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Ross v. Federal Highway Admin.

ELR Citation: 29 ELR 20342
Nos. 97-3240, -3278, 162 F.3d 1046/47 ERC 1658/(10th Cir., 11/17/1998)

The court affirms a district court decision enjoining further construction on a Kansas highway project until the Federal Highway Administration (FHwA) completes a National Environmental Policy Act (NEPA) supplemental environmental impact statement (SEIS) for a segment of the project. The court first holds that the highway project is a major federal action. Congress appropriated approximately $10.4 million for the entire highway. Moreover, Congress' decision to select the highway as a demonstration project shows a high degree of federal involvement in the highway. The court next holds that the federal nature of the highway is so pervasive that the state and county cannot rid the project of federal involvement by withdrawing the segment from federal funding. Furthermore, 23 U.S.C. §145 does not authorize states to circumvent NEPA compliance by persuading the FHwA to withdraw from participation in a project segment. The court also holds that the district court did not impermissibly usurp the FHwA's discretion by ordering the FHwA to complete the SEIS process. The injunction merely remedies the FHwA's improper discontinuance of the SEIS process and its withdrawal as lead agency from the project.

Counsel for Plaintiffs
Bruce M. Plenk
Law Offices of Bruce M. Plenk
431 Missouri St., Lawrence KS 66044
(785) 232-8070

Counsel for Defendants
Tamara Rountree
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000