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Scottsdale Mall v. Indiana

Citation: 7 ELR 20247
No. No. 76-1632, 549 F.2d 484/9 ERC 1868/(7th Cir., 02/16/1977) Vacated & remanded

The Seventh Circuit vacates and remands a suit seeking to enjoin construction of a highway segment which had been dismissed because defendants had withdrawn the application for federal funding. The record reveals that the segment and the larger by-pass project of which it is a part have an extensive history of federal-state involvement, including the expenditure of $162,000 in federal funds for engineering studies. The court rules that 23 U.S.C. § 145, enacted in 1973, does not give a state the right to take substantial steps over a period of years to program a project for federal assistance and then withdraw the program for federal funding consideration in order to avoid complying with federal environmental statutes. The entire project in this case has become a "major federal action" within the meaning of the National Environmental Policy Act (NEPA) because of federal participation in the programming, location, design, preliminary engineering, and right-of-way acquisition stages, even though plans, specifications and estimates approval had not yet been granted. Compliance with federal environmental statutes was necessary, given the strong expression of congressional will in NEPA, despite the state's withdrawal of the project from federal funding consideration.

Counsel for Plaintiff-Appellant
Harrison Smith
Smith & Tobin
37 W. 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-Appellees
Theodore Sendak, Attorney General; Anthony J. Metz, III, Ass't Attorney General
State House, Indianapolis IN 46204
(317) 633-5512

James Young, U.S. Attorney; Thomas L. Bose, Ass't U.S. Attorney
Federal Bldg., Indianapolis IN 46204
(317) 269-6333

Before PELL and BAUER, Circuit Judges, and CAMPBELL, Senior District Judge.*