Jump to Navigation
Jump to Content

Ward v. Ackroyd

Citation: 2 ELR 20405
No. Nos. 71-930, -1118, 344 F. Supp. 1202/4 ERC 1209/(D. Md., 06/08/1972)

Plaintiffs Sierra Club and other organizations alleged, and offered proof, that their local chapters and individual members have enjoyed the park area of the proposed highway and would be individually injured by construction of the route there, suffering, for example, the destruction of spectacular views. The court finds that the plaintiffs' allegations "minimally" meet the test for standing established in Sierra Club v. Morton, 2 ELR 20192 (U.S. 1972). Laches does not bar plaintiffs' claim for an injunction pending compliance by the state with the hearing provisions of the Federal-Aid Highway Act. The court is bound by the decision in Arlington Coalition v. Volpe, 2 ELR 20162 (4th Cir. 1972), which was a much stronger factual basis for the defense of laches and which refused to allow the defense because ecology preservation has been given a "public interest status by the Congress." In refusing the defense of sovereign immunity, the court draws a distinction between suits for damages, where one seeks an affirmative judgment against the state, and suits for injunctive relief, where one seeks to restrain the state from doing a particular act. In the latter case the defense of immunity is waived more readily when the issue is compliance with federal statutes setting the conditions on the availability of federal aid for which the state has applied. By seeking aid, the state agrees to be bound by the terms of the federal statutes governing that aid. The situation is analogous to pendant jurisdiction, which a federal court exercises over state activities in order to protect remedies available against federal parties. A 1962 public hearing which did not present for comment the ultimately selected location of a proposed highway does not satisfy the requirements of 23 U.S.C. § 128 and Policy and Procedure Memorandum (PPM) 20-8 as they existed at that time. The present versions of § 128 and PPM 20-8, which are more strict, are applicable to the new hearing. Furthermore, even if the prior hearing had complied with the law then in effect, a new hearing would still be necessary because the National Environmental Policy Act requires that "to the fullest extent possible . . . public laws . . . shall be interpreted and administered in accordance with the policies of the Act." The court follows the decision in Arlington Coalition, supra, which granted an injunction pending compliance with the present version of § 128 and PPM 20-8, even though the prior hearings fully complied with the law as it then existed. Because "the cost of altering or abandoning the proposed location would not certainly outweigh whatever benefits might be derived therefrom," an injunction is issued.

Counsel for Plaintiffs
Henry L. Conway, Jr.
95 Aquahart Road
Glen Burnie, Md. 21061

George A. Nilson
Joseph H. H. Kaplan
25 Charles Street
Baltimore, Md. 21201

James W. Moorman
Sierra Club Legal Defense Fund
311 California Street
San Francisco, Cal. 94104

John E. Bryson
Natural Resources Defense Council
1600 Twentieth Street, N.W.
Washington, D.C. 20009

Counsel for Defendants
George Beall U.S. Attorney
Jean G. Rogers
Jeffrey S. White Ass't. U.S. Attorneys
Federal Building
Baltimore, Md. 21201

Irwin L. Schroeder
Department of Justice
Washington, D.C.

Francis J. Locke Regional Counsel
Baltimore, Md. 21201