Russ v. Texas

No. 79-1539 (5th Cir. December 19, 1980)

The court upholds the district court's conclusion that an environmental impact statement (EIS) prepared for the construction of Interstate Highway 27 in Texas complied with the National Environmental Policy Act (NEPA). First, the court rules that by consolidating the hearing on preliminary injunction with the trial on the merits, the district court did not deprive appellant of a jury trial since neither NEPA nor the Administrative Procedure Act creates a right to a jury trial. Next, the court rules that appellant had the burden of establishing by a preponderance of the evidence that the EIS was inadequate. On appeal, appellant's burden is to convince the court that the decision of the district court was clearly erroneous. The court finds that appellant failed to meet its burden on appeal. The record discloses that the district court had ample support for its findings that the EIS adequately addressed the environmental effects of the project, considered the available alternatives including the no action alternative, and was not improperly segmented. The judgment is therefore affirmed.

Counsel for Appellants
Phillip R. Russ
817 S. Polk St., Amarillo TX 79101
(806) 373-9204

Counsel for Appellees
Stephen Greenberg, David R. Thomas, Ass't Attorneys General
P.O. Box 12548, Capitol Station, Austin TX 78711
(512) 475-2501

Judith A. Shepherd, Ass't U.S. Attorney
309 U.S. Cthse., 200 W. 8th St., Austin TX 77801
(512) 397-5858

Before Clark, Tjoflat, and Garza, JJ.

[12 ELR 20259]

Per curiam:

This is an appeal from a final judgment adverse to the plaintiffs's-appellant's claims seeking mandamus and injunctive relief against the construction by the State of Texas, the United States and their agencies and agents of U.S. Interstate Highway 27 from Hale Center, Texas, to the Swisher-Randall County line in Texas. After a hearing on the preliminary injunction, the district court decided the case on the merits and found that the defendants-appellees had complied with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. We affirm.

Appellants, R. G. Russ, Jr. and Helen Russ, are farmer landowners along a portion of the proposed route of Interstate Highway 27 (IH 27). The proposed route will upgrade the existing U.S. Highway 87 which currently bisects their farm property. The entire project is 52 miles long of which approximately 19 miles is on new location. Approximately 1,500 acres of farmland will be lost to this project of which 28 acres will be taken from appellants.

The Texas Highway Department is responsible for the project's planning and construction. The Department prepared a draft environmental impact statement (EIS) for the project. This draft EIS was cleared by the Federal Highway Administration and made available to the public and the Council on Environmental Quality on May 17, 1972. The draft EIS was also circulated to 16 concerned agencies and local governments. On May 3 and 4, 1973, public corridor hearings were held in Plainview and Tulia, Texas, respectively. Social, economic and environmental impacts of the project were presented and discussed. Various written comments were made by agencies suggesting improvements to be made in the EIS. All of these comments were considered in preparation of the final EIS. The final EIS was approved by the Federal Highway Administration on August 21, 1973. It was forwarded to the Council on Environmental Quality and was published in the Federal Register on October 5, 1973.

On October 1, 1974 and May 6, 1975, public design hearings were held in Plainview and Tulia, respectively. Again, social, economic and environmental impacts of the project were open to discussion. Four design changes in the project were made in response to public comments. The final EIS was reevaluated by the Federal Highway Adminstration and it determined that the changes in design were not so substantial as to cause a changed environmental effect of significance to the quality of the human environment.

Appellants first complain on appeal that the district court erred in consolidating the hearing on preliminary injunction with the trial on the merits without notice. In addition, they complain that the consolidation denied them a right to a jury trial. Taking the latter complaint first, we find no authority for appellants' claim to a jury trial. Neither NEPA nor the Administrative Procedure Act, 5 U.S.C. § 701 et seq. create a right to a jury trial. Furthermore, the rights and remedies sought to be enforced by appellants are wholly equitable and as such are to be tried to the court. We therefore hold that appellants had no right to a jury trial.

Next we must determine whether the district court abused his discretion in the consoldiation. Rule 65(d)(2) of the Federal Rules of Civil Procedure give the trial judge discretion to combine a hearing on a motion for preliminary injunction with the trial on the merits. The combining may be done before or after the commencement of the hearing so long as the parties are not deprived of a right to jury trial. See Bowles v. Bennett, 629 F.2d 1022, 1094 (5th Cir. 1980). Here, however, appellants had no deprivation of a jury trial for they had no such right. Furthermore, appellants never objected, by written motion, to appellee's joint motion to consolidate nor did they, by written motion, ask the Court to reconsider its order granting the motion of consolidation prior to or after the Court's entry of Judgment. Nor have appellants shown how they were prevented from fully developing their case or otherwise prejudiced by the consolidation. We hold that the district court did not abuse its discretion in the consolidation.

We now turn to appellants' main concern on this appeal of whether or not the district court applied the proper standard of review of the EIS and whether or not the EIS was adequate. Regarding the adequacy of the EIS, appellants' complaints are summarized as follows: The EIS does not meaningfully discuss or evaluate the permanent loss of agricultural land nor does it reasonably consider available alternatives including the "do nothing" alternative. The EIS is illogically fragmented by covering a segment of the IH 27 project starting in the middle of nowhere and continuing to a point in the middle of nowhere with no logical beginning [12 ELR 20260] or end. The EIS analysis is inadequate or ignores the effects of the project upon water sources such as the Callahan Draw and the Ogallala Aquifer. Lastly, the EIS ignores the effect of increased automobile emissions and related detrimental effects on agriculture caused by increased traffic.

In presenting their case to the district court, the appellants took the position that the defendants-appellees had the burden of establishing by a preponderance of the evidence that the EIS was adequate. This position was legally incorrect. The appellants were required to establish by a preponderance of the evidence, rather than a prima facie showing of deficiencies, that the EIS was inadequate. Sierra Club v. Morton, 510 F.2d 813 [5 ELR 20249] (5th Cir. 1975). The appellants also had the burden of proving that any omitted environmental impacts were the probable effect of the project and that the adverse environmental effect would be significant. Environmental Defense Fund, Inc. v. Corps of Engineers of the U.S. Army, 492 F.2d 1123 [4 ELR 20329] (5th Cir. 1974). Since appellants failed to convince the district court that the EIS was inadequate, their burden on appeal was to convince us that the district court was clearly erroneous. Sierra Club v. Morton, supra.

The district court made extensive findings of fact concerning the procedures followed by the Texas Highway Department in obeying the requirements of NEPA. The court also found that appellants had failed to prove that the EIS did not consider and treat significant adverse effects of the project upon the environment and otherwise found and concluded that the EIS was adequate. Having reviewed the record, we find that the district court's findings have ample support. Neither the briefs or oral argument convince us that the district court is clearly erroneous. Therefore, the judgment of the district court is

AFFIRMED.