires proof
of (1) lack of diligence by the party against whom the defense
is asserted, and (2) prejudice to the party asserting the defense.”
Costello v. United States, 1961, 365 U.S. 265, 282. It cannot be
said here that plaintiffs have slept on their rights since 1963; the
earliest date that this claim arose was August 23, 1968, the effec-
tive date of the initial amendments to section 128(a). Moreover,
NEPA, which has a substantial influence upon our interpreta-
29We there stated:
“Plaintiffs third contention is that the 1963 public hearings on
the proposed location of I-90 deprived them of certain procedural
rights guaranteed by due process of law. We need not decide the
merits of this contention, since we think the equitable defense of
laches is available to defendants. Plaintiffs failed to raise this claim
for over seven years after the hearing took place, during which
time they knew of the hearing and its alleged deficiencies. Defend-
ants have expanded a substantial sum of money in reliance on the
validity of that proceeding. Thus the two essential elements of
laches—lack of diligence by plaintiff and injurious reliance thereon
by defendant—are present and plaintiffs are precluded from chal-
lenging the validity of the hearing at this late date.” 455 F.2d at
1122.
39See also DePinto v. Landoe, 9 Cir., 1969, 411 F.2d 297 (court of
appeals had expressly reserved the issue).
” Claude 8. Brinegar, etc., et al. 21
tion of the effects of the amendments, see supra, was not opera-
tive until January 1, 1970, less than six months before this action
was filed. Thus, Citizens has not been guilty of an extreme lack
of diligence in raising this issue. Moreover, WSDH has not suffi-
ciently demonstrated the extent of its reliance upon whatever
delay there may have been. Under these circumstances, the doc-
trine of laches should not be applied to bar the litigation of
this important publie issue. Cf. Arlington Coalition on Transp.
v. Volpe, supra, 458 F.2d at 1329-30; Ward v. Ackroyd, D.Md.,
1972, 344 F.Supp. 1202, 1212-13. We do not here attempt to set
out a rule for future highway litigation, since the question of
whether laches bars an action in a particular case depends upon
the facts and circumstances of that case and is a question
addressed primarily to the discretion of the trial court. Burnett
v. New York Central R.R. Co., 1965, 380 U.S. 424, 435; Gardner
v. Panama R.R. Co., 1951, 342 U.S. 29, 30.
Finally, as we have previously stated, the issue here is not the
validity of the 1963 hearing. We do not doubt its validity. The
issue is whether present law should now be applied to this par-
tially inchoate major federal project.
II. The Environmental Impact Statement
and Section 4(f) Issues.
As we have seen, WSDH now maintains that a proper EIS
and 4(f) statement regarding the Seattle segment has been pre-
pared. It has thus virtually abandoned its cross-appeal. Neverthe-
less, we consider the question because there may be further attack
on the EIS on remand.**
31Citizens argues also that the district court erred in permitting
WSDH to attach summaries and comments to the environmental impact
statement, rather than the comments in their entirety. Although the fed-
eral defendants argue that the district court’s order is essentially correct,
WSDH has stated that it intends to attach all comments received. This
concession disposes of the issue in light of our conclusion that Citizens
cannot challenge the district court’s order permitting WSDH to prepare
the impact statement.
22 Roosevelt Lathan and Pearline Lathan, et al. vs.
The Administrative Procedure Act, 5 U.S.C. §706, prescribes
the seope of review. So far as pertinent here, it provides:
“. .. The reviewing court shall—
* #* #
(2) hold unlawful and set aside agency action, findings,
and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law;
+ * *
(D) without observance of procedure required by law.”
Subsection (2)(A) refers primarily to substantive decisions
committed to the Agency in the first instance. It may be appli-
cable (we do not say that it is) where it is claimed that the
Agency, in deciding whether to proceed with a project, has
ignored conclusions or considerations stated in an EIS. Such a
question is for the Agency, not the courts, to decide. The scope
of judicial review in such a case is narrow, if review be avail-
able at all. See 5 U.S.C. §701(a) (2); Citizens to Preserve Over-
ton Park v. Volpe, 1971, 401 U.S. 402, 410; Environmental De-
fense Fund, Inc. v. Armstrong, 9 Cir., 1973, 487 F.2d 814, 822,
n. 13. We could reverse the agency, if at all, only in a rare case,
and only if we found its action arbitrary, capricious, an abuse
of discretion, or contrary to law. We could not substitute our
judgment for that of the Agency. See Jicarilla Apache Tribe of
Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275, 1279-80, 1281;
Citizens to Preserve Overton Park, supra, 401 U.S. at 416.
On the other hand, subsection (2)(D) provides that we may
set aside agency action if we find it to be without observance of
procedure required by law. We regard the question whether an
EIS complies with the requirements of NEPA as a procedural
question, governed by §706(2)(D). See Jicarilla Apache Tribe,
supra, 471 F.2d at 1280-81. In Life of the Land v. Brinegar,
9 Cir., 1973, 485 F.2d 460, 469, we quoted Jicarilla Apache Tribe,
supra, regarding substantive decisions, but then apparently applied
§706(2)(A) to the question whether the EIS satisfied the require-
ments of NEPA. This appears to be a misreading of Jicarilla
Apache Tribe, but our reading of Life of the Land convinces us
Claude S. Brinegar, etc., et al. 23
that the result would be no different if we had thought that
§706(2)(D) applied. We later said as much in Environmental
Defense Fund, supra, 487 F.2d at 815, n. 7.
We stand on §706(2)(D) because NEPA is essentially a pro-
ecedural statute. Its purpose is to assure that, by following the
procedures that it preseribes, agencies will be fully aware of the
impact of ther decisions when they make them. The procedures
required by NEPA, 42 U.S.C. §4332(2)(C), are designed to
secure the accomplishment of the vital purpose of NEPA. That
result can be achieved only if the prescribed procedures are faith-
fully followed; grudging, pro forma compliance will not do. We
think that the courts will better perform their necessarily limited
role in enforcing NEPA if they apply §706(2)(D) in reviewing
environmental impact statements for compliance with NEPA
than if they confine themselves within the straight jacket of
§706(2)(A). See Wyoming Outdoor Coordinating Council v.
Butz, 10 Cir., 1973, 484 F.2d 1244.
As Mr. Justice Frankfurter said in a criminal case, in words
that are equally applicable to the actions of administrative agen-
cies: “The history of liberty has largely been the history of
observance of procedural safeguards.” McNab v. United States,
1943, 318 U.S. 332, 347. So it may also be with the history of
environment. See also Calvert Cliffs’ Coordinating Comm., Inc. v.
United States Atomic Energy Comm’n, D.C.Cir., 1971, 449 F.2d
1109, 1114-15; Silva v. Lynn, 1 Cir., 1973, 482 F.2d 1282.
This does not mean that the courts are to “fly speck” envi-
ronmental impact statements. The preparation of such a state-
ment necessarily calls for judgment, and that judgment is the
agency’s. But the courts can, and should, require full, fair, bona
fide compliance with NEPA. That is what the district judge did
in this case.
It was not an abuse of discretion for the district court to strike
Citizens’ request that the Secretary of Transportation be ordered
to prepare the EIS. The issue was raised for the first time in a
brief which was not served on the defendants until the day of
the hearing, and was inconsistent with Citizens’ earlier motion
to compel WSDH to prepare an adequate impact statement.
~
24 Roosevelt Lathan and Pearline Lathan, ei al. vs.
The district court did not err in permitting the inadequate
EIS to be re-circulated as a draft. Circulation of a grossly inade-
quate statement as the draft of a new one could conceivably
frustrate the goal of obtaining informed agency and public com-
ment on the environmental consequences of a proposed project,
and in some circumstances this could amount to a violation of
the responsible agency’s duty to “develop methods and proce-
dures . . . which will insure that presently unquantified environ-
mental amenities and values may be given appropriate consider-
ation in decisionmaking along with economic and technical con-
siderations.” 42 U.S.C. §4332(2)(B). However, Citizens has not
demonstrated that this is such & case.
We think that the motion of: plaintiffs-appellants and inter-
venors for attorney’s fees should be considered in the first instance
by the district court.
That part of the judgment which refuses to order a hearing
under section 128(a) is vacated. In all other respects, the judg-
ment is affirmed. The case is remanded for further proceedings
consistent with this opinion. bs
Judges KOELSCH, ELY and HUFSTEDLER do not concur
in the portion of the opinion that holds that the district court
may, on remand, consider whether there has already been sub-
stantial compliance with section 128(2). They would hold that
there has not been such compliance.
WALLACE, Circuit Judge, Coneurring.
I concur generally with the majority. I disagree that the case
shoud be remanded for the district court to consider whether new
hearings need now be held pursuant to 23 U.S.C. § 128(a). The
question whether the hearings required by section 128(a) have
been held is immaterial until the state highway department sub-
mits plans for a federal-aid highway project. At that time. see-
tion 128(a) requires that the state highway department “shall
certify to the Secretary that it has had [the requisite] publie
hearings . . . .” If the state highway department decides not to
Claude S. Brinegar, etc., et al. 25
submit plans, the question never arises. Once it does submit plans,
compliance with section 128(a) is necessary and appropriate judi-
cial proceedings may be instituted to challenge the certification
that required hearings have been held.
In the instant case, there has been no submission of plans and
thus no certification. An action raising the question whether the
hearings complied with section 128(a) is, therefore, premature.
It is the responsibility in the first instance of the state highway
department to hold such hearings as it deems necessary and to
make the required certification to the secretary when it submits
plans.
In addition, I cannot coneur with the statements, which I deem
to be dicta, pertaining to what constitutes further major federal
action on this project. The majority concludes, without the ben-
efit of briefs or argument, that certain actions are further major
federal actions. I believe wisdom dictates that we wait before we
make such a determination until a record raising this question is
properly before us. It is at least equally arguable that once the
final engineering design stage has been approved, all major fed-
eral action has been completed. At that point, the eventual im-
pact on the environmental has been established. Each house that
is moved, each mound of dirt that is excavated, each ribbon of
concrete that is laid has an impact on the environment, but that
impact is determined by the plan already adopted. Of course, the
federal government will participate substantially in the project
subsequent to the approval of the design plan, but participation
alone is not enough. The real question is whether the govern-
ment’s continued participation constitutes “further major Fed-
eral actions having a significant effect on the environment.” 36
Fed. Reg. 7727 (1971) (emphasis added). It can be persuasively
argued that after final design approval, nothing further occurs
which (1) is major and (2) has a significant effect on the envi-
ronment, because no action outside the contemplation of the
approved design is undertaken. Such an analysis is completely
consistent with our previous holding in San Francisco Tomorrow
v. Romney, 472 F.2d 1021, 1024-26 (9th Cir. 1973).
se ARN LOTTE N RT o
“AS tamer
26 Roosevelt Lathan and Pearline Lathan, et al. vs.
TRASK, Circuit Judge, with whom Circuit Judges WRIGHT,
CHOY and GOODWIN join, Specially Concurring:
Part 2 of the opinion discusses “Public Hearings” that have
been held, including a design hearing by the Washington State
Department of Highways on June 2-6, 1970. In part 2¢ the
opinion acknowledges the contentions of the State Defendants-
Appellants that this hearing did comply with section 128(a) as
amended, and that such hearing together with other mectings
held by the Washington State Department of Highways with
interested persons and groups constitutes substantial compliance
with section 128(a) so that no further hearing should be required.
While the opinion leaves the question of the need for a fur-
ther hearing to the District Court to consider on remand, it “sug-
gests” that the District Court may feel “that the case can and
should be disposed of more expeditiously by requiring a new
hearing or opportunity for a hearing” of the type the opinion
has discussed.
Lest the District Court might consider this language to consti-
tute an admonition which would interfere with its freedom of
decision, it should be pointed out that the record of the June 2-6,
1970, hearings has never been before us. None of us has exam-
ined it. No basis exists therefore upon which we can circumscribe
the trial court’s freedom of judgment in assessing the sufficiency
of that record. The suggested admonition is predicated upon the
fact that an appeal might be taken unless a new hearing is held.
An appeal might also be taken if a new hearing is held.
The evaluation of the sufficiency of the record to comply with
the statutory requirements and regulations is for the trial court
in the first instance. It should be exercised as in any other case
without advice from this court as to the manner in which the
decision should be made upon evidence we know nothing about.
CHAMBERS, Circuit Judge, concurring:
As a result of today’s decision, the Secretary may no longer
approve federal funding for any proposed federal aid highway
project bypassing or going through a town or city unless the
state has held a public hearing in compliance with 23 U.S.C.
§ 128(a), as amended. I concur in this result.
Claude S. Brinegar, etc., et al. 27
Section 128(a) itself requires the state to do nothing more
than provide a structured forum for the public discussion of the
possible social, environmental and economic impacts of a proposed
highway location or design. On the other hand, the Secretary’s
regulations promulgated under § 128(a), in which we are now
obliged to acquiesce, require the state to use that forum as a
means of fully aequainting the public with such possible conse-
quences.
Today’s decision prescribes two sets of criteria for determin-
ing whether the state has met this requirement. First, the state
must have furnished all information relevant to the considera-
tions listed in 23 C.F.R. § 790.3(¢)(1) through (c) (7). Because
that list was not intended to be exclusive, we have decided that
the state must also furnish any relevant information relating to
those considerations normally contained in an Environmental
Impact Statement, if those considerations are necessary to give
the public a full acquaintance with the social, environmental and
economic impacts of the proposal.
Anyone challenging the sufficiency of the information provided
by the state has the burden of establishing that the information
omitted was relevant to one of the prescribed considerations end
that the information could reasonably have been expected to have
had an impact on the decision making process, With this in mind,
the district court is left to the task of determining whether the
state complied with § 128(a), as amended.
PERNAU-WALSH PRINTING CO., SAN FRANCISCO 10-7-74—480
APPENDIX “D.”
Memorandum and Order Granting in Part and Denying
in Part Plaintiffs’ Motion for a Preliminary In-
_ junction,
Ralph W. Keith et al., Plaintiffs, v. John A. Volpe,
as Secretary of Transportation, et al., Defendants.
Civ. No. 72-355-HP.
United States District Court, C.D. California. July
7, 1972. Motion to Amend Denied Sept. 11, 1972. ;
PREGERSON, District Judge.
This suit was brought to halt work on the proposed
Century Freeway until such time as the responsible
federal and state officials comply with certain constitu-
tional statutory, and administrative requirements, which, |
plaintiffs contend, they have heretofore failed to satisfy.
The matter came on for hearing on May 2, 3, 4, and 5,
1972, on plaintiffs’ motion, filed pursuant to Rule 65 of
the Federal Rules of Civil Procedure, for a preliminary
injunction. Having studied the briefs, affidavits, and
exhibits submitted by counsel prior to the aforesaid hear-
ing, having heard the testimony offered and the argu-
ments of counsel made at the aforesaid hearing, having
studied the briefs and affidavits submitted by coun-
sel after the conclusion of the hearing, and having
studied the authorities cited by counsel, the Court has
concluded that defendants have adequately complied
with some of the aforementioned legal requirements, but
have failed to comply with others. Therefore the Court
will issue a preliminary injunction.
Plaintiffs herein are four couples who live in the
path of the proposed freeway, the National Association
for the Advancement of Colored People, the Sierra
y
|
Club, the Envitonmental Defense Fund, an unincor- |
porated association named “Freeway Fighters,” and |
the City of Hawthorne. Defendants, herein are various |
state and federal officials and agencies. One group of |
defendants, sometimes referred to as “federal defend-
ants,” consists of John A.’ Volpe, the Secretary of: the
United States Department of Transportation; Sheridan
A. Farin, the Administrator of Region 7 of the Federal
' Highway Administration, an agency within the Depart-
ment of Transportation; and Donald E. Trull, the Di-
vision Engineer for the Federal Highway Administra-
tion in California. A second group of defendants,
sometimes referred to as “state -defendants,” consists
of the California Highway Commission; the California
Department of Public Works; James A. Moe, the Di-
rector of the Department of Public, Works; and Robert
Datel, the State Highway Engineer of the California
' Division of Highways, an agency within the Depart-
ment of Public Works. Plaintiffs contend that defeid-
ants have failed to comply with a federal environmental
protection statute;' a California environmental protec-
| tion statute:? federal statutes protecting homeowners,
tenants, and businessmen who must relocate because
of the construction of highways funded with federal
aid;? and a‘federal statute requiring that public hear-
- ings be held prior to the construction of any federal-
1The National Environmental Policy Act of 1969, 42 US.C.
§§ 4321-4347.
+ The California Environmental Quality Act of 1970, Calif.
Pub.Res.Code §§ 21000-21151.
Chapter V of the Federal-Aid Highway Act of 1968, 23
U.S.C. §§ 501-511, and the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970, 42 U.S.C.
§§ 4601-4655. Plaintiffs also rely on the’ Urban Mass Transporta-
tion Act of 1964, 49 U.S.C. §§ 1601-1612, but concede that it
does not technically apply to the Century Freeway.
a ie ee ay oe
! ERLE LTR NAN MSS PEI CT OBR AN tert eure gne ae
’ bi Dit SRE REIS Rr mae Whee
NEL NTY £
NENTS PTANV EE et ORNL SDE RL PRY WY J
ae
aid highway.’ Plaintiffs also charge that federal de-
fendants are violating the due process clause of the
Fifth Amendment to the United States Constitution
and that state defendants are violating the due process
and equal protection clauses of the Fourteenth Amend-
ment.
A sketch of the proposed freeway is in order. If
and when the Century Freeway is completed, it will,
as presently planned, stretch a distance of 17 miles
across the southern portion of the densely populated
Los Angeles basin. It will connect the Los Angeles In-
ternational Airport cn the west with the San Gabriel
River Freeway (Route 1-605) on the east; it will also
intersect with the San Diego, Harbor, and Long Beach
Freeways (Routes 1-405, 11, and 7, respectively). The
freeway will traverse the cities of El Segundo, Haw-
thorne, Inglewood, Lynwood, South Gate, Paramount,
Downey, and Norwalk, the Watts section of the City of
Los Angeles, and unincorporated areas of Los Angeles
County, including the communities of Willowbrook and
Del Aire. Federal officials have designated the free-
way as a part of the interstate highway system—spe-
cifically, Route I-105. Therefore 90% of the cost of
the freeway will be borne by the federal government,
although the California Division of Highways will ac-
tually acquire the right-of-way and construct the road.
The total cost of acquiring the land and actually con-
structing the freeway has been estimated at $501,800,-
000. It has also been estimated that 9000 families,
consisting of 21,000 individuals, will be displaced by
the freeway and that 3900 single-family dwellings and
‘Section 128(a) of the Federal-Aid Highway Act of 1968,
23 U.S.C. § 128(a).
* vb we ’ u
OP PRI AL FAT) Met sha py
—4—
3000 multiple-family dwellings will be acquired in or-
der to clear the right-of-way.
The planning and uesign of a federal-aid highway
is a lengthy process. The applicable statutes and regu-
lations require a series of public hearings and, in addi-
tion, the submission by state officials of detailed pro-
posals and assurances to officials of the Department of
Transportation [hereinafter DOT] and the Federal
Highway Administration [hereinafter FHWA] for ap-
proval. See, e.g., the Federal-Aid Highway Act, 23
U.S.C. § 101 et seq.; the FHWA’s Policy and Procedure
Memorandum 20-8 (Jan. 14, 1969) [hereinafter PPM
28-8], 23 C.F.R. Part. 1, Appendix A; Lathan v.
Volpe, 455 F.2d 1111, 1115-1116 (9th Cir. 1971).
A public hearing on one aspect of the Century Freeway
was held as long ago as June 1963, and the Division of
Highways is now in the midst of acquiring the right-
of-way for the freeway. According to the testimony of
an official of the Division of Highways, as of approxi-
mately April 24, 1972, the Division had acquired 3388
parcels of land for the freeway, which represented
55.8% of the 6073 parcels that it intended to even-
tually acquire. It had acquired these parcels for a total
of $88,651,000. In addition, the Division had reached
agreements with the owners of 169 other parcels that
were still in escrow. In one segment of the freeway cor-
ridor, however, the Division had already acquired
85.1% of the parcels, while in another segment it
had only acquired 39.7%. A second official testified
that as of approximately May 3, 1973, 2840 resi-
dences in the freeway corridor had been vacated. Ac-
cording to the testimony of a third official, the Division
of Highways at present intends to begin actual con-
alti
struction of the freeway during the third quarter of
1972 and to complete construction by the middle of
1977.
With that picture of the proposed freeway and of
the work that has already heen performed in mind, the
Court will turn to the specific legal issues raised by
this lawsuit.
The National Environmental Policy Act of 1969:
Nearly three years ago, in response to growing pub-
lic concern with the deterioration of the nation’s
environment, Congress enacted the National Environ-
mental Policy Act of 1969 [hereinafter NEPA], 42
U.S.C. §§ 4321-4347. The statute went into effect on
January 1, 1970. Section 101 of NEPA, 42 U.S.C.
§ 4331, contains a declaration by Congress of a com-
prehensive national environmental policy. Section 102
(2)(C), 42 U.S.C. § 4332(2)(C), establishes a mech-
anism for carrying out that policy. It “authorizes and
directs that, to the fullest extent possible,” every agency
of the federal government shall
“include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the hu-
man environment, a detailed statement by the
responsible official on—
“(i) the environmental impact of the proposed
action, - i
“(ii) any 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
callie
“(v) any irreversible and irretrievable commit-
ments of resources which would be involved in the
proposed action should it be implemented.”
In the words of Judge Skelly Wright, “NEPA, first of
all, makes environmental protection a part of the man-
date of every federal agency and department.” Calvert
Cliffs’ Coordinating Committee, Inc. v. Atomic Energy
Comm’n, 146 U.S. App.DC. 33, 449 F.2d 1109,
1112 (1971). NEPA also established a Council on
Environmental Quality [hereinafter Council], and in
guidelines promulgated pursuant to NEPA that body
stated,
“The objective of section 102(2)(C) * * * is to
build into the agency decision making process an
appropriate and careful consideration of the en-
vironmental aspects of proposed action * * *.”
Statements on Proposed Federal Actions Affect-
ing the Environment, 36 Fed.Reg. 7723, 7724,
q 1 (April 23, 1971).
[1, 2] To quote again from the Calvert Cliffs’ de-
cision, moreover,
“* * * [T]he Section 102 duties are not in-
herently flexible. They must be complied with to
the fullest extent, unless there is a clear conflict
of statutory authority.” 449 F.2d at 1115. [Em-
phasis in original. ]
See also Daly v. Volpe, 350 F.Supp. 252 (W.D. Wash.
1972). The federal defendants have not filed the en-
vironmental impact statement required by Section 102
(2)(C), and plaintiffs insist that they must do so.
Federal defendants concede that the construction of
freeways with federal funds does constitute “major Fed-
eral actions, significantly affecting the quality of the
— o
human environment,” within the meaning of NEPA.
They contend, however, that NEPA does not apply to
Projects that were in as advanced a state of completion
as was the Century Freeway at the time that NEPA
went into effect—i.e., on January 1, 1970.
No provision of NEPA explicitly discusses the stat-
ute’s applicability to projects that were already in
existence on January 1, 1970, and “a volatile dispute
in the law has emerged on the extent of which NEPA,
and particularly Section 102(2)(C), applies to an on-
going project.” Environmental Law Fund v. Volpe, 340
F.Supp. 1328, 1331 (N.D.Cal.1972).* The Council’s
guidelines promulgated pursuant to NEPA, however,
address themselves to this question. They provide,
“To the maximum extent practicable the Section
102(2)(C) procedure should be applied to fur-
ther major federal actions having a significant ef-
fect on the environment even though they arise
‘Courts have refused to hold Section 102(2)(C) applicable
to projects that were in existence on January 1, 1970, in Penn-
Environmental Council, Inc. v. Bartlett, 454 F.2d 613
3d Cir. 1971); San Francisco Tomorrow v. Romney, 342 F.
Supp. 77 (N.D.Cal. 1972); Environmental Law Fund v. Volpe,
supra; Apache .
WCF, 3 ERC 1919 (D.Ariz., March 14, 1972): Citizens to Pre-
serve Foster Park, Inc. v. Volpe, No. Civ. 71 F 71, 3 ERC 1031
(N.D.Ind., Aug. 18, 1971); Elliot v. Volpe, 328 F.Supp. 831
(D.Mass.1971); Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash.
1970), motion for rehearing denied 329 F. . 118 (W.D.Wash.
1971), rev'd on other grounds 460 F.2d 1193 (9th Cir., 1972);
Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038
(D.Or.1970). cages Demy ee ad oe applicable
to such ery in i ition on Transportation v.
Volpe, 458 F.2d 1323 (4th Cir. 1972): Calvert Cliffs’ Coordinat-
ing Committee, Inc. v. Atomic Energy Comm’n, supra; Named In-
dividual Members of San Antonio Conservation Society, Inc. v.
Texas Highway Dept., 446 F.2d 1013 (5th Cir. 1971); Morni
side-Lenox Park Ass'n, Inc. v. Volpe, 334 F.Supp. 132 (ND.
Ga.1971); Nolop v. Volpe, 333 F.Supp. 1364 (D.S.D.1971);
Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.
Supp. 728 (E.D.Ark.1971).
sdliiacs
from projects or programs initiated prior to enact-
ment of the Act on January 1, 1970. Where it is
not practicable to reassess the basic course of
action, it is still important 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 en-
vironmental consequences not fully evaluated at the
outset of the project or program.” Statements on
Proposed Federal Actions Affecting the Envi-
ronment, supra, 36 Fed.Reg. at 7727, 4 11. [Em-
phasis added. ]
Federal defendants argue, in light of the Council’s
guidelines, the application of NEPA to the Century
Freeway would not be practicable.
In November 1970 the FHWA promulgated interim
regulations spelling out the circumstances under which
that agency considered the application of NEPA to a
freeway, the planning of which had commenced prior
to January 1, 1970, to be appropriate. Interim Guide-
lines for Implementation of Section 102(2)(C) of the
National Environmental Policy Act of 1969, 4 4 (Nov.
24, 1970) [hereinafter Interim Guidelines]. The key
element in the FHWA’s formula was the date or
dates on which the highway in question received “de-
sign approval” from the FHWA—.e., the date or dates
on which the FHWA approved the engineering design
proposed by the state highway authorities, following
public hearings, in accordance with PPM 20-8, 4 10.
If the highway in question received design approval
after February 1, 1971, compliance with NEPA would
be necessary. If design approval was received before
February 1, 1971—a date thirteen months after
ar
a ow
NEPA went into effect—compliance with NEPA was
not ordinarily necessary. The Interim Guidelines did
require the state highway authorities te reassess high-
way projects that had received design approval before
February 1, 1971, if those projects entailed the ac-
quisition of substantial amounts of real estate. Interim
Guidelines, ¢ 4c. This reassessment was to be per-
formed “in consultation with” the FHWA division en-
gineer, and its purpose was to determine whether the
project had been “developed in such a manner as to
minimize adverse environmental consequences.” No
Section 102(2)(C) statement was necessary, however,
“unless requested by the division engineer.” Id.
The state defendants divided the Century Freeway
into eight segments for the purpose of preparing de-
sign proposals for submission to the FHWA. Design
approval was obtained for three of those segments prior
to January 1, 1970. Design approval for the remaining
five segments was received between January 1, 1970,
and February 1, 1971.° The Interim Guidelines, there-
fore, required only that the state highway authorities
reassess the Century Freeway project. A reassessment,
dated March 15, 1971, was prepared by the state de-
fendants; it concluded that the Century Freeway proj-
ect had been “developed in such a manner as to give
detailed consideration to the potential impact upon
the quality of the human environment * * *.” The
FHWA division engineer concurred in that evaluation
‘Design approval for the eight segments was obtained on the
following dates: August 14, 1968; September 10 and December,
23, 1969; February 12, April 14, July 2, December 1, and
December 15, 1970. In addition, the design that received ap-
proval on September 10, 1969, was subsequently revised; the
revisions received design approval on December 23, 1970.
= se
on April 1, 1971.’ The division engineer never re-
quested a Section 102(2)(C) statement.
Federal defendants urge the Court to approve the
decision not to require the preparation of a Section
102(2)(C) statement. This the Court cannot do, be-
cause the defendants have failed to satisfy NEPA’s
commandments.
[3] The message of NEPA is loud and clear. Section
101(a) declares that
“it is the continuing policy of the Federal Gov-
ernment * * * to use all practicable means and
measures * * * to create and maintain conditions
under which man and nature can exist in produc-
tive harmony * * *”
Section 101(b) provides that in order to carry out this
policy,
“it is the continuing responsibility of the Federal
Government to use all practical means, consistent
with other essential considerations of national
policy, to improve and coordinate Federal plans,
functions, programs, and resources to the end that
the Nation may * * * assure for all Americans
safe, healthful, productive, and esthetically and
culturally pleasing surroundings * * *.”
Section 102 of NEPA
“authorizes and directs that, to the fullest extent
possible: (1) the policies, regulations, and public
laws of the United States shall be interpreted and
administered in accordance with the policies set
forth in [Section 101], and (2) all agencies of the
a
TSee Exhibit SS to Conrado affidavit, filed with the Court
on April 7, 1972.
— eee sae POPES LEER DREN OTE EN RIE.” |
nies.
Federal Government shall, [inter alia, prepare
the environmental impact statements described
in subsection (2)(C)].”
In light of the Congressional directive that “to the fullest
extent possib
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