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Daly v. Volpe

ELR Citation: 2 ELR 20443
Nos. No. 9490, 350 F. Supp. 252/4 ERC 1481/(W.D. Wash., 03/31/1972) EIS required

A decision to change the location of I-90 in the vicinity of North Bend, Washington, had a rational basis and was not arbitrary and capricious. The provisions of 23 U.S.C. §138 on preservation of parklands do not apply to a privately-owned waterfowl refuge. Plaintiff property owners prevail on their NEPA claims, since federal courts have jurisdiction over officials of states that receive federal grants-in-aid if federal environmental protection statutes are violated. NEPA requires strict, not substantial, compliance and justifies a delay in construction. An "environmental report" that fails to ask and answer all of the pertinent questions is not acceptable under NEPA, nor is a draft environmental impact statement that is conclusory rather than analytical and fails to discuss effects of the chosen corridor on the area it traverses. An impact statement is unsatisfactory if it fails to list economically measurable costs of construction and the nature of resources lost which cannot be quantified. Perfunctory review of statements by the FHwA does not constitute the deliberation contemplated in the Act. Statements prepared after location selection do not meet the intent of Congress to provide decisionmakers with sufficient information to make an environmentally sound decision. Ordered, that a new draft statement be prepared and that a new location hearing be held. For an earlier opinion denying a motion for preliminary injunction, see 1 ELR 20242.)

Counsel for Plaintiffs
Irving M. Clark, Jr.
J. Richard Aramburu
209 College Club Building
Seattle, WA 98104

Counsel for Federal Defendants
Albert E. Stephan
Assistant U.S. Attorney
United States Courthouse
Seattle, WA 98104

Counsel for State Defendants
Thomas R. Garlington
Assistant Attorney General
Department of Highways
Fifth Floor, Highways-Licenses Building
Olympia, WA 98504