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Citizens Civic Ass'n v. Coleman

Citation: 6 ELR 20668
No. No. 75-C-354, 417 F. Supp. 975/9 ERC 1622/(N.D. Wis., 08/06/1976)

The court dismisses for lack of subject matter jurisdiction a suit seeking injunctive and declaratory relief against a highway bridge construction project for failure to comply with the requirements of NEPA. Plaintiffs contend that the project became a "major federal action" for the purposes of NEPA when federal location approval was granted, even though no application for federal highway-aid funding has yet been filed. The court notes that defendants' interpretation, that the highway laws and NEPA do not apply until federal officials have approved an application by a state for federal funds, would clearly subvert the purposes of these laws. Relying on Scottsdale Mall v. Indiana, No. 74-688-C (S.D. Ind. Apr. 2, 1976), the court concludes that where the state observes the preliminary requirements for later approval of federal funding for a highway construction project, the plaintiff in a suit based on federal statutes and regulations dealing with environmental considerations and seeking injunctive relief prior to the commencement of construction or early in the course of construction must show an "extermely strong probability" that the state will apply for federal funds and that the application will be approved. If such a showing cannot be made, plaintiff must seek whatever remedy is available in the state courts on the basis of state law. In this case, no federal aid has been sought, the state has already incurred substantial costs for the project (for which retroactive federal funding is not available), and the state has the financial capacity to finance the bridge project completely on its own. On the basis of these findings, the court concludes that plaintiffs have failed to prove that the project is, or will become, federal action or a federal-aid highway. The court notes that even it if had subject matter jurisdiction, it would rule that defendants have complied with NEPA and the other applicable federal statutes and regulations.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1075).

Counsel for Plaintiffs
Allan R. Koritzinsky
Rikkers, Koritzinsky & Rikkers
2041 Atwood Ave.
Madison WS 53704
(608) 249-7361

Counsel for Defendants
David C. Mebane, U.S. Attorney
Stephen L. Morgan, Asst. U.S. Attorney
P.O. Box 112
Madison WS 53701
(608) 252-5158

Nicholas Nadzo
Department of Justice
Washington DC 20530
(202) 739-3797

Bronson C. LaFollette, Attorney General
Charles A. Bleck, Asst. Attorney General
Department of Justice
114 East State Capitol
Madison WS 53702
(608) 266-1221

Doyle, J.