Rouse v. Lewis

No. 81-6238 (2d Cir. June 29, 1982)

The court affirms a district court ruling that the Federal Highway Administration (FHWA) complied with the National Environmental Policy Act and the Department of Transportation Act (DOTA) in deciding to construct a portion of a highway, Alternate Route 7. The court rules that the final environmental impact statement for the project is adequate. The court also rejects plaintiffs' claims that the FHWA violated § 4(f) of DOTA. The FWHA was not required to consider an alternative suggested by plaintiffs since the alternative failed to meet the transportation objectives of Alternate Route 7. Finally, the FHWA need not show that it took sufficient steps to minimize harm to a local school since the school was not within the jurisdiction of § 4(f).

[Appended to the opinion of the court was the following statement: "N.B. Since this statement does not constitute a formal opinion of this court and is not uniformly available to all parties, it shall not be reported, cited or otherwise used in unrelated cases before this or any other court." — Ed.]

Counsel for Plaintiffs-Appellants
Lewis B. Oliver Jr.
31 Barclay St., Albany NY 12209
(518) 463-7942

Kathleen L. Morrison, Ass't Attorney General
Capitol, Albany NY 12224
(518) 474-1190

Counsel for Defendants-Respondents
Albert M. Ferlo Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Deborah Dull
Office of Chief Counsel
Federal Highway Administration, Washington DC 20590
(202) 426-0800

Before Oakes, Meskill, and Kearse, JJ.

[12 ELR 21102]

Per curiam:

Plaintiffs Linda D. Rouse et al. appeal from a judgment entered in the United States District Court for the Northern District of New York, Neal P. McCurn, Judge, after a trial on the merits, dismissing their claim for declaratory and injunctive relief against construction of a portion of a highway, Alternate Route 7. Plaintiffs contended that defendants' Final Environmental Impact Statement ("FEIS") was inadequate and that the building of the highway along the route chosen would violate several laws and regulations, including § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) (1976).

We affirm substantially for the reasons stated in the district court's memorandum and order dated October 22, 1981. In addition to the arguments rejected by the district court, plaintiffs contend here that in planning to use the Maplewood School playfield for Alternate Route 7, the Federal Highway Administration ("FHWA") violated § 4(f) by failing to consider "feasible and prudent alternative[s]" and by failing to minimize the harm to the School classrooms. These contentions have no merit. What plaintiffs point to on appeal as a possible "feasible and prudent alternative," a route designated "Alternative 5," was not really an alternative at all since the New York State Department of Transportation ("NYSDOT") had concluded that Alternative 5, unlike the alternatives extensively considered in the FEIS, failed to meet all of the "transportation objectives" of Alternate Route 7. Specifically, NYSDOT's evaluation of Alternate 5 was that it would fail to provide an "appropriate level of accessibility and mobility" for users of the proposed Alternate Route 7. Hence § 4(f) did not require any further consideration of Alternative 5. As to the contention that the FHWA did not take sufficient steps in accordance with § 4(f) to minimize possible harms to the Maplewood School classrooms, it does not appear that the classrooms are § 4(f) properties.

The judgment is affirmed.