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Scottsdale Mall v. Indiana

Citation: 7 ELR 20050
No. No. IP 74-688-C, 418 F. Supp. 296/9 ERC 1532/(S.D. Ind., 12/22/1975)

The court dismisses a complaint brought by owners of a shopping mall alleging that the Indiana State Highway Commission violated NEPA in connection with the long-planned construction of a highway bypass through the mall. The Commission planned to construct a 3.8-mile segment of the bypass, which connects U.S. 31 and U.S. 20 in the South Bend-Elkhart metropolitan area, thereby removing 599 mall parking spaces and preventing expansion of the mall. Plaintiff proposed an alternate alignment through a 20-acre parcel south of the mall. Following rejection of the alternate route, plaintiff brought suit alleging a violation of NEPA, 42 U.S.C. §§ 4321 et seq., ELR 41009, and the Indiana state NEPA, Ind. Code §§ 13-1-10-1 et seq. The Commission subsequently decided to construct the bypass segment without federal funds. The bypass had been planned for over 20 years and plaintiff purchased the mall property in 1968, one year after the Commission announced the location of the bypass.

The court takes subject matter jurisdiction over the complaint, which, on its face, states a cause of action requiring an examination of NEPA and the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq. Bell v. Hood, 327 U.S. 678 (1946). NEPA requires preparation of an environmental impact statement prior to Federal Highway Administration (FHWA) authorization of federal funds for highway construction. A state, however, retains the privilege to determine which highway projects will be federally funded, 23 U.S.C. § 145. Projects become irrevocably federal when FHWA approves the state plans, specifications, and estimates and authorizes funding. Monroe County Conservation Council v. Volpe, 472 F.2d 693, 3 ELR 20006 (2d Cir. 1972). The evidence shows that only $162,000 in federal funds was expended on the bypass, and only during the programming stage, 23 U.S.C. § 105. This de minimis involvement does not render this highway a major federal action subject to NEPA. Plaintiff's reliance on La Raza Unida v. Volpe, 488 F.2d 599, 4 ELR 20090 (9th Cir. 1973), is misplaced, since the relocation statute involved there does not control issues arising under NEPA and the Federal Highway Aid statutes. City of Highland Park v. Train, 519 F.2d 681, 5 ELR 20408 (7th Cir. 1975).

Plaintiff's theory that the bypass is an illegal segmentation of an otherwise federally-funded project likewise fails, since the rest of the project was authorized and constructed prior to NEPA's enactment. See Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038, 1 ELR 20044 (D. Ore. 1970). Furthermore, San Antonio Conservation Soc'y v. Texas Highway Dep't, 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971), does not control, because FHWA never authorized the bypass construction at issue here. If the Commission reopens a request for federal funding, however, the entire highway length is appropriate for impact statement purposes as "independently supportable by meaningful terminal points." Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19, 3 ELR 20739, 20743 (8th Cir. 1973). See 23 C.F.R. § 771.5(a).

The Commission's failure to adopt the alternate route does not rise to a level that can be characterized as arbitrary or capricious. The court cannot act as a "super" Department of Transportation and ignore the considerable expertise of the state officials. See Swain v. Brinegar, 378 F. Supp. 753, 4 ELR 20836 (S.D. Ill 1974), rev'd on other grounds, 517 F.2d 766, 6 ELR 20354 (7th Cir. 1975). The defendants fully considered elements of cost, delay, benefits, and relocation in arriving at their decision.

The full text of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1094).

Consel for Plaintiff
Harrison Smith
Smith & Tobin
37 West Broad St.
Columbus OH 43215
(614) 221-4255

William Wooden
Wooden, Stark, McLaughlin & Sterner
1100 Merchants Bank Bldg.
Indianapolis IN 46204
(317) 639-6151

Counsel for Defendants
Theodore Sendak, Attorney General
Anthony J. Metz, III, Asst. Attorney General
State House
Indianapolis IN 46204
(317) 633-5512

James Young, U.S. Attorney
Thomas L. Bose, Asst. U.S. Attorney
Federal Building
Indianapolis IN 46204
(317) 269-6333

Noland, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]