Northeast Area Welfare Rights Organization v. Volpe

Civ. No. 3437 (E.D. Wash. December 3, 1970)

Plaintiffs' request denied for a preliminary injunction against further implementation of the planned North/South Freeway connector in Spokane, because (1) federal causes alleged under (a) Highway Act provisions governing the relocation of persons displaced by freeways, (b) the National Environmental Policy Act, and (c) Highway Act provisions governing citizen participation in the planning of federal aid highway projects are not yet applicable, since the project is now proceeding with state funds only, no final federal approval has been sought and no immediate plan exists to seek federal financing; and (2) citizen's groups will apparently be allowed to participate as equals in public corridor hearings.

Counsel for Plaintiffs:
Douglas Lambarth
Spokane County Legal Services
West 318 Sprague Avenue
Spokane, Washington 99204
(509) RI7-4118

Michael Fox
Seattle Legal Service Center
104 1/2 Cherry Street
Seattle, Washington 98104
(206) MA2-8125

Counsel for Plaintiff Citizens Against Residential Freeways:
Gordon Borey
1002 Paulsen Building
Spokane, Washington 99201
(509) RI7-4156

Counsel for Defendants:
Edward Reis
Chief Counsel's Office
Federal Highway Administration
Washington, D.C.
(202) 426-0791

[1 ELR 20187]

MEMO DECISION AND ORDER

Powell, J.

This controversy involves the proposed construction of a North/South Urban Freeway in the City of Spokane which would connect Interstate 90 with U.S. 395, the Deer Park highway. Plaintiffs reside in the "corridor" areas through one of which the proposed Freeway would be built, and two unincorporated associations whose members oppose further development of this Freeway. Defendants are all public officials of the United States, the State of Washington, or the City of Spokane, who are alleged to be directly involved in the planning and development of this Freeway project.

By their Motion, plaintiffs seek to enjoin these defendants from taking any further action to advance the development of this Freeway pending the outcome of this action. Specifically the plaintiffs seek to enjoin the state and municipal defendants from conducting a "corridor hearing" which is scheduled for December 7, 1970. In addition, plaintiffs seek to enjoin the federal defendants from approving or financing any portion of the proposed North/South Urban Freeway until statutory and regulatory requirements have been set.

Plaintiffs base their Motion upon four contentions: first, that the state defendants have not complied with the provisions of 23 U.S.C. §§ 502, 503, and the regulations with regard to the relocation of persons displaced by this Freeway project; second, that the proposed Freeway project is being developed in violation of the National Environmental Policy Act, 42 U.S.C.A. § 4321; third, that the state and municipal defendants have not complied with the provisions of 23 U.S.C. § 134 with regard to citizen participation in the planning of the Federal-Aid Highway Project; fourth, and finally, that the state and municipal defendants are acting in violation of the law by delegating authority and responsibility to a non-public unincorporated association to direct and conduct the corridor hearing set for December 7, 1970.

Plaintiffs' first three contentions are based upon the assumption that this proposed Freeway Project is a Federal-Aid Highway Project and that therefore the conduct of the defendants is to be measured by the standards required by federal law, Title 23, Secs. 101 et seq., for participation in the Federal Aid Highway program. However, from the affidavits submitted by the state and municipal defendants it is clear that at this time the Spokane North/South Urban Freeway Project is proceeding with state funds only; that no final approval has been sought from the Department of Transportation for this project and that there is no immediate plan to seek federal financial participation in this project. The only evidence of any federal participation at this time is the fact that the Federal Government has financed the Spokane Metropolitan Area Transportation Study pursuant to 23 U.S.C. § 134. The first three contentions of the plaintiffs are premature. While they might form a valid basis for an injunction at some future time (See Western Addition Community Organization v. Weaver, 294 F. Supp. 433 (N.D Cal. 1968)) they do not now raise justiciable issues that justify injunction.

Plaintiffs' final contention concerns the extent to which the Association for a Better Community will participate in the "corridor hearing." The affidavit of the public official responsible for conducting this "corridor hearing" shows that the Association for a Better Community will be allowed to participate only to an equal extent that any civic group may participate in this type of hearing. Citizen participation in the planning process permits both those in favor of this project and those opposed to it the opportunity to present their views. The "corridor Hearing" is the proper time and place for such citizen participation.

A preliminary injunction is an extraordinary remedy which should be granted only under circumstances where it is clearly warranted. The plaintiffs have not made a showing sufficient to justify the issuance of a preliminary injunction.

Plaintiffs' motion for preliminary injunctions is denied.