Naito v. Tri-County Metropolitan Transit District of Oregon

No. 79-335 (D. Or. July 9, 1980)

In a suit challenging the placement of advertising on the exterior of buses owned and operated by a metropolitan transit company, the court approves the recommendation of a magistrate and orders that the case be dismissed. With respect to plaintiffs' claim under the National Environmental Policy Act, the magistrate rules that bus placards have insufficient environmental effects to trigger the Act's environmental impact statement requirement. The plaintiffs' claim under the National Historic Preservation Act is groundless because the activity in question is neither being conducted nor supported by a federal agency. The requirement of the Urban Mass Transportation Act for certification that the environmental effects of federally supported mass transit projects have been considered is inapposite since bus advertising does not constitute an "effect" under that Act. Nor is there any basis for plaintiffs' cause of action under the Intergovernmental Cooperation Act. The case is dismissed for lack of jurisdiction.

Counsel for Plaintiffs
Richard L. Sadler
Keane, Harper, Pearlman & Copeland
3500 First Nat'l Tower, Portland OR 97201
(503) 224-4100

Walter W. McMonies
400 Powers Bldg., 65 SW Yamhill St., Portland OR 97204
(503) 221-1188

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., P.O. Box 71, Portland OR 97207
(503) 221-2101

Leslie M. Roberts, William Dickas
Kell, Alterman & Runstein
13th Fl., Bank of California Tower, 707 SW Washington St., Portland OR 97205
(503) 222-3531

[10 ELR 20753]

Redden, J.:

Order

After review of the record and file in the above entitled matter, the recommendation of the Magistrate issued the 12th day of June 1980, is approved.

IT IS HEREBY ORDERED that defendants' motions to dismiss claims in paragraphs 62-67, 73-86 of the complaint are granted.

IT IS FURTHER ORDERED that defendants' motions for summary judgment as to claims in paragraphs 61, 68, 69, 70, and 71 of complaint are granted. Dated this 9th day of July 1980.

Magistrate's Findings and Recommendation

This is an action for declaratory and injunctive relief under 28 U.S.C. § 1331. Plaintiffs are three individuals and two associations who purport to be adversely affected by a plan to put advertising posters on the exterior of buses belonging to the Tri-County Metropolitan Transportation District ("Tri-Met"). They sue Tri-Met, six members of Tri-Met's Board of Directors, Tri-Met's General Manager, and the federal defendants, Neil Goldschmidt,¹ Secretary of Transportation, the Department of Transportation ("DOT"), Gary D. Gayton,² Acting Urban Mass Transportation Administrator, and the Urban Mass Transportation Administration ("UMTA").

The plaintiffs allege that Tri-Met intends to install advertising signs on the exteriors of all of Tri-Met's 500 standard size buses, which action is alleged to contravene several federal statutes, state statutes, and city ordinances. The federal statutes [10 ELR 20754] allegedly violated are the National Environmental Policy Act of 1970 ("NEPA"), 42 U.S.C. § 4321 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., § 5 of the United Mass Transportation Act ("UMTA"), 49 U.S.C. § 1604, and Title IV of the Intergovernmental Cooperation Act of 1968 ("ICA"), 42 U.S.C. § 4231.

Plaintiffs seek an order permanently enjoining defendants from contracting for or permitting the placement of outdoor advertising on Tri-Met's buses, and for declarations that defendant's actions have contravened federal statutes, state statutes, and local ordinances.

The federal defendants have filed a motion to dismiss, or in the alternative, for summary judgment. The Tri-Met defendants have joined in the federal defendants' motions and have filed a motion for summary judgment as to the pendant state claims.

NEPA Claims

Plaintiffs allege that defendants violated DOT Order 5610.1B, 39 Fed. Reg. 35234, and 42 U.S.C. § 4332(2)(C), by failing to prepare either an environmental impact statement [EIS] or negative declaration covering Tri-Met's decision to place outside advertising on its buses.Section 4332(2)(C) provides that all agencies of the Federal Government shall:

[I]nclude in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Plaintiffs must meet the threshold requirements of alleging facts which would establish a major federal action with significant effect on the environment. City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975). The placement of advertising posters on the exterior of Tri-Met buses is, at best, a "minor" action with "insignificant" effects. The term "major," as applied in determining the necessity for EIS, is a term of reasonable connotation which serves "to differentiate between projects which do not involve sufficiently serious effects to justify the costs of completing an impact statement, and those projects with potential effects which appear to offset the costs in time and resources of preparing a statement." Ridley Township v. Blanchette, 421 F. Supp. 435 [7 ELR 20184] (D. Pa. 1976).Some actions may be so small or so tenuously related to the environment that NEPA is not applicable. Hendrickson v. Wilson, 374 F. Supp. 865 (D.C. Mich. 1973). In the present case there is no long term impact, no permanent commitment of natural resources and no degradation of traditional environmental assets. See Breckinridge v. Rumsfeld, 537 F.2d 864 [6 ELR 20597] (6th Cir. 1976). I find, therefore, that advertising on buses does not fall within the purview of NEPA.

Therefore, defendants' motions to dismiss for failure to state a claim should be granted as to all claims alleged under NEPA, that is, those claims as set forth in paragraphs 62, 64, and 67 of the complaint.

NHPA Claims

Plaintiffs allege that defendants failed to take into account the effect of bus advertising on some seventy downtown structures eligible for inclusion in the National Register, in violation of the National Historic Preservation Act. The Act provides that:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.

16 U.S.C. § 470f. The Advisory Council on Historic Preservation has promulgated regulations setting up procedures for the review of undertakings affecting such properties. 30 C.F.R. § 800 et seq. Plaintiffs have not alleged any specific "adverse effect" that bus advertising would have on any National Register Location. Nor have plaintiffs alleged any facts which would indicate that Tri-Met's bus advertising program constitutes a "federally assisted undertaking." The activity at issue here, bus advertising, is not a federal activity, nor is it to be approved or sanctioned by a federal agency, nor is it supported in whole or in part by federal assistance. Therefore, the defendants were under no duty to follow the procedures set out in the regulations with respect to Tri-Met's decision to have advertising on its buses.

Therefore, defendants' motions to dismiss for failure to state a claim should be granted as to all claims alleged under the National Historic Preservation Act, that is, those claims as set forth in paragraphs 63, 65, and 66 of the complaint.

UMTA Claims

Plaintiffs allege that defendants violated certain provisions of the Urban Mass Transportation Act in regard to Tri-Met's decision to have advertising on its buses. The UMTA provides:

(i) Upon submission for approval of a proposed project under this section, the Governor or the designated recipient of the urbanized area shall certify to the Secretary that he or it has conducted public hearings (or has afforded the opportunity for such hearings) and that these hearings included (or were scheduled to include) consideration of the economic and social effects of such project, its impact on the environment, including requirements under the Clean Air Act, the Federal Water Pollution Control Act, and other applicable Federal environmental statutes, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Such certification shall be accompanied by (1) a report which indicates the consideration given to the economic, social, environmental, and other effects of the proposed project, including, for construction projects, the effects of its location or design, and the consideration given to the various alternatives which were raised during the hearing or which were otherwise considered, (2) upon the Secretary's request, a copy of the transcript of the hearings, and (3) assurances satisfactory to the Secretary that any public mass transportation system receiving financial assistance under such project will not change any fare and will not substantially change any service except (A) after having held public hearings or having afforded an adequate opportunity for such hearings, after adequate public notice, (B) after having given proper consideration to views and comments expressed in such hearings, and (C) after having given consideration to the effect on energy conservation, and the economic, environmental, and social impact of the change in such fare or such service.

49 U.S.C. § 1604(i). Plaintiffs allege that the certification required by this section was deficient.

The statute requires consideration of the "effects" of the "proposed project," which in this case is the grant for operating assistance for fiscal year 1979. The decision of Tri-Met to advertise is not an effect of any UMTA project, since UMTA does not support or otherwise regulate or control bus advertising. The affidavits and exhibits attached to the federal defendants' motions establish that the official policy of the UMTA with respect to advertisements on buses is that it is a matter which is left entirely to local discretion. Section 12(d) of the Act provides that:

None of the provisions of this Act shall be construed to authorize the Secretary to regulate in any manner the mode [10 ELR 20755] of operation of any mass transportation system with respect to which a grant is made. . . .

49 U.S.C. § 1608(d). The Act emphasizes local solutions to problems. Pullman v. Volpe, 337 F. Supp. 432, 439 (E.D. Pa. 1971). The defendants have established that no federal agency has any control over Tri-Met's decision to place advertising on its buses; plaintiffs have not filed anything, other than the bare allegations of the complaint, which would refute defendants' affidavits.

The affidavits show that a properly noticed hearing was held on the project application for operating assistance funds. The certification and accompanying report required by § 1604(i) properly consider the effects of the operating assistance project. Additionally, the decision to have advertising is not "'a substantial change in service" within the meaning of subsection (i)(3) of § 1604.

For these reasons, defendants' motions for summary judgment should be granted as to the claims stated in paragraphs 61, 68 and 69 of the complaint, the alleged violations of the UMTA.

Intergovernmental Cooperation Act Claims

The complaint alleges that Tri-Met and the UMTA violated Title IV of the Intergovernmental Cooperation Act, 42 U.S.C. § 4231, by failing to carry out the coordination and review requirements of those enactments with respect to its decision to institute a bus advertising program. Defendants' affidavits indicate that such review process has taken place. Additionally, the Circular A-95 which implements the ICA applies only to projects for which federal assistance is sought. 41 Fed. Reg. 2052 (January 13, 1976). In this case, Tri-Met has not sought any federal assistance to support its bus advertising program. Therefore, defendants' motions for summary judgment should be granted as to all claims alleged under the ICA, that is, those claims as alleged in paragraphs 70 and 71 of the complaint.

Pendant State Claims

Paragraphs 73-76 allege violations of various State of Oregon statutes relating to Tri-Met's authority to institute such a program. Paragraphs 77-86 allege that Tri-Met's decision conflicts with the provisions of various City of Portland ordinances. There is no independent basis for federal jurisdiction over these claims. Therefore, because I have recommended that all the federal claims be dismissed, these pendent claims must also be dismissed.

The federal defendants' motions to dismiss and for summary judgment should be granted. The motions to dismiss and for summary judgment filed by Tri-Met and its agents should be granted.

1. On August 23, 1979, pursuant to Rule 25(d)(1), Neil Goldschmidt was substituted as a defendant for Brock Adams, former Secretary of Transportation.

2. Gary D. Gayton, successor-in-office to Richard S. Page, Urban Mass Transit Administrator, is substituted as a defendant pursuant to FED. R. CIV. P. 25(d)(1).