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Coalition for Canyon Preservation v. Bowers

ELR Citation: 11 ELR 20053
Nos. No. 79-4843, 632 F.2d 774/15 ERC 1072/(9th Cir., 10/09/1980) Rev'd

Reversing the district court, 11 ELR 20051, the Ninth Circuit Court of Appeals rules that the environmental impact statement (EIS) for construction of a 10.8-mile, four-lane highway leading into Glacier National Park violates the National Environmental Policy Act (NEPA). The suit is not barred by laches because the 10-year period between the initial proposal in 1969 and the filing of the suit in 1979 is not fairly characterized as delay attributable to appelants. The process of approving the highway was a lengthy one culminating shortly before initiation of this action. Furthermore, the $1 million expended on the project to date is insufficient to warrant a finding of prejudice to appellees. Some degree of delay and added expense is inherent in NEPA. Turning to appellant's substantive claim, the court rules that appellee's EIS inadequately discussed the primary impacts of the proposed four-lane highway segment with respect to air, noise, and water pollution and safety hazards created by the project, as well as secondary impacts such as growth, land use development, and social and economic activities. Moreover, appellees' failure to consider an improved and widened two-lane road as an alternative to the four-lane proposal further renders the EIS deficient. Additionally, the failure to examine the two-lane road alternative violates §15(a) of the Federal-Aid Highway Act of 1968, and §4(f) of the Department of Transportation Act of 1966, since the proposed route requires taking of parkland. The court also rules that since the Montana Environmental Policy Act (MEPA) mirrors NEPA and the Montana Supreme Court has held that federal case law applies in interpreting MEPA, the EIS violates MEPA for failure to discuss impacts and alternatives in detail. Lastly, the court rules that failure to conduct a public hearing on the impacts of the project violates both NEPA and the Federal-Aid Highway Act.

Counsel for Appellant
Steven J. Perlmutter
1021 Fifth Ave., Helena MT 59601
(406) 449-2630

Counsel for Appellees
Allen McKenzie, Ass't U.S. Attorney
173 Federal Bldg., Butte MT 59701
(406) 723-6561

James R. Beck
Department of Highways
2701 Prospect Ave., Helena MT 59601
(406) 449-2584

Janice Siegel; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4076

Before KENNEDY, SKOPIL, and ALARCON, Circuit Judges.