Grazing Fields Farm v. Goldschmidt

No. 79-1786-MA (D. Mass. January 18, 1980)

The court dismisses an action to enjoin construction of a highway through a wildlife sanctuary pending preparation of a supplemental environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). Following state law, the state prepared an addendum discussing plaintiffs' proposed alternate alignment for the highway, but the alternative was not discussed in the EIS itself. Defendants contended that the entire administrative record, including the EIS, contained an adequate discussion of the alternatives to support the highway route as finally determined. The court agrees that public hearings and detailed studies show that defendants undertook a careful and exhaustive study of the alternate alignment. In the court's view, while the EIS must be prepared in sufficient detail to ensure full disclosure and show that the agency acted in good faith, it need not contain the text of all referenced studies of alternatives. The court concludes that the EIS, taken with the full administrative record, complies with the statutory requirements and supports the agency's decision as to placement of the highway. Thus, defendants' motion for summary judgment is granted.

Counsel for Plaintiffs
Gregor I. McGregor
27 School St., Suite 603, Boston MA 02108
(617) 227-7289

Counsel for Defendants
William A. Brown, Special Ass't Attorney General
10 Post Office Sq., Suite 511, Boston MA 02108
(617) 482-1001

[10 ELR 20293]

Mazzone, J.:

Judgment

In accordance with the Court's memorandum and order dated January 18, 1980 granting the state and federal defendants' motions for summary judgment, it is hereby ORDERED

Judgment for the state and federal defendants.

[10 ELR 20294]

Plaintiffs complaints are dismissed.

Memorandum and Order

The plaintiffs bring this action seeking declaratory and injunctive relief under the National Environmental Policy Act (NEPA) and other federal statutes and executive orders. The purpose of the action is to protect Grazing Fields Farm (Farm), a block of land of about 900 acres in the Town of Bourne which contains a wildlife sanctuary, a large working farm, and other natural features. The Farm is used for recreational purposes and also serves as an educational center for school children, research students, and nature organizations. The defendants are the various state and federal agencies charged with the design and construction of a segment of highway known as Route 25.

For background purposes the Massachusetts Department of Public Works (DPW) began to study the traffic problems of the Town of Bourne and surrounding areas in 1956. They were seeking to alleviate the traffic congestion within the towns of Bourne and Wareham and to provide for improved access to Cape Cod over the Bourne Bridge. After study, the DPW eventually decided to locate a segment of Route 25 in the area of the Farm. The plaintiffs, and other interested groups, objected to the proposed alignment of Route 25 and have urged the DPW to accept an alternate route further to the east. Their concerns were contained in a brochure referred to as the Laird Report. That report was received by the DPW on September 26, 1977, after the comment period for the draft environmental impact statement (EIS) had ended. The final EIS adopted the DPW location and was approved on February 2, 1978, despite the objections of the plaintiffs as expressed in the Laird Report.

Those objections, however, caused the state Executive Office of Environmental Affairs to require the DPW to publish an Addendum to the Environmental Impact Report.The Addendum was prepared under state law and specifically discussed the Laird Report and the route favored by the plaintiffs. That Addendum was published in August 1978. There was no specific federal response to the Laird Report and no supplemental EIS was prepared.

Citing the failure of the various defendants to prepare a supplemental EIS which would contain a discussion of the alternatives, the plaintiffs brought this action. The relief sought appears to be relatively modest. The plaintiffs do not seek to bar the highway or postpone it indefinitely but only to delay its construction until a proper EIS is submitted, in the hopes that such a proper EIS would result in the preservation of the Farm.

The matter came on for hearing on the plaintiffs' motion for preliminary injunction. The defendants opposed the motion for a preliminary injunction and filed a motion for summary judgment. At the hearing, the plaintiffs also filed a motion for summary judgment, asserting that certain admissions made by the defendants removed any existing factual issues and that the posture of the case now dictated a judgment in their favor as a matter of law. The cross motions for summary judgment were argued. The complete administrative record was filed.¹ Silva v. Lynn, 482 F.2d 1282, 1283 [3 ELR 20698] (1st Cir. 1973).

The plaintiffs contend that the environmental impact studies are not complete because of the failure of the defendants to consider those matters discussed in the Addendum. They say the alternative favored by the plaintiffs is feasible and a discussion of this alternative in the EIS is required by the Act. 42 U.S.C. § 4332(2)(C)(iii). The failure to discuss the alternative alignment in the EIS itself renders the EIS fatally defective as a matter of law. The defendants argue, on the other hand, that the entire administrative record, including the EIS, contains a complete discussion of the alternatives, and, further, that a full and fair review of that record will support the decision of the defendants to go forward with the proposed segment of the highway.

At the outset, we deal with the procedural question of what should comprise the record in this case and what should be our role in review. The plaintiffs appear to submit their case on too narrow a basis. By insisting that the EIS itself contain a detailed statement of the alternatives, they would seem to preclude our review of the entire administrative record. We do not accept that prohibition, although we do recognize that the EIS must contain sufficient discussion to allow proper evaluation. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 [7 ELR 20637] (2nd Cir. 1977). The EIS is a consolidation of ecological information gathered by diverse sources ranging from federal and state agencies to private individuals, and compiled after coordination, consultation, and review. Sierra Club v. Morton, 431 F. Supp. 11, 23 (S.D. Tex. 1975). Life of the Land v. Brinegar, 485 F.2d 460 [3 ELR 20811] (9th Cir. 1973). It would be impractical, if not impossible, to require the text of all references to be included in the EIS.² What is required is sufficient detail to ensure that the agency has acted in good faith, made a full disclosure, and insured the integrity of the process. Comm. of Mass. v. Cecil D. Andrus, et al., 594 F.2d 872, 883 [9 ELR 20162] (1st Cir. 1979).

The question here is whether the decision to proceed with the construction of the selected alignment is supported by an adequate environmental impact statement and the administrative record. Stated differently, the question is whether the environmental impact statement and other documents associated with the decision to go forward with the selected alignment are deficient. Comm. of Mass. v. Cecil D. Andrus, et al., supra, at 884.

Once the complete record is before the Court, judicial inquiries are limited to whether the agency's findings and conclusion in the EIS are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and whether the agency followed the procedures required by law. Silva v. Lynn, supra, at 1283. Once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences; it cannot "interject itself within the area of the discretion of the executive as to the choice of the action to be taken," Strycker's Bay Neighborhood Council, Inc. v. Karlen, No. 79-168 [10 ELR 20079] (U.S. January 7, 1980) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976)). With our role defined, we turn to the substance of the case as reflected in the record.

The need for a highway to relieve traffic congestion in the business districts of the Buzzards Bay area and to permit through traffic to Cape Cod over the Bourne Bridge became pressing in the late 1950s. Traffic increased greatly during the summer months as tourists came into the area. Beginning in 1957, state agencies were considering a highway which would bypass the area. On May 17, 1957, the DPW responded to a letter from Mrs. Hope Ingersoll. The Ingersoll family has owned the Farm since the turn of the century. That letter acknowledged that different routes were being studied that would have a potential effect on her property. There began from that point a stream of communications between members of the Ingersoll family and the various state and federal agencies connected with this project which has continued up to the present day. Mrs. Ingersoll was advised then, and later in 1958, that before any definite locations were determined public meetings would be held and citizens given an opportunity to comment. She was advised by the DPW to attend the public meetings and publicly state her position.

The record reflects that Mrs. Ingersoll and other concerned parties contacted the commissioners of the DPW and various elected and appointed state and federal officials with regard to the highway location. Responses from these officials consistently acknowledged Mrs. Ingersoll's concerns and indicated that they would be considered in the location of the highway. The first public hearing was held on December 19, 1963. Thereafter, correspondence and communication regarding this project was exchanged by the parties. Throughout this period, she was represented by counsel actively involved in these exchanges.

On July 25, 1968, Charles E. Maguire, Inc. (CEM), was invited to submit a bid to perform the engineering services in connection [10 ELR 20295] with the project. CEM is a well known architectural and engineering services consultant. They were employed to work on this project and have been so employed to the present time. They conducted numerous tests and analyses which dealt with the noise, air, and water pollution problems associated with the project. They concluded studies of highway design as it affected motor vehicle cost and safety. All of that underlying data and the test results, as well as the conclusions based on that data are contained in the record.

On February 26, 1968, another public hearing was held on the relocation of the highway. A number of routes had been considered. The three most direct routes, called the western, central, and eastern alternates, were initially considered and rejected. All three alternates infringed on the Farm to some extent. Although they were the most direct routes, they were rejected because of the disruption to the existing business and residential districts. The western and central alternates encountered stiff opposition and were almost immediately eliminated. The eastern alternate was preferred, but it was moved further to the north and further to the east to avoid a cranberry bog and a residential development. At the public hearing, Philip Cronon, attorney for Mrs. Ingersoll, stated her preference for the eastern alternate but expressed a desire that it be moved even further to the east where, although it would still be on Farm property, it would have a lesser impact upon the operation of the Farm.

Following the 1968 public hearing, further study was undertaken as inspired by the comments of federal, state, regional and local agencies as well as elected officials. Military officers were consulted because of the impact upon the nearby Air Force base. Special interest groups concerned with the preservation of wildlife and historic sites were also consulted. Throughout this period of time, the alternative to the recommended alignment came to be known as the "Ingersoll alignment." It moved the eastern alternate as modified further to the east and resulted in an extra one-half mile segment of highway. Additional studies were conducted by CEM. On December 5, 1974 a design public hearing was held and further comment invited. On October 2, 1975, a meeting was held with Mrs. Ingersoll's son, Tudor Ingersoll, a principal in an architectural and planning firm. At that meeting, Tudor Ingersoll expressed dissatisfaction with the recommended alignment and favored the alternate Ingersoll alignment. On October 16, 1975 Tudor Ingersoll repeated the concerns of his mother and himself concerning the recommended aligbment in a letter to the DPW. On October 31, 1975, CEM was instructed by the DPW to investigate fully the likelihood of the Ingersoll route.

There followed a complete analysis of the Ingersoll alignment by CEM. The alignment was discussed, analyzed, considered, and finally rejected by both state and federal officials.That decision was supported by the engineering studies done by CEM involving considerations of noise, air and water pollution, and traffic control. Not only did the Ingersoll alignment involve an additional $1,270,000.00 in construction costs alone, but the design was inferior because of the curvature of the highway and the effect that the aligbment would have on proposed well fields through which it would pass.

Consideration of the Ingersoll alignment did not stop at this time. As late as February 1976, CEM was involved in the Ingersoll/Well Field Realignment Feasibility Studies. In 1977, CEM had drafted the "Ingersoll Alignment 1977 Design Worksheet." Further studies were done by CEM and continue to the present time concerning the effect the Ingersoll alignment would have on the accident rate, the gasoline consumption, and travel time. In every respect the Ingersoll alignment proved to be less practical.

In summary, then, the record shows a careful, complete, and exhaustive study of the Ingersoll alignment. The plaintiffs had almost twenty years of contact with the project, had ample opportunity to comment and, indeed, were partially responsible for the selection of the eastern alternate that was ultimately recommended.

The final EIS that was submitted on February 2, 1978 and which is the subject of the plaintiffs' attack clearly does not deal expansively with the alternatives. We have already noted that it would be impractical to require the texts of all references to be included in the text of the EIS. See Life of the Land v. Brinegar, supra. But it is equally clear that the EIS provides ample notice of the alternatives and specifically deals with the subject in Appendix J, page 396, wherein the following notation is contained in response to the comment of Philip Cronin, representing Hope G. Ingersoll:

Federal and State officials reviewed an alternative alignment to proposed Route 25/28 with representatives of the Buzzards Bay water District and Hope G. Ingersoll on March 31, 1976. This alternative was proposed because of its lesser impact to Grazing Fields Farm. However, due to its impact on nearby well fields, existing power lines, and extra takings required for right-of-way, State and Federal officials rejected this alignment. By emphasizing the importance of the consensus expressed by the public at the last hearing in 1974, State and Federal officials made clear their position to follow through with the alignment shown in the Draft Environmental Impact Statement.

Further comments in that same Appendix reflect the consideration given to the Ingersoll alignment. Indeed, an entire section of the EIS, Appendix L, is "Grazing Fields Farm" prepared by Tudor G. Ingersoll.

Under these circumstances the plaintiffs' contentions are not supported by the record. The EIS, taken with the administrative record, serves all of the purposes set forth in Silva v. Lynn, supra. The Addendum deals even more specifically with the Ingersoll alignment. The question is not where this Court would have built the road had the responsibility been entrusted to it. The question is whether the responsible agencies had a reasonable basis for putting the highway where they did. As we review the EIS and the record, we find there is a comprehensive and detailed discussion of the environmental effects of this project. We cannot say that there are any unexplained inconsistencies, or that the conclusions in the EIS are not supported by data in the record, or that there is any absence of data. We cannot say that the agencies ignored information or glossed over stubborn problems or failed to discuss or consider opposing opinion or interests. There was no improper methodology employed in the assembling of this information. Feasible alternatives were not ignored, but, rather, were considered, studied, analyzed, and either adopted or rejected on the merits.

Finally, this is essentially a private dispute. The plaintiffs are not supported by any of the regional or municipal agencies directly concerned with theconstruction of the highway. This Court is not unimpressed by the importance of the plaintiffs' interests and is mindful that the public has an obvious interest in the preservation of property such as the Farm, but this project should not be delayed any longer. To require a supplemental EIS be generated by this case and on the record would be a needless and meaningless gesture and would simply delay the project. No other interested group seeks review nor will a supplemental EIS inspire any searching, meaningful comment from any potential party. The plaintiffs' concerns have been addressed. The plaintiffs have had notice and have had an ample opportunity over the past twenty years to present their points of view. They have had the benefit of competent counsel and expert technical assistance. In short, nothing would be accomplished by the remand of this matter for further dissection and analysis. Because we cannot say that the Secretary has acted in a manner that is arbitrary, capricious, or contrary to law, and because we cannot say that the Secretary has not followed the procedural requirements of the Act, the defendants are entitled to summary judgment.

In accordance with the above, the state and federal defendants' motions for summary judgment are allowed and the plaintiffs' complaints are hereby dismissed.

SO ORDERED.

1. Plaintiffs had filed earlier an additional motion that the trial on the merits be advanced and consolidated with the hearing on the preliminary injunction pursuant to FED. R. CIV. P. 65(a)(2). This would have involved additional evidence which the plaintiffs were prepared to produce in the persons of various experts. However, in filing the motion for summary judgment, the need for such testimony was obviated since the parties now agreed that there are no genuine issues of material fact and the case could be decided as a matter of law.

2. A sorting and compilation of only the pertinent parts of the record in this case required almost two full days work by counsel for both sides.