Stop H-3 Association v. Volpe

Civil No. 72-3606 (D. Haw. October 18, 1972)

In an action for an injunction against the construction of a highway through two pristine Oahu jungle valleys, conservationists and defendant highway officials enter a stipulation under which defendants will be allowed to proceed with nearly completed end segments of the highway with, however, independent environmental review, but will cease right-of-way acquisition, letting of contracts, and construction of the environmentally important middle section pending a judicial determination of the adequacy of an environmental impact statement on the project. The remaining issue is whether an injunction should issue against design and engineering studies while the impact statement is being litigated. The injunction is granted, but the district court suspends its operation within a week upon notice of appeal by one of the defendants to the Ninth Circuit, alleging irreparable injury would result from the operation of the injunction pending appeal.

Counsel for Plaintiffs
Michael R. Sherwood
Hart, Sherwood, Leavitt, Blanchfield & Hall
Suite 433 Dillingham Building
735 Bishop Street
Honolulu, Hawaii 96813

Boyce R. Brown, Jr.
Mattoch, Edmunds, Kemper & Brown
908 Castle & Cookee Building
Honolulu, Hawaii 96813

Counsel for Defendants
George Pai Attorney General, State of Hawaii
Warren H. Higa Deputy Attorney General
Hawaii State Capitol
Honolulu, Hawaii 96813

Robert K. Fukuda United States Attorney
Jon T. Miho Assistant United States Attorney
Room 320, Federal Building
Honolulu, Hawaii 96813

[2 ELR 20649]

King, J.

DECISION AND ORDER

For several years, the State of Hawaii and the Federal Department of Transportation have been planning the H-3 Highway from western Honolulu across the island to Kaneohe. Construction began atboth ends. The middle portion of the highway right-of-way, known as the Moanalua-Haiku section (after the two valleys it would traverse), has not been cleared for construction.

In July 1972, several individuals who live in or near the path of the proposed Moanalua-Haiku section of H-3 and several organizations whose members use the Moanalua and Haiku valleys, e.g., by hiking, expressed their concern about environmental effects of the highway by filing the present action. One cause of action alleges that the defendants failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 and prays for a preliminary injunction, enjoining the highway project until an environmental impact statement is approved by the Secretary of Transportation. 42 U.S.C. § 4322 (C.

The parties and their counsel have worked out a stipulation, whereby construction at the two ends will continue under certain guidelines,¹ but all acquisition and clearing of land and all construction with respect to the middle section will stop pending the trial of this matter on the merits. The only dispute remaining at this time is whether the preliminary injunction's scope will also prohibit design work on the Moanalua-Haiku section. The State of Hawaii let five contracts² for this design work, all after the effective date of NEPA (January 1, 1970). This court holds that the purposes and language of NEPA demand that all work, including design, be stopped pending approval of the impact statement. The termination of all work will extend to the trial of this matter on the merits.

Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1972) sets forth the proper test for determining whether a preliminary injunction should issue in a NEPA action. The Court of Appeals was "satisfied that this case does not call for a balancing of equities or for the invocation of the generalities of judicial maxims in order to determine whether an injunction should [be] issued . . ." 455 F.2d at 1116. A less stringent standard is required to effectuate the declared policy of Congress, set forth in NEPA, specifically § 101 (a), 42 U.S.C. § 4322 (a).

Defendants contend that the design phase of the Moanalua-Haiku segment should proceed because its specific effect on the environment is minimal.The only physical impact would be ten foot clearings, necessary to take testborings of the soil.

However, this court believes that the design phase should not be examined individually to determine its specific impact.³ Instead, it is appropriate to examine the purpose to which the engineering and design work will be put. It is not a part of the evaluation necessary to prepare a full impact statement; the statement has already been completed and is presently being reviewed by the Secretary of Transportation.

The only purpose for the design work is to advance the highway project itself. Because the contracts would involve the further expenditure of more than two million dollars, completion of these contracts would increase the stake which the state and federal agencies already have in the Moanalua-Haiku segment, as is. That is not the kind of compliance with NEPA envisioned by Congress in passing the act.

The alternatives before the Secretary of Transportation include not only the various ways of proceeding with the project but also the total abandonment of the project. Calvert Cliffs Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1114 (D.C. Cir. 1971). The impact statement is not supposed to be merely a progress report. It would become that, if any work continued during the review of the impact statement. La Raza Unida v. Volpe, 337 F. Supp. 221, 3 ERC 1306, 1315 (N.D. Cal. 1971) (injunction against preparation of plans, maps or other documents); Greene County v. FPC, 455 F.2d 412, 3 ERC 1595 (2d Cir. 1972) (injunction against repors being prepared).

Therefore, it is ordered that the defendants, their agents and employees, and any persons in active participation with them, are hereby enjoined from commencing or continuing or permitting the commencement or continuation of work or preparation as provided in contracts numbered 788, 856, 835, 1462 and 1831. State and federal defendants are specifically enjoined from releasing any state or federal funds in payment for any work done under these contracts subsequent to the date of this order and until the final determination of the causes of action set forth in plaintiffs' complaint; it is the intent of this provision that funds may be released for payments for work done under these contracts prior to the date of this order. Test-borings which have physically begun under the contracts may be completed, but no new test-borings may be commenced except upon application to and order of this court.

Plaintiffs shall file a bond in the amount of $100.00 and for the payment of such costs and damages as may be suffered by any party who is found to have been wrongfully or unlawfully restrained.

A copy of this order shall be served forthwith upon the defendants.

This Decision and Order shall constitute the Court's findings of fact and conclusions of law as authorized by Rule 52 of the Federal Rules of Civil Procedure.

STIPULATION [September 15, 1972]

It is hereby stipulated by and between parties in the above entitled action that:

1. Plaintiffs withdraw any and all claims against Defendants which relate to alleged violations of law which occurred and/or are continuing to occur in the planning and construction of the Halawa Interchange and that portion of the H-3 Project which extends from (but does not include) the Halekou Interchange to the Kaneohe Marine Corps Air Station. Such withdrawal is not to be construed as an admission that any claims previously raised are without merit.

2. Defendants withdraw their motion to dismiss filed on September 8, 1972. Such a withdrawal is not to be construed as an admission that any defenses previously raised are without merit.

3. Defendants specifically acknowledge that Plaintiffs, and [2 ELR 20650] each of them, have standing to maintain their claims and causes of action on the proposed segments of the H-3 Project which extend from (but do not include) the Halawa Interchange to and including the Halekou Interchange (hereinafter called the "Moanalua-Haiku Segment."

4. With regard to the Halawa Interchange and that section of the H-3 Project extending from (but not including) the Halekou Interchange to the Kaneohe Marine Corps Air Station, Defendants and Plaintiffs shall immediately select a consultant or consultants who will conduct a study as stated herein, of the localized environmental impact which these sections of the H-3 Project will have in their continued construction and final form. The study will undertake to determine any and all other feasible methods as to the prevention and remedying of siltation of waterways and Kaneohe Bay, landscaping improvements (and the possibility of developing noise buffers adjacent to populated areas) provided such preventive or remedial action can be achieved as a reasonable cost, relative to the benefits obtained. Said consultant or consultants shall be acceptable to all parties. In the event of disagreement, the matter of selection shall be submitted to the Court. It is the intention of the parties that the study shall not in any way substantially impede the progress of these projects.

5. It is recognized that this is the first study of this nature undertaken of these particular projects; however, it is agreed that said study shall be completed in a reasonable time, and within four months.

6. Following the completion of the study, it shall be submitted to the State Department of Transportation and to Plaintiffs. The State Department of Transportation shall disapprove or approve and implement the recommendations and make and implement any and all independent recommendations it deems proper.

7. Plaintiffs reserve the right, and Defendants agree, to request the Court to review the reasonableness of the recommendations of the consultant or consultants and the subsequent actions of the State Department of Transportation with regard to those recommendations.

8. It is agreed that Defendants shall not permit construction, further acquisition of right of way, or further letting of contracts on the Moanalua-Haiku Segment until the adequacy of the Final Environmental Impact Statement is determined by this Court.

9. It is agreed that Plaintiffs reserve their remaining claims and the right to litigate the same if and when the Environmental Impact Statement on the Moanalua-Haiku Segment is approved by Defendant Volpe. At that time Plaintiffs will also litigate the adequacy of Impact Statement itself.

10. It is further agreed that if and when Defendant Volpe approves, pursuant to 49 U.S.C. § 1653 (f), the Halekou Interchange, Plaintiffs will litigate all claims raised which relate to that approval.

ORDER SUSPENDING INJUNCTION [October 24, 1972]

It appearing to theCourt that Defendant FUJIO MATSUDA may be subjected to irreparable injury and a multiplicity of suits if said injunction should be enforced pending said appeal,

IT IS ORDERED that said injunction be and is hereby suspended until such time that an Order for a stay pursuant to a motion for stay pending appeal is granted or denied by the Court of Appeals for the Ninth Circuit or by a judge thereof; provided that the motion for stay pending appeal is filed within thirty days from the date of this Order.

1. The parties have stipulated that steps will be taken, including consultations with experts, to reduce the deleterious impact of this further construction on the environment, especially in relation to runoff of soil, sightliness, and noise.

2. As of July 20, 1972, federal and state agencies have expended $1,764,000 on contracts nos. 788, 856, 835, 1462 and 1831; the unexpended balance on these five contracts is approximately $2,837,646.

3. Defendants contend that this court should consider the economic impact of a delay. A substantial increase in the costs of the design work would allegedly result from a delay. This is not at all obvious, for the contracts all contain the following clause:

Article III, Section 3.11

"The State reserves the right at any time and for any reason to suspend for a reasonable period or completely terminate the contract upon written notice to the consultant."

Without speculating as to the application of this clause, it is at least a subject that is arguable. Even if the state must pay more for the service under the contracts, then that is simply a result of the failure to comply with NEPA in the first place.