Bucklein v. Volpe

No. C-70 700 RFP (N.D. Cal. October 29, 1970)

Taxpayer's class action under the National Environmental Policy Act (NEPA) to enjoin the Secretary of Transportation from committing emergency relief funds for road repair under 23 U.S.C. § 125 dismissed by court, because the complaint did not state a valid claim for relief. NEPA held to be a declaration of national policy only, not creating judicially enforceable rights and duties.

Counsel for Frank Bucklein:
Johnston, Rankin & Faitz
219 Walnut Avenue
Santa Cruz, California
(408) 426-8700

Counsel for John A. Volpe and the United States of America:
James L. Browning
United States Attorney
Sacramento, California 95813
(916) 449-2331

[1 ELR 20043]

Peckham, J.

This action by a county taxpayer, styled a class action, seeks declaratory and injunctive relief against federal, state and county officials. The gist of the complaint is that these defendants have violated their respective federal statutory duties with regard to the application for and disbursement of federal emergency relief funds for road repair. The purported non-compliance of the local officials is alleged to rise to the level of a procedural due process infirmity. For the reasons to be given below, the complaint must be dismissed for failure to state a cause of action as to any of these defendants. The respective alleged bases for a cause of action will be discussed seriatim.

I. 23 U.S.C. section 125:

(a) An emergency fund is authorized for expenditure by the Secretary, subject to the provisions of this section and section 120, for the repair or reconstruction of highways, roads, and trails which he shall find have suffered serious damage as the result of (1) natural disaster over a wide area, such as by floods, hurricanes, tidal waves, earthquakes, severe storms, or landslides or (2) catastrophic failures from any cause, in any part of the United States.

Subsection (b) . . . no funds shall be so expended unless the Secretary has received an application therefor from the State highway department, and unless an emergency has been declared by the Governor of the State and concurred in by the Secretary.

Regarding application for the funds, the complaint charges that the disaster here in question may in fact have been from man-made causes and thus not have been a "natural disaster". This, however, overlooks the fact that application can properly be made on the basis of a "catastrophic failure" regardless of the cause. The county and state officials thus complied with § 125.¹ Additionally, there is not the slightest showing on the [1 ELR 20044] face of the complaint, other than the barest of conclusory allegations, that the Secretary of Transportation acted outside of the authorization of the section.

II. 23 U.S.C. section 128:

(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing, of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.

Plaintiff alleges that the requisite hearing has not been held, in violation of the statute and procedural due process.

As an initial matter, there is serious doubt as to the applicability of this section in the present case. The State highway department requested, from the Department of Transportation, emergency funds under section 125, which does not require a public hearing. The funds were appropriated on this basis. (Uncontradicted affidavit of Richard Gee, civil engineer in the State highway department in charge of administering federal aid projects in the relevant county, p.3). Thus, both the State and federal agencies assumed that the project in this case — the relocation of 2.3 miles of the damaged road so as to remove it from the slide area — feel within the ambit of section 125, and that recourse to section 128 and the hearing it requires was unnecessary. The correctness of this assumption would hinge on whether the relocation of a damaged road would come within the language of section 125 — the "repair or reconstruction" of damaged roads.

The Court, however, need not decide this question since it is of the view that even if section 128 applies here, the hearing requirement was in fact satisfied. The County Board of Supervisors held a series of public hearings at which all concerned persons were given ample opportunity to be heard on the economic, social, and environmental impact of the proposed relocation. (See, e.g., transcript of Public Hearing of March 3, 1970, at 11, 17, 20, 25, 29, 38-42.) Indeed, the great bulk of the latter hearing consisted of questions and addresses from the audience. Plaintiff argues that section 128 requires the State highway department itself to conduct the hearings. This Court does not, however, share in this restrictive reading of the statute. The purposes of the section are fully served where, as here, a full hearing is held by a responsible public body acting as agent for, and therefore accountable to, the State highway department. In fact, in this situation, the County Board of Supervisors was in the position to conduct the most meaningful hearing since it was the body most intimately involved with the relocation project. Moreover, the State highway department received copies of the transcripts of the public hearings for its own independent evaluation.In these circumstances, the mandate of section 128 is satisfied.

There is thus no basis on which to conclude that section 128, if applicable, may have been violated. The complaint therefore fails to state a cause of action in this regard.

III. 42 U.S.C. section 4321 et seq.: This is the National Environmental Policy Act of 1969, in which Congress declared the national policy regarding our environment and established the Council on Environmental Quality. Plaintiff alleges that when the county Board certified that the road relocation would be environmentally sound, the Board (and presumably the Secretary of Transportation) abused its discretion and violated the above Act. From the discussion under section 128, it is clear, however, that the Board acted well within its discretion in concluding as it did, since there had been ample consideration of environmental factors. Persuasive data was adduced on both sides. [Moreover, it is highly doubtful that the Environmental Policy Act can serve as the basis for a cause of action. Aside from establishing the Council, the Act is simply a declaration of congressional policy; as such, it would seem not to create any rights or impose any duties of which a court can take cognizance. There is only the general command to federal officials to use all practicable means to enhance the environment. 42 U.S.C., section 4331. It is unlikely that such a generality could serve or was intended to serve as a source of court-enforcible duties.]

Since this Court finds no violation of any of the relevant statutes, plaintiff's claims regarding a denial of due process are without substance.

Given this disposition of the matter, the Court need not consider the troublesome question of plaintiff's standing to adjudicate these claims.

Accordingly, the complaint is hereby ordered dismissed for failure to state a claim upon which relief can be granted. F.R.C.P. Rule 12(b)(6).

1. Since the complaint makes no allegation regarding the requirement of a declaration of an emergency by the Governor, the Court must assume compliance in that regard.